Dimatulac v Villon

Guingona FINALLY came up with a resolution of the appeal. He directed the

[G.R. No. 127107. October 12, 1998]

Provincial
Prosec. To amend the info against the accused from homicide to murder.

PETER

But he wrote to
Provincial Prosec. Again and SET ASIDE his order to amend the info from

PAUL
DIMATULAC
and
VERONICA
DIMATULAC, petitioners,
vs. HON. SESINANDO VILLON in his capacity as Presiding Judge of the
Regional Trial Court of Pampanga, Branch 54; HON. TEOFISTO
GUINGONA, in his capacity as Secretary of Justice; MAYOR SANTIAGO
YABUT, SERVILLANO YABUT, MARTIN YABUT and FORTUNATO
MALLARI, respondents.

homicide to murder,
considering the appeal was moot and academic by the arraignment of the
accused but Mallari
must be included.
Petitioners filed a Motion to Defer Arraignment of Accused Fortunato Mallari,

FACTS:
SPO3 Virgilio Dimatulac was shot dead at his residence in Barangay San

denied.
CA also dismissed the petition.
Petitioners filed with the SC a petition for Certiorari/Prohibition and

Nicolas, Masantol,
Pampanga. A complaint for Murder was filed before the Municipal Circuit

Mandamus to reverse the

order of respondent Judge denying their Motion to Set Aside Arraignment;

Trial Court (MCTC)

private respondents Mayor Santiago Yabut, Martin Yabut, Servillano Yabut,

set aside arraignment

of private respondents; order that no further action be taken by any court in

Evelino David, Justino

Mandap, Casti David, Francisco Yambao, Juan Magat, Arturo Naguit,

criminal case until this

petition resolved; and order Sec. of Justice and the prosecutors concerned

Fortunato Mallari, Jesus de

la Cruz, Joselito Miranda, SPO3 Gilberto Malabanan, Aniano Magnaye,

to amend the
information from homicide to murder.

Vladimir Yumul, a certain

Danny, and a certain Koyang/Arding.

ISSUES
1. WON the provincial prosecutor erred downgrading or lowering the crime

Judge David conducted a preliminary investigation and found probable

charged from
Murder to Homicide [YES]
2. WON Judge Villion erred in proceeding with the arraignment of the

cause, issued warrants

for the arrest of the accused. Only David, Mandap, Magat and Yambao were
arrested; while only
Yambao submitted his counter affidavit.

accused and denying

motion to set aside arraignment [YES]
3. WON SOJ erred in reversing himself and his order to amend the

After the prelim investigation, the judge found reasonable ground to believe information from
Homicide to Murder [YES]
that Murder has been
committed and the accused are probably the perpetrators thereof. He
HELD: Petition GRANTED. The orders denying the Motion to Defer
recommended the
issuance of warrants of arrests and provided no bail

Proceeding/Arraignment and
denying the Motion to Set Aside Arraignment are declared VOID and SET

Asst. Provincial Prosecutor Sylvia Q. Alfonso-Flores conducted a

ASIDE. The
arraignment of private respondents is likewise declared VOID and SET

reinvestigation. It is not clear

from the record whether she conducted the same motu proprio or upon
motion of private
respondents.
The offense committed was only homicide (NOT murder) and all Yabuts

ASIDE. Furthermore, the

order of SOJ is SET ASIDE and his initial order REINSTATED. The Office of the
Provincial
Prosecutor of Pampanga is DIRECTED to file with the RTC the amended

were in
conspiracy with one another. The 2 requisites of murder qualified by

information for Murder.

Issue #1: WON the provincial prosecutor erred downgrading or lowering the

treachery
were absent. She also recommended bail of 20k each. (note: the Yabuts

crime charged
from Murder to Homicide [YES]
There was No Basis for the Reinvestigation or downgrading of the Offense

were
not under the custody of the law)
Before the information for Homicide was filed, the heirs of Dimatulac filed
an appeal on the
resolution of Ass. Prov. Pros. Alfonso-Flores to the Secretary of Justice (SOJ)
alleging
mainly that Alfonso-Flores erred in lowering the crime from Murder as

from
Murder to Homicide.
Warrants of arrest were issued against the Yabuts but they were never
arrested/or
surrendered and never brought into the custody of the law. How can the
Ass. Prov
Prosec. Conduct a reinvestigation then lower the crime from murder to

originally filed to Homicide

despite the glaring presence of treachery, evident premeditation, etc. (Take Homicide? (Note
that they re-appeared after crime was downgraded).
note of Rule 70- NPS
She should have also waited for the resolution of the Sec of Justice, but
Rules on Appeal in Syllabus
instead
1
entertained the motion for reinvestigation, accepted counter-affidavits and
)
Notice of the appeal was furnished to the Office of the Provincial

Prosecutor.
Alfonso-Flores ignored this and proceeded to file the information for

recommended
bail. REMEMBER! They were never brought into the custody of the law.
Petitioners had the right to appeal to the DOJ under Section 4 of Rule 112 of

Homicide
which the Prov. Prosecutor (Manarang) approved and certified
Private prosecutor (counsel for private complainants) filed a motion to

the
Rules of Court and DOJ Order No. 223 S. 1993 recognizes the right of both

and the prohibition case before the CA. Judge ignored this and set the

the power of
authority of the SOJ to review resolutions of his subordinates in criminal

offended
parties and the accused to appeal from resolutions in preliminary
defer
proceedings (i.e. arraignment) before the RTC in view of his clients pending investigations or
appeal with the SOJ
reinvestigations. The sec. speaks of dismissing criminal complaint
YABUTs opposed motion to defer proceedings/arraignment arguing that
petitioners herein
the
were not barred from appealing from the resolution holding that only
pendency of the appeal before the SOJ was not a ground to defer
homicide was
arraignment
committed, considering that their complaint was for murder. By holding that
and they had a right to a speedy trial [invoked the case of Crespo v. Mogul.
only homicide
RTC judge denied motion to defer arraignment. RTC Judge set the
was committed, the Provincial Prosecutor's Office of Pampanga effectively
arraignment. Private
prosecutor moved to inhibit the judge, and filed a petition for prohibition to "dismissed"
the complaint for murder.
enjoin the judge from
Appeal to the Sec. of Justice should not be dismissed motu propio on
proceeding with the arraignment. RTC Judge voluntarily inhibited himself
account o
and then the case was
transferred to herein respondent Judge Villion.
Petitioners filed manifestation informing Judge Villlon him of the cases
the Yabuts arraignment.
The bar on Sec 4 does not apply! The cases of Crespo v Mogul forecloses
pending before the SOJ
arraignment. Yabuts
entered their plea of not guilty. Petitioners moved to set aside arraignment
but to no avail. SOJ
1 Appeals form Resolutions of prosecutors to the Sec. of DOJ

cases despite an
information already having been filed in court. The SOJ is only enjoined to
refrain, as far

as practicable, from entertaining a petition for review or appeal from the

of due process of law and of the right to a speedy disposition of the cases
filed
against
him.
It
was
denied
hence
the
appeal.
action of the
prosecutor once a complaint or information is filed in court. There was clear
and indecent
haste on the part of the public prosec. In the filing of the information for
homicide
depriving the State and offended parties of due processs.
Issue # 2: WON Judge Villion erred in proceeding with the arraignment of
the accused and
denying motion to set aside arraignment [YES]
Judge Villon set arraignment of the accused almost immediately upon
receiving the
records of the case from the former RTC Judge. He should have gone over
the case and
noticed the multiple motions, manifestations and utter vehemence of the
petitioners to
hear their cause. The judge had COMPLETE control over the case and any
disposition
rested on his discretion + was not bound to await the DOJ resolution on
appeal.
But he committed grave abuse of discretion in rushing the arraignment of
the YABUTs on
the assailed information for homicide denying due process.
Actions: nullifying without jurisdiction, the denial of the motion to defer
further hearings,
the denial of the motion to reconsider such denial, the arraignment of the
YABUTs and
their
plea of not guilty
Issue #3 . WON SOJ erred in reversing himself and his order to amend the
information
from Homicide to Murder [YES]
DOJ relinquished its power of control and supervision over the Provincial
Prosecutor and
the Asst. Provincial Prosecutors of Pampanga; and meekly surrendered to
the latter's
inappropriate conduct even hostile attitude, which amounted to neglect of
duty or conduct
prejudicial to the best interest of the service.
The DOJ could have joined cause with petitioners to set aside arraignment
and, in the
exercise of its disciplinary powers over its personnel, the DOJ could have
directed the
public prosecutors concerned to show cause why no disciplinary action
should be taken
against them for neglect of duty or conduct prejudicial to the best interest
of the service.

Issue: Whether or not petitioner was deprived of his rights as an accused.

Held: YES. Due process (Procedural) and right to speedy disposition of trial
were violated. Firstly, the complaint came to life, as it were, only after
petitioner Tatad had a falling out with President Marcos. Secondly,
departing from established procedures prescribed by law for preliminary
investigation, which require the submission of affidavits and counteraffidavits by the complainant and the respondent and their witnesses, the
Tanodbayan referred the complaint to the Presidential Security Command
for finding investigation and report. The law (P.D. No. 911) prescribes a
ten-day period for the prosecutor to resolve a case under preliminary
investigation by him from its termination. While we agree with the
respondent court that this period fixed by law is merely "directory," yet, on
the other hand, it can not be disregarded or ignored completely, with
absolute impunity. A delay of close to three (3) years can not be deemed
reasonable or justifiable in the light of the circumstance obtaining in the
case at bar.

March 23, 1929

In re LUIS B. TAGORDA,
Duran & Lim for respondent.
Attorney-General Jaranilla and Provincial Fiscal Jose for the Government.
MALCOLM, J.:
The respondent, Luis B. Tagorda, a practising attorney and a member of the provincial
board of Isabela, admits that previous to the last general elections he made use of a
card written in Spanish and Ilocano, which, in translation, reads as follows:
LUIS B. TAGORDA
Attorney
Notary Public
CANDIDATE FOR THIRD MEMBER
Province of Isabela
(NOTE. As notary public, he can execute for you a
deed of sale for the purchase of land as required by the
cadastral office; can renew lost documents of your
animals; can make your application and final requisites
for your homestead; and can execute any kind of
affidavit. As a lawyer, he can help you collect your loans
although long overdue, as well as any complaint for or
against you. Come or write to him in his town, Echague,
Isabela. He offers free consultation, and is willing to help
and serve the poor.)

G.R. No. 72335-39 March 21, 1988

FRANCISCO S. TATAD, petitioner,
vs.
THE SANDIGANBAYAN, and THE TANODBAYAN, respondents.

The respondent further admits that he is the author of a letter addressed to a

lieutenant of barrio in his home municipality written in Ilocano, which letter, in
translation, reads as follows:
ECHAGUE, ISABELA, September 18, 1928

Facts: The complainant, Antonio de los Reyes, originally filed what he

termed "a report" with the Legal Panel of the Presidential Security
Command (PSC) on October 1974, containing charges of alleged violations
of Rep. Act No. 3019 against then Secretary of Public Information Francisco
S. Tatad. The "report" was made to "sleep" in the office of the PSC until the
end of 1979 when it became widely known that Secretary (then Minister)
Tatad had a falling out with President Marcos and had resigned from the
Cabinet. On December 12, 1979, the 1974 complaint was resurrected inthe
form of a formal complaint filed with the Tanodbayan. The Tanodbayan
acted on the complaint on April 1, 1980 which was around two months
after petitioner Tatad's resignation was accepted by Pres. Marcos by
referring the complaint to the CIS, Presidential Security Command, for
investigation and report. On June 16, 1980, the CIS report was submitted
to the Tanodbayan, recommending the filing of charges for graft
and corruptpractices against former Minister Tatad and Antonio L. Cantero.
By October 25, 1982, all affidavits and counter-affidavits were in the case
was already for disposition by the Tanodbayan. However, it was only on
June 5, 1985 that a resolution was approved by the Tanodbayan. Five
criminal informations were filed with the Sandiganbayan on June 12, 1985,
all against petitioner Tatad alone. (1) Section 3, paragraph (e) of RA. 3019
for giving D' Group, a private corporation controlled by his brother-in-law,
unwarranted benefits, advantage or preference in the discharge of his
official functions; (2) Violation of Section 3, paragraph (b) for receiving a
check of P125,000.00 from Roberto Vallar, President/General Manager of
Amity Trading Corporation as consideration for the release of a check of
P588,000.00 to said corporation for printing services rendered for
theConstitutional Convention Referendum in 1973; (3) Violation of Section
7 on three (3) counts for his failure to file his Statement of Assets and
Liabilitiesfor the calendar years 1973, 1976 and 1978. A motion to quash
the information was made alleging that the prosecution deprived accused

MY DEAR LIEUTENANT: I would like to inform you of

the approaching date for our induction into office as
member of the Provincial Board, that is on the 16th of
next month. Before my induction into office I should be
very glad to hear your suggestions or recommendations
for the good of the province in general and for your
barrio in particular. You can come to my house at any
time here in Echague, to submit to me any kind of
suggestion or recommendation as you may desire.
I also inform you that despite my membership in the
Board I will have my residence here in Echague. I will
attend the session of the Board of Ilagan, but will come
back home on the following day here in Echague to live
and serve with you as a lawyer and notary public.
Despite my election as member of the Provincial Board,
I will exercise my legal profession as a lawyer and
notary public. In case you cannot see me at home on
any week day, I assure you that you can always find me
there on every Sunday. I also inform you that I will
receive any work regarding preparations of documents
of contract of sales and affidavits to be sworn to before
me as notary public even on Sundays.
I would like you all to be informed of this matter for the
reason that some people are in the belief that my
residence as member of the Board will be in Ilagan and
that I would then be disqualified to exercise my
profession as lawyer and as notary public. Such is not
the case and I would make it clear that I am free to
exercise my profession as formerly and that I will have
my residence here in Echague.
I would request you kind favor to transmit this
information to your barrio people in any of your meetings

or social gatherings so that they may be informed of my

desire to live and to serve with you in my capacity as
lawyer and notary public. If the people in your locality
have not as yet contracted the services of other lawyers
in connection with the registration of their land titles, I
would be willing to handle the work in court and would
charge only three pesos for every registration.
Yours respectfully,
(Sgd.) LUIS TAGORDA
Attorney
Notary Public.
The facts being conceded, it is next in order to write down the applicable legal
provisions. Section 21 of the Code of Civil Procedure as originally conceived related to
disbarments of members of the bar. In 1919 at the instigation of the Philippine Bar
Association, said codal section was amended by Act No. 2828 by adding at the end
thereof the following: "The practice of soliciting cases at law for the purpose of gain,
either personally or through paid agents or brokers, constitutes malpractice."

was unaware of the impropriety of his acts, second, his youth and inexperience at the
bar, and, third, his promise not to commit a similar mistake in the future. A modest
period of suspension would seem to fit the case of the erring attorney. But it should be
distinctly understood that this result is reached in view of the considerations which
have influenced the court to the relatively lenient in this particular instance and should,
therefore, not be taken as indicating that future convictions of practice of this kind will
not be dealt with by disbarment.
In view of all the circumstances of this case, the judgment of the court is that the
respondent Luis B. Tagorda be and is hereby suspended from the practice as an
attorney-at-law for the period of one month from April 1, 1929,
Street, Johns, Romualdez, and Villa-Real, JJ., concur.
Johnson, J., reserves his vote.
Separate Opinions
OSTRAND, J., dissenting:
I dissent. Under the circumstances of the case a reprimand would have been sufficient
punishment

The statute as amended conforms in principle to the Canons of Professionals Ethics

adopted by the American Bar Association in 1908 and by the Philippine Bar
53 Phil 37 Legal Ethics Malpractice Solicitation of Legal Business
Association in 1917. Canons 27 and 28 of the Code of Ethics provide:
Advertisement in the Legal Profession Stirring Up of Litigation
27. ADVERTISING, DIRECT OR INDIRECT. The most worthy and
effective advertisement possible, even for a young lawyer, and especially
In 1928, Luis Tagorda was a provincial board member of Isabela. Before his
with his brother lawyers, is the establishment of a well-merited reputation
for professional capacity and fidelity to trust. This cannot be forced, but election, he campaigned that he is a lawyer and a notary public; that as a
must be the outcome of character and conduct. The publication or
circulation of ordinary simple business cards, being a matter of personal notary public he can do notarial acts such as execution of deeds of sale,
taste or local custom, and sometimes of convenience, is not per
se improper. But solicitation of business by circulars or advertisements, or
by personal communications or interview not warranted by personal
relations, is unprofessional. It is equally unprofessional to procure business
by indirection through touters of any kind, whether allied real estate firms
or trust companies advertising to secure the drawing of deeds or wills or
offering retainers in exchange for executorships or trusteeships to be
influenced by the lawyer. Indirect advertisement for business by furnishing
or inspiring newspaper comments concerning the manner of their conduct,
the magnitude of the interest involved, the importance of the lawyer's
position, and all other like self-laudation, defy the traditions and lower the
tone of our high calling, and are intolerable.
28. STIRRING UP LITIGATION, DIRECTLY OR THROUGH AGENTS. It
is unprofessional for a lawyer to volunteer advice to bring a lawsuit, except
in rare cases where ties of blood, relationship or trust make it his duty to do
so. Stirring up strife and litigation is not only unprofessional, but it is
indictable at common law. It is disreputable to hunt up defects in titles or
other causes of action and inform thereof in order to the employed to bring
suit, or to breed litigation by seeking out those with claims for personal
injuries or those having any other grounds of action in order to secure them
as clients, or to employ agents or runners for like purposes, or to pay or
reward directly or indirectly, those who bring or influence the bringing of
such cases to his office, or to remunerate policemen, court or prison
officials, physicians, hospital attaches or others who may succeed, under
the guise of giving disinterested friendly advice, in influencing the criminal,
the sick and the injured, the ignorant or others, to seek his professional
services. A duty to the public and to the profession devolves upon every
member of the bar having knowledge of such practices upon the part of
any practitioner immediately to inform thereof to the end that the offender
may be disbarred.
Common barratry consisting of frequently stirring up suits and quarrels between
individuals was a crime at the common law, and one of the penalties for this offense
when committed by an attorney was disbarment. Statutes intended to reach the same
evil have been provided in a number of jurisdictions usually at the instance of the bar
itself, and have been upheld as constitutional. The reason behind statutes of this type
is not difficult to discover. The law is a profession and not a business. The lawyer may
not seek or obtain employment by himself or through others for to do so would be
unprofessional. (State vs. Rossman [1909], 53 Wash., 1; 17 Ann. Cas., 625;
Peoplevs. Mac Cabe [1893], 19 L. R. A., 231; 2 R. C. L., 1097.)

etc.; that as a lawyer, he can help clients collect debts; that he offers free
consultation; that he is willing to serve the poor.
When he won, he wrote a letter to the barrio lieutenant of Echague, Isable
advising the latter that even though he was elected as a provincial board
member, he can still practice law; that he wants the lieutenant to tell the
same to his people; that he is willing to receive works regarding
preparations of sales contracts and affidavits etc.; that he is willing to
receive land registration cases for a charge of three pesos.
ISSUE: Whether or not Tagorda is guilty of malpractice.
HELD: Yes. Tagorda admitted doing the foregoing acts. The practice of
soliciting cases at law for the purpose of gain, either personally or through
paid agents or brokers, constitutes malpractice.
The most worthy and effective advertisement possible, even for a young
lawyer, and especially with his brother lawyers, is the establishment of a
well- merited reputation for professional capacity and fidelity to trust. This
cannot be forced, but must be the outcome of character and conduct.
Solicitation of business by circulars or advertisements, or by personal
communications or interviews not warranted by personal relations, is
unprofessional. It is equally unprofessional to procure business by
indirection through touters of any kind, whether allied real estate firms or
trust companies advertising to secure the drawing of deeds or wills or
offering retainers in exchange for executorships or trusteeships to be

influenced by the lawyer. Indirect advertisement for business by furnishing

It becomes our duty to condemn in no uncertain terms the ugly practice of solicitation
of cases by lawyers. It is destructive of the honor of a great profession. It lowers the or inspiring newspaper comments concerning the manner of their conduct,
standards of that profession. It works against the confidence of the community in the
integrity of the members of the bar. It results in needless litigation and in incenting to the magnitude of the interests involved, the importance of the lawyers
strife otherwise peacefully inclined citizens.
position, and all other like self-laudation, defy the traditions and lower the
The solicitation of employment by an attorney is a ground for disbarment or
tone of our high calling, and are intolerable.
suspension. That should be distinctly understood.
Giving application of the law and the Canons of Ethics to the admitted facts, the
respondent stands convicted of having solicited cases in defiance of the law and those
canons. Accordingly, the only remaining duty of the court is to fix upon the action
which should here be taken. The provincial fiscal of Isabela, with whom joined the
representative of the Attorney-General in the oral presentation of the case, suggests
that the respondent be only reprimanded. We think that our action should go further
than this if only to reflect our attitude toward cases of this character of which
unfortunately the respondent's is only one. The commission of offenses of this nature
would amply justify permanent elimination from the bar. But as mitigating,
circumstances working in favor of the respondent there are, first, his intimation that he

It is unprofessional for a lawyer to volunteer advice to bring a lawsuit,

except in rare cases where ties of blood, relationship or trust make it his
duty to do so.
Tagordas liability is however mitigated by the fact that he is a young
inexperienced lawyer and that he was unaware of the impropriety of his

acts. So instead of being disbarred, he was suspended from the practice of law for a month.