EN BANC
G.R. No. L-24652 September 30, 1970
JAIME BANDIALA and GABRIEL ANDAYA, petitioners,
vs.
THE COURT OF FIRST INSTANCE OF MISAMIS OCCIDENTAL, presided by the HON. MARIANO A. ZOSA and HON. DIOSDADO BACOLOD, Provincial Fiscal of Misamis Occidental, respondents.
Pablo B. Badong and Associates for petitioners.
Judge Mariano A. Zosa in his own behalf.
Provincial Fiscal Diosdado Bacolod in his own behalf.
Separate Opinions
TEEHANKEE, J., concurring:
I concur with the main opinion of Justice Castro insofar as it holds that since the petitioner accused was charged by respondent fiscal in the information filed by him with respondent court with the more serious crime of kidnapping under Article 267, paragraph 2 of the Revised Penal Code (committed with simulation of public authority and punishable by reclusion perpetua to death) complexed with and in addition to the crime of robbery in band for which they were originally charged in and investigated by the municipal court, respondent fiscal "must conduct a preliminary investigation anew as to the entire charge."1
However, following the established rule that failure to hold preliminary investigation can be made the basis of a motion to quash, and that should such a motion be filed, the court should not dismiss the case but conduct its own preliminary investigation or require the fiscal to grant petitioner the right to a new preliminary investigation does not affect the court's jurisdiction to try the case, although prohibition would lie to prevent trial until the accused shall have been granted the right of a preliminary investigation, if seasonably invoked as in this case — I do not believe that the petitioners' motion to quash, correctly denied by respondent court, should be ordered sustained in the present original action. Rather, respondent court's omission in not having ordered such preliminary investigation to be conducted should be herein remedied and petitioners' right thereto therefore granted herein.
Further proceedings in the case below should await the results of such preliminary investigation to be conducted by respondent fiscal. I respectfully submit that it is premature at this stage and on the mere basis of the record of the summary preliminary investigation conducted by the municipal court in accordance with Rule 112, section 10 (wherein petitioner-accused Bandiala presented one sole witness and his co-petitioner Andaya waived the second stage of preliminary investigation) and of the recitals of the parties herein, to anticipate the weight and value that should be given to the evidence — which properly pertains in the first instance to the fiscal at the investigation stage and to the trial court at the trial of the case.ℒαwρhi৷
For instance, it appears to me that respondent fiscal's submittal that "the kidnapping was merely incidental to the principal criminal purpose which was robbery" and "is absorbed by the robbery of which it formed a part"2 is based on an erroneous equation and compounding of criminal acts with the criminal's purpose, and should not serve as warrant for an advance opinion of the court at this pre-trial stage that the evidence in the fiscal's possession is "not sufficient to establish the complex crime of robbery with kidnapping."3 Based on the recitals of the parties and on the text of the information which are used as the frame reference in the main opinion it could not correctly stated that the more serious crime of kidnapping was absorbed by the robbery, which concededly was the first criminal purpose of the accused; the more appropriate conclusion would be that two separate offenses robbery and kidnapping are charged in the information, whatever may have been the accused's criminal purpose in kidnapping, after the robbery, one of the car's passengers, whether it was to facilitate their escape and prevent an early alarm in (furtherance of the same purpose of robbery) or to hold the passenger as a hostage (in furtherance, yet, of another purpose).
Footnotes
1 At page 6, main opinion.
2 At page 4, main opinion.
3 At page 5, main opinion.
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