5/10/2021 G.R. No.

L-46490

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Republic of the Philippines

EN BANC

G.R. No. L-46490 January 24, 1939

MARIANO MARCOS, PIO MARCOS and QUIRINO LIZARDO, petitioners,

Vicente J. Francisco, Bartolome Guirao, Federico Diaz, Alberto Saguitan, and Juliana E. Castro for petitioners.
Office of the Solicitor-General Ozaeta for respondent judge.

IMPERIAL, J.:

In this petition for certiorari and prohibition the petitioners pray that the order of the respondent judge dated
December 29, 1938, denying another motion filed by them to be admitted to bail, be set aside, and by way of
affirmative relief ask that they be set at liberty upon giving bail in the amount to be fixed.

On December 7, 1938, the provincial fiscal of Laguna, who was assigned as such in Ilocos Norte, filed the following
information:

The undersigned charges Mariano Marcos, Pio Marcos, Ferdinand Marcos, Quirino Lizardo, and John Doe (whose
identity has so far not been established), with the crime of murder, committed as follows:

That on or about the night of September 20, 1935, in the municipality of Batac, Province of Ilocos Norte,
Philippines, and within the jurisdiction of his Honorable Court, the aforementioned accused, armed with
firearms, acting upon a common understanding and conspiring with one another, wilfully, unlawfully, and
feloniously, with treachery, evident premeditation, and intent to kill, fired at Julio Nalundasan, then
representative-elect for the second district of Ilocos Norte, hitting him in the right side, the bullet having
entered vital internal organs and injuring them, which wounds cause the instant death of said Julio
Nalundasan.

Contrary to law, with the aggravating circumstances of nocturnity and the perpetration of the crime in the
home of the deceased.

Laoag, Ilocos Norte, December 7, 1938.

Provincial Fiscal for Laguna

Witnesses:

DR. RAMON RABAGO, c/o Phil. Army

DR. DOMINGO SAMONTE, c/o Dept. del Interior

The information was submitted to the respondent judge who, after examining prosecution witnesses Calixto
Aguinaldo and Valentin Rubio, on that very day issued the warrant for the arrest of the accused, stating that from the
testimony of these witnesses it was evident that the crime charged had been committed and that the accused had
probably committed it. Being of the opinion that the crime charged was penalized with a capital punishment, and that
the accused were not entitled to bail, the court likewise decreed that the accused remain in detention. At the

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investigation conducted by the respondent judge, where Calixto Aguinaldo and Valentin Rubio testified, the accused
were not present, and the whole proceeding took place in their absence. On December 8, 1938, Mariano Marcos
moved to be admitted to bail. The motion was set for hearing that same afternoon, which was orally opposed by the
fiscal, and without either party adducing any evidence, the motion was submitted. Pio Marcos, Ferdinand Marcos,
and Quirino Lizardo on the 12th also moved to be admitted to bail. This motion was set for hearing on the 20th of
December, 1938, but at the request of the accused, who wanted to file a supplementary motion, the hearing was
postpone till the following day. On December 21st, the four accused filed the supplementary motion, attaching
thereto their sworn statements marked A, B, C and D. Here as in the original motion the accused urgently prayed
that they be released on bail, and in their sworn statements Mariano Marcos, Ferdinand Marcos and Quirino Lizardo
declared that the testimony of Calixto Aguinaldo and Valentin Rubio accusing them of murder was false, and that
they were innocent. On December 21st these motions came up foe hearing before the respondent judge, Fiscal
Macadaeg appearing for the prosecution, and Attorney Vicente J. Francisco for the defense. The latter asked that
the prosecution present its evidence to show that the accused fell within the exception of section 1, paragraph 16,
Article III of the Constitution, and section 63 of General Orders, No. 58, that is, that they were accused of a capital
offense, that the proof of guilt was evident and the presumption of guilt strong. The fiscal refused to do so and
contended that under the law the prosecution was not bound to adduce such evidence, that the judge might take
into account that adduced during the investigation he had made, and that at any rate it was the defense that was
bound to establish the right of the accused to bail. The respondent judge sustained the fiscal and the hearing came
to a close without either party adducing any evidence. The motions having thus been submitted, the respondent
judge on December 29, 1938 issued an order denying them and ruling that the accused Mariano Marcos, Quirino
Lizardo and Pio Marcos were not entitled to bail because they were charged with a capital offense, the proof against
them was evident, and the presumption of guilt strong. Prior to this date they had asked for a preliminary
investigation. The motion to that effect was denied on the ground that the investigation conducted by the respondent
judge before issuing the warrant of arrest was in the nature of a preliminary investigation. Motion for reconsideration
was filed, and on December 27, 1938 this motion was likewise denied, but the judge in the same order admitted
Ferdinand Marcos to bail on the ground that he was under 18 when the crime was committed, that he was a
remarkably bright student of the College of Law in the University of the Philippines, that he would finish his studies
the following March, and that he had given assurances, together with his lawyers, that he would not leave the
Philippines.

As may be seen, the question of law raised by this petition is whether the accused Mariano Marcos, Pio Marcos,
and Quirino Lizardo are entitled to be admitted to bail at this stage of the criminal proceedings, that is, before
conviction. Section 1, paragraph 16, Article III of the Constitution, provides:

(16) All persons shall before conviction be bailable by sufficient sureties, except those charged with capital
offenses when evidence of guilt is strong. Excessive bail shall not be required.

Section 63 of General Orders, No. 58, provides:

SEC. 63. 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.

Section 63 of General Orders, No. 58, does not run counter to section 1, paragraph 16, Article II of the Constitution,
since in this jurisdiction every accused person is bailable before conviction, unless charged with a capital offense,
when proof of guilt is evident and presumption of guilt strong (U. S. vs. Babasa, 19 Phil., 198; Montalbo vs.
Santamaria, 54 Phil., 955). When the crime charged is a capital offense, admission to bail lies within the discretion
of the court, and defends upon whether the proof is evident and the presumption of guilt strong (Montalbo vs.
Santamaria, supra).

When the motions filed by the three accused came up for trial, counsel asked that the prosecution adduce its
evidence to show whether they fell within the exception, and whether or not they were entitled to bail; but the court
upheld the prosecution and declared that the burden of proof was on the accused to show that they were entitled to
bail. The controversy thus gave to rise to the legal question as to which side bears the burden of proof in such
cases. Section 66 of General Orders, No. 58, provides:

SEC. 66. 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 promotor fiscal.

It will be seen that this section provides for a hearing of the application for bail it says nothing about the party bound
to prove the right to bail. The prosecution contends that the burden of proof lies on the accused because they must
prove their affirmative allegation that they are entitled to bail and because the filing of the information sets up the
presumption of their guilt. The defense contends that since it is the exception to the rule that the accused are not
entitled to bail, it is the prosecution, and not the accused, which is bound to prove it.

In the States of the Union there are two tendencies or theories touching the onus probandi where there is a petition
to be admitted to bail before conviction of the accused. In some State it has been held that the burden of proof lies
on the accused who asked to be admitted to bail because the filing of the indictment raises the presumption of guilt
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and that the proof against the accused is evident or clear (8. C. J. S., sec. 34, p. 61; McAdams vs. State, 147 N. E.,
764; 196 Ind., 184; Ex parte Cooper, 45 P. [2d], 584). In Shaw vs. State (47 S. W. [2d], 92; 164 Tenn., 192), the
Supreme Court of Tennessee held that in the absence of proof by the petitioner that he is bailable for a capital
offense, the indictment raises the presumption of guilt required by the constitutional provision regarding bail. In State
vs. Kutcher (129 A., 632; 3 N. J., Misc., 636), the Supreme Court of New Jersey held that although the indictment
does not raise the presumption of guilt sufficient for the trial on the merits, it does raise that presumption for all
intermediate proceedings, such as a petition to be admitted to bail. In State vs. Lowe (86 So., 707; 204 Ala., 288),
the Supreme Court of the State held that a person under an indictment for a capital offense is presumed guilty to the
extent of not being entitled to release on bail.

In other States it has been held that in the petitions for admission to bail the burden of proof to show that the
accused is not bailable lies on the prosecution (8 C. J. S., sec. 34, p. 61; 6 Am. Jur., par. 25, p. 59; Ford vs. Dilley,
156 N. W., 513; 174 Ia., 243; Ex parte Johnson, 280 S. W., 702; Ex parte Dumas, 7 S. W. [2d], 90; 110 Tex. Cr., 1 Ex
parte Fleming, 261 S. W., 1037; 97 Tex. Cr., 304; Commonwealth vs. Stahl, 35 S. W. [2d], 563; 237 Ky., 388; Ex
parte Readhimer, 60 S. W. [2d], 788; 123 Tex. Cr., 635; Ex parte Martin, 45 S. W. [2d], 965; 119 Tex cr., 141; Ex
parte Landers, 9 S. W. [2d], 1106; Tex. Cr., 604; Ex parte Crawford, 265 S. W., 906; 98 Tex Cr., 289; Ex parte
Townsley, 220 S. W., 1092; 87 Tex. Cr., 252). In Ford vs. Dilley, supra, the Supreme Court of Iowa held that at a
hearing regarding bail the State must begin to adduce evidence if it denies that the offense is bailable. It was stated
that since according to the provisions of law the rule is that the accused is bailable, and the exception is that he
cannot be admitted to bail, the burden of proving that a case falls within the exception lies on the prosecution
opposing the grant of bail.

As may be seen, the fundamental reason the courts had in holding that the accused must prove his right to bail is
the presumption of guilt arising from the filing of the indictment. It has further been said that the filing of the
indictment likewise destroys the presumption of innocence in favor of the accused. If this theory has some
persuasive force, it is due to the procedural system followed is nearly all the States of the Union for securing the
indictment. There the district attorney gathers the evidence for the prosecution and presents it before the Grand
Jury, which, after examining it, deliberates upon whether or not to present the indictment. This indictment is
presented only after the injury is morally convinced that the crime has been committed and that the accused is
guilty. In this jurisdiction there is no jury, and the evidence for the prosecution is gathered and organized by the
fiscal, who later files the information. Undoubtedly the legal requirement that the indictment be presented by the jury
aims at surrounding the citizen with greater guarantees before being molested with his arrest, preliminary
investigation, trial, and the consequent expenses of his defense. This guarantee in favor of the citizen does not exist
in our jurisdiction, because we have no jury, for which reason we incline towards the second theory that the filing of
the information does not raise the presumption of guilt or destroy the presumption of the defendant's innocence
provided for in section 57 of General Orders, No. 58. We therefore hold that when a person accused of a capital
offense asks to be admitted to bail before conviction, the burden of proof lies, not on him, but on the prosecution to
show that he is not bailable.

It is argued that the respondent judge, before issuing the warrant for the arrest of the accused, examined the two
witnesses for the prosecution presented by the fiscal, and that their testimony raised the presumption of the
defendants' guilt and supplied the further requirement that proof of guilt must be evident. We cannot give our assent
to this connection. It ought not to be forgotten that such testimony was taken in the absence of the accused, and
that the latter had no opportunity to see the witnesses testify or to cross-examine them. We are not unmindful of the
fact that in People vs. Solon (47 Phil., 443), and in Payao vs. Lesaca (63 Phil., 210), we said that when the
investigation of a criminal case is conducted by a judge of first instance, it includes both the summary investigation
spoken of in Act No. 194, as amended by Acts Nos. 1450 and 1627, and the preliminary investigation referred to in
section 13 of General Orders, No. 58; and we are aware of the contention of the prosecution that applying the
doctrine laid down in those two cases, the evidence adduced before the respondent judge could be used against the
accused and in fact established the presumption of guilt. But it must be borne in mind that the hearing required by
section 66 of General Orders, No. 58, is essentially different from the preliminary investigation to which every person
is entitled who is accused of a crime triable before the Court of First Instance, and that if the prosecution had
intended the summary investigation conducted by the respondent judge to be a preliminary investigation, its duty
was to summon the accused and adduce its evidence in their presence. Other reasons preventing the consideration
of such evidence against the accused are: that the fiscal did not reproduce or offer it at the hearing of the petitions
for bail; and that in the sworn statements which the accused attached to their supplementary motion, they denied
the imputation of guilt, and rebutted the testimony of Calixto Aguinaldo and Valentin Rubio, which they described as
false and improbable. In these circumstances it was the duty of the respondent judge, to require the fiscal to adduce
his evidence in order to show that the crime charged was capital, that the proof was evident, and the presumption of
guilt strong.

Although the petition filed is entitled certiorari and prohibition, we consider that the proper relief is only the first, since
there is no allegation or ground for invoking the second. Certiorari lies in this case because the respondent judge
exceeded, as we have pointed out, the discretion conferred upon him by law (section 217, Code of Civil Procedure;
De Castro and Morales vs. Justice of the Peace of Bocaue, 33 Phil., 595; Valdez vs. Querubin, 37 Phil., 774; Leung
Ben vs. O'Brien, 38 Phil., 182; Salvador Campos y Cia. vs. Del Rosario, 41 Phil., 45; Larrobis vs. Wislizenus and

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Smith, Bell & Co., 42 Phil., 401; Encarnacion and Navarro vs. Sheriff of Rizal, 63 Phil., 467; Carreon vs. Buyson
Lampa, 63 Phil., 449).

Wherefore, let the writ of certiorari issue and the order of December 29, 1938 denying bail to the accused Mariano
Marcos, Pio Marcos, and Quirino Lizardo be set aside. The respondent judge, or whoever acts in his stead, shall set
the petitions filed by these accused regarding bail for hearing, at which the fiscal should prove that they fall within
the exception and are therefore not entitled to bail because they are charged with a capital offense, the proof is
evident, and the presumption of their guilt is strong. The evidence thus adduced may be rebutted by the accused
with other evidence to show their right. Without special award of costs. So ordered.

Avanceña, C. J., Villa-Real, Diaz, Concepcion, and Moran, JJ., concur.

The Lawphil Project - Arellano Law Foundation

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