PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. LEOPOLDO PARDILLA, RUDY MANZANO, AND REYNALDO PARDILLA, DEFENDANTS-APPELLANTS.

CONCURRING OPINION

BARREDO, J.:

I concur but inasmuch as the circumstances of this case are
rather unusual, I would like to explain my vote in favor of allowing
accused-appellants Rudy Manzano and Reynaldo Pardilla in G. R. No. L-45266 to be released
on bail because I deem it particularly necessary to elucidate on the propriety
of habeas corpus in G. R. No. L-48450.

As explained in the main opinion penned by our distinguished
colleague, Mr. Justice Concepcion Jr., the
accused-appellants-petitioners above named were convicted of murder by the
trial court, with Rudy Manzano and Reynaldo Pardilla being sentenced to suffer the capital penalty of
death and Leopoldo Pardilla
that of life imprisonment.  The
peculiarity, however, of such judgment lies in that the fiscal labeled the
charge against them in the information as homicide and yet, their conviction
was for murder.  Hence, the first issue
submitted for Our resolution is the legality of such
conviction for an offense allegedly graver than that charged.

The trial court, the Hon. Midpantao Adil presiding, obviously aware of the rule that an accused
cannot be convicted of an offense graver than that charged even if the evidence
proves the graver offense (Sec. 4, Rule 120; Sec. 13, Rule 110), justified its
assailed judgment by holding that the information under which appellants were
tried actually charged the crime of murder in its factual allegations and that
the denomination of the fiscal of the offense as homicide was erroneous, and
since the evidence supports such allegations in the information, the conviction
in question is in accordance with law.

The main opinion rightly holds that such posture of the trial
judge is erroneous.  True it is that what
is decisive in construing an information or criminal
complaint is not the nomenclature of the offense given by the fiscal or
complainant but the material facts alleged in its body.  On that score, however, I agree with the
holding in the main opinion that the facts alleged in the information here
involved do not constitute murder.

The bare allegation in the information to the effect that the
three accused “conspiring, confederating together and mutually helping
each other, armed with a sharp-pointed knife known as pinote
and canes, with intent to kill, did then and there wilfully,
unlawfully and feloniously attack” the deceased cannot be construed, as the trial judge erroneously did, as alleging
either evident premeditation or abuse of superior strength, much less employing
means to weaken the defense.  That two or
three persons have conspired and confederated together and mutually helped one
another in committing an offense does not necessarily imply evident
premeditation.  It is quite clear in the
law that conspiracy is deemed to exist the moment “two or more persons
come to an agreement concerning the commission of a felony and decide to commit
it.” (Art. 8, Revised Penal Code.) On the other hand, “to authorize
the finding of premeditation it must appear not only that the accused had
formed a determination to commit the crime prior to the moment of its execution
but that this determina­tion was the result of meditation, calculation,
reflection or persistent attempt.” (Aquino, Revised Penal Code, Vol. I, pp. 326-327.) Thus, an
allegation of conspiracy, without more, cannot be equated with the qualifying
circumstance of evident premeditation, (People vs. Peralta, 25 SCRA 759; People vs. Mendoza, 91 Phil. 58; People vs. Lesada, 70 Phil. 525; People vs. Pareja,
30 SCRA 694.) specially when such allegation is taken
together with the fact that the fiscal must have had in mind only homicide as
proven by the denomination he specifically attached to the offense in the
information signed by him.  Indeed, in
case of doubt when there is seeming variance between the body of the
information and the naming of the offense by the fiscal, such doubt must be
resolved in favor of the accused.

In this connection, it may be stated that while it is perhaps
best that in cases of murder, the fiscal should allege clearly the qualifying
circumstance he means to charge distinctly from the aggravating circumstances
also mentioned in the information, the present practice whereby the
denomination itself of the charge as murder is already considered as
sufficiently indicating that any qualifying circumstances therein alleged,
unless otherwise indicated, is intended to be so is permissible, as long as at
the arraignment the exact nature of the charge is clearly explained to the
accused.  Thus, a circumstance alleged in
the information, which by its nature is a qualifying one, may be deemed as such
only when the crime is denominated by the fiscal specifically as murder.

Neither can the offense here in question be deemed as qualified
by the allegation that there were three persons (the accused) who attacked the
deceased, which the trial court considered as constituting sufficient
allegation of taking advantage of superior strength.  Superioridad
is not a matter of number.  Even the
additional allegation in the information that the accused were “armed with
a sharp-pointed knife and known as pinote and
canes” be deemed as adequately alleging “taking advantage of superior
strength”, there being no other circumstances alleged leading inexorably
to such conclusion.” It is to be presumed that since the fiscal
denominated the offense as homicide instead of murder, he must have done so
because the facts gathered by him during the preliminary investigation do not
warrant such a conclusion, notwithstanding the number of the accused and the
weapons they were armed with.

Much less may such allegation that the accused were superior in
number and armed, without more, be enough to constitute an allegation that they
“employed means to weaken the defense”, which respondent judge
considered as also a qualifying circumstance. 
It would be unfair to the accused to do so, for the same reasons I have
discussed with reference to superior strength.

In sum, fiscals have the primary responsibility to frame informations with due care, so as to avoid controversy as
to the definite nature of the offense charged therein.  They should always bear in mind the
imperative need for such definiteness, considering the legal complications that
can arise otherwise.  That an accused
person can be convicted only of a lesser offense than that actually committed
by him, only because of ambiguity or error in the framing of the information is
a rank disservice to the interests of justice and public order.  And trial judges ought not to construe any
information on the basis of the evidence but only in the light of its own
factual allegations, specially when such construction
would prejudice the accused.  If
construction has to be indulged in because of any ambiguity in the information,
it is imperative under the unequivocal mandate of the Bill of Rights to
properly inform the accused about such need at the arraignment and not
afterwards, certainly, not in the decision. 
Such is also the demand of fairness and justice.  The accused must not be made to stand trial
and be convicted for an offense of which he was not duly informed before­hand.  No less than the Constitution is definite
that the exact nature of the offense must be made known and understood by the
accused at the arraignment.  This
constitutional rule cannot be changed by the trial judges on the excuse that
they are acting on the basis of the facts subsequently gathered by them from
the evidence.  Judges,
like referees in sports contests, may not change the rules after play has
began, much less at the end of the game. 
Indeed, We have already held that convicting an
accused of an offense graver than that charged is a denial of due process
(People vs. Bumanlag, G. R. No. L-9483, Jan. 30, 1960, People vs. Despavellador, 1 SCRA 205) and
consequently, the court must be deemed to exceed its jurisdiction, if it does
so.

There is another peculiarity in the decision under Our scrutiny,
which I consider of equal, if not more significant importance, if only because
it involves a point of procedure which appears to me to be of first impression.  I refer to the propriety of habeas corpus
as the remedy under the unusual situation in which petitioners-appellants have
found themselves in this case thru no fault of theirs.

As will be noted, We are actually
resolving the case of appellants under two expedientes:  (1) the appeal of appellants from their
conviction (G. R. No. L-45266) and (2) their petition for
habeas corpus (G. R. No. L-48450).  This came about because at first, when the
decision in question was read to them, the accused merely filed an appeal.  It was only after they had apparently
perfected their appeal that their new counsel withdrew the same and filed a
motion for reconsideration, calling the attention of the court to the first
peculiarity I have discussed of its having convicted them of murder under a
charge of homicide.  When His Honor
denied said motion for reconsideration, they came to us with a petition for certiorari
and mandamus (in G. R. No. L-45149); which was,
however, denied on the ground that the issue could be resolved in the course of
the appeal itself, it being necessarily involved therein.

Again, instead of asking for the reconsideration of that
dismissal, appellants filed the instant petition for habeas corpus,
contending that they are being denied their right to liberty on bail.  And so, the procedural question that
confronts Us is, is not Our denial of that petition
for certiorari and mandamus in G.R. No.
L-45149 a bar to this petition for habeas corpus?  Besides, is habeas corpus the
appropriate remedy in the premises?

To my mind, the first thing to consider in answering these
questions is that the error of the trial court I have explained above of
convicting the appellants of murder instead of homicide only is not just an
error of judgment but one of excess of jurisdiction.  For a trial court to convict an accused of
homicide where he is charged with murder because of erroneous appreciation of
the evidence or of a misapplication of the pertinent provisions of the Revised
Penal Code would be an error of judgment only because he would be acting within
his powers, homicide being an offense included in that which is charged.  In a case, however, where the offense charged
is homicide and nothing in the allegations in the information can be clearly
construed as a qualifying circumstance, such as to make the accused aware at
the arraignment that upon proof thereof it could be considered as such against
him, but, in the mind of the judge, the evidence shows the existence of such
qualifying circumstance, like the situation in the case at bar, there is the
explicit injunction of Section 4 of Rule 120 to the effect that in the face of
such variance between the allegation in the information and the proof, the
“defendant shall be convicted (only) of the offense charged included in
that which is proved” and never of the offense proved.  (U.S.
vs. Guzman, 8 Phil. 21.)

In other words, Section 4 of Rule 20 delimits the authority and
power of the court in the situations therein contemplated, such that a court
would be committing an act in excess of jurisdiction rather than a mere error
of judgment the moment it convicts an accused for an offense graver than that
with which he is charged.  Contrary to
the view maintained by the Office of the Solicitor General thru then Acting
Solicitor General Vicente Mendoza, Assistant Solicitor General Jose F. Racela and Solicitor Norberto P. Eduardo, I hold that the
matter involved here is one of jurisdiction since, as I have already stated
earlier, it amounts to a denial of due process.

But even in such an eventuality, the error may not be corrected
by certiorari, if it can adequately be taken up in the appeal.  Certiorari, like the other special
civil actions of prohibition and mandamus is conditioned on the absence
of “appeal or any other plain, speedy and adequate remedy in the ordinary
course of law.” (Sections 1, 2 and 3, Rule 65.) Thus, it is only when such
appeal or other remedy is inadequate to avoid irreparable injury or obvious
injustice that a special civil action may be resorted to even where want or excess
of jurisdiction is alleged.

In the instant case, when appellants came to this Court with
their petition for certiorari and mandamus in G.R.
No. L-45129, the Court acted pursuant to the foregoing rule.  However, in ruling in Our
resolution of March 13, 1979
that “the question raised (is) involved in the automatic review”, We
simply meant that the question being raised by petitioners need not be the
subject of a separate suit or proceeding. 
This did not necessarily mean that the matter may not be taken up as a
preliminary issue in the appeal proceedings, as for instance, in a motion for
bail based, precisely on the ground that since the accused should have been
convicted only of homicide, and not of murder, and could not, under the
circumstances found by the trial court, have been sentenced to suffer a penalty
of more than reclusion temporal under Article 249 of the Revised Penal
Code, they are entitled to bail as a matter of right.  In fact, such a motion could be filed here
even after the trial court has denied a similar one filed with it.

Thus, as stated in the main opinion, disregarding technicalities
of procedure, and so that herein accused appellants may enjoy immediately the
right which the trial court has erroneously denied them, We
have treated the petition for habeas corpus in G. R. No. L-48450 as the
motion for bail I have referred to above.

I must add tho‘ that, in my view, such
petition for habeas corpus was not out of place.  In a sense, after the trial court denied
appellants’ petition for bail, their continued detention became illegal.  I reiterate, appellants have been denied due
process; their constitutional right to be properly informed of the charge
against them has been violated.  If for this alone, they are entitled to a speedy remedy by which
their right to be freed on bail, accused as they are of a bailable
offense, could be recognized and enforced.  Pursuant to Section 1 of Rule 102, “the
writ of habeas corpus shall extend to all cases of illegal confinement
or detention by which any person is deprived of his liberty.” In Dacuyan vs. Ramos, 85 SCRA 487,
Our distinguished present Chief Justice, the Honorable Enrique M. Fernando,
ruled that “habeas corpus lies in case of loss of jurisdiction by a
tribunal due to a denial of constitutional right”, citing the 1924 case of
Conde vs. Rivera. 
Indeed, in actual practice, erroneous denial of bail in cases involving
capital offenses has always been brought to this Court via habeas corpus
petitions and We have always entertained them as
such.  Hence, I cannot see any reason why
under the peculiar circumstances of the case of herein appellants, habeas
corpus would not lie, the denial of the petition
for certiorari in G.R. No. L-45149
notwithstanding, specially because said denial was not
based on the merits but on a procedural ground. 
Besides, the conviction of the appellants of a crime graver than that
they were charged with is in more than a sense similar to the imposition of a
penalty that is excessive, where the remedy is habeas corpus.

Of course, the release on bail of the appellants has nothing to
do with the issue of their guilt of the crime for which they have been
tried.  All that We
are deciding here is that in any event, they cannot be convicted of murder but
only of homicide.  This ruling does not
even close the door to their acquittal if We should
find the evidence insufficient to prove their guilt beyond reasonable doubt.