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Edmundo Alberto and Bonifacio Intia v Hon. Rafael De La Cruz and Eligio
GR No. L-31839, 30 June 1980

Nature: Petition for certiorari with a prayer for the issuance of a writ of
preliminary injunction, to annul and set aside the order of the respondent judge
Ponente: Concepcion Jr., J.
Orbita, a provincial guard, is prosecuted for the crime of Infidelity in the
Custody of Prisoner, defined under Art 224 of the Revised Penal Code. A note
used as evidence in the trial purportedly written by Gov Cledera asking the
witness to send five men to work in the construction of a fence at his house.
Believing that the escape of Pablo Denaque was made possible by the
nore of Gov. Cledera to Esmeralda and that Cledera and Esmeralda are equally
guilty of the offense for which accused had been charged, defense counsel filed a
motion seeking amendment of the information to include Gov Cledera and
Esmeralda as defendants.

Whether or not the court erred in including the two additional defendants
to the information.


The offense against Article 156 of the Revised Penal Code on delivering
prisoners from jails may be committed in two ways: (1) by removing a person
confined in any jail or penal establishment, and (2) by helping such a person to
The offense under this article is usually committed by an outsider who
removes from jail any person therein confined or helps him escape. If the
offender is a public officer who has custody or charge of the prisoner, he is liable
for infidelity in the custody of prisoner defined and penalized under Art 223.
In order to be guilty under provision 223, it is necessary that the public
officer had consented to, or connived in, the escape of the prisoner under his
custody or charge.
In the case at bar, Gov Cledera, as governor, and Esmeralda, as assistant
provincial warden, cannot be prosecuted or the escape of Pablo Denaque under
Article 156 of the RPC. There is likewise no sufficient evidence to warrant their
prosecution under Art 223.
No connivance in the escape of Pablo Denaque from the custody of Orbita
can be deduced from the note of Gov Cledera to Esmeralda asking for five men to
work in the guest house, it appearing that the notes do not mention the names of
the prisoners to be brought to the guest house; and that it was accused Orbita
himself who picked the men to compose the work party.
Order of lower court annulled and set aside.