G.R. No.

L-31839 June 30, 1980

EDMUNDO S. ALBERTO, Provincial Fiscal and BONIFACIO C. INTIA 1st Asst. Provincial Fiscal, both of
Camarines Sur, petitioners,
vs.
HON. RAFAEL DE LA CRUZ, in his capacity as Judge of the CFI of Camarines Sur and ELIGIO
ORBITA, respondents.
CONCEPCION, J.:

Petition for certiorari, with a prayer for the issuance of a writ of preliminay injunction, to annul and set aside the
order of the respondent Judge, dated January 26, 1970, directing the petitioners, Provincial Fiscal and Assitant
Provincial Fiscal of Camarines Sur, to amend the information filed in Criminal Case No. 9414 of the Court of First
Instance of CamarinesSur, entitled: "The People of the Philippines, plaintiff, versus Eligio Orbita, accused," so as
to include, as defendants, Governor Armando Cledera and Jose Esmeralda, assistant provincial warden of
Camarines Sur; as well as the order dated February 18, 1970, denying the motion for the reconsideration of the
said order.

In Criminal Case No. 9414 of the Court of First Instance of Camarines Sur, Eligio Orbita, a Provincial guard, is
prosecuted for the crime of Infedelity in the Custody of Prisoner, defined and punished under Article 224 of the
Revised Penal Code, committed, as follows:

That on or about the 12th day of September. 1968, in the barrio of Taculod, municipality of Canaman, province of
Camarines Sur, Philippines, and within the jurisdiction of this Honorable Court, the said accused, being then a
member of the Provincial Guard of Camarines Sur and specially charged with the duty of keeping under custody
and vigilance detention prisoner Pablo Denaque, did then and there with great carelessness and unjustifiable
negligence leave the latter unguarded while in said barrio, thereby giving him the opportunity to run away and
escape, as in fact said detention prisoner Pablo Denaque did run away and escape from the custody of the said
accused.  1

In the course of the trial thereof, or more particularly during the cross-examination of prosecution witness Jose
Esmeralda, assistant provincial warden of Camarines Sur, the defense brought forht and confronted the witness
with a note, marked as exhibit, purportedly written by Gov. Armando Cledera, asking Jose Esmeralda to send five
men to work in the construction of a fence at his house at Taculod, Canaman, Camarines Sur, then leased by the
province and used as an official guest house. Jose Esmeralda, declared, however, that he could not remember
who ahnded the note for him; that he was not sure as to genuineness of the signature appearing therein and that
he was not preszent when the note was made and signed by Gov. Cledera.   Beleiving that the escape of Pablo
2

Denaque was made possible by the note of Gov. Cledera to Jose Esmeralda and that Cledera and Esmeralda
are equally guilty of the offense for which tha accused Eligio Orbita had been charged, the defense cousel filed a
motion in court seeking the amendment of the information so as to include Gov. cledera and Jose Esmeralda as
defendants therein. 3

Acting upon said motion, as well as the opposition of the prosecution officers   and finding that "the court cannot
4

grant the motion or order the inclusion of Gov. Cledera and Lt. Esmeralda at this stage unless an investigation is
made," the respondent Judge directed the Fiscals office, within 15 days from date, to cause the further
investigation of the case, taking into consideration the provisions of Article 156 in relation to Articles 223 and 224
of the Revised Penal Code in order to determine once and for all whether the Governor as jailer of the Province
and his assistant have any criminatory participation in the circumstances of Pablo Denaque's escape from judicial
custody. 5

In compliance with said order, the Fiscal set the reinvestigation of the case for December 19, 1969. Summonses
were issued to Gov. Cledera Jose Esmeralda, Lorenzo Padua, the provincial warden, and the accused Eligio
Orbita to be present thereat.   Dr. went thereat But, on the date set for the reinvestigation of the case, only Gov.
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Cledera Jose Esmeralda and Lorenzo Padua appeared. The accused Eligio Orbita did not appear. Neither was
the note (Exhibit 2) produced. Since no additional evidence was presented, the Fiscal manifested in Court on
January 2, 1970 that "after conducting a reinvestigation of the case and after a thorough and intelligent analysis
of the facts and law involved, no prima facie case against Governor Cledera and Jose Esmeralda exist, hence,
they cannot be charged.  7
On January 19, 1970, the accused Eligio Orbita filed a "Motion for Reconsideration" praying "that the Order of
this Honorable Court dated December 11, 1969 be, in that instead of ordering the Fiscal to reinvestigate this
case, on the basis of the evidence already adduce during the trial of this case, he be ordered to amend the
information on to include Cledera and Esmeralda it appearing the on record that their inclusion is warranted.  8

On January 26, 1970, the respondent Court issued the order complained of, the dispositive portion of which
reads, as follows:

WHEREFORE, premises considered, in the light of the facts brought about by the prosecuting fiscal let the
charges be so amended by including in the information the author or writer of Exhibit 2 and the person or persons
who carried out the said orders considering the provisions of Article 156 in relation to Articles 223 and 224 of the
Penal Code.  9

The Fiscal filed a motion for the reconsideration of said order,   but the motion was denied on February 18,
10

1970.   Hence, the instant recourse.

11

From the facts of the case, We are convinced that the respondent Judge committed an error in ordering the fiscal
to amend the information so as to include Armando Cledera and Jose Esmeralda as defendants in Criminal Case
No. 9414 of the Court of First Instance of Camarines Sur. It is the rule that a fiscal by the nature of his office, is
under no compulsion to file a particular criminal information where he is not convinced that he has evidence to
support the allegations thereof.   Although this power and prerogative of the Fiscal, to determine whether or not
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the evidence at hand is sufficient to form a reasonable belief that a person committed an offense, is not absolute
and subject to judicial review,   it would be embarrassing for the prosecuting attorney to be compelled to
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prosecute a case when he is in no position to do so because in his opinion, he does not have the necessary
evidence to secure a conviction, or he is not convinced of the merits of the case. The better procedure would be
to appeal the Fiscal's decision to the Ministry of Justice and/or ask for a special prosecutor.

Besides, it cannot be said that the Fiscal had capriciously and whimsically refused to prosecute Cledera and
Esmeralda.

In his order directing the Fiscal's office to conduct a further reinvestigation of the case, the respondent Judge
candidly ad. muted that without a reinvestigation of the case, he cannot determine once and for all whether or not
to include Gov. Cledera and Jose Esmeralda in the information. Pursuant thereto, a reinvestigation was
conducted by the fiscals office. Summonses were issued. But, no additional fact was elicited since Eligio Orbita
did not appear thereat. Neither was the note (Exh. 2) presented and produced. Gov. Cledera could not admit nor
deny the genuineness of the signature appearing in the note since it was not on hand. Such being the case, the
prosecuting officers had reason to refuse to amend the information filed by them after a previous pre examination
and investigation.

Moreover, there is no sufficient evidence in the record to show a prima facie case against Gov. Cledera and Jose
Esmeralda. The order to amend the information is based upon the following facts:

1. Pablo Denaque, a detention prisoner for homicide, while working at the Guest House of
Governor Cledera on September 12, 1968;
2. The Governor's evidence at that time is being rented by the province and its maintenance and
upkeep is shouldered by the province of Camarines Sur,
3. That neither Governor Cledera nor Lt. Jose Esmeralda was charged or entrusted with the duty
of conveying and the detainee from the jail to the residence of the governor.
4. That the de worked at the Governor Is by virtue of an order of the Governor (Exhibit 2) which
was tsn by Lt. Esmeralda; and
5. That it was the accused Orbita who himself who handpicked the group of Prisoners to work at
the Governor's on 12, 1968.  14

Article 156 of the Revised Penal Code provides:

Art. 156. Delivering prisoners from jails. — The city Of arrests mayor in its maximum period
to prison correccional in its minimum Period shall be imposed upon any person who shall remove
from any jail or penal establishment t any person confined therein or shall help the escape of such
person, by means of violence, intimidation, or bribery.
 If other means are used the penalty of arresto mayor shall be imposed. If the escape of the
prisoner shall take place outside of said establishments by taking the guards by surprise, the
same penalties shall be imposed in their minimum period.

The offenders may be committed in two ways: (1) by removing a person confined in any jail or penal
establishment; and (2) by helping such a person to escape. To remove means to take away a person from the
place of his confinement, with or without the active compensation of the person released To help in the escape of
a Person confined in any jail or penal institution means to furnished that person with the material means such as
a file, ladder, rope, etc. which greatly facilitate his escape.   The offenders under this article is usually committed
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by an outsider who removes from jail any person therein confined or helps him escape. If the offender is a public
officer who has custody or charge of the prisoner, he is liable for infidelity in the custody of prisoner defined and
penalty under Article 223 of the Revised Penal Code. Since Gov. Cledera as governor, is the jailer of the
province,   and Jose Esmeralda is the assistant provincial warden, they cannot be prosecuted for the escape Of
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Pablo Denaque under Article 156 of the Revised Penal Code. There is likewise no sufficient evidence to warrant
their prosecution under Article 223 of the Revised Penal Code, which reads, as follows:

ART. 223. Conniving with or consenting to evasion. — Any Public officer who shall consent to the
escape of a prisoner in his custody or charge, shall be punished

1. By prision correccional in its medium and maximum periods and temporary disqualification in
its minimum period to perpetual special disqualification, if the fugitive shall have been sentenced
by final judgment to any penalty.

2. By prision correccional in its minimum period and temporary special disqualification, in case the
fugitive shall not have been finally convicted but only held as a detention prisoner for any crime or
violation of law or municipal ordinance.

In order to be guilty under the aforequoted provisions of the Penal Code, it is necessary that the public officer had
consented to, or connived in, the escape of the prisoner under his custody or charge. Connivance in the escape
of a prisoner on the part of the person in charge is an essential condition in the commission of the crime of
faithlessness in the custody of the prisoner. If the public officer charged with the duty of guarding him does not
connive with the fugitive, then he has not violated the law and is not guilty of the crime.   For sure no connivance
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in the escape of Pablo Denaque from the custody of the accused Eligio Orbita can be deduced from the note of
Gov. Cledera to Jose Esmeralda asking for five men to work in the guest house, it appearing that the notes does
not mention the names of the prisoners to be brought to the guest house; and that it was the accused Eligio
Orbita who picked the men to compose the work party.

Neither is there evidence to warrant the prosecution of Cledera and Esmeralda under Article 224 of the Revised
Penal Code. This article punishes the public officer in whose custody or charge a prisoner has escaped by
reason of his negligence resulting in evasion is definite amounting to deliberate non- performance of duty.   In the
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constant case, the respondent Judge said:

We cannot, for the present be reconciled with the Idea that the escape. of Denaque was
facilitated by the Governor's or . his assistants negligence. According to law, if there is any
negligence committed it must be the officer who is charged with the custody and guarding of
the ... 
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We find no reason to set aside such findings.

WHEREFORE, the orders issued on January 26, and February 18, 1970 in Criminal Case No. 9414 of the Court
of First Instance of Camarines Sur, entitled: "The People of the Philippines, plaintiff, versus Eligio
Orbita, accused are hereby annulled and set aside. The respondent Judge or any other judge acting in his stead
is directed to proceed with the trial of the case. Without costs.

SO ORDERED.