.On July  13,  1954, Gaudencio Manigbas and eleven others were charged with murder before the Justice of the Peace Court of Rosario,  Batangas by  Captain  Epigenio Navarro, commanding officer of a constabulary  detachment stationed in Alangilang, Batangas,  Batangas.  The  complaint was later amended by including one Miguel Almario.

Three days after the, filing  of the  original complaint, counsel for the accused moved that they be granted bail for their provisional liberty  and,  on  July  19,  1954,  the court issued  an order  wherein, after reconsidering its previous order denying bail to all, allowed to some the right to bail and denied to others.  Both defense and prosecution filed a motion for reconsideration, the  former asking that all the  accused  be  granted bail while  the  latter pleading that all of them be denied because the  justice of the peace court has no jurisdiction to grant bail in eases involving, capital  offenses.  On July 21, 1954, the court  entered an order setting aside  its order of July 19, 1954.and restoring, its original order denying bail to all the accused for the reason that "in a long  series of decisions promulgated by our Supreme Court in connection with  the granting of bail to a person charged with a capital offense which were carefully  examined  by this court,  there is not a  single case wherein the Justice of the Peace Court entertained a petition for bail for a person charged  with a capital offense and thereafter hear the evidence to  determine whether the same is strong or not so as to warrant the giving of bail."

Upon receipt of  a copy of the aforesaid  order, counsel for the defense filed with the Court of First Instance of Batangas, sitting in  Lipa City, a petition for mandamus seeking in effect to compel the justice of the peace court of Rosario to  receive evidence to  determine if the same warrants the granting of bail  to the  accused. After the provincial commander and the  justice  of the peace put in their answers, the court on August 24,  1954 granted .the petition holding that respondent justice of the peace court has authority to grant bail  even if the charge involves a capital offense and ordering  said court to act on the application  for  bail. Hence  this  appeal.

Before proceeding  to discuss the  merits of the presents controversy, there is  need to dwell on a point of procedure which came up during the deliberation of this case.  This has reference to the fact that, according to the record,  the accused who have interposed this  petition for mandamus are still at  large for so far no order has been issued  for their  arrest.  The record discloses that immediately upon the filing, of the charge against them they applied for bail and their motion was immediately acted  upon by the justice of the peace.  And the denial of the bail eventually led to the filing of the  present  petition for mandamus.

We  hold  that  this petition  is  premature  for  its purpose is to compel the performance of a  duty whjeh does not exist there being no correlative right  the use Sir enjoyment  of it has been denied  which may be the subject of mandamus  (section 67, Rule 3) ;  and this is so because the right to  bail only accrues  when a person is  arrested. or deprived  of his liberty.  The  purpose of  bail  is to secure one's release and it would be incongruous to grant bail to one  who  is.  free.   Thus; "bail is  the security  required and given for the release of a person who is in  the custody of the law"  (Rule 110, section 1), and evidently the accused do not come  within  its  purview.  We  could therefore dismiss this  petition on this score alone were it not for  the importance  of  the issue now  before   us which requires proper  elucidation  for  the guidance of  all justices of the peace who may be found in  similar predicament.

The issue to be determined is whether  a justice  of  the peace  can, in a  case involving a  capital offense, act  on an application  for bail and  receive evidence to determine if the evidence of guilt is strong or otherwise grant bail if the evidence so  warrants.

 Under our Constitution, all accused persons before conviction are entitled to bail except those charged with capital offenses when  evidence of  guilt is strong  (Article  III, section 1, paragraph 16).  Under our rules, in non-capital offenses, after judgment by a justice of the  peace and before conviction by the  court of first  instance, an  accused is entitled to bail as a matter of right (Rule 110, section  3);. but,  "after conviction by the  Court of First Instance, defendant may, upon application, be bailed at the discretion of the court."  (Rule 110, section 4.)  And implementing  the  provision of our Constitution,  the rule also provides that "No person in  custody for  the commission of a capital offense shall be admitted to bail if the evidence of  his  guilt  is strong"   (Rule 110,  section 6). The burden of  showing that the evidence of guilt is strong is on the prosecution (Rule 110, section 7).

While as a general rule it may be stated that an application for bail may be acted upon  by the court which has cognizance of the1 case regardless  of  whether it involves a capital  offense  ,or not, (Peralta vs. Ramos, 71 Phil.,  271) and as a general proposition we may concede that justices of the peace before whom a case  is  initiated by the filing of the corresponding complaint or information have also authority to  entertain petitions  for bail in  cases involving non-capital offenses as to  which  the accused  are entitled to bail as a matter of right, however, doubt' is entertained as to whether said justices of the  peace can likewise entertain bail while the cases are under  their  control if  they involve  capital offenses like the one under consideration. This doubt has arisen  because  the law  and  the rules  on the matter are not explicit enough and our jurisprudence has  not so  far  laid down a, clear-cut  ruling clarifying this point in this jurisdiction.

In the United States "it may be stated as a  general rule that all judicial officers having the power to  hear and determine cases have the power to take bail."  It is  regarded as "a necessary  incident to the right to hear and determine the cause"  (6 Am. Jur., p. 67).   And  with particular reference to  justices of the peace, the general rule  is that "where,  under the  statutes,  justices of the  peace  have power as examining magistrates,  with power  of commitment, they may in  their discretion admit to bail"; except, where their power to "take bail"  is limited by the Constitution, or by statute, in which case "they must act within the  express  or implied limitations thereby laid  down" (6 C. J.,  973-974).   But the prevailing rule is that "inferior officers vested only with the power to commit cannot, without  express  legislative enactment,  take bail in  capital offenses,  for the determination of the sufficiency  of the evidence in such cases, in order to entitle the accused to bail, is a -matter of the greatest importance both to the accused and to the  state and is  the  appropriate province  of the court entrusted with the trial of such cases"  (6 Am.  Jur., p. 67).

Considering the general rule that justices  of the peace have the  power  as examining magistrates to commit  and in their discretion admit to  bail  an accused person  unless  such power is limited by the Constitution  or by statute, can  we say  that in  this jurisdiction our justices  of the peace  have  also  the power to admit to bail  a person accused of a capital offense?

Our answer must of necessity be in the affirmative not only because there is no such limitation in our Constitution but because the Judiciary Reorganization Act of 1948 seems to expressly confer this power  upon  them.  We refer to sections 87 and 91 of said Act relative to the power  of justices of the  peace to conduct preliminary investigations and  the incidental powers they  may  exercise in relation thereto.   The first section provides that the justices of the peace  may  conduct preliminary  investigations  "for  any offense alleged to have been committed within their respective  municipalities *  * *  without regard  to  the limits of punishment, and  may release,  or commit and bind over any person charged with such offense to secure his appearance' before  the proper court."   And section 91 provides  that the same justices of the peace may "require of any person arrested a bond for good behavior or to keep  the peace, or for the further appearance of such person before a court of competent jurisdiction."   The only limitation to  this power  is that the bond must be approved by that court.

These provisions are broad enough to confer upon justices of the peace the authority to grant bail to persons accused even of capital offenses for such is the only meaning that we can give to the phrase  "bind over any person  charged with such offense to secure his appearance before the proper court."  This is  the meaning of bail  as defined  in section 1 of Rule 110.

Some apprehension has  been expressed by  some  members of the Court over the fact that if such power  is given to justices of the  peace  in capital cases the power may  be abused or improperly exercised considering the fact that some of them are not lawyers or are politicians  like the mayors  who may  act under the law when the incumbent justices are  temporarily absent   (section  B,  Rule  108). While the possibility of abuse cannot be denied such cannot argue against the existence of the power and  if there is need  for a remedy such devolves upon Congress.  But before  such curative  measure is  adopted, our duty is  to apply the law as  we see it regardless of its implications. And in  the event that  an  abuse  is committed, the  situation is not without a remedy. The government  can immediately take steps to obtain appropriate relief and, we are sure,  the  proper  court will not  deny  prompt action when necessary to promote the  interests of justice. We are therefore  of  the  opinion  that respondent justice  of the peace can act on  the application  for bail taking into account the evidence that may be presented by the prosecution.  In this respect the order  appealed from is correct.

Considering tl at the  petition for mandamus is premature, the  same should  be  dismissed with  costs  against petitioners.

Parás, C. J., Padilla, Reyes,  A., Jugo, Concepcion, Reyes, J. B. L. and Endencia, JJ., concur.

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CONCURRING AND  DISSENTING:


MONTEMAYOR, J.,

In so far  as the majority  opinion dismisses the petition for mandamus for  being premature, I concur  in  it. But where  it holds  and  lays down the doctrine  that a Justice of the Peace  Court  may entertain and. act  upon petitions  for bail  in capital offense  cases, I dissent.   The reason is that a Justice of the Peace Court has a  limited criminal  .jurisdiction  and  is allowed to try and  decide only minor or petty offenses; it  is  not  a court of record; and until the present, in  some towns  or  districts the judicial officer presiding  over it,  is not even a member of  the bar,  and  although he  may  have studied law, he has limited legal  training,  experience  and knowledge of the law,  especially that of  evidence, and is  not qualified and in a position to.receive, pass upon and weigh evidence submitted to determine whether the evidence for  the prosecution  is  strong,  as provided by law.  The very majority opinion in  part says:

"But the prevailing rule is that 'inferior officers vested only with the power  to commit cannot, without  express  legislative enactment, take bait in capital offenses, for the determination of  the sufficiency of the evidence in such cases, in order to entitle the accused to bail, is a matter of the greatest  importance  both to the accused and to the state and is the appropriate province of the court entrusted with the trial of such cases' (6 Am. Jur., 67)." (Italics  supplied.)

That is partly  correct. The complete rule  seems to be that stated  in Ex-parte Kittrel,  20  Ark. 400 where the Court  said:

"* *  * To hear the showing and determine upon  the sufficiency in cases of so much magnitude is a matter of the greatest importance, both  to  the accused  and to the state, and would  seem  to be the appropriate  province  of the  court or  judge in trusted, by  the Constitution, with the trial of such causes; and in  the absence of any clear and  explicit act attempting to confer upon inferior officers authority to hear and. determine  a matter of so much  consequence in  the  progress of  capital cases, we are disposed  to  doubt that such was the.intention of the legislature."  (39 L.E.A. NS 768.) (Italics supplied.)

Now, is there any law, clear and explicit conferring  upon a justice  of the Peace  Court  the  jurisdiction  and authority to hear  and determine  applications  for bail in  cases involving capital  offense?   The  majority opinion  claims that  there is such a  law. sections  87  and  91  of  the Judiciary Act of 1948; and says:

"* * *. The first  section provides that the justices  of the peace may conduct preliminary investigations for any  offense alleged to have been committed within  their  respective  municipalities * * * without regard to  the limits of punishments, and may release, or commit  and  bind over any person charged with such offense to secure  his appearance before  the proper court.'  And section 91 provides that the same justices of the peace may require of any person arrested a bond for good behavior or to keep  the peace, or for the further appearance of such person  before a court of competent  jurisdiction'  The only  limitation  to this power is  that the bond must be approved by that court.  These provisions are broad enough to confer upon justices of the peace the authority  to grant bail to persons  accused even of capital offenses for such is the only meaning  that we can  give to  the phrase  'bind over any person charged with such  offense to  secure  his  appearance before the proper court."   (Italics supplied.)

It  will be  noticed that  the  majority's whole claim or argument by reason of the above provisions rests  mainly, if not entirely on the phrase "bind over" which according to  Vol.  I,  Bouvier's  Law Dictionary, p. 365,  is "the act by, which  a  magistrate  or court  hold to bail  a- party accused of a crime or misdemeanor". But the phrase "bind over" does not stand alone in section 87 of the Judiciary Act of 1948.  It  is connected  with the  word  "commit;", the whole phrase being "commit and bind over".  According to Vol. I, Bouvier's Law Dictionary, p. 550, "commitment"  is defined  as "the  warrant or order  by which  a court or magistrate directs a ministerial officer  to  take a  person to prison," or "the act of sending  a person to prison by means of such  a warrant or order."  In  other words, the law  says that the Justice of the  Peace  may admit a party accused of  a crime or  misdemeanor to  bail and send that same party to jail. ' If the coordinating word "or"  were used  between  the  word "commit" and  the phrase "bind over", then there would be offered an  alternative or choice of either, that is to say, a magistrate may commit one to jail or admit him to bail.   But the law used the conjunction "and" which would seem to mean that the magistrate must do both and not only one of them.  What the Legislature  meant by the phrase "commit  and bind over" is not only not clear  but doubtful  and we cannot say that the law is clear and explicit in authorizing a Justice of the Peace to grant bail in capital offenses. The majority opinion itself admits "that the law and the rules are not explicit enough".   Even assuming that the phrase could be interpreted to mean that the Justice of the Peace may put in jail or admit to bail, it may well be  that such authority extends only to non-capital  offenses, where the accused is  entitled  to bail as a matter of  right and not to cases where admission to  bail is a matter of discretion (Rule 110 section 8).  The majority claims that the legal provisions  are broad enough.  Indeed they are broad, too broad and  vague, and to me  far from clear and explicit. Nowhere in sections 87  and 91 of the Judiciary Act can we find a single word, phrase or clause mentioning or referring even remotely to capital offenses.  So, under the rule 1 have cited  and reproduced,  in  the  absence  of a "clear and  explicit Act attempting to confer upon inferior officers  authority to  hear and determine  a matter of  so much consequence in the progress of capital  cases" (petition for bail) the  conclusion must be that  said inferior officers  have not such authority.

Let us start with the fact that  a Justice  oi the Peace Court is not a court of record.  There is no  stenographer to take down the evidence submitted before it. So, if said court acting upon a  petition  for bail in a capital offense case grants bail on the  ground that the evidence for the prosecution is  not strong or, on the  other  hand, denies bail on  the  ground that said  evidence for the prosecution is strong, it would be  difficult, if not impossible,  to appeal from said order  or to correct it thru certiorari proceedings on the ground of abuse of discretion, for the simple reason that the appellate court where the appeal is taken nor where the extraordinary legal  remedy  is sought, cannot review the  evidence received by, the  Justice  of  the Peace  Court to determine whether or not it abused its discretion, because there is no  record of such evidence.

It is true that a Justice  of  the Peace may conduct preliminary investigation of any criminal case regardless of the  seriousness  thereof and  the penalty attached  to  it. For that matter even the town mayor may also be' called upon to  conduct said preliminary  investigation.  Section 3, Rule 108  of the Rules  of Court provides:

"Sec.  3. Preliminary  investigation  by  the municipal mayor.- In case of temporary  absence  of both the justice of the peace and  the auxiliary justice from the municipality,, town, or place wherein they exercise their jurisdiction, the municipal  mayor shall make the preliminary investigation in criminal cases, when such investigation cannot be delayed without prejudice to the interest of  justice.  He shall make a report of any preliminary investigation so made to the justice of the peace or ,to the auxiliary justice immediately upon the return of one or the  other. He shall have authority in such cases to order the arrest of  the defendant and to grant, him  bail in the manner and cases  provided for  in  Rule 110."

Under the above provision, a mayor may conduct  a preliminary investigation  and may grant bail under Rule 110. But we should bear  in  mind that in a preliminary investigation said court determines only the  existence or  absence of probable  cause and then decides  whether to dismiss the case or to elevate  the  same to the  Court of First  Instance.   However, to determine whether a person  accused of a capital  offense is entitled to  bail, the  court  determines not only probable cause but also whether the evidence for the  prosecution  is strong.   To  make this  determination involves a careful appraisal and weighing of the evidence, not only  of  the  prosecution but  also that of the defense, . for the reason that the evidence  of the prosecution alone may be strong but when considered and  weighed  against that of the  defense,  it. may be  weak.  In  this appraisal and weighing of the evidence the court  must pass upon and decide many legal points  requiring  legal  training,  experience,  and knowledge if  not mastery of the law of evidence.   It must  determine  the  admissibility  of  written statements  and  confessions  claimed by  the defense  to have been extorted thru force, intimidation, torture or promise of  reward.  It must determine whether statements, verbal or written, made by the murder victim may be considered as a dying declaration, whether or not spontaneous statements or exclamations uttered by him are part of the res gestae, to determine their  competence and  admissibility. It must be able to tell if the crime committed is murder or simple homicide  for  if the latter, then it is  not a capital offense and so the accused is  entitled to bail; but the determination of this important point involves a finding of the existence or absence of qualifying or merely aggravating (generic)  circumstances and requires knowledge of  the distinction between them.  It must pass upon  the propriety relevancy and materiality of questions asked and the objections thereto.  'I am not sure that a Justice  of the Peace with some exceptions of  course, is in a position to do  all this.  And  I  greatly doubt   that the  Legislature by  the general, if  not vague, terms used   in section  87 of  the Judiciary Act intended to entrust all this task to a Justice . of the Peace who may not even  be a lawyer or to the town mayor who may be a complete stranger to a law book.

We  should also remember that in  a position for bail in capital offenses  the Provincial Fiscal must be  notified and most likely he will appear at the hearing  and fight the application  every inch of the way,' especially when in his opinion the evidence in his hands is strong and the accused is a dangerous criminal  who would likely jump  his  bail. Now, in such  a  prolonged and bitter  legal fight between the  Fiscal  and usually a battery of  defense lawyers, considerable evidence, parole and documentary,  is submitted. One side would be asking questions leading, impertinent or otherwise and  the other vigorously  objecting to them and vice-versa,  and arguing all the  way, and the court must decide all said questions and points on the spot.  The hearing  may last- several days.  When the trial is finally ended and the justice of the Peace retires to his room  to  study the evidence, he has to rely entirely upon his memory unless he has  taken down  notes.   He has no record of the evidence  such as  the transcript of stenographic notes of the testimony of witnesses to refresh his memory, to contrast  the evidence  for the  prosecution  with that of the defense and weigh both in the Judicial balance, because as we have  already  said, this court is not  a court of record and there is no stenographer to take down the evidence. Considering all this, can we in conscience say that the Justice of the Peace is in a position to entertain and decide a petition for bail in a ease involving a  capital  offense?

There is another important question that bears consideration.  Let us suppose that the complaint for a capital offense is  filed  in a  remote municipality  far from the capital. A  petition for bail is  filed.  The law says that the Provincial Fiscal must  be  notified.  For him to  leave his office and a trial being conducted by him in the  Court of First Instance, may not be easy.  He may have to ask for postponement of the  hearing on the petition for bail.  When he finally goes to the remote  town  for the hearing,  he arrives there  with no knowledge whatsoever of the case, much less, of  the evidence of the prosecution.  He would have to call and  confer with the Government  witnesses, take down  their  testimonies and otherwise  prepare  for the hearing.  This may  require several days and in the meantime the  accused  is in  confinement.  The  hearing sometimes is  a full-dress rehearsal  of  the regular  trial and may take several days, all because, the defense attorneys knowing, that the  Fiscal  or his  assistant had come to attend the hearing, have lined up many defense witnesses and  prepared them.  After  the hearing,  the Justice  of the Peace or the Mayor acting  in  his place may also take time to study  the  evidence  submitted and decide the petition for bail.  All this  lapse of time is prejudicial to the accused because in the meantime  he is languishing in jail.   Finally,  the Court finds  that  the evidence  for the prosecution is not strong and  grants  bail.   The case is then  set for preliminary investigation.  This  may have to be done because although the Justice of the Peace found after the hearing on the petition for bail that the evidence for the prosecution was not strong, nevertheless,  to send the case up to the Court of First Instance, requires  only probable cause if proven at the preliminary investigation. After the preliminary investigation and after  the  oral arguments by both parties, the Justice of the Peace decides that there is no probable cause arid he dismisses the complaint.  It is evident that all the proceedings at the hearing on  the  petition for  bail was a waste  of time and effort not only on the part of the court but also of the prosecution and the defense, and  their witnesses, all  because the hearing on the petition for bail was held before the preliminary  investigation.  It would have been better and more proper and advisable to have awaited the result of the preliminary investigation  before filing  a  petition for bail, and  file said petition in the Court  of First Instance if the case is finally elevated to it because if after  the preliminary investigation the case is dismissed and the accused released, then  there  would be no reason or occasion for the  petition  for bail.   In the case  or  example  I  have given,  preliminary  investigation would  not  have lasted more than one or two  hours because the Court  found not even probable  cause, and so the accused would  have  been released immediately; but because  he  filed  a  petition for bail, he spent many days in jail  because the Fiscal had to be notified,  the hearing had to be postponed, extensive preparation were made by both sides, a full-dress hearing was had  where  voluminous  evidence  was  submitted,  all to be studied and weighed by the Justice of the Peace.

Not  infrequently, the accused  in a capital offense are plain bandits  charged  with multiple  murder, homicide, robbery, even rape.   Because of the difficulty of capturing them,  a reward  of  say P20,000 is set upon  the  head of the leader.  After a campaign of months by the Army and the Constabulary  with the aid of informers interested in the reward but after the loss of lives of soldiers and guides, ¦ and expense to the Government of hundreds of thousands of  pesos, including the  payment of rewards, the  bandits are finally- captured.  The corresponding complaint is filed against them in the Justice of the Peace  Court for multiple murder, homicide, kidnapping, robbery, rape, etc.   They file a petition for bail.  If the Justice of the Peace because of the  reasons already given, namely, his limited legal preparation, experience and training, or for complete  lack  of the same in case the Mayor  acts  in the  absence of the Justice of the Peace and his  auxiliary, makes a mistake and grants the  petition for bail, then  all these defendants captured after so much sacrifice and expenses are set free and most likely  would go back to the mountains and forests:. to renew their  acts  of pillage and banditry. On  this particular  point the majority  frankly  admits the, possibility of abuse of such authority to  grant bail  in capital  offense  cases  when it  says;

"Sonic apprehension has been  expressed by  some" members  of the Court over the  fact that if such power  is given to justices  of the peace in capital' cases the power may be abused or improperly exercised considering the fact that some of them are not lawyers  or are politicians like the mayors who may act under  the law when the incumbent justices are temporarily absent {section 3, Rule 108).  While the  possibility of abuse cannot be denied such  cannot argue against the  existence of the power and if there  is need for a remedy such devolves upon Congress.  But before such curative measures is  adopted,  our  duty is to apply the law as we  see it  regardless  of its , implication."

But  in ease of miscarriage of justice  due to abuse, the majority with  admirable ingenuousness,  and with hope and trust  manifestly misplaced, offers a remedy, saying:

"And in the event »that an abuse is committed, the situation is not without  a remedy.  The government can immediately take steps  to obtain appropriate relief and we are sure, the proper court will not  deny prompt  action when  necessary to promote  the interests of justice."

True, the  Fiscal may  petition the  Court  of First Instance  for the  cancellation even  for the  confiscation of the bail bond.   But that  would  be locking the  door of the stable sifter the horse is gone.  What shall it profit the Government to confiscate  said  bonds, even get  their amounts, assuming that  the sureties  are  all solvent,  if after all, the Government  will have to  renew,  even redouble its campaign to recapture the  bandits, offer new rewards and  lose more soldiers and innocent lives.  Why not entrust that  delicate  and  important task of determining in capital offense cases, whether or not the evidence for the prosecution is  strong, for purposes of granting or denying bail, which according to prevailing rule  cited by Kite majority opinion  itself is "a matter of the greatest importance both to the accused and to the state", to the Court of First Instance, where it belongs and where, in the absence of clear  and explicit legal provisions to the contrary, the Legislature in my opinion intended it to be?

Labrador, J.,  concurs.