EN
BANC
N. T.
HASHIM,
Petitioner,
G.
R.
No. 47777
January
13, 1941
-versus-
MARCELO T.
BONCAN,
JUDGE OF FIRST INSTANCE OF MANILA
AND THE
CITY FISCAL
OF MANILA,
Respondents.
D
E C I S I
O N
LAUREL,
J :
On August 6, 1940, the
petitioner, N. T. Hashim, was caught red-handed in possession of
counterfeit
treasury certificates of the Commonwealth of the Philippines. He was
placed
under arrest without warrant by the operatives of the Division of
Investigation
of the Department of Justice, but was released on the same day upon
filing
a bond. The following day, August 7, 1940, a complaint was filed
against
him with the Office of the City Fiscal, and after the corresponding
investigation
conducted by the respondent Fiscal under Section 2466 of the Revised
Administrative
Code, as amended by Commonwealth Act No. 537, the following Information
was lodged against him:
"The undersigned
accuses
N. T. Hashim of a violation of article 168 of the Revised Penal Code,
committed
as follows:
"That on or about
the
6h day of August, 19-l0, in the City of Manila, Philippines, the said
accused
did, then and there willfully, unlawfully, feloniously, and knowingly
have
in his possession and under his control five hundred sixty (560) false
or falsified 50-peso treasury certificates of the Commonwealth of the
Philippines,
with intent to use the same contrary to law.
"GREGORIO S. NARVASA
"Assistant Fiscal
"Subscribed and sworn
to before me this 7th day of August, 1940, in the City of Manila,
Philippines,
by Gregorio S. Narvasa, Assistant Fiscal of said City.
"SIXTO DE LA COSTA
"Judge, Court of
First
Instance
"A preliminary
investigation
has been conducted in this case under my director, the witness having
been
examined under oath in accordance with the provisions of Commonwealth
Act
NO. 537.
"GREGORIO S. NARVASA
"Assistant Fiscal
"Subscribed and sworn
to before me this 7th day of August, 1940, in the City of Manila,
Philippines,
by Gregorio S. Narvasa, Assistant Fiscal of said City.
"SIXTO DE LA COSTA
"Judge, Court of
First
Instance."
The case was docketed
as Criminal Case NO. 61464 of the Court of First Instance of Manila. On
the strength of the respondent fiscal's sworn statement that he had
conducted
a preliminary investigation and that he had examined the witnesses
under
oath, according to law, Judge of First Instance Sixto de la Costa
issued
a warrant for the arrest of the petitioner. He was later admitted to
bail.
Before the petitioner
could be arraigned, the following incidents transpired in the trial
court:
On August 14, 1940, counsel for the petitioner filed a motion under
Sections
11 and 13 of Rule 108 of the Rules of Court, asking that the respondent
fiscal furnish the clerk of court with the testimony of the witnesses
who
testified at the preliminary investigation, or an extract thereof, as
well
as with the alleged 560 counterfeit treasury certificate. The
respondent
fiscal opposed the motion on the ground that the provisions of Rule 108
of the Rules of Court on "Preliminary Investigation" do not apply to
preliminary
investigations conducted by the Fiscal for the City of Manila or any of
his assistants, and that the said motion is not well taken. On August
19,
counsel for the petitioner put in an additional motion praying that
should
his motion of August 14, 1940, be acted upon adversely and the
respondent
Fiscal's objection thereto be sustained, the Court itself immediately
conduct
the investigation. provided in Section 4 of Rule 108 of the Rules of
Court,
directing the Clerk of Court to attach to the record an abstract of the
testimony of the witnesses at said investigation. The respondent Fiscal
filed an objection to the additional motion on the ground, among
others,
that "there is no necessity for this Honorable Court to conduct a
preliminary
investigation in this case because the substitute therefor had already
been performed in accordance with law by the office of the fiscal of
the
City of Manila." To this objection counsel for the petitioner filed a
rejoinder
on August 21, 1940. On August 22, 1940, the respondent judge denied the
various motions of the petitioner on substantially the same grounds
advanced
by the respondent fiscal in his objections thereto.
By another motion of
August 26, 1940, counsel for the petitioner asked that the warrant of
arrest
issued in the case be cancelled and insisted that the court conduct the
preliminary investigation referred to in section 1, Rule 108 of the
Rules
of Court. This motion was followed by an opposition of the respondent
fiscal,
by petitioners reply to said opposition, by a rejoinder of the
respondent
fiscal, and by petitioner's reply to said rejoinder. The petitioner's
motion
of August 26, 1940, was again denied by the respondent judge on
September
6, 1940. A motion for reconsideration of September 11, 1940, met with a
like fate on September 16, 1940. The petitioner excepted to the orders
of the respondent judge of August 22, 1940, September 6, 1940,
September
16, 1940 and announced his intention to bring up the case to this Court
on certiorari and mandamus.
The petition for
certiorari
and mandamus filed with this Court recites in greater detail the
proceedings
which We have just set out in briefest outline, and closes with the
prayer:
[a] that the order of arrest issued against the accused in Criminal
Case
No. 61464 of the Court of First Instance of Manila be set aside; [b]
that
the respondent Judge conduct a preliminary investigation in the said
case
under Section 1 of Rule 108 of the Rules of Court and the pertinent
provision
of the Constitution of the Philippines; [c] that should the preliminary
investigation conducted by the respondent fiscal be upheld, that the
said
respondent be ordered to furnish the clerk of the Court of First
Instance
of Manila with an abstract of the testimony of the witnesses at said
investigation
and with such other evidence adduced therein; [d] that the arraignment
of the petitioner be suspended during the pendency of these
proceedings,
and [e] for such other remedy as may be just and equitable. The
Solicitor-General,
on behalf of the respondent judge, and the respondent fiscal, in his
own
representation, are one in resisting the petition.
The question for
decision
is whether, in a preliminary investigation conducted by the fiscal for
the City of Manila, the accused is entitled to be informed of the
substance
of the testimony and of the evidence presented against him. This, in
turn,
inevitably takes in the broader question of whether or not existing
legislation
under which the City Fiscal conducts preliminary investigations has
been
repealed and supplanted by the New Rules of Court.
Section 2465 of the
Revised Administrative Code, as amended by Commonwealth Act No. 537,
provides
that "The Fiscal of the city shall cause to be investigated all charges
of crimes, misdemeanors, and violations of ordinances, and have the
necessary
Information or complaints prepared or made against the persons
accused."
Section :2474 of the Revised Administrative Code [Manila Charter]
pertinently
provides that "In cases triable only in the Court of First Instance the
defendant shall not be entitled as of right to a preliminary
examination
in any case where the fiscal of the city, after a due investigation of
the facts, shall have presented an information against him in proper
form."
The power is reaffirmed - and not taken away - by Section 2, Rule 108
of
the Rules of Court providing that "Every justice of the peace,
municipal
judge or city fiscal shall have jurisdiction to conduct preliminary
investigation
of all offenses alleged to have been committed within his municipality
or city, cognizable by the Court of First Instance." Petitioner now
contends
that the power is coupled with a duty, among others, to transmit an
abstract
of the testimony of witnesses under Section 13, Rule 108, reading:
"Sec. 13. Transmission
of abstract. - Upon the conclusion of the preliminary
investigation,
the judge or corresponding officer shall transmit without delay to the
cleric of the Court of First Instance having jurisdiction of the
offense
(a) the warrant, if the arrest was by virtue of a warrant; (b) an
abstract
of the testimony of the witnesses; (c) the undertaking or bail of the
defendant,
and (d) the person of the defendant if not on bail."
It is said that by the
phrase "the corresponding officer" is meant the respondent fiscal. We
do
not think so. It may refer to the Municipal Mayor who, in stated cases,
is also authorized to conduct preliminary investigation [Section 3,
Rule
108]. That it has no reference to the respondent fiscal will bear a
little
explanation. Formerly, the purpose of sending up the substance of the
testimony
of witnesses at the preliminary investigation was to enable]e the
fiscal
to go forward with the case by complaint or information. In U. S. vs.
Rafael
[23 Phil., 184, 187] this purpose is elaborated as follows: "The
purpose
of requiring the Justice of the Peace to forward to the Provincial
Fiscal
a brief statement of the substance of the testimony, evidently is to
enable
the Provincial Fiscal to decide, in the first instance, whether he
shall
present a complaint against the defendant, and in the second, to enable
him, in case he decides to prosecute, to properly formulate said
complaint:.
It is practically impossible, in the thickly populated provinces of the
Philippine Islands, for the provincial fiscal to personally attend all
of the trials and preliminary investigations held before the Justices
of
the Peace. The purpose of the provisions of said Section 13 is
evidently
to enable the provincial fiscal to have sufficient information to
enable
him to decide whether or not the defendant, in the trial before the
Justice
of the Peace or in a preliminary investigation, shall be further
prosecuted
in the Court of First Instance." If, as above shown, the abstract of
testimony
is intended for the fiscal, the duty of transmittal is p]plainly cast
not
upon him but upon another. Further, if the said abstract is for the use
and guidance of the fiscal, failure to transmit is certainly not
prejudicial
to the petitioner, and he may not enjoin transmittal as of right.
On the other hand,
Section 13 of Rule 108 assumes that "the judge or corresponding
officer"
is by law authorized to issue a warrant of arrest, so much so that he
is
there required to transmit " [a] the warrant, if the arrest was by
virtue
of a warrant." We know of no law authorizing the City Fiscal to issue a
warrant of arrest. The section also assumes the two-stage preliminary
investigation
provided for justices of the peace and municipal judges and not for the
respondent Fiscal. Thus it opens with the statement "Upon the
conclusion
of the preliminary investigation the judge or corresponding officer
shall
transmit" implying thereby that one investigation has already been
concluded,
and another is to follow or is contemplated, based on the papers sought
to be transmitted. Under existing laws, the City Fiscal conducts but a
single investigation, and this is a summary one. To say that the
respondent
fiscal is bound by the procedure provided in the cited section is to
duplicate
proceedings, where at present there is but one, and to flout the spirit
of simplicity and dispatch underlying the new Rules. Finally, the
Section
under scrutiny requires "the judge or corresponding officer" also to
transmit
"[c] the person of the defendant is not on bail." The respondent fiscal
would be at a loss to comply with this requirement because he has no
direct
control over the person of the accused, not being empowered to order
his
arrest or release. All this induces one conclusion and one only - that
the preliminary investigation conducted by the City Fiscal is without
the
purview of and need not conform to the procedure marked out in Section
13 of Rule 108.
Petitioner next makes
the point that his right to be informed of the substance of the
testimony
and evidence presented against him finds support in still another
provision,
that of Section 11 of Rule 108 reading:
"Sec. 11. Rights
of defendant after arrest. - After the arrest of the defendant and
his delivery to the court, he shall be informed of the complaint or
information
filed against him. He shall also be informed of the substance of the
testimony
and evidence presented against him, and, if he desires to testify or to
present witnesses or evidence in his favor, he may be allowed to do so.
The testimony of the witnesses need not be reduced to writing but that
of the defendant shall be taken in writing and subscribed by him."
This Section also has reference
to the preliminary investigation conducted by justices of the peace and
municipal judges, namely, the investigation before and for the purpose
of the issuance of the warrant of arrest, and that thereafter made for
the purpose of either releasing the offender or filing the
corresponding
information against him. This examination corresponds to the
preliminary
investigation conducted by a Justice of the Peace or Municipal Judge
after
the arrest of the defendant in accordance with Acts 194, 1450 and 1627.
To subject the respondent Fiscal to the provisions of this Section is,
as elsewhere emphasized, to prolong an otherwise brief investigation
which
said officer is authorized to conduct under existing laws. Hence, our
persuasion
that Section 11, like Section 13, of Rule 108 was not meant to apply to
the preliminary investigations conducted by the City Fiscal.
It is contended,
however,
that existing legislation authorizing the City Fiscal to conduct
preliminary
investigations should be deemed repealed and supplanted by the new
Rules
of Court. Otherwise, it is said, there would be no uniformity in said
Rules
as ordained by the Constitution. We do not share this view. The power
of
the respondent Fiscal to proceed as he did against the petitioner first
received the imprint of judicial approval in U. S. vs. Wilson, 4 Phil.,
317, wherein it was held: "It is claimed, also that the judgment of
conviction
is erroneous because no preliminary investigation was held, as required
by Sections 12 and 13 of General Orders No. 58. This claim is answered
by reference to Act No. 612 of the Commission, which in Section 2
provides
as follows: 'In cases triable only in the Court of First Instance of
Manila
the defendant shall have a speedy trial, but shall not be entitled as
of
right to a preliminary examination in any case where the prosecuting
attorney,
after due investigation of the facts under section 39 of the act of
which
this is an amendment, shall have presented an Information against him
in
proper form." This was followed by other cases, among them. U. S. vs.
McGovern,
6 Phil., 621; U. S. vs. Ocampo. 18 Phil., 1; U. S. is. Grant and
Kennedy,
18 Phil., 122, and U. S. vs. Carlos, 21 Phil., 553. The reason for the
rule is set out in U. S. vs. Ocampo, supra, as follows: "The
prosecuting
attorney for the city of Manila is presumed to be as competent to
conduct
a preliminary investigation as the average person designated by law to
conduct a 'preliminary examination' under the provisions of General
Orders
No. 58. He is a sworn officer of the Court, and the law imposes upon
him
the duty of making such investigations. For such purpose the
legislature
may designate whom it pleases within the judicial department."
The framers of the
Rules could not have intended the brush aside these lessons of
experience
and to tear down an institution recognized by law and decision and
sanctioned
by years of settled practice. They could not have failed to keep intact
an effective machinery in the administration of criminal justice, as
expeditious
and simple as any reform they have infused into the new Rules. To
sustain
the theory of repeal is to wipe out these advantages. Not only this. If
neither Section 11 nor Section 13 of Rule 108 is applicable to the
preliminary
investigation conducted by the City Fiscal, as we have above shown, and
if existing legislation thereon is to be deemed repealed, then the
matter
would be left uncovered by rule or law. There would thus be a void
crying
for urgent reform. There would be no such void if the old and tried
procedure
is kept in being, untouched by the new Rules. Withal, Our own knowledge
of the history of this portion of the Rules here involved does not
warrant
an interpretation not contemplated when We drafted and deliberated upon
these Rules. And while, perhaps, the language could have been clearer
and
the arrangement made more logical, consideration of expediency and the
avowed purpose of preliminary investigation point to the already
trodden
path hereinabove indicated.
Viewed in the light
of fundamental principles, the right to a preliminary investigation is
statutory, not constitutional. Its oft-repeated purpose is to secure
the
innocent against hasty, malicious, and oppressive prosecutions, and to
protect him from open and public accusation of crime, from the trouble,
expenses and anxiety of a public trial, and also to protect the State
from
useless and expensive prosecutions. The new Rules were drafted in the
light
of the Court's experience with cases where preliminary investigations
had
dragged on for weeks and even months. The Court had intended to remove
this clog upon the judicial machinery and to make a preliminary
investigation
as simple and as speedy as is consistent with the substantial rights of
the accused. The investigation is advisedly called preliminary, to be
followed
by the trial proper. The investigating judge or prosecuting officer
acts
upon probable cause and reasonable belief, not upon proof beyond a
reasonable
doubt. The occasion is not for the full and exhaustive display of the
parties'
evidence; it is for the presentation of such evidence only as may
engender
well-grounded belief that an offense has been committed and that the
accused
is probably guilty thereof. When all this is fulfilled, the accused
will
not be permitted to cast about for fancied reasons to delay the
proceedings;
the time to ask for more is at the trial. The petitioner's case is a
good
example. A preliminary investigation was conducted by the respondent
Fiscal
at which evidence was adduced warranting the filing of an information
against
the petitioner. The information was filed in Court, and the presiding
judge,
upon the strength of the said preliminary investigation and sworn
information,
issued a warrant for the arrest of the petitioner. To ask for the
abstract
of testimony at this stage of the proceedings, ostensibly for no other
purpose than to scrutinize the same evidence which convinced the
respondent
Fiscal and the presiding Judge that there was probable ground to
proceed
against the petitioner, is, in effect, to ask for another preliminary
investigation.
Not this, however, but a trial upon the merits, is what Section 4 of
Rule
108 ordairs.
The petition for
certiorari
and mandamus is hereby dismissed, with the costs to the petitioner. So
ordered.
Avanceña,
C.J.,
Diaz and Horrilleno, JJ., concur.
Separate
Opinion
IMPERIAL,
J.,
Concurring:
I
concur in the result.
I am of the opinion, however, that petitioner's right to examine and
impugn
the evidence taken at the preliminary investigation conducted by
Assistant
Fiscal Gregorio S. Narvasa may be accomplished at the trial of the case
after proper foundation shall have been laid down. |