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EN
BANC
MARIANO
MARCOS,
PIO
MARCOS AND QUIRINO LIZARDO,
Petitioners
,
G.
R.
No. 46490
January
24, 1939
-versus-
ROMAN A.
CRUZ, JUDGE
OF FIRST INSTANCE OF ILOCOS NORTE,
Respondent.
D
E C I S I
O N
IMPERIAL,
J :
In their Petition for Certiorari
and Prohibition, the petitioners pray that the order of the respondent
judge dated December 29, 1938, denying another motion filed by them to
be admitted to bail, be set aside, and by way of affirmative relief ask
that they be set at liberty upon giving bail in the amount to be fixed.
On December 7, 1938,
the Provincial Fiscal of Laguna, who was assigned as such in Ilocos
Norte,
filed the following Information:
"The undersigned
charges
Mariano Marcos, Pio Marcos, Ferdinand Marcos, Quirino Lizardo, and John
Doe [whose identity has so far not been established], with the crime of
murder, committed as follows:
"That on or about
the
night of September 20, 1935, in the municipality of Batac, Province of
Ilocos Norte, Philippines, and within the jurisdiction of this
Honorable
Court, the aforenamed accused, armed with firearms, acting upon a
common
understanding and conspiring with one another, wilfully, unlawfully,
and
feloniously, with treachery, evident premeditation, and intent to kill,
fired at Julio Nalundasan, then representative-elect for the second
district
of Ilocos Norte, hitting him in the right side, the bullet having
entered
vital internal organs and injuring them, which wounds cause the instant
death of said Julio Nalundasan.
"Contrary to law,
with
the aggravating circumstances of nocturnity and the perpetration of the
crime in the home of the deceased.
"Laoag, Ilocos Norte,
December 7, 1938.
[Sgd.] "HIGINO B.
MACADAEG
"Provincial Fiscal
for
Laguna
with special
designation
in the
Province of
Ilocos
Norte
"Witnesses:
"DR. RAMON RABAGO,
c/o Phil. Army
Cotabato,
Cotabato
"DR. DOMINGO SAMONTE,
c/o Dept. del Interior
Manila, and
others"
The Information was
submitted to the respondent judge who, after examining prosecution
witnesses,
Calixto Aguinaldo and Valentin Rubio, on that very day issued the
warrant
for the arrest of the accused, stating that from the testimony of these
witnesses, it was evident that the crime charged had been committed and
that the accused had probably committed it. Being of the opinion that
the
crime charged was penalized with a capital punishment, and that the
accused
were not entitled to bail, the Court likewise decreed that the accused
remain in detention. At the investigation conducted by the respondent
judge,
where Calixto Aguinaldo and Valentin Rubio testified, the accused were
not present, and the whole proceeding took place in their absence. On
December
8, 1938, Mariano Marcos moved to be admitted to bail. The motion was
set
for hearing that same afternoon, which was orally opposed by the
fiscal,
and without either party adducing any evidence, the motion was
submitted.
Pio Marcos, Ferdinand Marcos, and Quirino Lizardo on the 12th also
moved
to be admitted to bail. This motion was set for hearing on the 20th of
December, 1938, but at the request of the accused, who wanted to file a
supplementary motion, the hearing was postponed till the following day.
On December 21st, the four accused filed the supplementary motion,
attaching
thereto their sworn statements marked A, B, C and D. Here as in the
original
motion the accused urgently prayed that they be released on bail, and
in
their sworn statements Mariano Marcos, Ferdinand Marcos and Quirino
Lizardo
declared that the testimony of Calixto Aguinaldo and Valentin Rubio
accusing
them of murder was false, and that they were innocent. On December 21st
these motions came up for hearing before the respondent judge, Fiscal
Macadaeg
appearing for the prosecution, and Attorney Vicente J. Francisco for
the
defense. The latter asked that the prosecution present its evidence to
show that the accused fell within the exception of Section 1, Paragraph
16, Article III of the Constitution, and Section 63 of General Orders
No.
58, that is, that they were accused of a capital offense, that the
proof
of guilt was evident and the presumption of guilt strong. The fiscal
refused
to do so and contended that under the law the prosecution was not bound
to adduce such evidence, that the judge might take into account that
adduced
during the investigation he had made, and that at any rate it was the
defense
that was bound to establish the right of the accused to bail. The
respondent
judge sustained the fiscal and the hearing came to a close without
either
party adducing any evidence. The motions having thus been submitted,
the
respondent judge on December 29, 1938 issued an order denying them and
ruling that the accused Mariano Marcos, Quirino Lizardo and Pio Marcos
were not entitled to bail because they were charged with a capital
offense,
the proof against them was evident, and the presumption of guilt
strong.
Prior to this date they had asked for a preliminary investigation. The
motion to that effect was denied on the ground that the investigation
conducted
by the respondent judge before issuing the warrant of arrest was in the
nature of a preliminary investigation. Motion for reconsideration was
filed,
and on December 27, 1938 this motion was likewise denied, but the
judge,
in the same order, admitted Ferdinand Marcos to bail on the ground that
he was under 18 when the crime was committed, that he was a remarkably
bright student of the College of Law in the University of the
Philippines,
that he would finish his studies the following March, and that he had
given
assurances, together with his lawyers, that he would not leave the
Philippines.
As may be seen, the
question of law raised by this petition is whether the accused Mariano
Marcos, Pio Marcos, and Quirino Lizardo are entitled to be admitted to
bail at this stage of the criminal proceedings, that is, before
conviction.
Section 1, paragraph 16, Article III of the Constitution, provides:
"[16] All persons
shall
before conviction be bailable by sufficient sureties, except those
charged
with capital offenses when evidence of guilt is strong. Excessive bail
shall not be required."
Section 63 of General Orders
No. 58, provides:
"Sec. 63. All
prisoners
shall be bailable before conviction, except those charged with the
commission
of capital offenses when proof of guilt is evident or the presumption
of
guilt i5 strong."
Section 63 of General Orders
No. 58, does not run counter to Section 1, Paragraph 16, Article III of
the Constitution, since in this jurisdiction, every accused person is
bailable
before conviction, unless charged with a capital offense, when proof of
guilt is evident and presumption of guilt strong [U. S. vs. Babasa, 19
Phil., 198; Montalbo vs. Santamaria, 54 Phil., 955]. When the crime
charged
is a capital offense, admission to bail lies within the discretion of
the
Court, and depends upon whether the proof is evident and the
presumption
of guilt strong [Montalbo vs. Santamaria, supra].
When the motions filed
by the three accused came up for trial, counsel asked that the
prosecution
adduce its evidence to show whether they fell within the exception, and
whether or not they were entitled to bail; but the Court upheld the
prosecution
and declared that the burden of proof was on the accused to show that
they
were entitled to bail. The controversy thus gave rise to the legal
question
as to which side bears the burden of proof in such cases. Section 66 of
General Orders No. 58, provides:
"Sec. 66. When
admission
to bail is a matter of discretion, the court must require that
reasonable
notice of the hearing of the application for bail be given to the
promotor
fiscal."
It
will be seen that this
Section provides for a hearing of the application for bail, but it says
nothing about the party bound to prove the right to bail. The
prosecution
contends that the burden of proof lies on the accused because they must
prove their affirmative allegation that they are entitled to bail and
because
the filing of the information sets up the presumption of their guilt.
The
defense contends that since it is the exception to the rule that the
accused
are not entitled to bail, it is the prosecution, and not the accused,
which
is bound to prove it.
In the States of the
Union, there are two tendencies or theories touching the onus
probandi
where there is a petition to be admitted to bail before
conviction
of the accused. In some States it has been held that the burden of
proof
lies on the accused who asked to be admitted to bail because the filing
of the indictment raises the presumption of guilt and that the proof
against
the accused is evident or clear [8. C. J. S., sec. 34, p. 61; McAdams
vs.
State, 147 N. E., .64; 196 Ind., 184; Ex parte Cooper, 45 P. (2d),
584).
In Shaw vs. State (47 S. W. [2d], 92; 164 Tenn., 192], the Supreme
Court
of Tennessee held that in the absence of proof by the petitioner that
he
is bailable for a capital offense, the indictment raises the
presumption
of guilt required by the constitutional provision regarding bail. In
State
vs. Kutcher [129 A., 632; 3 N. J., Misc., 636], the Supreme Court of
New
Jersey held that although the indictment does not raise the presumption
of guilt sufficient for the trial on the merits, it does raise that
presumption
for all intermediate proceedings, such as a petition to be admitted to
bail. In State vs. Lowe [86 So., 707; 204 Ala., 288], the Supreme Court
of the State held that a person under an indictment for a capital
offense
is presumed guilty to the extent of not being entitled to release on
bail.
In other States, it
has been held that in petitions for admission to bail the burden of
proof
to show that the accused is not bailable lies on the prosecution [8 C.
J. S., sec. 34, p. 61; 6 Am. Jur., par. 25, p. 59; Ford vs. Dilley 156
N. W., 513; 174 Ia., 243; Ex parte Johnson, 280 S. W., 702; Ex parte
Dumas,
7 S. W. (2d), 90; 110 Tex. Cr., 1; Ex parte Fleming, 261 S. W., 1037;
97
Tex. Cr., 304; Commonwealth vs. Stahl, 35 S. W. (2d), 563; 237 Ky.,
388;
Ex parte Readhimer, 60 S. W. [2d], 788; 123 Tex. Cr., 635; Ex parte
Martin,
45 S. W. (2d), 965; 119 Tex Cr., 141; Ex parte Landers, 9 S. W. (2d),
1106;
110 Tex. Cr., 604; Ex parte Crawford, 265 S. W., 906; 98 Tex. Cr., 289;
Ex parte Townsley, 220 S. W., 1092; 87 Tex. Cr., 252]. In Ford vs.
Dilley,
supra, the Supreme Court of Iowa held that at a hearing
regarding
bail the State must begin to adduce evidence if it denies that the
offense
is bailable. It was stated that since according to the provisions of
law
the rule is that the accuses is bailable, and the exception is that he
cannot be admitted to bail, the burden of proving that a case falls
within
the exception lies on the prosecution opposing the grant of bail.
As may be seen, the
fundamental reason the courts had in holding that the accused must
prove
his right to bail is the presumption of guilt arising from the filing
of
the indictment. It has further been said that the filing of the
indictment
likewise destroys the presumption of innocence in favor of the accused.
If this theory has some persuasive force, it is due to the procedural
system
followed in nearly all the States of the Union for securing the
indictment.
There the district attorney gathers the evidence for the prosecution
and
presents it before the Grand Jury, which, after examining it,
deliberates
upon whether or not to present the indictment. This indictment is
presented
only after the jury is morally convinced that the crime has been
committed
and that the accused is guilty. In this jurisdiction there is no jury,
and the evidence for the prosecution is gathered and organized by the
fiscal,
who later files the information. Undoubtedly the legal requirement that
the indictment be presented by the jury aims at surrounding the citizen
with greater guarantees before being molested with his arrest,
preliminary
investigation, trial, and the consequent expenses of his defense. This
guarantee in favor of the citizen does not exist in our jurisdiction,
because
we have no jury, for which reason We incline towards the second theory
that the filing of the Information does not raise the presumption of
guilt
or destroy the presumption of the defendant's innocence provided for in
Section 57 of General Orders No. 58. We, therefore, hold that when a
person
accused of a capital offense asks to be admitted to bail before
conviction,
the burden of proof lies, not on him, but on the prosecution to show
that
he is not bailable.
It is argued that the
respondent judge, before issuing the warrant for the arrest of the
accused,
examined the two witnesses for the prosecution presented by the fiscal,
and that their testimony raised the presumption of the defendants'
guilt
and supplied the further requirement that proof of guilt must be
evident.
We cannot give Our assent to this contention. It ought not to be
forgotten
that such testimony was taken in the absence of the accused, and that
the
latter had no opportunity to see the witnesses testify or to
cross-examine
them. We are not unmindful of the fact that in People vs. Solon [47
Phil.,
443), and in Payao vs. Lesaca (63 Phil., 210], We said that when the
investigation
of a criminal case is conducted by a judge of first instance, it
includes
both the summary investigation spoken of in Act No. 194, as amended by
Acts Nos. 1450 and 1627, and the preliminary investigation referred to
in Section 13 of General Orders No. 58; and We are aware of the
contention
of the prosecution that applying the doctrine laid down in those two
cases,
the evidence adduced before the respondent judge could be used against
the accused and in fact established the presumption of guilt. But it
must
be borne in mind that the hearing required by Section 66 of General
Orders
No. 58, is essentially different from the preliminary investigation to
which every person is entitled who is accused of a crime triable before
the Court of First Instance, and that if the prosecution had intended
the
summary investigation conducted by the respondent judge to be a
preliminary
investigation, its duty was to summon the accused and adduce its
evidence
in their presence. Other reasons preventing the consideration of such
evidence
against the accused are: that the fiscal did not reproduce or offer it
at the hearing of the petitions for bail; and that in the sworn
statements
which the accused attached to their supplementary motion, they denied
the
imputation of guilt, and rebutted the testimony of Calixto Aguinaldo
and
Valentin Rubio, which they described as false and improbable. In these
circumstances it was the duty of the respondent judge, to require the
fiscal
to adduce his evidence in order to show that the crime charged was
capital
that the proof was evident, and the presumption of guilt strong.
Although the petition
filed is entitled certiorari and prohibition, We consider that the
proper
relief is only the first, since there is no allegation or ground for
invoking
the second. Certiorari lies in this case because the respondent judge
exceeded,
as We have pointed out, the discretion conferred upon him by law
[section
217, Code of Civil Procedure; De Castro and Morales vs. Justice of the
Peace of Bocaue, 33 Phil., 595; Valdez vs. Querubin, 37 Phil., 77ds;
Leung
Ben vs. O'Brien, 38 Phil., 182; Salvador Campos y Cia. vs. Del Rosario,
41 Phil., 45; Larrobis vs. Wislizenus and Smith, Bell & Co., 42
Phil.,
401; Encarnacion and Navarro vs. Sheriff of Rizal, 63 Phil., 467;
Carreon
vs. Buyson Lampa, 63 Phil., 449].
Wherefore, let the
Writ of Certiorari issue and the Order of December 29, 1938 denying
bail
to the accused Mariano Marcos, Pio Marcos, and Quirino Lizardo be set
aside.
The respondent judge, or whoever acts in his stead, shall set the
petitions
filed by these three accused regarding bail for hearing, at which the
fiscal
should prove that they fall within the exception and are therefore not
entitled to bail because they are charged with a capital offense, the
proof
is evident, and the presumption of their guilt is strong. The evidence
thus adduced may be rebutted by the accused with other evidence to show
their right. Without special award of costs. So ordered.
Avanceña, C.J.,
Villa-Real, Diaz, Concepcion and Morar, JJ., concur.
Laurel, J.,
concur in the result.
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