preliminary investigation.docx

7/28/2019 preliminary investigation.docx

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RODIS, SR.vs.

THE SANDIGANBAYAN, SECOND DIVISION, and PEOPLE OF THE PHILIPPINES

This is a petition for certiorari with prayer for a writ of preliminary injunction seeking to annul

the Resolution of the Sandiganbayan dated July 15, 1985 denying herein petitioner's Motion toQuash the Informations in Criminal Cases Nos. 10389, 10390, 10391, 10393, and 10394 pending

before said court and to enjoin the arraignment, pre-trial and trial herein.

Facts:

On May 22, 1985, petitioner Hermilo v. Rodis, Sr., former President of the Philippine

Underwriters Finance Corporation (PHILFINANCE) was charged before the Sandiganbayan of

the violation of Republic Act No. 3019, otherwise known as the Anti-Graft and Corruption

Practices Act.

On May 31, 1985, petitioner filed a motion to quash said informations as against him on theground of lack of preliminary investigation, with the alternative prayer that the "issue and/orenforcement of the warrant of arrests as against him be held in abeyance while he seeks a

reinvestigation by the Tanodbayan pursuant to his right of (sic) preliminary investigation.

In its opposition to said motion, the Prosecution cited as basis therefor Sec. 3, Rule 117 of the

1985 Rules on Criminal Procedure enumerating the grounds for a motion to quash. It argued

that since lack of preliminary investigation is not among those enumerated thereunder, the

motion to quash on this ground should be denied for lack of merit and instead, petitioner

should be ordered to file his Petition for Reinvestigation and/or Motion for Reconsideration in

accordance with Section 13 of the Revised Rules of Procedure of the Tanodbayan.

Petitioner filed a Reply to the Opposition manifesting that he would file a petition for re-

investigation with the Tanodbayan as suggested.

On July 15, 1985, while petitioner's petition for reinvestigation was pending action by the

Tanodbayan, the Sandiganbayan promulgated the assailed resolution denying petitioner's

motion to quash for lack of merit.

On August 1, 1985, the Court issued a Temporary Restraining Order enjoining the respondent

Sandiganbayan from proceeding with the arraignment, pre-trial and trial of Criminal Cases.

Petitioner contends that while it may be true that lack of preliminary investigation neither

affects the jurisdiction of the court nor impairs the validity of the information filed,

nonetheless such lack of preliminary investigation affects the regularity of the proceedings

which led to the filing of the information, such that in several cases, the Court had ordered

the quashal of the information on said ground; and that although lack of preliminaryinvestigation is not enumerated as one of the grounds for a motion to quash, the Sandiganbayan


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can nevertheless order the quashal of the informations pursuant to its inherent power to

amend and control its processes so as to make them conformable to law and justice.

Respondent People of the Philippines on the other hand avers that as petitioner does notdispute that a preliminary investigation was indeed conducted, what he is really protesting

against is the lost opportunity to participate therein due to the alleged failure of theTanodbayan to serve a subpoena upon him. It is, however, contended that this alleged failure

did not affect the regularity of the preliminary investigation as the Tanodbayan is justified

under Section 3, Rule 112 of the 1985 Rules of Criminal Procedure in proceeding with the

preliminary investigation after an attempt to subpoena petitioner at the latter's known

address proved unavailing, and in basing its resolution on the evidence presented by the

complainant.

Issue:

WON the lack of preliminary investigation is a ground for quashing the filed information.

Held:

No. The lack of preliminary investigation is not a ground for quashing an information.

The analysis of respondent People, thru the Solicitor General, as to the real nature of the

controversy at bar is correct. It is not disputed that a preliminary investigation was conducted

by the Tanodbayan prior to the filing of the informations. Petitioner, however, was not able to

participate therein.

Under Section 3, sub-section (d) of Rule 112 of the 1985 Rules on Criminal Procedure, "if therespondent cannot be subpoenaed, or if subpoenaed, does not submit counter-affidavits within

the ten (10) day period, the investigating officer shall base his resolution on the evidence

presented by the complainant." It is to be noted that this provision does not require as a

condition sine qua nonto the validity of the proceedings the presence of the accused for as

long as efforts to reach him were made, and an opportunity to controvert the evidence of thecomplainant is accorded him. The obvious purpose of the rule is to block attempts of

unscrupulous respondents to thwart the prosecution of offenses by hiding themselves or by

employing dilatory tactics.

Considering that petitioner has voluntarily appeared before the respondent Sandiganbayan inconnection with the criminal cases in question and has appeared in other preliminary

investigations of other PHILFINANCE charges, it is apparent that the non-service of the

subpoena upon him was not of his own doing or liking. To apply the full force and effect ofsection 3, sub-section (d) of Rule 112 of the 1985 Rules on Criminal Procedure would, to our

mind, greatly prejudice him.


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It is worthwhile repeating that the avowed purposes of a preliminary investigation are "to

secure the innocent against hasty, malicious and oppressive prosecution, and to protect him

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 and while the "absence of

preliminary investigations does not affect the court's jurisdiction over the case (n)or do they

impair the validity of the information or otherwise render it defective, but, if there were nopreliminary investigations and the defendants, before entering their plea, invite the attention

of the court to their absence, the court, instead of dismissing the information, should conductsuch investigation, order the fiscal to conduct it or remand the case to the inferior court so

that the preliminary investigation may be conducted.In this case, the Tanodbayan, has the

duty to conduct the said investigation.

Thus, although the Sandiganbayan was correct in ruling that the absence of a preliminary

investigation is not a ground for quashing an information, it should have held the proceedings inthe criminal cases in abeyance pending resolution by the Tanodbayan of petitioner's petition

for reinvestigation, as alternatively prayed for by him in his motion to quash.

WHEREFORE, the assailed resolution of the respondent Sandiganbayan dated July 15, 1985 is

hereby affirmed, but respondent Sandiganbayan is ordered to hold in abeyance the

proceedings therein with respect to petitioner, subject to the outcome of the reinvestigation

of the Tanodbayan of the aforesaid cases. The Temporary Restraining Order issued by theCourt on August 1, 1985 is deemed superseded by this directive.

PADERANGA

vs.DRILON

In this special civil action for mandamusand prohibition with prayer for a writ of preliminary

injunction/restraining order, petitioner seeks to enjoin herein public respondents from

including the former as an accused in Criminal Case No. 86-39 for multiple murder, through a

second amended information, and to restrain them from prosecuting him.

Facts:

On October 16, 1986, an information for multiple murder was filed in the Regional Trial Court,

Gingoog City, against Felipe Galarion, Manuel Sabit, Cesar Sabit, Julito Ampo, Eddie Torion,

John Doe, Peter Doe and Richard Doe, for the deaths on May 1, 1984 of Renato Bucag, his wife

Melchora Bucag, and their son Renato Bucag II. Venue was, however, transferred to Cagayan

de Oro City per Administrative Matter No. 87-2-244.


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Only Felipe Galarion was tried and found guilty as charged. The rest of the accused remained

at large. Felipe Galarion, however, escaped from detention and has not been apprehended since

then.

In an amended information filed on October 6, 1988, Felizardo Roxas, alias"Ely Roxas," "Fely

Roxas" and "Lolong Roxas," was included as a co-accused.

Petitioner filed, among others, an Omnibus Motion to dismiss, to Quash the Warrant of Arrest

and to Nullify the Arraignment on October 14, 1988. The trial court in an order dated January9, 1989, denied this omnibus motion but directed the City Prosecutor "to conduct another

preliminary investigation or reinvestigation in order to grant the accused all the opportunity to

adduce whatever evidence he has in support of his defense."

In the course of the preliminary investigation, through a signed affidavit, Felizardo Roxas

implicated herein petitioner in the commission of the crime charged.

The City Prosecutor of Cagayan de Oro City inhibited himself from further conducting the

preliminary investigation against petitioner at the instance of the latter's. In his first

endorsement to the Department of Justice, said city prosecutor requested the Department of

Justice to designate a state prosecutor to continue the preliminary investigation against herein

petitioner.

Respondent State Prosecutor Henrick F. Gingoyon, who was designated to continue with the

conduct of the preliminary investigation against petitioner, directed the amendment of the

previously amended information to include and implead herein petitioner as one of the accused

therein. Petitioner moved for reconsideration,contending that the preliminary investigation

was not yet completed when said resolution was promulgated, and that he was deprived of hisright to present a corresponding counter-affidavit and additional evidence crucial to the

determination of his alleged "linkage" to the crime charged. The motion was, however, deniedby respondent Gingoyon.

From the aforesaid resolution and order, petitioner filed a Petition for Reviewwith the

Department of Justice.

On August 10, 1990, the Department of Justice, through respondent Undersecretary Silvestre

H. Bello III, issued Resolution dismissing the said petition for review. His motion for

reconsideration having been likewise denied, petitioner then flied the instant petition

for mandamusand prohibition.

Issue:

WON the preliminary investigation as to the petitioner was not complete making no probable

cause to justify his inclusion in the second amended information.


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WON the lack of preliminary investigation does go to the jurisdiction of the court.

Held:

Preliminary investigation is generally inquisitorial, and it is often the only means of discovering

the persons who may be reasonably charged with a crime, to enable the fiscal to prepare hiscomplaint or information. It is not a trial of the case on the merits and has no purpose except

that of determining whether a crime has been committed and whether there is probable cause

to believe that the accused is guilty thereof, and it does not place the person against whom itis taken in jeopardy.

A preliminary investigation is defined as an inquiry or proceeding for the purpose of

determining whether there is sufficient ground to engender a well founded belief that a crime

cognizable by the Regional Trial Court has been committed and that the respondent is probably

guilty thereof, and should be held for trial. The quantum of evidence now required in

preliminary investigation is such evidence sufficient to "engender a well founded belief as to

the fact of the commission of a crime and the respondent's probable guilt thereof. Apreliminary investigation is not the occasion for the full and exhaustive display of the parties'

evidence; it is for the presentation of such evidence only as may engender a well grounded

belief that an offense has been committed and that the accused is probably guilty thereof. We

are in accord with the state prosecutor's findings in the case at bar that there exists prima

facieevidence of petitioner's involvement in the commission of the crime, it being sufficiently

supported by the evidence presented and the facts obtaining therein.

It has been held that "the proper forum before which absence of preliminary investigation

should be ventilated is the Court of First Instance of a preliminary investigation does not go to

the jurisdiction of the court but merely to the regularity of the proceedings. It could even bewaived. Indeed, it is frequently waived. These are matters to be inquired into by the trail court

not an appellate court."

It is a fundamental principle that the accused in a preliminary investigation has no right to

cross-examine the witnesses which the complainant may present. Section 3, Rule 112 of the

Rules of Court expressly provides that the respondent shall only have the right to submit a

counter-affidavit, to examine all other evidence submitted by the complainant and, where thefiscal sets a hearing to propound clarificatory questions to the parties or their witnesses, to

be afforded an opportunity to be present but without the right to examine or cross-examine.

Thus, even if petitioner was not given the opportunity to cross-examine Galarion and Hanopol

at the time they were presented to testify during the separate trial of the case against

Galarion and Roxas, he cannot assert any legal right to cross-examine them at the preliminary

investigation precisely because such right was never available to him. The admissibility or

inadmissibility of said testimonies should be ventilated before the trial court during the trialproper and not in the preliminary investigation.


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It has been held that "the proper forum before which absence of preliminary investigation

should be ventilated is the Court of First Instance of a preliminary investigation does not go to

the jurisdiction of the court but merely to the regularity of the proceedings. It could even be

waived. Indeed, it is frequently waived. These are matters to be inquired into by the trail court

not an appellate court."

Furthermore, the technical rules on evidence are not binding on the fiscal who has jurisdiction

and control over the conduct of a preliminary investigation. If by its very nature a preliminary

investigation could be waived by the accused, we find no compelling justification for a strict

application of the evidentiary rules. In addition, considering that under Section 8, Rule 112 of

the Rules of Court, the record of the preliminary investigation does not form part of the

record of the case in the Regional Trial Court, then the testimonies of Galarion and Hanopol

may not be admitted by the trial court if not presented in evidence by the prosecuting fiscal.

And, even if the prosecution does present such testimonies, petitioner can always objectthereto and the trial court can rule on the admissibility thereof; or the petitioner can, during

the trial, petition said court to compel the presentation of Galarion and Hanopol for purposes

of cross-examination.

WHEREFORE, the instant petition is hereby DISMISSED for lack of merit.

NOTE: The purpose of preliminary investigation is to secure the innocent against hasty,

malicious and oppressive prosecution, and to protect him from an open and public accusation of

crime, from trouble, expense and anxiety of public trial, and also to protect the stae from

useless and expensive trial.

EDEN D. PAREDES

vs.

SANDIGANBAYAN

Facts:

On January 21, 1976, Ceferino S. Paredes, Jr., then the Provincial Attorney of Agusan del Sur,

applied for a free patent for Lot No. 3097-A, PLS-67 in San Francisco, Agusan del Sur. His

application was favorably acted upon by the Land Inspector, Armando Luison.

Eight (8) years later, the Sangguniang Bayan of the Municipality of San Francisco passedResolution requesting the Sangguniang Panlalawigan of Agusan del Sur to assist it in recovering

Lot No. 3097 from Attorney Paredes because the land had been designated and reserved as a

school site. The Sangguniang Bayan requested the provincial fiscal to file a perjury charge

against Attorney Paredes, Jr. Civil Case, for annulment of Attorney Paredes' title, was filed by

the Republic in the Regional Trial Court, Branch 6, Agusan del Sur.


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During the pendency of Civil Case, Teofilo Gelacio, former vice-mayor of San Francisco, Agusan

del Sur, filed with the Tanodbayan, a criminal complaint charging Attorney Paredes with having

violated Section 3(a) of the Anti-Graft & Corrupt Practices Act (R.A. 3019) because he

allegedly used his office as Provincial Attorney to influence, persuade, and induce Armando

Luison, Land Inspector of the District Land Office in Agusan del Sur, to favorably indorse his

free patent application.

On February 23, 1987, the Tanodbayan (now Ombudsman) referred the case to Fiscal Ernesto

Brocoy of Butuan City for preliminary investigation.

Fiscal Brocoy issued summons to Attorney Paredes, Jr. to appear at the preliminary

investigation of the case on August 29, 1987. However, the summons were served on November

19, 1987 and the same did not reach Attorney Paredes. Nevertheless, without waiting for

proof of service of the summons on the accused, Fiscal Brocoy proceeded to conduct the

preliminary examination of the complainant and his witnesses. On August 29, 1988, the fiscal

issued a resolution finding a prima faciecase of violation of Section 3(a) of R.A. 3019

committed by the accused. The Fiscal's resolution was approved by Tanodbayan ProsecutorJosephine Fernandez on June 26, 1989

Attorney Paredes filed a motion for reconsideration of the Tanodbayan's resolution. He

assailed the validity of the preliminary investigation that was conducted by Fiscal Brocoy

without notice to him. His motion for reconsideration was denied.

On May 20, 1988, the Regional Trial Court of Agusan del Sur rendered a decision in Civil Case

restoring the land "to the mass of public domain".

On August 28,1988, an information was filed against Governor Paredes in the Sandiganbayanand a warrant for his arrest, fixing bail of P20,000 for his provisional liberty, was issued on

August 30, 1989 and served upon him. He refused to post bail. Consequently, he was detained in

the municipal jail of San Francisco.

On September 20, 1989, this petition for habeas corpuswas filed by his wife, Mrs. Eden

Paredes, against the Sandiganbayan. She alleged that the warrant for her husband's arrest

was void because the preliminary investigation was void.

In his return of the Writ, the Solicitor General, as counsel for the Sandiganbayan, agreed that

lack of notice to Governor Paredes of the preliminary investigation was "a fatal defect"

invalidating not only the preliminary investigation, but also the information prepared by the

Tanodbayan, and the warrant of arrest issued by the Sandiganbayan.

On the other hand, the Ombudsman argued that the Sandiganbayan was improperly maderespondent in this case because it does not have custody of Governor Paredes; that the lack of

preliminary investigation did not affect the validity of the information nor the jurisdiction of

the Sandiganbayan.


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Issue:

WON the lack of a preliminary investigation constitute a valid ground for the issuance of a

writ of Habeas Corpus.

Held:

Said circumstance does not constitute valid grounds for the issuance of a writ of habeas

corpus. The absence of a preliminary investigation does not affect the court's jurisdiction over

the case nor impair the validity of the information or otherwise render it defective. Theremedy of the accused in such a case is to call the attention of the court to the lack of apreliminary investigation and demand, as a matter of right, that one be conducted. The court,

instead of dismissing the information, should merely suspend the trial and order the fiscal to

conduct a preliminary investigation.

If the detained attorneys question their detention because of improper arrest, or that no

preliminary investigation has been conducted, the remedy is not a petition for a Writ of

Habeas Corpus but a Motion before the trial court to quash the Warrant of Arrest, and/or the

Information on grounds provided by the Rules, or to ask for an investigation / reinvestigation

of the case. Habeas corpuswould not lie after the Warrant of commitment was issued by the

Court on the basis of the Information filed against the accused. So it is explicitly provided for

by Section 14, Rule 102 of the Rules of Court, (Ilagan vs.Enrile, 139 SCRA 349).

WHEREFORE, finding no merit in the petition, the same is hereby denied. The accused,Ceferino Paredes, Jr. should file a bail bond of P20,000, fixed by the Sandiganbayan for his

provisional liberty. Costs against the petitioner.

THE PEOPLE OF THE PHILIPPINES

vs.

YUTILA

This is an automatic review of the decision of the Court of First Instance of Samar declaringeach of the accused, namely: Esperidion Yutila, Bonifacio Yutila, and Aquilino Yutila, are guilty

beyond reasonable doubt of the crime of rape with Homicide and each is sentenced to suffer

the supreme penalty of DEATH by electrocution.

Facts:

That on or about the 24th day of April, 1970, in the municipality of Gen. MacArthur, Province

of Eastern Samar, Philippines, the above-named accused together with Gregorio Yutila who is

still at large, with lewd design, conspiring, confederating together and mutually helping oneanother by means of force, violence and intimidation, did, then and there, willfully, unlawfully

and feloniously have carnal knowledge with one Fidela Dema-angay Bederio against her will and

without her consent; and on the occasion of said rape and in order to effect the same, the said


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accused, conspiring, confederating together and mutually helping one another with intent to kill

one Fidela Dema-angay Bederio did, then and there, wilfully unlawfully and feloniously attack,

assault, stab and wound the latter with sharp bolos which the accused have conveniently

provided themselves for the purpose thereby inflicting upon said Fidela Dema-angay Bederio

stabbed wounds on the different vital parts of her body, which wounds caused the death of

said Fidela Dema-angay Bederio

The above information, accusing the three defendants of rape with homicide, was amended

information.

The defendants alleged the error in convicting them under the original information that had

already been supplanted or superseded by the amended information. They contended that the

lack of preliminary investigation impaired the validity of the proceedings and therefore

affects the jurisdiction of the Court of First Instance over the case. This question was raised

by the defendants for the first time on appeal.

Issue:

WON the lack of preliminary investigation impair the validity of the proceedings.

Held:

No.

The reference by the trial court in its decision to the information as originally filed is of no

moment. The original and the amended information are substantially the same. The only

difference is that in the original information it is alleged that Gregorio Yutila, one of the

alleged perpetrators of the crime, was already dead while in the amended information it is

stated that he is alive but at large. The record shows that the defendant defendants wereduly apprised of the contents of the amended information. The lack of preliminary

investigation did not impair the validity of the proceedings. It did not affect the jurisdictionof the Court of First Instance over the case. Moreover, the three defendants pleaded not

guilty upon being arraigned. The denial of the accused of his right to preliminary investigation

cannot be raised for the first time on appeal.

The trial court has correctly found the defendants guilty of rape with homicide and imposedthe proper penalty.

WHEREFORE, the decision of the trial court sought to be reviewed is hereby AFFIRMED.

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