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GABINO LOZADA and ISIDRO LOZADA, petitioners, vs.

It has been said time and again that a preliminary investigation is

HONORABLE FERNANDO HERNANDEZ, ETC., ET AL., not properly a trial or any part thereof but is merely preparatory
respondents. thereto, its only purpose being to determine whether a crime has
G.R. No. L-6177 | 1953-04-29 been committed and whether there is probable cause to believe
the accused guilty thereof. (U.S. vs. Yu Tuico, 34 Phil. 209; People
DECISION vs. Badilla, 48 Phil. 716). The right to such investigation is not a
fundamental right guaranteed by the constitution. At most, it is
REYES, J.: statutory. (II Moran, Rules of Court, 1952 ed., p. 673). And rights
conferred upon accused persons to participate in preliminary
This is a petition for certiorari to annul an order of the Court of investigations concerning themselves depend upon the provisions
First Instance of Capiz denying petitioner's motion to dismiss an of law by which such rights are specifically secured, rather than
information against them for robbery with homicide. upon the phrase "due process of law". (U.S. vs. Grant and Kennedy,
18 Phil., 122).
It appears that on July 1, 1952, the provincial fiscal of Capiz filed
an information in that court, charging the petitioners with the At present the law conferring upon the accused the right to
crime of robbery with homicide, the fiscal certifying under oath participate in the preliminary investigation is contained in section
that he had conducted a proper preliminary investigation of the 1687 of the Revised Administrative Code, as amended by Section
case on the 27th of the preceding month. Arrested on the strength 2 of Republic Act No. 732, approved on June 18, 1952. It says:
of this information, petitioners asked the court to fix the amount
of their bail, and the court did so on July 16. Some three weeks "SEC. 1687. Authority of Fiscal to conduct investigation in criminal
thereafter petitioners were arraigned, and they then pleaded not matter. - A provincial fiscal shall have authority to conduct
guilty. This they did with the assistance of counsel. investigation into the matter of any crime or misdemeanor and
have the necessary information or complaint prepared or made
With trial scheduled for August 20 but postponed to September against persons charged with the commission of the same. If the
19 at their own request, petitioners moved to have the case offense charged falls within the original jurisdiction of the Court
against them dismissed on the grounds that they had been of First Instance, the defendant shall not be entitled as a matter of
deprived of their right to a preliminary investigation without due right to preliminary investigation in any case where the provincial
process of law, and when this motion was denied, they brought fiscal himself, after due investigation of the facts made in the
the present action for certiorari. presence of the accused if the latter so requested, shall have
presented an information against him in proper form and certified
There is no question that before filing the information the under oath by the said provincial fiscal that he conducted a proper
provincial fiscal first conducted an investigation as the law preliminary investigation. To this end, he may, with due notice to
requires. But petitioners contended that they were not given the the accused, summon reputed witnesses and require them to
right to participate in that investigation for they were not even appear before him and testify and be cross- examined under oath
notified thereof. by the accused upon the latter's request. The attendance or
evidence of absent or recalcitrant witnesses who may be
summoned or whose testimony may be required by the provincial
fiscal under the authority herein conferred shall be enforced by
proper process upon application to be made by the provincial
fiscal to any Judge of First Instance of the Judicial Districts. But no
witness summoned to testify under this section shall be compelled
to give testimony to incriminate himself."

The petitioners construe the above provision as requiring the

provincial fiscal conducting the preliminary investigation to give
notice thereof to the accused so that he could be present thereat.
The Solicitor General, on his part, contends that such notice is
required only after the accused has requested to be present at the
investigation, for "To hold that the provincial fiscal is required to
give notice to the accused before conducting the investigation
would make it impossible for him to conduct such investigation in
cases where the whereabouts of the accused is unknown, since the
law has not provided for notice by publication, nor allows him to
dispense with such notice in a case similar to that just mentioned."
There is weight to this reasoning. And in any event, even
supposing that petitioners had a right to be notified of the
preliminary investigation so that they could participate in it
despite the fact that they had not "so requested", such right was
waived when they pleaded not guilty upon arraignment. For it is
now settled that the right to preliminary investigation is waived
by failure to claim it before the accused pleads not guilty. (People
vs. Magpale, 70 Phil., 176; People vs. Solon, 47 Phil., 443.)

In view of the foregoing, the petition is denied, with costs against

the petitioners.

Paras, C.J., Feria, Pablo, Bengzon, Tuason, Montemayor, Jugo,

Bautista Angelo and Labrador, JJ., concur.
THE UNITED STATES, plaintiff-appellee, vs. CASIANO supported by affidavits which the court had deemed sufficient to
BANZUELA and ANSELMO BANZUELA, defendants- order the defendants' arrest; that in the preliminary investigation,
appellants. which he attended, he did not believe it advisable for the
G.R. No. 10172 | 1915-10-01 prosecution to exhibit all its evidence, wherefore he presented
D E C I S I O N only one witness, and the justice of the peace stated it to be his
ARAULLO, J.: opinion that Anselmo Banzuela was innocent; but that such
expression of opinion could not warrant the exclusion of
These proceedings were commenced by a complaint filed by the defendant from the proceedings nor free him from the complaint,
provincial fiscal in the Court of First Instance of Laguna on inasmuch as a preliminary investigation had already been held. He
February 14, 1914, which was drawn up in the following terms: added, furthermore, that he objected to a new investigation being
made with respect to this defendant. After again hearing counsel
"The undersigned charges Casiano Banzuela and Anselmo for the defendant, who insisted that, in conformity with the
Banzuela with the crime of homicide committed as follows: provisions of section 2 of Act No. 194, the accused Anselmo
Banzuela was entitled to a preliminary investigation, the court
"About the 24th of November, 1913, in the municipality of San denied the said attorney's motion to exclude. Immediately
Pablo, Province of Laguna, the said accused persons, neither of thereafter the latter excepted to this ruling and moved the court
them being either the father, mother, legitimate or illegitimate to hold a preliminary investigation, previous to determining
child, ascendant, or spouse of Carlos Violan, did, intentionally, whether there was probable cause for the prosecution of his
maliciously and criminally, kill the latter with a dagger, pocket client. This petition was denied by the court, on the ground that it
knife and monkey wrench ---- an act committed in violation of had just declared that such investigation had already been held.
law." An exception to this ruling was also taken by counsel for the said
At the commencement of the hearing of the case, on March 2 of the
same year, 1914, counsel for the defendants stated to the court Thereupon the said attorney announced that the two accused
that a preliminary investigation of the matter had been held in the waived arraignment and pleaded not guilty. After due trial the
pueblo of San Pablo and that in view of the evidence adduced Court of First Instance, on March 7, 1914. rendered judgment in
therein the justice of the peace declared the defendant Anselmo which it held that the said Casiano Banzuela and Anselmo
Banzuela to be innocent, or rather that he was probably not guilty Banzuela were guilty of the crime of homicide as charged in the
of the crime charged; that the said charge freed Anselmo Banzuela complaint, with no extenuating or aggravating circumstances, and
from a charge in the Court of First Instance, unless a preliminary sentenced each of them to 14 years, 8 months and 1 day of
investigation be again held with respect to him, and for these reclusion temporal, with the corresponding accessory penalties,
reasons the said attorney moved that the name of Anselmo to indemnify jointly and severally the family of the deceased in the
Banzuela be stricken from the complaint. sum of P1,000, and to pay each one-half of the costs. From this
judgment the defendants appealed, and their counsel has alleged
The fiscal, in turn, stated that the defendants had in fact been in this instance that the lower court erred:
accused in the justice of the peace court, the information being
"1. In continuing these proceedings against Anselmo Banzuela, liberty; but such release shall not prevent the filing of a new
inasmuch as in the preliminary investigation they were dismissed complaint or information and the arrest of the accused thereon at
with respect to him. any time before the prosecution of the offense shall be barred by
the statute.
"2. In denying his petition that a preliminary investigation first be
held before compelling him to answer the complaint. With respect to the procedure which must be followed when the
crimes charged are alleged to have been committed in the
"3. In subjecting him to a trial in criminal proceedings without provinces of the Philippine Islands, with the exception of the city
previous judicial declaration of probable cause. of Manila, that is, within the limits of the respective municipalities
of such provinces, the provisions of section 1 of Act No. 194 of the
"4. In sentencing him without due process of law. Philippine Commission are also very clear and precise. They
prescribe that every justice of the peace in the Philippine Islands
"5. In finding the appellant Casiano Banzuela guilty and not is vested with authority to make a preliminary investigation of any
allowing in his favor the exempting circumstance of lawful crime alleged to have been committed within his municipality,
defense. jurisdiction to hear and determine which was vested in the judges
or Courts of First Instance; and, further; that it shall be the duty of
"6. In sentencing the appellant Anselmo Banzuela, every justice of the peace, when written complaint under oath has
notwithstanding that the evidence shows his entire innocence. been made to him that a crime has been committed within his
municipality and there is reason to believe that any person has
"7. In not allowing the defendants the benefit of reasonable committed the same which complaint the justice believes to be
doubt." well founded, to issue an order for the arrest of the accused and
have him brought before the justice of the peace for such
The general provision contained in section 13 of General Orders preliminary examination.
No. 58 is explicit. It provides that when a complaint is laid before
a magistrate, he must examine, on oath, the informant or In connection with the provisions of the said section 1 of Act No.
prosecutor and the witnesses, and if he be satisfied that the crime 194, those of section 2 of the same Act are also clear and precise,
complained of has been committed, and that there is reasonable according to which, when the accused is brought before the justice
ground to believe that the party charged has committed it, he must of the peace, it shall be his duty to inform the accused person of
issue an order for his arrest and admit him to bail if the offense is the charge, to give him an opportunity to examine the complaint
bailable. and the affidavit if any, of all the witnesses in support thereof, to
make a preliminary investigation of the charge, in the manner and
Very explicit also are the general provisions contained in section form provided in this section, and, upon the conclusion of the
14 of the same General Orders, pursuant to which, if the preliminary investigation, if the justice of the peace is of the
magistrate believes from the evidence submitted, either that the opinion that there is reasonable cause to believe that an offense
crime complained of was not committed, or that, if committed, the has been committed and that the accused is guilty thereof, he shall
person charged did not commit it, he must set the person at so declare and shall adjudge that the accused be remanded to jail
for safekeeping to await the action of the judge or the Court of the conduction of preliminary investigations or proceedings, not
First Instance, unless he give bail for his appearance; but, if the only to the justice of the peace courts, within whose jurisdiction
justice of the peace be of the opinion that no crime has been the crime complained of was committed, but also to any justice of
committed, or that there is no reasonable ground to believe the the peace of the province, to the justice of the peace of the
accused guilty thereof, the justice of the peace shall order the provincial capital and to the Court of First Instance itself, shows
discharge of the accused. the purpose of the law to be that no person charged with the
commission of any crime shall be deprived of that right.
This same section further provides however, that such discharge
shall not operate as a final acquittal of the accused, but he may be The preliminary investigation which must be conducted by the
again arrested and prosecuted for the same offense. justice of the peace, is, pursuant to the provisions of Act No. 194,
the necessary and indispensable commence ment of the
The legal provisions above cited recognize and affirm the right of proceedings against the accused, for its purpose is to determine
every person charged with the commission of a crime to a whether there is reasonable cause to believe that the crime
preliminary investigation, or to have preliminary proceedings complained of has been committed; whether the accused is guilty
conducted such as shall tend to show whether the crime charged thereof and whether there is reasonable ground for believing that
was committed and whether there is reasonable ground to believe he committed it, before depriving him of his liberty and subjecting
that the accused committed it, before he be imprisoned and him to trial If such determination be in the affirmative and in
subjected to trial. Such preliminary investigation, which in general conformity with the provisions of section 2 of the same Act the
terms is prescribed in the said General Orders No. 58, or the law justice of the peace orders the imprisonment of the accused or his
of criminal procedure now in force, may, pursuant to section 39 of release on bail and places him at the disposition of the Court of
Act No. 183, as amended by section 2 of Act No. 612, be made by First Instance for such action as the latter may deem proper, then
the prosecuting attorney of the city of Manila, in cases triable in beyond all doubt the proceedings must be continued against the
the courts of the other provinces of the Archipelago, when the accused, after the filing of the requisite complaint by the
crime was committed within their respective jurisdiction, and provincial fiscal. But where such determination be in the negative,
shall be conducted subject to the provisions of the said Act No. or what amounts to the same thing, when the justice of the peace,
194, as amended by Acts Nos. 1450 and 1627. Section 37 of this as this same section 2 prescribes, is of the opinion that no crime
last Act amended section 1 of Act No. 194 in the sense that the has been committed, or that there is no reasonable ground to
Court of First Instance of the province, or the justice of the peace believe the accused guilty thereof, the justice of the peace, by
of the provincial capital or of the municipality in which. the imperative mandate of the law, must order the discharge of the
provincial jail is located, when directed by an order from the judge accused, and this having been done and the accused,
of first instance, shall have jurisdiction to conduct such consequently, not having been placed at the disposition of the
investigations at the expense of the municipality wherein the Court of First Instance for such action as might be proper in the
crime or offense was committed, though alleged to have been premises, as in the above case, it is unquestionable that the
committed anywhere within the province. proceedings initiated by the justice of the peace court, or to put it
better, the commencement of the proceedings against the accused
The diligent foresight of the legislator in granting jurisdiction for had in the justice of the peace court, was terminated and can not
serve as a basis for the prosecution or trial of the accused in the between the action of the justice of the peace in ordering the
Court of First Instance. arrest of an accused person and placing him at the disposition of
the Court of First Instance because in his opinion reasonable
The fact, then, that a preliminary investigation was made before grounds existed for believing that the accused was guilty of the
the justice of the peace of San Pablo with respect to Anselmo crime charged in the information, and in the justice ordering the
Banzuela in the matter of the crime of which he was charged in release of an accused person and not placing him at the
these proceedings an investigation which, as the provincial fiscal disposition of the Court of First Instance, because of his opinion
stated at the opening of the trial, resulted in the finding that the that there were no grounds for believing that the said accused was
said accused was innocent and, consequently, in his being ordered guilty of the crime charged against him. In brief, the declarations
released, ---- could not serve as a bar, as the provincial fiscal and and determinations which, in such a contrary sense, the justice of
lower court understood, to another preliminary investigation the peace as a result of the preliminary investigation would have
with respect to the same accused by virtue of the complaint filed made and adopted in accordance with the provisions of the law,
against him by the said fiscal. There was no need to base or ground would produce the same effect for the provincial fiscal, for the
the same, because it could have no such basis or grounds, on the Court of First Instance and upon the rights of the person charged
previous preliminary investigation conducted in the said justice of with a crime. That would be a downright absurdity.
the peace court with respect to the same accused, Anselmo
Banzuela, which investigation, as aforesaid, terminated with the Precisely that which shows that the Court of First Instance cannot
declaration that there was no reasonable ground for believing that avail itself of the preliminary investigation held by the justice of
he was guilty of the crime of which he had been charged. It differed the peace, in accordance with the provisions of Act No. 194, for the
from the information filed against the other accused, Casiano purpose of ordering the arrest of the accused and subjecting him
Banzuela, who had been placed at the disposition of the Court of to a criminal action in which a judgment of conviction may be
First Instance by the justice of the peace court, and whose arrest pronounced upon him, when, as a result of the said preliminary
had already been ordered by the latter precisely for the purpose investigation, the justice of the peace who made it had ordered the
definitely intended by the law, that is, the filing of the required release of the accused because of said court's opinion that no
complaint against him by the provincial fiscal. reasonable grounds existed to believe the accused guilty or that
he committed the crime, is that both General Orders No. 58, in its
If the preliminary investigation conducted with regard to Anselmo section 14, and Act No. 194, in its section 2, explicitly provide that
Banzuela could be or could have been lawfully utilized by the in such an event the release ordered by the magistrate or justice
provincial fiscal for the purpose of filing the complaint against the of the peace who made the investigation shall not be understood
said accused and of prosecuting the action against him wherein he to operate as a final acquittal of the accused, shall not prevent the
was sentenced, in the same manner that the said fiscal utilized the filing of a new information or complaint and the arrest of the
preliminary investigation had with respect to the other accused, accused thereon at any time before the prosecution of the offense
Casiano Banzuela, who also was tried and sentenced by virtue of is barred by the statute.
the aforementioned complaint, to the provisions of which we have
just referred, the precept of said section 2 of Act t No. 194 would It is in this sense that it may be understood, as stated by the Court
be entirely useless, for there would be no difference whatever of First Instance in deciding the motion in question presented by
counsel for Anselmo Banzuela, that the opinion of the justice of the
peace with regard to the result of the preliminary investigation is It being unquestionable that the said investigation had was
not res judicata; but this does not mean that the Court of First absolutely worthless as a basis for the complaint filed by the
Instance, as understood and stated by the trial court in ruling on provincial fiscal against Anselmo Banzuela, and the law having
the said motion, is authorized to review the preliminary explicitly recognized and established the right of any person,
investigation made by the justice of the peace court and may, if he accused of a crime, not to be deprived of his liberty or subjected
finds that the latter erred in finding that there were no reasonable to trial until after a preliminary investigation has been made from
grounds to justify the prosecution of the accused, utilize the which it is shown that there are reasonable grounds to believe him
preliminary investigation for the purpose of ordering the guilty of the crime charged against him, it is beyond all question
temporary imprisonment of the accused and subjecting him to that the defendant Anselmo Banzuela was deprived of his liberty
trial, notwithstanding that the justice of the peace who made the tried and sentenced in this cause by virtue of a complaint filed
investigation ordered his release. Preliminary proceedings are not against him by the provincial fiscal of Laguna on February 14,
brought up before the Court of First Instance either in 1914, without due process of law, that is, without the holding of
consultation or on appeal, but their result serves the fiscal as a the proper preliminary investigation with respect to him as
basis on which to file the complaint, the accused, meanwhile, requested by his attorney at the commencement of the hearing in
whom the justice of the peace has found guilty and for this reason this cause. Consequently, the Court of First Instance of Laguna
has been temporarily imprisoned awaiting trial or has been incurred the first four assignments of error specified by the
released on bail, being at the disposition of the Court of First defense in its brief, ---- errors which nullify the judgment
Instance. rendered against the said defendant and all the proceedings had
with respect to him in the said trial. The order to release the
For this same reason the fiscal cannot file a complaint against an accused, Anselmo Banzuela, given by the justice of the peace court
accused person on the strength of the preliminary investigation, of San Pablo in that preliminary investigation, must not, however,
or by submitting the latter to the consideration of the Court of be understood to operate as a final acquittal, nor does that order
First Instance, when the justice of the peace court has found the prevent the filing of a new complaint against him, for the crime
accused not guilty of the crime complained of, has consequently has not yet prescribed; and after the complaint has been filed by
ordered his release and has not placed him at the disposition of the provincial fiscal of Laguna the proper preliminary
the said Court of First Instance. The trial court, therefore, erred in investigation must be held and the Court of First Instance must
holding that, inasmuch as the transcript of the testimony given by take such action as the law requires upon the termination of the
Jeremias Villanueva in the preliminary investigation conducted by proceedings.
the justice of the peace of San Pablo with respect to Anselmo
Banzuela showed there were reasonable grounds to warrant this With respect to the defendant Casiano Banzuela, the defense
defendant's prosecution, the said trial court could consider the contends in its brief that he should be exempted from all criminal
preliminary investigation requested with such insistency by liability for the death of Carlos Violan because this defendant
Anselmo Banzuela's attorney to be unnecessary because that acted in lawful self-defense, the three requisites for such
investigation had already been held before the justice of the peace exemption which are required in article 8, No. 4, of the Penal Code
of San Pablo. having concurred.
up to the municipal president of the pueblo of Alaminos of the
In support of his theory, the defense admits that there was a aforesaid province.
struggle between the defendant Casiano Banzuela and Carlos
Violan and that the latter died as a result of the wounds inflicted On the morning of the day following the commission of the crime
upon him during that struggle. In relating what occurred between the corpse of Carlos Violan was examined by Doctors Jose M.
these two men the defense, in fact, says in its brief: Delgado and Justiniano Jaojoco, and was found to present eight
wounds, all of them produced by a stabbing instrument, except
"The struggle reached such a pitch that the assailant and the one, which was inflicted b a stabbing and cutting instrument. The
assaulted party approached very near each other, and it was then first wound w on a line between the two sternal and mammary
that Casiano Banzuela was able to use his weapon and stab the lines, on a level with the fourth left intercostal space, and reached
deceased a number of times in the breast, in the stomach and, and made a deep incision in the heart; the second, in the fifth
finally, once in the neck, thus piercing the spinal cord, and upon intercostal space of the right side, half a centimeter above the right
striking this blow not only Carlos Violan, but also Casiano nipple, injuring the lung on the same side; the third, in left side of
Banzuela fell down. Carlos Violan fell never to rise again, for he felt the umbilical region, affecting the peritoneum and the intestines;
that he was dying from the wounds he had received." the fourth, in the abdominal cavity, on a level with the eleventh
rib, also injuring the peritoneum and the intestines; the fifth, in the
It was proved at trial that the struggle to which the defense refers lower part of the left mastoid region, injuring the spinal cord; the
and which took place between defendant Casiano Banzuela and sixth, in the left lateral part of the region of the left
Carlos Violan, occurred a little after 4 o'clock of the afternoon of hypochondrium, and which affected only the muscular sheath; the
the 24th of November, 1913, on one side of the main street of the seventh, in the posterior part of the middle axillar line, on a level
barrio of Balanga, pueblo of San Pablo, Province of Laguna; that with the eighth rib of the left side; and the eighth, in the outer side
Carlos Violan died a few moments after he had fallen, as a result of of the first joint of the thumb of the right hand. The first five of
the wounds he received in that struggle, his inert body remaining these wounds were necessarily mortal; the sixth was slight, and
stretched out at full length near the gate of a fence until after dark the last two were of minor importance.
when the lieutenant of the barrio and other agents of the
authorities appeared at the place, picked up the corpse and The physician and president of the municipal board of health
carried it to the pueblo; that in the meantime the defendant, Doctor Jaojoco, having also examined the defendant Casiano
Casiano Banzuela, who had started to flee as soon as Carlos Violan Banzuela, on January 20 of the following year, 1914, (for, as
fell mortally wounded, disappeared from the sight of the many aforesaid, this defendant had disappeared and his whereabouts
persons who had witnessed the struggle, and kept in hiding that were not discovered until the 23d of December of the previous
night in a deserted part of one of the neighboring barrios and year 1913), it was found that he had eight healed wounds
afterwards in a shack belonging to a relative of his, and that the apparently caused by a cutting instrument. The first wound was
police who went to find and arrest him did not discover him in the upper right side of the occipito-parietal region; the second,
during the time that elapsed from the afternoon of the 24th of in the lower portion of the left antero-lateral part of the neck; the
November, when the crime was committed, to the 23d of the third, in the lower part of the outer side of the right arm; the
following month of December, when the defendant gave himself fourth, in lower third of the back of the right forearm; the fifth, in
the lower part of the back of the same forearm; the sixth, and in relating what occurred after Francisco Munda had
appearing to be a continuation of the fourth and fifth wounds, in separated him from Carlos Violan, said that he, Casiano, continued
the back of the right hand; the seventh on the lower and inner part on his way in the direction of Tiaong for the purpose of boarding
of the back of the left hand; and the eighth, in the right upper side the train there; that just as he had started he heard a voice say:
of the epigastric region, and, as a continuation of this wound, a "Wait, Casiano ;" that he then turned his head and saw that it was
scar two and a half centimeters long of a wound that only injured Carlos Violan who was calling him; that he thereupon quickened
the skin. As stated by the said physician in his certificate, Exhibit his steps and almost ran, but that Violan pursued and over took
1 of the defense, these wounds were apparently caused by a him and struck him a blow on the head which made him stagger,
cutting instrument, the second, fourth, fifth, sixth and eighth of and afterwards, another cut on his right arm; that defendant then
them being superficial. drew out his pocket knife and Violan thrust at him with the bolo
he, Violan, was carrying; that defendant fell sideways against the
It was also proved at the trial that before 4 o'clock in the said fence to avoid the blow, and, while in this position, Violan struck
afternoon of the 24th of November, 1913, Casiano Banzuela and him another blow which he parried with his left hand, for it was
Carlos Violan were gambling at monte in the barrio of Balanga; aimed at his neck; that Violan struck him another blow and he
that because Banzuela would not trust Violan for a bet of half a defended himself with his right hand in which he held the pocket
peso which the latter had made on a card, a quarrel arose between knife, and believed that it was with this weapon that he wounded
them during which Violan struck Banzuela a blow on the neck his assailant; that Violan continued to strike him while he
with his bolo, the same weapon which produced the cicatrized defended himself and fell back; that, as he saw that his life was in
superficial wound found by Doctor Jaojoco when he examined this danger because his assailant wished to kill him, he grappled with
defendant on January 20, 1914, and one of those mentioned in the Violan, caught him by the neck and struck him on the breast and
certificate, Exhibit 1. It is likewise proved that that dispute was the stomach, wounding him when they were near the fence; that
settled and the two disputants were separated by the efforts of the struggle ended by their falling down together; and that when
Francisco Munda, a resident of the said barrio of Balanga, who, on they fell defendant saw that his pocket knife was sticking in
seeing that they were wrangling and that Casiano Banzuela was Carlos' neck and he drew it out.
wounded in the neck, said to them, after learning the cause of the
dispute, that it was not worth while for them to continue to act Victorino Montecillo, a witness for the defense, testified that he
that way; that he took hold of Carlos Violan and led him toward saw Carlos Violan, who was carrying a bolo, pursue the defendant
the street to a point about 250 meters away from the scene of the and strike him a blow on the head. He related what then occurred
quarrel; that meanwhile the defendant Casiano had withdrawn; between these two men and his story was the same as that told by
that witness did not continue to accompany Violan, because his the defendant. He further stated that "when Carlos saw that his
(Munda's) wife did not allow him and obliged witness to return blows were not effective, on account of the nearness of Casiano to
home with her; that, therefore, witness left Casiano at the side of Carlos, he rushed upon Casiano and seized him by the throat,
the street, advising him i to take a carromata or the train and notwithstanding which Casiano struck him a blow in the direction
withdraw. of his shoulder, and it was then I saw that they both fell." This
witness finally added that when he was going away, frightened by
The defendant Casiano Banzuela took the stand in his, own behalf, what he had seen, he turned his head and saw that Casiano was
getting up. "Q. Whom did Carlos strike? ---- A. One struck the other and at the
same time the other stabbed in return."
No other witness testified at the trial that, after Francisco Munda
had separated Casiano Banzuela and Carlos Violan, the former Victor Cobel, who that afternoon passed along the same road on
already having the wound in his neck inflicted by the latter with his way from his rice field in Tiaong to the barrio of Santa Cruz,
his bolo, Violan pursued this defendant, and that as a result of and was, as he himself stated, in the crowd of spectators, who
pursuing and overtaking him the struggle between them took numbered more than thirty, and at a distance of 20 meters from
place which resulted in the death of Carlos Violan. the combatants, saw that Carlos Violan and the defendant were
fighting, and that the latter had a dagger and the former a bolo. He
On the contrary, when Francisco Munda, who was obliged by his also saw the defendant snatch away the bolo carried by his
wife to retire to his house with her and leave Carlos Violan in the opponent, and saw the latter fall with blood on his breast. He then
street, was already separated from the defendant and at some left the place. Neither did this witness, in relating what he saw,
distance from him, in front of and about to enter his house, he make mention of having seen Carlos Violan pursue the defendant.
glanced down the street and saw these two men fighting at a
distance of about 120 meters from him. It is therefore strange that It cannot be denied that the fact of Carlos Violan having struck the
he should not then have seen Carlos Violan pursue the defendant. defendant a cut on the neck with his bolo when the altercation
arose between them, caused by this defendant's refusal to loan
Leon de Silva, who was also that afternoon in the vicinity of the Violan half a peso for a bet in the game, was an unlawful assault;
place where the struggle took place, for he had gone there to but as the two disputants had already been separated by
gamble, and saw Francisco Munda accompanying Violan, testified Francisco Munda, as the one had already gone away from the
that after a little while Munda left the latter; that a moment later other, and as a considerable time elapsed between the moment
the defendant appeared and, on approaching Violan, unsheathed the defendant was wounded by Carlos Violan with his bolo and the
his weapon, as the latter did his, and the two men began to fight, time when the two armed men fought in a place other than that
so witness said, when they were about 20 meters distant from where they had the altercation, though in the same barrio, the said
him. It is also strange that at that moment this witness should not unlawful assault can not be held to be sufficient to exempt the
have seen Carlos Violan pursue the defendant. On the court's defendant from criminal liability, nor can the act performed by the
endeavoring to ascertain which of the two combatants struck the latter in killing Carlos Violan be considered an act of lawful self-
first blow, this witness answered the questions which were put to defense against that assault, as claimed by his attorney, because,
him in the following manner: in order that an unlawful assault may be set up as a defense for
the purpose of such exemption from liability in accordance with
"Court: Do you know who struck first? ---- A. Both of them struck the provisions of article 8, No. 4 of the Penal Code, it is necessary
at the same time. that the assault be immediate, imminent, and that the person who
defends himself therefrom find himself attacked or threatened by
"Q. Who are the two who struck each other at the same time? ---- a danger which may be visited upon him in the very moment when
A. Carlos and Casiano. he acts in self-defense. The harm caused by one person to another
who offended or caused him injury, some time after he suffered
such offense or such injury, does not constitute an act of self- and attacked by Carlos Violan with a bolo, as related by the
defense, but an act of revenge which can find no justification defendant himself and his witness Montecillo, before this
whatever in the eyes of the law, even though the harm or the defendant attacked Violan with his dagger, ---- which, besides a
offense inflicted upon him be an aggression which is considered monkey wrench, he carried about with him since the morning of
by the statute to be unlawful. the day of the crime, according to the testimony of Vicente Luistro,
----- because he would have been rendered incapable of making
Although the defendant stated at the trial, and his testimony was such a furious assault upon Carlos Violan and causing him so many
corroborated by a witness, that after he had already been and such serious wounds as he did, leaving him almost dead on
separated by Francisco Munda from Carlos Violan and was going the edge of the road and fleeing, not again to appear for more than
toward Tiaong there to take the train, he was pursued and a month. This latter detail indicates also that he did not consider
overtaken by Violan who struck him with his bolo, ---- a statement himself free from responsibility for the act performed by him, for
used by the defense as a ground for maintaining that for the otherwise he would immediately have surrendered himself to the
second time the defendant was unlawfully assaulted by Violan and authorities and under their protection would have had nothing to
found it necessary to employ the means he did employ, which fear from the relatives of the deceased. It was the persecution of
under those circumstances were reasonable, to repel the assault the latter, he claimed, that forced him to keep in hiding during that
by wounding Violan, who was not provoked by the defendant, ---- period of time.
no credence can be given to such testimony in view of that
produced by the witnesses for the prosecution who were there That Carlos Violan was not the first to attack the defendant
present and saw what then occurred between Violan and the Casiano Banzuela, but that these two men, on meeting each other
defendant. The truth of their testimony can not be doubted, for on the road as soon as they were free from Francisco Munda's
there is not an iota of evidence in the record to induce the belief interference, attacked and wounded each other; is shown in a
that these witnesses for the prosecution had any interest positive and conclusive manner by the testimony of Leon de Silva
whatever in making the criminal act performed by Casiano who virtually corroborated these facts, for he saw Carlos Violan
Banzuela appear to be more serious than it actually was. On the while the latter was still accompanied by Francisco Munda; he also
other hand, it is more likely that the defendant Casiano Banzuela saw that after a while Munda left Violan, and he likewise saw that
would try to obtain revenge for the ill-treatment inflicted upon shortly afterwards the defendant Casiano Banzuela appeared and
him by Carlos Violan and to return evil for evil when the two men on approaching Violan he unsheathed his weapon, as Carlos
found themselves in the same road, now free from all intervention likewise did, according to the language of this witness, and they
on the part of Francisco Munda, and that he should pursue and began to fight. This witness also testified that the weapon the
attack Carlos Violan, than that the latter, who must already have defendant carried was a dagger, while that carried by Carlos
been satisfied, because a few moments before, he had wounded Violan was a bolo. Witness stated that he saw all this while he was
the defendant, should have again attacked and assaulted him. at a distance of only twenty meters from the combatants.
Moreover, the location and number of the cicatrized wounds
found on Casiano Banzuela one month and a half after the Consequently, the struggle or the duel to the death between the
occurrence, the greater part of them superficial and the rest of defendant Casiano Banzuela and Carlos Violan took place without
very slight importance, show that he could not have been pursued prior unlawful aggression on the part of the deceased. Two men
on meeting each other on the road, attacked one another jointly and severally with the other defendant, Anselmo Banzuela.
reciprocally, one of them with a bolo and the other with a dagger; We set aside the judgment appealed from and declare null and
"they both cut each other," according to the language used by the void all the proceedings had at trial, excepting the complaint, with
witness Francisco Munda, and "they both struck each other at the respect to the defendant Anselmo Banzuela, with one-half of the
same time," as stated by Leon de Silva, nor did either of them relax costs de officio, and after the proper preliminary investigation has
his obstinate determination to cause the greatest possible harm to been held by virtue of the said complaint, the lower court shall
the other, as shown by the number of wounds they both were proceed in accordance with law as regards this defendant. So
found to have received, nor did either try to escape or free himself ordered.
from the attacks of the other, as either of them could have done,
being as they were surrounded by a large number of persons Torres, Carson and Trent, JJ., concur.
among whom they could have found some protection or help,
although these onlookers, terror-stricken at the sight of such a Johnson, J., dissents.
bloody spectacle, did not venture to interpose themselves
between the combatants.

As unlawful aggression by the offended party is an essential and

primal element of just defense and a requisite prescribed in No. 4
of article 8 of the Penal Code, as the first and most fundamental
condition necessary to work exemption from criminal liability in
self-defense; and as the killing of Carlos Violan by the defendant
Casiano Banzuela was the result of a struggle between them, with
no unlawful aggression on the part of the deceased, the trial court
did not err in not allowing in behalf of this defendant the said
circumstance of exemption from liability, and in finding him guilty
of the crime of homicide, provided for and punished by article 404
of the Penal Code, without any circumstance modifying such
liability, and, finally, in imposing upon him, as was done in the
judgment appealed from, the penalty fixed for the said crime in its
medium degree, with the accessory and other penalties therein

For the foregoing reasons, we affirm the judgment appealed from,

with respect to the defendant Casiano Banzuela, with one-half of
the costs of both instances; provided, however, that the indemnity
in the sum of P1,000 to the family of the deceased, to the payment
of which the said defendant was sentenced, shall not be satisfied
AURELIA CONDE, petitioner, vs. THE HONORABLE JUDGE OF her witnesses, some of whom have come from the neighboring
FIRST INSTANCE OF TAYABAS, Fourteenth Judicial District, Province of Marinduque. But the fiscal claims that he is not yet
and THE PROVINCIAL FISCAL OF TAYABAS, respondents. ready and obtains a postponement until the afternoon of the same
G.R. No. 21236 | 1923-10-01 day. The case is again called at the time named, the defendant is
DECISION again ready to proceed, but the fiscal again desires further
postponement. Three days later, on September 3, 1923, the
MALCOLM, J .: accused once more appears with her attorney and witnesses, only
to be met with the renewed petition of the fiscal for a few minutes
The facts which this complaint in certiorari and prohibition of postponement. When the few minutes have grown into hours,
disclose, as admitted by the Attorney-General, are not exactly he comes into court and informs the presiding judge that he has
complimentary to the administration of justice in the Philippine no evidence to sustain the charge of attempted murder, and,
Islands. A case which, apparently, is simple in its nature, has been therefore, under his power to amend the information, charges the
so managed by the prosecution as to deprive the accused of the defendant with the new crimes of illegal detention and lesiones
constitutional right of a speedy trial and to at least give the graves.
appearance of having degenerated into a persecution of a poor
midwife. When the revised charge is presented, the counsel for the accused
asks for a preliminary investigation, which is denied. Thereupon
On December 28, 1922, Aurelia Conde is charged in an the accused is arraigned and ordered to plead to the information.
information filed in the justice of the peace court of Lucena, But she remains silent, and notwithstanding the directions of the
Tayabas, with the misdemeanor denominated lesiones leves. trial judge, refuses either to plead guilty or not guilty. The trial
When the accused appears before the justice of the peace of proceeds no further, because at this moment counsel gives notice
Lucena, accompanied by her lawyer on the day set for the trial, the of his desire to elevate the proceedings to the Supreme Court.
fiscal changes the information so as to charge the accused with the
crime of attempted murder. The new crime not being within the The Code of Criminal Procedure contains provisions directly
jurisdiction of the justice of the peace, the case is set for applicable to the above state of facts.
preliminary hearing. But at the date named, the fiscal does not
appear, ever, upon the recommendation of the fiscal, the Section 9 of the Code provides that the information or complaint
municipal council of Lucena, Tayabas, suspends the accused from may be amended in substance or form without leave of court at
her humble position. Two days after the complaint has been any time before the defendant pleads. This section, as the
dismissed, the fiscal again becomes active and charges the accused Attorney-General properly argues, lodges a discretionary power
anew with the crime of attempted murder. A new arrest, the filing in the prosecuting officer. Ordinarily, the presentation of one
of a new bond, and a preliminary hearing follow, and the case is information or complaint would be sufficient, or at the most one
transmitted to the Court of First Instance, where the fiscal files an amended information or complaint is all that should be expected.
information for the same crime, attempted murder. Six months Otherwise, if, as in this case, the provincial fiscal can constantly
later, or to be precise as to the date, on August 30, 1923, the case shift his attack, the accused would become the victim of official
is called for trial. the accused is present with her lawyer, and with vacillation and procrastination.
In one sense, it is correct to say that the Court of First Instance of
The following sections of the Code of Criminal Procedure contain Tayabas had jurisdiction of this case. In another sense, it is
the well-known provisions providing for preliminary likewise correct to say that the writ of certiorari and prohibition
investigations. The right of an accused person not to be brought to will issue when necessary to the accomplishment of justice in the
trial except when remanded therefor as a result of a preliminary particular case. There is her more than mere error in procedure.
examination before a committing magistrate, it has been held, is a There is an abuse of discretion in the application of the law. The
substantial one. Its denial over the objections of the accused is discretion vested in the fiscal and trial judge is not an arbitrary
prejudicial error, in that it subjects the accused to the loss of title, power and must be exercised wisely and impartially in
liberty, or property without due process of law. (U. S. vs. Marfori accordance with the law. Errors in the proceedings prejudicial to
[1916], 35 Phil., 666.) defendant's substantial rights which would, if the case were to
proceed and appeal were to be taken, constitute ground for
The Code of Criminal Procedure further provides in its section 24 reversal, exist in this case.
that the court must require the defendant to plead. "If he refuses,
a plea of not guilty shall be entered for him." This provision is so We are of the opinion that the relief sought by the petitioner in
plain that no construction is necessary. Applied to the facts before these proceedings should be granted. Indeed, if the petition was
us, it means that since the accused refused to plead, a plea of not for habeas corpus rather than certiorari and prohibition, we might
guilty should have been entered for her. deem it just to issue the former writ, on account of the accused
having been denied the right to the speedy trial, which is secured
In brief, the facts and the law show an accused woman who has to accused persons by our organic and criminal law.
been subjected to various investigations for different crimes, who
has seen the prosecuting officer taking advantage of the authority The remedy prayed for is granted. In accordance therewith, the
granted him, file one information only to withdraw it, and present petitioner shall be given a preliminary examination of the crime
another, who notwithstanding her insistence on trial, has been charged in the last amended information; the order of the trial
made to wait for a long period of time, and who is finally forced to judge requiring the petitioner to plead guilty or not guilty
trial without a preliminary investigation and forced to plead to the notwithstanding her desire no to do so is annulled, and the Court
information law. expects the provincial fiscal, as a quasi-judicial officer, to abstain
from further harassing the accused with new and vacillating
All this the Attorney-General practically admits in his return, informations. Without special findings as to costs, it is so ordered.
which he calls and answer. Without attempting to deny the facts,
the contention of the law officer of the government is, that the trial Araullo, C. J., Johnson, Street, Avanceña, Villamor, Johns, and
judge had jurisdiction of the proceedings, and consequently said Romualdez, JJ., concur.
jurisdiction should not be interfered with. What was said by this
Court in the case of Herrera vs. Barretto and Joaquin [1913], 25
Phil, 245), to the effect that the appellate court will not issue a writ
of certiorari unless it clearly appears that the court to which it wad
directed acted without or in excess of jurisdiction, is a good rule.
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellant, vs. so as to give justice to those who seek justice. There is nothing to lose
LOURDES RAMILO, defendant-appellee. or somebody prejudiced by the reinvestigation and reexamination
G.R. No. L-7380 | 1956-02-29 but, on the other hand, not to give opportunity to the accused who
D E C I S I O N has also a complaint filed before the City Fiscal is far from fair. It must
be understood that in many decisions of the Supreme Court in the
ENDENCIA, J.: performance of the preliminary examination before the issuance of a
warrant, the accused may be present or waive his right to be
This is an appeal from the following order of the Court of First represented and once the warrant of arrest is issued, the accused is
Instance of Capiz dismissing the present case: not allowed to cross-examine in the preliminary investigation of the
witnesses for the government. If this is so, therefore, there is no
"This is a petition for a reconsideration filed by the City Fiscal praying opportunity for the accused to show to the court that all witnesses
that the case be considered filed and given due course by this Court. presented in the preliminary investigation are either invented and
According to the said motion for reconsideration, the City Fiscal manufactured. The only remedy that he has is to present his evidence
alleged that the accused has been given opportunity to be heard in the preliminary investigation so as to prove to the Court that he is
during the investigation. innocent and in case found to be true, the case is dismissed.

"On the other hand, the attorney for the accused alleged that they "In view of the insistence of the City Fiscal in his refusal to make
were not given opportunity to be heard either in the preliminary further preliminary examination as well as to submit the case to
examination before the issuance of the warrant of arrest or in the preliminary investigation, the Court hereby orders the dismissal of
preliminary investigation of the case before it was remitted to this this case, without cost."
It appears that on October 1, 1953, the City Attorney of Roxas City,
"In order to give opportunity to the accused who alleged that he had upon previous investigation of the merits of the case at the instance
also a complaint for oral defamation against the offended party of this of Rosita de Fernandez, filed with the Municipal Court of Roxas City
case so as to determine which case has to be continued by the City an information for Grave Oral Slander against the herein defendant-
Fiscal, this Court ordered the case to be remitted to the lower court appellee Lourdes Ramilo. On the same date, the Municipal Judge
so as to perform again the preliminary examination as well as the issued the warrant for the arrest of the accused who immediately
preliminary investigation, giving all the opportunities that the filed a bond in the amount of P1,000 for her provisional release.
accused may like to interpose in these proceedings.
On October 7, 1953, she was arraigned before the Municipal Court,
"On the other hand, the City Fiscal alleged that there was no need for pleaded not guilty and waived her right to preliminary investigation.
him to conduct the preliminary examination because it is necessary, Consequently, on the same date the Municipal Court forwarded the
according to him, that the accused has to prove that the case that he record of the case to the court of First Instance of Capiz. On October
filed is worthless or the evidence is insufficient. The Court is of the 8, 1953, the City Attorney filed with the latter Court an information
opinion that the City Fiscal should investigate and examine these worded in the same manner as that filed in the Municipal Court. On
cases so as to determine whether the evidence is sufficient to justify November 9, 1953, the case was called for the arraignment of the
the filing of the present case. The only way to determine this fact is to accused and on that day she appeared but instead of pleading guilty
make a rigid and careful examination of the witnesses of both cases or not guilty to the charges against her, she filed an urgent motion for
reinvestigation of the case on the following grounds:
Accordingly, the case was sent back to the Municipal Court of the City
"That, while the complaining witness in the above-entitled case was of Roxas and indorsed by the latter to the City Attorney for further
allowed to be heard by herself and her witnesses and even assisted investigation. Complying with the order of the court, the City
by counsel, the above-named accused was not given the merest Attorney set the case for reinvestigation on November 18, 1953, but
opportunity to be present, heard and assisted by counsel at any time on that date the accused asked that the witnesses for the prosecution
previous to the filing of this case by the prosecuting attorney of Roxas be first called for cross-examination and refused to submit to the
City; reinvestigation unless she could cross-examine them. The City
Attorney did not yield to this petition, closed the reinvestigation, and
"That the city prosecuting attorney ignored and disregarded facts on November 19, 1953 returned the record of the case to the Court of
and circumstances directly related to the above-entitled case which First Instance and immediately thereafter filed a motion praying that
otherwise would have warranted the dismissal of the complaint filed the case be given due course on the ground that there is sufficient
by the complaining witness; evidence to warrant the conviction of the accused. This motion was
denied by the Court in its order of November 24, 1953, worded as
"That in obvious partiality towards the above-named accused, the follows:
prosecuting city attorney ignored and disregarded the complaint
filed by the above-named accused presented by her against "Upon petition of the City Attorney praying that this case be
complainant even previous to the complaint filed by the latter." considered, the Court hereby denies the said petition inasmuch as the
said case is concerned it was already finished in the Court of First
Acting upon this motion, the Court of First Instance of Capiz entered Instance.
the following order:
"Therefore, the Court hereby remits this case to the Justice of the
"This is an urgent motion for reinvestigation alleging among other Peace of the City of Roxas."
things that Attorney Francisco Fuentes, representing the accused,
was not given opportunity to be present nor the accused was allowed On December 5, 1953, the City Attorney petitioned the Court that the
to be assisted by any attorney during the investigation. In order to preceding Order be set aside and that the case be given due course,
give every opportunity to the accused and for the sake of justice, this among other things, on the ground that:
Court believes that the urgent motion is reasonable and, therefore,
should be given due course. "That when this case was called for arraignment of the accused on
November 9, 1953, this Honorable Court set aside the arraignment of
"In view of the foregoing consideration, the Court orders that this the said accused and proceeded to hear the urgent motion for
Criminal Case No. 1692 for Grave Oral Defamation be returned to the reinvestigation filed that same morning by counsel of the accused
municipal court of the City of Roxas so that the same may be indorsed without serving copy of the same to the undersigned;
to the City Fiscal for further investigation of the case with the request
and advice that if the reinvestigation be carried out, the attorney for "That the undersigned objected to the granting of the petition for
the accused should be allowed to be present and at the same time be reinvestigation on the following grounds:
heard, and to admit and receive any evidence that she may present if
she so desires." "1. That the accused has been granted the opportunity to be heard
during the investigation; insofar as this Honorable Court is concerned is already finished;

"2. That under Section 11, Rule 108 of the Rules of Court, prior to her "That the aforementioned order of this Honorable Court is contrary
arrest she has not the absolute right to participate in the investigation to law and procedure; this Honorable Court having disposed of the
conducted by the undersigned; above entitled case by means of the order for reinvestigation and not
upon trial on the merits; and
"3. Under the same Rule after her arrest and delivery to the court the
only right of the accused is to be informed of the substance of the "Granting arguendo that the accused was deprived of her right to
testimony and evidence presented against her and if she desires to participate to the preliminary investigation, such deprivation will not
testify and to present witnesses or evidence in her favor; but accused warrant the dismissal of the case as decided by the Supreme Court in
in the above-entitled case waived her right to the preliminary the case of Gabino Lozada vs. The Honorable Fernando Hernandez,
investigation as shown by the records of the case. respondent, G. R. No. L-6177 which held:

"That notwithstanding these objections of the undersigned, this "It has been said time and again that a preliminary investigation is
Honorable Court granted the said motion for reinvestigation; not properly a trial or any part thereof but is merely preparatory
thereto, its only purpose being to determine whether there is
"That pursuant to this order of this Honorable Court the undersigned probable cause to believe the accused guilty thereof, (U. S. vs. Yu
scheduled for reinvestigation the above entitled case on November Tuico, 34 Phil. 209; People vs. Badilla, 48 Phil. 718). The right to such
18, 1953, in order to give opportunity for the accused to show those investigation is not a fundamental right guaranteed by the
facts and circumstances mentioned in her motion for reinvestigation constitution. At most, it is statutory."
which would warrant the dismissal of this case and which were
allegedly ignored by the undersigned; On December 9, 1953, the Court of First Instance denied this motion
and dismissed the case allegedly "in view of the insistence of the City
"That counsel of accused refused to allow the accused and her Fiscal in his refusal to make further preliminary examination as well
witnesses to submit to the reinvestigation unless the undersigned as to submit the case to preliminary investigation."
produces before said counsel all the witnesses of the prosecution so
that he can cross-examine them; It is contended that the lower court erred "in not giving due course to
the information filed by the City Attorney for grave oral defamation
"That undersigned refused to accede to these demands without the against the accused Lourdes Ramilo and in dismissing the case." We
accused and her counsel first showing that the case filed lacks merit; find this contention to be well taken. Firstly, because after the filing
of the information by the City Attorney with the Municipal Court of
"That, the merits of the case as filed not having been disturbed, the the City of Roxas and after the issuance of the warrant of arrest, the
undersigned accordingly filed a motion before this Honorable Court accused filed a bond for her temporary release and when the case was
on November 19, 1953, to consider the above entitled case filed and set for preliminary investigation before that court, she, assisted by
to give due course to the same; her counsel, having been informed of the nature of the charge against
her, pleaded not guilty and explicitly waived her right to a
"That this Honorable Court in its order of November 24, 1953, denied preliminary investigation. Secondly, when the case was to be
this petition of the undersigned alleging that the above entitled case, reinvestigated by the City Attorney pursuant to the order of the Court
of First Instance, the accused, instead of submitting her evidence, provision of law and therefore the City Attorney of Roxas City has
demanded that the witnesses for the prosecution be recalled for correctly denied such demand.
cross-examination and refused to continue with the reinvestigation
when her demand was denied by the City Attorney who had to Wherefore, the aforequoted order appealed from is hereby revoked
forward the record of the case to the Court of First Instance for trial and the Court a quo ordered to proceed with the trial of the case on
on the merits. It could readily be seen that the accused has been given its merit.
all the opportunity to present her side of the case with the assistance
of counsel not only in the preliminary investigation before the Paras, C. J., Padilla, Montemayor, Reyes, A., Jugo, Bautista Angelo,
Municipal Court but also during the reinvestigation conducted by the Labrador, Concepcion and Reyes, J. B. L., JJ., concur.
City Attorney pursuant to the order of the Court of First Instance. She
cannot therefore now claim that she was deprived of her right to
preliminary investigation. If there has been no such preliminary
investigation, it was because she explicitly waived her right thereto
when she was arraigned for that purpose in the Municipal Court, and
when the case was to be reinvestigated by the City Attorney, she
made an illegal demand instead of submitting her evidence.

Section 11 of Rule 108 of the Rules of Court clearly provides:

"After the arrest of the defendant and his delivery to the court, he
shall be informed of the complaint or information filed against him.
He shall also be informed of the substance of the testimony and
evidence presented against him, and, if he desires to testify or to
present witnesses or evidence in his favor, he may be allowed to do
so. The testimony of the witnesses need not be reduced to writing but
that of the defendant shall be taken in writing and subscribed by

From the aforequoted provision of law, the rights of a defendant after

his arrest are (1) to be informed of the complaint or information filed
against him and of the substance of the testimony and evidence
presented against him; and (2) to be allowed, if he so desires, to
testify or to present witnesses of evidence in his favor. As of right,
therefore, in a preliminary investigation, an accused is not entitled to
cross-examine the witnesses presented against him. Hence, the
demand of the herein accused during the reinvestigation conducted
by the City Attorney that the witnesses for the prosecution be
recalled so that she could cross-examine them was not based on any
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellant, vs. ROSALINA 15,1958, on which date defendant appeared with a new counsel, Atty.
CASIANO, defendant-appellee. Lorenzo Suyat, who prayed for and secured another postponement. On
G.R. No. L-15309 | 1961-02-16 November 10, 1958, said counsel was granted permission to submit a
DECISION \"motion to dismiss\", which was filed on November 24, 1958, on the
ground that there had been no preliminary investigation of the charge of
CONCEPCION, J.: illegal possession and use of a false bank note, and that the absence of
such preliminary investigation affected the jurisdiction of the court. The
Appeal from an order of the Court of First Instance of Pangasinan motion was granted and, a reconsideration of the order to this effect
granting a motion to dismiss of defendant Rosalina Casiano. having been denied, the prosecution interposed the present appeal.

On October 19, 1955, Ricardo Macapagal filed, with the Justice of the Defendant-appellee maintains, and the Court of First Instance of
Peace Court of Rosales, Pangasinan, a complaint, which was amended on Pangasinan held, that the waiver made by the defendant in the justice of
or about December 6, 1955, charging Rosalina Casiano with \"estafa\". the peace court did not deprive her of the right to a preliminary
After conducting the first stage of the preliminary investigation and investigation of the crime of illegal possession and use of a false bank
finding the existence of probable cause, said court issued a warrant of note, for this offense does not include, and is not included in, that of
arrest, whereupon defendant posted a bail bond for her temporary \"estafa\", to which her aforementioned waiver referred, the latter
release. When the case was called for preliminary investigation, offense being covered by Article 315 of the Revised Penal Code, which
defendant waived her right thereto, and, accordingly, the record was article forms part of Title Ten thereof, entitled \"Crimes against
forwarded to the Court of First Instance of Pangasinan. Subsequently, the Property\", whereas the former is the subject matter of Article 168 of
provincial fiscal filed therein an information for \"illegal possession and said Code, which is part of Title Four thereof, entitled \"Crimes against
use of a false treasury or bank notes\", alleging: Public Interest.\"

\"That on or about the 16th day of April, 1955, in the municipality of We are not concerned, however, with an abstract academic question. The
Rosales, Pangasinan, Philippines, and within the jurisdiction of this issue before us is whether defendant is entitled to a preliminary
Honorable Court, the above-named accused with full knowledge that investigation of the crime of illegal possession and use of a false bank
check No. 728681 is spurious and false and supposedly issued by the note as charged in the information herein. The answer to this question
American Bankers Association of New York City, U.S.A., did then and depends upon whether or not such crime was included actually in the
there wilfully, and unlawfully and feloniously use and have in her allegations of the amended complaint filed with the justice of the peace
possession said false check No. 728681 which she sold and cashed to one court, regardless of the term used in said pleading to designate the
Ricardo Macapagal for P580 although the face value of said check is $300, offense charged therein.
to the damage of the latter in said amount. Contrary to Article 168 of the In this connection, the offended party Ricardo Macapagal, averred in the
Revised Penal Code.\" amended complaint that the -

Upon arraignment on November 16, 1956, defendant entered a plea of \"accused under false manifestations and fraudulent representations
not guilty. Thereupon, the prosecution began to present its evidence by which she made to Ricardo Macapagal, that a check on its face valued at
introducing the testimony of a witness - Pedro Punsalan, cashier of the $300.00 and numbered 728681, was good and genuine as it was drawn
Tarlac Branch of the Philippine National Bank - who was cross-examined by the American Bankers Association against the Guaranty Trust
by defense counsel. Then the case was set for continuation of the hearing Company of New York in favor of Domingo Flores as Payee, sold to
on December 12 and 13, 1956. Owing to several postponements secured Ricardo Macapagal said check for P580.00 Philippine currency, which
by the defendant, the hearing was not resumed, however, until October
manifestations and representations the accused well knew were false or remanded the record for said investigation to the justice of the peace
and fraudulent and were only made to induce the aforementioned court, instead of dismissing the case, as it did in the order appealed from.
Ricardo Macapagal to buy said check as he in fact bought said check,
paying to mentioned accused the stated amount of P580.00, which Although not raised by any of the parties herein, one question has arisen
amount the accused converted unlawfully to her own use and benefit to in the course of the deliberations of this Court. May we entertain the
the damage and prejudice of Ricardo Macapagal in said sum for the appeal taken in this case by the prosecution? This calls for a
reason that the check upon presentation for collection was dishonored determination of the following issues, namely:
on the ground that it was fraudulent.\"
(a) What is the effect of Rule 118, section 2, of the Rules of Court, upon
Thus, complainant alleged in said amended complaint - as he did in the the authority of this Court to pass upon the merits of the present appeal?
original complaint - that defendant-appellee had knowingly had in her (b) Has defendant waived her constitutional right not to be twice placed
possession, with intent to use, and actually used, a false or falsified bank in jeopardy of punishment for the same offense?
note or other obligation payable to bearer, which is the crime defined (c) May she still invoke such right?
and punished in Article 168, in relation to Article 166, of the Revised
Penal Code, and the substance of the charge contained in the information Rule 118, section 2, of the Rules of Court reads:
above quoted.
\"The People of the Philippines cannot appeal if the defendant would be
In other words, regardless of whether or not the crime of \"estafa\" placed thereby in double jeopardy. In all other cases either party may
includes or is included in that of illegal possession or use of a false bank appeal from a final judgment or ruling or from an order made after
note or other obligation payable to bearer, the Court of First Instance of judgment affecting the substantial rights of the appellant.\"
Pangasinan erred in holding that the allegations of the information filed
in this case were not included in those of the aforementioned amended Does the foregoing provision deny to this Court the authority or
complaint and that defendant-appellee was entitled to another jurisdiction to entertain the present appeal by the prosecution? The
preliminary investigation of the charge contained in the information. It answer must be in the negative, for the following reasons, namely:
erred, also, in dismissing the case for, even if defendant had a right to
such other preliminary investigation, the same was deemed waived upon 1. Apart from being inherently legislative in nature, the power to
her failure to invoke it prior to or, at least, at the time of the entry of her \"define, prescribe and apportion the jurisdiction of the various courts\"
plea in the court of first instance (People vs. Solon, 47 Phil., 443, 448; is explicitly vested by the Constitution in Congress (Article VIII, section
People vs. Magpale, 70 Phil. 176; People vs. Lambino, 55 Off. Gaz., 1565). 2, Constitution of the Philippines), not in the Supreme Court. An
Independently of the foregoing, the absence of such investigation did not affirmative answer to the query would lead, therefore, to an
impair the validity of the information or otherwise rendered it defective. encroachment by the Supreme Court upon the prerogatives of Congress,
Much less did it affect the jurisdiction of the court of first instance over and, hence, to the unconstitutionality and nullity of the rule above
the present case. Hence, had defendant-appellee been entitled to another quoted.
preliminary investigation, and had his plea of not guilty upon
arraignment not implied a waiver of said right, the court of first instance 2. The same was adopted by this Court in the exercise of its authority,
should have, either conducted such preliminary investigation, or under our fundamental law, \"to promulgate rules concerning pleadings,
ordered the Provincial Fiscal to make it, in pursuance of section 1687 of practice and procedure in all courts\", which rules \"shall not diminish,
the Revised Administrative Code (as amended by Republic Act No. 732), increase or modify substantive rights\". (Article VIII, section 13,
Constitution of the Philippines.) If section 2 of Rule 118 were construed
as limiting, either the jurisdiction of the Supreme Court to entertain por supuesta falta de jurisdiccion en virtud de una supuesta omision de
appeals by the Government in criminal cases, or the right of the latter to incluir como partes a todos los candidatos electos. De modo que la orden
appeal in such cases, the result would be that this Court has exceeded its apelada versa sobre una cuestiá³n de jurisdicciá³n, o sobre una
rule making power under the Constitution, not only by legislating on a cuestiá³n puramente de derecho. Y el articulo 2, Titulo VIII de la
subject that concerns neither \"pleadings, practice or procedure\", but, Constitucion dispone que: \'The Congress shall have the power to define,
also, by diminishing or modifying \"substantive rights\", namely (a) the prescribe, and apportion the jurisdiction of the various courts, but may
exclusive jurisdiction of the Supreme Court to \"review, revise, reverse, not deprive the Supreme Court of its original jurisdiction over cases
modify or affirm on appeal . . . final judgments or decrees of inferior affecting ambassadors, other public ministers, and consuls, nor of its
courts in . . . .all . . .cases in which only errors or questions of law are jurisdiction to review, reverse, modify, or affirm on appeal, certiorari, or
involved\" - which is statutory (Republic Act No. 296, section 17 [6], as writ of error, as the law or the rules of court may provide, final judgments
well as (with slight difference in phraseology) constitutional (Article and decrees of inferior courts in - (1) All cases in which the
VIII, section 2, Constitution of the Philippines) - and, hence, (b) the right constitutionality or validity of any treaty, law, ordinance, or executive
of both parties in a case to appeal to the Supreme Court from the decision order or regulations is in question. (2) All cases involving the legality of
of the lower court and raise only questions of law, as in the case at bar. any tax, impost, assessment, or toll, or any penalty imposed in relation
thereto. (3) All cases in which the jurisdiction of any trial court is in issue.
A similar issue was settled in the case of Marquez vs. Prodigalidad (83 (4) All criminal cases in which the penalty imposed is death or life
Phil., 813), an election protest involving municipal councilors, which was imprisonment. (5) All cases in which an error or question of law is
dismissed by the Court of First Instance. On appeal taken by the involved.\'
protestant, our jurisdiction to review the order appealed from was
contested by the protestee, who relied on section 178 of the Revised \"La Constitucion claramente autoriza a la Legislatura a definir,
Election Code (Republic Act No. 180) reading: prescribir y distributir la jurisdicciá³n de los tribunales; pero
expresamente dispone que no puede privar al Tribunal Supremo de su
\"From any final decision rendered by the Court of First Instance in jurisdicciá³n para revisar, reexaminar, revocar, modificar o conocer
protests against the eligibility or the elections of provincial governors en apelacion o mediante certiorari o recurso de casacion las decisiones
members of the provincial board, city councilors, and mayors, the de Juzgados inferiores que versan, entre otras cosas, sobre la
aggrieved party may appeal to the Court of Appeals or to the Supreme constitucionalidad de alguna ley, ordenanza, tratado, u orden ejecutiva o
Court, as the case may be, within five days after being notified of the sobre la jurisdicciá³n del tribunal sentenciador, o sobre otras
decision, for its revision, correction, annulment or confirmation, and the cuestiones puramente de derecho. En otras palabras, la Constitucion ha
appeal shall proceed as in a criminal case. Such appeal shall be decided querido establecer y conservar inalterable la jurisdicciá³n del
within three months after the filing of the case in the office of the clerk of Tribunal supremo sobre cuestiones constitucionales o puramente de
the court to which the appeal has been taken.\" (Italics ours.) derecho, con el proposito evidente de convertirlo en arbitro supremo en
la interpretacion de la Constitucion y de la Ley.
Speaking, through Mr. Justice Pablo, we held:
\"Se pretende que la prohibicion constitucional de privar al Tribunal
\". . .Se pretende que, bajo esta disposicion legal, las decisiones de los Supremo de su jurisdiccion sobre las mencionadas cuestiones se refiere
Jusgados de Primera Instancia en protestas contra la eleccion de tan solo a aquellos asuntos sobre los cuales este Tribunal tená-a
concejales en los municipios regularmente organizados, no son jurisdicciá³n al tiempo de aprobarse la Constituciá³n y no a aquellos
apelables. Ná³tese, sin embargo, que la orden, apelada en el presente que, como el presente, no caá-an bajo su jurisdicciá³n de acuerdo con
caso no resuelve los meritos de la protesta, sino que sobresee la misma las leyes entonces vigentes, pues es obvio, segun se alega, que no se priva
a un tribunal de una jurisdicciá³n que no tená-a. Esta distinciá³n, orden ejecutiva\". (Marquez vs. Prodigalidad, 83 Phil., 813, 815-818;
sin embargo, no halla fundamento en el lenguaje de la Constituciá³n, Emphasis ours.)
pues la prohibiciá³n allá- establecida es en sus terminos absoluta con
un proposito claro y evidente que es el de situar en el Supremo Tribunal This view was ratified and reiterated in Calano vs. Cruz (94 Phil., 230; 50
la autoridad suprema en la interpretacion de la constituciá³n y de la Off. Gaz., 610), a quo warranto proceeding, in which the eligibility of a
ley. municipal councilor was impugned. From an order dismissing the case,
\"Debe recordarse que antes de la aprobacion de nuestra petitioner therein appealed to the Supreme Court, which passed upon
Constituciá³n la jurisdiccion apelada del Tribunal Supremo no the merits of the appeal, despite respondent\'s objection, based upon
dependá-a, segáºn las leyes entonces vigente, de la naturaleza de las said section 178 of the Revised Election Code, to our jurisdiction to
cuestiones planteadas, pues tená-a esa jurisdicciá³n casi en todos los entertain the appeal. The propriety thereof was upheld in the following
asuntos provenientes de los Juzgados de Primera Instancia language:
independientemente de las cuestiones allá- envueltas. De suerte que la
Constitucion al hacer referencia a la jurisdiccion apelada del Tribunal \"In the past we had occasion to rule upon a similar point of law. In the
Supremo sobre ciertas cuestiones de derecho, generales y especá-ficas, case of Marquez vs. Prodigalidad, 46 Off. Gaz., Supp. No. 11, p. 204, we
no lo hace en relaciá³n con la jurisdicciá³n apelada que el tribunal held that section 178 of the Revised Election Code limiting appeals from
ya entonces tenia, sino que define una nueva jurisdiccion apelada del decisions of Courts of First Instance in election contests over the offices
tribunal de la cual no quiere que este tribunal sea privado jamas. of Provincial Governor, Members of the Provincial Board, City Councilors
and City Mayors, did not intend to prohibit or prevent the appeal to the
\"Por lo demas, si se ha de interpretar la Constitucion en la forma que se Supreme Court in protest involving purely questions of law, that is to say,
pretende, no habria uniformidad o simetria en la interpretacion de las that protests involving other offices such as municipal councilor may be
leyes del pais, pues si este tribunal no pudiese corregir los appealed provided that only legal questions are involved in the appeal.
pronunciamentos legales de los tribunales inferiores en algunos asuntos, Consequently, the appeal in the present case involving as it does purely
esos pronunciemientos podrian ser contradictorios y el conflicto podria questions of law is proper.\" (Calano vs. Cruz, 94 Phil., 230; 50 Off. Gaz.,
quedar sin solucion por algun tiempo por lo menos, y esto es lo que 610, 612; Italics ours.)
indudablemente ha querido evitar la Constitucion. Y pretender que en
casos como el presente el Tribunal Supremo no puede ejercer Insofar as the issue in the case at bar is concerned, there is a substantial
jurisdiccion apelada aunque hubiese serias infracciones de la parity between Rule 118, section 2, of the Rules of Court, and the
Constitucion en la decision del tribunal inferior, equivale claramente a aforementioned Section 178 of the Revised Election Code. The former
frustrar el proposito evidente de le Constitucion. says that the prosecution may not appeal when the accused would be
placed thereby in double jeopardy. The latter clearly denies, without any
\"Creemos, por tanto, que el articulo 178 del Cá³digo Electoral qualification, the right to appeal in election protests involving municipal
Revisado, al disponer expresamente que son apelables las decisiones de vice-mayor and municipal councilors. Yet, the latter gave way, as it had
los Juzgados de Primera instancia sobre protestas contra la elegibilidad to, to the constitutional provision granting the Supreme Court
o la elecciá³n de gobernadores provinciales, vocales de la junta jurisdiction over all appealed cases involving purely questions of law. So
provincial, concejales de ciudad y alcaldes\', no ha tenido el propá³sito must, the provision of said Rule, whenever such are the issues raised, in
de vedar en otras protestas la apelaciá³n al Tribunal Supremo sobre the appeal, unless there is some other valid objection thereto.
cuestiones puramente de derecho, particularmente sobre cuestiones de
jurisdiccion, a de constitucionalidad de alguna ley, ordenanza, tratado u 3. Commenting on said section 2 of Rule 118, former Chief Justice Moran,
who drafted our Rules of Court, says (Comments on the Rules of Court,
by Moran, Vol. 2 [1957 ed.], p. 856) that said provision is \"in conformity herein, did not file any brief . Hence, they had performed no affirmative
with a ruling laid down by the United States Supreme Court\", citing act from which a waiver of the privilege under consideration could be
Kepner vs. U.S. (11 Phil., 669). In that case, the Federal Supreme Court implied.
held that the prosecution may not, over the objection of the defendant in
a criminal case, appeal from a decision of a court of first instance It is urged, however, that, if the failure to file a brief does not warrant
acquitting him of a crime of embezzlement, after due trial on the merits, said inference, much less could the same be justified when the accused,
because it would violate his right, under the Philippine Bill (Act of like defendant herein, has filed a brief, without invoking therein the
Congress of the U.S. of July 1, 1902) - which is identical to that existing aforementioned privilege. This argument conflicts, however, with the
under the Federal Constitution and analogous to that recognized under spirit underlying the provisions of the Rules of Court governing
the common law - not to be placed twice in jeopardy of punishment for comparable situations.
the same offense. The Kepner case is not authority for the proposition
that an appeal by the Government, after jeopardy has attached in the Upon arraignment, the defendant may move to quash the information,
lower court, cannot be taken without any objection or with the consent upon the ground, among others, that he \"has been previously . . .in
of the accused. Indeed, it is well settled that \"the immunity from second jeopardy of being convicted . . .of the offense charged\" (Rule 113,
jeopardy granted by the Constitution is a personal privilege which sections 1 and 2, paragraph [b]). However, if he \"does not move to
accused may waive\" (22 C.J.S., 412-413). He may, accordingly, appeal quash the . . .information before he pleads thereto, he shall be taken to
from a decision adverse to him, even though such appeal clearly puts have waived all objections which are grounds for a motion to quash,
him, again, in danger of punishment for the same offense. Considering except when the complaint or information does not charge an offense, or
the background of the rule under consideration and the fact that it was the court is without jurisdiction of the same\" (Rule 113, section 10).
adopted in the exercise of the constitutional power of the Supreme Court Hence, if he pleads to the charge, without invoking his immunity from a
to promulgate rules on \"pleadings, practice and procedure\", it is second jeopardy, the same is deemed waived (People vs. Acierto, 92 Phil.,
reasonable - as well as necessary, to avoid the constitutional infirmity 534; 49 Off. Gaz., 518; 14 Am. Jur. 958; Alexander vs. State, 176 So. 835;
already adverted to - to conclude that it was incorporated into the Rules Branch vs. State, 78 So. 411; State vs. Warner, 205 N.W. 692; State vs.
of Court merely as a procedural measure, for the purpose, not of affecting Mases, 199 P. 111; Fines vs. State 240 P. 1079; Fowler vs. State 120 S.W.
substantive rights, but of enforcing the constitutional immunity from 2d. 1054; Mann vs. State, 187 N.E. 343; Ballusky vs. People, 178 P. 2d.
double jeopardy,\" a personal privilege which accused may waive.\" 433; People vs. McDonald, 10 N.W. 2d. 309; State vs. Davis, 238 P. 2d.
Upon the other hand, defendant herein has filed a brief in which she
limited herself to a discussion of the merits of the appeal. Thus, she not Again, \"material averments in the complaint, other than those as to the
only failed to question, in her brief, either expressly or impliedly, the amount of damages, shall be deemed admitted when not specifically
right of the prosecution to interpose the present appeal, but, also, denied\" in the answer filed by the defendant (Rule 9, section 8).
conceded, in effect, the existence of such right. She should be deemed, Similarly, subject to specified exceptions, \"defenses and objections not
therefore, to have waived her aforementioned constitutional immunity. pleaded either in a motion to dismiss or in the answer are deemed
waived\" by defendant (Rule 9, section 9). Thus, the foregoing waivers
It is true that in People vs. Hernandez (49; 49 Off. Gaz., 5342), People vs. and admission by the defendant require a previous plea or answer by
Ferrer, L-9072 (October 23, 1956), and People vs. Golez, L-14160 (June him.
30, 1960), we dismissed the appeal taken by the Government from a
decision or order of a lower court, despite defendant\'s failure to object No such waiver or admission is deemed made in the absence of a plea. If
thereto. However, the defendants in those cases, unlike the defendant the defendant fails to answer plaintiff\'s complaint, the allegations
thereof are deemed denied and plaintiff is bound, therefore, to prove Indeed, it is well settled that the immunity must be \"specially\" pleaded
them. The same rule applies to defendants in a counterclaim, or cross- (14 Am. Jur. 956); that this must be done \"at the earliest opportunity\"
claim, or third-party complaint. So too, when plaintiff does not file a (Territory of Lobato, 134 P. 222, Yates vs. State 17 So. 2d. 594); and that,
reply, \"all the new matters alleged in the answer\" filed by the otherwise, it is deemed waived (14 Am. Jur. 958; Branch vs. State, supra;
defendant \"are deemed controverted\" by the plaintiff (Rule 11 and State vs. Bohn, 248 p. 119; People vs. McDonald, supra; State vs. Harper,
Rule 35, section 6). In other words, when no answer to the pleading of an 184 S.W. 2d. 601; Driver vs. Seay, 32 S.L. 2d. 87). What is more, our Rules
opponent is filed, all material allegations made or new matters contained of Court are not satisfied with an express assertion of the immunity.
in said pleading are, under our Rules of Court, deemed denied. Section 5 of Rule 113 requires the one invoking it to \"state the name
Conversely, if an answer is filed, such allegations or new matters in said under which defendant was convicted or in jeopardy of conviction or
pleading of the opponent as have not been specifically controverted in acquitted, the name of the court in which he was convicted or in jeopardy
the aforementioned answer, are deemed admitted, and such personal or acquitted and the date and place of such conviction or jeopardy or
defenses as could have been or should have been set up therein are, in acquittal.\" All of which goes to show that silence of the accused thereon
general, waived. must be construed as waiver of the immunity. Hence, Corpus Juris
Secundum says that such \"waiver may be express or implied; in fact
It is true that briefs in appellate courts are not \"pleadings\" in the generally implied.\" (22 C.J.S. 412-413)
technical legal meaning of this term. In such courts, there are no In the case at bar, there is another circumstance justifying the conclusion
\"pleadings\", in the sense of formal concise statements of the ultimate that defendant herein has waived said immunity. Upon issuance of the
facts constituting plaintiff\'s cause or causes of action, and specifying the order of dismissal complained of, the prosecution filed a motion for
relief sought, or on which the defendant relies for his defense (Rule 6, reconsideration, to which the defendant objected upon the ground of
section 1, and Rule 9, section 1, Rules of Court). The appellant files with double jeopardy. When defendant filed his brief with this Court, he was
the appellate court a brief specifying the \"errors intended to be urged\" well aware, therefore, of the materiality or pertinence of said defense to
and the arguments in support of each assignment of error (Rule 48, the appeal taken by the prosecution. Yet, he did not avail himself of such
section 17), whereas the appellee sets forth in his brief \"his arguments defense. This omission must be due, therefore, to neither ignorance nor
. . .on each assignment of error\" (Rule 48, section 18). However, the oversight on his part. He advisedly and purposely refrained from
briefs, like the pleadings, define and limit the issues submitted for invoking said defense. In other words, he waived it.
determination, and, accordingly, should be subject to the general
principles governing pleadings, insofar as the admission or denial of the Regardless of the foregoing, could he have properly made use of it in this
claims of an opponent, as well as the waiver of defenses, are concerned. instance? For him to do so, it would be necessary for him to assert that
Hence, when the defendant-appellee in a criminal case does not file a the lower court had jurisdiction to hear and decide this case - which is
brief, he - like a defendant who fails to answer the complaint - may, exactly the opposite of the theory sustained by him in his motion to
perhaps, be deemed to controvert the claim of plaintiff-appellant in all dismiss. His situation then would be substantially identical to that of the
respects. However, if the defendant-appellee files a brief contesting the accused in People vs. Acierto, supra. Acierto was accused before a U.S.
merits of the contention of plaintiff-appellant in his brief, without Court Martial having defrauded the Government of the United States,
objecting to plaintiff\'s appeal, which plaintiff may take if the defendant through falsification of documents, within a military base of the U.S. in
consents or does not object thereto, said defendant-appellee - like the the Philippines. Despite his objection to the jurisdiction of said court,
defendant who pleads not guilty in the lower court, without invoking his which it overruled, he was, after trial, convicted therein. On review, the
immunity from a second jeopardy - must be deemed to have waived such verdict was reversed by the Commanding General, who sustained
immunity. Acierto\'s objection. Subsequently accused of estafa and falsification of
said documents before one of our courts of first instance, Acierto was
convicted therein. On appeal to the Supreme Court, he raised, among the court martial. A party will not be allowed to make a mockery of
other questions, the following: former jeopardy and want of jurisdiction justice by taking inconsistent positions which if allowed would result in
of the court a quo, both of which he claimed to have raised in the lower brazen deception. It is trifling with the courts, contrary to the elementary
court and on both of which issues the Solicitor General sided with him, principles of right dealing and good faith, for an accused to tell one court
owing mainly to the provision of Article XIII, section 1 (a) of our Bases that it lacks authority to try him and, after he has succeeded in his effort,
Agreement with the United States, reading: to tell the court to which he has been turned over that the first has
committed error in yielding to his plea.
\"1. The Philippines consents that the United States shall have the right
to exercise jurisdiction over the following offenses: \"From another angle, it seems immaterial whether or not the court
martial had jurisdiction of the accused and his crimes under the terms of
(a) Any offense committed by any person within any base except where the Bases Agreement. Granting that it had, the Court of First Instance of
the offender and offended parties are both Philippine citizens (not Quezon City nevertheless properly and legally took cognizance of the
members of the armed forces of the United States on active duty) or the cases and denied the defendant\'s motion to quash.
offense is against the security of the Philippines.\"
Commenting on Acierto\'s contention this Court - in a unanimous \"By the Agreement, it should be noted, the Philippine Government
decision, penned by Justice Tuason, and concurred in by Chief Justice merely consents that the United States exercise jurisdiction in certain
Paras, and Justices Feria, Pablo, Bengzon, Padilla, Montemayor, Reyes cases. This consent was given purely as a matter of comity, courtesy, or
[A.], Jugo, Bautista and Labrador - expressed itself as follows: expediency. The Philippine Government has not abdicated its
sovereignty over the bases as part of the Philippine territory or divested
\"This is the exact reverse of the position defendant took at the military itself completely of jurisdiction over offenses committed therein. Under
trial. As stated, he there attacked the court martial\'s jurisdiction with the terms of the treaty, the United States Government has prior or
the same vigor that he now says the court martial did have jurisdiction preferential but not exclusive jurisdiction of such offenses. The
and thanks to his objection, so we incline to believe, the Commanding Philippine Government retains not only jurisdictional rights not granted,
General, upon consultation with, and the recommendation of, the Judge but also all such ceded rights as the United States Military authorities for
Advocate General in Washington, disapproved the court martial reasons of their own decline to make use of. The first proposition is
proceedings. implied from the fact of Philippine sovereignty over the bases; the
second from the express provisions, of the treaty. The treaty expressly
xxx xxx xxx stipulates that offences included therein may be tried by the proper
\"Construction of the United States Military Law by the Judge Advocate Philippine courts if for any special reason the United States waives its
General or the United States Army is entitled to great respect, to say the jurisdiction over them.
very least. When such construction is a disclaimer of jurisdiction under
the Bases Agreement, the Philippine Government certainly is not the xxx xxx xxx
party to dispute it; the fewer the rights asserted by the United States the \"Partly for the reasons already shown, the plea of double jeopardy is
more is enhanced the dignity of the Philippines and its interest without merit. If the court martial had no jurisdiction, jeopardy could not
promoted. have attached. This proposition is too well established and too well
known to need citation of authorities.
\"Irrespective of the correctness of the views of the Military authorities,
the defendant was estopped from demurring to the Philippine court\'s \"Even if it be granted that the court martial did have jurisdiction, the
jurisdiction and pleading double jeopardy on the strength of his trial by military trial in the instant cases has not placed the appellant in jeopardy
such as would bar his prosecution for violation of the Philippine penal estoppel laid down in the Acierto ease is revoked. As a matter of fact, said
laws or, for that matter, a second trial under the Articles of War. Although rule applies with greater force to the case at bar than to the Acierto case,
under Rev. Stat. sec. 1342, art. 2, it has been held that a former trial may because the same involved two (2) separate proceedings before courts
be pleaded when there has been a trial for the offense, whether or not deriving their authority from different sovereignties, whereas the appeal
there has been a sentence adjudged or the sentence has been in the case at bar is a continuation of the proceedings in the lower court,
disapproved (Dig. JAG [1912] p. 167), the rule is and should be otherwise which like this Supreme Court, is a creature of the same sovereignty. In
when the disapproval was made in response to the defendant\'s plea short, the inconsistency and impropriety would be more patent and
based on lack of jurisdiction. (Ex. parte Castello, 8 F. 2nd. 283, 286). In glaring in this case than in that of Acierto, if appellant herein pleaded
such case the former trial may not be pleaded in bar in the second trial.\" double jeopardy in this instance.
(Emphasis ours.)
The issue eventually boils down, therefore, to whether the rule of
In other words, it was held that, granting that the Court Martial had estoppel applied in the Acierto case should be confirmed or revoked.
jurisdiction over the crime or crimes with which he had been charged, Upon mature consideration, we are of the opinion that said rule should
and was permitted by the Treaty to exercise it, the Philippine be maintained, because:
Government did not thereby divest itself of its own jurisdiction to try and
punish Acierto therefor, and that, even if he had, therefore, been placed 1. It is basically and fundamentally sound and just.
in jeopardy of punishment before said Court Martial, he was estopped 2. It is in conformity with the principles of legal ethics, which demand
from pleading it before the Philippine courts, for \"a party will not be good faith of the highest order in the practice of law.
allowed to make a mockery of justice by taking inconsistent positions, 3. It is well settled that parties to a judicial proceeding may not, on
which, if allowed, will result in brazen deception\", and \"it is trifling appeal, adopt a theory inconsistent with that which they sustained in the
with the courts, contrary to the elementary principles of right dealing lower court (Williams vs. McMicking, 17 Phil., 408; Molina vs. Somes, 24
and good faith, for an accused to tell one court, that it lacks authority to Phil., 49; Agoncillo vs. Javier, 38 Phil., 424; American Express v.
try him, and, which he has succeeded in his effort, to tell the court to Natividad, 46 Phil., 208; Toribio vs. Decasa, 55 Phil., 416; San Agustin v.
which he has been turned over that the first has committed error in Barrios, 68 Phil., 475; Jimenez v. Bucoy, L-10221 [February 28, 1958];
yielding to his plea.\" Northern Motors, Inc. vs. Prince Line, et al., L-13884 [February 29, 1960];
Model vs. Calasanz, L-14835 [August 31, 1960]).
This would exactly be the position of defendant herein were she to plead
double jeopardy in this case, for such plea would require the assertion of Thus, in Atkins Kroll & Co., Inc. vs. B. Cua Hian Tek, L-9871 (January 31,
jurisdiction of the court of first instance to try her and that the same 1958), we said:
erred in yielding to her plea therein of lack of authority therefor. In the
language of our decision in the Acierto case, it is immaterial whether or \". . .when a party deliberately adopts a certain theory, and the case is
not the court a quo had said authority. It, likewise, makes no difference tried and decided upon that theory in the court below, he will not be
whether or not the issue raised by defendant in the lower court affected permitted to change his theory on appeal . . ..\"
its jurisdiction. The fact is that she contested such jurisdiction and that,
although such pretense was erroneous, she led the court to believe that The rule is stated in Corpus Juris Secundum as follows:
it was correct and to act in accordance with such belief. The
\"elementary principles of fair dealing and good faith\" demand, \". . .where the case was tried by the lower court and the parties on a
accordingly, that she be estopped now from taking the opposite stand, in certain theory, it will be reviewed and decided on that theory, insofar as
order to pave the way for a plea of double jeopardy, unless the rule of the pleadings, liberally construed, permit, and not be approached from a
different point of view.\" (5 C.J.S., section 1464, pp. 77-79, Emphasis he is being prosecuted, he cannot thereafter plead former jeopardy when
ours.) placed on trial upon another indictment for the same offense. His action
in procuring a quashal of the indictment constitutes a waiver of his
4. The operation of the principle of estoppel on the question of constitutional privilege. Brown vs. State, 109 Ga. 570, 34 S.E. 1031; Joy
jurisdiction seemingly depends upon whether the lower court actually vs. State, 14 Ind. 139; State vs. Scott, 99 Ia. 36, 68 N.W. 451. See also Miller
had jurisdiction or not. If it had no jurisdiction, but the case was tried and v. State, 33 Ind. pp. 509, 71 N.E. 248: Jones v. Com. 124 Ky. 26, 97 S.W.
decided upon the theory that it had jurisdiction, the parties are not 1118; Com. v. Gould, 12 Gray (Mass.) 171; State vs. Priebnow, 16 Neb.
barred, on appeal, from assailing such jurisdiction, for the same \"must 131, N.W. 628; Van Rueden vs. State, 96 Wis. 671, 71 N.W. 1048.
exist as a matter of law, and may not be conferred by consent of the
parties or by estoppel\" (5 C.J.S., 861-863). However, if the lower court \"In Brown vs. State, 109 Ga. 570, 34 S.E. 1031, in effect overruling Black
had jurisdiction, and the case was heard and decided upon a given vs. State, 36 Ga. 447, 91 Am. Dec. 772, it appeared that the court, though
theory, such, for instance, as that the court had no jurisdiction, the party at first it overruled the demurrer, reversed its former ruling after the
who induced it to adopt such theory will not be permitted, on appeal, to admission of evidence and quashed the accusation. At a subsequent trial
assume an inconsistent position - that the lower court had jurisdiction. the defendant pleaded former jeopardy. The court said: \'Although the
Here, the principle of estoppel applies. The rule that jurisdiction is demurrer filed by the accused was at first overruled by the judge, the
conferred by law, and does not depend upon the will of the parties, has subsequent ruling sustaining the same was the one that the accused
no bearing thereon. Thus, Corpus Juris Secundum says: himself invoked, and it does not distinctly appear that he objected at the
time to the judge sustaining the demurrer at that stage of the case and
\"Where accused has secured a decision that the indictment is void, or ordering the accusation to he quashed. It therefore does not lie in his
has been granted an instruction based on its defective character mouth on a subsequent trial to say that the accusation was good, and that
directing the jury to acquit, he is estopped, when subsequently indicted, for that reason he was in jeopardy on the former trial. Whether the first
to assert that the former indictment was valid. In such case, there may accusation was good or bad is immaterial. The accused obtained a ruling
be a new prosecution whether the indictment in the former prosecution that it was bad, accepted the benefit of that ruling, and he will not be
was good or bad. Similarly, where, after the jury was impaneled and, allowed to bring in question the propriety of a ruling which he himself
sworn, the court on accused\'s motion quashed the information on the invoked.\' In Joy vs. State, 14 Ind. 139, it appeared that after the jury had
erroneous assumption that the court had no jurisdiction, accused cannot been selected and sworn the defendant moved to quash the count in the
successfully plead former jeopardy to a new information.\" . . .(22 C.J.S., indictment on which the district attorney had elected to go to trial. The
sec. 252, pp. 388-889; Emphasis ours.) motion to quash was sustained. On a subsequent trial the plea of former
jeopardy was interposed. The court said: \'It (the quashal of the count)
\"Where accused procured a prior conviction to be set aside on the was for his benefit, and he is presumed to waive any future peril he may
ground that the court was without jurisdiction, he is estopped incur, in view of the advantage he derives by getting rid of the present
subsequently to assert, in support of a defense of previous jeopardy, that pressing jeopardy. So in the case at bar, the defendant was charged in
such court had jurisdiction.\" (22 C.J.S. p. 378.) two counts with having produced the death of a human being - first, by
fire; second, by blows. The counts were properly joined; but by his own
The following is quoted from the Annotated Cases: motion, and therefore certainly with his consent, he procured an order
of the court which operated to withdraw the second count from the
\"Waiver of Objection to Second Jeopardy by Procuring Quashal of First consideration of the jury as fully as if it had charged a separate offense.
Indictment. - It may be stated as a general rule that where a person after To that count no evidence could have been directed, if the trial had
being put in jeopardy procures a quashal of the indictment upon which progressed. By that act, it appears to us, for these reasons and those
heretofore advanced, he combinated to waive any constitutional rights discretion entertain at any time before judgment a motion to quash on
which might have apparently attached, just as he would have waived the ground of such pardon, conviction, acquital or jeopardy.\"
those rights if he had consented to the discharge of the jury, or after
verdict moved for a new trial or in arrest.\' A court thereby has \"discretion\" to entertain or not to entertain a
motion to quash filed by the defendant based upon a former jeopardy,
\"In the reported case it appears that after the jury had been impaneled which came to his knowledge \"after he has pleaded.\" Although this
and sworn and the defendant placed on the stand in the first trial the provision regulates the procedure of courts of first instance, we find no
defendant moved to quash the indictment on account of a material plausible reason to depart from its policy in proceedings before
variance therein. The indictment was quashed. The defendant pleaded appellate courts. Although, as adverted to above, there are no
former jeopardy on the second trial. The court held that inasmuch as the \"pleadings\" - in the technical sense of the term - in appealed cases, the
former indictment was quaehed at the instance of the defendant, he was briefs therein filed play the role of said pleadings insofar as said briefs
not in a position to urge that he was place in jeopardy thereunder, and concretize the issues raised and submitted for determination by the
that having once urged the invalidity of the indictment he was estopped appellate court. However, defendant herein has not tried to avail himself
from thereafter claiming it to have been valid.\" (14 Am. Cas. 426; of said provision, for she has not moved to dismiss the appeal upon the
Emphasis ours.) ground of double jeopardy. At any rate, she cannot invoke, by analogy
the above quoted provision of Section 10, Rule 113, because the same
To the same effect is the following passage of our decision in the Acierto requires that knowledge of the former jeopardy be acquired after the
case: ' plea, whereas defendant herein knew, before filing her brief with this
Court, that the attempt by the prosecution to seek a review of the order
\"Even if it be granted that the court martial did have jurisdiction, the appealed from opened the door to the issue of double jeopardy. In fact,
military trial in the instant cases has not place the appellant in jeopardy when the prosecution moved, in the lower court, for a reconsideration of
such as would bar his prosecution for violation of the Philippine penal said order, defendant objected upon the ground of double jeopardy.
laws or, for that matter, a second trial under the Articles of War. Although
under Rev. Stat. sec. 1342 art. 5, it has been held that a former trial may But, even if she may claim the benefits of the aforementioned provision
be pleaded when there has been a trial the offense, whether or not there of Section 10, Rule 113, it should be noted that the same confers upon
has been a sentence adjudged or the sentence has been disapproved the Court \"discretion\" to entertain the plea of double jeopardy or not.
(Dig. JAG [VTVB] p. 167), the rule is and should be otherwise when the Under the circumstances surrounding the case - considering particularly
disapproval was made in response to the defendant\'s plea based on lack that defendant had induced the lower court to believe erroneously that
of jurisdiction. (Ex parte Castello, 8 F. 2nd 283, 286.) In such case the the crime charged in the information was not included in allegations of
former trial may not be pleaded in bar in the second trial.\" (Emphasis the complaint, that another preliminary investigation of the crime
ours.) charged in the information was necessary, and that in the absence of
such other preliminary investigation the lower court had no jurisdiction
Lastly, pursuant to the last sentence of Section 10, Rule 113 of the Rules over the case, and that the ends of justice would be defeated, by
of Court: entertaining now a plea of double jeopardy, which up to this late stage of
\". . . If, however, the defendant learns after he has pleaded or has moved the proceedings, has not been set up in this Court - we are of the opinion,
to quash on some other ground that the offense with which he is now and so hold, that the interest of the proper administration of justice
charged is an offense for which he has been pardoned, or of which he has would be served best by a determination of the merits of the charge
been convicted or acquitted or been in jeopardy, the court may in its against defendant herein.
WHEREFORE, the order appealed from is hereby reversed and the case appeal from a judgment for the defendant rendered on a demurrer to an
remanded to the lower court for further proceedings not inconsistent information or complaint, and from an order dismissing a complaint or
with this decision, without special pronouncement as to costs. It is so information.\"
The opening sentence in the Rules of Court not found in General Orders
Padilla, Bautista Angelo, Labrador, Reyes, J.B.L., Barrera, Paredes and No. 58 or its amendments is, therefore, a mere reiteration of the doctrine
Dizon, JJ., concur. in the Kepner case. In People vs. Borja, 43 Phil., 618, upon appeal by the
Bengzon, J., concurs in the result. Government, the Solicitor General\'s Office, instead of filing a brief
moved to dismiss the appeal. And so in other cases. Recently, we held
Separate Opinions that the Government cannot appeal an order of dismissal or on the merits
of a criminal case although said order if erroneous (People vs. Labatete,
PARAS, C.J., dissenting: L-12917, April 27, 1960; People vs. Bao, L-12102, Sept. 29, 1959; People
vs. Robles, L-12761, June 29, 1959; People vs. Tacneng, L-12082, April
The Constitution provides: 30, 1959).

\"(20) No person shall be twice put in jeopardy of punishment for the In the instant case, after a witness had testified for the prosecution, the
same offense. If an act is punished by law and an ordinance, conviction Court of First Instance ordered the dismissal of the case upon motion of
or acquittal under either shall constitute a bar to another prosecution for the accused on the ground that there was lack of previous preliminary
the same act.\" (Art III - Bill of Rights.) investigation. In fact, there has been such an investigation but the court
The Rules of Court provides: erroneously granted the motion on that sole ground. When the fiscal
asked for reconsideration of the order of dismissal, defense counsel
\"SEC. 2. Who may appeal. - The People of the Philippines can not appeal immediately objected on the ground that such motion would place the
if the defendant would be placed thereby in double jeopardy. In all other accused in double jeopardy. The fiscal has appealed the case. Under the
cases either party may appeal from a final judgment or ruling or from repeated ruling of this Court, it is our bounden duty to dismiss the appeal
order made after judgment affecting the substantial rights of the without any further discussion. But after the Solicitor General\'s Office
appellant.\" (Rule 118) has filed its brief, the counsel for the defense or appellee made no
reference to nor claim double jeopardy, and now it is contended that
Even before the foregoing section of Rule 118 of the Rules of Court was such an omission is equivalent to waiver of the defense. I regret to
promulgated, all the decisions of this Court from the time the doctrine in dissent. Such waiver is only possible when after an accused has been
the Kepner case was laid down had consistently been the denial of an prosecuted and acquitted or convicted, a new complaint or prosecution
appeal by the government when the accused has been discharged or would entitle the accused to the defense of double jeopardy, and it is only
acquitted. Only a favorable ruling upon a motion to dismiss equivalent to in this instance that said defense could be waived. (See Sec. 1 (h) and Sec.
a demurrer could be appealed. 5, Rule 113). That waiver has no application to an appeal for the reason
that that remedy is completely banned or prohibited. It should be
General Orders No. 58 provided: remembered that while in the Salico case (47 O.G., 1765; 84 Phil., 722),
this Court in a divided opinion had ruled otherwise, subsequent
\"SEC. 44. Either party may appeal from a final judgment or from an decisions had abandoned the doctrine.
order made after judgment affecting the substantial rights of the
appellant or in any case now permitted by law. The United States may
It can be conjectured that when the counsel for appellee prepared his
brief, he had not read the latest doctrine on the matter, for the simple
reason that the Official Gazette and the Philippine Reports have not
published the decisions containing said doctrine. Even the 1960 edition
of the Comments on Criminal Procedure by Judge Ruperto Kapunan, Jr.,
still contains the doctrine in the Salico case as the latest. No wonder,
therefore, that the counsel for appellee had failed to mention in his brief
that the doctrine in said case has been completely abandoned.

Reference is made to the doctrine in the case of Acierto (L-2708 and L-

3335-60, Jan. 30, 1953, 49 O.G. 518). To my mind, there is no relevancy
for that case refers to the jurisdiction of the military court of the United
States, on the one hand, and the civil court or court of first instance of the
Philippine Government, on the other. And it is clear that in the present
appealed case, the question involved is not one of jurisdiction but
irregularity in the proceeding based on the false ground that there has
been no preliminary investigation of the case before it was tried by the
court of first instance. Needless to say, preliminary investigation is a step
that can be waived expressly or impliedly.

As stated above, the record shows that the counsel for defendant-
appellee had already invoked the defense of double jeopardy when the
fiscal filed a motion for reconsideration. In a criminal case, even if the
brief does not mention such detail, under our power to review, revise,
reverse, modify, or affirm decisions of lower courts, we can consider any
error we can detect in deciding the case.
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ROLANDO was not cross-examined because pending trial, he escaped. The
MONTEVERDE y CONE alias "EDUARDO MASCARIAS", accused- appellant put up alibi as his defense and claimed that he was
appellant. elsewhere with relatives and friends when the incident took place.
G.R. No. L-60962 | 1986-07-11 Finding the straightforward and substantiated testimonies of the
DECISION spouses credible, the trial court convicted the appellant and
Reynaldo as charged and sentenced them to death. The appellant,
PARAS, J: however, assails the spouses' credibility, and claims that: (a) the
medical certificate does not show signs of physical injuries and
This is an appeal interposed by defendant Rolando Monteverde spermatozoa; (2) said medical certificate and even his co-accused's
from the judgment of the CFI of Zamboanga City, in Criminal Case confession are inadmissible against him, for being hearsay; (3)
No. 1661 (185-111-79) finding him and his co-accused Reynaldo recidivism cannot be considered against him because it was not
Codera, Jr. guilty of the crime of Robbery with Rape and sentencing alleged in the information; and (4) the lower court's proceedings
them to death. are void because the amended information does not contain a
According to the spouses, Tomas and Teresita, at about 1:00 in the
morning of December 29, 1976, the appellant and co-accused The appeal lacks merit. The fact that the medical certificate shows
Reynaldo destroyed the window of their house. Teresita stood up no external signs of physical injuries and spermatozoa on the victim
and lighted a kerosene lamp, at which instance the couple saw does not negate the commission of rape. (People vs. Bawit, L-48116,
Reynaldo at the window pointing a gun at them. He forced them to February 20, 1981; People vs. Dadaeg, L-37798, July 15, 1985, 137
open the door. Once inside, he hogtied Tomas, gagged him and SCRA 500).
placed him under the bed. With the use of a gun and a knife, the
appellant and Reynaldo intimidated Teresita and raped her three While the medical certificate as well as the questioned extrajudicial
times (twice by the former and once by the latter). At about 4:00 in confession may be incomplete or defective, neither is indispensable
the same morning, they ransacked the house and left with their loot to prove the crime of rape. In previous cases, medical examination
valued at P300.00 plus cash money of P15.00. Teresita and her was held to be merely corroborative. (People vs. Pielago, et al., L-
husband immediately reported the matter to the police. Upon 42256, December 19, 1985; People vs. Opena, L-34954, February
examination, the medico-legal officer issued a medical certificate 20, 1981, 102 SCRA 755). In a prosecution for rape, the accused may
with the following findings: that Teresita was already 2 months be convicted even on the sole basis of the complainant's testimony,
pregnant when she was sexually abused and that there were no if credible. (People vs. Aragona, L-43752, September 19, 1985, 138
external signs of physical injuries. Said medical certificate, however, SCRA 569). In the case at bar, We find no cogent reason to disturb
was not properly identified in court because the physician was not the trial court's findings on the credibility of the spouses. Having
presented during the trial. On March 27, 1977, the victims-spouses heard the witnesses and observed their deportment during the trial,
went to the police station for identification of arrested suspects. The the trial court is in a good position to decide the question. Indeed,
spouses immediately identified Reynaldo as one of the two culprits the spouses' direct and substantiated testimonies are more credible
who had committed the crimes. Teresita also unhesitatingly pointed than the appellant's general denial and uncorroborated testimony.
to Rolando in a picture shown to her, as the very same person who Considering that the spouses have no motive to charge the appellant
is the other culprit. In a sworn statement before the NBI, Reynaldo falsely, especially with such a grave offense, his defense of alibi is
admitted that he and appellant planned the robbery. However, he unavailing because the spouses positively identified him. (People vs.
Arbois, L-36936, August 5, 1985, 138 SCRA 24; People vs. Estante, L-
30354, July 30, 1979, 92 SCRA 122; People vs. Cabeltes, L-38145-48,
June 29, 1979, 91 SCRA 208; People vs. Chavez, L-38603, September
30, 1982, 117 SCRA 221).

The trial court properly appreciated recidivism as an aggravating

circumstance although not alleged in the information because the
same was proved by evidence. (People vs. Perez, L-50044, July 31,
1981, 106 SCRA 436; People vs. Entes, L-50632, February 24, 1981,
103 SCRA 162).

Finally, We wish to state that while generally, a preliminary

investigation is mandatory and a certification that such
investigation was held is required, still this rule does not apply if the
issue is raised only after conviction. Thus, it has been held that after
a plea of not guilty to the information, an accused is deemed to have
foregone the right of preliminary investigation and to have
abandoned the right to question any irregularity that surrounds it
(See Zacarias v. Cruz, 30 SCRA 728, People vs. Beltran, 32 SCRA 71.
See also People v. Arbola, L-16936, Aug. 5, 1985).

Judgment of conviction is AFFIRMED, with the modification that due

to the lack of the necessary votes, the death penalty is reduced to
reclusion perpetua with costs against the accused.


Teehankee, C. J., Abad Santos, Feria, Yap, Fernan, Narvasa, Melencio-

Herrera, Alampay, Gutierrez, Jr. and Cruz, JJ., concur.
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. DATU her husband, saw the appellants by the light of a lamp which was in
GALANTU MEDTED ET AL., defendants. DATU GALANTU MEDTED, the kitchen and by that of the flames of the fire in the stove beside
KANAKAN MEDTED, and MAUTI DUMAURONG, appellants. which her said husband stood cooking the coconut oil. It likewise
G.R. No. 46108 | 1939-09-22 appears from the evidence that the appellants and their respective
DECISION families were not in good terms with the deceased and his wife ever
since said deceased, about four years before, charged the father of the
DIAZ, J: first two appellants and grandfather of the last one, with having
stolen two carabaos belonging to him and his wife. The person whom
At about 7 o'clock in the night of September 25, 1937, Moro the deceased had charged with theft of large cattle was named Sulay.
Manankian, married to Sumeriñgan, received a spear wound in his The case had been submitted to a Constabulary officer and later to
breast above his right nipple, piercing his right lung and producing a the chieftains of the place where the parties resided. During the sort
hemorrhage which caused his death a few moments later. This took of trial held before said chieftains, Sulay was required to swear before
place in his own house situated in the place called Makamalig in the the Koran to affirm thereby the truth of his allegation that he had not
barrio of Marang, district of Parang, Province of Cotabato. The crime stolen the animals belonging to the deceased. Upon swearing, he
was attributed to the accused Datu Galantu Medted, Kanakan Medted, invoked death to come upon him if he was not telling the truth. It
Mauti Dumaurong, and Makagaan, all Moros, against whom a happened that Sulay died some years later and the deceased and his
complaint was first presented in the justice of the peace court of the faction believed that it was due to his having sworn falsely in
municipal district of Parang, followed later by an information filed in connection with the question between him and the deceased, relative
the Court of First Instance of Cotabato. After due trial in the latter to the two carabaos belonging to said deceased. Thereafter the
court, the three appellants the accused Makagaan having been resentment of the appellants, who are sons and grandson of Sulay,
released from the charge upon motion of the fiscal, for lack of against the deceased and his family, became more accentuated and
evidence were convicted of the crime of murder and sentenced to aggravated. The lower court declared that the motive of the crime
suffer the penalty of reclusion perpetua and to pay jointly and was the grave resentment then existing between the deceased and
severally to the heirs of the deceased an indemnity of P1,000 plus the the appellants.
costs. They appealed from said sentence and in this instance they
now argue that the court erred: (1) In not sustaining the defense of The testimony of the widow of the deceased to the effect that she
double jeopardy in their favor, and (2) in finding them guilty of the recognized the accused-appellants as the perpetrators of the
crime with which they had been charged, notwithstanding the fact aggression committed against her husband, is corroborated by that
that the same had not been established beyond reasonable doubt. of the witness Mama, who testified that at the cries of said widow, he
saw and recognized the three appellants as they fled from said place,
It appears from the evidence presented during the trial that while the each of them carrying spears and creeses.
deceased Manankian was cooking coconut oil on the stove inside the
kitchen of their house, on the occasion in question, he unexpectedly While it is true that Sumeriñgan told Bansil, Sangad and Mamarinta,
received a spear wound in his breast, as a consequence of which he who were the first to go to her house after the crime, that she had not
was unable to utter any word except to tell his wife Sumeriñgan that been able to recognize the perpetrators thereof, stating the same
he had been speared. His wife, upon peeping through the uncovered thing to Lieutenant Cabrera of the Army, who went to the scene of the
opening between the floor of their living room and that of their crime on the following day for the purpose of conducting the
kitchen, in order to find out who could have been the aggressors of necessary investigation, however, the reason given by said witness
for having behaved in that manner is not only satisfactory but Consequently, the defense of double jeopardy is untenable.
convincing as well. The widow being a native of the Province of
Lanao, she was a stranger in Makamalig and had no relatives therein The lower court held as proven the existence of the qualifying
who could protect her. Bansil, Sangad and Mamarinta were all very circumstance of treachery, the aggravating circumstances of
near relatives of the appellants, some by reason of blood ties and nighttime and of dwelling, and the mitigating circumstance of lack of
others by reason of marriage. Although she knew who the authors of instruction of the appellants, in the commission of the crime.
her husband's death were, she kept silent for fear of being harmed. However, it gave no importance to the aggravating circumstance of
She likewise kept silent when Lieutenant Cabrera went to said place nighttime because it correctly declared the same to be absorbed in
to conduct an investigation, because the relatives of the appellants the qualifying circumstance of treachery (People vs. Piring, 63 Phil.,
were then present and could hear her. On that same occasion, 646). There is no doubt about the existence of treachery as a
however, amidst sobs and tears, she told Lieutenant Cabrera in a low qualifying circumstance because the appellants committed the
voice, outside the hearing of others, that she would go to see him at aggression by taking the deceased by surprise without any risk
his headquarters in order to make a true revelation and to give him whatsoever to themselves, the deceased not having been, as he was
the names of the perpetrators of the crime. She did so, as she had not, warned in order to defend himself or even to avoid said
promised, soon after her husband's body had been buried. aggression. The act, or rather the aggression, was treacherous and
was the result of a conspiracy among the appellants.
The appellants base their defense of double jeopardy on the fact that
the first complaint filed against them in the justice of the peace court For all the foregoing, the appealed judgment being in accordance
was dismissed upon petition of the fiscal himself, for lack of evidence, with law, it is hereby affirmed in toto, with the costs to the appellants,
as soon as it had been received in the Court of First Instance, and on who must, however, be credited with one-half of the preventive
the fact that, notwithstanding said dismissal, the fiscal again charged imprisonment which they have been suffering to date. So ordered
them with the same acts and offense in another case. This defense is
unfounded. The result of a preliminary investigation can neither Avanceña, C. J., Villa-Real, Imperial, Laurel, Concepcion, and Moran,
constitute nor give rise to the defense of double jeopardy in any case, JJ., concur.
because such preliminary investigation is not and does not in itself
constitute a trial or even any part thereof. The only purpose of a
preliminary investigation is to determine, before the presentation of
evidence by the prosecution and by the defense, if the latter party
should wish to present any, whether or not there are reasonable
grounds for proceeding formally and resolutely against the accused
(People vs. Peji Bautista, G. R. No. 45739, April 25, 1939; U. S. vs. Yu
Tuico, 34 Phil., 209). In order that the defense of jeopardy may lie,
there must be a former judgment, either of acquittal or of conviction,
rendered by a court competent to render the same, not only by
reason of the offense committed, which must be the same or at least
comprised within it, but also by reason of the place where it was
committed. Under the established facts it cannot be stated that the
same circumstances exist in the case under consideration.
JOSE C. LUCIANO, complainant, vs. HON. HERMINIO C. MARIANO, Judge of respondent judge (a) prejudiced and injured Luciano's rights, and (b)
the Court of First Instance of Rizal, Branch X, respondent. exposed his (the judge's) gross ignorance of the law.
A.C. No. 181-J | 1971-03-31
RESOLUTION Except for the last concerning the alleged press release, the other charges
enumerated by Luciano rest solely upon the intrinsic validity of the various
CASTRO, J: orders issued by the respondent judge and the circumstances surrounding
the issuance of each. The background facts are thus essential to a full
understanding of the case.
The respondent Judge Herminio C. Mariano of the Court of First Instance of
Rizal, Branch X, is charged with gross misconduct and inefficiency in An examination of the records of this and related cases which have found
connection with his actuations in two cases wherein the complainant Jose C. their way to this Court show that following the conviction of Maximo Estrella
Luciano is either the defendant or the accused. and others on May 17, 1969 by the Court of First Instance of Rizal (presided
then by Judge Andres Reyes) for violation of the Anti-Graft and Corrupt
The written complaint before us is somewhat jumbled and confusing, not to Practices Act, a power struggle ensued between Estrella's camp on the one
mention the array of palpable errors in dates and case references. The hand and that of the complainant Luciano on the other over the mayoralty of
allegations are littered with useless invectives, obscuring the ultimate facts Makati, Province of Rizal, sparked by an order, contained in the decision of
which every complaint should principally concern itself with. Judge Reyes, suspending Estrella and others from office.
From a painstaking and laborious reading of the said complaint, the On May 20, 1969, Estrella and one Ciriaco Alano commenced civil case 11802
following appears to be the burden of Luciano's complaint against the in the Court of First Instance of Rizal, an action for injunction against
respondent judge: Luciano. The petition filed therein "averred inter alia that although the
decision of Judge Reyes ordered the removal from office of Mayor Estrella
1. In issuing a temporary restraining order against Luciano and others in and his other co-accused within 24 hours after receipt of the decision, they
civil case 11802 (Ciriaco Alano and Maximo Estrella vs. Jose Luciano), the appealed to the Court of Appeals on the same day that the decision was
respondent judge committed (a) partiality, bias and discrimination, (b) over- promulgated; that in view of the appeal, said decision had not become final
zealousness in protecting the guilty parties, and (c) inefficiency through executory and could not be executed in any way; that said appeal
gross ignorance of the law; notwithstanding, petitioner Luciano had publicly announced that he would
assume on that day, May 20, the post of Mayor in the company of Philippine
2. In suspending Luciano from the mayoralty of Makati in criminal case Constabulary soldiers, sheriffs and other agents and men with the threat of
19346 (People vs. Jose Luciano, et al.), the respondent judge committed (a) using force and violence; that such forcible assumption was improper and
partiality, bias and discrimination, (b) over zealousness in prosecuting and contrary to law because there was no vacancy to be filled, and even if there
harassing the innocent, and (c) inefficiency through gross ignorance of the was, it was the provincial governor who could fill up the vacancy by
law; appointment; and that petitioner Luciano also threatened to dismiss therein
petitioner Ciriaco Alano." 1
3. In issuing, in the same criminal case, an order which held the suspension
of Luciano as unrevoked even when the latter had already sought the The respondent judge, in whose sala civil case 11802 fell by raffle, set the
intervention of this Court, the respondent judge prejudiced and injured hearing of the petition for May 27, 1969 and directed that:
Luciano's rights; and
"In the meantime, and in order to maintain the status quo, respondent Jose
4. In issuing a press release which stated that Luciano's suspension still Luciano and any and all Philippine Constabulary officers and soldiers,
stood notwithstanding the latter's action filed with this Court, and that sheriffs, agents, and all persons acting for and in their behalf, are hereby
technically Luciano could be arrested for continuing to hold office, the temporarily restrained from performing the acts sought to be enjoined, to
wit, from removing or attempting to remove, in any mode or manner, the preliminary investigation and for the staying of the criminal proceedings
petitioners and defendants in Crime. Case No. 18821 from their respective pending that investigation.
offices, from molesting or impeding them in the performance of their duties
in any way, and from installing or placing respondent Luciano or any other On September 13, 1969, the provincial fiscal of Rizal granted Luciano's
persons in their offices in any way, until further orders from this court." request for reinvestigation, the court below being notified thereof. On
September 15, Luciano entered a plea of not guilty to the charge. Thereupon
The hearing of May 27, 1969 took place but civil case 11802 was dismissed the respondent judge set the trial of the case for October 15, 1969 without
by the respondent judge upon joint petition by the parties. prejudice to the outcome of the reinvestigation. Finally, in a written
manifestation dated December 15, 1969 the provincial fiscal informed the
The main conflict between Estrella and Luciano was subsequently resolved respondent judge that he had conducted a preliminary investigation and/or
by this Court in L-30306 on June 20, 1969. The suspension of Estrella and reinvestigation of the anti-graft charge against Luciano and Florentino Bolls,
company was affirmed and Luciano's right to succeed as mayor of Makati with proper notice to them, and found that sufficient evidence exists to
was upheld. In the decision rendered therein, this Court, notwithstanding establish prima facie their guilt. On the same date, December 15, the
that the temporary restraining order issued by the respondent judge in civil respondent judge issued an order suspending Luciano from public office, "it
case 11802 had already become functus oficio, held that the same was null appearing that the information charging the accused is sufficient in form and
and void. Said this Court: substance and the validity of said information is apparent." Even as Luciano
". . . Long familiar is the rule that a judge of a branch of a court may not filed a motion for reconsideration of the suspension order, Councilor Johnny
interfere with the proceedings before a judge of another branch of the same Wilson took his oath of office as acting mayor of Makati.
court. Pointedly applicable is the statement of this Court found in Lacuna vs.
Ofilada that: 'But the rule is infringed where the Judge of a branch of the On December 16, 1969, Luciano brought suit in this Court against Wilson and
court issues a writ of preliminary injunction in a case to enjoin the sheriff the provincial governor of Rizal to beat the suspension order but this Court,
from carrying out an order of execution issued in another case by the Judge while giving due course on the same day to the petition, directed the
of another branch of the same court." inclusion of the respondent judge as party respondent. In the court below,
In the same decision this Court passed upon the charge made by the ousted on the following day, the respondent judge held in abeyance further
officials that an information for violation of the Anti-Graft and Corrupt proceedings in criminal case 19346 to give Luciano time to implead him (the
Practices Act had in the meantime been filed against Luciano himself by the judge) in the petition pending with this Court. The respondent judge's order,
provincial fiscal of Rizal; and that as a result thereof, Luciano had in fact been however, stated that Luciano's suspension as directed by him still stood.
suspended by the provincial governor. This Court held that only the court in
whose sala the information has been lodged (here, that of the respondent On December 18, 1969, the same date that Luciano amended his petition as
judge) can validly order any suspension in connection with that criminal directed by us, a news item appeared in the issue of the Philippines Herald
information. of that day, attributing to the respondent judge the statement that
technically his suspension order still stood since he had not yet been
Because of our ruling in L-30306, Luciano assumed the post of acting mayor included in Luciano's action before this Court, and that technically the
of Makati. respondent judge could order Luciano's arrest for continuing to hold office.
On the following day, this Court issued a restraining order enjoining the
It should be mentioned here that during the pendency of L-30306 in this respondent judge from carrying out his suspension order and from causing
Court, another petition, docketed as L-30544 was lodged with us wherein the arrest of Luciano.
Luciano and one Florentino Rolls questioned the validity of an information
filed against them by then Provincial Fiscal Benjamin Aquino on May 30, While Luciano's amended petition, docketed as L-31347 was pending in the
1969 for violation of the Anti-Graft and Corrupt Practices Act. On June 5, Court, Wilson moved to withdraw his answer and memorandum. In a
1969, this Court dismissed that petition but without prejudice to Luciano's resolution dated August 31, 1970, this Court, after considering the basic
filing with the court below all appropriate motion for the holding of a stand of Luciano as assented to by Wilson, held that the court below should
have first conducted a hearing on the validity of the information filed against to discipline judges for inefficiency on account merely of occasional mistakes
Luciano, "conformable to the spirit of the law and taking into account the or errors of judgment committed by them. If this Court were to use the latter
serious and far reaching consequence of a suspension of an elected public as the sole test for eliminating or retaining judges, shunting aside reasonable
official even before his conviction." 2 This Court thus granted Wilson's allowances for difficult questions of law or want of physical facilities and
motion which would enable the respondent judge to hold a hearing on the material time for exhaustive studies, then indeed we would have very few
validity of the information in criminal case 19346. judges left in our courts. And finally, an aggrieved litigant can always avail
himself of the remedies provided by law for the correction of unjust orders
On December 15, 1970, after hearing, the respondent judge issued an order and decisions affecting him. The best illustrations of this last point are of
holding that the information filed against Luciano and Florentino Rolls was course the reversals of the orders of the respondent judge which the
valid, or, at all events, its defects were cured by the subsequent complainant has so far obtained from this Court.
reinvestigation conducted by the provincial fiscal. This order of the
respondent judge is the subject of another certiorari action (L-32950) now To allege partiality, bias and discrimination or over zealousness in siding
pending before this Court. with the guilty as against the innocent is one thing, but to show basis for the
same is quite another. The facts which the complainant alleges are the basis
In resolving the issues posed by the complaint at bar, we limit ourselves to for his charges turn out, after a careful reading of the complaint, to be the
the pleadings of the parties before us as well as the records of the related same facts already recited above. Our own understanding of the event,
cases involving the parties which we have adjudicated in the past. The however, does not point to any unmistakable indication of mischief on the
manner by which we dispose of the present case, therefore, can have no part of the respondent judge nor of anything that would persuade us to agree
relevance to or effect on the controversy now still pending between the same with the inference reached by the complainant. The mere fact that a judge
parties in L-32950 mentioned above. has erroneously ruled against the same litigant on two or three occasions
does not create in our minds a decisive pattern of malice on the part of the
In disposing of the present administrative case, we need not scrutinize the judge against that particular litigant. This is not an unusual occurrence in our
written answer of the respondent judge to the mixed charges of inefficiency courts, and unless something in addition is alleged proved, this Court is not
and gross misconduct in office. All that we need to do is to proceed with the inclined to disregard the presumption of good faith in favor of the actuations
consideration of the complaint at bar, and determine if we can exact from it of courts. Not even the order of December 17, 1969 issued by the respondent
such a prima facie case against the respondent judge as would warrant judge (wherein the judge declared that Luciano's suspension stood
further proceeding. notwithstanding the pendency of a related suit in the Court) would, in our
opinion, support the theory that the judge had joined forces with the
Of the three court orders which the complainant places in issue, two have complainant's adversaries for the purpose of harassing and injuring the
been previously stricken down by this Court either for being contrary to law interests of the complainant. The mere declaration that the court's
or gravely abusive of judicial discretion. The first is the temporary suspension order stood was nothing but a statement of a technically correct
restraining order issued in civil case 11802 enjoining Luciano and certain fact and could not have made the complainant's predicament at that time any
police agencies from "removing" Estrella and other official from the worse. Lest it be overlooked, the order in question was mainly directed at
government posts occupied by them; the second is the order of December holding the proceedings in criminal case 19346 in abeyance to give the
15, 1959 suspending the complainant Luciano on the ground that a criminal complainant Luciano ample time within which to implead the respondent
information has been filed against him. As the complainant would now have judge in his petition (docketed as L-31347) then pending in this Court. If the
it, the fact that these two orders have been subsequently annulled by this respondent judge were really bent on harassing the complainant, he would
Court proves the incompetency and inefficiency of the respondent judge. have forced the issue of suspension considering that at that time no
This, to us, is a hasty, nay, unfair indictment of the actuations of the judge. restraining order addressed to him had yet issued from this Court.
Firstly, only the temporary restraining order seems to run counter to settled
jurisprudence. The other order suspending Luciano from public office bears While this Court takes a dim view at the issuance by judges of press releases
on questions not previously resolved by us. Secondly, this Court is not wont respecting cases pending before them, we cannot give due course to the
complainant's charge that the respondent judge was responsible for the
news item which appeared in the December 18, 1969 issue of the Philippines
Herald. Considering the repudiation by the same judge of the press
statements attributed to him, the complainant's case, resting as it is solely
upon the newspaper's account of where it obtained its information, cannot
stand in a proceeding such as the present. (The complainant lists as his
evidence only his testimony and the records of the various cases involved in
his protracted fight for the mayoralty of Makati and no more.)

All the above notwithstanding, the impression abides with us that the
respondent judge acted with inordinate haste in issuing the order
suspending Luciano from office on the very same day that he received the
official report of the provincial fiscal to the effect that a preliminary re-
investigation of the anti-graft charge against Luciano and Rolls had been
conducted and that there was enough evidence to establish prima facie
their guilt. The environmental circumstances, were, to our mind,
sufficient to give the respondent judge reason for pause, and he should
thereafter have proceeded with a degree of circumspection normally
expected of a judicial magistrate.

In sum, we find and so hold that there is nothing in the present

indictment against the respondent Judge Herminio Mariano that would
support a prima facie finding of inefficiency, or misconduct in office, or
bias, or ignorance of the law, as could warrant further proceedings.

ACCORDINGLY, the present complaint is dismissed.

Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Fernando,
Teehankee, Barredo, Villamor and Makasiar, JJ., concur.
TIMOTEO V. CRUZ, petitioner, vs. FRANCISCO G. H. SALVA, respondent. investigated the case at the instance of Malacañang. Fiscal Salva
G.R. No. L-12871 | 1959-07-25 conferred with the Solicitor General to what steps he should take. A
conference was held with the Secretary of Justice who decided to have
DECISION the results of the investigation by the Philippine Constabulary and
Malacañang investigators made available to counsel for the appellants.
Taking advantage of this opportunity, counsel for the appellants filed a
This is a petition for certiorari and prohibition with preliminary
motion for new trial with this Tribunal supporting the same with the so-
injunction filed by Timoteo V. Cruz against Francisco G. H. Salva, in his
called affidavits and confessions of some of those persons investigated,
capacity as City Fiscal of Pasay City, to restrain him from continuing with
such as the confessions of Sergio Eduardo y de Guzman, Oscar Caymo,
the preliminary investigation he was conducting in September, 1957 in
Pablo Canlas, and written statements of several others. By resolution of
connection with the killing of Manuel Monroy which took place on June
this Tribunal, action on said motion for new trial was deferred until the
15, 1953 in Pasay City. To better understand the present case and its
case was studied and determined on the merits. In the meantime, the
implications, the following facts gathered from the pleadings and the
Chief, Philippine Constabulary, had sent to the Office of Fiscal Salva
memoranda filed by the parties, may be stated.
copies of the same affidavits and confessions and written statements, of
which the motion for new trial was based, and respondent Salva
Following the killing of Manuel Monroy in 1953 a number of persons
proceeded to conduct a reinvestigation designating for said purpose a
were accused as involved and implicated in said crime. After a long trial,
committee of three composed of himself as chairman and Assistant City
the Court of First Instance of Pasay City found Oscar Castelo, Jose de
Attorneys Herminio A. Avendañio and Ernesto A. Bernabe
Jesus, Hipolito Bonifacio, Bienvenido Mendoza, Francis Berdugo and
others guilty of the crime of murder and sentenced them to death. They
In connection with said preliminary investigation being conducted by
all appealed the sentence although without said appeal, in view of the
the committee, petitioner Timoteo Cruz was subpoenaed by respondent
imposition of the extreme penalty, the case would have to be reviewed
to appear at his office on September 21, 1957, to testify "upon oath
automatically by this Court. Oscar Castelo sought a new trial which was
before me in a certain criminal investigation to be conducted at that time
granted and upon retrial, he was again found guilty and his former
and place by this office against you and Sergio Eduardo, et al., for
conviction of sentence was affirmed and reiterated by the same trial
murder." On September 19, 1957, petitioner Timoteo Cruz wrote to
respondent Salva asking for the transfer of the preliminary investigation
from September 21, due to the fact that his counsel, Atty. Crispin Baizas,
It seems that pending appeal, the late President Magsaysay ordered a
would attend a hearing on that same day in Naga City. Acting upon said
reinvestigation of the case. The purpose of said reinvestigation does not
request for postponement, Fiscal Salva set the preliminary investigation
appear in the record. Anyway, intelligence agents of the Philippine
on September 24. On that day, Atty. Baizas appeared for petitioner Cruz,
Constabulary and investigators of Malacañang conducted the
questioned the jurisdiction of the committee, particularly respondent
investigation for the Chief Executive, questioned a number of people and
Salva, to conduct the preliminary investigation in view of the fact that the
obtained what would appear to be confession, pointing to persons, other
same case involving the killing of Manuel Monroy was pending appeal in
than those convicted and sentenced by the trial court, as the real killers
this Court, and on the same day filed the present petition for certiorari
of Manuel Monroy.
and prohibition. This Tribunal gave due course to the petition for
certiorari and prohibition and upon the filing of a cash bond of P200.00
Counsel for Oscar Castelo and his co-defendants wrote to respondent
issued a writ of preliminary injunction thereby stopping the preliminary
Fiscal Salva to conduct a reinvestigation of the case presumably on the
investigation being conducted by respondent Salva.
basis of the affidavits and confessions obtained by those who had
postponed because his attorney would be unable to attend, Timoteo Cruz
The connection, if any, that petitioner Cruz had with the preliminary expressed no opposition to the subpoena, not even a hint that he was
investigation being conducted by respondent Salva and his committee objecting to his being cited to appear at the investigation.
was that the affidavits and confessions sent to Salva by the Chief,
Philippine Constabulary, and which were being investigated, implicated As to the right of respondent Salva to conduct the preliminary
petitioner Cruz, even picturing him as the instigator and mastermind in investigation which he and his committee began, ordinarily, when a
the killing of Manuel Monroy. criminal case in which a fiscal intervened though nominally, for
according to respondent, two government attorneys had been designed
The position taken by petitioner Cruz in this case is that inasmuch as the by the Secretary of Justice to handle the prosecution in the trial of the
principal case of People vs. Oscar Castelo, et al., G. R. No. L-10794, is case in the court below, is tried and decided and it is appealed to a higher
pending appeal and consideration before us, no court, much less a court such as this Tribunal, the functions and actuations of said fiscal
prosecuting attorney like respondent Salva, had any right or authority to have terminated; usually, the appeal is handled for the government by
conduct a preliminary investigation or reinvestigation of the case for that the Office of the Solicitor General. Consequently, there would be no
would be obstructing the administration of justice and interferring with reason or occasion for said fiscal to conduct a reinvestigation to
the consideration on appeal of the main case wherein appellants had determine criminal responsibility for the crime involved in the appeal.
been found guilty and convicted and sentenced; neither had respondent
authority to cite him to appear and testify at said investigation. However, in the present case, respondent has, in our opinion, established
a justification for his reinvestigation because according to him, in the
Respondent Salva, however, contends that if he subpoenaed petitioner original criminal case against Castelo, et al., one of the defendants named
Cruz at all, it was because of the latter's oral and personal request to Salvador Realista y de Guzman was not included in the trial much less in
allow him to appear at the investigation with his witnesses for his own the judgment for the reason that he was arrested and was placed within
protection, possibly, to controvert and rebut any evidence therein the jurisdiction of the trial court only after the trial against the other
presented against him. Salva claims that were it not for this request and accused had commenced, even after the prosecution had rested its case
if, on the contrary, Timoteo Cruz had expressed any objection to being and the defense had begun to present its evidence. Naturally, Realista
cited to appear in the investigation he (Salva) would never have remained to stand trial. The trial court, according to respondent, at the
subpoenaed him. instance of Realista, had scheduled the hearing at an early date, that is in
August, 1957. Respondent claims that before he would go to trial in the
Although petitioner Cruz now stoutly denies having made such request prosecution of Realista he had to chart his course and plan of action,
that he be allowed to appear at the investigation, we are inclined to agree whether to present the same evidence, oral and documentary, presented
with Fiscal Salva that such a request had been made. Inasmuch as he, in the original case and trial, or, in view of the new evidence consisting
Timoteo Cruz, was deeply implicated in the killing of Manuel Monroy by of the affidavits and confessions sent to him by the Philippine
the affidavits and confessions of several persons who were being Constabulary, he should first assess and determine the value of said
investigated by Salva and his committee, it was but natural that evidence by conducting an investigation and that should he be convinced
petitioner should have been interested, even desirous of being present that the persons criminally responsible for the killing of Manuel Monroy
at that investigation so that he could face and cross examine said were other than those already tried and convicted, like Oscar Castelo and
witnesses and affiants when they testified in connection with their his co-accused and co-appellants, including Salvador Realista, then he
affidavits or confessions, either repudiating, modifying or ratifying the might act accordingly and even recommend the dismissal of the case
same. Moreover, in the communication, addressed to respondent Salva against Realista.
asking that the investigation, scheduled for September 21, 1957, be
In this, we are inclined to agree with respondent Salva. For, as contended
by him and as suggested by authorities, the duty and role of a prosecuting Now we come to the manner in which said investigation was conducted
attorney is not only to prosecute and secure the conviction of the guilty by the respondent. If, as contended by him, the purpose of said
but also to protect the innocent. investigation was only to acquaint himself with and evaluate the
evidence involved in the affidavits and confessions of Sergio Eduardo,
"We cannot overemphasize the necessity of close scrutiny and Cosme Camo and others by questioning them, then he respondent, could
investigation of prosecuting officers of all cases handled by them, but well have conducted the investigation in his office, quietly, unobtrusively
whilst this court is averse to any form of vacillation by such officers in and without much fanfare, much less publicity.
the prosecution of public offenses, it is unquestionable that they may, in
appropriate cases, in order to do justice and avoid injustice, reinvestigate However, according to the petitioner and not denied by the respondent,
cases in which they have already filed the corresponding informations. the investigation was conducted not in respondent's office but in the
In the language of Justice Sutherland of the Supreme Court of the United session hall of the Municipal Court of Pasay City evidently, to
States, the prosecuting officer "is the representative not of an ordinary accommodate the big crowd that wasted to witness the proceeding,
party to a controversy, but of a sovereignty whose obligation to govern including members of the press. A number of microphones were
impartially is as compelling as its obligation to govern at all; and whose installed. Reporters were everywhere and photographers were busy
interest, therefore, in a criminal prosecution is not that it shall win a case, taking pictures. In other words, apparently with the permission of, if not
but that justice shall be done. As such, he is in a peculiar and very definite the encouragement by the respondent, news photographers and
sense the servant of the law, the twofold aim of which is that guilt shall newsmen had a field day. Not only this, but in the course of the
not escape nor innocent suffer. He may prosecute with earnestness and investigation, as shown by the transcript of the stenographic notes taken
vigor - indeed, he should do so. But, while he may strike hard blows, he during said investigation, on two occasions, the first, after Oscar Caymo
is not at liberty to strike foul ones. It is as much his duty to refrain from had concluded his testimony, respondent Salva, addressing the
improper methods calculated to produce a wrongful conviction as it is to newspapermen said, "Gentlemen of the press, if you want to ask
use every legitimate means to bring about a just one." (69 United States questions I am willing to let you do so and the questions asked will be
Law Review, June, 1935, No. 6, p. 309, cited in the case of Suarez vs. reproduced as my own"; and the second, after Jose Maratella y de
Platon, 69 Phil., 556) Guzman had finished testifying and respondent Salva, addressing the
newsmen, again said, "Gentlemen of the press is free to ask question to
With respect to the right of respondent Salva to cite petitioner to appear the witness if you want to. We are willing to adopt the questions as ours."
and testify before him at the scheduled preliminary investigation, under Why respondent was willing to abdicate and renounce his right and
the law, petitioner had a right to be present at that investigation since as prerogative to make and address the questions to the witnesses under
was already stated, he was more or less deeply involved and implicated investigation, in favor of the members of the press, is difficult for us to
in the killing of Monroy according to the affiants whose confessions, understand, unless he, respondent, wanted to curry favor with the press
affidavits and testimonies respondent Salva was considering or was to and publicize his investigation as much as possible. Fortunately, the
consider at said preliminary investigation. But he need not be present at gentlemen of the press to whom he accorded such unusual privilege and
said investigation because his presence there implies, and was more of a favor appeared to have wisely and prudently declined the offer and did
right rather than a duty or legal obligation. Consequently, even if, as not ask questions, this according to the transcript now before us.
claimed by respondent Salva, petitioner expressed the desire to be given
an opportunity to be present at the said investigation, if he later changed But, the newspapers certainly played up and gave wide publicity to what
his mind and renounced his right, and even strenuously objected to being took place during the investigation, and this involved headlines and
made to appear at said investigation, he could not be compelled to do so. extensive recitals, narrations of and comments on the testimonies given
by the witnesses as well as vivid descriptions of the incidents that took by us, respondent Francisco G. H. Salva is hereby publicly reprehended
place during the investigation. It seemed as though the criminal and censured for the uncalled for and wide publicity and sensationalism
responsibility for the killing of Manuel Monroy which had already been that he had given to and allowed in connection with his investigation,
tried and finally determined by the lower court and which was under which we consider and find to be contempt of court; and, furthermore,
appeal and advisement by this Tribunal, was being retried and he is warned that a repetition of the same would meet with a more severe
redetermined in the press, and all with the apparent placet and disciplinary action and penalty. No costs.
complaisance of respondent.
Paras, C.J., Bengzon, Padilla, Bautista Angelo, Labrador, Concepcion,
Frankly, the members of this Court were greatly disturbed and annoyed Endencia and Barrera, JJ., concur.
by such publicity and sensationalism, all of which may properly be laid
at the door of respondent Salva. In this, he committed what we regard a
grievous error and poor judgment for which we fail to find any excuse or
satisfactory explanation. His actuations in this regard went well beyond
the bounds of prudence, discretion and good taste. It is bad enough to
have such undue publicity when a criminal case is being investigated by
the authorities, even when it is being tried in court; but when said
publicity and sensationalism is allowed, even encouraged, when the case
is on appeal and is pending consideration by this Tribunal, the whole
thing becomes inexcusable, even abhorrent, and this Court, in the
interest of justice, is constrained and called upon to put an end to it and
a deterrent against its repetition by meting an appropriate disciplinary
measure, even a penalty to the one liable.

Some of the members of the Court who appeared to feel more strongly
than the others favored the imposition of a more or less severe penal
sanction. After mature deliberation, we have finally agreed that a public
censure would, for the present, be sufficient.

In conclusion, we find and hold that respondent Salva was warranted in

holding the preliminary investigation involved in this case, insofar as
Salvador Realista is concerned, for which reason the writ of preliminary
injunction issued stopping said preliminary investigation, is dissolved;
that in view of petitioner's objection to appear and testify at the said
investigation, respondent may not compel him to attend said
investigation, for which reason, the subpoena issued by respondent
against petitioner is hereby set aside.

In view of the foregoing, the petition for certiorari and prohibition is

granted in part and denied in part. Considering the conclusion arrived at
CITY FISCAL NESTORIO M. PLACER, ASST. CITY FISCALS AGELIO L. These informations, except the last four, docketed as Criminal Cases Nos.
BRINGAS, ERNESTO M. BROCOY, RAFAEL V. FLORES, FELIXBERTO L. 12219, 12220, 12221 and 12222, were certified to by the respective
GUIRITAN, MACARIO B. BALANSAG and ROSARITO F. DABALOS, all of investigating fiscals as follows: "that a preliminary examination has been
Butuan City, and the PEOPLE OF THE PHILIPPINES, petitioners, vs. HON.
conducted by me in this case, having examined the complainant and his
JUDGE NAPOLEON D. VILLANUEVA, in his capacity as City Judge of Butuan,
witnesses; that on the basis of the sworn statements and other evidence
G.R. Nos. L-60349-62 | 1983-12-29 submitted before this Office, there is reasonable ground to believe that
DECISION the crime charged has been committed and that herein accused is
probably guilty thereof." The informations in Criminal Cases Nos. 12219
ESCOLIN, J.: and 12220 bore the certification of 3rd Assistant Fiscal Felixberto
Guiritan "that I am filing this information upon directive of the Minister
The legal question raised in this petition is whether the certification of of Justice, who upon review of the resolution of the undersigned
the investigating fiscal in the information as to the existence of probable investigating fiscal has found prima facie case against herein accused,"
cause obligates respondent City Judge to issue a warrant of arrest. while the informations in Criminal Cases Nos. 12221 and 12222 were
certified to by 2nd Assistant Fiscal Ernesto M. Brocoy in this wise: "I am
The antecedent facts are not disputed. During the period from March 30 filing this information upon directive of the City Fiscal pursuant to the
to April 14, 1982, petitioners, the City Fiscal of Butuan City and his provisions of P.D. No. 911, who, upon review of the resolution of the
assistants filed in the City Court of Butuan the following informations, to investigating fiscal now on temporary detail with the office of the
wit: Provincial Fiscal of Surigao del Sur, has found prima facie case against
the herein accused." 2
CASE NO. TITLE Following receipt of said informations, respondent judge issued an order
setting on April 5, 1982 the hearing of said criminal cases for the purpose
12209 People vs. Jimmy Tan Slight Phy. Inj. of determining the propriety of issuing the corresponding warrants of
12210 People vs. Carlito Fortun Violation of P.D. 1306 arrest. After said hearing, respondent issued the questioned orders
12211 People vs. Jarail Majini - do - dated April 13, 15, 16 and 19, 1982, requiring petitioners to submit to
12212 People vs. Amelita Dy Violation of B.P. 22 the court the affidavits of the prosecution witnesses and other
12213 People vs. Angelito Dy - do - documentary evidence in support of the informations to aid him in the
12214 People vs. Jesus Aloyan Estafa exercise of his power of judicial review of the findings of probable cause
12215 People vs. Bebot Lauron Mal. Mischief by petitioners. 3
12216 People vs. Mariano Trani Usurpation of
Antonio Monghit authority Petitioners filed two separate motions for reconsideration of said orders,
12217 People vs. Elorde Subing- Alarm & Scandal contending that under P.D. Nos. 77 and 911, they are authorized to
bing, Fernando Sagay determine the existence of a probable cause in a preliminary
12218 People vs. Perla Trasga Grave oral defamation examination/investigation, and that their findings as to the existence
12219 People vs. Renato Dayan Estafa thereof constitute sufficient basis for the issuance of warrants of arrest
12220 People vs. Edgardo Dayan Estafa by the court. 4 On April 28, 1982, respondent judge denied said motions
12221 People vs. Benito Sy Ibañez Viol. of B.P. 22 and reiterated his order to petitioners to submit the supporting
12222 People vs. Benito Sy Ibañez - do - affidavits and other documents within five (5) days from notice. 5
Hence, petitioners filed this petition for certiorari and mandamus to set the judge, it being supported by the presumption that the investigating
aside the aforesaid orders and to compel respondent to issue the fiscal had performed his duties regularly and completely.
warrants of arrest in Criminal Cases Nos. 12209-12222.
Upon the other hand, respondent justifies his order as an exercise of his
Meanwhile, the respondent, in addition to his duties as presiding judge judicial power to review the fiscal's findings of probable cause. He
of Branch I of the City Court of Butuan, was also assigned to preside over further maintains that the failure of petitioners to file the required
Branch II of said court, as Judge Jesus Ruiz, presiding judge of said sala, affidavits destroys the presumption of regularity in the performance of
had retired from the service. The informations filed by petitioners in petitioners' official duties, particularly in the light of the long standing
Branch II likewise remained dormant because of respondent's firm practice of the Office of the City Fiscal of Butuan of attaching to the
refusal to issue the corresponding warrants of arrest for want of informations filed with the court the affidavits of prosecution witnesses
affidavits of the witnesses. Thus, as disclosed by petitioner's urgent and other documentary evidence presented during the preliminary
motion, 6 no warrants had been issued in 113 informations as of July 15, investigation.
The issue to be resolved is whether or not the respondent city judge may,
On July 12, 1982, respondent judge received Our May 19, 1982 for the purpose of issuing a warrant of arrest, compel the fiscal to submit
Resolution requiring him to comment on the petition. However, to the court the supporting affidavits and other documentary evidence
interpreting the same as a denial of the petition itself, respondent issued presented during the preliminary investigation.
on the following day, July 13, and Omnibus Order directing petitioners to
submit immediately the supporting affidavits and other evidence in We sustain the position of respondent judge.
Criminal Cases Nos. 12209-12222. Having failed to secure a
reconsideration of said Omnibus Order, petitioners finally submitted the The primary requirement for the issuance of a warrant of arrest is the
required affidavits and documents on July 15, 1982 in order to avoid existence of probable cause. Section 3, Article IV of the 1973 Constitution
further delay in the prosecution of these cases. provides that -

This move on the part of the petitioners would have rendered the instant ". . . no search warrant or warrant of arrest shall issue except upon
petition moot and academic. But while respondent gave due course to probable cause to be determined by the judge, or such other responsible
some of said cases either by issuing the warrants of arrest or taking some officer, as may be recognized by law, after examination under oath or
other appropriate action, 7 he refused to issue the warrants in Criminal affirmance of the complainant and the witnesses he may produce . . ."
Cases Nos. 12417, 12418, 12419, 12420 and 12422, and instead ordered
the records thereof remanded to the City Fiscal "for further preliminary P.D. No. 911 authorizes the fiscal or state prosecutor to determine the
investigation or reinvestigation," for on the bases of said affidavits, existence of probable cause. Thus,
respondent found no prima facie case against the accused.
"If on the basis of complainant's sworn statements and documents
Petitioners therefore filed a motion with this Court to restrain submitted, the investigating fiscal or state prosecutor finds no probable
respondent from enforcing the orders subject of the main petition and to cause to conduct a preliminary investigation, he shall dismiss the case. If
compel him to accept, and take cognizance of, all the informations filed probable cause is established by complainant's evidence, he shall notify
in his court. They contend that the fiscal's certification in the information the respondent by issuing a subpoena . . . (Sec. 1 [b], RA 5180, as
of the existence of probable cause constitutes sufficient justification for amended by P.D. Nos. 77 and 911).
the judge to issue a warrant of arrest; and that such certification binds
"The fiscal or state prosecutor shall certify under oath in the information Special Cases 10 applicable to the following, to wit:
to be filed by him that he has examined the complainant and his
witnesses; that on the basis of the sworn statements and other evidence "I. B. Criminal Cases:
submitted before him there is reasonable ground to believe that a crime
has been committed and that the accused is probably guilty thereof, . . ." (1) Violation of traffic laws, rules and regulations;
(Sec. 1 [d], id.).
(2) Violations of the rental laws;
There is thus no dispute that the judge may rely upon the fiscal's
certification of the existence of probable cause and, on the basis thereof, (3) Violations of municipal or city ordinances;
issue a warrant of arrest. But does such certification bind the judge to
come out with the warrant? We answer this query in the negative. The (4) All other criminal cases where the penalty prescribed by law for the
issuance of a warrant is not a mere ministerial function; it calls for the offense charged does not exceed six (6) months imprisonment, or a fine
exercise of judicial discretion on the part of the issuing magistrate. This of One Thousand Pesos [1,000.00], or both, irrespective of other
is clear from the following provisions of Section 6, Rule 112 of the Rules imposable penalties, accessory or otherwise, or of the civil liability
of Court: arising therefrom; Provided, however, that in offenses involving damage
to property through reckless negligence, this Rule shall govern where the
"Warrant of arrest, when issued. - If the judge be satisfied from the imposable fine does not exceed Ten Thousand Pesos [10,000.00]."
preliminary examination conducted by him or by the investigating
officer that the offense complained of has been committed and that there In said cases, the filing of the affidavits of witnesses with the court is
is reasonable ground to believe that the accused has committed it, he mandatory. Section 9, par. 2 of said Rule prescribes that "the complaint
must issue a warrant or order for his arrest." or information must be accompanied by the affidavits of the complainant
and of his witnesses in such number of copies as there are defendants
Under this section, the judge must satisfy himself of the existence of plus two (2) copies for the court's files."
probable cause before issuing a warrant or order of arrest. If on the face
of the information the judge finds no probable cause, he may disregard Section 10 of the Summary Rule provides:
the fiscal's certification and require the submission of the affidavits of
witnesses to aid him in arriving at a conclusion as to the existence of a "On the basis of the complaint or information and the affidavits
probable cause. This has been the rule since U.S. vs. Ocampo 8 and accompanying the same, the court shall make a preliminary
Amarga vs. Abbas. 9 And this evidently is the reason for the issuance by determination whether to dismiss the case outright for being patently
respondent of the questioned orders of April 13, 15, 16, 19, 1982 and July without basis or merit, or to require further proceedings to be taken. In
13, 1982. Without the affidavits of the prosecution witnesses and other the latter case, the court may set the case for immediate arraignment of
evidence which, as a matter of long-standing practice had been attached an accused under custody, and if he pleads guilty, may render judgment
to the informations filed in his sala, respondent found the informations forthwith. If he pleads not guilty, and in all other cases, the court shall
inadequate bases for the determination of probable cause. For as the issue an order, accompanied by copies of all the affidavits submitted by
ensuing events would show, after petitioners had submitted the required the complainant, directing the defendant(s) to appear and submit his
affidavits, respondent wasted no time in issuing the warrants of arrest in counter-affidavit and those of his witnesses at a specified date not later
the cases where he was satisfied that probable cause existed. than ten (10) days from receipt thereof.

Germane to the issue at hand is the Rule on Summary Procedure in "Failure on the part of the defendant to appear whenever required, shall
cause the issuance of a warrant for his arrest if the court shall find that a
probable cause exists after an examination in writing and under oath or
affirmation of the complainant and his witnesses.

The obvious purpose of requiring the submission of affidavits of the

complainant and of his witnesses is to enable the court to determine
whether to dismiss the case outright or to require further proceedings.

One last point. It appears that after petitioners had submitted the
required affidavits of witnesses, the respondent judge ordered Criminal
Cases Nos. 12417, 12418, 12419, 12420 and 12422 remanded to the City
Fiscal for further preliminary investigation or reinvestigation. We hold
that respondent did not abuse his discretion in doing so. From the
informations and affidavits presented to him, he found the charges
patently without basis or merit. For respondent to issue the warrants of
arrest and try the accused would only expose the latter to unnecessary
harrassment, anxiety and expense. And as already pointed out, under the
Rule on Summary Procedure in Special Cases, the respondent judge has
the power to order the outright dismissal of the charge if, from the
information and the affidavits attached thereto, he finds the same to be
patently without basis or merit.

WHEREFORE, the petition is hereby dismissed. No costs.


Makasiar (Chairman), Concepcion, Jr., Guerrero, Abad Santos and De

Castro, JJ., concur.
Aquino, J., took no part.
IN THE MATTER OF THE APPLICATION FOR A WRIT OF that the person to be arrested has committed it (Sec. 6-b, Rule 113,
HABEAS CORPUS WITH APPLICATION FOR TEMPORARY Rev. Rules), and forthwith deliver the arrested person to the
RESTRAINING ORDER OR EX PARTE PRELIMINARY judicial authorities, as was done in this case (Sec. 17, ibid).
INJUNCTION. JESUS LAVA, petitioner, vs. LT. COL. OSCAR C. Normally, a writ of preliminary injunction should not issue to
GONZALES, Chief Intelligence Officer of the Philippine restrain the prosecution of criminal offenses (Kwong Sing vs. City
Constabulary, respondent. of Manila, 41 Phil., 103; Gorospe vs. Peñaflorida, L-11583, July 19,
G.R. No. L-23048 | 1964-07-31 1957). In view hereof, it is deemed unnecessary to pass upon the
RESOLUTION issues raised, in connection with the warrants of arrest in Criminal
Case Nos. 2043 and 2044 of the Bulacan Court of First Instance.

PAREDES, J.: Bengzon, C.J., Padilla, Bautista Angelo, Regala and Makalintal, JJ.,
The petition is DISMISSED, and the restraining Order or Concepcion and Reyes, J.B.L., JJ., concur in the result.
Preliminary Injunction prayed for should be, as it is hereby
DENIED. Without costs.

The Warrant of Arrest issued by the Manila Court of First Instance

in Criminal Case No. 19166 is Valid and Effective. The offense
described in said Warrant of Arrest was "Rebellion Complex", but
the information was amended and the petitioner can still be held
guilty for simple rebellion (People vs. Geronimo, G.R. No. L-8936,
Oct. 23, 1956; People vs. Romagosa, G.R. No. L-8476, Feb. 28, 1958;
People vs. Santos, G.R. No. L-11813, Sept. 17, 1958). A new
preliminary investigation is not necessary after the amendment of
the information, for the reason that there had been no change in
the nature of the crime charged, which is rebellion, and moreover,
the accused petitioner who was already in custody when the
amended information was filed, should have asked, but did not,
for a re-investigation of said case, within the period of five (5) days
from the time he learned of the amended information (sec. 15,
Rule 112, Rev. Rules). Granting arguendo, that the warrant of
arrest in question is defective, still petitioner's arrest is legal,
because an offender can be taken into custody, by any officer of
the law, or by any private individual even without any warrant of
arrest, when an offense has in fact been committed and the
arresting officer or individual, has reasonable ground to believe
THE MINOR FRANCISCO JUAN LARRANAGA, Represented in this Suit by his mother, Petitioner alleged that he was denied the right to preliminary investigation
MARGARITA G. LARRANAGA, petitioner, vs. COURT OF APPEALS and PEOPLE OF and sought to annul the informations as well as the warrant of arrest issued
THE PHILIPPINES, respondents.
in consequence thereof. In the alternative, petitioner prayed that a
G.R. No. 130644 | 1998-03-13
preliminary investigation be conducted and that he be released from
RESOLUTION detention pending the investigation. 1 Petitioner filed a supplemental
petition for habeas corpus or bail on October 6, 1997. 2
On October 20, 1997, the Solicitor General filed a manifestation and motion
The following are submitted before the Court for resolution: in lieu of comment submitting that petitioner should have been given a
regular preliminary investigation before the filing of the informations and
1. an urgent motion to implement petitioner's release filed by petitioner on the issuance of the warrant of arrest. The Solicitor General recommended
November 3, 1997; that petitioner be accorded his right to preliminary investigation and that he
be released from detention during the pendency thereof. 3
2. a motion for reconsideration of this Court's resolution of October 27, 1997
filed on November 17, 1997 by the counsels for the prosecution in Crim. On October 27, 1997, we issued a resolution holding that petitioner was
Case No. CBU-45303 and 45304; deprived of his right to preliminary investigation when the City Prosecutor
of Cebu insisted that he was only entitled to an inquest investigation. 4
3. a complaint filed by Judge Martin A. Ocampo, Presiding Judge, Regional Hence, we resolved:
Trial Court, Branch 7, Cebu City, against petitioner's counsels, Attorneys
Raymundo A. Armovit, Ramon R. Teleron and Bernardito Florido, for 1. to set aside the inquest investigation of petitioner and to order the Office
allegedly deliberately withholding from this Court the omnibus order, of the City Prosecutor of Cebu to conduct a regular preliminary investigation
supplemental order and order of arraignment he issued on October 17, of the petitioner in accord with Section 3, Rule 112;
1997, thus misleading the Court into issuing its resolution of October 27,
1997; and 2. to annul the Order for Detention During The Pendency of the Case issued
by Executive Judge Priscila Agana against the petitioner in Crim. Case No.
4. an urgent motion to change the venue and the officers to conduct the CBU-45303 and 45304;
preliminary investigation filed by petitioner on November 17, 1997.
3. to order the immediate release of petitioner pending his preliminary
The antecedent facts: investigation; and

Petitioner Francisco Juan Larranaga is charged with two counts of 4. to order the Presiding Judge of Br. VII, RTC of Cebu City to cease and desist
kidnapping and serious illegal detention docketed as CBU-45303 and CBU- from proceeding with the arraignment and trial of petitioner in Crim. Case
45304 pending before the Regional Trial Court (RTC), Branch 7, Cebu City. No. CBU-45303 and 45304, pending the result of petitioner's preliminary
He is presently detained at the Bagong Buhay Rehabilitation Center. investigation.

On October 1, 1997, petitioner, represented by his mother, Margarita G. On October 30, 1997, petitioner filed with the RTC of Cebu an urgent ex
Larranaga, filed with this Court a petition for certiorari, prohibition and parte motion praying for his immediate release pursuant to our October 27
mandamus with writs of preliminary prohibitory and mandatory injunction. resolution. 5
4. Petitioner was validly arraigned on October 14, 1997 and the validity of
The following day, on October 31, 1997, Judge Martin A. Ocampo, Presiding such arraignment was not set aside by this tribunal;
Judge of RTC Branch 7, Cebu City, issued an order deferring the resolution 5. The case of Sanchez v. Demetriou squarely applies to the instant case;
of petitioner's motion. It stated that it would be premature to act on the and
motion since the trial court has not yet received an official copy of our
October 27 resolution and that said resolution has not yet attained finality. 6. Petitioner is no longer a minor pursuant to R.A. 6809.
Furthermore, Judge Ocampo called the Court's attention to the fact that The Solicitor General, meanwhile, in its comment to petitioner's urgent
petitioner has been arraigned on October 14, 1997 and waived his right to motion for release, modified its stance regarding the validity of petitioner's
preliminary investigation. 6 detention. 10 It stated:

On November 3, 1997, petitioner filed with this Court an urgent motion Considering that petitioner was arraigned (a supervening event after the
praying, among others, that Judge Ocampo be directed to order petitioner's filing of the petition and before the issuance of the TRO), petitioner should
immediate release upon receipt of our October 27 resolution. 7 be kept in detention without prejudice to his right to preliminary
investigation. 11
Judge Ocampo filed with this Court a letter-complaint dated November 3,
1997 alleging that petitioner's counsels, Attorneys Raymundo A. Armovit, Petitioner also filed on November 17, 1997 an urgent motion to transfer the
Ramon R. Teleron and Bernardito Florido, deliberately withheld from this venue of the preliminary investigation from Cebu City to Manila and to
Court the omnibus order, supplemental order and order of arraignment, all replace the Office of the City Prosecutor of Cebu with the Office of the State
issued by him on October 14, 1997 in connection with Crim. Case No. CBU- Prosecutor, Department of Justice, as the authority to conduct the
45303 and 45304. Judge Ocampo alleged that by withholding said orders, preliminary investigation because of the extensive coverage of the
petitioner's counsels unwittingly misled the Court in its October 27 proceedings by the Cebu media which allegedly influenced the people's
resolution. 8 perception of petitioner's character and guilt. 12

On November 17, 1997, the counsels for the prosecution in Crim. Case No. The primary issues to be resolved are: (1 ) whether petitioner is entitled to
CBU-45303 and 45304 filed a motion for reconsideration of our October 27 a regular preliminary investigation, and (2) whether petitioner should be
resolution. 9 They raised the following arguments: released from detention pending the investigation.

1. Petitioner is charged with a continuing offense; hence, his arrest and We resolve the first issue in the affirmative.
detention about two months after the abduction of the victims was lawful;
The prosecutors argue that petitioner is entitled only to an inquest
2. Since petitioner was arrested without a warrant, his case comes within investigation under Section 7 of Rule 112 since he was lawfully arrested
the purview of Section 7 of Rule 112, not under Section 3 thereof; without a warrant under Section 5, Rule 113 of the Revised Rules of Court.

3. The filing of the informations in court and the issuance of the The prosecutors' argument is benefit of merit. Section 7 of Rule 112 13
corresponding warrants of arrest by Executive Judge Priscila S. Agana cured applies only to persons lawfully arrested without a warrant. Petitioner in this
whatever defect there was in petitioner's arrest and detention; case was, in the first place, not arrested either by a peace officer or a private
person. The facts show that on September 15, 1997, some members of the
Philippine National Police Criminal Investigation Group (PNP CIG) went to
the Center for Culinary Arts in Quezon City to arrest petitioner, albeit
without warrant. Petitioner resisted the arrest and immediately phoned his (c) When the person to be arrested is a prisoner who has escaped from a
sister and brother-in-law. Petitioner's sister sought the aid of Atty. penal establishment or place where he is serving final judgment or
Raymundo A.. Armovit. Atty. Armovit, over the phone, dissuaded the police temporarily confined while his case is pending, or has escaped while being
officers from carrying out the warrantless arrest and proposed to meet with transferred from one confinement to another.
them at the CIG headquarters in Camp Crame, Quezon City. The police
officers yielded and returned to the CIG headquarters. Petitioner, together In cases falling under paragraphs (a) and (b) hereof, the person arrested
with his sister and brother-in-law also went to the CIG headquarters aboard without a warrant shall be forthwith delivered to the nearest police station
their own vehicle. Atty. Armovit questioned the legality of the warrantless or jail, and he shall be proceeded against in accordance with Rule 112,
arrest before CIG Legal Officer Ruben Zacarias. After consulting with his Section 7.
superiors, Legal Officer Zacarias ordered to stop the arrest and allowed
petitioner to go home. Atty. Armovit made an undertaking in writing that he It does not appear in the case at bar that petitioner has just committed, is
and petitioner would appear before the Cebu City Prosecutor on September actually committing or is attempting to commit an offense when the police
17, 1997 for preliminary investigation. officers tried to arrest him on September 15, 1997. In fact, petitioner was
attending classes at the Center for Culinary Arts at that time.
An arrest is defined as the taking of a person into custody in order that he
may be bound to answer for the commission of an offense. 14 It is made by We reject the prosecutors' argument that petitioner was actually
an actual restraint of the person to be arrested, or by his submission to the committing a crime at the time of the arrest since kidnapping with serious
custody of the person making the arrest. 15 An arrest signifies restraint on illegal detention is a continuing crime. In the case of Parulan v. Director of
person, depriving one of his own will and liberty, binding him to become Prisons 17 cited by the prosecutors, kidnapping with illegal detention is
obedient to the will of the law. 16 The foregoing facts show no restraint considered a continuing crime where the deprivation of liberty is persistent
upon the person of petitioner. Neither do they show that petitioner was and continuing from one place to another. The facts show that the alleged
deprived of his own will and liberty. Hence, Section 7 of Rule 112 does not kidnapping was committed on July 16, 1997. One of the victims, Marijoy
apply to petitioner. Chiong, was found dead in Sitio Tanawan, Barangay Guadalupe, Carcar,
Cebu on July 18, 1997, while the other victim, Jacqueline Chiong, remains
To be sure, even if petitioner were arrested by the PNP CIG personnel, such missing to date. There is no showing that at the time of the arrest on
arrest would still be illegal because of the absence of a warrant. Section 5 of September 15, 1997, Jacqueline Chiong was being detained by petitioner
Rule 113 states when a warrantless arrest is deemed lawful, thus: who was then residing in Quezon City. Hence, petitioner may not be
considered as continually committing the crime of kidnapping with serious
Sec. 5. Arrest without a warrant; when lawful. - A peace officer or a private illegal detention at the time of the arrest.
person may, without a warrant, arrest a person:
Judge Martin Ocampo of RTC Branch 7, Cebu City, and the state prosecutors
(a) When, in his presence, the person to be arrested has committed, is assert that petitioner is no longer entitled to a preliminary investigation
actually committing, or is attempting to commit an offense; because he had previously waived his right to such investigation. In his
omnibus order dated October 14, 1997, Judge Ocampo held that petitioner
(b) When an offense has in fact just been committed, and he has personal waived his right to preliminary investigation when he failed to appear during
knowledge of facts indicating that the person to be arrested has committed the preliminary investigation set by the City Prosecutor in the afternoon of
it; and September 17, 1997, despite the express warning that "failure of the counsel
(to present the petitioner to the Cebu City Prosecutor on said time and date) arraignment because there was a pending case in this Court regarding his
would be treated as a waiver of his client's right to preliminary right to avail of a regular preliminary investigation. 19 Clearly, the acts of
investigation." petitioner and his counsel are inconsistent with a waiver. Preliminary
investigation is part of procedural due process. It cannot be waived unless
We disagree. A waiver, whether express or implied, must be made in clear the waiver appears to be clear and informed.
and unequivocal manner. Mere failure of petitioner and his counsel to
appear before the City Prosecutor in the afternoon of September 17, 1997 The next question is whether petitioner should be released from detention
cannot be construed as a waiver of his right to preliminary investigation, pending the investigation.
considering that petitioner has been vigorously invoking his right to a regular
preliminary investigation since the start of the proceedings before the City We rule in the negative.
Prosecutor. At 9:00 in the morning of September 17, 1997, petitioner's
counsel appeared before the City Prosecutor of Cebu and moved that The records show that on September 17, 1997, two informations were filed
petitioner be accorded a regular preliminary investigation. The City against petitioner for kidnapping and serious illegal detention. 20 Executive
Prosecutor, however, denied the motion, stating that petitioner is entitled Judge Priscila Agana issued a warrant of arrest on September 19, 1997. 21
only to an inquest investigation. Petitioner orally moved for a Petitioner was arrested on September 22, 1997 by virtue of said warrant.
reconsideration, to no avail. Petitioner assailed the decision of the City We held in Sanchez v. Demetriou 22 that the filing of charges and the
Prosecutor before the Court of Appeals on a petition for certiorari, issuance of the warrant of arrest against a person invalidly detained will cure
prohibition and mandamus. After the Court of Appeals dismissed said the defect of that detention or at least deny him the right to be released
petition, petitioner went to this Court, still asserting that he should be because of such defect. The Court ruled:
accorded a regular preliminary investigation.
The original warrantless arrest of the petitioner was doubtless illegal.
Furthermore, petitioner and his counsel cannot be faulted for their refusal Nevertheless, the Regional Trial Court lawfully acquired jurisdiction over the
to comply with the City Prosecutor's directive to appear before him in the person of the petitioner by virtue of the warrant of arrest it issued on August
afternoon of September 17, 1997 for preliminary investigation. As stated 26, 1993 against him and the other accused in connection with the rape-slay
above, petitioner's counsel appeared before the City Prosecutor earlier that cases. It was belated, to be sure, but it was nonetheless legal.
day and specifically demanded a regular preliminary investigation for his
client. The City Prosecutor, however, insisted that petitioner was entitled Even on the assumption that no warrant was issued at all, we find that the
only to an inquest investigation which he scheduled in the afternoon of the trial court still lawfully acquired jurisdiction over the person of the
same day. Petitioner and his counsel refused to submit to such investigation petitioner. The rule is that if the accused objects to the jurisdiction of the
as it might be construed as a waiver of petitioner's right to a regular court over his person, he may move to quash the information, but only on
preliminary investigation. that ground. If, as in this case, the accused raises other grounds in the
motion to quash, he is deemed to have waived that objection and to have
Our ruling is not altered by the fact that petitioner has been arraigned on submitted his person to the jurisdiction of the court.
October 14, 1997. The rule is that the right to preliminary investigation is
waived when the accused fails to invoke it before or at the time of entering The Court notes that on August 13, 1993, after the petitioner was unlawfully
a plea at arraignment. 18 Petitioner, in this case, has been actively and arrested, Judge Lanzanas issued a warrant of arrest against Antonio L.
consistently demanding a regular preliminary investigation even before he Sanchez in connection with Criminal Cases Nos. 93-124634 to 93-124637 for
was charged in court. Also, petitioner refused to enter a plea during the violation of R.A. No. 6713. Pending the issuance of the warrant of arrest for
the rape-slay cases, this first warrant served as the initial justification for his We hold, therefore, that petitioner's detention at the Bagong Buhay
detention. Rehabilitation Center is legal in view of the information and the warrant of
arrest against him. The absence of a preliminary investigation will not justify
The Court also adverts to its uniform ruling that the filing of charges, and the petitioner's release because such defect did not nullify the information and
issuance of the corresponding warrant of arrest, against a person invalidly the warrant of arrest against him. 24 We ruled in Sanciangco, Jr. v. People:
detained will cure the defect of that detention or at least deny him the right 25
to be released because of such defect. Applicable by analogy to the case at
bar is Rule 102 Section 4 of the Rules of Court that: The absence of preliminary investigations does not affect the court's
jurisdiction over the case. Nor do they impair the validity of the information
"Sec. 4. When writ is not allowed or discharge authorized. - If it appears that or otherwise render it defective; but, if there were no preliminary
the person alleged to be restrained of his liberty is in the custody of an investigation and the defendants, before entering their plea, invite the
officer under process issued by a court or judge or by virtue of a judgment attention of the court to their absence, the court, instead of dismissing the
or order of a court of record, and that the court or judge had jurisdiction to information, should conduct it or remand the case to the inferior court so
issue the process, render the judgment, or make the order, the writ shall not that the preliminary investigation may be conducted. 26
be allowed; or if the jurisdiction appears after the writ is allowed, the person
shall not be discharged by reason of any informality or defect in the process, As regards petitioner's motion to change the venue and the authority to
judgment, or order. Nor shall anything in this rule be held to authorize the conduct the preliminary investigation, we are constrained to dismiss the
discharge of a person charged with or convicted of an offense in the same for lack of jurisdiction. The holding of a preliminary investigation is a
Philippines or of a person suffering imprisonment under lawful judgment. function of the Executive Department and not of the Judiciary. 27 Petitioner
should therefore address their plea to the Department of Justice that has
In one case, the petitioner sued on habeas corpus on the ground that she control and supervision over the conduct of preliminary investigations.
had been arrested by virtue of a John Doe warrant. In their return, the
respondents declared that a new warrant specifically naming her had been Nonetheless, even if the Court had jurisdiction over the issue, petitioner's
issued, thus validating her detention. While frowning at the tactics of the motion should still be denied because it failed to allege and prove that the
respondents, the Court said: City Prosecutor of Cebu has been actually affected by the publicity. We held
in Webb v. De Leon: 28
The case has, indeed, become moot and academic inasmuch as the new
warrant of arrest complies with the requirements of the Constitution and Be that as it may, we recognize that pervasive and prejudicial publicity under
the Rules of Court regarding the particular description of the person to be certain circumstances can deprive an accused of his due process right to fair
arrested. While the first warrant was unquestionably void, being a general trial. Thus, in Martelino, et al. vs. Alejandro, et al., we held that to warrant a
warrant, release of the petitioner for that reason will be a futile act as it will finding of prejudicial publicity there must be allegation and proof that the
be followed by her immediate re-arrest pursuant to the new and valid judges have been unduly influenced, not simply that they might be, by the
warrant, returning her to the same prison she will just have left. This Court barrage in publicity. In the case at bar, we find nothing in the records that
will not participate in such a meaningless charade. will prove that the tone and content of the publicity that attended the
investigation of petitioners fatally infected the fairness and impartiality of
The same doctrine has been consistently followed by the Court more the DOJ Panel. Petitioners cannot just rely on the subliminal effects of
recently in the Umil case. 23 (citations omitted) publicity on the sense of fairness of the DOJ Panel, for these are basically
unbeknown and beyond knowing. To be sure, the DOJ Panel is composed of
an Assistant Chief State Prosecutor and Senior State Prosecutors. Their long system are mounting and Mark Twain's wit and wisdom put them all in
experience in criminal investigation is a factor to consider in determining better perspective when he observed: "When a gentleman of high social
whether they can easily be blinded by the klieg lights of publicity. Indeed, standing, intelligence, and probity swears that testimony given under the
their 26-page Resolution carries no indubitable indicia of bias for it does not same oath will outweigh with him, street talk and newspaper reports based
appear that they considered any extra-record evidence except evidence upon mere hearsay, he is worth a hundred jurymen who will swear to their
properly adduced by the parties. The length of time the investigation was own ignorance and stupidity . . . . Why could not the jury law be so altered
conducted despite its summary nature and the generosity with which they as to give men of brains and honesty an equal chance with fools and
accommodated the discovery motions of petitioners speak well of their miscreants?" Our judges are learned in the law and trained to disregard off-
fairness. At no instance, we note, did petitioners seek the disqualification of court evidence and on-camera performances of parties to a litigation. Their
any member of the DOJ Panel on the ground of bias resulting from their mere exposure to publications and publicity stunts does not per se fatally
bombardment of prejudicial publicity. 29 infect their impartiality.

We further held in People v. Teehankee: 30 At best, appellant can only conjure possibility of prejudice on the part of the
trial judge due to the barrage of publicity that characterized the
We cannot sustain appellant's claim that he was denied the right to impartial investigation and trial of the case. In Martelino, et al. v. Alejandro, et al., we
trial due to prejudicial publicity. It is true that the print and broadcast media rejected this standard of possibility of prejudice and adopted the test of
gave the case at bar pervasive publicity, just like all high profile and high actual prejudice as we ruled that to warrant a finding of prejudicial publicity,
stake criminal trials. Then and now, we rule that the right of an accused to a there must be allegation and proof that the judges have been unduly
fair trial is not incompatible to a free press. To be sure, responsible reporting influenced, not simply that they might be, by the barrage of publicity. In the
enhances an accused's right to a fair trial for, as well pointed out, "a case at bar, the records do not show that the trial judge developed actual
responsible press has always been regarded as the handmaiden of effective bias against appellant as a consequence of the extensive media coverage of
judicial administration, especially in the criminal field . . . The press does not the pre-trial and trial of his case. The totality of circumstances of the case
simply publish information about trials but guards against the miscarriage of does not prove this actual bias and he has not discharged the burden. 31
justice by subjecting the police, prosecutors, and judicial processes to
extensive public scrutiny and criticism. We likewise dismiss the complaint filed by Judge Martin A Ocampo against
Attorneys Raymundo A. Armovit, Ramon R. Teleron and Bernardito Florido
Pervasive publicity is not per se prejudicial to the right of an accused to fair for lack of concrete evidence to prove that said lawyers deliberately
trial. The mere fact that the trial of the appellant was given a day-to-day, withheld from the Court the orders he issued with intent to mislead the
gavel-to-gavel coverage does not by itself prove that the publicity so Court.
permeated the mind of the trial judge and impaired his impartiality. For one,
it is impossible to seal the minds of members of the bench from pre-trial and Finally, we also deny the motion of the prosecutors to dismiss the petition
other off-court publicity of sensational criminal cases. The state of the art of on the ground that it was not filed by the proper party. The prosecutors
our communication system brings news as they happen straight to our argue that petitioner Francisco Juan Larranaga is no longer a minor under
breakfast tables and to our bedrooms. These news form part of our everyday R.A. 6809, thus, his mother, Margarita G. Larranaga, does not have the
menu of the facts and fictions of life. For another, our idea of a fair and authority to file the instant petition as his representative. It appears,
impartial judge is not that of a hermit who is out of touch with the world. however, that on October 6, 1997, petitioner's mother filed a supplemental
We have not installed the jury system whose members are overly protected petition for habeas corpus on his behalf. This converted the petition at bar
from publicity lest they lose their impartiality. Criticisms against the jury to one for habeas corpus. Section 3, Rule 102 of the Revised Rules of Court
states that a petition for habeas corpus may be filed either by the party for
whose relief it is intended or by some person on his behalf.

IN VIEW WHEREOF, we resolve to: (1) REITERATE our order to the Office of
the City Prosecutor of Cebu to conduct a regular preliminary investigation of
petitioner and to the Presiding Judge of RTC, Branch 7, Cebu City to cease
and desist from proceeding with the trial of petitioner until a preliminary
investigation shall have been conducted; (2) SET ASIDE our order to
immediately release petitioner pending the preliminary investigation and
thus DENY petitioner's urgent motion to implement petitioner's release; (3)
DISMISS Judge Ocampo's complaint against Attorneys Raymundo A.
Armovit, Ramon R. Teleron and Bernardito Florido; and (4) DENY petitioner's
motion to change the venue and the authority to conduct the preliminary


Regalado, Melo, Mendoza and Martinez , JJ ., concur.

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