After serious consideration of the circumstances in this case, we are agreed that the petition is impressed with merit.
A preliminary investigation falls under the authority of the state prosecutor who is given by law the power to direct and control criminal actions. He is, however, subject to the control of the Secretary of Justice. Thus, Section 4, Rule 112 of the Revised Rules of Criminal Procedure provides:
SEC. 4. Resolution of Investigating Prosecutor and its Review. −
x x x x
If upon petition by a proper party under such Rules as the Department of Justice may prescribe or motu proprio, the Secretary of Justice reverses or modifies the resolution of the provincial or city prosecutor or chief state prosecutor, he shall direct the prosecutor concerned either to file the corresponding information without conducting another preliminary investigation, or to dismiss or move for dismissal of the complaint or information with notice to the parties. The same Rule shall apply in preliminary investigations conducted by the officers of the Office of the Ombudsman.
The Secretary of Justice, upon petition by a proper party, can reverse his subordinates (provincial or city prosecutors and their assistants) resolutions finding probable cause against suspects of crimes.[24]
The full discretionary authority to determine probable cause in a preliminary investigation to ascertain sufficient ground for the filing of information rests with the executive branch. Hence, judicial review of the resolution of the Secretary of Justice is limited to a determination whether there has been a grave abuse of discretion amounting to lack or excess of jurisdiction. Courts cannot substitute the executive branchs judgment.[25]
Grave abuse of discretion is defined as such capricious and whimsical exercise of judgment as is equivalent to lack of jurisdiction. The abuse of discretion must be grave as where the power is exercised in an arbitrary or despotic manner by reason of passion or personal hostility and must be so patent and gross as to amount to an evasion of positive duty or to a virtual refusal to perform the duty enjoined by or to act at all in contemplation of law.[26]
The determination of probable cause to warrant the prosecution in court should be consigned and entrusted to the DOJ, as reviewer of the findings of the public prosecutors; to do otherwise is to usurp a duty that exclusively pertains to an executive official.[27]
As department head, the Secretary of Justice has the power to alter, modify, nullify or set aside what a subordinate officer had done in the performance of his duties and to substitute the judgment of the former for that of the latter. While it is the duty of the fiscal to prosecute persons who, according to evidence received from the complainant, are shown to be guilty of a crime, the Secretary of Justice is likewise bound by his oath of office to protect innocent persons from groundless, false or serious prosecutions. He would be committing a serious dereliction of duty if he orders or sanctions the filing of charge sheets based on complaints where he is not convinced that the evidence would warrant the filing of an action in court. He has the ultimate power to decide which as between the conflicting theories of the parties should be believed.[28] The Secretary is empowered to order or perform the very acts questioned in this case.[29]
In Joaquin, Jr. v. Drilon,[30] this Court affirmed the DOJ Secretarys power of control over the authority of a state prosecutor to conduct preliminary investigations on criminal actions. Thus, we held:
In reviewing resolutions of prosecutors, the Secretary of Justice is not precluded from considering errors, although unassigned, for the purpose of determining whether there is probable cause for filing cases in court. He must make his own finding of probable cause and is not confined to the issues raised by the parties during preliminary investigation. Moreover, his findings are not subject to review unless shown to have been made with grave abuse.[31]
It is only where the decision of the Justice Secretary is tainted with grave abuse of discretion amounting to lack or excess of jurisdiction that the Court of Appeals may take cognizance of the case in a petition for certiorari under Rule 65 of the Revised Rules of Civil Procedure. The Court of Appeals decision may then be appealed to this Court by way of a petition for review on certiorari.[32]
In this case, however, the Secretary of Justice committed no grave abuse of discretion. Based on the totality of the evidence presented by both parties, it is clear that there is a dearth of proof to hold petitioners for trial.
The disquisition of the Secretary of Justice deserves more credence than that of the Court of Appeals, because of the following reasons:
First, Dr. Samson Gonzaga, the private physician who signed the death certificate, and Dr. Luis Gamboa, the medico-legal officer of Bacolod City NBI-Iloilo City
Dr. Gamboas post-mortem findings, we note, also did not categorically state foul play as the cause of death:
x x x x
9. Q: Was the death of HANZ DIETRICH ASETRE, based on your findings, suicidal or there was (sic) foul play?
A: I cannot determine that but based on my findings the cause of death was strangulation.[33]
x x x x
Second, we note also that while there is physical evidence to buttress private respondents assertion that there was foul play, that evidence is inconclusive. The ligature that was seen on December 27 or 28, 2000 was no longer the same ligature seen on March 1, 2001 . Since Hanz was obese, the entire ligature will not be very conspicuous. Further, the absence of an upward direction ligature did not necessarily mean that Hanz was strangled. If the bedsheet was tightly wound around Hanzs neck, it is possible that there will be no room for the bedsheet to form an upward direction ligature because of the fatty folds in the skin of Hanz at his neck.
Third, the finding that there was conspiracy to kill Hanz is not supported by any evidence on record and hence must be discarded.
Under Article 8[34] of the Revised Penal Code, there is conspiracy if two or more persons agree to commit a felony and decide to commit it. Conspiracy must be proven during trial with the same quantum of evidence as the felony subject of the agreement of the parties. Conspiracy may be proved by direct or circumstantial evidence consisting of acts, words, or conduct of the alleged conspirators before, during and after the commission of the felony to achieve a common design or purpose.[35]
The Bacolod City Prosecutors Office, in this case, ruled that conspiracy can be deduced from petitioners actuations before, during and after the incident, pointing to a joint purpose of killing Hanz: they were physically and actively interacting with Hanz shortly before he was found dead; they tried to cover up the crime by narrating stories which border on the impossible to the bizarre; nowhere in their counter-affidavits is it stated that Hanz had gone wild when drinking Tanduay that day; Hanz was very quiet at the childrens room and even partook lunch with his cousins; it was unusual for April to call a specific person to pacify Hanz who had allegedly gone wild earlier on the day he died, and unusual for her not to shout for help when she saw Hanz hanging; if she was shocked, her voice could have impelled other people to immediately come upstairs and respond; but it was only Ebcas who came up; Buenaventura Gamboa came up later only when told to call for a taxi; the other employees just continued with their work as if nothing unusual was happening. The Bacolod City Prosecutors Office further ruled that April, as the widow, should have demanded full and exhaustive investigation surrounding Hanzs death to put an end to the questions and speculations on the real cause of death. Also, according to said office, her reason in opposing the exhumation, e.g., that her prior consent was not secured, is flimsy.
All circumstances considered, we find that the DOJ Secretary correctly held that the circumstantial evidence presented by private respondents to prove probable cause against petitioners, does not support the theory of conspiracy to commit murder. Such circumstantial evidence in our view, would not sufficiently warrant a conclusion that private respondents are responsible for the death of Hanz. Petitioners mere presence at the death scene, without more, does not suffice to establish probable cause against them. It is noteworthy that complainants failed to establish conclusively that April, Hanzs cousins, and his workers had an ax to grind against Hanz. The alleged quarrel of the couple the night before the incident is hearsay and could not establish enough credible motive on the part of April, contrary to the opinion of the investigating prosecutor, because the same witness who testified about the alleged fight also stated that the couple had a good relationship and that it was not unusual for the couple to have verbal altercations occasionally. Equally worth stressing is the positive proof that the accused were not the only persons present inside the couples house; and that the door of the gate of the house, including the door of the room where the victim was found hanging, were not so well secured as to exclude the possibility that the act was committed by other persons who were also then present in the house, or even by intruders. April was not attempting to reduce the number of possible witnesses as stated by the investigating prosecutor when she sent her children to Iloilo Iloilo
WHEREFORE, the petition is GRANTED. The Decision of the Court of Appeals dated October 18, 2005 in CA-G.R. SP No. 78493 is REVERSED and the Resolution dated December 17, 2002 of the Department of Justice is AFFIRMED.
