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[No. L-12871. July 25, 1959]

TIMOTEO V. CRUZ, petitioner, vs. FRANCISCO G. H.

SALVA, respondent.

1. CRIMINAL PROCEDURE; PRELIMINARY

INVESTIGATION; AUTHORITY OF THE FlSCAL TO
REINVESTIGATE WHILE CASE IS PENDING APPEAL;
CASE AT BAR.—Ordinarily, when a criminal case in
which a fiscal intervened though nominally, is tried and
decided and it is appealed to a higher court, the functions
and actuations of said fiscal have terminated; usually, the
appeal is handled for the government by the Solicitor
General. Consequently, there would be no reason or
occasion for said fiscal to conduct a reinvestigation to
determine criminal responsibility for the crime involved in
the appeal. In the present case, however, one of the
defendants was not included in the trial much less in the
judgment for the reason that he was arrested only after
the trial against the other accused had commenced, even
after the prosecution had rested its case and the defense
had begun to present its evidence. Naturally, this
defendant remained to stand trial. Therefore, insofar as
this defendant is concerned, the Fiscal was warranted in
holding the preliminary investigation involved in this
case.

2. ID.; ID.; ACCUSED MAY NOT BE COMPELLED TO

ATTEND INVESTIGATION.—While it is the right of the
accused to be present at the preliminary investigation,
however, such right may be renounced, and if the accused
object to appear at said investigation, he can not be
compelled to do so.

3. ID.; ID.; GIVING WIDE PUBLICITY AND

SENSATIONALISM TO INVESTIGATION
CONSTITUTES CONTEMPT OF COURT.—In the case at
bar, while the Provincial Fiscal has established a
justification for his reinvestigation of the case although
the same is on appeal and pending consideration by this
Tribunal, however, said Fiscal committed a grievous error
and poor judgment when he

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Cruz vs. Salva

allowed, even encouraged, the reinvestigation to be

conducted with much fanfare, publicity and
sensationalism. Such actuations of the Fiscal constitute
contempt of court punishable by public censure.

ORIGINAL ACTION in the Supreme Court. Certiorari and

Prohibition with Preliminary Injunction.
The facts are stated in the opinion of the Court.
Baizas & Balderrama for petitioner.
City Attorney Francisco G. H. Salva in his own behalf.

MONTEMAYOR, J.:

This is a petition for certiorari and prohibition with

preliminary injunction filed by Timoteo V. Cruz against
Francisco G. H. Salva, in his capacity as City Fiscal of
Pasay City, to restrain him from continuing with the
preliminary investigation he was conducting in September,
1957 in connection with the killing of Manuel Monroy
which took place on June 15, 1953 in Pasay City. To better
understand the present case and its implications, the
following facts gathered from the pleadings and the
memoranda filed by the parties, may be stated.
Following the killing of Manuel Monroy in 1953 a
number of persons were accused as involved and implicated
in said crime. After a long trial, the Court of First Instance
of Pasay City found Oscar Castelo, Jose de Jesus, Hipolito
Bonifacio, Bienvenido Mendoza, Francis Berdugo and
others guilty of the crime of murder and sentenced them to
death. They all appealed the sentence although without
said appeal, in view of the imposition of the extreme
penalty, the case would have to be reviewed automatically
by this Court. Oscar Castelo sought a new trial which was
granted and upon retrial, he was again found guilty and his
former conviction of sentence was affirmed and reiterated
by the same trial court.
It seems that pending appeal, the late President
Magsaysay ordered a reinvestigation of the case. The
purpose
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Cruz vs. Salva

of said reinvestigation does not appear in the record.

Anyway, intelligence agents of the Philippine Constabulary
and investigators of Malacañang conducted the
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investigation for the Chief Executive, questioned a number

of people and obtained what would appear to be confession,
pointing to persons, other than those convicted and
sentenced by the trial court, as the real killers of Manuel
Monroy.
Counsel for Oscar Castelo and his co-defendants wrote
to respondent Fiscal Salva to conduct a reinvestigation of
the case presumably on the basis of the affidavits and
confessions obtained by those who had investigated the
case at the instance of Malacañang. Fiscal Salva conferred
with the Solicitor General as to what steps he should take.
A conference was held with the Secretary of Justice who
decided to have the results of the investigation by the
Philippine Constabulary and Malacañang investigators
made available to counsel for the appellants.
Taking advantage of this opportunity, counsel for the
appellants filed a motion for new trial with this Tribunal
supporting the same with the so-called affidavits and
confessions of some of those persons investigated, such as
the confessions of Sergio Eduardo y de Guzman, Oscar
Caymo, Pablo Canlas, and written statements of several
others. By resolution of this Tribunal, action on said motion
for new trial was deferred until the case was studied and
determined on the merits. In the meantime, the Chief,
Philippine Constabulary, had sent to the Office of Fiscal
Salva copies of the same affidavits and confessions and
written statements, of which the motion for new trial was
based, and respondent Salva proceeded to conduct a
reinvestigation designating for said purpose a committee of
three composed of himself as chairman and Assistant City
Attorneys Herminio A. Avendañio and Ernesto A. Bernabe
In connection with said preliminary investigation being
conducted by the committee, petitioner Timoteo Cruz was
subpoenaed by respondent to appear at his office on
September 21, 1957, to testify "upon oath before me in a

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Cruz vs. Salva

certain criminal investigation to be conducted at that time

and place by this office against you and Sergio Eduardo, et
al., for murder." On September 19, 1957, petitioner Timoteo
Cruz wrote to respondent Salva asking for the transfer of
the preliminary investigation from September 21, due to
the fact that his counsel, Atty. Crispin Baizas, would
attend a hearing on that same day in Naga City. Acting
upon said request for postponement, Fiscal Salva set the
preliminary investigation on September 24. On that day,
Atty. Baizas appeared for petitioner Cruz, questioned the
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jurisdiction of the committee, particularly respondent

Salva, to conduct the preliminary investigation in view of
the fact that the same case involving the killing of Manuel
Monroy was pending appeal in this Court, and on the same
day filed the present petition for certiorari and prohibition.
This Tribunal gave due course to the petition for certiorari
and prohibition and upon the filing of a cash bond of
P200.00 issued a writ of preliminary injunction thereby
.stopping the preliminary investigation being conducted by
respondent Salva.
The connection, if any, that petitioner Cruz had with the
preliminary investigation being conducted by respondent
Salva and his committee was that the affidavits and
confessions sent to Salva by the Chief, Philippine
Constabulary, and which were being investigated,
implicated petitioner Cruz, even picturing him as the
instigator and mastermind in the killing of Manuel
Monroy.
The position taken by petitioner Cruz in this case is that
inasmuch as the principal case of People vs. Oscar Castelo,
et al., G. R. No. L-10794, is pending appeal and
consideration before us, no court, much less a prosecuting
attorney like respondent Salva, had any right or authority
to conduct a preliminary investigation or reinvestigation of
the case for that would be obstructing the administration of
justice and interferring with the consideration on appeal of
the main case wherein appellants had been found guilty
and convicted and sentenced; neither had respondent au-
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Cruz vs. Salva

thority to cite him to appear and testify at said

investigation.
Respondent Salva, however, contends that if he
subpoenaed petitioner Cruz at all, it was because of the
latter's oral and personal request to allow him to appear at
the investigation with his witnesses for his own protection,
possibly, to controvert and rebut any evidence therein
presented against him. Salva claims that were it not for
this request and if, on the contrary, Timoteo Cruz had
expressed any objection to being cited to appear in the
investigation he (Salva) would never have subpoenaed him.
Although petitioner Cruz now stoutly denies having
made such request that he be allowed to appear at the
investigation, we are inclined to agree with Fiscal Salva
that such a request had been made. Inasmuch as he,
Timoteo Cruz, was deeply implicated in the killing of
Manuel Monroy by the affidavits and confessions of several
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persons who were being investigated by Salva and his

committee, it was but natural that petitioner should have
been interested, even desirous of being present at that
investigation so that he could face and cross examine said
witnesses and affiants when they testified in connection
with their affidavits or confessions, either repudiating,
modifying or ratifying the same. Moreover, in the
communication, addressed to respondent Salva asking that
the investigation, scheduled for September 21, 1957, be
postponed because his attorney would be unable to attend,
Timoteo Cruz expressed no opposition to the subpoena, not
even a hint that he was objecting to his being cited to
appear at the investigation.
As to the right of respondent Salva to conduct the
preliminary investigation which he and his committee
began, ordinarily, when a criminal case in which a fiscal
intervened though nominally, for according to respondent,
two government attorneys had been designed by the
Secretary of Justice to handle the prosecution in the trial of
the case in the court below, is tried and decided and it is
appealed

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Cruz vs. Salva

to a higher court such as this Tribunal, the functions and

actuations of said fiscal have terminated; usually, the
appeal is handled for the government by the Office of the
Solicitor General. Consequently, there would be no reason
or occasion for said fiscal to conduct a reinvestigation to
determine criminal responsibility for the crime involved in
the appeal.
However, in the present case, respondent has, in our
opinion, established a justification for his reinvestigation
because according to him, in the original criminal case
against Castelo, et al., one of the defendants named
Salvador Realista y de Guzman was not included in the
trial much less in the judgment for the reason that he was
arrested and was placed within the jurisdiction of the trial
court only after the trial against the other accused had
commenced, even after the prosecution had rested its case
and the defense had begun to present its evidence.
Naturally, Realista remained to stand trial. The trial court,
according to respondent, at the instance of Realista, had
scheduled the hearing at an early date, that is in August,
1957. Respondent claims that before he would go to trial in
the prosecution of Realista he had to chart his course and
plan of action, whether to present the same evidence, oral
and documentary, presented in the original case and trial,
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or, in view of the new evidence consisting of the affidavits

and confessions sent to him by the Philippine
Constabulary, he should first assess and determine the
value of said evidence by conducting an investigation and
that should he be convinced that the persons' criminally
responsible for the killing of Manuel Monroy were other
than those already tried and convicted, like Oscar Castelo
and his co-accused and co-appellants, including Salvador
Realista, then he might act accordingly and even
recommend the dismissal of the case against Realista.
In this, we are inclined to agree with respondent Salva.
For, as contended by him and as suggested by authorities,

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Cruz vs. Salva

the duty and role of a prosecuting attorney is not only to

prosecute and secure the conviction of the guilty but also to
protect the innocent.

"We cannot overemphasize the necessity of close scrutiny and

investigation of prosecuting officers of all cases handled by them,
but whilst this court is averse to any form of vacillation by such
officers in the prosecution of public offenses, it is unquestionable
that they may, in appropriate cases, in order to do justice and
avoid injustice, reinvestigate cases in which they have already
filed the corresponding informations. In the language of Justice
Sutherland of the Supreme Court of the United States, the
prosecuting officer "is the representative not of an ordinary party
to a controversy, but of a sovereignty whose obligation to govern
impartially is as compelling as its obligation to govern at all; and
whose interest, therefore, in a criminal prosecution is not that it
shall win a case, but that justice shall be done. As such, he is in a
peculiar and very definite sense the servant of the law, the
twofold aim of which is that guilt shall not escape nor innocent
suffer. He may prosecute with earnestness and vigor—indeed, he
should do so. But, while he may strike hard blows, he is not at
liberty to strike foul ones. It is as much his duty to refrain from
improper methods calculated to produce a wrongful conviction as
it is to use every legitimate means to bring about a just one." (69
United States Law Review, June, 1935, No. 6, p. 309, cited in the
case of Suarez vs. Platon, 69 Phil., 556).

With respect to the right of respondent Salva to cite

petitioner to appear and testify before him at the scheduled
preliminary investigation, under the law, petitioner had a
right to be present at that investigation since as was
already stated, he was more or less deeply involved and
implicated in the killing of Monroy according to the affiants
'whose confessions, affidavits and testimonies respondent
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Salva was considering or was to consider at said

preliminary investigation. But he need not be present at
said investigation because his presence there implies, and
was more of a right rather than a duty or legal obligation.
Consequently, even if, as claimed by respondent Salva,
petitioner expressed the desire to be given an opportunity
to be present at the said investigation, if he later changed
his mind and renounced his right, and even strenuously
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objected to being made to appear at said investigation, he

could not be compelled to do so.
Now we come to the manner in which said investigation
was conducted by the respondent. If, as contended by him,
the purpose of said investigation was only to acquaint
himself with and evaluate the evidence involved in the
affidavits and confessions of Sergio Eduardo, Cosme Camo
and others by questioning them, then he, respondent, could
well have conducted the investigation in his office, quietly,
unobtrusively and without much fanfare, much less
publicity.
However, according to the petitioner and not denied by
the respondent, the investigation was conducted not in
respondent's office but in the session hall of the Municipal
Court of Pasay City evidently, to accommodate the big
crowd that wanted to witness the proceeding, including
members of the press. A number of microphones were
installed. Reporters were everywhere and photographers
were busy taking pictures. In other words, apparently with
the permission of, if not the encouragement by the
respondent, news photographers and newsmen had a field
day. Not only this, but in the course of the investigation, as
shown by the transcript of the stenographic notes taken
during said investigation, on two occasions, the first, after
Oscar Caymo had concluded his testimony, respondent
Salva, addressing the newspapermen said, "Gentlemen of
the press, if you want to ask questions I am willing to let
you do so and the questions asked will be reproduced as my
own"; and the second, after Jose Maratella y de Guzman
had finished testifying and respondent Salva, addressing
the newsmen, again said, "Gentlemen of the press is free to
ask question to the witness if you want to. We are willing
to adopt the questions as ours." Why respondent was
willing to abdicate and renounce his right and prerogative
to make and address the questions to the witnesses under
investigation, in favor of the members of the press, is
difficult for us to understand, unless he,
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respondent, wanted to curry favor with the press and

publicize his investigation as much as possible.
Fortunately, the gentlemen of the press to whom he
accorded such unusual privilege and favor appeared to
have wisely and prudently declined the offer and did not
ask questions, this according to the transcript now before
us.
But, the newspapers certainly played up and gave wide
publicity to what took place during the investigation, and
this involved headlines and extensive recitals, narrations of
and comments on the testimonies given by the witnesses as
well as vivid descriptions of the incidents that took place
during the investigation. It seemed as though the criminal
responsibility for the killing of Manuel Monroy which had
already been tried and finally determined by the lower
court and which was under appeal and advisement by this
Tribunal, was being retried and redetermined in the press,
and all with the apparent placet and complaisance of
respondent.
Frankly, the members of this Court were greatly
disturbed and annoyed by such publicity and
sensationalism, all of which may properly be laid at the
door of respondent Salva. In this, he committed what we
regard a grievous error and poor judgment for which we fail
to find any excuse or satisfactory explanation. His
actuations in this regard went well beyond the bounds of
prudence, discretion and good taste. It is bad enough to
have such undue publicity when a criminal case is being
investigated by the authorities, even when it is being tried
in court; but when said publicity and sensationalism is
allowed, even encouraged, when the case is on appeal and
is pending consideration by this Tribunal, the whole thing
becomes inexcusable, even abhorrent, and this Court, in
the interest of justice, is constrained and called upon to put
an end to it and a deterrent against its repetition by
meeting an appropriate disciplinary measure, even a
penalty to the one liable.
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Curilan et al. vs. Court of Appeals, et al.

Some of the members of the Court who appeared to feel

more strongly than the others favored the imposition of a
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more or less severe penal sanction. After mature

deliberation, we have finally agreed that a public censure
would, for the present, be sufficient.
In conclusion, we find and hold that respondent Salva
was warranted in holding the preliminary investigation
involved in this case, insofar as Salvador Realista is
concerned, for which reason the writ of preliminary
injunction issued stopping said preliminary investigation,
is dissolved; that in view of petitioner's objection to appear
and testify at the said investigation, respondent may not
compel him to attend said investigation, for which reason,
the subpoena issued by respondent against petitioner is
hereby set aside.
In view of the foregoing, the petition for certiorari and
prohibition is granted in part and denied in part.
Considering the conclusion arrived at by us, respondent
Francisco G. H. Salva is hereby publicly reprehended and
censured for the uncalled for and wide publicity and
sensationalism that he had given to and allowed in
connection with his investigation, which we consider and
find to be contempt of court; and, furthermore, he is
warned that a repetition of the same would meet with a
more severe disciplinary action and penalty. No costs.

Parás, C. J., Bengzon, Padilla, Bautista Angelo,

Labrador, Concepción, Endencia, and Barrera, JJ., concur.

Petition for certiorari and prohibition granted in part

and denied in part.

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