EN BANC

[G.R. No. L-12871. July 25, 1959.]

TIMOTEO V. CRUZ , petitioner, vs . FRANCISCO G. H. SALVA , respondent.

Baizas & Balderrama for petitioner.

City Attorney Francisco G. H. Salva in his own behalf.

SYLLABUS

1. CRIMINAL PROCEDURE; PRELIMINARY INVESTIGATION; AUTHORITY OF

THE FISCAL TO REINVESTIGATE WHILE CASE IS PENDING APPEAL; CASE AT BAR. —
Ordinarily, when a criminal case in which a fiscal intervened though nominally, is tried
and decided and it is appealed to a higher court, the functions and actuations of said
fiscal have terminated; usually, the appeal is handled for the government by the Solicitor
General. Consequently, there would be no reason or occasion for said scal to
conduct a reinvestigation to determine criminal responsibility for the crime involved in
the appeal. In the present case, however, one of the defendants was not included in the
trial much less in the judgment for the reason that he was arrested only after the trial
against the other accused had commenced, even after the prosecution had rested its
case and the defense had begun to present its evidence. Naturally, this defendant
remained to stand trial. Therefore, insofar as this defendant is concerned, the Fiscal
was warranted in holding the preliminary investigation involved in this case.
2. ID.; ID.; ACCUSED MAY NOT BE COMPELLED TO ATTEND INVESTIGATION.
— While it is the right of the accused to be present at the preliminary investigation,
however, such right may be renounced, and if the accused object to appear at said
investigation, he can not be compelled to do so.
3. ID.; ID.; GIVING WIDE PUBLICITY AND SENSATIONALISM TO
INVESTIGATION CONSTITUTES CONTEMPT OF COURT. — In the case at bar, while the
Provincial Fiscal has established a justification for his reinvestigation of the case
although the same is on appeal and pending consideration by this Tribunal, however,
said Fiscal committed a grievous error and poor judgment when he allowed, even
encouraged, the reinvestigation to be conducted with much fanfare, publicity and
sensationalism. Such actuations of the Fiscal constitute contempt of court punishable
by public censure.

DECISION

MONTEMAYOR , J : p

This is a petition for certiorari and prohibition with preliminary injunction led by
Timoteo V. Cruz against Francisco G. H. Salva, in his capacity as City Fiscal of Pasay
City, to restrain him from continuing with the preliminary investigation he was
conducting in September, 1957 in connection with the killing of Manuel Monroy which
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 took place on June 15, 1953 in Pasay City. To better understand the present case and
its implications, the following facts gathered from the pleadings and the memoranda
filed by the parties, may be stated.
Following the killing of Manuel Monroy in 1953 a number of persons were
accused as involved and implicated in said crime. After a long trial, the Court of First
Instance of Pasay City found Oscar Castelo, Jose de Jesus, Hipolito Bonifacio,
Bienvenido Mendoza, Francis Berdugo and others guilty of the crime of murder and
sentenced them to death. They all appealed the sentence although without said appeal,
in view of the imposition of the extreme penalty, the case would have to be reviewed
automatically by this Court. Oscar Castelo sought a new trial which was granted and
upon retrial, he was again found guilty and his former conviction of sentence was
affirmed and reiterated by the same trial court.
It seems that pending appeal, the late President Magsaysay ordered a
reinvestigation of the case. The purpose of said reinvestigation does not appear in the
record. Anyway, intelligence agents of the Philippine Constabulary and investigators of
Malacañang conducted the investigation for the Chief Executive, questioned a number
of people and obtained what would appear to be confession, pointing to persons, other
than those convicted and sentenced by the trial court, as the real killers of Manuel
Monroy.
Counsel for Oscar Castelo and his co-defendants wrote to respondent Fiscal
Salva to conduct a reinvestigation of the case presumably on the basis of the af davits
and confessions obtained by those who had investigated the case at the instance of
Malacañang. Fiscal Salva conferred with the Solicitor General to what steps he should
take. A conference was held with the Secretary of Justice who decided to have the
results of the investigation by the Philippine Constabulary and Malacañang
investigators made available to counsel for the appellants.
Taking advantage of this opportunity, counsel for the appellants led a motion
for new trial with this Tribunal supporting the same with the so-called af davits and
confessions of some of those persons investigated, such as the confessions of Sergio
Eduardo y de Guzman, Oscar Caymo, Pablo Canlas, and written statements of several
others. By resolution of this Tribunal, action on said motion for new trial was deferred
until the case was studied and determined on the merits. In the meantime, the Chief,
Philippine Constabulary, had sent to the Of ce of Fiscal Salva copies of the same
af davits and confessions and written statements, of which the motion for new trial
was based, and respondent Salva proceeded to conduct a reinvestigation designating
for said purpose a committee of three composed of himself as chairman and Assistant
City Attorneys Herminio A. Avendañio and Ernesto A. Bernabe
In connection with said preliminary investigation being conducted by the
committee, petitioner Timoteo Cruz was subpoenaed by respondent to appear at his
of ce on September 21, 1957, to testify "upon oath before me in a certain criminal
investigation to be conducted at that time and place by this of ce against you and
Sergio Eduardo, et al., for murder." On September 19, 1957, petitioner Timoteo Cruz
wrote to respondent Salva asking for the transfer of the preliminary investigation from
September 21, due to the fact that his counsel, Atty. Crispin Baizas, would attend a
hearing on that same day in Naga City. Acting upon said request for postponement,
Fiscal Salva set the preliminary investigation on September 24. On that day, Atty. Baizas
appeared for petitioner Cruz, questioned the jurisdiction of the committee, particularly
respondent Salva, to conduct the preliminary investigation in view of the fact that the
same case involving the killing of Manuel Monroy was pending appeal in this Court, and
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 on the same day led the present petition for certiorari and prohibition. This Tribunal
gave due course to the petition for certiorari and prohibition and upon the ling of a
cash bond of P200.00 issued a writ of preliminary injunction thereby stopping the
preliminary investigation being conducted by respondent Salva.
The connection, if any, that petitioner Cruz had with the preliminary investigation
being conducted by respondent Salva and his committee was that the af davits and
confessions sent to Salva by the Chief, Philippine Constabulary, and which were being
investigated, implicated petitioner Cruz, even picturing him as the instigator and
mastermind in the killing of Manuel Monroy.
The position taken by petitioner Cruz in this case is that inasmuch as the
principal case of People vs. Oscar Castelo, et al., G. R. No. L-10794, is pending appeal
and consideration before us, no court, much less a prosecuting attorney like
respondent Salva, had any right or authority to conduct a preliminary investigation or
reinvestigation of the case for that would be obstructing the administration of justice
and interferring with the consideration on appeal of the main case wherein appellants
had been found guilty and convicted and sentenced; neither had respondent authority
to cite him to appear and testify at said investigation.
Respondent Salva, however, contends that if he subpoenaed petitioner Cruz at all,
it was because of the latter's oral and personal request to allow him to appear at the
investigation with his witnesses for his own protection, possibly, to controvert and
rebut any evidence therein presented against him. Salva claims that were it not for this
request and if, on the contrary, Timoteo Cruz had expressed any objection to being
cited to appear in the investigation he (Salva) would never have subpoenaed him.
Although petitioner Cruz now stoutly denies having made such request that he be
allowed to appear at the investigation, we are inclined to agree with Fiscal Salva that
such a request had been made. Inasmuch as he, Timoteo Cruz, was deeply implicated in
the killing of Manuel Monroy by the af davits and confessions of several persons who
were being investigated by Salva and his committee, it was but natural that petitioner
should have been interested, even desirous of being present at that investigation so
that he could face and cross examine said witnesses and af ants when they testi ed in
connection with their af davits or confessions, either repudiating, modifying or ratifying
the same. Moreover, in the communication, addressed to respondent Salva asking that
the investigation, scheduled for September 21, 1957, be postponed because his
attorney would be unable to attend, Timoteo Cruz expressed no opposition to the
subpoena, not even a hint that he was objecting to his being cited to appear at the
investigation.
As to the right of respondent Salva to conduct the preliminary investigation
which he and his committee began, ordinarily, when a criminal case in which a scal
intervened though nominally, for according to respondent, two government attorneys
had been designed by the Secretary of Justice to handle the prosecution in the trial of
the case in the court below, is tried and decided and it is appealed to a higher court
such as this Tribunal, the functions and actuations of said scal have terminated;
usually, the appeal is handled for the government by the Of ce of the Solicitor General.
Consequently, there would be no reason or occasion for said scal to conduct a
reinvestigation to determine criminal responsibility for the crime involved in the appeal.

However, in the present case, respondent has, in our opinion, established a

justi cation for his reinvestigation because according to him, in the original criminal
case against Castelo, et al., one of the defendants named Salvador Realista y de
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 Guzman was not included in the trial much less in the judgment for the reason that he
was arrested and was placed within the jurisdiction of the trial court only after the trial
against the other accused had commenced, even after the prosecution had rested its
case and the defense had begun to present its evidence. Naturally, Realista remained to
stand trial. The trial court, according to respondent, at the instance of Realista, had
scheduled the hearing at an early date, that is in August, 1957. Respondent claims that
before he would go to trial in the prosecution of Realista he had to chart his course and
plan of action, whether to present the same evidence, oral and documentary, presented
in the original case and trial, or, in view of the new evidence consisting of the af davits
and confessions sent to him by the Philippine Constabulary, he should rst assess and
determine the value of said evidence by conducting an investigation and that should he
be convinced that the persons criminally responsible for the killing of Manuel Monroy
were other than those already tried and convicted, like Oscar Castelo and his co-
accused and co-appellants, including Salvador Realista, then he might act accordingly
and even recommend the dismissal of the case against Realista.
In this, we are inclined to agree with respondent Salva. For, as contended by him
and as suggested by authorities, the duty and role of a prosecuting attorney is not only
to prosecute and secure the conviction of the guilty but also to protect the innocent.
"We cannot overemphasize the necessity of close scrutiny and
investigation of prosecuting officers of all cases handled by them, but whilst this
court is averse to any form of vacillation by such officers in the prosecution of
public offenses, it is unquestionable that they may, in appropriate cases, in order
to do justice and avoid injustice, reinvestigate cases in which they have already
filed the corresponding informations. In the language of Justice Sutherland of the
Supreme Court of the United States, the prosecuting officer "is the representative
not of an ordinary party to a controversy, but of a sovereignty whose obligation to
govern impartially is as compelling as its obligation to govern at all; and whose
interest, therefore, in a criminal prosecution is not that it shall win a case, but that
justice shall be done. As such, he is in a peculiar and very definite sense the
servant of the law, the twofold aim of which is that guilt shall not escape nor
innocent suffer. He may prosecute with earnestness and vigor — indeed, he
should do so. But, while he may strike hard blows, he is not at liberty to strike foul
ones. It is as much his duty to refrain from improper methods calculated to
produce a wrongful conviction as it is to use every legitimate means to bring
about a just one." (69 United States Law Review, June, 1935, No. 6, p. 309, cited in
the case of Suarez vs. Platon, 69 Phil., 556).
With respect to the right of respondent Salva to cite petitioner to appear and
testify before him at the scheduled preliminary investigation, under the law, petitioner
had a right to be present at that investigation since as was already stated, he was more
or less deeply involved and implicated in the killing of Monroy according to the af ants
whose confessions, af davits and testimonies respondent Salva was considering or
was to consider at said preliminary investigation. But he need not be present at said
investigation because his presence there implies, and was more of a right rather than a
duty or legal obligation. Consequently, even if, as claimed by respondent Salva,
petitioner expressed the desire to be given an opportunity to be present at the said
investigation, if he later changed his mind and renounced his right, and even strenuously
objected to being made to appear at said investigation, he could not be compelled to
do so.
Now we come to the manner in which said investigation was conducted by the
respondent. If, as contended by him, the purpose of said investigation was only to
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 acquaint himself with and evaluate the evidence involved in the af davits and
confessions of Sergio Eduardo, Cosme Camo and others by questioning them, then he
respondent, could well have conducted the investigation in his of ce, quietly,
unobtrusively and without much fanfare, much less publicity.
However, according to the petitioner and not denied by the respondent, the
investigation was conducted not in respondent's of ce but in the session hall of the
Municipal Court of Pasay City evidently, to accommodate the big crowd that wasted to
witness the proceeding, including members of the press. A number of microphones
were installed. Reporters were everywhere and photographers were busy taking
pictures. In other words, apparently with the permission of, if not the encouragement by
the respondent, news photographers and newsmen had a eld day. Not only this, but in
the course of the investigation, as shown by the transcript of the stenographic notes
taken during said investigation, on two occasions, the rst, after Oscar Caymo had
concluded his testimony, respondent Salva, addressing the newspapermen said,
"Gentlemen of the press, if you want to ask questions I am willing to let you do so and
the questions asked will be reproduced as my own"; and the second, after Jose
Maratella y de Guzman had nished testifying and respondent Salva, addressing the
newsmen, again said, "Gentlemen of the press is free to ask question to the witness if
you want to. We are willing to adopt the questions as ours." Why respondent was willing
to abdicate and renounce his right and prerogative to make and address the questions
to the witnesses under investigation, in favor of the members of the press, is dif cult
for us to understand, unless he, respondent, wanted to curry favor with the press and
publicize his investigation as much as possible. Fortunately, the gentlemen of the press
to whom he accorded such unusual privilege and favor appeared to have wisely and
prudently declined the offer and did not ask questions, this according to the transcript
now before us.
But, the newspapers certainly played up and gave wide publicity to what took
place during the investigation, and this involved headlines and extensive recitals,
narrations of and comments on the testimonies given by the witnesses as well as vivid
descriptions of the incidents that took place during the investigation. It seemed as
though the criminal responsibility for the killing of Manuel Monroy which had already
been tried and nally determined by the lower court and which was under appeal and
advisement by this Tribunal, was being retried and redetermined in the press, and all
with the apparent placet and complaisance of respondent.
Frankly, the members of this Court were greatly disturbed and annoyed by such
publicity and sensationalism, all of which may properly be laid at the door of
respondent Salva. In this, he committed what we regard a grievous error and poor
judgment for which we fail to nd any excuse or satisfactory explanation. His
actuations in this regard went well beyond the bounds of prudence, discretion and
good taste. It is bad enough to have such undue publicity when a criminal case is being
investigated by the authorities, even when it is being tried in court; but when said
publicity and sensationalism is allowed, even encouraged, when the case is on appeal
and is pending consideration by this Tribunal, the whole thing becomes inexcusable,
even abhorrent, and this Court, in the interest of justice, is constrained and called upon
to put an end to it and a deterrent against its repetition by meting an appropriate
disciplinary measure, even a penalty to the one liable.
Some of the members of the Court who appeared to feel more strongly than the
others favored the imposition of a more or less severe penal sanction. After mature
deliberation, we have nally agreed that a public censure would, for the present, be
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 sufficient.
In conclusion, we nd and hold that respondent Salva was warranted in holding
the preliminary investigation involved in this case, insofar as Salvador Realista is
concerned, for which reason the writ of preliminary injunction issued stopping said
preliminary investigation, is dissolved; that in view of petitioner's objection to appear
and testify at the said investigation, respondent may not compel him to attend said
investigation, for which reason, the subpoena issued by respondent against petitioner
is hereby set aside.
In view of the foregoing, the petition for certiorari and prohibition is granted in
part and denied in part. Considering the conclusion arrived at by us, respondent
Francisco G. H. Salva is hereby publicly reprehended and censured for the uncalled for
and wide publicity and sensationalism that he had given to and allowed in connection
with his investigation, which we consider and nd to be contempt of court; and,
furthermore, he is warned that a repetition of the same would meet with a more severe
disciplinary action and penalty. No costs.
Paras, C.J., Bengzon, Padilla, Bautista Angelo, Labrador, Concepcion, Endencia
and Barrera, JJ., concur.

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