G.R. No. L-6481. May 17, 1954

This is an appeal from a judgment of the Court of First Instance of
Pampanga in an action of mandamus, ordering the provincial fiscal to
include Emiliano Manalo and Porfirio Dizon as accused in Criminal Case
No. 1453 of said court.

The record discloses that in the trial of Criminal Case No. 1273,
People of the Philippines vs. Atilano Gopez, et al., for the crime of
kidnapping with murder (against one Felix Lampa), the provincial fiscal
introduced said Porfirio Dizon and Emiliano Manalo as witnesses for the
State. Porfirio Dizon testified that in the morning of November 23,
1950, the accused Atilano Gopez, Melchor Esguerra, and Benjamin
Tolentino went to his house in Dolores, Bacolor, Pampanga; that the
three accused carried firearms; that he was asked by them to act as
guard for a certain sugar plantation; that while he was on guard, a
certain person passed by and Esguerra whistled at him, and the latter
approached and talked with Esguerra; that Esguerra told to him that the
person (who was Felix Lampa) was brought by them to the backyard of one
Iscong Lacsamana; and that after that Dizon left the three in said
place.

Emiliano Manalo testified that in the afternoon of November 23,
1950, while he was going home, he saw Benjamin Tolentino, Melchor
Esguerra, and Felix Lampa near the house of Francisco Lacsamana; that
he asked Tolentino why Felix Lampa was with them, and Tolentino
answered that Jesus Guiao and Eulogio Serrano wanted to talk with him,
that he went home and changed his working clothes, and after a while
Eulogio Serrano, Jesus Guiao, Atilano Gopez, and Melchor Esguerra
passed by his house, and Atilano Gopez called him, telling him that the
captain wanted to see him; that the captain was Eulogio Serrano, who
asked him to bring his gun along with him; that he went with them, and
in the house of Iscong Lacsamana they saw Benjamin Tolentino and Felix
Lampa; that Serrano charged Lampa with trying to convince Guiao to
testify on the Maliwalu incident, and upon Guiao ratifying this charge,
Serrano ordered Atilano Gopez to tie Felix Lampa, and Atilano Gopez, in
turn, asked Manalo to do so; that Serrano, Gopez, Guiao, Tolentino,
Esguerra, and Manalo brought Lampa to a place called alfareza,
reaching it between eight and nine o’clock in the evening; that upon
reaching the place, they were ordered to dig a hole, and the three of
them did so, including Manalo; that thereafter Felix Lampa was brought
to the hole, and Serrano ordered Gopez to shoot him, which he did,
notwithstanding the protestation of innocence on the part of Lampa.
(See Annexes A and B attached to Petition.)

In view of the testimonies given by the said Porfirio Dizon and
Emiliano Manalo in said Criminal Case No. 1273, the lower court ordered
a reinvestigation of the case and suspended its trial, with a view to
including as accused all persons who might be guilty of the crime.
After the reinvestigation an amended information was filed, and two new
accused were included, namely, Jesus Guiao and Eulogio Serrano. But
Porfirio Dizon and Emiliano Manalo were not included. In view of the
failure of the provincial fiscal to include these two persons, a motion
for contempt was filed against the fiscal, but this motion was
dismissed on the ground that if the fiscal committed an error of
judgment, or even abuse of discretion, the recourse against him was not
an action for contempt but one for mandamus. Due to this order of the
court, the action for mandamus was filed by Jesus Guiao to compel the
fiscal to include Porfirio Dizon and Emiliano Manalo as accused in his
information, in Criminal Case No. 1453.

In his answer to the petition for mandamus, the provincial fiscal
admits the substance of the testimonies of Porfirio Dizon and Emiliano
Manalo as above indicated. He alleges that after the reinvestigation
ordered by the court had been conducted, he included Eulogio Serrano
and Jesus Guiao in the amended information, but “did not include
Porfirio Dizon and Emiliano Manalo as co-accused in said Criminal Case
No. 1453 because they are indispensable witnesses for the prosecution
aside from the fact that they are the least guilty.” No trial was held
and the Court of First Instance decided the petition for mandamus on
the pleadings.

It will be noted that the transcript of the testimonies of Porfirio
Dizon and Emiliano Manalo in Criminal Case No. 1273 is attached to the
petition for mandamus as Annexes A and B. On the basis of the pleadings
the lower court held that in accordance with section 1 of Rule 106 of
the Rules of Court, it is the duty of the fiscal to include all the
persons who are responsible for the crime, and that if any or some of
them are the least guilty, the determination of this fact rests in the
sound discretion of the trial court and not upon the fiscal, citing the
case of Monroe vs. Sanchez, G. R. No. L-2286 promulgated June 17, 1948.
It, therefore, granted the petition.

The question now before this Court is whether a fiscal may be
compelled by mandamus to include in an information persons who appear
to be responsible for the crime charged therein, but whom the fiscal
believes to be indispensable witnesses for the State. The provision of
Section 1 of Rule 106 of the Rules of Court expressly states that
criminal actions shall be brought “against all persons who appear to be
responsible therefor.” The original provisions contained in General
Orders No. 58 provided that all prosecutions shall be “against the
persons charged with the offenses.” The change in the law was
introduced in Act No. 2709, two of whose provisions were as follows:

SECTION 1. Every prosecution for a crime shall be in
the name of the United States against all persons who appear to be
responsible therefor, except in the cases determined in section two of
this Act.

SEC. 2. When two or more persons are charged with
the commission of a certain crime, the competent court at any time
before they have entered upon their defense, may direct any of them to
be discharged, that he may be a witness for the Government when in the
judgment of the Court:

(a) There is absolute necessity for the testimony of the accused whose discharge is requested;

(b)
There is no other direct evidence available for the proper prosecution
of the crime committed, except the testimony of the accused;

(c) The testimony of said accused can be substantially corroborated in its material points;

(d) Said accused does not appear to be the most guilty;

(e)
Said accused has not at any time been convicted of the crime of perjury
or false testimony or of any other crime involving moral turpitude.

The pertinent provision of section 1 of Rule 106 is taken from section 1, while section 9 of Rule 115 from section 2.

A perusal of Act 2709 discloses the legislative intent to require
that all persons who appear to be responsible for an offense should be
included in the information. The use of the word “shall” and of the
phrase “except in the cases determined” shows that section 1 is
mandatory, not directory merely. The mandatory nature of the section is
demanded by a sound public policy, which would deprive prosecuting
officers of the use of their discretion, in order that they may not
shield or favor friends, proteges, or favorites. The law makes it a
legal duty for them to file the charges against whomsoever the evidence
may show to be responsible for an offense. This does not mean, however,
that prosecuting officers have no discretion at all; their discretion
lies in determining whether the evidence submitted is sufficient to
justify a reasonable belief that a person has committed an offense.
What the rule demands is that all persons who appear responsible
shall be charged in the information, which implies that those against
whom no sufficient evidence of guilt exists are not required to be
included.

The other aim of Act 2709 is a complement of the mandatory
provision: to regulate the manner in which any of the accused may be
excluded in order that he may be utilized as a State witness, and to
rest the manner of the enforcement of the regulations in the sound
discretion of the courts. (U. S. vs. Abanzado, 37 Phil., 658.)

In short, Act 2709 has laid down four principles, namely, (1) that
all persons who appear responsible for an offense must be included in
the information charging that offense; (2) that even if it is necessary
to utilize any of the above persons as State witness, he shall
nevertheless be included as accused; (3) that fiscals have no
discretion in excluding from prosecution persons who appear responsible
for a crime, but that if it becomes necessary to do so, the procedure
provided in the law must be followed; and (4) that the exclusion of
accused from prosecution, in order that they may be used as State
witnesses, is lodged in the sound discretion of the competent court,
not in that of the prosecuting officer.

In the case at bar, there is no question that Porfirio Dizon and
Emiliano Manalo participated either as principals or accomplices in the
kidnapping arid murder of Felix Lampa, and that the only reason why the
fiscal excluded them from the amended information is because he thought
it more convenient, or perhaps more expeditious, to do so. When the
fiscal chose to ignore his legal duty to include the said Porfirio
Dizon and Emiliano Manalo as accused in the criminal case, and to
follow the procedure outlined in the rules by which said persons may be
discharged in order that they may be utilized as witnesses for the
prosecution, it became proper and necessary for the competent court to
require him to comply therewith.

One minor point needs to be considered, and that is the point raised
in the brief of the Solicitor General that the petitioner-appellee
Jesus Guiao has no right to institute the action of mandamus, because
he has no clear right to the performance of the alleged legal duty by
the provincial fiscal. We find no merit in this contention. Every
person accused of a crime has a positive interest in the inclusion of
all his co-conspirators; a right to demand that all of them be accorded
equal treatment and be made to suffer the penalties imposed by law.
Without deciding the question as to whether or not any private citizen
may demand compliance by the fiscal with the provisions of section 1 of
Rule 106, requiring him to file the information “against all persons
who appear to be responsible for an offense,” we hold that the other
accused have an interest in the inclusion of their two other companions
in the commission of the crime, because these are jointly and severally
liable with them for indemnities that may be imposed upon them for the
offense they may have committed together.

The judgment appealed from is hereby affirmed, without costs.

Paras, C. J., Pablo, Bengzon, Montemayor, Reyes, Jugo,and Bautista Angelo, JJ., concur.