[LegEth] Last Full Stretch

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Republic of the PhilippinesSUPREME COURT

Manila

FIRST DIVISION

G.R. No. L-61652 June 22, 1984

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,vs.ALEJANDRO IBASAN, SR., alias "Loring"; ALEJANDRO IBASAN, JR., alias "Intsik";ALEJANDRO IBASAN II, alias "Boy"; and ALEJANDRO IBASAN III alias "Tito", defendants-appellants.

The Solicitor General for plaintiff-appellee. E. M. Fallarme for defendants-appellants.

GUTIERREZ, JR., J.:

Before Us, on appeal is a Decision of the Circuit Criminal Court, Dagupan City, Third JudicialDistrict, convicting Alejandro Ibasan, Sr., alias "Loring"; Alejandro Ibasan, Jr. alias "Intsik"; AlejandroIbasan II alias "Boy" and Alejandro Ibasan III alias "Tito" of the crime of murder. The dispositiveportion of the decision reads:

WHEREFORE, the Court hereby finds all the four (4) accused, namely: AlejandroIbasan, Sr., alias "Loring", Alejandro Ibasan, Jr., alias "Intsik", Alejandro Ibasan 11,alias " Boy", and Alejandro Ibasan III, alias "Tito", GUILTY beyond reasonable doubtof the crime of murder, and pursuant to law, hereby sentences each of them to sufferthe medium penalty of reclusion perpetua (life imprisonment), to indemnify the heirs

of the victim, Leoncio Balolong in the amount of P12,000.00, plus P12,000.00 asmoral damages, without subsidiary imprisonment in case of insolvency, and to paythe costs.

Let this case be archivedas against accused Juan Ibasan, alias 'John', who ispresently confined in the National Mental Hospital, without prejudice to itsreinstatement as against said accused, upon motion of the prosecution and return tosanity of said accused.

The original information dated June 8, 1978 charged the appellants with the crime of homicide,together with two others, Juan Ibasan, alias "John" and Demetrio Ibasan alias "Etring". However,upon a finding that accused Juan Ibasan alias "John" was mentally unfit to stand trial, proceedingsas against him were suspended pending the recovery of his sanity, hence, his non-inclusion in theseproceedings. On the other hand, Demetrio Ibasan alias "Etring" died prior to final judgment in thelower court and the case against him was accordingly dismissed.

After the information was filed but before the accused could be arraigned, a motion to amend thecharges to murder and for the presentation of additional evidence convinced the Fiscal to conduct areinvestigation. A notice of reinvestigation was issued by the District State Prosecutor, upon properauthority of the Dagupan City Fiscal, with the advice that he "will conduct a reinvestigation of theabove-entitled case on Wednesday, August 9, 1978, ..."


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constituted double jeopardy, as he had already been arraigned and had pleaded not guilty under theoriginal information for HOMICIDE, and the same had been dismissed without his consent when thenew information was filed for the graver offense of MURDER. He further maintained that his earlierwaiver of the defense of double jeopardy was of no moment, the same having been done prior toarraignment. He stated that it was not possible then for him to waive jeopardy which had not yetattached.

Denying said motion, the court reasoned that by his own acts the accused was estopped tointerpose the defense of double jeopardy and that his manifestation was express consent on his partto the amendment of the original information. The court stated that the defense of double jeopardywas never intended to be a tool for the benefit of one who had intentionally misled and confused thecourt for his own escape to go abroad. Furthermore, there being no plea under the amendedinformation, double jeopardy had not yet attached. Accused's motion for reconsideration waslikewise denied. Subsequently, accused Juan Ibasan alias "John", through his own counsel, alsofiled a motion to quash the amended information on the ground of accused's insanity. The motionwas denied and, as earlier stated, accused Juan Ibasan was committed to the National MentalHospital for observation and treatment. The trial as against him was suspended until such time as heis certified mentally fit to stand trial.

Trial proceeded against the rest of the accused except Demetrio Ibasan alias "Etring" the caseagainst him having been dismissed after his death.

The prosecution evidence tended to prove that:

... On May 31, 1978, at about 6:00 P.M., while Leoncio Balolong was walking (withhis cousin Alberto Balolong) along the road towards Balolong Street, at BonuanGueset, Dagupan City Juan Ibasan, alias "John", who was armed with a baseball bat1 meter long), hit Leoncio Balolong (who was then unarmed) suddenly with said batonce on top of his head, holding the bat with both hands. Upon being hit by thebaseball bat, Leoncio ran away, but he was pursued by Alejandro Ibasan III, alias"Tito", who then struck Leoncio with a baseball bat (1 meter long) hitting him on the

left leg, causing Leoncio to fall to the ground. Upon seeing his cousin Leoncio fall tothe ground, Alberto Balolong ran away.

After Leoncio fell to the ground after being hit on the leg by accused AlejandroIbasan III, alias "Tito", accused Alejandro Ibasan II, alias "Boy", who was armed withthe dagger (Exh. J). lwphl@itwhich is double bladed, sharp pointed and about 8" long with 4"handle and a leather scabbard, stabbed Leoncio several times with said dagger onthe breast, causing him (Leoncio) to grasp for breath and disabling him. All the six (6)accused threw stones (bigger than the size of a fist) at Leoncio, then accused

Alejandro Ibasan, alias "Boy" and Juan Ibasan, alias "John", held the hands ofLeoncio and dragged him inside their (Ibasan's) yard, passing through the steel gatefronting the Ibasan's residence, adjacent to their sari-sari store (Exh. E). Inside the

yard, all the six (6) accused again hit Leoncio several times with bottles of beer, cokeand with a wooden leg of a bench hitting him on the head, breast and abdomen (57tsn., Sept. 8, 1981). A few minutes later, Dagupan City policemen arrived at theplace and they brought Leoncio to the Pangasinan Provincial Hospital. At the time ofthe arrival of said policemen, all the six (6) accused were no longer at the crimescene as they have already fled.

The prosecution relied on the testimony of two eyewitnesses, Domingo Paras and AgustinaRedoban, both of whom positively Identified all the accused. Domingo Paras testified that while all


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the six (6) accused were mauling Leoncio Balolong, they shouted "Vulva of your mother, we aregoing to kill you" and that accused Alejandro Ibasan, Sr., alias "Loring" addressed accused JuanIbasan, alias "John", Alejandro Ibasan II alias "Boy", Alejandro Ibasan III alias "Tito" and shouted"You finish him" while the accused continued mauling Leoncio.

Prosecution witness Agustina Redoban corroborated the testimony of Domingo Paras in all its

material points and furthermore, declared that upon seeing Leoncio Balolong already prostrate onthe ground, she told the six (6) accused to stop beating him but they refused to heed her plea. Shealso heard Alejandro Ibasan, Jr., alias "Intsik" state that "Whoever will testify in this case should bekilled."

For its part, the defense introduced evidence to prove the following: On May 31, 1978, at about 5:00p.m., Leoncio Balolong and his counsel, Alberto Balolong, came looking for accused AlejandroIbasan, Sr., alias "Loring" at the latter's store. Leoncio was asking Loring to come out in a loud voice.Leoncio was carrying with him a balisong tucked on his right waist. Accused Demetrio Ibasan, alias"Etring" told Leoncio that his father was asleep. This made Leoncio angry. Leoncio then toldDemetrio "Vulva of your mother", "let your father come out." Demetrio then picked up a stone andthereupon, Leoncio drew his balisong (Exh. J). Demetrio Ibasan, sensing the presence of animminent danger, immediately got hold of an empty bottle and with it hit Leoncio again, this timehitting the latter on the center forehead, as a result of which blood oozed from his head (tsn., March15, 1982, p. 175).

During the altercation between Demetrio Ibasan and Leoncio Balolong, Alberto Balolong fled and hedid so at the moment Leoncio Balolong fell down. Felisa Ibasan, wife of accused Alejandro Ibasan,Sr., and Linda Ibasan, his daughter, scurried upstairs to the house where they cried, and woke upLoring Ibasan (tsn., March 15, 1982, pp. 178-179). Soon Loring Ibasan came out of the house andtold his son, Demetrio Ibasan to kill Leoncio Balolong probably because the latter might kill them all ifhe survives. Loring Ibasan, in order to insure the death of Leoncio Balolong, himself got a 2 feet longand 2 inches thick piece of wood and with it, hit said Leoncio Balolong who was already lying flat,several times (tsn., March 15, 1982, pp. 100-101). At that moment when Alejandro Ibasan began tohit Leoncio several times, the latter was not moving anymore and it was difficult to say whether he

was already dead according to their eyewitness Angel Paras (tsn., March 15, 1982, pp. 181-182).This same eyewitness stated that he left the place after Alejandro Ibasan, alias "Loring" hit LeoncioBalolong with a piece of wood (tsn., March 15, 1982, p. 182). He then went to the other side of theroad and that he did not bother to report the incident to the police for fear that he might get involved(tsn., March 15, 1982, p. 183).

Not long after, two policemen arrived. The two policemen went inside the yard of the Ibasans, andthereafter brought the bleeding body of Leoncio Balolong and put him down immediately in front ofthe steel gate while the said policemen waited for a ride (tsn., March 16, 1982, p. 171). After aboutfive minutes, the policemen were able to get a ride, a passenger jeepney, on which they loaded thebody of Leoncio Balolong and left (tsn., March 16, 1982, p. 172) for the Pangasinan ProvincialHospital (tsn., October 12, 1981, p. 75; tsn., October 23, 1981, p. 87). After bringing the body ofLeoncio Balolong to the Pangasinan Provincial Hospital, the two policemen hurriedly went back tothe scene of the crime to make their investigation. Later, Demetrio Ibasan, who is actually one of theaccused, (but whose case had been previously dismissed because of his death), voluntarily andwillingly went along with the police and submitted himself for their investigation (tsn.,November 9,1981, p. 107). In fact, at the police sub-station, he admitted to Patrolman Rolando Coquia in thepresence of Patrolman Rolando Valdez, that he was the one who killed Leoncio Balolong and thatno one else was responsible for it (tsn., November 9, 1981, p. 108).


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Thus, the defense tried to show that the aggressor was Leoncio Balolong and that, in self-defense,Demetrio Ibasan, alias "Etring", now deceased, had to hit Leoncio with a stone and an empty bottle.Likewise, Alejandro Ibasan, Sr., alias "Loring" had to hit Leoncio with a piece of wood, but Leonciowas, by then dead from Etring's blows.

The other accused- appellants interposed the defense of alibi. Alejandro Ibasan, Jr. alias "Intsik"

alleged that at the time of the commission of the crime, he was attending the Perpetual Help Novenaand mass, it being a Wednesday, with his wife. His alibi was reiterated by two of his friends whotestified in his behalf. Alejandro Ibasan II, alias "Boy" and Alejandro Ibasan III alias "Tito" alleged thatat the time of the incident, they were at the house of their uncle, Juan Ibasan alias "John" feedingand watching his poultry and that they had attended to their duties therein without leaving saidpremises.

After the trial, the court found the four appellants guilty as charged. Hence, this appeal.

The accused-appellants interposed the following assignments of errors:

I. THE LOWER COURT ERRED IN NOT DISMISSING THE CASE AS AGAINST THE ACCUSED

ALEJANDRO IBASAN, JR., ON THE GROUND OF DOUBLE JEOPARDY.

II. THE LOWER COURT ERRED IN ACTIVELY PARTICIPATING IN AND/OR CONDUCTING THEEXAMINATION OF WITNESSES AS THOUGH IT WERE THE PROSECUTION; AND INDEPRIVING THE DEFENSE FROM PRESENTING OTHER MATERIAL WITNESSES BY GIVINGHOPE AND IMPRESSIONS WHICH TURNED OUT TO BE FALSE AFTER ALL.

III. THE LOWER COURT ERRED IN ITS APPRECIATION OF THE FACTS AS PRESENTED, ANDIN MAKING CONCLUSIONS NOT SUPPORTED BY THE EVIDENCE AS ADDUCED.

IV. THE LOWER COURT ERRED IN NOT DISMISSING THE CASE AS AGAINST ALL THEACCUSED AFTER THE PROSECUTION HAD RESTED ITS CASE AND UPON MOTION TO

DISMISS FILED BY DEFENSE BASED ON THREE VALID GROUNDS.

V. THE LOWER COURT ERRED IN NOT ACQUITTING THE FOUR REMAINING ACCUSEDAFTER THE TERMINATION OF THE TRIAL ON THE GROUND THAT THE PROSECUTIONUTTERLY FAILED TO PROVE THEIR GUILT BEYOND REASONABLE DOUBT.

VI. THE LOWER COURT ERRED IN DENYING THE FOUR CONVICTED ACCUSED OF THEIRRIGHT TO BAIL, THEIR RIGHT TO HAVE THEIR CASE TRANSFERRED TO ANOTHER SALA OROTHER COURT OF COMPETENT JURISDICTION, AND THEIR RIGHT TO BE DETAINED IN THELOCAL JAIL PENDING THEIR APPEAL INSTEAD OF IN THE NATIONAL PENITENTIARY ATMUNTINGLUPA.

Pending appeal, notice was received by this Court about the death of accused Alejandro Ibasan, Sr.,alias "Loring" while confined in the New Bilibid Prisons in Muntinglupa. The case against him wasdismissed insofar as his criminal liability was concerned.

At the outset, it is important to note the very peculiar factor which had given rise to the first issue.First of all, we find quite unusual that the accused Alejandro Ibasan, Jr., alias "Intsik" was allowed toleave the country while standing charged with the serious crime of homicide. His claim of innocencedid not preclude the possibility of his jumping bail while abroad and not returning to answer the


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charges against him. The accused was allowed to be arraigned earlier than his co-accused even asthe circumstances of murder were being reinvestigated.

Second, it was error for the court to allow the advance arraignment of Intsik for homicide when theprosecution was still reinvestigating the case to determine the possibility of amending the informationto murder. Intsik should have been arraigned for murder and afterwards could have been convicted

either of homicide or murder as may be proven, the former being an offense necessarily included inthe crime charged.

We cannot sanction the conduct of the fiscal and the court. They should be more prudent andcautious in the performance of their duties.

Appellant Alejandro Ibasan, Jr. would have us dismiss the case against him for murder on theground of double jeopardy.

The prosecution, sustained by the court a quo, contended that the requisite of double jeopardy towit:

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(4) That the defendant had been convicted or acquitted, or the case against himdismissed or otherwise terminated without his express consent.

is not present under the circumstances of the case. It argued that since the accused had earlier fileda written manifestation and waiver of his right to be present as well as his right to the defense ofdouble jeopardy, the first information had been amended with the accused's express consent.

The appellant maintains otherwise. He states that the element of time plays an important role inconsidering when such "express consent" should be given, He submits that the express consentmust be given after the accused had already entered a plea and not before. Was there double

jeopardy?

At the time that the accused executed his waiver, the right to the defense of double jeopardy formurder did not yet exist. For jeopardy to attach, it is necessary that the defendant has beenarraigned and has pleaded to the charge because it is from that moment that the issues for trial aredeemed joined. Before that, the accused is not in danger of being validly convicted, hence he is notyet in jeopardy (People v. Turla, 50 Phil. 1001). If the accused has not yet been arraigned for eitherhomicide or murder, a motion to quash and a waiver of the right to the defense of double jeopardywould be premature. Jeopardy attaches (a) upon valid indictment, (b) before a competent court, (c)after arraignment and (d) after plea (People v. Ylagan, 58 Phil. 851). lwphl@itThe defendant, not havingbeen arraigned and not having pleaded to either charge when the waiver of his right to the defenseof double jeopardy was made, the same produces no legal effect. There could have been no validwaiver for there was nothing to waive. There is no double jeopardy in this case.

Appellant Alejandro Ibasan, Jr. was arraigned and he pleaded "NOT GUILTY" under the originalinformation for homicide. He was never arraigned for Murder. Hence, the proceedings below, whilefor the charge of murder insofar as the other accused were concerned, were only for homicide asregards Alejandro Ibasan, Jr. The treachery which qualified the crime to murder was, for him, anaggravating circumstance. No mitigating circumstance was proved during trial.


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Coming now to the appellants' second assignment of error, we find the same to be without merit. It isnot denied that the court had at certain points conducted its own questioning during the proceedings.The records, however, show that the court's questions did not amount to interference as to make thecase for the prosecution and deprive the accused of their defense. The questions of the judgeaddressed to the witnesses and the accused were merely to clarify certain points and confirm certainstatements. The number of times that a judge intervenes is not necessarily an indication of bias. It

cannot be taken against a judge if the clarificatory questions he propounds happen to reveal certaintruths which tend to destroy the theory of one party.

As held in the case of Ventura v. Yatco(105 Phil. 287) "Judges are not mere referees like those of aboxing bout, only to watch and decide the results of a game; they should have as much interest ascounsel in the orderly and expeditious presentation of evidence, calling attention of counsel to pointsat issue that are overlooked, directing them to ask questions that would elicit the facts on the issuesinvolved, clarifying ambiguous remarks by witnesses, etc."

A judge may properly intervene in the trial of a case to promote expedition and avoid unnecessarywaste of time or to clear up some obscurity (People v. Catindihan, 97 SCRA 196; Par. 14 Canons ofJudicial Ethics; Administrative Order No. 162 dated August 1, 1946, 42 O.G. 1803). In this respect,the record shows no irregularity in the conduct of the trial judge.

As to the alleged deprivation of the appellants' right to present other material witnesses, we find thesame without basis. The appellants alleged that they had intended to present two witnesses,namely: Atty. Gubatan and Atty. Esteves. However, the judge had expressed displeasure against theappearance of the two witnesses when the defense requested that they be subpoenaed, to wit:

COURT

You know, Esteves is a persona non grata in thiscourt. He filed a case against me in Lingayen. I don'tlike to see his face. Never, forever, never in my wholelife. Gubatan, Ancheta, Esteves, as far as I am

concerned, they are already buried a long time. (con't.of order) subpoena the following; Erlinda Relosemon,Bonuan Gueset, Dr. Dominador Gutierrez, c/o GSIS,Dagupan City. (tsn., March 16, 1982, p. 196).

The emotional outburst of the presiding judge is rather unfortunate. Even if a judge sincerelybelieves that a counsel is deliberately exasperating or inciting him through the introduction ofwitnesses publicly known to be personally anathema to the judge and not because their testimonymay prove or disprove matters in issue, the judge should avoid any unseemly display of shortness oftemper or other unbecoming behaviour. A judge should not allow himself to be led by counsel orwitnesses into showing that he can be moved by pride, prejudice, passion, or pettiness in theperformance of his official functions (Austria v. Masaquel, 20 SCRA 1247). It is precisely during such

trying moments that a judge should be studiously careful about his conduct and in the measures hetakes to uphold the court's authority and dignity. However, the actuations of the trial judge showingsome impatience against the appellants did not preclude them from adequately presenting theircase, We have examined the records carefully and we find that the appealed decision was notbased on any matters improperly elicited by the trial Judge during his examination of the witnessesnor has it been affected by the quoted remarks. Appellants were given all the opportunity to presenttheir evidence.


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Neither did the initial refusal of the trial judge to subpoena the two supposed witnesses prevent theirbeing presented in court if they were really willing to testify for the defense. There are remediesavailable to parties for such situations. In fact, the records show that, later, the trial judge wasamenable to their being present in court as witnesses and it was the defense which found no moreneed for the testimony:

ATTY. FALLARME

We are intending to present another witnessesespecially Atty. Gubatan and Atty. Esteves, but I thinkthere is no need, so we are closing our evidence andmay we be given a chance to close tomorrow, yourHonor. (Tsn., April 19, 1982, p. 269)

The appellants state that they did not take certain steps they should have taken because thepresiding judge had impressed upon the accused and counsel "that the case of the prosecution wasweak and that it was not airtight nor foolproof, and that eventually he was going to acquit theaccused. The following statement of the trial court:

COURT

I would suggest to counsel that since this case havebeen pending for the past 7 to 8 years and its recordis about 4 to 6 inches thick, that trial of this case willcontinue Mondays and Tuesdays every week so thatthe innocent will be set freeand that the guilty will beput to jail. ... Why prolong this agony? ... (tsn., March16, 1982, p. 195) (Emphasis supplied).

is no indication that the accused would eventually be acquitted. The statement shows no bias norintention to give false hopes to either party. The judge merely expressed the need for a speedy trial.The statement should not be relied upon as a suggestion that the case for the defendants wasstronger than the case for the prosecution. Notwithstanding any remarks of any judge, a lawyershould continue giving his client entire devotion to the latter's interest, warm zeal in the maintenanceand defense of his rights and the exertion of the lawyer's utmost learning and ability appropriate forthe circumstances.

Notwithstanding any impressions that counsel may have about the predispositions of a judge, theclient is entitled to the benefit of any remedy and defense that is authorized by law. The lawyershould assert every such remedy or defense (Canon 15, Canons of Professional Ethics; Javier v.Cornejo, 63 Phil. 293 (1936); In re Tionko, 43 Phil. 191 (1922); In re Oliva, 103 Phil. 312 (1958);Lualhati v. Albert, 57 Phil. 86 (1932); Toguib v. Tomol, Jr. GR. Adm. Case No. 554, Jan. 3, 1969;People v. Macellones, GR. No. 33639, Feb. 28, 1975; Tan Kui v. Court of Appeals, GR. No. 36808,

Nov. 29, 1973, See Agpalo, Legal Ethics, 1980, pp. 147-186.)

The second assignment of error has no merit but nonetheless we take this opportunity to remindmembers of the bench that judges' undue interference, impatience, or participation in theexamination of witnesses or a severe attitude on the court's part towards the witnesses, especiallythose who are excited or terrified by the unusual circumstances of a trial may tend to prevent theproper presentation of the cause or ascertainment of the truth in respect thereto. (People v.Catindihan, 97 SCRA 196). Thus, a judge should exercise more care and patience in conducting acase, his right to intervene to be used sparingly, if at all. He must bear in mind that witnesses may


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be easily intimidated by an overly inquisitive judge considering the unusual circumstances whichthey find themselves in, especially when testifying in criminal cases.

We find no merit in the appellants' third and fifth assignments of errors. The lower court correctlyappreciated the facts of the case and the testimonies of the witnesses. The appellants' point outalleged inconsistencies in the prosecution witnesses' testimonies vis-a-vis their sworn statements.

They also seek to discredit the prosecution witnesses Domingo Paras because of his relationshipwith Gregorio Balolong, the deceased's father. The appellants state that the prosecution witnesses'statements are conflicting, exaggerated, perjured, prejudiced, evasive, and apparently dubious.Furthermore, the defense relies on the alleged counter-affidavit of Agustina Redoban, an eyewitnessfor the prosecution, recanting her earlier statements to the police.

An examination of the records shows no compelling reason to disbelieve the testimonies of theprosecution witnesses. The inconsistencies to which the appellants advert are but minordiscrepancies which do not affect the weight of the witnesses' testimonies where they all coincide inthe matter of Identity of the accused and in the narration of all material facts. Minor discrepancies donot render testimony incredible and cannot destroy the probative value of the consistent testimony ofthe witnesses on how the six (6) perpetrators has assaulted and mauled the victim to death. (Peoplev. Pajenado, 69 SCRA 172; People v. Lopez, 80 SCRA 18; People v. Llanto, 88 SCRA 8; People v.dela Cruz, 91 SCRA 525; People v. Yutila, 102 SCRA 264; People v. Hinlo, 102 SCRA 472; Peoplev. Garcia, 105 SCRA 325; People v. Canizares, 107 SCRA 296; People v. Munoz, 107 SCRA 313;People v. Demate, 113 SCRA 353; People v. Millora, 119 SCRA 417; People v. Barros, 122 SCRA34; People v. dela Rosa, 102 SCRA 147). It is settled that some minor inconsistencies becomethemselves indices of truth, a sign of veracity of the statements of unlearned and untutoredeyewitnesses. (People v. Paculba, 124 SCRA 383; People v. Cardinas, 118 SCRA 458). lwphl@itAccordingto the trial court, the prosecution witnesses testified in a clear, positive, straightforward, truthful andconvincing manner. The witnesses remained consistent on cross-examination. We see no reason todoubt the lower court's finding that they are more credible. Having been eyewitnesses to a frightfulevent as the killing of a fellow human, minor inaccurate expressions or honest mistakes inobservation are not fatal. Differences in some details from nervous, rattled, and scaredeyewitnesses cannot be avoided.It cannot be expected that these witnesses under such strain and

pressure could pay particular attention and remember each and every detail no matter how trivial.Thus, whether the weapon used is referred to as a bat or a club is a matter of semantics. The factremains that the deceased was hit by a one meter long wooden truncheon and mauled to death.

Also, whether or not the beating of the victim had first occurred inside or outside the fence of theIbasans is immaterial, the fact is the former was beaten both inside and outside of the premises ofthe Ibasans' yard. The fact is clear that the deceased was mauled and beaten with pieces of wood,bottles and a dagger or balisong, the weapons used being properly established by the evidence onrecord. Also, the fact remains that the victim died at the hands of the accused all of whom werepositively Identified.

Anent the alleged relationship of a prosecution eyewitness to the deceased's father, we reiterate theoft-repeated rule that relationship of witnesses does not necessarily affect credibility. (People v.Ruiz, 93 SCRA 739; People v. Puesce, 87 SCRA 130). Relationship to the victim by itself, does notprove that a witness is prejudiced and biased when, as in this case, said testimony is not only clearand natural, but is corroborated substantially by the other findings of the trial court. There ismoreover the absence of an improper motive actuating the witness to testify falsely against theaccused. (People v. Abejuela, 92 SCRA 503; People v. Veloso, 92 SCRA 515). And as toeyewitness Agustina Redoban, her friendship with the victim standing alone is not proof of prejudice(People v. Campana, 24 SCRA 271), the same not being a sufficient motive for witnesses to testifyfalsely against an accused (People v. Salcedo, 122 SCRA 54). As we stated in one case, the factthat two of the prosecution's witnesses were sheltered and fed by the deceased father's victim doesnot prove that said witnesses perjured in recounting what they saw. It is well-known that witnesses to


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killings usually do not want to undergo the trouble and inconvenience of going to court and beingexposed to reprisal. (People v. Medrana, 110 SCRA 130).

The alleged inconsistencies between witness Redoban's testimony in open court and her statementsin pre-trial affidavits, are not marks of untrustworthiness or wilfull falsehood (People v. Bermoy 105SCRA 106). It is a matter of judicial notice and experience that, not infrequently, affidavits are

prepared in haste and are almost always incomplete and inaccurate (People v. Gonzales. 99 SCRA697). Greater weight is accorded the statements given on the witness stand where both prosecutionand defense counsel could more thoroughly question the witness.

The appellants would have us dismiss the case or acquit accused Juan Ibasan alias "John" on theground of insanity. They argue that the trial court erred in denying their motion to quash. Section 2 ofRule 117 of the Rules of Court provides among the grounds for a motion to quash: "That thedefendant is insane." When after an examination into the mental condition of the accused, it appearsthat the defendant is insane at the time of the trial, the court is under a legal duty to suspend the

proceedings and to order the commitment of the accused to an asylum. The fundamental reasonbehind this may be taken from the very fact that if the accused were insane, he would never have afair trial; the assistance that the law provides would be an empty ceremony (US v. Guendia, 37 Phil.337). The trial court acted fully in accordance with the law.

Appellants, however, maintain that at the hearing on the motion to quash, the evidence presentedtended to show that accused Juan Ibasan was insane before, during, and after the commission ofthe crime, as well as at the time of trial, and should be exempt from criminal liability. This is properlya matter to be considered as a matter of defense during a fullblown trial to determine the guilt of theaccused. For the same to be properly passed upon in the motion to quash defendants should haveinvoked Subsection g, Section 2 Rule 117, to wit:

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(g) That it contains averments which, if true, would constitute a legal excuse orjustification;

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They did not do so,

The fourth assignment of error has no merit.

Defendants' sixth assignment of error that the lower court erred in denying (1) bail to the accusedon appeal, (2) their right to have their case transferred to another sala or court of competent

jurisdiction, and (3) their right to be detained in the local jail pending their appeal instead of theNational Penitentiary in Muntinglupa, cannot be sustained.

Section 4, Rule 114 provides:

After conviction by the Court of First Instance defendant may, upon application, bebailed at the discretion of the court.

This discretion will not be disturbed absent any showing of abuse or arbitrariness on the part of thetrial court. (Reyes v. Court of Appeals, 83 Phil. 658) There is no such showing in the case at bar.


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As for their detention at the National Penitentiary rather than the local jail, the appellants are nationalprisoners and are correctly detained at the New Bilibid Prisons in Muntinglupa, Rizal, pending theresolution of their appeal.

The transfer of the case, after judgment in the lower court, cannot be sanctioned. No law or rulepermits the same. Appeal is an adequate remedy to correct whatever errors may have been

committed by the lower court.

WHEREFORE, in view of the foregoing, the judgment appealed from is hereby AFFIRMED insofaras appellants Alejandro Ibasan II, alias "Boy" and Alejandro Ibasan III alias "Tito" are concerned,with the modification that the indemnity for the heirs of the victim, Leoncio Balolong, is raised fromTwelve Thousand (P12,000.00) to Thirty Thousand (P30,000.00) Pesos in accordance with theruling laid down by this Court in People v. de la Fuente, 126 SCRA 518. The judgment of the court aquoas to them is AFFIRMED in all other respects. Insofar as appellant Alejandro Ibasan, Jr. alias"Intsik" is concerned, we find him GUILTY beyond reasonable doubt of the crime of homicide andhereby sentence him to an indeterminate penalty of TEN (10) YEARS and ONE (1) DAY ofprisionmayoras minimum to SEVENTEEN (17) YEARS, FOUR (4) MONTHS, and ONE (1) DAYof reclusion temporal as maximum, and order him to indemnify the heirs of the victim jointly andsolidarily with the other accused-appellants. The resolutions dismissing the cases against DemetrioIbasan, Sr., alias "Loring" are reiterated. The late Alejandro Ibasan, Sr., remains civilly liable, hisdeath having occurred pending appeal. He is likewise ordered to indemnify the heirs of LeoncioBalolong together with the other accused-appellants.

Teehankee (Chairman), Melencio-Herrera, Plana, Relova and De la Fuente, JJ., concur.


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EN BANC

[A.M. No. MTJ-90-388. June 19, 1990.]

THE OFFICE OF THE COURT ADMINISTRATOR, Complainant, v. JUDGE VIRGILIO S. LANSANG,MTC, Clark Field, Angeles City, Respondent.

R E S O L U T I O N

PER CURIAM:

An administrative complaint, dated February 26, 1990, was filed against Judge Virgilio S. Lansang,Metropolitan Trial Court, Clark Field, Angeles City, based on the following findings of the Judiciary PlanningDevelopment and Implementation Office and the Deputy Court Administrator Reynaldo L. Suarez in thecourse of an investigation conducted in his court, as follows:jgc:chanrobles.com.ph

"1. Cases deemed submitted for decision, some of which had been submitted since 1979 and 1982 hadremained undecided as of January 3, 1990, contrary to his monthly certification that he has no pending civil

and criminal cases under submission for decision or determination beyond the 90-day period.

"2. Cases calendared for hearing during the month of June 1989 to December 1989, show that for themonth of October 1989, only one (1) hearing was conducted; for November, only one (1) hearing also; forDecember, also one (1) hearing; for the month of January 1990, only two (2) days have been set for trialhearing; for the month of February 1990, only one (1) and for the month of August 1989, it appears that nocase has been disposed of.

"3. While it has been verified from reports and records in his office that he has been solemnizing severalmarriages between Filipino citizens and Americans or foreigners on an average of about three (3) marriagesa day aside from notarizing public documents for a fee, his monthly reports for 1989 to the Statistic Divisionof this Court do not show any marriage solemnized or document notarized by him.

"4. The accumulated caseload of 182 cases has remained invariably a back log which has not been reducedover the year despite the few cases that are filed averaging from 4 to 6 cases a month only." (Complaint,

pp. 1-2).

Earlier however, on January 26, 1990, in view of the special visit of Court of Appeals Associate JusticeLeonor Ines Luciano to the Metropolitan Trial Court, Clark Field, prompted by various complaints againstJudge Lansang and the latter being aware of the seriousness of the charges, respondent Judge submitted hisirrevocable resignation to take effect January 31, 1990.

In his Comment dated April 4, 1990, respondent Judge summed up his reasons in this wise:jgc:chanrobles.com.ph

". . . my failure to decide, to settle cases load was the non-apprehension or arrest of the accused, theexistence of rift between me and the Clerk of Court, became almost irreconcilable, as manifested in theinconsistent monthly report, which was full of intrigue and inaccuracy, which lead me to say I could nolonger stay, and happy working with them. That even before this controversy, I have nursed the idea ofresigning." (p. 3, Comment)

Considering all the allegations, issues and arguments raised in the complaint and in the Comment and theresignation letter of respondent Judge dated January 26, 1990, the Court finds Judge Virgilio S. LansangGUILTY of the charges complained of. His actuations, practices and conduct are unbecoming of a judicialofficer; his acts of commission and omission having been committed through admitted negligence on hispart, failure to report to the Supreme Court or to the Court Administrator, his grievances against his ownClerk of Court against whom he never filed any formal complaints regarding the latters allegedirregularities; his apparent acceptance of the accuracy of the reports submitted by his Clerk of Court; andunmitigated failure to ask for administrative remedies from the Supreme Court and Court Administrator andthe existence up to now of 182 pending cases which according to the Court Administrator had beensubmitted for decision, and not merely pending trial. The Court likewise Resolved not to accept such


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Manila

EN BANC

A.M. No. 704-RTJ June 14, 1990

FELDMERTO M. LONGBOAN, complainant,vs.HON. EMILIO L. POLIG, respondent.

R E S O L U T I O N

PER CURIAM:

A letter-complaint was addressed to the Court Administrator on July 18, 1986 charging therespondent judge with gross negligence of duty or abuse of authority for his failure to apprisecomplainant of the status of Civil Case No. 641 despite the former's registered letters requesting thestatus.

Civil Case No. 641 involved a dispute for collection of a sum of money between the complainant asplaintiff and one Arsenic Cunaden as defendant. The complainant obtained a favorable judgmentfrom Municipal Circuit Judge Flora M. Tel-equen of the 2nd Municipal Circuit Court of Bauko-Sibangan, Mountain Province on October 26, 1981. It was on appeal when the matter subject of theletter-complaint came about.

It appears that on February 20, 1984, the complainant was informed by Regional Trial Court JudgeNicasio A. Baguilat that respondent judge, his predecessor, was in possession of the records of CivilCase No. 641 considering that the appeal thereto had been perfected prior to respondent judge'stransfer to the Regional Trial Court, Branch 14 at Lagawe, Ifugao. On August 8, 1984, JudgeBaguilat's Clerk of Court certified, among others, that Civil Case No. 641 was among the casesretained by respondent judge and that as of the said date no decision therein had been receivedfrom the said judge.

Meanwhile, the complainant had sent five registered letters inquiring about the status of Civil CaseNo. 641. Due to respondent Judge's failure to make any reply as requested, the Office of the Court

Administrator sent respondent judge three tracers dated August 12, 1985, April 15, 1986 and June23, 1986, respectively in relation to the records of Civil Case No. 641. Still, the respondent judgemade no reply.

In our resolution dated September 9, 1986, we ordered the respondent judge to: (a) show cause whyno disciplinary or administrative action should be taken against him, and (b) comply with the inquirywithin ten (10) days from notice thereof with a warning that failure still to do so would be dealt withaccordingly.


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ACCORDINGLY, the COURT RESOLVED to DISMISS RESPONDENT JUDGE from the servicewith forfeiture of all his accrued retirement benefits, leave and other privileges, if any, and withprejudice to re-employment in any branch, agency or instrumentality of the government, includinggovernment owned or controlled corporations.

SO ORDERED.

Fernan, C.J., Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Feliciano, Gancayco, Padilla,Bidin, Sarmiento, Cortes, Medialdea and Regalado, JJ., concur.

Grio-Aquino, J., is on leave.


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Manila

FIRST DIVISION

G.R. No. L-66469 July 29, 1986

PEOPLE OF THE PHILIPPINES and ALFREDO QUIJANO, petitioners,vs.HON. BERNARDO SALAS (In his capacity as Presiding Judge of RTC, Cebu, Branch VIII),MARIO ABONG, ALFREDO DE LEON, ERIWADWIN MONTEBON, ROMEO DE GUZMAN, &EDUARDO MABUHAY, respondents.

Basilio E. Duaban for accused.

CRUZ, J .:

Mario Abong was originally charged with homicide in the Court of First Instance of Cebu but beforehe could be arraigned the case was reinvestigated on motion of the prosecution. 1As a result of thereinvestigation, an amended information was filed, with no bail recommended, to which he pleadednot guilty.2Trial commenced, but while it was in progress, the prisoner, taking advantage of the firstinformation for homicide, succeeded in deceiving the city court of Cebu into granting him bail andordering his release; and so he escaped.3The respondent judge, learning later of the trickery,cancelled the illegal bail bond and ordered Abong's re-arrest. 4But he was gone. Nonetheless, theprosecution moved that the hearing continue in accordance with the constitutional provisionauthorizing trial in absentia under certain circumstances.5The respondent judge denied the motion,however, and suspended all proceedings until the return of the accused.

6The order of the trial court

is now before us oncertiorari and mandamus.

7

The judge erred. He did not see the woods for the trees. He mistakenly allowed himself to betethered by the literal reading of the rule when he should have viewed it from the broaderperspective of its intendment.

The rule is found in the last sentence of Article IV, Section 19, of the 1973 Constitution, reading infull as follows:

Section 19. In all criminal prosecution, the accused shall be presumed innocent untilthe contrary is proved and shall enjoy the right to be heard by himself and counsel, tohe informed of the nature and cause of the accusation against him, to have aspeedy, impartial, and public trial, to meet the witnesses face to face, and to havecompulsory process to secure the attendance of witnesses and the production ofevidence in his behalf. However, after arraignment, trial may proceednotwithstanding the absence of the accused provided that he has been duly notifiedand his failure to appear is unjustified.

The purpose of this rule is to speed up the disposition of criminal cases, trial of which could in thepast be indefinitely deferred, and many times completely abandoned, because of the defendant'sescape. The old case ofPeople v. Avancea 8required his presence at certain stages of the trial


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SO ORDERED.

Yap (Chairman), Narvasa, Melencio-Herrera and Paras, JJ., concur.


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Manila

FIRST DIVISION

A.M. No. RTJ-05-1966 March 21, 2006

IMELDA S. ENRIQUEZ, Complainant,vs.JUDGE ANACLETO L. CAMINADE, Respondent.

D E C I S I O N

PANGANIBAN, CJ:

Judges are expected to exhibit more than just cursory acquaintance with statutes and procedurallaws. In all good faith, they must know the laws and apply them properly. Judicial competence

requires no less. Where the legal principle involved is sufficiently basic and elementary, lack ofconversance with it constitutes gross ignorance of the law.

The Case and the Facts

This administrative case stems from a verified Complaint1filed with the Office of the CourtAdministrator (OCA) by Imelda S. Enriquez. In that case, Judge Anacleto Caminade was chargedwith gross misconduct, knowingly rendering an unjust judgment, and gross ignorance of the law. Thematerial averments of the Complaint and respondents Comment are summarized by the OCA asfollows:

"x x x [Complainant] Imelda S. Enriquez charges [Respondent] Judge Anacleto Caminade with

Gross Misconduct, Knowingly Rendering an Unjust Judgment and Gross Ignorance of the Law andProcedure relative [to] Criminal Case No. CBU-066703, entitled People of the Philippines versusSherwin Que @ Bungol, Anthony John Apura, for Murder. As mother of the v ictim in the criminalcase, [complainant] alleges that respondent issued an order dated 31 March 2004, the decretalportion of which reads:

WHEREFORE, the Court hereby denies the motion for the issuance of the warrant of arrest againstthe accused-movants; sets aside the assailed Resolution of the City Prosecutor on the basis ofwhich the latest amended information was filed; quashes the latest amended information; andremands this case to the City Prosecutor for completion of the preliminary investigation .

"Respondent so ruled because there was no preliminary investigation completed on accused Alvin

Taggart Pimentel Alvez and Alvin John Apura [as] they were denied the opportunity to file a motionfor reconsideration or a petition for review before the information was filed in court.

"Complainant claims that respondent was grossly mistaken when he ruled, in effect, that theinvestigating prosecutor cannot file a criminal information before the expiration of the 15-day periodwithin which the accused are allowed by the Revised Rules of Court to move for reconsideration orpetition for review of an adverse Resolution. Respondent cited Sales versus Sandiganbayan (G.R.[No.] 143802, 16 November 2001) that the filing of motion for reconsideration is an integra l part ofthe preliminary investigation proper and that an [i]nformation filed without first affording x x x
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accused his right to file motion for reconsideration is tantamount to a denial of the right itself to apreliminary investigation.

"Complainant contends that Sales is not applicable to the criminal case because of significant factualand procedural distinctions between the two cases: (1) the Sales case proceeded under the Rules ofProcedure of the Ombudsman, while subject criminal case was conducted under the Rules of Court;

(2) there was no completed preliminary investigation in the Sales case but there was a completedfull-blown panel preliminary investigation on the accused in the subject criminal case; and (3) it isonly under the Rules of Procedure of the Ombudsman that the preliminary investigation is deemedcompleted and terminated upon the lapse of the period to file a motion for reconsideration from theresolution of the Ombudsman while there is nothing in the Rules of Court which states that a personinvestigated has the right to file a motion for reconsideration or reinvestigation before the[i]nformation can be filed in court.

"In his COMMENT, respondent explains that the panel of prosecutors conducting preliminaryinvestigation filed in court their amended information without furnishing accused Apura and Alveztheir copy of the resolution. He stresses that his challenged order is in accordance with law and

jurisprudence, citing among others, the case of Sales. He claims his order was an honest responseto the pending matters before him and [he] merely granted reliefs consistent with those granted bythe Supreme Court in the Sales case.

"[Respondent judge asserts that] while the facts of Sales and the criminal case are different, thelegal principle involved in the former case that a preliminary investigation is part of due process anda motion for reconsideration of the Resolution of the Prosecutor finding probably cause for the filingof information is part of a preliminary investigation and respondent who is not given the opportunityto file the same is in effect deprived of his right without due process of law cannot be overlooked.Respondent points out that complainant, who was represented by two attorneys, should haveresorted to judicial recourse such as an appeal of the order in question via a petition for certiorari tothe Court of Appeals."2

Report and Recommendation of the OCA

In its Report,3the OCA finds respondent guilty of gross ignorance of the law. Thus, it recommendsthat respondent be penalized with the maximum imposable fine of P40,000, considering that he wasearlier penalized with six months suspension for another serious though unrelated offense.

According to the OCA, the issue raised by complainant does not pertain to an error of judgment or toone pertaining to the exercise of sound judicial discretion by respondent. Rather, the issue iswhether respondent complied with procedural rules so elementary that to digress from themamounts to either ignorance or negligence. Since the procedure for the institution of criminal actionsis basic and clearly expressed in the Rules of Court, respondents Order is deemed to have beenattended by gross ignorance of the law.

The Courts Ruling

The Court agrees with the findings of the OCA but reduces the penalty.

Administrative Liability of Respondent

This Court has consistently held that lack of conversance with legal principles sufficiently basic andelementary constitutes gross ignorance of the law.4As an advocate of justice and a visiblerepresentation of the law, a judge is expected to be proficient in the interpretation of our laws.5
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EN BANC

[A.M. No. MTJ-94-1004. August 21, 1996]

SANGGUNIANG BAYAN OF BATAC, ILOCOS NORTE, complainant,vs. JUDGE EFREN F. ALBANO, respondent.

D E C I S I O N

PERCURIAM:

Before us is Resolution No. 56 s. 1994 issued by the Sangguniang BayanofBatac, Ilocos Norte calling for the immediate investigation of Judge Efren F.

Albano, of the Municipal Trial Court of Batac, IlocosNorte. The Sanggunianalleged that:

(1) the stay of Judge Albano in the Municipality of Batac as the Presiding Judge of

its Municipal Trial Court has been marred by controversial decisions coupled with

habitual absence from office which hampered speedy resolution of cases to the

prejudice of (their) constituents, and

(2) there have been reported cases and complaints from (their) constituents that due

to the indiscretion, inefficiency and incompetence of the incumbent Presiding Judge,

it has clogged the dockets of the court, caused misery to litigants which resulted to thefiling of certiorari cases against the Presiding Judge.[1]

On November 3, 1994, we referred the Sanggunians resolution to JudgeAlejandrino C. Cabebe of the Regional Trial Court of Batac, Ilocos Norte forinvestigation, report and recommendation.[2]

Judge Cabebe summoned Mr. Da Vinci Crisostomo, Presiding Officer ofthe Sanggunian, to a conference to substantiate their charges against therespondent judge. Mr. Crisostomo pointed out several irregularities in the way

respondent judge conducts preliminary investigations. Judge Cabebe thenexamined the criminal dockets of the Municipal Trial Court of Batac, IlocosNorte as well as the records of preliminary investigations conducted in saidcourt.[3]

In the course of his investigation, Judge Cabebe uncovered around forty(40) criminal casesdismissed after preliminary investigation.[4]In all thesecases, respondent judge failed to transmit the resolution and records to the
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provincial prosecutor upon conclusion of the proceedings. Respondent judgealso archived two (2) cases when the police failed to arrest the suspectstherein, in violation of Section 5 of Rule 112 of the Revised Rules of Court. Inaddition, Judge Cabebe discovered that respondent judge issued warrants ofarrest without examining the complainant and his witnesses in writing and

under oath, in violation of Section 6 (b) of Rule 112 of the Revised Rules ofCourt and Section 21, Article III of the Constitution. Judge Cabeberecommended the dismissal of respondent judge from the service withforfeiture of benefits.[5]The Office of the Court Administrator made a similarrecommendation in a Memorandum dated May 23, 1996.[6]

It is the stance of respondent judge that the cases cited by Judge Cabebewere all dismissed at the preliminary examination stage and did not reach thepreliminary investigation proper. Respondent judge averred that before goingto the preliminary investigation proper, he first conducted a preliminary

examination to determine whether there is probable cause to issue a warrantof arrest. In the cases cited by Judge Cabebe, respondent judge found noprobable cause for the issuance of a warrant, hence he did not proceed to thepreliminary investigation proper. He argued that since there were nopreliminary investigations conducted and concluded, there were no records tobe forwarded to the provincial prosecutor for the filing of the correspondinginformation.[7]Respondent judge further argued that (he) may not be heldliable for improper disposition of cases under preliminary investigationbecause the acts imputed against him pertains (sic) to his judicial capacitythat are not subject to disciplinary power.[8]

Respondent judges stance clearly demonstrates his gross ignorance ofthe proper procedure in conducting a preliminary investigation.

Under the old rules, the preliminary investigation conducted by a municipaljudge had two stages: (1) the preliminary examination stage during which theinvestigating judge determines whether there is reasonable ground to believethat an offense has been committed and the accused is probably guiltythereof, so that a warrant of arrest may be issued and the accused held fortrial; and (2) the preliminary investigation proper where the complaint orinformation is read to the accused after his arrest and he is informed of the

substance of the evidence adduced against him, after which he is allowed topresent evidence in his favor if he so desires.[9]Presidential Decree911,[10]upon which the present rule is based, removed the preliminaryexamination stage and integrated it into the preliminary investigationproper. Now, the proceedings consist only of one stage.[11]
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Section 3 of Rule 112 of the Revised Rules of Court outlines theprocedure for conducting a preliminary investigation:

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 followingmanner:

(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 has 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 copiesthereof 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 tothe 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


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adduced, the investigating officer shall determine whether or not there is sufficient

ground to hold the respondent for trial.

Section 5 of the same rule specifies the duty of the investigating judge upon

conclusion of the preliminary investigation:

Sec. 5.Duty of investigating judge.Within ten (10) days after the conclusion of

the preliminary investigation, the investigating judge shall transmit to the provincial

or city fiscal, for appropriate action, the resolution of the case, stating briefly the

findings of facts and the law supporting his action, together with the entire records of

the case, which shall include: (a) the warrant, if the arrest is by virtue of a warrant;

(b) the affidavits and other supporting evidence of the parties; (c) the undertaking or

bail of the accused; (d) the order of release of the accused and cancellation of his bail

bond, if the resolution is for the dismissal of the complaint.

Should the provincial or city fiscal disagree with the findings of the investigatingjudge on the existence of probable cause, the fiscals ruling shall prevail, but he must

explain his action in writing furnishing the parties with copies of his resolution, not

later than thirty (30) days from receipt of the records from the judge. If the accused is

detained, the fiscal shall order his release.

Respondent judges failure to transmit the resolution and records of thecases disregards the clear mandate of Section 5 of Rule 112. Under thisprovision, it is mandatory for the investigating judge to transmit to theprovincial or city prosecutor his resolution dismissing or admitting the

complaint, together with the entire records of the case.A preliminary investigation is conducted to determine whether there is

sufficient ground to engender a well-founded belief that a crime cognizable bythe Regional Trial Court has been committed and that the respondent isprobably guilty thereof and should be held for trial.[12]It is an executive, not a

judicial function. It falls under the authority of the prosecutor who is given bylaw the power to direct and control all criminal actions. However, since thereare not enough fiscals and prosecutors to investigate the crimes committed inall the municipalities all over the country, the government was constrained toassign this function to judges of Municipal Trial Courts and Municipal CircuitTrial Courts.[13]Thus, when a municipal judge conducts preliminaryinvestigation, he performs a non-judicial function as an exception to his usualduties. His findings, therefore, are subject to review by the provincial or cityprosecutor whose findings, in turn, may be reviewed by the Secretary ofJustice in appropriate cases. Hence, the investigating judge, after conductinga preliminary investigation, must perform his ministerial duty to transmit within
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ten (10) days the resolution of the case together with the entire records to theprovincial or city prosecutor.[14]

It is true that the determination of the existence of probable cause for theissuance of a warrant of arrest is a judicial function which is beyond the

reviewing power of the prosecutor. However, distinction should be madebetween a preliminary inquiry for the determination of probable cause for theissuance of a warrant of arrest and a preliminary investigation to ascertainwhether or not a person should be held for trial. The first is a judicial functionwhile the second is an executive function.[15]Even if the investigating judgefinds no sufficient ground to issue a warrant of arrest, he is still duty-bound totransmit the records to the provincial or city prosecutor. The prosecutorsreviewing power shall affect only his conclusion as to whether or not a criminalcomplaint or information should be filed against the respondent, but not hisconclusion as to the propriety of issuing a warrant of arrest.

We now come to the warrants of arrest issued by the respondent judge.The issuance of a warrant of arrest is addressed to the sound discretion of a

judge. Provided there is no grave abuse of discretion or malice, a mistake onhis part in the determination of probable cause will not subject him todisciplinary action. He is nevertheless expected to follow strictly theprocedure laid down in the rules regarding its issuance. Failure to complywith such procedure will make him administratively liable.[16]In the case at bar,respondent judge issued several warrants of arrest without examiningthe complainant and his witnesses in writing and under oath, in violation

of Section 6 of Rule 112 which provides:

Sec. 6. When warrant of arrest may issue.x x x

(b)By the Municipal Trial Court. If the municipal trial judge conducting the

preliminary investigation is satisfied after an examination in writing and under oath of

the complainant and his witnesses in the form of searching questions and answers, that

a probable cause exists and that there is a necessity of placing the respondent under

immediate custody in order not to frustrate the ends of justice, he shall issue a warrant

of arrest.

The records show that respondent judge has violated the rules onpreliminary investigation and issuance of a warrant of arrest since the start ofhis term as municipal judge in Batac, Ilocos Norte in September 1991. Thegross ignorance of respondent judge has immensely prejudiced theadministration of justice. Parties adversely affected by his rulings dismissingtheir complaints after preliminary investigation have been denied theirstatutory right of review that should have been conducted by the provincial
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prosecutor. His practice of issuing warrants of arrest without examining thecomplainants and their witnesses is improvident and could have unnecessarilydeprived the accused of their liberty however momentary it may be. OurConstitution requires that all members of the judiciary must be of provencompetence, integrity, probity and independence.[17]Respondent judges

stubborn adherence to improper procedures and his constant violation of theconstitutional provision requiring him to personally examine the complainantand the witness in writing and under oath before issuing a warrant of arrestmakes him unfit to discharge the functions of a judge.[18]

IN VIEW WHEREOF,respondent Judge Efren F. Albanois DISMISSED from the service with forfeiture of all leave credits andretirement benefits and with disqualification for reemployment in the nationaland local governments, as well as in any governmental instrumentality oragency, including government-owned or controlled corporations.

This decision is immediately executory and the respondent judge is furtherordered to cease and desist from discharging the functions of his office uponreceipt of this Decision. Let a copy be entered in the personal records of therespondent.

SO ORDERED.

Narvasa, C.J., Padilla, Regalado, Davide, Jr., Romero, Bellosillo, Melo,Puno, Vitug, Kapunan, Mendoza, Francisco, Hermosisima, Jr.,Panganiban, andTorres, Jr., JJ., concur.
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Manila

EN BANC

A.M. No. R-192-RTJ January 9, 1987

ATTY. ARTURO A. ROMERO, complainant,vs.HON. JUDGE GABRIEL O. VALLE, JR., respondent.

R E S O L U T I O N

PER CURIAM:

In a verified complaint dated November 28, 1984, Atty. Arturo A. Romero charged Judge Gabriel O.Valle, Jr;. of the Regional Trial Court of Laoag City, Branch XII with grave misconduct andoppression. In the words of complainant himself, the acts complained of consisted in:

5. That instead of directing complainant to proceed with the marking of exhibits andto continue the direct examination, respondent continued to utter embarrassingremarks which hurt complainant and, therefore, the latter tried to make furtherexplanations on said exhibits and to defend his integrity in a controlled and respectfulmanner, but his honor, the respondent judge suddenly banged his gavel producingsuch a deafening noise that several persons from the adjoining branches of the Courtcame: that without declaring a recess, said respondent judge unceremoniouslyREMOVED his coat and told, angrily, herein complainant: "You step out and we will

finish the matter"; immediately thereafter, respondent judge stepped down from therostrum and left;

6. That, shaken and stunned by such sudden aggressive behaviour of respondent,complainant then stood by his seat, and as some people in the Courtroom rushed outof the Courtroom, complainant looked around and then saw respondent judgeoutside the courtroom holding a gun with his right hand, in front of him, facingtowards complainant, in an angry and menacing manner, and waited for complainantto go outside; confronted by such alarming and threatening stance of respondent,complainant could not move for a moment, as complainant was totally unarmed,surprised and shocked; and when complainant saw respondent Judge briskly walkedto and fro still holding a gun, complainant then asked the Court stenographer:"Please put in the record that the Judge is holding a gun"; that luckily thereafter, Atty.

Isidro Madamba, member of the Sangunian Panlalawigan, succeeded in pacifyingrespondent judge and shortly, said respondent returned to the Court; that after someremarks by respondent judge, complainant moved that the Honorable respondentvoluntarily inhibit himself from further trying the case in the light of the antecedents,but denied it and ordered the resetting of the case; 1

Required to comment on the complaint, respondent judge denied the charges and branded the sameas "exaggerated, sensationalized, fabricated and inherently improbable and contrary to humanexperience and one-sided. 2Respondent judge likewise explained that he has been issued by the


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provincial commander the necessary permit to carry his licensed pistol outside his residence on accountof a threat on his life from the New People's Army. By way of prayer, he asked that complainant besuspended from the practice of law for a certain period of time. 3

On January 31, 1985, the Court en bancresolved to refer the case to Associate Justice of the thenIntermediate Appeallate Court, Abdulwahid Bidin, for investigation, report and recommendation.

From the evidence adduced at the hearings, Associate Justice Bidin made the following findings offacts and conclusions:

Complainant is one of the two counsels for plaintiff in Civil Case No. 6821 entitled"Iglesia Filipina Independiente versus Rafael Albano, et. al.," for "Quieting of Titlewith Preliminary Injunction," pending before the Regional Trial Court of Ilocos Norte-Laoag City, branch XII, presided by Respondent Judge.

During the trial of said case on November 19, 1984, complainant requested that aninventory book of plaintiff be marked as Exhibit F. Respondent Judge interrupted thecomplainant with a remark that the said inventory book should be marked Exh. Gsince there is already an Exh. F of the plaintiff which was marked during the lasthearing of the case when complainant was absent. The fact that there was alreadyan Exh. F for the plaintiff was confirmed by the manifestation of Atty. Rafael Ruiz,counsel for the defendant after verifying his notes as requested by respondent judge.Nevertheless, the complainant in a loud voice insisted that his proposed marking ofthe Exhibit is the correct one as the Exhibit F referred to by respondent judge and

Atty. Ruiz was not initialed by the Clerk of Court. This remark of complainant irritatedthe respondent judge who retorted that complainant is not prepared for trial andadmonished the latter to be prepared with his trial brief before coming to court so thathe will not bangle (sic) the marking of his exhibit. As the complainant continuedinsisting in a loud voice that his proposed marking of the inventory book as Exhibit Fis correct, despite the fact that respondent judge had admonished him [complainant]not to bring his "passion" to the court and if complainant does not respect the Judge,he should respect the court, the respondent banged his gavel left the rostrum and

went to his chamber. According to the complainant and his witness, [Atty. AndresTunac, co-counsel of complainant in the case], the respondent, before leaving therostrum made this remark to complainant "You step out. We finish the matter."Respondent denied having made the challenge to complainant and alleged that whathe said or declared before leaving the rostrum was "five minutes recess." This call fora recess by respondent is confirmed and/or corroborated by Atty. Rafael Ruiz,defendant's counsel in the case on trial and respondent's witness in thisinvestigation. From his chamber, respondent judge went to the stairs passing thecorridor holding his coat with his left hand while on his right hand he was holding ahand gun [revolver] which was inside its holster. As respondent walked on thecorridor towards the stairs, he looked at the courtroom where the lawyers were. Uponreaching the stairs, respondent was informed by his clerk that there are still cases inthe calendar ready for trial. Respondent returned to his chamber and placed his gun

inside his table. Later, respondent came out to resume his court session.

At the resumption of the trial, the complainant stood up and asked the respondent toinhibit himself from hearing the case. The respondent required the complainant to puthis request in writing and dictated an order resetting the case to another date. Thecase [Civil Case No. 6821], is now transferred to another judge who presides overBranch XIII.


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Respondent claims that he is authorized to carry his licensed pistol outside of hisresidence as evidenced by the Certification issued by the Provincial Commander ofIlocos Norte [Exh. 7] and that he had been carrying the said gun from his house tooffice and back ever since he received a letter threat dated March 22, 1984 [Exh. 1 ]from the NPA.

According to Atty. Leandro Rafales [complainant's own witness] and who appearswith [sic] the most impartial among the witnesses, the respondent stood up, bang[sic] his gavel and left the rostrum because the complainant did not stop makingremarks and insisted in a loud voice in marking the inventory book as Exhibit Fdespite the fact that it has been established that there was already an Exhibit F of theplaintiff and that before banging the gavel respondent judge told the complainant notto bring his passion to court and if complainant does not respect the Judge, heshould respect the court. Atty. Rafales also testified that respondent judge did notremove his coat when he left the rostrum and while respondent was holding his gunwhich was inside its holster with his right hand when he came out of his chamber onhis way towards the stairs, the gun was not pointed at anyone, although therespondent turned his face towards the people inside the courtroom as he walkedtowards the stairs.

As regards the charge that respondent challenged the complainant to step out andwe settle the matter the evidence is inconclusive. While the complainant and his co-counsel, Atty. Tunac testified that the respondent Judge uttered those statements,the latter and Atty. Rafael Ruiz [defendant's counsel and witness for respondent]denied that such statement was made by respondent. Both respondent and Atty.Ruiz allege that what respondent said or declared before leaving the rostrum was"five minute recess." On the other hand, Atty. Rafales testified that what he heardfrom respondent-judge was "step out" only. The transcript of the proceedings thattook place before respondent judge on that fateful day had not been presented asevidenced [sic] by the parties at this investigation. In view of this conflicting testimonyof the witnesses, the undersigned cannot conclude that respondent judge challenged

the complainant as alleged in the complaint.4

It is evident from the foregoing that complainant and respondent judge are equally to blame for theincident under consideration. We have enunciated in the case of Lugue vs. Kayanan,29 SCRA 165,that:

It is the duty of both counsel and judge to maintain, not to destroy, the high esteemand regard for courts. Any act on the part of one or the other that tends to underminethe people's respect for, and confidence in, the administration of justice is to beavoided. And this, even if both may have to restrain pride from taking the better partof their system. To be expected then of petitioner and respondent is a sense ofshared responsibility, a crucial factor in the administration of justice. ...

The relations between counsel and judge should be based on-mutual respect and on a deepappreciation by one of the duties of the other. 5Thus, counsel is expected to observe and maintainthe respect due to the courts of justice and judicial of officers. 6Although allowed some latitude ofremarks or comment in the furtherance of causes he upholds, 7his arguments, written or oral, shouldbe gracious to both court and opposing counsel and be of such words as may be properly addressedby one gentleman to another.8Certainly, and most especially in our culture, raising one's voice is asign of disrespect, improper to one whose "investiture into the legal profession places upon his


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shoulders no burden more basic, more exacting and more imperative than that of respectful behaviortowards the courts."

9

Complainant is an active law practitioner in the province of Ilocos Norte. He was director of theIntegrated Bar of the Philippines, Ilocos Norte-Laoag City Chapter in 1982, Chairman of the Legal

Aid Committee of said chapter, president of PHILCONSA, Ilocos Norte-Laoag City Chapter from

1981-83 and president of the Ilocos Norte Lions Club in 1983. 10As a recognized community leader,complainant should provide an example in proper court decorum to his brothers in the profession,and not to foment discord in the courtroom. Considering complainant's obvious high standing in thelegal profession and the community, he should have observed humility to accept mistakes graciouslyand to treat the same as the proverbial learning experience.

On the other hand, respondent judge exhibited shortness of temper and impatience, contrary to theduties and restrictions imposed upon him by reason of his office. 11In Calalang vs. Fernandez,Adm.Case No. 175-J, June 10, 1971, We stated that a judge should show no shortness of temper for itmerely detracts from the equanimity and judiciousness that should be the constant marks of adispenser of justice. In the case at bar, respondent judge, in losing his temper and engagingcomplainant in a heated discussion, not only failed to observe the proper decorum expected of

judicial officers, but as a consequence thereof likewise failed to preserve and enforce order in hiscourt. Precisely, judicial officers are given contempt powers in order that without being arbitrary,unreasonable or unjust, they may endeavor to hold counsel to a proper appreciation of their duties tothe court. Respondent judge could very well have cited complainant in contempt of court instead ofindulging in tantrums by banging his gavel in a very forceful manner and unceremoniously walkingout of the courtroom.

Respondent judge appears to have a valid explanation for gun, but such explanation cannot betaken as carrying a satisfactory. for his having chosen to carry the same in plain view of thecomplainant and other lawyers inside the courtroom when he came out of his chambers on his wayto the stairs. Taken in the light of what had just transpired, the actuation of respondent judge was notan innocent gesture, but one calculated to instill fear in or intimidate complainant. We cannot let thispass unnoticed. Respondent judge's behavior constitutes grave misconduct. It is a serious violation

of the Canons of Judicial Ethics which require that a "judge's official conduct should be free from theappearance of impropriety, and his personal behavior, not only upon the bench and in theperformance of judicial duties, but also in his every day life, should be beyondreproach." 12Moreover, it reveals an attitude diametrically opposed to our pronouncement in De laPaz v. Inutan,64 SCRA 540. that "the judge is the visible representation of law, and moreimportantly, of justice." Certainly, one who lives by the uncivilized precept of "might is right," isunworthy of an office entrusted with the duty to uphold the rule of law.

WHEREFORE, Judge Gabriel O. Valle, Jr. is found guilty of grave misconduct and is hereby orderedDISMISSED from the service, without forfeiture of retirement benefits but with prejudice toreinstatement in any branch of the government or any of its agencies or instrumentalities.Complainant Atty. Arturo A. Romero is required to show cause why no disciplinary action should betaken against him for conduct unbecoming of an officer of the court, within fifteen (15) days fromnotice.

The decision is immediately executory.

SO ORDERED.

Teehankee, CJ., Feria, Fernan, Narvasa, Melencio-Herrera, Alampay, Gutierrez, Jr., Cruz, Parasand Feliciano, JJ., concur.


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Yap, J., is on leave.

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