DAMIAN OGBURN, NEPHERONIA OGBURN, IGNACIO TAMAYO, JR. AND ROBERT VOGEL, PETITIONERS, VS. THE COURT OF APPEALS AND THE PEOPLE OF THE PHILIPPINES, RESPONDENTS.

This is a petition for review on certiorari of the
decision of the Court of Appeals dated September 24, 1991 in CA-G.R. No.
11107-CR entitled, “Damian Ogburn, et al. vs. Hon. Judge RTC-Dumaguete City,
Branch 39, et al.” which affirmed the decision of the Regional Trial Court
remanding to the Municipal Trial Court the case of malicious mischief against
the petitioners for trial on the merits.

In July 1983, Damian Ogburn, an Australian citizen, was hired by
Moises L. Sycip as Senior Prawn Consultant of the Sycip Plantation, Inc. (SPI.
for short), a prawn saltfarm in Manjuyod, Negros Oriental.

Upon recommendation of Ogburn, Ahab Balbon was hired by SPI to be
his understudy.

Robert Vogel, a Canadian citizen, was under contract with SPI to
install water pumps. Ignacio Tamayo was
his helper.

During the later part of February, Ogburn, his wife Nepheronia,
Vogel, Tamayo and Ogburn’s cook, Ma. Theresa Garcia, were all billeted in the
SPI guesthouse.

In the evening of February 26, 1988, after having done the day’s
work. Ogburn and Vogel allegedly
decided to have prawns for dinner. Ogburn allegedly took four (4) of the six giant prawns in an aquarium in
the guesthouse and had them cooked for his and Vogel’s dinner.

The next morning, February 27, 1988, Santiago Askin reported to
Ahab Balbon, what happened to the four (4) prawns which were allegedly the
subject of Balbon’s experiment.

Based on the sworn statements executed by Balbon and Askin, a
criminal complaint for qualified theft was filed on March 2, 1988, in the Second
Municipal Circuit Trial Court of Manjuyod, Negros Oriental by P/Lt. Cesar
Balderas, Station Commander of Manjuyod, Negros Oriental, against the Ogburns,
Vogel and Tamayo. It was docketed as
Criminal Case No. M-19 (88). The
information charged the petitioners with having illegally taken four (4) pieces
of giant prawns, grown for experimental purposes, thereby causing damage to the
owner. SPI, in the sum of P400.000.00
representing the value of the prawns and the estimated loss due to the 3 to 4
years setback allegedly suffered by the prawn project.

The petitioners submitted their counter-affidavits to the
investigating Judge, MCTC Judge Aurelio J.V. Lomeda.

On May 23, 1988, Judge Lomeda, after conducting a preliminary
examination in the form of searching questions and answers, found probable
cause to believe that the crime charged was committed by the petitioners and
that there was need to place them in custody. So he issued warrants of arrest and fixed bail of P30,000.00 for each of
them.

On August 1, 1988, Judge Lomeda issued an order terminating the
preliminary investigation and submitting the case for resolution.

On November 23, 1988, the Ogburns posted cash bail bonds
amounting to P60,000.00 for their provisional liberty.

On October 5, 1989, or more than a year since the examination was
ended with no resolution yet in sight, Ogburn and Vogel filed with the
Ombudsman a complaint against Judge Lomeda and P/Lt. Cesar Baldero and Moises
Sycip (alleged manager of SPI) for dereliction of duty, violation of the
Anti-Graft and Corrupt Practices Act, gross incompetence and gross ignorance of
the law.

Spurred to action by the petitioners’ recourse to the Ombudsman,
Judge Lomeda issued on October 9, 1989, a resolution finding no sufficient
ground to hold them for qualified theft, but he found probable cause for
malicious mischief. Nevertheless, in
view of the charge filed by the petitioners against him in the Office of the
Ombudsman, Judge Lomeda inhibited himself from the case. Judge Romeo Anasario was designated to take
over.

On October 31, 1989, the petitioners filed a motion for
reinvestigation with the Provincial Prosecutor of Negros Oriental who granted
their motion and designated Assistant Provincial Fiscal Epifanio S. Betinol, to
conduct it. After conducting a
reinvestigation of the case, Fiscal Betinol affirmed Judge Lomeda’s preliminary
finding that the crime committed by the petitioners was only malicious
mischief. Accordingly, he lodged an
information for malicious mischief in the Municipal Trial Court, where it was
docketed as Criminal Case No. M-18-90.

The petitioners filed a petition for review of Fiscal Betinol’s
resolution in the Department of Justice. Their petition was dismissed.

Meanwhile, in the graft case against Judge Lomeda, the Ombudsman
noted that the respondents (now petitioners) and their counsel had not been
present at the preliminary examination conducted by Judge Lomeda; that the
issuance of the warrants of arrest against them was premature; and that
excessive bail of P30,000.00 for each, instead of only P1,800.00 was fixed for
their provisional liberty.

On July 20, 1990, the Ombudsman: (1) dismissed the complaint against Lt. Balderas, (2) indorsed the
complaint against Judge Lomeda to the Court Administrator of the Supreme Court
“for the necessary administrative investigation against Judge Lomeda pursuant
to Section 21 of RA 6770.” (p. 66, Rollo) and (3) recommended the filing in the
Sandiganbayan of a proper information for violation of Section 3, par. (e) of
RA 3019, the Anti-Graft and Corrupt Practices Act. The Ombudsman noted that:

“The aforesaid resolution [of Judge Lomeda] does not contain any
finding at all nor does it contain any discussion of any of the three (3)
elements of the crime of Malicious Mischief under Article 327 and penalized
under Article 329 of the Revised Penal Code on the case under consideration.

“Stated clearly there is nothing in the
resolution that would reasonably justify the
finding on the probability of the accused
having committed the crime of Malicious
Mischief.” (p. 62, Rollo; emphasis supplied.)

On the strength of the Ombudsman’s above observation, petitioners
filed on October 24, 1990, a motion to dismiss Criminal Case No. M-18-90.

On December 14, 1990, Judge Anasario granted the motion to dismiss
the charge of malicious mischief against the petitioners because “the Court’s
conscience could not allow that this case should go on before this Court.” (p.
85, Rollo.)

The court cancelled the bail bond of P60,000.00 put up by the
Ogburns, allowed them to withdraw their cash bond, and recalled the warrants of
arrest against Vogel and Tamayo.

The People appealed Judge Anasario’s order to the Regional Trial
Court, Branch 39, Dumaguete City. The
court reversed Judge Anasario’s resolution and ordered the remand of the record
of the case to the court of origin “for trial in accordance with law.”

The petitioners filed a petition for review in the Court of
Appeals (CA-G.R. No. 11107). On
September 24, 1991, the Court of Appeals dismissed the petition. Hence, this recourse to the Supreme Court by
certiorari under Rule 45 of the Rules of Court.

The main issue here is whether or not the Court of Appeals and
the Regional Trial Court erred in setting aside the resolution of MCTC Judge
Romeo Anasario dismissing Criminal Case No. M-18-90 for malicious mischief
based on the Ombudsman’s finding that Judge Lomeda’s preliminary investigation
of the charge was irregular.

Although the Ombudsman found many things wrong with the way Judge
Lomeda conducted his preliminary examination of the charge of qualified theft
against the petitioners and although Judge Lomeda’s conclusion, that the crime
committed was not qualified theft but malicious mischief, was the same
conclusion that Assistant Prosecutor Betinol arrived at after a reinvestigation
of the case at the instance of the petitioners themselves, the Court of Appeals
and the RTC correctly held that “the factual findings and conclusions of the
Ombudsman, although entitled to respect, should not be allowed to take precedence
over the findings of the prosecuting officers who had personally conducted the
preliminary investigation. The
determination of whether or not an information must be lodged with the courts
lies within the exclusive realm of the prosecution, free from the influence or
intervention of the courts or quasi-judicial bodies” (p. 153, Rollo). The conclusion of Prosecutor Betinol that
the crime committed by the petitioners was malicious mischief was based on the
evidence received by him during his own reinvestigation of the case. Hence, even if his conclusion was the same
as that of Judge Lomeda it was not tainted with the errors and irregularities
that infected Judge Lomeda’s preliminary investigation of the case. To quote the Court of Appeals:

“x x x granting in gratia argumenti that the
Ombudsman had correctly adjudged the actuations of Judge Lomeda to be out of
bounds when he conducted the preliminary investigation of this case, the defect
was cured when a reinvestigation was conducted by Asst. Provincial Prosecutor
Betinol who found the existence of a probable cause and filed the appropriate
information against the petitioners.” (p. 153, Rollo.)

WHEREFORE, finding no reversible error in the decision of
the Court of Appeals in CA-G.R. No. 11107, the petition for review is DENIED
for lack of merit. Costs against the
petitioners.

SO ORDERED.

Cruz, (Chairman), Medialdea, and
Bellosillo, JJ., concur.