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[A.M. No. MTJ-02-1427.

February 27, 2003]


MODESTO MAGSUCANG, complainant, vs. JUDGE ROLANDO
V. BALGOS, MTC, Hinigaran, Negros Occidental, respondent.

In a letter-complaint dated November 18, 2000 and addressed to the Secretary of the
Department of Interior and Local Government, complainant Modesto Magsucang charged
Judge Rolando Balgos, Presiding Judge, MTC, Hinigaran, Negros Occidental, of bias and
partiality, grave abuse of discretion, requiring excessive bail, and violation of the Rules of
Criminal Procedure.

It appears from the records that on May 10, 2000, a certain Pepito Lim, owner of the Ace
Fishing Corporation, filed a criminal complaint for qualified theft against complainants
daughter, Rosalie Magsucang, allegedly for misappropriating cash amounting to P11,200,
with grave abuse of confidence. The case was docketed as Criminal Case
No. 1593. Subsequently, respondent judge, before whom the preliminary investigation was
conducted, issued a warrant of arrest. Bail was set at P30,000. On May 11, 2000, Rosalie
was arrested. Complainant posted bail for his daughter from the proceeds of the sale of his
banca and with money borrowed from friends.

Meanwhile, more cases for qualified theft were filed by Mr. Lim against Rosalie. These
cases were docketed as Criminal Case Nos. 1608, 1609, 1610, 1611, 1612, 1613, 1634,
and 1635. After preliminary investigations were conducted in these cases, corresponding
warrants of arrest were issued by respondent judge. In Criminal Case No. 1635, bail was set
at P24,000. Neither Modesto nor Rosalie had money to pay for bail so Rosalie remained
incarcerated.

Complainant faults respondent judge for allegedly committing irregularities in the conduct
of the preliminary investigation when respondent judge administered the oath to Pepito Lim
and for having sent Rosalie to prison without the benefit of a hearing. According to
complainant, when respondent judge issued several subpoenas on June 2, 2000, requiring
Rosalie to file her counter-affidavit in Criminal Case Nos. 1608 to 1613, inclusive, he likewise
committed grave abuse of discretion since he failed to consider that Rosalie was, at the time,
locked in jail and incapable of defending herself in court. Lastly, complainant states that
respondent judge violated applicable rules and regulation when he required excessive bail.

On November 10, 2000, the letter-complaint was referred to the Office of the Court
Administrator. On January 25, 2001, then Court Administrator Alfredo L. Benipayo required
respondent judge to file his comment.

In his comment, respondent maintained that the rules of procedure were followed in the
filing of the criminal complaints against Rosalie Magsucang. Criminal Cases Nos. 1608, 1609,
1610, 1611, 1612, 1613, 1634 and 1635, all for qualified theft, were filed against Rosalie after
Criminal Case No. 1593. In all these later cases, Rosalie filed her counter-affidavit and that of
her witness only after she was already arrested. There is, therefore, no truth to the
complainants allegation that respondent judge acted pursuant to a conscious effort to defeat
the bail posted in Criminal Case No. 1593. He added that Rosalie virtually disappeared after
posting bail in Criminal Case No. 1593; she was only arrested after an intensive police effort
to find her.

Respondent further declared that, excluding Criminal Cases Nos. 1634 and 1635, which
were dismissed, he found probable cause to hold Rosalie Magsucang liable for eight (8)
counts of qualified theft. The resolution and the records of the case have been transmitted to
the Office of the Provincial Prosecutor in Bacolod City for review.
The incumbent Court Administrator, Justice Presbitero Velasco, found respondent judge
innocent of the charges contained in the letter-complaint, except the charge related to
excessive bail. Justice Velasco recommended that the case be re-docketed as a regular
administrative matter and that the respondent judge be fined in the amount of P2,000.

The parties were asked to manifest whether they agree to submit the case for decision
on the basis of the pleadings on record. Respondent agreed. Complainant did not respond
and is deemed to have no objection thereto. We shall now resolve the issues raised in the
complaint.

First, as to the charge that respondent judge acted with bias and partiality, we find that
complainant failed to substantiate his claim. Other than the letter-complaint, no evidence was
introduced clearly pointing to an act manifestly favoring private complainant Pepito Lim and
injuring the rights of accused Rosalie Magsucang. In Araos vs. Luna-Pison,[1] we held that the
absence of any evidence showing that the respondent judge acted in bad faith, ill-will, or
malice reduces the charges against him into a mere indictment. Charges based on mere
suspicion and speculation cannot be given credence.[2]

Well to remember as investigating officer the respondent judge is given the latitude to
determine if there exists probable cause that would warrant either the filing of the
corresponding information or the outright dismissal of the case. Although there is no general
formula or fixed rule for the determination of probable cause since it must be decided in the
light of the conditions obtaining in a given case, its existence depends to a large degree on
the findings or opinion of the judge conducting the investigation.

Mere allegations in the complaint must be supported by evidence to prove that a judge
has overstepped the parameters of his official prerogative. Here, we find that complainant has
failed to present any evidence to corroborate his assertion that respondent judge is guilty of
committing irregularities in the conduct of the preliminary investigation.

Section 3 (a)[3] of Rule 112 of the Rules of Court specifically provides that the complaint-
affidavits shall be subscribed and sworn to before any prosecutor or government official
authorized to administer oaths. Said section likewise provides that it is the duty of the
prosecutor or other government official to certify that he personally examined the affiants and
he is satisfied that they voluntarily executed and understood their affidavits. It is clear that
respondent judge has performed his duty pursuant to existing rules.

A judge enjoys the presumption of regularity in the performance of his function no less
than any other public officer.[4] The presumption of regularity of official acts may be rebutted
by affirmative evidence of irregularity or failure to perform a duty. [5] The presumption, however,
prevails until it is overcome by no less than clear and convincing evidence to the contrary.
[6]
Thus, unless the presumption is rebutted, it becomes conclusive. [7] Every reasonable
intendment will be made in support of the presumption and in case of doubt as to an officers
act being lawful or unlawful, construction should be in favor of its lawfulness. [8]

As to the charge of grave abuse of discretion in issuing six (6) subpoenas on June 2,
2000, we find the charge bereft of merit. There is nothing in the rules prohibiting respondent
judge from issuing subpoenas to Rosalie requiring her to file her counter-affidavits to the
complaints filed against her. In fact the respondent judge is bound to do so in the, course of
processing the complaints. The six (6) subpoenas correspond to the number of complaints
filed against her.

As to the remaining charge, we agree with the OCA. Respondent judge required
excessive bail in this case, i.e., Criminal Case No. 1635.

Section 9 of Rule 114 of the Rules of Court provides that in fixing the amount of bail in
criminal cases, judges shall primarily consider the following factors: (a) financial ability of the
accused to give bail; (b) nature and circumstances of the offense; (c) penalty for the offense
charged; (d) character and reputation of the accused; (e) age and health of the accused; (f)
weight of the evidence against the accused; (g) probability of the accused appearing at the
trial; (h) forfeiture of other bail; (i) the fact that the accused was a fugitive from justice when
arrested; and (j) pendency of other cases where the accused is on bail.

The amount of bail should be reasonable at all times. Excessive bail shall not be
required.[9] In implementing this mandate, regard should be taken Of the prisoners pecuniary
circumstances. That which is reasonable bail to a man of wealth may be unreasonable to a
poor man charged with a like offense. Where the right to bail exists, it should not be rendered
nugatory by requiring a sum that is excessive. [10] The amount should be high enough to
assure the presence of defendant when required but no higher than is reasonably calculated
to fulfill this purpose.[11]

In this case, the respondent judge failed to consider that Rosalie Magsucang is illiterate,
the daughter of a poor fisherman. She had very limited financial ability to post bail. In Criminal
Case No. 1635, one of the nine cases that came after Criminal Case No. 1593, Rosalie
Magsucang was accused of stealing only P4,300. Indeed, each of the ten (10) cases carried
separate warrants of arrest, each with its own recommended amount of bail. In fixing the
unreasonably excessive amount of bail at P24,000 in the last cited case, it is clear that the
respondent judge disregarded the guidelines provided by the Rules of Court. In the same
breath that Rosalie was told she could be bailed out, she was practically denied the means to
do so. The excessive amount required could only mean that her provisional liberty would be
beyond her reach. This is ironic, like categorically telling her that she could not avail of the
right to bail. It appears respondent did not pay heed to the admonition that the court should
not permit any act or omission which undermines public faith and confidence in the judiciary.
[12]

Coming now to the recommended penalty by the OCA, the amount ofP2,000 does not
appear to be commensurate with respondents infraction. Setting excessive bail evinces
disregard of pertinent rules and regulations. Considering that bail involves a basic right of the
accused, this Court finds that a higher penalty should be imposed. Thus, the fine should be
set at P5,000[13] as more appropriate in view of the violation proved.

WHEREFORE, respondent Presiding Judge Rolando Balgos, MTC, Hinigaran, Negros


Occidental is found liable for requiring excessive bail and is hereby FINED the amount of
P5,000.00, with a stern warning that a repetition of the same or similar act would be dealt with
more severely.

Let this decision be made a part of the personnel record of the respondent judge.

SO ORDERED.
A.M. No. RTJ-92-898 August 5, 1993

EVANGELINE L. DINAPOL, complainant,


vs.
JUDGE ISMAEL O. BALDADO, Regional Trial Court, Branch 45, Bais
City, respondent.

In a sworn letter dated 26 August 1992 (Rollo, 2-3), complainant charges the respondent
Judge with grave abuse of discretion, ignorance of the law and conduct unbecoming a
member of the bench in that notwithstanding the fact that the spouses Crozoro Palermo and
Jovy Palermo, accused in Criminal Case No. 775-G for murder, had not yet been arrested
pursuant to the warrant of arrest he had issued on 3 March 1992 and were "freely roaming in
the municipality of Guihulngan," said respondent Judge entertained a petition for bail and set
the same for hearing despite the vigorous opposition of the complaining witness.

Complainant further alleges that the two accused have been "seen conspicuously after the
filing of the petition for bail inside the chambers of this court [RTC] accompanied by a younger
brother of a congressman"; that it was the said congressman who supposedly "sponsored"
the appointment to the Judiciary of the respondent Judge; and that the accused spouses are
"relatives of the said congressman."

The material operative facts in this case, as disclosed by the pleadings of the parties, are as
follows:

The Information for Murder in Criminal Case No. 775-G (Rollo, 31-32) was filed on 28
February 1992 by 3rd Assistant Provincial Prosecutor Diosdado Hermosa of Negros Oriental
before the respondent Judge's sala (Branch 45 of the Regional Trial Court of Negros
Oriental). No bail was recommended for the provisional liberty of accused Crozoro Palermo
and Jovy Palermo.

On 3 March 1992, the respondent Judge issued a warrant for the arrest of the accused.

On 9 March 1992, before the trial court could acquire jurisdiction over their persons, accused
filed through their counsel, the Paras and Associates law office, a motion to grant and fix bail
(Rollo, 52-53) which the respondent Judge set for hearing on 24 April 1992.

On 10 April 1992, Evangeline Dinapol, the complaining witness and a sister of the victim in
the murder case filed a vigorous opposition to the motion.

The accused did not appear on 24 April 1992. In view thereof, the respondent Judge issued
an order (a) denying the motion to grant bail on the ground that the court "has not acquired
jurisdiction over the person of the accused," (b) ordering the issuance of an alias warrant of
arrest and (c) directing the PNP of Guihulngan "to exert utmost efforts for the arrest of the
accused" (Rollo, 58). The alias warrant of arrest was then issued on 28 April 1992 (Rollo, 59).
On that same date, however, the accused this time through Atty. Alfonso Briones filed
an urgent motion for the reconsideration of the 24 April 1992 Order on the ground that "the
accused are forthcoming, and are willing to voluntarily submit to the jurisdiction of the Court"
(Rollo, 60). Acting thereon, and on the basis of Atty. Briones' confirmation of "the willingness
of the accused to surrender to the custody of the court as stated in said motion," respondent
Judge issued an order on 4 May 1992 resetting the hearing of the motion to grant and fix bail
for 7 May 1992 at 8:30 o'clock in the morning, subject to the condition that "the accused shall
surrender to the custody of the court." Respondent Judge further directed the issuance of
subpoenas to the prosecution witnesses and warned the prosecution "that failure to present
evidence on said date without justifiable reason will be considered as lack of strength of its
evidence" (Rollo, 61).

Despite their commitment and Atty. Briones' confirmation on their behalf that they would
voluntarily surrender on 7 May 1992, the accused failed to appear on the set date. While the
prosecution was ready with one witness, it did not present the latter as the accused were still
at large and not under the jurisdiction of the court. Nevertheless, "in the interest of substantial
justice and to avoid delay in the administration of justice," the respondent Judge issued on the
said date an order resetting, once again, the hearing of the motion for 30 June and 1 and 3
July 1992. This extension was, however, subjected to the condition that "on or before June
30, 1992, accused shall have voluntarily surrendered and submitted themselves to the
custody of this court [RTC]" (Rollo, 62).

On 19 June 1992, the subpoena and warrant server of the Guihulngan Police Station, SPO1
Hindenburg Cabang, executed a return of service of the 29 May 1992 warrant of arrest. He
informed the trial court that the warrant had not been duly served as the accused "are not
found here in Guihulngan, Negros Oriental," and the information gathered that they were
temporarily residing in Cebu City proved to be false (Rollo, 65).

Thereupon, the Prosecution filed on 24 June 1992 a "Motion Entreating Hon. Ismael O.
Baldado to Consider Whether or Not to Continue Presiding Over the Above-Entitled Case"
(Rollo, 67-70). It is alleged therein that the respondent Judge had acted with patent bias and
partiality in the accused's favor as may be gleaned from his (Judge's) actuations as above-
indicated, and from the fact that "the two (2) accused . . . have even been seen conspicuously
after the filing of the petition for bail inside the Chambers of this Court [RTC] accompanied by
a younger brother of a congressman. Yet, up to now, said accused are unarrested (sic) and
are known to be roaming freely in Guihulngan, Negros Oriental." The accused, through
counsel, filed an opposition to this motion (Rollo, 71); this was then followed by exchanges of
pleadings.

In an order promulgated on 27 July 1992, respondent Judge inhibited himself from the case
and ordered the same forwarded to Branch 33 of the Regional Trial Court of Negros Oriental
at Dumaguete City, presided over by Judge Pacifico Bulado, for further disposition in
accordance with Administrative Order No. 2691 dated 18 March 1991 (Rollo, 90). However, in
his Order of 7 August 1992, Judge Bulado also inhibited himself from hearing the case since
prosecution witness Alfredo Bulado is his first cousin or a relative within the fourth civil
degree; Judge Bulado decreed the return of the case to the court of origin (Rollo, 92). On 25
August 1992, respondent Judge issued an order forwarding the case to this Court for the
appropriate action on his inhibition (Rollo, 94); the case was docketed as Administrative
Matter No. 92-9864.

In his Comment (Rollo, 21-30), filed in compliance with the Resolution of 13 October 1992
(Rollo, 20), respondent Judge maintains that he had in fact denied in his 24 April 1992 Order
the accused's motion for bail precisely because his court had not yet acquired jurisdiction
over the persons of the accused. Moreover, he claims that he ordered the issuance of an alias
warrant fore their arrest and acted favorably on the motion to reconsider the said denial (by
resetting the hearing of the petition for bail) only to avoid what appeared to him as a "
'pendulum' of procedure or a 'pingpong' of actions by both parties with the accused
manifesting their willingness to surrender and submit to the custody of the court and the
prosecution objecting to the hearing of the application for bail." He avers further that he was
"solely motivated to resolve the issues with dispatch within the framework of procedural rules,
set the incident for hearing on condition that the accused shall have voluntarily surrendered
and submitted to the custody of the law on or before date (sic) set for the hearing."

In the same vein, he assert's that he cannot be charged with ignorance of law because
although he was "a working student in college," he has "consistently endeavored to achieve
excellence, and his academic efforts proved fruitful graduated (sic) Cum Laude in both
Bachelor of Arts and Bachelor of Laws at Silliman University." He has likewise " continued to
work for such excellence in his practice of law, and has applied with more vigor the quest for
the same upon his assumption to the bench."

Finally, respondent Judge alleges that (a) there is no clear and direct proof to support the
allegation that both accused were in his chambers for, as a matter of fact, the Prosecutor
himself, in his Reply of 9 July 1992, admits that the said allegation "is not of our personal
knowledge"; (b) "not a single politician has made interventions or at least insinuate (sic) to
intervene, in any case pending before him"; and (c) there are parties working "behind the
scene of this malicious charge" against whom he will, in due time, undertake legal recourse.

He did not, however, categorically deny the charge that the accused were in his chambers
after the motion for bail was filed, and the allegation that a congressman sponsored his
appointment to the Judiciary.

On 14 January 1993, the complainant filed a Rejoinder [should be Reply] to Comment (Rollo,
101-102).

On 1 February 1993, we required the parties to inform this Court if they are submitting the
case for resolution on the basis of the pleadings (Rollo, 109).

On 19 February 1993, this Court received the 29 January 1993 letter of Glenn B. Litrada,
youngest sister of both Liberty Litrada the victim in the murder case and Evangeline
Dinapol the complainant in instant case informing this Court that in view of the latter's
having been pressured into signing an affidavit of desistance, she (Glenn) would be taking
over as the complainant in this case (Rollo, 110). Acting thereon, we required her to submit a
copy of the said affidavit of desistance (Rollo, 113).

On 1 March 1993, respondent Judge filed a pleading, denominated as his Supplementary


Comments, wherein he exposes Atty. Jose Estacion, Jr. as "the man behind, the prime mover
and the active instigator, in the filing of this case." It appears that the respondent Judge, while
still in the private practice of law, represented Ruth Sison in an administrative case (Adm.
Matter No. RTJ-87-104) filed by her against Estacion who was then the Presiding Judge of
Branch 44 of the RTC at Dumaguete City. In this Court's Resolution of 11 January 1990,
Judge Estacion was ordered dismissed from the service "with forfeiture of all salary, benefits
and leave credits" (Rollo, 160-166). After the respondent Judge's appointment, Atty.
Estacion's group sought the former's removal (Rollo, 167). The respondent Judge attached to
his Supplementary Comments the alleged true and correct copy of complainant Evangeline
Dinapol's so-called affidavit of desistance (Rollo, 124).

Thereafter, in his 2 April 1993 compliance (with the Resolution of 16 February 1993),
respondent Judge manifested that he is submitting the instant case for resolution on the basis
of the pleadings. Complainant, on the other hand, chose not to submit her compliance.

In its 18 June 1993 Memorandum submitted in compliance with the 20 May 1993 Resolution
of this Court directing it to evaluate the case and submit its report and recommendation
thereon, the Office of the Court Administrator concludes that the respondent Judge has
"committed a jurisdictional lapse in the procedure he adopted in setting the case for hearing
the Motion to (sic) Bail filed by the counsel of the accused on the mere allegation that the
accused are forthcoming and are willing to voluntarily submit to the jurisdiction of the court."
According to the said Office, it is clear from Section 1, Rule 114 of the Revised Rules of Court
that an accused can move for the granting of bail only if the court has acquired jurisdiction
over his person. It then recommends that the respondent Judge "be sternly admonished with
a warning that a repetition of the same or similar violation in the future will be dealt with more
severely."

It is axiomatic that a court cannot entertain an accused's motion or petition for bail unless he
is in the custody of the law. Bail is defined Section 1, Rule 114 of the Revised Rules of Court
as "the security given for the release of a person in custody of the law, furnished by him or a
bondsman, conditioned upon his appearance before any court as required under the
conditions" specified in Section 2 thereof. A person is considered to be in the custody of the
law (a) when he is arrested either by virtue of a warrant of arrest issued pursuant to Section 6,
Rule 112, or even without a warrant under Section 5, Rule 113 in relation to Section 7, Rule
112 of the Revised Rules of Court, or (b) when he has voluntarily submitted himself to the
jurisdiction of the court by surrendering to the proper authorities. Elsewise stated, the purpose
of requiring bail is to relieve an accused from imprisonment until his conviction and yet secure
his appearance at the trial (Almeda vs. Villaluz, 66 SCRA 38 [1975], citing Green vs. Petit,
Sheriff, 54 N.E. 2d 281). Accordingly, it would be incongruous to grant bail to one who is free
(Feliciano vs. Pasicolan, 2 SCRA 888 [1961], citing Manigbas vs. Luna, 52 O.G. 1405; see
also Mendoza vs. Court of First Instance of Quezon, 51 SCRA 369 [1973]). The right to bail is
guaranteed by the Constitution. Section 13, Article III of the 1987 Constitution provides in part
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. . . . .

However, "only those persons who have been either arrested, detained or otherwise deprived
of their liberty will ever have occasion to seek the benefits of said provision" ( Herras
Teehankee vs. Rovira, 75 Phil. 634 [1945]). Thus, it logically follows that no petition for bail
can be validly entertained for as long as the petitioner is NOT in the custody of the law.

Since the accused in Criminal Case No. 775-G were not arrested by virtue of both the original
warrant arrest and the alias warrant of arrest, and did not voluntarily submit to the jurisdiction
of the trial court, they had no standing in court to file a motion for bail. Nor did the court have
any business setting the same for hearing. By setting the said motion for hearing despite the
fact that his court had not yet acquired jurisdiction over the persons of the accused, the
respondent Judge blatantly disregarded established rule and settled jurisprudence. While he
subsequently rectified his error by denying the motion in his Order of 24 April 1992, he
nevertheless backtracked by granting the motion for reconsideration and setting anew the
hearing of the motion for bail this time with a warning to the prosecution that its failure to
present evidence on the scheduled date "will be considered as lack of strength of its
evidence." We find neither rhyme nor reason for this warning because if there was any party
to be warned, it should have been the accused who had abused the liberality of the
respondent Judge and belittled the authority of the court. Worse, the respondent Judge still
accommodated the accused who had already reneged on their commitment to submit to
the court's jurisdiction by resetting the hearing of the motion for bail after they failed to
appear a second time. These acts of the respondent Judge compounded his already
questionable disregard of the rule and doctrine aforecited. He opted to perpetuate his
defiance thereto and experiment on a new procedure which we cannot sanction. According to
Canon 18 of the Canons of Judicial Ethics, a Judge violates his duty as a minister of justice if
he seeks to do what he may personally consider substantial justice in a particular case and
disregards the general law as he knows it to be binding on him.

Respondent Judge had likewise betrayed impropriety by his unusual partiality in favor of one
of the parties. It is to be observed that the former did not categorically deny the accused's
reported visit to his chambers after the motion for bail was filed. Instead of simply stating in a
few words that the accused never saw him in his chambers, the respondent Judge labored
hard to discuss in detail his position that "there is no clear and direct proof" to support the said
allegation. The Canons of Judicial Ethics mandate that a judge's official conduct should be
free from the appearance of impropriety, and that his personal behavior, not only upon the
bench and in the performance of judicial duties, but also in his every day life, should be
beyond reproach (Canon 3, Canons of Judicial Ethics).

ACCORDINGLY, respondent Judge is hereby meted a fine of Ten Thousand Pesos


(P10,000.00) and is warned that a repetition of the same or similar act shall be dealt with
more severely.

SO ORDERED.

A.M. No. RTJ-94-1183 February 6, 1995

CONCERNED CITIZENS, complainants,


vs.
JUDGE ARMIE E. ELMA, respondent.

This administrative case arose from an anonymous letter-complaint, dated May 25,
1993, 1 charging Judge Armie E. Elma, presiding judge, Regional Trial Court of Pasig, Branch
153, with the Gross Ignorance of the Law and Grave Abuse of Discretion for granting bail in a
non-bailable offense. The complaint was addressed to Vice-President Joseph Estrada as
Chairman of the Philippine Anti-Crime Commission (PACC) who endorsed the complaint to
the Ombudsman 2 for investigation. In turn, the Ombudsman referred the case to this Court
for appropriate action.

The records disclose that one Alfredo Gatus y Tiamzon was charged with illegal recruitment in
large scale and estafa in five (5) separate Information, 3 before the sala of respondent Judge
Elma. In the Information for Illegal Recruitment in Large Scale, dated August 14, 1992, no bail
bond was recommended. 4

On August 26, 1992, accused Gatus file a motion 5 to fix his bail in Criminal Case No. 94126
(Illegal Recruitment in Large Scale) at P60,000.00. 6
On the same date, respondent judge, instead of setting the application for hearing, directed
the prosecution to file its Comment or Opposition to accused's Motion to Fix Bail within five (5)
days from notice. 7

On August 31, 1992, the prosecution submitted its Comment, thus:

1. That based on the record of this case, it appears that a preliminary investigation was
conducted;

2. That the . . . investigating prosecutor who conducted the preliminary investigation (did not)
recommend (any) bail for said offense;

3. That undersigned still maintains the findings of the investigating Prosecutor. However,
considering that the case is now within the Honorable Court, we submit the instant Petition for
(sic) its sound discretion. 8

In an Order dated September 2, 1992, respondent judge set the accused bail at
P100,000.00. 9 On October 9, 1992, respondent judge approved the P100,000.00 bail posted
by the accused. 10

Considering the complaint, the Court required respondent judge to file his Comment. 11 In his
Comment, 12respondent judge admits that he failed to conduct a formal hearing prior to his
grant of accused Gatus' application for bail in Criminal Case No. 94126. He, however,
maintains that in ordering the prosecution to comment on accused's motion to fix bail, he has
substantially complied with the requirement of a formal hearing. He further claims that he
required the prosecution to adduce evidence but the latter refused and left the determination
of the motion to his discretion.

The Constitution guarantees to every person under legal custody the right to bail, except
those charged with offenses punishable by reclusion perpetua when evidence of guilt is
strong. 13

The Rules likewise mandates that before ruling on an application for bail, a hearing should
first be conducted to determine the existence of a strong evidence against the accused. 14

Respondent judge, in granting bail to accused Gatus in Criminal Case No. 94126,
disregarded this basic rule of procedure. It is a rule of long standing that bail is not a matter of
right in cases involving capital offenses or where the offenses for which the accused stands
charged is punishable by reclusion perpetua when evidence of guilt is strong. It is true that the
weight of the evidence adduced is addressed to the sound discretion of the court. However,
such discretion may be exercised only after the hearing called to ascertain the degree of guilt
of the accused for the purpose of whether or not he should be granted provisional liberty. 15 At
the hearing, the court should assure that the prosecution is afforded the opportunity to adduce
evidence relevant to the factual issue, with the applicant having the right of cross-examination
and to introduce his own evidence in rebuttal. 16 In the case at bench, however, no formal
hearing was conducted by respondent judge. He could have not assessed the weight of the
evidence against accused Gatus before granting the latter's application for bail.

The necessity of hearing an application for bail has been stressed by this court in the early
case of People v. San Diego, 17 thus:

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. Hence, the court's order granting or refusing bail must
contain a summary of the evidence for the prosecution followed by its conclusion whether or
not the evidence of guilt is strong . . .
In granting accused Gatus' application for bail in Criminal Case No. 94126, respondent judge
issued on September 2, 1992 an Order, worded as follows:

Acting on accused's motion to fix bail which can be treated as a petition to bail, and
considering the particular circumstances of this case, bail is hereby set at P100,000.00 to be
put up by sufficient sureties.

SO ORDERED. 18

The Order speaks eloquently for itself. On its face, it is once apparent that respondent judge
did not make any finding that the evidence against the accused was not strong to justify his
grant of bail. Respondent judge merely adverts to "particular circumstances" of the case
without in any way hinting their nature and character. Such an inscrutable statement does not
satisfy the Constitution and the Rules.

In his Comment, respondent judge claims that his Order, dated August 26, 1992, requiring the
prosecution to file its Comment/Opposition to the motion for bail, substantially complied with
the provisions of the Rules requiring a formal hearing. He insists that said Order amounts to a
summary hearing and complies with the Rules.

The stance of respondent judge magnifies his ignorance of the law. Summary hearing is
"such brief and speedy method of receiving and considering the evidence of guilt as is
practicable and consistent with the purpose of the hearing which is to determine the weight of
the evidence for purposes of bail." 19 In receiving evidence on bail, it is true that the court is
not required to try the merits of the case nor is it called to speculate on the outcome of the
trial. 20Nonetheless, hearing of the application cannot be totally dispensed with. To do away
with the hearing is to dispense with this time-tested safeguard against arbitrariness.

The importance of the Rule requiring the conduct of the hearing in an application for bail
cannot be overemphasized. On its result depends the right of an accused to provisional liberty
as opposed to the duty of the State to protect its people against dangerous elements. The
resolution of the issue affects important norms in our society, liberty on one hand, and order
on the other. To minimize, if not eliminate, error and arbitrariness in a judge's decision, the
Rules require the judge to hear the parties and then make an intelligent assessment of their
evidence.

This is not the first time respondent judge violated the rule on bail in capital offenses. He has
been previously fined for a similar offense. On February 11, 1993, in A.M. No. 92-10-889
RTC, respondent judge also granted an accused a P100,000.00 bail in a non-bailable murder
case. He granted the bail without affording the prosecution an opportunity to show it had a
strong evidence against the accused. He was fined P10,000.00. On a motion for
reconsideration, his fine was reduced to P5,000.00. He was, however, sternly warned that a
repetition of the same or similar offense will be dealt with more severely.

It thus appears that in two (2) capital cases, respondent has run roughshod on the right of the
prosecution to oppose bail of persons accused of capital offenses, a right rooted on the
necessity to protect the safety of the people. Respondent judge's attitude is lamentable for it
contributes to the deterioration of the peace of our community and shows callousness to the
cry of our people for a more ordered liberty. As respondent judge has chosen to be stubborn
in his ignorance of our rules, he has forfeited his privilege to wield the gavel of justice.

WHEREFORE, respondent Judge Armie E. Elma, presiding judge, Branch 153, Regional Trial
Court of Pasig, Metro Manila, is hereby found guilty of gross ignorance of the law and grave
abuse of discretion. Respondent judge is hereby DISMISSED from service, with forfeiture of
all retirement benefits and accrued leave credits and with prejudice to re-employment in any
branch or instrumentality of the government, including government-owned or controlled
corporations. This Resolution is immediately executory.
SO ORDERED.

A.M. No. RTJ-95-1286 March 2, 1995

TERESITA Q. TUCAY, complainant,


vs.
JUDGE ROGER A. DOMAGAS, Branch 46, Regional Trial Court, Urdaneta,
Pangasinan, respondent.

Teresita Q. Tucay filed this complaint against Judge Roger A. Domagas of the Regional Trial
Court (Branch 46), Urdaneta, Pangasinan, charging him with ignorance of the law, serious
misconduct and grave abuse of discretion.

The facts are as follows:

Ludovico Ellamil, Bernardo Ellamil and Melchor Ellamil are accused of murder in Criminal
Case No. U-6762. The case was formerly assigned to the respondent judge. Teresita Tucay,
the wife of the victim, is the complainant in that case.

On April 18, 1994, a petition for bail was filed on behalf of the accused Bernardo Ellamil. The
petition was denied,1 however, by respondent judge on the ground that it did not bear the
conformity of the provincial prosecutor.
The following day, April 19, 1994, a second petition for bail 2 was filed by the accused with the
prayer that he be allowed to post bail in the amount of P50,000.00. This time, the petition
contained the notation "No objection" of Provincial Prosecutor Jose Antonio Guillermo.

Without holding a hearing to determine whether the evidence of the prosecution was strong,
respondent judge issued an order 3 on the same day, in which he granted bail and directed the
release of accused from detention with instructions to the bondsman to register the bond with
the Register of Deeds of Lingayen, Pangasinan within ten days.

The present complaint was filed, protesting the grant of bail without hearing and without
notice to trial fiscal, Atty. Tita Villarin, of the Provincial Prosecutor's recommendation for
approval of the bond. It is alleged that the assessed value of the property given as bond is
only P47,330.00, and, therefore, is short of the amount fixed for the release of the accused.

In his comment filed on August 3, 1994, respondent judge alleged:

(1) The granting of the second petition for bail bears the conformity of the Provincial
Prosecutor as per notation at the right-hand margin on page 2 of the petition;

(2) That the accused already made an additional bond as per Order dated May 19, 1994 to
complete the P50,000.00 bail bond which he registered including the original bond;

(3) The Second petition for bail was approved on April 19, 1994 and the initial hearing was
supposed to be on February 24 & 25, 1994 in so far as one accused, Ludovico Ellamil y
Quinit, a youthful offender under the custody of DSWD and thereafter transferred to the
Regional Rehabilitation Center, Bauang, La Union, is concerned;

(4) That the hearing has been postponed repeatedly at the instance of the private prosecutor
due to the non-arrest of the other two (2) accused;

(5) That to avoid further suspicion and upon manifestation of the private prosecutor the
undersigned inhibited himself as of May 31, 1994 and said case has been re-raffled to Branch
49, presided by Hon. Iluminado C. Meneses.

In her reply dated September 19, 1994, complainant alleged that respondent judge required
the accused, Bernardo Ellamil, to post an additional bond only after she had pointed out the
deficiency of the original property bond. She further alleged that the provincial prosecutor
recommended no bail, despite the fact that MCTC Judge Rodrigo Nabor who, had ordered
the arrest of the accused after a preliminary investigation, had fixed no bail for his temporary
release. Complainant denied that the delay in the trial of the case was due to postponements
requested by her counsel.

The Office of the Court Administrator (OCA), to which the letter-complaint was sent, finds the
respondent judge grossly ignorant of the law in granting bail without a hearing in a criminal
case involving a capital offense and recommends that he be fined and given a stern warning.
The OCA stresses that respondent judge ought to know that a hearing to show that the
evidence of guilt is not strong was indispensable to the grant of bail to the accused. It likewise
points out that, in his order releasing the accused on bail, the judge did not state that he was
granting the petition for bail but simply ordered him released. In a memorandum signed by
Deputy Court Administrator Juanito A. Bernad and approved by Court Administrator Ernani
Cruz Pao, the OCA states:

It is evident from the records that, the aforesaid second petition for bail was not set for
hearing by respondent Judge in disregard of the provision of Sec. 5 Rule 114 of the Revised
Rules on Criminal Procedure requiring hearing before an accused charged with a capital
offense can be granted bail. Although the Provincial Prosecutor interposed no objection
thereto, the assailed Order dated April 19, 1994 which was issued on the very day the petition
for bail was filed, nevertheless showed lack of compliance with the procedural
requirement that the prosecution be given an opportunity to present within a reasonable
time all the evidence that it may desire to introduce before the court may resolve the motion
for bail. (Sec. 15, Rule 114).

In A.M. No. 92-10-884-RTC Re: Report of the Pasig RTC Judges, citing the case of Herras
Teehankee vs. Director of Prison, 76 Phil. 756, 789, this Court held that:

. . . even where the prosecutor refuses to adduce evidence in opposition to the application to
grant and fix bail, the Court may ask the prosecution questions to ascertain the strength of the
State's evidence or judge the adequacy of the amount of bail.

Moreover, the assailed Order of April 19, 1994 is defective in form and substance as it made
no categorical mention whatsoever of granting the petition for bail, much less did it contain
any pronouncement to the effect that the requisite proof of guilt of the accused is not evident.
It simply stated the fact that the bail bond in the amount of P50,000.00 had been posted by
said accused who was consequently ordered released from detention.

The court's discretion to grant bail in capital offense must be exercised in the light of a
summary of the evidence presented by the prosecution, otherwise, it could be uncontrolled
and might be capricious or whimsical. Hence, the court's order granting or refusing bail must
contain a summary of the evidence for the prosecution followed by its conclusion whether or
not the evidence of guilt is strong. (Carpio vs. Maglalang, 196 SCRA 50-51, citing "People vs.
San Diego," 26 SCRA 522, 524)

. . . Such error cannot be characterized as mere deficiency in prudence, discretion and


judgment but a patent disregard of well-known rules and, therefore, constitutive of gross
ignorance of the law (A.M. No. RTJ-93-1097 "Regional State Prosecutor Francisco Q. Aurillo,
Jr. vs. Judge Getulio M. Francisco and Judge Pedro S. Espina, etc." August 12, 1994).

We agree with the foregoing observations of the OCA. We wish to add that, although the
Provincial Prosecutor had interposed no objection to the grant of bail to the accused,
respondent judge should nevertheless have set the petition for bail for hearing and diligently
ascertained from the prosecution whether the latter was not really contesting the bail
application.

He should have called a hearing for the additional reason of taking into account the guidelines
in Rule 114, sec. 6 of 1985 Rules on Criminal Procedure, as amended, in fixing the amount of
the bail. As it is, the respondent judge simply fixed the amount of bail at P50,000.00 and
ordered the release of the accused. It turned out that the property given as security for the
bond had a market value of only P42,940. 00. Although it appears that an additional bond was
later posted, this was done only after the complainant had objected to the bond.

Only after satisfying himself that the prosecution did not wish to oppose the petition for bail for
justifiable cause (e.g., for tactical reasons) and taking into account the factors enumerated in
Rule 114, sec. 6 for fixing bail should respondent judge have granted the petition for bail and
ordered the release of the accused. In failing to observe these rudimentary requirements, the
respondent judge showed gross ignorance of the law for which he should be fined.

The OCA recommends that a fine of P20,000.00 be imposed on him and that he be warned.
The recommendation is in accordance with the penalty imposed in the analogous cases. 4

WHEREFORE, respondent Judge Roger A. Domagas is hereby ordered to pay a fine of


P20,000.00 and is sternly warned that the commission of a similar offense in the future will be
dealt with more severely.

SO ORDERED.
BIENVENIDO O. MARCOS, Petitioner, v. HON. FERNANDO S. RUIZ, RTC Judge, 7th
Judicial Region, Tagbilaran City, and THE PEOPLE OF THE PHILIPPINES, Respondents.

SYLLABUS

1. REMEDIAL LAW; CRIMINAL PROCEDURE; MOTION TO DISMISS; MAY BE RESOLVED


AFTER ARRAIGNMENT. All the parties agree that the 12 November 1984 Motion to
Dismiss was not resolved by the trial court. Respondent Judge asserts that the petitioner is
estopped from questioning the inaction on this motion because he voluntarily appeared at his
arraignment, entered a plea and agreed to the scheduling of the case for trial on the merits;
besides, the Prosecution, by presenting its evidence, is deemed to have abandoned the
motion. While the first proposition is incorrect, the second is inaccurate. Estoppel does not
operate in the present case for the motion may still be resolved after the arraignment; by its
nature, it may be filed by the prosecution at any time. As a matter of fact, had the petitioner
not signed his conformity thereto, it would have been to his benefit or advantage that the
motion be resolved after his plea for, by then, if the same is granted, the Prosecution would
be precluded from refiling the case on the ground of double jeopardy.

2. ID.; ID.; ID.; ACTION ON MOTIONS MUST BE UNEQUIVOCAL AND NOT BE LEFT TO
CONJECTURE. The manifestation and withdrawal of the motion (to dismiss) were made in
the presence of the accused and his counsel; neither of them objected thereto for they knew
too well that they had no legal basis therefor. The only flaw in this regard is the respondent
Judges failure to explicitly make a ruling on the oral motion. He merely granted the motion
impliedly by immediately directing the arraignment of the accused. He should have taken the
trouble of making an unequivocal ruling thereon by simply stating: "Motion is granted; the
motion to dismiss is considered withdrawn. All right, arraign the accused." The demands of
orderly procedure require that a judge of a court of record must ensure that actions on
motions must not be left to conjecture but must, in a manner of speaking, be done in black
and white.

3. ID.; ID.; HEARING IN ABSENTIA, PROPER. Having failed to appear on 8 April 1985
despite due notice, and considering that on said date the urgent motion for resetting had not
yet been received by the court, respondent Judge could not be faulted for believing that
petitioners non-appearance was unjustified. Hence, a hearing in absentia was proper under
the aforequoted provision of the Constitution and Sections 2(c) and 1(c) of Rules 114 and 115,
respectively, of the Rules of Court.

4. ID.; ID.; BAILBOND; FORFEITURE. A bail bond may be forfeited only in instances
where the presence of the accused is specifically required by the court or the Rules of Court
and, despite due notice to the bondsmen to produce him before the court on a given date, the
accused fails to appear in person as so required. There is no showing that the court had
specifically required the bonding company to produce the body of the petitioner on 8 and 9
April 1985. Moreover, since Criminal Cases Nos. 3890 and 3892, which involve two (2)
checks with a face value of P3,000.00 each, were merely for the violation of Batas Pambansa
Blg. 22 which imposes a penalty of "imprisonment of not less than thirty (30) days but not
more than one (1) year or by a fine of not less than but not more than double the amount of
the check which fine shall in no case exceed Two Hundred Thousand Pesos, or both such
fine and imprisonment at the discretion of the court," the presence of the accused at the
hearing on 8 and 9 April 1985 was not indispensable.

5. ID.; ID.; ARRAIGNMENT; ACCUSED REQUIRED TO PERSONALLY ENTER HIS PLEA.


It will, however, be noted that insofar as the second case, Criminal Case No. 3892, is
concerned, the court made no ruling on the manifestation and offer by petitioners counsel
that the reading of the information be waived and a plea of not guilty be entered. The
petitioner was neither made to confirm the manifestation nor directed to personally make the
plea. There was, therefore, no valid arraignment in Criminal Case No. 3892. Section 1(b),
Rule 116 of the Rules of Court, as amended, requires the accused to personally enter his
plea.

6. ID.; ID.; MOTION FOR POSTPONEMENT; COUNSEL BOUND TO GIVE PRIORITY TO


HEARING SET ON AGREED DATE. The motion to reset the hearing was a mere
subterfuge to obtain a postponement of and delay the proceedings. Petitioner and his counsel
were notified in open court about the 8 and 9 April 1985 hearing on 7 February 1985. Having
agreed to that setting, counsel in effect certified that he had no prior commitment on those
dates and he was thereby bound to give priority to the same, unless events of greater
importance or of a more serious nature requiring his presence, supervened.

7. ID.; ID.; ID.; GRANTING IN CRIMINAL CASE IS LEFT TO SOUND DISCRETION OF


COURT. Counsel for petitioner should not have presumed that the motion, which he
prepared and sent by registered mail only on 29 March 1989, would reach the court and be
granted before 8 April 1985. He knew, or ought to know that the granting of motions for
postponement in criminal cases is left to the sound discretion of the Court a rule which has
been steadfastly adhered to since United States v. Lorenzana and which this Court more
explicitly expressed in Unites States v. Ramirez.

8. ID.; ID.; ID.; A MERE SCRAP OF PAPER WHERE NOTICE OF HEARING IS LACKING.
The urgent motion for resetting was a mere scrap of paper. As earlier noted, it does not
contain a notice of hearing to the Prosecution; all it had was a mere request, addressed to the
Clerk of Court, that it be submitted for the consideration and approval of the court immediately
upon his receipt thereof. There was, therefore, a clear violation of Section 5, Rule 15 of the
Rules of Court, which is also applicable in motions for continuance in criminal case.

9. ID.; ID.; WHEN NON-APPEARANCE OF ACCUSED CONSIDERED A WAIVER. With


respect to an accused who is not in custody, his non-appearance constitutes a waiver of his
right to be present only for the trial set for the particular date of which he had notice. Upon the
other hand, such non-appearance by an accused in custody and who later escapes is
considered a waiver of the right on such date and all subsequent trial dates until such custody
is regained.

10. ID.; LAWYER-CLIENT RELATIONSHIP; A CLIENT IS BOUND BY THE ACTS OF HIS


COUNSEL. A client is bound by the acts, even mistakes of his counsel in the realm of
procedural technique; however, if the former is prejudiced by the latters negligence or
misconduct, he may recover damages.

DECISION

DAVIDE, JR., J.:

In this special civil action for certiorari under Rule 65 of the Rules of Court, petitioner seeks to
set aside, for being null and void, the Orders of respondent Judge of 8 April 1985 which
considered the failure of petitioner and his counsel to appear on that date as a waiver of the
right to present evidence, and of 29 April 1985 denying petitioners motion for the
reconsideration of said order in Criminal Cases No. 3890 and No. 3892.

The facts are not complicated.

On 2 August 1984, after conducting the appropriate preliminary investigation, Acting 2nd
Assistant City Fiscal Lorenzo A. Lopena of the City of Tagbilaran filed with the Regional Trial
Court of Bohol two (2) informations against petitioner herein for violating Batas Pambansa
Blg. 22; said violations allegedly took place on 5 July 1983 in the City of Tagbilaran when the
petitioner, knowing fully well that he did not have sufficient funds deposited with the Far Fast
Bank and Trust Company (Cebu North Proclamation Area Branch), delivered to Fulgencia
Oculam, in payment for assorted pieces of jewelry taken by petitioners wife Anacleta Marcos,
two (2) checks drawn against said bank in the amount of P3,000.00 each. The informations
were docketed as Criminal Cases No. 3890 1 and No. 3892 2 and were raffled to Branch II of
said court. The petitioner posted a surety bond for his temporary liberty.chanrobles.com.ph :
virtual law library

The arraignment was set for 12 November 1984. The petitioner appeared on that date but
asked for a resetting on the ground that his lawyer had just withdrawn and he had to look for
another lawyer. The court granted his request and the arraignment was reset to 29 November
1984. 3

It turned out, however, that petitioner settled his obligation with the offended party who, on 3
November 1984, executed an Affidavit of Desistance which she subscribed and swore to
before Notary Public Paulino G. Clarin. Pertinent portions thereof read:chanrob1es virtual 1aw
library

x x x

"2. That upon my instance, I requested that the cases be remanded to the City Fiscal for
reinvestigation but which motion was denied;

3. That meanwhile, the respondent settled all his obligations subject matter of the present
cases;

4. That under the circumstances, I possess no ground to further proceed with the prosecution
of the cases;
5. That I am willing to have cases dismissed with the consent of the respondent or accused,
as I hereby desist from further proceeding with the case;

6. That this affidavit of desistance may be utilized by the City Fiscal of the City of Tagbilaran
for the dismissal of the cases." 4

x x x

At 10:00 oclock in the morning of 12 November 1984, Acting 2nd Assistant City Fiscal
Lopena filed a Motion to Dismiss Criminal Case No. 3892 on the
ground:jgc:chanrobles.com.ph

"1. That the complaining witness in this case has turned hostile and shown manifest lack of
interest to prosecute the above-entitled case as evidenced by his (sic) Affidavit of Desistance,
which is hereto attached as Annex "A" and is made an integral part hereof;

2. That without the testimony of said complaining witness, the above-entitled case cannot be
prosecuted successfully, there being no other evidence of hand to prove the guilt of the
accused." 5

The motion bears the approval of Acting 1st Assistant City Fiscal Miguel Relampagos who
acted for the Acting City Fiscal because of the latters absence, and the consent of petitioner.
It also contains the request of the movant fiscal addressed to the Clerk of Court that the same
be set for resolution of the court "upon receipt hereof." chanrobles law library

When the cases were called on 29 November 1984, neither petitioner nor his counsel
appeared; however, the court received a telegram from petitioners wife. Lita Marcos, advising
the court that the petitioner was indisposed. Without any objection on the part of the
prosecution, the court cancelled the arraignment on that date and re-scheduled the same,
together with the trial, for 7 and 8 February 1985. 6

On 7 February 1985, the petitioner appeared together with his counsel de parte, Atty. Carlos
Marcos. He was arraigned in both cases; he entered a plea of not guilty. Forthwith, the court
set the trial of the cases for 8 April 1985 at 2:30 P.M. and 9 April 1985 at 8:30 A.M. The
petitioner, his counsel and the Assistant City Fiscal were notified in open court of the setting.
7

When the cases were called in the afternoon of 8 April 1985, neither petitioner nor counsel
appeared. The prosecution presented its evidence ex-parte and rested its case. The court
then issued an Order 8 forfeiting the bond posted by the petitioner, directing Paramount
Insurance Corp., the bondsman, to show cause, within thirty (30) days form notice, why no
judgment should be issued against the bond and declaring that as no evidence has been
submitted by the petitioner, the cases were deemed submitted for decision.

On 9 April 1985, the trial court received an urgent motion for the resetting of the hearing filed
by counsel for the petitioner. 9 The motion, sent by registered mail and dated 29 March 1985,
alleges:jgc:chanrobles.com.ph

"1. That undersigned counsel has a previous legal commitment in Manila needing his
personal attention;

2. That it would be physically impossible for him to arrive on time for the hearing of the above-
entitled case;

3. That because of this unavoidable circumstances (sic) he is constrained to pray for their
(sic) resetting." 10

and prays that the hearing of the cases be reset to 13 and 14 May 1985 at 2:30 P.M. and 8:30
A.M., respectively. This motion does not contain a notice of hearing to the Prosecuting Fiscal
but a mere request addressed to the Branch Clerk of Court reading:jgc:chanrobles.com.ph

"Please submit the foregoing motion for the consideration and approval of this Honorable
Court immediately upon receipt hereof."cralaw virtua1aw library

On 23 April 1985, petitioners counsel filed a "Motion for Reconsideration to (sic) Order" dated
8 April 1985. 11 In justifying petitioners failure to appear at the hearing on 8 April 1985,
counsel contends:jgc:chanrobles.com.ph

"THAT in view of the said motion [for resetting of hearing] the accused, in good faith, believed
that the hearing set on April 8, 1985 would not proceed and his presence would thus be
unnecessary; that to save money for fare and meals in a trip to Tagbilaran City from Cebu
City, and vice versa, the accused who is a government employee did not anymore attend the
hearing which he believed was cancelled on account of the motion aforementioned;

THAT the accused likewise believed that aside from the motion for postponement, the
pendency of the Motion to Dismiss filed by the prosecuting fiscal, Lorenzo A. Lopena, in view
of complaining witness Affidavit of Desistance, this Honorable Court would not proceed to
receive the evidence of the prosecution. In fact, up to the present, the aforementioned Motion
to Dismiss dated November 12, 1984 has not been acted upon by this Honorable
Court;chanrobles.com.ph : virtual law library

THAT the non-appearance of the accused in the scheduled trial is not a sufficient ground for
the cancellation of the bailbond because his failure could still be considered as a waiver of his
presence.

THAT it is the stand of the undersigned counsel that the motion to dismiss by the prosecuting
fiscal be first resolved before this Honorable Court could proceed with the further proceeding
of this case. Let it be stressed that the accused was arraigned by this Honorable Court over
the objection of the accused AFTER the Motion to Dismiss was filed by the prosecution and
BEFORE it was, as it still is, resolved which could be a denial or granting (sic) thereof, which
to the undersigned does not matter as long as it is acted upon."cralaw virtua1aw library

Once again, the motion does not contain a notice of hearing to the prosecuting fiscal; it has
instead a mere request that the Clerk of Court submit it for the consideration of the court
immediately upon his receipt thereof.

On 29 April 1985, the court issued an Order 12 denying the aforesaid motion for
reconsideration on the following grounds: that the petitioner should not assume that the
motion for postponement would be granted; he is estopped from insisting on a ruling on the
motion to dismiss because he agreed to be arraigned, pleaded not guilty and did not question
the scheduling of the cases for trial; and the presentation by the Prosecution of its evidence
amounted to an abandonment of its motion to dismiss.

On 3 May 1985, a Notice of Promulgation setting the promulgation of sentence in the two (2)
cases to 17 May 1985 was sent to the parties by Antonio R. Monungol, 13 the Research
Attorney of Branch II of the court below.

Hence, this petition which was filed on 14 May 1985 and is anchored on and raises the
principal issue of the alleged denial of petitioners right to confront the witnesses for the
prosecution and to be heard. Corollarily, petitioner submits that respondent Judge erred in not
acting upon the motion to dismiss before setting the arraignment of the accused and receiving
the Peoples evidence.

On 16 May 1985, this Court resolved to require the respondents to comment on the petition
and to issue a Temporary Restraining Order enjoining respondent Judge from promulgating
the judgment in Criminal Cases Nos. 3890 and 3892.

Respondent Judge filed his Comment 14 by mail on 30 May 1985. He maintains that
petitioner voluntarily submitted to the arraignment and was not denied due process. On the
other hand, Acting 2nd Assistant City Fiscal Lopena mailed his Comment on 8 June 1985. 15
The Office of the Solicitor General filed its Comment on 6 September 1985, 16 and asserts
therein that the Order in question is interlocutory and hence, not appealable; respondent
Judge acted in accordance with law and sound discretion in issuing the orders; and petitioner
was not denied his day in court.

On 28 October 1985, petitioner mailed his Joint Reply to the Comments.

On 27 November 1985, this Court resolved to give due course to the petition, consider the
Comments as Answer and require the parties to file their respective Memoranda, which they
subsequently complied with.

The issues to be resolved in this petition are whether or not the respondent Court committed
grave abuse of discretion amounting to lack or absence of jurisdiction in:chanrobles virtual
lawlibrary

(1) ordering the arraignment of the accused and receiving the evidence for the prosecution
without first resolving the motion to dismiss;

(2) ordering the forfeiture of the bail bond when petitioner failed to appear on 8 April 1985;
allowing the Prosecution to present its evidence ex parte and declaring the petitioner as
having waived his right to present his evidence; and

(3) denying the motion to reconsider the Order of 8 April 1985 and setting the promulgation of
judgment on 17 May 1985.

1. All the parties agree that the 12 November 1984 Motion to Dismiss was not resolved by the
trial court. Respondent Judge asserts that the petitioner is estopped from questioning the
inaction on this motion because he voluntarily appeared at his arraignment, entered a plea
and agreed to the scheduling of the case for trial on the merits; besides, the Prosecution, by
presenting its evidence, is deemed to have abandoned the motion. While the first proposition
is incorrect, the second is inaccurate. Estoppel does not operate in the present case for the
motion may still be resolved after the arraignment; by its nature, it may be filed by the
prosecution at any time. As a matter of fact, had the petitioner not signed his conformity
thereto, it would have been to his benefit or advantage that the motion be resolved after his
plea for, by then, if the same is granted, the Prosecution would be precluded from refiling the
case on the ground of double jeopardy.

This Court noted, however, that the motion to dismiss is for Criminal Case No. 3892 only 17
although the instant petition makes it appear, and the respondents seem to accede thereto,
that the motion affects both Criminal Cases Nos. 3890 and 3892. This, of course, would
become entirely irrelevant in the light of the succeeding discussion on the second ground
stressed by the respondent Judge.

What actually transpired before the court a quo was that the Prosecution orally withdrew the
motion to dismiss. In the transcripts of the stenographic notes of the proceedings on 7
February 1985, 18 We find the following:jgc:chanrobles.com.ph

"ASST. CITY FISCAL L. LOPENA

Your Honor please, I have conferred with the complaining witness and she manifested her
willingness to testify in this case for the prosecution. In view of this development, we are
constrained to withdraw our motion to dismiss.cralawnad

COURT

All right, then arraign the accused." 19

This manifestation and withdrawal of the motion were made in the presence of the accused
and his counsel, neither of them objected thereto for they knew too well that they had no legal
basis therefor. The only flaw in this regard is the respondent Judges failure to explicitly make
a ruling on the oral motion. He merely granted the motion impliedly by immediately directing
the arraignment of the accused. He should have taken the trouble of making an unequivocal
ruling thereon by simply stating: "Motion is granted; the motion to dismiss is considered
withdrawn. All right, arraign the accused." The demands of orderly procedure require that a
judge of a court of record must ensure that actions on motions must not be left to conjecture
but must, in a manner of speaking, be done in black and white.

2. Considering that he had been arraigned which both the parties and the court thought
that the same was for both cases petitioner was not required to appear at the trial on 8 and
9 April 1985. While it may be true that he has the right to be present at every stage of the
proceedings, i.e., from the arraignment to the promulgation of judgment, he can waive his
presence. The second sentence of paragraph (2), Section 14, Article III of the 1987
Constitution provides as follows:jgc:chanrobles.com.ph

"However, after arraignment, trial may proceed notwithstanding the absence of the accused
provided that he has been duly notified and his failure to appear is unjustifiable." 20

Section 1 (c), Rule 115 of the Rules of Court provides, in part, as


follows:jgc:chanrobles.com.ph

". . . The accused may, however, waive his presence at the trial pursuant to the stipulations
set forth in his bail bond, unless his presence is specifically ordered by the court for purposes
of identification. The absence of the accused without any justifiable cause at the trial on a
particular date of which he had notice shall be considered a waiver of his right to be present
during that trial."cralaw virtua1aw library

While Section 2(c), Rule 114 of the Rules of Court, on the different conditions attached to a
bail bond, provides:chanrob1es virtual 1aw library

x x x

"(c) The failure of the accused to appear at the trial without justification despite due notice
shall be deemed an express waiver of his right to be present on the date specified in the
notice. In such case, the trial may proceed in absentia:"

Having failed to appear on 8 April 1985 despite due notice, and considering that on said date
the urgent motion for resetting had not yet been received by the court, respondent Judge
could not be faulted for believing that petitioners non-appearance was unjustified. Hence, a
hearing in absentia was proper under the aforequoted provision of the Constitution and
Sections 2(c) and 1(c) of Rules 114 and 115, respectively, of the Rules of Court.chanrobles
law library

However, respondent Judge gravely abused his discretion when he ordered the forfeiture of
the bond and required the bonding company to show cause why no judgment should be
rendered against it for the amount of the bond. One other condition for the granting of bail, set
forth in Section 2(b), Rule 114 of the Rules of Court, is that the accused shall appear before
the proper court whenever so required by the court or the rules of Court.

A bail bond may be forfeited only in instances where the presence of the accused is
specifically required by the court or the Rules of Court and, despite due notice to the
bondsmen to produce him before the court on a given date, the accused fails to appear in
person as so required. 21 There is no showing that the court had specifically required the
bonding company to produce the body of the petitioner on 8 and 9 April 1985. Moreover, since
Criminal Cases Nos. 3890 and 3892, which involve two (2) checks with a face value of
P3,000.00 each, were merely for the violation of Batas Pambansa Blg. 22 which imposes a
penalty of "imprisonment of not less than thirty (30) days but not more than one (1) year or by
a fine of not leas than but not more than double the amount of the check which fine shall in no
case exceed Two Hundred Thousand Pesos, or both such fine and imprisonment at the
discretion of the court," the presence of the accused at the hearing on 8 and 9 April 1985 was
not indispensable.

Under the Rules of Court, the accused has to be present:chanrob1es virtual 1aw library

(a) at the arraignment pursuant to paragraph (b), Section 1, Rule 116;

(b) at the promulgation of judgment, except when conviction is for a light offense, in which
case the judgment may be pronounced in the presence of his counsel or representative
pursuant to Section 6 of Rule 120, or unless promulgation in absentia is allowed under the
third paragraph of said section; and

(c) when the prosecution intends to present witnesses who will identify the accused. 22

Before the advent of the 1985 Rules on Criminal Procedure, the accused did not have to be
present at the arraignment if the charge was for a light offense triable by the then justice of
the peace or any other inferior court of similar jurisdiction. Also, his plea may be entered on
his behalf by his attorney if the charge is for a misdemeanor or a minor offense in which the
penalty that may be imposed is a fine not exceeding P200.00. 23

3. Petitioner, however, is not fully justified in claiming that he was denied his right to due
process by the respondent Judge. In the first place, it is not true that petitioner was arraigned
over his objection. The transcript of the proceedings on 7 February 1985 24 reveals that his
counsel merely asked for "enough time to confront the accused and advise him of what to
plea (sic) in case the arraignment will push through" for the reason that it was his initial
appearance. He asked for a deferment of the arraignment for ten (10) days. The court,
however, gave him until 10:00 oclock that morning to prepare for the arraignment, to which
he agreed. When the cases were called again at 10:00 oclock that morning, the following
transpired:jgc:chanrobles.com.ph

"ATTY. CARLOS MARCOS

Your Honor please, before the arraignment, may I make it of record that the Fiscal just have
(sic) today turned over the information which is for reading by the Clerk of Court.chanrobles
law library : red

COURT

All right, arraign the accused now in the two cases?

NOTE Information was read to the accused after which . . .

COURT (To accused)

What is your plea?

ACCUSED

Not guilty, Your Honor.

ATTY. CARLOS MARCOS

Your Honor please, the reading of the information of the other case, may we pray that it be
waived and the accused will enter the plea of not guilty?

COURT:chanrob1es virtual 1aw library

So, what is the pleasure now of the defense?


ATTY. C. MARCOS

Considering that the accuseds arraignment has just been terminated, may we be given
ample time to prepare the defense of our case, Your Honor.

COURT

All right, you agree on the date?

COURT

ORDER

In the above-entitled two cases, the accused assisted by counsel, Atty. Carlos Marcos,
pleaded not guilty upon being arraigned.

Let the joint trial of these cases be set on April 8 at 2:30 p.m. and April 9, 1985, at 8:30 a.m.

Notified in open court are Asst. City Fiscal Lorenzo Lopena, Atty. Carlos Marcos, and the
accused.

Notify the private prosecutor, Atty. Paulino G. Clarin.

SO ORDERED."25cralaw:red

It will, however, be noted that insofar as the second case, Criminal Case No. 3892, is
concerned, the court made no ruling on, the manifestation and offer by petitioners counsel
that the reading of the information be waived and a plea of not guilty be entered. The
petitioner was neither made to confirm the manifestation nor directed to personally make the
plea. There was, therefore, no valid arraignment in Criminal Case No. 3892 Section 1(b), Rule
116 of the Rules of Court, as amended, requires the accused to personally enter his plea.

In the second place, the motion to reset the hearing was a mere subterfuge to obtain a
postponement of and delay the proceedings. Petitioner and his counsel were notified in open
court about the 8 and 9 April 1985 hearing on 7 February 1985. Having agreed to that setting,
counsel in effect certified that he had no prior commitment on those dates and he was thereby
bound to give priority to the same, unless events of greater importance or of a more serious
nature requiring his presence, supervened. The only reason he gave for the notice was that
he "has a previous legal commitment in Manila needing his personal attention." 26 He did not
elaborate on what that legal commitment was. If he indeed had such a commitment and his
conformity to the 8 and 9 April 1985 setting was a mistake, he should have immediately filed a
motion for the resetting of hearing. It hardly needs to be said that either the so-called "legal
commitment" in Manila whatever that could have been was made sometime after 7
February 1985 or that it never existed at all. In the motion to reconsider the 8 April 1985
Order, petitioners counsel did not bother to explain the importance of that commitment or
convince the court that he actually made the trip to Manila.chanrobles lawlibrary : rednad

Thirdly, counsel for petitioner should not have presumed that the motion, which he prepared
and sent by registered mail only on 29 March 1989, would reach the court and be granted
before 8 April 1985. He knew, or ought to know that the granting of motions for postponement
in criminal cases is left to the sound discretion of the Court a rule which has been
steadfastly adhered to since United States v. Lorenzana 27 and which this Court more
explicitly expressed in United States v. Ramirez 28 in this wise:jgc:chanrobles.com.ph

"Applications for continuances are addressed to the sound discretion of the court. In this
respect, it may be said that the discretion which the trial court exercises must be judicial and
not arbitrary. It is the guardian of the rights of the accused as well as those of the people at
large, and should not unduly force him to trial, nor for light causes jeopardize the rights or
interests of the public. Where the court conceives it to be necessary for the more perfect
attainment of justice, it has the power upon the motion of either party to continue the case.
But a party charged with a crime has no natural or inalienable right to a continuance."cralaw
virtua1aw library

This rule was succinctly stated in Section 2 of Rule 119 before its amendment by the 1985
Rules of Criminal Procedure as follows:jgc:chanrobles.com.ph

"SEC. 2. Continuance or postponement of the trial. The court on the application of either
party or on its own motion, may in its discretion for good cause postpone the trial of the case
for such period of time as the ends of justice and the right of the defendant to a speedy trial
require." chanrobles virtual lawlibrary

As amended, it now reads:jgc:chanrobles.com.ph

"SEC 2. Continuance trial until terminated; postponements. Trial once commenced shall
continue from day to day as far as practicable until terminated; but for good cause, it may be
postponed for a reasonable period of time."cralaw virtua1aw library

Finally, the urgent motion for resetting was a mere scrap of paper. As earlier noted, it does not
contain a notice of hearing to the Prosecution; all it had was a mere request, addressed to the
Clerk of Court, that it be submitted for the consideration and approval of the court immediately
upon his receipt thereof. There was, therefore, a clear violation of Section 5, Rule 15 of the
Rules of Court, which is also applicable in motions for continuance in criminal cases. Said
section provides as follows:jgc:chanrobles.com.ph

"SEC. 5. Contents of notice. The notice shall be directed to the parties concerned, and
shall state the time and place for the hearing of the motion."cralaw virtua1aw library

In Bank of the Philippine Islands v. Far East Molasses Corp., 29 this Court explicitly ruled that
a motion that does not contain a notice of hearing is but a mere scrap of paper, it presents no
question which merits the attention and consideration of the court. It is not even a motion for it
does not comply with the rules and hence, the clerk has no right to receive it.

Since on 8 April 1985 the motion for resetting had not yet been received by the court, the
respondent Judge committed no error, much less abuse of discretion, in allowing the
prosecution to present, ex parte, its evidence and rest its case immediately thereafter in
Criminal Case No. 3890; the same, however, cannot be said about Criminal Case No. 3892
for, as earlier mentioned, no valid arraignment had as yet been conducted thereon. Petitioner
should blame no one else but his counsel. Nonetheless, a client is bound by the acts, even
mistakes of his counsel in the realm of procedural technique; however, if the former is
prejudiced by the latters negligence or misconduct, he may recover damages. 30

However, respondent Judge committed grave abuse of discretion amounting to lack of


jurisdiction when he capriciously and arbitrarily considered Criminal Cases Nos. 3890 and
3892 more particularly the latter wherein there was no valid arraignment submitted for
decision after the prosecution rested its case on 8 April 1985. He thus blatantly ignored and
disregarded Section 2(c), Rule 114 and Section 1(c), Rule 115 of the Rules of Court which
merely consider the accuseds non-appearance during trial 8 April 1985, in this case as
a waiver of his right to be present for trial on such date only and not for the succeeding trial
dates. This is quite clear from Section 1(c) of Rule 115 which further provides:chanrobles
virtual lawlibrary

". . . The absence of the accused without any justifiable cause at the trial on a particular date
of which he had notice shall be considered a waiver of his right to be present during that trial.
When an accused under custody had been notified of the date of the trial and escapes, he
shall be deemed to have waived his right to be present on said date and on all subsequent
trial dates until custody is regained." (Emphasis supplied)

Thus, with respect to an accused who is not in custody, his non-appearance constitutes a
waiver of his right to be present only for the trial set for the particular date of which he had
notice. Upon the other hand, such non-appearance by an accused in custody and who later
escapes is considered a waiver of the right on such date and all subsequent trial dates until
such custody is regained.

The hearing on 8 April 1985 was actually the initial hearing for the two (2) cases, albeit
erroneously for the second due to the infirmity referred to earlier, it was likewise for the
purpose of receiving the evidence for the prosecution. It cannot be fairly presumed that said
setting was also for the purpose of presenting the accuseds evidence considering that neither
the court nor the parties knew in advance the number of cases to be tried on those dates and
the length of the direct and cross examinations of the witnesses. Besides, even assuming for
the sake of argument that the prosecution could rest its case on 8 April 1985, the defense
could have still filed a demurrer to evidence under Section 15, Rule 119 of the Rules of Court,
which would have necessarily meant a deferment of the reception of the evidence for the
accused.

The order of the respondent Judge declaring the two (2) cases submitted for decision is not
only a violation of Section 1(c) of Rule 115 but is also a pronouncement that the petitioner had
waived his constitutional right to be heard by himself and counsel, 31 and present his
evidence. This is certainly lamentable for he thus allowed his court to breach one of its
highest, duties the protection of the citizen and the maintenance of his constitutional rights.
32

While constitutional rights may be waived, 33 such waiver must be clear and must be coupled
with an actual intention to relinquish the right. 34 There is nothing on record to suggest
conduct on the part of the petitioner from which it may be reasonably inferred that he had
waived his right to submit his evidence. On the contrary, his counsels motion for resetting
requested specifically for the hearing of the cases on 13 and 14 May 1985.

WHEREFORE, judgment is hereby rendered:chanrob1es virtual 1aw library

1. SETTING ASIDE that portion of the Order of respondent Judge of 3 April 1985 forfeiting the
bond posted by petitioners bondsmen and declaring Criminal Cases Nos. 3892 and 3892
submitted for decision;

2. DECLARING that there was no valid arraignment in Criminal Case No. 3892;chanrobles
law library : red

3. UPHOLDING the validity of the ex-parte reception of the prosecutions evidence on 8 April
1985 insofar as Criminal Case No. 3890 is concerned and DECLARING petitioner as having
waived his right to cross-examine the witness presented by the prosecution in said case;

4. SETTING ASIDE the Notice of Promulgation issued on 3 May 1985; and

5. DIRECTING the court below to arraign the petitioner in Criminal Case No. 3892, set the
case for trial for the reception of the evidence for the prosecution, hold a joint hearing of both
cases for the reception of the evidence for the petitioner and, in due course, render judgment
thereon.

No pronouncement as to costs.

SO ORDERED.