OFFICE OF THE PROVINCIAL PROSECUTOR OF ZAMBOANGA DEL NORTE, PETITIONERS, VS. COURT OF APPEALS, ATICO ABORDO, JUDY CATUBIG, PETER MOLATO, AND FLORENCIO CANDIA, RESPONDENTS.

Office of the Provincial Prosecutor of Zamboanga del Norte versus Court of Appeals

The Case

This is a petition for review brought by the Office of the Provincial Prosecutor of Zamboanga del Norte against the Court of Appeals and the private respondents Atico Abordo, Judy Catubig, Peter Molato, and Florencio Candia. The provincial prosecutor had charged the private respondents, together with other individuals, with murder and multiple frustrated murder for the killing of a Philippine Army corporal and the wounding of four other soldiers in an armed encounter. The private respondents insisted that the crime committed was not murder but rebellion, and the Court of Appeals agreed, ordering the prosecutor to file a substitute information charging rebellion only. The case matters because it fixes the boundary between the prosecutor's discretion to determine the crime to be charged and the court's power to correct a mistaken charge, and because it teaches when a killing is absorbed by rebellion and when it is not.

Procedural History

The provincial prosecutor filed the information for murder with multiple frustrated murder before the Regional Trial Court, Branch 8, Dipolog City. The private respondents moved before that court to correct or amend the information so that it would charge rebellion instead. The trial court denied the motion in an order dated September 29, 1995, and denied reconsideration twice, holding that the determination of the crime to be charged is the prerogative of the public prosecutor and that it could not interfere with that power. The private respondents then filed a petition for certiorari with the Supreme Court to set aside those orders, impleading the provincial prosecutor as co-respondent of the trial judge. Without ruling on the petition, the Supreme Court referred the case to the Court of Appeals. The Court of Appeals, in a decision dated July 24, 1996, dismissed the petition as against the trial court but found the provincial prosecutor guilty of grave abuse of discretion and ordered him to file a substitute information charging rebellion only. The provincial prosecutor then brought this petition for review before the Supreme Court.

Facts

On the first day of May 1988, in the municipality of Katipunan, Zamboanga del Norte, an armed encounter took place between a group of New People's Army fighters and elements of the Philippine Army. One soldier, Corporal Alfredo de la Cruz, was killed, and four others, Sergeant Rodrigo Alviar, Sergeant Linogaman Piatos, Sergeant Rodrigo Baradi, and a certain Sergeant Bellizar, were seriously wounded.

On the first day of June 1993, five individuals who claimed to be former members of the New People's Army executed a joint affidavit before the Municipal Trial Court of Katipunan, Zamboanga del Norte. They stated that their group, which included the private respondents, figured in the firefight with the government troops, and they named the private respondents among those who participated.

On the third day of August 1993, on the basis of that joint affidavit, the provincial prosecutor filed an information charging the private respondents and ten other individuals with murder and multiple frustrated murder. The private respondents did not appear and did not submit affidavits during the preliminary investigation. They appealed the prosecutor's resolution to the Secretary of Justice, arguing that the political motivation made the crime rebellion, and when the case was filed in court they asked the trial court to order the prosecutor to change the charge. The trial court refused, and the matter reached the Court of Appeals, which ordered the substitution of the information.

Issues

• Whether or not the Court of Appeals could consider the record of the preliminary investigation, which was not part of the record of the trial court, as basis for finding the provincial prosecutor guilty of grave abuse of discretion.
• Whether or not the provincial prosecutor gravely abused his discretion in charging murder with multiple frustrated murder instead of rebellion.
• Whether or not the prosecutor may be compelled, even before the start of trial, to change the information on the ground that the evidence at the preliminary investigation shows the crime to be rebellion.

Applicable Provisions

Section 8 of Rule 112 of the Revised Rules of Criminal Procedure provides:

Section 8. Record of preliminary investigation. The record of the preliminary investigation whether conducted by a judge or a fiscal, shall not form part of the record of the case in the Regional Trial Court. However, the said court, on its own initiative or that of any party, may order the production of the record of any part thereof whenever the same shall be necessary in the resolution of the case or any incident therein, or shall be introduced as evidence by the party requesting for its production.

This provision bars the Court of Appeals from treating the preliminary investigation record as part of the trial court's record in a certiorari proceeding.

Section 14 of Rule 110 of the Revised Rules of Criminal Procedure provides:

If it appears at any time before judgment that a mistake has been made in charging the proper offense, the court shall dismiss the original complaint or information upon the filing of a new one charging the proper offense in accordance with Rule 119, Section 11, provided the accused would not be placed thereby in double jeopardy.

This is the remedy the Court points to for the private respondents if the trial evidence later shows a mistake in the charge.

Ruling

On the first issue, the Court held that it was improper for the Court of Appeals to consider the record of the preliminary investigation as basis for finding grave abuse of discretion, because that record was not presented before the trial court and was not part of the record of the case. The certiorari proceeding was limited to the record of the trial court, and the Court of Appeals itself recognized this when it absolved the trial court. To sustain that procedure would set a bad precedent whereby an accused could demand, upon the filing of the information, a review of the preliminary investigation evidence to compel a change to a lesser offense, undermining the authority of the prosecutor and imposing an intolerable burden on the trial court.

On the second issue, the Court held that it was not at all clear that the crime shown by the joint affidavit was rebellion rather than murder. Nowhere in the affidavit is the political motivation for the crime indicated. The Court stressed that the political motivation must be shown to justify finding the crime to be rebellion, and that the burden of proving political motive falls on the defense. The Court quoted its own ruling in Baylosis versus Chavez:

Certainly, the public prosecutors should have the option to ascertain which prosecutions should be initiated on the basis of the evidence at hand. That a criminal act may have elements common to more than one offense does not rob the prosecutor of that option or discretion and mandatorily require him to charge the lesser offense although the evidence before him may warrant prosecution of the more serious one.

On the third issue, the Court held that the provincial prosecutor was under no obligation to change the charge against the private respondents. The proceedings were still at the pre-arraignment stage, and if during trial the private respondents show proof supporting their contention, they may avail of the remedy under the second paragraph of Section 14 of Rule 110.

Doctrine

The public prosecutor has the discretion to determine the crime to be charged, and that discretion is not gravely abused merely because the evidence may also support a lesser offense. A criminal act may have elements common to more than one offense without requiring the prosecutor to charge the lesser one. The record of the preliminary investigation does not form part of the record of the Regional Trial Court, and it cannot be used in a certiorari proceeding to fault the prosecutor when it was never presented below. Where the accused claims that the crime is rebellion and not murder, the burden of demonstrating political motive falls on the defense, because motive is a state of mind the accused best knows. If a mistake in charging the proper offense appears at any time before judgment, the court shall dismiss the original information upon the filing of a new one charging the proper offense, provided the accused would not be placed in double jeopardy.

Disposition

The Supreme Court granted the petition, set aside the decision of the Court of Appeals, and held that the provincial prosecutor was under no obligation to change the charge against the private respondents.

Remember This

The single line to memorize is that the choice of crime to charge belongs to the prosecutor, and the political motive that would make a killing rebellion must be conclusively demonstrated by the defense. Examiners use this case to test prosecutorial discretion, the absorption of common crimes in rebellion, and the remedy under Section 14 of Rule 110 for a mistaken charge.