G.R. No. L-6177




Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-6177 April 29, 1953 GABINO LOZADA and ISIDRO LOZADA, petitioner, vs. HONORABLE FERNANDO HERNANDEZ, ETC., ET AL., respondents. Vicente Abalajon for petitioners. First Assistant Solicitor General Ruperto Kapunan, Jr. and Solicitor Pacifico P. de Castro for respondents. REYES, J.: This is a petition for certiorari to annul an order of the Court of First Instance of Capiz denying petitioner's motion to dismiss an information against them for robbery with homicide. It appears that on July 1, 1952, the provincial fiscal of Capiz filed an information in that court, charging the petitioners with the crime of robbery with homicide, the fiscal certifying under oath that he had conducted a proper preliminary investigation of the case on the 27th of the preceding month. arrested on the strength of this information petitioners asked the court to fix the amount of their bail, and the court did so on July 16. Some three weeks thereafter petitioners were arraigned, and they then pleaded not guilty. This they did with the assistance of counsel. With trial scheduled for August 20 but postponed to September 19 at their own request, petitioners moved to have the case against them dismissed on the grounds that they had been deprived of their right to a preliminary investigation without due process of law, and when this motion was denied, they brought the present action for certiorari. There is no question that before filing the information the provincial fiscal conducted an investigation as the law requires. But petitioners contended that they were not given the right to participate in that investigation for they were even notified thereof. It has said time and again that a preliminary investigation is not property a trial or any part thereon but is merely preparatory thereto, its only purpose being to determine whether a crime had been committed and whether there is probably cause to believe the accused guilty thereof. (U.S. vs. Yu Tuico, 34 Phil., 209; People vs. Badilla, 48 Phil., 716). The right to such investigation is not a fundamental right guaranteed by the constitution. At most, it is statutory. (II Moran, Rules of Court, 1952 ed., p. 673).And rights conferred upon accused persons to participate in preliminary investigation concerning themselves depend upon the provisions of law by which such rights are specifically secured, rather than upon the phrase "due process of law". (U.S. vs. Grant and Kennedy, 18 Phil., 122). At present the law conferring upon the accused the right to participate in the preliminary investigation is contained in section 1687 of the Revised Administrative Code, as amended by Section 2 of Republic Act No. 732, approved on June 18, 1952. It says: SEC. 1687. Authority of Fiscal to conduct investigation in criminal matter. — A provincial fiscal shall have authority to conduct investigation into the matter of any crime or misdemeanor and have the necessary information or complaint prepared or made against persons charged with the commission of the same. If the offense charged falls within the original jurisdiction of the Court of First Instance, the defendant shall not be entitled as a matter of right to preliminary investigation in any case where the provincial fiscal himself, after due investigation of the facts made in the presence of the accused if the latter so requested, shall have presented an information against him in proper form and certified under oath by the said provincial fiscal that he conducted a proper preliminary investigation. To this ends he may, with due notice to the accused, summon reputed witnesses and require them to appear before him and testify and be cross-examined under oath by the accused upon the latter's request. The attendance or evidence of absent or recalcitrant witnesses who may be summoned or whose testimony may be required by the provincial fiscal under the authority herein conferred shall be enforced by proper process upon application to be made by the provincial fiscal to any Judge of First Instance of the Judicial Districts. But no witness summoned to testify under this section shall be compelled to give testimony to incriminate himself. The petitioners construe the above provision as requiring the provincial fiscal conducting the preliminary investigation to give notice thereof to the accused so that he could be present thereat. The Solicitor General, on his part, contend that such notice is required only after the accused has requested to be present at the investigation, for "To hold that the provincial fiscal is required to give notice to the accused before conducting the investigation would make it impossible for him to conduct such investigation in cases where the whereabouts of the accused is unknown, since the law has not provided for notice by publication, nor allows him to dispense with such notice in a case similar to that just mentioned." There is weight to this reasoning. And in any event, even supposing that petitioner had aright to be notified of the preliminary investigation so that they could participate", such right was waived when they pleaded not guilty upon arraignment. For it is now settled that the right to preliminary investigation is waived by failure to claim it before the accused pleads not guilty. (People vs. Magpale, 70 Phil., 176; People vs. Solon, 47 Phil., 443.). In view of the foregoing, the petition is denied, with costs against the petitioners. Paras, C.J., Feria, Pablo, Bengzon, Tuason, Montemayor, Jugo, Bautista Angelo and Labrador, JJ., concur. The Lawphil Project - Arellano Law Foundation