FIRST DIVISION

[G.R. No. L-36210. June 25, 1973.]

MODESTO GAMARA , petitioner, vs. HON. GABRIEL VALERO, in his

capacity as Judge of the Court of First Instance of Laguna, Branch
II, HON. DELFIN F. CRUZ, in his capacity as Actg. Provincial Fiscal of
Laguna, Military Tribunal which may be created by the Chief of
Staff, Armed Forces of the Philippines, etc. , respondents.

Rustico F . de los Reyes, Jr. for petitioner.

Solicitor General Estelito P. Mendoza, Assistant Solicitor General Rosalio A. de
Leon and Solicitor Leonardo I . Cruz for respondents.

DECISION

BARREDO , J : p

Petition for certiorari and prohibition impugning the order of respondent judge
"dated January 5, 1973 (and January 16, 1973) ordering the Clerk of the Court of First
Instance to forward immediately the records of the case (of Direct Assault with Double
Murder led against petitioner and others, originally instituted on May 12, 1972 in the
Municipal Court of Siniloan, Laguna and later remanded to the court of respondent
judge wherein on August 30, 1972, the corresponding information was lodged by
Provincial Fiscal Del n F. Cruz and which was then being reinvestigated by the scal) to
the Military Tribunal on the ground that 'the case falls under paragraph 17 of General
Order No. 12, as amended, up to 12-C'." On February 2, 1973, the Court resolved to
require respondents to answer and as prayed for by petitioner, a restraining order was
issued enjoining implementation of the order complained of. Instead of ling an answer
on behalf of respondents, the Solicitor General filed on March 14, 1973 the following:
"M A N I F E S T A T I O N
COME NOW the undersigned counsel and to this Honorable Court
respectfully show:
1. Brought for review, by way of certiorari and prohibition, before this
Honorable Court, under the present petition, is the Order dated January 5. 1973
(Annex "F") promulgated by respondent Honorable Gabriel Valero, presiding
Judge of Branch II, Court of First Instance of Laguna, sitting at, and holding
sessions in, Sta. Cruz, Laguna. The questioned order, in effect, directs the
transmittal of the records in Criminal Case No. SC-486, entitled People of the
Philippines, Plaintiff, versus Rodolfo Gamara, Clodualdo Castro, Ignacio Flores,
and Modesto Gamara, Accused, to the Military Tribunal where, in the opinion of
the respondent presiding judge, it should be tried — the later concluding that the
crime charged under the said case was committed by a band. The respondent
presiding judge based his action on the provisions of General Orders No. 12, as
amended by 12-A, 12-B and 12-C, issued and ordained by the Chief Executive in
his capacity as Commander-in-Chief of all the Armed Forces of the Philippines
on September 30, 1972, October 2, 1972, November 7, 1972, and November 9,
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 1972, respectively, in pursuance of Proclamation No. 1081 dated September 21,
1971 placing the entire country under the operation of martial law. In the
issuance of the order sought to be reviewed, the respondent judge relied
basically on the provisions of paragraph No. 17, General Orders No. 12-B, which
provides as follows:

'Those involving crimes against persons, and crimes against property, as

de ned and penalized in the Revised Penal Code, when committed by a
syndicate or by a band. For this purpose, the offense shall be deemed
committed by a syndicate if planned and carried out by a group of three (3)
or more persons formed with the intention of carrying out any unlawful or
illegal transaction, enterprise or scheme. And whenever more than three
armed malefactors shall have acted together in the commission of an
offense, it shall be deemed to have been committed by a band.'

2. Contending the action of the presiding judge to be an error,

petitioner Modesto Gamara, who is one of the four accused in Criminal Case No.
SC-486, argued as follows:
(a) His alleged participation in the commission of the crime involved
in Criminal Case No. SC-486, as de ned in the pertinent information (Annex "D"),
is undoubtedly in the nature of a principal by inducement;
(b) As such he was not shown to have been armed at the time of the
commission thereof;
(c) Besides, even if he were found to be armed and that his
participation in the commission of the crime involved with three others would
necessarily constitute a band, the fact that he were a civilian (not member of the
armed forces) and the case having been taken cognizance by the Court of First
Instance of Laguna even before the promulgation of the general orders involved,
the instant case would necessarily fall under exceptions provided for in the
transitory provisions of General Orders No. 12-B, quoted as follows:
'In cases under Nos. 16, 17, 18 and 19 above the civil courts shall have
concurrent jurisdiction with the military tribunals if the accused is a civilian. The
court or tribunal that rst assumes jurisdiction shall exercise jurisdiction to the
exclusion of all others.'
3. Contentions of respective parties viewed in the light of the
provisions of the general orders involved, we are prone to accept the validity of
petitioner's side:
Firstly, 'Band' as de ned both in paragraph 17, General Orders No 12-B
and paragraph 6, Art. 14, Revised Penal Code, requires the participation of more
than three armed malefactors acting together in the commission of an offense.
While the information in Criminal Case No. SC-486 charges four persons,
namely: Rodolfo Gamara, Ignacio Flores, Clodualdo Castro and Modesto
Gamara (petitioner herein), it was not, however, shown that all of them were
armed when they allegedly acted in concert in the commission of 'Direct Assault
with Double Murder' against the persons of Lorenzo Reyes and Francisco
Leopando. What is more, the supposed participation of petitioner herein,
Modesto Gamara, as de ned in the same information, was that of principal by
inducement, which undoubtedly connotes that he has no direct participation in
the perpetration thereof.
As it is aptly stated by a leading authority in criminal law:
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 'The mere fact that there are more than three armed men at the scene of
the crime does not prove the existence of a band, if only one of them committed
the crime while the others were not aware of the commission of the crime. The
de nition of 'by a band' says that the armed men 'shall have acted together in
the commission of the offense.'
'The band must be composed of more than three armed persons. Hence
even if there are 20 persons, but only 3 are armed, this aggravating
circumstance by a band cannot be considered (U.S. vs. Mendigoren, 1 Phil. 658;
see also U.S. vs. Melegrito, 11 Phil. 229; Rev. Penal Code, Book One, 9th Ed.
Revised 1971, pp. 320-321 by Luis B. Reyes).
Secondly. Even if the offense at bar were committed by a band as
postulated by the respondent judge, the fact that the same was —
(a) committed on May 11, 1972;
(b) the object of a valid criminal complaint led before the Municipal
Court of Siniloan which was docketed therein as Criminal Case No. 1727
entitled People of the Philippines vs. Rodolfo Gamara, Clodualdo Castro, Ignacio
Flores and Modesto Gamara, on May 12, 1972;
(c) Object of the information in Criminal Case No. SC-486, entitled
People of the Philippines vs. Rodolfo Gamara, Clodualdo Castro, Ignacio Flores
and Modesto Gamara, led with the Court of First Instance of Laguna under
date of August 30, 1972 after properly having been proceeded upon before the
Municipal Court of Siniloan; all of which event and/or proceedings having taken
place PR OR to the declaration of Martial Law under Proclamation No. 1081,
dated September 21, 1971 and the issuance of General Orders Nos. 12, 12-A, 12-
B and 12-C in connection therewith and AFTER the Court of First Instance of
Laguna had taken cognizance of Criminal Case No. SC-486 (supra), the
transmittal of the pertinent records, by virtue of the questioned order (Annex "E")
clearly contravenes the saving clause of General Orders No. 12-B which (to
repeat for emphasis) reads as follows:
'In cases under Nos. 16, 17, 18 and 19 above, the Civil courts shall have
concurrent jurisdiction with the military tribunals if the accused is a
civilian. The court or tribunal that rst assumes jurisdiction shall exercise
jurisdiction to the exclusion of all others.
The petitioner herein and his alleged companions, not being members of
the Armed Forces of the Philippines, are certainly categorized as civilians.
As such civilians and considering that the Court of First Instance of
Laguna had already exercised jurisdiction over Criminal Case No. SC-486
FIRST, the said Court cannot simply abdicate such jurisdiction in favor of
the Military Tribunal. It has to continue its proceedings thereof to its
conclusion. This is also true even if the crime involved were said to have
been committed by a 'syndicate' as this term is understood in the light of
the provisions of General Orders No. 12-B.

4. As a matter of fact even if we were to consider the questioned

order of the respondent presiding judge of the Court of First Instance of Laguna
(Branch II) on the basis of the combined provisions of General Orders No. 12,
12-A, 12-B, and 12-C, which treat on speci c crimes, the same would not still
come within the mantle of these orders' coverage, especially considering the
transitory provisions thereof which provide as follows:

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 '1. Cases now pending in civil courts, whether or not there has been
arraignment, shall be tried and decided by said civil courts except criminal
cases involving subversion, sedition, insurrection or rebellion and those
committed in furtherance of, on the occasion of, incident to or in
connection with the commission of said crimes which shall be transferred
to military tribunals.

'2. Cases led on or before September 22, 1972, (when General Order
No. 3 was promulgated) with the o ces of City or Provincial Fiscals or the
courts for preliminary investigation except cases involving subversion,
sedition, insurrection or rebellion, shall be investigated by the City or
Provincial Fiscals or the Judges concerned, and the corresponding
information shall be led in the proper civil courts. Cases involving
subversion, sedition, insurrection or rebellion shall immediately be
forwarded to the military tribunals through the O ce of the Judge
Advocate General, Armed Forces of the Philippines.

'3. Cases involving crimes within the exclusive jurisdiction of military

courts, which are led after September 22, 1972 with the o ces of City or
Provincial Fiscals or the courts for preliminary investigation, shall be
investigated by the City or Provincial Fiscals or the Judges concerned, but
the corresponding information will be led with military tribunals.' (italics
supplied)
5. In view of the foregoing discussions, we humbly beg leave of the
Honorable Court to allow us submit this manifestation in lieu of the requisite
answer to the instant petition.

Manila, March 9, 1973."

Inasmuch as the facts stated in the above manifestation are borne by the record,
and the views and observations of the Solicitor General therein being well taken, We see
no reason for further action in this case and the same may be considered as submitted
for decision.
WHEREFORE, judgment is hereby rendered granting the petition. The
aforementioned orders of respondent judge of January 5 and 16, 1973 are hereby
declared null and void, the same being unjusti ed in law. Respondent judge is further
ordered to continue taking cognizance of the case of petitioner above referred to,
Criminal Case No. SC-486 of the Court of First Instance of Laguna. The restraining order
heretofore issued is hereby made permanent. No costs.
Makalintal, Actg. C.J., Zaldivar, Castro, Fernando, Teehankee, Makasiar, Antonio
and Esguerra, JJ., concur.

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