Go v.
CA
G.R. No. 101837, February 11, 1992
Facts:
Petitioner alighted from his car, walked over and shot Eldon Maguan inside his
car. Petitioner then boarded his car and left the scene.
On July 8, 1991, petitioner, accompanied by two lawyers, presented himself
before the police station to verify news reports that he was being hunted by the police.
The police forthwith detained him. That same day, the police promptly filed a complaint
for frustrated homicide against petitioner. First Assistant Provincial Prosecutor Ignacio
informed petitioner, in the presence of his lawyers, that he could avail himself of his
right to preliminary investigation but that he must first sign a waiver of the provisions of
Article 125 of the Revised Penal Code. Petitioner refused to execute any such waiver.
While the complaint was still with the Prosecutor, and before an information
could be filed in court, Maguan died of his gunshot wound(s).
The Prosecutor, instead of filing an information for frustrated homicide, filed an
information for murder before the Regional Trial Court. No bail was recommended. At
the bottom of the information, the Prosecutor certified that no preliminary investigation
had been conducted because the accused did not execute and sign a waiver of the
provisions of Article 125 of the Revised Penal Code.
Counsel for petitioner then filed with the Prosecutor an omnibus motion for
immediate release and proper preliminary investigation, alleging that the warrantless
arrest of petitioner was unlawful and that no preliminary investigation had been
conducted before the information was filed. Petitioner also prayed that he be released
on recognizance or on bail.
Issues:
1) Whether or not Section 7 of Rule 112 is applicable to this case
2) Whether or not petitioner had effectively waived his right to preliminary
investigation
3) Whether or not petitioner still retains his right to a preliminary investigation in
the instant case considering that he was already arraigned
Ruling:
1) No. no lawful warrantless arrest of petitioner within the meaning of Section 5 of
Rule 113. In fact, petitioner was not arrested at all. When he walked into the San
Juan Police Station, accompanied by two lawyers, he placed himself at the
disposal of the police authorities. He did not state that he was "surrendering"
himself in all probability to avoid the implication he was admitting that he had
slain Eldon Maguan or that he was otherwise guilty of a crime. When the police
filed a complaint for frustrated homicide with the Prosecutor, the latter should
have immediately scheduled a preliminary investigation to determine whether
there was probable cause for charging petitioner in court for the killing of Eldon
Maguan. Instead, the Prosecutor proceeded under the erroneous supposition
that Section 7 of Rule 112 was applicable and required petitioner to waive the
provisions of Article 125 of the Revised Penal Code as a condition for carrying
out a preliminary investigation. This was substantive error for petitioner was
entitled to a preliminary investigation and that right should have been accorded
him without any conditions. Moreover, since petitioner had not been arrested,
with or without a warrant, he was also entitled to be released forthwith subject
only to his appearing at the preliminary investigation.
2) No. Petitioner did not waive his right to a preliminary investigation. Since
petitioner in his omnibus motion was asking for preliminary investigation, and
since the Prosecutor himself did file with the trial court on the fifth day after
filing the information for murder, a motion for leave to conduct preliminary
investigation, petitioner's omnibus motion was in effect filed with the trial court.
Petitioner did ask for a preliminary investigation on the very day that the
information was filed without such preliminary investigation, and that the trial
court was five days later apprised of the desire of the petitioner for such
preliminary investigation. Also, the trial court did in fact grant the Prosecutor's
prayer for leave to conduct preliminary investigation.
Also, petitioner had not waived his right to preliminary investigation by posting
bail. He asked for release on recognizance or on bail and for preliminary
investigation in one omnibus motion. He had thus claimed his right to preliminary
investigation before respondent Judge approved the cash bond posted by
petitioner and ordered his release. Thus, waiver of preliminary investigation on
the part of petitioner cannot be reasonably implied.
3) Yes. The rule is that the right to preliminary investigation is waived when the
accused fails to invoke it before or at the time of entering a plea at arraignment.
However, petitioner Go had vigorously insisted on his right to preliminary
investigation before his arraignment. At the time of his arraignment, petitioner
was already before the Court of Appeals on certiorari, prohibition and mandamus
precisely asking for a preliminary investigation before being forced to stand trial.
It should be noted that the right to have a preliminary investigation conducted
before being bound over to trial for a criminal offense and hence formally at risk
of incarceration or some other penalty, is not a mere formal or technical right; it
is a substantive right. To deny petitioner's claim to a preliminary investigation
would be to deprive him of the full measure of his right to due process
