G.R. No. L-40486 August 29, 1975 PAULINO PADUA and LUCENA BEBIN PADUA, plaintiffs-appellants, vs.

GREGORIO N. ROBLES and BAY TAXI CAB, defendants-appellees. Alberto R. de Joya for plaintiffs-appellants. Cardenas & Peralta Law Office for defendants-appellees.

After the judgment in civil case 427-O became final, the Paduas sought execution thereof. This proved futile; the corresponding court officer returned the writ of execution unsatisfied. Unable to collect the amount of P27,000 awarded in their favor, the Paduas instituted action in the same court against Gregorio N. Robles to enforce the latter's subsidiary responsibility under the provisions of article 103 of the Revised Penal Code. Robles filed a motion to dismiss based on (1) bar of the cause of action by a prior judgment and (2) failure of the complaint to state a cause of action. Thereafter, the court a quo, in an order dated October 25, 1972, granted Robles' motion to dismiss on the ground that the Paduas' complaint states no cause of action. This order the Paduas questioned in the Court of Appeals which, by resolution dated March 5, 1975, certified the case to this Court for the reason that the appeal involves only questions of law. The Paduas predicate their appeal on eighteen errors allegedly committed by the court a quo. These assigned errors, however, raise only one substantial issue: whether the judgment dated October 5, 1970 in criminal case 1158-O includes a determination and adjudication of Punzalan's civil liability arising from his criminal act upon which Robles' subsidiary civil responsibility may be based. The sufficiency and efficacy of a judgment must be tested by its substance rather than its form. In construing a judgment, its legal effects including such effects that necessarily follow because of legal implications, rather than the language used govern. Also, its meaning, operation, and consequences must be ascertained like any other written instrument. Thus, a judgment rests on the intention of the court as gathered from every part thereof, including the situation to which it applies and the attendant circumstances. It would appear that a plain reading, on its face, of the judgment in criminal case 1158-O, particularly its decretal portion, easily results in the same conclusion reached by the court a quo: that the said judgment no civil liability arising from the offense charged against Punzalan. However, a careful study of the judgment in question, the situation to which it applies, and the attendant circumstances, would yield the conclusion that the court a quo, on the contrary, recognized the enforceable right of the Paduas to the civil liability arising from the offense committed by Punzalan and awarded the corresponding indemnity therefor. Civil liability coexists with criminal responsibility. In negligence cases the offended party (or his heirs) has the option between an action for enforcement of civil liability based on culpa criminal under article 100 of the Revised Penal Code and an action for recovery of damages based on culpa aquiliana under article 2177 of the Civil Code. The action for enforcement of civil liability based on culpa criminal section 1 of Rule 111 of the Rules of Court deems simultaneously instituted with the criminal action, unless expressly waived or reserved for a separate application by the offended party. Article 2177 of the Civil Code, however, precludes recovery of damages twice for the same negligent act or omission. In the case at bar, the Court finds it immaterial that the Paduas chose, in the first instance, an action for recovery of damages based on culpa aquiliana under articles 2176, 2177, and 2180 of the Civil Code, which action proved ineffectual. The Court also takes note of the absence of any inconsistency between the aforementioned action priorly availed of by the Paduas and their subsequent application for enforcement of civil liability arising from the offense committed by Punzalan and consequently, for exaction of Robles' subsidiary responsibility. Allowance of the latter application involves no violation of the proscription against double recovery of damages for the same negligent act or omission. For, as hereinbefore stated, the corresponding officer of the court a quo returned unsatisfied the writ of execution issued against Punzalan to satisfy the amount of indemnity awarded to the Paduas in civil case 427-O. Article 2177 of the Civil Code forbids actual double recovery of damages for the same negligent act or omission. Finally, the Court notes that the same judge * tried, heard, and determined both civil case 427-O and criminal

CASTRO, J.: Resolving this appeal by the spouses Paulino and Lucena Bebin Padua, we set aside the order dated October 25, 1972 of the Court of First Instance of Zambales dismissing their complaint, in civil case 1079-O, and remand this case for further proceedings. In the early morning of New Year's Day of 1969 a taxicab (bearing 1968 plate no. TX-9395 and driven by Romeo N. Punzalan but operated by the Bay Taxi Cab owned by Gregorio N. Robles) struck ten-year old Normandy Padua on the national road in barrio Barretto, Olongapo City. The impact hurled Normandy about forty meters away from the point where the taxicab struck him, as a result of which he died. Subsequently, Normandy's parents (Paulino and Lucena Bebin Padua), by complaint filed with the Court of First Instance of Zambales (civil case 427-O), sought damages from Punzalan and the Bay Taxi Cab; likewise, the city Fiscal of Olongapo, by information filed with the same court (criminal case 1158-O), charged Punzalan with homicide through reckless imprudence. On October 27, 1969 the court a quo, in civil case 427-O, adjudged for the Paduas as follows: WHEREFORE, judgment is hereby rendered ordering the defendant Romeo Punzalan to pay the plaintiffs the sums of P12,000.00 as actual damages, P5,000.00 as moral and exemplary damages, and P10,000.00 as attorney's fees; and dismissing the complaint insofar as the Bay Taxicab Company is concerned. With costs against the defendant Romeo Punzalan. (Emphasis supplied) Almost a year later, on October 5, 1970, the court a quo, in criminal case 1158-O, convicted Punzalan, as follows: WHEREFORE, the Court finds the accused Romeo Punzalan y Narciso guilty beyond reasonable doubt of the crime of homicide through reckless imprudence, as defined and penalized under Article 365 of the Revised Penal Code, attended by the mitigating circumstance of voluntary surrender, and hereby sentences him to suffer the indeterminate penalty of TWO (2) YEARS, FOUR (4) MONTHS and ONE (1) DAY of prision correccional, as minimum, to SIX (6) YEARS and ONE (1) DAY of prision mayor, as maximum, and to pay the cost. The civil liability of the accused has already been determined and assessed in Civil Case No. 427-O, entitled Paulino Padua, et al. vs. Romeo Punzalan, et al.' (Emphasis supplied)

case 115-O. Knowledge of an familiarity with all the facts and circumstances relevant and relative to the civil liability of Punzalan may thus be readily attributed to the judge when he rendered judgment in the criminal action. In view of the above considerations, it cannot reasonably be contended that the court a quo intended, in its judgment in criminal case 1158-O, to omit recognition of the right of the Paduas to the civil liability arising from the offense of which Punzalan was adjudged guilty and the corollary award of the corresponding indemnity therefor. Surely, it cannot be said that the court intended the statement in the decretal portion of the judgment in criminal case 1158-O referring to the determination and assessment of Punzalan's civil liability in civil case 427-O to be pure jargon or "gobbledygook" and to be absolutely of no meaning and effect whatever. The substance of such statement, taken in the light of the situation to which it applies and the attendant circumstances, makes unmistakably clear the intention of the court to accord affirmation to the Paduas' right to the civil liability arising from the judgment against Punzalan in criminal case 1158-O. Indeed, by including such statement in the decretal portion of the said judgment, the court intended to adopt the same adjudication and award it made in civil case 427-O as Punzalan's civil liability in criminal case 1158-O. There is indeed much to be desired in the formulation by Judge Amores of that part of the decretal portion of the judgment in criminal case 1158-O referring to the civil liability of Punzalan resulting from his criminal conviction. The judge could have been forthright and direct instead of circuitous and ambiguous. But, as we have explained, the statement on the civil liability of Punzalan must surely have a meaning and even if the statement were reasonably susceptible of two or more interpretations, that which achieves moral justice should be adopted, eschewing the other interpretations which in effect would negate moral justice. It is not amiss at this juncture to emphasize to all magistrates in all levels of the judicial hierarchy that extreme degree of care should be exercise in the formulation of the dispositive portion of a decision, because it is this portion that is to be executed once the decision becomes final. The adjudication of the rights and obligations of the parties, and the dispositions made as well as the directions and instructions given by the court in the premises in conformity with the body of the decision, must all be spelled out clearly, distinctly and unequivocally, leaving absolutely no room for dispute, debate or interpretation. We therefore hold that the Paduas' complaint in civil case 1079-O states a cause of action against Robles whose concommitant subsidiary responsibility, per the judgment in criminal case 1158-O, subsists. ACCORDINGLY, the order a quo dated October 25, 1972 dismissing the complaint in civil case 1079-O is set aside, and this case is hereby remanded to the court a quo for further proceedings conformably with this decision and with law. No pronouncement as to costs. Makalintal, C.J., Teehankee, Makasiar, Esguerra, Aquino, Concepcion Jr. and Martin, JJ., concur. Fernando, J., concurs and submits a brief opinion. Barredo, J., concurs with a separate opinion. Muoz Palma, J., took no part. Antonio, J., is on leave. Separate Opinions

FERNANDO, J., concurring: The clarity and lucidity with which Justice Castro spelled out the decisive issue and how to resolve it to achieve the desirable goal of moral justice in adjudication compels concurrence. I do so. What is more, there is to my mind a distinct advance in the juridical frontiers in the mode in which the novel question raised was settled. If the trend manifest in the view taken by the Court would thereafter be followed, then the protective ramparts the law throws ground victims of vehicular accidents, unfortunately of rather frequent occurrence here, will be further strengthened. That dissipates whatever doubts I may have originally felt in view of certain traditional procedural concepts about the correctness of the decision reached. It is true this is one of those hard cases which, if an old law is to be believed, may result in bad law. It need not be so, of course, as pointed out with great persuasiveness in the 1971 inaugural lecture at Oxford given by Professor Ronald Dworkin, the successor in the chair of jurisprudence to one of the most eminent men in the field H.L.A. Hart. 1 The more accurate way of viewing the matter is that whenever there is an apparent gap in the law and settled principles of adjudication may not clearly indicate the answer, then a judge may rely either on an argument of policy or an argument of principle, the former having kinship with the sociological school of jurisprudence and the latter with the analytical. As I hope I may be able to indicate in this brief concurrence, the decision reached by us is in consonance with either approach. With the natural law thinking manifest in the opinion of the Court, witness its stress on moral justice, I am comforted by the reflection that the procedural barrier is not insurmountable, the decision reached deriving support from the viewpoint of law as logic, justice, or social control. 1. Dworkin identifies a matter of principle from the standpoint of a right either granted or recognized by law. As was so clearly pointed out in the opinion of Justice Castro: "It would appear that a plain reading, on its face, of the judgment in criminal case 1158-O, particularly its decretal portion, easily results in the same conclusion reached by the court a quo: that the said judgment assessed no civil liability arising from the offense charged against Punzalan. However, a careful study of the judgment in question, the situation to which it applies, and the attendant circumstances, would yield the conclusion that the court a quo, on the contrary, recognized the enforceable right of the Paduas to the civil liability arising from the offense committed by Punzalan and awarded the corresponding indemnity therefor." 2 There is much to be said therefor for the view expressed therein that "it cannot reasonably be contended that the court a quo intended, in its judgment in criminal case 1158-O, to omit recognition of the right of the Paduas to the civil liability arising from the offense of which Punzalan was adjudged guilty and the corollary award of the corresponding indemnity therefor. Surely, it cannot be said that the court intended the statement in the decretal portion of the judgment in criminal case 1158-O referring to the determination and assessment of Punzalan's civil liability in civil case 427-O to be pure jargon or 'gobbledygook' and to be absolutely of no meaning and effect whatsoever. The substance of such statement, taken in the light of the situation to which it applies and the attendant circumstances, makes unmistakably clear the intention of the court to accord affirmation to the Padua's right to the civil liability arising from the judgment against Punzalan in criminal case 1158-O." 3 Whatever misgivings therefore may be felt because in the civil case No. 427-O the complaint against Bay Taxi Cab Co. is dismissed, do not suffice, to my mind, to render nugatory the admitted subsidiary liability arising from a decision in criminal case No. 1158-O which is necessarily attendant upon the conviction of the driver, Romeo N. Punzalan. Such a difficulty could have been avoided had greater care been exercised by the lower court, but precisely recourse may be had to our corrective powers to avoid a right granted in law from being rendered illusory in fact. 2. There is thus the strongest policy consideration that buttresses the conclusion reached by us. It would conduce to less respect for the law as an agency of social control if there be recognition in the codes of the right of next kin to damages arising from the tragic occurrence of young lives being snuffed out due to reckless driving on the part of what had been accurately described as dealers of death on the road and then by lack of care on the part of a judge assure that it is nothing more than a barren form of words. This is what Dean Pound referred to as law in books as distinguished from law in action. To recall an expression from Justice Jackson, it is comparable to

a munificent bequest in a pauper's will. It is less than realistic to assert that anyway the guilty driver can be made to pay. The obvious answer is:' With what?" This is not to deny that a previous judgment that certainly lends itself to ambiguity considering the facts disclosed and found by the trial court does interpose juristic difficulty to the imposition of liability on the offending taxicab company. There can be no blinking the fact though that if it did not place such vehicles on the road driven in such a reckless and culpable manner resulting in a tenyear old boy being hurled about forty meters away from the point of impact, this tragedy could have been avoided. To say now that doubts engendered by the previous ruling in the culpa aquiliana suit could nullify what the law decrees as to the subsidiary liability of the employer in the criminal case finding the accused guilty would be fraught with pernicious consequences. The party just as much responsible for the mishap, with his operation of the transportation service, would be absolved from liability. It need not be so, but certainly for entrepreneurs more enterprising than careful, not excessively concerned with the safety of the traveling public, it could be a green light for less vigilance over the conduct of their drivers. The resulting injury to public safety is not hard to imagine. Moreover, from the standpoint of the feelings of the bereaved parents, and this is just as important a policy consideration, I feel that no avenue should be left unexplored to mitigate the harshness of fate. To paraphrase Justice Malcolm, there is not enough money in the entire world to compensate the parents for the loss of their child. 4 To repeat, the decision reached has my full concurrence.

WHEREFORE, the Court finds the accused Romeo Punzalan y Narciso guilty beyond reasonable doubt of the crime of homicide through reckless imprudence, as defined and penalized under Article 365 of the Revised Penal Code, attended by the mitigating circumstance of voluntary surrender, and hereby sentences him to suffer the indeterminate penalty of TWO (2) YEARS, FOUR (4) MONTHS and ONE (1) DAY of prision correccional, as minimum, to SIX (6) YEARS and ONE (1) DAY of prision mayor, as maximum, and to pay the costs. The civil liability of the accused has already been determined and assessed in Civil Case No. 427-O, entitled 'Paulino Padua, et al. vs. Romeo Punzalan, et al. (Emphasis supplied) Succintly, the decisive issue presented to Us now is whether this judgment just transcribed imposes upon Punzalan a civil liability by adoption by reference of the civil liability already a judged in the civil case or it exonerates him from any civil liability arising from the offense of which he has been found guilty inasmuch as he was already found civilly liable in the civil case. It must be admitted in candor that both constructions are literally tenable, with the particularity, however, that the first interpretation, if adopted could not involve the assumption that the judge committed a grievous and palpable error of law whereas the second would necessarily mean that he did. It is by now settled beyond all cavil as to dispense with the citation of jurisprudence, that a negligent act such as that committed by Punzalan gives rise to at least two separate and independent kinds of liabilities, (1) the civil liability arising from crime or culpa criminal and (2) the liability arising from civil negligence or the so-called culpa aquiliana. These two concepts of fault are so distinct from each other that exoneration from one does not result in exoneration from the other. Adjectively and substantively, they can be prosecuted separately and independently of each other, although Article 2177 of the Civil Code precludes recovery of damages twice for the same negligent act or omission, which means that should there be varying amounts awarded in two separate cases, the plaintiff may recover, in effect, only the bigger amount. That is to say, if the plaintiff has already been ordered paid an amount in one case and in the other case the amount adjudged is bigger, he shall be entitled in the second case only to the excess over the one fixed in the first case, but if he has already been paid a bigger amount in the first case, he may not recover anymore in the second case. Thus, in the case at bar, inasmuch as Punzalan had already been sentenced to pay the herein petitioners the amounts above-stated, in the subsequent criminal case, he could not be adjudged to pay a higher amount. Now, under Article 100 of the Revised Penal Code, a person criminally liable is also civilly liable, hence, the judgment in the criminal case is supposed to include the imposition of civil liability, unless the basis therefor has been shown not to exist, which is not the case here. And since the judgment in question says that "the civil liability of the accused has already been determined and assessed in Civil Case No. 427-O entitled Paulino Padua et al. vs. Romeo Punzalan et al.," it is but logical to conclude that the meaning of such statement is that the same amounts of damages fixed in the previous case were being awarded to the offended party in the criminal case. Otherwise, We would have to indulge in the assumption that Judge Amores committed the grievous and palpable error of law of exonerating Punzalan of all civil liabilities in the criminal case just because he had already been sentenced to pay damages in the civil case. I am not ready to accept such assumption. The law and jurisprudence on the matter are so clear and well-settled that I refuse to believe that a judge of the experience of Judge Amores would not be cognizant thereof. Besides, Judge Amores knew or ought to have known that having absolved herein respondent in the civil case, the only possible recourse has left to petitioners to recover from said respondent damages for the death of their child caused by the indisputable negligence of his employee Punzalan is in the form of the subsidiary liability of the employer under the Penal Code. Indeed, I cannot believe that Judge Amores intended to allow respondent to escape liability altogether, it being evident under the circumstances which he himself has found in both cases, civil and criminal, that Punzalan, their employee, had cause the death of the ten-year-old child of petitioners thru reckless imprudence and that in such a situation in the law exacts liability from both the employee and the employer. What is more, I consider it but equitable to hold that the rather equivocal phraseology of the decision of Judge Amores should be read in the sense it was understood by the petitioners, who in the faith and reliance that the law had been complied with by

BARREDO, J., concurring: On strictly legal considerations, it would seem possible to dismiss the petition for review in this case. But there are certain considerations of equity and substantial justice obviously underlying the cause of petitioners which I find difficult to ignore. It would be unfair and unjust to deprive said petitioners of their right to damages for the death of their child unquestionably caused by the fault of respondent's employee merely because the dispositive portion of the decision of Judge Amores in the criminal case appears to be rather equivocal on its face as to respondent's liability therefor, albeit under the incontrovertible facts extant in the record such liability is indisputable in law and the language of Judge Amores' judgment does not anyway exonerate either respondent's driver or private respondent, and what is more, does not exclude the idea that, as explained in the able main opinion of Mr. Justice Castro, the judge intended to merely adopt and incorporate in said judgment the assessment of amount of damages which said judge himself had already made in the civil case he had previously decided. It is on these fundamental considerations that I base my concurrence in the judgment in this case. As I have already indicated, from the standpoint of strict adjective law, the petition should be dismissed because in truth, there is yet no showing that any attempt has been made by petitioners to have the judgment in the criminal cases, assuming it includes an imposition of civil liability upon the accused driver, Romeo N. Punzalan, executed. What appears in the record is that it was the writ of execution issued against said Punzalan in the previous civil case that was returned unsatisfied. Of course, this point is highly technical, because all that has to be done is for petitioners to have another execution in the criminal case, which it can even now be forseen will have exactly the same result. I am therefore agreeable as a matter of equity that the Court hold that for all legal intents and purposes, We may consider the return of insolvency of Punzalan in the civil case as in effect the return in the criminal case, since equity considers as done what ought to have been done when otherwise injustice would result. And so, the paramount question arises, was there any civil liability to impose in the criminal judgment of Judge Amores? As related in the main opinion, the judgment of October 27, 1969 in the civil case ordered Punzalan "to pay plaintiffs (herein petitioners) the sums of P12,000.00 as actual damages P5,000.00 as moral and exemplary damages, and P10,000.00 as attorney's fees," although absolving at the same time the herein private respondent, and then, on October 5, 1970, the judgment in the criminal case was as follows:

Judge Amores and that he had accordingly awarded them in the criminal case the civil liability that by law goes with it, did not anymore move for clarification or reconsideration nor appeal from said decision. My understanding is that the filing of the subject civil action by petitioners proceeded from that assumption, namely, that Punzalan has been found civilly liable for the same amounts adjudged in the civil case and, therefore, respondent is subsidiarily liable therefor in the face of Punzalan's insolvency. Accordingly, I concur in that the order of dismissal of respondent judge should be set aside and that petitioners' action should be tried on the merits. G.R. No. L-770 April 27, 1948

In his argument petitioner contends that it was error on the part of the commission to allow the substitution of the legal representative of the estate of Pedro O. Fragante for the latter as party applicant in the case then pending before the commission, and in subsequently granting to said estate the certificate applied for, which is said to be in contravention of law. If Pedro O. Fragante had not died, there can be no question that he would have had the right to prosecute his application before the commission to its final conclusion. No one would have denied him that right. As declared by the commission in its decision, he had invested in the ice plant in question P 35,000, and from what the commission said regarding his other properties and business, he would certainly have been financially able to maintain and operate said plant had he not died. His transportation business alone was netting him about P1,440 a month. He was a Filipino citizen and continued to be such till his demise. The commission declared in its decision, in view of the evidence before it, that his estate was financially able to maintain and operate the ice plant. The aforesaid right of Pedro O. Fragante to prosecute said application to its conclusion was one which by its nature did not lapse through his death. Hence, it constitutes a part of the assets of his estate, for which a right was property despite the possibility that in the end the commission might have denied application, although under the facts of the case, the commission granted the application in view of the financial ability of the estate to maintain and operate the ice plant. Petitioner, in his memorandum of March 19, 1947, admits (page 3) that the certificate of public convenience once granted "as a rule, should descend to his estate as an asset". Such certificate would certainly be property, and the right to acquire such a certificate, by complying with the requisites of the law, belonged to the decedent in his lifetime, and survived to his estate and judicial administrator after his death. If Pedro O. Fragrante had in his lifetime secured an option to buy a piece of land and during the life of the option he died, if the option had been given him in the ordinary course of business and not out of special consideration for his person, there would be no doubt that said option and the right to exercise it would have survived to his estate and legal representatives. In such a case there would also be the possibility of failure to acquire the property should he or his estate or legal representative fail to comply with the conditions of the option. In the case at bar Pedro O. Fragrante's undoubted right to apply for and acquire the desired certificate of public convenience the evidence established that the public needed the ice plant was under the law conditioned only upon the requisite citizenship and economic ability to maintain and operate the service. Of course, such right to acquire or obtain such certificate of public convenience was subject to failure to secure its objective through nonfulfillment of the legal conditions, but the situation here is no different from the legal standpoint from that of the option in the illustration just given. Rule 88, section 2, provides that the executor or administrator may bring or defend actions, among other cases, for the protection of the property or rights of the deceased which survive, and it says that such actions may be brought or defended "in the right of the deceased". Rule 82, section 1, paragraph (a), mentions among the duties of the executor or administrator, the making of an inventory of all goods, chattels, rights, credits, and estate of the deceased which shall come to his possession or knowledge, or to the possession of any other person for him. In his commentaries on the Rules of Court (Volume II, 2nd ed., pages 366, 367) the present chief Justice of this Court draws the following conclusion from the decisions cited by him: Therefore, unless otherwise expressly provided by law, any action affecting the property or rights (emphasis supplied) of a deceased person which may be brought by or against him if he were alive, may likewise be instituted and prosecuted by or against the administrator, unless the action is for recovery of money, debt or interest thereon, or unless, by its very nature, it cannot survive, because death extinguishes the right . . . . It is true that a proceeding upon the application for a certificate of public convenience before the Public Service Commission is not an "action". But the foregoing provisions and citations go to

ANGEL T. LIMJOCO, petitioner, vs. INTESTATE ESTATE OF PEDRO O. FRAGRANTE, deceased, respondent. Angel Limjoco, Jr. and Delfin L. Gonzales for petitioner. Bienvenido A. Tan for respondent. HILADO, J.: Under date of May 21, 1946, the Public Service Commission, through Deputy Commissioner Fidel Ibaez, rendered its decision in case No. 4572 of Pedro O. Fragante, as applicant for a certificate of public convenience to install, maintain and operate an ice plant in San Juan, Rizal, whereby said commission held that the evidence therein showed that the public interest and convenience will be promoted in a proper and suitable manner "by authorizing the operation and maintenance of another ice plant of two and one-half (2-) tons in the municipality of San Juan; that the original applicant Pedro O. Fragante was a Filipino Citizen at the time of his death; and that his intestate estate is financially capable of maintaining the proposed service". The commission, therefore, overruled the opposition filed in the case and ordered "that under the provisions of section 15 of Commonwealth Act No. 146, as amended a certificate of public convenience be issued to the Intestate Estate of the deceased Pedro Fragante, authorizing said Intestate Estate through its Special or Judicial Administrator, appointed by the proper court of competent jurisdiction, to maintain and operate an ice plant with a daily productive capacity of two and one-half (2-1/2) tons in the Municipality of San Juan and to sell the ice produced from said plant in the said Municipality of San Juan and in the Municipality of Mandaluyong, Rizal, and in Quezon City", subject to the conditions therein set forth in detail (petitioner's brief, pp. 33-34). Petitioner makes four assignments of error in his brief as follows: 1. The decision of the Public Service Commission is not in accordance with law. 2. The decision of the Public Service Commission is not reasonably supported by evidence. 3. The Public Service Commission erred in not giving petitioner and the Ice and Cold Storage Industries of the Philippines, Inc., as existing operators, a reasonable opportunity to meet the increased demand. 4. The decision of the Public Service Commission is an unwarranted departure from its announced policy with respect to the establishment and operation of ice plant. (Pp. 1-2, petitioner's brief.)

prove that the decedent's rights which by their nature are not extinguished by death go to make up a part and parcel of the assets of his estate which, being placed under the control and management of the executor or administrator, can not be exercised but by him in representation of the estate for the benefit of the creditors, devisees or legatees, if any, and the heirs of the decedent. And if the right involved happens to consist in the prosecution of an unfinished proceeding upon an application for a certificate of public convenience of the deceased before the Public Service Commission, it is but logical that the legal representative be empowered and entitled in behalf of the estate to make the right effective in that proceeding. Manresa (Vol. III, 6th ed., p. 11) says that No. 10 of article 334 and article 336 of the Civil Code, respectively, consider as immovable and movable things rights which are not material. The same eminent commentator says in the cited volume (p. 45) that article 336 of the Civil Code has been deficiently drafted in that it is not sufficiently expressive of all incorporeal rights which are also property for juridical purposes. Corpus Juris (Vol. 50, p. 737) states that in the broad sense of the term, property includes, among other things, "an option", and "the certificate of the railroad commission permitting the operation of a bus line", and on page 748 of the same volume we read: However, these terms (real property, as estate or interest) have also been declared to include every species of title, inchoate or complete, and embrace rights which lie in contract, whether executory or executed. (Emphasis supplied.) Another important question raised by petitioner is whether the estate of Pedro O. Fragrante is a "person" within the meaning of the Public Service Act. Words and Phrases, First Series, (Vol. 6, p, 5325), states the following doctrine in the jurisdiction of the State of Indiana: As the estate of the decedent is in law regarded as a person, a forgery committed after the death of the man whose name purports to be signed to the instrument may be prosecuted as with the intent to defraud the estate. Billings vs. State, 107 Ind., 54, 55, 6 N. E. 914, 7 N. E. 763, 57 Am. Rep. 77. The Supreme Court of Indiana in the decision cited above had before it a case of forgery committed after the death of one Morgan for the purpose of defrauding his estate. The objection was urged that the information did not aver that the forgery was committed with the intent to defraud any person. The Court, per Elliott, J., disposed of this objection as follows: . . . The reason advanced in support of this proposition is that the law does not regard the estate of a decedent as a person. This intention (contention) cannot prevail. The estate of the decedent is a person in legal contemplation. "The word "person" says Mr. Abbot, "in its legal signification, is a generic term, and includes artificial as well as natural persons," 2 Abb. Dict. 271; Douglas vs. Pacific, etc. Co., 4 Cal. 304; Planters', etc., Bank vs. Andrews, 8 Port. (Ala.) 404. It said in another work that 'persons are of two kinds: natural and artificial. A natural person is a human being. Artificial persons include (1) a collection or succession of natural persons forming a corporation; (2) a collection of property to which the law attributes the capacity of having rights and duties. The latter class of artificial persons is recognized only to a limited extent in our law. "Examples are the estate of a bankrupt or deceased person." 2 Rapalje & L. Law Dict. 954. Our own cases inferentially recognize the correctness of the definition given by the authors from whom we have quoted, for they declare that it is sufficient, in pleading a claim against a decedent's estate, to designate the defendant as the estate of the deceased person, naming him. Ginn vs. Collins, 43 Ind. 271. Unless we accept this definition as correct, there would be a failure of justice in cases where, as here, the forgery is committed after the death of a person whose name is forged; and this is a

result to be avoided if it can be done consistent with principle. We perceive no difficulty in avoiding such a result; for, to our minds, it seems reasonable that the estate of a decedent should be regarded as an artificial person. It is the creation of law for the purpose of enabling a disposition of the assets to be properly made, and, although natural persons as heirs, devises, or creditors, have an interest in the property, the artificial creature is a distinct legal entity. The interest which natural persons have in it is not complete until there has been a due administration; and one who forges the name of the decedent to an instrument purporting to be a promissory note must be regarded as having intended to defraud the estate of the decedent, and not the natural persons having diverse interests in it, since ha cannot be presumed to have known who those persons were, or what was the nature of their respective interest. The fraudulent intent is against the artificial person, the estate and not the natural persons who have direct or contingent interest in it. (107 Ind. 54, 55, 6 N.E. 914-915.) In the instant case there would also be a failure of justice unless the estate of Pedro O. Fragrante is considered a "person", for quashing of the proceedings for no other reason than his death would entail prejudicial results to his investment amounting to P35,000.00 as found by the commission, not counting the expenses and disbursements which the proceeding can be presumed to have occasioned him during his lifetime, let alone those defrayed by the estate thereafter. In this jurisdiction there are ample precedents to show that the estate of a deceased person is also considered as having legal personality independent of their heirs. Among the most recent cases may be mentioned that of "Estate of Mota vs. Concepcion, 56 Phil., 712, 717, wherein the principal plaintiff was the estate of the deceased Lazaro Mota, and this Court gave judgment in favor of said estate along with the other plaintiffs in these words: . . . the judgment appealed from must be affirmed so far as it holds that defendants Concepcion and Whitaker are indebted to he plaintiffs in the amount of P245,804.69 . . . . Under the regime of the Civil Code and before the enactment of the Code of Civil Procedure, the heirs of a deceased person were considered in contemplation of law as the continuation of his personality by virtue of the provision of article 661 of the first Code that the heirs succeed to all the rights and obligations of the decedent by the mere fact of his death. It was so held by this Court in Barrios vs. Dolor, 2 Phil., 44, 46. However, after the enactment of the Code of Civil Procedure, article 661 of the Civil Code was abrogated, as held in Suiliong & Co. vs. Chio-Taysan, 12 Phil., 13, 22. In that case, as well as in many others decided by this Court after the innovations introduced by the Code of Civil Procedure in the matter of estates of deceased persons, it has been the constant doctrine that it is the estate or the mass of property, rights and assets left by the decedent, instead of the heirs directly, that becomes vested and charged with his rights and obligations which survive after his demise. The heirs were formerly considered as the continuation of the decedent's personality simply by legal fiction, for they might not have been flesh and blood the reason was one in the nature of a legal exigency derived from the principle that the heirs succeeded to the rights and obligations of the decedent. Under the present legal system, such rights and obligations as survive after death have to be exercised and fulfilled only by the estate of the deceased. And if the same legal fiction were not indulged, there would be no juridical basis for the estate, represented by the executor or administrator, to exercise those rights and to fulfill those obligations of the deceased. The reason and purpose for indulging the fiction is identical and the same in both cases. This is why according to the Supreme Court of Indiana in Billings vs. State, supra, citing 2 Rapalje & L. Dictionary, 954, among the artificial persons recognized by law figures "a collection of property to which the law attributes the capacity of having rights and duties", as for instance, the estate of a bankrupt or deceased person. Petitioner raises the decisive question of whether or not the estate of Pedro O. Fragrante can be considered a "citizen of the Philippines" within the meaning of section 16 of the Public Service Act, as amended, particularly the proviso thereof expressly and categorically limiting the power of the

commission to issue certificates of public convenience or certificates of public convenience and necessity "only to citizens of the Philippines or of the United States or to corporations, copartnerships, associations, or joint-stock companies constituted and organized under the laws of the Philippines", and the further proviso that sixty per centum of the stock or paid-up capital of such entities must belong entirely to citizens of the Philippines or of the United States. Within the Philosophy of the present legal system, the underlying reason for the legal fiction by which, for certain purposes, the estate of the deceased person is considered a "person" is the avoidance of injustice or prejudice resulting from the impossibility of exercising such legal rights and fulfilling such legal obligations of the decedent as survived after his death unless the fiction is indulged. Substantially the same reason is assigned to support the same rule in the jurisdiction of the State of Indiana, as announced in Billings vs. State, supra, when the Supreme Court of said State said: . . . It seems reasonable that the estate of a decedent should be regarded as an artificial person. it is the creation of law for the purpose of enabling a disposition of the assets to be properly made . . . . Within the framework and principles of the constitution itself, to cite just one example, under the bill of rights it seems clear that while the civil rights guaranteed therein in the majority of cases relate to natural persons, the term "person" used in section 1 (1) and (2) must be deemed to include artificial or juridical persons, for otherwise these latter would be without the constitutional guarantee against being deprived of property without due process of law, or the immunity from unreasonable searches and seizures. We take it that it was the intendment of the framers to include artificial or juridical, no less than natural, persons in these constitutional immunities and in others of similar nature. Among these artificial or juridical persons figure estates of deceased persons. Hence, we hold that within the framework of the Constitution, the estate of Pedro O. Fragrante should be considered an artificial or juridical person for the purposes of the settlement and distribution of his estate which, of course, include the exercise during the judicial administration thereof of those rights and the fulfillment of those obligations of his which survived after his death. One of those rights was the one involved in his pending application before the Public Service Commission in the instant case, consisting in the prosecution of said application to its final conclusion. As stated above, an injustice would ensue from the opposite course. How about the point of citizenship? If by legal fiction his personality is considered extended so that any debts or obligations left by, and surviving, him may be paid, and any surviving rights may be exercised for the benefit of his creditors and heirs, respectively, we find no sound and cogent reason for denying the application of the same fiction to his citizenship, and for not considering it as likewise extended for the purposes of the aforesaid unfinished proceeding before the Public Service Commission. The outcome of said proceeding, if successful, would in the end inure to the benefit of the same creditors and the heirs. Even in that event petitioner could not allege any prejudice in the legal sense, any more than he could have done if Fragrante had lived longer and obtained the desired certificate. The fiction of such extension of his citizenship is grounded upon the same principle, and motivated by the same reason, as the fiction of the extension of personality. The fiction is made necessary to avoid the injustice of subjecting his estate, creditors and heirs, solely by reason of his death to the loss of the investment amounting to P35,000, which he has already made in the ice plant, not counting the other expenses occasioned by the instant proceeding, from the Public Service Commission of this Court. We can perceive no valid reason for holding that within the intent of the constitution (Article IV), its provisions on Philippine citizenship exclude the legal principle of extension above adverted to. If for reasons already stated our law indulges the fiction of extension of personality, if for such reasons the estate of Pedro O. Fragrante should be considered an artificial or juridical person herein, we can find no justification for refusing to declare a like fiction as to the extension of his citizenship for the purposes of this proceeding.

Pedro O. Fragrante was a Filipino citizen, and as such, if he had lived, in view of the evidence of record, he would have obtained from the commission the certificate for which he was applying. The situation has suffered but one change, and that is, his death. His estate was that of a Filipino citizen. And its economic ability to appropriately and adequately operate and maintain the service of an ice plant was the same that it received from the decedent himself. In the absence of a contrary showing, which does not exist here, his heirs may be assumed to be also Filipino citizens; and if they are not, there is the simple expedient of revoking the certificate or enjoining them from inheriting it. Upon the whole, we are of the opinion that for the purposes of the prosecution of said case No. 4572 of the Public Service Commission to its final conclusion, both the personality and citizenship of Pedro O. Fragrante must be deemed extended, within the meaning and intent of the Public Service Act, as amended, in harmony with the constitution: it is so adjudged and decreed. Decision affirmed, without costs. So ordered. Moran, C.J., Pablo, Bengzon, Briones, Padilla and Tuason, JJ., concur. Paras, J., I hereby certify that Mr. Justice Feria voted with the majority.

Separate Opinions PERFECTO, J., dissenting: Commonwealth Act No. 146 reserves to Filipino citizens the right to obtain a certificate of public convenience to operate an ice plant in San Juan, Rizal. The limitation is in accordance with section 8 of Article XIV of the Constitution which provides No franchise, certificate, or any other form of authorization for the operation of a public utility shall be granted except to citizens of the Philippines or to corporations or other entities organized under the laws of the Philippines, sixty per centum of the capital of which is owned by citizens of the Philippines, nor such franchise, certificate or authorization be exclusive in character or for a longer period than fifty years. No franchise granted to any individual, firm or corporation, except under the condition that it shall be subject to amendment, alteration, or repeal by Congress when the public interest so requires. The main question in this case is whether the estate of Pedro O. Fragrante fulfills the citizenship requirement. To our mind, the question can be restated by asking whether the heirs of Pedro O. Fragrante fulfill the citizenship requirement of the law. The estate is an abstract entity. As such, its legal value depends on what it represents. It is a device by which the law gives a kind of personality and unity to undetermined tangible persons, the heirs. They inherit and replace the deceased at the very moment of his death. As there are procedural requisites for their identification and determination that need time for their compliance, a legal fiction has been devised to represent them. That legal fiction is the estate, a liquid condition in process of solidification. The estate, therefore, has only a representative value. What the law calls estate is, a matter of fact, intended to designate the heirs of the deceased. The question, therefore, in this case, boils down to the citizenship of the heirs of Fragrante.

There is nothing in the record to show conclusively the citizenship of the heirs of Fragrante. If they are Filipino citizens, the action taken by the Public Service Commission should be affirmed. If they are not, it should be reversed. Petitioner alleges that the estate is just a front or dummy for aliens to go around the citizenship constitutional provision. It is alleged that Gaw Suy, the special administrator of the estate, is an alien. We are of the opinion that the citizenship of the heirs of Fragrante should be determined by the Commission upon evidence that the party should be present. It should also determine the dummy question raised by the petitioner. We are of opinion and so vote that the decision of the Public Service Commission of May 21, 1946, be set aside and that the Commission be instructed to receive evidence of the above factual questions and render a new decision accordingly. G.R. No. L-53642 April 15, 1988 LEONILO C. DONATO, petitioners, vs. HON. ARTEMON D. LUNA, PRESIDING JUDGE, COURT OF FIRST INSTANCE OF MANIIA, BRANCH XXXII HON. JOSE FLAMINIANO, CITY FISCAL OF MANILA; PAZ B. ABAYAN, respondents. Leopoldo P. Dela Rosa for petitioner. Emiterio C. Manibog for private respondent. City Fiscal of Manila for public respondent.

marriage was void since it was solemnized without a marriage license and that force, violence, intimidation and undue influence were employed by private respondent to obtain petitioner's consent to the marriage. Prior to the solemnization of the subsequent or second marriage, petitioner and private respondent had lived together and deported themselves as husband and wife without the benefit of wedlock for a period of at least five years as evidenced by a joint affidavit executed by them on September 26, 1978, for which reason, the requisite marriage license was dispensed with pursuant to Article 76 of the New Civil Code pertaining to marriages of exceptional character. Prior to the date set for the trial on the merits of Criminal Case No. 43554, petitioner filed a motion to suspend the proceedings of said case contending that Civil Case No. E-02627 seeking the annulment of his second marriage filed by private respondent raises a prejudicial question which must first be determined or decided before the criminal case can proceed. In an order dated April 7, 1980. Hon. Artemon D. Luna denied the motion to suspend the proceedings in Criminal Case No. 43554 for bigamy. Respondent judge's basis for denial is the ruling laid down in the case of Landicho vs. Relova. 1 The order further directed that the proceedings in the criminal case can proceed as scheduled. A motion for reconsideration was flied by herein petitioner thru counsel citing as one of his grounds for suspension of proceedings the ruling laid down by this Court in the case of De la Cruz vs. Ejercito 2 which was a much later case than that cited by respondent judge in his order of denial. The motion for reconsideration of the said order was likewise denied in an order dated April 14, 1980, for lack of merit. Hence, the present petition for certiorari and prohibition with preliminary injunction. A prejudicial question has been defined to be one which arises in a case, the resolution of which question is a logical antecedent of the issue involved in said case, and the cognizance of which pertains to another tribunal. 3 It is one based on a fact distinct and separate from the crime but so intimately connected with it that it determines the guilt or innocence of the accused, and for it to suspend the criminal action, it must appear not only that said case involves facts intimately related to those upon which the criminal prosecution would be based but also that in the resolution of the issue or issues raised in the civil case, the guilt or innocence of the accused would necessarily be determined. 4 A prejudicial question usually comes into play in a situation where a civil action and a criminal action may proceed, because howsoever the issue raised in the civil action is resolved would be determinative juris et de jure of the guilt or innocence of the accused in a criminal case. 5 The requisites of a prejudicial question do not obtain in the case at bar. It must be noted that the issue before the Juvenile and Domestic Relations Court touching upon the nullity of the second marriage is not determinative of petitioner Donato's guilt or innocence in the crime of bigamy. Furthermore, it was petitioner's second wife, the herein private respondent Paz B. Abayan who filed the complaint for annulment of the second marriage on the ground that her consent was obtained through deceit. Petitioner Donato raised the argument that the second marriage should have been declared null and void on the ground of force, threats and intimidation allegedly employed against him by private respondent only sometime later when he was required to answer the civil action for anulment of the second marriage. The doctrine elucidated upon by the case of Landicho vs. Relova 6 may be applied to the present case. Said case states that: The mere fact that there are actions to annul the marriages entered into by the accused in a bigamy case does not mean that "prejudicial questions" are automatically raised in civil actions as to warrant the suspension of the case. In order that the case of annulment of marriage be considered a prejudicial question to the bigamy case against the accused, it must be shown that the

GANCAYCO, J.: In this petition for certiorari and prohibition with preliminary injunction, the question for the resolution of the Court is whether or not a criminal case for bigamy pending before the Court of First Itance of Manila should be suspended in view of a civil case for annulment of marriage pending before the Juvenile and Domestic Relations Court on the ground that the latter constitutes a prejudicial question. The respondent judge ruled in the negative. We sustain him. The pertinent facts as set forth in the records follow. On January 23, 1979, the City Fiscal of Manila acting thru Assistant City Fiscal Amado N. Cantor filed an information for bigamy against herein petitioner, Leonilo C. Donato with the Court of First Instance of Manila, docketed as Criminal Case No. 43554 and assigned to Branch XXXII of said court. The information was filed based on the complaint of private respondent Paz B. Abayan. On September 28, 1979, before the petitioner's arraignment, private respondent filed with the Juvenile and Domestic Relations Court of Manila a civil action for declaration of nullity of her marriage with petitioner contracted on September 26, 1978, which action was docketed as Civil Case No. E-02627. Said civil case was based on the ground that private respondent consented to entering into the marriage, which was petitioner Donato's second one, since she had no previous knowledge that petitioner was already married to a certain Rosalinda R. Maluping on June 30, 1978. Petitioner Donato's answer in the civil case for nullity interposed the defense that his second

petitioner's consent to such marriage must be the one that was obtained by means of duress, force and intimidation to show that his act in the second marriage must be involuntary and cannot be the basis of his conviction for the crime of bigamy. The situation in the present case is markedly different. At the time the petitioner was indicted for bigamy on February 27, 1963, the fact that two marriage ceremonies had been contracted appeared to be indisputable. And it was the second spouse, not the petitioner who filed the action for nullity on the ground of force, threats and intimidation. And it was only on June 15, 1963, that petitioner, as defendant in the civil action, filed a third-party complaint against the first spouse alleging that his marriage with her should be declared null and void on the ground of force, threats and intimidation. Assuming that the first marriage was null and void on the ground alleged by petitioner, the fact would not be material to the outcome of the case. Parties to the marriage should not be permitted to judge for themselves its nullity, for the same must be submitted to the judgment of the competent courts and only when the nullity of the marriage is so declared can it be held as void, and so long as there is no such declaration the presumption is that the marriage exists. Therefore, he who contracts a second marriage before the judicial declaration of nullity of the first marriage assumes the risk of being prosecuted for bigamy. The lower court therefore, has not abused much less gravely abused, its discretion in failing to suspend the hearing as sought by petitioner. In the case at bar, petitioner has not even sufficiently shown that his consent to the second marriage has been obtained by the use of threats, force and intimidation. Petitioner calls the attention of this Court to the fact that the case of De la Cruz vs. Ejercito is a later case and as such it should be the one applied to the case at bar. We cannot agree. The situation in the case at bar is markedly different. In the aforecited case it was accused Milagros dela Cruz who was charged with bigamy for having contracted a second marriage while a previous one existed. Likewise, Milagros dela Cruz was also the one who filed an action for annulment on the ground of duress, as contra-distinguished from the present case wherein it was private respondent Paz B. Abayan, petitioner's second wife, who filed a complaint for annulment of the second marriage on the ground that her consent was obtained through deceit since she was not aware that petitioner's marriage was still subsisting. Moreover, in De la Cruz, a judgment was already rendered in the civil case that the second marriage of De la Cruz was null and void, thus determinative of the guilt or innocence of the accused in the criminal case. In the present case, there is as yet no such judgment in the civil case. Pursuant to the doctrine discussed in Landicho vs. Relova, petitioner Donato cannot apply the rule on prejudicial questions since a case for annulment of marriage can be considered as a prejudicial question to the bigamy case against the accused only if it is proved that the petitioner's consent to such marriage was obtained by means of duress, violence and intimidation in order to establish that his act in the subsequent marriage was an involuntary one and as such the same cannot be the basis for conviction. The preceding elements do not exist in the case at bar. Obviously, petitioner merely raised the issue of prejudicial question to evade the prosecution of the criminal case. The records reveal that prior to petitioner's second marriage on September 26, 1978, he had been living with private respondent Paz B. Abayan as husband and wife for more than five years without the benefit of marriage. Thus, petitioner's averments that his consent was obtained by private respondent through force, violence, intimidation and undue influence in entering a subsequent marriage is belled by the fact that both petitioner and private respondent executed an affidavit which stated that they had lived together as husband and wife without benefit of marriage for five years, one month and one day until their marital union was formally ratified by the second marriage and that it was private respondent who eventually filed the civil action for nullity.

Another event which militates against petitioner's contentions is the fact hat it was only when Civil Case No. E-02627 was filed on September 28, 1979, or more than the lapse of one year from the solemnization of the second marriage that petitioner came up with the story that his consent to the marriage was secured through the use of force, violence, intimidation and undue influence. Petitioner also continued to live with private respondent until November 1978, when the latter left their abode upon learning that Leonilo Donato was already previously married. In the light of the preceding factual circumstances, it can be seen that the respondent Judge did not err in his earlier order. There is no pivotal issue that must be pre-emptively resolved in Civil Case No. E-02627 before proceedings in the criminal action for bigamy can be undertaken. Accordingly, there being no prejudicial question shown to exit the order of denial issued by the respondent judge dated April 14, 1980 should be sustained. WHEREFORE, in view of the foregoing, the instant petition is hereby DISMISSED for lack of merit. We make no pronouncement as to costs. SO ORDERED. Teehankee, C.J., Narvasa, Cruz and Grio-Aquino, JJ., concur.

[G.R. No. 138509. July 31, 2000] IMELDA MARBELLA-BOBIS, petitioner, vs. ISAGANI D. BOBIS, respondent. DECISION YNARES-SANTIAGO, J.: On October 21, 1985, respondent contracted a first marriage with one Maria Dulce B. Javier. Without said marriage having been annulled, nullified or terminated, the same respondent contracted a second marriage with petitioner Imelda Marbella-Bobis on January 25, 1996 and allegedly a third marriage with a certain Julia Sally Hernandez. Based on petitioners complaintaffidavit, an information for bigamy was filed against respondent on February 25, 1998, which was docketed as Criminal Case No. Q98-75611 of the Regional Trial Court, Branch 226, Quezon City. Sometime thereafter, respondent initiated a civil action for the judicial declaration of absolute nullity of his first marriage on the ground that it was celebrated without a marriage license. Respondent then filed a motion to suspend the proceedings in the criminal case for bigamy invoking the pending civil case for nullity of the first marriage as a prejudicial question to the criminal case. The trial judge granted the motion to suspend the criminal case in an Order dated December 29, 1998.[1] Petitioner filed a motion for reconsideration, but the same was denied. Hence, this petition for review on certiorari. Petitioner argues that respondent should have first obtained a judicial declaration of nullity of his first marriage before entering into the second marriage, inasmuch as the alleged prejudicial question justifying suspension of the bigamy case is no longer a legal truism pursuant to Article 40 of the Family Code.[2] The issue to be resolved in this petition is whether the subsequent filing of a civil action for declaration of nullity of a previous marriage constitutes a prejudicial question to a criminal case for bigamy.

A prejudicial question is one which arises in a case the resolution of which is a logical antecedent of the issue involved therein.[3] It is a question based on a fact distinct and separate from the crime but so intimately connected with it that it determines the guilt or innocence of the accused.[4] It must appear not only that the civil case involves facts upon which the criminal action is based, but also that the resolution of the issues raised in the civil action would necessarily be determinative of the criminal case.[5] Consequently, the defense must involve an issue similar or intimately related to the same issue raised in the criminal action and its resolution determinative of whether or not the latter action may proceed.[6] Its two essential elements are:[7] (a) the civil action involves an issue similar or intimately related to the issue raised in the criminal action; and (b) the resolution of such issue determines whether or not the criminal action may proceed. A prejudicial question does not conclusively resolve the guilt or innocence of the accused but simply tests the sufficiency of the allegations in the information in order to sustain the further prosecution of the criminal case. A party who raises a prejudicial question is deemed to have hypothetically admitted that all the essential elements of a crime have been adequately alleged in the information, considering that the prosecution has not yet presented a single evidence on the indictment or may not yet have rested its case. A challenge of the allegations in the information on the ground of prejudicial question is in effect a question on the merits of the criminal charge through a non-criminal suit. Article 40 of the Family Code, which was effective at the time of celebration of the second marriage, requires a prior judicial declaration of nullity of a previous marriage before a party may remarry. The clear implication of this is that it is not for the parties, particularly the accused, to determine the validity or invalidity of the marriage.[8] Whether or not the first marriage was void for lack of a license is a matter of defense because there is still no judicial declaration of its nullity at the time the second marriage was contracted. It should be remembered that bigamy can successfully be prosecuted provided all its elements concur two of which are a previous marriage and a subsequent marriage which would have been valid had it not been for the existence at the material time of the first marriage.[9] In the case at bar, respondents clear intent is to obtain a judicial declaration of nullity of his first marriage and thereafter to invoke that very same judgment to prevent his prosecution for bigamy. He cannot have his cake and eat it too. Otherwise, all that an adventurous bigamist has to do is to disregard Article 40 of the Family Code, contract a subsequent marriage and escape a bigamy charge by simply claiming that the first marriage is void and that the subsequent marriage is equally void for lack of a prior judicial declaration of nullity of the first. A party may even enter into a marriage aware of the absence of a requisite - usually the marriage license - and thereafter contract a subsequent marriage without obtaining a declaration of nullity of the first on the assumption that the first marriage is void. Such scenario would render nugatory the provisions on bigamy. As succinctly held in Landicho v. Relova:[10] (P)arties to a marriage should not be permitted to judge for themselves its nullity, only competent courts having such authority. Prior to such declaration of nullity, the validity of the first marriage is beyond question. A party who contracts a second marriage then assumes the risk of being prosecuted for bigamy. Respondent alleges that the first marriage in the case before us was void for lack of a marriage license. Petitioner, on the other hand, argues that her marriage to respondent was exempt from the requirement of a marriage license. More specifically, petitioner claims that prior to their marriage, they had already attained the age of majority and had been living together as husband and wife for at least five years.[11] The issue in this case is limited to the existence of a prejudicial

question, and we are not called upon to resolve the validity of the first marriage. Be that as it may, suffice it to state that the Civil Code, under which the first marriage was celebrated, provides that "every intendment of law or fact leans toward the validity of marriage, the indissolubility of the marriage bonds."[12] Hence, parties should not be permitted to judge for themselves the nullity of their marriage, for the same must be submitted to the determination of competent courts. Only when the nullity of the marriage is so declared can it be held as void, and so long as there is no such declaration the presumption is that the marriage exists. [13] No matter how obvious, manifest or patent the absence of an element is, the intervention of the courts must always be resorted to. That is why Article 40 of the Family Code requires a "final judgment," which only the courts can render. Thus, as ruled in Landicho v. Relova,[14] he who contracts a second marriage before the judicial declaration of nullity of the first marriage assumes the risk of being prosecuted for bigamy, and in such a case the criminal case may not be suspended on the ground of the pendency of a civil case for declaration of nullity. In a recent case for concubinage, we held that the pendency of a civil case for declaration of nullity of marriage is not a prejudicial question.[15] This ruling applies here by analogy since both crimes presuppose the subsistence of a marriage. Ignorance of the existence of Article 40 of the Family Code cannot even be successfully invoked as an excuse.[16] The contracting of a marriage knowing that the requirements of the law have not been complied with or that the marriage is in disregard of a legal impediment is an act penalized by the Revised Penal Code.[17] The legality of a marriage is a matter of law and every person is presumed to know the law. As respondent did not obtain the judicial declaration of nullity when he entered into the second marriage, why should he be allowed to belatedly obtain that judicial declaration in order to delay his criminal prosecution and subsequently defeat it by his own disobedience of the law? If he wants to raise the nullity of the previous marriage, he can do it as a matter of defense when he presents his evidence during the trial proper in the criminal case. The burden of proof to show the dissolution of the first marriage before the second marriage was contracted rests upon the defense,[18] but that is a matter that can be raised in the trial of the bigamy case. In the meantime, it should be stressed that not every defense raised in the civil action may be used as a prejudicial question to obtain the suspension of the criminal action. The lower court, therefore, erred in suspending the criminal case for bigamy. Moreover, when respondent was indicted for bigamy, the fact that he entered into two marriage ceremonies appeared indubitable. It was only after he was sued by petitioner for bigamy that he thought of seeking a judicial declaration of nullity of his first marriage. The obvious intent, therefore, is that respondent merely resorted to the civil action as a potential prejudicial question for the purpose of frustrating or delaying his criminal prosecution. As has been discussed above, this cannot be done. In the light of Article 40 of the Family Code, respondent, without first having obtained the judicial declaration of nullity of the first marriage, can not be said to have validly entered into the second marriage. Per current jurisprudence, a marriage though void still needs a judicial declaration of such fact before any party can marry again; otherwise the second marriage will also be void.[19] The reason is that, without a judicial declaration of its nullity, the first marriage is presumed to be subsisting. In the case at bar, respondent was for all legal intents and purposes regarded as a married man at the time he contracted his second marriage with petitioner.[20] Against this legal backdrop, any decision in the civil action for nullity would not erase the fact that respondent entered into a second marriage during the subsistence of a first marriage. Thus, a decision in the civil case is not essential to the determination of the criminal charge. It is, therefore, not a prejudicial question. As stated above, respondent cannot be permitted to use his own malfeasance to defeat the criminal action against him.[21] WHEREFORE, the petition is GRANTED. The order dated December 29, 1998 of the Regional Trial Court, Branch 226 of Quezon City is REVERSED and SET ASIDE and the trial court is ordered to IMMEDIATELY proceed with Criminal Case No. Q98-75611. SO ORDERED.

Davide, Jr., C.J., (Chairman), Puno, Kapunan, and Pardo, JJ., concur. G.R. No. L-63198 June 21, 1990 VICENTE S. UMALI, BENJAMIN CALLEJA, JR., ALBERTO L. LEDESMA and EVANGELINE U. LEDESMA,petitioners, vs. HONORABLE INTERMEDIATE APPELLATE COURT AND SPOUSES HONORIO and SOLINA EDANO,respondents. Vicente A. Garcia for petitioners. Edano, Leynes Law Office for private respondents.

issuing for this purpose four checks drawn against the Chartered Bank, Manila Branch. The first check for P225,000.00 was honored upon its presentment. By arrangement of the petitioners with the Edano spouses, a deed of absolute sale was executed by the vendors, inspire of the fact that the purchase price has not yet been Idly paid. Thus, TCT No. (T36471) was cancelled and a new transfer certificate of title was issued in the name of OROSEA. Thereafter, OROSEA secured a loan of P1,000,000.00 from the Philippine Veterans Bank using this property as security. When the check for the second installment fell due, petitioners asked, for two times, deferment of its presentation for payment, the first to June 30, 1980, and the second to July 31, 1980. In the first deferment petitioners issued a check that matured on June 30, 1980 to replace the check that matured on March 31, 1980. On the second deferment petitioners issued another check dated July 31, 1980 to replace the check dated June 30, 1980. This second renewal check was presented with the bank but it was dishonored due to lack of funds. So were the checks postdated September 30, 1980 and March 31, 1981. They were also dishonored upon their presentment for lack of funds. As a consequence of the dishonor of these checks, the Edano spouses filed a complaint for estafa against petitioners. The information was filed by the Provincial Fiscal against petitioners on May 21, 1981, and it was docketed as Criminal Case No. 1423-I. Arraignment was set on September 4, 1981 but petitioners failed to appear. It was reset to October 5, 1981 but this was postponed upon motion of petitioners. On October 14, 1981, OROSEA filed a Complaint in the Court of First Instance of Quezon against the Edano spouses, docketed as Civil Case No. 8769, for the annulment/rescission of the Contract of Sale executed on September 4, 1979 by and between OROSEA and the Edano spouses covering Lot No. 49 of the Cadastral Survey of Mulanay, and for which the petitioners issued the checks, subject of Criminal Case No. 1423-1. Criminal Case No. 1423-I was again set for arraignment on November 5, 1980. This was postponed. With the entry of a new counsel, petitioners filed a motion to quash Criminal Case No. 1423-I, on ground of improper venue, but this motion was withdrawn by petitioners before it could be resolved. The arraignment was again set for January 4, 1982 which was again postponed; then to February 5, 1982, again postponed; then to March 23, 1982. However, before March 23, 1982, petitioners filed, in Criminal Case No. 1423-I, a 'Motion to Suspend Arraignment and Further Proceedings, with a Supplemental Motion To Suspend Proceedings'. This was opposed by the Provincial Fiscal of Quezon. Resolving the motion to suspend, respondent Judge issued his orders, now under question, denying the motion. 2 Acting on the "Motion to Suspend Arraignment and Further Proceedings," the Court of First Instance of Zambales, Branch II, in said CR Case No. 1423-1 in its order dated 29 April 1982 3 denied the same for lack of merit; and the motion for reconsideration of said order was likewise denied in the Order dated 24 June l982. 4 A petition for certiorari and prohibition, docketed as CA-G.R. SP No. 14504, was then filed by herein petitioners with the respondent Court of Appeals. The appellate court, resolving the said petition, rendered the now assailed decision dated 23 September 1982 affirming the questioned orders of the trial court and dismissed the petition for lack of merit. The Court of Appeals ruled that, inasmuch as the issues in CV No. 8769 and CR No. 1423-I are completely different from each other, and that the resolution of one is not necessary for the resolution of the other, the issue involved in CV No. 8769 is not a prejudicial question vis-a-vis the issue in CR No. 1423-I so as to

PADILLA, J.: This petition seeks the review on certiorari of the decision * dated 23 September 1982 of the respondent Court of Appeals in CA-G.R. SP No. 14504, affirming the Orders dated 29 April 1982 and 24 June 1982 issued in Criminal Case No. 1423-I by the Court of First Instance (CFI) of Zambales, Branch II (now Regional Trial Court, (RTC), Iba, Zambales, Branch LXIX). ** The respondent court's decision ruled that the question raised in Civil Case No. 8769 pending before the CFI of Quezon, Branch VIII (now RTC, Quezon, Branch LVII) re: annulment/ rescission of the sale 1 is not prejudicial to the issues involved in said CR No. 1423-I as to warrant the suspension of proceedings in said criminal case. The facts material to the present case, as found by the Court of Appeals, are as follows: ... Petitioners are the officers of the Orosea Development Corporation, hereinafter referred to simply as OROSEA. Sometime on September 4,1979, the petitioners, as officers of OROSEA, purchased from the spouses Honorio and Solina Edano, Lot No. 49 of the Cadastral Survey of Mulanay, Bo. Casay, Mulanay, Province of Quezon, covered by TCT No. RT-(T-36471), in the name of spouses Edano, for the sum of P1,036,500.00 payable in four installments, as follows:
1

st Installment and downpaym ent 2nd Installment 3rd Installment

Septemb er 28, 1979

P225,000. 00

- March 31, 1980 Septemb er 30, 1980 - March 31, 1981

271,500.0 0 270,000.0 0

4th Installment

270,000.0 0

warrant the suspension of the proceedings in the latter case, until the termination of the civil case. In its resolution dated 3 February 1983, the Court of Appeals also denied for lack of merit the petitioners' motion for reconsideration of the said decision. In this present recourse, the principal issue to be resolved, as in the Court of Appeals, is whether CV No. 8769 involves a prejudicial question in relation to CR No. 1423-I so as to require a suspension of proceedings in the latter case, until the civil case is disposed of. We find no merit in the petition. In arguing that the principle of prejudicial question applies in the case at bar, petitioners contend that, since in CV No. 8769 they seek to annul the deed of sale executed in their favor by the private respondents, on the grounds that the latter committed fraud in misrepresenting that the land they sold to petitioners is free from all liens and encumbrances, and that it is not tenanted, when in truth and fact, as petitioners later discovered, the land is covered by the land reform program and that vast portions thereof are timber land, hence, allegedly indisposable public land, therefore, according to petitioners, CV No. 8769 involves issues, the resolution of which will determine whether or not petitioners are criminally liable in CR No. 1423-I. They further argue that, if and when the court hearing CV No. 7869 annuls the subject deed of sale, then, their obligation to pay private respondents under the said deed would be extinguished, resulting in the dismissal of CR No. 1423-I. Petitioners, therefore, in CV No. 8969, in seeking the annulment of the deed of sale on the ground of fraud or misrepresentation, are in effect saying that said deed is voidable, vitiated consent being one of the grounds mentioned in Article 1390 5 of the Civil Code for voiding or annulling contracts. Indeed the well-settled rule is that a contract where consent is vitiated is voidable. 6 It can not be denied, however, that at the time the acts complained of in CR No. 1423-I were committed, the deed of sale sought to be later annulled in CV No. 8769 was binding upon the parties thereto, including the petitioners. The two (2) essential elements for a prejudicial question to exist are: (a) the civil action involves an issue similar or intimately related to the issue raised in the criminal action; and (b) the resolution of such issue in the civil action determines whether or not the criminal action may proceed. 7 Given the nature of a prejudicial question, and considering the issues raised in CV No. 8769 and CR No. 1423-I, we agree with the ruling of the respondent Court of Appeals that the resolution of the issues in CV No. 8769 is not determinative of the guilt or innocence of the petitioners-accused in CR No. 1423-I, hence, no prejudicial question is involved between the said two (2) cases. As correctly observed by the appellate court, the issue in CR No. 1423-I is whether or not the petitioners could be found guilty under Batas Pambansa Blg. 22 8 or under Article 315, No. 2(d) of the Revised Penal Code. 9 More specifically, what private respondents complained of in CR No. 1423-I is that the checks issued by petitioners in their favor were dishonored for lack of funds upon due presentment to the drawee bank. Undeniably, at the time of said dishonor, petitioners' obligation to pay private respondents pursuant to the deed of sale, continued to subsist. And because petitioners' checks were dishonored for lack of funds, petitioners are answerable under the law for the consequences of their said acts. And even if CV No. 8769 were to be finally adjudged to the effect that the said deed of sale should be annulled, such declararion would be of no material importance in the determination of the guilt or innocence of petitioners-accused in CR No. 1423-I. WHEREFORE, the petition is DENIED. The decision dated 23 September 1982 of the Court of Appeals in CA-GR SP No. 14504 is hereby AFFIRMED.

SO ORDERED. Melencio-Herrera (Chairperson), Paras, Sarmiento and Regalado, JJ., concur. G.R. No. L-60962 July 11, 1986 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ROLANDO MONTEVERDE y CONE alias "EDUARDO MASCARIAS, accused-appellant.

PARAS, J.: This is an appeal interposed by defendant Rolando Monteverde from the judgment of the CFI of Zamboanga City, in Criminal Case No. 1661 (185-111-79) finding him and his co-accused Reynaldo Codera Jr. guilty of the crime of Robbery with Rape and sentencing them to death. According to the spouses, Tomas and Teresita, at about 1:00 in the morning of December 29, 1976, the appellant and co-accused Reynaldo destroyed the window of their house. Teresita stood up and lighted a kerosene lamp, at which instance the couple saw Reynaldo at the window pointing a gun at them. He forced them to open the door. Once inside, he hogtied Tomas, gagged him and placed him under the bed. With the use of a gun and a knife, the appellant and Reynaldo intimidated Teresita and raped her three times (twice by the former and once by the latter). At about 4:00 in the same morning, they ransacked the house and left with their loot valued at P300.00 plus cash money of P15.00. Teresita and her husband immediately reported the matter to the police. Upon examination, the medico-legal officer issued a medical certificate with the following findings: that Teresita was already 2 months pregnant when she was sexually abused and that there were no external signs of physical injuries. Said medical certificate, however, was not properly Identified in court because the physician was not presented during the trial. On March 27, 1977, the victims-spouses went to the police station for Identification of arrested suspects. The spouses immediately identified Reynaldo as one of the two culprits who had committed the crimes. Teresita also unhesitatingly pointed to Rolando in a picture shown to her, as the very same person who is the other culprit. In a sworn statement before the NBI, Reynaldo admitted that he and appellant planned the robbery. However, he was not cross-examined because pending trial, he escaped. The appellant put up alibi as his defense and claimed that he was elsewhere with relatives and friends when the incident took place. Finding the straightforward and substantiated testimonies of the spouses credible, the trial court convicted the appellant and Reynaldo as charged and sentenced them to death. The appellant, however, assails the spouses' credibility, and claims that: (a) the medical certificate does not show signs of physical injuries and spermatozoa; (2) said medical certificate and even his co-accused's confession are inadmissible against him, for being hearsay; (3) recidivism cannot be considered against him because it was not alleged in the information; and (4) the lower court's proceedings are void because the amended information does not contain a certification, The appeal lacks merit. The fact that the medical certificate shows no external signs of physical injuries and spermatozoa on the victim does not negate the commission of rape. (People vs. Bawit, L-48116, February 20, 1981; People vs. Dadaeg, L-37798, July 15, 1985, 137 SCRA 500). While the medical certificate as well as the questioned extrajudicial confession may be incomplete or defective, neither is indispensable to prove the crime of rape. In previous cases, medical examination was held to be merely corroborative. (People vs. Pielago, et al., L-42256, December 19, 1985; People vs. Opena, L-34954, February 20, 1981, 102 SCRA 755). In a prosecution for rape, the accused may be convicted even on the sole basis of the complainant's testimony, if credible. (People vs. Aragona, L-43752, September 19, 1985, 138 SCRA 569). In the case at bar,

We find no cogent reason to disturb the trial court's findings on the credibility of the spouses. Having heard the witnesses and observed their deportment during the trial, the trial court is in a good position to decide the question. Indeed, the spouses' direct and substantiated testimonies are more credible than the appellant's general denial and uncorroborated testimony. Considering that the spouses have no motive to charge the appellant falsely, especially with such a grave offense, his defense of alibi is 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 vs. Cruz, 30 SCRA 728, People vs. Beltran, 32 SCRA 71. See also People vs. 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. SO ORDERED. Teehankee, C.J., Abad Santos, Feria, Yap, Fernan, Narvasa, Melencio-Herrera, Alampay, Gutierrez, Jr. and Cruz, JJ., concur. April 28, 1958 G.R. No. L-10875 THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. SEBASTIAN S. LAMBINO, defendant-appellant. Meris-Morales, Busto and Oropilla for appellant. First Assistant Solicitor General Guillermo E. Torres and Solicitor Frine C. Zaballero for appellee. Endencia, J.: On August 25, 1952, appellant herein was charged in the Court of First Instance of Pangasinan with the crime of malversation of public fund as in the amount of P16,267.65 in an information filed by the provincial fiscal, which was later on amended in order to change the amount to P16,287.65. After his arrest, the case was set for his arraignment on February 12, 1953, but upon his petition, said arraignment was postponed several times until finally on March 12, 1903, appellant was duly arraigned and entered the plea of not guilty. The case was set for hearing for May 11, and 12, 1954, but, upon petition of the accused, said hearing was postponed to May 26, then to June 17, June 29 and July 13, 1954. However, on the last date, the hearing of the case did not take place, because the appellant then filed a motion wherein he alleged that there has been no preliminary investigation in the case and that the information contained vague and indefinite avernment of the date of the commission of the crime charged, and the

court again postponed the hearing to July 29, 1954, so as to give the defense an opportunity to file a written argument supporting the motion. No action was taken thereon, but the case was definitely called for hearing on said date. Before the commencement of the trial, appellant reiterated his petition for preliminary investigation, but it was denied on the round that "the court has studied the record of the case and is satisfied with the preliminary investigation conducted thereon." The trial was proceeded on and the prosecution, presented its first witness, Auditor Dalmacio Ramos, who testified that he examined the accounts of the appellant as municipal treasurer of Sta. Barbara, Pangasinan, and found the shortage alleged in the information; and when his witness was about to finish his testimony, appellant, through counsel, asked the court that he be permitted to withdraw his former plea of not guilty and to substitute it for that of guilty, that he be given the benefit of the indeterminate sentence and that the reading of the sentence be deferred. The trial court granted this petition and forthwith ordered that the accused be again arraigned and, upon being rearraigned, appellant voluntarily entered the plea of guilty; and agreeing to appellant's petition, the lower court fixed August 17, 1954 as the date of promulgation of the judgment. Decision was rendered on July 31, 1954, whereby the court found appellant guilty beyond reasonable doubt of the crime of malversation of public funds and, taking into account his plea of guilty as a mitigating circumstance, imposed upon the appellant a penalty of not less than eight years and one day of prison mayor, and not more than twelve years and one day of reclusion temporal, to pay a fine in the sum of P8,133.82, to suffer perpetual special disqualification from holding public office, to indemnify the municipal government of Sta. Barbara in the amount of P16,267.65, and to pay the costs. On August 14, 1954, appellant filed a petition to withtdraw his plea of guilty on the ground that when the instant case, was called for hearing last July 29, 1954, the undersigned accused inadvertently an inadvisedly entered a plea of guilty to the information, having yielded to do so only after being seduced and influenced by outside intervention of other persons as further explained his affidavit of merits hereto attached and made an integral part of this petition; that in truth and in fact he did not very well understand the true import and full extent of the consequences of his illconsidered plea, and that after more intillegent consultation, deeper discernment and mature deliberation, he has finally come to regret his plea of guilty, and now most solicitously begs to withdraw the same. Despite this motion, the lower court promulgated the decision, thus empliedly overruling said motion. Thereupon appellant orally announced his intention to appeal, but instead of filing the corresponding notice of appeal, he presented on August 24, 1954, a motion of reconsideration and new trial, alleging that there have been errors of law and irregularities in the trial of the case and that new and material evidence has been discovered which, if admitted, would probably change the judgment, to wit: list of Naric rice debtors, chits or promissory notes, duly signed, supporting said list. This motion was overruled by the lower court for lack and, on August 28, 1954, the formal notice of appeal was filed and thus the was elevated to the court of Appeals which certified it to this Court for the reason that appellant in his brief, raises only a question of law. Appellant claims that the lower court erred (1) in not granting appellant's motion for preliminary investigation filed on July 13, 1954; (2) in not granting appellant's petition of August 14 to withdraw his plea of guilty a to substitute it for that not guilty; and (3) in overruling appellant's motion for reconsideration of the decision a

new trial thereof. As to the first error, we find no irregularity in the actuation of the lower court, firstly because that petition for preliminary investigation was filed by appellant after bad entered his plea of not guilty on March 12, 1953. It is a settled rule in this jurisdiction that a preliminary investigation may be waived and that the accused may waive it expressly or impliedly. And in the case of People vs. Magpale, 70 Phil. 176, this Court held that "the right was waived by failure to claim it before the accuse pleaded." Moreover in the case at bar, the information was filed originally with the court of first instance an after its filing the accused was ordered arrested, hence we presume that before the issuance of such order of arrest, the Honorable Judge presiding the lower court must have made the corresponding investigation provided for in Sec. 4 of Rule 108. Again, before the commencement of the trial, appellant reiterated his petition for a preliminary investigation, which was overruled, nevertheless appellant took no steps to bring the matter to higher courts an stop the trial of the case; instead he allowed the prosecution to present the first witness who was able to testify and show the commission of the crime charged in the information. By his conduct, we held that he waived his right to a preliminary investigation and is estopped from claiming it. As to the second error ascribed to the lower court in that it did not allow appellant to withdraw his former plea of guilty and substitute it with one of not guilty, we find appellant's contention completely untenable. He claims to have pleaded guilty because "he has been seduced and influence by outside intervention" and that "he did not very well understand the true import and full extent of the consequences of his illconsidered plea, and that after more intelligent consultation, deeper discernment and mature deliberation, he has finally come to regret his plea of guilty." But the record shows that as early as June 17, 1954, appellant was already considering the advisability of pleading guilty, as his counsel so announced, when they then petitioned for the postponement of the hearing at a later date. Likewise, the record shows that the accused entered his plea of guilty after a witness for the prosecution had testified so convincingly that the appellant has committed the crime charged in the information. At that time he was assisted by an attorney and he pleaded guilty only after consultation with him. Under these circumstances, it could hardly be conceived that he involuntarily pleaded guilty without realizing the consequences of his plea. On the other hand, we find that the withdrawal of a plea of guilty in order to interpose a motion to quash or substitute therefore a plea of not guilty, at any time before judgment, is not a matter of strict right to the accused but of sound discretion to the trial court. (U. S. vs. Patala, 2 Phil. 752; U. S. vs. Molo, 5 Phil. 412; U. S. Schneer, 7 Phil. 523; U. S. vs. Neri, 8 Phil. 669; U. S. vs. Sanchez, 13 Phil. 336; U. S. vs. Gran, 18 Phil. 122; People vs. Quinta, 51 Phil. 820; People vs. Ubaldo, 55 Phil. 95.) Obviously appellant herein should not be allowed to gamble with his plea of guilty by withdrawing it after he learned the penalty imposed upon him. As to the third error, we find appellant's contention also untenable, for by the plea of guilty he admits all the facts alleged in the information and, by that plea, he is precluded from showing that he has not committed them. And, even granting that the evidence he has discovered later on may have some influence in the matter, we find that the same, if at all, would only tend to prove that he disposed of the rice entrusted to him, selling it on credit without authority, thus malversing the proceeds thereof, so that the evidence in question would in nowise relieve him from responsibility and, therefore, it would not alter the decision of the lower court. The Solicitor General recommends that the principal penalty imposed upon the accused be affirmed in toto. We find, however, that said penalty was erroneous, firstly because the lower court, in imposing such penalty, took into consideration the plea of

guilty entered by the accused after a witness for the prosecution had sufficiently proved the crime at bar. Obviously, such plea of guilty cannot be given consideration as mitigating circumstance for it was entered after the prosecution had presented part of the evidence (People vs. Co Chan, 60. Phil. 293; People vs. De la Cruz, 63 Phil. 874). Secondly, the penalty fixed by the Revised Penal Code for the crime at bar (Art. 217, No. 4) is reclusion temporal in its medium and maximum periods because the amount involved is more than P12,000 but less than P20,000, so that the minimum penalty, under the Indeterminate Sentence Law, that should be imposed upon the defendant, is prision mayor in its maximum to reclusion temporal in its minimum or from 10 years and 1 day of prision mayor to 14 years and 8 months of reclusion temporal; consequently, the minimum of the indeterminate sentence applicable to the case at bar is not 8 years and 1 day as fixed by the trial judge, but a penalty of not less than 10 years and 1 day of prision mayor. And with regards to the maximum penalty, it should be 16 years, 5 months and 11 days ofreclusion temporal, instead of 12 years and 1 day of reclusion temporal. Accordingly, the penalty imposed upon the appellant should be modified as above pointed out. Wherefore, with the modification of the decision as above indicated, the same is hereby affirmed, with costs against the appellant. Paras, C.J., Bengzon, Montemayor, Bautista Angelo, Labrador, Concepcion, Reyes, J.B.L., and Felix, JJ., concur. .

August 6, 1913 G.R. No. L-8144 THE UNITED STATES, plaintiff-appellee, vs. ANASTACIA DE LA TORRE and CELEDONIO GREGORIO, defendants. CELEDONIO GREGORIO, appellant. Lucio Villareal for appellant. Attorney-General Villamor for appellee. Johnson, J.: These defendant were charged with the crime of the adultery. The complaint alleged: "That the said Celedonio Gregorio, the above-named accused, did on March 20, 1911, in the municipality of Cuyapo, Province of Nueva Ecija, willfully, unlawfully, and criminally lie with his codefendant, Anastacia de la Torre; that the two ran away and are now united in the house of the councilor of Naguisan, the accused knowing that the accused woman is legally married to the complainant; in violation of law. CRISTINO (his mark) GAMIT." The defendant were duly arrested and given a preliminary examination before the justice of the peace of the pueblo of Cuyapo of the Province of Nueva Ecija. After

hearing the evidence, the justice of the peace found that there was sufficient reason for believing that the defendants were probably guilty of the crime charged, and held them for trial in the Court of First Instance of said province. The fiscal presented the above complaint in the Court of First Instance. Before the case was brought to trial, the defendant, Anastacia de la Torre, died, and the complaint against her was dismissed, with costs de oficio. Upon the arraignment in the Court of First Instance, the other defendant, Celedonio Gregorio, pleaded of not guilty and the cause was duly tried. After hearing the evidence the lower court found the defendant guilty of the crime charged in the complaint, and in accordance with the provisions of article 423 of the Penal Code sentenced him to be imprisoned for a period of three years four months and twentyone days of prision correccional, with the accessory penalties provided for by the law, and to pay the costs. From that sentence the defendant, Celedonio Gregorio, appealed to this court. In this court the appellant presents two questions. He alleges: First, that, inasmuch as the codefendants, Anastacia de la Torre, had died, the present defendant and appellant could not be tried. He does not support his argument by any authority. The complaint was presented by the offended husband against both of the adulterers. The presentation of the complaint against both of the defendants complied with the requirement of the law. The mere fact that one or the other them died before the cause was brought to trial does not prevent the continuation of the cause against the survivor. Viada, in his valuable commentaries on the Penal Code (vol. 3, p. 111), in discussing this question says: The wronged husband being unable in Spain to lodge his complaint for adultery except against both the guilty parties, if both be alive, it is clear that when the woman is dead he can lodge his complaint against the adulterer, for it is only when the both are alive that he cannot lodge his complaint except against both the guilty parties at once.

Anastacia de la Torre and the offended party were husband and wife. The evidence clearly shows that the defendant was guilty of the crime charged. The Attorney-General asks that the sentence of the lower court be modified and that the defendant and appellant should be required to pay only one-half of the costs of the lower court. With that suggestion of the Attorney-General we agree. For all of the foregoing reasons the judgment of the lower court is hereby affirmed, with the modification that the defendant be required to pay only one-half the costs of the lower court. So ordered. Arellano, C.J., Torres, Carson, Moreland and Trent, JJ., concur. .

G.R. No. 85468 September 7, 1989 QUINTIN S. DOROMAL, petitioner, vs. SANDIGANBAYAN, OMBUDSMAN AND SPECIAL PROSECUTOR, respondents.

GRIO-AQUINO, J.: Brought up for review before this Court is the order dated August 19, 1988 of the Sandiganbayan denying petitioner's motion to quash the information against him in Criminal Case No. 12893, entitled "People of the Philippines vs. Hon. Quintin S. Doromal," and the Sandiganbayan's order suspending him from office during the pendency of the case. In October 1987, Special Prosecution Officer II, Dionisio A. Caoili, conducted a preliminary investigation of the charge against the petitioner, Quintin S. Doromal, a former Commissioner of the Presidential Commission on Good Government (PCGG), for- violation of the Anti-Graft and Corrupt Practices Act (RA 3019), Sec. 3(h), in connection with his shareholdings and position as president and director of the Doromal International Trading Corporation (DITC) which submitted bids to supply P61 million worth of electronic, electrical, automotive, mechanical and airconditioning equipment to the Department of Education, Culture and Sports (or DECS) and the National Manpower and Youth Council (or NMYC). On January 25,1988, with the approval of Special Prosecutor Raul Gonzales, Caoili filed in the Sandiganbayan an information against the petitioner (Criminal Case No. 12766) alleging : That in or about the period from April 28, 19866 to October 16, 1987, in Metro Manila, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, a public officer, being then Commissioner of the Presidential Commission on Good Government, did then and there wilfully and unlawfully have direct or indirect financial interest in the Doromal International Trading Corporation, an entity which transacted or entered into a business transaction or contract with the Department of Education, Culture and Sports and the National Manpower and Youth Council, both agencies of the government which business, contracts or transactions he is prohibited by law and the constitution from having any interest. (pp. 246-247, Rollo; Emphasis supplied.)

We are of the opinion that the contention of the appellant that the lower court committed an error in proceeding against the survivor alone after the death of his codefendant, after a complaint had been presented against both of them, is not tenable. In our opinion no error was committed in respects to said assignments of error. The only other contention made by the appellant is that the evidence adduced during the trial was insufficient to show that he was guilty of the crime charged. The evidence shows that the defendant and appellant had been living in the same house with his codefendant for some weeks or months and that he had been seen having actual illicit relations with his codefendant. The offended party was a tenant of the defendant and appellant. The defendants and appellants admits that he knew that

The petitioner filed a petition for certiorari and prohibition in this Court questioning the jurisdiction of the "Tanodbayan" to file the information without the approval of the Ombudsman after the effectivity of the 1987 Constitution (G.R. No. 81766, entitled "Doromal vs. Sandiganbayan"). On June 30, 1988, this Court annulled the information in accordance with its decision in the consolidated cases ofZaldivar vs. Sandiganbayan, G.R. Nos. 79690-707 and Zaldivar vs. Gonzales, G.R. No. 80578, April 27, 1988 (160 SCRA 843), where it ruled that: ... the incumbent Tanodbayan (called Special Prosecutor under the 1987 Constitution and who is supposed to retain powers and duties NOT GIVEN to the Ombudsman) is clearly without authority to conduct preliminary investigations and to direct the filing of criminal cases with the Sandiganbayan, except upon orders of the Ombudsman. This right to do so was lost effective February 2, 1 987. From that time, he has been divested of such authority. Upon the annulment of the information against the petitioner, the Special Prosecutor sought clearance from the Ombudsman to refile it. In a Memorandum dated July 8,1988, the Ombudsman, Honorable Conrado Vasquez, granted clearance but advised that "some changes be made in the information previously filed." (p. 107, Rollo.) Complying with that Memorandum, a new information, duly approved by the Ombudsman, was filed in the Sandiganbayan (Criminal Case No. 12893), alleging that: ..., the above-named accused [Doromal] a public officer, being then a Commissioner of the Presidential Commission on Good Government, did then and there wilfully and unlawfully, participate in a business through the Doromal International Trading Corporation, a family corporation of which he is the President, and which company participated in the biddings conducted by the Department of Education, Culture and Sports and the National Manpower & Youth Council, which act or participation is prohibited by law and the constitution. (p. 68, Rollo; Emphasis supplied.) On July 25, 1988, petitioner filed a "Motion to Quash" the information for being: (a) invalid because there had been no preliminary investigation; and (b) defective because the facts alleged do not constitute the offense charged (Annex C). The Sandiganbayan denied the motion to quash in its orders dated July 25,1988 and August 19,1988 (Annexes D, N and 0, pp. 81,173 & 179, Rollo). On August 22, 1988, the Special Prosecutor filed a "Motion to Suspend Accused Pendente Lite" pursuant to Section 13 of the Anti- Graft and Corrupt Practices Act (R.A. 3019). Over the petitioner's objection (because the President had earlier approved his application for indefinite leave of absence as PCGG commissioner "effective immediately and until final decision of the courts in your case" [Annex S-1, p. 189, Rollo]), the Sandiganbayan on September 5, 1988 ordered his suspension pendente lite from his position as PCGG Commissioner and from any other office he may be holding (Annex T). His motion for reconsideration of that order was also denied by the Court (Annex Y). Hence, this petition for certiorari and prohibition alleging that the Sandiganbayan gravely abused its discretion: (1) in denying the petitioner's motion to quash the

information in Criminal Case No. 12893; and, (2) in suspending the petitioner from office despite the President's having previously approved his indefinite leave of absence " until final decision" in this case. The petitioner contends that as the preliminary investigation that was conducted prior to the filing of the original information in Criminal Case No. 12766 was nullified by this Court, another preliminary investigation should have been conducted before the new information in Criminal Case No. 12893 was filed against him. The denial of his right to such investigation allegedly violates his right to due process and constitutes a ground to quash the information. On the other hand, the public respondent argues that another preliminary investigation is unnecessary because both old and new informations involve the same subject matter a violation of Section 3 (H) of R.A. No. 3019 (the Anti-Graft and Corrupt Practices Act) in relation to Section 13, Article VII of the 1987 Constitution. Moreover, the petitioner allegedly waived the second preliminary investigation by his failure to comply with the Court's Order dated August 12, 1988 directing him to submit a statement of new or additional facts, duly supported by photo copies of documents which he would present should a new preliminary investigation be ordered (Annex H, p. 94, Rollo). The petition is meritorious. A new preliminary investigation of the charge against the petitioner is in order not only because the first was a nullity (a dead limb on the judicial tree which should be lopped off and wholly disregarded"-Anuran vs. Aquino, 38 Phil. 29) but also because the accused demands it as his right. Moreover, the charge against him had been changed, as directed by the Ombudsman. Thus, while the first information in Criminal Case No. 12766 charge that the DITCentered into a business transaction or contract with the Department of Education, Culture and Sports and the National Manpower and Youth Council, ... which business, contracts or transactions he [petitioner] is prohibited by law and the constitution from having any interest. (P. 70, Rollo.) the new information in Criminal Case No. 12883 alleges that the petitioner: unlawfully participate[d] in a business through the Doromal International Trading Corporation, a family corporation of which he is the President, and which company participated in the biddings conducted by the Department of Education, Culture and Sports and the National Manpower & Youth Council, which act or participation is prohibited by law and the constitution. (p. 68, Rollo.) The petitioner's right to a preliminary investigation of the new charge is secured to him by the following provisions of Rule 112 of the 1985 Rules on Criminal Procedure: SEC. 3. Procedure. ... no complaint or information for an offense cognizable by the Regional Trial Court shall be filed without a preliminary investigation having been first conducted. ..... SEC. 7. When accused lawfully arrested without warrant.- When a person is lawfully arrested without a warrant for an offense cognizable by the Regional Trial Court, the complaint or information may be filed by the offended party, peace officer or fiscal without a preliminary investigation having been first conducted; on the basis of the affidavit of the offended party or arresting officer or person.

However, before the filing of such complaint or information, the person arrested may ask for a preliminary investigation by a proper officer in accordance with this Rules .... If the case has been filed in court without a preliminary investigation having been first conducted, the accused may within five (5) days from the time he learns of the filing of the information, ask for a preliminary investigation with the same right to adduce evidence in his favor in the manner prescribed in this Rule. That right of the accused is "a substantial one." Its denial over his opposition is a "prejudicial error, in that it subjects the accused to the loss of life, liberty, or property without due process of law" (U.S. vs. Marfori, 35 Phil. 666). The need to conduct a new preliminary investigation when the defendant demands it and the allegations of the complaint have been amended, has been more than once affirmed by this Court: III. (a) ..., the Court finds that since the information for alleged violation of the Anti-Graft Law was filed without any previous notice to petitioners and due preliminary investigation thereof, and despite the dismissal of the original charge for falsification as being 'without any factual or legal basis, 'petitioners are entitled to a new preliminary investigation for the graft charge, with all the rights to which they are entitled under section 1 of Republic Act No. 5180, approved September 8, 1967, as invoked by them anew from respondent court, viz, the submittal of the testimonies in affidavit form of the complainant and his witnesses duly sworn to before the investigating fiscal, and the right of accused, through counsel, to cross-examine them and to adduce evidence in their defense. In line with the settled doctrine as restated in People vs. Abejuela (38 SCRA 324), respondent court shall hold in abeyance all proceedings in the case before it until after the outcome of such new preliminary investigation. (Luciano vs. Mariano, 40 SCRA 187, 201; emphasis ours). The right of the accused not to be brought to trial except when remanded therefor as a result of a preliminary examination before a committing magistrate, it has been held is a substantial one. Its denial over the objections of the accused is prejudicial error in that it subjects the accused to the loss of life, liberty or property without due process of law. (Conde vs. Judge of Court of First Instance of Tayabas, 45 Phil. 173,176.) The absence of a preliminary investigation if it is not waived may amount to a denial of due process. (San Diego vs. Hernandez, 24 SCRA 110, 114.) In this jurisdiction, the preliminary investigation in criminal cases is not a creation of the Constitution;its origin is statutory and it exists and the right thereto can be invoked when so established and granted by law. (Mariano Marcos, et al. vs. Roman A. Cruz, 68 Phil. 96; Emphasis supplied.) The Solicitor General's argument that the right to a preliminary investigation may be waived and was in fact waived by the petitioner, impliedly admits that the right exists. Since the right belongs to the accused, he alone may waive it. If he demands it, the State may not withhold it. However, as the absence of a preliminary investigation is not a ground to quash the complaint or information (Sec. 3, Rule 117, Rules of Court), the proceedings upon such information in the Sandiganbayan should be held in abeyance and the case should be remanded to the office of the

Ombudsman for him or the Special Prosecutor to conduct a preliminary investigation. Thus did We rule in Luciano vs. Mariano, 40 SCRA 187, 201; Ilagan vs. Enrile 139 SCRA 349 and more recently in Sanciangco, Jr. vs. People, 149 SCRA 1, 3-4: The absence of preliminary investigation does not affect the court's jurisdiction over the case. Nor do they impair the validity of the information or otherwise render it defective; but, if there were no preliminary investigations and the defendants, before entering their plea, invite the attention of the court to their absence, the court, instead of dismissing the information should conduct such investigation, order the fiscal to conduct it or remand the case to the inferior court so that the preliminary investigation may be conducted. (See People vs. Gomez, 117 SCRA 72, 77-78; citing People vs. Casiano, 1 SCRA 478). In this case, the Tanodbayan has the duty to conduct the said investigation. There is no merit in petitioner's insistence that the information should be quashed because the Special Prosecutor admitted in the Sandiganbayan that he does not possess any document signed and/or submitted to the DECS by the petitioner after he became a PCGG Commissioner (p. 49, Rollo). That admission allegedly belies the averment in the information that the petitioner "participated' in the business of the DITC in which he is prohibited by the Constitution or by law from having any interest. (Sec. 3-h, RA No. 3019). The Sandiganbayan in its order of August 19, 1988 correctly observed that "the presence of a signed document bearing the signature of accused Doromal as part of the application to bid ... is not a sine qua non" (Annex O, p. 179. Rollo), for, the Ombudsman indicated in his Memorandum/Clearance to the Special Prosecutor, that the petitioner "can rightfully be charged ...with having participated in a business which act is absolutely prohibited by Section 13 of Article VII of the Constitution" because "the DITC remained a family corporation in which Doromal has at least an indirect interest." (pp. 107-108, Rollo). Section 13, Article VII of the 1987 Constitution provides that "the President, Vice-President, the members of the Cabinet and their deputies or assistants shall not... during (their) tenure, ...directly or indirectly... participate in any business." The constitutional ban is similar to the prohibition in the Civil Service Law (PD No. 807, Sec. 36, subpar. 24) that "Pursuit of private business ... without the permission required by Civil Service Rules and Regulations" shall be a ground for disciplinary action against any officer or employee in the civil service. On the suspension of the petitioner from office, Section 13 of the Anti-Graft and Corrupt Practices Act (RA 3019) provides: SEC. 13. Suspension and loss of benefits.-Any public officer against whom any criminal prosecution under a valid information under this Act or under the provisions of the Revised Penal Code on bribery is pending in court, shall be suspended from office. Should he be convicted by final judgment, he shall lose all retirement or gratuity benefits under any law, but if he is acquitted, he shall be entitled to reinstatement and to the salaries and benefits which he failed to receive during suspension, unless in the meantime administrative proceedings have been filed against him. Since the petitioner is an incumbent public official charged in a valid information with an offense punishable under the Constitution and the laws (RA 3019 and PD 807), the law's command that he "shall be suspended from office"pendente lite must be obeyed. His approved leave of absence is not a bar to his preventive suspension for, as indicated by the Solicitor General, an approved leave, whether it be for a fixed or indefinite period, may be cancelled or shortened at will by the incumbent.

Nevertheless, as we held in Layno, Sr. vs. Sandiganbayan, 136 SCRA 536 (1985), a preventive suspension for an indefinite period of time, such as one that would last until the case against the incumbent official shall have been finally terminated, would (4 outrun the bounds of reason and result in sheer oppression" and a denial of due process. In the case of Garcia vs. The Executive Secretary, 6 SCRA 1 (1962), this Court ordered the immediate reinstatement, to his position as chairman of the National Science Development Board, of a presidential appointee whose preventive suspension had lasted for nearly seven (7) months. Some members of the Court held that the maximum period of sixty (60) days provided in Section 35 of the Civil Service Act of 1959 (Republic Act 2260) was applicable to the petitioner. The others believed, however, that period may not apply strictly to cases of presidential appointees, nevertheless, the preventive suspension shall be limited to a reasonable period. Obviously, the Court found the petitioner's preventive suspension for seven (7) months to be unreasonable. The Court stated: To adopt the theory of respondents that an officer appointed by the President, facing administrative charges can be preventively suspended indefinitely, would be to countenance a situation where the preventive suspension can, in effect, be the penalty itself without a finding of guilt after due hearing; contrary to the express mandate of the Constitution (No officer or employee in the Civil Service shall be removed or suspended except for cause as provided by law. [Art. XII, Sec. 4, Constitution of the Philippines]) and the Civil Service Law (No officer or employee in the Civil Service shall be removed or suspended except for cause as provided by law and after due process). ... In the guise of a preventive suspension, his term of office could be shortened and he could, in effect, be removed without a finding of a cause duly established after due hearing, in violation of the Constitution. .... Pursuant to the guarantee of equal protection of the laws in the Bill of Rights of our Constitution, that same ruling was applied in Deloso vs. Sandiganbayan, G.R. Nos. 86899-903, May 15,1989. The petitioner herein is no less entitled to similar protection. Since his preventive suspension has exceeded the reasonable maximum period of ninety (90) days provided in Section 42 of the Civil Service Decree of the Philippines (P.D. 807), it should now be lifted. WHEREFORE, the petition for certiorari and prohibition is granted. The Sandiganbayan shall immediately remand Criminal Case No. 12893 to the Office of the Ombudsman for preliminary investigation and shall hold in abeyance the proceedings before it pending the result of such investigation. The preventive suspension of the petitioner is hereby lifted. No costs. SO ORDERED. Fernan, C.J., Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Feliciano, Gancayco, Padilla, Bidin, Sarmiento, Cortes, Medialdea and Regalado, JJ., concur. G.R. No. 121234 August 23, 1995 HUBERT J. P. WEBB, petitioner, vs. HONORABLE RAUL E. DE LEON, the Presiding Judge of the Regional Trial Court of Paraaque, Branch 258, HONORABLE ZOSIMO V. ESCANO, the Presiding Judge of the Regional Trial Court of Paraaque, Branch 259, PEOPLE OF THE PHILIPPINES, ZENON L. DE GUIA, JOVENCITO ZUO, LEONARDO GUIYAB, JR., ROBERTO LAO, PABLO FORMARAN, and NATIONAL BUREAU OF INVESTIGATION, and HONORABLE AMELITA G.

TOLENTINO, the Presiding Judge of the Regional Trial Court of Paraaque, Branch 274, respondents, LAURO VIZCONDE, intervenor. G.R. No. 121245 August 23, 1995 MICHAEL A. GATCHALIAN, petitioner, vs. HONORABLE RAUL E. DE LEON, the Presiding Judge of the Regional Trial Court of Paraaque, Branch 258, HONORABLE ZOSIMO V. ESCANO, the Presiding Judge of the Regional Trial Court of Paraaque, Branch 259, PEOPLE OF THE PHILIPPINES, ZENON L. DE GUIYAB, JR., ROBERTO LAO, PABLO FORMARAN, and NATIONAL BUREAU OF INVESTIGATION, and HONORABLE AMELITA G. TOLENTINO, the Presiding Judge of the Regional Trial Court of Paraaque, Branch 274, respondents. G.R. No. 121297 August 23, 1995 ANTONIO L. LEJANO, petitioner, vs. HONORABLE RAUL E. DE LEON, the Presiding Judge of the Regional Trial Court of Paraaque, Branch 258, HONORABLE ZOSIMO V. ESCANO, the Presiding Judge of the Regional Trial Court of Paraaque, Branch 259, PEOPLE OF THE PHILIPPINES, ZENON L. DE GUIA, JOVENCITO ZUO, LEONARDO GUIYAB, JR., ROBERTO LAO, PABLO FORMARAN, and NATIONAL BUREAU OF INVESTIGATION, and HONORABLE AMELITA G. TOLENTINO, the Presiding Judge of the Regional Trial Court of Paraaque, Branch 274,respondents.

PUNO, J.: Before the Court are petitions for the issuance of the extraordinary writs of certiorari, prohibition and mandamuswith application for temporary restraining order and preliminary injunction to: (1) annul and set aside the Warrants of Arrest issued against petitioners by respondent Judges Raul E. de Leon and Amelita Tolentino in Criminal Case No. 95-404; (2) enjoin the respondents from conducting any proceeding in the aforementioned criminal case; and (3) dismiss said criminal case or include Jessica Alfaro as one of the accused therein. 1 From the records of the case, it appears that on June 19, 1994, the National Bureau of Investigation (NBI) filed with the Department of Justice a letter-complaint charging petitioners Hubert Webb, Michael Gatchalian, Antonio J. Lejano and six (6) other persons, 2 with the crime of Rape with Homicide. Forthwith, the Department of Justice formed a panel of prosecutors headed by Assistant Chief State Prosecutor Jovencio R. Zuo to conduct the preliminary investigation 3 of those charged with the rape and killing on June 30, 1991 of Carmela N. Vizconde; 4her mother Estrellita Nicolas-Vizconde, 5 and her sister Anne Marie Jennifer 6 in their home at Number 80 W. Vinzons, St., BF Homes, Paraaque, Metro Manila. During the preliminary investigation, the NBI presented the following: (1) the sworn statement dated May 22, 1995 of their principal witness, Maria Jessica M. Alfaro who allegedly saw the commission of the crime; 7 (2) the sworn statements of two (2) of the former housemaids of the Webb family in the persons of Nerissa E. Rosales and Mila S. Gaviola; 8 (3) the sworn-statement of Carlos J. Cristobal who alleged that on March 9, 1991 he was a passenger of United Airlines Flight No. 808 bound for New York and who expressed doubt on whether petitioner Webb was his co-passenger in the trip; (4) the sworn statement of Lolita Birrer, a former live-in partner of Gerardo Biong, who narrated the manner of how Biong investigated and tried to cover up the crime at bar; 9 (5) the sworn statements of Belen Dometita and Teofilo Minoza, two of the Vizconde

maids, and the sworn statements of Normal White, a security guard and Manciano Gatmaitan, an engineer. The autopsy reports of the victims were also submitted and they showed that Carmela had nine (9) stab wounds, Estrellita twelve (12) and Jennifer nineteen (19). 10 The genital examination of Carmela confirmed the presence of spermatozoa. 11 Before submitting his counter-affidavit, petitioner Webb filed with the DOJ Panel a Motion for Production And Examination of Evidence and Documents for the NBI to produce the following: (a) Certification issued by the U.S. Federal Bureau of Investigation on the admission to and stay of Hubert Webb in the United States from March 9, 1991 to October 22, 1992; (b) Laboratory Report No. SN-91-17 of the Medico Legal Officer, Dr. Prospero A. Cabanayan, M.D.; (c) Sworn Statements of Gerardo C. Biong (other than his Sworn Statement dated October 7, 1991); (d) Photographs of fingerprints lifted from the Vizconde residence taken during the investigation; (e) Investigation records of NBI on Engr. Danilo Aguas, et al.; (f) List of names of 135 suspects/persons investigated by the NBI per Progress Report dated September 2, 1991 submitted by Atty. Arlis Vela, Supervising Agent; (g) Records of arrest, interview, investigation and other written statements of Jessica Alfaro (other than the May 22, 1995 Sworn Statement) conducted by the NBI and other police agencies; (h) transmittal letter to the NBI, including the report of the investigation conducted by Superintendent Rodolfo C. Sison, Regional Deputy Director, NCRC; (i) The names of NBI officials/agents composing the Task Force Jecares, including their respective positions and duties; (j) Statements made by other persons in connection with the crime charged. The motion was granted by the DOJ Panel and the NBI submitted photocopies of the documents. It alleged it lost the original of the April 28, 1995 sworn statement of Alfaro. This compelled petitioner Webb to file Civil Case No. 951099 in the Regional Trial Court (RTC) of Makati, Br. 63, for the purpose, among others, of obtaining the original of said sworn statement. He succeeded, for in the course of its proceedings, Atty. Arturo L. Mercader, Jr., produced a copy of said original in compliance with a subpoena duces tecum. The original was then submitted by petitioner Webb to the DOJ Panel together with his other evidence. It appears, however, that petitioner Webb failed to obtain from the NBI the copy of the Federal Bureau of Investigation (FBI) Report despite his request for its production. Petitioner Webb claimed during the preliminary investigation that he did not commit the crime at bar as he went to the United States on March 1, 1991 and returned to the Philippines on October 27, 1992. 12 His alibi was corroborated by Honesto Aragon, Lecinia Edrosolano, Sylvia Climaco, Gina Roque, Sonia Rodriguez, Edgardo Venture and Pamela Francisco. 13 To further support his defense, he submitted documentary evidence that he bought a bicycle and a 1986 Toyota car while in the United States on said dates 14 and that he was issued by the State of California

Driver's License No. A8818707 on June 14, 1991. 15 Petitioner Webb likewise submitted the letter dated July 25, 1995 of Mr. Robert Heafner, Legal Attache of the US Embassy, citing certain records tending to confirm, among others, his arrival at San Francisco, California on March 9, 1991 as a passenger in United Airlines Flight No. 808. The other respondents Hospicio "Pyke" Fernandez, Michael Gatchalian, Antonio "Tony Boy" Lejano, Peter Estrada, Miguel Rodriguez and Gerardo Biong submitted sworn statements, responses, and a motion to dismiss denying their complicity in the rape-killing of the Vizcondes. 16 Only the respondents Joey Filart and Artemio "Dong" Ventura failed to file their counter-affidavits though they were served with subpoena in their last known address. 17 In his sworn statement, petitioner Gatchalian alleged that from 11 o'clock in the evening of June 29, 1991 until 3 o'clock in the morning of the following day, he was at the residence of his friends, Carlos and Andrew Syyap, at New Alabang Village, Muntinlupa watching video tapes. He claimed that his co-petitioner Lejano was with him. On August 8, 1995, the DOJ Panel issued a 26-page Resolution "finding probable cause to hold respondents for trial" and recommending that an Information for rape with homicide be filed against petitioners and their co-respondents, 18 On the same date, it filed the corresponding Information 19 against petitioners and their co-accused with the Regional Trial Court of Paraaque. The case was docketed as Criminal Case No. 95-404 and raffled to Branch 258 presided by respondent judge Zosimo V. Escano. It was, however, the respondent judge Raul de Leon, pairing judge of Judge Escano, who issued the warrants of arrest against the petitioners. On August 11, 1995, Judge Escano voluntarily inhibited himself from the case to avoid any suspicion about his impartiality considering his employment with the NBI before his appointment to the bench. The case was re-raffled to Branch 274, presided by Judge Amelita Tolentino who issued new warrants of arrest against the petitioners and their co-accused. On August 11, 1995, petitioner Webb voluntarily surrendered to the police authorities at Camp Ricardo Papa Sr., in Bicutan, Taguig. Petitioners Gatchalian and Lejano likewise gave themselves up to the authorities after filing their petitions before us. In their petitions at bar, petitioners contend: (1) respondent Judges de Leon and Tolentino gravely abused their discretion when they failed to conduct a preliminary examination before issuing warrants of arrest against them: (2) the DOJ Panel likewise gravely abused its discretion in holding that there is probable cause to charge them with the crime of rape with homicide; (3) the DOJ Panel denied them their constitutional right to due process during their preliminary investigation; and (4) the DOJ Panel unlawfully intruded into judicial prerogative when it failed to charge Jessica Alfaro in the Information as an accused. We find the petitions bereft of merit. I Petitioners fault the DOJ Panel for its finding of probable cause. They insist that the May 22, 1995 sworn statement of Jessica Alfaro is inherently weak and uncorroborated. They hammer on alleged material inconsistencies between her April 28, 1995 and May 22, 1995 sworn statements. They assail her credibility for her misdescription of petitioner Webb's hair as semi-blonde. They also criticize the procedure followed by the DOJ Panel when it did not examine witnesses to clarify the alleged incredulities and inconsistencies in the sworn statements of the witnesses for the NBI. We start with a restatement of the purpose of a preliminary investigation. Section 1 of Rule 112 provides that a preliminary investigation should determine " . . . whether there is a sufficient ground to engender a well-grounded belief that a crime cognizable by the Regional Trial Court has been committed and that the respondent is probably guilty thereof, and should be held for trial." Section 3 of the same Rule outlines the procedure in conducting a preliminary investigation, thus:

Sec. 3. Procedure. Except as provided for in Section 7 hereof, no complaint or information for an offense cognizable by the Regional Trial Court shall be filed without a preliminary investigation having been first conducted in the following manner: (a) The complaint shall state the known address of the respondent and be accompanied by affidavits of the complainant and his witnesses as well as other supporting documents, in such number of copies as there are respondents, plus two (2) copies for the official file. The said affidavits shall be sworn to before any fiscal, state prosecutor or government official authorized to administer oath, or, in their absence or unavailability, a notary public, who must certify that he personally examined the affiants and that he is satisfied that they voluntarily executed and understood their affidavits. (b) Within ten (10) days after the filing of the complaint, the investigating officer shall either dismiss the same if he finds no ground to continue with the inquiry, or issue a subpoena to the respondent, attaching thereto a copy of the complaint, affidavits and other supporting documents. Within ten (10) days from receipt thereof, the respondent shall submit counter-affidavits and other supporting documents. He shall have the right to examine all other evidence submitted by the complainant. (c) Such counter-affidavits and other supporting evidence submitted by the respondent shall also be sworn to and certified as prescribed in paragraph (a) hereof and copies thereof shall be furnished by him to the complainant. (d) If the respondent cannot be subpoenaed, or if subpoenaed, does not submit counter-affidavits within the ten (10) day period, the investigating officer shall base his resolution on the evidence presented by the complainant. (e) If the investigating officer believes that there are matters to be clarified, he may set a hearing to propound clarificatory questions to the parties or their witnesses, during which the parties shall be afforded an opportunity to be present but without the right to examine or cross-examine. If the parties so desire, they may submit questions to the investigating officer which the latter may propound to the parties or witnesses concerned. (f) Thereafter, the investigation shall be deemed concluded, and the investigating officer shall resolve the case within ten (10) days therefrom. Upon the evidence thus adduced, the investigating officer shall determine whether or not there is sufficient ground to hold the respondent for trial. Section 4 of Rule 112 then directs that "if the investigating fiscal finds cause to hold the respondent for trial, he shall prepare the resolution and corresponding information. He shall certify under oath that he, or as shown by the record, an authorized officer, has personally examined the complainant and his witnesses, that there is reasonable ground to believe that a crime has been committed and that the accused is probably guilty thereof . . ." The need to find probable cause is dictated by the Bill of Rights which protects "the right of the people to be secure in their persons . . . against unreasonable searches and seizures of whatever nature . . ." 20 An arrest without a probable cause is an unreasonable seizure of a person, and violates the privacy of persons which ought not to be intruded by the State. 21 Probable cause to warrant arrest is not an opaque concept in our jurisdiction. Continuing accretions of case law reiterate that they are facts and circumstances which would lead a reasonably discreet and

prudent man to believe that an offense has been committed by the person sought to be arrested. 22Other jurisdictions utilize the term man of reasonable caution 23 or the term ordinarily prudent and cautious man.24 The terms are legally synonymous and their reference is not to a person with training in the law such as a prosecutor or a judge but to the average man on the street. 25 It ought to be emphasized that in determining probable cause, the average man weighs facts and circumstances without resorting to the calibrations of our technical rules of evidence of which his knowledge is nil. Rather, he relies on the calculus of common sense of which all reasonable men have an abundance. Applying these basic norms, we are not prepared to rule that the DOJ Panel gravely abused its discretion when it found probable cause against the petitioners. Petitioners belittle the truthfulness of Alfaro on two (2) grounds: (a) she allegedly erroneously described petitioner Webb's hair as semi-blond and (b) she committed material inconsistencies in her two (2) sworn statement, thus: 26 xxx xxx xxx To illustrate, the following are some examples of inconsistencies in the two sworn statements of Alfaro: On whether Alfaro knew Carmela before the incident in question First Affidavit: She had NOT met Carmela before June 29, 1991. Second Affidavit: "I met her in a party sometime in February, 1991." On whether Alfaro saw the dead bodies First Affidavit: She did not see the three dead persons on that night. She just said "on the following day I read in the newspaper that there were three persons who were killed . . ." Second Affidavit: "I peeped through the first door on the left. I saw two bodies on top of the bed, bloodied, and in the floor, I saw Hubert on top of Carmela." On the alleged rape of Carmela Vizconde First Affidavit: She did not see the act of rape. Second Affidavit: She saw Hubert Webb "with bare buttocks, on top of Carmela and pumping, her mouth gagged and she was moaning and I saw tears on her eyes." On how Webb, Lejano, and Ventura entered the Vizconde house First Affidavit: "by jumping over the fence, which was only a little more than a meter high."

Second Affidavit: They "entered the gate which was already open." On whether Alfaro entered the Vizconde house First Affidavit: She never entered the house. Second Affidavit: "I proceeded to the iron grill gate leading to the dirty kitchen." In its Resolution, the DOJ Panel ruled that these alleged misdescription and inconsistencies did not erode the credibility of Alfaro. We quote the pertinent ruling, viz.: 27 xxx xxx xxx As regards the admissibility of Alfaro's statements, granting for purposes of argument merely that she is a co-conspirator, it is well to note that confessions of a co-conspirator may be taken as evidence to show the probability of the co-conspirator's participation in the commission of the crime (see People vs. Lumahang, 94 Phil. 1084). Furthermore, it is a well-established doctrine that conspiracy need not be proved by direct evidence of prior agreement to commit the crime. Indeed, "only rarely would such a prior agreement be demonstrable since, in the nature of things, criminal undertakings are only rarely documented by agreements in writing. Thus, conspiracy may be inferred from the conduct of the accused before, during and after the commission of the crime, showing that the several accused had acted in concert or in unison with each other, evincing a common purpose or design." (Angelo vs. Court of Appeals, 210 SCRA 402 [1992], citations omitted; People vs. Molleda, 86 SCRA 699). Neither can we discredit Alfaro merely because of the inconsistencies in her two sworn statements. InAngelo, the Court refused to discredit the testimony of a witness accusing therein petitioner for the slaying of one Gaviano Samaniego even though said witness failed to name Angelo in his affidavit which was executed five (5) months earlier. Granting, the Court continued, that a part of the witness' testimony is untrue, such circumstance is not sufficient to discredit the entire testimony of the witness. On August 7, 1995, another counsel for respondent Webb submitted his memorandum suggesting that the instant complaint "should not be decided within the month to give time to the NBI to coordinate with the FBI on the latter's inquiry into the whereabouts of Hubert Webb . . . and to check on our U.S.-based witnesses." In said memorandum, counsel for respondent Webb calls for the application of the maxim falsus in uno, falsus in omnibus arising from the inconsistencies of Alfaro's statements, among others. This is untenable. As held in Angelo: There is no rule of law which prohibits a court from crediting part of the testimony of a witness as worthy of belief and from simultaneously rejecting other parts which the court may find incredible or dubious. The

maxim falsus in uno, falsus in omnibus is not a rule of law, let alone a general rule of law which is universally applicable. It is not a legal presumption either. It is merely a latinism describing the conclusion reached by a court in a particular case after ascribing to the evidence such weight or lack of weight that the court deemed proper. In the case before us, complainant reasoned out that Alfaro was then having reservations when she first executed the first statement and held back vital information due to her natural reaction of mistrust. This being so, the panel believes that the inconsistencies in Alfaro's two sworn statements have been sufficiently explained especially specially so where there is no showing that the inconsistencies were deliberately made to distort the truth. Consequently, the probative value of Alfaro's testimony deserves full faith and credit. As it has been often noted, ex parte statements are generally incomplete because they are usually executed when the affiant's state of mind does not give her sufficient and fair opportunity to comprehend the import of her statement and to narrate in full the incidents which transpired (People vs. Sarellana, 233 SCRA 31 [1994]; Angelo vs. Court of Appeals, supra). In the case at bar, there is no dispute that a crime has been committed and what is clear before us is that the totality of the evidence submitted by the complainant indicate a prima faciecase that respondents conspired in the perpetration of the imputed offense. We note that the May 22, 1995 sworn statement of Alfaro was given with the assistance of counsel 28 and consists of six (6) pages, in single space reciting in rich details how the crime was planned and then executed by the petitioners. In addition, the DOJ Panel evaluated the supporting sworn statements of Nerissa Rosales and Mila Gaviola, former housemaids of the Webbs, Carlos J. Cristobal, a passenger in United Airlines Flight No. 808 and Lolita Birrer, a paramour of Gerardo Biong. The Panel assayed their statements as follows: 29 xxx xxx xxx According to Nerissa E. Rosales, a former housemaid of the Webb family, on June 29, 1991, between 7:00 o'clock and 8:00 o'clock in the evening, Hubert was at home inside his room with two male visitors. She knew it because she and her co-housemaid, Loany, were instructed by Hubert to bring them three glasses of juice. It was the last time she saw Hubert and was later told by then Congressman Webb that Hubert was in the United States. While Mila S. Gaviola, another former housemaid of the Webb family and who served as a laundry woman, claims, aside from corroborating the statement of Nerissa Rosales, that on June 30, 1991, she woke up at around 4:00 in the morning and as what she used to do, she entered the rooms of the Webbs to get their clothes to be washed. As a matter of fact, in that early morning, she entered Hubert's room and saw Hubert, who was only wearing his pants, already awake and smoking while he was sitting on his bed. She picked up Hubert's scattered clothes and brought them together with the clothes of the other members of the family to the laundry area. After taking her breakfast, she began washing the clothes of the Webbs. As she was washing the clothes of Hubert Webb, she noticed fresh bloodstains in his shirt. After she finished the laundry, she went to the servant's quarters. But feeling uneasy, she decided to go up to the stockroom near Hubert's room to see what he was doing. In the said stockroom, there is a small door going to Hubert's room and in that door there is a small opening where she used to see Hubert and his friends sniffing on something. She observed Hubert was quite irritated, uneasy, and walked to and from inside his room.

On that day, she noticed Hubert left the house at around 1:00 in the afternoon and came back at around 4:00 in the same afternoon and went inside his room using the secret door of the house. It was the last time that she saw Hubert until she left the Webb family. On the other hand, Carlos J. Cristobal alleged that on March 9, 1991, at about 10:00 in the morning, he was at the Ninoy Aquino International Airport as he was then scheduled to take the United Airlines Flight No. 808 at 2:00 in the afternoon for New York. At the airport's lobby, he saw then Congressman Freddie Webb with a male companion. He greeted him and Webb answered: "Mabuti naman, at ito, ihahatid ko ang anak ko papuntang Florida." He knew Freddie Webb because he often watched him then in a television show "Chicks to Chicks." He observed that the man whom Freddie Webb referred to as his son, was of the same height as Freddie. The son referred to has fair complexion with no distinguishing marks on his face. He (son of Webb) was then wearing a striped white jacket. When he and his children were already inside the plane, he did not see Freddie anymore, but he noticed his son was seated at the front portion of the economy class. He never noticed Freddie Webb's son upon their arrival in San Francisco. He claims that, while watching the television program "DONG PUNO LIVE" lately, he saw the wife of Freddie Webb with her lawyer being interviewed, and when she described Hubert as "moreno" and small built, with a height of five feet and seven inches tall, and who was the one who left for United States on March 9, 1991, he nurtured doubts because such description does not fit the physical traits of the son of Freddie, who left with him for United States on the same flight and date. Lolita Birrer, alleged that she know Gerardo Biong because she had an affair with him for almost three (3) years and in fact, she had a child with him who is now four (4) years old. Their relationship started in February, 1991 until she broke up with him in September 1993. She recalls that on June 29, 1991, at around 6:00 p.m., Biong invited her to play mahjong at the canteen of a certain Aling Glo located at the back of the Paraaque Municipal Hall. At about 2:30, in the early morning of January 30, 1991, the radio operator of the Paraaque police told Biong that he has a phone call. Before Biong went to the radio room, she was instructed to take him over and after somebody won the game, she followed Biong at the radio room where she overheard him uttering, "Ano?, Saan? Mahirap yan, Paano, o sige, aantayin kita, O ano?, dilaw na taxi, o sige." When he put the phone down, Biong told her, "Mayroon lang akong rerespondehan, ikaw muna ang maupo" and then, he went outside the canteen apparently waiting for somebody. Twenty minutes later, a taxi, colored yellow, arrived with a male passenger sitting at the backseat and parked near the canteen. After it made some signals by blinking its headlight, Biong rode thereat at the front seat beside the driver and then, they left. She was not able to recognize the male passenger because the window of the taxi was tinted. Biong came back at around 7:00 of the same morning and when he arrived, he immediately washed his hands and face, and took his handkerchief from his pocket which he threw at the trash can. She asked him why he threw his handkerchief and he answered, "Hmp . . . amoy tae." She inquired what happened in BF Homes and he replied, "Putang inang mga batang iyon, pinahirapan nila ako." Biong later invited her for breakfast, but they first went to his office where she observed him doing something in his steel cabinet while he appeared to be uneasy. Moments later, Galvan, another policeman of Paraaque, arrived and said, "Oy Biong, may tatlong patay sa BF, imbestigahan mo" to which Biong answered, "Oo susunod na ako." Biong went to the office of Capt. Don Bartolome who offered to accompany him and with whom she asked

permission to go with them. Before they proceeded to the place where the killings happened, she asked Biong if he knew the exact address and the latter immediately responded, "Alam ko na yon." She was surprised because Galvan never told him the place of the incident. As soon as they arrived at the Vizconde's residence, Biong instructed the housemaids to contact the victim's relatives, while the security guard fetched the barangay chairman and the president of the Homeowners Association. When all these persons were already in the house, Biong started recording the wounds of the victim. Inside the master's bedroom, she saw Biong took a watch from the jewelry box. Because she could not tolerate the foul odor, she and Capt. Bartolome went out of the room and proceeded to the dining area. On top of the dining table, she saw the scattered contents of a shoulder bag. Moments later, Biong came out from the room and proceeded to the front door to remove the chain lock; asked the keys from the housemaid and it was only then that the main door was opened. Biong noticed a stone in front of the broken glass of the door and requested Capt. Bartolome to go inside the servant's quarters as he doubted the housemaids' claim that they heard nothing unusual. Using the handle of his gun, Biong broke the remaining glass of the door panel. Bartolome then came out of the room and told Biong that he can hear the sound of the glass being broken. At the garage, Biong also noticed same marks on the hood of the car. On the following day, at around 12:00 noon, Biong arrived in her house together with the Vizconde housemaids. When Biong was preparing to take a bath, she saw him remove from his pocket the things she also saw from Vizconde's residence, to wit: calling cards, driver's license, ATM card, a crossed check worth P80,000.00, earrings, a ring, bracelet, necklace, and the watch he took from the jewelry box inside the room of the Vizcondes. These jewelry items were later pawned by Biong for P20,000.00 at a pawnshop in front of Chow-Chow restaurant in Santos Avenue, Paraaque. The next day, she saw Biong took from his locker at the Paraaque Police Station an imported brown leather jacket, which the latter claimed to have been given to him by the person who called him up in the early morning of June 30, 1991. Since then, Biong has been wearing said jacket until they broke up sometime in 1993. She observed that Biong seemed not interested in pursuing the investigation of the Vizconde case. In fact, when Biong and this group picked up Mike Gatchalian and brought him to the Paraaque Police Station, she was surprised that Biong halted the investigation when Gatchalian was profusely sweating while being interrogated. After the father of Gatchalian talked to Colonel Pureza, the latter called up and instructed Biong to bring Gatchalian to him (Colonel Pureza) and that was the last thing she remembered regarding this case. The DOJ Panel then weighed these inculpatory evidence against the exculpatory evidence of petitioners. It ruled:30 xxx xxx xxx The voluminous number of exhibits submitted by respondent Webb to support his defense of denial and alibi notwithstanding, the panel, after a careful and thorough evaluation of the records, believes that they cannot outweigh the evidence submitted by the complainant. Alibi cannot prevail over the positive identification made by a prosecution witness. Verily, alibi deserves scant consideration in the face of positive identification especially so where the claim of alibi is supported mainly by friends and relatives (People vs.

Apolonia, 235 SCRA 124 [1994]; People vs. Lucas, 181 SCRA 316 and a long line of cases). Similarly, denial is a self-serving negative which cannot be given greater evidentiary weight than the declaration of a credible witness who testified on affirmative matters (People vs. Carizo, 233 SCRA 687 [1994]). Indeed, denial, like alibi, is weak and becomes even more weaker when arrayed against the positive identification by the witness for the prosecution (People vs. Onpaid, 233 SCRA 62 [1994]). Surprisingly, Gatchalian's defense of alibi was not corroborated by Lejano, whom he claimed was with him watching video tapes at the Syyap residence. Other than claiming that he "was not and could not have been at or near the area of the Vizconde residence at the time of the alleged commission of the crime," respondent Lejano proffered no evidence to substantiate his claim of alibi. xxx xxx xxx On the other hand, respondent Webb seeks to enhance the acceptability of his alibi in the form of documents tending to show that he was thousands of miles away when the incident occurred. We have carefully deliberated and argued on the evidence submitted by respondent Webb in support of his absence from the country since March 9, 1991 to October 26, 1992 and found the same wanting to exonerate him of the offense charged. The material dates in this case are June 29 and 30, 1991. While respondent Webb may have submitted proof tending to show that he was issued a California driver's license on June 14, 1991, there is no showing that he could not have been in the country on the dates above mentioned. Neither do we find merit in the allegation that respondent Webb personally bought a bicycle on June 30, 1991 in California in view of his positive identification by Alfaro and the two (2) househelps of the Webb family who testified that he was here in the country on said dates. Additionally, the issuance of receipt evidencing the purchase of a bicycle in California is no conclusive proof that the name appearing thereon was the actual buyer of the merchandise. Given these conflicting pieces of evidence of the NBI and the petitioners, we hold that the DOJ Panel did not gravely abuse its discretion when it found probable cause against the petitioners. A finding of probable cause needs only to rest on evidence showing that more likely than not a crime has been committed and was committed by the suspects. Probable cause need not be based on clear and convincing evidence of guilt, neither on evidence establishing guilt beyond reasonable doubt and definitely, not on evidence establishing absolute certainty of guilt. As well put in Brinegar v. United States, 31 while probable cause demands more than "bare suspicion," it requires "less than evidence which would justify . . . conviction." A finding of probable cause merely binds over the suspect to stand trial. It is not a pronouncement of guilt. Considering the low quantum and quality of evidence needed to support a finding of probable cause, we also hold that the DOJ Panel did not, gravely abuse its discretion in refusing to call the NBI witnesses for clarificatory questions. The decision to call witnesses for clarificatory questions is addressed to the sound discretion of the investigator and the investigator alone. If the evidence on hand already yields a probable cause, the investigator need not hold a clarificatory hearing. To repeat, probable cause merely implies probability of guilt and should be determined in a summary manner. Preliminary investigation is not a part of trial and it is only in a trial where an accused can demand the full exercise of his rights, such as the right to confront and cross-examine his accusers to establish his innocence. In the case at bar,

the DOJ Panel correctly adjudged that enough evidence had been adduced to establish probable cause and clarificatory hearing was unnecessary. II We now come to the charge of petitioners that respondent Judge Raul de Leon and, later, respondent Judge Amelita Tolentino issued warrants of arrest against them without conducting the required preliminary examination. Petitioners support their stance by highlighting the following facts: (1) the issuance of warrants of arrest in a matter of few hours; (2) the failure of said judges to issue orders of arrest; (3) the records submitted to the trial court were incomplete and insufficient from which to base a finding of probable cause; and (4) that even Gerardo Biong who was included in the Information as a mere accessory had a "NO BAIL" recommendation by the DOJ Panel. Petitioners postulate that it was impossible to conduct a "searching examination of witnesses and evaluation of the documents" on the part of said judges. The issuance of a warrant of arrest interferes with individual liberty and is regulated by no less than the fundamental law of the land. Section 2 of Article III of the Constitution provides: Sec. 2. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce and particularly describing the place to be searched and the persons or things to be seized. The aforequoted provision deals with the requirements of probable cause both with respect to issuance of warrants of arrest or search warrants. The similarities and differences of their requirements ought to be educational. Some of them are pointed out by Professors LaFave and Israel, thus: 32 "It is generally assumed that the same quantum of evidence is required whether one is concerned with probable cause to arrest or probable cause to search. But each requires a showing of probabilities as to somewhat different facts and circumstances, and thus one can exist without the other. In search cases, two conclusions must be supported by substantial evidence: that the items sought are in fact seizable by virtue of being connected with criminal activity, and that the items will be found in the place to be searched. It is not also necessary that a particular person be implicated. By comparison, in arrest cases there must be probable cause that a crime has been committed and that the person to be arrested committed it, which of course can exist without any showing that evidence of the crime will be found at premises under that person's control." Worthy to note, our Rules of Court do not provide for a similar procedure to be followed in the issuance of warrants of arrest and search warrants. With respect to warrants of arrest, section 6 of Rule 112 simply provides that "upon filing of an information, the Regional Trial Court may issue a warrant for the arrest of the accused." In contrast, the procedure to be followed in issuing search warrants is more defined. Thus, Sections 3, 4 and 5 of Rule 126 provide: xxx xxx xxx Sec. 3. Requisites for issuing search warrant. A search warrant shall not issue but upon probable cause in connection with one specific offense to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the things to be seized.

Sec. 4. Examination of complainant; record. The judge must, before issuing the warrant, personally examine in the form of searching questions and answers, in writing and under oath the complainant and any witnesses he may produce on facts personally known to them and attach to the record their sworn statements together with any affidavits submitted. Sec. 5. Issuance and form of search warrant. If the judge is thereupon satisfied of the facts upon which the application is based, or that there is probable cause to believe that they exist, he must issue the warrant, which must be substantially in the form prescribed by these Rules. We discussed the difference in the Procedure of issuing warrants of arrest and search warrants in Soliven vs. Makasiar, 33 thus: xxx xxx xxx The second issue, raised by Beltran, calls for an interpretation of the constitutional provision on the issuance of warrants of arrest. The pertinent provision reads: Art. III, Sec. 2. The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized. The addition of the word "personally" after the word "determined" and the deletion of the grant of authority by the 1973 Constitution to issue warrants to "other responsible officers as may be authorized by law," has apparently convinced petitioner Beltran that the Constitution now requires the judge to personally examine the complainant and his witnesses in his determination of probable cause for the issuance of warrants of arrest. This is not an accurate interpretation. What the Constitution underscores is the exclusive and personal responsibility of the issuing judge to satisfy himself of the existence of probable cause. In satisfying himself of the existence of probable cause for the issuance of a warrant of arrest, the judge is not required to personally examine the complainant and his witnesses. Following established doctrine and procedure, he shall: (1) personally evaluate the report and the documents submitted by the fiscal regarding the existence of probable cause and, on the basis thereof, issue a warrant; or (2) if on the basis thereof he finds no probable cause, he may disregard the fiscal's report and require the submission of supporting affidavits of witnesses to aid him in arriving at a conclusions as to the existence of probable cause. Sound policy dictates this procedure, otherwise judges would be unduly laden with the preliminary examination and investigation of criminal complaints instead of concentrating on hearing and deciding cases filed before their courts.

Clearly then, the Constitution, the Rules of Court, and our case law 34 repudiate the submission of petitioners that respondent judges should have conducted "searching examination of witnesses" before issuing warrants of arrest against them. They also reject petitioners' contention that a judge must first issue an order of arrest before issuing a warrant of arrest. There is no law or rule requiring the issuance of an Order of Arrest prior to a warrant of arrest. In the case at bar, the DOJ Panel submitted to the trial court its 26-page report, the two (2) sworn statements of Alfaro and the sworn statements of Carlos Cristobal and Lolita Birrer 35 as well as the counter-affidavits of the petitioners. Apparently, the painstaking recital and analysis of the parties' evidence made in the DOJ Panel Report satisfied both judges that there is probable cause to issue warrants of arrest against petitioners. Again, we stress that before issuing warrants of arrest, judges merely determinepersonally the probability, not the certainty of guilt of an accused. In doing so, judges do not conduct a de novo hearing to determine the existence of probable cause. They just personally review the initial determination of the prosecutor finding a probable cause to see if it is supported by substantial evidence. The sufficiency of the review process cannot be measured by merely counting minutes and hours. The fact that it took the respondent judges a few hours to review and affirm the probable cause determination of the DOJ Panel does not mean they made no personal evaluation of the evidence attached to the records of the case. 36 Petitioners' reliance on the case of Allado vs. Diokno 37 is misplaced. Our Allado ruling is predicated on the utter failure of the evidence to show the existence of probable cause. Not even the corpus delicti of the crime was established by the evidence of the prosecution in that case. Given the clear insufficiency of the evidence on record, we stressed the necessity for the trial judge to make a further personal examination of the complainant and his witnesses to reach a correct assessment of the existence or nonexistence of probable cause before issuing warrants of arrest against the accused. The case at bar, however, rests on a different factual setting. As priorly discussed, the various types of evidence extant in the records of the case provide substantial basis for a finding of probable cause against the petitioner. The corpus delicti of the crime is a given fact. There is an eyewitness account of the imputed crime given by Alfaro. The alibi defense of petitioner Webb is also disputed by sworn statements of their former maids. It was therefore unnecessary for the respondent judges to take the further step of examining ex parte the complainant and their witnesses with searching questions. III Petitioners also complain about the denial of their constitutional right to due process and violation of their right to an impartial investigation. They decry their alleged hasty and malicious prosecution by the NBI and the DOJ Panel. They also assail the prejudicial publicity that attended their preliminary investigation. We reject these contentions. The records will show that the DOJ Panel did not conduct the preliminary investigation with indecent haste. Petitioners were given fair opportunity to prove lack of probable cause against them. The fairness of this opportunity is well stressed in the Consolidated Comment of the Solicitor General, viz.: Again, there is no merit in this contention. Petitioners were afforded all the opportunities to be heard. Petitioner Webb actively participated in the preliminary investigation by appearing in the initial hearing held on June 30, 1995 and in the second hearing on July 14, 1995; and by filing a "Motion for Production and Examination of Evidence and Documents" on June 27, 1995 (p. 4, Petition), a "Reply to the compliance and Comment/Manifestation to the Motion for Production and Examination of Evidence" on July 5, 1995 (p. 6, Petition), a "Comment and Manifestation" on July 7, 1995 (p. 6, Petition), his

"Counter-Affidavit" on July 14, 1995 (pp. 6-7, Petition) and a "Motion to Resolve" on August 1, 1995. Numerous letter-requests were also sent by the petitioner Webb's counsel to the DOJ Panel requesting the latter to furnish him a copy of the reports prepared by the FBI concerning the petitioner's whereabouts during the material period (Annexes "L", "L-1" and "L-2" of the Supplemental Petition dated August 14, 1995). In fact, not satisfied with the decision of the DOJ Panel not to issuesubpoena duces tecum to Atty. Arturo L. Mercader, Jr., petitioner Webb filed a "Petition for Injunction, Certiorari, Prohibition and Mandamus" with the Regional Trial Court, Branch 63 of Makati in order to compel said Atty. Mercader, Jr. to produce the first sworn statement of Alfaro for submission to the DOJ Panel. (p. 4, Petition) The said court dismissed the petition after Mercader produced and submitted to the DOJ Panel the first sworn statement of Alfaro, without ruling on the admissibility and credence of the two (2) conflicting and inconsistent sworn statements of the principal witness, Alfaro. (Attached hereto is a copy of the order of Judge Ruben A. Mendiola, RTC-Makati, Branch 63 dated July 28, 1995) marked as Annex "F." It must also be pointed out that despite the declaration by the DOJ Panel that the preliminary investigation was to be terminated after the hearing held on July 14, 1995, the panel continued to conduct further proceedings, e.g. comparison of the photo-copies of the submitted documents with the originals on July 17, 1995. (p. 7, Petition) The panel even entertained the "Response" submitted by accused Miguel Rodriguez on July 18, 1995. (p. 17 Resolution) In addition to these, the panel even announced that any party may submit additional evidence before the resolution of the case. (p. 8, Petition) From the time the panel declared the termination of the preliminary investigation on July 14, 1995, twenty-seven (27) days elapsed before the resolution was promulgated, and the information eventually filed in the Regional Trial Court of Paraaque on August 10, 1995. This notwithstanding the directive of Section 3(f) Rule 112 of the Revised Rules of Court that the investigating officer shall resolve the case within ten (10) days from the termination of the preliminary investigation. The DOJ Panel precisely allowed the parties to adduce more evidence in their behalf and for the panel to study the evidence submitted more fully. This directly disputes the allegation of the petitioners that the resolution was done with indecent haste in violation of the rights of the petitioners. During the period of twenty-seven (27) days, the petitioners were free to adduce and present additional evidence before the DOJ Panel. Verily, petitioners cannot now assert that they were denied due process during the conduct of the preliminary investigation simply because the DOJ Panel promulgated the adverse resolution and filed the Information in court against them. Petitioners cannot also assail as premature the filing of the Information in court against them for rape with homicide on the ground that they still have the right to appeal the adverse resolution of the DOJ Panel to the Secretary of Justice. The filing of said Information is in accord with Department of Justice Order No. 223, series of 1993, dated June 25, 1993. We quote its pertinent sections, viz.: Sec. 4. Non-Appealable Cases; Exceptions. No appeal may be taken from a resolution of the Chief State Prosecutor/Regional State Prosecutor/Provincial or City Prosecutor finding probable causeexcept upon showing of manifest error or grave abuse of discretion. Notwithstanding the showing of manifest error or grave abuse of discretion, no appeal shall be entertained where the appellant had already been arraigned. If the appellant is arraigned during the pendency of the appeal, said appeal shall be dismissed motu propio by the Secretary of Justice.

An appeal/motion for reinvestigation from a resolution finding probable cause, however, shall not hold the filing of the information in court. Sec. 2. When to appeal. The appeal must be filed within a period of fifteen (15) days from receipt of the questioned resolution by the party or his counsel. The period shall be interrupted only by the filing of a motion for reconsideration within ten (10) days from receipt of the resolution and shall continue to run from the time the resolution denying the motion shall have been received by the movant or his counsel. (Emphasis supplied) Without doubt then, the said DOJ Order No. 223 allows the filing of an Information in court after the consummation of the preliminary investigation even if the accused can still exercise the right to seek a review of the prosecutor's recommendation with the Secretary of Justice. Next, petitioners fault the DOJ Panel for not including Alfaro in the Information considering her alleged conspiratorial participation in the crime of rape with homicide. The non-inclusion of Alfaro is anchored on Republic Act No. 6981, entitled "An Act Providing For A Witness Protection, Security And Benefit Program And For Other Purposes" enacted on April 24, 1991. Alfaro qualified under its Section 10, which provides: xxx xxx xxx Sec. 10. State Witness. Any person who has participated in the commission of a crime and desires to a witness for the State, can apply and, if qualified as determined in this Act and by the Department, shall be admitted into the Program whenever the following circumstances are present: (a) the offense in which his testimony will be used is a grave felony as defined under the R.P.C. or its equivalent under special laws; (b) there is absolute necessity for his testimony; (c) there is no other direct evidence available for the proper prosecution of the offense committed; (d) his testimony can be substantially corroborated on its material points; (e) he does not appear to be most guilty; and (f) he has not at anytime been convicted of any crime involving moral turpitude. An accused discharged from an information or criminal complaint by the court in order that he may be a State Witness pursuant to Sections 9 and 10 of Rule 119 of the Revised Rules of Court may upon his petition be admitted to the Program if he complies with the other requirements of this Act. Nothing in this Act shall prevent the discharge of an accused so that he can be used as a Witness under Rule 119 of the Revised Rules of Court. Upon qualification of Alfaro to the program, Section 12 of the said law mandates her non-inclusion in the criminal Complaint or Information, thus:

xxx xxx xxx Sec. 12. Effect of Admission of a State Witness into the Program. The certification of admission into the Program by the Department shall be given full faith and credit by the provincial or city prosecutor who is required NOT TO INCLUDE THE WITNESS IN THE CRIMINAL COMPLAINT OR INFORMATION and if included therein, to petition the court for his discharge in order that he can be utilized as a State Witness. The court shall order the discharge and exclusion of the said accused from the information. Admission into the Program shall entitle such State Witness to immunity from criminal prosecution for the offense or offenses in which his testimony will be given or used and all the rights and benefits provided under Section 8 hereof. The validity of these provisions is challenged by petitioner Webb. It is urged that they constitute ". . . an intrusion into judicial prerogative for it is only the court which has the power under the Rules on Criminal Procedure to discharge an accused as a state witness." The argument is based on Section 9, Rule 119 38which gives the court the prerogative to approve the discharge of an accused to be a state witness. Petitioner's argument lacks appeal for it lies on the faulty assumption that the decision whom to prosecute is a judicial function, the sole prerogative of courts and beyond executive and legislative interference. In truth, the prosecution of crimes appertains to the executive department of government whose principal power and responsibility is to see that our laws are faithfully executed. A necessary component of this power to execute our laws is the right to prosecute their violators. The right to prosecute vests the prosecutor with a wide range of discretion the discretion of whether, what and whom to charge, the exercise of which depends on a smorgasbord of factors which are best appreciated by prosecutors. We thus hold that it is not constitutionally impermissible for Congress to enact R.A. No. 6981 vesting in the Department of Justice the power to determine who can qualify as a witness in the program and who shall be granted immunity from prosecution. 39 Section 9 of Rule 119 does not support the proposition that the power to choose who shall be a state witness is an inherent judicial prerogative. Under this provision, the court, is given the power to discharge a state witness only because it has already acquired jurisdiction over the crime and the accused. The discharge of an accused is part of the exercise of jurisdiction but is not a recognition of an inherent judicial function. Moreover, the Rules of Court have never been interpreted to be beyond change by legislation designed to improve the administration of our justice system. R.A. No. 6981 is one of the much sought penal reform laws to help government in its uphill fight against crime, one certain cause of which is the reticence of witnesses to testify. The rationale for the law is well put by the Department of Justice, viz.: "Witnesses, for fear of reprisal and economic dislocation, usually refuse to appear and testify in the investigation/prosecution of criminal complaints/cases. Because of such refusal, criminal complaints/cases have been dismissed for insufficiency and/or lack of evidence. For a more effective administration of criminal justice, there was a necessity to pass a law protecting witnesses and granting them certain rights and benefits to ensure their appearance in investigative bodies/courts." 40 Petitioner Webb's challenge to the validity of R.A. No. 6981 cannot therefore succeed. Further, petitioners charge the NBI with violating their right to discovery proceedings during their preliminary investigation by suppressing the April 28, 1995 original copy of the sworn statement of Alfaro and the FBI Report. The argument is novel in this jurisdiction and as it urges an expansive reading of the rights of persons under preliminary investigation it deserves serious consideration. To start with, our Rules on Criminal Procedure do not expressly provide for discovery proceedings during the preliminary investigation stage of a criminal proceeding. 41 Sections 10 and 11 of Rule 117 do provide an accused the right to move for a bill of particulars and for production or inspection of material evidence in possession of the prosecution. 42 But these provisions apply after the filing of the Complaint or Information in court and the rights are accorded

to the accused to assist them to make an intelligent plea at arraignment and to prepare for trial. 43 This failure to provide discovery procedure during preliminary investigation does not, however, negate its use by a person under investigation when indispensable to protect his constitutional right to life, liberty and property. Preliminary investigation is not too early a stage to guard against any significant erosion of the constitutional right to due process of a potential accused. As aforediscussed, the object of a preliminary investigation is to determine the probability that the suspect committed a crime. We hold that the finding of a probable cause by itself subjects the suspect's life, liberty and property to real risk of loss or diminution. In the case at bar, the risk to the liberty of petitioners cannot be understated for they are charged with the crime of rape with homicide, a non-bailable offense when the evidence of guilt is strong. Attuned to the times, our Rules have discarded the pure inquisitorial system of preliminary investigation. Instead, Rule 112 installed a quasi-judicial type of preliminary investigation conducted by one whose high duty is to be fair and impartial. 44 As this Court emphasized in Rolito Go vs. Court of Appeals, 45 "the right to have a preliminary investigation conducted before being bound over for trial for a criminal offense, and hence formally at risk of incarceration or some other penalty, is not a mere formal or technical right; it is a substantive right." A preliminary investigation should therefore be scrupulously conducted so that the constitutional right to liberty of a potential accused can be protected from any material damage. We uphold the legal basis of the right of petitioners to demand from their prosecutor, the NBI, the original copy of the April 28, 1995 sworn statement of Alfaro and the FBI Report during their preliminary investigation considering their exculpatory character, and hence, unquestionable materiality to the issue of their probable guilt. The right is rooted on the constitutional protection of due process which we rule to be operational even during the preliminary investigation of a potential accused. It is also implicit in section (3) (a) of Rule 112 which requires during the preliminary investigation the filing of a sworn complaint, which shall ". . . state the known address of the respondent and be accompanied by affidavits of the complainant and his witnesses as well as other supporting documents . . ." In laying down this rule, the Court is not without enlightened precedents from other jurisdictions. In the 1963 watershed case of Brady v. Maryland 46 the United States Supreme Court held that "suppression of evidence favorable to an accused upon request violates due process where the evidence is material to guilt or punishment, irrespective of the good faith or bad faith of the prosecution." Its progeny is the 1935 case ofMooney v. Holohan 47 which laid down the proposition that a prosecutor's intentional use of perjured testimony to procure conviction violates due process. Thus, evolved jurisprudence firming up the prosecutor's duty to disclose to the defense exculpatory evidence in its possession. 48 The rationale is well put by Justice Brennan in Brady 49 "society wins not only when the guilty are convicted but when criminal trials are fair." Indeed, prosecutors should not treat litigation like a game of poker where surprises can be sprung and where gain by guile is not punished. But given the right of petitioners to compel the NBI to disclose exculpatory evidence in their favor, we are not prepared to rule that the initial non-production of the original sworn statement of Alfaro dated April 28, 1995 could have resulted in the reasonable likelihood that the DOJ Panel would not have found probable cause. To be sure, the NBI, on July 4, 1995, upon request of petitioners, submitted a photocopy of Alfaro's April 28, 1995 sworn statement. It explained it cannot produce the original as it had been lost. Fortunately, petitioners, on July 28, 1995, were able to obtain a copy of the original from Atty. Arturo Mercader in the course of the proceedings in Civil Case No. 951099. 50 As petitioners admit, the DOJ Panel accepted the original of Alfaro's April 28, 1995 sworn statement as a part of their evidence. 51 Petitioners thus had the fair chance to explain to the DOJ Panel then still conducting their preliminary investigation the exculpatory aspects of this sworn statement. Unfortunately for petitioners, the DOJ Panel still found

probable cause to charge them despite the alleged material discrepancies between the first and second sworn statements of Alfaro. For reasons we have expounded, this finding of probable cause cannot be struck down as done with grave abuse of discretion. 52 On the other hand, the FBI Report while corroborative of the alibi of petitioner Webb cannot by itself reverse the probable cause finding of the DOJ Panel in light of the totality of evidence presented by the NBI. Finally, we come to the argument of petitioner that the DOJ Panel lost its impartiality due to the prejudicial publicity waged in the press and broadcast media by the NBI. Again, petitioners raise the effect of prejudicial publicity on their right to due process while undergoing preliminary investigation. We find no procedural impediment to its early invocation considering the substantial risk to their liberty while undergoing a preliminary investigation. In floating this issue, petitioners touch on some of the most problematic areas in constitutional law where the conflicting demands of freedom of speech and of the press, the public's right to information, and an accused's right to a fair and impartial trial collide and compete for prioritization. The process of pinpointing where the balance should be struck has divided men of learning as the balance keeps moving either on the side of liberty or on the side of order as the tumult of the time and the welfare of the people dictate. The dance of balance is a difficult act to follow. In democratic settings, media coverage of trials of sensational cases cannot be avoided and oftentimes, its excessiveness has been aggravated by kinetic developments in the telecommunications industry. For sure, few cases can match the high volume and high velocity of publicity that attended the preliminary investigation of the case at bar. Our daily diet of facts and fiction about the case continues unabated even today. Commentators still bombard the public with views not too many of which are sober and sublime. Indeed, even the principal actors in the case the NBI, the respondents, their lawyers and their sympathizers have participated in this media blitz. The possibility of media abuses and their threat to a fair trial notwithstanding, criminal trials cannot be completely closed to the press and the public. In the seminal case of Richmond Newspapers, Inc. v. Virginia, 53 it was wisely held: xxx xxx xxx (a) The historical evidence of the evolution of the criminal trial in AngloAmerican justice demonstrates conclusively that at the time this Nation's organic laws were adopted, criminal trials both here and in England had long been presumptively open, thus giving assurance that the proceedings were conducted fairly to all concerned and discouraging perjury, the misconduct of participants, or decisions based on secret bias or partiality. In addition, the significant community therapeutic value of public trials was recognized: when a shocking crime occurs, a community reaction of outrage and public protest often follows, and thereafter the open processes of justice serve an important prophylactic purpose, providing an outlet for community concern, hostility, and emotion. To work effectively, it is important that society's criminal process "satisfy the appearance of justice," Offutt v. United States, 348 US 11, 14, 99 L Ed 11, 75 S Ct 11, which can best be provided by allowing people to observe such process. From this unbroken, uncontradicted history, supported by reasons as valid today as in centuries past, it must be concluded that a presumption of openness inheres in the very nature of a criminal trial under this Nation's system of justice, Cf., e.g., Levine v. United States, 362 US 610, 4 L Ed 2d 989, 80 S Ct 1038.

(b) The freedoms of speech, press, and assembly, expressly guaranteed by the First Amendment, share a common core purpose of assuring freedom of communication on matters relating to the functioning of government. In guaranteeing freedoms such as those of speech and press, the First Amendment can be read as protecting the right of everyone to attend trials so as to give meaning to those explicit guarantees; the First Amendment right to receive information and ideas means, in the context of trials, that the guarantees of speech and press, standing alone, prohibit government from summarily closing courtroom doors which had long been open to the public at the time the First Amendment was adopted. Moreover, the right of assembly is also relevant, having been regarded not only as an independent right but also as a catalyst to augment the free exercise of the other First Amendment rights with which it was deliberately linked by the draftsmen. A trial courtroom is a public place where the people generally and representatives of the media have a right to be present, and where their presence historically has been thought to enhance the integrity and quality of what takes place. (c) Even though the Constitution contains no provision which by its terms guarantees to the public the right to attend criminal trials, various fundamental rights, not expressly guaranteed, have been recognized as indispensable to the enjoyment of enumerated rights. The right to attend criminal trials is implicit in the guarantees of the First Amendment; without the freedom to attend such trials, which people have exercised for centuries, important aspects of freedom of speech and of the press could be eviscerated. Be that as it may, we recognize that pervasive and prejudicial publicity under certain circumstances can deprive an accused of his due process right to fair trial. Thus, in Martelino, et al. vs. Alejandro, et al., 54 we held that to warrant a finding of prejudicial publicity there must be allegation and proof that the judges have been unduly influenced, not simply that they might be, by the barrage of publicity. In the case at bar, we find nothing in the records that will prove that the tone and content, of the publicity that attended the investigation of petitioners fatally infected the fairness and impartiality of the DOJ Panel. Petitioners cannot just rely on the subliminal effects of 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 experience in criminal investigation is a factor to consider in determining whether they can easily be blinded by the klieg lights of publicity. Indeed, their 26-page Resolution carries no indubitable indicia of bias for it does not appear that they considered any extra-record evidence except evidence properly adduced by the parties. The length of time the investigation was conducted despite its summary nature and the generosity with which they accommodated the discovery motions of petitioners speak well of their fairness. At no instance, we note, did petitioners seek the disqualification of any member of the DOJ Panel on the ground of bias resulting from their bombardment of prejudicial publicity. It all remains to state that the Vizconde case will move to a more critical stage as petitioners will now have to undergo trial on the merits. We stress that probable cause is not synonymous with guilt and while the light of publicity may be a good disinfectant of unfairness, too much of its heat can bring to flame an accused's right to fair trial. Without imposing on the trial judge the difficult task of supervising every specie of speech relating to the case at bar, it behooves her to be reminded of the duty of a trial judge in high profile criminal cases to control publicity prejudicial to the fair administration of justice. 55 The Court reminds judges that our ability to dispense impartial justice is an issue in every trial and in every criminal prosecution, the judiciary always stands as a silent accused. More than convicting the guilty and acquitting the innocent, the business of the judiciary is to assure fulfillment of the promise that justice shall be done and is

done and that is the only way for the judiciary to get an acquittal from the bar of public opinion. IN VIEW WHEREOF, the petitions are dismissed for lack of showing of grave abuse of discretion on the part of the respondents. Costs against petitioners. SO ORDERED. Regalado, J., concurs. Mendoza, J., concurs in the result. Narvasa, C.J., is on leave. Separate Opinion

the prosecutor/s (Circular No. 12 Guidelines on Issuance of Warrants of Arrests [June 30, 1987]; Soliven v. Makasiar, 167 SCRA 393, 398 [1988]). There is ample evidence and sufficient basis on record that support the trial court's issuance of the warrant as petitioners themselves do not contend that the prosecutors' certification was unaccompanied by the records of the preliminary investigation to take their case outside the ambit of the rule. Moreover, contrary to what the petitioners imply, the Court may not determine how cursory or exhaustive the judge's examination of the certification, report and findings of the preliminary investigation and its annexes should be as this depends not only upon the sound exercise of the judge's discretion in personally determining the existence of probable cause, but also from the circumstances of each case (Lim, Sr. v. Felix, 194 SCRA 292, 306 [1991]). Besides, respondent judge, being a public officer, enjoys the presumption of regularity in the performance of his duties (Rule 131, Sec. 3 [m], Rules of Court). The issuance of the warrants of arrest against petitioners thus can not be said to be whimsical or arbitrary. Lastly, the law in this jurisdiction is lopsided in favor of the accused. The 1987 Constitution and the Rules of Court enumerate an array of rights upon which an accused can seek protection and solace. To mention a few: he has the right to be presumed innocent until the contrary is proved, the right against self-incrimination, the right to remain silent, to confront and cross-examine the witnesses against him, to have a speedy, impartial and public trial, to be heard by himself and counsel, to have competent and independent counsel preferably of his own choice. These rights are afforded to the accused and not to the complainant. Therefore, petitioners need not be distressed if they henceforth go to trial. I vote to dismiss the petitions. Mendoza, J., concurs.

FRANCISCO, J., concurring: The thrust of petitioners' arguments involve the validity and exercise of the prosecutory powers of the State. Maintaining their innocence, petitioners assert that the filing of an information and the issuance of warrants of arrest against them were without probable cause. Petitioners, in my considered view, failed to make a case to warrant the Court's interference. Preliminary investigation, unlike trial, is summary in nature, the purpose of which is merely to determine whether a crime has been committed and whether there is probable cause to believe that the accused is guilty thereof (Paderanga v. Drilon, 196 SCRA 86, 92 [1991]). It is not intended to find guilt beyond reasonable doubt. Courts should give deference, in the absence of a clear showing of arbitrariness, as in this case, to the finding and determination of probable cause by prosecutors in preliminary investigations. If not, the functions of the courts will be unduly hampered by innumerable petitions compelling the review of the exercise of discretion on the part of fiscals or prosecuting attorneys if each time they decide to file an information in court their finding can be immediately brushed aside at the instance of those charged (Ocampo IV v. Ombudsman, 225 SCRA 725, 730 [1993]). The Court, therefore, must look askance at unmeritorious moves that could give a dent in the efficient and effective administration of justice. Petitioners characterize the evidence against them to be inherently weak and uncorroborated vis-a-vis their defenses. The weight or sufficiency of evidence, to my mind, is best assayed in the trial proper. In the search for truth, a trial has distinct merits over a preliminary investigation. We have had occasion to stress that trial is to be preferred to ferret out the truth (Abugotal v. Tiro, 66 SCRA 196, 201 [1975]). The validity and merits of a party's defense or accusation as well as the admissibility or inadmissibility of testimonies and evidence are better ventilated during the trial stage than in the preliminary investigation level. The ineluctable media attention notwithstanding, truth as to their innocence or guilt is still best determined at the trial. With respect to petitioners' contention that public respondent judge failed to personally examine and determine the existence of probable cause for the issuance of a warrant, suffice it to say that the judge does not have to personally examine the complainant and his witnesses in order to issue a warrant of arrest as he can rely on the certification of

G.R. No. 88919 July 25, 1990 PEOPLE OF THE PHILIPPINES, petitioner, vs. HONORABLE ENRIQUE B. INTING, PRESIDING JUDGE, REGIONAL TRIAL COURT, BRANCH 38, DUMAGUETE CITY, AND OIC MAYOR DOMINADOR S. REGALADO, JR., respondents.

GUTIERREZ, JR., J.: Does a preliminary investigation conducted by a Provincial Election Supervisor involving election offenses have to be coursed through the Provincial Fiscal now Provincial Prosecutor, before the Regional Trial Court may take cognizance of the investigation and determine whether or not probable cause exists? On February 6, 1988, Mrs. Editha Barba filed a letter-complaint against OIC-Mayor Dominador Regalado of Tanjay, Negros Oriental with the Commission on Elections (COMELEC), for allegedly transferring her, a permanent Nursing Attendant, Grade I, in the office of the Municipal Mayor to a very remote barangay and without obtaining prior permission or clearance from COMELEC as required by law.

Acting on the complaint, COMELEC directed Atty. Gerardo Lituanas, Provincial Election Supervisor of Dumaguete City: (1) to conduct the preliminary investigation of the case; (2) to prepare and file the necessary information in court; (3) to handle the prosecution if the evidence submitted shows a prima facie case and (3) to issue a resolution of prosecution or dismissal as the case may be. The directive to conduct the preliminary investigation was pursuant to COMELEC Resolution No. 1752 dated January 14, 1986. The resolution, in turn, is based on the constitutional mandate that the COMELEC is charged with the enforcement and administration of all laws relative to the conduct of elections for the purpose of ensuring free, orderly and honest elections (sec. 2, Article XII-C of the 1973 Constitution) and on the Omnibus Election Code which implements the constitutional provision. The Resolution provides, among others: xxx xxx xxx Further, Regional Election Directors and Provincial Election Supervisors are hereby authorized to conduct preliminary investigations of election offenses committed in their respective jurisdictions, file the corresponding complaints and/or informations in court whenever warranted, and to prosecute the same pursuant to Section 265 of the Omnibus Election Code. (Rollo, p. 15) After a preliminary investigation of Barba's complaint, Atty. Lituanas found a prima facie case. Hence, on September 26, 1988, he filed with the respondent trial court a criminal case for violation of section 261, Par. (h), Omnibus Election Code against the OIC-Mayor. In an Order dated September 30, 1988, the respondent court issued a warrant of arrest against the accused OIC Mayor. It also fixed the bail at five thousand pesos (P5,000.00) as recommended by the Provincial Election Supervisor. However, in an order dated October 3, 1988 and before the accused could be arrested, the trial court set aside its September 30, 1988 order on the ground that Atty. Lituanas is not authorized to determine probable cause pursuant to Section 2, Article III of the 1987 Constitution. The court stated that it "will give due course to the information filed in this case if the same has the written approval of the Provincial Fiscal after which the prosecution of the case shall be under the supervision and control of the latter." (at p. 23, Rollo, emphasis supplied) In another order dated November 22, 1988, the court gave Atty. Lituanas fifteen (15) days from receipt to file another information charging the same offense with the written approval of the Provincial Fiscal. Atty. Lituanas failed to comply with the order. Hence, in an order dated December 8, 1988, the trial court quashed the information. A motion for reconsideration was denied. Hence, this petition. The respondent trial court justifies its stand on the ground that the COMELEC through its Provincial Election Supervisor lacks jurisdiction to determine the existence of probable cause in an election offense which it seeks to prosecute in court because: While under Section 265 of the Omnibus Election Code approved on December 3, 1985 duly authorized legal officers of the Commission on Elections have the exclusive power to conduct preliminary investigation of all election offenses and to prosecute the same, it is doubtful whether said authority under the auspices of the 1973 Constitution, still subsists under the 1987 Constitution which has deleted in its Section 2, Article III, the phrase "and such other responsible officer as may be authorized by law" in the equivalent section and article of the 1973 Constitution. (Rollo, p. 24)

The petition is impressed with merit. We emphasize important features of the constitutional mandate that " ... no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge ... " (Article III, Section 2, Constitution) First, the determination of probable cause is a function of the Judge. It is not for the Provincial Fiscal or Prosecutor nor for the Election Supervisor to ascertain. Only the Judge and the Judge alone makes this determination. Second, the preliminary inquiry made by a Prosecutor does not bind the Judge. It merely assists him to make the determination of probable cause. The Judge does not have to follow what the Prosecutor presents to him. By itself, the Prosecutor's certification of probable cause is ineffectual. It is the report, the affidavits, the transcripts of stenographic notes (if any), and all other supporting documents behind the Prosecutor's certification which are material in assisting the Judge to make his determination. And third, Judges and Prosecutors alike should distinguish the preliminary inquiry which determines probable cause for the issuance of a warrant of arrest from the preliminary investigation proper which ascertains whether the offender should be held for trial or released. Even if the two inquiries are conducted in the course of one and the same proceeding, there should be no confusion about the objectives. The determination of probable cause for the warrant of arrest is made by the Judge. The preliminary investigation proper-whether or not there is reasonable ground to believe that the accused is guilty of the offense charged and, therefore, whether or not he should be subjected to the expense, rigors and embarrassment of trial is the function of the Prosecutor. The Court made this clear in the case of Castillo v. Villaluz (171 SCRA 39 [1989]): Judges of Regional Trial Courts (formerly Courts of First Instance) no longer have authority to conduct preliminary investigations. That authority, at one time reposed in them under Sections 13, 14 and 16 Rule 112 of the Rules of Court of 1964, (See Sec. 4, Rule 108, Rules of Court of 1940; People v. Solon, 47 Phil. 443, cited in Moran, Comments on the Rules, 1980 ed., Vol. 4, pp. 115-116) was removed from them by the 1985 Rules on Criminal Procedure, effective on January 1, 1985, (Promulgated on November 11, 1984) which deleted all provisions granting that power to said Judges. We had occasion to point this out in Salta v. Court of Appeals, 143 SCRA 228, and to stress as well certain other basic propositions, namely: (1) that the conduct of a preliminary investigation is "not a judicial function ... (but) part of the prosecution's job, a function of the executive," (2) that wherever "there are enough fiscals or prosecutors to conduct preliminary investigations, courts are counseled to leave this job which is essentially executive to them," and the fact "that a certain power is granted does not necessarily mean that it should be indiscriminately exercised." The 1988 Amendments to the 1985 Rules on Criminal Procedure, declared effective on October 1, 1988, (The 1988 Amendments were published in the issue of Bulletin Today of October 29, 1988) did not restore that authority to Judges of Regional Trial Courts; said amendments did not in fact deal at all with the officers or courts having authority to conduct preliminary investigations. This is not to say, however, that somewhere along the line RTC Judges also lost the power to make apreliminary examination for the purpose of determining whether probable cause exists to justify the issuance of a warrant

of arrest (or search warrant). Such a power indeed, it is as much a duty as it is a power has been and remains vested in every judge by the provision in the Bill of Rights in the 1935, the 1973 and the present (1987) Constitutions securing the people against unreasonable searches and seizures, thereby placing it beyond the competence of mere Court rule or statute to revoke. The distinction must, therefore, be made clear while an RTC Judge may no longer conduct preliminary investigations to ascertain whether there is sufficient ground for the filing of a criminal complaint or information, he retains the authority, when such a pleading is filed with his court, to determine whether there is probable cause justifying the issuance of a warrant of arrest. It might be added that this distinction accords, rather than conflicts, with the rationale of Salta because both law and rule, in restricting to judges the authority to order arrest, recognize that function to be judicial in nature. We reiterate that preliminary investigation should be distinguished as to whether it is an investigation for the determination of a sufficient ground for the filing of the information or it is an investigation for the determination of a probable cause for the issuance of a warrant of arrest. The first kind of preliminary investigation is executive in nature. It is part of the prosecution's job. The second kind of preliminary investigation which is more properly called preliminary examination is judicial in nature and is lodged with the judge. It is in this context that we address the issue raised in the instant petition so as to give meaning to the constitutional power vested in the COMELEC regarding election offenses. Article IX C Section 2 of the Constitution provides: Sec. 2. The Commission on Elections shall exercise the following powers and functions (1) Enforce and administer all laws and regulations relative to the conduct of an election, plebiscite, initiative, referendum, and recall. xxx xxx xxx (6) File, upon a verified complaint, or on its own initiative, petitions in court for inclusion or exclusion of votes, investigate and, where appropriate, prosecute cases of violation of election laws, including acts or omission constituting election frauds, offenses, and practices. (Emphasis supplied) In effect the 1987 Constitution mandates the COMELEC not only to investigate but also to prosecute cases of violation of election laws. This means that the COMELEC is empowered to conduct preliminary investigations in cases involving election offenses for the purpose of helping the Judge determine probable cause and for filing an information in court. This power is exclusive with COMELEC. The grant to the COMELEC of the power, among others, to enforce and administer all laws relative to the conduct of election and the concomittant authority to investigate and prosecute election offenses is not without compelling reason. The evident constitutional intendment in bestowing this power to the COMELEC is to insure the free, orderly and honest conduct of elections, failure of which would result in the frustration of the true will of the people and make a mere idle ceremony of the sacred right and duty of every qualified citizen to vote. To divest the COMELEC of the authority to investigate and prosecute offenses committed by public officials in relation to their office would thus seriously impair its effectiveness in achieving this clear constitutional mandate.

From a careful scrutiny of the constitutional provisions relied upon by the Sandiganbayan, We perceived neither explicit nor implicit grant to it and its prosecuting arm, the Tanodbayan, of the authority to investigate, prosecute and hear election offenses committed by public officers in relation to their office as contradistinguished from the clear and categorical bestowal of said authority and jurisdiction upon the COMELEC and the courts of first instance under Sections 182 and 184, respectively, of the Election Code of 1978. An examination of the provisions of the Constitution and the Election Code of 1978 reveals the clear intention to place in the COMELEC exclusive jurisdiction to investigate and prosecute election offenses committed by any person, whether private individual or public officer or employee, and in the latter instance, irrespective of whether the offense is committed in relation to his official duties or not. In other words, it is the nature of the offense and not the personality of the offender that matters. As long as the offense is an election offense jurisdiction over the same rests exclusively with the COMELEC, in view of its all-embracing power over the conduct of elections. (Corpus v. Tanodbayan, 149 SCRA 281 [1987]) Hence, the Provincial Fiscal, as such, assumes no role in the prosecution of election offenses. If the Fiscal or Prosecutor files an information charging an election offense or prosecutes a violation of election law, it is because he has been deputized by the COMELEC. He does not do so under the sole authority of his office. (People v. Basilla, et al., G.R. Nos. 83938-40, November 6, 1989).itc-asl In the instant case, there is no averment or allegation that the respondent Judge is bringing in the Provincial Fiscal as a deputy of COMELEC. He wants the Fiscal to "approve" the COMELEC's preliminary investigation. It is to be noted that on February 27, 1987 (when the 1987 Constitution was already in effect) the President issued Executive Order No. 134 which was the ENABLING ACT FOR ELECTIONS FOR MEMBERS OF CONGRESS ON MAY 11, 1987 AND FOR OTHER PURPOSES." Section 11 thereof provides: Prosecution. The Commission shall, through its duly authorized legal officers, have exclusive power to conduct preliminary investigation of all election offenses punishable as provided for in the preceding section, and to prosecute the same: Provided, That in the event that the Commission fails to act on any complaint within two (2) months from filing, the complainant may file the complaint with the Office of the Fiscal or with the Department of Justice for proper investigation and prosecution, if warranted. The Commission may avail of the assistance of other prosecuting arms of the government. It is only after a preliminary examination conducted by the COMELEC through its officials or its deputies that section 2, Article III of the 1987 Constitution comes in. This is so, because, when the application for a warrant of arrest is made and the information is filed with the court, the judge will then determine whether or not a probable cause exists for the issuance of a warrant of arrest. Bearing these principles in mind, it is apparant that the respondent trial court misconstrued the constitutional provision when it quashed the information filed by the Provincial Election Supervisor. As indicated above what the respondent trial court should have done was to enforce its September 30, 1988 order, to wit: Pursuant to Circular No. 12 of the Chief Justice of the Supreme Court dated June 30, 1987 and considering that after a personal examination of the evidence submitted by the investigating Provincial Election Supervisor III

Negros Oriental (Designated Legal Officer), there is reasonable ground for this Court to rely on the certification of said Provincial Election Supervisor III in the information that a probable cause exists, let a warrant issue for the arrest of the accused filing the bail at FIVE THOUSAND (P5,000.00) PESOS as recommended by the Provincial Election Supervisor III. The order to get the approval of the Provincial Fiscal is not only superfluous but unwarranted. WHEREFORE, the instant petition is GRANTED. The questioned Orders dated October 3, 1988, November 22, 1988 and December 8, 1988 are REVERSED and SET ASIDE. The respondent trial court's Order dated September 30, 1988 is REINSTATED. The respondent court is ordered to proceed hearing the case with deliberate speed until its termination. SO ORDERED. Fernan, C.J., Narvasa, Melencio-Herrera, Cruz, Paras, Feliciano, Gancayco, Padilla, Bidin, Sarmiento, Cortes, Grio-Aquino, Medialdea and Regalado JJ., concur. G.R. Nos. 94054-57 February 19, 1991 VICENTE LIM, SR. and MAYOR SUSANA LIM, petitioners, vs. HON. NEMESIO S. FELIX and HON. ANTONIO ALFANE, respondents. G.R. Nos. 94266-69 February 19, 1991 JOLLY T. FERNANDEZ, FLORENCIO T. FERNANDEZ, JR., NONILON A. BAGALIHOG, MAYOR NESTOR C. LIM and MAYOR ANTONIO KHO, petitioners, vs. HON. NEMESIO S. FELIX and PROSECUTOR ANTONIO C. ALFANE, respondents. Francisco R. Llamas for petitioners in G.R. Nos. 94054-57. Jolly T. Fernandez, Elenito Bagalihog, Orlando M. Danao and Hechanova, Ballicid & Associates for petitioners in G.R. Nos. 94266-69.

Thereafter, and for the purpose of preliminary investigation, the designated investigator, Harry O. Tantiado, TSg, of the PC Criminal Investigation Service at Camp Bagong Ibalon Legazpi City filed an amended complaint with the Municipal Trial Court of Masbate accusing, among others, Vicente Lim, Sr., Mayor Susana Lim of Masbate (petitioners in G.R. Nos. 9405457), Jolly T. Fernandez, Florencio T. Fernandez, Jr., Nonilon A. Bagalihog, Mayor Nestor C. Lim and Mayor Antonio Kho (petitioners in G.R. Nos. 94266-69) of the crime of multiple murder and frustrated murder in connection with the airport incident. The case was docketed as Criminal Case No. 9211. After conducting the preliminary investigation, the court issued an order dated July 31, 1989 stating therein that: . . . after weighing the affidavits and answers given by the witnesses for the prosecution during the preliminary examination in searching questions and answers, concludes that a probable cause has been established for the issuance of a warrant of arrest of named accused in the amended complaint, namely, Jimmy Cabarles, Ronnie Fernandez, Nonilon Bagalihog, Jolly Fernandez, Florencio Fernandez, Jr., Vicente Lim, Sr., Susana Lim, Nestor Lim, Antonio Kho, Jaime Liwanag, Zaldy Dumalag and Rene Tualla alias Tidoy. (Rollo, p. 58, G.R. Nos. 94054-57) xxx xxx xxx In the same Order, the court ordered the arrest of the petitioners and recommended the amount of P200,000.00 as bail for the provisional liberty of each of the accused. Petitioners Jolly Fernandez and Nonilon Bagalihog filed a motion for the reduction of bail which was granted by the court and they were allowed to post bail in the amount of P150,000.00 each. Except for Jimmy Cabarles, all the rest of the accused posted bail at P200,000.00 each. On August 29, 1989, the entire records of the case consisting of two hundred sixty one (261) pages were transmitted to the Provincial Prosecutor of Masbate. Respondent Acting Fiscal Antonio C. Alfane was designated to review the case. On September 22, 1989, Fiscal Alfane issued a Resolution which affirmed the finding of a prima facie case against the petitioners but differed in the designation of the crime in that the ruled that ". . . all of the accused should not only be charged with Multiple Murder With Frustrated Murder" but for a case of MURDER for each of the killing of the four victims and a physical injuries case for inflicting gunshot wound on the buttocks of Dante Siblante." (Annex "H", Comment of Fiscal Alfane, p. 186, Rollo, G.R. Nos. 94054-57) A motion to reconsider the Resolution filed by petitioners Vicente Lim, Sr. and Mayor Susana Lim was denied. On October 30, 1989, Fiscal Alfane filed with the Regional Trial Court of Masbate, four (4) separate informations of murder against the twelve (12) accused with a recommendation of no bail. On November 21, 1989, petitioners Vicente Lim, Sr. and Susana Lim filed with us a verified petition for change of venue. (Case No. A.M. No. 89-11-1270-MTC, formerly, G.R. Nos. 90587-90) On December 14, 1989, we issued an en banc Resolution authorizing the change of venue from the Regional Trial Court of Masbate to the Regional Trial Court of Makati to avoid a miscarriage of justice, to wit: Acting on the petition for change of venue of the trial of Criminal Cases Nos. 5811, 5812, 5813, and 5814 from the Regional Trial Court, Masbate, Masbate

GUTIERREZ, JR., J.:p May a Judge without ascertaining the facts through his own personal determination and relying solely on the certification or recommendation of a prosecutor that a probable cause exists issue a warrant of arrest? On March 17, 1989, at about 7:30 o'clock in the morning, at the vicinity of the airport road of the Masbate Domestic Airport, located at the municipality of Masbate province of Masbate, Congressman Moises Espinosa, Sr. and his security escorts, namely Provincial Guards Antonio Cortes, Gaspar Amaro, and Artemio Fuentes were attacked and killed by a lone assassin. Dante Siblante another security escort of Congressman Espinosa, Sr. survived the assassination plot, although, he himself suffered a gunshot wound. An investigation of the incident then followed.

to any of the Regional Trial Courts at Quezon City or Makati, the Court Resolved to (a) GRANT the aforesaid petition for transfer of venue in order to avoid miscarriage of justice (Article VIII, Section 5(4) of the Philippine Constitution); (b) DIRECT the Clerk of Court, Regional Trial Court, Masbate, Masbate to transmit the records of the aforesaid cases to the Executive Judge, Regional Trial Court, Makati, for raffling among the other branches of the court; and (c) ORDER the Regional Trial Court of Masbate, Masbate to desist from further taking cognizance of the said cases until such time that the petition is finally resolved. The cases were raffled to Branch 56 presided by respondent Judge Nemesio S. Felix. Petitioners Vicente Lim, Sr. and Susana Lim filed with the respondent court several motions and manifestations which in substance prayed for the following: 1. An order be issued requiring the transmittal of the initial records of the preliminary inquiry or investigation conducted by the Municipal Judge Barsaga of Masbate for the best enlightenment of this Honorable Court in its personal determination of the existence of a probable cause or prima facieevidence as well as its determination of the existence of guilt, pursuant to the mandatory mandate of the constitution that no warrant shall issue unless the issuing magistrate shall have himself been personally convinced of such probable cause. 2. Movants be given ample opportunity to file their motion for preliminary investigation as a matter of right; and 3. In the event that this court may later be convinced of the existence of a probable cause, to be allowed to file a motion for reduction of bail or for admission of bail. (p. 17, Rollo, G.R. Nos. 94054-57) In another manifestation, the Lims reiterated that the court conduct a hearing to determine if there really exists aprima facie case against them in the light of documents which are recantations of some witnesses in the preliminary investigation. The motions and manifestations were opposed by the prosecution. On July 5, 1990, the respondent court issued an order denying for lack of merit the motions and manifestations and issued warrants of arrest against the accused including the petitioners herein. The respondent Judge said: In the instant cases, the preliminary investigation was conducted by the Municipal Trial Court of Masbate, Masbate which found the existence of probable cause that the offense of multiple murder was committed and that all the accused are probably guilty thereof, which was affirmed upon review by the Provincial Prosecutor who properly filed with the Regional Trial Court four separate informations for murder. Considering that both the two competent officers to whom such duty was entrusted by law have declared the existence of probable cause, each information is complete in form and substance, and there is no visible defect on its face, this Court finds it just and proper to rely on the prosecutor's certification in each information which reads: (pp. 1920, Rollo, G.R Nos. 94054-57; Emphasis supplied) xxx xxx xxx The petitioners then filed these consolidated petitions questioning the July 5, 1990 Order.

In a Resolution dated July 17, 1990 in G.R. Nos. 94054-57, we issued ". . . a TEMPORARY RESTRAINING ORDER, effective immediately and continuing until further orders from this Court, ordering the respondent judge or his duly authorized representatives or agents to CEASE and DESIST from enforcing or implementing the warrant of arrest without bail issued against the petitioners in his Order dated July 5, 1990 in Criminal Cases Nos. 5811-14. In another Resolution dated July 31, 1990 in G.R. Nos. 94266-69, we resolved: xxx xxx xxx . . . To ISSUE writs of (1) PRELIMINARY MANDATORY INJUNCTION, ordering and directing the respondent judge to recall/set aside and/or annul the legal effects of the warrants of arrest without bail issued against and served upon herein petitioners Jolly T. Fernandez, Florencio T. Fernandez, Jr. and Nonilon Bagalihog and release them from confinement at PC-CIS Detention Center, Camp Crame, Quezon City; and (2) TEMPORARY RESTRAINING ORDER, effective immediately and continuing until further orders from this Court, ordering the respondent judge or his duly authorized representatives or agents, to CEASE AND DESIST from enforcing or implementing the warrants of arrest without bail issued against petitioners Mayors Nestor C. Lim and Antonio T. Kho. The primary issue in these consolidated petitions centers on whether or not a judge may issue a warrant of arrest without bail by simply relying on the prosecution's certification and recommendation that a probable cause exists. This is not a novel question. In the case of Placer v. Villanueva (126 SCRA 463 [1983]), we ruled that a judge may rely upon the fiscal's certification of the existence of probable cause and, on the basis thereof, issue a warrant of arrest. However, the certification does not bind the judge to come out with the warrant of arrest. This decision interpreted the "search and seizure" provision of the 1973 Constitution which provides: . . . no search warrant or warrant of arrest shall issue except upon probable cause to be determined by the judge, or such other responsible officer as may be authorized by law, after examination under oath or affirmation of the complainant and the witnesses he may produce . . . We ruled: . . . The issuance of a warrant is not a mere ministerial function; it calls for the exercise of judicial discretion on the part of the issuing magistrate. This is clear from the following provisions of Section 6, Rule 112 of the Rules of Court. Warrant of arrest, when issued. If the judge be satisfied from the preliminary examination conducted by him or by the investigating officer that the offense complained of has been committed and that there is reasonable ground to believe that the accused has committed it, he must issue a warrant or order for his arrest. Under this section, the judge must satisfy himself of the existence of 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 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 probable cause. This

has been the rule since U.S. v. Ocampo (18 Phil. 1) and Amarga v. Abbas (98 Phil. 739). And this evidently is the reason for the issuance by respondent of the questioned orders of April 13, 15, 16, 19, 1982 and July 13, 1982. Without the affidavits of the prosecution witnesses and other evidence which, as a matter of long-standing practice had been attached to the information filed in his sala, respondent found the informations inadequate bases for the determination of probable cause. For as the ensuing events would show, after petitioners had submitted the required affidavits, respondent wasted no time in issuing the warrants of arrest in the case where he was satisfied that probable cause existed. The case of Soliven v. Makasiar (167 SCRA 393 [19881) was decided after the effectivity of the 1987 Constitution. We stated: The second issue, raised by petitioner Beltran, calls for an interpretation of the constitutional provision on the issuance of warrants of arrest. The pertinent provision reads: Art. III, Sec. 2. The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized. The addition of the word "personally" after the word "determined" and the deletion of the grant of authority by the 1973 Constitution to issue warrants to "other respondent officers as may be authorized by law", has apparently convinced petitioner Beltran that the Constitution now requires the judge to personally examine the complainant and his witnesses in his determination of probable cause for the issuance of arrest. This is not an accurate interpretation. What the Constitution underscores is the exclusive and personal responsibility of the issuing judge to satisfy himself of the existence of probable cause. In satisfying himself of the existence of probable cause for the issuance of a warrant of arrest, the judge is not required to personally examine the complainant and his witnesses. Following established doctrine and procedures, he shall: (1) personally evaluate the report and the supporting documents submitted by the fiscal regarding the existence of probable cause and, on the basis thereof, issue a warrant of arrest; or (2) if on the basis thereof he finds no probable cause, he may disregard the fiscal's report and require the submission of supporting affidavits of witnesses to aid him in arriving at a conclusion as to the existence of probable cause. Sound policy dictates this procedure, otherwise judges would be unduly laden with the preliminary examinations and investigation of criminal complaints instead of concentrating on hearing and deciding cases filed before their courts. The decision in People v. Honorable Enrique B. Inting, et al. (G.R. No. 88919, July 25, 1990), reiterated the above interpretation of "personal" determination by the Judge:

We emphasize important features of the constitutional mandate that ". . . no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge . . ." (Article III, Section 2, Constitution) First, the determination of probable cause is a function of the Judge. It is not for the Provincial Fiscal or Prosecutor nor for the Election Supervisor to ascertain. Only the Judge and the Judge alone makes this determination. Second, the preliminary inquiry made by a Prosecutor does not bind the Judge. It merely assists him to make the determination of probable cause. The Judge does not have to follow what the Prosecutor presents to him. By itself, the Prosecutor's certification of probable cause is ineffectual. It is the report, the affidavits, the transcripts of stenographic notes (if any), and all other supporting documents behind the Prosecutor's certification which are material in assisting the Judge to make his determination. And third, Judges and Prosecutors alike should distinguish the preliminary inquiry which determines probable cause for the issuance of a warrant of arrest from the preliminary investigation proper which ascertains whether the offender should be held for trial or released. Even if the two inquiries are conducted in the course of one and the same proceeding, there should be no confusion about the objectives. The determination of probable cause for the warrant of arrest is made by the Judge. The preliminary investigation proper whether or not there is reasonable ground to believe that the accused is guilty of the offense charged and, therefore, whether or not he should be subjected to the expense, rigors and embarrassment of trial is the function of the Prosecutor. The Court made this clear in the case of Castillo v. Villaluz (171 SCRA 39 [19891): Judges of Regional Trial Courts (formerly Courts of First Instance) no longer have authority to conduct preliminary investigations. That authority, at one time reposed in them under Sections 13, 14 and 16, Rule 112 of the Rules of Court of 1964, (See Sec. 4, Rule 108, Rules of Court of 1940; People v. Solon, 47 Phil. 443, cited in Moran, Comments on the Rules, 1980 ed., Vol. 4, pp. 115-116) was removed from them by the 1985 Rules on Criminal Procedure, effective on January 1, 1985, (Promulgated on November 11, 1984) which deleted all provisions granting that power to said Judges. We had occasion to point tills out in Salta v. Court of Appeals, 143 SCRA 228, and to stress as well certain other basic propositions, namely: (1) that the conduct of a preliminary investigation is "not a judicial function . . . (but) part of the prosecution's job, a function of the executive," (2) that whenever "there are enough his or prosecutors to conduct preliminary investigations, courts are counseled to leave this job which is essentially executive to them," and the fact "that a certain power is granted does not necessary mean that it should be indiscriminately exercised. The 1988 Amendments to the 1985 Rules on Criminal Procedure, declared effective on October 1, 1988, (The 1988 Amendments were published in the issue of Bulletin

Today of October 29, 1988) did not restore that authority to Judges of Regional Trial Courts; said amendments did not in fact deal at all with the officers or courts having authority to conduct preliminary investigations. This is not to say, however, that somewhere along the line RTC Judges also lost the power to make a preliminary examination for the purpose of determining whether probable cause exists to justify the issuance of a warrant of arrest (or search warrant). Such a power indeed, it is as much a duty as it is a power has been and remains vested in every judge by the provisions in the Bill of Rights in the 1935, the 1973 and the present [1987] Constitutions securing the people against unreasonable searches and seizures, thereby placing it beyond the competence of mere Court Rule or Statute to revoke. The distinction must, therefore, be made clear while an RTC Judge may no longer conduct preliminary investigations to ascertain whether there is sufficient ground for the filing of a criminal complaint or information, he retains the authority, when such a pleading is filed with his court, to determine whether there is probable cause justifying the issuance of a warrant of arrest. It might be added that this distinction accords, rather than conflicts, with the rationale of Salta because both law and rule, in restricting to judges the authority to order arrest, recognize the function to be judicial in nature. We reiterate that preliminary investigation should be distinguished as to whether it is an investigation for the determination of a sufficient ground for the filing of the information or it is an investigation for the determination of a probable cause for the issuance of a warrant of arrest. The first kind of preliminary investigation is executive in nature. It is part of the prosecution's job. The second kind of preliminary investigation which is more properly called preliminary examination is judicial in nature and is lodged with the Judge. . . . Finally in the recent case of People v. Delgado, et al. (G.R. Nos. 93419-32, September 18, 1990) there is a statement that the judge may rely on the resolution of COMELEC to file the information by the same token that it may rely on the certification made by the prosecutor who conducted the preliminary investigation in the issuance of the warrant of arrest. We, however, also reiterated that ". . . the court may require that the record of the preliminary investigation be submitted to it to satisfy itself that there is probable cause which will warrant the issuance of a warrant of arrest." (Section 2, Article III, Constitution). Reliance on the COMELEC resolution or the Prosecutor's certification presupposes that the records of either the COMELEC or the Prosecutor have been submitted to the Judge and he relies on the certification or resolution because the records of the investigation sustain the recommendation. The warrant issues not on the strength of the certification standing alone but because of the records which sustain it. It is obvious from the present petition that notwithstanding the above decisions, some Judges are still bound by the inertia of decisions and practice under the 1935 and 1973 Constitutions and are sadly confused or hesitant. Prosecutors are also interested in a clear cut ruling. We will, therefore, restate the rule in greater detail and hopefully clearer terms. There is no problem with search warrants which are relatively fewer and far between and where there is no duplication of work between the Judge and the Prosecutor. The problem lies with warrants of arrest especially in metropolitan or highly urban areas. If a Judge has to personally question each complainant and witness or go over the records of the Prosecutor's investigation

page by page and word for word before he acts on each of a big pile of applications for arrest warrants on his desk, he or she may have no more time for his or her more important judicial functions. At the same time, the Judge cannot ignore the clear words of the 1987 Constitution which requires ". . . probable cause to be personally determined by the judge . . .", not by any other officer or person. If a Judge relies solely on the certification of the Prosecutor as in this case where all the records of the investigation are in Masbate, he or she has not personally determined probable cause. The determination is made by the Provincial Prosecutor. The constitutional requirement has not been satisfied. The Judge commits a grave abuse of discretion. The records of the preliminary investigation conducted by the Municipal Court of Masbate and reviewed by the respondent Fiscal were still in Masbate when the respondent Fiscal issued the warrants of arrest against the petitioners. There was no basis for the respondent Judge to make his own personal determination regarding the existence of a probable cause for the issuance of a warrant of arrest as mandated by the Constitution. He could not possibly have known what transpired in Masbate as he had nothing but a certification. Significantly, the respondent Judge denied the petitioners' motion for the transmittal of the records on the ground that the mere certification and recommendation of the respondent Fiscal that a probable cause exists is sufficient for him to issue a warrant of arrest. We reiterate the ruling in Soliven v. Makasiar that the Judge does not have to personally examine the complainant and his witnesses. The Prosecutor can perform the same functions as a commissioner for the taking of the evidence. However, there should be a report and necessary documents supporting the Fiscal's bare certification. All of these should be before the Judge. The extent of the Judge's personal examination of the report and its annexes depends on the circumstances of each case. We cannot determine beforehand how cursory or exhaustive the Judge's examination should be. The Judge has to exercise sound discretion for, after all, the personal determination is vested in the Judge by the Constitution. It can be as brief or as detailed as the circumstances of each case require. To be sure, the Judge must go beyond the Prosecutor's certification and investigation report whenever necessary. He should call for the complainant and witnesses themselves to answer the court's probing questions when the circumstances of the case so require. It is worthy to note that petitioners Vicente Lim, Sr. and Susana Lim presented to the respondent Judge documents of recantation of witnesses whose testimonies were used to establish a prima facie case against them. Although, the general rule is that recantations are not given much weight in the determination of a case and in the granting of a new trial (Tan Ang Bun v. Court of Appeals, et al. G.R. No. L-47747, February 15, 1990, People v. Lao Wan Sing, 46 SCRA 298 [1972]) the respondent Judge before issuing his own warrants of arrest should, at the very least, have gone over the records of the preliminary examination conducted earlier in the light of the evidence now presented by the concerned witnesses in view of the "political undertones" prevailing in the cases. Even the Solicitor General recognized the significance of the recantations of some witnesses when he recommends a reinvestigation of the cases, to wit: It must be pointed out, however, that among the documents attached to this Petition are affidavits of recantation subsequently executed by Jimmy Cabarles and Danilo Lozano and an affidavit executed by one, Camilo Sanano, father of the complainant's witnesses, Renato and Romeo Sanano. It was precisely on the strength of these earlier written statements of these witnesses that the Municipal Trial Court of Masbate found the existence of a prima facie case against petitioners and accordingly recommended the filing of a Criminal Information. Evidently, the same written statements were also

the very basis of the "Fiscal's Certification", since the attached affidavits of recantation were not yet then available. Since the credibility of the prosecution witnesses is now assailed and put in issue and, since the petitioners have not yet been arraigned, it would be to the broader interest of justice and fair play if a reinvestigation of this case be had to secure the petitioners against hasty prosecution and to protect them from an open and public accusation of crime, from the trouble, expense and anxiety of a public trial, and also to protect the State from useless and expensive trials (Salonga v. Pao G.R. No. 59524, February 18,1985). (Rollo of G.R. Nos. 94054-56, pp. 200-201) We reiterate that in making the required personal determination, a Judge is not precluded from relying on the evidence earlier gathered by responsible officers. The extent of the reliance depends on the circumstances of each case and is subject to the Judge's sound discretion. However, the Judge abuses that discretion when having no evidence before him, he issues a warrant of arrest. Indubitably, the respondent Judge committed a grave error when he relied solely on the Prosecutor's certification and issued the questioned Order dated July 5, 1990 without having before him any other basis for his personal determination of the existence of a probable cause. WHEREFORE, the instant petitions are hereby GRANTED. The questioned Order of respondent Judge Nemesio S. Felix of Branch 56, Regional Trial Court of Makati dated July 5, 1990 is declared NULL and VOID and SET ASIDE. The Temporary Restraining Orders and Preliminary Mandatory Injunction issued in the instant Petitions are made PERMANENT. SO ORDERED. Fernan, C.J., Narvasa, Melencio-Herrera, Cruz, Paras, Feliciano, Gancayco, Padilla, Bidin, GrioAquino, Medialdea and Regalado, JJ., concur. Sarmiento, J., took no part.