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SECOND DIVISION

A.M. No. 1519 October 27, 1983

WENCESLAO SUMAPIG nicknamed Gogoy PONCIANO PANOY, FAUSTA BALTES and MARCIANO SECO complainants, vs. MACARIO ESMAS, JR. nicknamed Dodong (Assistant Fiscal of Manila), Respondent.chanrobles virtual law library

AQUINO, J.:

This is a disbarment case against Macario Esmas, Jr., an incumbent assistant fiscal of Manila since 1972, on the grounds of gross immorality, malpractice, and gross misconduct in office.

Grossly immoral conduct. - In a verified complaint filed on September 2, 1975, supported by his affidavit of August 18, 1975, Wenceslao Sumapig, a former councilor of Villaba, Leyte, charged Esmas (married to Salud Veloso) with gross immorality for having cohabited in Quezon City with his daughter, Violeta, a virgin of good reputation.chanroblesvirtualawlibrary chanrobles virtual law library

As a result of the cohabitation, Violeta gave birth on June 1, 1975 to a boy who was named Rhett Esmas. The cohabitation was admitted by Esmas in his handwritten letter to Sumapig.chanroblesvirtualawlibrary chanrobles virtual law library

Before Fiscal Esmas could answer the charge, complainant Sumapig in a letter to this Court dated October 1, 1975 withdrew the charge. He divulged that the instigator of the charge was lawyer Narciso Marilao, Jr., who allegedly suspected Esmas of having masterminded the disbarment charge against Marilao filed by Ricardo Rubillos, a first cousin of Esmas (Administrative Case No. 1452, dismissed in this Court's resolution of September 8, 1975).chanroblesvirtualawlibrary chanrobles virtual law library

Fiscal Esmas, with office at Room 311, City Hall, Manila, in his answer of October 8, 1975 attached thereto a copy of Sumapig's withdrawal and also Violeta's affidavit of October 2, 1975. Violeta, 24, single, a medical technologist, categorically alleged that she was riot constituted before the filing of the immorality charge, that it has no factual basis and that she would not testify against Fiscal Esmas.chanroblesvirtualawlibrary chanrobles virtual law library

In view of complainant's change of mind and the attitude of Violeta, this Court in its resolution of October 17, 1975, dismissed the charge.

Malpractice and gross misconduct charge. - In the same complaint of August 18, 1975, which was partly withdrawn by Sumapig, three other complainants named Ponciano Panoy, Fausta Baltes and Marciano Seco charged Fiscal Esmas with having collected five hundred pesos (P500) from Dominador De la Cruz.chanroblesvirtualawlibrary chanrobles virtual law library

It was alleged that Esmas volunteered to handle De la Cruz's case regarding encroachment on his parcel of land in San Isidro, Leyte although Esmas was a fiscal and was prohibited from practising law. Esmas allegedly gave complainant Panoy fifty pesos as ten percent commission for having given the case of De la Cruz to Esmas.chanroblesvirtualawlibrary chanrobles virtual law library

Panoy in his affidavit attached to the complaint alleged that De la Cruz even spent around one hundred pesos for the food and drinks of Esmas and his friends. Esmas filed the case in the San Isidro court but asked lawyer Antonio Villamor to appear in the case.chanroblesvirtualawlibrary chanrobles virtual law library

Fiscal Esmas in his answer alleged that sometime in 1972, when he was in his hometown, Villaba, for a vacation, he was consulted by De la Cruz about an ejectment case which he wanted to file in the municipal court of San Isidro. Esmas referred the case to lawyer Villamor who filed the case and prosecuted it successfully. He said again that lawyer Marilao engineered the disbarment case against him because Marilao suspected Esmas of having instigated the filing by Rubillos of the disbarment case against Marilao chanrobles virtual law library

The charge of malpractice and gross misconduct against Esmas was referred to the Solicitor General for investigation, report and recommendation.chanroblesvirtualawlibrary chanrobles virtual law library

The case was heard on August 3, 1977. Complainants' witnesses, Celestino Velasco and Marciano Seco, testified that they heard Esmas demanding P500 from Dominador De la Cruz for handling De la Cruz's case and that in order to raise the initial payment of P250, De la Cruz borrowed money from several persons. Esmas did not present any evidence.chanroblesvirtualawlibrary chanrobles virtual law library

The lawyer who appeared as counsel for the complainants in the hearings at the Solicitor General's office was Marilao, already mentioned as having been suspected by Esmas of having caused the filing of the instant charges against him.chanroblesvirtualawlibrary chanrobles virtual law library

Marilao migrated to the United States even before he could formally rest the case. During the hearing on October 29, 1981, the Investigator, Solicitor Crescencia A. Caparroso Salva disclosed that she received a handwritten letter from Panoy dated February 25, 1977 stating that he was no longer interested in the case and that he was withdrawing from the case. He was advised to file a formal motion of withdrawal but he did not do so.chanroblesvirtualawlibrary chanrobles virtual law library

We disagree with the Solicitor General's conclusion that it is highly improbable for an assistant fiscal of Manila to openly engage in private practice, knowing fully well that he is precluded from doing so. The preponderance of evidence sustains the charge of malpractice and gross misconduct.chanroblesvirtualawlibrary chanrobles virtual law library

Although Esmas did not actively practise law and did not appear for De la Cruz and his name never appeared in any pleading, yet he took advantage of the victim's ignorance to extract the amount of P500 from him on the pretext that he would handle the ejectment case. Esmas deserves to be censured for his misconduct.chanroblesvirtualawlibrary chanrobles virtual law library

WHEREFORE, respondent, Esmas is severely censured for having collected attorney's fees from De la Cruz while he was serving as assistant fiscal of Manila.chanroblesvirtualawlibrarychanrobles virtual law library

SO ORDERED.

Makasiar Chairman, Guerrero, Escolin and Gutierrez, Jr., JJ., concur.chanroblesvirtualawlibrary chanrobles virtual law library

Abad Santos, J., took no part.chanroblesvirtualawlibrary chanrobles virtual law library

Gutierrez, J., was designated to sit in the Second Division.chanroblesvirtualawlibrary chanrobles virtual law library

Concepcion Jr. and De Castro, JJ., are on leave.