482 Phil. 795
CARPIO MORALES, J.:
There is no question that the charge filed against the accused is Homicide, which is a bailable offense. Indeed, the accused posted his bail and was approved by the Court. The accused was given temporary liberty.On respondent’s return from the seminar in Baguio City and apprised of the grant by Judge Anghad of the “Motion for the Release of Accused” in her absence, she issued on October 29, 2002 an order setting aside the order of Judge Anghad which granted complainant’s “Motion for the Release of Accused” and setting to November 5, 2002 the hearing of said motion, along with the Motion to Inhibit her which was also filed.
A perusal of the arguments raised by the accused, thru counsel, convinced this Court that the accused should not have been detained. With due respect to the position taken by the Executive Judge, this Pairing Judge is of the considered view that until and after the charge of Homicide is amended, or a new charge of Murder is filed by the prosecution, the official Information of Homicide so filed by the prosecution dated July 19, 2002, should remain as the proper Information. For obvious reasons, this Court defers to the wide discretion of the prosecution in the filing of charges against suspects. Unless tainted with abuse of discretion or judgment, the Court, normally cannot interfere into the terrain of the prosecution.
Besides, there was an urgent motion to reset and defer the arraignment of the accused filed by the Private Prosecutor, Atty. Nicasio Bautista III, and this fact was noted by the Court when it issued the October 21, 2002 Order. This should have been a caution for the Court that the private prosecutor is also in accord with the resolution of the City Prosecution regarding the filing of Homicide. Declaring the offense charged to be non-bailable, the accused should have been given his day in court to rebut and traverse what the prosecution, thru Private Prosecutor, orally manifested on October 21, 2002.
Finding the urgent motion filed by the accused, thru counsel Atty. Pedro R. Perez, Jr., to be justified and in order, and with due respect to the Order of Detention issued by the Honorable Executive Judge Fe Albano Madrid, this Pairing Judge finds that there is basis in ordering the release of the accused from further detention. This order shall take effect immediately upon receipt of this Order considering that on record his bail ofP40,000.00 has not been increased revoked or disapproved.
If by this order of release it takes the ire of the Honorable Fe Albano Madrid, then so be it but this judge would not harbor any ill feeling or personal grudge. This judge did it, based from his conscience and based from legal grounds. (Underscoring supplied)
Indeed the accused is charged with homicide but it is also alleged in the body of the information that he killed Andrew Ancheta a 16-year old minor with an unlicensed firearm. The accused conceded that the use of an unlicensed firearm is an aggravating circumstance in homicide but insists that there is no change in the penalty.Respondent denied too the Motion to Inhibit her.
Republic Act 8294 which took effect on July 6, 1997 provides that if homicide or murder is committed with the use of an unlicensed firearm, such use shall be considered as an special aggravating circumstance. With the enactment of Republic Act 8294 which amended P.D. 1866 the use of an unlicensed forearm is no longer distinct and separate offense but a special aggravating circumstance such that penalty for homicide or murder with the use of an unlicensed firearm was increased from reclusion temporal to reclusion perpetua to death. (Underscoring supplied)
“[t]he violation of the constitutional and legal rights of the Complainant by the Respondent Judge, taken together with the palpable mistakes in the application of fundamental legal principles, utter disregard of the rights of the Petitioner, showing bias, partiality, and abuse of authority, and the errors in the appreciation and interpretation of laws and jurisprudence.”In the meantime, the CA, which issued a writ of Habeas Corpus,[8] granted complainant’s petition by Decision of June 25, 2003,[9] it holding that since complainant was not charged with a capital offense or one which, under the law at the time of its commission and at the time of application for bail, is punishable by reclusion perpetua and the evidence of guilt is strong, bail was a matter of right.
That on or about the 3rd day of July 2002 in the City of Santiago (Isabela), Philippines, and within the jurisdiction of this Honorable Court, the above-named accused did then and there, willfiully, unlawfully and feloniously, and with intent to kill Andrew Ancheta a sixteen-year old minor, assault, attack and wound the said Andrew Ancheta with an unlicensed firearm thereby inflicting upon him a gunshot wound on his face which directly caused the death of the said Andrew Ancheta (Underscoring supplied),[11]respondent explains: Since the victim was a minor, the case was immediately sent by the Officer-in-Charge Clerk of Court to her sala which is the designated Family Court in RTC Santiago City. On noting that the information alleged that the accused-herein complainant did “assault, attack and wound” the minor victim with the use of an unlicensed firearm, she wondered why the designation of crime was Homicide in light of her belief that the killing was qualified by abuse of superior strength. Respondent amplifies:
In its Resolution the prosecution did not find the presence of treachery. I did not even think of questioning this but treachery is not only the qualifying circumstance to elevate homicide to murder. Certainly there are others such as abuse of superior strength (Article 248, No. 1, Revised Penal Code). When the prosecution made a finding that the accused did “assault, attack and wound” the minor victim with the use of unlicensed firearm does it not mean that there was abuse of superior strength. Can it not be said that the assault and attack of a child with the use of a gun is inherently murder notwithstanding that the prosecution refuse[d] to call it as such. Ordinarily there is no need to assault and attack a child with the use of a firearm. Harsh words or the fist is enough to cow and chastise a child and he could not fight back.
The judge wondered. What will prevail? The name given to the crime or the allegations of the information on how the crime was committed. It has been held many times that it is the allegations of the information that controls (sic).
To best illustrate what happens sometimes. An information for child abuse is filed wherein it is alleged that the accused whipped a child which caused injury to him. What really is the crime charged? Is it slight physical injuries or child abuse. It is my humble opinion that the crime is only slight physical injuries because the element of prejudice to the child’s development is not alleged in the information. Can the judge allow the accused his liberty on recognizance considering that slight physical injuries is a light offense or exact the recommended bailbond ofP20,000.00 or more because the penalty for child abuse is prision mayor minimum (Sect. 10, R.A. 7610)? For whatever action the judge takes, can he be administratively charged with gross misconduct?
To illustrate another situation. An information for acts of lasciviousness was filed alleging that the accused inserted his penis into the mouth of the child. What is the crime? Is it acts of lasciviousness or rape under R.A. 8353? How about an information itself states that the taking of the property was through force ad intimidation? What is the crime? Is it theft or robbery?
How does a judge act when confronted with these situations? Shall the judge follow the safe and even path, remain passive and wait what will happen. Or shall he do something to correct any errors that might result in the miscarriage or worst, mockery of justice. Wouldn’t judges be a little more aggressive and innovative. Would not the judge be a little creative to remedy such procedural mistakes or irregularities that might result in the imbalance of justice?
In this particular case would I allow the accused to be free because of a defect in the designation of the crime as homicide when in fact the allegations of the information on how the crime was committed shows that it is murder, even if the exact words of “use of superior strength” was not used?[12] (Underscoring and emphasis supplied)
x x x
- After a preliminary investigation was conducted by the Office of the City Prosecutor, an information was filed on July 19, 2003 against the complainant only. His companion who he said was a confidential agent of the NBI was exonerated based on the complainants counteraffidavit. On that same day that the information was filed the complainant posted his bailbond which the respondent approved in the course of her routine work.
- After the release of the complainant from detention, there was a feeling of outrage in the community and the release of the accused became an issue as it seems that everyone wants to know why the complainant was released. This prompted the respondent to review the records of the case. It was then that the respondent realized that the information was coached in ambiguity. It seemed that there was an effort made to enable the accused to post bail.
x x x
- I just felt that I could not condone much less contribute to an injustice. In our seminars as judges of Family Courts we were always prodded to be more vigilant, active and innovative in the protection of the rights of children. I guess I found a chance to heed such proddings.
- I issued my questioned order for the detention of the accused. I wanted to force the issue with the prosecution for them to state whether the circumstance of abuse of superior strength was present or not considering their express finding that there was assault committed by the accused complainant and his NBI companion (who they exonerated) when they shot the minor victim with their unlicensed firearm.
x x x
Respondent supposes that the paramount question now in the minds of the Honorable Supreme Court is why did not I mention the issue of abuse of superior strength in my questioned order. It was because there was a motion for reconsideration filed by the complainants with the Office of the Prosecutor. I did not think it wise then to give any ideas to any of the parties. All I wanted was to force the issue with the prosecutor.
As respondent said in the beginning the above narration of events are extrenuous matters. But perhaps in a way they might explain why I sincerely and humbly believe that I did not abuse my discretion. I only tried to balance the scales of justice. It might prove to be disadvantageous to me. I only beg for understanding. (Underscoring supplied)
Art. 248. Murder. - Any person who, not falling within the provisions of Article 246 shall kill another, shall be guilty of murder and shall be punished by reclusion perpetua to death, if committed with any of the following attendant circumstances:As said Art. 248 of the Revised Penal Code provides, the killing of another shall be guilty of murder when committed with any of the therein enumerated attendant circumstances, one of which is taking advantage of superior strength.
- With treachery, taking advantage of superior strength, with the aid of armed men, or employing means to weaken the defense or means or persons to insure or afford impunity.
- In consideration of a price, reward or promise.
- By means of inundation, fire, poison, explosion, shipwreck, stranding of a vessel, derailment or assault upon a railroad, fall of an airship, or by means of motor vehicles, or with the use of any other means involving great waste and ruin.
- On occasion of any of the calamities enumerated in the preceding paragraph, or of an earthquake, eruption of a volcano, destructive cyclone, epidemic, or any other public calamity.
- With evident premeditation.
- With cruelty, by deliberately and inhumanly augmenting the suffering of the victim, or outraging or scoffing at his person or corpse. (Underscoring and italics supplied)
Rules for the application of penalties which contain three periods.x x x
(3) When only an aggravating circumstance is present in the commission of the act, they shall impose the penalty in its maximum period.x x x