Hashim vs. Boncan

The preliminary investigation conducted by the City Fiscal of Manila is not governed by sections 11 and 13 of Rule 108 of the Rules of Court, and existing legislation authorizing such investigation was not repealed or supplanted by the new Rules. The right to a preliminary investigation is statutory, not constitutional, and the accused is not entitled at that stage to be furnished an abstract of the testimony and evidence presented against him.

Hashim was the accused in criminal case No. 61464 of the Court of First Instance of Manila, while Marcelo T. Boncan was the presiding judge and the City Fiscal of Manila was the prosecuting officer. Preliminary investigations by the City Fiscal of Manila were governed by section 2465 of the Revised Administrative Code, as amended by Commonwealth Act No. 537, which empowered the fiscal to investigate all charges of crimes and to prepare the necessary information, and by section 2474 of the same Code (the Manila Charter), which provided that in cases triable only in the Court of First Instance the defendant was not entitled as of right to a preliminary examination where the fiscal, after due investigation, had presented an information in proper form. The promulgation of the new Rules of Court raised the question whether these statutory provisions had been repealed and supplanted by Rule 108.

On August 6, 1940, N. T. Hashim was caught red-handed in possession of counterfeit treasury certificates of the Commonwealth of the Philippines. He was placed under arrest, without warrant, by operatives of the Division of Investigation of the Department of Justice, but was released on the same day upon filing a bond. The following day, August 7, 1940, a complaint was filed against him with the Office of the City Fiscal, and after the corresponding investigation conducted by the respondent Fiscal under section 2466 of the Revised Administrative Code, as amended by Commonwealth Act No. 537, an information was lodged against him for violation of article 168 of the Revised Penal Code. The information alleged that on or about August 6, 1940, in the City of Manila, the accused did willfully, unlawfully, feloniously, and knowingly have in his possession and under his control five hundred sixty (560) false or falsified 50-peso treasury certificates of the Commonwealth of the Philippines, with intent to use the same contrary to law. The information was subscribed and sworn to before Judge Sixto de la Costa on August 7, 1940, and bore a notation by Assistant Fiscal Gregorio S. Narvasa that a preliminary investigation had been conducted and the witness examined under oath in accordance with Commonwealth Act No. 537.

The case was docketed as criminal case No. 61464 of the Court of First Instance of Manila. On the strength of the respondent fiscal's sworn statement that he had conducted a preliminary investigation and examined the witnesses under oath according to law, Judge de la Costa issued a warrant for the arrest of the petitioner, who was later admitted to bail.

Before the petitioner could be arraigned, several incidents transpired in the trial court. On August 14, 1940, counsel for the petitioner filed a motion under sections 11 and 13 of Rule 108 of the Rules of Court, asking that the respondent fiscal furnish the clerk of court with the testimony of the witnesses who testified at the preliminary investigation, or an extract thereof, as well as with the alleged 560 counterfeit treasury certificates. The respondent fiscal opposed the motion on the ground that the provisions of Rule 108 on preliminary investigation do not apply to preliminary investigations conducted by the Fiscal for the City of Manila or any of his assistants. On August 19, counsel for the petitioner put in an additional motion praying that, should the earlier motion be acted upon adversely and the fiscal's objection sustained, the court itself immediately conduct the investigation provided in section 4 of Rule 108, directing the clerk of court to attach to the record an abstract of the testimony of the witnesses at said investigation. The respondent fiscal objected, among others, on the ground that there was no necessity for the court to conduct a preliminary investigation because the substitute therefor had already been performed in accordance with law by the office of the fiscal. A rejoinder was filed on August 21, and on August 22, 1940, the respondent judge denied the various motions on substantially the same grounds advanced by the respondent fiscal.

By another motion of August 26, 1940, counsel for the petitioner asked that the warrant of arrest issued in the case be cancelled and insisted that the court conduct the preliminary investigation referred to in section 1, Rule 108. This motion was followed by an opposition of the respondent fiscal, a reply, a rejoinder, and a reply to the rejoinder. The motion was again denied by the respondent judge on September 6, 1940, and a motion for reconsideration of September 11, 1940 met with a like fate on September 16, 1940. The petitioner excepted to the orders of August 22, September 6, and September 16, 1940, and announced his intention to bring the case to the Supreme Court on certiorari and mandamus.

The petition for certiorari and mandamus recited the proceedings in greater detail and prayed that the order of arrest be set aside; that the respondent judge conduct a preliminary investigation under section 1 of Rule 108 and the pertinent provision of the Constitution; that, should the fiscal's preliminary investigation be upheld, the fiscal be ordered to furnish the clerk of court with an abstract of the testimony of the witnesses and other evidence; and that the arraignment of the petitioner be suspended during the pendency of the proceedings. The Solicitor-General, on behalf of the respondent judge, and the respondent fiscal were one in resisting the petition.

• Right to be Informed of Evidence: Petitioner maintained that under section 11 of Rule 108 he was entitled, after arrest and delivery to the court, to be informed of the substance of the testimony and evidence presented against him.
• Transmission of Abstract: Petitioner argued that under section 13 of Rule 108 the respondent fiscal, as the "corresponding officer," was duty-bound to transmit to the clerk of court an abstract of the testimony of the witnesses and the other evidence adduced at the preliminary investigation.
• Repeal of Existing Legislation: Petitioner contended that the existing legislation authorizing the City Fiscal to conduct preliminary investigations should be deemed repealed and supplanted by the new Rules of Court, since otherwise there would be no uniformity in the Rules as ordained by the Constitution.
• Judicial Preliminary Investigation: Petitioner insisted that the respondent judge should conduct the preliminary investigation under section 1 of Rule 108 and that the warrant of arrest issued in the case should be cancelled.

• Inapplicability of Rule 108: Respondent fiscal opposed the motions on the ground that the provisions of Rule 108 on preliminary investigation do not apply to preliminary investigations conducted by the Fiscal for the City of Manila or any of his assistants.
• No Necessity for Judicial Investigation: Respondent fiscal objected that there was no necessity for the court to conduct a preliminary investigation because the substitute therefor had already been performed in accordance with law by the office of the fiscal of the City of Manila.
• Resistance to the Petition: The Solicitor-General, on behalf of the respondent judge, and the respondent fiscal were one in resisting the petition.

• Right to be Informed of Evidence: Whether, in a preliminary investigation conducted by the fiscal for the City of Manila, the accused is entitled to be informed of the substance of the testimony and of the evidence presented against him.
• Repeal of Existing Legislation: Whether existing legislation under which the City Fiscal conducts preliminary investigations has been repealed and supplanted by the new Rules of Court.
• Judicial Preliminary Investigation: Whether the respondent judge should conduct a preliminary investigation under section 1 of Rule 108 and cancel the warrant of arrest.

• Right to be Informed of Evidence: No. Sections 11 and 13 of Rule 108 apply only to preliminary investigations conducted by justices of the peace and municipal judges, not to those conducted by the City Fiscal of Manila.
• Repeal of Existing Legislation: No. Existing legislation was not repealed; the City Fiscal's power was reaffirmed by section 2, Rule 108, and had long been recognized in jurisprudence.
• Judicial Preliminary Investigation: No. The fiscal's investigation already served the purpose of a preliminary investigation, and the accused's remedy was a trial on the merits under section 4 of Rule 108.

• Right to be Informed of Evidence: Section 13 of Rule 108 requires "the judge or corresponding officer" to transmit the warrant, an abstract of the testimony of the witnesses, the undertaking or bail of the defendant, and the person of the defendant if not on bail. The phrase "the corresponding officer" does not refer to the respondent fiscal. The abstract of testimony was intended for the use and guidance of the fiscal, as explained in U.S. vs. Rafael, 23 Phil. 184, so the duty of transmittal could not be cast upon him; failure to transmit was not prejudicial to the petitioner. Section 13 also assumes that the officer is by law authorized to issue a warrant of arrest and contemplates a two-stage investigation, whereas the City Fiscal conducts but a single summary investigation and has no direct control over the person of the accused, not being empowered to order his arrest or release. Section 11 likewise refers to the preliminary investigation conducted by justices of the peace and municipal judges before and for the purpose of the issuance of the warrant of arrest, and thereafter for the purpose of either releasing the offender or filing the information. To subject the respondent fiscal to these provisions would prolong an otherwise brief investigation and duplicate proceedings where at present there is but one.
• Repeal of Existing Legislation: The Court declined to hold that the existing legislation was repealed or supplanted. The City Fiscal's power first received the imprint of judicial approval in U.S. vs. Wilson, 4 Phil. 317, and was followed in U.S. vs. McGovern, 6 Phil. 621; U.S. vs. Ocampo, 18 Phil. 1; U.S. vs. Grant and Kennedy, 18 Phil. 122; and U.S. vs. Carlos, 21 Phil. 553. The reason is that the prosecuting attorney for the City of Manila is presumed to be as competent to conduct a preliminary investigation as the average person designated by law to conduct a preliminary examination, and the legislature may designate whom it pleases within the judicial department for that purpose. The framers of the Rules could not have intended to brush aside these lessons of experience and tear down an institution recognized by law and decision and sanctioned by years of settled practice. Moreover, if sections 11 and 13 were inapplicable and the existing legislation were deemed repealed, the matter would be left uncovered by rule or law, creating a void.
• Judicial Preliminary Investigation: A preliminary investigation was conducted by the respondent fiscal at which evidence was adduced warranting the filing of an information. The information was filed in court, and the presiding judge, upon the strength of the said preliminary investigation and sworn information, issued a warrant for the arrest of the petitioner. To ask for the abstract of testimony at this stage of the proceedings, ostensibly for no other purpose than to scrutinize the same evidence which convinced the respondent fiscal and the presiding judge that there was probable ground to proceed against the petitioner, was in effect to ask for another preliminary investigation. What section 4 of Rule 108 ordains is not another preliminary investigation but a trial upon the merits.

• Preliminary investigation is statutory, not constitutional — The right to a preliminary investigation is conferred by statute, not by the Constitution. Its oft-repeated purpose is to secure the innocent against hasty, malicious, and oppressive prosecutions, to protect the accused from open and public accusation of crime, from the trouble, expenses and anxiety of a public trial, and to protect the State from useless and expensive prosecutions. Because the right is statutory, it is governed by the statute creating it — here, the Revised Administrative Code as amended by Commonwealth Act No. 537 — and not by the Rules of Court provisions on preliminary investigation.
• Scope of sections 11 and 13 of Rule 108 — Sections 11 and 13 of Rule 108 apply only to preliminary investigations conducted by justices of the peace and municipal judges, not to those conducted by the City Fiscal of Manila. Section 13 assumes that the officer is authorized to issue a warrant of arrest and contemplates a two-stage investigation, whereas the City Fiscal conducts a single summary investigation and has no power to issue warrants or control the person of the accused.
• Non-repeal by implication — Existing legislation authorizing the City Fiscal to conduct preliminary investigations was not repealed or supplanted by the new Rules of Court. The power was reaffirmed by section 2, Rule 108, and had been sanctioned by years of settled practice; the framers of the Rules did not intend to tear down an institution recognized by law and decision.
• Standard at preliminary investigation — The investigating judge or prosecuting officer acts upon probable cause and reasonable belief, not upon proof beyond a reasonable doubt. The occasion is not for the full and exhaustive display of the parties' evidence; it is for the presentation of such evidence only as may engender well-grounded belief that an offense has been committed and that the accused is probably guilty thereof. When this is fulfilled, the accused will not be permitted to cast about for fancied reasons to delay the proceedings; the time to ask for more is at the trial.

• "Viewed in the light of fundamental principles, the right to a preliminary investigation is statutory, not constitutional." — This is the canonical formulation of the nature of the right to a preliminary investigation, and it supplies the premise for holding that the procedure is governed by the statute creating the right rather than by the Rules of Court.
• "The investigation is advisedly called preliminary, to be followed by the trial proper. The investigating judge or prosecuting officer acts upon probable cause and reasonable belief, not upon proof beyond a reasonable doubt." — This passage defines the evidentiary standard governing preliminary investigation and explains why the accused is not entitled to a full display of the evidence at that stage.
• "To ask for the abstract of testimony at this stage of the proceedings, ostensibly for no other purpose than to scrutinize the same evidence which convinced the respondent fiscal and the presiding judge that there was probable ground to proceed against the petitioner, is in effect to ask for another preliminary investigation." — This states the ratio decidendi for denying the petitioner's motions, characterizing the request as a disguised second preliminary investigation rather than a step toward trial.
• "The purpose of requiring the justice of the peace to forward to the provincial fiscal a brief statement of the substance of the testimony, evidently is to enable the provincial fiscal to decide, in the first instance, whether he shall present a complaint against the defendant, and in the second, to enable him, in case he decides to prosecute, to properly formulate said complaint." — Quoted from U.S. vs. Rafael, this passage establishes that the abstract of testimony is intended for the fiscal's use and guidance, supporting the conclusion that the duty of transmittal cannot rest upon the fiscal himself.

• U.S. vs. Wilson, 4 Phil. 317 — Controlling precedent; first gave judicial approval to the City Fiscal's power to proceed against an accused without the latter being entitled as of right to a preliminary examination where the prosecuting attorney, after due investigation, had presented an information in proper form.
• U.S. vs. Ocampo, 18 Phil. 1 — Followed; held that the prosecuting attorney for the City of Manila is presumed as competent to conduct a preliminary investigation as the average person designated by law to conduct a preliminary examination, and that the legislature may designate whom it pleases within the judicial department for that purpose.
• U.S. vs. Rafael, 23 Phil. 184 — Cited for the purpose of the abstract of testimony, namely, to enable the provincial fiscal to decide whether to prosecute and to properly formulate the complaint.
• U.S. vs. McGovern, 6 Phil. 621; U.S. vs. Grant and Kennedy, 18 Phil. 122; U.S. vs. Carlos, 21 Phil. 553 — Followed as part of the line of cases recognizing the City Fiscal's authority to conduct preliminary investigations.

• Section 2465, Revised Administrative Code, as amended by Commonwealth Act No. 537 — Provides that the Fiscal of the city shall cause to be investigated all charges of crimes, misdemeanors, and violations of ordinances, and have the necessary information or complaints prepared or made against the persons accused. This is the statutory basis of the City Fiscal's power to conduct the preliminary investigation in this case.
• Section 2474, Revised Administrative Code (Manila Charter) — Provides that in cases triable only in the Court of First Instance, the defendant shall not be entitled as of right to a preliminary examination where the fiscal of the city, after a due investigation of the facts, shall have presented an information against him in proper form. This provision was held to remain in force and not to have been repealed by the new Rules.
• Section 2, Rule 108 — Provides that every justice of the peace, municipal judge or city fiscal shall have jurisdiction to conduct preliminary investigation of all offenses alleged to have been committed within his municipality or city, cognizable by the Court of First Instance. The provision reaffirmed, rather than took away, the City Fiscal's power.
• Section 11, Rule 108 — Sets out the rights of the defendant after arrest, including the right to be informed of the substance of the testimony and evidence presented against him. Held inapplicable to preliminary investigations conducted by the City Fiscal.
• Section 13, Rule 108 — Requires the judge or corresponding officer, upon conclusion of the preliminary investigation, to transmit the warrant, an abstract of the testimony of the witnesses, the undertaking or bail, and the person of the defendant if not on bail. Held inapplicable to the City Fiscal, who is not the "corresponding officer" contemplated.
• Section 4, Rule 108 — Ordains a trial upon the merits, which the Court identified as the proper remedy at this stage of the proceedings.
• Section 1, Rule 108 — The provision on preliminary investigation invoked by petitioner in asking that the respondent judge conduct the investigation and cancel the warrant of arrest.
• Section 3, Rule 108 — Authorizes the municipal mayor, in stated cases, to conduct preliminary investigation, and was cited as a possible referent of the phrase "the corresponding officer."
• Article 168, Revised Penal Code — The offense charged in the information, namely, possession of false or falsified treasury certificates with intent to use the same contrary to law.

Avanceña, C.J., Diaz and Horrilleno, JJ., concur. Imperial, J., filed a separate concurring opinion, concurring in the result but opining that petitioner's right to examine and impugn the evidence taken at the preliminary investigation conducted by Assistant Fiscal Gregorio S. Narvasa may be accomplished at the trial of the case after proper foundation shall have been laid down.