G.R. No. L-28246. September 28, 1968

ROGELIO PUREZA, IGMIDIO ABUTAN, CONRADO NATI, REYNALDO PUREZA, ROGELIO REYES, PEDRITO RAMOS, VENERANDO ABUEG, JOHN DOE, PETER DOE, AND RICHARD DOE, PETITIONERS, VS. ALBERTO AVER…

Decisions / Signed Resolutions September 28, 1968 CONCEPCION, C.J.:
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CONCEPCION, C.J.:


This is an original
action for certiorari and injunction with preliminary injunction.  Upon its filing, this Court issued an order
restraining the respondents, until further orders, from perform­ing the acts
complained of in the petition.

It appears that, on September
30, 1967
, Abelardo Victor, Santos Aprao and
Leonardo Horario were shot dead, whereas Domingo Diaz
sustained serious bullet wounds inflicted by other persons, in the Barrio of Ligtong,
Municipality of Rosario, Province of Cavite.  This
event led to the institution of two (2) judicial proceedings, one in the
Municipal Court of
Rosario,
presided
over by Municipal
Judge, Augusto C. Santamaria,
and the other in the Court of
First
Instance of Cavite,
presided over by Judge Alberto V. Averia.

In the first, a complaint
for triple murder with frustrated murder, was filed, on October 6, 1967, by
Corporal Antonio Credo of the Philippine Constabulary, against Leonardo Ibias, Edo Ibias and Norberto Quinto – hereinafter referred to as the accused ? based upon the affidavits of
Rogelio Nati and Francisco Echenique,
[1] pointing to said accused as the guilty
parties.  Thereupon, Judge Santamaria began to conduct the corresponding preliminary
exami­nation, by taking the testimony of said witnesses.  When the preli­minary examination was resumed on
October 10, 1967, Manuel M. Angeles, Chief of Police of
Rosario, informed the Court that, ac­cording to his own investigation, the
culprits were not the accused, but other persons.  Upon his motion and over the objection of Ac­ting
Assistant Fiscal Felix B. Mintu, who invoked his
right to con­trol the prosecution, the continuation of the preliminary
examination was postponed to
October 11, 1967.

Upon the other hand, the
widows of the deceased and the wife of Domingo Diaz,
[2] had – at about the same time – filed with
the Court of First Instance, three (3) separate complaints for murder and one
for frustrated murder
[3] against Rogelio Pureza,
Reynaldo Pureza, Igmidio Abutan, Conrado Nati, Pedrito Ramos, Rogelio
Reyes, John Doe, Peter Doe and Richard Doe, which complaints were docketed as
Criminal cases Nos. 600, 601, 602 and 603 of said Court.  Likewise included therein as defendants
were:  (1) Vicente Abueg,
in the complaint about the assassination of Abelardo
Victor; (2) Venerando Abueg,
in the complaints for the murder of Leonardo Horario
and the frustrated murder of Domingo Diaz; and (3) Reynaldo Abueg,
in the complaint for the killing of Santos Aprao,
which did not include, however, Reynaldo Pureza and Pedrito Ramos.  On
October 9,
1967
, Judge Averia issued an order directing the City Judge of Trece Martires, Ernesto G. Pepa, to conduct the corresponding preliminary
investigation in said cases Nos. 600 to 603. 
Thereupon, Judge Pepa, after, seemingly,
conducting a pre­liminary examination ex parte,
issued warrants for the arrest of Rogelio Pureza, Igmidio Abutan, Rogelio Reyes, Conrado Nati, Reynaldo Pureza, Pedrito Ramos and Venerando Abueg – herein­after
referred to as petitioners – in all four cases.

Soon thereafter, the
office of the Provincial Fiscal of Cavite,
of which Bienvenido Reyes was the
officer-in-charge, acting through the aformentioned
Fiscal Mintu, issued a subpoena, dated October 13,
1967, and addressed to the accused – Leonardo Ibias,
Edo Ibias and Norberto Quinto
– commanding them to ap­pear before said Office, on October 16, 1967, in
connection with the criminal complaint filed with the Municipal Court of
Rosario.  On or about October 14, 1967, said accused, in
turn, filed with the Court of First Instance of Cavite
Civil Case No. Tm-288 thereof, against Fiscals Reyes and Mintu,
to restrain them from proceeding with the investigation of the offenses charged
in said criminal complaint.  In this
civil case, Judge Averia issued, on October 16, 1967, an order
restraining said Fiscals from proceeding with said investigation, until further
orders.

Presently, or on November 7, 1967, petitioners commenced, in the
Supreme Court, the present action for certiorari and in­junction, against Judge
Averia, Judge Pepa, the
Municipal Mayor of Cavite, the aforesaid widows of
the deceased, and Mrs. Diaz, to prevent the enforcement of the said warrants of
arrest, as well as to nullify the same and the proceedings leading to the
issuance thereof, upon the theory that the Municipal Court of Rosario has a
better right than the City Court of Trece Martires to conduct the preliminary investigation of the
crimes in question and that, at any rate, said warrants of arrest are null and
void, the proceedings before Judge Pepa having been
held ex parte, without notice to
petitioners herein.

The petition in the case at bar is devoid of merit.  Although the proceedings in the Municipal
Court of Rosario and those held in the City Court of Trece
Martires, seek to determine the exis­tence of
probable cause against those who, on September 30, 1967, had allegedly killed Abelardo Victor, Santos Aprao and
Leonardo Horario, and committed the crime of
frustrated murder against Domingo Diaz, the persons charged in one court are different
from those accused in the other.  We are
not aware of and our attention has not been called to any legal provision, rule
or decision that would bar the Court of First Instance of Cavite
or the City Court of Trece Martires
from proceeding with the investigation of the charges preferred against
petitioners herein, merely because the crimes imputed to them were,
according to the complaint filed with the Municipal Court of Rosario, committed
by other persons.

Moreover, said crimes are
within the original exclusive juris­diction of said Court of First
Instance, which is not and can not be deprived of such jurisdiction
in consequence of
the proceedings be­fore
the
Municipal Court of Rosario.  Then, also,
the reference of said Criminal Cases Nos. 600 to 603 by the Court of First
Instance
of Cavite to the City Court of Trece Martires is expressly sanc­tioned
in Section 13, in relation to
Section 2, of Rule 112 of the Rules of Court, which provide that:

“SEC. 13.  Preliminary
examination and investigation by the judge of the Court of First Instance
.  – Upon complaint filed directly with the
Court of First Instance, without previous preliminary examination and
investigation conducted by the fiscal, the judge thereof shall either refer the complaint to the justice of the peace
referred to in the second paragraph of section 2 hereof for preliminary
examination and investigation, or himself conduct both preliminary examination
and investigation simultaneously in the manner provided in the preceding
sections, and
should he find reasonable ground to believe that the
defendant has committed the offense charged, he shall issue
a warrant for his arrest, and thereafter refer
the case to the fiscal for the filing of the cor­responding information.”

“SEC. 2.  Officers
authorized to conduct preliminary examination
.  – Every justice of the peace, municipal
judge, city or provincial fiscal, shall have authority to conduct preliminary
examination or investigation in
accordance with these rules of all of­fenses alleged to have been committed
within his municipality, city or province, cognizable by the Court of First
Instance.

“The municipal judge of the provincial capi­tal or of the
municipality in which the provincial jail is located, when directed by an order
of the Court of First Instance, shall have authority to conduct such
preliminary examination or investigation of any offense committed anywhere
within his province at the expense of the municipality wherein the same was
committed.”

The case of Bacar v. Tordesillas4, relied upon by the peti­tioners, is not in
point.  That case involved a complaint
for adul
tery, filed with the justice of the peace court of San Jose,
Antique – where the offense had allegedly been committed – and dismissed for insufficiency of the
evidence introduced at the preliminary examination.  Soon, thereafter, the same complaint was
filed with the justice of the peace of Sibalon,
whose authority was assailed for lack of venue. 
The objection was overruled
by said justice of the peace, upon the ground that, the Court of First
Ins­tance
had authorized him to contract the corresponding preliminary
investigation, pursuant to section 211 of the Administrative Code of 1917.  This provision conferred upon the Judge of
First Instance the power to designate the justice of the peace of one
municipality to act as justice of the peace of another municipality, when the latter is unable to perform the regular duties of his office.  Inasmuch as no such disability
existed, the Supreme Court declared that
the justice of
the peace of Sibalon had no
jurisdiction to conduct said preliminary investigation.

 Obviously, this precedent is not applicable to
the
case at bar, the complaints
in
Cases Nos. 600 to 603 having been filed
with the court of first
instance, unlike the second complaint in the Bacar case which was filed with the justice
of the peace
court. 
Besides,
the issue in the
Bacar case was whether the
justice of the peace of Sibalon could validly be authorized to act as justice of the peace of San Jose. 
There
is no such issue in the case at bar.

As regards the warrants
of arrest issued by Judge Pepa,
peti­tioners impugn the legality thereof for the reason that the proceed­ings before said Judge were held ex parte.  In this connection, it should be noted that, pursuant to the provisions above quoted, when a criminal complaint is filed directly with the court
of first instance,
as the
complaints in said Cases Nos. 600 to 603
were, said court may either
conduct the preliminary investigation or refer the com­plaint to the proper
municipal or city court for preliminary
exami­nation and
investigation.  If the court of first
instance chooses the first alternative, it must “conduct both the
preliminary
examination and the preliminary investigation simultaneously.”
If the
second alternative is taken, the municipal court or the city court to
which the complaint has been referred, shall act in conformity with
sec­tions 5, 6, and 10 of said Rule 112, reading:

“SEC. 5.  Duty of
judge, fiscal or other officer conducting preliminary examination
.  – The justice of the peace, the municipal
judge, the fiscal or the mu­nicipal
mayor who conducts the preliminary examina­tion
as provided in these rules must take under oath, either in the presence or
absence
of the accused, the testimony of the complainant and his
witnesses.  The testimony of the
complainant and his witnesses shall be reduced to writing and signed by
them.”

“SEC. 6.  Warrant of
arrest, when issued
.  – If the judge
be satisfied from the preliminary examina­tion conducted by him or by the investigating officer that the offense complained
of has been committed and that there is reasonable ground to believe that the
accused has committed it, he must issue a war­rant or order for his
arrest.”

“SEC. 10.  Right of accused
to preliminary inves­tigation after arrest
. 
– After the arrest of the accused and his delivery to the court, he
shall be informed of the complaint or information filed against him.  He shall be given access to the testimony and
evidence presented against him at the preliminary examination, and, if he
desires to testify or to present witnesses or evidence in his favor, he shall
be allowed to do so.  The testimony of
the witnesses presented at this in­vestigation need not be reduced to writing
but that of the accused shall be taken in writing and subscribed by him.

“In cases triable in the justice of
the peace or municipal courts, the accused shall not be entitled as a matter of
right to a preliminary investigation in ac­cordance with this section.”

It is worthy of notice that the preliminary examination by the justice of the peace or municipal judge may
be conducted “either in the presence or absence of the
accused;” that
“if the judge is
satisfied from the preliminary examination conducted by him” – “in
the presence or absence of the accused” – “that the offense
com­plained of has been committed and that there is reasonable ground to
believe that the accused has committed it, he must issue a war­rant or
order for his arrest;” and that, “after the arrest of the
accused, and his delivery to the court,” the preliminary investiga­tion
shall take place as provided in section 10. 
In other words, the accused need not be present at the
preliminary examination conducted by the justice of the peace or municipal judge,
previous to the is­suance of the warrant of arrest, so that the validity
thereof is not and cannot be affected by
the fact that said preliminary
examination may have taken
place ex parte.

The case of Marcos v.
Cruz
5, cited by petitioners does not
bear
out their alleged right to be present at the preliminary exami
nation conducted by Judge Pepa.  Said case referred to an inform­ation filed
directly with the court of first instance, which, after conducting the summary investigation prescribed in sections
13 and 14 of General Orders No. 58, as amended, issued the corres­ponding
warrant of arrest.  Upon their
apprehension and subsequent release on bail, the accused moved that a
preliminary investigation be conducted in their presence.  It was held that the motion had been properly
denied by the court of first instance, the same having already held said
preliminary investigation.

In the case before us no
such preliminary investigation has,
as yet, been conducted by Judge Pepa, who is a city judge.  He has merely
held a preliminary examination.  In the
Marcos case, the summary investigation
by the court of first instance, constituted both a preliminary
examination and a preliminary investigation con
ducted simultaneously.

WHEREFORE, the petition in the present case should be
as it is hereby dismissed, the writs prayed for are denied, and the restraining
order issued by this Court is, accordingly,
set aside, with costs
against petitioners herein.

IT IS SO ORDERED.

Reyes, J.B.L., Makalintal, Sanchez,
Castro, Angeles, Fernando, and
Capistrano, JJ., concur.

Dizon and
Zaldivar, JJ., did
not take part.


[1]
Dated October 2 and 3, 1967, respectively.

[2]
Priscilla Quinto Vda. de
Victor, Aurora Morales Vda. de Horario,
Anicia Molina Vda. de Aprao and Remedios M. Diaz.

[3]
Dated October 5, 1967.

4
39 Phil. 187.

5
68 Phil. 96.