Compiled_Part IV Rule 112

8/12/2019 Compiled_Part IV Rule 112

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PEOPLE V. CA & CERBO

Panganiban, J

CarlosTheFierce

Doctrine:If the information is v alid on its face, and there is no showing of manifest error, grave

abuse of discretion and prejudice on the part of public prosecutor, the trial court should respect

such determination.

Quick Facts Summary:Prosecutor amended an information to include Billy Cerbo in the murder

case. Trial Court dismissed the amended information and ordered the prosecutor to exclude Billy

Cerbo and retain only Jonathan Cerbo as the respondent. HELD: Trial Court should respect the

determination made by the prosecutor in amending the information.

FACTS:

Jonathan Cerbo was the primary suspect for the fatal shooting of Rosalinda Dy.

An information for murder was filed against Jonathan Cerbo.

But petitioner Alynn Plezette Dy, daughter of the victim Rosalinda Dy, executed an affidavit-

complaint charging private respondent Billy Cerbo of conspiracy in the killing. Prosecutor

Protacio Lumangtad reinvestigated the case with leave of court.

Prosecution then filed an amended information including Billy Cerbo in the murder case. A

warrant for his arrest was issued.

Billy Cerbo filed a motion to quash the warrant of arrest. Trial Court dismissed the case against

Billy Cerbo and recalled the warrant for his arrest.

More importantly, the Judge ordered the prosecution to withdraw its Amended Information and

file a new one charging Jonathan Cerbo only.

ISSUE:

Whether or not the trial courts dismissal of the Information for murder against Billy Cerbo is

proper

HELD:

No. The trial court, as well as the Court of Appeals that affirmed its ruling, erred in dismissing the

Information

RATIO:

1. The determination of probable cause during a preliminary investigation is a function that

belongs to the public prosecutor. It is an executivefunction, the correctness of the exercise

of which is a matter that the trial court itself does not and may not be compelled to pass

upon.

2. The proceedings before a public prosecutorare essentially preliminary, prefatory andcannot lead to a final, definite and authoritative judgment of the guilt or innocence of

the persons charged with a felony or crime. Whether or not that function has been

correctly discharged by the public prosecutor i. e., whether or not he has made acorrect ascertainment of the existence of probable cause in a case, is a matter that the

trial court itself does not and may not be compelled to pass upon.

3. The public prosecutor has broad discretionto determine whether probable causeexists and to charge those whom be or she believes to have committed the crime as

defined by law. Otherwise stated, such official has the quasi-judicial authorityto

determine whether or not a criminal case must be filed in court.

4. In a nutshell, if the information is valid on its face, and there is no showing of

manifest error, grave abuse of discretion and prejudice on the part of public

prosecutor, the trial court should respect such determination.

DETERMINATION OF PROBABLE CAUSE

The determination of probable cause by the prosecutor is for the purpose different from

that which is to be made by the judge.

The prosecutor passes upon the question on whether or not there is reasonable ground to

believe that the accused is guilty of the offense charged and should be held for trial. The

judge, on the other hand, determines whether a warrant of arrest should be issued against

the accused.

The judge cannot rely solely on the report of the prosecutor in finding probable cause tojustify the issuance of a warrant of arrest. The judge must have sufficient supporting

documents (such as the complaint, affidavits, counter-affidavits, sworn statements of

witnesses or transcript of stenographic notes, if any) upon which to make his independent

judgment, or at the very least, upon which to verify the findings of the prosecutor as to the

existence of probable cause.

Sales v. Sandiganbayan (Ayesha)


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November 16, 2001

REYNOLAN T. SALES,

vs.

SANDIGANBAYAN (4th Division), OMBUDSMAN, PEOPLE OF THE PHILIPPINES and THELMA

BENEMERITO,

Ynares-Santiago, J.

SUMMARY: Incumbent Pagudpud Mayor Sales shot his political rival, Atty. Benemerito. A

complaint for murder was filed by his wife, Thelma. Upon determination of probable cause,

Judge Calvan issued a warrant of arrest and then forwarded the records of the case to the Office

of the Provincial Prosecutor of Ilocos Norte for appropriate action. Sales then received a

subpoena from the Provincial Prosecutor directing him to file his counter-affidavit and the

affidavits of his witnesses as well as other supporting documents, which Sales did the following

day. However, the Ilocos Norte Provincial Prosecutor, instead of conducting a preliminary

investigation of his own, merely forwarded the records submitted by J. Calvan to the

Ombudsman for the latter to conduct the same. Sales then received a notice from the

Ombudsman directing him to file his counter-affidavits, which he did not act on considering thathe had already submitted his counter-affidavits to the Provincial Prosecutor. A Resolution was

thus issued recommending the filing of an Information for Murder against Sales and four others

before the Sandiganbayan. The recommendation was approved by the Ombudsman.

SC SET ASIDE the resolution, ordered Sandiganbayan to QUASH the warrant, and

REMANDED the case to the Ombudsman for completion of the preliminary investigation. It

HELD that from the gathering of evidence until the termination of the preliminary investigation,

the state prosecutors were overly-eager to file the case and to secure a warrant of arrest of

petitioner without bail and his consequent detention. (1) There was no complete preliminary

investigation; (2) The preliminary investigation should be deeper and more thorough since Sales

is an incumbent Mayor; (3) Sales was denied his right to file a motion for reconsideration, which

is an integral part of the preliminary investigation proper; and (4) Judge Calvan, the Ombudsman,

and Sandiganbayan failed to apply the standards in determining probable cause.

DOCTRINE (feeling ko important lahat sila. T.T):

1. Rationale:The purpose of a preliminary investigation or a previous inquiry of some kind,

before an accused person is placed on trial, is to secure the innocent against hasty, malicious

and oppressive prosecution and to protect him from an open and public accusation of a crime,

from the trouble, expenses and anxiety of a public trial.It is also intended to protect the state

from having to conduct useless and expensive trials. While the right is statutory rather than

constitutional in its fundament, it is a component part of due process in criminal justice. Theright to have a preliminary investigation conducted before being bound over to 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. To deny the accuseds claim to a preliminary

investigation would be to deprive him of the full measure of his right to due process. (Duterte v.

Sandiganbayan)

2. Although a preliminary investigation is not a trial and is not intended to usurp the function

of the trial court, it is not a casual affair. The officer conducting the same investigates or inquires

into the facts concerning the commission of the crime with the end in view of determiningwhether or not an information may be prepared against the accused. Indeed, preliminary

investigation is in effect a realistic judicial appraisal of the merits of the case. Sufficient proof

of the guilt of the accused must be adduced so that when the case is tried, the trial court may

not be bound as a matter of law to order an acquittal. A preliminary investigation has been

called a judicial inquiry. It is a judicial proceeding. An act becomes a judicial proceeding when

there is an opportunity to be heard and for the production of and weighing of evidence, and a

decision is rendered thereon.

3. The authority of a prosecutor or investigating officer duly empowered to preside or to

conduct a preliminary investigation is no less than a municipal judge or even a regional trial

court judge. While the investigating officer, strictly speaking, is not a judge by the nature ofhis functions, he is and must be considered to be a quasi-judicial officerbecause a preliminary

investigation is considered a judicial proceeding. 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.

4. Since a preliminary investigation is designed to screen cases for trial, only evidence may be

considered. While even raw information may justify the initiation of an investigation, the stage

of preliminary investigation can be held only after sufficient evidence has been gathered and

evaluated warranting the eventual prosecution of the case in court.

5. It is not enough that the preliminary investigation is conducted in the sense of making sure

that a transgressor shall not escape with impunity. A preliminary investigation serves not only

the purposes of the State. More important, it is a part of the guarantee of freedom and fair

play which are the birthrights of all who live in our country. It is therefore imperative upon the

fiscal or the judge, as the case may be, to relieve the accused from the pain of going through a

trial once it is ascertained that the evidence is insufficient to sustain a prima facie case or that no

probable cause exists to form a sufficient belief as to the guilt of the accused. Although there is

no general formula or fixed rule for the determination of probable cause since the same must

be decided in the light of the conditionsobtaining in given situations and its existence depends

to a large degree upon the finding or opinion of the judge conducting the examination, such a

finding should not disregard the facts before the judge nor run counter to the clear dictates of

reason.


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6. The filing of a motion for reconsideration is an integral part of the preliminary investigation

proper.

FACTS:

August 1999: Sales, the incumbent town mayor of Pagudpud, Ilocos Norte, fatally shotthe former mayor and his political rival, Atty. Rafael Benemerito, in an alleged

shootout in Barangay Caparispisan after a heated altercation. After the shooting

incident, he surrendered and placed himself under the custody of the municipal police

then asked that he be brought to the Provincial PNP Headquarters.

Next day: PC Inspector Agno and private respondent Thelma Benemerito, wife of the

victim, filed a criminal complaint for Murder against Sales at the MCTC Bangui, Ilocos

Norte presided by Judge Calvan.

Judge Calvan then conducted a preliminary examination of the witnesses, in

accordance with Section 6 (b), Rule 112 of the Rules on Criminal Procedure, found

the existence of probable cause, and thereafter issued an order for the issuance of

a warrant for the arrest of petitioner with no bail recommended. Sales was thus

transferred the PNP Headquarters to the Provincial Jail.

Judge Calvan, after his preliminary investigation, issued a resolutionforwarding therecords of the case to the Office of the Provincial Prosecutor of Ilocos Norte for

appropriate action.He also submitted an NBI Parallel Investigation Report pursuant

to the request for Investigative Assistance made by Dra. Thelma Benemerito, wife of

the victim, with several annexed affidavits, sworn statements and documents.

Sales then received a subpoena from the Provincial Prosecutor directing him to file his

counter-affidavit and the affidavits of his witnesses as well as other supporting

documents within ten (10) days from receipt, which Sales did the following day.

Sales then filed a petition for habeas corpus with the CA alleging that the order and

warrant of arrest is null and void for being issued by a judge who was disqualified by

law from acting on the case by reason of his affinity to Thelma Benemerito; and the

preliminary examination by the judge was so illegally and irregularly conducted as to

oust the said judge of jurisdiction over the case.

CA granted the petition for habeas corpus and ordered the release of Sales subject to

the outcome of the proper preliminary investigation. It held that:

Judge Calvan is a relative within the third civil degree of affinity of Thelma

Benemerito. He is married to Susana Benemerito-Calvan, whose father is a

brother of the victim.

CA cited Sec. 1, Rule 137 of the Rules of Court which mandatorily

disqualifies a judge from sitting in a case in which he is related to

either party within the sixth degree of consanguinity or affinity. It

extends to all proceedings. It also cited Even Canon 3.12 of the

Code of Judicial Conduct mandates that a judge shall take no part

in a proceeding where the judges impartiality might be reasonably

questioned, as when he is related by consanguinity or affinity to a

party litigant within the sixth degree. Due process likewise requireshearing before an impartial and disinterested tribunal so that no

judge shall preside in a case in which he is not wholly free,

disinterested, impartial and independent.

The preliminary examination conducted by respondent Judge does not

accord with the prevailing rules. He did it under the old rules, where the

preliminary investigation by the municipal judge has two stages : (1) the

preliminary examination stage during which the investigating judge

determines whether there is reasonable ground to believe that an offense

has been committed and the accused is probably guilty thereof, so that a

warrant of arrest may be issued and the accused held for trial; and (2) the

preliminary investigation proper where the complaint or information is readto the accused after his arrest and he is informed of the substance of the

evidence adduced against him, after which he is allowed to present evidence

in his favor if he so desires. Presidential Decree 911 (further amending Sec.

1, R.A. 5180, as amended by P.D. 77) upon which the present rule is based,

removed the preliminary examination stage and integrated it into the

preliminary investigation proper. Now the proceedings consists of only one

stage.

Thus, Judge Calvan:

did not conduct the requisite investigation prior to issuance of the

arrest warrant. The Rules require an examination in writing under

oath in the form of searching questions and answers .The

statements of witnesses were not sworn before him but before the

Provincial Prosecutor. The purported transcript of stenographic

notes do not bear the signature of the stenographer.

did not complete the preliminary investigation. He claimed to have

examined only the witnesses of the complainant. He issued a

Resolution and forwarded the records to the Provincial Prosecutor

without giving the accused (petitioner) an opportunity to submit

counter-affidavits and supporting documents.

While it is true that the usual remedy to an irregular preliminary

investigation is to ask for a new preliminary investigation, such normal

remedy would not be adequate to free petitioner from the warrant of arrest

which stemmed from that irregular investigation. The Provincial Prosecution

has no power to recall the warrant of arrest.

Ilocos Norte Provincial Prosecutor on the other hand, instead of conducting apreliminary investigation of his own, merely forwarded the said records to the

Ombudsman for the latter to conduct the same.

Sales then received a notice from the Ombudsman directing him to file his counter-

affidavits. Considering that he had already submitted his counter-affidavits to the

Ilocos Norte Provincial Prosecutor, he found the directive superfluous and did not act

on it.

Graft Investigation Officer II Cynthia V. Vivar issued a Resolution recommending the

filing of an Information for Murder against Sales and four others before the

Sandiganbayan. The recommendation was approved by the Ombudsman.

Sales belatedly received a copy of said Resolution, and because he was thus effectively

prevented from seeking a reconsideration, he then filed a Motion To Defer Issuance

Of Warrant Of Arrest pending determination of probable cause . Sandiganbayan (4th

Div.) denied the motion. Sales, owing to the urgency of the matter, opted to directly file a petition with the SC


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instead of MR. Sales claims that Petitioner asserts the Information was hastily filed and

the warrant for his arrest was improper because of an incomplete preliminary

investigation.

ISSUE:WoN proper procedure was followed (NO)

HELD:WHEREFORE, in view of all the foregoing, judgment is hereby rendered:

1.] SETTING ASIDE the Resolutions of the Sandiganbayan dated July 13, 2000 and the Resolution

of Graft Investigation Officer II Cynthia V. Vivar dated May 25, 2000 in Criminal Case No. 26115;

2.] Ordering the Sandiganbayan to QUASH the warrant of arrest it issued against petitioner;

3.] REMANDING the case to the Ombudsman for completion of the preliminary investigation.

RATIO: The proper procedure in the conduct of the preliminary investigation was not followed,

for the following reasons:

1. The records show that the supposed preliminary investigation was conducted in

installments by at least three (3) different investigating officers, none of whom

completed the preliminary investigation. There was not one continuous proceeding

but rather a case of passing the buck, so to speak, the last one being the Ombudsman

hurriedly throwing the buck to the Sandiganbayan.

a. There was no showing of bad faith on the part of petitioner. It was,therefore, error for the Ombudsman to pass the buck, so to speak, to the

Sandiganbayan to find absence of bad faith. (Venus v. Desierto)

2. The charge against Sales is Murder, a non-bailable offense. The gravity of the offense

alone, not to mention the fact that the principal accused is an incumbent mayor

whose imprisonment during the pendency of the case would deprive his constituents

of their duly-elected municipal executive, should have merited a deeper and more

thorough preliminary investigation. The Ombudsman, however, did nothing of the

sort and instead swallowed hook, line and sinker the resolution and recommendation

of Graft Investigation Officer II Cynthia V. Vivar, among them the finding that, aside

from the averment of respondent that the victim fired at him and he was only forced

to fire back, no other evidence was adduced to indicate that such was whathappened.

a. Dubious circumstances:

Four affidavits on record which state in categorical terms that it

was the victim who first fired at petitioner with his Armalite rifle

and that petitioner merely returned fire. The Ombudsman,

however, neither called for the production of the firearm and the

empty shells, nor did he ask for the production of the ballistic and

laboratory examinations of the bloodstains on the Armalite rifle

despite the statement by the Provincial Fiscal of Ilocos Norte that

these pieces of evidence were all available.

Two (2) different autopsies on the cadaver of the victim, one

indicating that the victim sustained two (2) wounds only and the

other showing that the victim had three (3) wounds.

b. Given the foregoing circumstances, the Ombudsman for all practical

purposes did an even worse job than Judge Calvan for, by adopting in its

entirety the findings of the investigating officer despite its obvious flaws, he

actually did nothing at all and, in effect, threw everything to the

Sandiganbayan for evaluation.

c. Prosecutors are endowed with ample powers in order that they may properly

fulfill their assigned role in the administration of justice. It should be

realized, however, that when a man is haled to court on a criminal charge, it

brings in its wake problems not only for the accused but for his family as

well. Therefore, it behooves a prosecutor to weigh the evidence carefullyand to deliberate thereon to determine the existence of a prima facie case

before filing the information in court. Anything less would be a dereliction of

duty.

3. A person under preliminary investigation by the Ombudsman is entitled to file a

motion for reconsideration of the adverse resolution. This right is provided for in the

very Rules of Procedure of the Ombudsman (Sec. 7 Motion for Reconsideration).

a. The filing of a motion for reconsideration is an integral part of the

preliminary investigation proper. There is no dispute that the Information

was filed without first affording Sales his right to file a motion for

reconsideration. The denial thereof is tantamount to a denial of the right

itself to a preliminary investigation. This fact alone already renders

preliminary investigation conducted in this case incomplete. The inevitable

conclusion is that he was not only effectively denied the opportunity to file

a motion for reconsideration of the Ombudsmans final resolution but also

deprived of his right to a full preliminary investigation preparatory to the

filing of the information against him.

4. It was patent error for the Sandiganbayan to have relied purely on the Ombudsmans

certification of probable cause given the prevailing facts of this case much more so in

the face of the latters flawed report and one-sided factual findings. In the order of

procedure for criminal cases, the task of determining probable cause for purposes of

issuing a warrant of arrest is a responsibility which is exclusively reserved by theConstitution to judges.

a. The determination of probable cause is a function of the judge; it is not for

the provincial fiscal or prosecutor to ascertain. Only the judge and the judge

alone makes this determination; 2.] The preliminary inquiry made by a

prosecutor does not bind the judge. It merely assists him in making the

determination of probable cause. It is the report, the affidavits, the

transcripts of stenographic notes, if any, and all other supporting documents

behind the prosecutors certification which are material in assisting the judge

in his determination of probable cause; and 3.] 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 be

released. Even if the two inquiries be made in one and the same proceeding,there should be no confusion about their objectives. The determination of


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probable cause for purposes of issuing 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.

i. When the preliminary investigation is conducted by an

investigating prosecutor, in this case the Ombudsman, the

determination of probable cause by the investigating prosecutor

cannot serve as the sole basis for the issuance by the court of awarrant of arrest. This is because the court with whom the

information is filed is tasked to make its own independent

determination of probable cause for the issuance of the warrant of

arrest.

ii. Judge Calvan committed a grave error when he relied solely on the

Prosecutors certification and issued the questioned Order without

having before him any other basis for his personal determination of

the existence of probable cause.

iii. Sandiganbayans CANNOT HAVE found probable cause on its own,

considering the Ombudsmans defective report and findings, which

merely relied on the testimonies of the witnesses for the

prosecution and disregarded the evidence for the defense. It

cannot be said that the Sandiganbayan reviewed all the records

forwarded to it by the Ombudsman considering the fact that the

preliminary investigation which was incomplete escaped its notice.

iv. What the Sandiganbayan should have done, faced with such a slew

of conflicting evidence from the contending parties, was to take

careful note of the contradictions in the testimonies of the

complainants witnesses as well as the improbabilities in the

prosecution evidence.

Baytan vs Comelec

Facts:

- The Baytans registered twice in two different precincts for the upcoming elections in

violation of Omnibus Election Code (double registration)

- The Baytans then forwarded a letter to COMELEC Assistant Executive Director Jose Pio

Joson and cced COMELEC Registrar Francisco Trias asking for advice on how to cancel

the earlier registration.

- Then after, the Election Officer of Cavite City forwarded copies of the Baytans Voters

Registration Voters to Provincial Election Supervisor Juanito Ravanzo.

- Ravanzo endorsed the matter to the Regional Director for Prosecution. The Law Dept

endorsed the case to Ravanzo for resolution.

- Ranvanzo recommended filing of the Information for Double Registration against the

Baytans. The COMELEC en banc affirmed the said recommendation.

- The Baytans now challenge this on the grounds of lack of intent and substantial

compliance with cancellation of previous registration.

Issue: Whether the criminal cases should be dismissed on the ground of lack of intent and

substantial compliance with the requirement of cancellation of previous registration. NO

Held:

The assailed resolutions were issued in the preliminary investigation stage function of this is to

determine probable cause.

- Definition of probable cause - a reasonable ground of presumption that a matter is, or

may be, well founded x x x such a state of facts in the mind of the prosecutor as would

lead a person of ordinary caution and prudence to believe or entertain an honest or

strong suspicion that a thing is so. The term does not mean `actual or positive cause

nor does it import absolute certainty. It is merely based on opinion and reasonable

belief. Thus, a finding of probable cause does not require an inquiry into whether there

is sufficient evidence to procure a conviction. It is enough that it is believed that the act

or omission complained of constitutes the offense charged. Precisely, there is a trial for

the reception of evidence of the prosecution in support of the charge.

Based on the facts, a reasonably prudent man would readily conclude that there exists probable

cause to hold petitioners for trial for the offense of double registration.

- Affidavits of Baytans had glaring inconsistencies

- Double Registration is malum prohibitum intent irrelevant

- Letter to cancel was sent after 2nd

registration after election officer of Cavite has

reported their act to a higher official.

Petitioners claim of honest mistake, good faith, and substantial compliance are defenses to be

best ventilated in trial proper, not PI, because the established rule is that a preliminary

investigation is not the occasion for the full and exhaustive display of t he parties evidence. It is

for the presentation of such evidence only as may engender a well-grounded belief that an

offense has been committed and the accused is probably guilty thereof.

Paderanga v. Drilon (Millena)

Petitioners: Atty. Miguel Paderanga

Respondents: Frank Drilon, Silvestre Bello, Henrick Gingoyon, Helen Canoy and Rebecca Tan

Regalado, J., 1991

Nature of action:Civil action for mandamus and prohibition with prayer for a writ of preliminary

injunction/restraining order seeking to enjoin respondents from including the petitioner in a

criminal case for a multiple murder.


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Facts:

1. In 1986, some 5 people were charged with multiple murder for the death of Sps Bucag

and their son Renato. Felipe Galarion was tried and found guilty as charged but later

on escaped from detention.

2. In 1988, the information was amended to include Felizardo Roxas as co-accused. Roxas

retained Petitioner Paderanga as counsel.

3. As counsel for Roxas, Paderanga filed motion to dismiss and quash the warrant of

arrest and nullify the arraignment on Ocrober 14, 1088. Motion was dismissed but City

Prosecutor was directed to conduct another preliminary investigation or

reinvestigation in order to the accused opportunity to adduce evidence.4. During the preliminary investigation, through a signed affidavit, Roxas implicated

Paderanga in the commission of the crime.

5. City Prosecutor of Cagayan inhibited from the case and requested DOJ to designate a

state prosecutor to continue the PI.

6. Designated State Pros Gingoyon, in a resolution, directed the amendment of the

previously amended information to include and implead Paderanga.

7. Paderanga moved for reconsideration contending that the PI was not yet completed

when the resolution was promulgated and that he was not able to present

corresponding counter-affidavit and additional evidence crucial to the determination

of his linkage to the crime.Motion denied. Petition for review with t he DOJ. Usec Bello

denied petition, hence this petition.

Issues:

1. WON the preliminary investigation as to him was not complete.NO, PI complete.

2. WON there exists no prima facie evidence or probable cause to justify his inclusion in the

second amended information. NO, there is prima facie evidence.

Held:

1. Preliminary investigation is generally inquisitorial, and it is often the only means of discovering

the persons who may be reasonably charged with a crime, to enable the fiscal to prepare his

complaint or information. It is not a trial of the case on the merits and has no purpose except

that of determining whether a crime has been committed and whether there is probable cause

to believe that the accused is guilty thereof, and it does not place the person against whom it is

taken in jeopardy.

The institution of a criminal action depends upon the sound discretion of the fiscal. He has the

quasi-judicial discretion to determine whether or not a criminal case should be filed in

court.Hence, the general rule is that an injunction will not be granted to restrain a criminal

prosecution.The case of Brocka, et al.vs.Enrile, et al.cites several exceptions to the rule, to wit:

a. To afford adequate protection to the constitutional rights of the accused;

b. When necessary for the orderly administration of justice or to avoid oppression or

multiplicity of actions;

c. When there is a pre-judicial question which is sub judice;

d. When the acts of the officer are without or in excess of authority;

e. Where the prosecution is under an invalid law, ordinance or regulation;

f. When double jeopardy is clearly apparent;

g. Where the court has no jurisdiction over the offense;

h. Where it is a case of persecution rather than prosecution;

i. Where the charges are manifestly false and motivated by the lust for vengeance; and

j. When there is clearly noprima faciecase against the accused and a motion to quash on

that ground has been denied.

The case of the petitioner does not fall under any of the above exceptions.

Firstly, Petitioner was able to file a counter affidavit. Such is sufficient compliance with the

procedural requirement of ROC Sec. 3b of Rule 112. Secondly, the credibility of the witnesses

and their testimonies are matters that will be best addressed during the trial. Thirdly, the right ofpetitioner to ask clarificatory questions is not absolute. It is discretionary upon the fiscal (Sec 3e

Rule 112). Lastly, the proper forum before which absence of preliminary investigation should be

ventilated is the Court of First Instance not an appellate court.

2. There existsprima facieevidenceof petitioner's involvement in the commission of the crime,

it being sufficiently supported by the evidence presented and the facts obtaining therein.

A preliminary investigation is defined as an inquiry or proceeding for the purpose of determining

whether there is sufficient ground to engender a well founded 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 t rial.

A preliminary investigation is not the occasion for the full and exhaustive display of the parties'

evidence.

It is a fundamental principle that the accused in a preliminary investigation has no right to cross-

examine the witnesses which the complainant may present. Section 3, Rule 112 of the Rules of

Court expressly provides that the respondent shall only have the right to submit a counter-

affidavit, to examine all other evidence submitted by the complainant and, where the fiscal sets

a hearing to propound clarificatory questions to the parties or their witnesses, to be afforded an

opportunity to be present but without the right to examine or cross-examine.

Petition dismissed.

Go v. CA (Monfort)


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En Banc | G.R. No. 101837 | 11 February 1992 | Feliciano,J.

FACTS:

Eldon Maguanwas driving his car when Rolito Goentered a one-way street and started

travelling in the opposite direction. At the corner of these streets, their cars nearly bumped each

other. Go alighted from his car, walked over and shot Maguan inside his car. Go left the scene. A

security guard was able to take down the cars plate number. Verification at LTO showed that the

car was registered to Elsa Ang Go.

Go presented himself before the police and they detained him. An eyewitness identified him asthe gunman. The police promptly filed a complaint for frustrated homicide against Go with t he

Office of the Prov. Prosecutor of Rizal. First Assistant Prov. Prosecutor Dennis Villa Ignacio

informed Go, in the presence of Gos lawyers, that he could avail himself of his right to

preliminary investigation but that he must first sign a waiver of the provisions of Art. 125 of the

RPC. Go refused.

While the complaint was still with the Prosecutor, and before an information could be filed in

court, Maguan died.

Prosecutor filed an information for murder. No bail was recommended. At the bottom of the

information, the Prosecutor certified that no preliminary investigation had been conducted

because the accused did not execute and sign a waiver of the provisions of Art. 125 of the RPC.

Gos counsel filed with the Prosecutor an omnibus motion for immediate release and proper

preliminary investigation, alleging that the warrantless arrest of Go was unlawful and that nopreliminary investigation had been conducted before the information was filed. Go also prayed

that he be released on recognizance or on bail. Prov. Prosecutor Mauro Castro interposed no

objection. RTC approved the cash bond and Go was in fact released.

Prosecutor filed with RTC a motion for leave to conduct preliminary investigation and prayed

that in the meantime all proceedings in the court be suspended. RTC granted the motion and

cancelled the arraignment until after the prosecution shall have concluded its preliminary

investigation. However, RTC motu proprio(1) recalled the bail and Go was given 48 hours to

surrender himself; (2) recalled the leave to the prosecutor to conduct preliminary investigation;

(3) treated Gos omnibus motion for immediate release and preliminary investigation as a

petition for bail.

Go surrendered to the police. He was released thru the writ of habeas corpus. His petition for

certiorari, prohibition and mandamusand even for habeas corpus are consolidated by the CA,

but it dismissed these petitions. Hence, this certiorari.

ISSUE:

WON Go had waived his right to preliminary investigation.

HELD:

NO. The preliminary investigation was to be conducted by the Prosecutor, not by the Regional

Trial Court.

In Crespo v. MogulThe preliminary investigation conducted by the fiscal for the purpose of

determining whether a prima facie case exists warranting the prosecution of the accused is

terminated upon the filing of the information in the proper court. In turn, as above stated, thefiling of said information sets in motion the criminal action against the accused in Court. Should

the fiscal find it proper to conduct a reinvestigation of the case, at such stage, the permission of

the Court must be secured. After such reinvestigation the finding and recommendations of the

fiscal should be submitted to the Court for appropriate action. While it is true that the fiscal has

the quasi judicial discretion to determine whether or not a criminal case should be filed in court

or not, once the case had already been brought to Court whatever disposition the fiscal may feel

should be proper in the case thereafter should be addressed for the consideration of the Court.

The only qualification is that the action of the Court must not impair the substantial rights of the

accused, or the right of the People to due process of law. The rule therefore in this jurisdiction is

that once a complaint or information is filed in Court any disposition of the case [such] as its

dismissal or the conviction or acquittal of the accused rests in the sound discretion of the Court.Although the fiscal retains the direction and control of the prosecution of criminal cases even

while the case is already in Court he cannot impose his opinion on the trial court. The Court is

the best and sole judge on what to do with the case before it.

Nonetheless, since Go in his omnibus motion was asking for preliminary investigation and not for

a re-investigation (Crespo v. Mogul involved a re-investigation), and since the Prosecutor himself

did file with the trial court on the 5th day after filing the information for murder, a motion for

leave to conduct preliminary investigation (attaching to his motion a copy of Go's omnibus

motion), we conclude that Go's omnibus motion was in effect filed with the trial court. What was

crystal clear was that Go did ask for a preliminary investigation on the very day that the

information was filed without such preliminary investigation, and that the trial court was five (5)

days later apprised of the desire of the Go for such preliminary investigation. Finally, the trial

court did in fact grant the Prosecutor's prayer for leave to conduct preliminary investigation.Thus, even on the (mistaken) supposition apparently made by the Prosecutor that Section 7 of

Rule 112 of the Revised Court was applicable, the 5-day reglementary period in Section 7, Rule

112 must be held to have been substantially complied with.

While that right is statutory rather than constitutional in its fundament s ince it has in fact been

established by statute, it is a component part of due process in criminal justice. The right to have

a preliminary investigation conducted before being bound over to trial for a criminal offense and

hence formally at risk of incarceration or so me other penalty, is not a mere formal or technical

right; it is a subst antive right. The accused in a criminal trial is inevitably exposed to prolonged

anxiety, aggravation, humiliation, not to speak of expense; the right to an opportunity to avoid a

process painful to any one save, perhaps, to hardened criminals, is a valuable right. To deny Go's

claim to a preliminary investigation would be to deprive him of the full measure of his right to

due process.

The rule is that the right to preliminary investigation is waived when the accused fails to invoke it

before or at the time of entering a plea at arraignment. In the instant case, Go had vigorously

insisted on his right t o preliminary investigation before his arraignment. At the time of his

arraignment, Go was already before the Court of Appeals on certiorari, prohibition and

mandamusprecisely asking for a preliminary investigation before being forced to stand trial.

Go remains entitled to a preliminary investigation although trial on the merits has already began.

Trial on the merits should be suspended or held in abeyance and a preliminary investigation

forthwith accorded to Go.

ALLADO v DIOKNO

232 SCRA 192 BELLOSILLO; May 5, 1994


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FACTS:

Petitioners Diosdado Jose Allado and Roberto L.Mendoza, alumni of the College of law,

University of the Philippines, are partners of the Law Firm of Salonga, Hernandez and Allado

(Their counsel in this case is Jovito Salonga). In the practice of their profession, and on the basis

of an alleged extrajudicial confession of a security guard (Umbal), they have been accused of the

heinous crime of kidnapping with murder of a German national named Van Twest by the

Presidential Anti-Crime Commission (PACC) and ordered arrested without bail by respondent

judge.

Petitioners filed this petition and principally contended that respondent judge acted with grave

abuse of discretion and in excess of jurisdiction in "whimsically holding that there is probable

cause against petitioners without determining the admissibility of the evidence against

petitioners and without even stating the basis of his findings," and in "relying on the Resolution

of the Panel and their certification that probable cause exists when the certification is flawed."

Petitioners maintain that the records of the preliminary investigation which respondent judge

solely relied upon failed to establish probable cause against them to justify the issuance of the

warrant of arrest. Petitioners likewise assail the prosecutors' "clear sign of bias and partiality."

On the other hand, the Office of the Solicitor General argues that the determination of probablecause is a function of the judge who is merely required to personally appreciate certain facts to

convince him that the accused probably committed the crime charged.

ISSUE:

W/N the respondent judge committed grave abuse of discretion in the issuance of the warrant of

arrest.

HELD:

In the Order of respondent judge, it is expressly stated that "[t]his court after careful evaluationof the evidence on record, believes and rules that probable cause exists; and therefore, a

warrant ofarrest should be issued. "However, we are unable to see how respondent judge

arrived at such ruling. We have painstakingly examined the records and we cannot find any

support for his conclusion. On the contrary, we discern a number of reasons why we consider

the evidence submitted to be insufficient for a finding of probable cause against petitioners.

The PACC relies heavily on the sworn statement of Security Guard Umbal who supposedly

confessed his participation in the alleged kidnapping and murder of Van Twest. For one, there is

serious doubt on VanTwest's reported death since the corpus delicti has not been established,

nor have his remains been recovered. Umbal claims that Van Twest was completely burned into

ashes with the use of gasoline and rubber tires from around ten o'clock in the evening to sixo'clock the next morning. This is highly improbable, if not ridiculous. A human body cannot be

pulverized into ashes by simply burning it with the use of gasoline and rubber tires in an open

field. Even crematoria use entirely closed incinerators where the corpse is subjected to intense

heat. Thereafter, the remains undergo a process where the bones are completely ground to

dust.

Strangely, if not awkwardly, after Van Twest's reported abduction, which culminated in his

decimation by cremation, his counsel continued to represent him before judicial and quasi-

judicial proceedings. Hence, even Asst. Solicitor General Estoesta believes that counsel of Van

Twest doubted the latter's death.

Verily, respondent judge committed grave abuse of discretion in issuing the warrant for the

arrest of petitioners it appearing that he did not personally examine the evidence nor did he

call for the complainant and his witnesses in the face of their incredible accounts. Instead, he

merely relied on the certification of the prosecutors that probable cause existed . For,

otherwise, he would have found out that the evidence thus far presented was utterly insufficient

to warrant the arrest of petitioners.

In Soliven v. Makasiar, we said that the judge (a)shall 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, (b) if on the basis thereof he finds no probablecause, may disregard the fiscal's report and require the submission of supporting affidavits of

witnesses to aid him in arriving at a conclusion on the existence of probable cause.

In People v. Inting, we emphasized the important features of the constitutional mandate: (a) The

determination of probable cause is a function of the judge; it is not for the provincial fiscal or

prosecutor to ascertain. Only the judge and the judge alone makes this determination; (b) The

preliminary inquiry made by a prosecutor does not bind the judge. It merely assists him in

making the determination ofprobable 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 transcript of stenographic notes (if any), and all

other supporting documents behind the prosecutor's certification which are material in assistingthe judge in his determination of probable cause; and, (c)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 ascertainswhether the

offender should be held for trial or released. Even if the two inquiries be conducted inthe course

of one and the same proceeding, there should be no confusion about their objectives. The

determination of probable cause for the warrant 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 a function of the prosecutor.

Dispositive: Petition granted.


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Webb v De Leon

-NBI filed with DOJ a letter complaint charging petitioners with crime of rape with homicide of

the Vizcondes. DOJ panel thus conducts PI of those charged with said crime

-NBI presented, among other evidence, a sworn statement dated May 22, 1995 of their principal

witness, Maria Jessica M. Alfaro who allegedly saw the commission of the crime

-Petitioner Webb claims during PI that he did not commit said crime (on June 30, 1991) since he

was in the US from March 1991 to October 1992

-Petitioner Webb produced documentary evidence that he bought a bicycle and a 1986 Toyota

car while in the US on said dates and that he was issued by the State of California a Driver's

License on June 14, 1991.

-Petitioner also submitted a letter from a Legal Attache of the US Embassy, citing certain records

tending to confirm, among others, his arrival at California on March 9, 1991 as a passenger in a

United Airlines plane

Issues:

1) WON there was grave abuse of discretion in the DOJ's finding of probable cause to charge

petitioners with said crime

2) WON DOJ Panel denied Petitioners their constitutional right to due process during their

preliminary investigation

Held:

1)No

-Petitioners fault the DOJ Panel for its finding of probable cause. Alfaro's May 22, 1995 sworn

statement was inherently weak and uncorroborated due to alleged material inconsistencies in

relation to her April 28, 1995 sworn statement. Alfaro also allegedly and erroneously described

petitioner Webb's hair as semi-blond.

-purpose of a PI per Section 1 of Rule 112: a preliminary investigation should determine " . . .

whether there is a sufficient ground to engender a well-grounded belief that a crime cognizableby the Regional Trial Court has been committed and that the respondent is probably guilty

thereof, and should be held for trial."

-Probable cause to warrant arrest pertains to 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.

-in determining probable cause, the average man weighs facts and circumstances withoutresorting 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.

-Alleged inconsistencies:

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:


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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."

-DOJ Panel ruled that these alleged misdescription and inconsistencies did not erode the

credibility of Alfaro.

-DOJ Panel cited Angelo v CA: "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 maximfalsus in uno, falsus in omnibusis 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."

-DOJ Panel: Alfaro was then having reservations when she 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.

-DOJ Panel: 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 t o comprehend

the import of her statement and to narrate in full the incidents which transpired.

-DOJ Panel: 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

facie case that respondents conspired in the perpetration of the imputed offense.

-DOJ Panel's final evaluation of NBI inculpatory evidence vs petitioner's exculpatory evidence:

despite evidence submitted by [petitioner] Webb to support his defense of denial and alibi, 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. Alibi deserves scant consideration in the face of positive

identification especially so where the claim of alibi is supported mainly by friends and relatives

-DOJ on petitioner Webb's exculpatory evidence: material dates in t his 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. No 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.

-SC: Given conflicting pieces of evidence of the NBI and the petitioners, 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 hasbeen 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

-SC quoting Brinnegar v US: 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.


11/21

-SC: Considering the low quantum and quality of evidence needed to support a finding of

probable cause the DOJ Panel did not g ravely 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. Probable cause merely implies probability of guilt and should bedetermined 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.

2)No

-Petitioners assailed their alleged hasty and malicious prosecution by the NBI and the DOJ Panel.

They also assailed the prejudicial publicity that att ended their preliminary investigation.

-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

-Rules on Criminal Procedure do not expressly provide for discovery proceedings during the

preliminary investigation stage of a criminal proceeding. 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. 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.

-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. PI is not too early a stage to guard against any significant

erosion of the constitutional right to due process of a potential accused. The object of PI is to

determine the probability that the suspect committed a crime. Finding of a probable cause byitself 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.

-Rules of procedure 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.

-Go vs CA: "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."

-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.

-petitioners thus have the right 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.

SECOND DIVISION

[G.R. No. L-49155. May 13, 1981.]

REYNALDO RODIL,petitioner,vs.SEGUNDO M. GARCIA, (Municipal Judge

of Sta. Cruz, Marinduque), and PC TSGT. IRENEO DELLOSA,respondents.

Jorge L.Caballesfor petitioner.

Solicitor General Estelito P.Mendoza, Assistant Solicitor General Santiago M .Kapunanand

Solicitor Celso P.Ylaganfor respondents.


12/21

SYNOPSIS

Petitioner seeks the setting aside of respondent judge's order denying his counsel's request to

recall government witnesses for cross-examination on clarificatory and amplificatory matters

and the order denying his application for bail which was issued in the absence of a hearing.

The Solicitor General, on behalf of respondents, asked for the dismissal of the petition on the

ground that the right to cross-examine in a preliminary investigation is not a right granted an

accused and that the exercise of discretion by respondent judge considering the evidence ofrecord sufficed to justify denial of the application for bail.

The Supreme Court granted the petition, the absence of a hearing on the accused's application

for bail being a clear violation of the constitutional right of due process, and ordered that a

hearing on the application be conducted in accordance with the requirements of the

Constitution and the Rules of Court wherein the counsel for Petitioner can recall witnesses for

the prosecution for the purpose of asking clarificatory questions.

Writ of certiorari granted. Order denying bail set aside.

SYLLABUS

1.CONSTITUTIONAL LAW; RIGHTS OF THE ACCUSED; DUE PROCESS; HEARING ON THE

APPLICATION FOR BAIL; ABSENCE THEREOF A DENIAL OF THE CONSTITUTIONAL RIGHT OF THE

ACCUSED. The order of respondent judge denying bail explicitly admitted he issued it on the

basis of the motion of Petitioner that he be granted such right and the opposition filed by the

First Asst. Provincial Fiscal without conducting any hearing on such motion. Clearly, he acted on

the mistaken belief that the presentation of evidence by the prosecution for the purpose of the

issuance of the warrant of arrest, the preliminary examination proper, suffices for the denial of

the plea for bail. The order issued denying such petition is null and void as the accused himself,

the explicit beneficiary of the constitutional right, was n ot heard.

2.ID.; ID.; ID.; ID.; NATURE OF HEARING TO BE CONDUCTED. The procedure to be followed inthe hearing of an application for bail, while summary in character, is not to be a mere sham or

pretense. It must be an exercise in futility. The accused is not to be denied his day in court.

3.ID.; ID.; RIGHT TO CROSS-EXAMINATION; AN ACCUSED IS NOT ENTITLED BY LAW TO SUCH

RIGHT DURING PRELIMINARY INVESTIGATION. In the leading case of Abrera y. Muoz and

Flordeliza, 108 Phil. 1124, a 1960 decision, the Supreme Court held: "At the outset, it should be

stated That the refusal of The Justice of the Peace to allow The defense to cross-examine the

prosecution's witnesses presented prior to Petitioner's arrest, cannot be utilized as argument for

the contention that the prosecution should not have been allowed to cross-examine the defense

witnesses. An accused is not entitled to cross-examine the witnesses presented against him in

the preliminary investigation before his arrest, this being a matter that depends on the sound

discretion of the Judge or investigating officer concerned.

4.ID.; ID.; ID.; ID.; GRANT THEREOF AN EXERCISE OF JUDGE'S DISCRETION. In Dequito v,

Arellano, 81 Phil. 130, this proposition was set forth: "there are an infinite number of things

which a party may not in strict law do or cause to be done but which may be permitted by the

court in the exercise of its discretion and in the interest of justice. Specially is this true in matters

affecting the conduct of the trial and the calling, recalling and examination of witnesses. The

judge is not a ministrial officer reduced to recording what takes place and what witnesses say in

the examination. Above all, his is the great responsibility of safeguarding the accused from

groundless or vindictive prosecution. If the justice of the peace is to ascertain, as he must,

whether a crime has been committed and, if so, whether there is probable cause that t he

accused committed it, his authority cannot be confined as in a straight jacket to the stiffness ofmedieval and outmoded technicalities of practice."

5.ID.; ID.; ID.; ID.; ID.; JUDGE'S DISCRETION TO BE EXERCISED TO ACHIEVE THE PURPOSE OF

PRELIMINARY INVESTIGATION. The interest of a more speedy and a more efficient

administration of justice would be best served if there is a greater awareness on the part of

judges that in addition to safeguarding the express rights of an accused person, a matter

mandated by the Constitution or the Rules of Court, they should likewise exercise their

discretion in such a way t hat the purpose of a preliminary investigation, the avoidance of

groundless or vindictive prosecutions, could be attained in as fair and objective manner as

possible.

6.ID.; JUDGES; ENTITLED TO RESPECT AND COURTESY FROM LAWYERS. An occupant on thebench, while be should be on guard against undue emotional reaction, is, after all, not expected

to be totally free from such traits as irritability and exasperation. Moreover, he is entitled and

should get that proper degree of respect and courtesy from a lawyer appearing before him.

While it is not only the right of an advocate but his duty to cite all pertinent authorities, this

could be done in a less assertive manner and by way of a submission rather than a lecture. It

must never be forgotten that a lawyer pleads; he does not dictate.

G.R. No. 182677 August 3, 2010

JOSE ANTONIO C. LEVISTE vs. HON. ELMO M. ALAMEDA, HON. RAUL M. GONZALEZ, HON.

EMMANUEL Y. VELASCO, HEIRS OF THE LATE RAFAEL DE LAS ALAS

Facts:

Jose Antonio C. Leviste (petitioner) was charged with homicidefor the death of Rafael de las Alas

on before the RTC of Makati City. Petitioner was placed under police custody while confined at

the Makati Medical Center. After petitioner posted a bond which the trial court approved, he

was released from detention, and his arraignment was set.

The private complainants-heirs of De las Alas filed, with the conformity of the public prosecutor,

an Motion praying, inter alia, for the deferment of the proceedings to allow the public

prosecutor to re-examine the evidence on record or to conduct a reinvestigation to determine

the proper offense.

The RTC thereafter issued an Order (January 24, 2007) deferring petitioners arraignment and

allowing the prosecution to conduct a reinvestigation to determine the proper offense and

submit a recommendation within 30 days from its inception, inter alia; and another


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Order denying reconsideration of the first order. Petitioner assailed these orders via certiorari

and prohibition before the CA.

Meantime, Leviste filed a motion before the RTC to defer acting on the public prosecutors

recommendation on the proper offense until after the CA resolves his application for injunctive

reliefs, or alternatively, to grant him time to comment on the prosecutors recommendation and

thereafter set a hearing for the judicial determination of probable cause. Leviste also separately

moved for the inhibition of Judge Alameda w/ prayer to defer action on the admission of the

Amended Information.

The trial court nonetheless issued the ot her assailed orders, viz: an Order (February 7,

2007) that admitted the Amended Information for murder and directed the issuance of a warrantof arrest; and another Order of February 8, 2007

which set the arraignment on February 13,

2007.

Petitioner questioned these two orders via supplemental petition before the appellate court.

Issue:

1. Whether or not in cases when an accused is arrested without a warrant, the remedy of

preliminary investigation belongs only to the accused.

2. whether the amendment of the Information from homicide to murder is considered a

substantial amendment, which would make it not just a right but a duty of the

prosecution to ask for a preliminary investigation

3. Whether the trial court erred for not conducting, at the very least, a hearing for judicial

determination of probable cause, considering the lack of substantial or material new

evidence adduced during the reinvestigation.

Held:

1. No. The Court holds that the private complainant can move for reinvestigation, subject

to and in light of the ensuing disquisition.

All criminal actions commenced by a complaint or information shall be prosecuted

under the direction and control of the public prosecutor. The private complainant in a

criminal case is merely a witness and not a party to the case and cannot, by himself,

ask for the reinvestigation of the case after the information had been filed in court, the

proper party for that being the public prosecutor who has the control of the

prosecution of the case. Thus, in cases where the private complainant is allowed to

intervene by counsel in the criminal action,and is granted the authority to prosecute,

the private complainant, by counsel and with the conformity of the public prosecutor,can file a motion for reinvestigation.

In fact, the DOJ instructs that before the arraignment of the accused, trial prosecutors

must examine the Information vis--vis the resolution of the investigating prosecutor

in order to make the necessary corrections or revisions and to ensure that the

information is sufficient in form and substance.

The prosecutions discretion is not boundless or infinite, however. The standing

principle is that once an information is filed in court, any remedial measure such as a

reinvestigation must be addressed to the sound discretion of the court.

Once the trial court grants the prosecutions motion for reinvestigation, the former is

deemed to have deferred to the authority of the prosecutorial arm of the Government.

Having brought the case back to the drawing board, the prosecution is thus equipped

with discretion wide and far reaching regarding the disposition thereof, subject to

the trial courts approval of the resulting proposed course of action.

Since a reinvestigation may entail a modification of the criminal information as what

happened in the present case, the Courts holding is bolstered by the rule on

amendment of information under Section 14, Rule 110 of the Rules of Court:

A complaint or information may be amended, in form or in substance,

without leave of court, at any time before the accused enters his plea. After the

plea and during the trial, a formal amendment may only be made with leave of

court and when it can be done without causing prejudice to the rights of the

accused.

However, any amendment before plea, which downgrades the nature of the

offense charged in or excludes any accused from the complaint or information, canbe made only upon motion by the prosecutor, with notice to the offended party

and with leave of court. The court shall state its reasons in resolving the motion

and copies of its order shall be furnished all parties, especially the offended party.

If it appears at any time before judgment that a mistake has been made in

charging the proper offense, the court shall dismiss the original complaint or

information upon the filing of a new one charging the proper offense in accordance

with section 11, Rule 119, provided the accused would not be placed in double

jeopardy. The court may require the witnesses to give bail for th eir appearance at

the trial.

In fine, before the accused enters a plea, a formal or substantial amendment of the

complaint or information may be made without leave of court. After the entry of a

plea, only a formal amendment may be made but with leave of court and only if it does

not prejudice the rights of the accused. After arraignment, a substantial amendment is

proscribed except if the same is beneficial to the accused.

2. Yes.

A substantial amendment consists of the recital of facts constituting the offense

charged and determinative of the jurisdiction of the court. All other matters are

merely of form. The following have been held to be mere formal amendments: (1)

new allegations which relate only to the range of the penalty that the court might

impose in the event of conviction; (2) an amendment which does not charge another

offense different or distinct from that charged in the original one; (3) additional

allegations which do not alter the prosecutions theory of the case so as to cause

surprise to the accused and affect the form of defense he has or will assume; (4) anamendment which does not adversely affect any substantial right of the accused; and

(5) an amendment that merely adds specifications to eliminate vagueness in the

information and not to introduce new and material facts, and merely states with

additional precision something which is already contained in the original information

and which adds nothing essential for conviction for the crime charged.

The test as to whether a defendant is prejudiced by the amendment is whether a

defense under the information as it originally stood would be available after the

amendment is made, and whether any evidence defendant might have would be

equally applicable to the information in the one form as in the other. An amendment

to an information which does not change the nature of the crime alleged therein does

not affect the essence of the offense or cause surprise or deprive the accused of an

opportunity to meet the new averment had each been held to be one of form and notof substance.


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3. NO.

What the Constitution underscores is the exclusive and personal responsibility of the

issuing judge to satisfy himself of the existence of probable cause. But 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

supporting documents submitted by the prosecutor regarding the existence of

probable cause, and on the basis thereof, he may already make a personal

determination of the existence of probable cause; and (2) if he is not satisfied that

probable cause exists, he may disregard the prosecutors report and require thesubmission of supporting affidavits of witnesses to aid him in arriving at a conclusion as

to the existence of probable cause.

The rules do not require cases to be set for hearing to determine probable cause for

the issuance of a warrant of arrest of the accused before any warrant may be issued.

Petitioner thus cannot, as a matter of right, insist on a hearing for judicial

determination of probable cause.

DIMATULAC V VILLON

FACTS:

SPO3 Virgilio Dimatulac was shot dead at his residence in Barangay San Nicolas, Masantol,

Pampanga. A complaint for Murder was filed before the Municipal Circuit Trial Court (MCTC)

private respondents Mayor Santiago Yabut, Martin Yabut, Servillano Yabut, Evelino David,

Justino Mandap, Casti David, Francisco Yambao, Juan Magat, Arturo Naguit, Fortunato Mallari,

Jesus de la Cruz, Joselito Miranda, SPO3 Gilberto Malabanan, Aniano Magnaye, Vladimir Yumul, a

certain Danny, and a certain Koyang/Arding.

Judge David conducted a preliminary investigationand found probable cause, issued warrants

for the arrest of the accused. Only David, Mandap, Magat and Yambao were arrested; while only

Yambao submitted his counter affidavit.

After the prelim investigation, the judge found reasonable ground to believe that Murder has

been committed and the accused are probably the perpetrators thereof. He recommended the

issuance of warrants of arrests and provided no bail

Asst. Provincial Prosecutor Sylvia Q. Alfonso-Flores conducted a reinvestigation. It is not clear

from the record whether she conducted the same motu proprio or upon motion of private

respondents.

The offense committed was only homicide (NOT murder) and all Yabuts were

in conspiracy with one another. The 2 requisites of murder qualified by

treachery were absent. She also recommended bail of 20k each. (note: the

Yabuts were not under the custody of the law)

Before the information for Homicide was filed, the heirs of Dimatulac filed an appeal on the

resolution of Ass. Prov. Pros. Alfonso-Flores to the Secretary of Justice (SOJ)alleging mainly

that Alfonso-Flores erred in lowering the crime from Murder as originally filed to Homicide

despite the glaring presence of treachery, evident premeditation, etc. (Take note of Rule 70- NPS

Rules on Appeal in Syllabus1)

Notice of the appeal was furnished to t he Office of the Provincial Prosecutor.

Alfonso-Flores ignored this and proceeded to file the information for

Homicide which the Prov. Prosecutor (Manarang) approved and certified Private prosecutor (counsel for private complainants) filed a motion to defer

proceedings (i.e. arraignment) before the RTC in view of his clients pending

appeal with the SOJ

YABUTs opposed motion to defer proceedings/arraignment arguing that the

pendency of the appeal before the SOJ was not a g round to defer

arraignment and they had a right to a speedy trial [invoked the case of

Crespo v. Mogul.

RTC judge denied motion to defer arraignment.RTC Judge set the arraignment. Private

prosecutor moved to inhibit the judge, and filed a petition for prohibition to enjoin the judge

from proceeding with the arraignment. RTC Judge voluntarily inhibited himself and then the case

was transferred to herein respondent Judge Villion.

Petitioners filed manifestation informing Judge Villlon him of the cases pending before the SOJ

and the prohibition case before the CA. Judge ignored this and set the arraignment. Yabuts

entered their plea of not guilty. Petitioners moved to set aside arraignment but to no avail. SOJ

Guingona FINALLY came up with a resolution of the appeal.He directed the Provincial Prosec.

To amend the info against the accused from homicide to murder. But he wrote to Provincial

Prosec. Again and SET ASIDE his order to amend the info from homicide to murder, considering

the appeal was moot and academic by the arraignment of the accused but Mallari must be

included.

Petitioners filed a Motion to Defer Arraignment of Accused Fortunato Mallari, denied.

CA also dismissed the petition.

Petitioners filed with the SC a petition for Certiorari/Prohibition and Mandamusto reverse the

order of respondent Judge denying their Motion to Set Aside Arraignment; set aside arraignment

of private respondents; order that no further action be taken by any court in criminal case until

this petition resolved; and order Sec. of Justice and the prosecutors concerned to amend the

information from homicide to murder.


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ISSUES

1. WON the provincial prosecutor erred downgrading or lowering the crime charged from

Murder to Homicide [YES]

2. WON Judge Villion erred in proceeding with the arraignment of the accused and

denying motion to set aside arraignment [YES]

3. WON SOJ erred in reversing himself and his order to amend the information from

Homicide to Murder [YES]

HELD:Petition GRANTED. The orders denying the Motion toDefer Proceeding/Arraignment and

denying the Motion to Set Aside Arraignment are declared VOID and SET ASIDE. Thearraignment

of private respondents is likewise declared VOIDand SET ASIDE. Furthermore, the order of SOJ is

SET ASIDE andhis initial order REINSTATED. The Office of the ProvincialProsecutor of Pampanga is

DIRECTED to file with the RTC theamended information for Murder.

Issue #1: WON the provincial prosecutor erred downgrading or lowering the crime charged

from Murder to Homicide [YES]

There was No Basis for the Reinvestigation or downgrading of the Offense from

Murder toHomicide.

Warrants of arrest were issued against the Yabuts but they were never arrested/or

surrendered and never brought into the custody of the law. How can the Ass. Prov

Prosec. Conduct a reinvestigation then lower the crime from murder to Homicide?

(Note that they re-appeared after crime was downgraded).

She should have also waited for the resolution of the Sec of Justice, but instead

entertained the motion for reinvestigation, accepted counter-affidavits and

recommended bail. REMEMBER! They were never brought into the custody of the law.

Petitioners had the right to appeal to the DOJ under Section 4 of Rule 112 of the Rules

of Court and DOJ Order No. 223 S. 1993 recognizes the right of both offended parties

and the accused to appeal from resolutions inpreliminary investigations or

reinvestigations. The sec. speaks of dismissing criminal complaint petitioners herein

were not barred from appealingfrom the resolution holding that only homicide was

committed, considering that their complaint was for murder. By holding that only

homicide was committed, the Provincial Prosecutor'sOffice of Pampanga effectively

"dismissed" the complaint for murder.

Appeal to the Sec. of Justice should not be dismissed motu propio on account of the

Yabuts arraignment.

The bar on Sec 4 does not apply! The cases of Crespo v Mogul forecloses the power of

authority of the SOJ to review resolutions of his subordinates in criminal cases despite

an information already having been filed in court. The SOJ is only enjoined to refrain, as

far as practicable, from entertaining a petition for review or appeal from the action of

the prosecutor once a complaint or information is filed in court. There was clear and

indecent haste on the part of the public prosec. In the filing of the information for

homicide depriving the State and offended parties of due processs.

Issue #2: WON Judge Villion erred in proceeding with the arraignment of the accused and

denying motion to set aside arraignment [YES]

Judge Villon set arraignment of the accused almost immediately upon receiving the

records of the case from the former RTC Judge. He should have gone over the case and

noticed the multiple motions, manifestations and utter vehemence of the petitioners

to hear their cause. The judge had COMPLETE control over the case and any disposition

rested on his discretion + was not bound to await the DOJ resolution on appeal.

But he committed grave abuse of discretion in rushing the arraignment of the YABUTs

on the assailed information for homicide denying due process.

Actions:nullifying without jurisdiction, the denial of the motion to defer further

hearings, the denial of the motion to reconsider such denial, the arraignment of the

YABUTs and their

plea of not guilty

Issue #3. WON SOJ erred in reversing himself and his order to amend the information from

Homicide to Murder [YES]

DOJ relinquished its power of control and supervision over the Provincial Prosecutor

and the Asst. Provincial Prosecutors of Pampanga; and meekly surrendered to the

latter's inappropriate conduct even hostile attitude, which amounted to neglect of duty

or conduct prejudicial to the best interest of the service.

The DOJ could have joined cause with petitioners to set aside arraignment and, in the

exercise of its disciplinary powers over its personnel, the DOJ could have directed the

public prosecutors concerned to show cause why no disciplinary action should be taken

against them for neglect of duty or conduct prejudicial to the best interest of the

service.

Ty vs. NBI Supervising Agent De Jemil

Arnel U. Ty, MARIE ANTONETTE TY, JASON ONG, WILLY DY, and ALVIN TY, vs. NBI SUPERVISING

AGENT MARVIN E. DE JEMIL, PETRON GASUL DEALERS ASSOCIATION, and TOTALGAZ DEALERSASSOCIATION
http://thelostudent.blogspot.com/2012/06/ty-vs-nbi-supervising-agent-de-jemil.htmlhttp://thelostudent.blogspot.com/2012/06/ty-vs-nbi-supervising-agent-de-jemil.htmlhttp://thelostudent.blogspot.com/2012/06/ty-vs-nbi-supervising-agent-de-jemil.html


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G.R. No. 182147 | December 15, 2010 | Velasco, Jr.,J.:

Facts:

Petitioners are stockholders of Omni Gas Corporation ("Omni"). They are being suspected of

engaging in illegal trading of petroleum products and underfilling of branded LPG cylinders in

violation of B.P. 33, as amended by P.D. 1865. NBI Agents Marvin De Jemil and Edgardo Kawada

conducted surveillance operations on Omni. On 15 April 2004, the NBI Agents carried out a test-

buy. Using eight branded LPG cylinders from Shell, Petron and Total, they went to Omni for

refilling. Omni refilled the cylinders. The NBI agents paid more than P1500. LPG Inspector NoelNavio found that the LPG cylinders were without LPG valve seals and one of the cylinders was

actually underfilled.

On 28 April 2004, Agent De Jemil obtained a search warrant from Pasig RTC branch 167. The NBI

seized several items from Omni's premises. Subsequently, Agent De Jemil filed his Complaint-

Affidavit before the DOJ. The Assistant City Prosecutor of Pasig found probable cause for

violation of BP 33. This was later approved by Chief State Prosecutor Jovencito Zuno.

Petitioners appealed the decision to the Secretary of Justice, who later reversed the decision of

the Office of the Chief State Prosecutor. NBI Agent De Jemil moved for reconsideration. Denied.

He thus filed a petition for certiorari under Rule 65 with the Court of Appeals.

The Court of Appeals affirmed the decision of Secretary of Justice. It later reversed itself and

reinstated the Resolution of the Chief State Prosecutor.

Issues:

(1) Whether the petition for certiorari with the Court of Appeals was proper even if Agent De

Jemil did not appeal to the Office of the President?

(2) Whether probable cause exists against petitioners for violations of Sec. 2 (a) and (c) of BP 33,

as amended?

(3) Whether petitioners can be held liable therefor?

Held:

(1) YES. The determination of probable cause by the public prosecutor, and, later on, by the

Secretary of Justice, is subject t

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