discretionary powell of the...

DISCRETIONARY POWEll OF THE PROSECUTION

Jose C. Cordova*

INTRODUCTION

The discretion of a public prosecutor (fiscal) is said by Lord Camden to be the law of tyrants; it is always unknown, it is different in different men; it is casual, oftentimes caprice; in the worst, it is every wise, folly and passion to which human nature is liable_- Optima lex quel minimum relin-quit. ArbUrio judices; optimus judex qui minimum sibi.' A proper exer-cise of this power expedites the speedy and efficient administration of crim-inal justice by eliminating cases in which there is little likelihood of con-viction in the early stages of the prosecution (fiscal) to eliminate or defer a crminal prosecution as part of a tactical move!

Under the accusatoriaP system, the sphere of the prosecuting officers has been greatly widened. They not only represent the law with the right to inspect the action of the court on behalf of the Government, but have a more direct and active patticipation in the proceedings at the trial; upon them devolves the defense of the public interest, threatened by crime, as though the prosecuting officer were the persons directly injured by the of-fense. But it is also of interest to society that an innocent person be free from molestation and therefore the prosecuting attorneys should institute

* Ll.B., 1958. 1 BACON, 2 Bell Supp._to Ver. 391. 2 Prosecutor's DU!cretion, 103 UNIV. OF PENN. LAW REVIEW 1067. 3 There are three systems or types of criminal procedure, namely: (a) the

accusatorial: (b) the inquisitorial; and (c) the mixed 1;ystem. The accustorial system has its origin in the punitive method of settling controversi.es by combat, and this method later developed into .a sham battle between the parties which ended in the magistrate giving hisverdict in favor of one of the parties. The main features of the system 'were the right of every citizen to · formulate charges,- the right of the supposed offender to be confronted by his· accuser, and the right to public trial. The inquisitorial system, on the othe.r hand, left the detection and prosecution of the offender to the initiative of the officials and agents of the law. The inquiry to discover the culprit was secret, and violence and torture were o;ften used to extract a confession or admission oi guilt from the suspect. ALBERT, THE LAW OF CRIMINAL PROCEDURE 3-11. The system that prevails in this jurisdiction is the . SO:-called mixed sys-tem, a combination of the accusatorial and the inquisitorial systems. Thus, we have the preliminary examination prior to arrest which is conducted, as a rule, in the absence of the offender. Th.e prosecution of the offender may be initiated either by the offended party or by any officer or emp)oy.ee in charge of the enforcement and execution of the law. KAPUNAN, CRIMINAL PRo-CEDURE 2 (1954 ed.).

162

1957] DISCRETIONARY POWER OF THE PROSECUTION .163

proceedings and make use of the machinery of the law when in their opinion justice requires such action!

In criminal cases there are always two opposing interests, that of society, which demands that the crime be punished, and that of .the accused, who has .an absolute right to his defense. Upon the supposition that in accord-ance with the fundamental principles- underlying ·the accusatorial system, courts and judges should be passive and neutral in the contest between the prosecution and the defense, it must be admitted that the fate of the ac-cused and the success of the prosecution depend upon the good faith, the zeal, skill and intelligence of the prosecuting attorney. The present system has placed in the hands of the prosecuting attorneys the power to prosecute and punish every crime and offense, with the exception of those. of private" character, and consequently upon them depends the realization of the pur-poses of the law.6 ·

The prosecuting officer, in the words of Mr. Justice Laurel,

Is the representative not: of an ordinary party to a controversy, but of·sover-eignty 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 v·ery definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innoc.ence suffer. He 'may prosecute with earnestness and vigor - indeed, he should do so. But, while he may strike hard b-lows, he is not at liberty to strike foul o'nes. It is as milch his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to every legitimate means to bring about a just one!

The present system of criminal pror:edu.re places in the hands of the fiscal great_ powers of discretion. The future of many individuals and the protection of the community may hinge in the judgments of a prosecuting attorney who, through inertia, bias, inability or inexpensive, unwisely exer-cises _the responsibilities of his office, Personal or friendships may have a similar effect.8 This report is an attempt to examine. the of the fiscal in the different stages of a criminal prosecution. ·

AccusATION

By Complaint

Criminal actions may be commenced" either by complaint of the offen_cjed party10 or by -information of the prosecuting officer.11 It may be com-

164 A7'ENEO LAW JOURNAL [Vol. 7

menced by any person presenting to the court or to a magistrate a com-plaint as defined in Sec. 2, Rule 1 06.' 2 Such complaint is the process which begins the action and gives the court or magistrate jurisdiction of the defendant and the subject matter of the action. Where such complaint has been presented no other or further pleading on the part of the Govern-ment is necessary. The prosecution proceeds upon the complaint alone.'" But whether commenced by complaint or information, it is the duty of the fiscal to prevent malicious or unfounded prosecutions by private persons.11

There are felonies however, which can be prosecuted only upon com-plaint of the offended party, 15 like (1) Adultery'" ( 2) Concubinage17 ( 3) Seduction, whether or simple'" ( 4) Abduction, whether for-cible20 or consented21 ( 5) Rape22 ( 6) Acts of lasciviousness23 ( 7) Defama-tion consisting in the imputation of any of the above crimes.24 An informa-tion filed and signed by the fiscaF 5 or a complaint filed by the Chief of Policc26 for any of the above mentioned crimes is void.

The prosecution for the above crimes depend upon whether or not a complaint is filed by the offended party. If he does, then 'the fiscal takes his part in the name of the People of the Philippines.

12 Supra note 10. '" U.S. v. Narvas, 14 Phil. 410 (1909). 14 ld.

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15 The crimes of adultery and concubinage shall not be prosecuted except upon a complaint filed by the offended spouse.

The offended party cannot jnsti!tute criminal prosecution without including both the guilty parties, if they are both alive, nor, in any case, if he shall have consented or pardoned the offenders.

Th.e offenses of seduction. abduction, rape, or acts of lasciviousness, shall not be prosecuted except upon a complaint filed by the offended party cr her parents, grandparents, or guardian, nor, in any case, if the offender has l:ieen expressly pardoned by the above named persons, as the case may be.

In cases of seduction, abduction, acts of lasciviousness, and rape, the mar. riage of the offender with the offended party shall extinguish the criminal action or remit the penalty already imposed upon him. The provisions of thi• paragraph shall also be applicable to the co-principals, accomplices, and acce!l-sories after tbe fact of the above mentioned crimes. Art. 344 REv. PENAL CODE.

No criminal action fol" defamation which consists in the imputation of a crime which canno't be prosecuted de ofido shall be brought except. at the instance of and upon complaint expressly filed by the offended party. Art. 360 par. 3 REV. PEN!.L CODE.

16 Art. 333 REV. PENAL CODE; People v. Asuncion, 22 Phil. 358 (1912). 1 7 Art. 334 REV. PENAL CODE; U.S. v. Garcia, 27 Phil. 254 (1914). ts Art. 337. REV, PENAL CODE. 1 9 Art. 338 REV. PENAL CODE; People v. Bautista, 40 Phil. 735 (1920). 20 Art. 342 REV PENAL CODE. 21 Art. 343 REV. PENAl. CODE; People v. Palabao, 51 O.G. 790 (1954). 22 Art. 3:>5 REV. PENAL CoDE; People v. Oso, 62 Phil. 271 (1935); People v.

Manaba, 58 Phil. 665 (1933). 28 Arts. 336, 339 11EV. PENAL CODE; People v. Mapotol, (CA) 35 O.G. 1953

( 1934). 24 Art. 360, par. 4 REV, PENAL CODE; People v. de Martinez, 75 Phil. 599

(1945). 25 People v. Ugalde, 58 Phil. 968 (1932); People v. Quitalig, 49 O.G. 5456

(1953); People v. Mandia, 60 Phil. 372 (1934). 26 Tolentino v. De La Costa, 66 Phil. 97 (1938) ; People v. Manaba, 58 Phil.

665 (1933); U.S. v. Cruz, 20 Phil. 363 (1911).

1957] DISCRETIONARY POWER OF THE PROSECUTION 165

While the offended party is given the right to initiate the prosecution of a criminal offense, such right ceases upon the filing of the complaint it being the duty of the prosecuting fiscal to prosecute the case to its final determination. However, in cases where the commission of the offense en-tails civil liability, the offended party may intervene in the prosecution of ·the offense to protect his rights. 27

By Information

.. The more common and general way of commencing a criminal action is by. information.2" . An information is "an accusation in writing charging a person with an offense, subscribed by the fiscal and filed with the court. "29 An information therefore, can only be filed as a general rule by the City or Provincial Fiscals who are the chief prosecutors in their respective juris-diction. However, assistant fiscals are not precluded from filing informa-tion in their own name and not in the name of the City or Provincial Fis-caP"

It is within ·the discretion of the fiscal to file an information. 31 Once an information is filed, it is the duty of the prosecuting officer to exercise

his sound discretion in determining what persons appear to be responsible for the commission of crimes in such cases, and if for lack of knowledge of the facts, by mistake, or for any other reason, he fails to include the names of one or more persons in an information filed by him, who were in fact guilty participants in the commission of the crime charged therein, will not discharge from punishment an accused who have been charged with an offense, brought to trial, and found guilty.32 .

While prosecuting officers, being the ones in charge of the prosecution . of offenses, should determine the information to be filed and cannot be

controlled by the offended party,"" the Rules of Court•• is expiicit as to who should be included in the information or complaint as parties defend-ant. . It provides that the criminal action shall be instituted against all per-sons who appear to be responsible for the commission of the offense. This provision is mandatory and the prosecuting fiscal cannot exclude a partici-pant in the crime simply because he wishes to utilize him as State witness. However, the fiscal may exclude a party if in his opinion, there is no suf-ficient evidenceto warrant his inclusion in the information.

27 KAPUNAN, CRIMINAL PROCEDURE 54 (1.954 ed.); Gonzalez v. CFI of Bt;Ja. can, 63 Phil. 854 (1936). .

. 28 PADILLA, CRIMINAL PROCEDURE 25 (1955 ed.). 29 RULE 106 § 3. . so KAPUNAN, op. cU., 81.tp'I'U note 27 at 50. 31 Gonzalez v. CFI of Bulacan, supra note 27. .... •2 :U.S. v. Abanzado, 37 Phil. 658 (1918). sa :v •.. $ope; O.G. 1811 (1945). 34 " ... agairist all persons who appear to be responsible therefor." RuLE 106

§1.

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As Mr. Justice Labrador puts it in the case of Guiao v. Figueroa:"''

A perusal of Act 2709 discloses the· legislative intent to require that all persons who appear to be i·esponsible for an offense should be included in the inforni.ation. The Use of the Word·· 'shall' and of the phrase 'except in the

. determined' show that Section 1 is mandatory, not directory. merely, The mandatory nature of the section is demanded by a sO"und public IJO!ic)(, which would deprive prosecuting officers of the use of their discvEltion, in order that they may not shield or favor friends, proteges or iavot'ites. The law makes it a legal duty for them to file the·charges against whomsoover the evidence may show rto be respcnsibl.e for an offense. This doos not however, that p.rosecuting officers have no discretion at all; their discl'etion lies in determining whether the evidence submitted is sufficient to justify. !l reasonable belief that a .person. COII!mitted an offense. What the. rule de-mands' is that all who appear responsible shall be charged the formation, which that those whom no sufficient evidence Of guilt exists are ndt required to be included.

The fiscal, therefore, has discretion to charge the persons responsible. 36

He may not have sufficient evidence to prosecute a definite person who, .according to information received by him, had a participation or took part in the commission of a crime. Under such circumstances he does not vio-late any procedural law by producing him as witness for the prosecution without previously charging him in . the information and afterwards exclud-ing him therefrom, provided he is qualified to testify in the proceeding/!' He may also <?mit one or more accused in the information.

In cases of complex crimes39 where one of the component offenses is a public crim.;, the criminal prosecution may be instituted directly by the fiscal. The reason, therefore, is that since one of the component offenses is a p\lblic crime, the latter should control. Public interest is always para-mount to that of a private person.40

All crimi.nal actions whether commenced by complaint or. information shall be prosecuted under the direction and control of the fiscal. 41 . The latter, in the exercise of his powers, determines the. nature of the accusation and cannot be controlled by the offended party.' 2

Sec. 13, Rule 106{3 providing that the information or cc:nplaint may be

3o 50 O.G. 4828 (1954). 36 U.S. v. Enriquez, 40 Phil. 603 (1919). 37 ld. as U.S. v. Abanzado,· supra note 32; People v. Maralina (CA) G.R. No. 3297

March 30, 195L 39 KAPUNAN, op. cit. supm note 27 ·at 45; Pueblo contra Orcullo, G.R. No.

L-1978, May 30, 1949. See also People v. MateJa, 58 Phil. 718 (1S33); where the appellant was charged with the crime of rape with homicide .. '.Che evidence however, failed to prove the complexity of the offense and the Supreme Court convicted appellant of two separate offenses, rape and homicide ..

• 0 Pueblo contra Orcullo, supra note 39. H U.S. v. Cruz, tntpra note 26: U.S. v. Narvas, 14 Phil. 410 (1909); P.ooplc

v .. Sope, supra note 33; People v. Atienza, G.R. No. L-1913, May 28, 1948. . 42 KAPUNAN; oti. cit'. sgpJ-it note 27 at 96.

43 People v. Orais and Jimenez, 65 Phil. 746 (1938).

DISCRETIONARY POWER OF THE PROSECUTION 167

amended ·in substance or form without leave of court at any time before the defendant pleads; lodges a discretionary power in the prosecuting of-ficer. Nevertheless, the fiscal, as quasi-judicial officer should not harass the accused by constantly amending the information.<•

Since the filing of the information is discretionary ripon the · fiscal;45 its sufficiency' is also largely dependent upon him. Thus, a charge of murder may turn only to the homicide because of the non-allegation of the qualifyj ing circumstance.'6 Thus, an allegation of habitual delinquency in general terms is nothing in the information. As the Supreme Court in the case of People v. Bataller7 said,

. .Jnformation. filed in these cases (where habitual :delinquency is alLeged) should be sufficiently clear .and specific to . avoid the improper imposition of the additional penalty on a plea of guilty to a allegation of habitual delinquency, no less than the frequency with which hardened criminals esct:tpe tile imposition of the deserved additional penalty provided by law.

Preliminary Investigation

, After a complaint or information is filed, a preliminary investigation is conducted if it involves . an. offense. cognizable by the Court of First ln-

The Justice ofthe Peace, the Municipal Judge, the City Fiscal or i,udge of the ,Court of First Instance conducts . the investigation.<• Under the provision o{ of the Rev.ised Code, as amended by Rep. Act No. 732, provincial fiscals are given the same authority. ., . There are two phases in the preliminary investigation, to wit: .The pre-limitiai:y examination prior to the issuance . of a . warrant of arrest; 51 and the investigation after the arrest."2 This latter phase is the preliminary in-vestigation proper. :

purpose of il .Pi:elimiriacy iil:vestigation: k to determine;. before the presentation. of evidenee by the prosecution and by _the defense; if the lat:-te;tparty should. wish. to a,ny, whether or not there are reas6Iiable. grounds for proceeding the accused;53 The object of -a

... . . . ·! . .

H People v. Orais and Jimenez, 8Uprri itote 43. :•5 'ld. . . ... .. ... . . . . · •q :People v; Velez, 44· O.G.> 1811 (1947); <•r' 66 Phil. 423 (1937). ' . .

': v.' CFI of' Laguna; 65 ·PhiL 256 (1937). .·<o People. v. Orai& a'nd;Jimeilez;·•su.pr.ct n·ote 43:

·The .information or· ... ip.ay be ainended or fonn,. with-aut ·Jeave ·of court; at. a:ny the, tlefendant· pleads;·· and ther.eafter and during the'.trial as tq all matters of.' form, by leave aiid at .the irf th'e: c0u1•t when the same· cltii be ·done ·Without Pr<ejudice ·to the rights of the defendant ··.. ' · :·: · · " .''· · .: · .... ·. · · .. ·. · · · .. ·

If:it ap-pears at any time' before judgm(mt .that a mistake has been made iri charging the proper offense, the defendant would not be pJa¢ro ther'eby ·in' double· joopa1'dy, and· niay also· requite the Witnesses to· giV'e for·: tbei't- ·appearance at' the triaL· RUL.E. 106 ·§ 1;1. . . · : ;'(]; •. CFl of. Tay&bas,- 43 Phil:' :173- (1922). '''J;2-', P.etfple .. :Sope, siipfa·' note 3lt' ·.· ' · ·

:_,·_,

53 People v. Gustaham, 47 Phil. 377 (1925).

168 A TEN EO LAW JOURNAL [Vol. 7

preliminary investigation before an accused person is placed upon trial, is to secure the innocent against hasty, malicious and oppressive prosecutions, and to protect him from an open and public accusation of crime, from the trouble, expense and anxiety of a public trial and also to protect the State from useless and expensive trials."•

The officer conducting the preliminary investigation takes under oath the testimony of complainant and the witnesses to be presented by him or by the fiscal. If he is satisfied that there is reasonable ground to believe that the defendant has committed it, he must issue a warrant or order for his arrest.""

The determination of the existence of reasonable ground (probable cause) depends upon the judgment and descretion of the officer issuing the war-rant. It involves the question as to whether there is probable cause for believing that the person whose arrest is sought committed the crime charged. This is a pure exercise of judicial discretion and there is no rule that can be laid down to govern its exercise. By the very nature of the proceeding and by provision of law, the same has to be discretionary. 5"·

That the exercise of this power is purely discretionary is further sub-stantiated by the fact that an order dismissing the case after preliminary examination is not appealable"' and that mandamus will not lie to compel the officer to issue the warrant if in his judgment there is no reasonable ground to proceed against the defendant. The writ of mandamus is only available where there is a clear legal duty, unqualified by the exercise of. judicial discretion.""

It is clear, therefore, that the question as to whether the prosecution of accused will proceed or not depends upon the judgment of the prosecuting

54 People v. Venus, 63 Phil. 435 (1936). 55 Preliminary investigation is a previous inquiry or examination made before

the arrest of the defendant by the judg-e or officer authorized· to conduct the same with whom a complaint or information has been filed imputing the commission of an offense cognizable by the Court of First Instance, for th-e purpose of determining whether there is a reasonable ground to beli<!ve that an offense has been committed and the defendant is probable guilty thereof; so as to issue a warrant of arrest and to hold him for trial. RULE 1.08 § 1.

56 People v. Medted, 68 Phil. 485 (1939). 57 U.S. v. Grant, 18 Phil. 122 (1910); Hashim v. Boncan, 71 Phil. 216 (1941). 58 A provincial fiscal shall have authority, if he deems it wise, to conduct

an investigation into the matter of any crime or misdemeanor. To this end, he may summon reputed witnesses and r-equire them to appear and testify upon oath before him. The attendance or evidence of absent of recalditrant wifi· nesses who may be summoned or whose testimony may be required by a provin· cia! fiscal under the authority herein . conferred shall be enforced by proper process upon application to be made by t.he provincial fiscal to any judg.e of first instance of the judicial district or to the justice of the peace of the muni· cipality in which the investigation is held. But no witness to testi-fy under this section shall be compelled to give testimony tending to cdminate himself.

This action shall not be construed to authol'ize a provincial fiscal to act as justice of the peace in any preliminary investigation, but only authorizing him to secure the attendance of witnesses before him in making necessary investiga-tions for the purpose of instituting or carrying on criminal prosecutions. REV. ADM. CODE 1687.


authority, the exercise of this discretion practically unlimited, there being no legal or constitutional limitations imposed upon it.

PROSECUTION OR TRIAL

Control in Conduct at Trial

The fiscal directs and controls the prosecution of all criminal offenses.5"

This means that the fiscal is the officer from the filing of the information up to the final termination of the proceedings. It is at the trial rather than on any other stage of a criminal prosecution where the discretion of the fiscal is widest and most manifest.

It is the duty of the fiscal to conduct a searchii:J.g and intelligent prose-cution, endeavoring to submit the best and strongest evidence (weighing the value of evidence depends upon the fiscal's judgment) available to con-vict or acquit the accused. Under the prevailing criminal procedure he. has the right of direct and active intervention as the Government's repre-sentative for the defense of society which has been disturbed by the crime, taking public action as though he were the injured party."('

The determination of the offended party's appearance as a witness in a criminal case depends upon the prosecuting officer. The fact that the fis-cal in the exercise of his discretion does not present the offended party as a witness, does not detract from the efficacy of the proceeding, and is not ground for dismissal thereof. The sufficiency ·or insufficiency of the evi-dence does not depend upon whether the offended party took the witness stand or not. 61 ·

The number of witnesses to be called to testify for the prosecution is one which must be left largely to the sound discretion of the prosecuting officer conducting the proceedings. It is, of course, his duty (a dtity with judgment as the basis) to call all the available witnesses as to material facts, who may be necessary to establish such facts beyond reasonable doubt. But when he is satisfied that he has done so, he is not required to waste the time and attention of the court by calling other witnesses whose testi-mony will be merely cumulative, or, from the nature of the case, cannot add anything to the conclusiveness of the proof as to the existence or non-existence of the fact he is seeking to prove.62

The fiscal may also present a witness whose name does not appear in the list of witnesses for the prosecution, the law specifically providing that the prosecution may call at the trial other witnesses than those named in the complaint or information·.sa However, the accused may ask for a list

.-.u U.S. v. Mendoza, 4 Phil. 124 (1905); Lozada v. Fernandez, G.R. No. L-6177, April 29, 1953. - ·

r.o People v. Ovilla, 65 Phil. 722 (1!:!88). r.l U.S. v. Marfori, 35 Phil. 670 (1916). 6 ' U.S. v. Yu Tuico, 35 Phil. 210 (1916). r.3 RULE 106 § 4. . . .


of witnesses. Neither is the fiscal obliged to call. each and every one of the eye-witnesses but only a sufficient number to prove the commission of the act. The failure or omission of the fiscal to call the other witnesses will not give rise to the unfavorable presumption that if presented, the testi-mony of the witnesses not called would be adversed.'' 4 However, where the evidence on a certain fact· is not only weak but contradicted by the defense; the failure of the prosecution to produce the testimony of another person who saw the occurrence may give rise to an unfavorable inference."'

In cases where the offended party has neither waived nor reserved his · right .to institute a separate action he may intervene in the prosecution of the criminal action either persona!ly or through counsel, subject to the control and supervision of the prosecuting fiscal as provided in Sec. 4, Rule 106. Thus our Supreme Court through Mr. Justice Carson said:

x x x. there is nothing in the nll<!s of practice and procedute in cdlninal cases which denies the right of the fiscal, in the exercise of a sound discr.etion to turri over the active conduct of the trial to a competent assistant or to a private prosecutor, with the understanding, of course; tha1t he does not thereby relieve himself of l'l!lsponsibility for the prosecution at every stage of the proceedings to the end,. and . to intervene at any time he sees fit.

. It is every. day practice in this jurisdiction, X X X for the prosecuting attor. ney to tum over the active conduc<t of criminal cases (especially those in which the offenses charged are of the nature of those known as private offenses under the Spanish Penal Code) to couJ,sel employed as pi•ivate p1·osect1tors; and we see nothing objectionable in this practice, provided always that the fiscal l)e· tains control of .tbe prosecution and assumes full responsibility therefor.""

Dismissal of Actions: Nolle Prosequi

Out-of-court conciliation between the offender and the offended parties of public offenses ranging from petty marital troubles to the hideous of crimes - murder, is an everyday occurrence. The primitive form of come pensation is the usual procedure. If no information has as yet been filed by the fiscal, the offended party or his heirs will not file any complaint and would prevail upon the fiscal to desist from filing an information. If an information has already been filed, then the fiscal may either ask the court for the dismissal of the case on the ground of insufficiency of evi-dence, or should the latter be denied, the trial will proceed marked by the conspicuous absence of the principal witnesses, usually the offended party or his heirs, or should they be present, their testimony would be pre-fab to bring about an acquittal.

Not only is dismissal· of the case be brought about directly or indirectly by the aggrieved party as to leave the fiscal no choice in the matter; but also the fiscal, under certain circumstances, ask for dismissal because it

"' U.S. v. Casipang, 20 Phil. 178 (19q). 65 v. Juliada, 54 Phil. 486 (1.930). . . 6 " U.S. v. Braga! and Esmero, 28 Phil. 78 (1914).


is a duty or is the most prudent thing to do under the circumstances. Thus, where criminal proceedings have been instituted and investigations have satisfied him that the accused person is innocent or that evidence suffi-cient to secure conviction will not be forthcoming at the trial despite the exercise of due diligence to that end, it becomes his duty to advise the court wherein proceedings are pending as to the result of his investigation and evidence at hand and ask the court to dismiss the proceedings, leaving it to the court to take such action as may be proper in.the premises.67 This may prejudice the rights of the offended party. What remedy has the lat-ter in case the trial court should grant the dismissal? Where the dismissal of the case is based on the insufficiency of the evidence, the offended party cannot appeal. 68 It is therefore clear that the right which Section 107 of General Orders No. 58 reserves to the injured party is that of intervening in the prosecution for the sole purpose of enforcing the civil liability born of the criminal act and not of demanding punishment of the accused."" Moreover, to permit the offended party to appeal from an order of dismis-sal issued by a court upon motion of the fiscal would be tantamount to giving the offended party the control and supervision in the prosecution of a criminal action, in violation of the provisions of the law.70 Neither can the offended party appeal from the order of dismissal of the criminal action where it appears that the offended party had filed a separate civil action for damages arising from the commission of the offense charged in tl1e criminal action.71 However, where the order of dismissal is issued upon motion of the fiscal. on grounds other than insufficiency of the evi-dence, such as that the defendant is not criminally liable72 or that the facts do not constitute a punishable offense,73 the party injured by the commis-sion of the crime, may appeal from the order of dismissal. Where the .case is dismissed on motion of the fiscal on the ground of insufficiency of evidence, the complainant may institute proceedings for mandamus to com-pel the fiscal to file an information and prosecute the case and the judge to restore the case and decide it on its merits. The complainant may also file a separate civil action."

The fiscal by his control of the prosecution has discretion to determine whether the evidence is sufficient for conviction of an accused.75

In considering a motion to quash an information on the ground that the 07 People v. Valencia, G.R. Nos. L-42921-922, Sept. 21, 1935. See also RULE

112 1. 68 People v. Marasigan, 51 Phil. 704 (1928); U.S. v. Dinola, 37 Phil. 801

(1918); People v. De Otero, 51 Phil. 201 (1927). 69 People v. Balausag, 60 Phil. 271 (1934). 70 U.S. v. DespabilalkJ;!S and Laxamana, 32 Phil. 443 (1915). 71 U.S. v. Barredo, 32 J>hjl .. 444 (1915). 72 People v. Limbo, 49 Phil. 94 ( 1926) . 73 People v. Navarro, 75 Phil. 516 (1945). 14 People v. De Moll, 68 Phil. 626 (1939). 75 The very nature of the duty vested upon him by law requires the use of

172 A1'ENEO LAW JOURNAL [Vol. 7

facts charged do not constitute an offense the court is not limited to the facts detailed in the information but may also consider admissions by the fiscal.'" It is not prudent or even permissible for a court to compel the fiscal to prosecute a proceeding originally initiated by him on information, if he finds that the evidence relied upon is insufficient for conviction. 77

Dismissal of the case after he pleads thereto will bar another prosecution against him for the same offense on the ground of jeopardy.78 A person may escape criminal prosecution on motion of fiscal for dismissal of case on ground of insufficiency of evidence.'" The determination of sufficiency of evidence is left to the sound judgment of the fiscal. 80 Honest mistakes and deliberate errors of the fiscal in the appreciation of evidence is not ground for second prosecution of the aecused once jeopardy has attached.

However, dismissal of accused before plea will not bar a prosecution for the same offense in the light of newly discovered evidence.81 Jeopardy does not attach yet, since before the plea, no issues are joined; the defendant is not yet on trial, and he has not been place in danger of conviction.

Discharge of Accused as State Witness

In the prosecution of grave offenses, usually murders and homicides com-mitted by several persons, conviction of the accused persons is usually had by one of the accused turning a state witness.83 The Monroy Murder Case is no exception. 84

Section 9, Rule 11585 which governs the discharge of an accused was taken from sections 34, 35 and 36 of G.O. No. 58. This rule covers the practice of discharging the defendants indicted with others in order that the persons so discharged may be introduced as witnesses for the prosecu-

discretion. 1a People v. Navarro, supra, note 73. 11 ld. 18 U.S. v. Solis, 6 Phil. 676 (1906). 1 9 People v. Turla, 50 Phil. 1001 (1927); Kalaw v. Apostol and Salaz&r, 64

Phil. 852 (1937). so Supra note 75. 81 U.S. v. Solis, 6 Phil. 676 (1906); People v. Turla, supra, note 79; U.S. v.

Claveria, 29 Phil. 527 (1915); Kalaw v. Apostol, supra, note 79. 82 When two or more persons are charged with the commission of a certain

offense, the comp,etent court, at any time before they have entered upon their defense, may direct any of them to be discharged with the latter's consent that he may be a witness for the government when in the judgment of the court:

(a) There is absolute necessity for the testimony of the defendant whose discharge is I"equested.

(b) There is no other direct evidence available for the proper posecution of the offense committed, except the testimony of said defendant;

(c) The testimony of said defendant can be substantially corroborated in its material points.

(d) Said defendant does not appear to be the most guilty; (,e) Said defendant has not at any time been conviated of any offense in-

volving moral turpitude. RULE 115 9. •• U.S. v. De Guzman, 30 Phil. .416 (1915). 84 U.S. v. Barreda, 32 Phil. 444 (1915); U.S. v. Perfecto. 42 Phil. 117 (1921). 8s Id.


tion and; when by agreement, such discharge may be held to be a com-plete bar to the subsequent prosecution of the criminal.""

While the fiscal has the control in the prosecution of a felony and has discretion as to whom to include or exclude from the information, once the latter is filed, the fiscal cannot, for lack of power, exclude a defendant from it. The power to exclude is vested solely in the court of competent juris-diction.67

While the court makes the discharge of the 88 the court only acts upon motion of the fiscal for dismissal of the case against an accused turn-ing a state witness."9 The court cannot, on its own motion, discharge an accused person. 90

The fiscal's discretion in asking for the dismissal of the case against an accused turning state witness is limited by Sec. 9, Rule 115. Discharge of an accused is conditioned on the following requisites; (1) Absolute neces-sity for his testimony (2) No other direct evidence available (3) Can be substantially corroborated ( 4) Does not appear to be the most guilty and ( 5) Not been convicted of any offense involving moral turpitude.

The sole and principal object of the limitations upon the discretion of the fiscal is not to restrain and limit his action but especially to impose specific conditions whereby an accused, already charged in an information, may not be arbitrarily and capriciously excluded therefrom, as must have hap-pened more than once. These rules never laid down to remedy the evil consequences of an unreasonable and groundless exclusion which produces real impunity, perhaps of the most guilty and the most responsible criminal, and subjects to prosecution the less wicked who have not found protection in the whims and arbitrariness which have freed those who really deserve a more severe punishment than others who have undergone prosecution.91

While it is discretionary upon the court to make a discharge, 92 this dis-cretion, in the very nature of things, must, as a general rule, be based upon the findings of the fiscal on the. conditions required by Sec. 9. The ap-praisal of such conditions, by their essential natural requires the use of discretion."3 As Justice Perfecto, speaking in the case of People v. Men-diola9' said :

The judg-e must rely in large part upon the sugg>estions and the information furnished by the prosecuting officer in coming to his conclusions as t.o the

People v. Parcon, 55 Phil. 970 (1931); People v. Faltado, 46 O.G. 6079 (1949).

" 7 U.S. v. Inductive, 40 Phil. 84 (1919); U.S. v. Barreda, supra note 84; U.S. v. P·srfecto, supra, note 84.

ss U.S. v. Enriquez, 40 Phil. u03 (1919). s9 " ... may direct ... Rl1LE 115 9; People v. Bautista, 49 Phil; 389 (1926). so People v. Ibanez, G.R. No. L-5242, April 20, 1953. 91 U.S. v. De Guzman, 8Up1'1L, note 83. 92 People v. Velazco, 42 Phil. 75 (1921). 93 RULE 115 9. 9< 46 O.G. 3629 (1949).

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•


necessity for the testimony of the accused whose discharge is reque:>ted, as to the availability or non-availability of other direct or corroborative evidence; as to which of the accused is most guilty, and the like. If he errs in the exer-cise of his discretion and a guilty person who should not have h£,en set free at liberty, the error, as a general rule, cannot be cured anymore than any other -error can be cured which results in an acquittal of a guilty defendant in a criminal action, 95 but no sound discretion has been sugg-ested in support of a ruling that the commission of such an error of discretion should have the eff.ect cf discharging from criminal liability the accused persons who were

discharged, that they might be used as witnesses; and there is nothing in the law which indicates that it was the int-ention of the legislator to provide for th-eir discharge under such circumstances.

The order of discharged to be utilized as a State witness"" or as a witness against his co-defendants•• shall be deemed an acquittal and will bar an-other prosecution for the same offense.98 But the accused discharged un-der Sec. 9 must testify against his co-accused.

Before the discharge is ordered, the prosecution must show and the trial court must ascertain that the five conditions fixed by Sec. 9· of Rule 115 are complied with. But once the discharge is ordered, any future develop-ment showing that any or all of the five conditions have not actually been fulfilled, may not affect the legal consequences of the discharge.•• Any witting or unwitting error of the prosecution in asking for the discharge and of the court in granting the petition, no question of jurisdiction being in-volved, cannot deprive the discharged accused of the acquittal provided by Sec. 11 of Rule 115 and of the constitutional guarantee a<minst double jeopardy. The exception in the proviso of Sec. 11 of Rule 115 against the defendant who "fails to testify against his co-defendant" refers exclusively to a failure attributable to the prosecution; and it would be an abhorrent legal policy to place defendant's fate at the mercy of anyone who may handle the prosecution.100 · ·

Although discharge by fiscal is subsequently found to be erroneous, ac-quittal of the discharge accused cannnot be disturbed. 1"'

BAIL

All persons shall, before conviction, be bailable by sufficient sureties, ex-cept those charged with capital offenses when evidence of guilt is strong.102

The general rule is, that any person, before being convicted of any criminal offense shall be bailable, except when he is charged· with a capital offense

95 RULE 115 10. 96 Supra note 82. 97 PADILLA, op. cit. supra note 28 at 575. 9 8 PHIL. CONST. art III !I 1 cl. 16. 99 Teehankee v. Rovira, 75 Phil. 634 (H145). 100 RULE 110 § 7. 101 Duran v. A bad Santos, 42 O.G. 267 ( 1945). 102 KAPUNAN, op. cit. supra note 27 at 405.


and the evidence of his guilt is strong. 103

The charging of a capital offense is made by the fiscal according to the evidence he has and the proper valuation of them. He alone, and no other, can determine whether the crime committed was capital or not. And who will introduce evidence to show that evidence of guilt is strong? The fiscal. It is, in the final analysis, the fiscal who determines as to whether or not a person can be bailed.

Upon application for bail of a person in custody for the commission of a capital offense, the burden of showing that evidence of guilt is strong is in the prosecution, 104 but the showing of the same is merely routinary for the fiscal and the court will readily believe him than any other person even in extreme cases when information charging the commission of a capital offense has not as yet been filed. 105

APPEAL

The right of appeal is not a constitutional but a personal right of the defendant. 100 At first blush, it would seem that the People of he Philip-pines cannot appeal. The right of the People of the Philippines to appeal from a final order or ruling or judgment of the trial court is limited to cases where the exercise of the right would not place the accused in double jeo-pardy.107 The People, however, can appeal from an order of dismissal is-sued by a court upon a motion to quash filed by the. defendant, for in such case, aside from the fact that the dismissal is with the express consent of the accused, the issue involved in the appeal would not be the guilt or in-nocence of the accused but whether or not the ground alleged in the motion to quash is wdl founded. 108 The Government can also appeal from an order of dismissal by the court motu propio109 unless the dismissal is based

·on insufficiency of evidencc.U0 In the cases where appeal by the Govern-ment is proper, discretion as to its propriety and feasibility is again left to the sound judgment of the prosecuting attorney. There is no instance yet in Philippine Jurisprudence where a fiscal is compelled by a mandamus pro-ceeding instituted by the offended party to make an appeal from an ad-

1 0 3 The People of the Philippines cannot appeal if the de-fendant would be placed thereby in double jeopardy. In ail other cases either party may appeal from a final judgment or ruling or order made af'ter judgment aff.ecting the substantial rights of the appellant. RuL;;: 118 § 2.

1 0 4 People v. Maparao, G.R. No. L-2600, March 30, 1950. 105 P.eople v. Salico, G.R. No. L-1567, Oct. 13, 1949. lOG U.S. v. Kilayco, 32 Phil. 622 (1915). 107 RULE 106 4. 108 Pros.ec!Lttn"s Discretion, sup?·a note 2 at 1075; BAKER, The PlY>&ecntor· -

Initiation of Pro&ectttion, 23 J. CRIM. L. AND CRIMINOLOGY, 770 (1933), said, "Where an aroused public insists on the enforcement of a particular statute, a thorough prosecution is likely."

10• Colosa v. Altea, 43 O.G. 3058 (1946). 110 lfl.


verse ruling of the trial court. Such proceeding is improper since the fis-cal is given the direction and control of all criminal actions.'"

FISCAL

Unlike the public prosecutor in the United States who is elected by the people and whose discretion is perhaps best controlled by public opinion,112

the fiscal in this jurisdiction is appointed by the President with the consent of the Commission on Appointments.U3 The fiscal owes no allegiance to the people of a province and hence, cannot be controlled by public opinion · except in extreme cases when the whole nation is aroused.m

A provincial fiscal, acting in the exercise of his duties can only be sub-stituted (not dismiss) by another one in case of an exercise of a grave abuse of discretion.115 A fiscal cannot be compelled to prosecute a criminal case by mandamus proceeding116 or be denied the right to prosecute a criminal case except when he shall be disqualified by personal interest to act in a particular case or when for any reason he shall be unable, or shall fail, to discharge any of the duties of his position.'11

A provincial fiscal may ignore, neglect, or wilfully refuse to prosecute a criminal offense. In such a case, the Prosecution Division of the Dept. of Justice through any of its men, popularly called - special prosecutors, may investigate the case and file it himself exclusive of the fiscal of the place.118 Under the supervisory power of the Secretary of the Department of Justice, the fiscal may be compelled to explain his alkged failure to take action on a murder case that happened in 1942.119

The President who appoints the fiscals cannct remove or transfer them to annother province without their cons·ent.l2° The post of provincial fis-cal is in the ,unclassified civil service. Under the Constitution, no civil ser-vice employee can be removed except for cause.121 The constitutional pro-vision is thus a limitation to the inherent power of the executive to remove those civil service official whom he appoints. A provincial fiscal has the right to continue in office until he reaches the age of 65 years unless sooner removed for cause. He is entitled to the security of tenure duly protected by the Constitution and statutes.l22

111 Gonzalez v. CFI of Bulacan, sup1·a, note 31. 112 !d. 113 REV. ADM, CODE § 1679. 114 Capiz Fiscal Told to Explain Failure to Act on Mw·der Rap, THE MANILA

TIMES, Feb. 2, 1956, back page, col. 8. · 115 Lacson v, Romero, G.R. No. L-3081, Oct. 14, 1949. 116 No officer or employee in the Civil Service shall be remov.ed or suspended

except for cauS€ as provided by law. PHIL. CoNST. art. XII § 4. 117 Lacson v. Romero, S?.tpra note 115. 118 REv. ADM. CODE § 1659 as amend-ed by R.A. No. 335 1. 119 Supra, note 14; ARCHBALD, Criminal Pleading, EVIDENCE AND PRACTICE 103. 120 REV. ADM. CoDE § 1660 as amended by EXEC. ORDER No. 94 § 68, 121 Supra note 116. 122 !d.


It is apparent that with term of office fully secured and process of re-moval stringent and practically impossible, the only limit to the exercis·e of discretions granted him by statute and by nature of his office is God and his conscience.

SoLICITOR GENERAL

The Solicitor-General has the rank of an Undersecretary of a Depart-ment and is appointed by the President with the consent of the Commission on Appointments.123 He is the public prosecuting officer and, like his counterpart in the common law, exercises wide powers of supervision over all criminal investigations and prosecutions.1'4 The Solicitor-General shall have general supervision. and control over provincial and city fiscals and attorneys and over other prosecuting officers throughout the Philippines, shall prepare rules for their guidance, and may require reports from them concerning matters rela.ting to the administration of justice thereon.

As principal law officer of the Government, the Solicitor-General shall have authority to act and represent the Government of the Philippines, its

officers and agents, in any official investigation, proceeding or matter re-quiring the services of a lawyer.125 It shall, among other things be his duty, in person or by proper subordinate: To represent the Philippines in the Supreme Court in all criminal cases, and to represent said Government in all civil actions and proceedings in which said Government, or any officer thereof in his official capacity, is a party. It is also part of his duties to institute and prosecute actions, to enforce penalties or forfeitures under the laws in force in the Philippines.126 The nature of his office and the sub-ject matter of his duties require the exercise of judgment in its perfor-mance,127 the judgment upon the propdety of the act being done.128 This, in essence, is an exercise of a discretionary power.

Aside from the general supervision and control of the Solicitor-General over provincial and city fiscals, the duties of the latter officers, when de-clared vacant by the President upon recommendation of the Secretary of Justice may be performed by a solicitor appointed by the Solicitor-General.

The Solicitor-General in his use of his wide discretionary powers may re-commend the amount of bail to be required in the case of a person held for trial by the People's Court, but such a recommendation does not pre-clude him from subsequently opposing an application for bail. Criminal cases on appeal are controlled by the Solicitor-General or provincial fiscal under his direction.

123 REV. ADM. CODE & 1661. 124 Stephens v. Jones, 123 N.W. 705 (1902). 125 REv. ADM. CODE § 1665.

· 1 26 !d. at § 1677. 127 Supra note 99. 128 Supra note 121.


The wide discretionary power of the fiscal in the prosecution of criminal offenses in a way is controlled and superseded by the Office of the Solicitor-General and the Department of Justice by its general power of supervision and control. The fiscal's inaction to prosecute a certain individual for a criminal offense or his failure to combat organized criminal syndicates is remedied by the granting of supervisory and supersedure powers to the Of-fice of The Solicitor-General.

CoNCLUSION

In the prosecution of criminal offenses a vast amount of discretionary power within the statutory framework is unavoidable, well-nigh necessary, in order to promote efficiency and to effect a flexible system of prosecu-tion. To protect the individual, some immediate restrictions are imposed and extraordinary remedies are made available. (Special actions like man-damus, certiorari, prohibition, etc.). As against the overzealous fiscals, the

Court and the Solicitor-General function as some protection to unfounded ac-cusations. Statutory remedies and constitutional protections for delay in accusation or trial safeguard the individual against the malicious and inef-ficient. For the protection of the community and the public interest, dis-missal of criminal actions is subject to the discretion of the court. It would be expedient to provide for the removal of fiscals for flagrant viola-tion of duty and refusal to institute criminal actions when proper, rather than force prosecutions by mandamus proceedings. However, neglect of duty by the fiscal may be immediately remedied when necessary by the Solicitor-General if brought to his attention, by the exercise of his power of supervision and control over all public prosecutors.

The efficacy arid propriety of these restrictions and the suggested ones are at best open to questions. The courts in many cases may be controlled by the prosecuting fiscal, and court approval of motions for dismissal may be merely perfunctory rather than the exercise of a sound judicial discre-tion. Even in the case of a gross abuse of discretion, fiscals are extreme-ly difficult to remove because they belong to the unclassified civil service and due partly to local political pressures and the inertia of the governing bodies. Although the Solicitor-General could provide immediate relief in certain cases, the failure to impose duties in the exercise of this power, the fact that Presidential intervention are often, and the impetus of political pressure flowing from his position make the exercise of this power a rare occasion.

Clamour of public opinion in the administration of the criminal law rather than further legislation, is needed to insure our system of criminal prosecu-tion to operate efficiently. In the same manner, since nol pros is such an essential tool of prosecution, it would be unwise to legislate additional res-triction on its use. On the other hand, it might be well to consider curing


the defects of the process of removal and the powers of the fiscals and the Solicitor-General. Removal of the Solicitor-General on petition to the Supreme Court and making it a civil service office rather than a political one would remove the impediment of political pressure. Measures intended to impose duties on the Solicitor-General to be more cognizant in the ad-ministration of the criminal law and be more conversant about the activities of the numerous fiscals in the provinces would probably reduce the barrier of administrative inertia. Although the prosecutor's discretion is essential, the suggested measures might make existing sanctions against its abuse more effective.

discretionary powell of the...

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