Secretary of Justice vs. Judge Lantion GR 139465

Facts: On June 18, 1999, the Department of Justice received from the Department of Foreign Affairs of the United States requesting for the extradition of MarkJimenez for various crimes in violation of US laws. In compliance with the related municipal law, specifically Presidential Decree No. 1069 Prescribing the Procedurefor Extradition of Persons Who Have committed Crimes in a Foreign Country and the established

Extradition Treaty Between the Government of the Philippines andthe Government of the United States of America , the department proceeded with proceeded with the designation of a panel of attorneys to conduct a technicalevaluation and assessment as provided for in the presidential decree and the treaty. The respondent requested for a copy of the official extradition request as well asthe documents and papers submitted therein. The petitioner denied the request as it alleges that such information is confidential in nature and that it is premature toprovide such document as the process is not a preliminary investigation but a mere evaluation. Therefore, the constitutional rights of the accused are not yetavailable.

Issue:

1.Whether or not private respondent, Mark B. Jimenez, be granted access to the official extradition request and documents with an opportunity to file acomment on or opposition thereto

2.Whether or not private respondent’s entitlement to notice and hearing during the evaluation stage of the proceedings constitute a breach of the legal duties of thePhilippine Government under the RP-US Extradition Treaty

Ruling:

The Supreme Court ruled that the private respondent be furnished a copy of the extradition request and its supporting papers and to give him a reasonableperiod of time within which to file his comment with supporting evidence. In this case, there exists a clear conflict between the obligation of the PhilippineGovernment to comply with the provisions of the treaty and its equally significant role of protection of its citizens of its right of due process. The processes outlined inthe treaty and in the presidential decree already pose an impending threat to a prospective extraditee’s liberty as early as the evaluation stage. It is not an imaginedthreat to his liberty, but a very imminent one. On the other hand, granting due process to the extradition case causes delay in the process.The rule of pactasuntservanda, one of the oldest and most fundamental maxims of international law, requires the parties to a treaty to keep their agreement therein in good faith. Thedoctrine of incorporation is applied whenever municipal tribunals are confronted with situations in which there appears to be a conflict between a rule of international law and the provisions of the constitution or statute of a local state. Efforts should be done to harmonize them. In a situation, however, where theconflict is irreconcilable and a choice has to be made between a rule of international law and municipal law, jurisprudence dictates that municipal law should beupheld by the municipal courts. The doctrine of incorporation decrees that rules of international law are given equal standing, but are not superior to, nationallegislative enactments.In this case, there is no conflict between international law and municipal law. The United States and the Philippines share a mutual concernabout the suppression and punishment of crime in their respective jurisdictions. At the same time, both States accord common due process protection to theirrespective citizens. In fact, neither the

Treaty nor the Extradition Law precludes the rights of due process from a prospective extradite.

Q — The SC in USA v. Purganan limited the exercise of the right to bail to criminal proceedings, however, in light of the various international treaties giving recognition and protection to human rights, particularly the right to life and liberty, is a reexamination of this Court’s ruling in Purganan in order, such that, the right to bail may be available in extradition proceedings? Explain.

ANS: Yes. First, the exercise of the State’s power to deprive an individual of his liberty is not necessarily limited to criminal proceedings. Respondents in administrative proceedings, such as deportation and quarantine, have likewise been detained.

Second, to limit bail to criminal proceedings would be to close our eyes to our jurisprudential history. Philippine jurisprudence has not limited the exercise of the right to bail to criminal proceedings only. The SC has admitted to bail persons who are not involved in criminal proceedings. In fact, bail has been allowed in this jurisdiction to persons in detention during the pendency of administrative proceedings, taking into cognizance the obligation of the Philippines under international conventions to uphold human rights.

Note: In Government of United States of America v. Judge Purganan, September 24, 2002, The SC ruled that Mark Jimenez is not entitled to the right to bail and provisional liberty while the extradition proceedings are pending except upon a clear and convincing showing (1) that, once granted bail, the applicant will not be a flight risk or a danger to the community; and (2) that there exist special, humanitarian and compelling circumstances.

USA v. Purganan

1. RP-US EXTRADITION TREATY. Pursuant to the existing RP-US Extradition Treaty, the US Government, through diplomatic channels, sent to the PhilippineGovernment Note Verbale No. 0522 dated June 16, 1999, supplemented by NoteNos. 0597, 0720 & 0809 & accompanied by duly authenticated documentsrequesting the extradition of Mark B. Jimenez, a.k.a. Mario BatacanCrespo. Uponreceipt of the Notes & documents, the secretary of foreign affairs (SFA) transmittedthem to the secretary of justice (SOJ) for appropriate action, pursuant to Sec. 5 of PD No. 1069, or the Extradition Law.

2. TRO AGAINST EXTRADITION. Upon learning of the request for his extradition,Jimenez sought & was granted a Temporary Restraining Order (TRO) by the RTC of Manila, Br. 25.The TRO prohibited the Department of Justice (DOJ) from filing withthe RTC a petition for his extradition. The validity of the TRO was assailed by theSOJ in a Petition before this Court inSOJ v. Lantion. Initially, the Court—by a voteof 9-6—dismissed the Petition. The SOJ was ordered to furnish Jimenez copies of the extradition request & its supporting papers & to grant the latter a reasonableperiod within which to file a comment & supporting evidence.

3. MfR: REVERSAL. Acting on the Motion for Reconsideration filed by the SOJ, thisCourt issued its Oct. 17, 2000 Resolution.By 9-6—after 3 justices changed their votes—it reconsidered & reversed its Decision. It held that private respondent wasbereft of the right to notice & hearing during the evaluation stage of the extraditionprocess. This Resolution has become final &executory.

4. PETITION FOR EXTRADITION. The US Gov’t, represented by the Philippine DOJ,filed with the RTC on May 18, 2001, the Petition for Extradition (Extradition CaseNo. 01192061). The Petition alleged,inter alia, that Jimenez was the subject of anarrest warrant issued by the US District Court for the Southern District of Florida onApr. 15, 1999. The warrant had been issued ICOW the following charges inIndictment No. 99-00281 CR-SEITZ: (1) conspiracy to defraud the US & to commitcertain offenses in violation of Title 18 US Code, Sec. 371; (2) tax evasion, inviolation of Title 26 US Code Sec. 7201; (3) wire fraud, in violation of Title 18 USCode Sec. 1343 & 2; (4) false statements, in violation of Title 18 US Code Sec.1001 & 2; & (5) illegal campaign contributions, in violation of Title 2 US Code Sec.441b, 441f & 437g(d) & Title 18 US Code Sec. 2. To prevent the flight of Jimenez,the Petition prayed for the issuance of an order for his "immediate arrest" pursuantto Sec. 6 of PD No. 1069

5. MOTION FOR HEARING ON ARREST WARRANT. Before the RTC could act on thePetition, Jimenez filed an "Urgent Manifestation/Ex-Parte Motion,"which prayedthat petitioner’s application for an arrest warrant be set for hearing.

6. 6.ORDER: HEARING SET. In its assailed May 23, 2001 Order, RTC granted theMotion & set the case for hearing on June 5, 2001.Petitioner manifested itsreservations on the procedure adopted by the TC allowing the accused in anextradition case to be heard prior to the issuance of a warrant of arrest.

7. ORDER: WARRANT OF ARREST ISSUED. Jimenez’ Memorandum sought analternative prayer: that in case a warrant should issue, he be allowed to post bail of P100,000. This was also set for hearing on June 15, 2001. TC issued its questionedJuly 3, 2001 Order, directing the issuance of a warrant for his arrest & fixing bail for his temporary liberty at P1 M in cash.After he had surrendered his passport &posted the bond, Jimenez was granted provisional liberty via the challenged order dated July 4, 2001.

Rodriguez v. Presiding Judge

– when can the right to bail in extradition be available - Bail may be granted to a possible extraditee only upon a clear and convincing showing: 1) that he will not be a flight risk or a danger to the community and; 2) that there exist special, humanitarian and compelling circumstances.

Citing an earlier case, the Court held that although a prospective extraditee is not entitled to notice and hearing before the issuance of a warrant of arrest, because notifying him before his arrest only tips him of his pending arrest, the said rule does not apply to the matter of cancellation of a bail that had been issued after determination that the extraditee is a no-flight risk.

The policy is that a prospective extraditee is arrested and detained to avoid his flight from justice. On the extraditee lies the burden of showing that he will not flee once bail is granted. If after his arrest and if the trial court finds that he is no flight risk, it grants him bail.

The grant of the bail, presupposes that the co-petitioner has already presented evidence to prove her right to be on bail, that he is no flight risk, and the trial court had

already exercised its sound discretion and had already determined that under the Constitution and laws in force, co-petitioner is entitled to provisional release. Thus:

The case stemmed from the petition for extradition filed on March 12, 2001 by the Government of the United States of America (US government) through the Department of Justice (DOJ) against the petitioners.

The issue of prior notice and hearing in extradition cases is not new. In Secretary of Justice v. Lantion, by a vote of nine to six, we initially ruled that notice and hearing should be afforded the extraditee even when a possible extradition is still being evaluated. [12] The Court, deliberating on a motion for reconsideration also by a vote of nine to six, qualified and declared that prospective extraditees are entitled to notice and hearing only when the case is filed in court and not during the process of evaluation.

In the later case of Purganan, eight justices concurred that a possible extraditee is not entitled to notice and hearing before the issuance of a warrant of arrest while six others dissented.

Now, we are confronted with the question of whether a prospective extraditee is entitled to notice and hearing before the cancellation of his or her bail.

The issue has become moot and academic insofar as petitioner Eduardo Rodriguez is concerned. He is now in the USA facing the charges against him. But co-petitioner Imelda Gener Rodriguez is here and stands on a different footing. We agree that her bail should be restored.

In Purganan, we said that a prospective extraditee is not entitled to notice and hearing before the issuance of a warrant of arrest, [14] because notifying him before his arrest only tips him of his pending arrest. But this is for cases pending the issuance of a warrant of arrest, not in a cancellation of a bail that had been issued after determination that the extraditee is a no-flight risk. The policy is that a prospective extraditee is arrested and detained to avoid his flight from justice. [15] On the extraditee lies the burden of showing that he will not flee once bail is granted. [16] If after his arrest and if the trial court finds that he is no flight risk, it grants him bail. The grant of the bail, presupposes that the co-petitioner has already presented evidence to prove her right to be on bail, that she is no flight risk, and the trial court had already exercised its sound discretion and had already determined that under the Constitution and laws in force, co-petitioner is entitled to provisional release.

Under these premises, and with the trial court’s knowledge that in this case, co-petitioner has offered to go on voluntary extradition; that she and her husband had posted a cash bond of P1 million each; that her husband had already gone on voluntary extradition and is presently in the USA undergoing trial; that the passport of co-petitioner is already in the possession of the authorities; that she never attempted to flee; that there is an existing hold-departure order against her; and that she is now in her sixties, sickly and under medical treatment, we believe that the benefits of continued temporary liberty on bail should not be revoked and their grant of bail should not be cancelled, without the co-petitioner being given notice and without her being heard why her temporary liberty should not be discontinued.

We emphasize that bail may be granted to a possible extraditee only upon a clear and convincing showing (1) that he will not be a flight risk or a danger to the community, and (2) that there exist special, humanitarian and compelling circumstances.

The trial court’s immediate cancellation of the bail of petitioners is contrary to our ruling in Purganan, and it had misread and misapplied our directive therein.

Now, was the order to issue warrant of arrest against petitioners and to cancel the bail of extraditees a grave abuse of discretion of the trial court?

Grave abuse of discretion is capricious or whimsical exercise of judgment that is patent and gross as to amount to an evasion of positive duty or a virtual refusal to perform a duty enjoined by law. In our view, the cancellation of co-petitioner’s bail, without prior notice and hearing, could be considered a violation of co-petitioner’s right to due process tantamount to grave abuse of discretion.

Finally, considering that remanding the case to the court a quo will only delay the final resolution of the case as in all probability it would only end up with us again, we will decide if Imelda’s bail was validly cancelled.

In Purganan, we held also that the grounds used by the highest court in the requesting state for the grant of bail may be considered, under the principle of reciprocity.

Considering that she has not been shown to be a flight risk nor a danger to the community, she is entitled to notice and hearing before her bail could be cancelled. Based on the record, we find that, absent prior notice and hearing, the bail’s cancellation was in violation of her right to due process.

WHEREFORE, the instant petition is GRANTED IN PART. The Orders dated May 7, 2003 and May 9, 2003 of the Regional Trial Court of Manila, Branch 17 in Case No. 01-190375 are REVERSED and SET ASIDE, as far as petitioner IMELDA GENER RODRIGUEZ is concerned. We hereby (1) declare IMELDA GENER RODRIGUEZ entitled to bail, (2) order her cancelled bail restored, and (3) order the warrant for her arrest revoked.

Hong Kongvs judge olalia

FACTS:

Private respondent Muñoz was charged before the Hong Kong Court with three (3) counts of the offense of "accepting an advantage as agent," in violation of Section 9 (1) (a) of the Prevention of Bribery Ordinance, Cap. 201 of Hong Kong. He also faces seven (7) counts of the offense of conspiracy to defraud, penalized by the common law of Hong Kong. Warrants of arrest were issued against him. If convicted, he faces a jail term of seven (7) to fourteen (14) years for each charge.

On September 13, 1999, the DOJ received from the Hong Kong Department of Justice a request for the provisional arrest of private respondent. The RTC issued an Order of Arrest against private respondent. That same day, the NBI agents arrested and detained him.

Private respondent filed a petition for bail which was opposed by petitioner. After hearing, Judge Bernardo, Jr. issued an Order denying the petition for bail, holding that there is no Philippine law granting bail in extradition cases and that private respondent is a high "flight risk." Judge Bernardo, Jr. inhibited himself from further hearing the case, it was then raffled off to Branch 8 presided by respondent judge. Private respondent filed a motion for reconsideration of the Order denying his application for bail and this was granted by respondent judge.

Petitioner filed an urgent motion to vacate the above Order, but it was denied by respondent judge. Hence, the instant petition.

ISSUE:

Whether or not respondent judge acted with grave abuse of discretion amounting to lack or excess of jurisdiction as there is no provision in the Constitution granting bail to a potential extraditee.

HELD:

No. Bearing in mind the purpose of extradition proceedings, the premise behind the issuance of the arrest warrant and the "temporary detention" is the possibility of flight of the potential extraditee. This is based on the assumption that such extraditee is a fugitive from justice. Given the foregoing, the prospective extraditee thus bears the onus probandi of showing that he or she is not a flight risk and should be granted bail.

The Philippines, along with the other members of the family of nations, committed to uphold the fundamental human rights as well as value the worth and dignity of every person. Clearly, the right of a prospective extraditee to apply for bail in this jurisdiction must be viewed in the light of the various treaty obligations of the Philippines concerning respect for the promotion and protection of human rights. Under these treaties, the presumption lies in favor of human liberty. Thus, the Philippines should see to it that the right to liberty of every individual is not impaired.

Atty. Adalim white vs judge bagtas

In an Indorsement dated August 28, 2001, the Office of the Court Administrator directed respondent to file his comment to the complaint.

On October 29, 2001, respondent filed his Comment admitting that he issued an order allowing Manuel Bagaporo, Jr. (Bagaporo) to be released upon recognizance of the Provincial Jail Warden of Eastern Samar, Alexandrino R. Apelado, Sr. Respondent avers that: Bagaporo was convicted by the trial court of the crime of frustrated murder and meted the penalty of imprisonment ranging from four years and two months to eight years and one day; Bagaporo served sentence; subsequently, he filed an application for release on recognizance; in support of his application, Provincial Jail Warden Apelado issued a certification to the effect that Bagaporo has been confined at the Provincial Jail since February 9, 1996 and is already entitled to parole; another certification was issued by Supervising Probation and Parole Officer Eulalia R. Columbretis showing that Bagaporo had applied for parole in line with the Department of Justice’s “MaagangPaglaya Program.” Respondent contends that on the basis of these certifications and on the rule that bail being discretionary upon conviction by the RTC of

an offense not punishable by death, reclusion perpetua or life imprisonment, the court granted Bagaporo’s application for bail upon recognizance of Apelado.[3]

In our Resolution of November 25, 2002, we directed the parties to manifest to this Court if they are willing to submit this case for resolution on the basis of the pleadings filed.[4]

In his Manifestation dated January 27, 2003, respondent requested that a formal investigation be conducted to enable him to face his accuser.[5] On the other hand, despite due notice, complainant failed to comply with the November 25, 2002 Resolution of this Court.

On November 16, 2004, respondent filed a Motion to Dismiss on the ground of lack of evidence and that complainant is not interested in prosecuting her complaint.[6]

In our Resolution of February 7, 2005, we referred the instant case to Justice Lucas P. Bersamin of the Court of Appeals (CA) for investigation, report and recommendation on grounds that desistance of a complainant is not a basis for dismissing an administrative case and because there is a need to establish certain facts surrounding the complained acts allegedly committed by respondent.[7] Thereafter, the Investigating Justice set the case for hearing on various dates.

On April 15, 2005, respondent again filed a Motion to Dismiss on the ground that complainant failed to appear during the hearings set by the

Investigating Justice on March 30 and 31, 2005.[8]

On April 29, 2005, the Investigating Justice issued a Resolution denying respondent’s Motion to Dismiss and resetting the hearing for the last time on May 31, 2005, with warning that the case shall be deemed submitted for study, report and recommendation should the parties fail to appear at the date set for hearing.[9]

In a Manifestation dated May 13, 2005, complainant indicated her desire to submit the case for resolution on the basis of the pleadings and annexes filed.[10] On the other hand, respondent sent a telegraphic communication dated May 31, 2005 manifesting that the CA may consider the case submitted for resolution; and praying that he be allowed to submit a memorandum.[11] The Investigating Justice granted respondent’s motion.[12] On June 30, 2005, respondent filed his Memorandum through registered mail.On August 18, 2005, the Investigating Justice submitted his Report and Recommendation to this Court with the following findings:

The undersigned Investigating Justice concludes that Judge Bugtas was guilty of gross ignorance of the law and gross neglect of duty for committing the following acts and omissions in relation to the case of convict Bagaporo, Jr., to wit:

1. Due to the penalty imposed on him, Bagaporo, Jr. should have been committed to the National Penitentiary upon his conviction (whether or not he appealed). The failure of Judge Bugtas, if he was the trial judge, to issue forthwith the mittimus to commit Bagaporo, Jr. as a national prisoner under Presidential Decree No. 29 to the New Bilibid Prison in Muntinlupa City was a serious disobedience to Circular No. 4-93-A dated April 20, 1992.

2. In acting on Bagaporo, Jr.’s application for release, Judge Bugtas supposedly relied on the recognizance of Provincial Jail Warden Apelado, Sr. and on the other documents submitted in support of the convict’s application for release on recognizance. Judge Bugtas contends that his act did not constitute a violation since bail was ‘discretionary upon conviction by the Regional Trial Court of an offense not punishable by death, reclusion perpetua or life imprisonment.’

The undersigned Investigating Justice does not accept Judge Bugtas’ good faith because Judge Bugtas was apparently lacking in sincerity. He was not unaware that Bagaporo, Jr. was serving final sentence for which his indeterminate penalty had a minimum of 4 years and 2 months. When Judge Bugtas ordered the release, Bagaporo, Jr. had not yet served even the minimum of the indeterminate sentence, a fact that Judge Bugtas should have known through a simple process of computation. Even if he was informed of Bagaporo, Jr.’s pending application for parole, Judge Bugtas had no legal basis to anticipate the approval of the application and to cause the convict’s premature release. He was thus fully aware that Bagaporo, Jr. could not be released even upon the recognizance of the Provincial Jail Warden.

3. Judge Bugtas’ act of prematurely releasing the convict in effect altered the final sentence of Bagaporo, Jr. The undersigned Investigating Justice submits that Judge Bugtas thereby violated Art. 86, Revised Penal Code which provides:

Art. 86. Reclusion perpetua, reclusion temporal, prision mayor, prisioncorrecional and arresto mayor. – The penalties of reclusion perpetua, reclusion temporal, prision mayor, prisioncorreccional and arresto mayor shall be executed and served in the places and penal establishments provided by the Administrative Code in force or which may be provided by law in the future.

Judge Bugtas could give no acceptable explanation for his act. A convict’s release from prison before he serves the full term of his sentence is due either to good conduct allowances… or to the approval of his application for parole. The former is granted to him by the Director of Prisons (now Director of the Bureau of Corrections), pursuant to Art. 99, Revised Penal Code; the latter, by the Board of Pardons and Parole that was created and constituted pursuant to Act No. 4103, as amended. Obviously, the grant is not a judicial prerogative.

Consequently, Judge Bugtas arrogated unto himself authority that pertained under the law to an administrative official or agency.

4. Judge Bugtas contends that his order of release on recognizance was correct considering that the convict had already been in custody for a period equal to the minimum imprisonment meted out by the trial court. To support his contention, he cites Sec. 16, Rule 114, 2000 Rules of Criminal Procedure, to wit:

Sec. 16. Bail, when not required; reduced bail or recognizance. – No bail shall be required when the law or these Rules so provide.

When a person has been in custody for a period equal to or more than the possible maximum imprisonment prescribed for the offense charged, he shall be released immediately, without prejudice to the continuation of the trial or the proceedings on appeal. If the maximum penalty to which the accused may be sentenced is destierro, he shall be released after thirty (30) days of preventive imprisonment.

A person in custody for a period equal to or more than the minimum of the principal penalty prescribed for the offense charged, without application of the Indeterminate Sentence Law or any modifying circumstance, shall be released on a reduced bail or on his own recognizance, at the discretion of the court.

The undersigned Investigating Justice opines that Judge Bugtas’ contention compounds his already dire situation. He seems to believe that the quoted rule applies to a convict like Bagaporo, Jr. He has no realization at all (or, if he has, he conceals it) that the rule applies only to an accused undergoing preventive imprisonment during trial or on appeal; and that the rule has absolutely no application to one already serving final sentence. Such ignorance, whether pretended or not, is terrifying to see in a judicial officer like Judge Bugtas, a presiding judge of the Regional Trial Court.

5. Judge Bugtas labors under a mistaken notion about the Indeterminate Sentence Law, that once the convict has been in custody for the duration of the minimum of the indeterminate sentence, he may be released even if his application for parole is still pending. He thereby ignores that the benefit under the Indeterminate Sentence Law is accorded to the convict only after the Board of Pardon and Parole has determined his application favorably after considering all the cogent circumstances. …

It is crucial that Judge Bugtas be reminded that the convict must remain in prison pending the consideration of the convict’s application for parole by the Board of Pardons and Parole, for there is no assurance of the grant of his application.

6. In any case, Judge Bugtas should have outrightly denied the application of the convict for release on recognizance not only because the convict had yet to complete even the minimum of the indeterminate sentence but also because the convict must serve his sentence even beyond the minimum unless in the meantime the Director of the Bureau of Corrections granted him the allowances for good conduct that offset the unserved portion pursuant to Art. 97 and Art. 99, Revised Penal Code; or unless the Board of Pardons and Parole approved the convict’s application for parole.[14]

Accordingly, the Investigating Justice recommended that respondent be fined in the amount of P25,000.00.[15]

We agree with the Investigating Justice that respondent is guilty of gross ignorance of the law but not as to the recommended penalty.

Respondent is being charged with ignorance of the law for having ordered the release of Bagaporo pending approval of the latter’s application for parole and before his completion of the minimum period of the sentence imposed upon him.

Respondent contends that his order allowing the release on recognizance of Bagaporo is in consonance with the provisions of Section 16, Rule 114 of the Rules of Court which provides as follows:

Sec. 16. Bail when not required; reduced bail or recognizance. – No bail shall be required when the law or these Rules so provide.

When a person has been in custody for a period equal to or more than the possible maximum imprisonment of the offense charged to which he may be sentenced, he shall be released immediately, without prejudice to the continuation of the trial thereof or the

proceedings on appeal. In case the maximum penalty to which the accused may be sentenced is destierro, he shall be released after thirty (30) days of preventive imprisonment.

A person in custody for a period equal to or more than the minimum of the principal penalty prescribed for the offense charged, without application of the Indeterminate Sentence Law or any modifying circumstance, shall be released on a reduced bail or on his own recognizance, at the discretion of the court.Based on the above-quoted Rule, respondent argues that since Bagaporo had already been in prison for a period which is equal to the minimum of his sentence, his release on recognizance is in order. Respondent also contends that he simply exercised his discretion in allowing Bagaporo to be released on bail on the strength of the provisions of the first paragraph of Section 5, Rule 114 of the Rules of Court which provides that upon conviction by the RTC of an offense not punishable by death, reclusion perpetua or life imprisonment, the court, on application, may admit the accused to bail. We are not persuaded. At the outset, it must be noted that Bagaporo was sentenced to suffer the penalty of imprisonment ranging from four years and two months to eight years and one day. It is not disputed that he began to serve sentence on February 9, 1996. Counting four years and two months from said date the minimum period of Bagaporo’s sentence should have been completed on April 9, 2000. Hence, we agree with the observation of the Investigating Justice that it is wrong for respondent to claim that Bagaporo had already served the minimum of his sentence at the time that he was granted bail on recognizance, that is, on February 16, 2000.[18]

Furthermore, it is patently erroneous for respondent to release a convict on recognizance.

Section 24, Rule 114 of the Rules of Court is plain and clear in prohibiting the grant of bail after conviction by final judgment and after the convict has started to serve sentence. It provides:

SEC. 24. No bail after final judgment; exception. – An accused shall not be allowed bail after the judgment has become final, unless he has applied for probation before commencing to serve sentence, the penalty and the offense being within the purview of the Probation Law. In case the accused has applied for probation, he may be allowed temporary liberty under his bail, but if no bail was filed or the accused is incapable of filing one, the court may allow his release on recognizance to the custody of a responsible member of the community. In no case shall bail be allowed after the accused has commenced to serve sentence.[19]

The only exception to the above-cited provision of the Rules of Court is when the convict has applied for probation before he commences to serve sentence, provided the penalty and the offense are within the purview of the Probation Law.

In the instant case, there is no showing that Bagaporo applied for probation. In fact at the time of his application for release on recognizance, he was already serving sentence. When he was about to complete service of the minimum of his sentence, he filed an application for parole. However, there is no evidence to show that the Board of Pardons and Parole approved his application. We agree with the Investigating Justice in holding that a convict’s release from prison before he serves the full term of his sentence is either due to good conduct allowances, as provided under Act No. 1533[20] and Article 97 of the Revised Penal Code, or through the approval of the convict’s

application for parole. A good conduct allowance under Act No. 1533 and Article 97 of the Revised Penal Code may be granted by the Director of Prisons (now Director of the Bureau of Corrections), while the approval of an application for parole is sanctioned by the Board of Pardons and Parole. In addition, a convict may be released from prison in cases where he is granted pardon by the President pursuant to the latter’s pardoning power under Section 19, Article VII of the Constitution.[21] In the present case, aside from the fact that there is no evidence to prove that Bagaporo’s application for parole was approved by the Board of Pardons and Parole, there is neither any showing that he was extended good conduct allowances by the Director of Prisons, nor was he granted pardon by the President. Hence, there is no basis for respondent in allowing Bagaporo to be released on recognizance.

Moreover, respondent should know that the provisions of Sections 5 and 16, Rule 114 of the Rules of Court apply only to an accused undergoing preventive imprisonment during trial or on appeal. They do not apply to a person convicted by final judgment and already serving sentence.

We have held time and again that a judge is called upon to exhibit more than just a cursory acquaintance with statutes and procedural rules.[22] It is imperative that he be conversant with basic legal principles and be aware of well-settled authoritative doctrines.[23] He should strive for excellence exceeded only by his passion for truth, to the end that he be the personification of justice and the rule of law.[24] When the law is sufficiently basic, a judge owes it to his office to simply apply it; anything less than that would be gross ignorance of the law.[25] In the present case, we find respondent’s ignorance or utter disregard of the import of the provisions of Sections 5, 16 and 24, Rule 114 of the Rules of Court as tantamount to gross ignorance of the law and procedure.

As to the imposable penalty, Section 8(9), Rule 140 of the Rules of Court, as amended, classifies gross ignorance of the law or procedure as a serious charge. Under Section 11(A) of the same Rule, the imposable penalty, in case the respondent is found culpable of a serious charge, ranges from a fine of not less than P20,000.00 but not more than P40,000.00 to dismissal from the service.

This is not the first time that respondent judge was found guilty of gross ignorance of the law and procedure. In Docena-Caspe vs. Bugtas,[26] respondent was fined P20,000.00 for having granted bail to an accused in a murder case without conducting hearing for the purpose of determining whether the evidence of guilt is strong. He was warned that a repetition of the same or similar act shall be dealt with more severely. Hence, we deem it proper to impose the penalty of P40,000.00.

WHEREFORE, respondent Judge Arnulfo O. Bugtas is found guilty of gross ignorance of the law. He is ordered to pay a FINE in the amount of Forty Thousand Pesos (P40,000.00) and is STERNLY WARNED that a repetition of the same or similar act shall be dealt with more severely.

People vs bucalon

Raising only questions of law, the People’s petition for review on certiorari assails the January 31, 2007 Decision[1] of the Court of Appeals which affirmed the November 12, 2002 Order of the Regional Trial Court (RTC) of Surigao City, Br. 29 in Criminal Case

No. 5144 (the case) fixing bail for the temporary liberty of Luis Bucalon Plaza alias Loloy Plaza (respondent) who was indicted for Murder.

The case was originally raffled to Branch 30 of the Surigao RTC presided by Judge FloripinasBuyser (Judge Buyser).After the prosecution rested its case, respondent, with leave of court, filed a Demurrer to Evidence.[2] The Demurrer was denied by Judge Buyser by Order[3] of March 14, 2002, the pertinent portion of which reads:

The evidence thus presented by the prosecution is sufficient to prove the guilt of the accused beyond reasonable doubt, but only for the crime of homicide and not for murder, as charged. This is because the qualifying circumstance of treachery alleged in the information cannot be appreciated in this case.The defense thereupon presented evidence[4] in the course of which respondent filed a Motion to Fix Amount of Bail Bond,[5] contending that in view of Judge Buyser’s ruling that the prosecution evidence is sufficient to prove only Homicide, he could be released on bail. He thus prayed that the bail bond for his temporary liberty be fixed at P40,000.00 which he claimed was the usual bond for Homicide in the RTC of Surigao City and Surigao del Norte. In its Opposition to Motion to Fix Amount of Bail Bond,[6] the prosecution contended, in the main, that the case being for Murder, it is non-bailable as the imposable penalty is reclusion temporal to death; that it is the public prosecutor who has exclusive jurisdiction to determine what crime the accused should be charged with; that the accused should have filed a motion/application to bail and not just a motion to fix the amount of the bail bond; that the accused had already waived his right to apply for bail at that stage of the proceedings; that Judge Buyser’s March 14, 2002 Order, being a mere opinion and not a ruling or a dispositive part thereof, produced no legal effect inasmuch as it had no jurisdiction to rule on a matter outside the Demurrer; and that under the Rules, the prosecution could still prove the existence of treachery on rebuttal after the defense has rested its case.During the hearing of the Motion to Fix Amount of Bail Bond, Senior State Prosecutor Rogelio Bagabuyo questioned Judge Buyser’s impartiality, prompting the judge to inhibit himself and to order the case transferred to Branch 29 of the RTC for further proceedings.Branch 29 Presiding Judge Jose Manuel Tan (Judge Tan) heard the Motion to Fix Amount of Bail Bond.By Order[7] of November 12, 2002, Judge Tan, concurring with the finding of Judge Buyser that since the prosecution evidence proved only Homicide which is punishable by reclusion temporal and, therefore, bailable, ruled that respondent could no longer be denied bail. He accordingly granted respondent’s Motion and fixed the amount of his bond at P40,000.Petitioner’s motion for reconsideration cum prayer for inhibition of Judge Tan was denied for lack of merit. Respondent was subsequently released[9] after he posted a P40,000 bond.

Roberto Murcia (Roberto), the victim’s brother, impleading the People as co-petitioner, assailed the trial court’s orders via petition for certiorari[10] with the Court of Appeals.

Roberto faulted Judge Tan for granting bail without an application for bail having been filed by respondent and without conducting the mandatory hearing to determine whether or not the prosecution’s evidence is strong.

The Office of the Solicitor General (OSG) adopted Roberto’s argument that the grant of bail to respondent without any separate hearing is contrary to prevailing jurisprudence.

By Decision of January 31, 2007, the appellate court, observing that the allegations in respondent’s Motion to Fix Amount of Bail Bond constituted an application for bail, dismissed Roberto’s petition and affirmed Judge Tan’s orders.[11]

In its present petition, the People contends that

THE COURT OF APPEALS DECIDED A QUESTION OF SUBSTANCE CONTRARY TO LAW AND SETTLED JURISPRUDENCE WHEN IT RULED THAT THE HEARING CONDUCTED SATISFIES THE REQUIREMENT OF DUE PROCESS AND THAT RESPONDENT IS ENTITLED TO BAIL[12]

Section 13, Article III of the Constitution provides that "All persons, except those charged with offenses punishable by reclusion perpetua when evidence of guilt is strong, shall, before conviction, be bailable by sufficient sureties, or be released on recognizance as may be provided by law.”

Section 4 of Rule 114 of the Revised Rules of Court, as amended, thus provides that all persons in custody shall, before conviction by a regional trial court of an offense not punishable by death, reclusion perpetua or life imprisonment, be admitted to bail as a matter of right.

The exercise by the trial court of its discretionary power to grant bail to an accused charged with a capital offense thus depends on whether the evidence of guilt is strong. Stressing this point, this Court held:

. . . [W]hen bail is discretionary, a hearing, whether summary or otherwise in the discretion of the court, should first be conducted to determine the existence of strong evidence or lack of it, against the accused to enable the judge to make an intelligent assessment of the evidence presented by the parties. A summary hearing is defined as “such brief and speedy method of receiving and considering the evidence of guilt as is practicable and consistent with the purpose of hearing which is merely to determine the weight of evidence for the purposes of bail.” On such hearing, the court does not sit to try the merits or to enter into any nice inquiry as to the weight that ought to be allowed to the evidence for or against the accused, nor will it speculate on the outcome of the trial or on what further evidence may be therein offered and admitted. The course of inquiry may be left to the discretion of the court which may confine itself to receiving such evidence as has reference to substantial matters, avoiding unnecessary examination and cross examination.”[13] (Emphasis and underscoring supplied)

Since Judge Tan concurred with the assessment by Judge Buyser of the prosecution evidence when he denied the Demurrer and the latter’s statement that the evidence was sufficient to convict respondent of Homicide, holding a summary hearing merely to determine whether respondent was entitled to bail would have been unnecessary as the evidence in chief was already presented by the prosecution.

The People’s recourse to Section 5,[14] Rule 114 of the Revised Rules of Criminal Procedure to support its contention that respondent should be denied bail is unavailing, for said Section clearly speaks of an application for bail filed by the accused after a judgment of conviction has already been handed down by the trial court.

WHEREFORE, the petition is DENIED.

de la camara vs engage

An order of respondent Judge Manuel Lopez Enage, fixing the bail of petitioner, Ricardo de la Camara, in the sum of P1,195,200.00 is assailed in this petition for certiorari as repugnant to the constitutional mandate prohibiting excessive bail. 1 The merit of the petition on its face is thus apparent. Nonetheless, relief sought setting aside the above order by reducing the amount of bail to P40,000.00 cannot be granted, as in the meanwhile, petitioner had escaped from the provincial jail, thus rendering this case moot and academic. It is deemed advisable, however, for the guidance of lower court judges, to set forth anew the controlling and authoritative doctrines that should be observed in fixing the amount of the bail sought in order that full respect be accorded to such a constitutional right.

The facts are not in dispute. Petitioner, Ricardo, de la Camara, Municipal Mayor of Magsaysay, Misamis Oriental, was arrested on November 7, 1968 and detained at the Provincial Jail of Agusan, for his alleged participation in the killing of fourteen and the wounding of twelve other laborers of the Tirador Logging Co., at Nato, Esperanza, Agusan del Sur, on August 21, 1968. Thereafter, on November 25, 1968, the Provincial Fiscal of Agusan filed with the Court of First Instance a case for multiple frustrated murder 2 and another for multiple murder 3 against petitioner, his co-accused NambinalotTagunan and FortunatoGalgo, resulting from the aforesaid occurrence. Then on January 14, 1969, came an application for bail filed by petitioner with the lower court, premised on the assertion that there was no evidence to link him with such fatal incident of August 21, 1968. He likewise mantained his innocence. Respondent Judge started the trial of petitioner on February 24, 1969, the prosecution resting its case on July 10, 1969. As of the time of the filing ofthe petition, the defense had not presented its evidence.

Respondent Judge, on August 10, 1970, issued an order granting petitioner's application for bail, admitting that there was a failure on the part of the prosecution to prove that petitioner would flee even if he had the opportunity,but fixed the amount of the bail bond at the excessive amount of P1,195,200.00,the sum of P840,000.00 for the information charging multiple murder and P355,200.00 for the offense of multiple frustrated murder. Then came the allegation that on August 12, 1970, the Secretary of Justice, Vicente Abad Santos, upon being informed of such order, sent a telegram to respondent Judgestating that the bond required "is excessive" and suggesting that a P40,000.00bond, either in cash or property, would be reasonable. There was likewise a motion for reconsideration to reduce the amount. Respondent Judge however remained adamant. Hence this petition.

The answer filed by respondent Judge on March 5, 1971 set forth the circumstances concerning the issuance of the above order and the other incidents of the case, which, to his mind would disprove any charge that he wasguilty of grave abuse of discretion. It stressed, moreover, that the challengedorder would find support in circulars of the Department of Justice given sanction by this Court. He sought the dismissal of the petition for lack of merit.

In the hearing of the case set for March 31, 1971, there was no appearance for both the petitioner and respondents with the former, upon written motion, being given thirty days within which to submit a memorandum in lieu of oral argument, respondent Judge in turn having the same period from receipt thereofto file his reply. Such a memorandum as duly submitted by petitioner on April 6, 1971.Instead of a reply, respondent Judge

submitted, on May 26, 1971, a supplemental answer wherein he alleged that petitioner escaped from the provincial jail on April 28, 1971 and had since then remained at large. There was a reiteration then of the dismissal of this petition for lack of merit, towhich petitioner countered in a pleading dated June 7, 1971, and filed with this Court the next day with this plea: "The undersigned counsel, therefore, vehemently interpose opposition, on behalf of petitioner, to respondent's prayer for dismissal of the present petition for lack of merit. For, the issue in this case is not alone the fate of petitioner Ricardo de la Camara. The issue in the present petition that calls for the resolution of this Honorable Tribunal is the fate of countless other Ricardo de la Camaras who maybe awaiting the clear-cut definition and declaration of the power of trial courts in regard to the fixing of bail."

While under the circumstances a ruling on the merits of the petition for certiorari is not warranted, still, as set forth at the opening of this opinion, the fact that this case is moot and academic should not preclude thisTribunal from setting forth in language clear and unmistakable, the obligationof fidelity on the part of lower court judges to the unequivocal command of theConstitution that excessive bail shall not be required.

1. Before conviction, every person is bailable except if charged with capital offenses when the evidence of guilt is strong. 5 Such a right flows from the presumption of innocence in favor of every accused who should not be subjected to the loss of freedom as thereafter he would be entitled to acquittal, unless his guilt be proved beyond reasonable doubt. Thereby a regimeof liberty is honored in the observance and not in the breach. It is not beyondthe realm of probability, however, that a person charged with a crime, especially so where his defense is weak, would just simply make himself scarceand thus frustrate the hearing of his case. A bail is intended as a guarantee that such an intent would be thwarted. It is, in the language of Cooley, a "mode short of confinement which would, with reasonable certainty, insure the attendance of the accused" for the subsequent trial. 6 Nor is there, anything unreasonable in denying this right to one charged with a capital offense when evidence of guilt is strong, as the likelihood is, rather than await the outcome of the proceeding against him with a death sentence, an ever-present threat, temptation to flee the jurisdiction would be too great to be resisted.

2. Where, however, the right to bail exists, it should not be rendered nugatory by requiring a sum that is excessive. So the Constitution commands. It is understandable why. If there were no such prohibition, the right to bail becomes meaningless. It would have been more forthright if no mention of such a guarantee were found in the fundamental law. It is not to be lost sight of that the United States Constitution limits itself to a prohibition against excessive bail. 7 As construed in the latest American decision, "the sole permissible function of money bail is to assure the accused's presence at trial, and declared that "bail set at a higher figure than an amount reasonablycalculated to fulfill thus purpose is "excessive" under the Eighth Amendment." 8

Nothing can be clearer, therefore, than that the challenged order of August 10, 1970 fixing the amount of P1,195,200.00 as the bail that should be posted by petitioner, the sum of P840,000.00 for the information charging multiple murder, there being fourteen victim, and the sum of P355,200 for the other offense of multiple frustrated murder, there being twelve victims, is clearly violative of constitutional provision. Under the

circumstances, there being only two offenses charged, the amount required as bail could not possibly exceed P50,000.00 for the information for murder and P25,000.00 for the other information for frustrated murder. Nor should it be ignored in this case that the Department of Justice did recommend the total sum of P40,000.00 for the twooffenses.

3. There is an attempt on the part of respondent Judge to justify what, on its face, appears to be indefensible by the alleged reliance on Villaseñor v. Abano. 9 The guidelines in the fixing of bail was there summarized, in the opinion of Justice Sanchez, as follows: "(1) ability of the accused to give bail; (2) nature of the offense; (3) penalty for the offense charged; (4) character and reputation of the accused; (5) health of the accused; (6) character and strength of the evidence; (7) probability of the accused appearing in trial; (8) forfeiture of other bonds; (9) whether the accused wasa fugitive from justice when arrested; and (10) if the accused is under bond for appearance at trial in other cases." 10 Respondent Judge, however, did ignore this decisive consideration appearing at the end of the above opinion: "Discretion, indeed, is with the court called upon to rule on the question of bail. We must stress, however, that where conditions imposed upon a defendant seeking bail would amount to a refusal thereof and render nugatory the constitutional right to bail, we will not hesitate to exercise our supervisorypowers to provide the required remedy."No attempt at rationalization can therefore give a color of validity to the challenged order. There is grim irony in an accused being told that he has a right to bail but at the same time being required to post such an exorbitant sum. What aggravates the situation is that the lower court judge would apparently yield to the command of the fundamental law. In reality, such a sanctimonious avowal of respect for a mandate of the Constitution was on a purely verbal level. There is reason to believe that any person in the position of petitioner would under the circumstances be unable to resists thoughts of escaping from confinement, reduced as he must have been to a stateof desperation. In the same breath that he was told he could be bailed out, the excessive amount required could only mean that provisional liberty would bebeyond his reach. It would have been more forthright if he were informed categorically that such a right could not be availed of. There would have beenno disappointment of expectations then. It does call to mind these words of Justice Jackson, "a promise to the ear to be broken to the hope, a teasing illusion like a munificent bequest in a pauper's will." 12 It is no wonder that the resulting frustration left resentment and bitterness in its wake.Petitioner's subsequent escape cannot be condoned. That is why he is not entitled to the relief prayed for. What respondent Judge did, however, does call for repudiation from this Court.

Nor is there any justification then for imputing his inability to fix a lesser amount by virtue of an alleged reliance on a decision of this Tribunal. Even if one were charitably inclined, the mildest characterization of such a result is that there was a clear reading of the Abano opinion when such a meaning was ascribed to it. No doctrine refinement may elicit approval if to doso would be to reduce the right to bail to a barren form of words. Not only isthe order complained of absolutely bereft of support in law, but it flies in the face of common sense. It is not too much to say that it is at war with thecommand of reason.

With petitioner, however, having escaped from the provincial jail, no ruling can be had on his plea to nullify the above order.

WHEREFORE, this case is dismissed for being moot and academic. Without pronouncement as to costs.

Pestanovs judge velasco

People vsdonato

Habeas Corpus – Right to Bail – Rebellion

Salas aka NPA’s “KaBilog” was arrested and was charged for rebellion. He was charged together with the spouses Concepcion. Salas, together with his co-accused later filed a petition for the WoHC. A conference was held thereafter to hear each party’s side. It was later agreed upon by both parties that Salas will withdraw his petition for the WoHC and that he will remain in custody for the continued investigation of the case and that he will face trial. The SC then, basing on the stipulations of the parties, held to dismiss the habeas corpus case filed by Salas. But later on, Salas filed to be admitted for bail and Judge Donato approved his application for bail. Judge Donato did not bother hearing the side of the prosecution. The prosecution argued that Salas is estopped from filing bail because he has waived his right to bail when he withdrew his petition or habeas corpus as a sign of agreement that he will be held in custody.

ISSUE: Whether or not Salas can still validly file for bail.

HELD: The SC ruled that Salas did waive his right to bail when he withdrew his petition for the issuance of the WoHC. The contention of the defense that Salas merely agreed to be in custody and that the same does not constitute a waiver of his right to bail is not tenable. His waiver to such right is justified by his act of withdrawing his petition for WoHC.

Almeda vs. Villaluz

F: The accused was charged with qualified theft of a motorcycle. He filed a petition to post a surety bond for his provisional release. The respondent judge denied the petition and rendered a decision that he will only grant a bail bond if it will be in cash. The amount is P15,000.00.

I: Did the judge gravely abused his discretion?

D: Yes. The purpose of bail bond is to secure the appearance of the accused during the hearing or whenever his presence is required by the court. Bail bond is neither penalty nor revenue for the government. A bail bond generally presupposes asurety to whom the body of the accused can be delivered. It is only because it is provided in our law that bail bond in the form of cash is accepted by our courts, otherwise, it is unacceptable.

Marcos vscruz

Villasenor vs abano

FACTS

-Petitioner, a mere government employee, earning but a monthly salary, of P210.00, and the sole breadwinner of a family of five, was charged with the murder of a Boac police sergeant. He was admitted to a P60k bail which was reduced to P40k. The petitioner on May 29 posted a property bond and was set at provisional liberty.-However, respondent Provincial Fiscal amended the information, now accusing the

petitioner with “Direct Assault Upon an Agent of a Person in Authority with Murder" before the arraignment on the murder charge. So on August 7, respondent judge cancelled the petitioner’s bond and ordered his immediate arrest.-On September 9 upon petitioner’s motion to reconsider, the respondent judge resolved to admit petitioner to bail provided he puts up a cash bond of P60k.-On September 15, on petitioner’s motion that original bond previouslygivenbe reinstated, respondent judge resolved to fix "the bond anew in real property in the amount of P60,000, but to be posted only by residents of the province of Marinduque actually staying, therein" with properties which "must be in the possession and ownership of said residents for five years."-On October 1, petitioner filed a prayer for prelim injunction to SC, seeking to set aside respondent judge orders of August 7, September 9 and 15, andto reinstate the bail bond approved on May 29(original bond), charging the respondent judge of having acted w/o and/or in excess of his jurisdiction and w/grave abuse of discretion, and w/ violation of the Consti and the ROC in issuing the disputed orders-Oct 3: the Court issued a writ of preliminaryinjunction upon a P1k bond.-Nov 5: SC allowed continuation of the proceedings of the criminal case to avoid delay in its prosecution.

ISSUES

1. WON the orders of August 7 and 9 should be set aside

2. WON THE P60K bond fixed by respondent judge transgress the constitutional injunction that “excessive bail shall not be required?

3. WON the condition that the property bond be posted only by "residents of the province of Marinduque actually staying therein" is within thepower of the respondent judge4. WON the requirement that properties to be offered as bond must be "in the possession and ownership of the sureties for at least five years” is within thepower of the respondent judge

HELD1. NO NEED

Ratio: A rule of ancient respectability is that it is notthe function of a court of justice to furnish answers topurposeless questions that no longer exist.

Reasoning: The said orders were replaced by thelast order of September 15, 1964, by virtue of whichthe cash bond required was reverted back toproperty bond. The two orders of August 7 andSeptember 9, 1964 thus became functusoffcio.

2. NO

Ratio: the principal factor considered, to thedetermination of which most other factors are directed, is the probability of the appearance of theaccused, or of his flight to avoid punishment.

Reasoning: Guidelines in fixing bail: (1) ability of theaccused to give bail; (2)) nature of the offense; (3)penalty for the offense charged; (4) character andreputation of the accused; (5) health of the accused;(6) character and strength of the evidence; (7)probability of the accused appearing at trial; (8)forfeiture of other bonds; (9) whether the accused was a fugitive from justice when arrested; and (10) if the accused is under bond for appearance at trial in other cases.-

Section 1, Rule 114, Rules of Court (definitionof bail):

"the security required and given for therelease of a person who is in the custody of the law, that he will appear before any court in which hisappearance may be required as stipulated in the bailbond or recognizance."-Circular 47 of the Department of Justice, reiteratedin Circular 48, directed prosecuting attorneys torecommend bail at the rate of P2,000.00 per year of imprisonment, corresponding to the medium periodof the penalty prescribed for the offense charged,unless circumstances warrant a higher penalty. Here,petitioner is charged with a capital offense, directassault upon an agent of a person in authority withmurder. A complex crime, it may call for theimposition of capital punishment.

3. YES

Ratio: Bondsmen in criminal cases, residing outsideof the Philippines, are not within the reach of theprocesses of its courts.- Bail is given to secure appearance of the accused. If bondsmen reside in far away places, even if withinthe Philippines, the purpose of bail may befrustrated.

Reasoning: Weighing as heavily against petitioner'scase is the fact that a reading of his petition fails of an averment that the requisite exacted thatbondsmen be residents of and actually staying inMarinduque would cause him prejudice. The burdenof his arguments solely is that such a condition runscounter to the rules of court (

Section 9, Rule 114,Rules of Court

1 )reason why respondent judge issued such condition: it is hard to send notices to people outside of the province through registered mail accompanied by return cards which in many instances have not been received in court when trial comes and when the parties fail to appear, there is no way of knowing whether the notices have been duly received; therefore, he cannot order the confiscation of the bond and the arrest of the accused because he is not sure whether the bondsmen have been duly notified; that sending telegrams to people outside the province is costly, and the court cannot afford to incur much expenses.

4. YES

Reasoning: Circular 2 of the Secretary of Justice, addressed, amongst others, to Judges of First Instance recites that it had been brought to the attention of the Department of Justice that in certain provinces, unscrupulous persons who are spurious land owners have been accepted as sureties. The Secretary then suggested that "(1)t may be a good policy not to accept as bail bonds real properties not covered by certificates of title unless they have been declared for taxation purposes in favor of the person offering them as bond for at least five (5) years."-rationale of Circular 2: prevent the commission of frauds in connection with the posting of personal bail bonds and to protect the interests of the Government.- the order of September 15, 1964 is to be understood as excluding properties covered by Torrens titles from the requirement that properties to be offered as bond must be "in the possession and ownership of the sureties for at least five years.

P vs IAC

This is a petition for review on certiorari of the decision of respondent Intermediate Appellate Court (IAC) now Court of Appeals (CA), in AC-G.R. No. SP-01320-22 promulgated January 24, 1984, granting the petition for bail of accused AngelitoAlivia y Abalos and nullifying the Orders of the trial court, dated February 23, 1983 and May 13, 1983 in Criminal Cases Nos. 1272-74, entitled People of the Philippines vs. AngelitoAlivia y Abalos. Said orders of the trial court denied accused's application for bail holding that the accused AngelitoAlivia is charged with three (3) capital offenses, the evidence of guilt of which, in each case, is strong.

Accused AngelitoAlivia y Abalos was charged before the then CFI of Isabela with the crimes of (1) assault upon an agent of person in authority with murder with the use of illegally possessed firearm, with respect to the killing of Lt. Cesar Rumbaoa (Crim. Case No. 1272), (2) assault upon an agent of person in authority with murder with use of illegally possessed firearm (Crim. Case No. 1274) and (3) murder of Atty. Norberto Maramba with the use of illegally Possessed firearm, (Crim. Case No. 1273). The trial court ordered the consolidation of the three (3) criminal cases since they arose from the same incident. The Provincial Fiscal recommended no bail for the accused in the three aforementioned cases. Accused filed an omnibus motion praying among other things that he be allowed bail contending that the evidence of his guilt is not strong, but said motion was denied by the trial court. Upon denial of his Motion for Reconsideration, accused filed with the IAC a petition for certiorari questioning the decision of the trial court on his motion for bail. After considering the records of the criminal cases which were transmitted to it from the trial court, the IAC promulgated a decision granting petitioner bail and nullifying the Orders of the trial court dated February 23, 1983 and May 13, 1983 and fixing the amount of bail at Eighty Thousand Pesos (P50,000.00). After denial of petitioner's motion for reconsideration, the present petition was filed,

The facts as found by the trial court, which facts were adopted by respondent IAC, 1 are as follows:

At the recently concluded barangay elections for barangay Sarangay, Cabatuan, Isabela, two candidates ran for the position of Barangay Captain thereat, namely accused AngelitoAlivia and one Antonio Bagauisan. Herein accused lost in that election, but he filed with the Municipal Circuit Court of Cabatuan, an election protest. Antonio Bagauisan was duly proclaimed and he assumed office accordingly. The late former Municipal Judge of Cabatuan, Atty. Norberto Maramba (Criminal Case No. 1273) was counsel for the protestee. (tsn., pp. 27-28, November 16, 1982).

The hearing of the election protest was set in the morning of June 4, 1982, but was postponed. After which, at about 10:00 o'clock that same morning, the late Atty. Maramba invited witness VirgilioYanuaria, the late Police Lt. Cesar Rumbaoa (Criminal Case No. 1272), Antonio Bagauisan and others to play bowling/billiards at the Cabatuan Recreation Center. They played up to 2:00 o'clock in the afternoon of the same day with the bet that the loser will pay the beer they will order. (tsn., pp. 28-29, Ibid).

Later, the late Atty. Maramba, Police Lt. Rumbaoa and witness VirgilioYanuaria (Antonio Bagauisan did not join them) proceeded to the Azarcon Restaurant at the public market, Cabatuan, Isabela, for lunch. They occupied round table No. 2 (see sketch). The late Police Lt. Rumbaoa was seated on chair No. A, facing west, the late Atty. Maramba, on chair No. B, facing south and witness VirgilioYanuaria in chair No. C,

facing east. They ordered lunch and three (3) bottles of beer, but Atty. Maramba did not drink, because he joined the group of accused AngelitoAlivia. (tsn., pp. 20, 29- 34, Ibid)

It appears that the group of the accused AngelitoAlivia arrived at the Azarcon Restaurant much earlier, and those members of the group are (1) AngelitoAlivia, accused herein; (2) Municipal Judge EstanislaoCudal; (3) Feliciano Gaspar; (4) Pat. ElpidioSagun; (5) Pat. Danilo Rosario; (6) Engr. Charlie Martin; (7-8) a newly married couple, not Identified. The late Patrolman ElpidioSagun and witness Pat. Danilodel Rosario also went to the Azarcon Restaurant to buy pansit noodles, but were invited by the accused to join them in their group while drinking beer with chaser (pullutan).lwphl@itç Accused AngelitoAlivia told Pat. del Rosario to drop by his house and get ammunition for pistol Cal. .38 and Pat.ElpidioSagun for the armalite magazine. (tsn., pp. 88- 93, November 17, 1982).

The relative positions and sitting arrangements of the two groups as found in the ocular inspection conducted in the morning of November 17, 1982, at the Azarcon Restaurant, Cabatuan are the following (pp. 130-131, record, Crim. Case No. 1272)

The group of accused AngelitoAlivia was the first to arrive at the Azarcon Restaurant, and this group joined two small square tables, Identified as square tables Nos. 5 and 6, to form a rectangle. There are eight (8) of them, namely: (1), accused AngelitoAlivia, who seated himself on a stool marked (AA) north of square table No. 5; (2) Pat. Danilo Rosario, was seated on a stool marked (DR) left of accused Alivia, who was facing south, square table No. 5; (3) a man, unknown, occupied a stool marked (UK); (4) further left, by Feliciano Gaspar, occupied a stool marked (EG); (5) exactly opposite the accused, was seated Municipal Judge EstanislaoCudal marked (EC) on square table No. 6; (6) on his left, was seated the late Pat. ElpidioSagun, on a stool marked (ES) in square table No. 6; (7) left of ElpidioSagun, was seated, Engr. Charlie Martin, marked (CM) on table No. 6, and (8) on his left, was the woman, unknown, on square table No. 5, (tsn., pp. 24- 29 November 17, 1982).

The three member group of the late Atty. Maramba, who arrived later, occupied round table No. 2, namely: (l) the late Police Lt. Cesar Rumbaoa, facing west, occupied chair A; (2) the late Atty. Maramba, facing south, occupied chair B; and (3) witness VirgilioYanuaria, facing east, occupied chair C. (tsn, pp. 22-23, November 17, 1982).

The distance from chair B, occupied by the late Atty. Maramba, in round table No. 2, to the tip of square table No. 6, where Judge Cudal was seated is 90 centimeters, and the distance from the seat of accused AngelitoAlivia, north of square table No. 5, to the stool of Judge Cudal, which was later occupied by the late Atty. Maramba is around 189 centimeters. (tsn., pp. 19-21, Ibid)

Upon arrival at the Azarcon restaurant, the late Atty. Maramba, engaged Municipal Judge EstanislaoCudal in a conversation on topics, among which was about the barangay election. Thereafter, Judge Cudal and Feliciano Gaspar left and proceeded to the municipal building. When Judge Cudal and Gaspar left, the late Atty. Maramba seated himself on the stool formerly occupied by Judge Cudal and engaged the accused AngelitoAlivia who was seated opposite north of square table No. 5, at a distance of 189 centimeters facing each other, in a conversation on matters the witness can not remember. (tsn., pp. 30-31, November 17, 1982; tsn., pp. 94- 97, November 17, 1982)

Meanwhile, Pat. del Rosario noticed accused AngelitoAlivia go out from the Azarcon Restaurant thru the main door (No. 1) towards the west of the restaurant, where his car was parked three (3) meters from the main door, east (west) side of the restaurant. (Tsn., pp- 98-100, November 17, 1982).

Later, AngelitoAlivia returned to his former place. In a little while, Patrolman Danilo del Rosario stood up and went to the municipal building, while the late Patrolman ElpidioSagun remained inside the restaurant. (tsn., pp. 103-104, November 17, 1982).

The lunch ordered by the group of the late Atty. Maramba being ready, the late Police Lt. Cesar Rumbaoa called for Atty. Maramba to join them and eat ("kakainnatayo"). Hence, the late Atty. Maramba stood up from where he was then seated with the group of accused AngelitoAlivia. However, he was not able to reach round table No. 2 to eat, because he was suddenly shot on the chest (Dr. Angobung) by accused AngelitoAlivia using a firearm Identified as Llama Automatic Pistol Super 38, SN-532937 (Exh., "K") causing him to fall the cemented floor. ( t.s.n., pp. 32-34, November 17, 1982)

While in that lying position, again he was shot on the neck, Both gunshot wounds caused his instantaneous death. Before the second gun report when VirgilioYanuaria was about to run, the late Patrolman ElpidioSagun who was on his left pushed VirgilioYanuaria to save him using his right hand pressing the left shoulder of Yanuaria. After which, Yanuaria walked crouching passing thru the inside door (No. 3) and went out thru door No. 2, and proceeded to the municipal building to report the incident, after hearing successive gun reports, the number he cannot remember. (tsn., pp. 20-22, 34-35, November 17, 1982)

Witness VirgilioYanuaria reported the incident to Cpl. Jose Pascual in the presence of Pat. Danilodel Rosario saying "LitoAlivia shot Atty. Maramba." Immediately, four policemen, namely, Pat. Danilodel Rosario, Pat, Jose Pascual, Pat. Jose Angangan and another one, went to the crime scene. They were later followed by Pat. CelestinoApaya and Pat. Ricardo Pedro. Thereat, they saw the body of the late Police Lt. Rumbaoa (dead already) at the main door (door No. 1) lying face upward, and inside they saw the body of the late Atty. Maramba (dead already) face downward and that of the late Pat. Sagun (still breathing) face upward (tsn., pp. 45-49), November 17, 1982)

Meanwhile, Dr. Benedicto Acosta, the incumbent Municipal Mayor of Cabatuan, arrived from Ilagan, at about 3:10, afternoon of June 4, 1982. In front of his business residence at Centro, Cabatuan, he was informed by Dr. Rolando Dacuycuy, a brother-in-law of the accused, about the shooting incident. Because he was then riding on his car, he invited him to see the incident, but Dr. Dacuycuy did not get inside the restaurant, while Mayor Acosta went inside to investigate the matter in his capacity as Chief Executive of the town. (tsn., pp. 237-238, September 21, 1982)

Inside the restaurant, he saw the owner of the restaurant Mrs. Azarcon, two maids and two dead bodies, Identified as those of the late Atty. Maramba and Police Lt. Rumbaoa. He did not see the body of the late Pat. ElpidioSagun because he was informed that he was then still alive and was rushed to the emergency hospital in Cauayan but died at the junction at Luna, Isabela. In his ocular inspection of the crime scene, he picked up five (5) empty shells (Exhs. "K-2", K- 3", "K.4", "K-5" and "K-6"), the four inside the restaurant, while the other one was recovered outside just in front of the main door. He likewise recovered inside the restaurant one (1) deformed lead/slug (Exh. "K-8") and two (2) lead cores (Exhs. "K-9" and "K-10").lwphl@itç He asked the owner Mrs. Delia

Azarcon who shot and kill the late Atty. Maramba and Police Lt. Cesar Rumbaoa and she said it was AngelitoAlivia who shot them. Being a doctor himself, he examined the two bodies and found that the late Atty. Maramba suffered two gunshot wounds, one at the left occipital region on the head and one at the interior surface of the scapula (chest) with a bore at his T-shirt. In the case of the late Police Lt. Cesar Rumbaoa, he suffered a gunshot wound at the left maxilla surrounded by blackening discolorations and another wound at the left lateral surface, both of the neck and also a gunshot wound at the right lateral root of the neck. (tsn., pp. 238-250, Ibid)

When Pat. Pedro Constancio arrived, Mayor Acosta directed him to call for a photographer and also Dr. Juan Rigor, Jr., the Rural Health Officer of Cabatuan. Photographer de la Cruz took the pictures and Dr. Rigor examined the cadavers of the two bodies. The pictures taken were developed and Mayor Acosta Identified the pictures of the late Police Lt. Cesar Rumbaoa, as Exhs. "P", "P-1", "P-2", and "P-3", appearing on Pages 35-36-A, record, in Criminal Case No. 1272. Similarly, pictures were taken of the dead body of the late Atty. Maramba, duly Identified by Mayor Acosta (Exh. "Q," p. 22, record, Crim. Case No. 1273). Later Mayor Acosta called for Pat. Miguel Orodio, INP, Investigator, Cabatuan, Isabela. lie also found inside the restaurant one, revolver, inside a tuck in holster. He likewise noticed three (3) bullet marks, one beside the fallen body of Atty. Maramba, another just beneath the head of Police Lt. Rumbaoa and the other at the left side wan of the restaurant. (tsn., pp. 250-274, Ibid)

The empty shells and slugs were given to Cpl. Jose Pascual and the latter submitted them to the Police Investigator. These empty shells, cartridge and deformed slugs, together with the Llama automatic pistol Cal. 38 with magazine were later submitted to the NBI, Manila, for ballistic examination, which were examined by Feliciano S. Lunasco, NBI, Supervising Ballistician, and testified in Court that the empty shells, deformed slugs, cartridge and lead cores were fired from the same firearm (Exh. "K"). (tsn., pp. 285-288, September 21, 1982; tsn., pp. 203-210, December 15, 1982)

Dr. Ruben Angobung, NBI, Medico Legal Officer, testified that he conducted the autopsy examination on the cadaver of the deceased Atty. Norberto Maramba, Police Lt. Cesar Rumbaoa and Pat. ElpidioSagun upon request of their relatives. The cause of death of each of the three (3) victims was hemorrhage due to gun shot wounds. It was possible that deceased Atty. Maramba and Police Lt. Cesar Rumbaoa were likewise shot when they have already fallen on the cemented floor as evidenced by the, gunshot wounds on their heads. He found - and marks on the head of Police Lt. Rumbaoa which shows that the assailant ' was shot at close range and the muzzle of the gun used was at distance of not more than 24 inches from the head. From the trajectory of the gunshot wounds on the head of the deceased Atty. Maramba and Police Lt. Cesar Rumbaoa, it was possible that the assailant was then at the back of said victims (Testimony of Dr. Angobung). (tsn., pp. 86-148, December 1, 1982)

Immediately after the shooting, the accused AngelitoAlivia, accompanied by his uncle and counsel de parte, Atty. ArtemioAlivia, voluntarily surrendered to the Provincial Commander, Col. Oscar M. Florendo, at the PC Headquarters, Calamagui, Ilagan, Isabela. The accused verbally admitted to Col. Florendo that he shot to death the late Atty. Maramba, Police Lt. Cesar Rumbaoa and Pat. ElpidioSagun, at the Azarcon Restaurant, located at the public market, Cabatuan, Isabela. In the process, the accused surrendered the firearm, Llama automatic Pistol SN-532937 (Exh. "K") which he used in the killing of the three (3) victims, (tsn., pp. 158-167, December 15, 1982)

In addition to this, the accused executed an extra-judicial confession (Exhs. "J", "J-1" and "J-2"), taken by M/SgtSeverinoGoday ,Jr., PC, in that same afternoon of June 4, 1982, at PC, Headquarters in the presence of his lawyer uncle. He freely and voluntarily admitted having shot to death Atty. Norberto Maramba at Centro, Cabatuan, Isabela, Police Lt. Cesar Rumbaoa and Pat. ElpidioSagun, both of INP, Cabatuan, at around 2:00 o'lock P.M. of June 4, 1982, inside the Azarcon Restaurant, located inside the public Market of Cabatuan, Isabela with the use of Llama automatic pistol Cal. 38, SN-532937 (Exh. "K"). (Testimonies of Col. Oscar M. Florendo and M/Sgt. SeverinoGoday Jr., PC). (tsn., pp. 218-225, September 21, 1982).

C. FACTUAL ANALYSIS

Counsel for the defense admits that the offenses with which the accused was charged are capital offences, which carry the ;supreme penalty of death.

Eyewitness VirgilioYanuaria testified that the accused AngelitoAlivia suddenly shot the late Atty. Norberto Maramba, when the latter stood up, to eat lunch upon call by the late Police Lt. Cesar Rumbaoa. The first gun shot wound was fatal and the victim Atty. Maramba fen to the cemented floor. There is evidence that the accused again shot the victim while lying down.

Meanwhile, the late Pat.ElpidioSagun who was on his left side, bushed VirgilioYanuaria on the shoulders to save him and the latter escaped crouching towards the inside door (door No. 3) and exited thru door No. 2, southern portion of the restaurant. He heard several gun reports thereafter, while he proceeded to the municipal building to report the incident to Cpl. Jose Pascual in the presence of Pat. Danilodel Rosario, both INP of Cabatuan, Isabela, and based on this report, police investigators repaired to the scene of the crime immediately thereafter.

There is no eyewitness presented on the shooting of the other two victims, namely. the late Police Lt. Cesar Rumbaoa and the late Pat. ElpidioSagun. However, there is evidence that said two victims were likewise shot by the accused AngelitoAlivia. The cadavers were examined and the autopsy reports reveal that the cause of death of said two victims was hemorrhage due to gun shot wounds. The five (5) empty shells (Exhs."K.2", "K-3", "K.4", "K.5", and "K-6") and the two lead cores (Exhs. "K-9" and "K-10"), an recovered at the crime scene (Azarcon restaurant), were subjected to ballistic examination at the NBI, Manila. Witness Feliciano Lunasco, NBI, Supervising Ballistician, Manila, testified that the empty shells, deformed slugs, cartridge and lead cores were fired from the same gun, Llama automatic pistol Cal. 38 (Exh. "K").

Mrs. Delia Azarcon, the owner of the restaurant, when interviewed by Mayor Benedicto Acosta who arrived at the restaurant upon being informed of the incident that same afternoon not long after the shooting, told the Mayor, that it was the accused AngelitoAlivia who shot the three (3) victims, whose bodies lay prostrate on the cemented floor, There were three (3) bullet marks on the cemented floor, one beside the fallen body of the late Atty. Maramba, another just beneath the head of the late Police Lt. Rumbaoa, and the other at the left side wall of the restaurant. Pictures were taken of the cadavers of the late Atty. Maramba (Exh. "Q") and that of the late Police Lt. Rumbaoa (Exhs. "P", "P-1", "P-2" and "P-3", p. 2, and pp. 36-36-A, respectively, record, Crim. Case No. 1272).

To top it all, accused AngelitoAlivia, duly assisted by his lawyer-uncle, immediately after the incident, left for Ilagan and voluntarily surrendered to Col. Oscar M. Florendo, Provincial Commander, PC, Ilagan In the process, accused surrendered the firearm used, Llama automatic pistol Cal. 38 (Exh. "k"), and orally admitted to Col. Florendo advised the accused in the presence of his lawyer to have his oral confession reduced in writing, which the accused and counsel agreed. M/Sgt. SeverinoGoday Jr., PC Investigator, was tasked to get the statement of the accused who, when called to testify in Court told the story that the extra-judicial confession (Exh. "J", p. 7, record, Crim. Case No. 1272) was freely and voluntarily given by the accused duly assisted by his counsel.

There are present, two (2) mitigating circumstances which may be credited in favor of the accused, namely: (1) voluntary surrender and (2) drunkenness probably not habitual but at this stage of the proceedings as they relate to the legal incident in question, such circumstances may not sway to mitigate the question on bail in favor of the accused. Persuasively, said two mitigating circumstances may have great weight after trial on the merits. (pp. 10-20, Rollo)

Notwithstanding said finding of facts, the IAC ruled that accused is entitled to bail in the amount of P80,000.00 thus nullifying the Orders of the trial court, dated January 23, 1983 and May 15, 1983. Hence, this petition with the following assigned alleged errors:

I. Respondent lntermediate Appellate Court gravely erred in holding that the evidence of guilt of accused is not strong, contrary to the findings of the trial court.

II. Respondent lntermediate Appellate Court gravely erred in holding that Lt. Cesar Rumbaoa and Pat. ElpidioSagun were not in the official performance of their duties as peace officers at the time of the incident and

III. Respondent Intermediate Appellate Court gravely erred in relying on the resolution in the case of "Montano vs. Ocampo" which is not controlling. (p. 21. rollo)

The contentions of petitioner are well-taken. The crimes charged are clearly capital offenses as the phrase is defined in Sec. 5 Rule 114 of the Rules of Court. An offense is capital, if it may be punished by death under both the law prevailing at the time of its commission and that prevailing at the time of the application for bail, even if after conviction a penalty less than death imposed. In its assailed decision, respondent (IAC) concurred with the trial court that the charges against accused are capital offenses and that the evidence of guilt of the accused is strong. However, the respondent Court ruled that while the evidence clearly established that the petitioner 2 was responsible for the shooting of Atty. Maramba, Lt. Rumbaoa and Patrolman Sagun and he so admitted responsibility for their death in his confession" the crime is ostensibly that of homicide merely, not murder.

The criterion to determine whether the offense charged is capital is the penalty provided by the law regardless of the attendant circumstances. As pointed out by the petitioner in its memorandum, The rationale of the provision lies in the difficulty and impracticability of determining the nature of the offense on the basis of the penalty actually imposable. Otherwise, the test will require consideration not only of evidence showing commission of the crime but also evidence of the aggravating and mitigating circumstances. Thus, there has to be not only a complete trial, but the trial court must also already render a

decision in the case. This defeats the purpose of bail, which is to entitle the accused to provisional liberty pending trial. 3

The posture taken by the respondent Court in granting bail to the accused and in disregarding the findings by the trial court of the guilt of the accused (respondent herein) is a clear deviation from Our ruling laid down in the case of Bolanos vs. dela Cruz, to wit:

Under the Constitution, all persons shall, before conviction, be bailable by sufficient sureties, except those charged with capital offenses when evidence of guilt is strong. It is the trial court which is tasked to determine whether or not the evidence of guilt is strong and it has determined the affirmative in this case after consideration of the evidence already presented by the prosecution, In the absence of Manifest abuse of discretion We are not prepared to substitute our judgment for that of the trial court. (Bolanos vs. Dela Cruz, supra) (Emphasis supplied) (p. 164, rollo)

Anent the issue of whether or not the deceased Lt. Rumbaoa and Pat.Sagun were killed while in the performance of their duties, the evidence shows that while both were admittedly in civilian clothes during the incident in question they were in the performance of their duties as police officers when fired upon and killed by the bullets of the accused. As peace officers, their initial reaction to the shooting was to assert their authority in protecting and covering civilians from the indiscriminate firing by the accused. Accused instead suddenly and without warning, successively shot Lt. Rumbaoa and Pat. Sagun to death knowing fully well that they were peace officers. Although both were armed with their service guns, they were unable to offer resistance and put up a defense due to the suddenness and close succession of the shots. This is indicated by the fact that a revolver still tucked in its holster was found at the crime scene beside the bodies of the victims showing that one of the victims was unable to pull out his gun.

The commission of the crimes charged was attended by treachery as established by the testimony of the eyewitness VirgilioYanuaria to the shooting of Atty. Maramba and by strong evidence as to the treacherous shooting of the two peace officers. VirgilioYanuaria testified that accused suddenly and without warning shot the deceased Atty. Norberto Maramba when the latter turned his back towards the accused and returned to his table to eat. Atty. Maramba was fatally hit on the back of his head and fell to the cement floor. Atty. Maramba did not sense any danger that he would be shot by the accused considering that he and the accused knew each other personally and that, as respondent admitted, there was no previous grudge or misunderstanding between him (accused) and Atty. Maramba. Successive shots hit the two peace officers who were caught by surprise as a result of which they died. The deceased had no inkling that the accused was armed and that he would be carried by passion to resort to violence considering his prominent stature in the locality. On these issues the trial court ruled:

There is treachery although the shooting was frontal, when the attack was so sudden and unexpected that the victim was not in a position to offer an effective defense (People vs. Cuadra, L-27973, October 23, 1978), and when there was a deliberate surprise attack upon an unarmed victim the killing is murder qualified by treachery (People ple vs. Alegria, L-40792, August 18, 1978), and furthermore, sudden, unexpected, without warning, and without giving the victim ,the opportunity to defend himself or repel the initial attack, the qualifying circumstance of treachery is evident and

the crane committed is murder (People vs. Candado, L- 34089-90, August 9, 1979; People vs. Pay-an, L-39089-90, July 31, 1978). (p. 171, rollo)

WHEREFORE, judgment is hereby rendered giving due course to the petition; the assailed decision of respondent IAC is hereby SET ASIDE and the orders of the lower court, denying the petition for bail are hereby REINSTATED. If the accused is out on bail, his bail bond is hereby cancelled and he is ordered committed to prison. This decision is immediately executory.

Manotoc vs. Court of Appeals [GR L-62100, 30 May 1986]

En Banc, Fernan (J): 9 concur, 1 took no part

Facts: Ricardo L. Manotoc, Jr., is one of the two principal stockholders of Trans-Insular Management, Inc. and the Manotoc Securities, Inc., a stock brokerage house. Having transferred the management of the latter into the hands of professional men, he holds no officer-position in said business, but acts as president of the former corporation. Following the "run" on stock brokerages caused by stock broker Santamaria's flight from this jurisdiction, Manotoc, who was then in the United States, came home, and together with his co stockholders, filed a petition with the Securities and Exchange Commission (SEC) for the appointment of a management committee, not only for Manotoc Securities, Inc., but likewise for Trans-Insular Management, Inc. The petition relative to the Manotoc Securities, Inc. (SEC Case 001826, "In the Matter of the Appointment of a Management Committee for Manotoc Securities, Inc., Teodoro Kalaw, Jr., Ricardo Manotoc, Jr., Petitioners"), was granted and a management committee was organized and appointed. Pending disposition of SEC Case 001826, the SEC requested the then Commissioner of Immigration, Edmundo Reyes, not to clear Manotoc for departure and a memorandum to this effect was issued by the Commissioner on 4 February 1980 to the Chief of the Immigration Regulation Division. When a Torrens title submitted to and accepted by Manotoc Securities, Inc. was suspected to be a fake, 6 of its clients filed six separate criminal complaints against Manotoc and one Raul Leveriza, Jr., as president and vice-president, respectively, of Manotoc Securities, Inc. In due course, corresponding criminal charges for estafa were filed by the investigating fiscal before the then Court of First Instance of Rizal (Criminal Cases 45399 and 45400, assigned to Judge Camilon; Criminal Cases 45542 to 45545, raffled off to Judge Pronove). In all cases, Manotoc has been admitted to bail in the total amount of P105,000.00, with FGU Insurance Corporation as surety. On 1 March 1982, Manotoc filed before each of the trial courts a motion entitled, "motion for permission to leave the country", stating as ground therefor his desire to go to the United States, "relative to his business transactions and opportunities." The prosecution opposed said motion and after due hearing, both Judge Camilon and Judge Pronove in their orders dated 9 March 1982, and 26 March 1982, respetively, denied the same. It appears that Manotoc likewise wrote the Immigration Commissioner a letter requesting the recall or withdrawal of the latter's memorandum dated 4 February 1980, but said request was also denied in a letter dated 27 May 1982. anotoc thus filed a petition for certiorari and mandamus before the then Court of Appeals seeking to annul the judges' orders, as well as the communication-request of the Securities and Exchange Commission, denying his leave to travel abroad. On 5 October 1982, the appellate court rendered a decision dismissing the petition for lack of merit. Dissatisfied with the appellate court's ruling, Manotoc filed the petition for review on certiorari with the Supreme Court. Pending resolution of the petition, Manotoc filed on 15 August 1984 a motion for leave to go abroad pendente lite. On 20 September 1984, the Supreme Court

in a resolution en banc denied Manotoc's motion for leave to go abroad pendente lite.

Issue: Whether a court has the power to prohibit a person admitted to bail from leaving the Philippines.

Held: A court has the power to prohibit a person admitted to bail from leaving the Philippines. This is a necessary consequence of the nature and function of a bail bond. Rule 114, Section 1 of the Rules of Court defines bail as the security required and given for the release of a person who is in the custody of the law, that he will appear before any court in which his appearance may be required as stipulated in the bail bond or recognizance. The condition imposed upon Manotoc to make himself available at all times whenever the court requires his presence operates as a valid restriction on his right to travel. As held in People v. Uy Tuising (61 Phil. 404 [1935]), "the result of the obligation assumed by appellee (surety) to hold the accused amenable at all times to the orders and processes of the lower court, was to prohibit said accused from leaving the jurisdiction of the Philippines, because, otherwise, said orders and processes will be nugatory, and inasmuch as the jurisdiction of the courts from which they issued does not extend beyond that of the Philippines they would have no binding force outside of said jurisdiction." Indeed, if the accused were allowed to leave the Philippines without sufficient reason, he may be placed beyond the reach of the courts. The effect of a recognizance or bail bond, when fully executed or filed of record, and the prisoner released thereunder, is to transfer the custody of the accused from the public officials who have him in their charge to keepers of his own selection. Such custody has been regarded merely as a continuation of the original imprisonment. The sureties become invested with full authority over the person of the principal and have the right to prevent the principal from leaving the state. If the sureties have the right to prevent the principal from leaving the state, more so then has the court from which the sureties merely derive such right, and whose jurisdiction over the person of the principal remains unaffected despite the grant of bail to the latter. In fact, this inherent right of the court is recognized by petitioner himself, notwithstanding his allegation that he is at total liberty to leave the country, for he would not have filed the motion for permission to leave the country in the first place, if it were otherwise.

Garcia vs. Domingo [GR L-30104, 25 July 1973]

Resolution En Banc, Fernando (J): 5 concur, 1 took no part, 1 on leave

Facts: In Branch I of the City Court of Manila presided over by Judge Gregorio N. Garcia, there were commenced, by appropriate informations all dated 16 January 1968, 8 criminal actions against Edgardo Calo, and Simeon Carbonnel and Francisco Lorenzana, as follows: a. Against Edgardo Calo (on complaint of Francisco Lorenzana) (1) Criminal Case F-109191, for slight physical injuries; (2) Criminal Case F-109192, also for slight physical injuries; and (3) Criminal Case F-109193, for maltreatment; b. Against Simeon Carbonnel (id.) (1) Criminal Case F-109197, for maltreatment; (2) Criminal Case F-109196, for slight physical injuries; and (3) Criminal Case F-109198 for light threats; (c) Against Francisco Lorenzana (on complaint of Calo and Carbonnel) (1) Criminal Case F-109201, for violation of Sec. 887 of the Revised Ordinances of Manila (resisting an officer); and (2) Criminal Case F-109200, for slander. The trial of the cases was jointly held on March 4, 18, 23, and 30; April 17 and 20; May 4 and 11; June 1, 15, 22, and 29; and August 3 and 10, 1968. All 14 trial dates — except March 4 and 18, and April 17, 1968 — fell on a Saturday. This was arranged by the parties and the Court

upon the insistence of Calo and Carbonnel who, as police officers under suspension because of the cases, desired the same to be terminated as soon as possible and as there were many cases scheduled for trial on the usual criminal trial days. The trial of the cases in question were held, with the conformity of the accused and their counsel, in the chambers of Judge Garcia. During all 14 days of trial, spanning a period of several months, the accused were at all times represented by their respective counsel, who acted not only in defense of their clients, but as prosecutors of the accusations filed at their clients' instance. There was only 1 day when Atty. Consengco, representing Calo and Carbonnel, was absent. This was on 20 April 1968. But at the insistence of Pat. Carbonnel, the trial proceeded, and Carbonnel cross-examined one of the witnesses presented by the adverse party. At the conclusion of the hearings the accused, thru counsel, asked for and were granted time to submit memoranda. Calo and Carbonnel, thru counsel, Atty. Rafael Consengco, submitted a 14-page memorandum with not less than 35 citations of relevant portions of the transcript of stenographic notes in support of their prayer for exoneration, and for the conviction of Lorenzana in respect of their countercharges against the latter. The promulgation of judgment was first scheduled on 23 September 1968. This was postponed to 28 September 1968, at the instance of Atty. Rafael Consengco, as counsel for respondents Calo and Carbonnel, and again to 1 October 1968, this time at the instance of Atty. Consengco and Atty. Francisco Koh who had, in the meantime, also entered his appearance as counsel for Calo and Carbonnel. The applications for postponement were not grounded upon and supposed defect or irregularity of the proceedings. Early in the morning of 1 October 1968, Calo and Carbonnel, thru their counsel, Atty. Rafael S. Consengco, filed with the Court of First Instance a petition for certiorari and prohibition, with application for preliminary prohibitory and mandatory injunction, alleging jurisdictional defects. After proceedings duly had, Judge Felix Domingo (CFI Manila) issued an order declaring that the constitutional and statutory rights of the accused had been violated, adversely affecting their right to a free and impartial trial noting that the trial of these cases lasting several weeks were held exclusively in chambers and not in the court room open to the public; and ordering the city court Judge (Garcia) "to desist from reading or causing to be read or promulgated the decisions he may have rendered already in the criminal cases in question pending in his Court, until further orders of the CFI. A motion for reconsideration proving unavailing, Garcia and Lorenzana on 28 January 1969, elevated the matter to the Supreme Court by means of a suit for certiorari and prohibition.

Issue: Whether the conduct of the trial inside the Judge’s air-conditioned chambers, rather than the usual open court, render the proceedings violative of the constitutional mandate for public trial.

Held: The 1935 Constitution which was in force at the time of the antecedents of the petition explicitly enumerated the right to a public trial to which an accused was entitled. Trial should also be public in order to offset any danger of conducting it in an illegal and unjust manner, and thus serve as a deterrence to arbitrariness. There is no ambiguity in the words employed. The trial must be public. It possesses that character when anyone interested in observing the manner a judge conducts the proceedings in his courtroom may do so. There is to be no ban on such attendance. His being a stranger to the litigants is of no moment. No relationship to the parties need be shown. The thought that lies behind this safeguard is the belief that thereby the accused is afforded further protection, that his trial is likely to be conducted with regularity and not tainted with any impropriety. It is understandable why such a right is deemed embraced in procedural due process.

Where a trial takes place, as is quite usual, in the courtroom and a calendar of what cases are to be heard is posted, no problem arises. It is the usual course of events that individuals desirous of being present are free to do so. There is the well recognized exception though that warrants the exclusion of the public where the evidence may be characterized as "offensive to decency or public morals." Still, herein, when the trial was held on Saturdays and in the air-conditioned chambers of the City Judge for the convenience of the parties and of the Judge, the proceedings were not violative of the right to public trial. There is no showing that the public was thereby excluded. It is to be admitted that the size of the room allotted the Judge would reduce the number of those who could be present. Such a fact though is not indicative of any transgression of this right. Courtrooms are not of uniform dimensions. Some are smaller than others. It suffices to satisfy the requirement of a trial being public if the accused could "have his friends, relatives and counsel present, no matter with what offense he may be charged." Reference may also be made to the undisputed fact at least 14 hearings had been held in chambers of the city court Judge, without objection on the part of policemen. An objective appraisal of conditions in municipal or city courts would have gone far in dispelling the apprehension that there was an evasion of a constitutional command. The crowded daily calendar, the nature of the cases handled, civil as well as criminal, the relaxed attitude on procedural rules not being strictly adhered to all make for a less tense atmosphere. As a result the attendance of the general public is much more in evidence; nor is its presence unwelcome. When it is remembered further that the occupants of such courts are not chosen primarily for their legal acumen, but taken from that portion of the bar more considerably attuned to the pulse of public life, it is not to be rationally expected that an accused would be denied whatever solace and comfort may come from the knowledge that a judge, with the eyes of the persons in court alert to his demeanor and his rulings, would run the risk of being unjust, unfair, or arbitrary. Nor does it change matters, just because, it was in the air-conditioned chambers of a city court judge rather than in the usual place that the trial took place.

People vs. San Diego [GR L-29676, 24 December 1968]

En Banc, Capistrano (J): 9 concur, 1 took no part

Facts: Mario Henson, Rafael Gonzales, Angel Mendoza, Rogelio Lazaro and Bienvenido Wijangco were charged before the Court of First Instance of Rizal, Quezon City Branch (Criminal case Q-8711) as principals of the murder of Jesus Lapid with the qualifying circumstances of treachery, evident premeditation, and abuse of superior strength and with the aggravating circumstances of nocturnity, aid of armed men and craft or fraud. The prosecution and the defense agreed that the motions for bail of the defendants would be considered in the course of the regular trial instead of in a summary proceeding. In the course of the regular trial, after the prosecution had presented eight witnesses, the trial court resolved the motions for bail granting the same despite the objection of the prosecution on the ground that it still had material witnesses to present. Fiscal Oscar Inocentes moved for reconsideration. Inocentes, for the People, filed a petition for certiorari with the Supreme Court.

Issue: Whether the order to grant or deny bail (especially those involving capital punishment) should be made only after the prosecution has presented its evidence.

Held: Whether the motion for bail of a defendant who is in custody for a capital offense be resolved in a summary proceeding or in the course of a regular trial, the prosecution must be given an opportunity to present, within a reasonable time, all the evidence that

it may desire to introduce before the court should resolve the motion for bail. If the prosecution should be denied such an opportunity, there would be a violation of procedural due process, and the order of the court granting bail should be considered void on that ground. The court's discretion to grant bail in capital offenses must be exercised in the light of a summary of the evidence presented by the prosecution; otherwise, it would be uncontrolled and might be capricious or whimsical.

People v Agbayani 284 SCRA 315 (1998)Facts: The appellant was charged for raping his 14-year old daughter and was found guilty of the crime of rape. A motion for a new trial was filed before the court by the new counsel ofthe accused assailing the irregularities prejudicial to the substantial rights of the accusedinvoking the failure of the court to inform the accused of his right to choose his own counsel and the violation of the appellants right for a 2 day preparation for trial.

Issue: Whether or not the failure of the record to disclose affirmatively that the trial judge advised the accused of the right to have counsel is sufficient ground to reverse the judgment of conviction and to send the case back for a new trial.Held: It is settled that the failure of the record to disclose affirmatively that the trial judge advised the accused of his right to counsel is not sufficient ground to reverse conviction. The reason being that the trial court must be presumed to have complied with the procedure prescribed by law for the hearing and trial of cases, and that such a presumption can only be overcome by an affirmative showing to the contrary. Thus it has been held that unless the contrary appears in the record, or that it is positively proved that the trial court failed to inform the accused of his right to counsel, it will be presumed that the accused was informed by the court of such right.

Section 9 of Rule 116 of the Rules of Court provides that after a plea of not guilty, the accused is entitled to two (2) days to prepare for trial unless the court for good cause grants him further time. It must be pointed out that the right must be expressly demanded. Only when so demanded does denial thereof constitute reversible error and a ground for new trial. Further, such right may be waived, expressly or impliedly. In the instant case, appellant did not ask for time to prepare for trial, hence, he effectively waived such right. It is untenable to believe that the counsel who represented the appellant was not prepared during the trial as records showed he was able to cross-examine the complainant and there was no ground to claim he is incompetent to represent the appellant in court. The SC thereby affirmed the decision of the lower court.

GELACIO vs FLORES

FACTS:

Juana Marzan-Gelacio filed two counts of rape against Emmanuel Artajos before RTC, Branch 20, Vigan, Ilocos Sur, wherein the respondent Judge Alipio Flores is the presider of the sala.

After going over the records of the case and the recommendation of the 1stAssistant Provincial Prosecutor Redentor Cardenas, the Judge concluded that the evidence of

guilt was weak but made a finding of probable cause. Consequently he issued warrants of arrest with a recommendation of P200,000.00 bail bond in both cases.

Gelacio through her private prosecutor filed an urgent motion to deny bail. On a later date, the accused’s counsel filed a petition to reduce bail bond to P100,000.00 for each case.

After a series of exchange motions by the counsels of Gelacio and Artajos, and the Judge’s recalls of his previous orders, the Judge ordered the grant of the Motion to reduce bail by the accused.

Gelacio through her counsel filed an Administrative Complaint against the Judge for Gross Ignorance of the Law and Evident Partiality for granting the bail without any hearing.

ISSUE: Whether or not a Judge can grant an accused’s petition for bail without a hearing.

HELD:

No. A judge cannot grant a petition for bail without a trial.

The procedural necessity of a hearing relative to the grant of bail cannot be dispensed with especially in this case where the accused is charged with a capital offense. Utmost diligence is required of trial judges in granting bail especially in cases where bail is not a matter of right. Certain procedures must be followed in order that the accused would be present during trial. As a responsible judge, respondent must not be swayed by the mere representations of the parties; instead, he should look into the real and hard facts of the case.

To do away with the requisite bail hearing especially in those cases where the applicant is charged with a capital offense “is to dispense with this time-tested safeguard against arbitrariness.” It must always be remembered that imperative justice requires the proper observance of indispensable technicalities precisely designed to ensure it proper dispensation. In this regard, it needs be stressed that the grant or the denial of bail in capital offenses hinges on the issue of whether or not the evidence of guilt of the accused is strong and the determination of whether or not the evidence is strong is a matter of judicial discretion which remains with the judge.