(Sgd.) "F. SANTAMARIA
"Judge for the 23rd District acting in the 9th."
Petitioner contends that by reason of his office, it is the inherent, ministerial and unavoidable duty of the respondent judge to acquaint himself with proofs of the prosecution in accordance with the provisions of section 66 of General Orders, No. 58, for the purpose of determining whether or not such proof of guilt is evident or the presumption of guilt is strong against the accused; that, in declining to proceed with the investigation of these circumstances, the respondent judge has illegally divested himself of the power and jurisdiction conferred upon him by the Jones Law and the Philippine Bill of 1902, to the great prejudice of the constitutional rights of the herein petitioner; and that there is no other plain, speedy, and adequate remedy, in the ordinary course of law, available to the petitioner for the enforcement of his rights under section 63 of General Orders, No. 58 and section 3 of the Jones Law, other than this mandamus proceeding.
The first question of law raised in these proceedings is whether section 3 of the Jones Law repealed section 63 of General Orders, No. 58, as respondent ruled. Section 3 of the Jones Law, reads:jgc:chanrobles.com.ph
"That all persons shall before conviction be bailable by sufficient sureties, except for capital offences."cralaw virtua1aw library
Section 63 of General Orders, No. 58, provides:jgc:chanrobles.com.ph
"All prisoners shall be bailable before conviction, except those charged with the commission of capital offenses when proof of guilt is evident or the presumption of guilt is strong."cralaw virtua1aw library
From the mere wording of these provisions, it would seem that the Jones Law did really repeal that section of General Orders, No. 58. But such is not the case, as may be seen upon consideration of section 26 of the Jones Law, which among other things, provides:jgc:chanrobles.com.ph
"That the Supreme Court and the Courts of First Instance of the Philippine Islands shall possess and exercise jurisdiction as heretofore provided and such additional jurisdiction as shall hereafter be described by law."cralaw virtua1aw library
As is well known, General Orders, No. 58 was promulgated by the United States Military Government in the Philippine Islands on April 23, 1900, and section 63 thereof conferred jurisdiction upon judges to admit persons accused of capital offenses to bail, except when the proof of guilt was evident or the presumption of guilt strong. And the Jones Law, far from revoking this power, expressly recognized it in section 26. This is in effect the ruling of this court in United States v. Babasa (19 Phil., 198), where it was held that Courts of First Instance have jurisdiction and authority to admit defendants to bail in a criminal case before conviction although charged with a capital offense, citing paragraph 4 of section 5, of the Act of Congress of July 1, 1902 and section 63 of General Orders, No. 58.
That was a case of robbery in band with homicide. The information alleged that on July 8, 1902, defendant Pedro Alvarez (alias Araro) entered the municipality of Liang in the Province of Batangas at the head of a band of robbers, consisting of more than thirty persons, and attacked houses, entering and robbing the same of the property contained therein, using force, violence and intimidation to that end. While the trial was in progress, the accused, in view of the non- appearance of certain of his witnesses, whom he required for his defense, and the postponement which their absence would entail, made an application to be admitted to bail, alleging, among other things, that to remain in jail was prejudicial to his health. Upon said motion the court, after hearing the attorneys for the applicant, and with the consent of the Attorney-General, admitted the accused to bail in the sum of 10,000 dollars gold, the sureties being Melchor Babasa and Apolonio Belmonte.
The trial of the case was adjourned to the 15th of October following. On said day the accused did not appear, and, notwithstanding the search made by the sureties on his bond as well as by the Constabulary, nothing was seen or heard of him until the 20th day of December, 1904, when Colonel Baker of the Constabulary telegraphed the governor of Cavite that the accused had been killed in an encounter with the Constabulary. In view of the non-appearance of the accused, the court ordered the bond forfeited and instructed the provincial fiscal to proceed immediately against the sureties for the collection thereof. On the 27th day of January, 1904, the court on motion of the fiscal, issued an execution against the property of the said bondsmen for the purpose of realizing the sum specified in the bond. An appeal was taken by the said sureties from the order referred to, which appeal was later dismissed by the Supreme Court and the cause ordered returned to the Court of First Instance for such proceedings as were by law provided. On the 2d day of August, 1905, Melchor Babasa appeared by his attorney and presented to the court a petition praying that the bond be declared void. After a hearing that motion was denied by the court. The applicant sought to appeal from said order. The court refused to permit such appeal and an action was begun for a writ of mandamus compelling the court to allow it. The Supreme Court decided in favor of the sureties and ordered the court below to allow the appeal. 1 On the 29th day of September, 1906, Melchor Babasa died, and his wife was thereafter appointed administratrix of his estate, and was substituted by an order of this court as party defendant in place of said Melchor Babasa, deceased.
The appellants based their appeal upon two grounds: First, that in view of the provisions of section 5 of the Act of July 1, 1902, and section 63 of the Code of Criminal Procedure, the trial court had no power, authority, or jurisdiction to admit the accused Alvarez to bail, inasmuch as he was charged with a capital offense; that the admission to bail having been without jurisdiction, the bond was void. Second, that inasmuch as it was clearly proved that the accused had been killed prior to judgment on the bond, the sureties were discharged.
The Supreme Court, after citing paragraph 4, section 5 of the Act of July 1, 1902, and section 63 of General Orders, No. 58, disposed of the first ground of the appeal (which is the pertinent part of the question herein involved) ruling: "From these provisions it is clear that even capital offenses are bailable in the discretion of the court before conviction. As a result, the objection of the appellants that the trial court had no power or jurisdiction to admit to bail in the case at bar, must be overruled. Under the facts presented in this case the trial court may have exercised bad judgment in admitting to bail; but he had jurisdiction in the premises. That is the important thing here." (U. S. v. Babasa, 19 Phil., 198.)
Paragraph 4, section 5 of the Act of Congress of July 1, 1902, then, did not repeal section 63, General Orders, No. 58; but on the contrary, section 9 of said Act recognized in Courts of First Instance the power they had to admit to bail before conviction, even in case of capital offenses, except when the proof of guilt was evident or the presumption of guilt strong. And it need not be stated in so many words that this provision of the Organic Law is literally the same embodied in section 3 of the Jones Law quoted above.
In view of the foregoing, we are of the opinion that the respondent’s theory that section 3 of the Jones Law does not authorize the court to admit a defendant, charged with a capital offense to bail, is untenable.
Section 63, General Orders, No. 58, providing that "all prisoners shall be bailable before conviction, except those charged with the commission of capital offenses when proof of guilt is evident or the presumption of guilt is strong," enunciates a principle generally accepted throughout the United States, and section 3 of the Autonomy Act (the Jones Law) so far as it provides that "all persons shall before conviction be bailable by sufficient sureties, except for capital offenses," must be so construed as to be in harmony therewith. These provisions quoted from the Jones Law were intended not to restrict, but to secure, the right to bail. The Jones Law provision is manifestly a more concise statement of section 63, General Orders, No. 58. The exception is thus stated in the latter: "Except those charged with the commission of capital offenses when proof of guilt is evident or the presumption of guilt is strong," The right to be out on bail therefore depends on the nature of the accusation, with this limitation, that "the proof of guilt is evident or the presumption of guilt is strong." Both under this provision and under the provisions of the Jones Law quoted above, a judicial investigation is proper, upon application for bail, in order to ascertain if the crime of murder has really been committed, and whether the proof of guilt is evident or the presumption of guilt is strong.
According to section 66, General Orders, No. 58, when admission to bail is a matter of discretion, the court must require that reasonable notice of the hearing of the application for bail be given to the prosecuting attorney. From this and section 63 of said General Orders, No. 58, it follows that the judge must decide whether the proof is evident or the presumption of guilt is strong, for the ruling to be made will depend upon that decision. This is a ministerial duty. It is indisputably his ministerial duty to grant or deny the motion for freedom on bail; he cannot shirk it. Since he must deny or grant it whether the proof is evident or not, or the presumption of guilt be strong or not, he is likewise ministerially bound to decide which circumstance is present. As far as the principles involved are concerned, there is no difference between refusing to admit a defendant to bail in a capital offense without considering or deciding whether the proof be evident or the presumption of guilt strong, and convicting defendant of the crime charged without considering or deciding whether he is guilty or not. The only difference is the degree of freedom of which he is deprived.
In the case at bar, after counsel presented his petition for provisional liberty on bail and the court, after hearing said counsel and the city fiscal denied the petition on the ground that section 3 of the Jones Law does not authorize the Court of First Instance to admit a defendant to bail who is charged with a capital offense. The record shows that at the hearing of this motion the whole discussion turned on whether, under section 3 of the Jones Law, the court could, in the case at bar, admit the defendant to bail, and upon reaching a negative conclusion, the motion was denied. The ruling was based solely upon the belief that the court could not in any case set defendant at liberty on bail, and no account was taken of whether the proof was evident or the presumption of guilt strong. The court failed to decide whether one or the other of these circumstances was present. Not even the nature of the offense or the result of the investigation made by the city fiscal was considered.
The object of this application is to require the respondent judge to comply with his ministerial duty of considering and deciding whether the proof is evident or the presumption of guilt is strong against the defendant, for the purpose of granting or denying his provisional liberty. Suppliant does not ask that the matter be decided one way or the other, but simply that it be decided. In other words, it is proposed not to interfere with the judicial discretion to grant or deny the motion for provisional liberty, but to enforce the exercise of said discretion according to the judgment and discretion of the Respondent. In this case a judge has declined to make a decision which the law enjoins upon him.
In Huidekoper v. Hadley (, 177 Fed., 1), the court said:jgc:chanrobles.com.ph
"The rule is well settled and fully recognized by us that when discretion is conferred upon public agents or officers their acts in the lawful exercise of that discretion cannot be controlled by mandamus. The rule is also well settled that, although the exercise of discretion will not be controlled by mandamus, yet the writ will lie to compel the person or the body in whom the discretion is lodged to proceed to its exercise. In view of these rules, we are of opinion that the discretion which cannot be controlled by mandamus is that discretion, and that only, which the law has vested in the person or body to be exercised. If the law has pointed out how or in what way the discretion shall be exercised, it is obviously not the exercise of the discretion imposed by law to proceed in any other way. To so proceed would be contrary to the law and would be the exercise of arbitrary power rather than discretion. To decline or refuse to proceed according to law or in the way pointed out by law is in our opinion equivalent to not proceeding at all. In other words, the discretion which will withstand review by the courts must be exercised under law and not contrary to law."cralaw virtua1aw library
And in Lamb v. Phipps (22 Phil., 456), this court, through a majority, laid down the following rules:jgc:chanrobles.com.ph
"It is essential to the issuance of a writ of mandamus that the plaintiff have a clear legal right to the thing demanded and it must be the imperative duty of the defendant to perform the act required. It never issues in doubtful cases. While it may not be necessary that the duty be absolutely express, it is necessary that it should be clear. The writ of mandamus will not issue to compel an officer to do anything which it is not his duty to do, or which it is his duty not to do, or to give to the applicant anything to which he is not entitled by law. The writ of mandamus neither confers powers nor imposes duties. It is simply a command to exercise a power already possessed and to perform a duty already imposed."cralaw virtua1aw library
If, as we hold, the petitioner is entitled to ask for provisional liberty on bail, and if the respondent is peremptorily bound to exercise the judicial discretion conferred upon him by law, it is clear that mandamus will lie to enforce said exercise of judicial discretion.
In view of the facts of record and the oral and written argument of both parties, we are of opinion that the writ prayed for should issue. Wherefore, the respondent judge is hereby ordered to determine whether in the case at bar the proof is evident or the presumption of guilt is strong against the defendant, and to exercise judicial discretion in denying or granting the petition for provisional liberty. Without special pronouncement of costs. So ordered.
Avanceña, C.J., Street, Ostrand and Villa-Real, JJ., concur.
1. Babasa v. Linebarger (12 Phil., 766).