TITO C. TOLEDO, COMPLAINANT, VS. HON. EMILIO STA. ROMANA, RESPONDENT.

In a sworn
letter-complaint dated September 10, 1978, Tito C. Toledo charged Municipal Judge Emilio
Sta. Romana, Jr. detailed to the Municipal Circuit
Court of Culasi-Sebaste-Pandan, Antique with irregu­larity
in conducting and resolving a preliminary in­vestigation of a criminal
complaint charging frustra­ted homicide against one Ismael
Buaya.^[1]

In his comment,^[2]
the respondent alleged that a criminal
complaint for frustrated homicide was filed in the 5th
Municipal Circuit Court of Culasi-Sebaste­-Pandan,
Antique against Ismael Buaya;
that the crimi­nal complaint was docketed as Criminal Case No. 1352; that Judge
George M. Valente of said circuit court inhibited
himself from conducting the preliminary investigation, hence the Executive
District Judge of Antique designated the respondent, Judge Emilio Sta. Romana, Jr. of the 4th Municipal Circuit Court, Barboza-Lawasan-Tibiao, Antique to conduct the preliminary
investigation.

On August 29, 1978,
the respondent judge conduct­ed the preliminary examination wherein the
complainant Tito C. Toledo, his witnesses, Charlie Davao
and Dr. Santos Alon, Jr. testified for the
prosecution.  The Sub-Station Commander, INP, P/Sgt. Amando R. Cadigal, Jr. acted as prosecutor in the absence of the
fiscal.

The complainant declared that on July 8, 1978, at 12:00 o’clock
noon, while he was diverting part of the canal water at Alojado’s
field, the accused, Ismael Buaya,
who wanted all the water for himself, raised his voice, struck complainant’s
right forehead with a stone, hacked him twice below the shoulder, and then ran
home.  The testimony was substantially
corroborated by complainant’s witness, Charlie Davao.

Dr. Santos Alon, Jr., a resident
physician of Culasi
Emergency Hospital,
testified that the com­plainant sustained only one wound although interrupt­ed;
and that said wound, if treated, would not cause instantaneous death of the
complainant unless infect­ed.  On July 24, 1978, Doctor Santos Alon, Jr. issued a Medical Certificate to complainant
stating:  “Proba­ble Disability
period of Healing Barring Unforseen
Complications:  Not apparent During
Physical examination, the would will heal less 10
days”.

The respondent Judge explained that inasmuch as the wound
inflicted was not mortal, the accused having hacked the complainant only once,
and the accused did not persist in his attack as he immediate­ly ran home
thereafter thus negating intent to kill, said respondent Judge issued an order
dated August 29, 1978 finding that only the crime of slight phy­sical injuries
was committed and directing the Sub-Station Commander to amend the complaint.

On September 7, 1978,
the accused was arraigned and pleaded guilty.^[3]
The respondent Judge rendered his decision finding the accused guilty beyond
reason­able doubt of the crime of slight physical injuries.  Appreciating two (2) mitigating circumstances
of plea of guilty and voluntary surrender, without any aggra­vating
circumstance, the respondent judge imposed on the accused the penalty of public
censure, and ordered him to pay the costs of the action, and to indemnify the
complainant in the amount of P20.00 as damages, without subsidiary
imprisonment.

The respondent Judge erred in ordering the Sub-Station Commander
to file an amended information of slight physical
injuries and trying the case on the merits. 
In the preliminary investigation of a cri­minal offense, the duty of the
municipal circuit judge is to determine whether or not the evidence presented
supports prima facie the allegations of fact contained in the complaint.  He has no legal authority to determine the
character of the crime, and his declaration upon that point can only be re­garded
as an expression of opinion in no wise binding on the trial court.^[4]

In the case of Bais vs. Tugaoen,^[5]
the Supreme Court said:

“It is not disputed that herein respondent after conducting a
prelimi­nary investigation in Criminal Case No. 684, motu
proprio and over the object­ion of the
prosecution changed the designation of the crime charged from Grave Slander to
Slight Slander.  Res­pondent judge
justified his action by insisting that he is possessed with such power and that
the same was done for the speedy
administration of justice.  This Court,
however, is not prepared to sustain this view for Section 13, Rule 110, Rules
of Court is clear that the matter of changing the designation of the
appropriate crime in an information or complaint is vested in the prosecu­tion
and not in the trial judge, and in the instant case, the change may be done by
the prosecution even without leave of court since the defendant or accused has
not as yet entered his plea.  The law
providing that the information or complaint may be amended in substance or form
with­out leave of court any time before the defendant pleads lodges a
discretionary power in the prosecuting officer. 
(Conde vs. CFI, No. 21236,
October 1, 1923, 45 Phil. 173). 
So, the person authorized to amend the complaint or information is only
prosecuting officer and not the trial judge. 
The contention of the respondent judge that he had the right to amend
the designation of the crime in a preliminary investigation which is not the
trial proper is untenable.  The purpose
of preliminary investigation is primarily to determine whether there is
reasonable ground to believe that an offense has been committed and the accused
is probably guilty thereof, so that a warrant of arrest may be issued and the
accused held for trial.  It is not within
the purview of the preliminary investigation to give the judge the right to
amend, motu proprio
the designation of the crime.  When the crime comes within his jurisdiction, he shall try the case, and
only after trial may he convict for a lesser offense.  In a case coming within the original
jurisdiction of the Court of First Instance, he should elevate the case as it is, even if in his opinion,
the crime is less than that charged.”^[6]

The foregoing rulings of this Court leave no doubt that the
respondent judge committed a serious irregularity when he ordered the
Sub-Station Commander to amend the information from frustrated homicide to
slight physical injuries and tried the case on the merits.

WHEREFORE, the respondent Municipal Circuit
Court Judge Emilio Sta. Romana, Jr. is hereby found
guilty of ignorance of the law and is imposed the penalty of a fine equivalent
to three (3) months salary with warning that a repetition of the same or
similar offense will be dealt with more severely.

SO ORDERED.

Teehankee, (Chairman), Makasiar, Guerrero, and
Melencio-Herrera, JJ., concur.

^[1]
Rollo, p. 1.

^[2]
Rollo, pp. 3-a to 12.

^[3]
Rollo, p. 5.

^[4]
People vs. Gorospe, 53 Phil.
960.

^[5]
Adm. Matter No. 1294-MJ, March 23,
1979, 89 SCRA 101.

^[6]
Id., pp. 109-110.