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Civil liability coexists with criminal responsibility.

In negligence cases the offended party (or his heirs) has the option between an action for enforcement of civil liability based on culpa criminal under article 100 of the Revised Penal Code and an action for recovery of damages based on culpa aquiliana under article 2177 of the Civil Code. The action for enforcement of civil liability based on culpa criminal section 1 of Rule 111 of the Rules of Court deems simultaneously instituted with the criminal action, unless expressly waived or reserved for a separate application by the offended party. Article 2177 of the Civil Code, however, precludes recovery of damages twice for the same negligent act or omission. In the case at bar, the Court finds it immaterial that the Paduas chose, in the first instance, an action for recovery of damages based on culpa aquiliana under articles 2176, 2177, and 2180 of the Civil Code, which action proved ineffectual. The Court also takes note of the absence of any inconsistency between the aforementioned action priorly availed of by the Paduas and their subsequent application for enforcement of civil liability arising from the offense committed by Punzalan and consequently, for exaction of Robles' subsidiary responsibility. Allowance of the latter application involves no violation of the proscription against double recovery of damages for the same negligent act or omission. For, as hereinbefore stated, the corresponding officer of the court a quo returned unsatisfied the writ of execution issued against Punzalan to satisfy the amount of indemnity awarded to the Paduas in civil case 427-O. Article 2177 of the Civil Code forbids actual double recovery of damages for the same negligent act or omission. Finally, the Court notes that the same judge * tried, heard, and determined both civil case 427-O and criminal case 115-O. Knowledge of an familiarity with all the facts and circumstances relevant and relative to the civil liability of Punzalan may thus be readily attributed to the judge when he rendered judgment in the criminal action. In view of the above considerations, it cannot reasonably be contended that the court a quo intended, in its judgment in criminal case 1158-O, to omit recognition of the right of the Paduas to the civil liability arising from the offense of which Punzalan was adjudged guilty and the corollary award of the corresponding indemnity therefor. Surely, it cannot be said that the court intended the statement in the decretal portion of the judgment in criminal case 1158-O referring to the determination and assessment of Punzalan's civil liability in civil case 427-O to be pure jargon or "gobbledygook" and to be absolutely of no meaning and effect whatever. The substance of such statement, taken in the light of the situation to which it applies and the attendant circumstances, makes unmistakably clear the intention of the court to accord affirmation to the Paduas' right to the civil liability arising from the judgment against Punzalan in criminal case 1158-O. Indeed, by including such statement in the decretal portion of the said judgment, the court intended to adopt the same adjudication and award it made in civil case 427-O as Punzalan's civil liability in criminal case 1158-O. There is indeed much to be desired in the formulation by Judge Amores of that part of the decretal portion of the judgment in criminal case 1158-O referring to the civil liability of Punzalan resulting from his criminal conviction. The judge could have been forthright and direct instead of circuitous and ambiguous. But, as we have explained, the

statement on the civil liability of Punzalan must surely have a meaning and even if the statement were reasonably susceptible of two or more interpretations, that which achieves moral justice should be adopted, eschewing the other interpretations which in effect would negate moral justice. G.R. No. L-770 April 27, 1948

ANGEL T. LIMJOCO, petitioner, vs. INTESTATE ESTATE OF PEDRO O. FRAGRANTE, deceased, respondent. Angel Limjoco, Jr. and Delfin L. Gonzales for petitioner. Bienvenido A. Tan for respondent. HILADO, J.: Under date of May 21, 1946, the Public Service Commission, through Deputy Commissioner Fidel Ibaez, rendered its decision in case No. 4572 of Pedro O. Fragante, as applicant for a certificate of public convenience to install, maintain and operate an ice plant in San Juan, Rizal, whereby said commission held that the evidence therein showed that the public interest and convenience will be promoted in a proper and suitable manner "by authorizing the operation and maintenance of another ice plant of two and one-half (2-) tons in the municipality of San Juan; that the original applicant Pedro O. Fragante was a Filipino Citizen at the time of his death; and that his intestate estate is financially capable of maintaining the proposed service". The commission, therefore, overruled the opposition filed in the case and ordered "that under the provisions of section 15 of Commonwealth Act No. 146, as amended a certificate of public convenience be issued to the Intestate Estate of the deceased Pedro Fragante, authorizing said Intestate Estate through its Special or Judicial Administrator, appointed by the proper court of competent jurisdiction, to maintain and operate an ice plant with a daily productive capacity of two and one-half (2-1/2) tons in the Municipality of San Juan and to sell the ice produced from said plant in the said Municipality of San Juan and in the Municipality of Mandaluyong, Rizal, and in Quezon City", subject to the conditions therein set forth in detail (petitioner's brief, pp. 3334). Petitioner makes four assignments of error in his brief as follows: 1. The decision of the Public Service Commission is not in accordance with law. 2. The decision of the Public Service Commission is not reasonably supported by evidence. 3. The Public Service Commission erred in not giving petitioner and the Ice and Cold Storage Industries of the Philippines, Inc., as existing operators, a reasonable opportunity to meet the increased demand.

4. The decision of the Public Service Commission is an unwarranted departure from its announced policy with respect to the establishment and operation of ice plant. (Pp. 1-2, petitioner's brief.) In his argument petitioner contends that it was error on the part of the commission to allow the substitution of the legal representative of the estate of Pedro O. Fragante for the latter as party applicant in the case then pending before the commission, and in subsequently granting to said estate the certificate applied for, which is said to be in contravention of law. If Pedro O. Fragante had not died, there can be no question that he would have had the right to prosecute his application before the commission to its final conclusion. No one would have denied him that right. As declared by the commission in its decision, he had invested in the ice plant in question P 35,000, and from what the commission said regarding his other properties and business, he would certainly have been financially able to maintain and operate said plant had he not died. His transportation business alone was netting him about P1,440 a month. He was a Filipino citizen and continued to be such till his demise. The commission declared in its decision, in view of the evidence before it, that his estate was financially able to maintain and operate the ice plant. The aforesaid right of Pedro O. Fragante to prosecute said application to its conclusion was one which by its nature did not lapse through his death. Hence, it constitutes a part of the assets of his estate, for which a right was property despite the possibility that in the end the commission might have denied application, although under the facts of the case, the commission granted the application in view of the financial ability of the estate to maintain and operate the ice plant. Petitioner, in his memorandum of March 19, 1947, admits (page 3) that the certificate of public convenience once granted "as a rule, should descend to his estate as an asset". Such certificate would certainly be property, and the right to acquire such a certificate, by complying with the requisites of the law, belonged to the decedent in his lifetime, and survived to his estate and judicial administrator after his death. If Pedro O. Fragrante had in his lifetime secured an option to buy a piece of land and during the life of the option he died, if the option had been given him in the ordinary course of business and not out of special consideration for his person, there would be no doubt that said option and the right to exercise it would have survived to his estate and legal representatives. In such a case there would also be the possibility of failure to acquire the property should he or his estate or legal representative fail to comply with the conditions of the option. In the case at bar Pedro O. Fragrante's undoubted right to apply for and acquire the desired certificate of public convenience the evidence established that the public needed the ice plant was under the law conditioned only upon the requisite citizenship and economic ability to maintain and operate the service. Of course, such right to acquire or obtain such certificate of public convenience was subject to failure to secure its objective through nonfulfillment of the legal conditions, but the situation here is no different from the legal standpoint from that of the option in the illustration just given. Rule 88, section 2, provides that the executor or administrator may bring or defend actions, among other cases, for the protection of the property or rights of the deceased which survive, and it says that such actions may be brought or defended "in the right of the deceased".

Rule 82, section 1, paragraph (a), mentions among the duties of the executor or administrator, the making of an inventory of all goods, chattels, rights, credits, and estate of the deceased which shall come to his possession or knowledge, or to the possession of any other person for him. In his commentaries on the Rules of Court (Volume II, 2nd ed., pages 366, 367) the present chief Justice of this Court draws the following conclusion from the decisions cited by him: Therefore, unless otherwise expressly provided by law, any action affecting the property or rights (emphasis supplied) of a deceased person which may be brought by or against him if he were alive, may likewise be instituted and prosecuted by or against the administrator, unless the action is for recovery of money, debt or interest thereon, or unless, by its very nature, it cannot survive, because death extinguishes the right . . . . It is true that a proceeding upon the application for a certificate of public convenience before the Public Service Commission is not an "action". But the foregoing provisions and citations go to prove that the decedent's rights which by their nature are not extinguished by death go to make up a part and parcel of the assets of his estate which, being placed under the control and management of the executor or administrator, can not be exercised but by him in representation of the estate for the benefit of the creditors, devisees or legatees, if any, and the heirs of the decedent. And if the right involved happens to consist in the prosecution of an unfinished proceeding upon an application for a certificate of public convenience of the deceased before the Public Service Commission, it is but logical that the legal representative be empowered and entitled in behalf of the estate to make the right effective in that proceeding. Manresa (Vol. III, 6th ed., p. 11) says that No. 10 of article 334 and article 336 of the Civil Code, respectively, consider as immovable and movable things rights which are not material. The same eminent commentator says in the cited volume (p. 45) that article 336 of the Civil Code has been deficiently drafted in that it is not sufficiently expressive of all incorporeal rights which are also property for juridical purposes. Corpus Juris (Vol. 50, p. 737) states that in the broad sense of the term, property includes, among other things, "an option", and "the certificate of the railroad commission permitting the operation of a bus line", and on page 748 of the same volume we read: However, these terms (real property, as estate or interest) have also been declared to include every species of title, inchoate or complete, and embrace rights which lie in contract, whether executory or executed. (Emphasis supplied.) Another important question raised by petitioner is whether the estate of Pedro O. Fragrante is a "person" within the meaning of the Public Service Act. Words and Phrases, First Series, (Vol. 6, p, 5325), states the following doctrine in the jurisdiction of the State of Indiana: As the estate of the decedent is in law regarded as a person, a forgery committed after the death of the man whose name purports to be signed to the instrument may be prosecuted

as with the intent to defraud the estate. Billings vs. State, 107 Ind., 54, 55, 6 N. E. 914, 7 N. E. 763, 57 Am. Rep. 77. The Supreme Court of Indiana in the decision cited above had before it a case of forgery committed after the death of one Morgan for the purpose of defrauding his estate. The objection was urged that the information did not aver that the forgery was committed with the intent to defraud any person. The Court, per Elliott, J., disposed of this objection as follows: . . . The reason advanced in support of this proposition is that the law does not regard the estate of a decedent as a person. This intention (contention) cannot prevail. The estate of the decedent is a person in legal contemplation. "The word "person" says Mr. Abbot, "in its legal signification, is a generic term, and includes artificial as well as natural persons," 2 Abb. Dict. 271; Douglas vs. Pacific, etc. Co., 4 Cal. 304; Planters', etc., Bank vs. Andrews, 8 Port. (Ala.) 404. It said in another work that 'persons are of two kinds: natural and artificial. A natural person is a human being. Artificial persons include (1) a collection or succession of natural persons forming a corporation; (2) a collection of property to which the law attributes the capacity of having rights and duties. The latter class of artificial persons is recognized only to a limited extent in our law. "Examples are the estate of a bankrupt or deceased person." 2 Rapalje & L. Law Dict. 954. Our own cases inferentially recognize the correctness of the definition given by the authors from whom we have quoted, for they declare that it is sufficient, in pleading a claim against a decedent's estate, to designate the defendant as the estate of the deceased person, naming him. Ginn vs. Collins, 43 Ind. 271. Unless we accept this definition as correct, there would be a failure of justice in cases where, as here, the forgery is committed after the death of a person whose name is forged; and this is a result to be avoided if it can be done consistent with principle. We perceive no difficulty in avoiding such a result; for, to our minds, it seems reasonable that the estate of a decedent should be regarded as an artificial person. It is the creation of law for the purpose of enabling a disposition of the assets to be properly made, and, although natural persons as heirs, devises, or creditors, have an interest in the property, the artificial creature is a distinct legal entity. The interest which natural persons have in it is not complete until there has been a due administration; and one who forges the name of the decedent to an instrument purporting to be a promissory note must be regarded as having intended to defraud the estate of the decedent, and not the natural persons having diverse interests in it, since ha cannot be presumed to have known who those persons were, or what was the nature of their respective interest. The fraudulent intent is against the artificial person, the estate and not the natural persons who have direct or contingent interest in it. (107 Ind. 54, 55, 6 N.E. 914-915.) In the instant case there would also be a failure of justice unless the estate of Pedro O. Fragrante is considered a "person", for quashing of the proceedings for no other reason than his death would entail prejudicial results to his investment amounting to P35,000.00 as found by the commission, not counting the expenses and disbursements which the proceeding can be presumed to have occasioned him during his lifetime, let alone those defrayed by the estate thereafter. In this jurisdiction there are ample precedents to show that the estate of a deceased person is also considered as having legal personality independent of their heirs. Among the most recent cases may be mentioned that of "Estate of Mota vs. Concepcion, 56 Phil., 712, 717,

wherein the principal plaintiff was the estate of the deceased Lazaro Mota, and this Court gave judgment in favor of said estate along with the other plaintiffs in these words: . . . the judgment appealed from must be affirmed so far as it holds that defendants Concepcion and Whitaker are indebted to he plaintiffs in the amount of P245,804.69 . . . . Under the regime of the Civil Code and before the enactment of the Code of Civil Procedure, the heirs of a deceased person were considered in contemplation of law as the continuation of his personality by virtue of the provision of article 661 of the first Code that the heirs succeed to all the rights and obligations of the decedent by the mere fact of his death. It was so held by this Court in Barrios vs. Dolor, 2 Phil., 44, 46. However, after the enactment of the Code of Civil Procedure, article 661 of the Civil Code was abrogated, as held in Suiliong & Co. vs. ChioTaysan, 12 Phil., 13, 22. In that case, as well as in many others decided by this Court after the innovations introduced by the Code of Civil Procedure in the matter of estates of deceased persons, it has been the constant doctrine that it is the estate or the mass of property, rights and assets left by the decedent, instead of the heirs directly, that becomes vested and charged with his rights and obligations which survive after his demise. The heirs were formerly considered as the continuation of the decedent's personality simply by legal fiction, for they might not have been flesh and blood the reason was one in the nature of a legal exigency derived from the principle that the heirs succeeded to the rights and obligations of the decedent. Under the present legal system, such rights and obligations as survive after death have to be exercised and fulfilled only by the estate of the deceased. And if the same legal fiction were not indulged, there would be no juridical basis for the estate, represented by the executor or administrator, to exercise those rights and to fulfill those obligations of the deceased. The reason and purpose for indulging the fiction is identical and the same in both cases. This is why according to the Supreme Court of Indiana in Billings vs. State, supra, citing 2 Rapalje & L. Dictionary, 954, among the artificial persons recognized by law figures "a collection of property to which the law attributes the capacity of having rights and duties", as for instance, the estate of a bankrupt or deceased person. Petitioner raises the decisive question of whether or not the estate of Pedro O. Fragrante can be considered a "citizen of the Philippines" within the meaning of section 16 of the Public Service Act, as amended, particularly the proviso thereof expressly and categorically limiting the power of the commission to issue certificates of public convenience or certificates of public convenience and necessity "only to citizens of the Philippines or of the United States or to corporations, copartnerships, associations, or joint-stock companies constituted and organized under the laws of the Philippines", and the further proviso that sixty per centum of the stock or paid-up capital of such entities must belong entirely to citizens of the Philippines or of the United States. Within the Philosophy of the present legal system, the underlying reason for the legal fiction by which, for certain purposes, the estate of the deceased person is considered a "person" is the avoidance of injustice or prejudice resulting from the impossibility of exercising such legal rights and fulfilling such legal obligations of the decedent as survived after his death unless the fiction is indulged. Substantially the same reason is assigned to support the same rule in the jurisdiction

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

Pedro O. Fragrante was a Filipino citizen, and as such, if he had lived, in view of the evidence of record, he would have obtained from the commission the certificate for which he was applying. The situation has suffered but one change, and that is, his death. His estate was that of a Filipino citizen. And its economic ability to appropriately and adequately operate and maintain the service of an ice plant was the same that it received from the decedent himself. In the absence of a contrary showing, which does not exist here, his heirs may be assumed to be also Filipino citizens; and if they are not, there is the simple expedient of revoking the certificate or enjoining them from inheriting it. Upon the whole, we are of the opinion that for the purposes of the prosecution of said case No. 4572 of the Public Service Commission to its final conclusion, both the personality and citizenship of Pedro O. Fragrante must be deemed extended, within the meaning and intent of the Public Service Act, as amended, in harmony with the constitution: it is so adjudged and decreed. Decision affirmed, without costs. So ordered. G.R. No. L-8144 August 6, 1913

THE UNITED STATES, plaintiff-appellee, vs. ANASTACIA DE LA TORRE and CELEDONIO GREGORIO, defendants. CELEDONIO GREGORIO, appellant. Lucio Villareal for appellant. Attorney-General Villamor for appellee. JOHNSON, J.: These defendant were charged with the crime of the adultery. The complaint alleged: "That the said Celedonio Gregorio, the above-named accused, did on March 20, 1911, in the municipality of Cuyapo, Province of Nueva Ecija, willfully, unlawfully, and criminally lie with his codefendant, Anastacia de la Torre; that the two ran away and are now united in the house of the councilor of Naguisan, the accused knowing that the accused woman is legally married to the complainant; in violation of law. CRISTINO (his mark) GAMIT." The defendant were duly arrested and given a preliminary examination before the justice of the peace of the pueblo of Cuyapo of the Province of Nueva Ecija. After hearing the evidence, the justice of the peace found that there was sufficient reason for believing that the defendants were probably guilty of the crime charged, and held them for trial in the Court of First Instance of said province. The fiscal presented the above complaint in the Court of First Instance. Before the case was brought to trial, the defendant, Anastacia de la Torre, died, and the complaint against her was dismissed, with costs de oficio. Upon the arraignment in the Court of First Instance, the other defendant, Celedonio Gregorio, pleaded of not guilty and the cause was duly tried. After hearing the evidence the lower court found the defendant guilty of the crime charged in the complaint, and in accordance with the

provisions of article 423 of the Penal Code sentenced him to be imprisoned for a period of three years four months and twenty-one days of prision correccional, with the accessory penalties provided for by the law, and to pay the costs. From that sentence the defendant, Celedonio Gregorio, appealed to this court. In this court the appellant presents two questions. He alleges: First, that, inasmuch as the codefendants, Anastacia de la Torre, had died, the present defendant and appellant could not be tried. He does not support his argument by any authority. The complaint was presented by the offended husband against both of the adulterers. The presentation of the complaint against both of the defendants complied with the requirement of the law. The mere fact that one or the other them died before the cause was brought to trial does not prevent the continuation of the cause against the survivor. Viada, in his valuable commentaries on the Penal Code (vol. 3, p. 111), in discussing this question says: The wronged husband being unable in Spain to lodge his complaint for adultery except against both the guilty parties, if both be alive, it is clear that when the woman is dead he can lodge his complaint against the adulterer, for it is only when the both are alive that he cannot lodge his complaint except against both the guilty parties at once. We are of the opinion that the contention of the appellant that the lower court committed an error in proceeding against the survivor alone after the death of his codefendant, after a complaint had been presented against both of them, is not tenable. In our opinion no error was committed in respects to said assignments of error. The only other contention made by the appellant is that the evidence adduced during the trial was insufficient to show that he was guilty of the crime charged. The evidence shows that the defendant and appellant had been living in the same house with his codefendant for some weeks or months and that he had been seen having actual illicit relations with his codefendant. The offended party was a tenant of the defendant and appellant. The defendants and appellants admits that he knew that Anastacia de la Torre and the offended party were husband and wife. The evidence clearly shows that the defendant was guilty of the crime charged. The Attorney-General asks that the sentence of the lower court be modified and that the defendant and appellant should be required to pay only one-half of the costs of the lower court. With that suggestion of the Attorney-General we agree. For all of the foregoing reasons the judgment of the lower court is hereby affirmed, with the modification that the defendant be required to pay only one-half the costs of the lower court. So ordered. ALMARIO T. SALTA, petitioner, vs. HON. JUDGE JESUS DE VEYRA, in his capacity as Presiding Judge of the CFI of Manila, Branch XIV and PHILIPPINE NATIONAL BANK, respondents. G.R. No. L-38035 September 30, 1982

PHILIPPINE NATIONAL BANK, petitioner, vs. HON. AMANTE P. PURISIMA, as Judge of the Court of First Instance of Manila, Branch VII and ALMARIO SALTA, respondents. Dakila F. Castro & Associates for petitioner. Nestor L. Kalaw, Edgardo M. Magtalas and Juan C. Gatmaitan for respondents,

DE CASTRO, J.: In these two cases, the only issue to be resolved is whether a decision of acquittal in a criminal case operates to dismiss a separate civil action filed on the basis of the same facts as alleged in the criminal case, which is for violation of Republic Act No. 3019, otherwise known as the Anti-Graft and Corrupt Practices Act. The petitioner, Almario T. Salta, in G.R. No. L-37733, takes the affirmative stand on the issue as above indicated, as he made manifest in his motion to dismiss Civil Case No. 79583, of the CFI of Manila, Branch XIV, which was, however, denied by Hon. Jesus de Veyra, presiding. In a similar motion, aforementioned petitioner sought to dismiss another civil case (Civil Case No. 88343), pending before Branch VII of the same CFI of Manila, presided over by Hon. Amante Purisima who granted the motion to dismiss. We have, therefore, the unedifying spectacle of two cases involving the same issue disposed of by two judges in a manner directly in opposition of each other. For a uniform ruling that would authoritatively settle this regrettable conflict of opinion, the two cases have been consolidated for a single decision. For purposes of convenience, however, although the petitioner in G.R. No. L-37733, Almario T. Salta, is the private respondent in the other case, G.R. No. L-38035, in which the petitioner is the Philippine National Bank, We shall refer in this decision to Salta as "petitioner," and the PNB, as respondent bank." Petitioner was an employee of the PNB assigned as Manager of the Malolos' branch. As such, his duty was, among others, to himself grant loans, or only to recommend the granting of loans, depending on the amount of the loan applied for. In the performance of this particular duty, he is supposed to exercise care and prudence, and with utmost diligence, observe the policies, rules and regulations of the bank. In disregard of the pertinent rules, regulations and policies of the respondent bank, petitioner indiscriminately granted certain loans mentioned in the complaints filed by PNB, in a manner characterized by negligence, fraud and manifest partiality, and upon securities not commensurate with the amount of the loans. This is how the respondent bank found petitioner to have discharged his duties as branch manager of the bank, and so it filed a civil action in the CFI of Manila (Civil Case No. 79583, Branch XIV) on April

22, 1970, and another case (Civil Case No. 88343, Branch VII) on September 23, 1972, to recover losses the bank suffered. At the same time the bank caused to be filed, based on the same acts, a criminal case with the Circuit Criminal Court of the Fifth Judicial District at San Fernando, Pampanga, Criminal Case No. CCCV-668, for violation of the Anti-Graft and Corrupt Practices Act. In the criminal case, the Court, on motion to dismiss filed by the defense, after the prosecution has rested, granted the motion in a 64-page Resolution, the dispositive portion of which reads:
CONFORMABLY WITH ALL THE FOREGOING, therefore, the Motion to Dismiss (Demurrer) to Evidence) should be as it is hereby granted and accused ALMARIO T. SALTA ACQUITTED of the offense charged in the Information the prosecution having failed to prove the essential ingredience and/or elements of the crime charged,. with 1 costs de oficio.

With his acquittal in the criminal case, petitioner filed Motions to Dismiss in each of the two civil cases, based on Section 3(c), Rule I I I of the Revised Rules of Court which provides:
(c) extinction of the penal action does not carry with it extinction of the civil, unless the extinction proceeds from a declaration in a final judgment that the fact from which the civil 2 might arise did not exist. ...

It is in the resolution of the motions to dismiss that Judges de Veyra and Purisima of the CFI of Manila took diametrically opposing views, the former denying the motion, the latter granting it. We sustain the order denying the motion to dismiss as issued by Judge de Veyra, which, for its brevity, but clear and convincing, We quote as follows:
Having been acquitted by the Circuit Court of the charges of violation of the Anti-Graft Law, Defendant now seeks the dismissal of the civil case which arose from the same set of facts. The motion to dismiss must be denied for the reason that acquittal in the criminal case will not be an obstacle for the civil case to prosper unless in the criminal case the Court makes a finding that even civilly the accused would not be liable-there is no such a finding. Apart from this, Plaintiff in this present civil case bases its case either on fraud or negligence-evidence that only requires a preponderance, unlike beyond reasonable doubt which is the requisite in criminal cases. The motion to dismiss is, therefore, denied for lack of merit.
3

To begin with, the filing in this case of a civil action separate from the criminal action is fully warranted under the provision of Article 33 of the New Civil Code. 4 The criminal case is for the prosecution of an offense the main element of which is fraud, one of the kinds of crime mentioned in the aforecited provision. Based on the same acts for which the criminal action was filed, the civil actions very clearly alleged fraud and negligence as having given rise to the cause of action averred in the complaints. It needs hardly any showing to demonstrate this fact, which petitioner disputes, particularly as to the

sufficiency of the allegation of fraud in the civil complaints. Definitely, We hold that the following allegation in the complaints unmistakably shows that the complaints do contain sufficient averment of fraud:
13. That there was fraud committed by the defendant in granting the aforesaid loans which rendered him liable for his acts, which fraud is positively and easily Identifiable in 5 the manner and scheme aforementioned.

That there is allegation of negligence is also unmistakably shown when the complaint states that "the defendant as manager of Malolos Branch, in gross violation of the bank rules and regulations, and without exercising necessary prudence, ... extended a number of credit accommodations . . ." 6 On this allegation of negligence alone, the civil case may be maintained as an entirely independent action from the criminal case. Consequently, Section 3(c), Rule III of the Revised Rules of Court has no application thereto. The ruling in the case of PNB vs. Bagamaspad, 7 involving the same respondent herein, and also against its branch manager, unherringly charts the course to be followed in the final resolution of these cases. Thus The trial court based in the civil liability the appellants herein on the provisions of Article 1718 and 1719 of the Civil Code, defining and enumerating the duties and obligations of an agent and his liability for failure to comply with such duty.. . . A careful study and consideration of the record, however, convinces us and we agree with the trial court that the defendants-appellants have not only violated instructions of the plaintiff Bank, including things which the bank wanted done or not done, all of which were fully understood by them but they (appellants) also violated standing regulations regarding the granting of loans; and what is more, thru their carelessness, laxity and negligence, they 8 allowed bans to be granted to persons who were not entitled to secure loans.

If petitioner's civil liability is, as alleged in the complaint, based on negligence, apart from the averment of fraud, then on the strength of the aforesaid ruling, the civil action can be maintained regardless of the outcome of the criminal action. The opinion of former Justice J.B.L. Reyes in Dionisio vs. Alvendia 9 is not only enlightening, but authoritative. Thus
. . . in the case of an independent civil actions under the Civil Code, the result of the criminal case, whether acquittal or conviction, would be entirety irrelevant to the civil action. This seems to be the spirit of the law when it decided to make these actions 'entirely separate and distinct' from the criminal action (Articles 22, 33, 34 and 2177). 10 Hence in these cases, I think Rule 107 Sec. l(d) does not apply.

It is significant to note that under Article 31 11 of the New Civil Code, it is made clear that the civil action permitted therein to be filed separately from the criminal action may proceed independently of the criminal proceedings "regardless of the result of the latter." It seems perfectly reasonable to conclude that the civil actions mentioned in Article 33, permitted in the same manner to be filed separately from the criminal case, may proceed similarly regardless of the result of the criminal case.

Indeed, when the law has allowed a civil case related to a criminal case, to be filed separately and to proceed independently even during the pendency of the latter case, the intention is patent to make the court's disposition of the criminal case of no effect whatsoever on the separate civil case. This must be so because the offenses specified in Article 33 are of such a nature, unlike other offenses not mentioned, that they may be made the subject of a separate civil action because of the distinct separability of their respective juridical cause or basis of action. This is clearly illustrated in the case of swindling, a specie of an offense committed by means of fraud, where the civil case may be filed separately and proceed independently of the criminal case, regardless of the result of the latter. The wisdom of the provision of Article 33 of the New Civil Code is to be found in the fact that when the civil action is reserved to be filed separately, the criminal case is prosecuted by the prosecuting officer alone without intervention from a private counsel representing the interest of the offended party. It is but just that when, as in the present instance, the prosecution of the criminal case is left to the government prosecutor to undertake, any mistake or mishanding of the case committed by the latter should not work to the prejudice of the offended party whose interest would thus be protected by the measure contemplated by Article 33 and Article 2177 12 of the New Civil Code. Prescinding from the foregoing, it should be stated with emphasis, for its decisive effect on how the issue raised in this case should be disposed of, that in no manner may the resolution of the Circuit Criminal Court be read as positively stating that the fact from which the civil action might arise did not exist, as required in the provision relied upon by petitioner, Section 3(c), Rule III of the Revised Rules of Court. As Judge de Veyra put it, "acquittal in the criminal case will not be an obstacle for the civil case to prosper unless in the criminal case the Court makes a finding that even civilly, the accused would not be liable-there is no such finding." There, indeed, could not be such finding because the criminal court, aware that the civil case is not before it, would be acting in excess of jurisdiction if it were to make any pronouncement in effect disposing of a case pending before another court, over which it had not acquired jurisdiction. Even if this were authorized by the Rules of Court, the validity of such rule would be open to serious doubt as it would be affecting a matter of jurisdiction, which is substantive in character, considering the constitutional limitation of the rule-making power of the Supreme Court, that said rules should not increase or diminish substantive rights. WHEREFORE, the order denying the motion to dismiss issued in Civil Case No. 79583 of the Court of First Instance of Manila (G. R. No. L-37733) is affirmed, while the order granting a similar motion in Civil Case No. 88343 of the same court (G. R. No. L-38035) is reversed. Let the records of these two (2) cases be remanded to their respective courts of origin for proper further proceedings. No costs. LEONILO C. DONATO, petitioners, vs. HON. ARTEMON D. LUNA, PRESIDING JUDGE, COURT OF FIRST INSTANCE OF

MANIIA, BRANCH XXXII HON. JOSE FLAMINIANO, CITY FISCAL OF MANILA; PAZ B. ABAYAN, respondents. Leopoldo P. Dela Rosa for petitioner. Emiterio C. Manibog for private respondent. City Fiscal of Manila for public respondent.

GANCAYCO, J.: In this petition for certiorari and prohibition with preliminary injunction, the question for the resolution of the Court is whether or not a criminal case for bigamy pending before the Court of First Itance of Manila should be suspended in view of a civil case for annulment of marriage pending before the Juvenile and Domestic Relations Court on the ground that the latter constitutes a prejudicial question. The respondent judge ruled in the negative. We sustain him. The pertinent facts as set forth in the records follow. On January 23, 1979, the City Fiscal of Manila acting thru Assistant City Fiscal Amado N. Cantor filed an information for bigamy against herein petitioner, Leonilo C. Donato with the Court of First Instance of Manila, docketed as Criminal Case No. 43554 and assigned to Branch XXXII of said court. The information was filed based on the complaint of private respondent Paz B. Abayan. On September 28, 1979, before the petitioner's arraignment, private respondent filed with the Juvenile and Domestic Relations Court of Manila a civil action for declaration of nullity of her marriage with petitioner contracted on September 26, 1978, which action was docketed as Civil Case No. E-02627. Said civil case was based on the ground that private respondent consented to entering into the marriage, which was petitioner Donato's second one, since she had no previous knowledge that petitioner was already married to a certain Rosalinda R. Maluping on June 30, 1978. Petitioner Donato's answer in the civil case for nullity interposed the defense that his second marriage was void since it was solemnized without a marriage license and that force, violence, intimidation and undue influence were employed by private respondent to obtain petitioner's consent to the marriage. Prior to the solemnization of the subsequent or second marriage, petitioner and private respondent had lived together and deported themselves as husband and wife without the benefit of wedlock for a period of at least five years as evidenced by a joint affidavit executed by them on September 26, 1978, for which reason, the requisite marriage license was dispensed with pursuant to Article 76 of the New Civil Code pertaining to marriages of exceptional character. Prior to the date set for the trial on the merits of Criminal Case No. 43554, petitioner filed a motion to suspend the proceedings of said case contending that Civil Case No.

E-02627 seeking the annulment of his second marriage filed by private respondent raises a prejudicial question which must first be determined or decided before the criminal case can proceed. In an order dated April 7, 1980. Hon. Artemon D. Luna denied the motion to suspend the proceedings in Criminal Case No. 43554 for bigamy. Respondent judge's basis for denial is the ruling laid down in the case of Landicho vs. Relova. 1 The order further directed that the proceedings in the criminal case can proceed as scheduled. A motion for reconsideration was flied by herein petitioner thru counsel citing as one of his grounds for suspension of proceedings the ruling laid down by this Court in the case of De la Cruz vs. Ejercito 2 which was a much later case than that cited by respondent judge in his order of denial. The motion for reconsideration of the said order was likewise denied in an order dated April 14, 1980, for lack of merit. Hence, the present petition for certiorari and prohibition with preliminary injunction. A prejudicial question has been defined to be one which arises in a case, the resolution of which question is a logical antecedent of the issue involved in said case, and the cognizance of which pertains to another tribunal. 3 It is one based on a fact distinct and separate from the crime but so intimately connected with it that it determines the guilt or innocence of the accused, and for it to suspend the criminal action, it must appear not only that said case involves facts intimately related to those upon which the criminal prosecution would be based but also that in the resolution of the issue or issues raised in the civil case, the guilt or innocence of the accused would necessarily be determined. 4 A prejudicial question usually comes into play in a situation where a civil action and a criminal action may proceed, because howsoever the issue raised in the civil action is resolved would be determinative juris et de jure of the guilt or innocence of the accused in a criminal case. 5 The requisites of a prejudicial question do not obtain in the case at bar. It must be noted that the issue before the Juvenile and Domestic Relations Court touching upon the nullity of the second marriage is not determinative of petitioner Donato's guilt or innocence in the crime of bigamy. Furthermore, it was petitioner's second wife, the herein private respondent Paz B. Abayan who filed the complaint for annulment of the second marriage on the ground that her consent was obtained through deceit. Petitioner Donato raised the argument that the second marriage should have been declared null and void on the ground of force, threats and intimidation allegedly employed against him by private respondent only sometime later when he was required to answer the civil action for anulment of the second marriage. The doctrine elucidated upon by the case of Landicho vs. Relova 6 may be applied to the present case. Said case states that:
The mere fact that there are actions to annul the marriages entered into by the accused in a bigamy case does not mean that "prejudicial questions" are automatically raised in

civil actions as to warrant the suspension of the case. In order that the case of annulment of marriage be considered a prejudicial question to the bigamy case against the accused, it must be shown that the petitioner's consent to such marriage must be the one that was obtained by means of duress, force and intimidation to show that his act in the second marriage must be involuntary and cannot be the basis of his conviction for the crime of bigamy. The situation in the present case is markedly different. At the time the petitioner was indicted for bigamy on February 27, 1963, the fact that two marriage ceremonies had been contracted appeared to be indisputable. And it was the second spouse, not the petitioner who filed the action for nullity on the ground of force, threats and intimidation. And it was only on June 15, 1963, that petitioner, as defendant in the civil action, filed a third-party complaint against the first spouse alleging that his marriage with her should be declared null and void on the ground of force, threats and intimidation. Assuming that the first marriage was null and void on the ground alleged by petitioner, the fact would not be material to the outcome of the case. Parties to the marriage should not be permitted to judge for themselves its nullity, for the same must be submitted to the judgment of the competent courts and only when the nullity of the marriage is so declared can it be held as void, and so long as there is no such declaration the presumption is that the marriage exists. Therefore, he who contracts a second marriage before the judicial declaration of nullity of the first marriage assumes the risk of being prosecuted for bigamy. The lower court therefore, has not abused much less gravely abused, its discretion in failing to suspend the hearing as sought by petitioner.

In the case at bar, petitioner has not even sufficiently shown that his consent to the second marriage has been obtained by the use of threats, force and intimidation. Petitioner calls the attention of this Court to the fact that the case of De la Cruz vs. Ejercito is a later case and as such it should be the one applied to the case at bar. We cannot agree. The situation in the case at bar is markedly different. In the aforecited case it was accused Milagros dela Cruz who was charged with bigamy for having contracted a second marriage while a previous one existed. Likewise, Milagros dela Cruz was also the one who filed an action for annulment on the ground of duress, as contra-distinguished from the present case wherein it was private respondent Paz B. Abayan, petitioner's second wife, who filed a complaint for annulment of the second marriage on the ground that her consent was obtained through deceit since she was not aware that petitioner's marriage was still subsisting. Moreover, in De la Cruz, a judgment was already rendered in the civil case that the second marriage of De la Cruz was null and void, thus determinative of the guilt or innocence of the accused in the criminal case. In the present case, there is as yet no such judgment in the civil case. Pursuant to the doctrine discussed in Landicho vs. Relova, petitioner Donato cannot apply the rule on prejudicial questions since a case for annulment of marriage can be considered as a prejudicial question to the bigamy case against the accused only if it is proved that the petitioner's consent to such marriage was obtained by means of duress, violence and intimidation in order to establish that his act in the subsequent marriage was an involuntary one and as such the same cannot be the basis for conviction. The preceding elements do not exist in the case at bar. Obviously, petitioner merely raised the issue of prejudicial question to evade the prosecution of the criminal case. The records reveal that prior to petitioner's second marriage on September 26, 1978, he had been living with private respondent Paz B.

Abayan as husband and wife for more than five years without the benefit of marriage. Thus, petitioner's averments that his consent was obtained by private respondent through force, violence, intimidation and undue influence in entering a subsequent marriage is belled by the fact that both petitioner and private respondent executed an affidavit which stated that they had lived together as husband and wife without benefit of marriage for five years, one month and one day until their marital union was formally ratified by the second marriage and that it was private respondent who eventually filed the civil action for nullity. Another event which militates against petitioner's contentions is the fact hat it was only when Civil Case No. E-02627 was filed on September 28, 1979, or more than the lapse of one year from the solemnization of the second marriage that petitioner came up with the story that his consent to the marriage was secured through the use of force, violence, intimidation and undue influence. Petitioner also continued to live with private respondent until November 1978, when the latter left their abode upon learning that Leonilo Donato was already previously married. In the light of the preceding factual circumstances, it can be seen that the respondent Judge did not err in his earlier order. There is no pivotal issue that must be preemptively resolved in Civil Case No. E-02627 before proceedings in the criminal action for bigamy can be undertaken. Accordingly, there being no prejudicial question shown to exit the order of denial issued by the respondent judge dated April 14, 1980 should be sustained. WHEREFORE, in view of the foregoing, the instant petition is hereby DISMISSED for lack of merit. We make no pronouncement as to costs. G.R. No. 138509 July 31, 2000

IMELDA MARBELLA-BOBIS, petitioner, vs. ISAGANI D. BOBIS, respondent. YNARES-SANTIAGO, J.: On October 21, 1985, respondent contracted a first marriage with one Maria Dulce B. Javier. Without said marriage having been annulled, nullified or terminated, the same respondent contracted a second marriage with petitioner Imelda Marbella-Bobis on January 25, 1996 and allegedly a third marriage with a certain Julia Sally Hernandez. Based on petitioner's complaintaffidavit, an information for bigamy was filed against respondent on February 25, 1998, which was docketed as Criminal Case No. Q98-75611 of the Regional Trial Court, Branch 226, Quezon City. Sometime thereafter, respondent initiated a civil action for the judicial declaration of absolute nullity of his first marriage on the ground that it was celebrated without a marriage license. Respondent then filed a motion to suspend the proceedings in the criminal case for bigamy invoking the pending civil case for nullity of the first marriage as a prejudicial question

to the criminal case. The trial judge granted the motion to suspend the criminal case in an Order dated December 29, 1998.1 Petitioner filed a motion for reconsideration, but the same was denied. Hence, this petition for review on certiorari. Petitioner argues that respondent should have first obtained a judicial declaration of nullity of his first marriage before entering into the second marriage, inasmuch as the alleged prejudicial question justifying suspension of the bigamy case is no longer a legal truism pursuant to Article 40 of the Family Code.2 The issue to be resolved in this petition is whether the subsequent filing of a civil action for declaration of nullity of a previous marriage constitutes a prejudicial question to a criminal case for bigamy. A prejudicial question is one which arises in a case the resolution of which is a logical antecedent of the issue involved therein.3It is a question based on a fact distinct and separate from the crime but so intimately connected with it that it determines the guilt or innocence of the accused.4 It must appear not only that the civil case involves facts upon which the criminal action is based, but also that the resolution of the issues raised in the civil action would necessarily be determinative of the criminal case.5 Consequently, the defense must involve an issue similar or intimately related to the same issue raised in the criminal action and its resolution determinative of whether or not the latter action may proceed.6 Its two essential elements are:7 (a) the civil action involves an issue similar or intimately related to the issue raised in the criminal action; and (b) the resolution of such issue determines whether or not the criminal action may proceed. A prejudicial question does not conclusively resolve the guilt or innocence of the accused but simply tests the sufficiency of the allegations in the information in order to sustain the further prosecution of the criminal case. A party who raises a prejudicial question is deemed to have hypothetically admitted that all the essential elements of a crime have been adequately alleged in the information, considering that the prosecution has not yet presented a single evidence on the indictment or may not yet have rested its case. A challenge of the allegations in the information on the ground of prejudicial question is in effect a question on the merits of the criminal charge through a non-criminal suit. Article 40 of the Family Code, which was effective at the time of celebration of the second marriage, requires a prior judicial declaration of nullity of a previous marriage before a party may remarry. The clear implication of this is that it is not for the parties, particularly the accused, to determine the validity or invalidity of the marriage.8 Whether or not the first marriage was void for lack of a license is a matter of defense because there is still no judicial declaration of its nullity at the time the second marriage was contracted. It should be remembered that bigamy can successfully be prosecuted provided all its elements concur two of which are a previous marriage and a subsequent marriage which would have been valid had it not been for the existence at the material time of the first marriage.9

In the case at bar, respondent's clear intent is to obtain a judicial declaration of nullity of his first marriage and thereafter to invoke that very same judgment to prevent his prosecution for bigamy. He cannot have his cake and eat it too. Otherwise, all that an adventurous bigamist has to do is to disregard Article 40 of the Family Code, contract a subsequent marriage and escape a bigamy charge by simply claiming that the first marriage is void and that the subsequent marriage is equally void for lack of a prior judicial declaration of nullity of the first. A party may even enter into a marriage aware of the absence of a requisite - usually the marriage license - and thereafter contract a subsequent marriage without obtaining a declaration of nullity of the first on the assumption that the first marriage is void. Such scenario would render nugatory the provisions on bigamy. As succinctly held in Landicho v. Relova:10 (P)arties to a marriage should not be permitted to judge for themselves its nullity, only competent courts having such authority. Prior to such declaration of nullity, the validity of the first marriage is beyond question. A party who contracts a second marriage then assumes the risk of being prosecuted for bigamy. Respondent alleges that the first marriage in the case before us was void for lack of a marriage license. Petitioner, on the other hand, argues that her marriage to respondent was exempt from the requirement of a marriage license. More specifically, petitioner claims that prior to their marriage, they had already attained the age of majority and had been living together as husband and wife for at least five years.11 The issue in this case is limited to the existence of a prejudicial question, and we are not called upon to resolve the validity of the first marriage. Be that as it may, suffice it to state that the Civil Code, under which the first marriage was celebrated, provides that "every intendment of law or fact leans toward the validity of marriage, the indissolubility of the marriage bonds."12 [] Hence, parties should not be permitted to judge for themselves the nullity of their marriage, for the same must be submitted to the determination of competent courts. Only when the nullity of the marriage is so declared can it be held as void, and so long as there is no such declaration the presumption is that the marriage exists.13 No matter how obvious, manifest or patent the absence of an element is, the intervention of the courts must always be resorted to. That is why Article 40 of the Family Code requires a "final judgment," which only the courts can render. Thus, as ruled in Landicho v. Relova,14 he who contracts a second marriage before the judicial declaration of nullity of the first marriage assumes the risk of being prosecuted for bigamy, and in such a case the criminal case may not be suspended on the ground of the pendency of a civil case for declaration of nullity. In a recent case for concubinage, we held that the pendency of a civil case for declaration of nullity of marriage is not a prejudicial question.15 This ruling applies here by analogy since both crimes presuppose the subsistence of a marriage. Ignorance of the existence of Article 40 of the Family Code cannot even be successfully invoked as an excuse.16 The contracting of a marriage knowing that the requirements of the law have not been complied with or that the marriage is in disregard of a legal impediment is an act penalized by the Revised Penal Code.17 The legality of a marriage is a matter of law and every person is presumed to know the law. As respondent did not obtain the judicial declaration of nullity when he entered into the second marriage, why should he be allowed to belatedly obtain that judicial declaration in order to delay his criminal prosecution and subsequently defeat it by his own

disobedience of the law? If he wants to raise the nullity of the previous marriage, he can do it as a matter of defense when he presents his evidence during the trial proper in the criminal case. The burden of proof to show the dissolution of the first marriage before the second marriage was contracted rests upon the defense,18 but that is a matter that can be raised in the trial of the bigamy case. In the meantime, it should be stressed that not every defense raised in the civil action may be used as a prejudicial question to obtain the suspension of the criminal action. The lower court, therefore, erred in suspending the criminal case for bigamy. Moreover, when respondent was indicted for bigamy, the fact that he entered into two marriage ceremonies appeared indubitable. It was only after he was sued by petitioner for bigamy that he thought of seeking a judicial declaration of nullity of his first marriage. The obvious intent, therefore, is that respondent merely resorted to the civil action as a potential prejudicial question for the purpose of frustrating or delaying his criminal prosecution. As has been discussed above, this cannot be done.1awphi1 In the light of Article 40 of the Family Code, respondent, without first having obtained the judicial declaration of nullity of the first marriage, can not be said to have validly entered into the second marriage. Per current jurisprudence, a marriage though void still needs a judicial declaration of such fact before any party can marry again; otherwise the second marriage will also be void.19 The reason is that, without a judicial declaration of its nullity, the first marriage is presumed to be subsisting. In the case at bar, respondent was for all legal intents and purposes regarded as a married man at the time he contracted his second marriage with petitioner.20 Against this legal backdrop, any decision in the civil action for nullity would not erase the fact that respondent entered into a second marriage during the subsistence of a first marriage. Thus, a decision in the civil case is not essential to the determination of the criminal charge. It is, therefore, not a prejudicial question. As stated above, respondent cannot be permitted to use his own malfeasance to defeat the criminal action against him.21 WHEREFORE, the petition is GRANTED. The order dated December 29, 1998 of the Regional Trial Court, Branch 226 of Quezon City is REVERSED and SET ASIDE and the trial court is ordered to IMMEDIATELY proceed with Criminal Case No. Q98-75611. SO ORDERED. G.R. No. L-63198 June 21, 1990 VICENTE S. UMALI, BENJAMIN CALLEJA, JR., ALBERTO L. LEDESMA and EVANGELINE U. LEDESMA, petitioners, vs. HONORABLE INTERMEDIATE APPELLATE COURT AND SPOUSES HONORIO and SOLINA EDANO, respondents. Vicente A. Garcia for petitioners. Edano, Leynes Law Office for private respondents.

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

st Installment and downpayment


2nd Installment

September 28, 1979

P225,000.00

- March 31, 1980 September 30, 1980 - March 31, 1981

271,500.00

3rd Installment

270,000.00

4th Installment

270,000.00

issuing for this purpose four checks drawn against the Chartered Bank, Manila Branch. The first check for P225,000.00 was honored upon its presentment. By arrangement of the petitioners with the Edano spouses, a deed of absolute sale was executed by the vendors, inspire of the fact that the purchase price has not yet been Idly paid. Thus, TCT No. (T36471) was cancelled and a new transfer certificate of title was issued in the name of OROSEA. Thereafter, OROSEA secured a loan of P1,000,000.00 from the Philippine Veterans Bank using this property as security. When the check for the second installment fell due, petitioners asked, for two times, deferment of its presentation for payment, the first to June 30, 1980, and the second to July 31, 1980. In the first deferment petitioners issued a check that matured on June 30, 1980 to replace the check that matured on March 31, 1980. On the second deferment petitioners issued another check dated July 31, 1980 to replace the check dated June 30, 1980. This second renewal check was presented with the bank but it was dishonored due

to lack of funds. So were the checks postdated September 30, 1980 and March 31, 1981. They were also dishonored upon their presentment for lack of funds. As a consequence of the dishonor of these checks, the Edano spouses filed a complaint for estafa against petitioners. The information was filed by the Provincial Fiscal against petitioners on May 21, 1981, and it was docketed as Criminal Case No. 1423-I. Arraignment was set on September 4, 1981 but petitioners failed to appear. It was reset to October 5, 1981 but this was postponed upon motion of petitioners. On October 14, 1981, OROSEA filed a Complaint in the Court of First Instance of Quezon against the Edano spouses, docketed as Civil Case No. 8769, for the annulment/rescission of the Contract of Sale executed on September 4, 1979 by and between OROSEA and the Edano spouses covering Lot No. 49 of the Cadastral Survey of Mulanay, and for which the petitioners issued the checks, subject of Criminal Case No. 1423-1. Criminal Case No. 1423-I was again set for arraignment on November 5, 1980. This was postponed. With the entry of a new counsel, petitioners filed a motion to quash Criminal Case No. 1423-I, on ground of improper venue, but this motion was withdrawn by petitioners before it could be resolved. The arraignment was again set for January 4, 1982 which was again postponed; then to February 5, 1982, again postponed; then to March 23, 1982. However, before March 23, 1982, petitioners filed, in Criminal Case No. 1423-I, a 'Motion to Suspend Arraignment and Further Proceedings, with a Supplemental Motion To Suspend Proceedings'. This was opposed by the Provincial Fiscal of Quezon. Resolving the motion to suspend, respondent Judge issued his orders, now under 2 question, denying the motion.

Acting on the "Motion to Suspend Arraignment and Further Proceedings," the Court of First Instance of Zambales, Branch II, in said CR Case No. 1423-1 in its order dated 29 April 1982 3 denied the same for lack of merit; and the motion for reconsideration of said order was likewise denied in the Order dated 24 June l982. 4 A petition for certiorari and prohibition, docketed as CA-G.R. SP No. 14504, was then filed by herein petitioners with the respondent Court of Appeals. The appellate court, resolving the said petition, rendered the now assailed decision dated 23 September 1982 affirming the questioned orders of the trial court and dismissed the petition for lack of merit. The Court of Appeals ruled that, inasmuch as the issues in CV No. 8769 and CR No. 1423-I are completely different from each other, and that the resolution of one is not necessary for the resolution of the other, the issue involved in CV No. 8769 is not a prejudicial question vis-a-vis the issue in CR No. 1423-I so as to warrant the suspension of the proceedings in the latter case, until the termination of the civil case. In its resolution dated 3 February 1983, the Court of Appeals also denied for lack of merit the petitioners' motion for reconsideration of the said decision. In this present recourse, the principal issue to be resolved, as in the Court of Appeals, is whether CV No. 8769 involves a prejudicial question in relation to CR No. 1423-I so as to require a suspension of proceedings in the latter case, until the civil case is disposed of. We find no merit in the petition.

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

WHEREFORE, the petition is DENIED. The decision dated 23 September 1982 of the Court of Appeals in CA-GR SP No. 14504 is hereby AFFIRMED. SO ORDERED. G.R. No. L-60962 July 11, 1986 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ROLANDO MONTEVERDE y CONE alias "EDUARDO MASCARIAS, accusedappellant.

PARAS, J.: This is an appeal interposed by defendant Rolando Monteverde from the judgment of the CFI of Zamboanga City, in Criminal Case No. 1661 (185-111-79) finding him and his co-accused Reynaldo Codera Jr. guilty of the crime of Robbery with Rape and sentencing them to death. According to the spouses, Tomas and Teresita, at about 1:00 in the morning of December 29, 1976, the appellant and co-accused Reynaldo destroyed the window of their house. Teresita stood up and lighted a kerosene lamp, at which instance the couple saw Reynaldo at the window pointing a gun at them. He forced them to open the door. Once inside, he hogtied Tomas, gagged him and placed him under the bed. With the use of a gun and a knife, the appellant and Reynaldo intimidated Teresita and raped her three times (twice by the former and once by the latter). At about 4:00 in the same morning, they ransacked the house and left with their loot valued at P300.00 plus cash money of P15.00. Teresita and her husband immediately reported the matter to the police. Upon examination, the medico-legal officer issued a medical certificate with the following findings: that Teresita was already 2 months pregnant when she was sexually abused and that there were no external signs of physical injuries. Said medical certificate, however, was not properly Identified in court because the physician was not presented during the trial. On March 27, 1977, the victims-spouses went to the police station for Identification of arrested suspects. The spouses immediately identified Reynaldo as one of the two culprits who had committed the crimes. Teresita also unhesitatingly pointed to Rolando in a picture shown to her, as the very same person who is the other culprit. In a sworn statement before the NBI, Reynaldo admitted that he and appellant planned the robbery. However, he was not cross-examined because pending trial, he escaped. The appellant put up alibi as his defense and claimed that he was elsewhere with relatives and friends when the incident took place. Finding the straightforward and substantiated testimonies of the spouses credible, the trial court convicted the appellant and Reynaldo as charged and sentenced them to death. The appellant, however, assails the spouses' credibility, and claims that: (a) the medical certificate does not show signs of physical injuries and spermatozoa; (2) said medical certificate and even his co-accused's confession are inadmissible against him, for being hearsay; (3) recidivism cannot be considered against him because it was not alleged in

the information; and (4) the lower court's proceedings are void because the amended information does not contain a certification, The appeal lacks merit. The fact that the medical certificate shows no external signs of physical injuries and spermatozoa on the victim does not negate the commission of rape. (People vs. Bawit, L-48116, February 20, 1981; People vs. Dadaeg, L-37798, July 15, 1985, 137 SCRA 500). While the medical certificate as well as the questioned extrajudicial confession may be incomplete or defective, neither is indispensable to prove the crime of rape. In previous cases, medical examination was held to be merely corroborative. (People vs. Pielago, et al., L-42256, December 19, 1985; People vs. Opena, L-34954, February 20, 1981, 102 SCRA 755). In a prosecution for rape, the accused may be convicted even on the sole basis of the complainant's testimony, if credible. (People vs. Aragona, L-43752, September 19, 1985, 138 SCRA 569). In the case at bar, We find no cogent reason to disturb the trial court's findings on the credibility of the spouses. Having heard the witnesses and observed their deportment during the trial, the trial court is in a good position to decide the question. Indeed, the spouses' direct and substantiated testimonies are more credible than the appellant's general denial and uncorroborated testimony. Considering that the spouses have no motive to charge the appellant falsely, especially with such a grave offense, his defense of alibi is unavailing because the spouses positively Identified him. (People vs. Arbois, L-36936, August 5, 1985, 138 SCRA 24; People vs. Estante, L-30354, July 30, 1979, 92 SCRA 122; People vs. Cabeltes, L-38145-48, June 29, 1979, 91 SCRA 208; People vs. Chavez, L-38603, September 30, 1982, 117 SCRA 221). The trial court properly appreciated recidivism as an aggravating circumstance although not alleged in the information because the same was proved by evidence. (People vs. Perez, L-50044, July 31, 1981, 106 SCRA 436; People vs. Entes, L-50632, February 24, 1981, 103 SCRA 162). Finally, We wish to state that while generally, a preliminary investigation is mandatory and a certification that such investigation was held is required, still this rule does not apply if the issue is raised only after conviction. Thus, it has been held that after a plea of not guilty to the information, an accused is deemed to have foregone the right of preliminary investigation and to have abandoned the right to question any irregularity that surrounds it (See Zacarias vs. Cruz, 30 SCRA 728, People vs. Beltran, 32 SCRA 71. See also People vs. Arbola, L-16936, Aug. 5,1985). Judgment of conviction is AFFIRMED, with the modification that due to the lack of the necessary votes, the death penalty is reduced to reclusion perpetua, with costs against the accused. SO ORDERED. G.R. No. L-10875 April 28, 1958

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. SEBASTIAN S. LAMBINO, defendant-appellant. Meris-Morales, Busto and Oropilla for appellant. First Assistant Solicitor General Guillermo E. Torres and Solicitor Frine C. Zaballero for appellee. ENDENCIA, J.: On August 25, 1952, appellant herein was charged in the Court of First Instance of Pangasinan with the crime of malversation of public fund as in the amount of P16,267.65 in an information filed by the provincial fiscal, which was later on amended in order to change the amount to P16,287.65. After his arrest, the case was set for his arraignment on February 12, 1953, but upon his petition, said arraignment was postponed several times until finally on March 12, 1903, appellant was duly arraigned and entered the plea of not guilty. The case was set for hearing for May 11, and 12, 1954, but, upon petition of the accused, said hearing was postponed to May 26, then to June 17, June 29 and July 13, 1954. However, on the last date, the hearing of the case did not take place, because the appellant then filed a motion wherein he alleged that there has been no preliminary investigation in the case and that the information contained vague and indefinite avernment of the date of the commission of the crime charged, and the court again postponed the hearing to July 29, 1954, so as to give the defense an opportunity to file a written argument supporting the motion. No action was taken thereon, but the case was definitely called for hearing on said date. Before the commencement of the trial, appellant reiterated his petition for preliminary investigation, but it was denied on the round that "the court has studied the record of the case and is satisfied with the preliminary investigation conducted thereon." The trial was proceeded on and the prosecution, presented its first witness, Auditor Dalmacio Ramos, who testified that he examined the accounts of the appellant as municipal treasurer of Sta. Barbara, Pangasinan, and found the shortage alleged in the information; and when his witness was about to finish his testimony, appellant, through counsel, asked the court that he be permitted to withdraw his former plea of not guilty and to substitute it for that of guilty, that he be given the benefit of the indeterminate sentence and that the reading of the sentence be deferred. The trial court granted this petition and forthwith ordered that the accused be again arraigned and, upon being rearraigned, appellant voluntarily entered the plea of guilty; and agreeing to appellant's petition, the lower court fixed August 17, 1954 as the date of promulgation of the judgment. Decision was rendered on July 31, 1954, whereby the court found appellant guilty beyond reasonable doubt of the crime of malversation of public funds and, taking into account his plea of guilty as a mitigating circumstance, imposed upon the appellant a penalty of not less than eight years and one day of prison mayor, and not more than twelve years and one day of reclusion temporal, to pay a fine in the sum of P8,133.82, to suffer perpetual special disqualification from holding public office, to indemnify the municipal government of Sta. Barbara in the amount of P16,267.65, and to pay the costs.

On August 14, 1954, appellant filed a petition to withtdraw his plea of guilty on the ground that when the instant case, was called for hearing last July 29, 1954, the undersigned accused inadvertently an inadvisedly entered a plea of guilty to the information, having yielded to do so only after being seduced and influenced by outside intervention of other persons as further explained his affidavit of merits hereto attached and made an integral part of this petition; that in truth and in fact he did not very well understand the true import and full extent of the consequences of his ill-considered plea, and that after more intillegent consultation, deeper discernment and mature deliberation, he has finally come to regret his plea of guilty, and now most solicitously begs to withdraw the same. Despite this motion, the lower court promulgated the decision, thus empliedly overruling said motion. Thereupon appellant orally announced his intention to appeal, but instead of filing the corresponding notice of appeal, he presented on August 24, 1954, a motion of reconsideration and new trial, alleging that there have been errors of law and irregularities in the trial of the case and that new and material evidence has been discovered which, if admitted, would probably change the judgment, to wit: list of Naric rice debtors, chits or promissory notes, duly signed, supporting said list. This motion was overruled by the lower court for lack and, on August 28, 1954, the formal notice of appeal was filed and thus the was elevated to the court of Appeals which certified it to this Court for the reason that appellant in his brief, raises only a question of law. Appellant claims that the lower court erred (1) in not granting appellant's motion for preliminary investigation filed on July 13, 1954; (2) in not granting appellant's petition of August 14 to withdraw his plea of guilty a to substitute it for that not guilty; and (3) in overruling appellant's motion for reconsideration of the decision a new trial thereof. As to the first error, we find no irregularity in the actuation of the lower court, firstly because that petition for preliminary investigation was filed by appellant after bad entered his plea of not guilty on March 12, 1953. It is a settled rule in this jurisdiction that a preliminary investigation may be waived and that the accused may waive it expressly or impliedly. And in the case of People vs. Magpale, 70 Phil., 176, this Court held that "the right was waived by failure to claim it before the accuse pleaded." Moreover in the case at bar, the information was filed originally with the court of first instance an after its filing the accused was ordered arrested, hence we presume that before the issuance of such order of arrest, the Honorable Judge presiding the lower court must have made the corresponding investigation provided for in Sec. 4 of Rule 108. Again, before the commencement of the trial, appellant reiterated his petition for a preliminary investigation, which was overruled, nevertheless appellant took no steps to bring the matter to higher courts an stop the trial of the case; instead he allowed the prosecution to present the first witness who was able to testify and show the commission of the crime charged in the information. By his conduct, we held that he waived his right to a preliminary investigation and is estopped from claiming it. As to the second error ascribed to the lower court in that it did not allow appellant to withdraw his former plea of guilty and substitute it with one of not guilty, we find appellant's contention

completely untenable. He claims to have pleaded guilty because "he has been seduced and influence by outside intervention" and that "he did not very well understand the true import and full extent of the consequences of his ill-considered plea, and that after more intelligent consultation, deeper discernment and mature deliberation, he has finally come to regret his plea of guilty." But the record shows that as early as June 17, 1954, appellant was already considering the advisability of pleading guilty, as his counsel so announced, when they then petitioned for the postponement of the hearing at a later date. Likewise, the record shows that the accused entered his plea of guilty after a witness for the prosecution had testified so convincingly that the appellant has committed the crime charged in the information. At that time he was assisted by an attorney and he pleaded guilty only after consultation with him. Under these circumstances, it could hardly be conceived that he involuntarily pleaded guilty without realizing the consequences of his plea. On the other hand, we find that the withdrawal of a plea of guilty in order to interpose a motion to quash or substitute therefore a plea of not guilty, at any time before judgment, is not a matter of strict right to the accused but of sound discretion to the trial court. (U. S. vs. Patala, 2 Phil., 752; U. S. vs. Molo, 5 Phil., 412; U. S. Schneer, 7 Phil., 523; U. S. vs. Neri, 8 Phil., 669; U. S. vs. Sanchez, 13 Phil., 336; U. S. vs. Gran, 18 Phil., 122; People vs. Quinta, 51 Phil., 820; People vs. Ubaldo, 55 Phil., 95.) Obviously appellant herein should not be allowed to gamble with his plea of guilty by withdrawing it after he learned the penalty imposed upon him. As to the third error, we find appellant's contention also untenable, for by the plea of guilty he admits all the facts alleged in the information and, by that plea, he is precluded from showing that he has not committed them. And, even granting that the evidence he has discovered later on may have some influence in the matter, we find that the same, if at all, would only tend to prove that he disposed of the rice entrusted to him, selling it on credit without authority, thus malversing the proceeds thereof, so that the evidence in question would in nowise relieve him from responsibility and, therefore, it would not alter the decision of the lower court. The Solicitor General recommends that the principal penalty imposed upon the accused be affirmed in toto. We find, however, that said penalty was erroneous, firstly because the lower court, in imposing such penalty, took into consideration the plea of guilty entered by the accused after a witness for the prosecution had sufficiently proved the crime at bar. Obviously, such plea of guilty cannot be given consideration as mitigating circumstance for it was entered after the prosecution had presented part of the evidence (People vs. Co Chan, 60. Phil., 293; People vs. De la Cruz, 63 Phil., 874). Secondly, the penalty fixed by the Revised Penal Code for the crime at bar (Art. 217, No. 4) is reclusion temporal in its medium and maximum periods because the amount involved is more than P12,000 but less than P20,000, so that the minimum penalty, under the Indeterminate Sentence Law, that should be imposed upon the defendant, is prision mayor in its maximum to reclusion temporal in its minimum or from 10 years and 1 day of prision mayor to 14 years and 8 months of reclusion temporal; consequently, the minimum of the indeterminate sentence applicable to the case at bar is not 8 years and 1 day as fixed by the trial judge, but a penalty of not less than 10 years and 1 day of prision mayor. And with regards to the maximum penalty, it should be 16 years, 5 months and 11 days of reclusion temporal, instead of 12 years and 1 day of reclusion temporal. Accordingly, the penalty imposed upon the appellant should be modified as above pointed out.

Wherefore, with the modification of the decision as above indicated, the same is hereby affirmed, with costs against the appellant. G.R. No. 85468 September 7, 1989 QUINTIN S. DOROMAL, petitioner, vs. SANDIGANBAYAN, OMBUDSMAN AND SPECIAL PROSECUTOR, respondents.

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

The petitioner filed a petition for certiorari and prohibition in this Court questioning the jurisdiction of the "Tanodbayan" to file the information without the approval of the Ombudsman after the effectivity of the 1987 Constitution (G.R. No. 81766, entitled "Doromal vs. Sandiganbayan").

On June 30, 1988, this Court annulled the information in accordance with its decision in the consolidated cases of Zaldivar vs. Sandiganbayan, G.R. Nos. 79690-707 and Zaldivar vs. Gonzales, G.R. No. 80578, April 27, 1988 (160 SCRA 843), where it ruled that:
... the incumbent Tanodbayan (called Special Prosecutor under the 1987 Constitution and who is supposed to retain powers and duties NOT GIVEN to the Ombudsman) is clearly without authority to conduct preliminary investigations and to direct the filing of criminal cases with the Sandiganbayan, except upon orders of the Ombudsman. This right to do so was lost effective February 2, 1 987. From that time, he has been divested of such authority.

Upon the annulment of the information against the petitioner, the Special Prosecutor sought clearance from the Ombudsman to refile it. In a Memorandum dated July 8,1988, the Ombudsman, Honorable Conrado Vasquez, granted clearance but advised that "some changes be made in the information previously filed." (p. 107, Rollo.) Complying with that Memorandum, a new information, duly approved by the Ombudsman, was filed in the Sandiganbayan (Criminal Case No. 12893), alleging that:
..., the above-named accused [Doromal] a public officer, being then a Commissioner of the Presidential Commission on Good Government, did then and there wilfully and unlawfully, participate in a business through the Doromal International Trading Corporation, a family corporation of which he is the President, and which company participated in the biddings conducted by the Department of Education, Culture and Sports and the National Manpower & Youth Council, which act or participation is prohibited by law and the constitution. (p. 68, Rollo; Emphasis supplied.)

On July 25, 1988, petitioner filed a "Motion to Quash" the information for being:
(a) invalid because there had been no preliminary investigation; and (b) defective because the facts alleged do not constitute the offense charged (Annex C).

The Sandiganbayan denied the motion to quash in its orders dated July 25,1988 and August 19,1988 (Annexes D, N and 0, pp. 81,173 & 179, Rollo). On August 22, 1988, the Special Prosecutor filed a "Motion to Suspend Accused Pendente Lite" pursuant to Section 13 of the Anti- Graft and Corrupt Practices Act (R.A. 3019). Over the petitioner's objection (because the President had earlier approved his application for indefinite leave of absence as PCGG commissioner "effective immediately and until final decision of the courts in your case" [Annex S-1, p. 189, Rollo]), the Sandiganbayan on September 5, 1988 ordered his suspension pendente lite from his position as PCGG Commissioner and from any other office he may be holding (Annex T). His motion for reconsideration of that order was also denied by the Court (Annex Y). Hence, this petition for certiorari and prohibition alleging that the Sandiganbayan gravely abused its discretion: (1) in denying the petitioner's motion to

quash the information in Criminal Case No. 12893; and, (2) in suspending the petitioner from office despite the President's having previously approved his indefinite leave of absence " until final decision" in this case. The petitioner contends that as the preliminary investigation that was conducted prior to the filing of the original information in Criminal Case No. 12766 was nullified by this Court, another preliminary investigation should have been conducted before the new information in Criminal Case No. 12893 was filed against him. The denial of his right to such investigation allegedly violates his right to due process and constitutes a ground to quash the information. On the other hand, the public respondent argues that another preliminary investigation is unnecessary because both old and new informations involve the same subject matter a violation of Section 3 (H) of R.A. No. 3019 (the Anti-Graft and Corrupt Practices Act) in relation to Section 13, Article VII of the 1987 Constitution. Moreover, the petitioner allegedly waived the second preliminary investigation by his failure to comply with the Court's Order dated August 12, 1988 directing him to submit a statement of new or additional facts, duly supported by photo copies of documents which he would present should a new preliminary investigation be ordered (Annex H, p. 94, Rollo). The petition is meritorious. A new preliminary investigation of the charge against the petitioner is in order not only because the first was a nullity (a dead limb on the judicial tree which should be lopped off and wholly disregarded"-Anuran vs. Aquino, 38 Phil. 29) but also because the accused demands it as his right. Moreover, the charge against him had been changed, as directed by the Ombudsman. Thus, while the first information in Criminal Case No. 12766 charge that the DITCentered into a business transaction or contract with the Department of Education, Culture and Sports and the National Manpower and Youth Council, ... which business, contracts or transactions he [petitioner] is prohibited by law and the constitution from having any interest. (P. 70, Rollo.)

the new information in Criminal Case No. 12883 alleges that the petitioner:
unlawfully participate[d] in a business through the Doromal International Trading Corporation, a family corporation of which he is the President, and which company participated in the biddings conducted by the Department of Education, Culture and Sports and the National Manpower & Youth Council, which act or participation is prohibited by law and the constitution. (p. 68, Rollo.)

The petitioner's right to a preliminary investigation of the new charge is secured to him by the following provisions of Rule 112 of the 1985 Rules on Criminal Procedure:
SEC. 3. Procedure. ... no complaint or information for an offense cognizable by the Regional Trial Court shall be filed without a preliminary investigation having been first conducted. .....

SEC. 7. When accused lawfully arrested without warrant.- When a person is lawfully arrested without a warrant for an offense cognizable by the Regional Trial Court, the complaint or information may be filed by the offended party, peace officer or fiscal without a preliminary investigation having been first conducted; on the basis of the affidavit of the offended party or arresting officer or person. However, before the filing of such complaint or information, the person arrested may ask for a preliminary investigation by a proper officer in accordance with this Rules .... If the case has been filed in court without a preliminary investigation having been first conducted, the accused may within five (5) days from the time he learns of the filing of the information, ask for a preliminary investigation with the same right to adduce evidence in his favor in the manner prescribed in this Rule.

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

The Solicitor General's argument that the right to a preliminary investigation may be waived and was in fact waived by the petitioner, impliedly admits that the right exists.

Since the right belongs to the accused, he alone may waive it. If he demands it, the State may not withhold it. However, as the absence of a preliminary investigation is not a ground to quash the complaint or information (Sec. 3, Rule 117, Rules of Court), the proceedings upon such information in the Sandiganbayan should be held in abeyance and the case should be remanded to the office of the Ombudsman for him or the Special Prosecutor to conduct a preliminary investigation. Thus did We rule in Luciano vs. Mariano, 40 SCRA 187, 201; Ilagan vs. Enrile 139 SCRA 349 and more recently in Sanciangco, Jr. vs. People, 149 SCRA 1, 3-4:
The absence of preliminary investigation does not affect the court's jurisdiction over the case. Nor do they impair the validity of the information or otherwise render it defective; but, if there were no preliminary investigations and the defendants, before entering their plea, invite the attention of the court to their absence, the court, instead of dismissing the information should conduct such investigation, order the fiscal to conduct it or remand the case to the inferior court so that the preliminary investigation may be conducted . (See People vs. Gomez, 117 SCRA 72, 77-78; citing People vs. Casiano, 1 SCRA 478). In this case, the Tanodbayan has the duty to conduct the said investigation.

There is no merit in petitioner's insistence that the information should be quashed because the Special Prosecutor admitted in the Sandiganbayan that he does not possess any document signed and/or submitted to the DECS by the petitioner after he became a PCGG Commissioner (p. 49, Rollo). That admission allegedly belies the averment in the information that the petitioner "participated' in the business of the DITC in which he is prohibited by the Constitution or by law from having any interest. (Sec. 3h, RA No. 3019). The Sandiganbayan in its order of August 19, 1988 correctly observed that "the presence of a signed document bearing the signature of accused Doromal as part of the application to bid ... is not a sine qua non" (Annex O, p. 179. Rollo), for, the Ombudsman indicated in his Memorandum/Clearance to the Special Prosecutor, that the petitioner "can rightfully be charged ...with having participated in a business which act is absolutely prohibited by Section 13 of Article VII of the Constitution" because "the DITC remained a family corporation in which Doromal has at least an indirect interest." (pp. 107-108, Rollo). Section 13, Article VII of the 1987 Constitution provides that "the President, VicePresident, the members of the Cabinet and their deputies or assistants shall not... during (their) tenure, ...directly or indirectly... participate in any business." The constitutional ban is similar to the prohibition in the Civil Service Law (PD No. 807, Sec. 36, subpar. 24) that "Pursuit of private business ... without the permission required by Civil Service Rules and Regulations" shall be a ground for disciplinary action against any officer or employee in the civil service. On the suspension of the petitioner from office, Section 13 of the Anti-Graft and Corrupt Practices Act (RA 3019) provides:

SEC. 13. Suspension and loss of benefits.-Any public officer against whom any criminal prosecution under a valid information under this Act or under the provisions of the Revised Penal Code on bribery is pending in court, shall be suspended from office. Should he be convicted by final judgment, he shall lose all retirement or gratuity benefits under any law, but if he is acquitted, he shall be entitled to reinstatement and to the salaries and benefits which he failed to receive during suspension, unless in the meantime administrative proceedings have been filed against him.

Since the petitioner is an incumbent public official charged in a valid information with an offense punishable under the Constitution and the laws (RA 3019 and PD 807), the law's command that he "shall be suspended from office" pendente lite must be obeyed. His approved leave of absence is not a bar to his preventive suspension for, as indicated by the Solicitor General, an approved leave, whether it be for a fixed or indefinite period, may be cancelled or shortened at will by the incumbent. Nevertheless, as we held in Layno, Sr. vs. Sandiganbayan, 136 SCRA 536 (1985), a preventive suspension for an indefinite period of time, such as one that would last until the case against the incumbent official shall have been finally terminated, would (4 outrun the bounds of reason and result in sheer oppression" and a denial of due process. In the case of Garcia vs. The Executive Secretary, 6 SCRA 1 (1962), this Court ordered the immediate reinstatement, to his position as chairman of the National Science Development Board, of a presidential appointee whose preventive suspension had lasted for nearly seven (7) months. Some members of the Court held that the maximum period of sixty (60) days provided in Section 35 of the Civil Service Act of 1959 (Republic Act 2260) was applicable to the petitioner. The others believed, however, that period may not apply strictly to cases of presidential appointees, nevertheless, the preventive suspension shall be limited to a reasonable period. Obviously, the Court found the petitioner's preventive suspension for seven (7) months to be unreasonable. The Court stated:
To adopt the theory of respondents that an officer appointed by the President, facing administrative charges can be preventively suspended indefinitely, would be to countenance a situation where the preventive suspension can, in effect, be the penalty itself without a finding of guilt after due hearing; contrary to the express mandate of the Constitution (No officer or employee in the Civil Service shall be removed or suspended except for cause as provided by law. [Art. XII, Sec. 4, Constitution of the Philippines]) and the Civil Service Law (No officer or employee in the Civil Service shall be removed or suspended except for cause as provided by law and after due process). ... In the guise of a preventive suspension, his term of office could be shortened and he could, in effect, be removed without a finding of a cause duly established after due hearing, in violation of the Constitution. ....

Pursuant to the guarantee of equal protection of the laws in the Bill of Rights of our Constitution, that same ruling was applied in Deloso vs. Sandiganbayan, G.R. Nos. 86899-903, May 15,1989.

The petitioner herein is no less entitled to similar protection. Since his preventive suspension has exceeded the reasonable maximum period of ninety (90) days provided in Section 42 of the Civil Service Decree of the Philippines (P.D. 807), it should now be lifted. WHEREFORE, the petition for certiorari and prohibition is granted. The Sandiganbayan shall immediately remand Criminal Case No. 12893 to the Office of the Ombudsman for preliminary investigation and shall hold in abeyance the proceedings before it pending the result of such investigation. The preventive suspension of the petitioner is hereby lifted. No costs. SO ORDERED. G.R. No. 126005 January 21, 1999 PEOPLE OF THE PHILIPPINES and ALYNN PLEZETTE DY, petitioners, vs. COURT OF APPEALS, BILLY CERBO and JONATHAN CERBO, respondents.

PANGANIBAN, J.: In our criminal justice system, the public prosecutor has the quasi-judicial discretion to determine whether or not case should be filed in court. Courts must. respect the exercise of such discretion when the information filed against the accused valid on its face, and no manifest error, grave abuse of discretion or prejudice can be imputed to the public prosecutor. The Case Before us is a Petition for Review under Rule 45, seeking to reverse the June 28, 1996 Decision and the August 27, 1996 Resolution of the Court of Appeals 1 in CA-GR SP No. 36018. 2 The assailed Decision dismissed the Petition for Certiorari filed by the petitioners, which sought to annul and set aside two Orders of the Regional Trial Court of Nabunturan, Davao: the June 28, 1994 Order dismissing the Information for murder filed against Private Respondent Billy Cerbo and the August 18, 1994 Order denying petitioners' motion for reconsideration. The assailed August 27, 1996 Court of Appeals (CA) Resolution likewise denied petitioners' motion for reconsideration. The Facts

The case below arose from the fatal shooting of Petitioner Dy's mother, Rosalinda Dy, in which the primary suspect was Private Respondent Jonathan Cerbo, son of Private Respondent Billy Cerbo. The procedural and factual antecedents of the case were summarized in the challenged Decision of the Court of Appeals as follows:
On August 30, 1993, Rosalinda Dy, according to the petition, was shot at pointblank range by private respondent Jonathan Cerbo in the presence and at the office of his father, private respondent Billy Cerbo at Purok 9, Poblacion, Nabunturan, Davao. On September 2, 1993, eyewitness Elsa B. Gumban executed an affidavit positively identifying private respondent Jonathan Cerbo as the assailant. (Annex C, Rollo, p. 34). On September 20, 1993, private respondent Jonathan Cerbo executed a counter-affidavit interposing the defense that the shooting was accidental (Annex D: Rollo, pp. 35-36). On October 6, 1993, the 3rd Municipal Circuit Trial Court of Nabunturan-Mawab, Davao, after a preliminary investigation, found "sufficient ground to engender a well-founded belief" that the crime of murder has been committed by private respondent Jonathan Cerbo and resolved to forward the entire records of the case to the provincial prosecutor at Tagum, Davao (Annex E, Rollo, pp. 37-38). After [an] information for murder was filed against Jonathan Cerbo, petitioner Alynn Plezette Dy, daughter of the victim Rosalinda Dy, executed an affidavit-complaint charging private respondent Billy Cerbo of conspiracy in the killing (Annex F, Rollo, p. 39), supported by a supplemental affidavit of Elsa B. Gumban, alleging "in addition" to her previous statement that: 3. In addition to my said sworn statement, I voluntarily and freely aver as follows: a) I vividly recall that while my mistress Rosalinda Go and I were in the office of Billy Cerbo at about 11:45 a.m. on August 30, 1993, Mr. Cerbo personally instructed me to fetch the food from the kitchen [and to bring it] to the office instead of the dining room. b) While bringing the food, Mr. Cerbo again instructed me to place the food [o]n a corner table and commanded me to sit behind the entrance door and at the same time Mr. Cerbo positioned Rosalinda [on] a chair facing the entrance door for an easy target. c) Immediately after Rosalinda was shot, Mr. Billy Cerbo called his son Jonathan who was running, but did not and ha[s] never bothered to bring Rosalinda to a hospital or even apply first aid. d) To my surprise, Mr. Billy Cerbo, instead of bringing Rosalinda to the hospital, brought her to the funeral parlor and immediately ordered her to be embalmed without even informing her children or any of her immediate relatives xxx.' Annex G. Rollo, p. 40.)

Private respondent Billy Cerbo submitted a counter-affidavit denying the allegations of both petitioner Alynn Plezette Dy and Elsa B. Gumban (Annex H, Rollo, pp. 41-42). On or about April 8, 1994, Prosecutor Protacio Lumangtad filed a "Motion for leave of court to reinvestigate the case" (Annex I, Rollo, pp. 43-44) which was granted by the respondent judge in an order dated April 28, 1994 (Annex J, Rollo, p. 45). In his resolution dated May 5, 1994, Prosecutor Lumangtad recommended the filing of an amended information including Billy Cerbo ". . . as one of the accused in the murder case . . ." (Annex K: Rollo, pp. 46-49). Accordingly, the prosecution filed an amended information including Billy Cerbo in the murder case. A warrant for his arrest was later issued on May 27, 1994 ( Rollo, p. 27). Private respondent Billy Cerbo then filed a motion to quash warrant of arrest arguing that the same was issued without probable cause (Rollo, p. 27). On June 28, 1994, respondent Judge issued the first assailed order dismissing the case against Billy Cerbo and recalling the warrant for his arrest[;] the dispositive portion of [the order] reads: IN THE LIGHT OF ALL THE FOREGOING, [an] order is hereby issued DISMISSING the case as against Billy Cerbo only. Let, therefore, the warrant of arrest, dated May 27, 1994, be RECALLED. The prosecution is hereby ordered to withdraw its Amended Information and file a new one charging Jonathan Cerbo only. SO ORDERED. (Rollo, pp. 29-30). Private Prosecutor Romeo Tagra filed a motion for reconsideration which was denied by the respondent judge in his second assailed order dated August 18, 1994 (Annex B, 3 Rollo, pp. 31-33).

The Ruling of the Court of Appeals In its 10-page Decision, the Court of Appeals debunked petitioners' assertion that the trial judge committed a grave abuse of discretion in recalling the warrant of arrest and subsequently dismissing the case against Billy Cerbo. Citing jurisprudence, 4 the appellate court held as follows:
The ruling is explicit. If upon the filing of the information in court, the trial judge, after reviewing the information and the documents attached thereto, finds that no probable cause exists, must either call for the complainant and the witnesses or simply dismiss the case. Petitioners question the applicability of the doctrine laid down in the above[-]mentioned case, alleging that the facts therein are different from the instant case. We rule that the disparity of facts does not prevent the application of the principle.

We have gone over the supplemental affidavit of Elsa B. Gumban and taking into account the additional facts and circumstances alleged therein, we cannot say that respondent judge gravely abused his discretion in dismissing the case as against private respondent Billy Cerbo for lack of probable cause. xxx xxx xxx The prosecution, if it really believed that Billy Cerbo is probably guilty by conspiracy, should have presented additional evidence sufficiently and credibly demonstrating the existence of probable cause. xxx xxx xxx
5

In sum, the Court of Appeals held that Judge Eugenio Valles did not commit grave abuse of discretion in recalling the warrant of arrest issued against Private Respondent Billy Cerbo and subsequently dismissing the Information for murder filed against the private respondent, because the evidence presented thus far did not substantiate such charge. Hence, this petition. 6 The Assigned Errors
Petitioner Dy avers: 1) The Court of Appeals gravely erred in holding that the Regional Trial Court Judge had the authority to reverse [the public prosecutor's] finding of probable cause to prosecute accused . . . and thus dismiss the case filed by the latter on the basis of a motion to quash warrant of arrest. 2) The Court of Appeals gravely erred in fully and unqualifiedly applying the case of Allado, et. al. vs. PACC, et. al. G.R. No. 113630, [to] the case at bench despite [the] clear difference in their respective factual backdrop[s] and the contrary earlier jurisprudence on 7 the matter.

On the other hand, the solicitor general posits this sole issue:
Whether the Court of Appeals erred in finding that no probable cause exists to merit the 8 filing of charges against private respondent Billy Cerbo.

Essentially, the petitioners are questioning the propriety of the trial court's dismissal, for want of evidence, of the Information for murder against Private Respondent Billy Cerbo. In resolving this petition, the discussion of the Court will revolve around the points: first, the determination of probable cause as an executive and judicial function and, second, the applicability of Allado and Salonga to the case at bar. The Court's Ruling

The petition is meritorious. The trial court erred in dismissing the information filed against the private respondent. Consequently the Court of Appeals was likewise in error when it upheld such ruling. Executive Determination of Probable Cause The determination of probable cause during a preliminary investigation is a function that belongs to the public prosecutor. It is an executive function, 9 the correctness of the exercise of which is matter that the trial court itself does not and may not be compelled to pass upon. The Separate (Concurring) Opinion of former Chief Justice Andres R. Narvasa in Roberts v. Court of Appeals 10 succinctly elucidates such point in this wise:
xxx xxx xxx In this special civil action, this Court is being asked to assume the function of a public prosecutor. It is being asked to determine whether probable cause exists as regards petitioners. More concretely, the Court is being asked to examine and assess such evidence as has thus far been submitted by the parties and, on the basis thereof, make a conclusion as to whether or not it suffices "to engender a well founded belief that a crime has been committed and that the respondent is probably guilty thereof and should be held for trial." It is a function that this Court should not be called upon to perform. It is a function that properly pertains to the public prosecutor, one that, as far as crimes cognizable by a Regional Trial Court are concerned, and notwithstanding that it involves an adjudicative process of a sort, exclusively pertains, by law, to said executive officer, the public prosecutor. It is moreover a function that in the established scheme of things, is supposed to be performed at the very genesis of, indeed, prefatorily to, the formal commencement of a criminal action. The proceedings before a public prosecutor, it may well be stressed, are essentially preliminary, prefatory and cannot lead to a final, definite and authoritative adjudgment 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 a correct 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. It is not for instance permitted for an accused, upon the filing of the information against him by the public prosecutor, to preempt trial by filing a motion with the Trial Court praying for the quash or dismissal of the indictment on the ground that the evidence upon which the same is based is inadequate. Nor is it permitted, on the antipodal theory that the evidence is in truth inadequate, for the complaining party to present a petition before the Court praying that the public prosecutor be compelled to file the corresponding information against the accused. xxx xxx xxx

Indeed, the public prosecutor has broad discretion to determine whether probable cause exists 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 authority to

determine whether or not a criminal case list be filed in court. 11 Thus, in Crespo v. Mogul, 12 we ruled:
It is a cardinal principle that all criminal actions either commenced by complaint or by information shall be prosecuted under the direction and control of the fiscal. The institution of a criminal action depends upon the sound discretion of the fiscal. He may or may not file the complaint or information, follow or not follow that presented by the offended party, according to whether the evidence, in his opinion, is sufficient or not to establish the guilt of the accused beyond reasonable doubt. The reason for placing the criminal prosecution under the direction and control of the fiscal is to prevent malicious or unfounded prosecutions by private persons. . . . Prosecuting officers under the power vested in them by the law, not only have the authority but also the duty of prosecuting persons who, according to the evidence received from the complainant, are shown to be guilty of a crime committed within the jurisdiction of their office. They have equally the duty not to prosecute when the evidence adduced is not sufficient to establish a prima facie case.

This broad prosecutoral power is however nor unfettered, because just as public prosecutors are obliged to bring forth before the law those who have transgressed it, they are also constrained to be circumspect in filing criminal charges against the innocent. Thus, for crimes cognizable by regional trial courts, preliminary investigations are usually conducted. In Ledesma v. Court of Appeals, 13 we discussed the purposes and nature of a preliminary investigation in this manner:
The primary objective of a preliminary investigation is to free respondent from the inconvenience, expense, ignominy and stress of defending himself/herself in the course of a formal trial, until the reasonable probability of his or her guilt in a more or less summary proceeding by a competent office designated by law for that purpose. Secondarily, such summary proceeding also protects the state from the burden of the unnecessary expense an effort in prosecuting alleged offenses and in holding trials arising from false, frivolous or groundless charges. Such investigation is not part of the trial. A full and exhaustive presentation of the parties' evidence is not required, but only such as may engender a well-grounded belief than an offense has been committed and that the accused is probably guilty thereof. By reason of the abbreviated nature of preliminary investigations, a dismissal of the charges as a result thereof is not equivalent to a judicial pronouncement of acquittal. Hence, no double jeopardy attaches.

Judicial Determination of Probable Cause The determination of probable cause to hold a person for trial must be distinguished from the determination of probable cause to issue a warrant of arrest, which is a judicial function. The judicial determination of probable cause in the issuance of arrest warrants has been emphasized in numerous cases. In Ho v. People, 14 the Court summarized the pertinent rulings on the subject, as follows:
The above rulings in Soliven, Inting and Lim, Sr. were iterated in Allado v. Diokno, where we explained again what probable cause means. Probable cause for the issuance of a

warrant of arrest is the existence of such facts and circumstances that would lead a reasonably discreet and prudent person to believe that an offense has been committed by the person sought to be arrested. Hence, the judge, before issuing a warrant of arrest, "must satisfy himself that based on the evidence submitted, there is sufficient proof that a crime has been committed and that the person to be arrested is probably guilty thereof." At this stage of the criminal proceeding, the judge is not yet tasked to review in detail the evidence submitted during the preliminary investigation. It is sufficient that he personally evaluates such evidence in determining probable cause. In Webb v. De Leon we stressed that the judge merely determines the probability, not the certainty, of guilt of the accused and, in doing so, he need not conduct a de novo hearing. He simply personally reviews the prosecutor's initial determination finding probable cause to see if it is supported by substantial evidence. xxx xxx xxx In light of the aforecited decisions of this Court, such justification cannot be upheld. Lest we be too repetitive, we only emphasize three vital matters once more: First, as held in Inting, the determination of probable cause by the prosecutor is for a purpose different from that which is to be made by the judge. Whether there is reasonable ground to believe that the accused is guilty of the offense charged and should be held for trial is what the prosecutor passes upon. The judge, on the other hand, determines whether a warrant of arrest should be issued against the accused, i.e., whether there is a necessity for placing him under immediate custody in order not to frustrate the ends of justice. Thus, even if both should base their findings on one and the same proceeding or evidence, there should be no confusion as to their distinct objectives. Second, since their objectives are different, the judge cannot rely solely on the report of the prosecutor in finding probable cause to justify the issuance of a warrant of arrest. Obviously and understandably, the contents of the prosecutor's report will support his own conclusion that there is reason to charge the accused of an offense and hold him for trial. However, the judge must decide independently. Hence, he must have supporting evidence, other than the prosecutor's bare report, upon which to legally sustain his own findings on the existence or non-existence of probable cause to issue an arrest order. This responsibility of determining personally and independently the existence of nonexistence of probable cause is lodged in him by no less than the most basic law of the land. Parenthetically, the prosecutor could ease the burden of the judge and speed up the litigation process by forwarding to the latter not only the information and his bare resolution, but also so much of the records and the evidence on hand as to enable His Honor to make his personal and separate judicial finding on whether to issue a warrant of arrest. Lastly, It is not required that the complete or entire records of the case during the preliminary investigation be submitted to and examined by the judge. We do not intend to unduly burden trial courts by obliging them to examine the complete records of every case all the time simply for the purpose of ordering the arrest of the accused. What is required, rather, is that 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. The point is: he cannot rely solely and entirely on the prosecutor's recommendation, as the Respondent Court did in this case. Although the prosecutor enjoys the legal presumption of regularity in the performance of his duties and functions, which in turn gives his report the presumption of accuracy, the Constitution, we repeat, commands the judge to personally determine probable cause in the issuance of warrants

of arrest. This Court has consistently held that a judge fails in his bounded duty if he relies merely on the certification or the report of the investigating officer. xxx xxx xxx

Verily, a judge cannot be compelled to issue a warrant of arrest if he or she deems that there is no probable cause for doing so. Corollary to this principle, the judge should not override the public prosecutor's determination of probable cause to hold an accused for trial on the ground that the evidence presented to substantiate the issuance of an arrest warrant was insufficient, as in the present case. Indeed, it could be unfair to expect the prosecution to present all the evidence needed to secure the conviction of the accused upon the filing of the information against the latter. The reason is found in the nature and the objective of a preliminary investigation. Here, the public prosecutors do not decide whether there is evidence beyond reasonable doubt of the guilt of the person charged; they merely determine "whether there is sufficient ground to engender a well-founded belief that a crime . . . has been committed and that the respondent is probably guilty thereof, and should be held for trial." 15 Evidentiary matters must be presented and heard during the trial. 16 Therefore, 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 the public prosecutor , the trial court should respect such determination. Inapplicabilty of Allado and Salonga The Court of Appeals anchored its ruling on the pronouncement made in Allado v. Diokno:" . . . [I]f, upon the filing of the information in court, the trial judge, after reviewing the information and the documents attached thereto, must either call for the complainant and the witnesses themselves or simply dismiss the case. There is no reason to hold the accused for trial and further expose him to an open and public accusation of the crime when no probable cause exists." 17 In Allado, Petitioners Diosdado Jose Allado and Roberto I. Mendoza, practicing lawyers, were accused by the Presidential Anti-Crime Commission (PACC) of kidnapping with murder and ordered by Judge Roberto C. Diokno to be arrested without bail. The petitioners questioned the issuance of the warrants for their arrest contending that the respondent judge acted with grave abuse of discretion and in excess of his jurisdiction in holding that there was probable cause against them. They contended that the trial court relied merely on the resolution of the investigating panel and its certification that probable cause existed, without personally determining the admissibility and sufficiency of the evidence for such finding and without stating the basis thereof. They maintained that the records of the preliminary investigation, which was the sole basis of the judge's ruling, failed to establish probable cause against them that would justify the issuance of warrants for their arrest.

The Court declared that Judge Diokno has indeed committed grave abuse of discretion in issuing the arrest warrants. Contrary to the constitutional mandate and established jurisprudence, he merely relied on the certification of the prosecutors as to the existence of the probable cause, instead of personally examining the evidence, the complainant and his witness." For otherwise," the Court said "he would have found out that the evidence thus far presented was utterly insufficient to warrant the arrest of the petitioners" 18 In categorically stating that the evidence so far presented did not meet the standard of probable cause and subsequently granting the petition, the Court noted the following circumstances: first, the corpus delicti was not established, and there was serious doubt as to the alleged victim's death: second, the extra judicial statement of the principal witness, who had priorly confessed his participation in the crime, was full of material inconsistencies; and third, the PACC operatives who investigated the case never implicated the petitioners. Citing Salonga v. Cruz-Pao, the Court of Appeals pointed out that when there was no prima facie case against a person sought to be charged with a crime, "the judge or fiscal, therefore, should not go on with the prosecution in the hope that some credible evidence might later turn out during trial, for this would be flagrant violation of a basic right which the courts are created to uphold." 19 In the aforecited case, Petitioner Jovito R. Salonga sought to bar the filing of an Information for violation of the revised Anti-Subversion Act, which Judge Ernani CruzPano had ordered to be filed against him. In sustaining the petitioner, the Court held that the evidence upon which the Information was based was not sufficient to charge him for a violation of the Revised Subversion Act. In all, the Court decreed in both cases that there was no basis in law and in fact for the judicial and executive determination at probable cause. The Court also held that the government, while vested with the right and the duty to protect itself and its people against transgressors of the law, must perform the same in a manner that would not infringe the perceived violators' rights as guaranteed by the Constitution. However, the present case is not on all fours with Allado and Salonga. First, Elsa Gumban, the principal eyewitness to the killing of Rosalinda Dy, was not a participation or conspirator in the commission of the said crime. In Allado and Salonga, however, the main witnesses were the confessed perpetrators of the crimes, whose testimonies the court deemed 'tainted'. 20 Second, in the case at bar, the private respondent was accorded due process, and no precipitate haste or bias during the investigation of the case can be imputed to the public prosecutor. On the other hand, the Court noted in Allado the "undue haste in the filing of the Information and in the inordinate interest of the government" in pursuing the case; 21 and in Salonga, " . . . the failure of the prosecution to show that the petitioner was probably guilty of conspiring to commit the crime, the initial disregard of petitioner's constitutioner rights [and] the massive and damaging publicity against him." 22 In other words, while the respective sets of evidence

before the prosecutors in the Allado and Salonga were "utterly insufficient" to support a finding of probable cause, the same cannot be said of the present case. We stress that Allado and Salonga constitute exceptions to the general rule and may be invoked only if similar circumstances are clearly shown to exist. But as the foregoing comparisons show, such similarities are absent in the instant case. Hence, the rulings in the two aforementioned cases cannot apply to it. Motion Without Requisite Notice One more thing, Petitioners aver that Private Respondent Cerbo did not give them a copy of the Motion to Quash the Warrant of Arrest, which had been issued against him, or a notice of the scheduled hearing. Thus, they contend, Judge Valles should not have entertained such motion. It is settled that every written motion in a trial court must be set for hearing by the applicant and served with the notice of hearing thereof, in such a manner as to ensure its receipt by the other party. The provisions on this matter in Section 4 and 5, Rule 15 of the Rules of the Court, 23 are categorical and mandatory character. 24 Under Section 6 of the said rule, no motion shall be acted upon by the court without proof of service thereof. The rationale for this rule is simple: unless the movants set the time and the place of hearing, the court will be unable to determine whether the adverse parties agree or object to the motions, since the rules themselves do not fix any period within which they may file their replies or oppositions. 25 The motion to quash the warrant of arrest in the present case being pro forma, inasmuch as the requisite copy and notice were not duly served upon the adverse party, the trial court had no authority to act on it. Epilogue In granting this petition, we are not prejudging the criminal case or the guilt or innocence of Private Respondent Billy Cerbo. We simply saying that, as a general rule, if the information is valid on its face and there is no showing of manifest error, grave abuse of discretion or prejudice on the part of the public prosecutor, courts should not dismiss it for 'want of evidence,' because evidentiary matters should be presented and heard during the trial. The functions and duties of both the trial court and the public prosecutor in "the proper scheme of things" in our criminal justice system should be clearly understood. The rights of the people from what could sometimes be an ''oppressive" exercise of government prosecutorial powers do need to be protected when circumstances so require. But just as we recognize this need, we also acknowledge that the State must likewise be accorded due process. Thus, when there is no showing of nefarious irregularity or manifest error in the performance of a public prosecutor's duties, courts ought to refrain from interfering with such lawfully and judicially mandated duties.

In any case, if there was palpable error or grave abuse of discretion in the public prosecutor's finding of probable cause, the accused can appeal such finding to the justice secretary 26 and move for the deferment or suspension of the proceeding until such appeal is resolved. WHEREFORE, the petition is GRANTED. The assailed Decision of the Court of Appeals is hereby REVERSED and SET ASIDE. The case is REMANDED to the Regional Trial Court of Nabunturan, Davao, which is ordered to reinstate the amended information against Private Respondent Billy Cerbo and to proceed with judicious speed in hearing the case. No. costs.1wphi1.nt SO ORDERED. G.R. No. 121234 August 23, 1995 HUBERT J. P. WEBB, petitioner, vs. HONORABLE RAUL E. DE LEON, the Presiding Judge of the Regional Trial Court of Paraaque, Branch 258, HONORABLE ZOSIMO V. ESCANO, the Presiding Judge of the Regional Trial Court of Paraaque, Branch 259, PEOPLE OF THE PHILIPPINES, ZENON L. DE GUIA, JOVENCITO ZUO, LEONARDO GUIYAB, JR., ROBERTO LAO, PABLO FORMARAN, and NATIONAL BUREAU OF INVESTIGATION, and HONORABLE AMELITA G. TOLENTINO, the Presiding Judge of the Regional Trial Court of Paraaque, Branch 274, respondents, LAURO VIZCONDE, intervenor. G.R. No. 121245 August 23, 1995 MICHAEL A. GATCHALIAN, petitioner, vs. HONORABLE RAUL E. DE LEON, the Presiding Judge of the Regional Trial Court of Paraaque, Branch 258, HONORABLE ZOSIMO V. ESCANO, the Presiding Judge of the Regional Trial Court of Paraaque, Branch 259, PEOPLE OF THE PHILIPPINES, ZENON L. DE GUIYAB, JR., ROBERTO LAO, PABLO FORMARAN, and NATIONAL BUREAU OF INVESTIGATION, and HONORABLE AMELITA G. TOLENTINO, the Presiding Judge of the Regional Trial Court of Paraaque, Branch 274, respondents. G.R. No. 121297 August 23, 1995 ANTONIO L. LEJANO, petitioner, vs. HONORABLE RAUL E. DE LEON, the Presiding Judge of the Regional Trial Court of Paraaque, Branch 258, HONORABLE ZOSIMO V. ESCANO, the Presiding Judge of the Regional Trial Court of Paraaque, Branch 259, PEOPLE OF THE PHILIPPINES, ZENON L. DE GUIA, JOVENCITO ZUO, LEONARDO GUIYAB, JR.,

ROBERTO LAO, PABLO FORMARAN, and NATIONAL BUREAU OF INVESTIGATION, and HONORABLE AMELITA G. TOLENTINO, the Presiding Judge of the Regional Trial Court of Paraaque, Branch 274, respondents.

PUNO, J.: Before the Court are petitions for the issuance of the extraordinary writs of certiorari, prohibition and mandamus with application for temporary restraining order and preliminary injunction to: (1) annul and set aside the Warrants of Arrest issued against petitioners by respondent Judges Raul E. de Leon and Amelita Tolentino in Criminal Case No. 95-404; (2) enjoin the respondents from conducting any proceeding in the aforementioned criminal case; and (3) dismiss said criminal case or include Jessica Alfaro as one of the accused therein. 1 From the records of the case, it appears that on June 19, 1994, the National Bureau of Investigation (NBI) filed with the Department of Justice a letter-complaint charging petitioners Hubert Webb, Michael Gatchalian, Antonio J. Lejano and six (6) other persons, 2 with the crime of Rape with Homicide. Forthwith, the Department of Justice formed a panel of prosecutors headed by Assistant Chief State Prosecutor Jovencio R. Zuo to conduct the preliminary investigation 3 of those charged with the rape and killing on June 30, 1991 of Carmela N. Vizconde; 4 her mother Estrellita Nicolas-Vizconde, 5 and her sister Anne Marie Jennifer 6 in their home at Number 80 W. Vinzons, St., BF Homes, Paraaque, Metro Manila. During the preliminary investigation, the NBI presented the following: (1) the sworn statement dated May 22, 1995 of their principal witness, Maria Jessica M. Alfaro who allegedly saw the commission of the crime; 7 (2) the sworn statements of two (2) of the former housemaids of the Webb family in the persons of Nerissa E. Rosales and Mila S. Gaviola; 8 (3) the sworn-statement of Carlos J. Cristobal who alleged that on March 9, 1991 he was a passenger of United Airlines Flight No. 808 bound for New York and who expressed doubt on whether petitioner Webb was his co-passenger in the trip; (4) the sworn statement of Lolita Birrer, a former live-in partner of Gerardo Biong, who narrated the manner of how Biong investigated and tried to cover up the crime at bar; 9 (5) the sworn statements of Belen Dometita and Teofilo Minoza, two of the Vizconde maids, and the sworn statements of Normal White, a security guard and Manciano Gatmaitan, an engineer. The autopsy reports of the victims were also submitted and they showed that Carmela had nine (9) stab wounds, Estrellita twelve (12) and Jennifer nineteen (19). 10 The genital examination of Carmela confirmed the presence of spermatozoa. 11 Before submitting his counter-affidavit, petitioner Webb filed with the DOJ Panel a Motion for Production And Examination of Evidence and Documents for the NBI to produce the following:
(a) Certification issued by the U.S. Federal Bureau of Investigation on the admission to and stay of Hubert Webb in the United States from March 9, 1991 to October 22, 1992;

(b) Laboratory Report No. SN-91-17 of the Medico Legal Officer, Dr. Prospero A. Cabanayan, M.D.; (c) Sworn Statements of Gerardo C. Biong (other than his Sworn Statement dated October 7, 1991); (d) Photographs of fingerprints lifted from the Vizconde residence taken during the investigation; (e) Investigation records of NBI on Engr. Danilo Aguas, et al.; (f) List of names of 135 suspects/persons investigated by the NBI per Progress Report dated September 2, 1991 submitted by Atty. Arlis Vela, Supervising Agent; (g) Records of arrest, interview, investigation and other written statements of Jessica Alfaro (other than the May 22, 1995 Sworn Statement) conducted by the NBI and other police agencies; (h) transmittal letter to the NBI, including the report of the investigation conducted by Superintendent Rodolfo C. Sison, Regional Deputy Director, NCRC; (i) The names of NBI officials/agents composing the Task Force Jecares, including their respective positions and duties; (j) Statements made by other persons in connection with the crime charged.

The motion was granted by the DOJ Panel and the NBI submitted photocopies of the documents. It alleged it lost the original of the April 28, 1995 sworn statement of Alfaro. This compelled petitioner Webb to file Civil Case No. 951099 in the Regional Trial Court (RTC) of Makati, Br. 63, for the purpose, among others, of obtaining the original of said sworn statement. He succeeded, for in the course of its proceedings, Atty. Arturo L. Mercader, Jr., produced a copy of said original in compliance with a subpoena duces tecum. The original was then submitted by petitioner Webb to the DOJ Panel together with his other evidence. It appears, however, that petitioner Webb failed to obtain from the NBI the copy of the Federal Bureau of Investigation (FBI) Report despite his request for its production. Petitioner Webb claimed during the preliminary investigation that he did not commit the crime at bar as he went to the United States on March 1, 1991 and returned to the Philippines on October 27, 1992. 12 His alibi was corroborated by Honesto Aragon, Lecinia Edrosolano, Sylvia Climaco, Gina Roque, Sonia Rodriguez, Edgardo Venture and Pamela Francisco. 13 To further support his defense, he submitted documentary evidence that he bought a bicycle and a 1986 Toyota car while in the United States on said dates 14 and that he was issued by the State of California Driver's License No. A8818707 on June 14, 1991. 15 Petitioner Webb likewise submitted the letter dated July 25, 1995 of Mr. Robert Heafner, Legal Attache of the US Embassy, citing certain records tending to confirm, among others, his arrival at San Francisco, California on March 9, 1991 as a passenger in United Airlines Flight No. 808. The other respondents Hospicio "Pyke" Fernandez, Michael Gatchalian, Antonio "Tony Boy" Lejano, Peter Estrada, Miguel Rodriguez and Gerardo Biong submitted

sworn statements, responses, and a motion to dismiss denying their complicity in the rape-killing of the Vizcondes. 16 Only the respondents Joey Filart and Artemio "Dong" Ventura failed to file their counter-affidavits though they were served with subpoena in their last known address. 17 In his sworn statement, petitioner Gatchalian alleged that from 11 o'clock in the evening of June 29, 1991 until 3 o'clock in the morning of the following day, he was at the residence of his friends, Carlos and Andrew Syyap, at New Alabang Village, Muntinlupa watching video tapes. He claimed that his co-petitioner Lejano was with him. On August 8, 1995, the DOJ Panel issued a 26-page Resolution "finding probable cause to hold respondents for trial" and recommending that an Information for rape with homicide be filed against petitioners and their co-respondents, 18 On the same date, it filed the corresponding Information 19 against petitioners and their co-accused with the Regional Trial Court of Paraaque. The case was docketed as Criminal Case No. 95404 and raffled to Branch 258 presided by respondent judge Zosimo V. Escano. It was, however, the respondent judge Raul de Leon, pairing judge of Judge Escano, who issued the warrants of arrest against the petitioners. On August 11, 1995, Judge Escano voluntarily inhibited himself from the case to avoid any suspicion about his impartiality considering his employment with the NBI before his appointment to the bench. The case was re-raffled to Branch 274, presided by Judge Amelita Tolentino who issued new warrants of arrest against the petitioners and their co-accused. On August 11, 1995, petitioner Webb voluntarily surrendered to the police authorities at Camp Ricardo Papa Sr., in Bicutan, Taguig. Petitioners Gatchalian and Lejano likewise gave themselves up to the authorities after filing their petitions before us. In their petitions at bar, petitioners contend: (1) respondent Judges de Leon and Tolentino gravely abused their discretion when they failed to conduct a preliminary examination before issuing warrants of arrest against them: (2) the DOJ Panel likewise gravely abused its discretion in holding that there is probable cause to charge them with the crime of rape with homicide; (3) the DOJ Panel denied them their constitutional right to due process during their preliminary investigation; and (4) the DOJ Panel unlawfully intruded into judicial prerogative when it failed to charge Jessica Alfaro in the Information as an accused. We find the petitions bereft of merit. I Petitioners fault the DOJ Panel for its finding of probable cause. They insist that the May 22, 1995 sworn statement of Jessica Alfaro is inherently weak and uncorroborated. They hammer on alleged material inconsistencies between her April 28, 1995 and May 22, 1995 sworn statements. They assail her credibility for her misdescription of petitioner Webb's hair as semi-blonde. They also criticize the procedure followed by the DOJ Panel when it did not examine witnesses to clarify the alleged incredulities and inconsistencies in the sworn statements of the witnesses for the NBI.

We start with a restatement of the purpose of a preliminary investigation. Section 1 of Rule 112 provides that a preliminary investigation should determine " . . . whether there is a sufficient ground to engender a well-grounded belief that a crime cognizable by the Regional Trial Court has been committed and that the respondent is probably guilty thereof, and should be held for trial." Section 3 of the same Rule outlines the procedure in conducting a preliminary investigation, thus:
Sec. 3. Procedure. Except as provided for in Section 7 hereof, no complaint or information for an offense cognizable by the Regional Trial Court shall be filed without a preliminary investigation having been first conducted in the following manner: (a) The complaint shall state the known address of the respondent and be accompanied by affidavits of the complainant and his witnesses as well as other supporting documents, in such number of copies as there are respondents, plus two (2) copies for the official file. The said affidavits shall be sworn to before any fiscal, state prosecutor or government official authorized to administer oath, or, in their absence or unavailability, a notary public, who must certify that he personally examined the affiants and that he is satisfied that they voluntarily executed and understood their affidavits. (b) Within ten (10) days after the filing of the complaint, the investigating officer shall either dismiss the same if he finds no ground to continue with the inquiry, or issue a subpoena to the respondent, attaching thereto a copy of the complaint, affidavits and other supporting documents. Within ten (10) days from receipt thereof, the respondent shall submit counter-affidavits and other supporting documents. He shall have the right to examine all other evidence submitted by the complainant. (c) Such counter-affidavits and other supporting evidence submitted by the respondent shall also be sworn to and certified as prescribed in paragraph (a) hereof and copies thereof shall be furnished by him to the complainant. (d) If the respondent cannot be subpoenaed, or if subpoenaed, does not submit counteraffidavits within the ten (10) day period, the investigating officer shall base his resolution on the evidence presented by the complainant. (e) If the investigating officer believes that there are matters to be clarified, he may set a hearing to propound clarificatory questions to the parties or their witnesses, during which the parties shall be afforded an opportunity to be present but without the right to examine or cross-examine. If the parties so desire, they may submit questions to the investigating officer which the latter may propound to the parties or witnesses concerned. (f) Thereafter, the investigation shall be deemed concluded, and the investigating officer shall resolve the case within ten (10) days therefrom. Upon the evidence thus adduced, the investigating officer shall determine whether or not there is sufficient ground to hold the respondent for trial.

Section 4 of Rule 112 then directs that "if the investigating fiscal finds cause to hold the respondent for trial, he shall prepare the resolution and corresponding information. He shall certify under oath that he, or as shown by the record, an authorized officer, has personally examined the complainant and his witnesses, that there is reasonable ground to believe that a crime has been committed and that the accused is probably guilty thereof . . ."

The need to find probable cause is dictated by the Bill of Rights which protects "the right of the people to be secure in their persons . . . against unreasonable searches and seizures of whatever nature . . ." 20 An arrest without a probable cause is an unreasonable seizure of a person, and violates the privacy of persons which ought not to be intruded by the State. 21 Probable cause to warrant arrest is not an opaque concept in our jurisdiction. Continuing accretions of case law reiterate that they are facts and circumstances which would lead a reasonably discreet and prudent man to believe that an offense has been committed by the person sought to be arrested. 22 Other jurisdictions utilize the term man of reasonable caution 23 or the term ordinarily prudent and cautious man. 24 The terms are legally synonymous and their reference is not to a person with training in the law such as a prosecutor or a judge but to the average man on the street. 25 It ought to be emphasized that in determining probable cause, the average man weighs facts and circumstances without resorting to the calibrations of our technical rules of evidence of which his knowledge is nil. Rather, he relies on the calculus of common sense of which all reasonable men have an abundance. Applying these basic norms, we are not prepared to rule that the DOJ Panel gravely abused its discretion when it found probable cause against the petitioners. Petitioners belittle the truthfulness of Alfaro on two (2) grounds: (a) she allegedly erroneously described petitioner Webb's hair as semi-blond and (b) she committed material inconsistencies in her two (2) sworn statement, thus: 26
xxx xxx xxx To illustrate, the following are some examples of inconsistencies in the two sworn statements of Alfaro: On whether Alfaro knew Carmela before the incident in question First Affidavit: She had NOT met Carmela before June 29, 1991. Second Affidavit: "I met her in a party sometime in February, 1991." On whether Alfaro saw the dead bodies First Affidavit: She did not see the three dead persons on that night. She just said "on the following day I read in the newspaper that there were three persons who were killed . . ." Second Affidavit: "I peeped through the first door on the left. I saw two bodies on top of the bed, bloodied, and in the floor, I saw Hubert on top of Carmela." On the alleged rape of Carmela Vizconde First Affidavit: She did not see the act of rape.

Second Affidavit: She saw Hubert Webb "with bare buttocks, on top of Carmela and pumping, her mouth gagged and she was moaning and I saw tears on her eyes." On how Webb, Lejano, and Ventura entered the Vizconde house First Affidavit: "by jumping over the fence, which was only a little more than a meter high." Second Affidavit: They "entered the gate which was already open." On whether Alfaro entered the Vizconde house First Affidavit: She never entered the house. Second Affidavit: "I proceeded to the iron grill gate leading to the dirty kitchen."

In its Resolution, the DOJ Panel ruled that these alleged misdescription and inconsistencies did not erode the credibility of Alfaro. We quote the pertinent ruling, viz.: 27
xxx xxx xxx As regards the admissibility of Alfaro's statements, granting for purposes of argument merely that she is a co-conspirator, it is well to note that confessions of a co-conspirator may be taken as evidence to show the probability of the co-conspirator's participation in the commission of the crime (see People vs. Lumahang, 94 Phil. 1084). Furthermore, it is a well-established doctrine that conspiracy need not be proved by direct evidence of prior agreement to commit the crime. Indeed, "only rarely would such a prior agreement be demonstrable since, in the nature of things, criminal undertakings are only rarely documented by agreements in writing. Thus, conspiracy may be inferred from the conduct of the accused before, during and after the commission of the crime, showing that the several accused had acted in concert or in unison with each other, evincing a common purpose or design." (Angelo vs. Court of Appeals, 210 SCRA 402 [1992], citations omitted; People vs. Molleda, 86 SCRA 699). Neither can we discredit Alfaro merely because of the inconsistencies in her two sworn statements. In Angelo, the Court refused to discredit the testimony of a witness accusing therein petitioner for the slaying of one Gaviano Samaniego even though said witness failed to name Angelo in his affidavit which was executed five (5) months earlier. Granting, the Court continued, that a part of the witness' testimony is untrue, such circumstance is not sufficient to discredit the entire testimony of the witness. On August 7, 1995, another counsel for respondent Webb submitted his memorandum suggesting that the instant complaint "should not be decided within the month to give time to the NBI to coordinate with the FBI on the latter's inquiry into the whereabouts of Hubert Webb . . . and to check on our U.S.-based witnesses."

In said memorandum, counsel for respondent Webb calls for the application of the maxim falsus in uno, falsus in omnibus arising from the inconsistencies of Alfaro's statements, among others. This is untenable. As held in Angelo: There is no rule of law which prohibits a court from crediting part of the testimony of a witness as worthy of belief and from simultaneously rejecting other parts which the court may find incredible or dubious. The maxim falsus in uno, falsus in omnibus is not a rule of law, let alone a general rule of law which is universally applicable. It is not a legal presumption either. It is merely a latinism describing the conclusion reached by a court in a particular case after ascribing to the evidence such weight or lack of weight that the court deemed proper. In the case before us, complainant reasoned out that Alfaro was then having reservations when she first executed the first statement and held back vital information due to her natural reaction of mistrust. This being so, the panel believes that the inconsistencies in Alfaro's two sworn statements have been sufficiently explained especially specially so where there is no showing that the inconsistencies were deliberately made to distort the truth. Consequently, the probative value of Alfaro's testimony deserves full faith and credit. As it has been often noted, ex parte statements are generally incomplete because they are usually executed when the affiant's state of mind does not give her sufficient and fair opportunity to comprehend the import of her statement and to narrate in full the incidents which transpired (People vs. Sarellana, 233 SCRA 31 [1994]; Angelo vs. Court of Appeals, supra). In the case at bar, there is no dispute that a crime has been committed and what is clear before us is that the totality of the evidence submitted by the complainant indicate a prima facie case that respondents conspired in the perpetration of the imputed offense.

We note that the May 22, 1995 sworn statement of Alfaro was given with the assistance of counsel 28 and consists of six (6) pages, in single space reciting in rich details how the crime was planned and then executed by the petitioners. In addition, the DOJ Panel evaluated the supporting sworn statements of Nerissa Rosales and Mila Gaviola, former housemaids of the Webbs, Carlos J. Cristobal, a passenger in United Airlines Flight No. 808 and Lolita Birrer, a paramour of Gerardo Biong. The Panel assayed their statements as follows: 29
xxx xxx xxx According to Nerissa E. Rosales, a former housemaid of the Webb family, on June 29, 1991, between 7:00 o'clock and 8:00 o'clock in the evening, Hubert was at home inside his room with two male visitors. She knew it because she and her co-housemaid, Loany, were instructed by Hubert to bring them three glasses of juice. It was the last time she saw Hubert and was later told by then Congressman Webb that Hubert was in the United States. While Mila S. Gaviola, another former housemaid of the Webb family and who served as a laundry woman, claims, aside from corroborating the statement of Nerissa Rosales, that on June 30, 1991, she woke up at around 4:00 in the morning and as what she used to do, she entered the rooms of the Webbs to get their clothes to be washed. As a matter of fact, in that early morning, she entered Hubert's room and saw Hubert, who was only wearing his pants, already awake and smoking while he was sitting on his bed. She picked up Hubert's scattered clothes and brought them together with the clothes of the other members of the family to the laundry area. After taking her breakfast, she began

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

Biong later invited her for breakfast, but they first went to his office where she observed him doing something in his steel cabinet while he appeared to be uneasy. Moments later, Galvan, another policeman of Paraaque, arrived and said, "Oy Biong, may tatlong patay sa BF, imbestigahan mo" to which Biong answered, "Oo susunod na ako." Biong went to the office of Capt. Don Bartolome who offered to accompany him and with whom she asked permission to go with them. Before they proceeded to the place where the killings happened, she asked Biong if he knew the exact address and the latter immediately responded, "Alam ko na yon." She was surprised because Galvan never told him the place of the incident. As soon as they arrived at the Vizconde's residence, Biong instructed the housemaids to contact the victim's relatives, while the security guard fetched the barangay chairman and the president of the Homeowners Association. When all these persons were already in the house, Biong started recording the wounds of the victim. Inside the master's bedroom, she saw Biong took a watch from the jewelry box. Because she could not tolerate the foul odor, she and Capt. Bartolome went out of the room and proceeded to the dining area. On top of the dining table, she saw the scattered contents of a shoulder bag. Moments later, Biong came out from the room and proceeded to the front door to remove the chain lock; asked the keys from the housemaid and it was only then that the main door was opened. Biong noticed a stone in front of the broken glass of the door and requested Capt. Bartolome to go inside the servant's quarters as he doubted the housemaids' claim that they heard nothing unusual. Using the handle of his gun, Biong broke the remaining glass of the door panel. Bartolome then came out of the room and told Biong that he can hear the sound of the glass being broken. At the garage, Biong also noticed same marks on the hood of the car. On the following day, at around 12:00 noon, Biong arrived in her house together with the Vizconde housemaids. When Biong was preparing to take a bath, she saw him remove from his pocket the things she also saw from Vizconde's residence, to wit: calling cards, driver's license, ATM card, a crossed check worth P80,000.00, earrings, a ring, bracelet, necklace, and the watch he took from the jewelry box inside the room of the Vizcondes. These jewelry items were later pawned by Biong for P20,000.00 at a pawnshop in front of Chow-Chow restaurant in Santos Avenue, Paraaque. The next day, she saw Biong took from his locker at the Paraaque Police Station an imported brown leather jacket, which the latter claimed to have been given to him by the person who called him up in the early morning of June 30, 1991. Since then, Biong has been wearing said jacket until they broke up sometime in 1993. She observed that Biong seemed not interested in pursuing the investigation of the Vizconde case. In fact, when Biong and this group picked up Mike Gatchalian and brought him to the Paraaque Police Station, she was surprised that Biong halted the investigation when Gatchalian was profusely sweating while being interrogated. After the father of Gatchalian talked to Colonel Pureza, the latter called up and instructed Biong to bring Gatchalian to him (Colonel Pureza) and that was the last thing she remembered regarding this case.

The DOJ Panel then weighed these inculpatory evidence against the exculpatory evidence of petitioners. It ruled: 30
xxx xxx xxx The voluminous number of exhibits submitted by respondent Webb to support his defense of denial and alibi notwithstanding, the panel, after a careful and thorough evaluation of the records, believes that they cannot outweigh the evidence submitted by

the complainant. Alibi cannot prevail over the positive identification made by a prosecution witness. Verily, alibi deserves scant consideration in the face of positive identification especially so where the claim of alibi is supported mainly by friends and relatives (People vs. Apolonia, 235 SCRA 124 [1994]; People vs. Lucas, 181 SCRA 316 and a long line of cases). Similarly, denial is a self-serving negative which cannot be given greater evidentiary weight than the declaration of a credible witness who testified on affirmative matters (People vs. Carizo, 233 SCRA 687 [1994]). Indeed, denial, like alibi, is weak and becomes even more weaker when arrayed against the positive identification by the witness for the prosecution (People vs. Onpaid, 233 SCRA 62 [1994]). Surprisingly, Gatchalian's defense of alibi was not corroborated by Lejano, whom he claimed was with him watching video tapes at the Syyap residence. Other than claiming that he "was not and could not have been at or near the area of the Vizconde residence at the time of the alleged commission of the crime," respondent Lejano proffered no evidence to substantiate his claim of alibi. xxx xxx xxx On the other hand, respondent Webb seeks to enhance the acceptability of his alibi in the form of documents tending to show that he was thousands of miles away when the incident occurred. We have carefully deliberated and argued on the evidence submitted by respondent Webb in support of his absence from the country since March 9, 1991 to October 26, 1992 and found the same wanting to exonerate him of the offense charged. The material dates in this case are June 29 and 30, 1991. While respondent Webb may have submitted proof tending to show that he was issued a California driver's license on June 14, 1991, there is no showing that he could not have been in the country on the dates above mentioned. Neither do we find merit in the allegation that respondent Webb personally bought a bicycle on June 30, 1991 in California in view of his positive identification by Alfaro and the two (2) househelps of the Webb family who testified that he was here in the country on said dates. Additionally, the issuance of receipt evidencing the purchase of a bicycle in California is no conclusive proof that the name appearing thereon was the actual buyer of the merchandise.

Given these conflicting pieces of evidence of the NBI and the petitioners, we hold that the DOJ Panel did not gravely abuse its discretion when it found probable cause against the petitioners. A finding of probable cause needs only to rest on evidence showing that more likely than not a crime has been committed and was committed by the suspects. Probable cause need not be based on clear and convincing evidence of guilt, neither on evidence establishing guilt beyond reasonable doubt and definitely, not on evidence establishing absolute certainty of guilt. As well put in Brinegar v. United States, 31 while probable cause demands more than "bare suspicion," it requires "less than evidence which would justify . . . conviction." A finding of probable cause merely binds over the suspect to stand trial. It is not a pronouncement of guilt. Considering the low quantum and quality of evidence needed to support a finding of probable cause, we also hold that the DOJ Panel did not, gravely abuse its discretion in refusing to call the NBI witnesses for clarificatory questions. The decision to call witnesses for clarificatory questions is addressed to the sound

discretion of the investigator and the investigator alone. If the evidence on hand already yields a probable cause, the investigator need not hold a clarificatory hearing. To repeat, probable cause merely implies probability of guilt and should be determined in a summary manner. Preliminary investigation is not a part of trial and it is only in a trial where an accused can demand the full exercise of his rights, such as the right to confront and cross-examine his accusers to establish his innocence. In the case at bar, the DOJ Panel correctly adjudged that enough evidence had been adduced to establish probable cause and clarificatory hearing was unnecessary. II We now come to the charge of petitioners that respondent Judge Raul de Leon and, later, respondent Judge Amelita Tolentino issued warrants of arrest against them without conducting the required preliminary examination. Petitioners support their stance by highlighting the following facts: (1) the issuance of warrants of arrest in a matter of few hours; (2) the failure of said judges to issue orders of arrest; (3) the records submitted to the trial court were incomplete and insufficient from which to base a finding of probable cause; and (4) that even Gerardo Biong who was included in the Information as a mere accessory had a "NO BAIL" recommendation by the DOJ Panel. Petitioners postulate that it was impossible to conduct a "searching examination of witnesses and evaluation of the documents" on the part of said judges. The issuance of a warrant of arrest interferes with individual liberty and is regulated by no less than the fundamental law of the land. Section 2 of Article III of the Constitution provides:
Sec. 2. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce and particularly describing the place to be searched and the persons or things to be seized.

The aforequoted provision deals with the requirements of probable cause both with respect to issuance of warrants of arrest or search warrants. The similarities and differences of their requirements ought to be educational. Some of them are pointed out by Professors LaFave and Israel, thus: 32 "It is generally assumed that the same quantum of evidence is required whether one is concerned with probable cause to arrest or probable cause to search. But each requires a showing of probabilities as to somewhat different facts and circumstances, and thus one can exist without the other. In search cases, two conclusions must be supported by substantial evidence: that the items sought are in fact seizable by virtue of being connected with criminal activity, and that the items will be found in the place to be searched. It is not also necessary that a particular person be implicated. By comparison, in arrest cases there must be probable cause that a

crime has been committed and that the person to be arrested committed it, which of course can exist without any showing that evidence of the crime will be found at premises under that person's control." Worthy to note, our Rules of Court do not provide for a similar procedure to be followed in the issuance of warrants of arrest and search warrants. With respect to warrants of arrest, section 6 of Rule 112 simply provides that "upon filing of an information, the Regional Trial Court may issue a warrant for the arrest of the accused." In contrast, the procedure to be followed in issuing search warrants is more defined. Thus, Sections 3, 4 and 5 of Rule 126 provide:
xxx xxx xxx Sec. 3. Requisites for issuing search warrant. A search warrant shall not issue but upon probable cause in connection with one specific offense to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the things to be seized. Sec. 4. Examination of complainant; record. The judge must, before issuing the warrant, personally examine in the form of searching questions and answers, in writing and under oath the complainant and any witnesses he may produce on facts personally known to them and attach to the record their sworn statements together with any affidavits submitted. Sec. 5. Issuance and form of search warrant. If the judge is thereupon satisfied of the facts upon which the application is based, or that there is probable cause to believe that they exist, he must issue the warrant, which must be substantially in the form prescribed by these Rules.

We discussed the difference in the Procedure of issuing warrants of arrest and search warrants in Soliven vs. Makasiar, 33 thus:
xxx xxx xxx The second issue, raised by Beltran, calls for an interpretation of the constitutional provision on the issuance of warrants of arrest. The pertinent provision reads: Art. III, Sec. 2. The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized. The addition of the word "personally" after the word "determined" and the deletion of the grant of authority by the 1973 Constitution to issue warrants to "other responsible officers as may be authorized by law," has apparently convinced petitioner Beltran that the Constitution now requires the judge to personally examine the complainant and his witnesses in his determination of probable cause for the issuance of warrants of arrest. This is not an accurate interpretation.

What the Constitution underscores is the exclusive and personal responsibility of the issuing judge to satisfy himself of the existence of probable cause . In satisfying himself of the existence of probable cause for the issuance of a warrant of arrest, the judge is not required to personally examine the complainant and his witnesses . Following established doctrine and procedure, he shall: (1) personally evaluate the report and the documents submitted by the fiscal regarding the existence of probable cause and, on the basis thereof, issue a warrant; or (2) if on the basis thereof he finds no probable cause, he may disregard the fiscal's report and require the submission of supporting affidavits of witnesses to aid him in arriving at a conclusions as to the existence of probable cause. Sound policy dictates this procedure, otherwise judges would be unduly laden with the preliminary examination and investigation of criminal complaints instead of concentrating on hearing and deciding cases filed before their courts.

Clearly then, the Constitution, the Rules of Court, and our case law 34 repudiate the submission of petitioners that respondent judges should have conducted "searching examination of witnesses" before issuing warrants of arrest against them. They also reject petitioners' contention that a judge must first issue an order of arrest before issuing a warrant of arrest. There is no law or rule requiring the issuance of an Order of Arrest prior to a warrant of arrest. In the case at bar, the DOJ Panel submitted to the trial court its 26-page report, the two (2) sworn statements of Alfaro and the sworn statements of Carlos Cristobal and Lolita Birrer 35 as well as the counter-affidavits of the petitioners. Apparently, the painstaking recital and analysis of the parties' evidence made in the DOJ Panel Report satisfied both judges that there is probable cause to issue warrants of arrest against petitioners. Again, we stress that before issuing warrants of arrest, judges merely determine personally the probability, not the certainty of guilt of an accused. In doing so, judges do not conduct a de novo hearing to determine the existence of probable cause. They just personally review the initial determination of the prosecutor finding a probable cause to see if it is supported by substantial evidence. The sufficiency of the review process cannot be measured by merely counting minutes and hours. The fact that it took the respondent judges a few hours to review and affirm the probable cause determination of the DOJ Panel does not mean they made no personal evaluation of the evidence attached to the records of the case. 36 Petitioners' reliance on the case of Allado vs. Diokno 37 is misplaced. Our Allado ruling is predicated on the utter failure of the evidence to show the existence of probable cause. Not even the corpus delicti of the crime was established by the evidence of the prosecution in that case. Given the clear insufficiency of the evidence on record, we stressed the necessity for the trial judge to make a further personal examination of the complainant and his witnesses to reach a correct assessment of the existence or non-existence of probable cause before issuing warrants of arrest against the accused. The case at bar, however, rests on a different factual setting. As priorly discussed, the various types of evidence extant in the records of the case provide substantial basis for a finding of probable cause against the petitioner. The corpus delicti of the crime is a given

fact. There is an eyewitness account of the imputed crime given by Alfaro. The alibi defense of petitioner Webb is also disputed by sworn statements of their former maids. It was therefore unnecessary for the respondent judges to take the further step of examining ex parte the complainant and their witnesses with searching questions. III Petitioners also complain about the denial of their constitutional right to due process and violation of their right to an impartial investigation. They decry their alleged hasty and malicious prosecution by the NBI and the DOJ Panel. They also assail the prejudicial publicity that attended their preliminary investigation. We reject these contentions. The records will show that the DOJ Panel did not conduct the preliminary investigation with indecent haste. Petitioners were given fair opportunity to prove lack of probable cause against them. The fairness of this opportunity is well stressed in the Consolidated Comment of the Solicitor General, viz.:
Again, there is no merit in this contention. Petitioners were afforded all the opportunities to be heard. Petitioner Webb actively participated in the preliminary investigation by appearing in the initial hearing held on June 30, 1995 and in the second hearing on July 14, 1995; and by filing a "Motion for Production and Examination of Evidence and Documents" on June 27, 1995 (p. 4, Petition), a "Reply to the compliance and Comment/Manifestation to the Motion for Production and Examination of Evidence" on July 5, 1995 (p. 6, Petition), a "Comment and Manifestation" on July 7, 1995 (p. 6, Petition), his "Counter-Affidavit" on July 14, 1995 (pp. 6-7, Petition) and a "Motion to Resolve" on August 1, 1995. Numerous letter-requests were also sent by the petitioner Webb's counsel to the DOJ Panel requesting the latter to furnish him a copy of the reports prepared by the FBI concerning the petitioner's whereabouts during the material period (Annexes "L", "L-1" and "L-2" of the Supplemental Petition dated August 14, 1995). In fact, not satisfied with the decision of the DOJ Panel not to issue subpoena duces tecum to Atty. Arturo L. Mercader, Jr., petitioner Webb filed a " Petition for Injunction, Certiorari, Prohibition and Mandamus" with the Regional Trial Court, Branch 63 of Makati in order to compel said Atty. Mercader, Jr. to produce the first sworn statement of Alfaro for submission to the DOJ Panel. (p. 4, Petition) The said court dismissed the petition after Mercader produced and submitted to the DOJ Panel the first sworn statement of Alfaro, without ruling on the admissibility and credence of the two (2) conflicting and inconsistent sworn statements of the principal witness, Alfaro. (Attached hereto is a copy of the order of Judge Ruben A. Mendiola, RTC-Makati, Branch 63 dated July 28, 1995) marked as Annex "F." It must also be pointed out that despite the declaration by the DOJ Panel that the preliminary investigation was to be terminated after the hearing held on July 14, 1995, the panel continued to conduct further proceedings, e.g. comparison of the photo-copies of the submitted documents with the originals on July 17, 1995. (p. 7, Petition) The panel even entertained the "Response" submitted by accused Miguel Rodriguez on July 18, 1995. (p. 17 Resolution) In addition to these, the panel even announced that any party may submit additional evidence before the resolution of the case. (p. 8, Petition) From the time the panel declared the termination of the preliminary investigation on July 14, 1995, twenty-seven (27) days elapsed before the resolution was promulgated, and the information eventually filed in the Regional Trial Court of Paraaque on August 10, 1995.

This notwithstanding the directive of Section 3(f) Rule 112 of the Revised Rules of Court that the investigating officer shall resolve the case within ten (10) days from the termination of the preliminary investigation. The DOJ Panel precisely allowed the parties to adduce more evidence in their behalf and for the panel to study the evidence submitted more fully. This directly disputes the allegation of the petitioners that the resolution was done with indecent haste in violation of the rights of the petitioners. During the period of twenty-seven (27) days, the petitioners were free to adduce and present additional evidence before the DOJ Panel. Verily, petitioners cannot now assert that they were denied due process during the conduct of the preliminary investigation simply because the DOJ Panel promulgated the adverse resolution and filed the Information in court against them.

Petitioners cannot also assail as premature the filing of the Information in court against them for rape with homicide on the ground that they still have the right to appeal the adverse resolution of the DOJ Panel to the Secretary of Justice. The filing of said Information is in accord with Department of Justice Order No. 223, series of 1993, dated June 25, 1993. We quote its pertinent sections, viz.:
Sec. 4. Non-Appealable Cases; Exceptions. No appeal may be taken from a resolution of the Chief State Prosecutor/Regional State Prosecutor/Provincial or City Prosecutor finding probable cause except upon showing of manifest error or grave abuse of discretion. Notwithstanding the showing of manifest error or grave abuse of discretion, no appeal shall be entertained where the appellant had already been arraigned . If the appellant is arraigned during the pendency of the appeal, said appeal shall be dismissed motu propio by the Secretary of Justice. An appeal/motion for reinvestigation from a resolution finding probable cause, however, shall not hold the filing of the information in court. Sec. 2. When to appeal. The appeal must be filed within a period of fifteen (15) days from receipt of the questioned resolution by the party or his counsel. The period shall be interrupted only by the filing of a motion for reconsideration within ten (10) days from receipt of the resolution and shall continue to run from the time the resolution denying the motion shall have been received by the movant or his counsel. (Emphasis supplied)

Without doubt then, the said DOJ Order No. 223 allows the filing of an Information in court after the consummation of the preliminary investigation even if the accused can still exercise the right to seek a review of the prosecutor's recommendation with the Secretary of Justice. Next, petitioners fault the DOJ Panel for not including Alfaro in the Information considering her alleged conspiratorial participation in the crime of rape with homicide. The non-inclusion of Alfaro is anchored on Republic Act No. 6981, entitled "An Act Providing For A Witness Protection, Security And Benefit Program And For Other Purposes" enacted on April 24, 1991. Alfaro qualified under its Section 10, which provides:
xxx xxx xxx

Sec. 10. State Witness. Any person who has participated in the commission of a crime and desires to a witness for the State, can apply and, if qualified as determined in this Act and by the Department, shall be admitted into the Program whenever the following circumstances are present: (a) the offense in which his testimony will be used is a grave felony as defined under the R.P.C. or its equivalent under special laws; (b) there is absolute necessity for his testimony; (c) there is no other direct evidence available for the proper prosecution of the offense committed; (d) his testimony can be substantially corroborated on its material points; (e) he does not appear to be most guilty; and (f) he has not at anytime been convicted of any crime involving moral turpitude. An accused discharged from an information or criminal complaint by the court in order that he may be a State Witness pursuant to Sections 9 and 10 of Rule 119 of the Revised Rules of Court may upon his petition be admitted to the Program if he complies with the other requirements of this Act. Nothing in this Act shall prevent the discharge of an accused so that he can be used as a Witness under Rule 119 of the Revised Rules of Court.

Upon qualification of Alfaro to the program, Section 12 of the said law mandates her non-inclusion in the criminal Complaint or Information, thus:
xxx xxx xxx Sec. 12. Effect of Admission of a State Witness into the Program. The certification of admission into the Program by the Department shall be given full faith and credit by the provincial or city prosecutor who is required NOT TO INCLUDE THE WITNESS IN THE CRIMINAL COMPLAINT OR INFORMATION and if included therein, to petition the court for his discharge in order that he can be utilized as a State Witness. The court shall order the discharge and exclusion of the said accused from the information. Admission into the Program shall entitle such State Witness to immunity from criminal prosecution for the offense or offenses in which his testimony will be given or used and all the rights and benefits provided under Section 8 hereof.

The validity of these provisions is challenged by petitioner Webb. It is urged that they constitute ". . . an intrusion into judicial prerogative for it is only the court which has the power under the Rules on Criminal Procedure to discharge an accused as a state witness." The argument is based on Section 9, Rule 119 38 which gives the court the prerogative to approve the discharge of an accused to be a state witness. Petitioner's argument lacks appeal for it lies on the faulty assumption that the decision whom to prosecute is a judicial function, the sole prerogative of courts and beyond executive and legislative interference. In truth, the prosecution of crimes appertains to the executive department of government

whose principal power and responsibility is to see that our laws are faithfully executed. A necessary component of this power to execute our laws is the right to prosecute their violators. The right to prosecute vests the prosecutor with a wide range of discretion the discretion of whether, what and whom to charge, the exercise of which depends on a smorgasbord of factors which are best appreciated by prosecutors. We thus hold that it is not constitutionally impermissible for Congress to enact R.A. No. 6981 vesting in the Department of Justice the power to determine who can qualify as a witness in the program and who shall be granted immunity from prosecution. 39 Section 9 of Rule 119 does not support the proposition that the power to choose who shall be a state witness is an inherent judicial prerogative. Under this provision, the court, is given the power to discharge a state witness only because it has already acquired jurisdiction over the crime and the accused. The discharge of an accused is part of the exercise of jurisdiction but is not a recognition of an inherent judicial function. Moreover, the Rules of Court have never been interpreted to be beyond change by legislation designed to improve the administration of our justice system. R.A. No. 6981 is one of the much sought penal reform laws to help government in its uphill fight against crime, one certain cause of which is the reticence of witnesses to testify. The rationale for the law is well put by the Department of Justice, viz.: "Witnesses, for fear of reprisal and economic dislocation, usually refuse to appear and testify in the investigation/prosecution of criminal complaints/cases. Because of such refusal, criminal complaints/cases have been dismissed for insufficiency and/or lack of evidence. For a more effective administration of criminal justice, there was a necessity to pass a law protecting witnesses and granting them certain rights and benefits to ensure their appearance in investigative bodies/courts." 40 Petitioner Webb's challenge to the validity of R.A. No. 6981 cannot therefore succeed. Further, petitioners charge the NBI with violating their right to discovery proceedings during their preliminary investigation by suppressing the April 28, 1995 original copy of the sworn statement of Alfaro and the FBI Report. The argument is novel in this jurisdiction and as it urges an expansive reading of the rights of persons under preliminary investigation it deserves serious consideration. To start with, our Rules on Criminal Procedure do not expressly provide for discovery proceedings during the preliminary investigation stage of a criminal proceeding. 41 Sections 10 and 11 of Rule 117 do provide an accused the right to move for a bill of particulars and for production or inspection of material evidence in possession of the prosecution. 42 But these provisions apply after the filing of the Complaint or Information in court and the rights are accorded to the accused to assist them to make an intelligent plea at arraignment and to prepare for trial. 43 This failure to provide discovery procedure during preliminary investigation does not, however, negate its use by a person under investigation when indispensable to protect his constitutional right to life, liberty and property. Preliminary investigation is not too early a stage to guard against any significant erosion of

the constitutional right to due process of a potential accused. As aforediscussed, the object of a preliminary investigation is to determine the probability that the suspect committed a crime. We hold that the finding of a probable cause by itself subjects the suspect's life, liberty and property to real risk of loss or diminution. In the case at bar, the risk to the liberty of petitioners cannot be understated for they are charged with the crime of rape with homicide, a non-bailable offense when the evidence of guilt is strong. Attuned to the times, our Rules have discarded the pure inquisitorial system of preliminary investigation. Instead, Rule 112 installed a quasi-judicial type of preliminary investigation conducted by one whose high duty is to be fair and impartial. 44 As this Court emphasized in Rolito Go vs. Court of Appeals, 45 "the right to have a preliminary investigation conducted before being bound over for trial for a criminal offense, and hence formally at risk of incarceration or some other penalty, is not a mere formal or technical right; it is a substantive right." A preliminary investigation should therefore be scrupulously conducted so that the constitutional right to liberty of a potential accused can be protected from any material damage. We uphold the legal basis of the right of petitioners to demand from their prosecutor, the NBI, the original copy of the April 28, 1995 sworn statement of Alfaro and the FBI Report during their preliminary investigation considering their exculpatory character, and hence, unquestionable materiality to the issue of their probable guilt. The right is rooted on the constitutional protection of due process which we rule to be operational even during the preliminary investigation of a potential accused. It is also implicit in section (3) (a) of Rule 112 which requires during the preliminary investigation the filing of a sworn complaint, which shall ". . . state the known address of the respondent and be accompanied by affidavits of the complainant and his witnesses as well as other supporting documents . . ." In laying down this rule, the Court is not without enlightened precedents from other jurisdictions. In the 1963 watershed case of Brady v. Maryland 46 the United States Supreme Court held that "suppression of evidence favorable to an accused upon request violates due process where the evidence is material to guilt or punishment, irrespective of the good faith or bad faith of the prosecution." Its progeny is the 1935 case of Mooney v. Holohan 47 which laid down the proposition that a prosecutor's intentional use of perjured testimony to procure conviction violates due process. Thus, evolved jurisprudence firming up the prosecutor's duty to disclose to the defense exculpatory evidence in its possession. 48 The rationale is well put by Justice Brennan in Brady 49 "society wins not only when the guilty are convicted but when criminal trials are fair." Indeed, prosecutors should not treat litigation like a game of poker where surprises can be sprung and where gain by guile is not punished. But given the right of petitioners to compel the NBI to disclose exculpatory evidence in their favor, we are not prepared to rule that the initial non-production of the original sworn statement of Alfaro dated April 28, 1995 could have resulted

in the reasonable likelihood that the DOJ Panel would not have found probable cause. To be sure, the NBI, on July 4, 1995, upon request of petitioners, submitted a photocopy of Alfaro's April 28, 1995 sworn statement. It explained it cannot produce the original as it had been lost. Fortunately, petitioners, on July 28, 1995, were able to obtain a copy of the original from Atty. Arturo Mercader in the course of the proceedings in Civil Case No. 951099. 50 As petitioners admit, the DOJ Panel accepted the original of Alfaro's April 28, 1995 sworn statement as a part of their evidence. 51 Petitioners thus had the fair chance to explain to the DOJ Panel then still conducting their preliminary investigation the exculpatory aspects of this sworn statement. Unfortunately for petitioners, the DOJ Panel still found probable cause to charge them despite the alleged material discrepancies between the first and second sworn statements of Alfaro. For reasons we have expounded, this finding of probable cause cannot be struck down as done with grave abuse of discretion. 52 On the other hand, the FBI Report while corroborative of the alibi of petitioner Webb cannot by itself reverse the probable cause finding of the DOJ Panel in light of the totality of evidence presented by the NBI. Finally, we come to the argument of petitioner that the DOJ Panel lost its impartiality due to the prejudicial publicity waged in the press and broadcast media by the NBI. Again, petitioners raise the effect of prejudicial publicity on their right to due process while undergoing preliminary investigation. We find no procedural impediment to its early invocation considering the substantial risk to their liberty while undergoing a preliminary investigation. In floating this issue, petitioners touch on some of the most problematic areas in constitutional law where the conflicting demands of freedom of speech and of the press, the public's right to information, and an accused's right to a fair and impartial trial collide and compete for prioritization. The process of pinpointing where the balance should be struck has divided men of learning as the balance keeps moving either on the side of liberty or on the side of order as the tumult of the time and the welfare of the people dictate. The dance of balance is a difficult act to follow. In democratic settings, media coverage of trials of sensational cases cannot be avoided and oftentimes, its excessiveness has been aggravated by kinetic developments in the telecommunications industry. For sure, few cases can match the high volume and high velocity of publicity that attended the preliminary investigation of the case at bar. Our daily diet of facts and fiction about the case continues unabated even today. Commentators still bombard the public with views not too many of which are sober and sublime. Indeed, even the principal actors in the case the NBI, the respondents, their lawyers and their sympathizers have participated in this media blitz. The possibility of media abuses and their threat to a fair trial notwithstanding, criminal trials cannot be

completely closed to the press and the public. In the seminal case of Richmond Newspapers, Inc. v. Virginia, 53 it was wisely held:
xxx xxx xxx (a) The historical evidence of the evolution of the criminal trial in Anglo-American justice demonstrates conclusively that at the time this Nation's organic laws were adopted, criminal trials both here and in England had long been presumptively open, thus giving assurance that the proceedings were conducted fairly to all concerned and discouraging perjury, the misconduct of participants, or decisions based on secret bias or partiality. In addition, the significant community therapeutic value of public trials was recognized: when a shocking crime occurs, a community reaction of outrage and public protest often follows, and thereafter the open processes of justice serve an important prophylactic purpose, providing an outlet for community concern, hostility, and emotion. To work effectively, it is important that society's criminal process "satisfy the appearance of justice," Offutt v. United States, 348 US 11, 14, 99 L Ed 11, 75 S Ct 11, which can best be provided by allowing people to observe such process. From this unbroken, uncontradicted history, supported by reasons as valid today as in centuries past, it must be concluded that a presumption of openness inheres in the very nature of a criminal trial under this Nation's system of justice, Cf., e.g., Levine v. United States, 362 US 610, 4 L Ed 2d 989, 80 S Ct 1038. (b) The freedoms of speech, press, and assembly, expressly guaranteed by the First Amendment, share a common core purpose of assuring freedom of communication on matters relating to the functioning of government. In guaranteeing freedoms such as those of speech and press, the First Amendment can be read as protecting the right of everyone to attend trials so as to give meaning to those explicit guarantees; the First Amendment right to receive information and ideas means, in the context of trials, that the guarantees of speech and press, standing alone, prohibit government from summarily closing courtroom doors which had long been open to the public at the time the First Amendment was adopted. Moreover, the right of assembly is also relevant, having been regarded not only as an independent right but also as a catalyst to augment the free exercise of the other First Amendment rights with which it was deliberately linked by the draftsmen. A trial courtroom is a public place where the people generally and representatives of the media have a right to be present, and where their presence historically has been thought to enhance the integrity and quality of what takes place. (c) Even though the Constitution contains no provision which by its terms guarantees to the public the right to attend criminal trials, various fundamental rights, not expressly guaranteed, have been recognized as indispensable to the enjoyment of enumerated rights. The right to attend criminal trials is implicit in the guarantees of the First Amendment; without the freedom to attend such trials, which people have exercised for centuries, important aspects of freedom of speech and of the press could be eviscerated.

Be that as it may, we recognize that pervasive and prejudicial publicity under certain circumstances can deprive an accused of his due process right to fair trial. Thus, in Martelino, et al. vs. Alejandro, et al., 54 we held that to warrant a finding of prejudicial publicity there must be allegation and proof that the judges have been unduly influenced, not simply that they might be, by the barrage of publicity. In the case at bar, we find nothing in the records that will prove that the tone and content, of the publicity that attended the investigation of petitioners fatally infected the fairness and impartiality of the DOJ Panel. Petitioners cannot just rely on the subliminal effects of publicity on the sense of fairness of the DOJ

Panel, for these are basically unbeknown and beyond knowing. To be sure, the DOJ Panel is composed of an Assistant Chief State Prosecutor and Senior State Prosecutors. Their long experience in criminal investigation is a factor to consider in determining whether they can easily be blinded by the klieg lights of publicity. Indeed, their 26-page Resolution carries no indubitable indicia of bias for it does not appear that they considered any extra-record evidence except evidence properly adduced by the parties. The length of time the investigation was conducted despite its summary nature and the generosity with which they accommodated the discovery motions of petitioners speak well of their fairness. At no instance, we note, did petitioners seek the disqualification of any member of the DOJ Panel on the ground of bias resulting from their bombardment of prejudicial publicity. It all remains to state that the Vizconde case will move to a more critical stage as petitioners will now have to undergo trial on the merits. We stress that probable cause is not synonymous with guilt and while the light of publicity may be a good disinfectant of unfairness, too much of its heat can bring to flame an accused's right to fair trial. Without imposing on the trial judge the difficult task of supervising every specie of speech relating to the case at bar, it behooves her to be reminded of the duty of a trial judge in high profile criminal cases to control publicity prejudicial to the fair administration of justice. 55 The Court reminds judges that our ability to dispense impartial justice is an issue in every trial and in every criminal prosecution, the judiciary always stands as a silent accused. More than convicting the guilty and acquitting the innocent, the business of the judiciary is to assure fulfillment of the promise that justice shall be done and is done and that is the only way for the judiciary to get an acquittal from the bar of public opinion. IN VIEW WHEREOF, the petitions are dismissed for lack of showing of grave abuse of discretion on the part of the respondents. Costs against petitioners. SO ORDERED. G.R. No. 88919 July 25, 1990 PEOPLE OF THE PHILIPPINES, petitioner, vs. HONORABLE ENRIQUE B. INTING, PRESIDING JUDGE, REGIONAL TRIAL COURT, BRANCH 38, DUMAGUETE CITY, AND OIC MAYOR DOMINADOR S. REGALADO, JR., respondents.

GUTIERREZ, JR., J.:

Does a preliminary investigation conducted by a Provincial Election Supervisor involving election offenses have to be coursed through the Provincial Fiscal now Provincial Prosecutor, before the Regional Trial Court may take cognizance of the investigation and determine whether or not probable cause exists? On February 6, 1988, Mrs. Editha Barba filed a letter-complaint against OIC-Mayor Dominador Regalado of Tanjay, Negros Oriental with the Commission on Elections (COMELEC), for allegedly transferring her, a permanent Nursing Attendant, Grade I, in the office of the Municipal Mayor to a very remote barangay and without obtaining prior permission or clearance from COMELEC as required by law. Acting on the complaint, COMELEC directed Atty. Gerardo Lituanas, Provincial Election Supervisor of Dumaguete City: (1) to conduct the preliminary investigation of the case; (2) to prepare and file the necessary information in court; (3) to handle the prosecution if the evidence submitted shows a prima facie case and (3) to issue a resolution of prosecution or dismissal as the case may be. The directive to conduct the preliminary investigation was pursuant to COMELEC Resolution No. 1752 dated January 14, 1986. The resolution, in turn, is based on the constitutional mandate that the COMELEC is charged with the enforcement and administration of all laws relative to the conduct of elections for the purpose of ensuring free, orderly and honest elections (sec. 2, Article XII-C of the 1973 Constitution) and on the Omnibus Election Code which implements the constitutional provision. The Resolution provides, among others:
xxx xxx xxx Further, Regional Election Directors and Provincial Election Supervisors are hereby authorized to conduct preliminary investigations of election offenses committed in their respective jurisdictions, file the corresponding complaints and/or informations in court whenever warranted, and to prosecute the same pursuant to Section 265 of the Omnibus Election Code. (Rollo, p. 15)

After a preliminary investigation of Barba's complaint, Atty. Lituanas found a prima facie case. Hence, on September 26, 1988, he filed with the respondent trial court a criminal case for violation of section 261, Par. (h), Omnibus Election Code against the OICMayor. In an Order dated September 30, 1988, the respondent court issued a warrant of arrest against the accused OIC Mayor. It also fixed the bail at five thousand pesos (P5,000.00) as recommended by the Provincial Election Supervisor. However, in an order dated October 3, 1988 and before the accused could be arrested, the trial court set aside its September 30, 1988 order on the ground that Atty. Lituanas is not authorized to determine probable cause pursuant to Section 2, Article III of the 1987 Constitution. The court stated that it "will give due course to the information filed in this case if the same has the written approval of the Provincial Fiscal after which the prosecution of the case shall be under the supervision and control of the latter." (at p. 23, Rollo, emphasis supplied)

In another order dated November 22, 1988, the court gave Atty. Lituanas fifteen (15) days from receipt to file another information charging the same offense with the written approval of the Provincial Fiscal. Atty. Lituanas failed to comply with the order. Hence, in an order dated December 8, 1988, the trial court quashed the information. A motion for reconsideration was denied. Hence, this petition. The respondent trial court justifies its stand on the ground that the COMELEC through its Provincial Election Supervisor lacks jurisdiction to determine the existence of probable cause in an election offense which it seeks to prosecute in court because:
While under Section 265 of the Omnibus Election Code approved on December 3, 1985 duly authorized legal officers of the Commission on Elections have the exclusive power to conduct preliminary investigation of all election offenses and to prosecute the same, it is doubtful whether said authority under the auspices of the 1973 Constitution, still subsists under the 1987 Constitution which has deleted in its Section 2, Article III, the phrase "and such other responsible officer as may be authorized by law" in the equivalent section and article of the 1973 Constitution. (Rollo, p. 24)

The petition is impressed with merit. We emphasize important features of the constitutional mandate that " ... no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge ... " (Article III, Section 2, Constitution) First, the determination of probable cause is a function of the Judge. It is not for the Provincial Fiscal or Prosecutor nor for the Election Supervisor to ascertain. Only the Judge and the Judge alone makes this determination. Second, the preliminary inquiry made by a Prosecutor does not bind the Judge. It merely assists him to make the determination of probable cause. The Judge does not have to follow what the Prosecutor presents to him. By itself, the Prosecutor's certification of probable cause is ineffectual. It is the report, the affidavits, the transcripts of stenographic notes (if any), and all other supporting documents behind the Prosecutor's certification which are material in assisting the Judge to make his determination. And third, Judges and Prosecutors alike should distinguish the preliminary inquiry which determines probable cause for the issuance of a warrant of arrest from the preliminary investigation proper which ascertains whether the offender should be held for trial or released. Even if the two inquiries are conducted in the course of one and the same proceeding, there should be no confusion about the objectives. The determination of probable cause for the warrant of arrest is made by the Judge. The preliminary investigation proper-whether or not there is reasonable ground to believe that the accused is guilty of the offense charged and, therefore, whether or not he should be

subjected to the expense, rigors and embarrassment of trial is the function of the Prosecutor. The Court made this clear in the case of Castillo v. Villaluz (171 SCRA 39 [1989]):
Judges of Regional Trial Courts (formerly Courts of First Instance) no longer have authority to conduct preliminary investigations. That authority, at one time reposed in them under Sections 13, 14 and 16 Rule 112 of the Rules of Court of 1964, (See Sec. 4, Rule 108, Rules of Court of 1940; People v. Solon, 47 Phil. 443, cited in Moran, Comments on the Rules, 1980 ed., Vol. 4, pp. 115-116) was removed from them by the 1985 Rules on Criminal Procedure, effective on January 1, 1985, (Promulgated on November 11, 1984) which deleted all provisions granting that power to said Judges. We had occasion to point this out in Salta v. Court of Appeals, 143 SCRA 228, and to stress as well certain other basic propositions, namely: (1) that the conduct of a preliminary investigation is "not a judicial function ... (but) part of the prosecution's job, a function of the executive," (2) that wherever "there are enough fiscals or prosecutors to conduct preliminary investigations, courts are counseled to leave this job which is essentially executive to them," and the fact "that a certain power is granted does not necessarily mean that it should be indiscriminately exercised." The 1988 Amendments to the 1985 Rules on Criminal Procedure, declared effective on October 1, 1988, (The 1988 Amendments were published in the issue of Bulletin Today of October 29, 1988) did not restore that authority to Judges of Regional Trial Courts; said amendments did not in fact deal at all with the officers or courts having authority to conduct preliminary investigations. This is not to say, however, that somewhere along the line RTC Judges also lost the power to make a preliminary examination for the purpose of determining whether probable cause exists to justify the issuance of a warrant of arrest (or search warrant). Such a power indeed, it is as much a duty as it is a power has been and remains vested in every judge by the provision in the Bill of Rights in the 1935, the 1973 and the present (1987) Constitutions securing the people against unreasonable searches and seizures, thereby placing it beyond the competence of mere Court rule or statute to revoke. The distinction must, therefore, be made clear while an RTC Judge may no longer conduct preliminary investigations to ascertain whether there is sufficient ground for the filing of a criminal complaint or information, he retains the authority, when such a pleading is filed with his court, to determine whether there is probable cause justifying the issuance of a warrant of arrest. It might be added that this distinction accords, rather than conflicts, with the rationale of Salta because both law and rule, in restricting to judges the authority to order arrest, recognize that function to be judicial in nature.

We reiterate that preliminary investigation should be distinguished as to whether it is an investigation for the determination of a sufficient ground for the filing of the information or it is an investigation for the determination of a probable cause for the issuance of a warrant of arrest. The first kind of preliminary investigation is executive in nature. It is part of the prosecution's job. The second kind of preliminary investigation which is more properly called preliminary examination is judicial in nature and is lodged with the judge. It is in this context that we address the issue raised in the instant petition so as to give meaning to the constitutional power vested in the COMELEC regarding election offenses. Article IX C Section 2 of the Constitution provides:

Sec. 2. The Commission on Elections shall exercise the following powers and functions (1) Enforce and administer all laws and regulations relative to the conduct of an election, plebiscite, initiative, referendum, and recall. xxx xxx xxx (6) File, upon a verified complaint, or on its own initiative, petitions in court for inclusion or exclusion of votes, investigate and, where appropriate, prosecute cases of violation of election laws, including acts or omission constituting election frauds, offenses, and practices. (Emphasis supplied)

In effect the 1987 Constitution mandates the COMELEC not only to investigate but also to prosecute cases of violation of election laws. This means that the COMELEC is empowered to conduct preliminary investigations in cases involving election offenses for the purpose of helping the Judge determine probable cause and for filing an information in court. This power is exclusive with COMELEC.
The grant to the COMELEC of the power, among others, to enforce and administer all laws relative to the conduct of election and the concomittant authority to investigate and prosecute election offenses is not without compelling reason. The evident constitutional intendment in bestowing this power to the COMELEC is to insure the free, orderly and honest conduct of elections, failure of which would result in the frustration of the true will of the people and make a mere idle ceremony of the sacred right and duty of every qualified citizen to vote. To divest the COMELEC of the authority to investigate and prosecute offenses committed by public officials in relation to their office would thus seriously impair its effectiveness in achieving this clear constitutional mandate. From a careful scrutiny of the constitutional provisions relied upon by the Sandiganbayan, We perceived neither explicit nor implicit grant to it and its prosecuting arm, the Tanodbayan, of the authority to investigate, prosecute and hear election offenses committed by public officers in relation to their office as contradistinguished from the clear and categorical bestowal of said authority and jurisdiction upon the COMELEC and the courts of first instance under Sections 182 and 184, respectively, of the Election Code of 1978. An examination of the provisions of the Constitution and the Election Code of 1978 reveals the clear intention to place in the COMELEC exclusive jurisdiction to investigate and prosecute election offenses committed by any person, whether private individual or public officer or employee, and in the latter instance, irrespective of whether the offense is committed in relation to his official duties or not. In other words, it is the nature of the offense and not the personality of the offender that matters. As long as the offense is an election offense jurisdiction over the same rests exclusively with the COMELEC, in view of its all-embracing power over the conduct of elections. (Corpus v. Tanodbayan, 149 SCRA 281 [1987])

Hence, the Provincial Fiscal, as such, assumes no role in the prosecution of election offenses. If the Fiscal or Prosecutor files an information charging an election offense or prosecutes a violation of election law, it is because he has been deputized by the COMELEC. He does not do so under the sole authority of his office. (People v. Basilla, et al., G.R. Nos. 83938-40, November 6, 1989).itc-asl In the instant case, there is no averment or allegation that the respondent Judge is bringing in the Provincial Fiscal as

a deputy of COMELEC. He wants the Fiscal to "approve" the COMELEC's preliminary investigation. It is to be noted that on February 27, 1987 (when the 1987 Constitution was already in effect) the President issued Executive Order No. 134 which was the ENABLING ACT FOR ELECTIONS FOR MEMBERS OF CONGRESS ON MAY 11, 1987 AND FOR OTHER PURPOSES." Section 11 thereof provides:
Prosecution. The Commission shall, through its duly authorized legal officers, have exclusive power to conduct preliminary investigation of all election offenses punishable as provided for in the preceding section, and to prosecute the same: Provided, That in the event that the Commission fails to act on any complaint within two (2) months from filing, the complainant may file the complaint with the Office of the Fiscal or with the Department of Justice for proper investigation and prosecution, if warranted. The Commission may avail of the assistance of other prosecuting arms of the government.

It is only after a preliminary examination conducted by the COMELEC through its officials or its deputies that section 2, Article III of the 1987 Constitution comes in. This is so, because, when the application for a warrant of arrest is made and the information is filed with the court, the judge will then determine whether or not a probable cause exists for the issuance of a warrant of arrest. Bearing these principles in mind, it is apparant that the respondent trial court misconstrued the constitutional provision when it quashed the information filed by the Provincial Election Supervisor. As indicated above what the respondent trial court should have done was to enforce its September 30, 1988 order, to wit:
Pursuant to Circular No. 12 of the Chief Justice of the Supreme Court dated June 30, 1987 and considering that after a personal examination of the evidence submitted by the investigating Provincial Election Supervisor III Negros Oriental (Designated Legal Officer), there is reasonable ground for this Court to rely on the certification of said Provincial Election Supervisor III in the information that a probable cause exists, let a warrant issue for the arrest of the accused filing the bail at FIVE THOUSAND (P5,000.00) PESOS as recommended by the Provincial Election Supervisor III.

The order to get the approval of the Provincial Fiscal is not only superfluous but unwarranted. WHEREFORE, the instant petition is GRANTED. The questioned Orders dated October 3, 1988, November 22, 1988 and December 8, 1988 are REVERSED and SET ASIDE. The respondent trial court's Order dated September 30, 1988 is REINSTATED. The respondent court is ordered to proceed hearing the case with deliberate speed until its termination. SO ORDERED. G.R. Nos. 94054-57 February 19, 1991

VICENTE LIM, SR. and MAYOR SUSANA LIM, petitioners, vs. HON. NEMESIO S. FELIX and HON. ANTONIO ALFANE, respondents. G.R. Nos. 94266-69 February 19, 1991 JOLLY T. FERNANDEZ, FLORENCIO T. FERNANDEZ, JR., NONILON A. BAGALIHOG, MAYOR NESTOR C. LIM and MAYOR ANTONIO KHO, petitioners, vs. HON. NEMESIO S. FELIX and PROSECUTOR ANTONIO C. ALFANE, respondents. Francisco R. Llamas for petitioners in G.R. Nos. 94054-57. Jolly T. Fernandez, Elenito Bagalihog, Orlando M. Danao and Hechanova, Ballicid & Associates for petitioners in G.R. Nos. 94266-69.

GUTIERREZ, JR., J.:p May a Judge without ascertaining the facts through his own personal determination and relying solely on the certification or recommendation of a prosecutor that a probable cause exists issue a warrant of arrest? On March 17, 1989, at about 7:30 o'clock in the morning, at the vicinity of the airport road of the Masbate Domestic Airport, located at the municipality of Masbate province of Masbate, Congressman Moises Espinosa, Sr. and his security escorts, namely Provincial Guards Antonio Cortes, Gaspar Amaro, and Artemio Fuentes were attacked and killed by a lone assassin. Dante Siblante another security escort of Congressman Espinosa, Sr. survived the assassination plot, although, he himself suffered a gunshot wound. An investigation of the incident then followed. Thereafter, and for the purpose of preliminary investigation, the designated investigator, Harry O. Tantiado, TSg, of the PC Criminal Investigation Service at Camp Bagong Ibalon Legazpi City filed an amended complaint with the Municipal Trial Court of Masbate accusing, among others, Vicente Lim, Sr., Mayor Susana Lim of Masbate (petitioners in G.R. Nos. 9405457), Jolly T. Fernandez, Florencio T. Fernandez, Jr., Nonilon A. Bagalihog, Mayor Nestor C. Lim and Mayor Antonio Kho (petitioners in G.R. Nos. 94266-69) of the crime of multiple murder and frustrated murder in connection with the airport incident. The case was docketed as Criminal Case No. 9211. After conducting the preliminary investigation, the court issued an order dated July 31, 1989 stating therein that:

. . . after weighing the affidavits and answers given by the witnesses for the prosecution during the preliminary examination in searching questions and answers, concludes that a probable cause has been established for the issuance of a warrant of arrest of named accused in the amended complaint, namely, Jimmy Cabarles, Ronnie Fernandez, Nonilon Bagalihog, Jolly Fernandez, Florencio Fernandez, Jr., Vicente Lim, Sr., Susana Lim, Nestor Lim, Antonio Kho, Jaime Liwanag, Zaldy Dumalag and Rene Tualla alias Tidoy. (Rollo, p. 58, G.R. Nos. 94054-57) xxx xxx xxx

In the same Order, the court ordered the arrest of the petitioners and recommended the amount of P200,000.00 as bail for the provisional liberty of each of the accused. Petitioners Jolly Fernandez and Nonilon Bagalihog filed a motion for the reduction of bail which was granted by the court and they were allowed to post bail in the amount of P150,000.00 each. Except for Jimmy Cabarles, all the rest of the accused posted bail at P200,000.00 each. On August 29, 1989, the entire records of the case consisting of two hundred sixty one (261) pages were transmitted to the Provincial Prosecutor of Masbate. Respondent Acting Fiscal Antonio C. Alfane was designated to review the case. On September 22, 1989, Fiscal Alfane issued a Resolution which affirmed the finding of a prima facie case against the petitioners but differed in the designation of the crime in that the ruled that ". . . all of the accused should not only be charged with Multiple Murder With Frustrated Murder" but for a case of MURDER for each of the killing of the four victims and a physical injuries case for inflicting gunshot wound on the buttocks of Dante Siblante." (Annex "H", Comment of Fiscal Alfane, p. 186, Rollo, G.R. Nos. 9405457) A motion to reconsider the Resolution filed by petitioners Vicente Lim, Sr. and Mayor Susana Lim was denied. On October 30, 1989, Fiscal Alfane filed with the Regional Trial Court of Masbate, four (4) separate informations of murder against the twelve (12) accused with a recommendation of no bail. On November 21, 1989, petitioners Vicente Lim, Sr. and Susana Lim filed with us a verified petition for change of venue. (Case No. A.M. No. 89-11-1270-MTC, formerly, G.R. Nos. 90587-90) On December 14, 1989, we issued an en banc Resolution authorizing the change of venue from the Regional Trial Court of Masbate to the Regional Trial Court of Makati to avoid a miscarriage of justice, to wit:
Acting on the petition for change of venue of the trial of Criminal Cases Nos. 5811, 5812, 5813, and 5814 from the Regional Trial Court, Masbate, Masbate to any of the Regional Trial Courts at Quezon City or Makati, the Court Resolved to (a) GRANT the aforesaid petition for transfer of venue in order to avoid miscarriage of justice (Article VIII, Section 5(4) of the Philippine Constitution); (b) DIRECT the Clerk of Court, Regional Trial Court, Masbate, Masbate to transmit the records of the aforesaid cases to the Executive Judge,

Regional Trial Court, Makati, for raffling among the other branches of the court; and (c) ORDER the Regional Trial Court of Masbate, Masbate to desist from further taking cognizance of the said cases until such time that the petition is finally resolved.

The cases were raffled to Branch 56 presided by respondent Judge Nemesio S. Felix. Petitioners Vicente Lim, Sr. and Susana Lim filed with the respondent court several motions and manifestations which in substance prayed for the following:
1. An order be issued requiring the transmittal of the initial records of the preliminary inquiry or investigation conducted by the Municipal Judge Barsaga of Masbate for the best enlightenment of this Honorable Court in its personal determination of the existence of a probable cause or prima facie evidence as well as its determination of the existence of guilt, pursuant to the mandatory mandate of the constitution that no warrant shall issue unless the issuing magistrate shall have himself been personally convinced of such probable cause. 2. Movants be given ample opportunity to file their motion for preliminary investigation as a matter of right; and 3. In the event that this court may later be convinced of the existence of a probable cause, to be allowed to file a motion for reduction of bail or for admission of bail. (p. 17, Rollo, G.R. Nos. 94054-57)

In another manifestation, the Lims reiterated that the court conduct a hearing to determine if there really exists a prima facie case against them in the light of documents which are recantations of some witnesses in the preliminary investigation. The motions and manifestations were opposed by the prosecution. On July 5, 1990, the respondent court issued an order denying for lack of merit the motions and manifestations and issued warrants of arrest against the accused including the petitioners herein. The respondent Judge said:
In the instant cases, the preliminary investigation was conducted by the Municipal Trial Court of Masbate, Masbate which found the existence of probable cause that the offense of multiple murder was committed and that all the accused are probably guilty thereof, which was affirmed upon review by the Provincial Prosecutor who properly filed with the Regional Trial Court four separate informations for murder. Considering that both the two competent officers to whom such duty was entrusted by law have declared the existence of probable cause, each information is complete in form and substance, and there is no visible defect on its face, this Court finds it just and proper to rely on the prosecutor's certification in each information which reads: (pp. 19-20, Rollo, G.R Nos. 94054-57; Emphasis supplied) xxx xxx xxx

The petitioners then filed these consolidated petitions questioning the July 5, 1990 Order. In a Resolution dated July 17, 1990 in G.R. Nos. 94054-57, we issued ". . . a TEMPORARY RESTRAINING ORDER, effective immediately and continuing until

further orders from this Court, ordering the respondent judge or his duly authorized representatives or agents to CEASE and DESIST from enforcing or implementing the warrant of arrest without bail issued against the petitioners in his Order dated July 5, 1990 in Criminal Cases Nos. 5811-14. In another Resolution dated July 31, 1990 in G.R. Nos. 94266-69, we resolved:
xxx xxx xxx . . . To ISSUE writs of (1) PRELIMINARY MANDATORY INJUNCTION, ordering and directing the respondent judge to recall/set aside and/or annul the legal effects of the warrants of arrest without bail issued against and served upon herein petitioners Jolly T. Fernandez, Florencio T. Fernandez, Jr. and Nonilon Bagalihog and release them from confinement at PC-CIS Detention Center, Camp Crame, Quezon City; and (2) TEMPORARY RESTRAINING ORDER, effective immediately and continuing until further orders from this Court, ordering the respondent judge or his duly authorized representatives or agents, to CEASE AND DESIST from enforcing or implementing the warrants of arrest without bail issued against petitioners Mayors Nestor C. Lim and Antonio T. Kho.

The primary issue in these consolidated petitions centers on whether or not a judge may issue a warrant of arrest without bail by simply relying on the prosecution's certification and recommendation that a probable cause exists. This is not a novel question. In the case of Placer v. Villanueva (126 SCRA 463 [1983]), we ruled that a judge may rely upon the fiscal's certification of the existence of probable cause and, on the basis thereof, issue a warrant of arrest. However, the certification does not bind the judge to come out with the warrant of arrest. This decision interpreted the "search and seizure" provision of the 1973 Constitution which provides:
. . . no search warrant or warrant of arrest shall issue except upon probable cause to be determined by the judge, or such other responsible officer as may be authorized by law, after examination under oath or affirmation of the complainant and the witnesses he may produce . . .

We ruled:
. . . The issuance of a warrant is not a mere ministerial function; it calls for the exercise of judicial discretion on the part of the issuing magistrate. This is clear from the following provisions of Section 6, Rule 112 of the Rules of Court. Warrant of arrest, when issued. If the judge be satisfied from the preliminary examination conducted by him or by the investigating officer that the offense complained of has been committed and that there is reasonable ground to believe that the accused has committed it, he must issue a warrant or order for his arrest. Under this section, the judge must satisfy himself of the existence of probable cause before issuing a warrant or order of arrest. If on the face of the information the judge finds no probable cause, he may disregard the fiscal's certification and require the submission of the affidavits of witnesses to aid him in arriving at a conclusion as to the existence of a probable cause. This has been the rule since U.S. v. Ocampo (18 Phil. 1) and Amarga v.

Abbas (98 Phil. 739). And this evidently is the reason for the issuance by respondent of the questioned orders of April 13, 15, 16, 19, 1982 and July 13, 1982. Without the affidavits of the prosecution witnesses and other evidence which, as a matter of longstanding practice had been attached to the information filed in his sala, respondent found the informations inadequate bases for the determination of probable cause. For as the ensuing events would show, after petitioners had submitted the required affidavits, respondent wasted no time in issuing the warrants of arrest in the case where he was satisfied that probable cause existed.

The case of Soliven v. Makasiar (167 SCRA 393 [19881) was decided after the effectivity of the 1987 Constitution. We stated:
The second issue, raised by petitioner Beltran, calls for an interpretation of the constitutional provision on the issuance of warrants of arrest. The pertinent provision reads: Art. III, Sec. 2. The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized. The addition of the word "personally" after the word "determined" and the deletion of the grant of authority by the 1973 Constitution to issue warrants to "other respondent officers as may be authorized by law", has apparently convinced petitioner Beltran that the Constitution now requires the judge to personally examine the complainant and his witnesses in his determination of probable cause for the issuance of arrest. This is not an accurate interpretation. What the Constitution underscores is the exclusive and personal responsibility of the issuing judge to satisfy himself of the existence of probable cause. In satisfying himself of the existence of probable cause for the issuance of a warrant of arrest, the judge is not required to personally examine the complainant and his witnesses. Following established doctrine and procedures, he shall: (1) personally evaluate the report and the supporting documents submitted by the fiscal regarding the existence of probable cause and, on the basis thereof, issue a warrant of arrest; or (2) if on the basis thereof he finds no probable cause, he may disregard the fiscal's report and require the submission of supporting affidavits of witnesses to aid him in arriving at a conclusion as to the existence of probable cause. Sound policy dictates this procedure, otherwise judges would be unduly laden with the preliminary examinations and investigation of criminal complaints instead of concentrating on hearing and deciding cases filed before their courts.

The decision in People v. Honorable Enrique B. Inting, et al. (G.R. No. 88919, July 25, 1990), reiterated the above interpretation of "personal" determination by the Judge:
We emphasize important features of the constitutional mandate that ". . . no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge . . ." (Article III, Section 2, Constitution)

First, the determination of probable cause is a function of the Judge. It is not for the Provincial Fiscal or Prosecutor nor for the Election Supervisor to ascertain. Only the Judge and the Judge alone makes this determination. Second, the preliminary inquiry made by a Prosecutor does not bind the Judge. It merely assists him to make the determination of probable cause. The Judge does not have to follow what the Prosecutor presents to him. By itself, the Prosecutor's certification of probable cause is ineffectual. It is the report, the affidavits, the transcripts of stenographic notes (if any), and all other supporting documents behind the Prosecutor's certification which are material in assisting the Judge to make his determination. And third, Judges and Prosecutors alike should distinguish the preliminary inquiry which determines probable cause for the issuance of a warrant of arrest from the preliminary investigation proper which ascertains whether the offender should be held for trial or released. Even if the two inquiries are conducted in the course of one and the same proceeding, there should be no confusion about the objectives. The determination of probable cause for the warrant of arrest is made by the Judge. The preliminary investigation proper whether or not there is reasonable ground to believe that the accused is guilty of the offense charged and, therefore, whether or not he should be subjected to the expense, rigors and embarrassment of trial is the function of the Prosecutor. The Court made this clear in the case of Castillo v. Villaluz (171 SCRA 39 [19891): Judges of Regional Trial Courts (formerly Courts of First Instance) no longer have authority to conduct preliminary investigations. That authority, at one time reposed in them under Sections 13, 14 and 16, Rule 112 of the Rules of Court of 1964, (See Sec. 4, Rule 108, Rules of Court of 1940; People v. Solon, 47 Phil. 443, cited in Moran, Comments on the Rules, 1980 ed., Vol. 4, pp. 115-116) was removed from them by the 1985 Rules on Criminal Procedure, effective on January 1, 1985, (Promulgated on November 11, 1984) which deleted all provisions granting that power to said Judges. We had occasion to point tills out in Salta v. Court of Appeals, 143 SCRA 228, and to stress as well certain other basic propositions, namely: (1) that the conduct of a preliminary investigation is "not a judicial function . . . (but) part of the prosecution's job, a function of the executive," (2) that whenever "there are enough his or prosecutors to conduct preliminary investigations, courts are counseled to leave this job which is essentially executive to them," and the fact "that a certain power is granted does not necessary mean that it should be indiscriminately exercised. The 1988 Amendments to the 1985 Rules on Criminal Procedure, declared effective on October 1, 1988, (The 1988 Amendments were published in the issue of Bulletin Today of October 29, 1988) did not restore that authority to Judges of Regional Trial Courts; said amendments did not in fact deal at all with the officers or courts having authority to conduct preliminary investigations. This is not to say, however, that somewhere along the line RTC Judges also lost the power to make a preliminary examination for the purpose of determining whether probable cause exists to justify the issuance of a warrant of arrest (or search warrant). Such a power indeed, it is as much a duty as it is a power has been and remains vested in every judge by the provisions in the Bill of Rights in the 1935, the 1973 and the

present [1987] Constitutions securing the people against unreasonable searches and seizures, thereby placing it beyond the competence of mere Court Rule or Statute to revoke. The distinction must, therefore, be made clear while an RTC Judge may no longer conduct preliminary investigations to ascertain whether there is sufficient ground for the filing of a criminal complaint or information, he retains the authority, when such a pleading is filed with his court, to determine whether there is probable cause justifying the issuance of a warrant of arrest. It might be added that this distinction accords, rather than conflicts, with the rationale of Salta because both law and rule, in restricting to judges the authority to order arrest, recognize the function to be judicial in nature. We reiterate that preliminary investigation should be distinguished as to whether it is an investigation for the determination of a sufficient ground for the filing of the information or it is an investigation for the determination of a probable cause for the issuance of a warrant of arrest. The first kind of preliminary investigation is executive in nature. It is part of the prosecution's job. The second kind of preliminary investigation which is more properly called preliminary examination is judicial in nature and is lodged with the Judge. ...

Finally in the recent case of People v. Delgado, et al. (G.R. Nos. 93419-32, September 18, 1990) there is a statement that the judge may rely on the resolution of COMELEC to file the information by the same token that it may rely on the certification made by the prosecutor who conducted the preliminary investigation in the issuance of the warrant of arrest. We, however, also reiterated that ". . . the court may require that the record of the preliminary investigation be submitted to it to satisfy itself that there is probable cause which will warrant the issuance of a warrant of arrest." (Section 2, Article III, Constitution). Reliance on the COMELEC resolution or the Prosecutor's certification presupposes that the records of either the COMELEC or the Prosecutor have been submitted to the Judge and he relies on the certification or resolution because the records of the investigation sustain the recommendation. The warrant issues not on the strength of the certification standing alone but because of the records which sustain it. It is obvious from the present petition that notwithstanding the above decisions, some Judges are still bound by the inertia of decisions and practice under the 1935 and 1973 Constitutions and are sadly confused or hesitant. Prosecutors are also interested in a clear cut ruling. We will, therefore, restate the rule in greater detail and hopefully clearer terms. There is no problem with search warrants which are relatively fewer and far between and where there is no duplication of work between the Judge and the Prosecutor. The problem lies with warrants of arrest especially in metropolitan or highly urban areas. If a Judge has to personally question each complainant and witness or go over the records of the Prosecutor's investigation page by page and word for word before he acts on each of a big pile of applications for arrest warrants on his desk, he or she may have no more time for his or her more important judicial functions.

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

undertones" prevailing in the cases. Even the Solicitor General recognized the significance of the recantations of some witnesses when he recommends a reinvestigation of the cases, to wit:
It must be pointed out, however, that among the documents attached to this Petition are affidavits of recantation subsequently executed by Jimmy Cabarles and Danilo Lozano and an affidavit executed by one, Camilo Sanano, father of the complainant's witnesses, Renato and Romeo Sanano. It was precisely on the strength of these earlier written statements of these witnesses that the Municipal Trial Court of Masbate found the existence of a prima facie case against petitioners and accordingly recommended the filing of a Criminal Information. Evidently, the same written statements were also the very basis of the "Fiscal's Certification", since the attached affidavits of recantation were not yet then available. Since the credibility of the prosecution witnesses is now assailed and put in issue and, since the petitioners have not yet been arraigned, it would be to the broader interest of justice and fair play if a reinvestigation of this case be had to secure the petitioners against hasty prosecution and to protect them from an open and public accusation of crime, from the trouble, expense and anxiety of a public trial, and also to protect the State from useless and expensive trials (Salonga v. Pao G.R. No. 59524, February 18,1985). (Rollo of G.R. Nos. 94054-56, pp. 200-201)

We reiterate that in making the required personal determination, a Judge is not precluded from relying on the evidence earlier gathered by responsible officers. The extent of the reliance depends on the circumstances of each case and is subject to the Judge's sound discretion. However, the Judge abuses that discretion when having no evidence before him, he issues a warrant of arrest. Indubitably, the respondent Judge committed a grave error when he relied solely on the Prosecutor's certification and issued the questioned Order dated July 5, 1990 without having before him any other basis for his personal determination of the existence of a probable cause. WHEREFORE, the instant petitions are hereby GRANTED. The questioned Order of respondent Judge Nemesio S. Felix of Branch 56, Regional Trial Court of Makati dated July 5, 1990 is declared NULL and VOID and SET ASIDE. The Temporary Restraining Orders and Preliminary Mandatory Injunction issued in the instant Petitions are made PERMANENT. SO ORDERED. G.R. No. 165412 May 30, 2011

GEORGE MILLER, Petitioner, vs. SECRETARY HERNANDO B. PEREZ, in his capacity as Secretary of the Department of Justice AND GIOVAN BERNARDINO, Respondents. DECISION VILLARAMA, JR., J.:

Before us is a petition for review on certiorari under Rule 45 of the 1997 Rules of Civil Procedure, as amended, assailing the Decision1 dated June 14, 2004 and Resolution2 dated September 14, 2004 of the Court of Appeals (CA) in CA-G.R. SP No. 72395. The CA dismissed the petition for certiorari after finding no grave abuse of discretion on the part of public respondent Secretary of Justice in issuing his Resolution3 dated March 21, 2002 which ordered the exclusion of respondent Giovan Bernardino (Bernardino) from the Information for attempted murder. The facts as culled from the records: Petitioner George Miller is a British national and an inmate at the Maximum Security Compound of the New Bilibid Prison (NBP) in Muntinlupa City. In November and December 1998, while serving as Acting Secretary General of the Inmates Crusade Against Drugs (ICAD) based at NBP, petitioner wrote two confidential letters4 addressed to then NBP Superintendent Col. Gregorio Agalo-os. The letters contained a detailed report of the alleged irregularities and drug trading activities of respondent Bernardino and Rodolfo Bernardo (Bernardo), both inmates at the Medium Security Compound and ICAD Treasurer and Chairman, respectively. Petitioner also recommended the transfer of Bernardino and Bernardo to the Maximum Security Compound. On January 6, 1999, at around 2:30 p.m., while proceeding towards the volleyball court at the Medium Security Compound, petitioner felt a crushing blow at the back of his head. As blood oozed from his head, petitioner ran to the Infirmary for first aid treatment. Later, petitioner was transferred to the NBP hospital. On January 17, 1999, Dr. Ma. Corazon S. Alvarez, Medical Specialist at the NBP hospital, issued a Medical Certificate5 with the following findings: - lacerated wound, one (1), about 8 to 9 cms. long, 1 cm. deep, on parietal area of the head. - Barring unforseen (sic) circumstances, healing period is from 7 to 10 days. Investigation of the incident was immediately ordered by Supt. Agalo-os. PGIII Cecilio M. Lopez conducted the investigation and submitted to the NBP Director his Report6 dated January 5, 1999. Based on the sworn statement of petitioner and the verbal admissions made by inmates Constantino Quirante, Jr. (Quirante) and Roberto Ceballos (Ceballos), it was found that a few days before the incident, Bernardo and Bernardino confronted petitioner regarding the letters he wrote reporting the alleged illegal drug activities of Ace Aprid (Aprid), Bernardo and Bernardino at ICAD. Bernardo and Bernardino were furious when petitioner admitted having authored the letters, threatening him with the words "Mamamatay ka," which petitioner fully understood: he is going to die. Petitioner discovered that another inmate (Valeroso) to whom he confided the matter, had divulged the existence of the letters to Bernardo and Bernardino. At the time he was hit at the back of his head, petitioner was able to turn around and saw his assailant, later identified as Quirante, who ran away through the gate leading to the "talipapa" where petitioner

lost sight of him. Petitioner then saw two persons standing near the entrance of the "talipapa" and shouted at one of them asking for the identity of his assailant and if he saw the incident. However, the man just kept mum. As petitioner realized that blood was oozing from his head, he immediately went to the Infirmary. The day after the incident, Bernardo and Bernardino along with fellow inmates Aprid, Virgilio Adrales, Rogelio Aguilar, Amable Bendoy, Arnel Modrigo, Alfred Magno and Vergel Bustamante, were brought to the investigation section. In the course of the investigation, Quirante and Ceballos admitted their participation in the attack on petitioner and the information they provided was summarized by the investigating officer as follows: xxxx While the investigation was in progress, inmates Roberto Ceballos and Constantino Quirante voluntarily surfaced admitting their participation in the clubbing of Miller. After having been informed of their constitutional rights, the two during interrogation and without second thought, narrated in detail how and why they attempted to kill Miller in the following manner: At around 10:30 A.M. of January 6, 1999, in whiling the time under the shade of a tree in a basketball court of the Medium Security Camp, Quirante and Ceballos were approached by Aprid and Bernardino to engage their services and offered an amount of P1,500.00 to kill Miller. Being in dire need of money at the very moment, Quirante and Ceballos accepted the offer. Quirante admitted treacherously hitting Miller at the back of his head with a piece of wood but for failing to get him with one blow, he had to flee. On the other hand, Ceballos admitted as the lookout and was asked by Miller the identity of his assailant right after he was clubbed. Accordingly, what motivated them to reveal everything is the fact that only P100.00 was paid in advance to them by Bernardino and Aprid and the balance of P1,400.00 as promised to be paid sooner was never fulfilled. The duo even signified their intention to reduce their participation in writing to authenticate the admission of their guilt. However, in the absence of a lawyer to assist them and to safeguard their constitutional rights, the officer on case opted not to do so. To ascertain the veracity of Ceballos and Quirantes confession, a confrontation was made at the Directors Office. Several inmates were lined-up with Ceballos and Quirante. Miller when asked to identify his assailant, he spontaneously pointed to Quirante as the one who clubbed him on the head and likewise pointed to Ceballos as the man whom he had shouted at asking for the identity of his assailant. x x x x7 On the basis of the foregoing, PGIII Lopez recommended that Quirante and Ceballos be charged with Frustrated Murder and the case be placed under further investigation "pending the establishment of sufficient evidence to indict inmates Rodolfo Bernardo, Giovan Bernardino and Ace Aprid."8 On February 10, 1999, the case was endorsed to the Office of the City Prosecutor submitting to the said office the following documents: (1) Investigation Report of PGIII Lopez;

(2) Sworn Statement of petitioner; (3) Medical Certificate; (4) Routing Slip of Supt. Agalo-os; and (5) petitioners letters dated November 21, 1998 and December 27, 1998 addressed to the NBP Superintendent.9 The case was docketed as I.S. No. 99-B-01314. On March 30, 1999, Prosecutor Antonio V. Padilla issued his resolution10 finding the evidence sufficient to charge Quirante with attempted murder while dismissing the case against Ceballos for insufficiency of evidence, thus: Anent the charge against Giovan Bernardino and Rodolfo Bernardo, we noticed that the same is merely anchored on suspicion and conjecture. Except the bare allegations of the complainant, nothing would link them to the assault against the complainant. In fact, their names were not even mentioned in the referral letter, dated February 10, 1999, of the Bureau of Corrections addressed to our Office. WHEREFORE, premises considered, the undersigned respectfully recommends that the attached Information be filed in court. Further, it is recommended that the charge against Ceballos be dismissed on ground of insufficiency of evidence. As to the charge against Bernardino and Bernardo the same is likewise recommended dismissed on ground of insufficiency of evidence without prejudice to the refilling of same in the event that evidence against them may be unearthed by concerned authorities.11 (Italics supplied.) Thereafter, an information for attempted murder was filed against Quirante only in the Regional Trial Court (RTC) of Muntinlupa City (Branch 256), docketed as Criminal Case No. 99-452. On or about April 14, 1999, Quirante and Ceballos executed a joint affidavit in Tagalog ("Pinagsamang Sinumpaang Salaysay"12) which was sworn to before Prosecutor Padilla. They declared that at noontime of January 6, 1999, their services were engaged through their "Bosyo" or Commander, Rodrigo Toledo (Toledo), who told them that if they hit ("paluin") petitioner they will be paid P1,500 by Bernardino and Bernardo. Hence, they carried out the clubbing of petitioner by 2:00 in the afternoon of the same day infront of the volleyball court of the Medium Security Compound while petitioner was walking from the "talipapa." Quirante struck at petitioner from behind using a piece of wood and then ran away towards the "talipapa." Petitioner turned around and saw Ceballos whom he asked for the identity of his assailant. In pain and with bleeding wound on his head, petitioner momentarily sat down and then brought himself to the infirmary. Ceballos thought that petitioner did not recognize him since his face was then covered with shirt cloth. A day later, Toledo handed them P100 as initial payment, the balance to be paid by Bernardo and Bernardino also through Toledo. However, three days passed without the P1,400 being paid to them, until they were called to appear before the Directors office. When questioned during the investigation, they readily owned up to the assault on petitioner because Bernardino and Bernardo did not pay the agreed amount. The sworn statement of Quirante and Ceballos was corroborated by Toledo who likewise executed a "Sinumpaang Salaysay"13 on even date stating that as early as December 1998, Bernardo and Bernardino have been talking to him about their plan to have petitioner killed. Toledo being the leader of their group (BC 45) at the Medium Security Compound, Bernardo and Bernardino promised that they will pay whoever among his (Toledo) men can do it. Toledo

claimed that he initially declined but due to the daily conversations with Bernardo and Bernardino who also gave him food, he finally called on two of his men, Quirante and Ceballos, to carry out the plan to kill petitioner. He was confident that everything will be alright since Bernardo and Bernardino committed to pay P1,500 for the job. A day after the clubbing of petitioner, he gave Quirante and Ceballos P100 as initial payment by Bernardo and Bernardino for their services. Three days later, he learned that Quirante and Ceballos were summoned before the Directors Office in connection with the incident. He affirmed the truth of the admissions made by Quirante and Ceballos because Bernardo and Bernardino failed to comply with their undertaking. On December 2, 1999, Quirante, Ceballos and Toledo executed new affidavits14 in English, which were sworn to before Bureau of Corrections Assistant Director Joselito A. Fajardo and Prosecutor Leopoldo B. Macinas. These new affidavits gave a more detailed narration of the incident and pointed to Bernardo and Bernardino as the "masterminds" with Aprid being an accomplice. Bernardo and Aprid allegedly planned the killing of petitioner together with Toledo, the BC 45 Gang Commander, wherein Quirante agreed to be the one to kill petitioner while another gang member, Ceballos, would act as his lookout. The affidavits also mentioned what transpired during the preliminary investigation conducted by Prosecutor Padilla and the earlier April 1999 Tagalog affidavits they executed before Prosecutor Padilla. These documents were submitted during the reinvestigation conducted by Prosecutor Macinas.lawphi1 Bernardo and Bernardino submitted their Joint Counter-Affidavit15 dated January 19, 2000, stating that it was the second time they were being implicated in the case and pointing out that both investigations by the Investigation Section of the Bureau of Corrections and the Office of the City Prosecutor, Muntinlupa City showed that they have no participation in the commission of the offense. They asserted that the charges against them have no basis and the fruit of the wrong and malicious imputations of the witnesses. They denied having committed any violation of the rules and regulations of ICAD, of which Bernardo is Chairman while Bernardino is the Treasurer. They claimed that in the three years they have been serving the ICAD, the organization has more than progressed and benefitted their fellow inmates at the NBP. As to the statements given by Quirante, Ceballos and Toledo, and other witnesses, these are conflicting and muddled, showing so much evidence of them having been tutored. Bernardo and Bernardino likewise presented a "Sinumpaang Salaysay"16 executed by their witnesses, co-inmates Arnel Modrigo, Virgilio Adrales and Rogelio Aguilar. Said affiants declared that when petitioner approached them and asked if Aprid and Bernardo had anything to do with the incident, they plainly answered in the negative and told petitioner he should ask those persons instead. Everyday, petitioner goes to them asking them to pinpoint Aprid, Bernardo and Bernardino as the masterminds in order to strengthen the case against them. Petitioner even asked them to sign a handwritten letter17 prepared by petitioner himself, addressed to Supt. Agalo-os and which, while requesting for their transfer to the Medium Security dormitories, also affirmed the culpability of Aprid, Bernardo and Bernardino for the attempt on the life of petitioner. However, they refused to do so as they know there was no truth to the contents of said letter.

On March 20, 2000, Prosecutor Leopoldo Macinas issued his Memorandum18 addressed to the City Prosecutor finding probable cause against Quirante, Ceballos and Toledo in conspiracy with Bernardino, Aprid and Bernardo, for the crime of attempted murder. Prosecutor Macinas was convinced that the detailed account given by Quirante, Ceballos and Toledo were executed freely and voluntarily, and found no reason why they would incriminate their co-inmates other than the truth of the statements in their affidavits. On the other hand, the defenses proffered by Bernardo and Bernardino are evidentiary matters which can be best passed upon after a full-blown trial.1avvphi1 WHEREFORE, it is respectfully recommended that respondents Giovan Bernardino, Rod[o]lfo Bernardo, Rodrigo Toledo, Ace Aprid and Roberto Ceballos be all indicted by way of the herein attached amended information as co-conspirators of accused Constantino Quirante in attempting to kill George Miller, prima facie case having been established.19 Consequently, an Amended Information was filed with the RTC which included the names of Bernardino, Aprid, Bernardo, Toledo and Ceballos as co-conspirators in the crime of attempted murder. Bernardino filed a petition for review20 with the Department of Justice (DOJ) arguing that there was no sufficient evidence presented to support a claim of conspiracy, which was based merely on conflicting testimonies or affidavits in a language foreign to the affiants. He noted that the English affidavits pointed to three people as the masterminds when originally only two have been implicated by the perpetrators (Quirante and Ceballos). Petitioner filed his opposition,21 alleging that contrary to the claim of Bernardino, the Bureaus investigation was far from complete as the Report of PGIII Lopez itself stated that the case is recommended for further investigation "pending the establishment of sufficient evidence to indict inmates Rodolfo Bernardo, Giovan Bernardino and Ace Aprid". As to the Tagalog affidavits, petitioner pointed out that these could not have been produced during the preliminary investigation conducted by Prosecutor Padilla since the documents were executed only on April 14, 1999, two weeks after Prosecutor Padilla rendered his resolution. Further investigation by the Bureau led to the execution of two affidavits in Tagalog (Quirante, Ceballos and Toledo) without the knowledge of petitioner. However, said Tagalog affidavits "disappeared" and petitioner was not allowed access to the Investigation Sections file despite his complaints to Director Sistoza, the Bureau and DOJ. Prior to the November 25, 1999 hearing on reinvestigation, petitioner had new affidavits in English prepared with the assistance of a former Supreme Court interpreter (inmate Chua) and these were subsequently signed by Toledo, Quirante and Ceballos and sworn to before Prosecutor Macinas. Hence, the said documentary evidence was already considered in the March 20, 2000 Resolution of Prosecutor Macinas. Petitioner further alleged that Bernardo and Bernardino received thru registered mail copy of the March 20, 2000 Resolution on June 16, 2000 but the petition for review before the DOJ was actually filed only on July 27, 2000 but conveniently dated July 14, 2000. On March 21, 2002, public respondent, then Secretary of Justice Hernando B. Perez, issued his Resolution22 finding merit in the petition. According to Secretary Perez, the new affidavits of Quirante, Ceballos and Toledo are not credible considering "the length of time they were

executed since the commission of the crime" and also because said documents cannot be considered newly discovered evidence. He further noted that the affidavits were executed by the same persons investigated by the Bureau of Corrections and who all participated in the preliminary investigation of the case. At most, said affidavits can only be considered as "afterthought or made upon the prodding or influence of other persons." Public respondent thus ordered: WHEREFORE, the questioned resolution is MODIFIED. The City Prosecutor of Muntinlupa City is directed to amend the information to exclude accused Giovan Bernardino therefrom, and to report action taken within ten (10) days from receipt hereof. SO ORDERED.23 On March 25, 2002, a Motion to Admit Second Amended Information, which dropped the name of respondent Bernardino as one of the accused, was filed in court.24 Petitioner filed a motion for reconsideration which was denied under Resolution25 dated August 1, 2002. Aggrieved, petitioner elevated the case to the CA via a Petition for Certiorari under Rule 65. Petitioner argued that public respondent gravely abused his discretion in disregarding all material evidence presented which clearly showed that the affidavits of Quirante, Ceballos and Toledo had not been submitted during the preliminary investigation conducted by Prosecutor Padilla. Contrary to the pronouncement of the Secretary of Justice, the absence of said affidavits could not be construed as an irregularity in the conduct of preliminary investigation. This must be so since the March 30, 1999 resolution of Prosecutor Padilla explicitly stated that if and when evidence be unearthed by the concerned authorities, the case may still be re-filed against the other suspects, including Bernardo and Bernardino, for conspiracy in the attempted murder of petitioner. Petitioner also faulted the public respondent in granting the petition for review despite the same having been filed out of time, more than one month after receipt of the DOJ resolution.26 On June 14, 2004, the CA rendered its Decision sustaining the ruling of the Secretary of Justice, finding no grave abuse of discretion in the issuance of the questioned resolutions. Petitioners motion for reconsideration was likewise denied by the CA. Petitioner is now before this Court, alleging that THE HONORABLE COURT OF APPEALS COMMITTED SERIOUS ERRORS OF LAW, AND AS SUCH THE INSTANT PETITION SHOULD BE ALLOWED, WHEN, IN AFFIRMING THE DECISION OF THE SECRETARY OF JUSTICE DISREGARDING THE AFFIDAVITS OF THE WITNESSES DATED APRIL 14, 1999 AND DECEMBER 2, 1999, IT RELIED HEAVILY ON A MERE INFERENCE BASED NOT ON ESTABLISHED FACTS BUT ON ANOTHER INFERENCE.

THE HONORABLE COURT OF APPEALS COMMITTED SERIOUS ERRORS OF LAW, AND AS SUCH THE INSTANT PETITION SHOULD BE ALLOWED, WHEN, IN AFFIRMING THE DECISION OF THE SECRETARY OF JUSTICE REVERSING THE INVESTIGATING PROSECUTORS FINDINGS OF PROBABLE CAUSE AGAINST THE PRIVATE RESPONDENT, IT DEPARTED FROM THE ESTABLISHED FACTS, AND IN THE PROCESS, FAILED TO MAKE AN INDEPENDENT AND THOROUGH DETERMINATION OF THE EXISTENCE OF PROBABLE CAUSE IN LIGHT OF APPLICABLE LAWS, RULES AND JURISPRUDENCE.27 Petitioner contends that the CA erred in concluding that the decision of the Secretary of Justice was supported with factual basis notwithstanding that its conclusion that the new affidavits were executed upon the influence of persons who merely wanted to indict respondent Bernardino, was based merely on another inference - that there was considerable length of time before the said affidavits were executed. He assails the CA which, like the Secretary of Justice, closed its eyes on the clear indications of culpability appearing on the faces of the affidavits presented during the reinvestigation. The CA disregarded these pieces of evidence despite the same having established prima facie that respondent Bernardino is probably guilty of the charge, for the reason alone that since the Secretary of Justice himself "doubts the veracity of the affidavits of Quirante, Ceballos and Toledo, it would be embarrassing to compel [him] to prosecute the case." On the other hand, respondent Bernardino in his Comment argued that the "plain, speedy and adequate remedy" of petitioner from the ruling of the Secretary of Justice should have been the trial courts resolution of the "Motion for Leave to File Second Amended Information" which had been set for hearing, and not the petition for certiorari he filed before the CA. He also insists that only one copy of the March 20, 2000 Memorandum of Prosecutor Macinas was sent to the NBP which was addressed to petitioner. It was only on July 4, 2000 that his family was able to secure a copy from the Office of the City Prosecutor. As to the resolution of public respondent Secretary, respondent Bernardino maintains that the Secretary of Justice was correct in disregarding the new English affidavits as they were subscribed by unlettered affiants who can hardly speak Filipino and know only the Visayan dialect. On its part, the Office of the Solicitor General (OSG) prays for the dismissal of the petition as the Secretary of Justice committed no grave abuse of discretion in modifying the ruling of Prosecutor Macinas by ordering the exclusion of respondent Bernardino from the Information. Considering that the affidavits indicting respondent Bernardino were executed after the initial preliminary investigation and after an information was already filed in court, the Secretary of Justice was justified in giving less credence to the said evidence. We find the petition meritorious. Probable cause is defined as the existence of such facts and circumstances as would excite the belief in a reasonable mind, acting on the facts within the knowledge of the prosecutor, that the person charged was guilty of the crime for which he was prosecuted.28 To determine the existence of probable cause, there is need to conduct preliminary investigation. A preliminary investigation constitutes a realistic judicial appraisal of the merits of a case.29 Its purpose is to determine whether (a) a crime has been committed; and (b) whether there is a probable cause to

believe that the accused is guilty thereof. It is a means of discovering which person or persons may be reasonably charged with a crime.30 It is well-settled that the determination of probable cause for the purpose of filing an information in court is an executive function which pertains at the first instance to the public prosecutor and then to the Secretary of Justice.31 The Secretary of Justice may reverse or modify the resolution of the prosecutor, after which he shall direct the prosecutor concerned either to file the corresponding information without conducting another preliminary investigation, or to dismiss or move for dismissal of the complaint or information with notice to the parties.32 The Court considers it sound judicial policy to refrain from interfering in the conduct of preliminary investigations and to leave the Department of Justice ample latitude of discretion in the determination of what constitutes sufficient evidence to establish probable cause for the prosecution of supposed offenders.33 Its duty in an appropriate case is confined to the issue of whether the executive or judicial determination, as the case may be, of probable cause was done without or in excess of jurisdiction or with abuse of discretion amounting to want of jurisdiction.34 However, this Court may ultimately resolve the existence or non-existence of probable cause by examining the records of the preliminary investigation when necessary for the orderly administration of justice.35 Although policy considerations call for the widest latitude of deference to the prosecutors findings, courts should never shirk from exercising their power, when the circumstances warrant, to determine whether the prosecutors findings are supported by the facts, or by the law.36 In this case, Secretary Perez disregarded the new (English) affidavits executed by Quirante, Ceballos and Toledo, saying it was an afterthought or made simply upon the prodding or influence of other persons. He also stated that Quirante, Ceballos and Toledo all participated in the investigations of the Bureau of Corrections. No mention, however, was made of the fact that said new affidavits firmly reiterated what Quirante, Ceballos and Toledo declared in their earlier Tagalog affidavits and their verbal admissions during the investigation proceedings conducted by PGIII Lopez. These Tagalog affidavits in turn, although executed two weeks after the initial preliminary investigation conducted by Prosecutor Padilla, were properly admitted and considered by the investigating officer, Prosecutor Macinas who took over during the reinvestigation of the case. The recommendation of Prosecutor Padilla which initially found probable cause only against Quirante, explicitly reserved the inclusion of Bernardo and Bernardino whose complicity may eventually be established, by qualifying the dismissal of the case as against them for insufficiency of evidence, with the words "without prejudice to the refiling of the same in the event that evidence against them may be unearthed by concerned authorities." The reservation made by Prosecutor Padilla for the inclusion of other persons who may have had complicity in the commission of the crime was grounded on reasonable belief that there were other conspirators or masterminds, on the basis of the findings of PGIII Lopez during the investigation by the Bureau, the verbal admissions of Quirante and Ceballos as to their culpability and the alleged masterminds they identified. Hence, the English affidavits submitted during the reinvestigation cannot be considered an afterthought and executed merely upon the influence of certain persons, and Prosecutor Macinas properly admitted those in evidence.

Indeed, the English affidavits contained a reiteration and more detailed account of the clubbing incident earlier given by Quirante, Ceballos and Toledo in the Tagalog affidavits. In these affidavits executed on December 2, 1999, as well as in the Tagalog affidavits dated April 14, 1999, they were consistent in pointing to Bernardo and Bernardino as the masterminds with Aprid as accomplice, in the crime charged. Further, the English affidavits fully explained the circumstances as to why they were not able to give sworn statements during the Bureau investigation and initial preliminary investigation conducted by Prosecutor Padilla, before whom they subscribed their Tagalog affidavits, and the reason for the execution of new affidavits in English which were subscribed before Prosecutor Macinas. Thus, the pertinent portions of their individual affidavits in English read: Affidavit of Roberto Ceballos xxxx On January 9th 1999 at around 10:00 a.m. inmate Constantino Quirante was arrested by the ICA (Inmates Custodial Aide) who took him to the Overseers Office for interrogation. I was arrested shortly afterwards by the ICA and taken to their office also for investigation. Inmate Constantino Quirante and I were then confined to the Bartolina (disciplinary cell) where we remained for two months and twenty one days (2 mos. 21 days) before being transferred to the Maximum Security Compound. Shortly after being confined in the disciplinary cell at the Medium Security Compound, inmate Quirante and I were summoned to the Maximum Security Compound for interrogation. We first went to the office of Superintendent Agalo-os and made a joint statement which we did not sign as we were nervous and a lawyer (Ace Aprids counsel I think) was present. We were then taken to the ante-room of the Directors office where inmate Dr. George Miller was with an Inspector Lopez from the Bureaus Investigation Section and an [illegible] Inspector Lopezs questions in Tagalog and Dr. Miller asked why those people from ICAD wished to have him killed. We told him it was because he had informed on them with a report to the Superintendent. While confined in the Medium Security Compounds Bartolina we were visited by Giovan Bernardino who told us to keep quiet about what had happened and gave us hamburgers. He also promised us money but this never materialized. Later in the beginning of March we were escorted to the Muntinlupa City Prosecutors Office for a preliminary hearing. We were surprised nobody from ICAD was there but Miller said he would not prefer charges against us provided we turned States witnesses and deposed to a counteraffidavit exposing the "masterminds", those in fact who had commissioned the crime. Quirante and I requested the Asst. Prosecutor Padilla for a few days within which to think about submitting a counter-affidavit. The Asst. Prosecutor Padilla arranged a second preliminary hearing which was on the 11th March 1999 when we informed him we were still thinking it over. Afterwards when we were transferred to the Maximum Security Compound we discovered the Bureau of Corrections Investigation Section had commenced an inquiry into the management of ICAD. We were summoned to the Penal Superintendents office with inmate Rudy Toledo, when Quirante and I gave a joint affidavit with Toledo giving another of his own account. All three of us were then escorted to Assistant Prosecutor Padillas office in Muntinlupa City when we swore

in our respective affidavits. I understand from Dr. Miller these affidavits have been "misplaced" and he is unable to access copies from the Bureau of Corrections. I therefore agreed to execute another deposition which differs from the joint affidavit sworn earlier in that this is more thorough.37 Affidavit of Constantino Quirante xxxx On January 9th, I was urinating in front of building 5 when I was called to the office of Inspector Del Prado. I changed into my issue uniform at the brigada and proceeded to Inspector Del Prados office where I was arrested. I admitted to the "hit" on Miller and that I was acting on orders received from Boy Bernardo and Giovan Bernardino of ICAD given to the BC 45 gang commander, Rudy Toledo. I was then confined at the Medium Security Compounds disciplinary cell. Roberto Ceballos, who had been arrested and interrogated by the ICA joined me in the bartolina. Giovan Bernardino later visited us in the bartolina bringing hamburgers but no money. Upon his request I promised to keep quiet about the involvement of inmate Boy Bernardo and himself. He assured me not to worry and that everything would be taken care of. Round about Jan. 29th, Roberto Ceballos and I were escorted to the office of Superintendent Agalo-os at the Maximum Security Compound. We gave Superintendent Agalo-os a statement but did not sign it. I believe the attorney of Ace Aprid was present so Ceballos and I were nervous of signing. We were then taken to the ante room of the Directors office where inmate Miller was present with Inspector Lopez of the Investigation Section and an interpreter. We were asked a number of questions in Tagalog by Inspector Lopez and Dr. Miller asked why Bernardino and Bernardo wished him to be killed [illegible] myself provided we completed a counter-affidavit naming Bernardo and Bernardino as the "masterminds". Asst. City Prosecutor Padilla said he would give us some time to consider and he arranged a second preliminary hearing for March 11th 1999. At the second meeting we refused to give a counter-affidavit as we had not yet decided and also we were worried. Thereafter we were transferred to the Maximum Security Compound on the 30th of March. Approximately one month later we were called to the office of Superintendent Agalo-os with inmate Rudy Toledo. Ceballos and I prepared a joint affidavit for the Bureaus Investigation section and Rudy Toledo completed a sep[a]rate affidavit. These handwritten affidavits were photocopied in Super[intendent] Agalo-oss office by the Investigation Section Officer and at approximately 4:00 p.m. we were escorted into Assistant City Prosecutor Padillas office w[h]ere the affidavits were sworn. This further affidavit is made at the request of Dr. Miller, as I understand the prior affidavits sworn in front of Attorney Padilla have disappeared and he has not been allowed access to the Bureau of Correction[s] file copies with the Investigation Section. This affidavit is more comprehensive and better than our first joint affidavit which was hurriedly completed in manuscript.38

Toledos affidavit not only dovetailed with the above-mentioned circumstances surrounding the execution of the two sets of affidavits, but also positively identified Bernardo, Bernardino and Aprid as the masterminds and detailed how the crime was planned and carried out on January 6, 1999. Thus: xxxx On or about December 15th, 1998 I had a meeting with inmate Giovan Bernardino at the Inmates Crusade Against Drugs restaurant in the Medium Security Compound of Camp Sampaguita. The meeting was arranged by Giovan Bernardino when he spoke to me in my capacity as commander of the BC 45 Gang (Medium Security Compound) requesting that I arrange for some of my members to kill Dr. George Miller of the Inmates Crusade Against Drugs. He offered the sum of one thousand five hundred pesos (PHP 1,500.00) to be paid after the task was accomplished. Initially, I refused to accept this mission. Thereafter, we met several times in ICADs premises mainly, at the billiard table. At each meeting, he endeavoured to persuade me of that which he required earlier, namely to have some of my gang members kill inmate George Miller. Everytime I refused inmate Bernardino said there was no need to worry he was able to take care of everything afterwards. In January he contacted me again when I was invited to ICADs offices where I remember seeing a computer. Inmate Rodolfo "Boy" Bernardo, the Chairman of the Inmates Crusade Against Drugs was present with another ICAD member inmate, Ace Aprid, who was the Sigue Sigue Sputnik commander of the Medium Security Compound. Inmates Bernardo and Aprid were the colleagues of inmate Bernardino and all of them wanted Miller killed as they stated he had submitted a report concerning their activities in ICAD to Superintendent Agalo-os and was responsible for ICADs premises being subjected to a search by sniffer dogs at the Superintendents direction. Later I arranged for two of my gang members, inmates Constantino Quirante and Roberto Ceballos, who agreed to do as ICADs Bernardo, Bernardino and Aprid had requested. This was the morning of the 6th of January and it was agreed that Quirante would be the assassin while Ceballos was to be the "lookout." At the meeting it was planned that I would arrange for a distraction to take place simultaneously when Quirante and Ceballos where [sic] killing Miller. Inmate Millers movements to the High School and elsewhere that day were closely monitored and in the afternoon he went to the store of inmate Boy Sabater at the talipapa. I organized Sinulog Dancing for the BC 45 Gang anniversary at Camp Sampaguitas Plaza Compound with gang members to divert attention from Quirantes and C[e]ballos assassination of Miller. When the dancing was finished one of my men informed me that Miller was still alive and had been sent to the NBP Hospital from the Camp Sampaguita Infirmary. Quirante had struck Miller on the head from behind when he left the talipapa but failed to kill him. Afterwards inmates Giovan Bernardino and Ace Aprid gave Quirante and Ceballos the sum of one hundred pesos (PHP100.00). They were not paid the promised one thousand five hundred pesos (PHP1,500.00) as their "mission was not completed" in that they failed to kill Miller. In February I was transferred to the Maximum Security Compound where I met Dr. Miller and informed him that I was prepared to testify regarding the foregoing. Inmates Quirante and C[e]ballos had been transferred earlier to the Maximum Security Compound after confessing their involvement. Later the Bureau of Corrections carried out an investigation regarding the affairs of ICAD when Quirante, C[e]ballos and myself where [sic] summoned to the Penal

Superintendent Agalo-oss office. The Bureaus Investigation Section then took an affidavit from me and a joint affidavit was completed by Quirante and C[e]ballos. Thereafter we were escorted to the City Prosecutor[s] Office in Muntinlupa City where the affidavits were sworn in before the Assistant Prosecutor Padilla. Copies were taken for the Investigation Sections file. I was informed by Dr. Miller that the affidavits in the City Prosecutor[s] Office have "disappeared" and he had been prevented to date from accessing the Bureau of Corrections file, hence this further affidavit.39 Confronted with these evidence clearly showing prima facie that respondent Bernardino was among those involved in the crime committed against petitioner, Prosecutor Macinas was correct in finding probable cause, upon reinvestigation, to include respondent Bernardino along with Bernardo, Aprid, Quirante, Ceballos and Toledo as those who will be formally charged with attempted murder and recommending the filing of an amended information for this purpose. In modifying the said amended information by dropping the name of respondent Bernardino, Secretary Perez gravely abused his discretion, his conclusion that the new affidavits were mere afterthought being contrary to the facts on record. Besides, the Secretarys act of absolving respondent Bernardino arbitrarily ignored the consistent and categorical declarations of Quirante, Ceballos and Toledo that respondent Bernardino together with Bernardo and Aprid instigated, planned and ordered the attack on petitioner, harping solely on their belated execution of affidavits even if such delay have been satisfactorily explained. We need not over-emphasize that in a preliminary investigation, the public prosecutor merely determines whether there is probable cause or sufficient ground to engender a well-founded belief that a crime has been committed, and that the respondent is probably guilty thereof and should be held for trial.40 In a preliminary investigation, a full and exhaustive presentation of the parties evidence is not required, but only such as may engender a well-grounded belief that an offense has been committed and that the accused is probably guilty thereof. Certainly, it does not involve the determination of whether or not there is evidence beyond reasonable doubt pointing to the guilt of the person. Only prima facie evidence is required; or that which is, on its face, good and sufficient to establish a given fact, or the group or chain of facts constituting the party's claim or defense; and which, if not rebutted or contradicted, will remain sufficient. Therefore, matters of evidence, such as who are the conspirators, are more appropriately presented and heard during the trial.41 The term "probable cause" does not mean actual and 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.42 While it is this Courts general policy not to interfere in the conduct of preliminary investigations, leaving the investigating officers sufficient discretion to determine probable cause, courts are nevertheless empowered to substitute their judgment for that of the Secretary of Justice when the same was rendered without or in excess of authority.43 Where the Secretary of Justice dismissed the complaint against the respondent despite sufficient evidence to support a

finding of probable cause, such clearly constitutes grave error, thus warranting a reversal.44 The CA thus clearly erred in sustaining the ruling of Secretary Perez for the exclusion of respondent Bernardino from the charge of attempted murder despite a prima facie case against him having been established by the evidence on record. WHEREFORE, the petition for review on certiorari is GRANTED. The Decision dated June 14, 2004 and Resolution dated September 14, 2004 of the Court of Appeals in CA-G.R. SP No. 72395 are hereby REVERSED and SET ASIDE. The Secretary of Justice is hereby DIRECTED to REINSTATE or RE-FILE with deliberate dispatch the Amended Information which included Giovan Bernardino as accused in Criminal Case No. 99-452 of the National Capital Judicial Region, Regional Trial Court of Muntinlupa City, Branch 256. No costs. SO ORDERED.

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