RULE 112

CASE 1

BAUTISTA VS SARMIENTO

FACTS:

An information charging Fe Bautista, Milagros Corpus and Teresita Vergere with Estafa was filed before the sala of Judge Malcolm G. Sarmiento (Court of First Instance of Pampanga Branch 1)

Third accused, Teresita Vergere was granted a separate trial.

The prosecution presented during the trial the private complainant, Dr. Leticia C. Yap, as its only witness

Petitioners believing the prosecution failed to prove their guilt beyond reasonable doubt, moved to the dismissal of the case by way of demurrer to evidence

The grounds alleged in the Motion to Dismiss are as follows:

1. The information alleges that the two accused received jewelries from Dr. Leticia C. Yap on consignment, by virtue of purchase and sale.

2. That the prosecution failed to establish the prior demand to prove misappropriation on the part of the accused.

Respondent judge denied the motion

A motion for reconsideration was duly filed but was likewise denied for lack of merit

ISSUE:

Whether or not there has been a grave abuse of discretion on the part of the respondent judge in denying the motion to dismiss the complaint by way of demurrer to evidence

RULING:

The remedy of certiorari is improper. The respondent Judges order denying the petitioners motion to dismiss the complaint by way of demurrer to the evidence is merely an interlocutory order. It cannot, therefore, be the subject of a petition for certiorari. What should have been done was to continue with the trial of the case and had the decision been adverse, to raise the issue on appeal. There was no arbitrary exercise of judicial authority.

A prima facie case is that amount of evidence which would be sufficient to counter-balance the general presumption of innocence, and warrant a conviction, if not encountered and controlled by evidence tending to contradict it, and render it improbable, or to prove other facts inconsistent with it, and the establishment of a prima facie case does not take away the presumption of innocence which may in the opinion of the jury be such as to rebut and control it.

When the trial court denies petitioners motion to dismiss by way of demurrer to evidence on the ground that the prosecution had established a prima facie case against them, they assume a definite burden. It becomes incumbent upon petitioners to adduce evidence to meet and nullify, if not overthrow, the prima facie case against them.

When a prima facie case is established by the prosecution in a criminal case, the burden of proof does not shift to the defense. It is the burden of evidence which shifts from party to party depending upon the exigencies of the case in the course of the trial. Defendants evidence which equalizes the weight of plaintiffs evidence or puts the case in equipoise is sufficient.

The order of denying petitioners motion to dismiss, required them to present their evidence. They refused and/or failed to do so. This justified an inference of their guilt.

If the accused has no evidence to present or expressly waives the right to present it, the court has no alternative but to decide the case upon the evidence presented by the prosecution alone.

RULE 112

CASE 2

TALUSAN VS OFIANA

FACTS:

A criminal complaint for frustrated murder was filed by petitioner against private respondents Ventura Bartolome, Renato Valdecantos, Alfredo Valdecantos, Valentin Valdecantos, and Pito Valdecantos with the Municipal Court of San Rafael, Bulacan (Criminal Case No. 1112)

On the same date, a preliminary investigation (first stage) was conducted ex-parte by the municipal court which accepted the complaint and issued a warrant for the arrest of accused Ventura Bartolome and Alfredo Valdecantos, and also fixing their bail for their provisional release in the amount of P10,000.00 each.

Subsequently, the order was reconsidered by a new judge of the same municipal court, who issued a warrant of arrest for Renato Valdecantos and Pito Valdecantos as well, likewise fixing their bail at P10,000.00 each.

In a letter-complaint, private respondents Valentin and Alfredo Valdecantos, as complainants, filed two charges each for attempted murder against petitioner (I.S. Nos. 3607 and 3607-A) with the Office of the Provincial Fiscal of Bulacan.

The said charges arose out of the same incident which is also the basis of the complaint for frustrated murder filed by the petitioner.

Second stage of the preliminary investigation (Criminal Case No. 1112) was waived by private respondents and prayed that the case be remanded to the Court of First Instance of Bulacan (Baliwag), later docketed therein as Criminal Case No. 50-B.

In a petition filed with the Office of the Provincial Fiscal, private respondents asked for the reinvestigation of Criminal Case No. 50-B and its joint hearing with the preliminary investigation of I.S. Nos. 3607 and 3607-A.

The said petition for reinvestigation and joint hearing was opposed by the herein petitioner.

The petition was granted, with respondent assistant fiscal Ofiana scheduling the joint hearing of the aforesaid cases.

Petitioner-accused did not appear at the said hearing, despite notice, but instead filed the subject Petition for Certiorari and Prohibition with Preliminary Injunction (Civil Case No. 68-B) questioning respondent Provincial Fiscal and/or his assistants authority to proceed with the reinvestigation of Criminal Case No. 50-B jointly with the preliminary investigation Of I.S. Nos. 3607 and 3607-A.

Civil Case No. 68-B was dismissed for lack of merit.

Talusan then filed the herein petition, praying for a reversal of the said decision,

ISSUES:

1.Whether or not the lower court erred in holding that the respondent Provincial Fiscal and/or his assistant can properly and legally further reinvestigate Criminal Case No. 50-B

2.Whether or not the lower court erred in not finding that the accused are estopped to make the countercharges, I.S. Nos. 3607 and 3607-A, in the Office of the Provincial Fiscal because:

(1)Accused waived the regular preliminary investigation in the municipal court

(2)The countercharges are their very defenses which should have been made and/or filed in the municipal court

(3)The municipal court had first acquired jurisdiction over the case and the parties

3.Whether or not the lower court erred in holding that the respondent Provincial Fiscal and/or his assistant can properly and legally conduct a joint hearing of the reinvestigation in Crim. Case No. 50-B and the preliminary investigation of I.S. Nos. 3607 and 3607-A.

RULING:

1.No. The lower court did not err.

2.The private respondents should not be held in estoppel to file countercharges against petitioner, it has been stated that the doctrine of estoppel does not apply as against the people in criminal prosecutions. Attempted murder is a public offense, wherein it is the social and public interest that demand the punishment of the offender, hence, criminal actions for public offenses cannot be waived or condoned, much less barred by the rules of estoppel.

3.No. R.A. No. 5180, prescribing a uniform system of investigation by provincial fiscals and their assistants, expressly grants to said officers the ought to conduct a preliminary investigation of offenses cable by the Court of First Instance. The attempted murders charged in I.S. Nos. 3607 and 3607-A are also cognizable by the Bulacan CFI and arose out of the same incident which occurred in San Rafael, Bulacan. Since respondent fiscals can reinvestigate Criminal Case No. 50-B, there is no reason why the same cannot be heard by the Fiscal jointly with the preliminary investigation of I.S. Nos. 3067 and 3607-A. the joint hearing will save the time of the fiscal, of the parties and of their witnesses.

Ponsica vs. Ignalaga, L-72801, July 31, 1987 (Rule 112 Section 2)

FACTS:

Shortly after noon on September 20, 1985, an attempt was made by firemen and soldiers to disperse a crowd of demonstrators massed in front of the Municipal Building of Escalante, Negros Occidental, with the use first, of water spewed from fire hoses, and later, tear gas. Eventually there was gunfire. Within moments, rallyists lay dead on and by the National Road. The fatalities numbered fifteen (15), according to the military officers; twenty-nine (29), according to the demonstrators.

In the afternoon of that day, Escalante Town Mayor Braulio Lumayno, in view of the absence of the Municipal Circuit Court Judge (Emilio Ignalaga), took cognizance of a complaint filed by the Military Station Commander charging some of the rallyists with the felony of inciting to sedition, and after avowedly conducting an investigation of the witnesses presented by the complainant, issued an order for the arrest of certain of the demonstrators.

The petitioners however give a different version of the facts. What happened, according to them, was that at 9 o'clock in the morning on that day, a group of demonstrators, "composed mostly of laid-off sugar field workers," gathered in front of Escalante Municipal Hall "in the exercise of their constitutionally guaranteed right to freedom of expression and to assemble peacefully to petition the government for redress of grievances."10 About an hour afterwards, fire trucks arrived one after another, as well as jeeploads of soldiers and CHDF members, in full combat gear, Shortly after noon, after "going thru the motions of negotiating with the demonstrators," the military officers ordered the crowd to disperse; but without warning, fire hoses were trained on and sprayed water at the demonstrators. When the rallyists did not budge, tear gas canisters were thrown at them. A demonstrator picked up a canister and threw it at an "empty space in the plaza" The soldier and CHDF members thereupon fired indiscriminately at the crowd, killing 29 and injuring at least 30 persons.

After the Mayor had referred the case to Municipal Trial Court Judge Ignalaga on September 24, 1985,12 an "URGENT MOTION TO QUASH WARRANT OF ARREST" was filed on September 26, 1985 by petitioners' counsel on the ground that a mayor no longer has authority to conduct preliminary investigations or issue warrants of arrest that authority having been "withheld in the 1985 New Rules on Criminal Procedure."

This was opposed by the Station Commander14 who invoked Section 143 of the Local Government Code providing that "(i)n case of temporary absence of the Judge assigned to the municipality, the mayor may conduct the preliminary examination in criminal cases when, in his opinion the investigation cannot be delayed without prejudice to the interest of justice."

A reply was filed by the petitioners after their receipt of the opposition "only last October 8, 1985."15 They contended that the "power of the municipal mayor to conduct preliminary investigation and issue a warrant of arrest under the 1964 Revised Rules of Court** (had been) impliedly repealed by the 1985 New Rules on Criminal Procedure;" that "the 1985 New Rules on Criminal Procedure being a special law, controls over provisions of the Local Government Code (BP 337, 1983), which is a general law;" and in any case, "subject t warrants of arrest should be reviewed and revoked as done without observance of legal requisites."

By Resolution dated Oct. 11, 1985,16 the Judge confirmed the mayor's arrest order. He opined that in the absence of the judge, the mayor still has authority to conduct preliminary investigations and issue arrest warrants, since Rule 112, Sec. 2 (d), of the 1985 Rules, includes as among those authorized to conduct preliminary investigations, "Such other officers as may be authorized by law;" and the Local G government Code of 1983, Section 143, grants a town mayor authority to conduct preliminary examinations in case of the temporary absence of the judge when such investigation cannot be delayed without prejudice to the interest of justice. The Judge declared that in the case at bar, the mayor had conducted the examination personally, and having in the exercise of his discretion found probable cause, issued the warrants of arrest in question; and conceding arguendo irregularity in that the preliminary examination was conducted without according the parties the assistance of lawyers , this does not render the proceedings void because at any rate, the mayor had duly observed the uniform procedure under PD.

The petitioners filed a petition for certiorari and prohibition.

ISSUE:

Whether or not Section 143 of the Local Government Code granting power to the municipal mayor to conduct preliminary investigations and order the arrest of the accused, was repealed by the 1985 Rules on Criminal Procedure.

HELD:

As the law now stands, the mayor may no longer conduct preliminary investigation, the authority to do so being limited under Section 2, Rule 1 1 2 of the Rules of Court to (1) provincial or city fiscals and their assistants; (2) judges of the Municipal Trial Courts and Municipal Circuit Trial Courts; (3) national and regional state prosecutors; and (d) such other officers as may be authorized by law.57 But only "the judge" may issue search and arrest warrants after due determination of probable cause.

The evidence cannot justify the action taken by the respondent Mayor and Judge. The Court thus declares as sorely inadequate and mortally defective the avowed evidentiary foundation for Mayor Lumayno's finding of probable cause respecting the commission by the petitioners of the crime of inciting to sedition. The affiants declarations in their sworn statements which might otherwise be pertinent to the offense, are generalities, mere conclusions of their, not positive averments of particular facts within their personal knowledge.

WHEREFORE, the writs of certiorari and prohibition are granted. The order of respondent Mayor Lumayno issued on September 20, 1985 and the resolution promulgated by respondent Judge Ignalaga on October 11, 1985 are annulled and set aside, and the respondents are perpetually forbidden to enforce or in any way implement the orders for the arrest of any of the petitioners.

People vs. Villanueva L-56443, Dec. 19, 1981 (Rule 112 Section 6, Revised Rules of Court)

FACTS:

The city fiscal and an assistant fiscal of Butuan City filed in the city court on September 15, 1980 an information charging Rogelim Yee with serious slander by deed. It was alleged therein that in the afternoon of July 14, 1980 Yee with the deliberate intent of bringing one Ofelia V. Torralba, a fourth year student, into discredit, disrepute and contempt, willfully attacked and assaulted her and inflicted a contusion in her left cheek in the presence of her visitors, teachers and classmates to her great embarrassment and inconvenience (Criminal Case No. 11500).

The fiscal certified that he conducted the corresponding preliminary investigation and that there was probable cause or reasonable ground to believe that serious slander by deed was committed by Yee. He recommended bail in the amount of P600.

Respondent judge, instead of issuing a warrant of arrest, as has been the time- honored practice, conducted an ex parte preliminary examination by scanning the record to determine once more the existence of probable cause.

After a perusal of the affidavits, he concluded that the offense committed was either slight slander by deed committed in the heat of anger or slight physical injuries, a light felony. Because the information was filed sixty-four days after the offense was committed, respondent judge dismissed the case sua sponte on the ground of prescription. The dismissal order was issued on September 17, 1980 or two days after the filing of the information.

Respondent judge denied the fiscal's motion for reconsideration. The fiscal received a copy of the order of denial on January 6, 1981. The prosecution failed to appeal the order of dismissal to this Court, a procedure sanctioned by Republic Act No. 5440 in relation to section 5 of Republic Act No. 5967, a 1969 law which expanded the jurisdiction of city courts and which up to this time is not known to some lawyers and judges.

Long after the issuance of the order of dismissal, or on March 17, 1981, the city fiscal and his assistant filed in this Court the instant petition for certiorari and mandamus wherein they assailed the order of dismissal on the ground of grave abuse of discretion amounting to lack of jurisdiction.

The fiscals' petition cannot be entertained because, as expressly indicated in sections 1 and 2, Rule 65 of the Rules of Court, generally, certiorari and mandamus are not proper when ordinary appeal is available as an adequate remedy. As a rule, certiorari is not a substitute for an appeal.

ISSUE:

WoN Judges have the authority to dismiss outright the information if the judge believes that there is no probable cause?

HELD:

Undoubtedly, respondent judge, before issuing the warrant of arrest, is clothed with the prerogative of ascertaining probable cause. That power is granted to him by section 3, Article IV (Bill of Rights) of the Constitution which provides that "no 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".

The power is also granted to any judge authorized to conduct preliminary investigations and respondent judge is given that authority by section 6, Rule 112 of the Rules of Court and by the charter of Butuan City, Republic Act No. 523.

But that power does not include the authority to dismiss outright the information if the judge believes that there is no probable cause. The judge should require the fiscal to present additional evidence to show probable cause. If the fiscal refuses to do so, then the case may be dismissed for "lack of prosecution" (Amarga vs. Abbas, 98 Phil. 739, 743).

The fiscal is also authorized to determine probable cause not only by the Bill of Rights but also by the law or rule empowering him to conduct preliminary investigations (Secs. 2 and 14, Rule 112, Rules of Court: Sec. 1687 of the Revised Administrative Code as amended by Republic Acts Nos. 732 and 1799 and Republic Act No. 5180 as amended by Presidential Decrees Nos. 77 and 911).

The fiscal is a "responsible officer authorized by law" within the meaning of section 3 of the Bill of Rights. His determination of probable cause is a sufficient justification for the issuance of a warrant of arrest.

Thus, it was held that "in a clash of views between the judge who did not investigate and the fiscal who did, or between the fiscal and the offended party or the defendant, those of the fiscal's should normally prevail" (People vs. Pineda, 65 O.G. 2595, 20 SCRA 748, 756).

This case illustrates the mischief or prejudice arising from the act of the city judge in duplicating the preliminary examination held by the fiscal. Here, respondent judge on the pretext of determining probable cause arrived at the conclusion (before arraignment) that the criminal liability of the accused was extinguished by prescription.

What respondent judge actually did was not to verify whether the fiscal's determination of probable cause was correct but to find out whether the criminal liability of the accused was already extinguished, which is a different matter. Extinction of criminal liability presupposes not merely probable cause but the guilt of the accused.

Although in the instant case we find that the city court erred in dismissing the case on its own motion on the controversial ground of prescription, nevertheless, the petition has to be dismissed because no appeal was seasonably made from the dismissal order and certiorari and mandamus are not substitutes for an appeal that had lapsed.

Sol. Gen. vs. Garrido L-28535, Oct. 10, 1980

Facts:

A complaint against Director Quiason and a certain P. Portugal for violation of the Civil Service Law, rules and regulations was filed in the court of first instance.

Court ruled that at such stage of the investigation before the office of the City Fiscal, a government official, like petitioner Director Quiason in this litigation, can avail himself of the services of the Office of the Solicitor General, if the offense imputed to him arose from the exercise of an official function.

During the preliminary investigation held by Assistant Fiscal Solidum, the counsel for the complainant objected to the appearance of Solicitor [Raquel-Santos] in representation of the Solicitor General on the ground that the Solicitor General is not authorized by law to appear as counsel on behalf of a public official who is being accused criminally in his private capacity.

a preliminary injunction was issued by respondent Judge Francisco Geronimo, restraining the Solicitor General or any of his Assistants from further appearing in the preliminary investigation of this case in the office of the City Fiscal and the City Fiscal or any of his Assistants from allowing the Solicitor General or any of his Assistants to appear thereat, until further orders from the Court.

A petition for certiorari was filed in the SC

Issue:

WON the Solicitor General is authorized by law to appear as counsel on behalf of a public official who is being accused criminally in his private capacity.

Held:

Yes. what is involved is the exercise of executive authority. Not much reflection is needed to show that if in the performance thereof not only by the President by officials in the executive department, they could be subjected to suits, whether ill-founded or not, the possibility of delay in the implementation of applicable statutes and decrees would not be remote, For parties adversely affected could, by threats of possible criminal prosecution stay the hand of the officials concerned.

6. URBANO VS CHAVEZ

FACTS:

This is a case of consolidated petitions of G.R. No. 87977and G.R. No. 88578

G.R. 87977

Petitioners Urbano and Acapulco instituted a criminal case against Secretary Luis Santos et al, for alleged violation of the provisions of RA No. 3019, known as the Anti-Graft and Corrupt Practices Act

The complaint was filed with the Office of the Ombudsman

The Office of the Solicitor General entered its appearance as counsel for the respondents as far as the preliminary investigation of the case is concerned.

A special civil action for prohibition was filed by the petitioners seeking to enjoin the Solicitor General from acting as counsel for the said respondents in the course of the preliminary investigation.

G.R. 88578

Petitioner Nemesio G. Co filed an Amended Complaint for damages against Solicitor General Francisco I. Chavez et al with RTC Branch 165 Pasig

The Amended Complaint alleged that defendant Chavez caused to be published defamatory imputations against the petitioner in an article appeared in the December 4, 1987 issue of Business World, a periodical publication in Metro Manila, and that he caused the publication thereof by way of an interview characterized by bad faith and actual malice; and that the defamatory remarks impute that he was involved in some anomalous transactions relating to the funds of the national government during the time that President Marcos was in office.

At the time of the publication of the questioned article, SolGen Chavez was the counsel of the PCGG responsible for the investigation of alleged graft and corrupt practices relating to the former President, his relatives and his close associates.

Private defendants filed a joint Motion to Dismiss

Office of the Solicitor General sought an extension of time to file the required responsive pleading, then filed a Motion to Dismiss. Thereafter, the trial court set the case for oral argument.

During the scheduled oral argument, the counsel of the petitioner objected to the appearance of the OSG. The court issued an Order suspending the proceedings and instructed the parties to submit their respective positions on the propriety of the appearance of the said Office for the SolGen himself, from which the parties complied.

By way of a Motion seeking the disqualification of the OSG to act as counsel of SolGen Chavez, the petitioner manifested that he is suing SolGen in his personal capacity for acts which he committed beyond the scope of his authority and as such he cannot be represented by the said office.

OSG, on the other hand, manifested the objection of the petitioner and that notwithstanding, it is authorized to represent any public official even if the said official is sued in his personal capacity pursuant to the unconditional provisions of PD No. 478 and EO No. 300, citing the ruling in Anti-Graft League of the Philippines, Inc. in support of the contention; and also maintained that the cause of action against the SolGen is for acts committed by him in his official capacity.

Petitioner submitted his Reply thereto, alleging therein, among others, that the argument of the SolGen is untenable inasmuch as the expression of his views by way of an interview subsequently featured in an article is not an official function

The Court denied the Motion of the petitioner for lack of merit

Petitioner sought a reconsideration

OSG opposed the reconsideration

Petitioner filed a Reply to the Opposition

OSG, in turn, file a Rejoinder to the Reply

The Court denied the reconsideration

Thus, the Order of the trial court is challenged on the ground that the same amounts to a grave abuse of discretion amounting to lack of jurisdiction on the part of the trial court; and to order the OSG to desist from representing the SolGen in the civil suit for damages.

ISSUE:

Whether or not the OSG can represent a public officer or employee in the preliminary investigation of a criminal action against him or in a civil action for damages against him

RULING:

The Court consolidated the petitions and treated them as Petitions for certiorari on pure questions of law in accordance with the provisions of the Rules of Court

No. The OSG cannot represent a public officer in either criminal or civil action against the latter.

The rationale behind the rule:

(1) OSG to represent a public official during the preliminary investigation of his case, and which prohibits the said office from further representing the said public official when an information is filed against him with the appropriate court:

In Anti-Graft League of the Philippines Inc., this Court stressed that in the performance of their duties, public officials can be subjected to numerous suits, whether ill-founded or not, and that by threats of possible criminal prosecution, parties adversely affected by official action can stay the hand of the public official concerned.

The Court concluded that as an assurance against timidity, the OSG sees to it that the public officials concerned are duly represented by counsel

(2) To why the public official concerned may no longer be represented by the OSG:

The said Office may no longer represent him considering that its position as counsel for the accused will be in direct conflict with its responsibilities as the appellate counsel of the People of the Philippines in all criminal cases

This anomalous situation could not have been contemplated and allowed by the law, its unconditional terms and provisions notwithstanding. It is a situation which cannot be countenanced by the Court.

Thus, the Court rules that the OSG is not authorized to represent a public official at any stage of a criminal case. For this reason, the doctrine announced in Anti-Graft League of the Philippines, Inc. v. Hon. Ortega and SolGen v. Garrido, and all decided cases affirming the same; in so far as they are inconsistent with this pronouncement, should be deemed abandoned.

This observation should apply as well to a public official who is haled to court on a civil suit for damages arising from a felony allegedly committed by him. The OSG likewise has no authority to represent him in such a civil suit for damages.

Accordingly, the Court is of the opinion, and so holds that the OSG is not authorized to represent a public official at any stage of a criminal case or in a civil suit for damages arising from a felony. This pronouncement applies to all public officials and employees in the executive, legislative and judicial branches of the Government.

Placer vs. Villanueva L-60349-62, Dec. 29, 1983

Facts:

Fiscal of Butuan City and his assistants filed in the City Court of Butuan an information for slight physical injuries, violation of PD 1306, violation of BP 22, estafa, malicious mischief, usurpation of authority, alarm and scandal, and Grave oral defamation (Criminal cases 1209-1222) against the herein accused after conducting a preliminary investigation.

Following receipt of said informations, respondent judge issued an order setting on April 5, 1982 the hearing of said criminal cases for the purpose of determining the propriety of issuing the corresponding warrants of arrest. After said hearing, respondent issued the questioned orders dated April 13, 15, 16 and 19, 1982, requiring petitioners to submit to the court the affidavits of the prosecution witnesses and other documentary evidence in support of the informations to aid him in the exercise of his power of judicial review of the findings of probable cause by petitioners.

Petitioners filed two separate motions for reconsideration of said orders, contending that under P.D. Nos. 77 and 911, they are authorized to determine the existence of a probable cause in a preliminary examination/investigation, and that their findings as to the existence thereof constitute sufficient basis for the issuance of warrants of arrest by the court. On April 28, 1982, respondent judge denied said motions and reiterated his order to petitioners to submit the supporting affidavits and other documents within five (5) days from notice.

Hence, petitioners filed a petition for certiorari and mandamus to set aside the aforesaid orders and to compel respondent Judge to issue warrants of arrest.

Meanwhile, the respondent, in addition to his duties as presiding judge of Branch I of the City Court of Butuan, was also assigned to preside over Branch II of said court, as Judge Jesus Ruiz, presiding judge of said sala, had retired from the service. The informations filed by petitioners in Branch II likewise remained dormant because of respondent's firm refusal to issue the corresponding warrants of arrest for want of affidavits of the witnesses. Thus, as disclosed by petitioner's urgent motion, no warrants had been issued in 113 informations as of July 15, 1982.

On July 12, 1982 the respondent Judge received the resolution requiring him comment on the petition. However, despite the said order the respondent Judge issued an Omnibus Order directing the petitioners to submit immediately the supporting affidavits and other evidence in Criminal Cases Nos. 12209-12222. Having failed to secure a reconsideration of said Omnibus Order, petitioners finally submitted the required affidavits and documents on July 15, 1982 in order to avoid further delay in the prosecution of these cases which rendered the instant petition moot and academic.

But while respondent gave due course to some of said cases either by issuing the warrants of arrest or taking some other appropriate action, he refused to issue the warrants in Criminal Cases Nos. 12417, 12418, 12419, 12420 and 12422, (alarm and scandal, Grave oral defamation, estafa, estafa, and estafa respectively) and instead ordered the records thereof remanded to the City Fiscal "for further preliminary investigation or reinvestigation," for on the bases of said affidavits, respondent found no prima facie case against the accused.

Petitioners therefore filed a motion with this Court to restrain respondent from enforcing the orders subject of the main petition and to compel him to accept, and take cognizance of, all the informations filed in his court. They contend that the fiscal's certification in the information of the existence of probable cause constitutes sufficient justification for the judge to issue a warrant of arrest; and that such certification binds the judge, it being supported by the presumption that the investigating fiscal had performed his duties regularly and completely.

The respondent Judge justifies his orders as an exercise of his judicial power to review the fiscals findings of probable cause and failure on the part of the petitioners to file the required affidavit destroyed the presumption of regularity in the performance of the petitioners official duties, particularly in the light of the long standing practice of the Office of the City Fiscal of Butuan of attaching to the informations filed with the court the affidavits of prosecution witnesses and other documentary evidence presented during the preliminary investigation.

Issue:

The issue to be resolved is whether or not the respondent city judge may, for the purpose of issuing a warrant of arrest, compel the fiscal to submit to the court the supporting affidavits and other documentary evidence presented during the preliminary investigation.

Ruling:

The SC sustained the position of the respondent Judge.

There is thus no dispute that the judge may rely upon the fiscal's certification of the existence of probable cause and, on the basis thereof, issue a warrant of arrest, But does such certification bind the judge to come out with the warrant? We answer this query in the negative. 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 provisions of Section 6, Rule 112 of the Rules of Court.

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 fiscals 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.

Abdula vs. Guiani L-118821, Feb. 18, 2000

Facts:

One June 24 1994, a complaint for murder was filed before the Criminal Investigation Service Command ARMM Regional Office XII against herein petitioners and six (6) other persons in connection with the death of a certain Abdul Dimalen, the former COMELEC Registrar of Kabuntalan, Maguindanao. The complaint alleged that herein petitioners paid the six other respondents the total amount of P200,000.00 for the death of Abdul Dimalen.

The provincial prosecutor Salik Panda dismissed the said complaint for lack of prima facie case for murder against the accused. Prosecutor Panda, however, recommended the filing of an information for murder against one of the respondents, a certain Kasan Mama. Pursuant to this Resolution, an information for murder was thereafter filed against Kasan Mama before the sala of respondent Judge.

The respondent Judge in an order dated Sept. 13 1994 ordered that the case be returned to the Provincial Prosecutor for further investigation. In this Order, respondent judge noted that although there were eight (8) respondents in the murder case, the information filed with the court "charged only one (1) of the eight (8) respondents in the name of Kasan Mama without the necessary resolution required under Section 4, Rule 112 of the Revised Rules of Court to show how the investigating prosecutor arrived at such a conclusion." As such, the respondent judge reasons, the trial court cannot issue the warrant of arrest against Kasan Mama.

Upon the return of the records of the case to the Office of the Provincial Prosecutor for Maguindanao, it was assigned to 2nd Assistant Prosecutor Enok T. Dimaraw for further investigation. In addition to the evidence presented during the initial investigation of the murder charge, two new affidavits of witnesses were submitted to support the charge of murder against herein petitioners and the other respondents in the murder complaint. Thus, Prosecutor Dimaraw treated the same as a refiling of the murder charge and pursuant to law, issued subpoena to the respondents named therein. On December 6, 1994, herein petitioners submitted and filed their joint counter-affidavits.

After evaluation of the evidence, Prosecutor Dimaraw, in a Resolution dated 28 December 1994, found a prima facie case for murder against herein petitioners and three (3) other respondents. He thus recommended the filing of charges against herein petitioners Bai Unggie Abdula and Odin Abdula, as principals by inducement, and against the three (3) others, as principals by direct participation.

Prosecutor Panda inhibits himself from the case for the victim was the father-in-law of his son.

On 2 January 1995, an information for murder dated 28 December 1994 was filed against the petitioner spouses and Kasan Mama, Cuenco Usman and Jun Mama before Branch 14 of the Regional Trial Court of Cotabato City, then the sala of respondent judge. This information was signed by investigating prosecutor Enok T. Dimaraw. A notation was likewise made on the information by Provincial Prosecutor Panda, which explained the reason for his inhibition.

The following day, or on 3 January 1995, the respondent judge issued a warrant for the arrest of petitioners. Upon learning of the issuance of the said warrant, petitioners filed on 4 January 1995 an Urgent Ex-parte Motion for the setting aside of the warrant of arrest on 4 January 1995. In this motion, petitioners argued that the enforcement of the warrant of arrest should be held in abeyance considering that the information was prematurely filed and that the petitioners intended to file a petition for review with the Department of Justice.

Subsequently an information was filed against the petitioners.

On January 3, 1995 the respondent Judge issued warrants of arrest. Upon knowledge of the said warrant, an Urgent Ex-parte Motion for the setting aside of the warrant of arrest on 4 January 1995. In this motion, petitioners argued that the enforcement of the warrant of arrest should be held in abeyance considering that the information was prematurely filed and that the petitioners intended to file a petition for review with the Department of Justice. And a petition for review was filed before the DOJ. Despite said filing, respondent judge did not act upon petitioners pending Motion to Set Aside the Warrant of Arrest.

Hence, this Petition for Certiorari and Prohibition wherein petitioners pray for the following:

"1. upon filing of this petition, a temporary restraining order be issued enjoining the implementation and execution of the order of arrest dated January 3, 1995 and enjoining the respondent judge from further proceeding with Criminal Case No. 2376 entitled People of the Philippines vs. Bai Unggie D. Abdula, et al. upon such bond as may be required by the Honorable Court;

2. this petition be given due course and the respondent be required to answer;

3. after due hearing, the order of arrest dated January 3, 1995 be set aside and declared void ab initio and the respondent judge be disqualified from hearing Criminal Case No. 2376 entitled People of the Philippines vs. Bai Unggie D. Abdula, et al.

Issue:

1. Whether or not the alleged information charging petitioners with murder is null and void because it was filed without the authority of the Provincial Prosecutor.

2. Whether or not the warrants of arrest was validly issued.

Ruling:

1st issue:

Petitioners contention is not well-taken.

The pertinent portion of the Rules of Court on this matter state that "no complaint or information shall be filed or dismissed by an investigating fiscal without the prior written authority or approval of the provincial or city fiscal or chief state prosecutor." In other words, a complaint or information can only be filed if it is approved or authorized by the provincial or city fiscal or chief state prosecutor.

In the case at bench, while the Resolution and the Information were not approved by Provincial Prosecutor Salick U. Panda, the filing of the same even without his approval was authorized. Both the Resolution and information contain the following notation:

"The herein Provincial Prosecutor is inhibiting himself from this case and Investigating Prosecutor Enok Dimaraw may dispose of the case without his approval on the following ground:

That this case has been previously handled by him, and whose findings differ from the findings of Investigating Prosecutor Dimaraw; and the victim is a relative by affinity, he being a father-in-law of his son.

It must be stressed that the Rules of Court speak of authority or approval by the provincial, city, or chief state prosecutor. The notation made by Prosecutor Panda clearly shows that Investigating Prosecutor Dimaraw was authorized to "dispose of the case without his approval." In issuing the resolution and in filing the information, the investigating prosecutor was acting well within the authority granted to him by the provincial prosecutor. Thus, this resolution is sufficient compliance with the aforecited provision of the Rules of Court.

2nd issue:

After a careful analysis of these arguments, we find merit in the contention of petitioners. To wit: that the respondent judge "did not personally examine the evidence nor did he call the complainant and his witnesses in the face of their incredible accounts." As proof, he points to the fact that the information was filed at around 4:00 p.m. of the January 2, 1995 and the order of arrest was immediately issued the following day or on January 3, 1995. Moreover, petitioner argues, respondent judge did not even issue an order stating that there is probable cause for the issuance of the warrant of arrest, a clear violation of the guidelines set forth in the Allado case.

The pertinent provision of the Constitution reads:

"Section 2 [Article III]. 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."

It must be stressed that the 1987 Constitution requires the judge to determine probable cause "personally," a requirement which does not appear in the corresponding provisions of our previous constitutions. This emphasis evinces the intent of the framers to place a greater degree of responsibility upon trial judges than that imposed under previous Constitutions.

In the case at bench, respondent admits that he issued the questioned warrant as there was "no reason for (him) to doubt the validity of the certification made by the Assistant Prosecutor that a preliminary investigation was conducted and that probable cause was found to exist as against those charged in the information filed." The statement is an admission that respondent relied solely and completely on the certification made by the fiscal that probable cause exists as against those charged in the information and issued the challenged warrant of arrest on the sole basis of the prosecutors findings and recommendations. He adopted the judgment of the prosecutor regarding the existence of probable cause as his own.

Clearly, respondent judge, by merely stating that he had no reason to doubt the validity of the certification made by the investigating prosecutor has abdicated his duty under the Constitution to determine on his own the issue of probable cause before issuing a warrant of arrest. Consequently, the warrant of arrest should be declared null and void.

WHEREFORE, premises considered, the petition for certiorari and prohibition is GRANTED. The temporary restraining order we issued on 20 February 1995 in favor of petitioners insofar as it enjoins the implementation and execution of the order of arrest dated 3 January 1995 is made permanent. Criminal Case No. 2376 is REMANDED to Branch 14 of the Regional Trial Court of Cotabato City for a proper determination of whether a warrant of arrest should be issued and for further proceedings.

Sales Vs Sandiganbayan GR 143802

FACTS

On August 2, 1999, petitioner, the incumbent town mayor of Pagudpud, Ilocos Norte, fatally shot the former mayor and his political rival, Atty. Rafael Benemerito, in an alleged shootout in Barangay Caparispisan of said municipality after a heated altercation between them. After the shooting incident, petitioner surrendered and placed himself under the custody of the municipal police then asked that he be brought to the Provincial PNP Headquarters in Laoag City.

Judge Calvan then conducted a preliminary examination of the witnesses, found the existence of probable cause, and thereafter issued an order dated August 3, 1999 for the issuance of a warrant for the arrest of petitioner with no bail recommended. By virtue of the warrant of arrest, petitioner was transferred on August 4, 1999 from the Provincial PNP Headquarters to the Provincial Jail.

Petitioner filed a petition for habeas corpus with the Court of Appeals docketed as CA-G.R. SP No 54416, alleging that: 1.] the order and warrant of arrest for which petitioner was detained is null and void for being issued by respondent judge who was disqualified by law from acting on the case by reason of his affinity to private respondent Thelma Benemerito (Respondent judge is married to Susana Benemerito-Calvan, whose father is a brother of the victim.); and 2.] the preliminary examination by respondent judge was so illegally and irregularly conducted as to oust the said judge of jurisdiction over the case.

In a Decision dated November 18, 1999, the appellate court granted the petition for habeas corpus and ordered the release of petitioner from detention subject to the outcome of the proper preliminary investigation.

There are four affidavits on record which state in categorical terms that it was the victim who first fired at petitioner with his Armalite rifle and that petitioner merely returned fire. An Armalite rifle and empty shells were recovered from the scene of the incident by the PNP and impounded by it. some of the shells correspond to the Armalite rifle, thereby indicating that the firearm was fired. The Ombudsman, however, neither called for the production of the firearm and the empty shells, nor did he ask for the production of the ballistic and laboratory examinations of the bloodstains on the Armalite rifle despite the statement by the Provincial Fiscal of Ilocos Norte that these pieces of evidence were all available.

On May 25, 2000, Graft Investigation Officer II Cynthia V. Vivar issued a Resolution recommending the filing of an Information for Murder against petitioner and four other before the Sandiganbayan. The recommendation was approved by the Ombudsman on June 16, 2000.

The petitioner then filed a Motion To Defer Issuance Of Warrant Of Arrest pending determination of probable cause dated June 22, 2000. The motion was denied by Sandiganbayans Fourth Division in the challenged Resolution of July 13, 2000.

ISSUES

Whether or not the Ombudsman followed the proper procedure in conducting a preliminary investigation and, corollarily, whether or not petitioner was afforded an opportunity to be heard and to submit controverting evidence.

Whether or not the petitioner was denied due process due to lack of preliminary investigation.

HELD

SETTING ASIDE the Resolutions of the Sandiganbayan dated July 13, 2000 and the Resolution of Graft Investigation Officer II Cynthia V. Vivar dated May 25, 2000 in Criminal Case No. 26115;

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

REMANDING the case to the Ombudsman for completion of the preliminary investigation

RATIO DECIDENDI : The right to have a preliminary investigation conducted before being bound over to trial for a criminal offense and hence formally at risk of incarceration or some other penalty, is not a mere formal or technical right; it is a substantive right. To deny the accuseds claim to a preliminary investigation would be to deprive him of the full measure of his right to due process. A preliminary investigation serves not only the purposes of the State. More important, it is a part of the guarantee of freedom and fair play which are the birthrights of all who live in our country. It is therefore imperative upon the fiscal or the judge, as the case may be, to relieve the accused from the pain of going through a trial once it is ascertained that the evidence is insufficient to sustain a prima facie case or that no probable cause exists to form a sufficient belief as to the guilt of the accused.

Matalam Vs Sandiganbayan

FACTS

An information dated 15 November 2004 was filed before the Sandiganbayan charging petitioner Datu Guimid Matalam, Habib A. Bajunaid, Ansari M. Lawi, Muslimin Unga and Naimah Unte with violation of Section 3(e) of Republic Act No. 3019, as amended, for their alleged illegal and unjustifiable refusal to pay the monetary claims of Kasan I. Ayunan, Abdul E. Zailon, Esmael A. Ebrahim, Annabelle Zailon, Pendatun Mambatawan, Hyria Mastura and Faizal I. Hadil.

On 14 August 2002, petitioner filed a Motion for Reinvestigation.

After the reinvestigation, the public prosecutor filed a Manifestation and Motion to Admit Amended Information Deleting the Names of Other Accused Except Datu Guimid Matalam[6] to which petitioner filed a Motion to Dismiss and Opposition to the Motion to Admit the Alleged Amended Information Against the Accused Guimid P. Matalam.[7]Thereafter, the public prosecutor filed his Reply[8] to which petitioner filed a Rejoinder.

In his Motion to Dismiss, petitioner alleged that the amended information charges an entirely new cause of action. The corpus delicti of the amended information is no longer his alleged refusal to pay the backwages ordered by the Civil Service Commission, but the alleged willful, unlawful and illegal dismissal from the service of the complaining witnesses. He insists that the amended information charging a separate and entirely different offense cannot be admitted because there would be a serious violation of due process of law. He claims he is entitled to a preliminary investigation since he was not informed that he is being charged for the alleged dismissal of the complaining witnesses and that he was not given the opportunity to explain.

On 12 January 2004, the Sandiganbayan granted the Manifestation and Motion to Admit Amended Information Deleting the Names of Other Accused Except Datu Guimid P. Matalam. It admitted the Amended Information charging solely petitioner for Violation of Section 3(e) of Rep. Act No. 3019.

Petitioner argues that the resolutions of the Sandiganbayan dated 12 January 2004 and 03 November 2004 admitting the Amended Information charging a new offense without conducting a preliminary investigation were issued without jurisdiction and/or with grave abuse of jurisdiction amounting to lack of jurisdiction.

Petitioner maintains that a new preliminary investigation should have been ordered because the corpus delicti in the Amended Information is the termination of services of the complaining witnesses, while the corpus delicti in the Original Information is the alleged refusal to pay the backwages of the complaining witnesses. In other words, there being a new and distinct offense, he should be entitled to a new preliminary investigation.

ISSUE

Whether or not the Amendment made in the information was in Substance or in Form. (Substance)

Whether or not the petitioner is entitled to a new preliminary investigation. (YES)

HELD:

Petition for certiorari is hereby GRANTED. Respondent courts resolutions dated 12 January 2004 and 03 November 2004 in Criminal Case No. 26381 are REVERSED AND SET ASIDE. Respondent court is directed to order the Office of the Ombudsman to forthwith conduct a preliminary investigation of the charge embodied in the Amended Information filed against petitioner.

Our ruling in this case does not in any way divest the public prosecutor of its duty under the Rules. This Court is not determining if petitioner should or should not be brought to trial. What we are looking into is whether or not petitioner was given all the opportunity to present countervailing evidence on the amended charge. Accordingly, finding that petitioner was not given the chance to fully present his evidence on the amended information which contained a substantial amendment, a new preliminary investigation is in order. As to statement of the court a quo that the conduct of another preliminary investigation would be merely a waste of time, it must be emphasized that though the conduct thereof will hold back the progress of the case, the same is necessary in order that the accused may be afforded his right to a preliminary investigation. The right of the accused to a preliminary investigation should never be compromised or sacrificed at the altar of expediency.

SALUDAGA and GENIO V. SANDIGANBAYAN

FACTS:

A petition for certiorari, prohibition and mandamus under Rule 65 of the 1997 Rules on Civil Procedure with a prayer for the issuance of a writ of preliminary injunction and temporary restraining order assailing the July 14, 2008 Resolution of the Sandiganbayan in a Criminal Case denying the Motion for Preliminary Investigation filed by the petitioners who were charged with a violation of Section 3(e) of Republic Act No. 3019, and the denial of their Motion for Reconsideration done in open court on August 13, 2008.

Quintin Saludaga, municipal mayor of Lavesares, Northern Samar and SPO2 Fiel Genio were charged in the Sandiganbayan of violation of Sec. 3(e) of the Anti Graft and Corrupt Practices Act (R.A.3019) by causing undue injury to the government.

The Sandiganbayan dismissed the information "for failure of the prosecution to allege and prove the amount of actual damages caused the government, an essential element of the crime charged.

The Ombudsman directed the Office of the Special Prosecutor to study the possibility of having the information amended and re-filed with the Sandiganbayan.

The OSP re-filed the Information. Now, charging the petitioners for violation of Section 3(e) of R.A. No. 3019, by giving unwarranted benefit to a private person, to the prejudice of the government.

Petitioners filed a Motion for Preliminary Investigation.

Petitioners contend that the failure of the prosecution to conduct a new preliminary investigation before the filing of the second Information constituted a violation of the law because the latter charged a different offensethat is, violation of Section 3(e) by giving unwarranted benefit to private parties. Hence, there was a substitution of the first Information. They argue that assuming that no substitution took place, at the very least, there was a substantial amendment in the new information and that its submission should have been preceded by a new preliminary investigation.

Petitioners also highlighted that newly discovered evidence mandates due re-examination of the finding of prima facie cause to file the case which necessitates a new preliminary investigation.

ISSUE:

a.Whether or not the presence of newly discovered evidence necessitates a new preliminary investigation.

b.Whether or not Sandiganbayan acted without or in excess of its jurisdiction or with grave abuse of discretion.

RULING:

No. The piece of evidence sought to be considered by the Petitioners cannot be considered as newly found evidence because it was already in existence prior to the re-filing of the case. In fact, such sworn affidavit was among the documents considered during the preliminary investigation. It was the sole annexed document to petitioners Supplement to Motion for Reinvestigation, offered to dispute the charge that no public bidding was conducted prior to the execution of the subject project.

The case at bench discloses no evident indication that respondent Sandiganbayan acted with arbitrariness, whim or caprice. It committed no error in refusing to order the conduct of another preliminary investigation. As sufficiently explained by the prosecution, a new preliminary investigation is not necessary as there was neither a modification of the nature of the offense charged nor a new allegation. Such conduct of preliminary investigation anew will only delay the resolution of the case and would be an exercise in futility in as much as there was a complete preliminary investigation actively participated by both petitioners.

The Petition is denied.

Adasa vs. Abalos GR 16817 Feb. 10 2007

Yambot et al vs. Armovit GR 172677 Sept. 12, 2008