ROBERTS VS.

CA

Judicial Determination of Probable Cause for the Purpose of Issuing a Warrant of Arrest : Is There a Need
for the Complete Records of the Case to Have Already Been Forwarded to the Trial Court?

Still in connection with Search and Seizure, I am sharing here the ruling of the High Tribunal in the case
of Roberts vs. CA, G.R. No. 113930, March 5, 1996. We look into the ponencia first, then the dissent of
Justice Puno.

This case involves the prosecution of petitioners Roberts, et al., corporate officers and members of the
Board of Directors of [the former] Pepsi Cola Products Phils., Inc. in connection with the company
promotion called “Number Fever.” The private complainants were handlers of the supposedly winning
“349” Pepsi crowns. The cases filed against petitioners were (1) estafa under Article 318 of the Revised
Penal Code; (2) violation of R.A. No. 7394, (The Consumer Act of the Philippines); (3) violation of E.O. No.
913 (Strengthening the Rule-Making and Adjudicatory Powers of the Minister of Trade and Industry in
order to further Protect Consumers); and (d) violation of Act No. 2333 (An Act Relative to Untrue,
Deceptive and Misleading Advertisements, as amended). Probable cause was however found by the
investigating prosecutor only for the crime of estafa, but not for the other alleged offenses.

On 12 April 1993, the information was filed with the trial court without anything accompanying it. A
copy of the Joint Resolution was forwarded to and received by the trial court only on 22 April 1993.
Moreover, no affidavits of the witnesses, transcripts of stenographic notes of the proceedings during the
preliminary investigation, or other documents submitted in the course thereof were found in the
records of the case as of 19 May 1993.

On April 15, 1993, petitioners Roberts, et al. filed a petition for review to the Secretary of Justice seeking
the reversal of the finding of probable cause by the investigating prosecutor. They also moved for the
suspension of the proceedings and the holding in abeyance of the issuance of warrants of arrest against
them. Meanwhile, the public prosecutor also moved to defer the arraignment of the accused-appellants
pending the final disposition of the appeal to the Secretary of Justice. On 17 May 1993, respondent
Judge Asuncion issued the challenged order (1) denying, on the basis of Crespo vs. Mogul, the foregoing
motions respectively filed by the petitioners and the public prosecutor, and directing the issuance of the
warrants of arrest “after June 1993” and setting the arraignment on 28 June 1993. In part, respondent
judge stated in his order:

This case is already pending in this Court for trial. To follow whatever opinion the Secretary of Justice
may have on the matter would undermine the independence and integrity of this Court. This Court is
still capable of administering justice.

The Supreme Court in the case of Crespo vs. Mogul (SCRA 151, pp. 471-472) stated as follows:

In order therefor to avoid such a situation whereby the opinion of the Secretary of Justice who reviewed
the action of the fiscal may be disregarded by the trial court, the Secretary of Justice should, as far as
practicable, refrain from entertaining a petition for review or appeal from the action of the fiscal, when
the complaint or information has already been filed in Court. The matter should be left entirely for the
determination of the Court.

Petitioners went to the Court of Appeals (CA), arguing that the respondent judge had not the slightest
basis at all for determining probable cause when he ordered the issuance of warrants of arrest. After
finding that a copy of the public prosecutor’s Joint Resolution had in fact been forwarded to, and
received by, the trial court on 22 April 1993, the CA denied petitioners’ application for writ of
preliminary injunction. The CA ruled that the Joint Resolution “was sufficient in itself to have been relied
upon by respondent Judge in convincing himself that probable cause indeed exists for the purpose of
issuing the corresponding warrants of arrest” and that the “mere silence of the records or the absence
of any express declaration” in the questioned order as to the basis of such finding does not give rise to
an adverse inference, for the respondent Judge enjoys in his favor the presumption of regularity in the
performance of his official duty.

Roberts, et al. sought reconsideration from the CA, but while this was pending before the CA, the
Secretary of Justice affirmed the finding of probable cause by the investigating prosecutor. The CA
therefore dismissed the petition for mootness.

The issues before the Supreme Court

Petitioners went to the Supreme Court and raised the following issues:

1. Did Judge Asuncion commit grave abuse of discretion in denying, on the basis of Crespo vs. Mogul,
the motions to suspend proceedings and hold in abeyance the issuance of warrants of arrest and to
defer arraignment until after the petition for review filed with the DOJ shall have been resolved?

2. Did Judge Asuncion commit grave abuse of discretion in ordering the issuance of warrants of arrest
without examining the records of the preliminary investigation?

3. Did the DOJ, through its 349 Committee, gravely abused its discretion in dismissing the petition for
review because of (a) the resolution of the CA denying the application for a writ of preliminary
injunction and (b) of Judge Asuncion’s denial of the motions?

4. Did the CA commit grave abuse of discretion (a) in denying the motion for a writ of preliminary
injunction solely on the ground that public respondent Asuncion had already before him the Joint
Resolution of the investigating prosecutor when he ordered the issuance of the warrants of arrest, and
(b) in ultimately dismissing the petition on the ground of mootness since the DOJ has [already] dismissed
the petition for review?

5. May the Supreme Court determine in this [sic] proceedings the existence of probable cause either
for the issuance of warrants of arrest against the petitioners or for their prosecution for the crime of
estafa?

The Court’s ruling

 [The Court, in a 7-5-2 vote, GRANTED the petition. It SET ASIDE the decision and resolution of the
CA, the resolutions of the DOJ 349 Committee, and the order of respondent judge. Mr. Justice Davide
wrote the opinion for the Court. Joining him were Associate Justices Padilla, Bellosillo, Hermosisima and
Vitug. Chief Justice Narvasa, with whom Justice Vitug also joined, wrote a separate concurring opinion.
On the other hand, Mr. Justice Puno, joined by Associate Justices Romero, Melo and Mendoza, wrote a
dissenting opinion. Justices Francisco and Panganiban took no part.]

1. YES, Judge Asuncion committed grave abuse of discretion in denying, on the basis of Crespo vs.
Mogul, the motions to suspend proceedings and hold in abeyance the issuance of warrants of arrest and
to defer arraignment until after the petition for review filed with the DOJ shall have been resolved.

There is nothing in Crespo vs. Mogul which bars the DOJ from taking cognizance of an appeal, by way of
a petition for review, by an accused in a criminal case from an unfavorable ruling of the investigating
prosecutor. It merely advised the DOJ to, “as far as practicable, refrain from entertaining a petition for
review or appeal from the action of the fiscal, when the complaint or information has already been filed
in Court.”

Whether the DOJ would affirm or reverse the challenged Joint Resolution is still a matter of guesswork.
Accordingly, it was premature for respondent Judge Asuncion to deny the motions to suspend
proceedings and to defer arraignment on the following grounds:

This case is already pending in this Court for trial. To follow whatever opinion the Secretary of Justice
may have on the matter would undermine the independence and integrity of this Court. This Court is
still capable of administering justice.

The real and ultimate test of the independence and integrity of this court is not the filing of the
aforementioned motions [to suspend proceedings and issuance of warrants of arrest and to defer
arraignment] at that stage but the filing of a motion to dismiss or to withdraw the information on the
basis of a resolution of the petition for review reversing the Joint Resolution of the investigating
prosecutor. However, once a motion to dismiss or withdraw the information is filed the trial judge may
grant or deny it, not out of subservience to the Secretary of Justice, but in faithful exercise of judicial
prerogative.

2. YES, Judge Asuncion committed grave abuse of discretion in ordering the issuance of warrants of
arrest without examining the records of the preliminary investigation.

The teachings then of Soliven, Inting, Lim, Allado, and Webb reject the proposition that the investigating
prosecutor’s certification in an information or his resolution which is made the basis for the filing of the
information, or both, would suffice in the judicial determination of probable cause for the issuance of a
warrant of arrest. In Webb, this Court assumed that since the respondent Judges had before them not
only the 26-page resolution of the investigating panel but also the affidavits of the prosecution
witnesses and even the counter-affidavits of the respondents, they (judges) made personal evaluation of
the evidence attached to the records of the case.

Unfortunately, in this case, nothing accompanied the information upon its filing on 12 April 1993 with
the trial court. As found by the CA, a copy of the Joint Resolution was forwarded to, and received by, the
trial court only on 22 April 1993. And as revealed by the certification of Branch Clerk of Court Gibson
Araula, Jr., no affidavits of the witnesses, transcripts of stenographic notes of the proceedings during the
preliminary investigation, or other documents submitted in the course thereof were found in the
records of this case as of 19 May 1993. Clearly, when respondent Judge Asuncion issued the assailed
order of 17 May 1993 directing, among other things, the issuance of warrants of arrest, he had only the
information, amended information, and Joint Resolution as bases thereof. He did not have the records
or evidence supporting the prosecutor's finding of probable cause. And strangely enough, he made no
specific finding of probable cause; he merely directed the issuance of warrants of arrest “after June 21,
1993.” It may, however, be argued that the directive presupposes a finding of probable cause. But then
compliance with a constitutional requirement for the protection of individual liberty cannot be left to
presupposition, conjecture, or even convincing logic.

3. YES, the DOJ, through its 349 Committee, gravely abused its discretion in dismissing the petition for
review because of: (a) the resolution of the CA denying the application for a writ of preliminary
injunction and (b) of Judge Asuncion’s denial of the motions.

The DOJ decision to give due course to the petition must have been prompted by nothing less than an
honest conviction that a review of the Joint Resolution was necessary in the highest interest of justice in
the light of the special circumstances of the case. That decision was permissible within the “as far as
practicable” criterion in Crespo.

Hence, the DOJ committed grave abuse of discretion when it dismissed the petition simply because it
thought that a review of the Joint Resolution would be an exercise in futility in that any further action on
its part would depend on the sound discretion of the trial court, and that the latter’s denial of the
motion to defer arraignment filed at the instance of the DOJ was clearly an exercise of that discretion or
was, in effect, a signal to the Department that the determination of the case is within the court’s
exclusive jurisdiction and competence. This infirmity becomes more pronounced because the reason
adduced by the respondent Judge for his denial of the motions to suspend proceedings and hold in
abeyance issuance of warrants of arrest and to defer arraignment finds, as yet, no support in Crespo.

4. YES, public respondent CA committed grave abuse of discretion (a) in denying the motion for a writ
of preliminary injunction solely on the ground that public respondent Asuncion had already before him
the Joint Resolution of the investigating prosecutor when he ordered the issuance of the warrants of
arrest, and (b) in ultimately dismissing the petition on the ground of mootness since the DOJ has
[already] dismissed the petition for review.

If the only issue before the CA were the denial of the petitioners’ and public prosecutor’s respective
motions, which were both based on the pendency of the petition for the review of the Joint Resolution
before the DOJ, the dismissal of the petition by the CA because of the dismissal by the DOJ of the
petition for review might have been correct. However, the petition likewise involved the issue of
whether respondent Judge Asuncion gravely abused his discretion in ordering the issuance of warrants
of arrest despite want of basis. The DOJ's dismissal of the petition for review did not render moot and
academic the latter issue.
The CA merely assumed that Judge Asuncion had read and relied on the Joint Resolution, and that he
was convinced that probable cause exists for the issuance of the warrants of arrest against the
petitioners. Nothing in the records provides reasonable basis for these assumptions. In his assailed
order, the respondent judge made no mention of the Joint Resolution, which was attached to the
records of Criminal Case No. Q-93-43198 on 22 April 1993. Neither did he state that he found probable
cause for the issuance of warrants of arrest. And, for an undivinable reason, he directed the issuance of
warrants of arrest only “after June 21, 1993.” If he did read the Joint Resolution and, in so reading,
found probable cause, there was absolutely no reason at all to delay for more than one month the
issuance of warrants of arrest. The most probable explanation for such delay could be that the
respondent judge had actually wanted to wait for a little while for the DOJ to resolve the petition for
review.

It is, nevertheless, contended in the dissenting opinion of Mr. Justice Reynato S. Puno that whatever
doubts may have lingered on the issue of probable cause was dissolved when no less than the CA
sustained the finding of probable cause made by the respondent Judge after an evaluation of the Joint
Resolution. This is anchored on erroneous premises. In its 1 July 1993 resolution, the CA does not at all
state that it either sustained Judge Asuncion’s finding of probable cause, or found by itself probable
cause. As discussed above, it merely presumed that Judge Asuncion might have read the Joint
Resolution and found probable cause from a reading thereof. Then too, that statement in the dissenting
opinion erroneously assumes that the Joint Resolution can validly serve as sufficient basis for
determining probable cause. It is not.

5. NO, the Supreme Court MAY NOT determine in this [sic] proceedings the existence of probable
cause either for the issuance of warrants of arrest against the petitioners or for their prosecution for the
crime of estafa.

Ordinarily, the determination of probable cause is not lodged with this Court. Its duty in an appropriate
case is confined to the issue of whether the executive or judicial determination, as the case may be, of
probable cause was done without or in excess of jurisdiction or with grave abuse of discretion
amounting to want of jurisdiction. This is consistent with the general rule that criminal prosecutions may
not be restrained or stayed by injunction, preliminary or final. There are, however, exceptions to this
rule. Among the exceptions are enumerated in Brocka vs. Enrile as follows:

a. To afford adequate protection to the constitutional rights of the accused (Hernandez vs. Albano, et
al., L-19272, January 25, 1967, 19 SCRA 95);

b. When necessary for the orderly administration of justice or to avoid oppression or multiplicity of
actions (Dimayuga, et al. vs. Fernandez, 43 Phil. 304; Hernandez vs. Albano, supra; Fortun vs. Labang, et
al., L-38383, May 27, 1981, 104 SCRA 607);

c. When there is a pre-judicial question which is sub judice (De Leon vs. Mabanag, 70 Phil. 202);

d. When the acts of the officer are without or in excess of authority (Planas vs. Oil, 67 Phil. 62);

e. Where the prosecution is under an invalid law, ordinance or regulation (Young vs. Rafferty, 33 Phil.
556; Yu Cong Eng vs. Trinidad, 47 Phil. 385, 389);

f. When double jeopardy is clearly apparent (Sangalang vs. People and Avendia, 109 Phil. 1140);
g. Where the court has no jurisdiction over the offense (Lopez vs. City Judge, L-25795, October 29,
1966, 18 SCRA 616);

h. Where it is a case of persecution rather than prosecution (Rustia vs. Ocampo, CA-G.R. No. 4760,
March 25, 1960);

i. Where the charges are manifestly false and motivated by the lust for vengeance (Recto vs. Castelo,
18 L.J. [1953], cited in Rañoa vs. Alvendia, CA-G.R. No. 30720-R, October 8, 1962; Cf. Guingona, et al. vs.
City Fiscal, L-60033, April 4, 1984, 128 SCRA 577); and

j. When there is clearly no prima facie case against the accused and a motion to quash on that ground
has been denied (Salonga vs. Paño, et al., L- 59524, February 18, 1985, 134 SCRA 438).

k. Preliminary injunction has been issued by the Supreme Court to prevent to threatened unlawful
arrest of petitioners (Rodriguez vs. Castelo, L- 6374, August 1, 1953). (cited in Regalado, Remedial Law
Compendium, p. 188, 1988 Ed.)

In these exceptional cases, this Court may ultimately resolve the existence or non-existence of probable
cause by examining the records of the preliminary investigation, as it did in Salonga vs. Paño, Allado, and
Webb.

We shall not, however, reevaluate the evidence to determine if indeed there is probable cause for the
issuance of warrants of arrest in this case. For the respondent judge did not, in fact, find that probable
cause exists, and if he did he did not have the basis therefor. Moreover, the records of the preliminary
investigation in this case are not with this Court. They were forwarded by the Office of the City
Prosecutor of Quezon City to the DOJ in compliance with the latter's 1st Indorsement of 21 April 1993.
The trial court and the DOJ must be required to perform their duty.

Skechers, USA, Inc. v. Inter Pacific Industrial Trading Corp.

G.R. No. 164321 (2011)

Skechers, USA Inc. is the owner of the registered trademarks “Skechers” and “S within an oval logo”.

Skechers filed a criminal case for trademark infringement against several store-owners that were selling
shoes branded as “Strong” and bearing a similar “S” logo. The Regional Trial Court (RTC) issued search
warrants, allowing the National Bureau of Investigation (NBI) to raid the stores and confiscate 6,000
pairs of shoes.

The accused moved to quash the warrants, saying that there was no confusing similarity between the
“Skechers” and the “Strong” brands.

The RTC granted the motion to quash and ordered the NBI to return the seized goods. The court said
that the two brands had glaring differences and that an ordinary prudent consumer would not mistake
one for the other.

On certiorari, the Court of Appeals (CA) affirmed the RTC ruling.

The matter was elevated to the Supreme Court (SC).

Issue: Did the accused commit trademark infringement?

RULING: Yes, the accused is guilty of trademark infringement.

Under the IP Code (RA No. 8293), trademark infringement is committed when:

Remedies; Infringement. — Any person who shall, without the consent of the owner of the registered
mark:

155.1. Use in commerce any reproduction, counterfeit, copy, or colorable imitation of a registered mark
or the same container or a dominant feature thereof in connection with the sale, offering for sale,
distribution, advertising of any goods or services including other preparatory steps necessary to carry
out the sale of any goods or services on or in connection with which such use is likely to cause
confusion, or to cause mistake, or to deceive; or

155.2. Reproduce, counterfeit, copy or colorably imitate a registered mark or a dominant feature
thereof and apply such reproduction, counterfeit, copy or colorable imitation to labels, signs, prints,
packages, wrappers, receptacles or advertisements intended to be used in commerce upon or in
connection with the sale, offering for sale, distribution, or advertising of goods or services on or in
connection with which such use is likely to cause confusion, or to cause mistake, or to deceive, shall be
liable in a civil action for infringement by the registrant for the remedies hereinafter set forth: Provided,
That the infringement takes place at the moment any of the acts stated in Subsection 155.1 or this
subsection are committed regardless of whether there is actual sale of goods or services using the
infringing material. (emphasis supplied)

There is trademark infringement when the second mark used is likely to cause confusion. There are two
tests to determine this:

1. Dominancy Test – the court focuses on the similarity of the dominant features of the marks that might
cause confusion in the mind of the consumer. Duplication or imitation is not necessary. Even accidental
confusion may be cause for trademark infringement. More consideration is given to the aural and visual
impressions created by the marks on the buyers and less weight is given to factors like price, quality,
sales outlets and market segments.

Applied to this case: The SC found that the use of the “S” symbol by Strong rubber shoes infringes on the
registered Skechers trademark. It is the most dominant feature of the mark -- one that catches the
buyer’s eye first. Even if the accused claims that there was a difference because the “S” used by
Skechers is found inside an oval, the fact that the accused used the dominant “S” symbol already
constitutes trademark infringement.

The SC disagreed with the CA reasoning that the “S” symbol is already used for many things, including
the Superman symbol. Even if this is true, the fact that Strong used same stylized “S” symbol as that of
the Skechers brand makes this a case of trademark infringement. The same font and style was used in
this case. The Superman “S” symbol is clearly different from the “S” in this case.
2. Holistic or Totality Test – the court looks at the entirety of the marks as applied to the products,
including the labels and packaging. You must not only look at the dominant features but all other
features appearing on both marks.

Applied to this case: Both RTC and CA used the Holistic Test to rule that there was no infringement. Both
courts argued the following differences:

The mark “S” found in Strong Shoes is not enclosed in an “oval design.”

The word “Strong” is conspicuously placed at the backside and insoles.

The hang tags and labels attached to the shoes bears the word “Strong” for respondent and “Skechers
U.S.A.” for private complainant;

Strong shoes are modestly priced compared to the costs of Skechers Shoes.

Also using the Holistic Test, the SC corrected the lower courts and ruled that the striking similarities
between the products outweigh the differences argued by the respondents:

Same color scheme of blue, white and gray;

Same wave-like pattern on the midsole and the outer sole;

Same elongated designs at the side of the midsole near the heel;

Same number of ridges on the outer soles (five at the back and six in front);

Same location of the stylized “S” symbol;

The words "Skechers Sport Trail" at the back of the Skechers shoes and "Strong Sport Trail" at the back
of the Strong shoes, using the same font, color, size, direction and orientation;

Same two grayish-white semi-transparent circles on top of the heel collars.

The features and overall design of the two products are so similar that there is a high likelihood of
confusion.

Two products do not need to be identical, they just need to be similar enough to confuse the ordinary
buyer in order to constitute trademark infringement (Converse Rubber Corporation v. Jacinto Rubber &
Plastic Co., 186 Phil. 85 [1980]). Also, the difference in price cannot be a defense in a case for trademark
infringement (McDonald’s Corporation v. L.C. Big Mak Burger, Inc., 480 Phil. 402, 434 [2004]).

There are two types of confusion:

Product Confusion – where the ordinary prudent purchaser would be induced to purchase on product in
the belief that he was buying another.

Source or Origin Confusion – although the goods are different, the use of the mark causes the consumer
to assume that both products originate from the same source.
Trademark law protects the owner not only from product confusion but also from source confusion.
Protection is not limited to the same or similar products but extends to all cases where:

The consumer is misled into thinking that the trademark owner extended his business into a new field;

The consumer is misled into thinking that the trademark owner is in any way connected to the
infringer’s activities; or

The infringement forestalls the normal potential expansion of the trademark owner’s business.

Trademark law does not only protect the owner’s reputation and goodwill, it also protects the
consumers from fraud and confusion.

In this case, it is clear that there was an attempt to copy the trademark owner’s mark and product
design. In trademark infringement cases, you do not need to copy another's mark or product exactly.
Colorable imitation is enough.

GEORGE MILLER, VS. SEC.OF JUSTICE

May 30, 2011

x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x

DECISION

VILLARAMA, JR., J.:

Before us is a petition for review on certiorari under Rule 45 of the 1997 Rules of Civil Procedure, as
amended, assailing the Decision[1] dated June 14, 2004 and Resolution[2] dated September 14, 2004 of
the Court of Appeals (CA) in CA-G.R. SP No. 72395. The CA dismissed the petition for certiorari after
finding no grave abuse of discretion on the part of public respondent Secretary of Justice in issuing his
Resolution[3] dated March 21, 2002 which ordered the exclusion of respondent Giovan Bernardino
(Bernardino) from the Information for attempted murder.

The facts as culled from the records:

Petitioner George Miller is a British national and an inmate at the Maximum Security Compound of the
New Bilibid Prison (NBP) in Muntinlupa City. In November and December 1998, while serving as Acting
Secretary General of the Inmates Crusade Against Drugs (ICAD) based at NBP, petitioner wrote two
confidential letters[4] addressed to then NBP Superintendent Col. Gregorio Agalo-os. The letters
contained a detailed report of the alleged irregularities and drug trading activities of respondent
Bernardino and Rodolfo Bernardo (Bernardo), both inmates at the Medium Security Compound and
ICAD Treasurer and Chairman, respectively. Petitioner also recommended the transfer of Bernardino
and Bernardo to the Maximum Security Compound.

On January 6, 1999, at around 2:30 p.m., while proceeding towards the volleyball court at the Medium
Security Compound, petitioner felt a crushing blow at the back of his head. As blood oozed from his
head, petitioner ran to the Infirmary for first aid treatment. Later, petitioner was transferred to the NBP
hospital. On January 17, 1999, Dr. Ma. Corazon S. Alvarez, Medical Specialist at the NBP hospital, issued
a Medical Certificate[5] with the following findings:

- lacerated wound, one (1), about 8 to 9 cms. long,

1 cm. deep, on parietal area of the head.

- Barring unforseen (sic) circumstances, healing period is

from 7 to 10 days.

Investigation of the incident was immediately ordered by Supt. Agalo-os. PGIII Cecilio M. Lopez
conducted the investigation and submitted to the NBP Director his Report[6] dated January 5, 1999.
Based on the sworn statement of petitioner and the verbal admissions made by inmates Constantino
Quirante, Jr. (Quirante) and Roberto Ceballos (Ceballos), it was found that a few days before the
incident, Bernardo and Bernardino confronted petitioner regarding the letters he wrote reporting the
alleged illegal drug activities of Ace Aprid (Aprid), Bernardo and Bernardino at ICAD. Bernardo and
Bernardino were furious when petitioner admitted having authored the letters, threatening him with
the words Mamamatay ka, which petitioner fully understood: he is going to die. Petitioner discovered
that another inmate (Valeroso) to whom he confided the matter, had divulged the existence of the
letters to Bernardo and Bernardino. At the time he was hit at the back of his head, petitioner was able to
turn around and saw his assailant, later identified as Quirante, who ran away through the gate leading to
the talipapa where petitioner lost sight of him. Petitioner then saw two persons standing near the
entrance of the talipapa and shouted at one of them asking for the identity of his assailant and if he saw
the incident. However, the man just kept mum. As petitioner realized that blood was oozing from his
head, he immediately went to the Infirmary.

The day after the incident, Bernardo and Bernardino along with fellow inmates Aprid, Virgilio Adrales,
Rogelio Aguilar, Amable Bendoy, Arnel Modrigo, Alfred Magno and Vergel Bustamante, were brought to
the investigation section.

In the course of the investigation, Quirante and Ceballos admitted their participation in the attack on
petitioner and the information they provided was summarized by the investigating officer as follows:

xxxx

While the investigation was in progress, inmates Roberto Ceballos and Constantino Quirante voluntarily
surfaced admitting their participation in the clubbing of Miller. After having been informed of their
constitutional rights, the two during interrogation and without second thought, narrated in detail how
and why they attempted to kill Miller in the following manner:

At around 10:30 A.M. of January 6, 1999, in whiling the time under the shade of a tree in a basketball
court of the Medium Security Camp, Quirante and Ceballos were approached by Aprid and Bernardino
to engage their services and offered an amount of P1,500.00 to kill Miller. Being in dire need of money
at the very moment, Quirante and Ceballos accepted the offer. Quirante admitted treacherously hitting
Miller at the back of his head with a piece of wood but for failing to get him with one blow, he had to
flee. On the other hand, Ceballos admitted as the lookout and was asked by Miller the identity of his
assailant right after he was clubbed. Accordingly, what motivated them to reveal everything is the fact
that only P100.00 was paid in advance to them by Bernardino and Aprid and the balance of P1,400.00 as
promised to be paid sooner was never fulfilled. The duo even signified their intention to reduce their
participation in writing to authenticate the admission of their guilt. However, in the absence of a lawyer
to assist them and to safeguard their constitutional rights, the officer on case opted not to do so.

To ascertain the veracity of Ceballos and Quirantes confession, a confrontation was made at the
Directors Office. Several inmates were lined-up with Ceballos and Quirante. Miller when asked to
identify his assailant, he spontaneously pointed to Quirante as the one who clubbed him on the head
and likewise pointed to Ceballos as the man whom he had shouted at asking for the identity of his
assailant.

x x x x[7]

On the basis of the foregoing, PGIII Lopez recommended that Quirante and Ceballos be charged with
Frustrated Murder and the case be placed under further investigation pending the establishment of
sufficient evidence to indict inmates Rodolfo Bernardo, Giovan Bernardino and Ace Aprid.[8] On
February 10, 1999, the case was endorsed to the Office of the City Prosecutor submitting to the said
office the following documents: (1) Investigation Report of PGIII Lopez; (2) Sworn Statement of
petitioner; (3) Medical Certificate; (4) Routing Slip of Supt. Agalo-os; and (5) petitioners letters dated
November 21, 1998 and December 27, 1998 addressed to the NBP Superintendent.[9] The case was
docketed as I.S. No. 99-B-01314.

On March 30, 1999, Prosecutor Antonio V. Padilla issued his resolution[10] finding the evidence
sufficient to charge Quirante with attempted murder while dismissing the case against Ceballos for
insufficiency of evidence, thus:

Anent the charge against Giovan Bernardino and Rodolfo Bernardo, we noticed that the same is merely
anchored on suspicion and conjecture. Except the bare allegations of the complainant, nothing would
link them to the assault against the complainant. In fact, their names were not even mentioned in the
referral letter, dated February 10, 1999, of the Bureau of Corrections addressed to our Office.

WHEREFORE, premises considered, the undersigned respectfully recommends that the attached
Information be filed in court. Further, it is recommended that the charge against Ceballos be dismissed
on ground of insufficiency of evidence. As to the charge against Bernardino and Bernardo the same is
likewise recommended dismissed on ground of insufficiency of evidence without prejudice to the
refilling of same in the event that evidence against them may be unearthed by concerned
authorities.[11] (Italics supplied.)

Thereafter, an information for attempted murder was filed against Quirante only in the Regional Trial
Court (RTC) of Muntinlupa City (Branch 256), docketed as Criminal Case No. 99-452.

On or about April 14, 1999, Quirante and Ceballos executed a joint affidavit in Tagalog (Pinagsamang
Sinumpaang Salaysay[12]) which was sworn to before Prosecutor Padilla. They declared that at
noontime of January 6, 1999, their services were engaged through their Bosyo or Commander, Rodrigo
Toledo (Toledo), who told them that if they hit (paluin) petitioner they will be paid P1,500 by Bernardino
and Bernardo. Hence, they carried out the clubbing of petitioner by 2:00 in the afternoon of the same
day infront of the volleyball court of the Medium Security Compound while petitioner was walking from
the talipapa. Quirante struck at petitioner from behind using a piece of wood and then ran away
towards the talipapa. Petitioner turned around and saw Ceballos whom he asked for the identity of his
assailant. In pain and with bleeding wound on his head, petitioner momentarily sat down and then
brought himself to the infirmary. Ceballos thought that petitioner did not recognize him since his face
was then covered with shirt cloth. A day later, Toledo handed them P100 as initial payment, the balance
to be paid by Bernardo and Bernardino also through Toledo. However, three days passed without the
P1,400 being paid to them, until they were called to appear before the Directors office. When
questioned during the investigation, they readily owned up to the assault on petitioner because
Bernardino and Bernardo did not pay the agreed amount.

The sworn statement of Quirante and Ceballos was corroborated by Toledo who likewise executed a
Sinumpaang Salaysay[13] on even date stating that as early as December 1998, Bernardo and
Bernardino have been talking to him about their plan to have petitioner killed. Toledo being the leader
of their group (BC 45) at the Medium Security Compound, Bernardo and Bernardino promised that they
will pay whoever among his (Toledo) men can do it. Toledo claimed that he initially declined but due to
the daily conversations with Bernardo and Bernardino who also gave him food, he finally called on two
of his men, Quirante and Ceballos, to carry out the plan to kill petitioner. He was confident that
everything will be alright since Bernardo and Bernardino committed to pay P1,500 for the job. A day
after the clubbing of petitioner, he gave Quirante and Ceballos P100 as initial payment by Bernardo and
Bernardino for their services. Three days later, he learned that Quirante and Ceballos were summoned
before the Directors Office in connection with the incident. He affirmed the truth of the admissions
made by Quirante and Ceballos because Bernardo and Bernardino failed to comply with their
undertaking.

On December 2, 1999, Quirante, Ceballos and Toledo executed new affidavits[14] in English, which were
sworn to before Bureau of Corrections Assistant Director Joselito A. Fajardo and Prosecutor Leopoldo B.
Macinas. These new affidavits gave a more detailed narration of the incident and pointed to Bernardo
and Bernardino as the masterminds with Aprid being an accomplice. Bernardo and Aprid allegedly
planned the killing of petitioner together with Toledo, the BC 45 Gang Commander, wherein Quirante
agreed to be the one to kill petitioner while another gang member, Ceballos, would act as his lookout.
The affidavits also mentioned what transpired during the preliminary investigation conducted by
Prosecutor Padilla and the earlier April 1999 Tagalog affidavits they executed before Prosecutor Padilla.
These documents were submitted during the reinvestigation conducted by Prosecutor Macinas.

Bernardo and Bernardino submitted their Joint Counter-Affidavit[15] dated January 19, 2000, stating
that it was the second time they were being implicated in the case and pointing out that both
investigations by the Investigation Section of the Bureau of Corrections and the Office of the City
Prosecutor, Muntinlupa City showed that they have no participation in the commission of the offense.
They asserted that the charges against them have no basis and the fruit of the wrong and malicious
imputations of the witnesses. They denied having committed any violation of the rules and regulations
of ICAD, of which Bernardo is Chairman while Bernardino is the Treasurer. They claimed that in the three
years they have been serving the ICAD, the organization has more than progressed and benefitted their
fellow inmates at the NBP. As to the statements given by Quirante, Ceballos and Toledo, and other
witnesses, these are conflicting and muddled, showing so much evidence of them having been tutored.
Bernardo and Bernardino likewise presented a Sinumpaang Salaysay[16] executed by their witnesses,
co-inmates Arnel Modrigo, Virgilio Adrales and Rogelio Aguilar. Said affiants declared that when
petitioner approached them and asked if Aprid and Bernardo had anything to do with the incident, they
plainly answered in the negative and told petitioner he should ask those persons instead. Everyday,
petitioner goes to them asking them to pinpoint Aprid, Bernardo and Bernardino as the masterminds in
order to strengthen the case against them. Petitioner even asked them to sign a handwritten letter[17]
prepared by petitioner himself, addressed to Supt. Agalo-os and which, while requesting for their
transfer to the Medium Security dormitories, also affirmed the culpability of Aprid, Bernardo and
Bernardino for the attempt on the life of petitioner. However, they refused to do so as they know there
was no truth to the contents of said letter.

On March 20, 2000, Prosecutor Leopoldo Macinas issued his Memorandum[18] addressed to the City
Prosecutor finding probable cause against Quirante, Ceballos and Toledo in conspiracy with Bernardino,
Aprid and Bernardo, for the crime of attempted murder. Prosecutor Macinas was convinced that the
detailed account given by Quirante, Ceballos and Toledo were executed freely and voluntarily, and
found no reason why they would incriminate their co-inmates other than the truth of the statements in
their affidavits. On the other hand, the defenses proffered by Bernardo and Bernardino are evidentiary
matters which can be best passed upon after a full-blown trial.

WHEREFORE, it is respectfully recommended that respondents Giovan Bernardino, Rod[o]lfo Bernardo,

Rodrigo Toledo, Ace Aprid and Roberto Ceballos be all indicted by way of the herein attached amended
information as co-conspirators of accused Constantino Quirante in attempting to kill George Miller,
prima facie case having been established.[19]

Consequently, an Amended Information was filed with the RTC which included the names of Bernardino,
Aprid, Bernardo, Toledo and Ceballos as co-conspirators in the crime of attempted murder.

Bernardino filed a petition for review[20] with the Department of Justice (DOJ) arguing that there was
no sufficient evidence presented to support a claim of conspiracy, which was based merely on
conflicting testimonies or affidavits in a language foreign to the affiants. He noted that the English
affidavits pointed to three people as the masterminds when originally only two have been implicated by
the perpetrators (Quirante and Ceballos).

Petitioner filed his opposition,[21] alleging that contrary to the claim of Bernardino, the Bureaus
investigation was far from complete as the Report of PGIII Lopez itself stated that the case is
recommended for further investigation pending the establishment of sufficient evidence to indict
inmates Rodolfo Bernardo, Giovan Bernardino and Ace Aprid. As to the Tagalog affidavits, petitioner
pointed out that these could not have been produced during the preliminary investigation conducted by
Prosecutor Padilla since the documents were executed only on April 14, 1999, two weeks after
Prosecutor Padilla rendered his resolution. Further investigation by the Bureau led to the execution of
two affidavits in Tagalog (Quirante, Ceballos and Toledo) without the knowledge of petitioner. However,
said Tagalog affidavits disappeared and petitioner was not allowed access to the Investigation Sections
file despite his complaints to Director Sistoza, the Bureau and DOJ. Prior to the November 25, 1999
hearing on reinvestigation, petitioner had new affidavits in English prepared with the assistance of a
former Supreme Court interpreter (inmate Chua) and these were subsequently signed by Toledo,
Quirante and Ceballos and sworn to before Prosecutor Macinas. Hence, the said documentary evidence
was already considered in the March 20, 2000 Resolution of Prosecutor Macinas. Petitioner further
alleged that Bernardo and Bernardino received thru registered mail copy of the March 20, 2000
Resolution on June 16, 2000 but the petition for review before the DOJ was actually filed only on July 27,
2000 but conveniently dated July 14, 2000.

On March 21, 2002, public respondent, then Secretary of Justice Hernando B. Perez, issued his
Resolution[22] finding merit in the petition. According to Secretary Perez, the new affidavits of Quirante,
Ceballos and Toledo are not credible considering the length of time they were executed since the
commission of the crime and also because said documents cannot be considered newly discovered
evidence. He further noted that the affidavits were executed by the same persons investigated by the
Bureau of Corrections and who all participated in the preliminary investigation of the case. At most, said
affidavits can only be considered as afterthought or made upon the prodding or influence of other
persons. Public respondent thus ordered:

WHEREFORE, the questioned resolution is MODIFIED. The City Prosecutor of Muntinlupa City is directed
to amend the information to exclude accused Giovan Bernardino therefrom, and to report action taken
within ten (10) days from receipt hereof.

SO ORDERED.[23]

On March 25, 2002, a Motion to Admit Second Amended Information, which dropped the name of
respondent Bernardino as one of the accused, was filed in court.[24]

Petitioner filed a motion for reconsideration which was denied under Resolution[25] dated August 1,
2002.

Aggrieved, petitioner elevated the case to the CA via a Petition for Certiorari under Rule 65. Petitioner
argued that public respondent gravely abused his discretion in disregarding all material evidence
presented which clearly showed that the affidavits of Quirante, Ceballos and Toledo had not been
submitted during the preliminary investigation conducted by Prosecutor Padilla. Contrary to the
pronouncement of the Secretary of Justice, the absence of said affidavits could not be construed as an
irregularity in the conduct of preliminary investigation. This must be so since the March 30, 1999
resolution of Prosecutor Padilla explicitly stated that if and when evidence be unearthed by the
concerned authorities, the case may still be re-filed against the other suspects, including Bernardo and
Bernardino, for conspiracy in the attempted murder of petitioner. Petitioner also faulted the public
respondent in granting the petition for review despite the same having been filed out of time, more
than one month after receipt of the DOJ resolution.[26]

On June 14, 2004, the CA rendered its Decision sustaining the ruling of the Secretary of Justice, finding
no grave abuse of discretion in the issuance of the questioned resolutions. Petitioners motion for
reconsideration was likewise denied by the CA.

Petitioner is now before this Court, alleging that

THE HONORABLE COURT OF APPEALS COMMITTED SERIOUS ERRORS OF LAW, AND AS SUCH THE
INSTANT PETITION SHOULD BE ALLOWED, WHEN, IN AFFIRMING THE DECISION OF THE SECRETARY OF
JUSTICE DISREGARDING THE AFFIDAVITS OF THE WITNESSES DATED APRIL 14, 1999 AND DECEMBER 2,
1999, IT RELIED HEAVILY ON A MERE INFERENCE BASED NOT ON ESTABLISHED FACTS BUT ON ANOTHER
INFERENCE.
THE HONORABLE COURT OF APPEALS COMMITTED SERIOUS ERRORS OF LAW, AND AS SUCH THE
INSTANT PETITION SHOULD BE ALLOWED, WHEN, IN AFFIRMING THE DECISION OF THE SECRETARY OF
JUSTICE REVERSING THE INVESTIGATING PROSECUTORS FINDINGS OF PROBABLE CAUSE AGAINST THE
PRIVATE RESPONDENT, IT DEPARTED FROM THE ESTABLISHED FACTS, AND IN THE PROCESS, FAILED TO
MAKE AN INDEPENDENT AND THOROUGH DETERMINATION OF THE EXISTENCE OF PROBABLE CAUSE IN
LIGHT OF APPLICABLE LAWS, RULES AND JURISPRUDENCE.[27]

Petitioner contends that the CA erred in concluding that the decision of the Secretary of Justice was
supported with factual basis notwithstanding that its conclusion that the new affidavits were executed
upon the influence of persons who merely wanted to indict respondent Bernardino, was based merely
on another inference - that there was considerable length of time before the said affidavits were
executed. He assails the CA which, like the Secretary of Justice, closed its eyes on the clear indications of
culpability appearing on the faces of the affidavits presented during the reinvestigation. The CA
disregarded these pieces of evidence despite the same having established prima facie that respondent
Bernardino is probably guilty of the charge, for the reason alone that since the Secretary of Justice
himself doubts the veracity of the affidavits of Quirante, Ceballos and Toledo, it would be embarrassing
to compel [him] to prosecute the case.

On the other hand, respondent Bernardino in his Comment argued that the plain, speedy and adequate
remedy of petitioner from the ruling of the Secretary of Justice should have been the trial courts
resolution of the Motion for Leave to File Second Amended Information which had been set for hearing,
and not the petition for certiorari he filed before the CA. He also insists that only one copy of the March
20, 2000 Memorandum of Prosecutor Macinas was sent to the NBP which was addressed to petitioner.
It was only on July 4, 2000 that his family was able to secure a copy from the Office of the City
Prosecutor. As to the resolution of public respondent Secretary, respondent Bernardino maintains that
the Secretary of Justice was correct in disregarding the new English affidavits as they were subscribed by
unlettered affiants who can hardly speak Filipino and know only the Visayan dialect.

On its part, the Office of the Solicitor General (OSG) prays for the dismissal of the petition as the
Secretary of Justice committed no grave abuse of discretion in modifying the ruling of Prosecutor
Macinas by ordering the exclusion of respondent Bernardino from the Information. Considering that the
affidavits indicting respondent Bernardino were executed after the initial preliminary investigation and
after an information was already filed in court, the Secretary of Justice was justified in giving less
credence to the said evidence.

We find the petition meritorious.

Probable cause is defined as the existence of such facts and circumstances as would excite the belief in a
reasonable mind, acting on the facts within the knowledge of the prosecutor, that the person charged
was guilty of the crime for which he was prosecuted.[28] To determine the existence of probable cause,
there is need to conduct preliminary investigation. A preliminary investigation constitutes a realistic
judicial appraisal of the merits of a case.[29] Its purpose is to determine whether (a) a crime has been
committed; and (b) whether there is a probable cause to believe that the accused is guilty thereof. It is a
means of discovering which person or persons may be reasonably charged with a crime.[30]

It is well-settled that the determination of probable cause for the purpose of filing an information in
court is an executive function which pertains at the first instance to the public prosecutor and then to
the Secretary of Justice.[31] The Secretary of Justice may reverse or modify the resolution of the
prosecutor, after which he shall direct the prosecutor concerned either to file the corresponding
information without conducting another preliminary investigation, or to dismiss or move for dismissal of
the complaint or information with notice to the parties.[32]

The Court considers it sound judicial policy to refrain from interfering in the conduct of preliminary
investigations and to leave the Department of Justice ample latitude of discretion in the determination
of what constitutes sufficient evidence to establish probable cause for the prosecution of supposed
offenders.[33] Its duty in an appropriate case is confined to the issue of whether the executive or
judicial determination, as the case may be, of probable cause was done without or in excess of
jurisdiction or with abuse of discretion amounting to want of jurisdiction.[34]

However, this Court may ultimately resolve the existence or non-existence of probable cause by
examining the records of the preliminary investigation when necessary for the orderly administration of
justice.[35] Although policy considerations call for the widest latitude of deference to the prosecutors
findings, courts should never shirk from exercising their power, when the circumstances warrant, to
determine whether the prosecutors findings are supported by the facts, or by the law.[36]

In this case, Secretary Perez disregarded the new (English) affidavits executed by Quirante, Ceballos and
Toledo, saying it was an afterthought or made simply upon the prodding or influence of other persons.
He also stated that Quirante, Ceballos and Toledo all participated in the investigations of the Bureau of
Corrections. No mention, however, was made of the fact that said new affidavits firmly reiterated what
Quirante, Ceballos and Toledo declared in their earlier Tagalog affidavits and their verbal admissions
during the investigation proceedings conducted by PGIII Lopez. These Tagalog affidavits in turn,
although executed two weeks after the initial preliminary investigation conducted by Prosecutor Padilla,
were properly admitted and considered by the investigating officer, Prosecutor Macinas who took over
during the reinvestigation of the case. The recommendation of Prosecutor Padilla which initially found
probable cause only against Quirante, explicitly reserved the inclusion of Bernardo and Bernardino
whose complicity may eventually be established, by qualifying the dismissal of the case as against them
for insufficiency of evidence, with the words without prejudice to the refiling of the same in the event
that evidence against them may be unearthed by concerned authorities. The reservation made by
Prosecutor Padilla for the inclusion of other persons who may have had complicity in the commission of
the crime was grounded on reasonable belief that there were other conspirators or masterminds, on the
basis of the findings of PGIII Lopez during the investigation by the Bureau, the verbal admissions of
Quirante and Ceballos as to their culpability and the alleged masterminds they identified. Hence, the
English affidavits submitted during the reinvestigation cannot be considered an afterthought and
executed merely upon the influence of certain persons, and Prosecutor Macinas properly admitted
those in evidence.

Indeed, the English affidavits contained a reiteration and more detailed account of the clubbing incident
earlier given by Quirante, Ceballos and Toledo in the Tagalog affidavits. In these affidavits executed on
December 2, 1999, as well as in the Tagalog affidavits dated April 14, 1999, they were consistent in
pointing to Bernardo and Bernardino as the masterminds with Aprid as accomplice, in the crime
charged. Further, the English affidavits fully explained the circumstances as to why they were not able to
give sworn statements during the Bureau investigation and initial preliminary investigation conducted
by Prosecutor Padilla, before whom they subscribed their Tagalog affidavits, and the reason for the
execution of new affidavits in English which were subscribed before Prosecutor Macinas. Thus, the
pertinent portions of their individual affidavits in English read:

Affidavit of Roberto Ceballos

xxxx

On January 9th 1999 at around 10:00 a.m. inmate Constantino Quirante was arrested by the ICA
(Inmates Custodial Aide) who took him to the Overseers Office for interrogation. I was arrested shortly
afterwards by the ICA and taken to their office also for investigation. Inmate Constantino Quirante and I
were then confined to the Bartolina (disciplinary cell) where we remained for two months and twenty
one days (2 mos. 21 days) before being transferred to the Maximum Security Compound.

Shortly after being confined in the disciplinary cell at the Medium Security Compound, inmate Quirante
and I were summoned to the Maximum Security Compound for interrogation. We first went to the office
of Superintendent Agalo-os and made a joint statement which we did not sign as we were nervous and a
lawyer (Ace Aprids counsel I think) was present. We were then taken to the ante-room of the Directors
office where inmate Dr. George Miller was with an Inspector Lopez from the Bureaus Investigation
Section and an [illegible] Inspector Lopezs questions in Tagalog and Dr. Miller asked why those people
from ICAD wished to have him killed. We told him it was because he had informed on them with a
report to the Superintendent. While confined in the Medium Security Compounds Bartolina we were
visited by Giovan Bernardino who told us to keep quiet about what had happened and gave us
hamburgers. He also promised us money but this never materialized.

Later in the beginning of March we were escorted to the Muntinlupa City Prosecutors Office for a
preliminary hearing. We were surprised nobody from ICAD was there but Miller said he would not prefer
charges against us provided we turned States witnesses and deposed to a counter-affidavit exposing the
masterminds, those in fact who had commissioned the crime. Quirante and I requested the Asst.
Prosecutor Padilla for a few days within which to think about submitting a counter-affidavit. The Asst.
Prosecutor Padilla arranged a second preliminary hearing which was on the 11th March 1999 when we
informed him we were still thinking it over. Afterwards when we were transferred to the Maximum
Security Compound we discovered the Bureau of Corrections Investigation Section had commenced an
inquiry into the management of ICAD. We were summoned to the Penal Superintendents office with
inmate Rudy Toledo, when Quirante and I gave a joint affidavit with Toledo giving another of his own
account. All three of us were then escorted to Assistant Prosecutor Padillas office in Muntinlupa City
when we swore in our respective affidavits. I understand from Dr. Miller these affidavits have been
misplaced and he is unable to access copies from the Bureau of Corrections. I therefore agreed to
execute another deposition which differs from the joint affidavit sworn earlier in that this is more
thorough.[37]

Affidavit of Constantino Quirante

xxxx

On January 9th, I was urinating in front of building 5 when I was called to the office of Inspector Del
Prado. I changed into my issue uniform at the brigada and proceeded to Inspector Del Prados office
where I was arrested. I admitted to the hit on Miller and that I was acting on orders received from Boy
Bernardo and Giovan Bernardino of ICAD given to the BC 45 gang commander, Rudy Toledo. I was then
confined at the Medium Security Compounds disciplinary cell. Roberto Ceballos, who had been arrested
and interrogated by the ICA joined me in the bartolina. Giovan Bernardino later visited us in the
bartolina bringing hamburgers but no money. Upon his request I promised to keep quiet about the
involvement of inmate Boy Bernardo and himself. He assured me not to worry and that everything
would be taken care of.

Round about Jan. 29th, Roberto Ceballos and I were escorted to the office of Superintendent Agalo-os at
the Maximum Security Compound. We gave Superintendent Agalo-os a statement but did not sign it. I
believe the attorney of Ace Aprid was present so Ceballos and I were nervous of signing. We were then
taken to the ante room of the Directors office where inmate Miller was present with Inspector Lopez of
the Investigation Section and an interpreter. We were asked a number of questions in Tagalog by
Inspector Lopez and Dr. Miller asked why Bernardino and Bernardo wished him to be killed [illegible]
myself provided we completed a counter-affidavit naming Bernardo and Bernardino as the
masterminds. Asst. City Prosecutor Padilla said he would give us some time to consider and he arranged
a second preliminary hearing for March 11th 1999. At the second meeting we refused to give a counter-
affidavit as we had not yet decided and also we were worried.

Thereafter we were transferred to the Maximum Security Compound on the 30th of March.
Approximately one month later we were called to the office of Superintendent Agalo-os with inmate
Rudy Toledo. Ceballos and I prepared a joint affidavit for the Bureaus Investigation section and Rudy
Toledo completed a sep[a]rate affidavit. These handwritten affidavits were photocopied in
Super[intendent] Agalo-oss office by the Investigation Section Officer and at approximately 4:00 p.m. we
were escorted into Assistant City Prosecutor Padillas office w[h]ere the affidavits were sworn.

This further affidavit is made at the request of Dr. Miller, as I understand the prior affidavits sworn in
front of Attorney Padilla have disappeared and he has not been allowed access to the Bureau of
Correction[s] file copies with the Investigation Section. This affidavit is more comprehensive and better
than our first joint affidavit which was hurriedly completed in manuscript.[38]

Toledos affidavit not only dovetailed with the above-mentioned circumstances surrounding the
execution of the two sets of affidavits, but also positively identified Bernardo, Bernardino and Aprid as
the masterminds and detailed how the crime was planned and carried out on January 6, 1999. Thus:

xxxx

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

In February I was transferred to the Maximum Security Compound where I met Dr. Miller and informed
him that I was prepared to testify regarding the foregoing. Inmates Quirante and C[e]ballos had been
transferred earlier to the Maximum Security Compound after confessing their involvement. Later the
Bureau of Corrections carried out an investigation regarding the affairs of ICAD when Quirante,
C[e]ballos and myself where [sic] summoned to the Penal Superintendent Agalo-oss office. The Bureaus
Investigation Section then took an affidavit from me and a joint affidavit was completed by Quirante and
C[e]ballos. Thereafter we were escorted to the City Prosecutor[s] Office in Muntinlupa City where the
affidavits were sworn in before the Assistant Prosecutor Padilla. Copies were taken for the Investigation
Sections file. I was informed by Dr. Miller that the affidavits in the City Prosecutor[s] Office have
disappeared and he had been prevented to date from accessing the Bureau of Corrections file, hence
this further affidavit.[39]

Confronted with these evidence clearly showing prima facie that respondent Bernardino was among
those involved in the crime committed against petitioner, Prosecutor Macinas was correct in finding
probable cause, upon reinvestigation, to include respondent Bernardino along with Bernardo, Aprid,
Quirante, Ceballos and Toledo as those who will be formally charged with attempted murder and
recommending the filing of an amended information for this purpose. In modifying the said amended
information by dropping the name of respondent Bernardino, Secretary Perez gravely abused his
discretion, his conclusion that the new affidavits were mere afterthought being contrary to the facts on
record. Besides, the Secretarys act of absolving respondent Bernardino arbitrarily ignored the consistent
and categorical declarations of Quirante, Ceballos and Toledo that respondent Bernardino together with
Bernardo and Aprid instigated, planned and ordered the attack on petitioner, harping solely on their
belated execution of affidavits even if such delay have been satisfactorily explained.

We need not over-emphasize that in a preliminary investigation, the public prosecutor merely
determines whether there is probable cause or sufficient ground to engender a well-founded belief that
a crime has been committed, and that the respondent is probably guilty thereof and should be held for
trial.[40] In a preliminary investigation, a full and exhaustive presentation of the parties evidence is not
required, but only such as may engender a well-grounded belief that an offense has been committed
and that the accused is probably guilty thereof. Certainly, it does not involve the determination of
whether or not there is evidence beyond reasonable doubt pointing to the guilt of the person. Only
prima facie evidence is required; or that which is, on its face, good and sufficient to establish a given
fact, or the group or chain of facts constituting the party's claim or defense; and which, if not rebutted
or contradicted, will remain sufficient. Therefore, matters of evidence, such as who are the conspirators,
are more appropriately presented and heard during the trial.[41]

The term probable cause does not mean actual and positive cause nor does it import absolute certainty.
It is merely based on opinion and reasonable belief. Thus, a finding of probable cause does not require
an inquiry into whether there is sufficient evidence to procure a conviction. It is enough that it is
believed that the act or omission complained of constitutes the offense charged. Precisely, there is a
trial for the reception of evidence of the prosecution in support of the charge.[42]

While it is this Courts general policy not to interfere in the conduct of preliminary investigations, leaving
the investigating officers sufficient discretion to determine probable cause, courts are nevertheless
empowered to substitute their judgment for that of the Secretary of Justice when the same was
rendered without or in excess of authority.[43] Where the Secretary of Justice dismissed the complaint
against the respondent despite sufficient evidence to support a finding of probable cause, such clearly
constitutes grave error, thus warranting a reversal.[44] The CA thus clearly erred in sustaining the ruling
of Secretary Perez for the exclusion of respondent Bernardino from the charge of attempted murder
despite a prima facie case against him having been established by the evidence on record.

WHEREFORE, the petition for review on certiorari is GRANTED. The Decision dated June 14, 2004 and
Resolution dated September 14, 2004 of the Court of Appeals in CA-G.R. SP No. 72395 are hereby
REVERSED and SET ASIDE. The Secretary of Justice is hereby DIRECTED to REINSTATE or RE-FILE with
deliberate dispatch the Amended Information which included Giovan Bernardino as accused in Criminal
Case No. 99-452 of the National Capital Judicial Region, Regional Trial Court of Muntinlupa City, Branch
256.

No costs.

SO ORDERED.

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. JOSELITO DEL ROSARIO y PASCUAL, accused-
appellant.

DECISION

BELLOSILLO, J.:

ON AUTOMATIC REVIEW is the decision of the court a quo finding accused Joselito del Rosario y Pascual
guilty as co-principal in the crime of Robbery with Homicide and sentencing him to death and to pay the
heirs of the victim Virginia Bernas P550,000.00 as actual damages and P100,000.00 as moral and
exemplary damages.[1]

Joselito del Rosario y Pascual, Ernesto Marquez alias Jun, Virgilio Santos alias Boy Santos and John Doe
alias Dodong were charged with special complex crime of Robbery with Homicide for having robbed
Virginia Bernas, a 66-year old businesswoman, of P200,000.00 in cash and jewelry and on the occasion
thereof shot and killed her.[2]

While accused Joselito del Rosario pleaded not guilty,[3] Virgilio Boy Santos and John Doe alias Dodong
remained at large. Ernesto Jun Marquez was killed in a police encounter. Only Joselito del Rosario was
tried.

These facts were established by the prosecution from the eyewitness account of tricycle driver Paul
Vincent Alonzo: On 13 May 1996 between 6:00 and 6:30 in the evening, Alonzo stopped his tricycle by
the side of Nitas Drugstore, General Luna St., Cabanatuan City, when three women flagged him. Parked
at a distance of about one and a-half (1) meters in front of him was a tricycle driven by accused Joselito
del Rosario. At that point, Alonzo saw two (2) men and a woman grappling for possession of a bag. After
taking hold of the bag one of the two men armed with a gun started chasing a man who was trying to
help the woman, while the other snatcher kicked the woman sending her to the ground. Soon after, the
armed man returned and while the woman was still on the ground he shot her on the head. The bag
taken by the man was brought to the tricycle of accused del Rosario where someone inside received the
bag. The armed man then sat behind the driver while his companion entered the sidecar. When the
tricycle sped away Alonzo gave chase and was able to get the plate number of the tricycle. He also
recognized the driver, after which he went to the nearest police headquarters and reported the
incident.[4]

Accused Joselito del Rosario gave his own version of the incident: At around 5:30 in the afternoon he
was hired for P120.00[5] by a certain Boy Santos,[6] his co-accused. Their original agreement was that
he would drive him to cockpit at the Blas Edward Coliseum.[7] However, despite their earlier
arrangement boy Santos directed him to proceed to the market place to fetch Jun Marquez and Dodong
Bisaya. He (del Rosario) acceded.[8] Marquez and Bisaya boarded in front of the parking lot of Merced
Drugstore at the public market.[9] Subsequently, he was asked to proceed and stop at the corner of
Burgos and General Luna Sts. where Bisaya alighted on the pretest of buying a cigarette. The latter then
accosted the victim Virginia Bernas and grappled with her for the possession of her bag. Jun Marquez
alighted from the tricycle to help Dodong Bisaya.[10] Accused del Rosario tried to leave and seek help
but Boy Santos who stayed inside the tricycle prevented him from leaving and threatened in fact to
shoot him.

Meanwhile, Dodong Bisaya succeeded in taking the victims bag, but before boarding the tricycle Jun
Marquez mercilessly shot the victim on the head while she was lying prone on the ground. After the
shooting, Dodong Bisaya boarded the sidecar of the tricycle while Jun Marquez rode behind del Rosario
and ordered him to start the engine and drive towards Dicarma. While inside his tricycle, del Rosario
overheard his passengers saying that they would throw the bag at Zulueta St. where there were cogon
grasses.[11] Upon arriving at Dicarma, the three (3) men alighted and warned del Rosario not to inform
the police authorities about the incident otherwise he and his family would be harmed.[12] Del Rosario
then went home.[13] Because of the threat, however, he did not report the matter to the owner of the
tricycle nor to the barangay captain and the police.[14]

As earlier stated, the court a quo found accused Joselito del Rosario guilty as charged and sentenced him
to death. He now contends in this automatic review that the court a quo erred in: (1) Not finding the
presence of threat and irresistible force employed upon him by his co-accused Virgilio Boy Santos,
Ernesto Jun Marquez and Dodong Bisaya; (2) Not considering his defense that he was not part of the
conspiracy among co-accused "Boy" Santos, "Jun" Marquez and "Dodong" Bisaya to commit the crime of
Robbery with Homicide; (3) Not considering the violations on his constitutional rights as an accused;
and, (4) Not considering that there was no lawful warrantless arrest within the meaning of Sec. 5, Rule
113, of the Rules of Court.[15]

The conviction of del Rosario must be set aside. His claim for exemption from criminal liability under Art.
12, par. 5, Revised Penal Code as he acted under the compulsion of an irresistible force must be
sustained. He was then unarmed and unable to protect himself when he was prevented at gunpoint by
his co-accused from leaving the crime scene during the perpetration of the robbery and killing, and was
only forced to help them escape after the commission of the crime.[16]

But the trial court ruled that his fear was merely speculative, fanciful and remote, hence, could not be
considered uncontrollable; and that a gun pointed at him did not constitute irresistible force because it
fell short of the test required by law and jurisprudence.[17]

We disagree. A person who acts under the compulsion of an irresistible force, like one who acts under
the impulse of an uncontrollable fear of equal or greater injury, is exempt from criminal liability because
he does not act with freedom. Actus me invito factus non est meus actus. An act done by me against my
will is not my act. The force contemplated must be so formidable as to reduce the actor to a mere
instrument who acts not only without will but against his will. The duress, force, fear or intimidation
must be present, imminent and impending, and of such nature as to induce a well-grounded
apprehension of death or serious bodily harm if the act be done. A threat of future injury is not enough.
The compulsion must be of such a character as to leave no opportunity for the accused for escape or
self-defense in equal combat.[18]

As a rule, it is natural for people to be seized by fear when threatened with weapons, even those less
powerful that a gun, such as knives and clubs. People will normally, usually and probably do what an
armed man asks them to do, nothing more, nothing less. In the instant case, del Rosario was threatened
with a gun. He could not therefore be expected to flee nor risk his life to help a stranger. A person under
the same circumstances would be more concerned with his personal welfare and security rather than
the safety of a person whom he only saw for the first time that day.[19]

Corollary with defense of del Rosario, we hold that the trial court erred when it said that it was Boy
Santos who left the tricycle to chase the companion of the victim and then shot the victim on the head,
instantly killing her.[20] A careful and meticulous scrutiny of the transcripts and records of the case,
particularly the testimonies of the witness Alonzo and del Rosario himself, reveals that it was Jun
Marquez who ran after the victims helper and fired at the victim. Witness Alonzo testified on direct
examination -

Del Rosario maintains that Boy Santos never left the tricycle and that the latter pointed his gun at him
and threatened to shoot if he tried to escape. He also asserted that it was Jun Marquez who shot the
victim and sat behind him in the tricycle.

From the narration of witness Alonzo, these events stood out: that after the bag of the victim was
grabbed, her male helper was chased by a man holding a gun; that the gunwielder returned and shot
the victim and then sat behind the driver of the tricycle; and, the bag was given to a person who was
inside the tricycle. Taking the testimony of witness Alonzo in juxtaposition with the testimony of del
Rosario, it can be deduced that Jun Marquez was the person witness Alonzo was referring to when he
mentioned that a helper of the lady was chased by the other man and that this other man could not be
Boy Santos who stayed inside the tricycle and to whom the bag was handed over. This conclusion gives
credence to the claim of del Rosario that Boy Santos never left the tricycle, and to his allegation that Boy
Santos stayed inside the tricycle precisely to threaten him with violence and prevent him from fleeing;
that there could have been no other plausible reason for Boy Santos to stay in the tricycle if the accused
was indeed a conspirator; that Boy Santos could have just left the tricycle and helped in the commission
of the crime, particularly when he saw the victim grappling with Dodong Bisaya and resisting the
attempts to grab her bag; and, that Boy Santos opted to remain inside the tricycle to fulfill his
preordained role of threatening del Rosario and insuring that he would not escape and leave them
behind.[27]

Even if the tricycle of del Rosario was only parked one meter and a half (1) in front of the tricycle of
witness Alonzo, the latter still could not have totally seen and was not privy to events that were
transpiring inside the vehicle, i.e., the pointing of the gun by Boy Santos at del Rosario simultaneously
with the robbing and shooting of the victim. From the exhibits submitted by the prosecution panel the
back of the sidecar of del Rosario tricycle was not transparent.[28]

There is no doubt that the fear entertained by del Rosario because of the gun directly pointed at him
was real and imminent. Such fear rendered him immobile and subject to the will of Boy Santos, making
him for the moment of automaton without a will of his own. In other words, in effect, he could not be
any more than a mere instrument acting involuntarily an against his will. He is therefore exempt from
criminal liability since by reason of fear of bodily harm he was compelled against his will to transport his
co-accused away from the crime scene.

On the issue of conspiracy, the trial court anchored del Rosarios conviction on his participation in the
orchestrated acts of Boy Santos, Jun Marquez and Dodong Bisaya. According to the trial court, del
Rosario facilitated the escape of the other malefactors from the crime scene and conspiracy between
accused and his passengers was evident because while the grappling of the bag, the chasing of the
helper of the victim and the shooting that led to the death of Virginia Bernas were happening, accused
Joselito del Rosario was riding on his tricycle and the engine of the motor was running;[29] that the
accused did not deny that the tricycle driven by him and under his control was hired and used by his co-
accused in the commission of the crime; neither did he deny his failure to report to the authorities the
incident of robbery, killing and fleeing away from the scene of the crime.[30]

We disagree with the trial court. A conspiracy in the statutory language exists when two or more
persons come to an agreement concerning the commission of a felony and decide to commit it. The
objective of the conspirators is to perform an act or omission punishable by law. That must be their
intent. There is need for concurrence of wills or unity of action and purpose or for common and joint
purpose and design. Its manifestation could be shown by united and concerted action.[31]

Admittedly, direct proof is not essential to establish conspiracy. Since by its nature conspiracy is planned
in utmost secrecy, it can rarely be proved by direct evidence. Consequently, the presence of the
concurrence of minds which is involved in conspiracy may be inferred from proof of facts and
circumstances which, taken together, apparently indicate that they are merely parts of some complete
whole. If it is proved that two or more persons aimed by their acts towards the accomplishment of the
same unlawful object, each doing a part so that their combined acts, though apparently independent,
were in fact connected and cooperative, indicating a closeness of personal association and a
concurrence of sentiment, a conspiracy may be inferred though no actual meeting among them to
concert means is proved. That would be termed an implied conspiracy.[32] Nevertheless, mere
knowledge, acquiescence or approval of the act, without the cooperation or agreement to cooperate, is
not enough to constitute one a party to a conspiracy, but that there must be intentional participation in
the transaction with a view to the furtherance of the common design and purpose. Conspiracy must be
established, not by conjectures, but by positive and conclusive evidence. In fact, the same degree of
proof necessary to establish the crime is required to support a finding of the presence of a criminal
conspiracy, which is, proof beyond reasonable doubt.[33]

In the instant case, while del Rosario admits that he was at the locus criminis as he was the driver of the
getaway vehicle, he nonetheless rebuts the imputation of guilt against him by asserting that he had no
inkling of the malevolent design of his co-accused to rob and kill since he was not given any briefing
thereof. He was merely hired by Boy Santos to drive to an agreed destination and he was prevented at
gunpoint from leaving the scene of the crime since he was ordered to help them escape.

In this case, the trial court stated that "there is no evidence that the accused came to an agreement
concerning the commission of the felony and decided to commit the same."[34] Therefore, in order to
convict the accused, the presence of an implied conspiracy is required to be proved beyond reasonable
doubt. However, the fact that del Rosario was with the other accused when the crime was committed is
insufficient proof to show cabal. Mere companionship does not establish conspiracy.[35] The only
incriminating evidence against del Rosario is that he was at the scene of the crime but he has amply
explained the reason for his presence and the same has not been successfully refuted by the
prosecution. As stated earlier, he feared for his safety and security because of the threat made by his co-
accused that he would, be killed should he shout for help. No complicity can be deduced where there is
absolutely no showing that the accused directly participated in the overt act of robbing and shooting
although he was with the persons who robbed and killed the victim.[36]

That del Rosario did not disclose what he knew about the incident to the authorities, to his employer or
to the barangay captain does not affect his credibility. The natural hesitance of most people to get
involved in a criminal case is of judicial notice.[37] It must be recalled that del Rosario was merely a
tricycle driver with a family to look after. Given his quite limited means, del Rosario understandably did
not want to get involved in the case so he chose to keep his silence. Besides, he was threatened with
physical harm should he squeal.

Del Rosario further contends that there was violation of his right to remain silent, right to have
competent and independent counsel preferably of his own choice, and right to be informed of these
rights as enshrined and guaranteed in the Bill of Rights.[38] As testified to by SP04 Geronimo de Leon,
the prosecution witness who was the team leader of the policemen who investigated the 13 May
incident, during his cross-examination -

Upon finding the name of the owner of the tricycle, they proceeded to Bakod Bayan in the house of the
barangay captain where the owner of the tricycle was summoned and who in turn revealed the driver's
name and was invited for interview. The driver was accused Joselito del Rosario who volunteered to
name his passengers on May 13, 1996. On the way to the police station, accused informed them of the
bag and lunch kit's location and the place where the hold-uppers may be found and they reported these
findings to their officers, Capt. Biag and Capt. Cruz. After lunch, they proceeded to Brgy. Dicarma
composed of 15 armed men where a shoot-out transpired that lasted from 1:00 to 4:00 o'clock in the
afternoon. After a brief encounter, they went inside the house where they found Marquez dead holding
a magazine and a gun. While all of these were happening, accused del Rosario was at the back of the
school, after which they went back to the police station. The investigator took the statement of the
accused on May 14,1996, and was only subscribed on May 22,1996. All the while, he was detained in the
police station as ordered by the Fiscal. His statements were only signed on May 16, 1996. He also
executed a waiver of his detention. His Sinumpaang Salaysay was done with the assistance of Ex-Judge
Talavera.[39]

A further perusal of the transcript reveals that during the encounter at Brgy. Dicarma, del Rosario was
handcuffed by the police because allegedly they had already gathered enough evidence against him and
they were afraid that he might attempt to escape.[40]

Custodial investigation is the stage where the police investigation is no longer a general inquiry into an
unsolved crime but has begun to focus on a particular suspect taken into custody by the police who
carry out a process of interrogation that lends itself to elicit incriminating statements. It is well-settled
that it encompasses any question initiated by law enforcers after a person has been taken into custody
or otherwise deprived of his freedom of action in any significant way.[41] This concept of custodial
investigation has been broadened by RA 7438[42] to include "the Practice of issuing an 'invitation' to a
person who is investigated in connection with an offense he is suspected to have committed." Section 2
of the same Act further provides that -

x x x x Any public officer or employee, or anyone acting under his order or in his place, who arrests,
detains or investigates any person for the commission of an offense shall inform the latter, in a language
known and understood by him of his right to remain silent and to have competent and independent
counsel, preferably of his own choice, who shall at all times be allowed to confer privately with the
person arrested, detained or under custodial investigation. If such person cannot afford the services of
his own counsel, he must be provided with a competent and independent counsel by the investigating
officer.

From the foregoing, it is clear that del Rosario was deprived of his rights during custodial investigation.
From the time he was "invited" for questioning at the house of the barangay captain, he was already
under effective custodial investigation, but he was not apprised nor made aware thereof by the
investigating officers. The police already knew the name of the tricycle driver and the latter was already
a suspect in the robbing and senseless slaying of Virginia Bernas. Since the prosecution failed to
establish that del Rosario had waived his right to remain silent, his verbal admissions on his participation
in the crime even before his actual arrest were inadmissible against him, as the same transgressed the
safeguards provided by law and the Bill of Rights.

Del Rosario also avers that his arrest was unlawful since there was no warrant therefor. Section 5, Rule
113 of the Rules of Court provides:[43]

Sec. 5. Arrest without warrant; when lawful. - A peace officer or a private person may, without a
warrant, arrest a person: (a) When, in his presence, the person to be arrested has committed, is actually
committing, or is attempting to commit an offense; (b) When an offense has in fact been committed and
he has personal knowledge of facts indicating that the person to be arrested has committed it; and, (c)
When the person to be arrested is a prisoner who has escaped from penal establishment or place where
he is serving final judgment or temporarily confined while his case is pending, or has escaped while
being transferred from one confinement to another.

It must be recalled that del Rosario was arrested by SPO4 De Leon during the police raid at the place of
"Jun" Marquez at Brgy. Dicarma on 14 May 1996. In People vs Sucro[44] we held that when a police
officer sees the offense, although at a distance, or hears the disturbances created thereby, and proceeds
at once to the scene thereof, he may effect an arrest without a warrant on the basis of Sec. 5, par. (a),
Rule 113, since the offense is deemed committed in his presence or within his view. In essence, Sec. 5,
par. (a), Rule 113, requires that the accused be caught in flagrante delicto or caught immediately after
the consummation of the act. The arrest of del Rosario is obviously outside the purview of the
aforequoted rule since he was arrested on the day following the commission of the robbery with
homicide.

On the other hand, Sec. 5, par. (b), Rule 113, necessitates two (2) stringent requirements before a
warrantless arrest can be effected: (1) an offense has just been committed; and (2) the person making
the arrest has personal knowledge of facts indicating that the person to be arrested had committed it.
Hence, there must be a large measure of immediacy between the time the offense was committed and
the time of the arrest, and if there was an appreciable lapse of time between the arrest and the
commission of the crime, a warrant of arrest must be secured. Aside from the sense of immediacy, it is
also mandatory that the person making the arrest must have personal knowledge of certain facts
indicating that the person to be taken into custody has committed the crime.[45] Again, the arrest of del
Rosario does not comply with these requirements since, as earlier explained, the arrest came a day after
the consummation of the crime and not immediately thereafter. As such, the crime had not been "just
committed" at the time the accused was arrested. Likewise, the arresting officers had no personal
knowledge of facts indicating that the person to be arrested had committed the offense since they were
not present and were not actual eyewitnesses to the crime, and they became aware of his identity as
the driver of the getaway tricycle only during the custodial investigation.

However the conspicuous illegality of del Rosario's arrest cannot affect the jurisdiction of the court a
quo because even in instances not allowed by law, a warrantless arrest is not a jurisdictional defect and
any objection thereto is waived when the person arrested submits to arraignment without any
objection, as in this case.[46]

A transgression of the law has occurred. Unfortunately, an innocent person lost her life and property in
the process. Someone therefore must be held accountable, but it will not be accused Joselito del
Rosario; we must acquit him. Like victim Virginia Bernas, he too was a hapless victim who was forcibly
used by other persons with nefarious designs to perpetrate a dastardly act. Del Rosario's defense of
"irresistible force" has been substantiated by clear and convincing evidence. On the other hand,
conspiracy between him and his co-accused was not proved beyond a whimper of a doubt by the
prosecution, thus clearing del Rosario of any complicity in the crime charged.

WHEREFORE, the decision of the Regional Trial Court of Cabanatuan City convicting accused JOSELITO
DEL ROSARIO Y PASCUAL of Robbery with Homicide and sentencing him to death, is REVERSED and SET
ASIDE, and the accused is ACQUITTED of the crime charged. His immediate RELEASE from confinement is
ordered unless held for some other lawful cause. In this regard, the Director of Prisons is directed to
report to the Court his compliance herewith within five (5) days from receipt hereof.
SO ORDERED.

A.M. No. RTJ-93-983 August 7, 1995

GUILLERMA DE LOS SANTOS-REYES, complainant,

vs.

JUDGE CAMILO O. MONTESA, JR., Pairing Judge, Branch 18, Regional Trial Court, Malolos, Bulacan,
respondent.

PER CURIAM:

In her complaint filed on 23 March 1993, Guillerma de los Santos-Reyes charges the respondent judge
with gross ignorance of law and evident dishonesty in the performance of his work in that he granted
bail to the accused in Criminal Cases Nos. 487-M-91, 488-M-91, and 488-M-91 without the required
petition for bail and without conducting any hearing to accord the prosecution an opportunity to
establish that the evidence of guilt of the accused was strong.

In compliance with the resolution of 24 May 1993, the respondent judge filed his comment wherein he
disclosed that the issue raised was the subject of G.R. Nos. 108478-791 pending before the Second
Division of this Court.

On 22 September 1993, this Court, upon the recommendation of the Office of the Court Administrator
(OCA), dismissed this case, "the issues raised . . . being sub-judice but without prejudice to its revival
should the Court in G.R. Nos. 108478-79 find the orders to have been issued with grave abuse of
discretion."

In the decision promulgated on 21 February 1994,2 this Court dismissed G.R. Nos. 108478-79. The
complainant then filed on 23 November 1994 a motion to revive this complaint.

On 23 February 1995, the respondent judge filed an Additional Comment and Observation to stress that
what he did was to quash the warrant of arrest, determine probable cause on the basis of the record
and documents available, order the arrest of the accused, and grant bail to those against whom the
evidence of guilt was weak.

Issues having been joined and the revival of this complaint being in order, this Court required the parties
to manifest whether they agree to submit this case for decision on the basis of the pleadings they have
submitted. In their separate manifestations, the parties responded in the affirmative.

The antecedent facts which gave rise to the instant complaint (as well as to G.R. Nos. 108478-79) are
summarized in the decision in G.R. Nos. 108478-79 as follows:

On November 4, 1990, Patrolman Celso Reyes, Bgy. Captain Pedro Panganiban and Armando Vitug were
ambushed along Ipo-road, Kay-Pian, San Juan del Monte, Bulacan, resulting in the untimely death of
Reyes and Panganiban. The National Bureau of Investigation conducted an inquisition of the incident
and after which charged petitioners Estelita Hipolito and Alfredo Bolsico, together with Romeo
Adviento, Romeo Permejo, Rolando Gozum and four (4) John Does with the crimes of murder and
frustrated murder before the Municipal Trial Court of San Jose del Monte, then presided over by Judge
Virginia Pagarogon.

Judge Pagarogon conducted a preliminary investigation of the witnesses and on November 14, 1990
issued an order admitting the complaint and ordering the detention of all the accused after finding that
the crimes charged have been committed and there is reasonable ground to believe that the accused
are probably guilty thereof. No bail was recommended.

Judge Pagarogon then forwarded the records of the cases to the Provincial Prosecutor's Office of
Bulacan for appropriate action. The Investigating Prosecutor, without conducting a thorough
investigation of the cases, concluded that there was no probable cause and ordered motu proprio the
release of the accused from custody. So, the widow of Patrolman Reyes petitioned the Department of
Justice to disqualify the Provincial Prosecutor's Office from conducting the preliminary investigation and
prosecution of the cases.

In due course, the DOJ acted favorably on the petition and designated State Prosecutor Santiago
Turingan to take over and handle the cases. The State Prosecutor found probable cause for murder and
frustrated murder against all the accused and consequently, they were formally charged with said
crimes on March 13, 1991, before the Regional Trial Court of Malolos, Bulacan, docketed as Criminal
Cases No. 487-M-91, 488-M-91 and 489-M-91. No bail was recommended and the corresponding
warrants of arrest were issued.

The accused were quick to learn of the filing of the informations. On the same day (March 13, 1991),
they filed a "Manifestation and Motion to Defer the Issuance of Warrants of Arrest," praying for the
suspension of court proceedings on the ground that they are filing a petition for review of the resolution
of the State Prosecutor.

On March 21, 1991, the accused, who were not yet arrested or placed under the jurisdiction of the trial
court (after their precipitate release earlier), filed a "Petition to Grant Bail" in C.C. Nos. 487-M-91 and
488-M-91 and a "Petition to Reduce Bail in C.C. No. 489-M-91.

On March 25, 1991, the trial court issued an order denying the petitions since the accused had not yet
surrendered and/or apprehended and, therefore, the court has not acquired jurisdiction over their
persons.

On the same day (March 25, 1991), the accused filed another petition entitled "Reinstatement of the
Petition to Grant Bail in the above entitled cases and Motion to Reduce Bail Bond and Motion to Set
Petition for Hearing with Manifestation to Surrender the Accused on the Hearing of this Petition."

On April 4, 1991, the trial court, apparently with a change of heart, issued an order consolidating the
petitions for bail, set them for hearing on April 6, 1991, and directed the DOJ and/or the Office of the
Provincial Prosecutor to forward to it the records of the preliminary investigation of the cases within ten
(10) days from notice.

On April 15, 1991, petitioners filed an urgent motion to quash the warrants of arrest alleging want of
probable cause.
On April 22, 1991, the accused withdrew their motion for reinstatement of their petition for bail bond
and opted to pursue their motion to quash the warrants of arrest.

On May 2, 1991, the trial court quashed the warrants of arrest and set the hearing on May 15, 1991 for
the purpose of determining the existence of probable cause.

On May 17, 1991, after examining the records of the cases as forwarded to him by the prosecution, the
trial court found the existence of probable cause but instead of issuing the corresponding warrants of
arrest, for the purpose of acquiring jurisdiction over the persons of the accused upon their apprehension
or voluntary surrender, it ex mero motu granted bail to them despite the absence of (because it was
previously withdrawn) a petition for bail and, worse, the lack of a hearing wherein the prosecution could
have been accorded the right to present evidence showing that the evidence of guilt is strong.

On August 23, 1991, the prosecution filed an omnibus motion praying for the cancellation of the bail
bonds as well as the issuance of warrants of arrest on the fundamental ground that the trial court could
not legally grant bail in a capital offense without the prosecution being accorded the right to show that
the evidence of guilt is strong.

On October 28, 1991, the trial court denied the prosecution's motion on the principal ground that its
questioned orders had become final and executory. On December 2, 1991, the motion for
reconsideration was likewise denied.

On March 3, 1992, the prosecution filed a petition for certiorari, prohibition and preliminary injunction
with prayer for a temporary restraining order before respondent Court of Appeals, CA-G.R. S.P. No.
27430, assailing the following orders of the trial court: the May 17, 1991 order which granted bail to the
accused; the October 28, 1991 order which denied the prosecution's omnibus motion praying for the
issuance of warrants of arrest's as well as the cancellation of what it perceived to be irregularly posted
bail bonds; and the December 2, 1991 order which denied the prosecution's motion for reconsideration.
Upon the filing of said petition, respondent court issued the temporary restraining order.

On the other hand, petitioners filed a petition for certiorari, mandamus and prohibition before the same
court, CA-G.R. S.P. No. 27472, seeking: (a) to annul the orders of the trial court resetting the hearings on
different dates for being dilatory and violative of their constitutional right to a speedy trial; (b) to
command the trial court to dismiss with prejudice all the criminal cases; and (c) to perpetually prohibit
the prosecution of the criminal cases.

On July 31, 1992, respondent [Court of Appeals] ruled in favor of the prosecution. The dispositive
portion of its consolidated decision reads:

WHEREFORE, the instant petition (SP No. 27430) is hereby granted and the questioned orders of
respondent Court dated May 17, 1991, October 28, 1991, and December 2, 1991 are annulled and set
aside. Accordingly, the accused herein (private respondents) are ordered arrested/committed pending
the trial of their cases, without prejudice on their part to file in the proper court a petition for bail after
the arrest, detention or deprivation of their liberty, wherein the prosecution is accorded the right to
present evidence to prove that evidence of guilt is strong. SP No. 27472, on the other hand, is hereby
DISMISSED for lack of merit, considering that the delays incurred herein were due to unavoidable
circumstances and were therefore reasonable in nature.
No costs in both instances.

SO ORDERED.

Their motion for reconsideration having been denied, petitioners Hipolito, et al. filed with this Court a
petition for review, docketed as G.R.

Nos. 108478-79, which, as earlier stated, was dismissed on 21 February 1994.

Respondent judge asserts that he is not administratively liable for what he did because he was merely
guided by the doctrine in Lim vs. Felix,3 to the effect that the determination of probable cause for the
issuance of a warrant of arrest should be personally determined by the judge. Since in these cases the
issuance of the warrants of arrest was based solely on the certification of the state prosecutor, he
granted the motion to quash the warrants of arrest and, considering that on the date of the hearing to
determine probable cause the witnesses for the prosecution did not appear and the private prosecutor
submitted the issue on the basis of the proceedings had at the preliminary investigation and the
affidavits of witnesses, he formally resolved it on such basis. He further alleges that since he found the
evidence purely circumstantial, except as against Romeo Permejo who was positively identified as the
gunman, he believed that the evidence of guilt as against the others was not strong and, accordingly,
admitted them to bail in the amount of P80,000.00 each.

The explanation of the respondent judge is wholly unacceptable for, contrary to his belief that he has
shown perfect knowledge of the rules on the issuance of warrants of arrest and grant of bail, he has
demonstrated either gross ignorance of the constitutional and statutory principles and settled
jurisprudence thereon or gross incompetence which no claim of good faith can exculpate or even
mitigate.

From the above recitals of the factual and procedural antecedents of the criminal cases before the trial
court, it is obvious that the accused filed their petitions to grant bail and to reduce bail, motion to
reinstate petition to grant bail and urgent motion to quash warrants of arrests before the court acquired
jurisdiction over their persons either through the effective service and enforcement of the warrants of
arrest or their voluntary surrender, i.e., before they were placed in the custody of the law or otherwise
deprived of their liberty. Such being so, the trial court, initially, denied correctly the petition for grant of
bail but subsequently disregarded law and jurisprudence when it favorably acted on the motion to
reinstate the petition for grant of bail and set the motion for hearing on 6 April 1991, directing, for that
purpose the Department of Justice and the Office of the Provincial Prosecutor to forward to it the
records of the preliminary investigation.

In this jurisdiction it is settled that a person applying for bail should be in the custody of the law or
otherwise deprived of his liberty.4 While it may be true that the disregard of this precept was not
consummated, it was not because the respondent judge corrected himself, but because the accused
withdrew their petition for the grant of bail and opted to pursue their urgent motion to quash the
warrants of arrest grounded on want of probable cause. Instead of retracing his steps back to the proper
judicial path, the respondent judge, still forgetting that the accused remained scot-free, not only
quashed the warrants of arrest, but, thereafter motu proprio converted, in effect, the "hearing" for the
determination of probable cause for the issuance of the warrant of arrest, which he set on 15 May 1991,
to a hearing on the matter of admission to bail, as his order of 17 May 1991 indisputably shows. In so
doing, the respondent judge had either utterly confused the proceeding to determine probable cause
for the issuance of a warrant of arrest from the proceeding on a petition for admission to bail, order
deliberately ignored the basic requisites for the grant of bail.

The determination of probable cause in the issuance of a warrant of arrest is mandated by Section 2,
Article III of the Constitution.5 Probable cause for the issuance of a warrant of arrest means such facts
and circumstances which would lead a reasonably discreet and prudent man to believe that an offense
has been committed by the person sought to be arrested.6 A hearing is not necessary therefor. In
satisfying himself of the existence of probable cause for the issuance of a warrant of arrest, the judge,
following the established doctrine and procedure, shall either (a) personally evaluate the report and the
supporting documents submitted by the prosecutor regarding the existence of probable cause and, on
the basis thereof, issue a warrant of arrest, or (b) if on the face of the information he finds no probable
cause, he may disregard the prosecutor's certification and require the submission of the supporting
affidavits of witnesses to aid him in arriving at a conclusion as to the existence of probable cause.7

This procedure is dictated by sound public policy; otherwise judges would be unduly laden with the
preliminary examination and investigation of criminal complaints instead of concentrating on hearing
and deciding cases filed before their courts.8 At this stage of a criminal proceeding, the judge is not
tasked to review in detail the evidence submitted during the preliminary investigation; it is sufficient
that he personally evaluates the report and supporting documents submitted by the prosecution in
determining probable cause.9

This judicial function does not carry with it a motu proprio review of the recommendation of the
prosecutor in a capital offense that no bail shall be granted. Such a recommendation is the exclusive
prerogative of the prosecutor in the exercise of his quasi-judicial function during the preliminary
investigation, which is executive in nature.10 In such cases, once the court determines that probable
cause exists for the issuance of a warrant of arrest, the warrant of arrest shall forthwith be issued and it
is only after the accused is taken into the custody of the law and deprived of his liberty that, upon
proper application for bail, the court on the basis of the evidence adduced by the prosecution at the
hearing called for the purpose may, upon determination that such evidence is not strong, admit the
accused to bail.11

Since the accused unilaterally withdrew their petition for bail, there was then nothing to be heard or
acted upon in respect thereof. Even if they did not withdraw their petition, they have no right to invoke
the processes of the court since they have not been placed in the custody of the law or otherwise
deprived of their liberty by reason or as a consequence of the filing of the information. For the same
reason, the court had no authority to act on the petition.12

Even if it be conceded for the sake of argument that the application for bail was regularly filed, the
respondent judge wantonly ignored the due process requirement of hearing to afford the prosecution
reasonable opportunity to prove that evidence of guilt of the applicants is strong.13 To grant an
application for bail and fix the amount thereof without such hearing duly called for the purpose of
determining whether the evidence of guilt is strong constitutes ignorance or incompetence whose
grossness cannot be excused by a claim of good faith or excusable negligence14 or constitutes
inexcusable conduct which reflects either gross ignorance of the law or cavalier disregard of its
requirements.15
At the very least, the respondent judge exhibited gross incompetence. Gross ignorance of law and
incompetence are characteristics and quirks impermissible in a judge. A judge is called upon to exhibit
more than just a cursory acquaintance with statutes and procedural rules; it is imperative that he be
conversant with basic legal principles.16 He should he studious of the principles of the law, 17 and he
must be faithful to the law and must maintain professional competence.18

The respondent judge does not have an enviable record as a living personification of justice and the rule
of law.19

In Administrative Matter No. RTJ-91-753,20 for abuse of discretion, this Court censured the respondent
judge for issuing an order granting bail to an accused without affording the prosecution the opportunity
to present evidence to show that the evidence of guilt was strong.

In Administrative Matter No. RTJ-91-742,21 for gross ignorance of law and serious misconduct, the
respondent judge was admonished to be more circumspect in the resolution of the cases before him
and given a last warning that any form of infraction cases hereafter would be dealt with severely.

The respondent judge has indisputably failed to comply with the strict and exacting demands of the
public-trust character of his office.

WHEREFORE, for gross ignorance of law or incompetence and conduct prejudicial to the best interest of
the service, respondent Judge CAMILO O. MONTESA, JR., Presiding Judge of Branch 18 of the Regional
Trial Court of Bulacan, is hereby ordered DISMISSED from the service with forfeiture of all benefits and
with prejudice to re-employment in any branch or service of the government, including government-
owned or controlled corporations. His dismissal shall take effect immediately upon his receipt of a copy
of this decision which must be personally served by the Office of the Court Administrator.

Let a copy of this decision be attached to the records of the respondent with this Court.

SO ORDERED.

G.R. Nos. 94054-57 February 19, 1991

VICENTE LIM, SR. and MAYOR SUSANA LIM, petitioners,

vs.

HON. NEMESIO S. FELIX and HON. ANTONIO ALFANE, respondents.

G.R. Nos. 94266-69 February 19, 1991

JOLLY T. FERNANDEZ, FLORENCIO T. FERNANDEZ, JR., NONILON A. BAGALIHOG, MAYOR NESTOR C. LIM
and MAYOR ANTONIO KHO, petitioners,

vs.

HON. NEMESIO S. FELIX and PROSECUTOR ANTONIO C. ALFANE, respondents.

Francisco R. Llamas for petitioners in G.R. Nos. 94054-57.

Jolly T. Fernandez, Elenito Bagalihog, Orlando M. Danao and Hechanova, Ballicid & Associates for
petitioners in G.R. Nos. 94266-69.

GUTIERREZ, JR., J.:

May a Judge without ascertaining the facts through his own personal determination and relying solely
on the certification or recommendation of a prosecutor that a probable cause exists issue a warrant of
arrest?

On March 17, 1989, at about 7:30 o'clock in the morning, at the vicinity of the airport road of the
Masbate Domestic Airport, located at the municipality of Masbate province of Masbate, Congressman
Moises Espinosa, Sr. and his security escorts, namely Provincial Guards Antonio Cortes, Gaspar Amaro,
and Artemio Fuentes were attacked and killed by a lone assassin. Dante Siblante another security escort
of Congressman Espinosa, Sr. survived the assassination plot, although, he himself suffered a gunshot
wound.

An investigation of the incident then followed.

Thereafter, and for the purpose of preliminary investigation, the designated investigator, Harry O.
Tantiado, TSg, of the PC Criminal Investigation Service at Camp Bagong Ibalon Legazpi City filed an
amended complaint with the Municipal Trial Court of Masbate accusing, among others, Vicente Lim, Sr.,
Mayor Susana Lim of Masbate (petitioners in G.R. Nos. 9405457), Jolly T. Fernandez, Florencio T.
Fernandez, Jr., Nonilon A. Bagalihog, Mayor Nestor C. Lim and Mayor Antonio Kho (petitioners in G.R.
Nos. 94266-69) of the crime of multiple murder and frustrated murder in connection with the airport
incident. The case was docketed as Criminal Case No. 9211.

After conducting the preliminary investigation, the court issued an order dated July 31, 1989 stating
therein that:

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

xxx xxx xxx

In the same Order, the court ordered the arrest of the petitioners and recommended the amount of
P200,000.00 as bail for the provisional liberty of each of the accused.

Petitioners Jolly Fernandez and Nonilon Bagalihog filed a motion for the reduction of bail which was
granted by the court and they were allowed to post bail in the amount of P150,000.00 each. Except for
Jimmy Cabarles, all the rest of the accused posted bail at P200,000.00 each.
On August 29, 1989, the entire records of the case consisting of two hundred sixty one (261) pages were
transmitted to the Provincial Prosecutor of Masbate. Respondent Acting Fiscal Antonio C. Alfane was
designated to review the case.

On September 22, 1989, Fiscal Alfane issued a Resolution which affirmed the finding of a prima facie
case against the petitioners but differed in the designation of the crime in that the ruled that ". . . all of
the accused should not only be charged with Multiple Murder With Frustrated Murder" but for a case of
MURDER for each of the killing of the four victims and a physical injuries case for inflicting gunshot
wound on the buttocks of Dante Siblante." (Annex "H", Comment of Fiscal Alfane, p. 186, Rollo, G.R.
Nos. 94054-57) A motion to reconsider the Resolution filed by petitioners Vicente Lim, Sr. and Mayor
Susana Lim was denied.

On October 30, 1989, Fiscal Alfane filed with the Regional Trial Court of Masbate, four (4) separate
informations of murder against the twelve (12) accused with a recommendation of no bail.

On November 21, 1989, petitioners Vicente Lim, Sr. and Susana Lim filed with us a verified petition for
change of venue. (Case No. A.M. No. 89-11-1270-MTC, formerly, G.R. Nos. 90587-90)

On December 14, 1989, we issued an en banc Resolution authorizing the change of venue from the
Regional Trial Court of Masbate to the Regional Trial Court of Makati to avoid a miscarriage of justice, to
wit:

Acting on the petition for change of venue of the trial of Criminal Cases Nos. 5811, 5812, 5813, and 5814
from the Regional Trial Court, Masbate, Masbate to any of the Regional Trial Courts at Quezon City or
Makati, the Court Resolved to (a) GRANT the aforesaid petition for transfer of venue in order to avoid
miscarriage of justice (Article VIII, Section 5(4) of the Philippine Constitution); (b) DIRECT the Clerk of
Court, Regional Trial Court, Masbate, Masbate to transmit the records of the aforesaid cases to the
Executive Judge, Regional Trial Court, Makati, for raffling among the other branches of the court; and (c)
ORDER the Regional Trial Court of Masbate, Masbate to desist from further taking cognizance of the said
cases until such time that the petition is finally resolved.

The cases were raffled to Branch 56 presided by respondent Judge Nemesio S. Felix.

Petitioners Vicente Lim, Sr. and Susana Lim filed with the respondent court several motions and
manifestations which in substance prayed for the following:

1. An order be issued requiring the transmittal of the initial records of the preliminary inquiry or
investigation conducted by the Municipal Judge Barsaga of Masbate for the best enlightenment of this
Honorable Court in its personal determination of the existence of a probable cause or prima facie
evidence as well as its determination of the existence of guilt, pursuant to the mandatory mandate of
the constitution that no warrant shall issue unless the issuing magistrate shall have himself been
personally convinced of such probable cause.

2. Movants be given ample opportunity to file their motion for preliminary investigation as a matter of
right; and

3. In the event that this court may later be convinced of the existence of a probable cause, to be allowed
to file a motion for reduction of bail or for admission of bail. (p. 17, Rollo, G.R. Nos. 94054-57)
In another manifestation, the Lims reiterated that the court conduct a hearing to determine if there
really exists a prima facie case against them in the light of documents which are recantations of some
witnesses in the preliminary investigation. The motions and manifestations were opposed by the
prosecution.

On July 5, 1990, the respondent court issued an order denying for lack of merit the motions and
manifestations and issued warrants of arrest against the accused including the petitioners herein. The
respondent Judge said:

In the instant cases, the preliminary investigation was conducted by the Municipal Trial Court of
Masbate, Masbate which found the existence of probable cause that the offense of multiple murder was
committed and that all the accused are probably guilty thereof, which was affirmed upon review by the
Provincial Prosecutor who properly filed with the Regional Trial Court four separate informations for
murder. Considering that both the two competent officers to whom such duty was entrusted by law
have declared the existence of probable cause, each information is complete in form and substance, and
there is no visible defect on its face, this Court finds it just and proper to rely on the prosecutor's
certification in each information which reads: (pp. 19-20, Rollo, G.R Nos. 94054-57; Emphasis supplied)

xxx xxx xxx

The petitioners then filed these consolidated petitions questioning the July 5, 1990 Order.

In a Resolution dated July 17, 1990 in G.R. Nos. 94054-57, we issued ". . . a TEMPORARY RESTRAINING
ORDER, effective immediately and continuing until further orders from this Court, ordering the
respondent judge or his duly authorized representatives or agents to CEASE and DESIST from enforcing
or implementing the warrant of arrest without bail issued against the petitioners in his Order dated July
5, 1990 in Criminal Cases Nos. 5811-14.

In another Resolution dated July 31, 1990 in G.R. Nos. 94266-69, we resolved:

xxx xxx xxx

. . . To ISSUE writs of (1) PRELIMINARY MANDATORY INJUNCTION, ordering and directing the respondent
judge to recall/set aside and/or annul the legal effects of the warrants of arrest without bail issued
against and served upon herein petitioners Jolly T. Fernandez, Florencio T. Fernandez, Jr. and Nonilon
Bagalihog and release them from confinement at PC-CIS Detention Center, Camp Crame, Quezon City;
and (2) TEMPORARY RESTRAINING ORDER, effective immediately and continuing until further orders
from this Court, ordering the respondent judge or his duly authorized representatives or agents, to
CEASE AND DESIST from enforcing or implementing the warrants of arrest without bail issued against
petitioners Mayors Nestor C. Lim and Antonio T. Kho.

The primary issue in these consolidated petitions centers on whether or not a judge may issue a warrant
of arrest without bail by simply relying on the prosecution's certification and recommendation that a
probable cause exists.

This is not a novel question. In the case of Placer v. Villanueva (126 SCRA 463 [1983]), we ruled that a
judge may rely upon the fiscal's certification of the existence of probable cause and, on the basis
thereof, issue a warrant of arrest. However, the certification does not bind the judge to come out with
the warrant of arrest. This decision interpreted the "search and seizure" provision of the 1973
Constitution which provides:

. . . no search warrant or warrant of arrest shall issue except upon probable cause to be determined by
the judge, or such other responsible officer as may be authorized by law, after examination under oath
or affirmation of the complainant and the witnesses he may produce . . .

We ruled:

. . . The issuance of a warrant is not a mere ministerial function; it calls for the exercise of judicial
discretion on the part of the issuing magistrate. This is clear from the following provisions of Section 6,
Rule 112 of the Rules of Court.

Warrant of arrest, when issued. — If the judge be satisfied from the preliminary examination conducted
by him or by the investigating officer that the offense complained of has been committed and that there
is reasonable ground to believe that the accused has committed it, he must issue a warrant or order for
his arrest.

Under this section, the judge must satisfy himself of the existence of probable cause before issuing a
warrant or order of arrest. If on the face of the information the judge finds no probable cause, he may
disregard the fiscal's certification and require the submission of the affidavits of witnesses to aid him in
arriving at a conclusion as to the existence of a probable cause. This has been the rule since U.S. v.
Ocampo (18 Phil. 1) and Amarga v. Abbas (98 Phil. 739). And this evidently is the reason for the issuance
by respondent of the questioned orders of April 13, 15, 16, 19, 1982 and July 13, 1982. Without the
affidavits of the prosecution witnesses and other evidence which, as a matter of long-standing practice
had been attached to the information filed in his sala, respondent found the informations inadequate
bases for the determination of probable cause. For as the ensuing events would show, after petitioners
had submitted the required affidavits, respondent wasted no time in issuing the warrants of arrest in the
case where he was satisfied that probable cause existed.

The case of Soliven v. Makasiar (167 SCRA 393 [19881) was decided after the effectivity of the 1987
Constitution. We stated:

The second issue, raised by petitioner Beltran, calls for an interpretation of the constitutional provision
on the issuance of warrants of arrest. The pertinent provision reads:

Art. III, Sec. 2. The right of the people to be secure in their persons, houses, papers and effects against
unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no
search warrant or warrant of arrest shall issue except upon probable cause to be determined personally
by the judge after examination under oath or affirmation of the complainant and the witnesses he may
produce, and particularly describing the place to be searched and the persons or things to be seized.

The addition of the word "personally" after the word "determined" and the deletion of the grant of
authority by the 1973 Constitution to issue warrants to "other respondent officers as may be authorized
by law", has apparently convinced petitioner Beltran that the Constitution now requires the judge to
personally examine the complainant and his witnesses in his determination of probable cause for the
issuance of arrest. This is not an accurate interpretation.
What the Constitution underscores is the exclusive and personal responsibility of the issuing judge to
satisfy himself of the existence of probable cause. In satisfying himself of the existence of probable
cause for the issuance of a warrant of arrest, the judge is not required to personally examine the
complainant and his witnesses. Following established doctrine and procedures, he shall: (1) personally
evaluate the report and the supporting documents submitted by the fiscal regarding the existence of
probable cause and, on the basis thereof, issue a warrant of arrest; or (2) if on the basis thereof he finds
no probable cause, he may disregard the fiscal's report and require the submission of supporting
affidavits of witnesses to aid him in arriving at a conclusion as to the existence of probable cause.

Sound policy dictates this procedure, otherwise judges would be unduly laden with the preliminary
examinations and investigation of criminal complaints instead of concentrating on hearing and deciding
cases filed before their courts.

The decision in People v. Honorable Enrique B. Inting, et al. (G.R. No. 88919, July 25, 1990), reiterated
the above interpretation of "personal" determination by the Judge:

We emphasize important features of the constitutional mandate that ". . . no search warrant or warrant
of arrest shall issue except upon probable cause to be determined personally by the judge . . ." (Article
III, Section 2, Constitution)

First, the determination of probable cause is a function of the Judge. It is not for the Provincial Fiscal or
Prosecutor nor for the Election Supervisor to ascertain. Only the Judge and the Judge alone makes this
determination.

Second, the preliminary inquiry made by a Prosecutor does not bind the Judge. It merely assists him to
make the determination of probable cause. The Judge does not have to follow what the Prosecutor
presents to him. By itself, the Prosecutor's certification of probable cause is ineffectual. It is the report,
the affidavits, the transcripts of stenographic notes (if any), and all other supporting documents behind
the Prosecutor's certification which are material in assisting the Judge to make his determination.

And third, Judges and Prosecutors alike should distinguish the preliminary inquiry which determines
probable cause for the issuance of a warrant of arrest from the preliminary investigation proper which
ascertains whether the offender should be held for trial or released. Even if the two inquiries are
conducted in the course of one and the same proceeding, there should be no confusion about the
objectives. The determination of probable cause for the warrant of arrest is made by the Judge. The
preliminary investigation proper –– whether or not there is reasonable ground to believe that the
accused is guilty of the offense charged and, therefore, whether or not he should be subjected to the
expense, rigors and embarrassment of trial –– is the function of the Prosecutor.

The Court made this clear in the case of Castillo v. Villaluz (171 SCRA 39 [19891):

Judges of Regional Trial Courts (formerly Courts of First Instance) no longer have authority to conduct
preliminary investigations. That authority, at one time reposed in them under Sections 13, 14 and 16,
Rule 112 of the Rules of Court of 1964, (See Sec. 4, Rule 108, Rules of Court of 1940; People v. Solon, 47
Phil. 443, cited in Moran, Comments on the Rules, 1980 ed., Vol. 4, pp. 115-116) was removed from
them by the 1985 Rules on Criminal Procedure, effective on January 1, 1985, (Promulgated on
November 11, 1984) which deleted all provisions granting that power to said Judges. We had occasion
to point tills out in Salta v. Court of Appeals, 143 SCRA 228, and to stress as well certain other basic
propositions, namely: (1) that the conduct of a preliminary investigation is "not a judicial function . . .
(but) part of the prosecution's job, a function of the executive," (2) that whenever "there are enough his
or prosecutors to conduct preliminary investigations, courts are counseled to leave this job which is
essentially executive to them," and the fact "that a certain power is granted does not necessary mean
that it should be indiscriminately exercised.

The 1988 Amendments to the 1985 Rules on Criminal Procedure, declared effective on October 1, 1988,
(The 1988 Amendments were published in the issue of Bulletin Today of October 29, 1988) did not
restore that authority to Judges of Regional Trial Courts; said amendments did not in fact deal at all with
the officers or courts having authority to conduct preliminary investigations.

This is not to say, however, that somewhere along the line RTC Judges also lost the power to make a
preliminary examination for the purpose of determining whether probable cause exists to justify the
issuance of a warrant of arrest (or search warrant). Such a power –– indeed, it is as much a duty as it is a
power –– has been and remains vested in every judge by the provisions in the Bill of Rights in the 1935,
the 1973 and the present [1987] Constitutions securing the people against unreasonable searches and
seizures, thereby placing it beyond the competence of mere Court Rule or Statute to revoke. The
distinction must, therefore, be made clear while an RTC Judge may no longer conduct preliminary
investigations to ascertain whether there is sufficient ground for the filing of a criminal complaint or
information, he retains the authority, when such a pleading is filed with his court, to determine whether
there is probable cause justifying the issuance of a warrant of arrest. It might be added that this
distinction accords, rather than conflicts, with the rationale of Salta because both law and rule, in
restricting to judges the authority to order arrest, recognize the function to be judicial in nature.

We reiterate that preliminary investigation should be distinguished as to whether it is an investigation

for the determination of a sufficient ground for the filing of the information or it is an investigation for
the determination of a probable cause for the issuance of a warrant of arrest. The first kind of
preliminary investigation is executive in nature. It is part of the prosecution's job. The second kind of
preliminary investigation which is more properly called preliminary examination is judicial in nature and
is lodged with the Judge. . . .

Finally in the recent case of People v. Delgado, et al. (G.R. Nos. 93419-32, September 18, 1990) there is a
statement that the judge may rely on the resolution of COMELEC to file the information by the same
token that it may rely on the certification made by the prosecutor who conducted the preliminary
investigation in the issuance of the warrant of arrest. We, however, also reiterated that ". . . the court
may require that the record of the preliminary investigation be submitted to it to satisfy itself that there
is probable cause which will warrant the issuance of a warrant of arrest." (Section 2, Article III,
Constitution). Reliance on the COMELEC resolution or the Prosecutor's certification presupposes that
the records of either the COMELEC or the Prosecutor have been submitted to the Judge and he relies on
the certification or resolution because the records of the investigation sustain the recommendation. The
warrant issues not on the strength of the certification standing alone but because of the records which
sustain it.

It is obvious from the present petition that notwithstanding the above decisions, some Judges are still
bound by the inertia of decisions and practice under the 1935 and 1973 Constitutions and are sadly
confused or hesitant. Prosecutors are also interested in a clear cut ruling. We will, therefore, restate the
rule in greater detail and hopefully clearer terms.
There is no problem with search warrants which are relatively fewer and far between and where there is
no duplication of work between the Judge and the Prosecutor. The problem lies with warrants of arrest
especially in metropolitan or highly urban areas. If a Judge has to personally question each complainant
and witness or go over the records of the Prosecutor's investigation page by page and word for word
before he acts on each of a big pile of applications for arrest warrants on his desk, he or she may have
no more time for his or her more important judicial functions.

At the same time, the Judge cannot ignore the clear words of the 1987 Constitution which requires ". . .
probable cause to be personally determined by the judge . . .", not by any other officer or person.

If a Judge relies solely on the certification of the Prosecutor as in this case where all the records of the
investigation are in Masbate, he or she has not personally determined probable cause. The
determination is made by the Provincial Prosecutor. The constitutional requirement has not been
satisfied. The Judge commits a grave abuse of discretion.

The records of the preliminary investigation conducted by the Municipal Court of Masbate and reviewed
by the respondent Fiscal were still in Masbate when the respondent Fiscal issued the warrants of arrest
against the petitioners. There was no basis for the respondent Judge to make his own personal
determination regarding the existence of a probable cause for the issuance of a warrant of arrest as
mandated by the Constitution. He could not possibly have known what transpired in Masbate as he had
nothing but a certification. Significantly, the respondent Judge denied the petitioners' motion for the
transmittal of the records on the ground that the mere certification and recommendation of the
respondent Fiscal that a probable cause exists is sufficient for him to issue a warrant of arrest.

We reiterate the ruling in Soliven v. Makasiar that the Judge does not have to personally examine the
complainant and his witnesses. The Prosecutor can perform the same functions as a commissioner for
the taking of the evidence. However, there should be a report and necessary documents supporting the
Fiscal's bare certification. All of these should be before the Judge.

The extent of the Judge's personal examination of the report and its annexes depends on the
circumstances of each case.1âwphi1 We cannot determine beforehand how cursory or exhaustive the
Judge's examination should be. The Judge has to exercise sound discretion for, after all, the personal
determination is vested in the Judge by the Constitution. It can be as brief or as detailed as the
circumstances of each case require. To be sure, the Judge must go beyond the Prosecutor's certification
and investigation report whenever necessary. He should call for the complainant and witnesses
themselves to answer the court's probing questions when the circumstances of the case so require.

It is worthy to note that petitioners Vicente Lim, Sr. and Susana Lim presented to the respondent Judge
documents of recantation of witnesses whose testimonies were used to establish a prima facie case
against them. Although, the general rule is that recantations are not given much weight in the
determination of a case and in the granting of a new trial (Tan Ang Bun v. Court of Appeals, et al. G.R.
No. L-47747, February 15, 1990, People v. Lao Wan Sing, 46 SCRA 298 [1972]) the respondent Judge
before issuing his own warrants of arrest should, at the very least, have gone over the records of the
preliminary examination conducted earlier in the light of the evidence now presented by the concerned
witnesses in view of the "political undertones" prevailing in the cases. Even the Solicitor General
recognized the significance of the recantations of some witnesses when he recommends a
reinvestigation of the cases, to wit:
It must be pointed out, however, that among the documents attached to this Petition are affidavits of
recantation subsequently executed by Jimmy Cabarles and Danilo Lozano and an affidavit executed by
one, Camilo Sanano, father of the complainant's witnesses, Renato and Romeo Sanano. It was precisely
on the strength of these earlier written statements of these witnesses that the Municipal Trial Court of
Masbate found the existence of a prima facie case against petitioners and accordingly recommended
the filing of a Criminal Information. Evidently, the same written statements were also the very basis of
the "Fiscal's Certification", since the attached affidavits of recantation were not yet then available. Since
the credibility of the prosecution witnesses is now assailed and put in issue and, since the petitioners
have not yet been arraigned, it would be to the broader interest of justice and fair play if a
reinvestigation of this case be had to secure the petitioners against hasty prosecution and to protect
them from an open and public accusation of crime, from the trouble, expense and anxiety of a public
trial, and also to protect the State from useless and expensive trials (Salonga v. Paño G.R. No. 59524,
February 18,1985). (Rollo of G.R. Nos. 94054-56, pp. 200-201)

We reiterate that in making the required personal determination, a Judge is not precluded from relying
on the evidence earlier gathered by responsible officers. The extent of the reliance depends on the
circumstances of each case and is subject to the Judge's sound discretion. However, the Judge abuses
that discretion when having no evidence before him, he issues a warrant of arrest.

Indubitably, the respondent Judge committed a grave error when he relied solely on the Prosecutor's
certification and issued the questioned Order dated July 5, 1990 without having before him any other
basis for his personal determination of the existence of a probable cause.

WHEREFORE, the instant petitions are hereby GRANTED. The questioned Order of respondent Judge
Nemesio S. Felix of Branch 56, Regional Trial Court of Makati dated July 5, 1990 is declared NULL and
VOID and SET ASIDE. The Temporary Restraining Orders and Preliminary Mandatory Injunction issued in
the instant Petitions are made PERMANENT.

SO ORDERED.