G.R. No.

104879

May 6, 1994

ELIZALDE MALALOAN and MARLON LUAREZ, petitioners, vs. COURT OF APPEALS; HON. ANTONIO J. FINEZA, in his capacity as Presiding Judge, Branch 131, Regional Trial Court of Kalookan City; HON. TIRSO D.C. VELASCO, in his capacity as Presiding Judge, Branch 88, Regional Trial Court of Quezon City; and PEOPLE OF THE PHILIPPINES, respondents. Alexander A. Padilla for petitioners. The Solicitor General for the People of the Philippines. REGALADO, J.: Creative legal advocacy has provided this Court with another primae impressionis case through the present petition wherein the parties have formulated and now pose for resolution the following issue: Whether or not a court may take cognizance of an application for a search warrant in connection with an offense committed outside its territorial boundary and, thereafter, issue the warrant to conduct a search on a place outside the court's supposed territorial jurisdiction. 1 The factual background and judicial antecedents of this case are best taken from the findings of respondent Court of Appeals 2 on which there does not appear to be any dispute, to wit: From the pleadings and supporting documents before the Court, it can be gathered that on March 22, 1990, 1st Lt. Absalon V. Salboro of the CAPCOM Northern Sector (now Central Sector) filed with the Regional Trial Court of Kalookan City an application for search warrant. The search warrant was sought for in connection with an alleged violation of P.D. 1866 (Illegal Possession of Firearms and Ammunitions) perpetrated at No. 25 Newport St., corner Marlboro St., Fairview, Quezon City. On March 23, 1990, respondent RTC Judge of Kalookan City issued Search Warrant No. 95-90. On the same day, at around 2:30 p.m., members of the CAPCOM, armed with subject search warrant, proceeded to the situs of the offense alluded to, where a labor seminar of the Ecumenical Institute for Labor Education and Research (EILER) was then taking place. According to CAPCOM's "Inventory of Property Seized," firearms, explosive materials and subversive documents, among others, were seized and taken during the search. And all the sixty-one (61) persons found within the premises searched were brought to Camp Karingal, Quezon City but most of them were later released, with the exception of the herein petitioners, EILER Instructors, who were indicated for violation of P.D. 1866 in Criminal Case No. Q-90-11757 before Branch 88 of the Regional Trial Court of Quezon City, presided over by respondent Judge Tirso D.C. Velasco. On July 10, 1990, petitioners presented a "Motion for Consolidation, Quashal of Search Warrant and For the Suppression of All Illegally Acquired Evidence" before the Quezon City court; and a "Supplemental Motion to the Motion for Consolidation, Quashal of Search Warrant and Exclusion of Evidence Illegally Obtained. On September 21, 1990, the respondent Quezon City Judge issued the challenged order, consolidating subject cases but denying the prayer for the quashal of the search warrant under attack, the validity of which warrant was upheld; opining that the same falls under the category of Writs and Processes, within the contemplation of paragraph 3(b) of the Interim Rules and Guidelines, and can be served not only within the territorial jurisdiction of the issuing court but anywhere in the judicial region of the issuing court (National Capital Judicial Region);. . .

Petitioner's motion for reconsideration of the said Order under challenge, having been denied by the assailed Order of October 5, 1990, petitioners have come to this Court via the instant petition, raising the sole issue: WHETHER OR NOT A COURT MAY TAKE COGNIZANCE OF AN APPLICATION FOR A SEARCH WARRANT IN CONNECTION WITH AN OFFENSE ALLEGEDLY COMMITTED OUTSIDE ITS TERRITORIAL JURISDICTION AND TO ISSUE A WARRANT TO CONDUCT A SEARCH ON A PLACE LIKEWISE OUTSIDE ITS TERRITORIAL JURISDICTION. xxx xxx xxx

Respondent Court of Appeals rendered judgment, 3 in effect affirming that of the trial court, by denying due course to the petition for certiorari and lifting the temporary restraining order it had issued on November 29, 1990 in connection therewith. This judgment of respondent court is now impugned in and sought to be reversed through the present recourse before us. We are not favorably impressed by the arguments adduced by petitioners in support of their submissions. Their disquisitions postulate interpretative theories contrary to the letter and intent of the rules on search warrants and which could pose legal obstacles, if not dangerous doctrines, in the area of law enforcement. Further, they fail to validly distinguish, hence they do not convincingly delineate the difference, between the matter of (1) the court which has the competence to issue a search warrant under a given set of facts, and (2) the permissible jurisdictional range in the enforcement of such search warrant vis-a-vis the court's territorial jurisdiction. These issues while effectively cognate are essentially discrete since the resolution of one does not necessarily affect or preempt the other. Accordingly, to avoid compounding the seeming confusion, these questions shall be discussed seriatim. I Petitioners invoke the jurisdictional rules in the institution of criminal actions to invalidate the search warrant issued by the Regional Trial Court of Kalookan City because it is directed toward the seizure of firearms and ammunition allegedly cached illegally in Quezon City. This theory is sought to be buttressed by the fact that the criminal case against petitioners for violation of Presidential Decree No. 1866 was subsequently filed in the latter court. The application for the search warrant, it is claimed, was accordingly filed in a court of improper venue and since venue in criminal actions involves the territorial jurisdiction of the court, such warrant is void for having been issued by a court without jurisdiction to do so. The basic flaw in this reasoning is in erroneously equating the application for and the obtention of a search warrant with the institution and prosecution of a criminal action in a trial court. It would thus categorize what is only a special criminal process, the power to issue which is inherent in all courts, as equivalent to a criminal action, jurisdiction over which is reposed in specific courts of indicated competence. It ignores the fact that the requisites, procedure and purpose for the issuance of a search warrant are completely different from those for the institution of a criminal action. For, indeed, a warrant, such as a warrant of arrest or a search warrant, merely constitutes process. 4 A search warrant is defined in our jurisdiction as an order in writing issued in the name of the People of the Philippines signed by a judge and directed to a peace officer, commanding him to search for personal property and bring it before the court. 5 A search warrant is in the nature of a criminal process akin to a writ of discovery. It is a special and peculiar remedy, drastic in its nature, and made necessary because of a public necessity. 6

In American jurisdictions, from which we have taken our jural concept and provisions on search warrants, 7 such warrant is definitively considered merely as a process, generally issued by a court in the exercise of its ancillary jurisdiction, and not a criminal action to be entertained by a court pursuant to its original jurisdiction. We emphasize this fact for purposes of both issues as formulated in this opinion, with the catalogue of authorities herein. Invariably, a judicial process is defined as a writ, warrant, subpoena, or other formal writing issued by authority of law; also the means of accomplishing an end, including judicial proceedings, 8 or all writs, warrants, summonses, and orders of courts of justice or judicial officers. 9 It is likewise held to include a writ, summons, or order issued in a judicial proceeding to acquire jurisdiction of a person or his property, to expedite the cause or enforce the judgment, 10 or a writ, warrant, mandate, or other process issuing from a court of justice. 11 2. It is clear, therefore, that a search warrant is merely a judicial process designed by the Rules to respond only to an incident in the main case, if one has already been instituted, or in anticipation thereof. In the latter contingency, as in the case at bar, it would involve some judicial clairvoyance to require observance of the rules as to where a criminal case may eventually be filed where, in the first place, no such action having as yet been instituted, it may ultimately be filed in a territorial jurisdiction other than that wherein the illegal articles sought to be seized are then located. This is aside from the consideration that a criminal action may be filed in different venues under the rules for delitos continuados or in those instances where different trial courts have concurrent original jurisdiction over the same criminal offense. In fact, to illustrate the gravity of the problem which petitioners' implausible position may create, we need not stray far from the provisions of Section 15, Rule 110 of the Rules of Court on the venue of criminal actions and which we quote: Sec. 15. Place where action to be instituted. (a) Subject to existing laws, in all criminal prosecutions the action shall be instituted and tried in the court of the municipality or territory wherein the offense was committed or any one of the essential ingredients thereof took place. (b) Where an offense is committed on a railroad train, in an aircraft, or any other public or private vehicle while in the course of its trip, the criminal action may be instituted and tried in the court of any municipality or territory where such train, aircraft or other vehicle passed during such trip, including the place of departure and arrival. (c) Where an offense is committed on board a vessel in the course of its voyage, the criminal action may be instituted and tried in the proper court of the first port of entry or of any municipality or territory through which the vessel passed during such voyage, subject to the generally accepted principles of international law. (d) Other crimes committed outside of the Philippines but punishable therein under Article 2 of the Revised Penal Code shall be cognizable by the proper court in which the charge is first filed. (14a) It would be an exacting imposition upon the law enforcement authorities or the prosecutorial agencies to unerringly determine where they should apply for a search warrant in view of the uncertainties and possibilities as to the ultimate venue of a case under the foregoing rules. It would be doubly so if compliance with that requirement would be under pain of nullification of said warrant should they file their application therefor in and obtain the same from what may later turn out to be a court not within the ambit of the aforequoted Section 15. Our Rules of Court, whether of the 1940, 1964 or the present vintage, and, for that matter, the Judiciary Act of 1948 12 or the recent Judiciary Reorganization Act, 13 have never required the jurisdictional strictures that the petitioners' thesis

would seek to be inferentially drawn from the silence of the reglementary provisions. On the contrary, we are of the view that said statutory omission was both deliberate and significant. It cannot but mean that the formulators of the Rules of Court, and even Congress itself, did not consider it proper or correct, on considerations of national policy and the pragmatics of experience, to clamp a legal manacle on those who would ferret out the evidence of a crime. For us to now impose such conditions or restrictions, under the guise of judicial interpretation, may instead be reasonably construed as trenching on judicial legislation. It would be tantamount to a judicial act of engrafting upon a law something that has been omitted but which someone believes ought to have been embraced therein. 14 Concededly, the problem of venue would be relatively easier to resolve if a criminal case has already been filed in a particular court and a search warrant is needed to secure evidence to be presented therein. Obviously, the court trying the criminal case may properly issue the warrant, upon proper application and due compliance with the requisites therefor, since such application would only be an incident in that case and which it can resolve in the exercise of its ancillary jurisdiction. If the contraband articles are within its territorial jurisdiction, there would appear to be no further complications. The jurisdictional problem would resurrect, however, where such articles are outside its territorial jurisdiction, which aspect will be addressed hereafter. 3. Coming back to the first issue now under consideration, petitioners, after discoursing on the respective territorial jurisdictions of the thirteen Regional Trial Courts which correspond to the thirteen judicial regions, 15 invite our attention to the fact that this Court, pursuant to its authority granted by law, 16 has defined the territorial jurisdiction of each branch of a Regional Trial Court 17 over which the particular branch concerned shall exercise its authority. 18 From this, it is theorized that "only the branch of a Regional Trial Court which has jurisdiction over the place to be searched could grant an application for and issue a warrant to search that place." Support for such position is sought to be drawn from issuances of this Court, that is, Circular No. 13 issued on October 1, 1985, as amended by Circular No. 19 on August 4, 1987. We reject that proposition. Firstly, it is evident that both circulars were not intended to be of general application to all instances involving search warrants and in all courts as would be the case if they had been adopted as part of the Rules of Court. These circulars were issued by the Court to meet a particular exigency, that is, as emergency guidelines on applications for search warrants filed only in the courts of Metropolitan Manila and other courts with multiple salas and only with respect to violations of the Anti-Subversion Act, crimes against public order under the Revised Penal Code, illegal possession of firearms and/or ammunitions, and violations of the Dangerous Drugs Act. In other words, the aforesaid theory on the court's jurisdiction to issue search warrants would not apply to single-sala courts and other crimes. Accordingly, the rule sought by petitioners to be adopted by the Court would actually result in a bifurcated procedure which would be vulnerable to legal and constitutional objections. For that matter, neither can we subscribe to petitioners' contention that Administrative Order No. 3 of this Court, supposedly "defining the limits of the territorial jurisdiction of the Regional Trial Courts," was the source of the subject matter jurisdiction of, as distinguished from the exercise of jurisdiction by, the courts. As earlier observed, this administrative order was issued pursuant to the provisions of Section 18 of Batas Pambansa Blg. 129, the pertinent portion of which states: Sec. 18. Authority to define territory appurtenant to each branch. The Supreme Court shall define the territory over which a branch of the Regional Trial Court shall exercise its authority. The territory thus defined shall be deemed to be the territorial area of the branch concerned for purposes of determining the venue of all writs, proceedings or actions, whether civil or criminal, . . . . (Emphasis ours.)

Jurisdiction is conferred by substantive law, in this case Batas Pambansa Blg. 129, not by a procedural law and, much less, by an administrative order or circular. The jurisdiction conferred by said Act on regional trial courts and their judges is basically regional in scope. Thus, Section 17 thereof provides that "(e)very Regional Trial Judge shall be appointed to a region which shall be his permanent station," and he "may be assigned by the Supreme Court to any branch or city or municipality within the same region as public interest may require, and such assignment shall not be deemed an assignment to another station . . ." which, otherwise, would necessitate a new appointment for the judge. In fine, Administrative Order No. 3 and, in like manner, Circulars Nos. 13 and 19, did not per se confer jurisdiction on the covered regional trial court or its branches, such that non-observance thereof would nullify their judicial acts. The administrative order merely defines the limits of the administrative area within which a branch of the court may exercise its authority pursuant to the jurisdiction conferred by Batas Pambansa Blg. 129. The circulars only allocated to the three executive judges the administrative areas for which they may respectively issue search warrants under the special circumstance contemplated therein, but likewise pursuant to the jurisdiction vested in them by Batas Pambansa Blg, 129. Secondly, and more importantly, we definitely cannot accept the conclusion that the grant of power to the courts mentioned therein, to entertain and issue search warrants where the place to be searched is within their territorial jurisdiction, was intended to exclude other courts from exercising the same power. It will readily be noted that Circular No. 19 was basically intended to provide prompt action on applications for search warrants. Its predecessor, Administrative Circular No. 13, had a number of requirements, principally a raffle of the applications for search warrants, if they had been filed with the executive judge, among the judges within his administrative area. Circular No. 19 eliminated, by amendment, that required raffle and ordered instead that such applications should immediately be "taken cognizance of and acted upon by the Executive Judges of the Regional Trial Court, Metropolitan Trial Court, and Municipal Trial Court under whose jurisdiction the place to be searched is located," or by their substitutes enumerated therein. Evidently, that particular provision of Circular No. 19 was never intended to confer exclusive jurisdiction on said executive judges. In view of the fact, however, that they were themselves directed to personally act on the applications, instead of farming out the same among the other judges as was the previous practice, it was but necessary and practical to require them to so act only on applications involving search of places located within their respective territorial jurisdictions. The phrase above quoted was, therefore, in the nature of an allocation in the assignment of applications among them, in recognition of human capabilities and limitations, and not a mandate for the exclusion of all other courts. In truth, Administrative Circular No. 13 even specifically envisaged and anticipated the non-exclusionary nature of that provision, thus: 4. If, in the implementation of the search warrant properties are seized thereunder and the corresponding case is filed in court, said case shall be distributed conformably with Circular No. 7 dated September 23, 1974, of this Court, and thereupon tried and decided by the judge to whom it has been assigned, and not necessarily by the judge who issued the search warrant. (Emphasis supplied.) It is, therefore, incorrect to say that only the court which has jurisdiction over the criminal case can issue the search warrant, as would be the consequence of petitioners' position that only the branch of the court with jurisdiction over the place to be searched can issue a warrant to search the same. It may be conceded, as a matter of policy, that where a criminal case is pending, the court wherein it was filed, or the assigned branch thereof, has primary jurisdiction to issue

the search warrant; and where no such criminal case has yet been filed, that the executive judges or their lawful substitutes in the areas and for the offenses contemplated in Circular No. 19 shall have primary jurisdiction. This should not, however, mean that a court whose territorial jurisdiction does not embrace the place to be searched cannot issue a search warrant therefor, where the obtention of that search warrant is necessitated and justified by compelling considerations of urgency, subject, time and place. Conversely, neither should a search warrant duly issued by a court which has jurisdiction over a pending criminal case, or one issued by an executive judge or his lawful substitute under the situations provided for by Circular No. 19, be denied enforcement or nullified just because it was implemented outside the court's territorial jurisdiction. This brings us, accordingly, to the second issue on the permissible jurisdictional range of enforcement of search warrants. II As stated in limine, the affiliated issue raised in this case is whether a branch of a regional trial court has the authority to issue a warrant for the search of a place outside its territorial jurisdiction. Petitioners insistently answer the query in the negative. We hold otherwise. 1. We repeat what we have earlier stressed: No law or rule imposes such a limitation on search warrants, in the same manner that no such restriction is provided for warrants of arrest. Parenthetically, in certain states within the American jurisdiction, there were limitations of the time wherein a warrant of arrest could be enforced. In our jurisdiction, no period is provided for the enforceability of warrants of arrest, and although within ten days from the delivery of the warrant of arrest for execution a return thereon must be made to the issuing judge, 19 said warrant does not become functus officio but is enforceable indefinitely until the same is enforced or recalled. On the other hand, the lifetime of a search warrant has been expressly set in our Rules at ten days 20 but there is no provision as to the extent of the territory wherein it may be enforced, provided it is implemented on and within the premises specifically described therein which may or may not be within the territorial jurisdiction of the issuing court. We make the foregoing comparative advertence to emphasize the fact that when the law or rules would provide conditions, qualifications or restrictions, they so state. Absent specific mention thereof, and the same not being inferable by necessary implication from the statutory provisions which are presumed to be complete and expressive of the intendment of the framers, a contrary interpretation on whatever pretext should not be countenanced. A bit of legal history on this contestation will be helpful. The jurisdictional rule heretofore was that writs and processes of the so-called inferior courts could be enforced outside the province only with the approval of the former court of first instance. 21 Under the Judiciary Reorganization Act, the enforcement of such writs and processes no longer needs the approval of the regional trial court. 22 On the other hand, while, formerly, writs and processes of the then courts of first instance were enforceable throughout the Philippines, 23 under the Interim or Transitional Rules and Guidelines, certain specified writs issued by a regional trial court are now enforceable only within its judicial region. In the interest of clarity and contrast, it is necessary that said provision be set out in full: 3. Writs and processes.

(a) Writs of certiorari, prohibition mandamus, quo warranto, habeas corpus and injunction issued by a regional trial court may be enforced in any part of the region.

(b) All other processes, whether issued by a regional trial court or a metropolitan trial court, municipal trial court or municipal circuit trial court may be served anywhere in the Philippines, and, in the last three cases, without a certification by the judge of the regional trial court. (Emphasis ours.) We feel that the foregoing provision is too clear to be further belabored or enmeshed in unwarranted polemics. The rule enumerates the writs and processes which, even if issued by a regional trial court, are enforceable only within its judicial region. In contrast, it unqualifiedly provides that all other writs and processes, regardless of which court issued the same, shall be enforceable anywhere in the Philippines. As earlier demonstrated, a search warrant is but a judicial process, not a criminal action. No legal provision, statutory or reglementary, expressly or impliedly provides a jurisdictional or territorial limit on its area of enforceability. On the contrary, the above-quoted provision of the interim Rules expressly authorizes its enforcement anywhere in the country, since it is not among the processes specified in paragraph (a) and there is no distinction or exception made regarding the processes contemplated in paragraph (b). 2. This is but a necessary and inevitable consequence of the nature and purpose of a search warrant. The Court cannot be blind to the fact that it is extremely difficult, as it undeniably is, to detect or elicit information regarding the existence and location of illegally possessed or prohibited articles. The Court is accordingly convinced that it should not make the requisites for the apprehension of the culprits and the confiscation of such illicit items, once detected, more onerous if not impossible by imposing further niceties of procedure or substantive rules of jurisdiction through decisional dicta. For that matter, we are unaware of any instance wherein a search warrant was struck down on objections based on territorial jurisdiction. In the landmark case of Stonehill, et al. vs. Diokno, et al., 24 the searches in the corporate offices in Manila and the residences in Makati of therein petitioners were conducted pursuant to search warrants issued by the Quezon City and Pasig branches of the Court of First Instance of Rizal and by the Municipal Courts of Manila and Quezon City, 25 but the same were never challenged on jurisdictional grounds although they were subsequently nullified for being general warrants. 3. A clarion call supposedly of libertarian import is further sounded by petitioners, dubiously invoking the constitutional proscription against illegal searches and seizures. We do not believe that the enforcement of a search warrant issued by a court outside the territorial jurisdiction wherein the place to be searched is located would create a constitutional question. Nor are we swayed by the professed apprehension that the law enforcement authorities may resort to what could be a permutation of forum shopping, by filing an application for the warrant with a "friendly" court. It need merely be recalled that a search warrant is only a process, not an action. Furthermore, the constitutional mandate is translated into specifically enumerated safeguards in Rule 126 of the 1985 Rules on Criminal Procedure for the issuance of a search warrant, 26 and all these have to be observed regardless of whatever court in whichever region is importuned for or actually issues a search warrant. Said requirements, together with the ten-day lifetime of the warrant 27 would discourage resort to a court in another judicial region, not only because of the distance but also the contingencies of travel and the danger involved, unless there are really compelling reasons for the authorities to do so. Besides, it does seem odd that such constitutional protests have not been made against warrants of arrest which are enforceable indefinitely and anywhere although they involve, not only property and privacy, but persons and liberty. On the other hand, it is a matter of judicial knowledge that the authorities have to contend now and then with local and national criminal syndicates of considerable power and influence, political or financial in nature, and so pervasive as to render foolhardy any attempt to obtain a search warrant in the very locale under their sphere of control. Nor should we overlook the fact that to do so will necessitate the transportation of applicant's witnesses to and their examination in

said places, with the attendant risk, danger and expense. Also, a further well-founded precaution, obviously born of experience and verifiable data, is articulated by the court a quo, as quoted by respondent court: This court is of the further belief that the possible leakage of information which is of utmost importance in the issuance of a search warrant is secured (against) where the issuing magistrate within the region does not hold court sessions in the city or municipality, within the region, where the place to be searched is located. 28 The foregoing situations may also have obtained and were taken into account in the foreign judicial pronouncement that, in the absence of statutory restrictions, a justice of the peace in one district of the county may issue a search warrant to be served in another district of the county and made returnable before the justice of still another district or another court having jurisdiction to deal with the matters involved. 29 In the present state of our law on the matter, we find no such statutory restrictions both with respect to the court which can issue the search warrant and the enforcement thereof anywhere in the Philippines. III Concern is expressed over possible conflicts of jurisdiction (or, more accurately, in the exercise of jurisdiction) where the criminal case is pending in one court and the search warrant is issued by another court for the seizure of personal property intended to be used as evidence in said criminal case. This arrangement is not unknown or without precedent in our jurisdiction. In fact, as hereinbefore noted, this very situation was anticipated in Circular No. 13 of this Court under the limited scenario contemplated therein. Nonetheless, to put such presentiments to rest, we lay down the following policy guidelines: 1. The court wherein the criminal case is pending shall have primary jurisdiction to issue search warrants necessitated by and for purposes of said case. An application for a search warrant may be filed with another court only under extreme and compelling circumstances that the applicant must prove to the satisfaction of the latter court which may or may not give due course to the application depending on the validity of the justification offered for not filing the same in the court with primary jurisdiction thereover. 2. When the latter court issues the search warrant, a motion to quash the same may be filed in and shall be resolved by said court, without prejudice to any proper recourse to the appropriate higher court by the party aggrieved by the resolution of the issuing court. All grounds and objections then available, existent or known shall be raised in the original or subsequent proceedings for the quashal of the warrant, otherwise they shall be deemed waived. 3. Where no motion to quash the search warrant was filed in or resolved by the issuing court, the interested party may move in the court where the criminal case is pending for the suppression as evidence of the personal property seized under the warrant if the same is offered therein for said purpose. Since two separate courts with different participations are involved in this situation, a motion to quash a search warrant and a motion to suppress evidence are alternative and not cumulative remedies. In order to prevent forum shopping, a motion to quash shall consequently be governed by the omnibus motion rule, provided, however, that objections not available, existent or known during the proceedings for the quashal of the warrant may be raised in the hearing of the motion to suppress. The resolution of the court on the motion to suppress shall likewise be subject to any proper remedy in the appropriate higher court. 4. Where the court which issued the search warrant denies the motion to quash the same and is not otherwise prevented from further proceeding thereon, all personal property seized under the warrant shall forthwith be

transmitted by it to the court wherein the criminal case is pending, with the necessary safeguards and documentation therefor. 5. These guidelines shall likewise be observed where the same criminal offense is charged in different informations or complaints and filed in two or more courts with concurrent original jurisdiction over the criminal action. Where the issue of which court will try the case shall have been resolved, such court shall be considered as vested with primary jurisdiction to act on applications for search warrants incident to the criminal case. WHEREFORE, on the foregoing premises, the instant petition is DENIED and the assailed judgment of respondent Court of Appeals in CA-G.R. SP No. 23533 is hereby AFFIRMED. SO ORDERED.

G.R. No. 102140

April 22, 1994

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ROLANDO MANLULU AND DANTE SAMSON, accused-appellants. The Solicitor General for plaintiff-appellee. Celso P. De Las Alas for accused-appellants. BELLOSILLO, J.: GERARDO ALFARO, a NARCOM agent, was stabbed and shot with his service pistol in a drinking spree. He died in the hospital the following day. His drinking partners, Rolando Manlulu and Dante Samson, were haled to court for his violent death. The prosecution charges that Manlulu and Samson conspired in the murder of Agent Alfaro. The accused on the other hand invoke self-defense. They also insist that the non-issuance of a search warrant and warrant of arrest should nullify their arrest and consequently exclude from judicial consideration the evidence thus obtained. But the trial court was not convinced. It found accused Dante Samson and Rolando Manlulu "guilty beyond reasonable doubt as principals in the crime of Murder defined and penalized under Article 248 of The Revised Penal Code with the mitigating circumstance of voluntary surrender on the part of Dante Samson and no mitigating circumstance modifying the commission of the offense on the part of Rolando Manlulu." 1 As a result, accused Dante Samson was sentenced to a prison term of ten (10) years and one (1) day of prision mayor, as minimum, to seventeen (17) years, four (4) months and one (1) day of reclusion temporal, as maximum, while accused Rolando Manlulu, to twelve (12) years, five (5) months and eleven (11) days of reclusion temporal, as minimum, to eighteen (18) years, eight (8) months and one (1) day of reclusion perpetua as maximum. They were also sentenced jointly to indemnify the offended party P30,000.00 as compensatory damages and P10,410.00 for hospitalization and funeral expenses, and to pay the costs. Upon review, the appellate court raised their penalties to reclusion perpetua and certified the case to this Court pursuant to Sec. 13, Rule 124, of the 1985 Rules on Criminal Procedure. 2

Testifying for the prosecution, Wally Manlapaz, a.k.a. Crisanto Meneses, narrated that at around ten o'clock in the evening of 29 May 1986, he and accused Dante Samson and Rolando Manlulu were having a drinking spree in an alley along Quirino Avenue, Paco, Manila. They were later joined by Agent Gerardo Alfaro who had a .45 cal. pistol tucked to his waist. When Alfaro arrived he blurted out, "Dito may kumakatalo sa aking tao." 3 At twelve o'clock midnight, the group transferred in front of the house of Manlapaz and continued to drink. There Samson suddenly stabbed Alfaro in the chest with a 6-inch double-bladed knife while boasting, "Dapat sa iyo manahimik na." 4 Alfaro at this time was "somewhat bent because he was already drunk." 5 Manlulu then followed suit and stabbed Alfaro in the abdomen several times with an ice pick they used to chip ice. Samson grabbed the .45 cal. service pistol of Alfaro and shot him in the neck. When Alfaro slumped on the pavement, both accused fled, with Samson holding Alfaro's handgun. After a few seconds, both accused returned and got Alfaro's wristwatch and wallet. 6 Noel Pagco, another witness for the prosecution, recounted that at the time of the shooting he was outside the alley where the accused and the deceased were drinking. After hearing a gunshot coming from the direction of the alley, he saw Dante Samson and Rolando Manlulu coming out the alley, the former tucking a gun in his waist and sporting a watch on his right wrist, and the latter holding an ice pick. 7 As already adverted to, both accused invoke self- defense. According to Samson, while they were drinking, and after taking ekis pinoy, 8 Alfaro said he had a "prospect" and invited them to go with him. Thinking that "prospect" meant they were going to rob somebody, Samson excused himself by saying that he had just been released from prison, and had yet to fetch his wife. Alfaro, apparently resenting Samson's unwillingness to join them, drew his gun and pointed it to Samson who parried it saying: "Pare, wala tayong biruan ng ganyan. Baka pumutok iyan." But Alfaro repeatedly pointed the gun to him. Every time he did, Samson would push the gun aside. Fearful that it might go off, he held the gun and tried to ward it off, resulting in a struggle for its possession. He got hold of the ice pick on top of the drum and stabbed Alfaro instinctively. Manlapaz tried to separate them; as a consequence, Samson dropped the ice pick. As Samson and Alfaro continued to wrestle for the possession of the gun, they fell on the ground and the gun accidentally went off hitting Alfaro in the neck. Rattled, Samson immediately fled. He then fetched his wife from Malate, proceeded to Pasay City, and sent word to his father who later accompanied him to surrender to Capt. Pring of the Homicide Division of the Western Police District. When he fled, he left behind Alfaro's gun. 9 Rolando Manlulu corroborated the testimony of his co-accused. He added that he picked up the ice pick when it fell, and fearing that he might be the next victim should Alfaro succeed in shooting Samson, he (Manlulu) stabbed Alfaro several times with the ice pick, then dropped it, and ran away. He looked back and saw Samson and Alfaro fall on the pavement. Almost simultaneously, the gun went off. 10 Patrolman Reynaldo Perez recounted that at around seven o'clock in the evening of 30 May 1986 he, together with some other officers, arrested Manlulu on the information given by Manlapaz. He said that he seized from Manlulu the .45 cal. pistol and Casio wristwatch said to belong to Alfaro, 11 and that Manlulu verbally confessed to the commission of the crime. Patrolman Perez however admitted on cross- examination that when he arrested Manlulu and seized from him the handgun as well as the wristwatch, he (Perez) was not with any warrant nor did he inform the accused of the latter's right to counsel. Perez added that at that time Manlulu was under the influence of liquor. 12 Dr. Marcial Ceido, Medico-Legal Officer of the Western Police District, confirmed that Alfaro sustained nine (9) wounds, four (4) of them fatal, i.e., a gunshot wound in the neck; a penetrating stab wound probably caused by a bladed weapon, and two (2) stab wounds probably caused by an ice pick. 13

In this appeal, accused Manlulu and Samson would want us to believe, first, in their version of the incident, and next, that they acted in self-defense. The account of the appellants does not inspire belief. A review of the testimony of Manlapaz, who admittedly had drunk a little too much, reveals that his story tallies not only with some accounts of accused Samson and Manlulu but also with the findings of Dr. Ceido. Hence, except for the actual attack on the victim, the testimonies of Samson and Manlulu square with that of Manlapaz, including the conversation that took place. Thus we give credence to the testimony of Manlapaz that Samson used a bladed weapon and not an ice pick in stabbing Alfaro, contrary to what Samson would want us to believe. This version of Manlapaz is consistent with the necropsy report of Dr. Ceido which states that the deceased had a penetrating stab wound which could have been caused by a bladed weapon. That Manlulu according to Manlapaz used an ice pick in repeatedly stabbing Alfaro was not only admitted by Manlulu on the witness stand but is confirmed likewise by the medical findings of Dr. Ceido. If Manlapaz was indeed too drunk to recall the events that transpired before the actual killing, then in all probability he could not have remembered the weapons used by the accused. Certainly, eyewitness Manlapaz could not have been so drunk as to muddle those incidents which impute guilt to the accused and recall only those which are consistent with their innocence. Similarly, we cannot disregard those portions of the testimonies of the two accused which tend to confirm the narration of Manlapaz. Expectedly, the accused will refute the statements tending to establish their culpability. Hence, they have to differ in some respects from the narration of Manlapaz. Since it appears from the testimony of Manlapaz that he had not yet reached that degree of intoxication where he would have otherwise lost control of his mental faculties, we find his version to be credible as it conforms with the autopsy report and admissions of both accused. 14 Thus, we sustain the factual findings of the trial court and reject the version of the defense. But, even if we consider the theory of the accused thus far if only to satisfy them, still they cannot elude the consequences of their felonious acts. By invoking selfdefense, the accused admit killing Alfaro. The burden of proof is thus shifted to them. Their duty now is to establish by clear and convincing evidence the lawful justification for the killing. 15 In this regard, they have miserably failed. The three (3) requisites for self-defense are: (1) unlawful aggression on the part of the victim; (2) reasonable necessity of the means employed to prevent or repel it; and, (3) lack of sufficient provocation on the part of the person defending himself. 16 For self- defense to prosper, it must be positively shown that there was a previous unlawful and unprovoked attack that placed the life of the accused in danger which forced him to inflict more or less severe wounds upon his assailant, employing therefore reasonable means to resist said attack. 17 Here, at the outset, the two accused have already failed to show that there was unlawful aggression on the part of Alfaro. A gun aimed at the accused, without more, is insufficient to prove unlawful aggression. For unlawful aggression to be appreciated in self-defense, there must be an actual, sudden and unexpected attack or imminent danger thereof, and not merely a threatening or intimidating attitude. 18 Even the means employed to repel or prevent the supposed attack was not reasonable. For, even if we disregard the gunshot wound which Samson claims to have resulted from an accidental firing, the victim also suffered seven other stab wounds, three of which were fatal, one of which was admittedly inflicted by Samson, while the other two, by accused Manlulu. Definitely, it was not necessary to stab, more so repeatedly, the victim. Considering their relative positions as they drank - each within the other's reach all that was necessary was for the two accused to band together and overpower the lone victim with their bare hands, assuming the deceased was indeed pointing his gun at one of them. A stab wound may not necessarily be fatal and thus enable the victim to fire his gun. But a firm grasp by

the two accused of the victim's arm holding the gun, or of the gun itself, could prevent the victim from shooting them. At any rate, the number of wounds suffered by Alfaro indicates a determined effort of both accused to kill the victim, which negates self- defense. 19 Furthermore, their flight from the scene of the crime is a strong indication of their guilt. 20 Indeed, a righteous individual will not cower in fear and unabashedly admit the killing at the earliest opportunity if he were morally justified in so doing. A belated plea suggests that it is false and only an afterthought made as a last ditch effort to avoid the consequences of the crime. 21 If the accused honestly believed that their acts constituted self-defense against the unlawful aggression of the victim, they should have reported the incident to the police, instead of escaping and avoiding the authorities until they were either arrested or prevailed upon to surrender. 22 The reliance of the accused on the Constitution however is warranted. Certainly, the police authorities should have first obtained a warrant for the arrest of accused Rolando Manlulu, and for the search and seizure of his personal effects. The killing took place at one o'clock in the morning. The arrest and the consequent search and seizure came at around seven o'clock that evening, some nineteen hours later. This instance cannot come within the purview of a valid warrantless arrest. Paragraph (b), Sec. 5, Rule 113 of the 1985 Rules on Criminal Procedure provides that the arresting officer must have "personal knowledge" of an offense which "has in fact just been committed." In the instant case, neither did Pat. Perez have "personal knowledge," nor was the offense "in fact just been committed." While Pat. Perez may have personally gathered the information which led to the arrest of Manlulu, that is not enough. The law requires "personal knowledge." Obviously, "personal gathering of information" is different from "personal knowledge." The rule requires that the arrest immediately follows the commission of the offense, not some nineteen hours later. This is not any different from People v. Cendana 23 where the accused was arrested one day after the killing of the victim, and only on the basis of information obtained by the police officers. There we said that the "circumstances clearly belie a lawful warrantless arrest." However, the flaw, fatal as it may be, becomes moot in view of the eyewitness account of Manlapaz which we find to be credible. Hence, in spite of the nullification of the arrest of accused Manlulu, and the exclusion of real evidence, i.e., the .45 cal. service pistol of Agent Alfaro and his Casio wristwatch, as well as his extra-judicial confession which was taken in violation of the provisions of the Constitution, still the prosecution was able to prove the guilt of the accused beyond reasonable doubt. After all, the illegality of the warrantless arrest cannot deprive the state of its right to prosecute the guilty when all other facts on record point to their culpability. 24 While we confirm the factual findings of the trial court, which were affirmed by the appellate court, we nevertheless differ from the conclusions drawn that treachery and conspiracy attended the killing of Alfaro. Indeed, there is serious doubt as to whether treachery could be appreciated against the two accused. There is nothing on record to show that both accused deliberately employed means tending to insure the killing of Alfaro without risk to themselves arising from the defense which the latter might make. It must be noted that Alfaro set the mood of the evening with a threatening tone that someone in the group was provoking him. Clearly, the attack on Alfaro who was then armed with a .45 cal. revolver by Samson who on the other hand was merely armed with a knife could not have been so sudden as to catch the former off-guard. In fact, Manlapaz testified that after Samson's initial attack on Alfaro the latter was even able to push Samson back. 25 Even Manlulu, who impulsively stabbed the victim, only picked up the ice pick they were using to chip ice. Taking into account the attendant circumstances, our minds cannot rest easy in appreciating the aggravating circumstance of treachery. Hence, the two accused may only be convicted of simple homicide.

There was no conspiracy likewise in the killing of Alfaro. Settled is the rule that neither joint nor simultaneous action per se is a sufficient indicium of conspiracy. 26 The evidence shows that it was the victim who chanced upon Manlapaz and the two accused drinking, and decided to join them. Accused Manlulu was not even armed when he went to the drinking spree. We have often said that conspiracy must be established beyond reasonable doubt. Here, the prosecution failed to show that Manlulu and Samson conspired to kill Alfaro. There being no conspiracy, each is liable for his own acts. The penalty for homicide is reclusion temporal 27 the range of which is twelve (12) years and one (1) day to twenty (20) years. Applying the Indeterminate Sentence Law to accused Rolando Manlulu, there being no mitigating nor aggravating circumstance, the maximum of his penalty shall be taken from the medium period of reclusion temporal, which is fourteen (14) years, eight (8) months and one (1) day to seventeen (17) years and four (4) months, while the minimum shall be taken from the penalty next lower in degree, which is prision mayor, the range of which is six (6) years and one (1) day to twelve (12) years, in any of its periods. As regards accused Dante Samson, although he is entitled to the mitigating circumstance of voluntary surrender, the same is offset by reiteracion or habituality he having previously been convicted once of robbery and thrice of theft 28 within ten (10) years prior to this incident, each time serving sentence therefor, which further bars him from availing of the provisions of the Indeterminate Sentence Law. 29 Consequently, he should be sentenced to reclusion temporal medium the range of which is fourteen (14) years, eight (8) months and one (1) day to seventeen (17) years and four (4) months. Furthermore, being a habitual delinquent as defined in the last paragraph of Art. 62 of The Revised Penal Code, 30 he should serve an additional penalty within the range of prision mayor maximum to reclusion temporal minimum. 31 And, as correctly determined by the appellate court, the civil liability of both accused is increased from P30,000.00 to P50,000.00. In addition, both accused are liable to indemnify the heirs of their victim in the amount of P10,410.00 for hospitalization and funeral expenses. WHEREFORE, the judgment appealed from is modified as follows: (a) ROLANDO MANLULU is found guilty of HOMICIDE and is sentenced to an indeterminate prison term of eight (8) years, two (2) months and one (1) day of prision mayor medium, as minimum, to fourteen (14) years, eight (8) months and one (1) day of reclusion temporal medium, as maximum; (b) DANTE SAMSON is found guilty of HOMICIDE and is sentenced to a straight prison term of fourteen (14) years, ten (10) months and twenty (20) days of reclusion temporal medium and, for being a habitual delinquent, is ordered to serve an additional penalty of ten (10) years and one (1) day of prision mayor maximum; and (c) ROLANDO MANLULU and DANTE SAMSON are directed jointly and severally to pay the heirs of Gerardo Alfaro the amount of P50,000.00 as civil indemnity and P10,410.00 as death and funeral expenses, with costs. SO ORDERED.

G.R. No. 90628 February 1, 1995 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. JOSE RAYRAY Y AREOLA, accused-appellant. BELLOSILLO, J.: After offering to sell 2.9452 grams of marijuana to a stranger in San Fernando, La Union, who turned out to be the Chief Administrative Officer of the Regional Integrated National Police (INP) Command stationed in Baguio City, accusedappellant Jose Rayray y Areola was arrested, tried and subsequently convicted of violation of Sec. 4, Art. II of R. A. No. 6425. The antecedents as found by the trial court: At nine forty-five in the morning of 12 September 1986 P/Lt. Ramon Ancheta was at the Friendly Shop located at Ortega St., San Fernando, La Union, when accused-appellant Jose Rayray y Areola approached him offering to sell marijuana. Making the latter believe that he was interested in buying, Lt. Ancheta asked where the merchandise was and accused-appellant responded by taking marijuana wrapped in komiks from his pocket. Catching sight of the marijuana fruiting tops and marijuana cigarette being offered him, Lt. Ancheta immediately identified himself as a police officer, arrested accused-appellant and brought him to the San Fernando Police Station where he was turned-over to the desk officer, Sgt. Carmelito Leyga, who entered the details of the arrest in the police blotter. Accused-appellant denied making the offer to sell and instead testified that he was at Dodies' Fishing Supply at Ortega Street with his friend Bonifacio Chan to buy fish hooks when he was suddenly tapped on the shoulder by somebody who whispered, "Don't try to involve somebody." After being ordered to undress, he was made to face the stranger who was holding something wrapped in paper and which he tried to pass off as that of accused-appellant by saying, "You are selling marijuana." Afterwards, accused-appellant was forced into a tricycle, brought to the municipal jail and there incarcerated for no reason. On 29 August 1989, rejecting the defense of frame-up and invoking the presumption of regularity in the performance of official duties in favor of the prosecution, Judge Benito A. Dacanay declared accused-appellant guilty of the offense charged and sentenced him to suffer life imprisonment and to pay a fine of P20,000.00. 1 Hence, this recourse to us. But for reasons set forth below, the appeal should be denied. Accused-appellant argues that his arrest was illegal because P/Lt. Ancheta had no authority to arrest persons in San Fernando, La Union, being then assigned at the Regional INP Command in Baguio City. 2 We cannot yield to appellant's view that just because Lt. Ancheta was assigned in Baguio City he could not arrest persons caught in the act of committing a crime in some other place, especially so where he was the intended victim. A policeman cannot callously set aside his essential duty of apprehending criminal offenders and of keeping peace and order on the shallow excuse that he is not in his place of assignment. His responsibility to protect the public by apprehending violators of the law, especially one caught in flagrante delicto is not limited by territorial constraints. It follows him wherever he goes. Moreover, Sec. 5, par. (a), Rule 113, of the Revised Rules on Criminal Procedure authorities a warrantless arrest, otherwise called a citizen's arrest, "when, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense." Thus, although officially assigned in Baguio

City, Lt. Ancheta's act of arresting accused-appellant (after the latter offered to sell him marijuana in San Fernando, La Union) is justified not only by his duty as a law enforcer but also by Sec. 5 of Rule 113, which authorizes instances of warrantless or citizens' arrests. Second, accused-appellant takes exception to the fact that the trial judge accepted the uncorroborated testimony of P/Lt. Ancheta over his which was in fact corroborated by two other witnesses. The argument is without merit. No rule exists which requires that a testimony has to be corroborated to be adjudged credible. 3 Witnesses are to be weighed, not numbered, 4 hence, it is not at all uncommon to reach a conclusion of guilt on the basis of the testimony of a single witness and despite the lack of corroboration where such testimony is found positive and credible by the trial court. In such a case, the lone testimony is sufficient to produce a conviction. 5 For although the number of witnesses may be considered a factor in the appreciation of evidence, preponderance is not necessarily with the greatest number 6 and conviction can still be had on the basis of the credible and positive testimony of a single witness more so when such testimony proceeds from the positive narration of a police officer who, in addition, has to his credit the presumption of regularity in the performance of official duty and obedience to law. 7 Narration of an incident by prosecution witnesses who are police officers and who are presumed to have regularly performed their duties is credible. 8 In the case at bench, while details of accused-appellant's offense came from the lone testimony of P/Lt. Ancheta, that of the defense is admittedly corroborated by the testimonies of witnesses Gabriel Galvez and Bonifacio Chan. However, such fact failed to render the version offered by the defense more credible and believable than that of the prosecution. Apart from the fact that both Galvez and Chan are not entirely disinterested witnesses, being a companion in the fishing business 9 and close friend or barkada of accused-appellant, 10 respectively, a review of their respective testimonies visa-vis that of accused-appellant reveals certain points which render their corroboration not so reliable, as correctly concluded by the court a quo. Accused-appellant testified that in the morning of 12 September 1986 while packing fish in the house of Junior Galvez (also known as Gabriel Galvez), he suddenly remembered that somebody from Pangasinan requested him to buy fish hooks and that was why he asked permission from Galvez to go to Dodies Fishing Supply at Ortega Street. 11 However, Junior Galvez testified that it was he himself who asked accused-appellant to buy the fish hooks and that he did so in the same morning in question. 12 Secondly, Galvez testified that he was informed about the arrest of accused-appellant by the latters grandmother, an old woman called Isten (not presented as a witness). 13 However, Bonifacio Chan claimed that it was from him that Gabriel Galvez learned of the incident. 14 Third, while Bonifacio Chan corroborated accusedappellant's defense by claiming to have witnessed the alleged frame-up, it is curious to note that Chan did not even lift a finger to help accused-appellant (his supposed close friend) while the latter was allegedly being ordered to undress and forced into a vehicle by an "unknown man" in civilian clothes for no apparent reason. Instead, Chan appeared unaffecfed by his friend's fate for he just went home after the incident 15 and did nothing except to inform Galvez (who even denied that he learned about the incident from Chan) about the arrest, who in the same manner, likewise did nothing by way of succor. 16 If the story about the alleged frame-up is true, a friend as Chan claims himself to be would do everything in his power to assist his friend and not abandon him as Chan practically did. It even appears from the records that Bonifacio Chan initially refused to testify for the defense (by refusing to receive the subpoena being served on him) and denied any knowledge about the incident, nay, even his close association with accused-appellant. 17 Third, accused-appellant argues that there was misappreciation of evidence since the judge who decided the case was not the one who conducted the trial. 18

Again, we cannot ascribe any merit to the argument since it is now well recognized that the fact that the judge who heard the evidence is not himself the one who prepared, signed and promulgated the decision, but some other judge in his place, constitutes no compelling reason to jettison his findings and conclusions 19 and does not per se render it erroneous. 20 The trial judge's assessment of the credibility of a testimony is not to be anchored solely on how the witness conducted himself on the witness stand. Aside from the danger of being misled by appearance inherent in such a case, a judge is supposed to render a decision on the basis of the evidence before him, i.e., records and all. Although an undeniable tool in arriving at the correct decision, the failure of the trial judge to observe the witnesses testify on the stand in no way affects the validity of the judgment rendered or ipso facto condemns it as erroneous more so where the judgment appears to be fully supported by the evidence on record as in the case at bench. Finally, with respect to accused-appellant's contention that his constitutional rights were violated during the custodial investigation conducted by the San Fernando Police, we can only say that although he was admittedly not informed of his constitutional rights, much less assisted by counsel during the interrogation, such did not paralyze the cause for the prosecution because the confession allegedly elicited from him that the subject marijuana was indeed confiscated form him 21 does not constitute the whole fabric of the evidence for the prosecution. It should be remembered that accusedappellant's attempt at selling marijuana was succinctly and clearly detailed by the positive testimony of P/Lt. Ancheta as earlier pointed out. Thus, although the alleged admission is inadmissible in evidence having been obtained from accused-appellant without the assistance of counsel, the act constituting the offense (offer to sell marijuana) was nevertheless credibly established by the prosecution coupled with the presentation of the corpus delicti 22 of the offense making accused-appellant's conviction inevitable. But, a modification in the penalty imposed on accused-appellant is called for in view of the amendments introduced by R.A. No. 7659. 23 The court a quo sentenced accused-appellant to life imprisonment and to pay a fine of P20,000.00. However, under Sec. 20 of R.A. No. 6425 (The Dangerous Drugs Act of 1972) as amended by Sec. 17 of R.A. No. 7659, the illegal sale of marijuana is now penalized with reclusion perpetua to death and a fine ranging from P500,000.00 to P10,000.00 if the marijuana unlawfully sold is 750 grams or more; otherwise, if the quantity is less than 750 grams, the penalty shall range from prision correccional to reclusion temporal 24 without fine. Since the amount of marijuana confiscated from accused-appellant is only 2.9452 grams, the proper imposable component penalty is prision correctional to be applied in its medium period in view of the absence of any mitigating or aggravating circumstance. Applying the Indeterminate Sentence Law, the maximum penalty shall be taken; from the medium period of prision correctional, which is two (2) years, four (4) months and one (1) day to four (4) years and two (2) months, while the minimum shall be taken from the penalty next lower in degree, which is arresto mayor the range of which is one (1) month and one (1) day to six (6) months. WHEREFORE, the decision of the Regional Trial Court of San Fernando, La Union, Br. 28, declaring accused-appellant JOSE RAYRAY Y AREOLA guilty of violating Sec. 4, of Art. II, of R.A. No. 6425 is AFFIRMED with the modification that he is sentenced to suffer an indeterminate prison term of six (6) months of arresto mayor maximum as minimum to four (4) years and two (2) months of prision correccional medium as maximum. It appearing that accused-appellant has already been detained at the New Bilibid Prisons in Muntinlupa for more than seven (7) years; he is ordered immediately released from custody unless he is held for some other lawful cause. SO ORDERED.

G.R. No. 125311

March 17, 1999

PEOPLE OF THE PHILIPPINES plaintiff-appellee, vs. ONYOT MAHINAY and QUIRINO CAETE, accused, QUIRINO CAETE, accused-appellant. VITUG, J.: Quirino Caete appeals from the decision 1 in Criminal Case No. 9304 of the Regional Trial court of Negros Oriental, Branch 39, stationed at Dumaguete City, finding him guilty beyond reasonable doubt of the crime of murder for the killing of Manolo Mission and imposing upon him the penalty of reclusion perpetua and the payment of indemnity to the heirs of the victim in the amount of P50,000.00. The information, filed on 18 May 1990, charging Quirino Caete and one Onyot Mahinay with the crime of murder, reads: That on or about 12:30 o'clock dawn of March 18, 1990, at Crossing Cawayan, Barangay Tadlong, Mabinay, Negros Oriental, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating and mutually helping one another, with intent to kill, evident premeditation and treachery, did, then and them willfully, unlawfully and feloniously attack, assault and stab one MANOLO MISSION with the use of a hunting knife and icepick, with which the said accused were then armed and provided, thereby inflicting upon said MANOLO MISSION the following wounds or injuries, to wit: 1. 2. 3. Stab wound about 6 cm. long epigastric area with evisceration of intestine; Stab wound about 2 cm. long lower lateral side of right chest; Stab wound about 1.5 cm. long right arm;

which wounds caused the death of said MANOLO MISSION shortly thereafter. Contrary to Article 248 of the Revised Penal Code. 2 Quirino Caete was apprehended by the authorities on 17 May 1990 in Barangay Ambayao, Valencia, Bukidnon. His coaccused, Onyot Mahinay, remained at large. The trial proceeded only against accused Caete who, upon arraignment, entered a plea of not guilty. The prosecution first presented its evidence. On 18 March 1990, the eve of the Barangay Tadlong fiesta, in Negros Mabinay, Negros Oriental, a public dance was held. Among those who were in attendance were Quirino Caete, Onyot Mahinay and Manolo Mission. Later that evening, Joel Mission saw his uncle, Manolo Mission, arguing with Caete outside the dance hall. At about 12:30 a.m., Joel and his uncle decided that it was time to leave. On the way home, at a street fronting the barangay hall, Manolo noticed that they were being followed by Caete. Manolo stopped and turned to face Caete. Soon, the two figured in an argument. Suddenly, Onyot Mahinay came from behind Manolo and stabbed the latter, hitting him on the stomach. Onyot Mahinay started to flee but Manolo made an attempt to chase him. Then, once again, Onyot Mahinay faced Manolo. The latter

received another stab thrust, this time hitting him on his right hand. When Manolo started to walk away, Caete followed and stabbed the already injured victim on the right side of his body and on his chest. Joel witnessed the entire episode. Fear, however, took the better part of him, and he was unable to extend help to his uncle during the critical moments. His proximity enabled him to hear Manolo remark, "I was hit Yo, and Quirino Caete was chasing me." 3 The fluorescent lamps in the area illuminated the place. In the vicinity were Roman Bucog and Jose Mait. Joel dared approach Manolo only when the two malefactors had fled. His other uncle, Peter Peras, and he brought the wounded Manolo, using a cargo truck owned by Joel's grandfather, Basilio, to the Medicare Unit in Mabinay and, later, to the Negros Oriental Provincial Hospital where Manolo succumbed to his wounds at around seven o'clock in the morning of 19 March 1990. 4 Another eyewitness was Roman Bucog who, together with his wife, had also come from the dance party at just about the same time as the others. He and his wife saw at a short distance of about four arms length, Onyot Mahinay and Manolo first engaged, evident by their gestures, in an argument. Caete, who was wearing a shirt with green stripes, was beside Onyot Mahinay, Joel Mission and Jose Mait. There were other people at the opposite side of the road. The fluorescent lamps and the moonlight that sufficiently illuminated the area helped Roman recognize Onyot Mahinay in the act of stabbing Manolo. After he was stabbed, Manolo was still able to turn around in an attempt to go after his attacker. Roman thereupon saw Caete stab Manolo on his chest causing the latter to fall to the ground. According to Roman, Caete was armed with an icepick while Onyot had with him a hunting knife. Jose Mait testified that he was walking towards the house of Basilio Mission, Joel's grandfather, after coming from the dance when he too saw stabbing incident. Jose first saw Onyot Mahinay strike Manolo and Manolo attempted to get to Onyot Mahinay, Caete stabbed Manolo the right side of his body. Onyot Mahinay and Caete scampered. Jose assisted Joel and Roman in getting Manolo onto a cargo truck to take him to a hospital. Manolo was in a state of shock when brought to the Negros Provincial hospital. Henrissa Calumpang, a resident physician of the hospital examined the stab wounds inflicted on the patient. Despite the prompt medical assistance administered to him, Manolo died approximately three hours later. The Death Certificate, 5 issued by Dr. Calumpang, indicated that Manolo had died of "hypovolemic shock, irreversible; stab wound about 6 cm. long epigastric area with evisceration of intestine; stab wound about 2 cm. long lower lateral side of right chest; stab wound about 1.5 cm. long right arm." Dr. Calumpang's examination revealed that the stab wound in the epigastric area, about 6 cms. long, was caused by the penetration of a sharp-pointed instrument with clean cut edges. According to the physician, there was a possibility that two sharp-pointed bladed weapons were used in inflicting Manolo's wounds. She opined that from the nature and location of the wounds, the relative position of the assailant could have been in front of the victim. Basilio Mission, the older brother of Manolo, testified that prior to his death, Manolo, who had three children, was an employee of their father working as a truck driver and receiving a monthly salary of P4,500.00. Their father shouldered the expenses of P15,000.00 for Manolo's wake and P7,600.00 for his coffin. The family spent P10,000.00 for attorney's fees. The defense interposed denial when its turn to present evidence followed. Caete admitted having been in the vicinity when the crime was penetrated but he denied any participation in the incident. He said that he had long resided in Bukidnon and went back to Mabinay, Negros Oriental, at around four o'clock in the afternoon of 18 March 1990 only to get some tools. Since it was the day of fiesta in Tadlong, his girlfriends, Gina and Elsie whose surnames he could not recall, invited him to attend the dance. He later met the girls at the dance

hall. He and the two girls left party at around midnight. After a while, he saw from a distance of about five arms-length, Manolo and Onyot Mahinay having an argument. Nearby were Joel and about twenty other people. A fluorescent lamp lighted the area. After Onyot Mahinay was heard to remark, "so you are here?," he stabbed Manolo. The latter shouted, "Oel, help!" Onyot Mahinay ran away. 6 Caete spent the rest of the night in Mabinay at the house of his parents. At around four o'clock in the morning of 19 March 1990, after slept for about three and a half hours, Caete took a "Ceres" passenger bus. He alighted from the bus in Tampi, San Jose, Negros en route to Cebu City where he took a boat for Cagayan. The boat Cebu City at about seven o'clock in the evening. He was met by his parent at the pier in Cagayan and, from there, they all proceeded to Valencia, Bukidnon. Caete was apprehended by police authorities at Barangay, Lumbayao, Valencia, Bukidnon, on 17 May 1991. He was taken to Mabinay, Negros Oriental, where he was first confined at the municipal jail transferred, three days later, to the provincial jail. He admitted having known Manolo quite well before he was killed since he had worked in the Mission farm for about six years prior to taking up residence in Bukidnon. He also worked before that in the Manolo residence for sixteen years from 1972 to 1988. Roman, with whom Onyot Mahinay stayed, was Caete's neighbor in Napasuan. Caete denied that he was with Onyot Mahinay at the dance party. The defense presented a certificate of good moral character 7 issued by the Punong Barangay of Lumbayao, Valencia, Bukidnon, stating that the accused was a resident of that locality. The trial court, allowed its admission "for whatever it may be worth." 8

After the parties had rested their respective cases, the trial court, on 31 January 1996, rendered its judgment finding accused Quirino Caete guilty of murder. It adjudged: WHEREFORE, in view of the foregoing considerations, judgment is rendered finding the herein accused Quirino Caete GUILTY beyond reasonable doubt of the crime of Murder defined under the provisions of Article 248 of the Revised Penal Code. There being no attendant mitigating circumstance, the said accused is sentenced to suffer the penalty of RECLUSION PERPETUA and ordered to indemnify the heirs of the victim the sum of FIFTY THOUSAND (P50,000.00) PESOS. SO ORDERED. 9 In this appeal from the judgment, the convicted accused pleads for his acquittal, arguing that: I THE COURT A QUO ERRED IN FINDING THAT CONSPIRACY ATTENDED THE KILLING OF VICTIM. II THE COURT A QUO ERRED IN FINDING THE ACCUSED-APPELLANT GUILTY BEYOND REASONABLE DOUBT OF THE CRIME OF MURDER. III

THE COURT A QUO ERRED IN ORDERING ACCUSED-APPELLANT TO INDEMNIFY THE HEIRS OF THE VICTIM THE SUM OF FIFTY THOUSAND PESOS. 10 The Court finds the appeal devoid of merit. The plea of innocence asserted by appellant brings the Court, once again, to the crucial question of credibility of witnesses and the weight that should be given to testimonial evidence. On this issue, the Court has almost invariably ruled that the matter of assigning value to the declaration witnesses is best done by trial courts which, unlike appellate courts, can assess such testimony in the light of the demeanor, conduct and attitude of the witnesses at the trial stage and thus, unless cogent reasons are shown, findings of the trial court are accorded great respect and credit. 11 Appellant would pound on the alleged inconsistencies in the testimony of the prosecution witnesses; thus: (a) Roman's testimony that Onyot Mahinay and Manolo were the ones arguing was contrary to the statement of Joel that appellant was the one conversing with Manolo while Jose, in his case, even failed to testify on the point; (b) the statement that left the dance hall alone and later went with Joel contradicted the latter's testimony that he was with his uncle in going home; (c) according to Joel, Roman was very near, in fact, just in front of Manolo and appellant trying to pacify them, and yet Roman declared having hidden behind a fishbox, 12 and (d) whereas Joel claimed that he was quite close to his uncle, he, however, did not do anything to help him when he needed it most. Inconsistencies, even if true, on negligible details do not destroy the veracity of testimony. Variations in the declaration of witnesses in respect of collateral or incidental matters do not impair the weight of testimony, taken in its entirety, to the prominent facts, 13 nor per se preclude the establishment of the crime and the positive identification of the malefactor. 14 Antithetically, minor incoherences can even serve to strengthen the credibility of witnesses and often are taken to be badges of truth rather than indicia of falsehood. Variance in the statement of witnesses substantially erases suspicion that the testimony given has been rehearsed. 15 It is, in fact, when the testimony appears to be totally flawless that a court can rightly have some misgivings on its veracity. 16 Besides, different persons have different reflexes that may produce varying reactions, impressions and recollections since no two individuals are alike in terms of powers of perception and recollection. 17 One testimony may be replete with details not found in the other but, taken as a whole, the versions can well concur on material points. Greatly significant was the fact that prosecution witnesses Joel, Roman and Jose had all positively attested to having actually seen Onyot Mahinay and appellant Caete stab Manolo. The conditions of visibility appeared to be favorable even according to appellant himself. Nothing was shown to indicate that the witnesses were biased. Neither could their relationship with the victim derail their credibility for it should not be lightly supposed that a relative of the deceased would callously violate his conscience to avenge the death of a dear one by blaming it on somebody known by him to be innocent. Joel's failure to help his uncle in the face of danger certainly would not, in consequence, negate the value of his eyewitness account nor imply that he deviated from the truth. No standard form of behavioral response, quite often said, could be expected from everyone when confronted with a startling or frightful occurrence. 18 Joel was apparently terrified by what he saw, and fear had been known to render people immobile and helpless particularly, such as here, in life and death situations. 19 The congruence between the testimonial and the physical evidence leads to the inevitable conclusion that the prosecution did not prevaricate its case. 20 Mere denial by an accused, particularly when not properly corroborated or substantiated by clear and convincing evidence, cannot prevail over the testimony of credible witnesses who testify on

affirmative matters. 21 Denial being in the nature of negative and self-serving evidence is seldom given weight in law. 22 Positive and forthright declarations of witnesses are often held to be worthier of credence than the self-serving denial of an accused. 23 The trial court correctly held that the Crime committed was murder under Article 248 of the Revised Penal Code. The victim was unarmed and defenseless when appellant attacked him. Although appellant's co-accused was the one who stabbed him first, Manolo was already in a defenseless position. He might have realized the danger confronting him but counter attack from his end was simply unlikely he was effectively made defenseless by the initial assault of Onyot Mahinay that caused the evisceration of his intestines. There could be treachery even when the victim had been warned of danger or initially assaulted frontally, but was attacked again after being rendered helpless with no means to defend himself or to retaliate 24 Treachery was correctly appreciated, its two conditions having concurred; i.e., (1) the employment of means of execution that gave the person attacked no opportunity to defend himself or to retaliate, and (2) the means of execution were deliberately and consciously adopted. 25 Conspiracy need not be established by direct evidence, for it may be inferred from the conduct of the accused before, during, and after the commission of the crime, which, if all taken together, would reasonably be strong enough to show a community of criminal design. 26 The concerted action of the appellant and Onyot Mahinay evinced the presence of conspiracy. There was an overt act on the part of the appellant showing that he joined Onyot Mahinay in his intent to perpetrate the crime. After Onyot Mahinay had rendered the victim helpless, appellant himself stabbed him as if wanting to be sure that Onyot Mahinay's criminal act would be so pursued to its intended culmination, i.e., the victim's death. Nevertheless, even if it were to be assumed that conspiracy was not established, appellant's liability would not be less than that adjudged by the court a quo since his own overt act of stabbing the victim had put him under the law to be himself a principal by direct participation. 27 The Court finds, however, the qualifying circumstance of evident premeditation alleged in the information not to have been sufficiently proven. The premeditation to kill should be plain and notorious. In the absence of clear and positive evidence proving this aggravating circumstance, mere presumptions and inferences thereon, no matter how logical and probable, would not be enough. 28 The trial court has thus correctly imposed reclusion perpetua, the medium period of reclusion temporal in its maximum period to death, the penalty imposable for murder at the time of its commission. The medium period of the penalty is imposed in the absence of any mitigating or aggravating circumstance. 29 In conformity with prevailing jurisprudential law, the trial court correctly awarded the amount of P50,000.00 as death indemnity to the heirs of the victim. 30 Regrettably, however, this court cannot grant actual damages absent competent and adequate proof therefor. In People vs. Degoma and Taborada 31 reiterated in People vs. Cordero, 32 we held: . . . Of the expenses allegedly incurred, the Court can only give credence to those supported by receipt and which appear to have been genuinely incurred in connection with the death, wake or burial of the victim. Thus, the Court cannot take account of receipts showing expenses incurred before the date of the slaying of the victim; those incurred after a considerable lapse of time from the burial of the victim and which do not have any relation to the death, wake or burial of the victim; those incurred for purely aesthetic or social purposes, such as the lining with marble of the tomb of the victim; those which appear to have been modified to show an increase in the amount of expenditure . . .; those expenditures which could not be reasonably itemized or determined to have been incurred in connection with the death, wake or burial of the victim; those which, nonetheless, would have been incurred despite the death, wake and burial of the victim, the death, wake and burial being merely incidental; and those which were not in fact shouldered by the immediate heirs of the victim, such as plane tickets by relatives or in-laws . . . . 33

In People vs. Alvero, Jr., 34 this Court deleted the award by the trial court of unearned income to the heirs of the victim, viz: Anent the RTC's award of P600,000.00 to cover the victim's unearned income, we hereby rule that the same should be deleted. The trial court arrived at this amount as . . . it has been established that Victor Alvaran at the time he was killed, was only 21 years old, single, a seaman, employed by the International Shipping Corporation, earning P2,000.00 a month. After 50 years, or at the age of 70, which is the average span of life of men in our country, he would have earned P1,200,000.00 or a net income (after expenses) of P600,000.00, but for his untimely death. (OR, 154, Rollo, 31.) Such a conclusion is rather sweeping, to say the least. There is no evidence to prove that at the time of his death, Alvaran had an existing contract with the International Shipping Corporation, his alleged employer. While Victoria Alvaran, (TSN, 29 August 1984, 5.) the victim's sister, testified on the matter of Victor's employment, she did not, however, testify as to whether the latter was a seaman serving on a domestic vessel or a vessel engaged in foreign trade; whether such employment was probationary or regular; or whether the contract of employment was still existing at the time of his death. There is, as well, no competent proof to show that the victim was on vacation. The Prosecution should have therefore presented the latter's contract of employment or any evidence that may have proven the nature and duration of his employment. The rule in this jurisdiction is that the measure of the loss or damage that dependents and intestate heirs of the deceased may sustain by reason of the latter's death is not the full amount of the deceased's earnings, but the support they received or would have received from him had he not died. 35 WHEREFORE, the herein assailed decision finding appellant Quirino Caete guilty beyond reasonable doubt of the crime of murder, imposing on him the penalty of reclusion perpetua, and ordering him to pay civil indemnity ex delicto in the amount of P50,000.00 is AFFIRMED. Costs against appellant. SO ORDERED.

FIRST DIVISION [G.R. No. L-8455. February 27, 1956.] GAUDENCIO MANIGBAS, ET AL., Petitioners-Appellees, vs. JUDGE CALIXTO P. LUNA, ETC., ET AL., Respondents. JUDGE CALIXTO P. LUNA, Respondent-Appellant.

DECISION BAUTISTA ANGELO, J.: On July 13, 1954, Gaudencio Manigbas and eleven others were charged with murder before the Justice of the Peace Court of Rosario, Batangas by Captain Epigenio Navarro, commanding officer of a constabulary detachment stationed in Alangilang, Batangas, Batangas. The complaint was later amended by including one Miguel Almario. Three days after the filing of the original complaint, counsel for the accused moved that they be granted bail for their provisional liberty and, on July 19, 1954, the court issued an order wherein, after reconsidering its previous order

denying bail to all, allowed to some the right to bail and denied to others. Both defense and prosecution filed a motion for reconsideration, the former asking that all the accused be granted bail while the latter pleading that all of them be denied because the justice of the peace court has no jurisdiction to grant bail in cases involving capital offenses. On July 21, 1954, the court entered an order setting aside its order of July 19, 1954 and restoring its original order denying bail to all the accused for the reason that in a long series of decisions promulgated by our Supreme Court in connection with the granting of bail to a person charged with a capital offense which were carefully examined by this court, there is not a single case wherein the Justice of the Peace Court entertained a petition for bail for a person charged with a capital offense and thereafter hear the evidence to determine whether the same is strong or not so as to warrant the giving of bail. Upon receipt of a copy of the aforesaid order, counsel for the defense filed with the Court of First Instance of Batangas, sitting in Lipa City, a petition for mandamus seeking in effect to compel the justice of the peace court of Rosario to receive evidence to determine if the same warrants the granting of bail to the accused. After the provincial commander and the justice of the peace put in their answers, the court on August 24, 1954 granted the petition holding that Respondent justice of the peace court has authority to grant bail even if the charge involves a capital offense and ordering said court to act on the application for bail. Hence this appeal. Before proceeding to discuss the merits of the presents controversy, there is need to dwell on a point of procedure which came up during the deliberation of this case. This has reference to the fact that, according to the record, the accused who have interposed this petition for mandamus are still at large for so far no order has been issued for their arrest. The record discloses that immediately upon the filing of the charge against them they applied for bail and their motion was immediately acted upon by the justice of the peace. And the denial of the bail eventually led to the filing of the present petition for mandamus. We hold that this petition is premature for its purpose is to compel the performance of a duty which does not exist there being no correlative right the use or enjoyment of it has been denied which may be the subject of mandamus (section 67, Rule 3); chan roblesvirtualawlibraryand this is so because the right to bail only accrues when a person is arrested or deprived of his liberty. The purpose of bail is to secure ones release and it would be incongruous to grant bail to one who is free. Thus, bail is the security required and given for the release of a person who is in the custody of the law (Rule 110, section 1), and evidently the accused do not come within its purview. We could therefore dismiss this petition on this score alone were it not for the importance of the issue now before us which requires proper elucidation for the guidance of all justices of the peace who may be found in similar predicament. The issue to be determined is whether a justice of the peace can, in a case involving a capital offense, act on an application for bail and receive evidence to determine if the evidence of guilt is strong or otherwise grant bail if the evidence so warrants. Under our Constitution, all accused persons before conviction are entitled to bail except those charged with capital offenses when evidence of guilt is strong (Article III, section 1, paragraph 16). Under our rules, in non-capital offenses, after judgment by a justice of the peace and before conviction by the court of first instance, an accused is entitled to bail as a matter of right (Rule 110, section 3); chan roblesvirtualawlibrarybut, after conviction by the Court of First Instance, Defendant may, upon application, be bailed at the discretion of the court. (Rule 110, section 4.) And implementing the provision of our Constitution, the rule also provides that No person in custody for the commission of a capital offense shall be admitted to bail if the evidence of his guilt is strong (Rule 110, section 6). The burden of showing that the evidence of guilt is strong is on the prosecution (Rule 110, section 7).

While as a general rule it may be stated that an application for bail may be acted upon by the court which has cognizance of the case regardless of whether it involves a capital offense or not, (Peralta vs. Ramos, 71 Phil., 271) and as a general proposition we may concede that justices of the peace before whom a case is initiated by the filing of the corresponding complaint or information have also authority to entertain petitions for bail in cases involving non- capital offenses as to which the accused are entitled to bail as a matter of right, however, doubt is entertained as to whether said justices of the peace can likewise entertain bail while the cases are under their control if they involve capital offenses like the one under consideration. This doubt has arisen because the law and the rules on the matter are not explicit enough and our jurisprudence has not so far laid down a clear-cut ruling clarifying this point in this jurisdiction. In the United States it may be stated as a general rule that all judicial officers having the power to hear and determine cases have the power to take bail. It is regarded as a necessary incident to the right to hear and determine the cause (6 Am Jur., p. 67). And with particular reference to justices of the peace, the general rule is that where, under the statutes, justices of the peace have power as examining magistrates, with power of commitment, they may in their discretion admit to bail; chan roblesvirtualawlibraryexcept, where their power to take bail is limited by the Constitution, or by statute, in which case they must act within the express or implied limitations thereby laid down (6 C.J., 973-974). But the prevailing rule is that inferior officers vested only with the power to commit cannot, without express legislative enactment, take bail in capital offenses, for the determination of the sufficiency of the evidence in such cases, in order to entitle the accused to bail, is a matter of the greatest importance both to the accused and to the state and is the appropriate province of the court entrusted with the trial of such cases (6 Am. Jur. p. 67). Considering the general rule that justices of the peace have the power as examining magistrates to commit and in their discretion admit to bail an accused person unless such power is limited by the Constitution or by statute, can we say that in this jurisdiction our justices of the peace have also the power to admit to bail a person accused of a capital offense? Our answer must of necessity be in the affirmative not only because there is no such limitation in our Constitution but because the Judiciary Reorganization Act of 1948 seems to expressly confer this power upon them. We refer to sections 87 and 91 of said Act relative to the power of justices of the peace to conduct preliminary investigations and the incidental powers they may exercise in relation thereto. The first section provides that the justices of the peace may conduct preliminary investigations for any offense alleged to have been committed within their respective municipalities cralaw without regard to the limits of punishment, and may release, or commit and bind over any person charged with such offense to secure his appearance before the proper court. And section 91 provides that the same justices of the peace may require of any person arrested a bond for good behavior or to keep the peace, or for the further appearance of such person before a court of competent jurisdiction. The only limitation to this power is that the bond must be approved by that court. These provisions are broad enough to confer upon justices of the peace the authority to grant bail to persons accused even of capital offenses for such is the only meaning that we can give to the phrase bind over any person charged with such offense to secure his appearance before the proper court. This is the meaning of bail as defined in section 1 of Rule 110. Some apprehension has been expressed by some members of the Court over the fact that if such power is given to justices of the peace in capital cases the power may be abused or improperly exercised considering the fact that some of them are not lawyers or are politicians like the mayors who may act under the law when the incumbent justices are temporarily absent (section 3, Rule 108). While the possibility of abuse cannot be denied such cannot argue against the existence of the power and if there is need for a remedy such devolves upon Congress. But before such curative measure is adopted, our duty is to apply the law as we see it regardless of its implications. And in the event that an abuse is committed, the situation is not without a remedy. The government can immediately take steps to obtain appropriate relief and, we are sure, the proper court will not deny prompt action when necessary to promote the

interests of justice. We are therefore of the opinion that Respondent justice of the peace can act on the application for bail taking into account the evidence that may be presented by the prosecution. In this respect the order appealed from is correct. Considering that the petition for mandamus is premature, the same should be dismissed with costs against Petitioners.

A.M. No. MTJ-00-1321

March 10, 2004

VICTORY LINER, INC., represented by JOHNNY T. HERNANDEZ, President, complainant, vs. JUDGE REYNALDO B. BELLOSILLO, respondent. DECISION DAVIDE, JR., C.J.: For our resolution is the verified complaint of Victory Liner, Inc. (VLI) against respondent Judge Reynaldo B. Bellosillo, then Presiding Judge of the Municipal Circuit Trial Court (MCTC) of Orani, Bataan, and Acting Presiding Judge of the MCTC of Dinalupihan-Hermosa, Bataan, for gross ignorance of the law, grave abuse of authority, oppression, and inaction on a pending motion. The antecedent facts are as follows: On 2 March 2000, while a Victory Liner bus bearing Plate No. CWF-935 was cruising along the National Highway of Dinalupihan, Bataan, it accidentally hit and fatally injured Marciana Bautista Morales. Marciana died the following day. VLI shouldered all the funeral and burial expenses of Marciana. Subsequently, on 6 March 2000, VLI and the heirs of the victim entered into an Agreement/Undertaking.1 On 14 March 2000, after payment by VLI of the claims, Faustina M. Antonio, the authorized and designated representative of the heirs of the victim, executed a Release of Claim2 and an Affidavit of Desistance3 in favor of VLI and the driver Reino de la Cruz. However, earlier or on 3 March 2000, two of Marcianas sons Rolando B. Soriano and Jimmy B. Morales, who were also signatories to the Agreement/Undertaking, executed a Pinagsamang Salaysay4 against Reino de la Cruz. On the strength of that document, a criminal complaint was filed with the MCTC of Dinalupihan-Hermosa, Bataan, for reckless imprudence resulting in homicide,5 which was docketed as Criminal Case No. 10512. After preliminary examination, or on 13 March 2000, respondent Judge Bellosillo ordered the immediate issuance of a warrant of arrest against De la Cruz and fixed his bail at P50,000 to be posted in cash. He further directed the Chief of Police of Dinalupihan, Bataan, to immediately impound the bus involved in the accident, which could be released only upon the posting of a cash bond in the amount of P50,000.6 On 30 March 2000, VLI filed a Manifestation and Motion7 manifesting that it was depositing to the court under protest a cash bond of P50,000 for the release of its bus. After making the deposit, VLIs counsel presented the receipt issued by the Clerk of Court of MCTC, Dinalupihan, to the Chief of Police of Dinalupihan, Bataan, who then released the bus.

On 4 April 2000, VLI filed with respondents court a petition8 to declare null and void the order directing it to post bond for the release of its bus. This petition was, however, dismissed for improper venue and lack of jurisdiction. On that same day also, respondent Judge Bellosillo issued an order directing the Chief of Police of Dinalupihan, Bataan, and his deputies and investigators to explain in writing why they should not be held in contempt of court for, and be administratively charged with, having released without a court order the Victory Liner bus involved in Criminal Case No. 10512. Thus, the bus was re-impounded by the police authorities of Dinalupihan, Bataan. Subsequently, on 18 April 2000, respondent Judge acted on VLIs Manifestation and Motion dated 30 March 2000 and issued an order9 for the release of the bus. On 23 June 2000, VLI filed a verified complaint10 with the Office of the Court Administrator (OCA) claiming that the respondent (a) is guilty of gross ignorance of the law in impounding its bus and requiring it to post a cash bond for the release of the bus; (b) gravely abused his authority when it revoked the surety bond of one of VLIs driver Edwin Serrano in Criminal Case No. 9373; (c) knowingly rendered an unjust and oppressive order when he increased the bond to P350,000 and required that it be posted in cash; (d) gravely abused his authority when he ordered the police authorities of Dinalupihan, Bataan, to file a case against Reino de la Cruz; and (e) is guilty of inaction or dereliction of duty in failing to resolve, despite the lapse of two months, VLIs petition for the nullification of the order requiring the posting of a cash bond for the release of the bus involved in the accident. Later, VLI filed with the Office of the Chief Justice a verified supplemental complaint against the respondent, which was forthwith indorsed to the OCA. In his comment,11 respondent Judge Bellosillo explains that in the exercise of his sound discretion and in the greater interest of justice and fair play, he required a cash bond of P50,000 for the release of the police-impounded vehicle to answer for damages by way of subsidiary liability in case of accuseds insolvency. The requiremen t of a bond for the release of impounded vehicles involved in reckless imprudence cases is practiced not only by him but by other judges throughout the country. As for his order for the re-impounding of the Victory Liner bus, respondent Judge claims that it was just under the circumstances considering that its prior release was illegal. The payment of cash bond for the release of the impounded vehicle was made by the VLI when respondent Judge was at his official station in the MCTC of Orani-Samal, Bataan. Thus, in his absence, no order could have been issued for the release of the impounded vehicle. If ever said vehicle had to be re-impounded, it was the fault of VLIs counsel, as he was the one who misled the police authorities into believing that with the payment of the bond, the bus could already be released. The respondent justifies the substitution of the surety bond of accused Edwin Serrano in Criminal Case No. 9373 with a cash bond on the strength of the prayer of the prosecutor that the bond be posted in cash in view of the gravity of the offense. The Rules of Court leave to the discretion of trial judges the question of whether a bail should be posted in the form of a corporate surety bond, property bond, cash deposit, or personal recognizance. Having found that Serranos surety bond, which was not even attached to the information but merely noted on the third page thereof, was in a minimal amount and had expired already, he required a cash bond. He increased the bond after considering that Serrano was a fugitive from justice. Respondent Judge Bellosillo denies that he ordered the police authorities of Dinalupihan to file the criminal case against Reino de la Cruz. He points to (a) the Pinagsamang Salaysay dated 3 March 2000 of Rolando B. Soriano and Jimmy B. Morales, which was the basis for the filing of the criminal complaint by the police investigator and; (b) the fact that said

criminal complaint filed by the police investigator was duly approved by the Chief of Police. Thus, with these circumstances, it could not be said that he compelled the police authorities into filing the criminal case. As to the charge of dereliction of duty for failure to act on the petition for the nullification of the order requiring a bond for the release of VLIs bus, respondent Judge avers that the same is baseless. Contrary to VLIs contention, he acted on that petition as early as 10 April 2000, which was the date set by VLIs counsel for the hearing of such petition.12 VLIs counsel did not appear on that date and refused to accept or receive notices of hearing and court orders from court personnel. In his Report and Recommendation, retired Justice Narciso T. Atienza, the OCA Consultant to whom this case was referred by the Court, submits that Judge Bellosillos resignation, which was accepted by the Court En Banc effective 27 March 2002, does not render moot and academic the instant administrative complaint. He finds that the respondent Judge erred in ordering the impounding of the Victory Liner bus and in requiring a cash bond of P50,000 for its release; in fixing an excessive bail bond for Reino de la Cruz in Criminal Case No. 10512; and in increasing the bail bond of Edwin Serrano in Criminal Case No. 9373 unconscionably from P60,000 to P350,000. He then recommends that the respondent Judge be penalized with a fine of P20,000. But for lack of evidence, he exonerates respondent Judge from complainants charge that he compelled the police authorities into filing the criminal case against De la Cruz. As to respond ents alleged inaction on VLIs petition to declare null and void the order requiring a bond for the release of the subject bus, Justice Atienza finds that the said petition was resolved on 10 April 2000, right on the day it was submitted for resolution. Likewise, he disregards the additional charges in the supplemental complaint, there being no showing that the respondent received a copy thereof. Justice Atienza also notes that in A.M. No. 00-1293, promulgated on 5 July 2000, respondent Judge was reprimanded for issuing a policy action and an order beyond the scope of his authority; and in MTJ No. 00-1308, promulgated on 16 December 2002, respondent Judge was found guilty of undue delay in rendering a decision and was ordered to pay a fine of P11,000 to be taken from his retirement benefits. He further notes the pending administrative cases against respondent Judge: (1) OCA IPI No. 96-232-MTJ for conduct unbecoming a judge; (2) OCA IPI No. 98-533-MTJ for ignorance of the law, grave abuse of discretion, and gross misconduct; (3) OCA IPI No. 96-203-MTJ for issuing an unjust interlocutory order and gross ignorance of the law; (4) A.M. No. 99-1222 for violation of the constitutional rights to information and to speedy trial; and (5) undocketed cases for unprofessional and ill-mannered conduct, refusing to receive documents, and illegal possession of firearms. Verily, the resignation of respondent Judge Bellosillo does not render moot and academic the instant administrative case. The jurisdiction that the Court had at the time of the filing of the administrative complaint is not lost by the mere fact that the respondent judge ceased to be in office during the pendency of this case. The Court retains its jurisdiction to pronounce the respondent official innocent or guilty of the charges against him. A contrary rule would be fraught with injustice and pregnant with dreadful and dangerous implications.13 We agree with Justice Atienza in exonerating the respondent from the charges of inaction on a pending motion and of compelling the police authorities to file a criminal case against De la Cruz. We, however, hesitate to hold the respondent administratively accountable for gross ignorance of the law in ordering (1) the impounding of the vehicle involved in the vehicular accident and (2) the posting of a P50,000 bond for the release of the vehicle, both of which were found by OCA Consultant Atienza to be erroneous. Notably, in its Motion to Resolve, VLI submits that this case presents a good occasion for us to resolve, among other issues, "the legality of the imposition by trial judges on bus operators to post bail bond for their impounded vehicles in

accident cases, in addition to the bail bond required for the provisional liberty of accused-drivers." According to VLI, our ruling on this matter would guide trial court judges nationwide in accident cases so that bus operators and their personnel would not be at the mercy of judges like the respondent in this case, who during his incumbency had been requiring vehicle owners involved in accidents to post cash bonds for the release of impounded vehicles. In Lacadin v. Mangino,14 the respondent Judge therein was sought to be administratively liable for extending the lifetime of a search warrant issued by him. We held that even if he may have committed an error of judgment or an abuse of discretion for such act, he cannot be punished administratively therefor in the absence of proof that he was motivated by ignominy or ill-will. Moreover, we ruled that the administrative case is not the right forum to determine whether the life of a search warrant may be extended by the court upon proper motion filed before the expiration of the 10-day period. Worth noting also is the case of Caas v. Castigador.15 In that case, an Isuzu trailer truck involved in a vehicular mishap was ordered impounded in an Order of 11 September 1996 of the trial court where the criminal case against its driver was pending. That order was addressed to the Chief of Police of General Trias, Cavite, or any officer of the law. In an earlier order of 14 August 1996, the vehicle owner was required to surrender the truck to the court. Subsequently, on motion of the prosecutor, the trial court declared the vehicle owner guilty of indirect contempt for continued defiance of the 11 September 1996 Order. However, upon the vehicle owners petition, we found respondents order holding the petitioner therein guilty of indirect contempt to be highly improper for several reasons. But we did not pass upon the issue of the legality of the impounding of the vehicle involved in the vehicular accident. We did not declare the order for the impounding of the vehicle to be illegal or unauthorized. If it were so, it could have been one of the several reasons for admonishing the respondent Judge therein. In the same vein, this administrative case is not the right forum to determine the issue of the legality of respondents order requiring VLI to post a cash bond for the release of its impounded vehicle. VLI should have raised that issue in the proper courts and not directly to us, and much less by way of an administrative case. There is after all a hierarchy of courts. As we have said in Santiago v. Vasquez,16 the propensity of litigants and lawyers to disregard the hierarchy of courts in our judicial system by seeking a ruling directly from us must be put to a halt.17 It must be recalled that on 4 April 2000, VLI filed with respondent judges court a Petition to Declare Order Directing Victory Liner, Inc., to Post Bond for the Release of the Bus Null and Void.18 In that petition, VLI submitted that there is no legal basis for the order directing the impounding of the bus and the posting by the bus owner of a cash bond for its release, and hence that order is void ab initio.19 However, despite notice, VLIs counsel Atty. Reynaldo R. Romero did not appear on 10 April 2000, the schedule20 for the hearing of that petition as set by him.21 The respondent thereupon issued an order22 dismissing the petition outright on grounds of improper venue and lack of jurisdiction, and ordering that a copy of the said order be furnished VLIs counsel at his given address. However, VLIs counsel reportedly refused to accept or receive from court personnel notices of hearing and court orders. And, according to respondent Judge, he (VLIs counsel) never appeared and continued not to appear before the respondent for reasons known only to him.23 VLI cannot, therefore, resurrect that issue directly before us, and much less through a mere verified administrative complaint or motion to resolve. To allow VLI to raise that issue before us and obtain a ruling thereon directly from us through an administrative case would be to countenance a disregard of the established rules of procedure and of the hierarchy of courts. VLI would thus be able to evade compliance with the requirements inherent in the filing of a proper petition, including the payment of docket fees. Hence, we shall shun from passing upon that issue in this case.

In any event, the absence of a ruling in Caas v. Castigador on the legality of the impounding of vehicles involved in an accident, as well as the foregoing statements of VLI in its Motion to Resolve, implies that there is yet no clear-cut policy or rule on the matter. They would, therefore, negate a finding of gross ignorance of the law or grave abuse of authority on the part of respondent Judge. Moreover, even assuming that the acts of the respondent in ordering the impounding and subsequent re-impounding of the subject vehicle and in requiring the posting of a cash bond for its release were erroneous, as found by OCA Consultant Atienza, such are errors of judgment that cannot be the subject of a disciplinary action absent proof of fraud, dishonesty, corruption, or bad faith.24 A judge may not be held administratively liable for every erroneous order or decision he renders. To hold otherwise would be to render a judicial office unbearable, for no one called upon to try the facts or interpret the law in the process of administering justice can be infallible in rendering a judgment. For a judge to be held administratively liable for ignorance of the law, it is necessary that the law be sufficiently basic that all that the judge must do is to simply apply it;25 or that the error must be gross or patent, deliberate and malicious, or incurred with evident bad faith.26 We, however, find respondent administratively liable for imposing excessive cash bail bonds on accused Reino de la Cruz in Criminal Case No. 10512 and Edwin Serrano in Criminal Case No. 9373. The Constitution guarantees to every person under legal custody the right to bail except those charged with offenses punishable with reclusion perpetua when evidence of guilt is strong.27 Section 9, Rule 114 of the 1985 Rules on Criminal Procedure, as amended,28 provides that in fixing the amount of bail, the judge must primarily consider the following factors: a) Financial ability of the accused to give bail; b) Nature and circumstances of the offense; c) Penalty for the offense charged; d) Character and reputation of the accused; e) Age and health of the accused; f) The weight of the evidence against the accused; g) Probability of the accused appearing in trial; h) Forfeiture of the bonds; i) The fact that the accused was a fugitive from justice when arrested; and j) The pendency of other cases in which the accused is under bond. The amount of bail should, therefore, be reasonable at all times. It should be high enough to assure the presence of the accused when required, but no higher than is reasonably calculated to serve this purpose. Excessive bail shall not be required.29 In implementing this mandate, the accuseds financial capability should particularly be considered. What is reasonable to a wealthy person may not be so to a man charged with a like offense. Where the right to bail exists, it should not be rendered nugatory by requiring a sum that is excessive.30

Moreover, under the 2000 Bail Bond Guide of the Department of Justice (DOJ), crimes of reckless imprudence resulting in homicide and with violation of the Land Transportation and Traffic Code, bail shall be P30,000 regardless of the number of deaths. 31 De la Cruz and Serrano were both charged with the offense of reckless imprudence resulting in homicide. Although permanently employed as drivers of VLI, it could not be said that each was capable of posting a cash bail bond of P50,000 and P350,000, respectively. In fixing such amounts, the respondent apparently did not take into account the gravity of the offense charged and the financial capability of the accused. He thereby willfully disregarded the guidelines under Section 9, Rule 114 of the 1985 Rules on Criminal Procedure, as amended, and the 2000 Bail Bond Guide of the DOJ. In effect, he violated the constitutional right of the accused to bail, as well as the prohibition against excessive bail, making the right, in the words of Justice Jackson, "a teasing illusion like a munificent bequest in a paupers will."32 The bail fixed by the respondent is all the more excessive because it was in the form of cash. The posting of a cash bond would entail a transfer of assets into the possession of the court, and its procurement could work untold hardship on the part of the accused as to have the effect of altogether denying the accuseds co nstitutional right to bail. On the other hand, a surety bond may be obtained by the accused upon the payment of a relatively small premium. A surety or property bond does not require an actual financial outlay on the part of the bondsman or the property owner. Only the reputation or credit standing of the bondsman or the expectancy of the price at which the property can be sold is placed in the hands of the court to guarantee the production of the body of the accused at the various proceedings leading to conviction or acquittal.33 While cash bail is authorized under our rules, the option to deposit cash in lieu of a surety bond primarily belongs to the accused,34 as can be gleaned from the language of Section 14, Rule 114 of the 1985 Rules on Criminal Procedure, as amended,35 which read: SEC. 14. Deposit of cash as bail. The accused or any person acting in his behalf may deposit in cash with the nearest collector of internal revenue or provincial, city, or municipal treasurer the amount of bail fixed by the court or recommended by the prosecutor who investigated or filed the case, and upon submission of a proper certificate of deposit and of a written undertaking showing compliance with the requirements of Section 2 hereof, the accused shall be discharged from custody. The respondent judge, therefore, grossly erred in converting Serranos surety bond to cash bond and in demanding that De la Cruz post a cash bond to obtain their provisional liberty.36 It bears repeating that judges should exhibit more than cursory acquaintance with the basic legal norms and precepts, as well as with statutes and procedural rules. As advocates of justice and visible representations of the law, they are expected to keep abreast with the law and jurisprudence, and be proficient in the application and interpretation thereof. When the law or rule is basic, judges owe it to their office to simply apply it; anything less than that is gross ignorance of the law.37 In light of our current jurisprudence,38 the respondent should be fined in the amount of P10,000 for his act of imposing on accused De la Cruz and Serrano an excessive bail to be posted in cash in violation of pertinent rules and guidelines, as well as the constitutional right of the accused to bail and the proscription against excessive bail.

WHEREFORE, for gross ignorance of the law and oppression in imposing excessive cash bail bonds on Reino de la Cruz in Criminal Case No. 10512 and Edwin Serrano in Criminal Case No. 9373, respondent Judge Reynaldo B. Bellosillo is hereby ORDERED to pay a fine of Ten Thousand Pesos (P10,000) to be taken from his retirement benefits. SO ORDERED.

A.M. No. RTJ-93-936

September 10, 1993

ALBINA BORINAGA, complainant, vs. JUDGE CAMILO E. TAMIN, Regional Trial Court, Branch 23, Molave, Zamboanga del Sur, respondent. REGALADO, J.: In a sworn letter-complaint 1 dated November 20, 1992 filed by Albina Borinaga, herein respondent Judge Camilo E. Tamin of the Regional Trial Court of Molave, Zamboanga del Sur, Branch 23 was charged with grave incompetence and ignorance of the law in connection with Criminal Case No. 92-10-300 for murder, entitled "People vs. Antonio Ruaya, et al.," which is now pending before said court. On January 26, 1993, this Court required respondent judge to file his comment and, upon receipt thereof, the matter was referred to the Office of the Court Administrator for evaluation, report and recommendation. On July 28, 1993, Deputy Court Administrator Juanito A. Bernad submitted a memorandum 2 with the corresponding evaluation and recommendation, duly approved by the Court Administrator. The records show that an amended criminal complaint for murder 3 dated March 4, 1992, or the killing of herein complainant's husband, Regino Borinaga, was filed by the Chief of Police of Dumingag, Zamboanga del Sur against Antonio Ruaya, alias Tony Ruaya; Roberto J. Rada, alias Totoy; Edwin Rada, alias Negger; and Jojo Valenzuela before the 27th Municipal Circuit Trial Court of Dumingag-Mahayag, Zamboanga del Sur, for preliminary investigation. It appears that while the case was pending with the said lower court, a petition for bail 4 dated March 25, 1992 was filed by one of the accused, Antonio Ruaya, before respondent Judge Camilo E. Tamin in Branch 23 of the Regional Trial Court of Molave where it was docketed as Special Civil Case No. 92-50,005. In said petition, accused Ruaya averred that he was a detention prisoner at the Municipal Jail of Dumingag, Zamboanga del Sur; that he was charged with murder; that no bail was fixed by the investigating judge who issued a warrant of arrest against him; that he had waived the second stage of the preliminary investigation, with a reservation to challenge the criminal action against him; and that the evidence of guilt against him was not strong, hence he was entitled to bail as a matter of right. Accused Ruaya prayed that the bail be fixed at P20,000.00. In an order 5 dated March 25, 1992, respondent judge ordered the public prosecutor "to appear on March 30, 1992 at 8:30 in the morning to present evidence that the guilt of the petitioner for the crime charged (is) strong." At the scheduled hearing, the public prosecutor failed to appear, by reason of which respondent judge issued an order 6 dated March 30, 1992, granting bail to accused Ruaya in the amount of P20,000.00 and holding that:

Under Section 13 of Article III of our Constitution it (is) provided that "All persons, except those charged with offenses punishable by Reclusion Perpetua when evidence of guilt is strong, shall, before conviction, be bailable by sufficient sureties." Under this provision of law, if the prosecutor fails to present evidence that the guilt of the accused is strong, then the accused would be entitled to the constitutional right to bail. No evidence have (sic) been introduced by the prosecution to prove that the guilt of the accused of the crime charged is strong. Necessarily, this court find (sic) that the accused is entitled to bail under Section 13, Article III of our Constitution. WHEREFORE, finding that the accused has the right to bail, the provisional liberty of the accused is set at P20,000.00 bail (sic) as prayed for in the petition. On the same day, March 30, 1992, Judge Dionisio C. Arriesgado of the 27th Municipal Circuit Trial Court of DumingagMahayag, who conducted the preliminary investigation, issued a resolution recommending the filing of an information for murder against, among others, Antonio Ruaya, after said accused failed to file his counter-affidavit and other evidence in his defense. The resolution was affirmed by the Provisional Prosecutor, as a consequence of which an information for murder was later filed against all the accused with no bail recommended. Subsequently, the public prosecutor, together with complainant's counsel, filed a "Motion to Cancel Bailbond (sic) and to Arrest the Accused," on the ground that said accused is charged with a capital offense, the evidence of guilt is strong, and no bail was recommended in the information. However, on October 7, 1992, respondent Judge issued an order denying said motion without conducting a hearing thereon. In his comment, wherein he essayed his position on the controversy and which we quote at length to demonstrate his line of thought and mode of ratiocination, respondent judge averred: 1. That on March 25, 1992, accused Antonio Ruaya filed a petition for bail with the court of respondent in SPL Civ. Case No. 40,013 (sic), a true copy of which, together with the annexes, are hereto attached as Annexes "1" to "1-I", based on the ground that the evidence of guilt is not strong. 2. That on the date of receipt of said petition, the respondent issued an order, a true copy whereof is attached as annex "2", requiring the public prosecutor to appear on March 30, 1992 at 8:30 in the morning to present evidence that the guilt of the petitioner-accused for the crime charged is strong. A copy of this order was actually received by the Office of the Public Prosecutor on March 27, 1992. The respondent also noted that the office of the Public Prosecutor was likewise served with a copy of the said petition for bail, on March 25, 1992 by the petitioner-accused; 3. That on March 30, 1992, at the hearing of the petition for bail, the Public Prosecutor did not appear. It did not also send any public prosecutor, despite the fact that the office of the Provincial Prosecutor of Zamboanga del Sur had plenty of public prosecutors. Neither was there also any request to reset the hearing of the petition for bail to another date; 4. That for failure to present any evidence of guilt against the petitioner-accused, the respondent issued his order, dated March 30, 1992, a true copy of which is hereto attached as annex "3", finding that the petitioner-accused has the constitutional right to bail, and set the bail bond for the provisional liberty at P20,000, as prayed for in the petition;

5. That on the same day, March 30, 1992, the petitioner-accused posted a cash bond of P20,000 for his provisional liberty; 6. facts: That before proceeding further with his comment, the respondent would like first to state the following relevant

6.1) That the accused Antonio Ruaya has not jump (sic) bail but has been present in court every time his case is called and is asking for a speedy hearing of the criminal charge against him; 6.2) The the only evidence against the accused Antonio Ruaya is the extra-judicial statement of his co-accused Roberto J. Rada, alias "Totoy" who, when duly arraigned in open court with the assistance of counsel, entered a plea of not guilty; 6.3) That as the co-accused Roberto J. Rada, cannot be compelled to testify in court, the prosecutor (both the public and private prosecutor) admitted in open court that the prosecution does not have any admissible evidence against the accused Antonio Ruaya; 6.4) That the co-accused Roberto J. Rada, the only witness against the accused Antonio Ruaya, is a prisoner convicted for life for the commission of robbery with homicide (a crime involving moral turpitude) in Valencia, Bukidnon, and presently serving sentence at the Davao Prison and Penal Farm, Panabo, Davao del Norte; 6.5) That the respondent is particularly wary of uncorroborated statements of prisoners, specially of those convicted for life, because it is notoriously easy to let a prisoner sign any document for a fee as low as P100; 6.6) That considering the prevailing depressed economic condition in his judicial district, the respondent has adopted as a standard for granting bail at the rate of P1,000 for every year of probable imprisonment for common crimes, except when the offenses involved kidnapping for ransom, rebellion and prohibited drugs, in which cases, the respondent set the bail bond at P10,000 for every probable years (sic) of imprisonment. The respondent has consistently adhered to this standard in other cases situated, which standard is also followed by other Regional Trial Courts in the area; 6.7) That co-accused Edwin Rada, alias "Negger", subsequently also filed a similar petition for bail which was not opposed by the prosecution, and so the respondent likewise granted bail to said accused, also in the amount of P20,000; 7. That when the petition for bail was filed by accused Ruaya with the court of the respondent, the said accused has already waived his right to the second stage of the preliminary investigation, leaving nothing further to be done by the municipal trial court but the performance of the ministerial duty to forward the case to the office of the Provincial Prosecutor with its recommendations; 8. That as alleged in the ninth paragraph of the letter-complaint, the case against the accused Ruaya was forwarded to the Office of the Provincial Prosecutor on March 30, 1992, with the recommendation to file an information for murder against said accused. In other words, the case against accused Ruaya was no longer pending preliminary investigation in the municipal court on March 30, 1992, when the respondent granted bail to said accused in his order on the same day (Annex "3"); 9. That the prosecution is making much of its argument in paragraph 4 and 9 of the complaint that the respondent granted bail when the case against the accused Ruaya was "still under preliminary investigation" in the Municipal Trial

Court. The prosecution was given the opportunity to put up said argument on March 30, 1992 when it was ordered by the respondent to appear and present evidence that the guilt of the accused was strong. But despite due notice, the prosecution did not appear and thereby forfeit (sic) the opportunity to invoke said argument. The failure of the prosecution to invoke the aforesaid argument at the proper opportunity given to it constitute (sic) a waiver on its part to invoke the said argument and it is legally already under estoppel to rely on the same; 10. That not only did the prosecution not file a written opposition to, or a request to postpone the hearing of the application for bail, it did not even honor the hearing of the petition with its presence, despite the fact, that there are plenty of prosecutors in the office of the Provincial Prosecutor. Clearly, the prosecution was remissed (sic) in the performance of its duty and now it is asking the respondent to be punished because it (prosecution) failed to do its duty properly; 11. That it is now too late and unfair for the prosecution to invoke the argument that the respondent granted bail when the case was still under preliminary investigation in the lower court. It is too late because the prosecution is under estoppel and has already effectively waived to invoke (sic) said argument when it chose not to appear in the hearing of the petition for bail despite due notice given to it. The said argument is clearly an afterthought and the prosecution should be the one to suffer the consequences of its own negligence and not pass the matter unfairly to the respondent. It is unfair, because after the court has conferred upon the accused the right to bail at the proper hearing with due notice, the right to bail becomes thereafter a vested constitutional right which is already beyond the power and authority of the respondent to recall unless there is a violation of the condition of the bail. The respondent, therefore, cannot recall the right already vested, even if he wants to, without violating the right of the accused to due process. The prosecution did not then give the respondent an opportunity to rule upon said argument at the proper time before the right to bail became irrevocably vested upon (sic) the accused. The actuations of the prosecution is (sic) nothing else but laying (sic) in ambush at and stabbing the respondent at the back after the prosecution neglected to perform its duty properly. 12. That contrary to the misinterpretation in paragraph 8 of the complaint, the MOTION TO CANCEL BAILBOND AND TO ARREST THE ACCUSED, dated September 22, 1992 was properly heard by the respondent on September 22, 1992, and the prosecution even submitted its MEMORANDUM, dated October 5, 1992. However, since the motion involved purely a question of law, particularly, as to whether or not, the right to bail given to an accused charged for murder, pursuant to the provisions of sections 5, 6, 7 and 8 of Rule 114 of the Rules, can still be recalled by the court after its conferral, the respondent resolved the same in the negative under its order of October 7, 1992, and which is attached as Annex "A" to the instant complaint; 13. That judicial remedy exists to correct any error of judgment committed by the respondent;

14. That it is unkind for the counsel of the complaint (sic) to make the gratuitous, barb (sic) and snipping (sic) remark that the respondent is the counsel of the accused. Respondent vehemently denies it. The respondent only acted in accordance with what he then saw as the right and proper thing to do under the circumstances. (Emphasis supplied.) 7 The 1987 Constitution provides that all persons, except those charged with offenses punishable by reclusion perpetua when evidence of guilt is strong shall, before conviction, be bailable by sufficient sureties or be released on recognizance as may be provided by law. Corollarily, the Rules of Court, under Section 3, Rule 114 thereof, provides that all persons in custody shall, before final conviction, be entitled to bail as a matter of right, except those charged with a capital offense or an offense which, under the law at the time of its commission and at the time of the application for bail, is punishable by reclusion perpetua, when evidence of guilt is strong.

As now revised in the 1985 Rules of Criminal Procedure and provided in Rule 114 thereof, the rules on availability of bail to an accused may be restated as follows: 1. Admission to bail is a matter of right at any stage of the action where the charge is not for a capital offense or is not punishable by reclusion perpetua. 8 2. Regardless of the stage of the criminal prosecution, no bail shall be allowed if the accused is charged with a capital offense or of an offense punishable by reclusion perpetua and the evidence of guilt is strong; 9 3. Even if a capital offense is charged and the evidence of guilt is strong, the accused may still be admitted to bail in the discretion of the court if there are strong grounds to apprehend that his continued confinement will endanger his life or result in permanent impairment of health, 10 but only before judgment in the regional trial court; and 4. No bail shall be allowed after final judgment, unless the accused has applied for probation and has not commenced to serve sentence, 11 the penalty and offense being within the purview of the probation law. On the foregoing bases, it is evident that bail is a matter of discretion where the accused is charged with a capital offense or an offense punishable by reclusion perpetua and the evidence of guilt is strong. This precept gains added significance from the fact that the situation it envisages determines the particular court where an application for bail should be filed. Section 14 of Rule 114 pertinently provides: Sec. 14. Bail, where filed. (a) Bail in the amount fixed may be filed with the court where the case is pending, or, in the absence or unavailability of the judge thereof, with another branch of the same court within the province or city. If the accused is arrested in a province, city or municipality other than where the case is pending, bail may be filed also with any regional trial court of said place, or, if no judge thereof is available, with any metropolitan trial judge, municipal trial judge or municipal circuit trial judge therein. (b) Whenever the grant of bail is a matter of discretion, or the accused seeks to be released on recognizance, the application therefor may be filed only in the particular court where the case is pending whether for preliminary investigation, trial, or on appeal. (c) Any person in custody who is not yet charged in court may apply for bail with any court in the province, city or municipality where he is held. (Emphasis ours.) Paragraph (a) allows the accused to post bail in certain specified courts, other than that where his case is pending, under the circumstances stated therein. On the other hand, paragraph (c) allows the detainee to post bail with any court in the province, city or municipality where he is held, if no complainant or information has as yet been filed against him. The situations contemplated under these two provisions of the rules clearly do not obtain in the case at bar. In the present case, accused Ruaya, who applied for bail, was charged with murder in an amended complaint filed before the municipal circuit trial court where he was named as the mastermind, which in all probability is the reason why no bail was recommended by the investigating judge who issued the warrant of arrest against him, in addition to the fact that murder is a capital offense punishable by reclusion perpetua. Perforce, bail in this case is a matter of

discretion and the application therefor should have been filed in the court where the preliminary investigation was then pending, that is, before the Municipal Circuit Trial Court of Dumingag-Mahayag, Zamboanga del Sur, pursuant to paragraph (b), Section 14 of Rule 114 above quoted. The reason for the rule is that the court wherein the case against the accused is pending is assumed to be in a better position to pass upon the propriety and conditions for granting bail to the accused, since it is more conversant with the facts of said case and the representations of the prosecution therein. Furthermore, should the accused jump bail, the primary responsibility rests with the court where his case is pending. Although, as alleged by respondent judge, the order granting the petition for bail was issued on the same day that the preliminary investigation was supposedly terminated in the lower court, this did not cure the infirmity which attended the issuance thereof. Of greater import is the fact that the petition for bail was filed with the regional trial court, as a socalled "special civil case," while the preliminary investigation was still pending before the municipal circuit trial court. Hence, respondent judge had no jurisdiction to entertain the same, as the situation of the accused definitely did not fall under any of those contemplated in paragraphs (a) and (c), Section 14 of Rule 14. Further, respondent judge acted without jurisdiction in taking cognizance of and eventually granting the petition for bail there having been no information filed in his court against the accused-applicant. Actually, it was only on March 30, 1992 when the records of the criminal case were forwarded by the lower court to the Office of the Provincial Prosecutor with the recommendation that an information for murder be filed against accused Ruaya. On the other hand, even assuming arguendo that respondent judge had jurisdiction to hear the petition for bail, under the circumstances attendant to the case he should nonetheless be held liable for granting the same without benefit of a hearing. This requirement is so basic and fundamental that it would amount to judicial apostasy for any member of the judiciary to disclaim knowledge or awareness thereof. It is true that at the hearing of an application for admission to bail, where admission to bail is a matter of discretion, the prosecution has the burden of showing that evidence of guilt is strong. 12 However, we have held that admission to bail as a matter of discretion presupposes the exercise thereof in accordance with law and guided by the applicable legal principles. The prosecution must first be accorded an opportunity to present evidence because by the very nature of deciding applications for bail, it is on the basis of such evidence that judicial discretion is weighed against in determining whether the guilt of the accused is strong. In other words, discretion must be exercised regularly, legally and within the confines of procedural due process, that is, after evaluation of the evidence submitted by the prosecution. Any order issued in the absence thereof is not a product of sound judicial discretion but of whim and caprice and outright arbitrariness. 13 Accordingly, while the determination of whether or not the evidence of guilt is strong is a matter of judicial discretion, this discretion, by the nature of things, may rightly be exercised only after the evidence is submitted to the court at such hearing. 14 Whether the motion for bail of an accused who is in custody for a capital offense be resolved in a summary proceeding or in the course of a regular trial, the prosecution must be given an opportunity to present, within a reasonable time, all the evidence that it may desire to introduce before the court may resolve the motion for bail. If the prosecution should be denied such an opportunity, there would be a violation of procedural due process, and the order of the court granting bail should be considered void on that ground. 15 Consequent to the foregoing considerations, an order granting or refusing bail must contain a summary of the evidence by the prosecution. On the basis thereof, the judge should then formulate his own conclusion as to whether the evidence so presented is strong enough as to indicate guilt and thereby cause the continued detention of the accused. Otherwise, the accused must be released on bail. 16

In the case at bar, the petition for bail was granted by respondent judge on the simple reason that the prosecution failed to appear and present evidence despite due notice. Forthwith, he concludes that by reason of the failure of the prosecution to appear at the scheduled hearing, the applicant is entitled to bail as a matter of right. He aggravated this flagrant error when in his aforequoted comment, he justified his subsequent denial of the prosecution's motion for the cancellation of the bail bond and the arrest of the accused on the incredible theory that the prosecution's failure to appear was a "waiver on its part . . . .and it is allegedly already in estoppel" to challenge the grant of bail since that right to bail "became irrevocably vested" in the accused who had thereby acquired "a vested constitutional right beyond the power and authority of the respondent to recall." In the first place, respondent judge did not have the authority to set the petition for bail for hearing in view of the fact that he had not even acquired jurisdiction over the criminal case since the information therefor had not yet been filed in the trial court. In doing so, he acted with grave abuse of discretion and in wanton disregard of established rules and jurisprudence. Secondly, it has been held that even where the prosecutor refuses to adduce evidence in opposition to the application to grant and fix bail, the court may ask the prosecution such questions as would ascertain the strength of the state's evidence or judge the adequacy of the amount of bail. 17 Here, the non-appearance of the prosecution at the hearing scheduled by respondent judge on March 30, 1992 was obviously justified since, to repeat, respondent had no authority to schedule and/or conduct the same. It is at once apparent, even from a cursory glance of the assailed order of respondent judge that, to say the least, there is much to be desired. It is utterly defective in form and substance; there is no recital of any evidence presented by the prosecution, much less a conclusion therefrom or a pronouncement therein that the requisite proof of guilt of the accused is not evident. As such, the challenged order of respondent judge cannot be sustained or be given a semblance of validity. 18 Parenthetically, the "vested constitutional right" theory of respondent judge does not merit judicial review and is best disregarded. It is apropos to repeat here what we explicated in the aforecited case of Libarios vs. Dabalos: . . . Generally, a judge cannot be held liable to account, or answer criminally, civilly or administratively, for an erroneous judgment or decision rendered by him in good faith. However, good faith may be negated by the circumstances on record. In the absence of fraud, dishonesty or corruption, the acts of a judge done in his judicial capacity are not subject to disciplinary action, even though such acts may be erroneous. But, while judges should not be disciplined for inefficiency on account merely of occasional mistakes or errors of judgment, yet, it is highly imperative that they should be conversant with basic legal principles. In every case, a judge should endeavor diligently to ascertain the facts and the applicable law unswayed by partisan or personal interests, public opinion or fear of criticism. Respondent judge should not have allowed himself to be swayed into issuing an order fixing bail for the temporary release of the accused charged with murder, without a hearing, which is contrary to established principles of law. A judge owes it to the public and the administration of justice to know the law he is supposed to apply to a given controversy. He is called upon to exhibit more than just a cursory acquaintance with the statutes and procedural rules. There will be faith in the administration of justice only if there be a belief on the part of litigants that the occupants of the bench cannot justly be accused of deficiency in their grasp of legal principles. (Emphases ours.)

In resum, what stamps this case with a unique feature and makes the actuations of respondent judge more distressing is the fact that, aside from granting bail without a hearing and denying the prosecution procedural due process, such irregularity was committed in connection with a criminal case over which respondent judge had not at that instance acquired jurisdiction. Furthermore, through that unauthorized procedure which he had adopted, respondent judge illegally granted bail not only to accused Ruaya but also to the latter's co-accused, Edwin Rada. On these environmental facts, the sanction to be imposed on respondent judge should not be less than that which we approved in Libarios. WHEREFORE, respondent Judge Camilo A. Tamin is hereby ordered to pay a fine of P20,000.00, with a stringent warning that the commission of a similar offense in the future will be dealt with more severely. This decision is without prejudice to whatever action the public prosecutor may deem appropriate with respect to Criminal Case No. 92-10-300 and Special Civil Case No. 92-50,005. SO ORDERED.

A.M. No. MTJ-97-1139 October 16, 1997 ROBERTO ESPIRITU, complainant, vs. JUDGE EDUARDO JOVELLANOS, 8th Municipal Circuit Trial Court, Alcala-Bautista, Pangasinan, respondent.

MENDOZA, J.: Respondent is judge of the 8th Municipal Circuit Trial Court of Alcala-Bautista, Pangasinan. He is charged with ignorance of the law, grave abuse of authority, and gross partiality in connection with the preliminary investigation of Criminal Case No. 2346 for frustrated murder which the herein complainant, Roberto Espiritu, had filed against Weny Dumlao. The facts are as follows: In his affidavit 1 in Criminal Case No. 2346, Roberto Espiritu, as complainant, alleged that at around 7:30 in the evening of July 16, 1994, while he was with a group which included Eulogio Pabunan, Arnel Guerra, Januario Peregrino, and Marcelino Bautista, Weny Dumlao approached him and fired at him three times, as a result of which complainant was wounded; that complainant was able to run away; and that Dumlao wanted to kill complainant because the latter had filed a case against Dumlao's brother, Victor, for the murder of complainant's son Rolly. On the basis of this affidavit and those or Arnel Guerra 2 and Eulogio Pabunan, 3 SPO II Eduardo R. Yadao filed a criminal complaint for frustrated murder on August 10, 1994 4 in respondent's court. After conducting a preliminary examination, respondent judge ordered on August 18, 1994 the arrest of Dumlao and fixed the amount of bail for his provisional liberty at P20,000.00. 5 However, in an order dated September 7, 1994, he reduced the amount of the bail to P10,000.00, stating that Dumlao's father had asked for the reduction. On September 12, 1994, he ordered "any peace officer under whose custody [Dumlao] may be found" to release the latter in view of the fact that Dumlao had posted bail for P10,000.00. 6 Then on October 12, 1994 he dismissed the complaint, citing,

among other reasons, the fact that Dumlao had filed a case against Roberto Espiritu and others as a result of the same incident complained of in Criminal Case No. 2346. It appears that Dumlao had filed on July 27, 1994 a countercharge against complainant and others with the Office of the Provincial Prosecutor in Villasis, Pangasinan for attempted murder and illegal possession of firearm. The case was docketed as I.S. No. V-94-30. Dumlao claimed that as he approached Espiritu's group, Arnel Guerra shot him, although Guerra missed him; that as he ran towards his house, other members of the group also fired at him; and that Espiritu's group challenged him and his father to come out and fight. Dumlao's complaint (I.S. No. V-94-30) was dismissed on August 15, 1994 for insufficiency of evidence. 7 After a reinvestigation of the two cases, however, Assistant City Prosecutor Paz de G. Peralta directed the filing of an information for attempted murder against complainant Roberto Espiritu, Arnel Guerra, Andres Espiritu, Marlino Bautista, Januario Peregrino, Abrillo Peregrino, Eulogio Pabunan, Dario Pabunan, and Landio Pabunan even as she affirmed the dismissal of Criminal Case No. 2346 against Dumlao. 8 Espiritu sought a review in the Department of Justice, but his petition was denied 9 for having been filed late and for his failure to attach the affidavits submitted during the preliminary investigation. Espiritu filed the complaint in this case, alleging irregularities committed by respondent judge in the conduct of the preliminary investigation of his complaint against Dumlao. 10 Respondent judge filed a comment, 11 denying the charges. Complainant, on the other hand, filed a reply. Among other things, complainant claimed that this was not the first time that respondent judge had shown ignorance of the rules on criminal procedure, because on September 29, 1994, in People of the Philippines v. Cesario Sanchez, Criminal Case No. V-0092, respondent judge had been reprimanded by the Regional Trial Court of Villasis, Pangasinan (Branch 50) for approving the bail bond of the accused when the latter had not yet been arrested. On June 26, 1995, the Court referred the case to Judge Pedro C. Cacho of the Regional Trial Court, Branch 52, at Tayug, Pangasinan for investigation, report, and recommendation. On October 6, 1995, Judge Cacho submitted his report, recommending that respondent judge be fined in the amount of P3,000.00 and reprimanded for "neglect of duty, partiality, and/or inefficiency tantamount to grave ignorance of the law." Except as to the amount of the fine recommended, the Court concurs in the report of the investigating judge. The charges against respondent judge relate to basically two acts committed by him: (1) granting bail to Weny Dumlao in the reduced amount of P10,000.00 and (2) dismissing the criminal complaint against Dumlao. I. With respect to the granting of bail to Weny Dumlao and the reduction of its amount to P10,000.00, complainant alleges: 2. The municipal courts are now courts of records. Per order dated September 7, 1994. . . . the Honorable Judge reduced the amount of bail His Honor set in a previous order (Page 12, Ibid.), from P20,000.00 to P10,000.00 acting supposedly upon the request of the father of the accused. However, there is no such request for reduction of bail on file with the records of the case;

3. At the time the Honorable Judge acted on the "request" for reduction of bail, the accused was not under detention as he was not arrested nor had he voluntarily surrendered as borne by the records. Accordingly, the Court has not yet acquired jurisdiction over the person of the accused, so the Honorable Judge cannot act on such "request" for reduction of bail even if interceded by the father of the accused; 4. The amount at which the bail was reduced: P10,000.00 is not commensurate with the gravity of the crime charged, an evident manifestation of the Judge's injudiciousness in the exercise of his authority and discretion. The bail bond guide of 1981 provides for the amount P12,500.00; Simply stated, the complaint is that respondent judge is guilty of ignorance of the law, bias, and partiality for Dumlao as shown by the following: (a) respondent judge granted bail and later reduced its amount when the fact was that, at that time, Dumlao was not in the custody of the court; (b) there was no written motion presented for the reduction of bail, which is a necessity since MCTCs are courts of record; and (c) pursuant to the 1981 Bail Bond Guide the bail for frustrated murder should be P12,500.00. A. It is indeed true that, in general, bail presupposes that the applicant is under arrest, detained, or otherwise deprived of his liberty. 12 In this case, it appears that on July 16, 1994, shortly after the incident, Weny Dumlao surrendered to the police, but the next day (July 17, 1994) he was released to the custody of Assistant Provincial Prosecutor Emiliano Matro. 13 Prosecutor Matro testified that upon DECS Supervisor Nuelito Dumlao's request, he agreed to take custody of Dumlao for which reason Weny Dumlao was released by the police. 14 According to Matro, this was not the first time that he took custody of one who was under investigation. 15 Apparently, therefore, when Dumlao applied for bail on September 7, 1994 to respondent judge, Dumlao was not in custody. Nor was his release to the custody of Assistant City Prosecutor Matro in accordance with law. Under Rule 114, 15 of the Rules of Court, the release on recognizance of any person under detention may be ordered only by a court and only in the following cases: (a) when the offense charged is for violation of an ordinance, a light felony, or a criminal offense, the imposable penalty for which does not exceed 6 months imprisonment and/or P2,000 fine, under the circumstances provided in R.A. No. 6036; (b) where a person has been in custody for a period equal to or more than the minimum of the imposable principal penalty, without application of the Indeterminate Sentence Law or any modifying circumstance, in which case the court, in its discretion, may allow his release on his own recognizance; (c) where the accused has applied for probation, pending resolution of the case but no bail was filed or the accused is incapable of filing one; and (d) in case of a youthful offender held for physical and mental examination, trial, or appeal, if he is unable to furnish bail and under the circumstances envisaged in P.D. No. 603, as amended (Art. 191). 16 But although then not in legal custody, Dumlao subsequently submitted himself to the jurisdiction of the court when on September 7, 1994 he personally asked respondent judge to admit him to bail and reduce its amount. In Paderanga v. Court of Appeals, 17 Miguel Paderanga was one of the accused in a case for multiple murder. Before the arrest warrant could be served on him, he filed through counsel a motion for admission to bail which the trial court set for hearing on November 5, 1992 with notice to both public and private prosecutors. As Paderanga was then confined at a hospital, his counsel manifested that they were submitting custody over Paderanga's person to the chapter president of the Integrated Bar of the Philippines and asked that, for purposes of the hearing on his bail application, he be considered as being in the custody of the law. On November 5, 1992, the trial court admitted Paderanga to bail in the amount of P200,000.00. The next day, Paderanga in spite of his weak condition, managed to personally appear before the clerk of court of the trial court and posted bail. He was arraigned and thereafter he attended the hearings. We held that the

accused was in the constructive custody of the law when he moved for admission to bail through his lawyers (1) by filing the application for bail with the trial court, (2) by furnishing true information of his actual whereabouts, and (3) by unequivocably recognizing the jurisdiction of said court. Respondent judge thus correctly granted bail to Dumlao. B. Respondent judge erred, however, in fixing the amount of bail at P20,000.00 and reducing it to P10,000.00 18 and in doing so without a hearing. Under the 1981 Bail Bond Guide (Ministry Circular No. 36, September 1, 1981), the amount of bail in cases of frustrated murder is P12,500.00. 19 In its Circular No. 10 dated July 3, 1987, the Department of Justice noted that the amounts fixed in the Bail Bond Guide had become "unrealistic and impractical for the purpose of assuring the presence and/or appearance of persons facing charges in court" and accordingly directed that the amount of bail be computed at the rate of P10,000.00 per year of imprisonment based on the medium penalty imposable for the offense. Judged by this standard, the P10,000.00 bail fixed in this case was inadequate. The penalty for frustrated murder prior to R.A. No. 7659 is prision mayor in its maximum period (10 years and 1 day to 12 years) to reclusion temporal in its medium period (14 years; 8 months, and 1 day to 17 years and 4 months). So that, applying Art. 50, in relation to Art. 248 of the Revised Penal Code, the medium penalty would be reclusion temporal in its minimum period (12 years and 1 day to 14 years and 8 months). Under Circular No. 10, the amount of tile bail should have been fixed between P120,000.00 and P140,000.00. Either respondent judge was grossly ignorant of the law or he deliberately disregarded it to favor the accused. Considering that part of his duties as a judge is conducting preliminary investigations, it is his duty to keep abreast of the laws, rulings, and jurisprudence regarding this matter. It is apparent that he has not. In failing to do so he failed to live up to the injunction of the Code of Judicial Conduct to "maintain professional competence." 20 The maxim ignorance of the law excuses no one has special application to judges. Further demonstrating either deliberate disregard of the law of gross ignorance of the same, respondent judge granted bail to Weny Dumlao without notice to the prosecution, in violation of Rule 114, 18. In Chin v. Gustilo, 21 this Court ruled that notice of application for bail to the prosecution is required even though no charge has yet been filed in court and even though under the circumstances bail is a matter of right. The failure to observe the above requirement constitutes ignorance or incompetence which cannot be excused by any protestation of good faith. 22 In this case, the failure to give notice to the prosecution may be due to the fact that there was no written motion filed but only, as respondent judge himself admitted, an oral request by Dumlao and his father that the amount of the bail be reduced. What respondent judge should have done was to have Dumlao put his request in writing and then schedule the incident for hearing with notice to the prosecution. Instead, he readily granted the request, which indicates rather clearly respondent judge's partiality. This partiality was nowhere more evident than in the private conference which he had with the Dumalaos in his chambers without the presence of the opposing party, the complainant in this case. Time and again we have admonished judges not only to be impartial but also to appear to be so. For appearance is an essential manifestation of reality. 23 Departing from this established norm, respondent judge signed his September 7, 1994 order reducing the amount of bail to P10,000.00 and then told Dumlao to inform the police about it so that he would be released. II. With respect to the charge that respondent judge, with grave abuse of authority, dismissed the case filed by complainant against Weny Dumlao, it is alleged that:

1. The Honorable Judge of the MCTC subpoenaed Dr. Marcelo S. Patawaran, Jr. (Page 15, Records of the CaseAnnex "A") and conducted examination upon the doctor without notice, nay presence, of the parties of the case. . . . It is significant to note that the "searching questions" propounded upon the doctor tended to diminish the significance and importance of the medical certificate (Page 5, Ibid.) which may have been achieved, but the whole of the proceedings unmasked the partiality of the Court towards the accused. Moreover, it is unbelievable that the Honorable Judge is not aware of the plenitude in our jurisprudence of proceedings undertaken by courts and tribunals without notice and presence of the parties that were declared null and void by the Supreme Court; xxx xxx xxx

5. On September 12, 1994, the Honorable Judge issued a subpoena upon the accused, requiring the accused to submit his counter-affidavits of his witnesses and his other pieces of evidence, if any. Under the rule, and as contained in the subpoena, the accused was given ten (10) days to do so, and the period expired on September 22, 1994 as he received copies of the subpoena and the complaint with supporting affidavits on September 12, 1994 as shown by the records, Annex "A". Without prior motion for extension of period, the Honorable Judge allowed the filing by the accused of his counter-affidavit only on October 11, 1994, some 29 days late [actually only 19 days]. Moreover, the Court did not require the accused to furnish copy of his counter-affidavit to the complainant prior to submitting the same in Court, in violation of Section 2(c), Rule 112 of the Rules of Court; 6. In the resolution recommending the dismissal of this case . . . , the Honorable Judge cited as one reason the existence of a counter-charge pending preliminary investigation before the Office of the Provincial Prosecutor, Villasis, Pangasinan concerning the same incident which is the subject matter of this case, referring to I.S. No. V-94-30, filed by accused as complainant therein. That case (I.S. No. V-94-30) was dismissed per Resolution dated August 15, 1994, copy of which is hereto attached and marked as Annex "B". After the dismissal of said case, the accused, as complainant, endeavored to revive the case, but which undertaking took him a long time, hence, the delay of accused's counter-affidavit in Criminal Case No. 2346. . . .The fact alone that accused was allowed to delay the filing of his counter-affidavit to enable him to revive his counter-charge is an evident gross partiality of the Honorable Judge; and 7. The Honorable Judge, without any basis, directly or impliedly, made a finding that the wound sustained by herein complainant was self-inflicted, totally disregarding the evidence on record, as declared positively by eye witnesses. Such actuation bespeaks of the grave abuse of discretion by the Honorable Judge. A. With regard to the examination of Dr. Melecio S. Patawaran, Jr. on September 1, 1994 respondent judge admits that he did not give notice to the parties of the same but claims that it was because he was only at that time in the first stage of preliminary investigation. 24 This is inconsistent with his later testimony in which he admitted that when he ordered a warrant of arrest to be issued against Dumlao on August 18, 1994, the first stage of preliminary examination had already been terminated. 25 Respondent contends that Rule 112, 3(e) did not apply to the examination of Dr. Patawaran on September 1, 1994 because at that time Dumlao had not yet submitted his counteraffidavit. 26 This provision states: 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.

If, as respondent judge claims, the holding of a hearing for the purpose of asking "clarificatory" questions presupposes the filing by the parties of their affidavits but at the time he examined Dr. Patawaran he had not yet received the counteraffidavit of Weny Dumlao, then what he should have done was to wait until the counteraffidavit was filed and in the meantime not examine Dr. Patawaran. What is particularly objectionable was the examination of Dr. Patawaran as a witness without the presence of the parties. B. Nor is there any excuse for respondent's consideration of Dumlao's counteraffidavit despite the fact that it had been filed several days late. Dumlao received the order 27 requiring him to file his counteraffidavit and that of his witnesses on September 12, 1994. As under Rule 112, 3(b) Dumlao had only 10 days from receipt of the subpoena within which to comply, his counteraffidavit should have been filed not later than September 22, 1994. However, it took him 19 more days after the reglementary period had expired before he finally filed his counteraffidavit on October 11, 1994. Dumlao did not ask for an extension, yet respondent judge allowed the counteraffidavit. Respondent claims that 28 The acceptance of the Counter-Affidavit is not my duty. It is my Clerk of Court who received the Counter-Affidavit and when I look into the records, the Counter-Affidavit was already there in the record and I was also preparing a Resolution to that case, so I have to take cognizance of the Counter-Affidavit. After all, there was no one month yet that lapsed so I have to take cognizance of the Counter Affidavit. And immediately after that, I issued a Resolution. The contention has no merit. The duty of the clerk of court was to receive the counteraffidavit. 29 It was respondent judge's responsibility to see to it that what was received in his court had been filed on time. Nor is it true that when respondent judge saw the counteraffidavit, it had already been attached to the records. Clerk of Court Adoracion Marcos testified that upon receipt of the counteraffidavit, she showed it to respondent judge. 30 Respondent judge therefore knew when the counteraffidavit was filed. At the very least, he should have checked whether it was filed on time. That respondent judge allowed the late filing of the counteraffidavit can only be attributed to his desire to enable Dumlao to revive his case against complainant in the Prosecutor's Office because it was the linchpin for his defense in Criminal Case No. 2346. C. What has been just said applies as well to respondent judge's claim that responsibility for furnishing complainant a copy of the counteraffidavit was not the court's responsibility but Dumlao's. The service of the counteraffidavit on complainant should indeed be made by Dumlao and not by the court, 31 but respondent judge should have seen to it that this duty had been complied with upon the filing of the counteraffidavit. The "serve and file" rule is so basic for respondent judge not to know it. It was not fair for respondent judge to consider a pleading which the other party knew nothing about because it had not been served on him. D. In dismissing Criminal Case No. 2346, respondent judge said: 32

For the weighing and evaluation of evidence of both parties, the Court took the pain of issuing a subpoena to Dr. Marcelo [actually Melecio] S. Patawaran, Jr., a resident physician of Don Amadeo Perez, Sr. Memorial Hospital at Urdaneta, Pangasinan, who testified that the bullet did not have any exit and there was no bullet left in the body and it becomes only an injury. That the patient was advised to be referred to the Pangasinan Provincial Hospital for x-ray purposes, instead he went to the Sacred Heart Hospital at Urdaneta, Pangasinan and went home after x-ray. That no xray result was submitted to Don Amadeo J. Perez, Sr. Hospital or to the Court to prove that it was really a bullet wound. That he did not notice any powder burns on the injury.

. . . [I]n the opinion of the Court, the injury is self inflicted, this case should be dismissed . . . . Thus, based on alleged testimony of Dr. Patawaran, respondent judge cast doubt on complainant's claim that his wound was a gunshot wound and held that the wound had been inflicted by complainant on himself. This is contrary to Dr. Patawaran's testimony in the preliminary investigation conducted by respondent judge. Dr. Patawaran said in his testimony: 33 Q: Doctor, here in this medical certificate in the findings or diagnosis it says "GSW" or gunshot wound, was it really in your opinion a gunshot wound? A: Q: Yes, Judge. Why do you say it is a gunshot wound?

A: Because when I saw the wound it manifested the characteristic of a gunshot wound like the inversion of the skin edges. Q: You said inversion of the skin edges Doctor, did you find any bullet in the injury?

A: That is why I referred the patient to the Provincial Hospital for x-ray because when you see only the entrance and no exit, it's a must so as to locate the bullet as it does not have any exit. Q: A: xxx Do you know if the bullet is inside the body of the person? That will be determined by the x-ray, sir. xxx xxx

Q: In this medical certificate Doctor below the findings and diagnosis are the letters "GSW" is in writing and not typewritten as the injuries and entries indicated, will you please explain? A: Q: A: Q: A: Q: I initialed it to make it authenticated, a typographical error, sir. From the injury Doctor you can not determine also how far was the assailant? Probably around more or less 3 meters, sir. Did you talk to the patient Roberto Espiritu when he was taken to your hospital Doctor? Yes, sir. Did Roberto Espiritu ever mention to you the name of the assailant and that he recognized him?

A: I just asked what happened and he said "pinaltogdac" I was shot, and I did not ask the name of the assailant any more. It would seem respondent judge simply relied on the counteraffidavit of Dumlao for his resolution, particularly the following portion of Dumlao's counteraffidavit: 34 The medical certificate of private complainant Roberto Espiritu doesn't categorically state that the wound is a gun shot wound and if the letters GSW in handwritten form in a ballpen appear therein is an information coming from and supplied by said complainant, other entries are typewritten, it is not a gun shot wound as ascertained and examined by the attending doctor; the complainant was never confined in the hospital; there is no exit of the bullet but no finding whether said bullet is embedded and found inside the body of the alleged victim-complainant; if the privatecomplainant ever sustained any wound, it is one that is self-inflicted in a vain effort to substantiate a false charge of a serious offense of frustrated murder making it appear as a consequence of a gunshot; the medical certificate doesn't state the healing period of the self-inflicted wound; medical certificate is attached and marked as Annex "E" to form part hereof. The foregoing acts of respondent judge clearly demonstrate partiality. WHEREFORE, the Court finds Judge Eduardo U. Jovellanos GUILTY of gross misconduct and imposes on him a FINE of P20,000.00, with a WARNING that repetition of the same or similar offenses will be dealt with more severely. SO ORDERED.