WENCESLAO SUMAPIG NICKNAMED GOGOY, PONCIANO PANOY, FAUSTA BALTES AND MARCIANO SECO, COMPLAINANTS, VS. MACARIO ESMAS, JR. NICKNAMED DODONG (ASSISTANT FISCAL OF MANILA), RESPONDENT.

This is a disbarment case against Macario
Esmas, Jr., an incumbent assistant fiscal of Manila
since 1972, on the grounds of gross immorality, malpractice, and gross
misconduct in office.

Grossly immoral conduct. – In a
verified complaint filed on September 2, 1975, supported by his affidavit of
August 18, 1975, Wenceslao Sumapig,
a former coun­cilor of Villaba, Leyte,
charged Esmas (married to Salud
Veloso) with gross immorality for having cohabited in Quezon
City with his daughter, Violeta, a virgin of good reputation.

As a result of the cohabitation, Violeta
gave birth on June 1, 1975
to a boy who was named Rhett Esmas. The cohabitation
was admitted by Esmas in his handwritten letter to Sumapig.

Before Fiscal Esmas could answer the charge, com­plainant Sumapig in a letter to this Court dated Octo­ber
1, 1975 withdrew the
charge. He divulged that the instigator of the charge was lawyer Narciso Marilao, Jr., who
allegedly suspected Esmas of having master­minded the
disbarment charge against Marilao filed by Ricardo Rubillos, a first cousin of Esmas
(Administra­tive Case No. 1452, dismissed in this Court’s resolution of September 8, 1975).

Fiscal Esmas, with office at Room 311, City Hall, Manila, in his answer of October
8, 1975 attached thereto a copy of Sumapig’s
withdrawal and also Violeta’s affi­davit of October 2, 1975. Violeta,
24, single, a medical technologist, categorically alleged that she was not
consulted before the filing of the immorality charge, that it has no
factual basis and that she would not testify against Fiscal Esmas.

In view of complainant’s change of mind and the attitude of Violeta, this Court
in its resolution of October 17, 1975, dismissed the charge.

Malpractice and gross
misconduct charge. – In the
same complaint of August 18, 1975, which was partly withdrawn by Sumapig, three other complainants named Ponciano Panoy, Fausta Baltes and Marciano Seco charged Fiscal Esmas with having collected five hundred pesos (P500) from Dominador De la Cruz.

It was alleged that Esmas volunteered to handle De la Cruz’s case regarding
encroachment on his parcel of land in San Isidro, Leyte although Esmas was
a fis­cal and was prohibited
from practising law. Esmas
allegedly gave complainant Panoy fifty pesos as ten
percent commission for having given the case of De la Cruz to Esmas.

Panoy in his affidavit attached to the complaint
alleged that De la Cruz even spent around one hundred pesos for the food and
drinks of Esmas and his friends. Esmas
filed the case in the San Isidro court but asked lawyer Antonio Villamor to appear in the case.

Fiscal Esmas in his answer alleged that sometime in 1972, when he
was in his hometown, Villaba, for a vacation, he was
consulted by De la Cruz about an eject­ment case
which he wanted to file in the municipal court of San Isidro. Esmas referred the case to lawyer Villamor who filed the case and prosecuted it
successfully. He said again that lawyer Marilao
engineered the disbarment case against him because Marilao
suspected Esmas of having instigated the filing by Rubillos of the disbarment case against Marilao.

The charge of malpractice
and gross misconduct against Esmas was referred to
the Solicitor General for investigation, report and recommendation.

The case was heard on August 3,
1977. Complainants’
witnesses, Celestino Velasco and Marciano
Seco, testi­fied that they heard Esmas
demanding P500 from Domina­dor De la Cruz for
handling De la Cruz’s case and that in order to raise the initial payment of
P250, De la Cruz borrowed money from several persons. Esmas
did not present any evidence.

The lawyer who appeared
as counsel for the com­plainants in the hearings at the Solicitor General’s
office was Marilao, already mentioned as having been
suspected by Esmas of having caused the filing of the
instant charges against him.

Marilao migrated to the United States even before he could formally rest the case.
During the hearing on October 29, 1981, the Investigator, Solicitor
Cres­cencia A. Caparroso-Salva,
disclosed that she received a handwritten letter from Panoy
dated February 25, 1977 stating that he was no longer interested in the case
and that he was withdrawing from the case. He was advised to file a formal
motion of withdrawal but he did not do so.

We disagree with the Solicitor General’s conclusion that it is highly improbable for an
assistant fiscal of Manila to openly engage in private practice, knowing fully well that he is
precluded from doing so. The preponderance of evidence sustains the charge of
malpractice and gross misconduct.

Although Esmas did not actively practise law and did
not appear for De la Cruz and his name never appeared in any pleading, yet he
took advantage of the victim’s ignorance to extract the amount of P500 from him on the pretext that he would handle
the ejectment case. Esmas
deserves to be censured for his misconduct.

WHEREFORE, respondent Esmas is
severely censured for having collected
attorney’s fees from De la Cruz while he was serving as assistant fiscal of
Manila.

SO ORDERED.

Makasiar, (Chairman), Guerrero, and Escolin, JJ., concur.

Gutierrez, Jr., J., was designated to sit in the Second Division.

Abad Santos, J., no part.

Concepcion, Jr. and De Castro, JJ., on leave.