IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF MARMOLITO CATELO Y RIVERA, PETITIONER-APPELLANT, VS. CHIEF OF THE CITY JAIL, MANILA POLICE DEPARTMENT, MANILA, RESPONDENT-APPE…

Direct appeal to this Court from an order of the Court of First
Instance of Manila (Sp. Proc. No. 66451) dated August 18, 1966, denying a petition for habeas corpus
as well as the release from custody of petitioner Marmolito
Catelo y Rivera.

The records show that, as a result of police investigation of the
killing of Manila Sheriff Avelino Concepcion,
Jr., who was shot in Pandacan, Manila, on March 11,
1966, and died on March 14 as a result of the gunshot wounds received, charges
for murder were fled by the Police with the City Fiscal’s
office against Manolito Gascon,
Marmolito Catelo (herein
appellant), Jose Simborio, Reynario
Andanar, Justino Lazo, Jr. Lucilo Remo and Jesus Cainta.  Simborio and Catelo could not be immediately arrested, but on April 19, Simborio surrendered to the police, and an information
charging him with the commission of the murder in conspiracy with Catelo and others, was filed by the Fis­cal’s
Office on April 20 in the sala presided by Judge Juan
I. Bocar of the Manila Court of First Instance (Crim. Case No. 82116) No bail was recommended.

Appellant Catelo (who was not included
as an accused in the information against Simborio,
although mentioned therein as cons­pirator) remained at large for several
months until arrested by police officers on August 10, 1966 and was booked at 5:00 p.m.  The next
day, August 11, at 9:00 a.m., the Fiscal’s Office filed an amended information in Criminal
Case No. 82116, including Catelo as a co-accused of Simborio in the same murder charge and case, together with
the corresponding motion for admission of the amended inform­ation.  The Court set the motion for hearing on August 13, 1966; but on that day,
counsel for Catelo moved to be furnished a copy of
the motion and prayed for time to file a written opposition thereto.  The Court acceded and reset the hearing on
the motion for August 20, 1966.

However, on August 15, five days before the scheduled hearing, Catelo filed a petition in the Court of First Instance for
a writ of habeas corpus, averring that he had been detained since August 10,
1966, without any warrant of arrest or order of commitment; that the
information against him was in violation of section 38-C of Republic Act No.
409, as amended by Republic Act No. 1201 (the Charter of the City Manila) and
that his imprisonment in the City Jail was therefore illegal.  The writ was issued and the case heard by
Judge Manuel Barcelona.  After trial, the
Court held that the filing of the amended information was substantial
compliance with Article 125 of the Revised Penal Code, ordaining that a person
detained be charged in the proper court within 18 hours from and after his
arrest, and ordered that petitioner should remain in custody.

His motion for reconsideration being denied on September 28, 1966, Catelo
duly appealed to this Supreme Court.

Further action on the amended information was delayed when the
Fiscal petitioned the Court of Appeals for writ of certiorari against Judge Bocar’s admitting to bail the original accused Jose Simborio.  The Court
of Appeals issued a preliminary writ of injunc­tion from trying the criminal
case (No. 82116).  Because of the writ
Judge Bocar would not act at first upon the admission
of the amended information including Catelo among
those accused; but on October 1966, the amended information was finally
admitted.

Main claim of the petitioner Catelo in
this appeal is the alleged illegality of the filing of the amended information
against him without first giving him a chance to be heard in a preliminary
investigation.  In support, said
appellant invokes paragraph 1 of section 38-C of the Revised Manila Charter
(Rep. Act No. 1201) providing that:

“SEC. 38-C. Preliminary investigation of cases cognizable
by the Court of First Instance. — In all cases brought to the Office of the
City Fiscal involving crimes cognizable by the Court of First Instance, where
the accused is not already in the legal custody of the police, no complaint or
information shall be filed with­out first giving the accused a chance to be
heard in a preliminary investigation, where such accused can be subpoenaed and
appears before the investigating fiscal, with the right to cross-examine the
complainant and his witnesses:  Provided,
That when the accused is detained, he may ask for a preliminary investigation,
but he must sign a waiver of the provisions of Article One Hundred twenty-five
of the Revised Penal Code, as amended; And provided, further,
That if the case has already been filed in court, he may ask for a
reinvestigation thereof later on with the same right to cross examine the
witnesses against him; Provided, finally, That notwithstanding such waiver, the
said investigation must, be terminated within seven days from its
inception.”

As pointed out by the Solicitor General in his brief for the
State, Catelo was already in the legal custody of the
police from the time he was arrested; hence, the first part of section 38-c, supra,
does not apply to him, and the fiscal could file an information against him
even without previous preliminary investigation.  This step is expressly authorized by the first proviso of section 38-c
of the Manila Charter.  Being under
arrest, all this petitioner had to do in order to obtain a preliminary
investigation was to sign a waiver of the prescriptions of Article 125 of the
Revised Penal Code, as amended.  Since Catelo did not sign any such waiver, the Fiscal perforce
had to surrender him to the Court by filing
an amended information including him as an accused in Criminal Case No. 82116
of the Court of First Instance of Manila, even without first completing a
preliminary investigation, because the law fixed a time limit of 18 hours^[1]
for the Fiscal to do so (Art. 125, Rev. Penal Code).  It is nowhere contended that this period was
exceeded.

Appellant Catelo urges that the mere filing
of the amended information was not sufficient, because it was not operative as
a charge until the Court admitted the pleading. 
Normally, such would be the case; but here we can not disregard the fact
that it was Catelo himself who delayed the admission
of the amended information, with unfounded objections and he is not now in a
position to complain of a delay that he himself has produced.  So far as the record goes, we see no valid
reason why the amended information should not have been accepted and the
warrant of arrest issued in due course; hence, the appealed decision of Judge
Barcelona correctly declared that there had been substantial compliance with
legal requirements.  Certainly, the
Fiscal had done everything incumbent upon him, and the appel­lant’s objection
to the amended information was without legal basis, being predicated upon a
portion of section 38-C of the Manila Charter that did not cover his case.

Since the information for murder was filed against this appellant
within the 18-hour limit fixed by Republic Act 1083, our ruling in Lino vs. Fugoso, 74
Phil. 933, does not apply to him, and affords him no comfort.  The habeas corpus was granted
in the Lino case because the legal period for
detention without warrant had been exceeded with – out an information being
filed, and the belated presentation of the formal charge did not retroact nor
validate a detention that had already become unlawful.

Petitioner finally questions the legality of his arrest without
warrant by the Manila Police officers on August 10, 1966.  Since the accused petitioner has already come
under the jurisdiction of the Court of First Instance of Manila, upon the
admission of the information (amended) against him on October 3, 1966, this
Court is of the opinion that this particular issue should rather be sub­mitted
to, and threshed out in, the Court below. 
This is all the more advisable because of the probability that the
determination of the lawfulness of the questioned arrest will involve a
detailed inquiry into the circumstances surrounding the same, and evidence
thereon may have to be introduced and considered.  For these reasons, this Court abstains for
the present from making a ruling on the ques­tion.

WHEREFORE, the decision of the Court of First Instance of Manila, denying appellant Catelo’s petition for discharge from custody is
affirmed.  Costs against appellant.

Concepcion, C.J., Dizon,
Makalintal, Bengzon, Zaldivar, Sanchez, Castro, Angeles, and Fernando, JJ., concur.

^[1]
Murder being sanctioned by an afflictive penalty (See Rep. Act 1083).