Professional Documents
Culture Documents
FULL TEXT - Go vs. CA
FULL TEXT - Go vs. CA
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G.R. No. 101837. February 11, 1992.
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* EN BANC.
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FELICIANO, J.:
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2 Rollo, p. 28.
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murder before the Regional Trial Court. No bail was
recommended. At the bottom of the information, the
Prosecutor certified that no preliminary investigation had
been conducted because the accused did not execute and
sign a waiver of the provisions of Article 125 of the Revised
Penal Code.
In the afternoon of the same day, 11 July 1991, counsel
for petitioner filed with the Prosecutor an omnibus motion
for immediate
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release and proper preliminary
investigation, alleging that the warrantless arrest of
petitioner was unlawful and that no preliminary
investigation had been conducted before the information
was filed. Petitioner also prayed that he be released on
recognizance or on bail. Provincial Prosecutor Mauro
Castro, acting on the omnibus motion, wrote on the last
page of the motion itself that he interposed no objection to
petitioner being granted provisional liberty on a cash bond
of P100,000.00.
On 12 July 1991, petitioner
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filed an urgent ex-parte
motion for special raffle in order to expedite action on the
Prosecutor’s bail recommendation. The case was raffled to
the sala of respondent6 Judge, who, on the same date,
approved the7
cash bond posted by petitioner and ordered
his release. Petitioner was in fact released that same day.
On 16 July 1991, the Prosecutor filed with the Regional
Trial Court 8a motion for leave to conduct preliminary
investigation and prayed that in the meantime all
proceedings in the court be suspended. He stated that
petitioner had filed before the Office of the Provincial
Prosecutor of Rizal an omnibus motion for immediate
release and preliminary investigation, which motion had
been granted by Provincial Prosecutor Mauro Castro, who
also agreed to recommend cash bail of P100,000.00. The
Prosecutor attached to the motion for leave a copy of
petitioner’s omnibus motion of 11 July 1991. 9
Also on 16 July 1991, the trial court issued an Order
granting
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In cases falling under paragraphs (a) and (b) hereof, the person
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tion having been first conducted, the accused may within five (5)
days from the time he learns of the filing of the information, ask
for a preliminary investigation with the same right to adduce
evidence in his favor in the manner prescribed in this Rule.”
(Italics supplied)
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“x x x 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 no preliminary
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investigations and the defendants, before entering their plea, invite the attention
of the court to their absence, the court, instead of dismissing the information,
should conduct such investigation, order the fiscal to conduct it or remand the case
to the inferior court so that the preliminary investigation may be conducted. 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 in the 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. (166 SCRA at
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623-624)
In Paredes v. Sandiganbayan (193 SCRA 464 [1991]), the Court stated:
“x x x The remedy of the accused in such a case is to call the attention of the court to
the lack of a preliminary 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. Thus
did we rule in Ilagan v. Enrile, 139 SCRA 349.” (193 SCRA at 469)
x x x. We are sad to make the statement that it would seem that the government
now in this proceeding would like to become the law breaker. Why do we say this,
Your Honor. The Information for a serious crime of murder was filed against the
accused without the benefit of the preliminary investigation. As a matter of fact,
Your Honor, the want of preliminary investigation has been admitted by no less
than the Investigating Fiscal himself. x x x x x x x x x x x x
ATTY. ARMOVIT:
Why do we say the government becomes a law breaker. We have a case of US vs.
Marfori. It says and I quote (counsel
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that special civil action. There are dozens of cases which languishes 2, 3,
4 to 5 years. Why so special and selective in the treatment of this case. I
ask that question.
COURT:
Before you proceed, can you cite an incident before this Court where the
preliminary investigation has been delayed.
FISCAL VILLA IGNACIO:
The information was filed last July 11, 1991. Today is August 23. Where
is the rush in arraigning the accused.
COURT:
Heard enough. Proceed with the arraignment of the accused.
ATTY. ARMOVIT:
In my 30 years of practice, this is the first time I am stopped by the
Court in the middle of my arguments.
FISCAL VILLA IGNACIO:
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You are wasting the time of the court.
COURT:
Order in the court. Order in the court.
ATTY. ARMOVIT:
I want to make of record that there has been clapping after the
manifestation of the Hon. Fiscal, Your Honor.
COURT:
Let us proceed with the arraignment.
ATTY. ARMOVIT:
May I conclude citing, Your Honor, the Supreme Court decision.
COURT:
I have made my ruling. The accused is entitled to speedy trial. That is
the reason why this arraignment was set for today.
ATTY. ARMOVIT:
May I move for a reconsideration, Your Honor.
COURT:
The motion for reconsideration is denied. Proceed with the arraignment
of the accused.
ATTY. ARMOVIT:
Your Honor, may we move that we be given a period of five days to file a
motion to quash information.
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ATTY. ARMOVIT:
Consistently, there is no valid proceedings before this Court. I would
rather not participate in this case. But if it is the Court’s order then we’ll
have to submit, but from this representation we will not voluntarily
submit.
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ATTY. ARMOVIT:
This representation manifested that I would rather not participate in
this case. But if it is the Court’s order we would submit to the Order of
this Court because we are officers of the law not that we are already
representing the accused. May we respectfully move to strike out from
the record the inofficious order of the Hon. Prosecutor to app oint a
counsel de oficio. The accused is entitled to counsel de parte.
FISCAL VILLA IGNACIO:
But counsel de parte refuses to participate, in which the incumbent court
can appoint a PAO lawyer in case of the absence of counsel de parte.
COURT:
The objection of the Public Prosecutor is well taken. That is the procedure
of the Court, that if the accused has no counsel de parte we always
appoint a counsel de oficio for the accused.
ATTY. ARMOVIT:
We respectfully submit that accused in criminal case is entitled to his
counsel of his own choice. May we at least allow the accused to express
his opinion or decision on matters as to who should give him legal
representation.
COURT:
You just said earlier you don’t want to participate in the proceedings.
ATTY. ARMOVIT:
That is not what I said. I said that we’ll not voluntarily participate but if
it is the Court’s order, certainly the accused has the right of his own
counsel of choice.
COURT:
The Court will now reiterate ordering the trial of this case. x x x x x x x
x x” (TSN, 23 August 1991, pp. 2-9; italics supplied)
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ing objection.” Petitioner had promptly gone to the
appellate court on certiorari and prohibition to challenge
the lawfulness of the procedure he was being
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forced to
undergo and the lawfulness of his detention. If he did not
walkout on the trial, and if
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“COURT:
And considering that the Court has not been restrained by the Court of
Appeals despite the petition, let the trial of this case proceed.
ATTY. ARMOVIT:
Your Honor please may we just record a continuing objection on the
grounds that are cited in our petition for habeas corpus and certiorari to
conduct the further proc eedings of this Court and by the way Your
Honor, we do not consider unfortunate the deliberation and serious
thoughts our higher courts are giving in respect to a cons ideration of
the constitutional right of the accused inv oked before that body rather
it is the most judicial act of uplifting the highest court of our land.
COURT:
Alright proceed.
PP VILLA IGNACIO:
We call on our first witness to the witness stand, Mr. Nicanor Bayhona.
(TSN, 19 September 1991, p. 6; italicssupplied)
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steps to bring the matter to a higher court to stop the trial of the case.
The Supreme Court said:
“x x x Again, before the commencement of the trial, appellant reiterated
his petition for a preliminary investigation, which was overruled,
nevertheless appellant took no steps to bring the matter to higher courts
and stop the trial of the case; instead he allowed the prosecution to present
the first witness who was able to testify and show the commission of the
crime charged in the information. By his conduct, we held that he waived
his right to a preliminary investigation and is estopped from claiming it.”
(103 Phil. at 508; italics supplied).
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against him. As the victim died the next day, July 9, 1991,
before an information could be filed, the First Assistant
Prosecutor, instead of filing an information for frustrated
homicide, filed an information for murder on July 11, 1991
in the Regional Trial Court, with no bail recommended.
However, the Provincial Prosecutor, acting on the
petitioner’s omnibus motion for preliminary investigation
and release on bail (which was erroneously filed with his
office instead of the court), recommended a cash bond of
P100,000 for his release, and submitted the omnibus
motion to the trial court for resolution.
Respondent Judge Benjamin Pelayo must have realized
his impetuosity shortly after he had issued: (a) his order of
July 12, 1991 approving the petitioner’s cash bail bond
without a hearing, and (b) his order of July 16, 1991
granting the Prosecutor leave to conduct a preliminary
investigation, for he motu proprio issued on July 17, 1991
another order rescinding his previous orders and setting for
hearing the petitioner’s application for bail.
The cases cited in page 15 of the majority opinion in
support of the view that the trial of the case should be
suspended and that the prosecutor should now conduct a
preliminary investigation, are not on all fours with this
case. In Doromal vs. Sandiganbayan, 177 SCRA 354 and
People vs. Monton, 23 SCRA 1024, the trial of the criminal
case had not yet commenced because motions to quash the
information were filed by the accused. Lozada vs.
Hernandez, 92 Phil. 1053; U.S. vs. Banzuela, 31 Phil. 565;
San Diego vs. Hernandez, 24 SCRA 110 and People vs.
Oandasan, 25 SCRA 277 are also inapplicable because in
those cases preliminary investigations had in fact been
conducted before the informations were filed in court.
It should be remembered that as important as is the
right of
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