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Republic of the Philippines That on or about the 12th day of September.

SUPREME COURT 1968, in the barrio of Taculod, municipality of

Manila Canaman, province of Camarines Sur,
Philippines, and within the jurisdiction of this
SECOND DIVISION Honorable Court, the said accused, being then
a member of the Provincial Guard of
G.R. No. L-31839 June 30, 1980 Camarines Sur and specially charged with the
duty of keeping under custody and vigilance
EDMUNDO S. ALBERTO, Provincial Fiscal detention prisoner Pablo Denaque, did then
and BONIFACIO C. INTIA 1st Asst. and there with great carelessness and
Provincial Fiscal, both of Camarines unjustifiable negligence leave the latter
Sur, petitioners, unguarded while in said barrio, thereby giving
vs. him the opportunity to run away and escape,
HON. RAFAEL DE LA CRUZ, in his capacity as in fact said detention prisoner Pablo
as Judge of the CFI of Camarines Sur and Denaque did run away and escape from the
ELIGIO ORBITA,respondents. custody of the said accused. 1

In the course of the trial thereof, or more

particularly during the cross-examination of
CONCEPCION, J.: prosecution witness Jose Esmeralda, assistant
provincial warden of Camarines Sur, the
Petition for certiorari, with a prayer for the defense brought forht and confronted the
issuance of a writ of preliminay injunction, to witness with a note, marked as exhibit,
annul and set aside the order of the purportedly written by Gov. Armando Cledera,
respondent Judge, dated January 26, 1970, asking Jose Esmeralda to send five men to
directing the petitioners, Provincial Fiscal and work in the construction of a fence at his
Assitant Provincial Fiscal of Camarines Sur, to house at Taculod, Canaman, Camarines Sur,
amend the information filed in Criminal Case then leased by the province and used as an
No. 9414 of the Court of First Instance of official guest house. Jose Esmeralda,
CamarinesSur, entitled: "The People of the declared, however, that he could not
Philippines, plaintiff, versus Eligio Orbita, remember who ahnded the note for him; that
accused," so as to include, as defendants, he was not sure as to genuineness of the
Governor Armando Cledera and Jose signature appearing therein and that he was
Esmeralda, assistant provincial warden of not preszent when the note was made and
Camarines Sur; as well as the order dated signed by Gov. Cledera. 2 Beleiving that the
February 18, 1970, denying the motion for the escape of Pablo Denaque was made possible
reconsideration of the said order. by the note of Gov. Cledera to Jose
Esmeralda and that Cledera and Esmeralda
In Criminal Case No. 9414 of the Court of First are equally guilty of the offense for which tha
Instance of Camarines Sur, Eligio Orbita, a accused Eligio Orbita had been charged, the
Provincial guard, is prosecuted for the crime of defense cousel filed a motion in court seeking
Infedelity in the Custody of Prisoner, defined the amendment of the information so as to
and punished under Article 224 of the Revised
Penal Code, committed, as follows:
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include Gov. cledera and Jose Esmeralda as of ordering the Fiscal to reinvestigate this
defendants therein. 3 case, on the basis of the evidence already
adduce during the trial of this case, he be
Acting upon said motion, as well as the ordered to amend the information on to include
opposition of the prosecution officers 4 and Cledera and Esmeralda it appearing the on
finding that "the court cannot grant the motion record that their inclusion is warranted. 8
or order the inclusion of Gov. Cledera and Lt.
Esmeralda at this stage unless an On January 26, 1970, the respondent Court
investigation is made," the respondent Judge issued the order complained of, the dispositive
directed the Fiscals office, within 15 days from portion of which reads, as follows:
date, to cause the further investigation of the
case, taking into consideration the provisions WHEREFORE, premises considered, in the
of Article 156 in relation to Articles 223 and light of the facts brought about by the
224 of the Revised Penal Code in order to prosecuting fiscal let the charges be so
determine once and for all whether the amended by including in the information the
Governor as jailer of the Province and his author or writer of Exhibit 2 and the person or
assistant have any criminatory participation in persons who carried out the said orders
the circumstances of Pablo Denaque's escape considering the provisions of Article 156 in
from judicial custody. 5 relation to Articles 223 and 224 of the Penal
Code. 9
In compliance with said order, the Fiscal set
the reinvestigation of the case for December The Fiscal filed a motion for the
19, 1969. Summonses were issued to Gov. reconsideration of said order, 10 but the motion
Cledera Jose Esmeralda, Lorenzo Padua, the was denied on February 18, 1970. 11Hence,
provincial warden, and the accused Eligio the instant recourse.
Orbita to be present thereat. 6 Dr. went thereat
But, on the date set for the reinvestigation of From the facts of the case, We are convinced
the case, only Gov. Cledera Jose Esmeralda that the respondent Judge committed an error
and Lorenzo Padua appeared. The accused in ordering the fiscal to amend the information
Eligio Orbita did not appear. Neither was the so as to include Armando Cledera and Jose
note (Exhibit 2) produced. Since no additional Esmeralda as defendants in Criminal Case
evidence was presented, the Fiscal No. 9414 of the Court of First Instance of
manifested in Court on January 2, 1970 that Camarines Sur. It is the rule that a fiscal by the
"after conducting a reinvestigation of the case nature of his office, is under no compulsion to
and after a thorough and intelligent analysis of file a particular criminal information where he
the facts and law involved, no prima facie case is not convinced that he has evidence to
against Governor Cledera and Jose support the allegations thereof. 12 Although this
Esmeralda exist, hence, they cannot be power and prerogative of the Fiscal, to
charged. 7 determine whether or not the evidence at hand
is sufficient to form a reasonable belief that a
On January 19, 1970, the accused Eligio person committed an offense, is not absolute
Orbita filed a "Motion for Reconsideration" and subject to judicial review, 13 it would be
praying "that the Order of this Honorable Court embarrassing for the prosecuting attorney to
dated December 11, 1969 be, in that instead be compelled to prosecute a case when he is
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in no position to do so because in his opinion, 2. The Governor's evidence at
he does not have the necessary evidence to that time is being rented by the
secure a conviction, or he is not convinced of province and its maintenance and
the merits of the case. The better procedure upkeep is shouldered by the
would be to appeal the Fiscal's decision to the province of Camarines Sur,
Ministry of Justice and/or ask for a special
prosecutor. 3. That neither Governor Cledera
nor Lt. Jose Esmeralda was
Besides, it cannot be said that the Fiscal had charged or entrusted with the duty
capriciously and whimsically refused to of conveying and the detainee
prosecute Cledera and Esmeralda. from the jail to the residence of
the governor.
In his order directing the Fiscal's office to
conduct a further reinvestigation of the case, 4. That the de worked at the
the respondent Judge candidly ad. muted that Governor Is by virtue of an order
without a reinvestigation of the case, he of the Governor (Exhibit 2) which
cannot determine once and for all whether or was tsn by Lt. Esmeralda; and
not to include Gov. Cledera and Jose
Esmeralda in the information. Pursuant 5. That it was the accused Orbita who
himself who handpicked the group of
thereto, a reinvestigation was conducted by Prisoners to work at the Governor's on 12,
the fiscals office. Summonses were issued. 1968. 14
But, no additional fact was elicited since Eligio
Orbita did not appear thereat. Neither was the Article 156 of the Revised Penal Code
note (Exh. 2) presented and produced. Gov. provides:
Cledera could not admit nor deny the
genuineness of the signature appearing in the Art. 156. Delivering prisoners
note since it was not on hand. Such being the from jails. — The city Of arrests
case, the prosecuting officers had reason to mayor in its maximum period
refuse to amend the information filed by them to prison correccional in its
after a previous pre examination and minimum Period shall be imposed
investigation. upon any person who shall
remove from any jail or penal
Moreover, there is no sufficient evidence in the establishment t any person
record to show a prima facie case against confined therein or shall help the
Gov. Cledera and Jose Esmeralda. The order escape of such person, by means
to amend the information is based upon the of violence, intimidation, or
following facts: bribery.

1. Pablo Denaque, a detention If other means are used the

prisoner for homicide, while penalty of arresto mayor shall be
working at the Guest House of imposed. If the escape of the
Governor Cledera on September prisoner shall take place outside
12, 1968; of said establishments by taking
the guards by surprise, the same
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penalties shall be imposed in their fugitive shall have been
minimum period. sentenced by final judgment to
any penalty.
The offenders may be committed in two ways:
(1) by removing a person confined in any jail 2. By prision correccional in its
or penal establishment; and (2) by helping minimum period and temporary
such a person to escape. To remove means to special disqualification, in case
take away a person from the place of his the fugitive shall not have been
confinement, with or without the active finally convicted but only held as a
compensation of the person released To help detention prisoner for any crime
in the escape of a Person confined in any jail or violation of law or municipal
or penal institution means to furnished that ordinance.
person with the material means such as a file,
ladder, rope, etc. which greatly facilitate his In order to be guilty under the aforequoted
escape. 15 The offenders under this article is provisions of the Penal Code, it is necessary
usually committed by an outsider who that the public officer had consented to, or
removes from jail any person therein confined connived in, the escape of the prisoner under
or helps him escape. If the offender is a public his custody or charge. Connivance in the
officer who has custody or charge of the escape of a prisoner on the part of the person
prisoner, he is liable for infidelity in the custody in charge is an essential condition in the
of prisoner defined and penalty under Article commission of the crime of faithlessness in the
223 of the Revised Penal Code. Since Gov. custody of the prisoner. If the public officer
Cledera as governor, is the jailer of the charged with the duty of guarding him does
province, 16 and Jose Esmeralda is the not connive with the fugitive, then he has not
assistant provincial warden, they cannot be violated the law and is not guilty of the
prosecuted for the escape Of Pablo Denaque crime. 17 For sure no connivance in the escape
under Article 156 of the Revised Penal Code. of Pablo Denaque from the custody of the
There is likewise no sufficient evidence to accused Eligio Orbita can be deduced from
warrant their prosecution under Article 223 of the note of Gov. Cledera to Jose Esmeralda
the Revised Penal Code, which reads, as asking for five men to work in the guest house,
follows: it appearing that the notes does not mention
the names of the prisoners to be brought to
ART. 223. Conniving with or the guest house; and that it was the accused
consenting to evasion. — Any Eligio Orbita who picked the men to compose
Public officer who shall consent to the work party.
the escape of a prisoner in his
custody or charge, shall be Neither is there evidence to warrant the
punished prosecution of Cledera and Esmeralda under
Article 224 of the Revised Penal Code. This
1. By prision correccional in its article punishes the public officer in whose
medium and maximum periods custody or charge a prisoner has escaped by
and temporary disqualification in reason of his negligence resulting in evasion is
its minimum period to perpetual definite amounting to deliberate non-
special disqualification, if the
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performance of duty. 18 In the constant case, and does not have to be included in the case
the respondent Judge said: against Eligio Orbita.

We cannot, for the present be reconciled

with the Idea that the escape. of Denaque
was facilitated by the Governor's or . his
assistants negligence. According to law, if Separate Opinions
there is any negligence committed it must be
the officer who is charged with the custody AQUINO, J., concurring:
and guarding of the ... 19
I concur. Governor Armando Cledera and Jose
We find no reason to set aside such findings. Esmeralda can be indicted in court by the
fiscal not by virtue of a judicial order but only
WHEREFORE, the orders issued on January
after he has conducted the proper pre
26, and February 18, 1970 in Criminal Case
investigation in accordance with Presidential
No. 9414 of the Court of First Instance of
Decree No. 77. The case against Cledera and
Camarines Sur, entitled: "The People of the
Esmeralda, if there is a prima facie case
Philippines, plaintiff, versus Eligio
against them, can be prosecuted separately
Orbita, accused are hereby annulled and set
and does not have to be included in the case
aside. The respondent Judge or any other
against Eligio Orbita.
judge acting in his stead is directed to proceed
with the trial of the case. Without costs.


Barredo (Chairman), Abad Santos and De

Castro, * JJ., concur.

Separate Opinions

AQUINO, J., concurring:

I concur. Governor Armando Cledera and Jose

Esmeralda can be indicted in court by the
fiscal not by virtue of a judicial order but only
after he has conducted the proper pre
investigation in accordance with Presidential
Decree No. 77. The case against Cledera and
Esmeralda, if there is a prima facie case
against them, can be prosecuted separately
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