Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No.

46371 February 7, 1940

FORTUNATO N. SUAREZ, petitioner, vs. SERVILLANO PLATON, Judge of Court of First Instance of Tayabas, The PROVINCIAL FISCAL OF TAYABAS, VIVENCIO ORAIS and DAMIAN JIMENEZ, respondents. Godofredo Reyes for petitioner. Provincial Fiscal of Tayabas Hermogenes Caluag for respondents. LAUREL, J.: This is an original petition for the peremptory writ of mandamus filed by Fortunato N. Suarez with this court, to compel the respondent judge to reinstate criminal case No. 6426 of the Court of First Instance of Tayabas so that the case may proceed to trial in the ordinary course. It appears on May 9, 1935, Lieutenant Vivencio Orais, of the Philippine Constabulary, one of the respondents in this case, filed a complaint under oath with the justice of the peace of Calauag, Province of Tayabas, charging the petitioner herein, Fortunato N. Suarez, and one Tomas Ruedas, with sedition under Article 142 of the Revised Penal Code. The complaint, upon preliminary examination, was docketed and given due course. While the said case was pending preliminary investigation, Lieutenant Orais, in obedience to an order of the Provincial Commander of Tayabas, moved for the temporary dismissal of the case. This motion was granted by the justice of the peace of Calauag on May 20, 1935, and the case thus dismissed. At the instance of the petitioner herein, Fortunato N. Suarez, the deputy provincial fiscal of Tayabas, Perfecto R. Palacio, in turn charged Lieutenant Vivencio Orais and Damian Jimenez in the justice of the peace court of Calauag with the crime of arbitrary detention committed, according to the information under date of July 8, 1935, as follows: That on or about the 9th day of May, 1935, in the municipality of Calauag, Province of Tayabas, P.I., and within the jurisdiction of this Court, the accused Vivencio Orais being then a public officer to wit: a second lieutenant of the Philippine Constabulary duly appointed and qualified as such and detailed in the Province of Tayabas, without warrant of arrest and without any legal ground whatsoever, moved by personal grudge and ill-feeling which he entertained against Attorney Fortunato Suarez, did, then and there willfully, unlawfully and

feloniously arrest and detain said Attorney Fortunato Suarez in the train while the latter was going to Calauag, and with the purpose of concealing the illegality of said arrest and detention of said Fortunato Suarez said accused Vivencio Orais conniving with the other accused, Damian Jimenez, justice of the peace of the said municipality, prepared and subscribed under oath before said Fortunato Suarez with the commission of the crime of sedition; that the said justice of the peace Damian Jimenez, conniving with the other accused Vivencio Orais with the same purpose of concealing the illegality of the arrest and detention of said Fortunato Suarez, without legal grounds whatsoever willfully and unlawfully issued an order declaring that there were merits in the complaint thereby sanctioning the illegal and unjust arrest and detention of Fortunato Suarez who was kept in the municipal jail of Calauag for eight hours. The justice of the peace of Calauag, being one of the accused, the preliminary examination was conducted by the justice of the peace of Lopez, Tayabas, who thereafter bound the defendants over to the Court of First Instance, where the case was docketed as criminal case No. 6426. While the case was pending in the latter court, on petition, of the accused, the provincial fiscal of Tayabas, Ramon Valdez y Nieto, reinvestigated the case. After such reinvestigation, he filed on April 23, 1936, a motion for the dismissal of the case. Fortunato N. Suarez, the petitioner herein, on May 5, 1936, asked the court to appoint Attorney Godofredo Reyes as acting provincial fiscal to handle the prosecution, alleging, among other things, that the provincial fiscal had no courage to prosecute the accused. On May 11, 1936, Attorney Godofredo Reyes entered his appearance as private prosecutor, and vigorously objected to the motion of dismissal filed by the provincial fiscal. The Bar Association of Tayabas, through its president, Emiliano A. Gala, entered its appearance as amicus curiae and likewise objected to the dismissal of the case. On August 14, 1936, the then presiding judge of Branch I of the Court of First Instance of Tayabas, Hon. Ed. Gutierrez David, after hearing, denied the motion, ruling that there was prima facie case against the accused. The court, upon petitioner of the provincial fiscal, designated Deputy Provincial Fiscal Perfecto R. Palacio to handle the prosecution. But Fiscal Palacio, being apparently of the same opinion as the provincial fiscal, declined to proceed, and moved that a practicing attorney or a competent attorney in the Bureau of Justice be designated in his stead. Accordingly, the provincial fiscal of Sorsogon, Jacinto Yamson, at the request of the judge a quo was assigned by the Department of Justice to handle the prosecution of the case. Fiscal Yamson after going over the case likewise entered a nolle prosequi. So, on September 23 1936, he moved for reconsideration of the court's order of August 14, 1936, denying the motion for dismissal presented by the provincial fiscal. Attorney Godofredo Reyes again vigorously objected to this motion on the ground that there was sufficient proof to warrant the prosecution of the accused. The case in this state when Judge Emilio Pena was appointed to the place of Judge Gutierres David. Later, Judge Serviliano Platon, one of the respondents herein, was appointed to preside over case No. 6426 corresponded, and the case was thus transferred to that sala for action. Judge Platon, after consideration of all the facts and proofs submitted in the case, considered the court's order of August 14, 1936, and dismissed the case, holding that the evidence was insufficient to convict the accused of the crime charged. From this order, the

petitioner herein appealed to this Court and the case was here docketed as G.R. No. 45431. On June 30, by a closely divided court, the appeal was dismissed. The petitioner has now filed with this Court the present petition, in which, as stated in the opening paragraph of this decision, we are asked to issue the peremptory writ of mandamus to compel the respondent judge to reinstate the criminal case which had been ordered dismissed by the said judge. The petitioner gives the following grounds for the issuance of said writ: Que el mencionado Juez Hon. Servillano Platon incurrio en un abuso manifiesto de discrecion al sobreseer la mencionada causa contra los otros dos recurridos Vivencio Orais y Damian Jimenez, despues de que el Juzgado de Paz de Lopez habia declarado que existen meritos para proseguirse contra los mismos y despues de que un Juez de Primera Instancia de la misma categoria que el Juez Platon habia rehusado sobreseer la causa por creer que existian meritos para proceder contra los acusados. Que el mencionado Juez Hon. Servillano Platon incurrio en un abuso grave de discrecion por cuanto que las pruebas existentes en la causa, en las cuales se fundo el fiscal provincial al presentar la querella en el Juzgado de Paz, demuestran de un modo claro y concluyente el delito cometido y la responsibilidad de los acusados. [Las expresadas pruebas constan a paginas 65 al 106 del adjunto alegato anexo ("A").] Que el Hon. Servillano Platon incurrio en un grave abuso de discrecion al juzgar dichas pruebas con un criterio de un Tribunal "sentenciador" cuando que su unica mision era considerarlas bajo el criterio de un tribunal meramente "investigador". (E.U. vs. Barredo, 32 Jur. Fil., 462, 482.) Should the writ of mandamus prayed for be issued? We observe that after the filing of the information by the provincial fiscal of Tayabas for arbitrary detention against Lieutenant Orais and the justice of the peace of Lopez, the same fiscal moved for the dismissal of the case, because 'despues' de una reinvestigacion de los hechos que dieron margen a la presente causa, y examinada la misma con la debida atencion que su importancia require asi como las circunstancias del caso, ha llegado a la conclusion de que no hay base justificativa para la prosecucion de esta causa." The grounds for this action of the provincial fiscal are stated in his said motion for dismissal of April 23, 1936: En sintesis, los hechos son: que el dia 9 de mayo de 1935, en ocasion en que el abogado Fortunato N. Suarez y el teniente Vivencio Orais de la constabularia, se encontraron en el tren que iba a Calauag, aquel para defender a los sakdalistas acusados en este municipio, y este para atender a sus deberes officiales en relacion con el orden publico algo anormal, por causa de los mismos sakdalistas en dicho municipio de Calauag, ambos tuvieron un cambio de palabras con motivo del mismo asunto que les llevaba alli, y por haber el abogado Suarez

proferido en tono acalorado, de que los sakdalistas estaban perseguidos en Calauag por las autoridades municipales y la constabularia, y que era un abuso de las autoridades dicha persecusion, trayendo al propio tiempo a colacion lo ocurrido en los municipios de Cabuyao y Sta Rosa de la Provincia de Laguna, que se levantaron contra el gobierno por los abusosy matanzas de sakdalistas en dichos pueblos, y que lo mismo podia tenerlugar en esta Provincia de Tayabas, y que el podia incitar a lossakdalistas, teniendo en cuenta que con anterioridad el teniente Oraishabia recibido informes de que los sakdalistas en Calauag habian sido entrevistados por Tomas Ruedas, uno de los acusados en el municipiode Sariaya por el delito de conspiracion para cometer sedicion, que el abogado ayudaria a los sakdalistas incintandoles a la sedicion,fue el motivo por el cual el arresto al abogado Suarez, conduciendoleal municipio como asi lo hizo con respecto a Tomas Ruedas, quien salio al encuentro de Suarez cuando llego a la estacion del tren en Calauag, diciendo a este que ya tenia arreglado a los sakdalistas en Calauag. Que despues de haberles arrestado, presento una denuncia contra estos por el delito de sedicion, en el juzgado de paz de Calauag, aunque por instrucciones de sus superiores, dicho Teniente Vivencio Orais pidio el sobreseimiento provisional de su denuncia. Aunque el abogado Suarez niega que el haya profiredo palabras sediciosas, ni que haya incitado a los sakdalistas a actos de violenciacontra el gobierno constituido o contra las autoridades y oficiales, sin embargo, de las declaraciones de los testigos tanto de la acusacioncomo de la defensa en lo que son consistentes, se desprende claramente que el abogado Suarez ha hecho manifestaciones que pueden considerarse como sediciosas y subversivas, maxime teniendo en consideracion el estado caotico porque atravesaba el municipio de Calauag con motivo de la campana ordenada porel gobierno contra los sakdalistas, a raiz de los disturbiosy desordenes publicos que tuvieron lugar en los municipios de Cabuyao y Sta. Rosa. La presente causa se ha iniciado a denuncia del abogado Sr. Godofredo Reyes contra el teniente Vivencio Orais de la constabularia y el juez de paz Damian L. Jimenez, por el delito de detencion arbitraria. El delito de detencion arbitraria esta previsto y castigado en el articulo 124 del Codigo Penal Revisado, que dice asi: El funcionario o empleado publico que detuviere a una persona sinmotivo legal alguno sera castigado; etc. . . . Sin perder de vista que la base angular de todos los procesoscriminales son los delitos, y que a la acusacion corresponde determinarexactamente si se ha cometido o no el delito, el que suscribe, haanalizado este extremo, relacionando los hechos que determinaron laalegada detencion arbitraria de que fue objecto el abogado FortunatoN. Suarez, con las circunstancias y los antecedentes de la situacion porque atravesaba entonces la Provincia de Tayabas al igual que la

Provincia de Laguna, acondicionandolos con las palabras proferidas porel abogado Suarez que si en su concepto no son sediciosas y subversivas,por lo menos eran abusivas para con las autoridades del gobierno, especialmente con las de la Provincia de Tayabas a las cuales se referian. Asi entendido el aspecto legal de la cuestion, y haciendo aplicacion de lo que nos dice la misma ley en lo en que consiste la detencion arbitraria, que para que exista este delito, la detencion tenia que haber sido sin motivo legal alguno, creemos que habia algun motivo legal para la detencion del abogado Sr. Suarez y su companero Tomas Ruedas, y estaba justificada por haber ellos mismos dado lugar a ello. (E.U. vs. Vallejo y otro, 11 Jur. Fil., 202; E.U. vs. Santos, 36 Jur. Fil., 909.) We have not overlooked the fact that this motion for dismissal was denied by Judge Gutierrez David of August 14, 1936. It appears, however, that subsequently Fiscal Yamsom who, as stated above was assigned by the Department of Justice to conduct the prosecution of the case, moved for reconsideration of the Court's order of August 14, 1936, denying the motion for dismissal. Judge Servillano Platon granted the motion for reconsideration and dismissed the case. In this motion for reconsideration not only does Fiscal Yamson reiterate the arguments advanced by Fiscal Valdez y Nieto in the latter's motion for dismissal, but adds: (a) En lo que respecta al acusado Teniente Orais, no existe prueba alguna en los autos de esta causa que dicho acusado haya arrestado al abogado Suarez y Tomas Ruedas, solamente por el mero gusto de arrestarles. Tampoco existe pruebas de que el teniente Orais haya sido inducido por motivos de venganza o resentimiento alguno contra dicho abogado Suarez y Tomas Ruedas al arrestales en el dia de autos. Aunque es verdad que el Teniente Orais ha sido acusado ante el Juzgado de pazde Sariaya por 'abusos de autoridad', sin embargo, no consta en los autos de dicha causa que el abogado Suarez y Tomas Ruedas hayan intervenido como abogado ni parte ofendida o testigos en la misma, por tanto, no vemos razon alguna para que el Teniente Orais tenga motivos de vengarse de estos por dicha causa. (Vease pag. 1, Anexo O.) A falta de prueba sobre estos hechos, en nuestra humilde opinion, existe a favor de Teniente Orais la presuncion de haber cumplidocon su deber al arrestar al abogado Fortunato N. Suarez y Tomas Ruedas, teniendo en cuenta las circunstancias extraordinarias reinantes entonces en Calauag a raiz de los disturbios y desordenes publicos que tuvieron lugar en los municipios de Cabuyao y Sta. Rosa de la Provincia de Laguna, dias antes de ocurrir el suceso de autos. Se debe tener en cuenta, ademas, el hecho de que despues de haber arrestado al abogado Fortunato N. Suarez y Tomas Ruedas, el aqui acusado Teniente Vivencio Orais presento denuncia inmediatamente ante su coacusado Damian Jimenez, juez de paz de Calauag, por infraccion del articulo 142 del Codigo Penal Revisado. We cannot overemphasize the necessity of close scrutiny and investigation of prosecuting officers of all cases handled by them, but whilst this Court is averse to any form of vacillation by such officers in the prosecution of public offenses, it is

unquestionable that they may, in appropriate cases, in order to do justice and avoid injustice, reinvestigate cases in which they have already filed the corresponding informations. In the language of Mr. Justice Sutherland of the Supreme Court of the United States, the prosecuting officer "is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the two fold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one," (69 United States Law Review, June, 1935, No. 6, p. 309.) Considering all the circumstances, we cannot say that Judge Servillano Platon, in granting the motion for the dismissal of the case for arbitrary detention against Lieutenant Orais and the justice of the peace of Lopez, abused his discretion so flagrantly as to justify, in the interest of justice, a departure from the well-settled rule that an inferior tribunal in the performance of a judicial act within the scope of its jurisdiction and discretion cannot be controlled by mandamus. This is especially true in a matter involving the examination of evidence and the decision of questions of law and fact, since such a duty is not ministerial. (High, Extraordinary Legal Remedies, sec. 156, pp. 173-175). Upon the other hand, it should be observed that in the case of Lieutenant Orais, in the face of the circumstances surrounding the arrest as set forth in the two motions for dismissal by the provincial fiscal of Tayabas, which facts and circumstances must have been investigated and duly weighed and considered by the respondent judge of the Court of First Instance of Tayabas, the arrest effected by Lieutenant Orais cannot be said to have be entirely unjustified. If, "under trying circumstances and in a zealous effort to obey the orders of his superior officer and to enforce the law, a peace officer makes a mere mistake in good faith, he should be exculpated. Otherwise, the courts will put a premium on crime and will terrorize peace officers through a fear of themselves violating the law. See generally Voorhees on Arrest; 5 Corpus Juris, pp. 399, 416; 2 R.C.L., 450. (United States vs. Santos, 36 Phil., 853, 855.)" The petition is hereby dismissed, without pronouncement regarding cost. So ordered. Avancea, C.J., Villa-Real, Diaz and Concepcion, JJ., concur.

Separate Opinions

MORAN, J., dissenting:

The majority decision takes for granted that which precisely is in issue in this case. In the morning of May 9, 1935, the accused, Lieutenant Vivencio Orais, and Attorney Fortunato Suarez were both in the train on their way to Calauag, Tayabas. In the conversation which ensued between them, Attorney Suarez made certain remarks about the abuses of authority committed by the officers of the Government who conducted the raid against the Sakdalistas at Sariaya. Upon inquiry of Lieutenant Orais as to what party Attorney Suarez belonged, and, pressed upon to state whether or not he was a Sakdalista, Attorney Suarez replied "may be". On the strength of these facts, Lieutenant Orais arrested Attorney Suarez for the alleged offense of uttering seditious words, and conducted him to the municipal building of Calauag and there lodged him in jail. He filed in the justice of the peace court of the same municipality an information against Attorney Suarez for uttering seditious words, in violation of article 142 of then Revised Penal Code. On the day following, Lieutenant Orais, acting under the instruction of his superior, moved for the dismissal of the case. Thereafter, the deputy provincial fiscal of Tayabas, at the instance of Fortunato Suarez, filed an information against Lieutenant Orais and Damian Jimemez, the latter as justice of the peace of Calauag, Tayabas, for the crime of arbitrary detention, the information reading as follows: That on or about the 9th day of May, 1935, in the municipality of Calauag, Province of Tayabas, P.I., and within the jurisdiction of this Court, the accused Vivencio Orais being then a public officer to wit: a second lieutenant of the Philippine Constabulary duly appointed and qualified as such and detailed in the province of Tayabas, without any legal ground whatsoever, moved by personal grudge and ill-feeling which he entertained against Attorney Fortunato Suarez, did, then and there willfully, unlawfully and feloniously arrest and detain said Attorney Fortunato Suarez in the train while the latter was going to Calauag; and with the purpose of concealing the illegality of said arrest and detention of said Fortunato Suarez said accused Vivencio Orais conniving with the other accused Damian Jimenez, justice of the peace of said municipality, prepared and subscribed under oath before said justice of the peace a complaint falsely charging said Fortunato Suarez with the commission of the crime of sedition; that the said justice of the peace Damian Jimenez, conniving with the other accused Vivencio Orais with the same purpose of concealing the illegality of the arrest and detention of said Fortunato Suarez, without legal grounds whatsoever willfully and unlawfully issued an order declaring that there were merits in the complaint thereby sanctioning the illegal and unjust arrest and detention of Fortunato Suarez who was kept in the municipal jail of Calauag for eight hours. The justice of the peace of Lopez, Tayabas, conducted the preliminary investigation, and, thereafter, remanded the case to the Court of First Instance. On April 23, 1936, the provincial fiscal moved for the dismissal of the case upon the alleged ground, that after a supposed reinvestigation, the new facts established therein disclose no sufficient evidence to sustain the information. The motion was overruled by Judge Gutierrez David, then presiding the second branch of the Court of First Instance of Tayabas.

Jacinto Yamson, appointed as special fiscal to take charge of the case, moved for the reconsideration of the order of Judge Gutierrez David. To this motion, Attorney Suarez, through counsel, interposed an opposition. Judge Servillano Platon, then presiding the first branch of the Court of First Instance of Tayabas, acceded to the motion and dismissed the information. From this order, Attorney Suarez appealed, but the appeal was dismissed by this Court on the ground that mandamus was the proper remedy. Accordingly, the present action is filed in this Court. The sole question here involved is whether or not, according to the evidence in the hands of the prosecution, there is sufficient ground to proceed with the criminal case for arbitrary detention against Lieutenant Vivencio Orais and Justice of the Peace Damian Jimenez. A close examination of such evidence, which is attached to the record, will disclose that the arrest of Fortunato Suarez by Lieutenant Orais in the morning of May 9, 1935, was prompted obviously, not by official duty, but by personal resentment against certain statements made by the former. I have taken pains to scrutinize carefully the testimonies of all the witnesses who testified in the preliminary investigation, and they show nothing seditious in the utterances of Attorney Suarez on the occasion in question. My conclusion, then, is that the detention of Attorney Suarez by Lieutenant Orais was arbitrary, and that the charge made against Lieutenant Orais for arbitrary detention is well founded on facts. The fiscal, in moving for the dismissal of the case before the Court of First Instance of Tayabas, mentioned a reinvestigation conducted by him of the case, in which he supposedly found a new evidence warranting its dismissal. Counsel for Attorney Fortunato Suarez, however, insisted on the production of such new evidence before the court, but the prosecution could not respond to such demand. This is an indication that the supposed additional evidence never existed. But the majority, instead of deciding the issue as to whether or not the evidence in the hands of the prosecution was sufficient to proceed with the charge for arbitrary detention, takes for granted that such evidence was not sufficient, relying upon the assumption that the "circumstances surrounding the arrest as set forth in the two motions for dismissal by the provincial fiscal of Tayabas . . . must have been investigated and duly weighed and considered by the respondent judge of the Court of First Instance of Tayabas." In other words, the majority assumes that which is the subject of the petitioner's challenge, which is tantamount to a refusal to consider his complaint after he has been told that he may come to this court by mandamus proceedings. Although a broad discretion must be conceded to prosecuting attorneys and trial courts in the determination of sufficient grounds for dismissing or continuing a criminal prosecution, yet when, as in this case, the basis for the action of both officers fiscal and judge is produced in this court, and we are called upon to determine whether, on the basis of such evidence and determine the question at issue. And, in the present case, it is my opinion that the evidence we have in the record sufficiently shows that the prosecution for arbitrary detention against Lieutenant Orais must take its course, and

that its dismissal without trial by the Court of First Instance is without basis on facts and constitutes an abuse of discretion. I agree, however, that there is no reason for including in the charge for arbitrary detention the justice of the peace of Calauag, Damian Jimenez. The evidence shows no connection between him and Lieutenant Orais in the arbitrary arrest of Attorney Fortunato Suarez. My vote, therefore, is that the petition for mandamus must be granted with respect to the prosecution against Lieutenant Vivencio Orais, but denied with respect to the prosecution against Damian Jimenez. Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-9278 December 7, 1915 THE UNITED STATES, plaintiff-appellee, vs. PEDRO BARREDO, PEDRO UREA and ALBINO SARMIENTO, defendantsappellants. Silvestre Apacible and Pedro Guevara for appellants. Attorney-General Avancea for appellee.

CARSON, J.: The appellants in this case were convicted in the court below of the crime of attempted rape, and each of them was sentenced to two years, four months and one day of prision correccional, together with the accessory penalties prescribed by law. A large number of witnesses for both the prosecution and the defense were called at the trial, and the record contains some two hundred and fifty pages of typewritten testimony and documentary evidence. In its last analysis, final judgment as to the guilt or innocence of the accused necessarily turns upon the degree of credit which should be accorded the respective witnesses called for the prosecution and the defense; and a careful examination of the record discloses nothing which would justify us in disturbing the findings in this regard of the trial judge, who saw and heard the witnesses testify and was satisfied beyond a reasonable doubt as to the substantial truth of the account of the commission of the crime of attempted rape which was given on the witness-stand by the principal witnesses called for the prosecution.

In his opinion the trial judge sets forth at some length the material evidence adduced at the trial, and a restatement and review of the evidence at this time would serve no useful purpose. Suffice it to say that so strongly were we impressed by the forceful oral argument of counsel for the appellants with the possibility of a grave miscarriage of justice in the court below, as a result of the machinations of the personal and political enemies of one or all of the defendants, that we carefully and exhaustively abstracted and analyzed for ourselves the great mass of evidence brought here on this appeal, without discovering anything which, in our opinion, would justify us in holding that the trial judge erred in arriving at his conclusions as to their guilt. It remains only to consider the contentions of counsel for the appellants touching the alleged lack of jurisdiction of the court below to entertain and adjudicate this action. It is urged that the court was without jurisdiction in the premises because the information charging the commission of the crime was filed, and the trial conducted by a special fiscal, improvidently appointed by the trial judge without authority of law. Section 1 of Act No. 1699 reads in part as follows: "Whenever the provincial fiscal is absent from the province, or fails or refuses to discharge thus duty by reason of illness or other cause, or by reason of personal interest in a prosecution or other matter is disqualified to act therein as provincial fiscal, the judge of the Court of First Instance for the province is authorized and required to appoint a temporary fiscal, who shall be paid out of the provincial treasury the same compensation per day as that provided by law for the regular provincial fiscal for the days actually employed. The fiscal thus temporarily appointed shall discharge all the duties of the provincial fiscal as provided by law which the regular provincial fiscal fails or is unable to perform."1awphil.net Construing and applying this statute we said in the case of Nuez vs. Low (19 Phil. Rep., 244): "If the provincial fiscal fails or refuses to discharge his duty in the prosecution of criminal cases, the judge of the Court of First Instance is not only authorized but is required to appoint a temporary fiscal to represent the Government in such cases. The attorney for the Moro Province and his assistant stand in the same position as a provincial fiscal with reference to this matter. If the Court of First Instance for the Moro Province did not have authority to appoint a temporary fiscal when the exigencies of the service demanded it, it might occur that the whole court machinery, with reference to criminal cases, would be impeded on account of the refusal on the part of the attorney, or his assistant, to perform their duties. The presiding judge of the Court of First Instance for the Moro Province has the power to cause the prosecution of criminal cases to go forward, and if the officer designated by law to prosecute such criminal cases fails or refuses to perform his duty, then the judge or court must relieve such officer temporarily and appoint a qualified person to take his place." From what was said in the case just cited, and indeed from the plain and explicit provisions of the statute, we think there can be no doubt of the power of the judges of Courts of First Instance to appoint special fiscals or prosecuting officers, when, in the

exercise of the sound judicial discretion conferred upon them, they find that "the provincial fiscal is absent from the province, or fails or refuses to discharge his duty by reason of illness or other cause, or by reason of personal interest in a prosecution or other matter is disqualified to act therein as provincial fiscal." The power to appoint special fiscals being thus expressly conferred upon judges of Courts of First Instance, the mere fact that the judge acts unwisely or improvidently or under a misapprehension of facts when he makes an appointment in no wise affects the legality or the validity of the appointment, except, perhaps, in cases wherein it appears that there has been a manifest abuse of judicial discretion in making the appointment, the effect of which need not be and is not now considered. There can be no question of abuse of judicial discretion in the appointment of the special fiscal in the case at bar; and even if it were admitted that the trial judge acted improvidently or unwisely or erroneously in making the appointment, the appointment when made was a valid, legal appointment, and affords no ground for appellant's contention as to a lack of jurisdiction in the court below to entertain and decide a criminal action based on an information filed by a special fiscal legally appointed for that purpose. Moreover, we do not think that in the case at bar the special fiscal was erroneously or improvidently appointed. The appointment of the special fiscal was made in response to a petition filed by counsel for the private prosecutrix on November 8, 1912, wherein he set forth that on the 12th of June, 1912 the private prosecutrix filed a complaint against the defendants in this action in the court of the justice of the peace of Nagcarlang, charging the commission of the crime on the 9th of that month; that on the 29th of the same month the accused waived a preliminary trial before the justice of the peace and prayed that the cause be remanded to the Court of First Instance; that the cause was remanded in the early days of July, 1912; that about the 2nd of October, 1912 the provincial fiscal conducted an investigation of the alleged crime at the urgent request of counsel for the private prosecutrix; that thereafter the provincial fiscal promised to file a formal information against the accused, but later declined to do so, promising, never-the-less to ask the court to appoint a special fiscal, as he himself, was not disposed to press the case; that the provincial fiscal had not done anything further at the date of the petition (November 9 [8], 1912); and that a special fiscal should be appointed to prosecute the case in view of the manifest indisposition on the part of the provincial fiscal to bring the accused to trial. This petition was endorsed over to the provincial fiscal by the presiding judge, and returned with an extended statement, in which this official set out at length his reasons for declining to file an information, and proceed with the trial. In substance he stated that as a result of his investigations based upon the complaint of the private prosecutrix, he was satisfied that the accused had not committed the crime with which they were charged; that the evidence against them was unsatisfactory and unworthy of credence;

and that they were victims of a conspiracy of their personal and political enemies to ruin them by compelling them to stand trial for a heinous offense which they had not committed. Thereafter the trial judge, upon full consideration of the statements of counsel for the private prosecutrix, and of the provincial fiscal held that in the interests of justice it would not be proper "to deny the petition of the injured woman" and appointed a special fiscal under the provisions of Act No. 1699. Holding as we do that the evidence relied upon by the private prosecutrix is sufficient to sustain a finding as to the guilt of the accused beyond a reasonable doubt, we need hardly say that we think the trial judge properly appointed a special fiscal to prosecute the case, in view of the failure of the provincial fiscal to file an information and bring the accused to trial. We agree with the contentions of counsel that a conscientious prosecuting official, whose investigations have satisfied him as to the innocence of persons charged with the commission of crime, should not institute criminal proceedings against such persons. But we are of the opinion that in the event that criminal proceedings have been instituted, and the investigations of the provincial fiscal have satisfied him that the accused person is innocent, or that evidence sufficient to secure conviction will not be forthcoming at the trial despite the exercise of due diligence to that end, it then becomes his duty to advise the court wherein the proceedings are pending as to the result of his investigations, and to move the court to dismiss the proceedings, leaving it to the court to take such action as may be proper in the premises. In this jurisdiction provincial fiscals are not clothed with power, without the content of court, to dismiss or dicit nolle prosequi criminal actions actually instituted, and pending further proceedings. The power to dismiss is vested solely in the courts, that is to say in the presiding judge thereof. Discretion in the matter of subjecting to trial persons remanded for trial in a Court of First Instance by a justice of the peace lies with the judge of the court. It is for the justice of the peace to determine whether the accused shall be remanded for trial. Act No. 194, secs. 1 and 2, and Act No. 1627, sec. 13, and section 2 of Act No. 194, expressly provide that in case the justice of the peace binds the accused person over to a regular trial, such person shall be committed or admitted to bail "to await the action of the judge or Court of First Instance" not that he shall await the action of the provincial fiscal. When the justice of the peace remands an accused person for trial in the Court of First Instance, the case becomes forthwith a criminal action pending in that court, and can only be terminated therein by the court itself. The duty imposed upon the provincial fiscal in such cases is either to go forward with the prosecution or to move the court to dismiss the complaint, and in either event to move with the promptitude necessary to secure the right of the accused to a speedy trial. It is, in part, to aid him in determining the course to be adopted at this stage of the proceedings that provision is made in section 2 of Act No. 302 for official investigations by provincial fiscals. But it is to be observed that it is expressly provided that: "This section shall not be construed to authorize a provincial fiscal to act as justice of the

peace in any preliminary investigation, but only as authorizing him to secure the attendance of witnesses before him in making necessary investigation for the purpose of instituting or carrying on criminal prosecutions." Upon a motion of the provincial fiscal to dismiss a complaint upon which an accused person has been remanded for trial by a justice of the peace, it rests in the sound discretion of the judge whether to accede to such motion or not. Ordinarily, of course, he will dismiss the action in accordance with the suggestion of an experienced fiscal who has personally investigated the facts. But if he is not satisfied with the reason assigned by the fiscal, or if it appears to him from the record of the proceedings in the court of the justice of the peace, or as a result of information furnished by the private prosecutor, or otherwise, that the case should not be dismissed, he may deny the motion. It is true, as counsel supported by authority contends, that the practice whereby the prosecuting officer in some jurisdiction enters upon the records of a criminal case that "He does not desire to prosecute further" dicit nolle prosequi is a very ancient one. Under the English rule the uncontrolled right to enter a "nolle prosequi" was the prerogative of the Attorney-General. The right of the Attorney- General to dismiss without consent of court was there maintained under the theory that that officer was the immediate representative of the King, and that the judges should not therefore challenge the formal expression of his will in this regard. Some American states have followed the English rule. Others have declined to adopt it.itc-a1f The modern tendency would seem to be to modify and control the power of prosecuting officers in this regard either by express legislative enactment or by the judicial recognition of a custom, "amounting nearly to law" requiring the consent of the court in all cases wherein it is exercised; and some of the courts which do not consider themselves bound by common law precedents have declared the English practice unsound and have held the better rule to be "to ask leave of the court giving some good reason therefor." The order is usually taken upon motion by the prosecuting officer and with leave of the court. (10, Enc. of Plead. and Practice, 556.) There are States in which a statute, directly or by construction, requires the consent of the court; or in which a custom amounting nearly to law does; and others wherein while the prosecuting officer acts practically on his own responsibility, the court claims the right to control him if it chooses; and in some it is not plain what the course is. (Bishop, Criminal Procedure, Vol. 2, sec. 1389, 2nd ed.) In Virginiaa 1803, the General Court consisting of five judges unanimously decided: "That the District Attorney has not in any case the right to enter a nolle prosequi without leave of the court." (Anonymous, 1 Va., Cas. 139.)

At common law the attorney general alone possessed this power; and might, under section precautions as he felt it his duty to adopt, discontinue a criminal prosecution in that form at any time before verdict ... . It probably exists unimpaired in the attorney general to this day, and it has been by several statutes delegated to district attorneys, who now represent the attorney general in nearly everything pertaining to indictments and other criminal proceedings local to their respective countries. The legislature finding the power in so many hands, and fearing its abuse ... provided that it should not thereafter be lawful for any district attorney to enter a nolle prosequi upon any indictment, or in any other way discontinue or abandon the same without leave of the court having jurisdiction to try the offense charged. (People vs. McLeod, 1 Hill., 377, and 25 Wendell, 483.) Nor was the paper handed by the Solicitor-General to the clerk an entry of nolle prosequi. Such a proceeding is to be coram judice. It must go on the minutes of the court and must transpire, at least, with the cognizance of the court. The minutes are the records of the acts of the court and no entry can be made thereon except with his consent. This the Solicitor General did not ask. The nolle prosequi was not, therefore, a complete act ... . Nor is it in our judgment, within the power of the Solicitor General to nolle prosequi an indictment at his option without the approbation of the court. By the act of 1870 it is expressly provided to the contrary. But even before that Act, although we are aware it has often been done, we know of no authority for it: The State is the party and the Solicitor General only the agent to carry on the proceeding. He has not and ought not to have unlimited power of prosecution, and great evils may result and have resulted from placing such a power in the hands of one man ... . (Statham vs. State, 41 Ga., 507.) The District-Attorney acts for the people in criminal cases except he must have the consent of the court to enter a nolle prosequi. (Moulton vs. Beecher, 1 Abb., 193.) In the case of King vs. Robertson (6 Hawaii, 718) the court said: "The proposition of the counsel for the Attorney-General that at the common law the Attorney-General of England and of States which have adopted this part of the common law has the right upon his sole responsibility to enter a nolle prosequi, is not doubtful, and has not been questioned by this court. But the common law is not in force in this Kingdom . . . . The uniform practice of the Supreme Court and the circuit courts has been that the Attorney-General by himself, or by his deputy, when desiring to nolle prosequi a case after indictment found, asks leave of the court that it may be so entered, giving the court or the presiding justice some satisfactory reason therefor.

In the case of United States vs. Valencia (1 Phil. Rep., 642) this court said: "After the complaint has been presented and certainly after trial has been commenced the Court and not the fiscal has full control of it. The complaint cannot be withdrawn by the fiscal without the consent of the Court." Section 62, of Act No. 136 prescribing the duties of the provincial fiscal provides that: "He shall be an officer of the Court and subject to its directions in relation to official matter pending in the Court of First Instance." Section 2 of Act No. 194 provides that when a justice of the peace binds the accused person over to a regular trial, such person shall be committed or admitted to bail "to await the action of the judge of Court of First Instance." We conclude that in this jurisdiction, under the uniform practice since the announcement of the rule in the case of United States vs. Valencia, (supra), in the first volume of our reports, and as a logical and necessary consequence of the above cited provisions of the statutes in this regard, provincial fiscals have not the power to dismiss criminal actions pending in Courts of First Instance without leave of court; and that this limitation upon their power extends to the dismissal of complaints upon which accused persons have been committed or admitted to bail to await the action of the judge of the Courts of First Instance. The trial judge was manifestly of opinion that the long delay of the provincial fiscal before taking action in the case at bar, and his attitude when called upon the explain his failure to prosecute at the urgent instance of counsel for the private prosecutrix, amounted to a substantial failure on his part to discharge his duty in the premises. In this we are inclined to agree with the trial judge. Without reflecting upon the integrity of the good faith of the provincial fiscal, we think that he undoubtedly misconceived his duty, and that he failed to discharge it when he neglected and declined to proceed with the prosecution. He evidently was of opinion that it rested wholly in his discretion whether the case should or should not proceed to trial, and that he had the uncontrolled power to decline to prosecute, with or without the consent of the trial judge. He manifestly erred in his belief that the evidence relied upon by the private prosecutrix was insufficient to justify him in proceeding with the prosecution. Men's minds may well differ as to the probative value of evidence submitted in support of an alleged fact, and we do not pretend to say that he must have been convinced of the guilt of the accused, beyond a reasonable doubt, as was the trial judge after hearing the evidence. But we think that the evidence was undoubtedly sufficient to justify and require his proceeding promptly with the trial, and submitting the evidence to the court for its final determination of the guilt or innocence of the accused. In failing so to do, he failed in the discharge of his duty, and we think that under all the circumstances the trial judge properly appointed a special fiscal to conduct the proceedings in his stead. In conclusion we here insert a number of citations of authority touching the degree of proof upon which an accused person may properly be required to stand trial for the crime with which he is charged, partly in explanation and support of our ruling upon the

action of the court below in holding that the provincial fiscal had failed to discharge his duty in the premises, and partly for the information of committing magistrates and prosecuting officers generally. Chief Justice Marshall, acting as committing magistrate, in holding that evidence presented by the government, consisting principally of affidavits, was sufficient to justify the commitments of Aaron Burr, prefaced his opinion as follows: "On an application of this kind, I certainly should not require that proof which would be necessary to convict the person to be committed, on a trial in chief; nor should I even require that which should absolutely convince my own mind of the guilt of the accused: but I ought to require, and I should require, that probable cause be shown; and I understand probable cause to be case made out by proof furnishing good reason to believe that the crime alleged has been committed by the person charged with having committed it." (U.S. vs. Burr., 25 Fed. Cas., 14692a.) Again, in Ex parte Bollman (4 Cranch 75; 2 L. ed. 554), the Chief Justice said: "This being a mere inquiry, which, without deciding upon guilt, precedes the institution of a prosecution, the question to be determined is, whether the accused shall be discharged or held to trial; and if the latter, in what place they are to be tried, and whether they shall be confined or admitted to bail. "If," says a very learned and accurate commentator, `upon this inquiry it manifestly appears that no such crime has been committed, or that the suspicion entertained of the prisoner was wholly groundless, in such cases only is it lawful totally to discharge him. Otherwise he must either be committed to prison or give bail.'" (loc. cit., 125.) . . . Although in making a commitment the magistrate does not decide on the guilt of the prisoner, yet he does decide on the probable cause and a long and painful imprisonment may be the consequence of his decision. This probable cause, therefore, ought to be proved by testimony in itself legal, and which, though from the nature of the case it must be Ex parte, though in most other respects, to be such as a court and jury might hear. (loc. cit, 130.) In Rhea vs. State (61 Neb., 15,) it was said: "Evidence that would justify a committing magistrate in finding that probable cause existed for the detention of a defendant need not necessarily be sufficient to sustain a verdict of guilty when he is placed on trial." In re Kelly (28 Nev., 491), it was said: "We are not called upon on this hearing to pass upon the sufficiency of this evidence to warrant the conviction of the defendant, and upon that question express no opinion. In this connection it is proper to observe that a magistrate, in holding a defendant to answer for a crime, is not required to have submitted evidence sufficient to establish the guilt of the person charged beyond a reasonable doubt. As was said in a recent decision (In re Mitchell [Cal. App.], 82 Pac., 347): "In order to hold defendant and put him on his trial, the committing magistrate is not required to find evidence sufficient to warrant a conviction. All that is required is that there be a sufficient legal evidence to make it appear that "a public offense has been committed and there is sufficient cause to believe the defendant guilty thereof."

The rule in New York is thus stated in People vs. Shenk (142 N.Y.S., 1081), by the Court of Special Session: "A committing magistrate is not required to exact the full measure of proof necessary to secure a conviction, but is obliged to hold one accused of crime for trial if there is reasonable ground to believe him guilty. But there must be proof "that a crime has been committed and that there was sufficient cause to believe the defendant guilty thereof." (Citing, Willet vs. Quinn," 135 N.Y.S., 477; Perkins vs. Moss, 187 N.Y., 410; 11 L.R.A., N.S., 528; 10 Ann. Cas., 309; Bungart vs. Wells, 68 N.Y.S., 59.)" In State vs. McGinley (153 Wis., 5), it was said: "Upon just what ground the trial court condemned the action of the examining magistrate does not clearly appear. If, in deciding that the evidence was insufficient to make out a prima facie case, the judge viewed such evidence from the standpoint of a trial court, grievous error was committed. An examination to see whether an accused person shall be placed on trial for an offense charged against him, is a mere inquest. The examining magistrate has very broad latitude in the matter if the evidence, in any reasonable view of it, satisfies him that a crime within the charge made has been committed and there is reasonable cause to believe the accused is the guilty party he is warranted in holding him to bail. If there is evidence sufficient to give the magistrate any room whatever for the exercise of judgment, in other words, any jurisdiction to decide the questions of fact within the broad field of probability, then his decision can not be reversed in the matter attempted in this instance." In United States vs. Steffens (27 Fed. Cas., 16384), it was said: "A committing magistrate acts in a two fold capacity, as a court in deciding questions of law and of evidence; as a jury in finding questions of fact. But the scope of investigation before the magistrate falls far short of a trial of a prisoner before the court and a jury. It is not required before the magistrate as it is before the jury, that all reasonable doubt of the prisoner's guilt must be removed; it is only required that the evidence be sufficient to establish probable cause that the prisoner committed the offense charged." The following cases are also in accord on the point in question: United States vs. Lumsden (26 Fed. Cas., 15641);In re Van Campen (28 Fed. Cas., 16835); In re Squires (13 Idaho, 624); State vs. Layman (22 Idaho, 387); Lundstrum vs. State (140 Wis., 141); Ex parte Patterson (50 Tex. Crim., 271); People vs. Van de Carr (84 N.Y.S., 461). We find no error in the proceedings in the case at bar prejudicial to the substantial rights of the defendants and appellants, and the judgment convicting and sentencing them in the court below should therefore be affirmed, with the costs of this instance against the appellants. So ordered.