Professional Documents
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THE PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v.
MIGUEL N. MORENO (alias CAPTAIN MORENO), DefendantAppellant.
Almacen & Almacen for Appellant.
First Assistant Solicitor General Roberto A. Gianzon and
Solicitor Luis Feria for Appellee.
SYLLABUS
1. CRIMINAL LAW AND PROCEDURE; TREASON; POSTPONEMENT
OF HEARING, TIME FOR FILING. There cannot be any question
that a petition or a motion for postponement of hearing can be filed
before or after arraignment. The proper time for filing said petition
or motion is not provided for in section 7 of Rule 114, which is only
intended to guaranty that "after a plea of not guilty, . . . the
defendant is entitled to at least two days to prepare for
trial."cralaw
virtua1aw
library
2. ID.; ID.; JUDGES; ABSENCE OF DISQUALIFICATION; DUTY TO
TAKE COGNIZANCE OF A CASE. To take or not to take
cognizance of a case, does not depend upon the discretion of a
judge not legally disqualified to sit in a given case. It is his duty not
to sit in its trial and decision if legally disqualified; but if the judge
is not disqualified, it is a matter of official duty for him to proceed
with the trial and decision of the case. He cannot shirk the
responsibility without the risk of being called upon to account for
his
dereliction.
3. ID.; ID.; TRIAL; JUDGES TO PROPOUND QUESTION TO ELICIT
THE TRUTH FROM WITNESSES. There is nothing on record to
show that anyone of the judges of the trial court attempted to help
the prosecution. The question propounded by the judge, subject of
appellants complain, appeared to have been intended to elicit the
truth from the witnesses. The inquisitiveness complained of by
appellants counsel did not have the purpose of unduly harming the
substantial rights of the accused. It was only to be expected from
judges who, with full consciousness of their responsibilities, could
nor easily be satisfied with incompleteness and obscurities in the
testimonies.
4. ID.; ID.; ID.; OCULAR INSPECTION DISCRETIONARY.
Whether such an ocular inspection should have been made or not,
rested upon the discretion of the trial court. In the instant case
there is no showing that the trial court committed a grave abuse of
discretion.
5.
ID.;
ID.;
FINDINGS
OF
FACT
OF
TRIAL
COURT,
CONCLUSIVENESS OF. This court is fully satisfied that the
findings of fact of the trial court are substantially supported by the
evidence on record. This conclusion disposes of the appellants
contentions as to the last three alleged errors of the lower court.
The appellant admitted that he is a Filipino citizen.
DECISION
PERFECTO, J.:
At the outbreak of the war in 1941 appellant was serving sentence
in the San Ramon Penal Farm where he was assigned as assistant
chief of the machinery and engineering division. He says that he
was also designated by USAFFE Major Pitcher to take charge of the
observation squadron of the Penal Colony, and, as such observer,
he was ordered, together with the superintendent of the institution,
Severo Yap, to burn the wharf in Recodo, get some machinery and
truck nearby and bring them to San Ramon. At the time there was
a jail break and so he, together with some guards, was ordered to
apprehend the escapees. According to him, he was later on
pardoned by President Quezon, and the order of pardon was
received by the superintendent of the colony, a copy of which was
handed
to
him
in
the
early
part
of
1942.
After the Japanese had landed in Zamboanga, defendant was made
a commander of the "Kaigun Juitai," a military organization
attached to the Japanese naval police of Zamboanga. As such he
was authorized to possess a .45 caliber revolver, a Japanese saber,
and a "caborata" and to wear a uniform of blue denim shirt and
pants and an olive green cap with an anchor at the front. He
allowed
his
beard
to
grow
down
to
his
chest.
Those in the house assembled in the sala. Heddy del Rosario came
telling that: "It is exactly 10:05." After a conference, Del Rosario
took his wrist watch and handed it to Alvarez telling him: "Give it
to them." Alvarez was about to follow the suggestion but in the
middle of the stairs he became afraid and told Galle that he could
not comply as it was dangerous for him to do so. Galle took the
wrist watch and went downstairs with a light in his right hand, but
returned because he was ordered by the men outside to put out
the light. When he went down again he was followed by Alvarez.
There
he
met
the Appellant.
Appellant Moreno asked Alvarez for Del Rosario and ordered Galle
to go with him outside. Galle refused and so Moreno struck him.
Then Galle said: "You can do anything you want." Whereupon,
shots
were
heard
and
Galle
fell
down.
Heddy del Rosario sounded the alarm, but Moreno shouted: "Stop
that sounding and put out the light." When the light was about to
be put out, another shot was fired which entered the room where
Olimpia Alvarez was, and so Alvarez ran and jumped to the other
side of the barbed wire fence, then went down to a brook and hid
in
a
bamboo
grove.
The next morning, at about 6 oclock, Moreno came again with his
men and started firing many shots at the house. Sometime later,
Alvarez was able to count more than two hundred empty shells in
the yard. During the firing that morning Alvarez and his daughter
were able to escape by the back yard to about two hundred meters
away where they took a vinta and went to Talisayan. Alvarez saw
Galles
house
burning.
Within the house ten persons were killed, Otto Galle, his wife Ines,
Eduardo del Rosario, Heddy del Rosario, Nene del Rosario, Fred del
Rosario, two maids Alejandra and Gregoria, Cristino Geronimo and
Andres Fabian. According to Elena Casongcay, a maid who was able
to witness the proceeding from a hidden place near the fence, after
the assailants had looted the house of its many personal
belongings, Moreno ordered his men to burn it. Blas Francisco, a
worker in the service of Galle and who had survived from that
holocaust, substantially corroborated both Alvarez and Elena
Casongcay.
On April 22, 1944, appellant also took active part in the arrest in
Labuan of Eulogio and Dionisio Biel and of Enrique Fargas, made by
a group of Japanese and Filipino soldiers. The two Biels were
arrested because of the help they were giving to the guerrillas. The
three arrested persons were at about 4 oclock in the afternoon
taken in a truck to San Ramon Penal Colony and on April 28 they
were seen by Filoteo being escorted by Japanese soldiers on a
truck bound for the City Hall Building of Zamboanga. None of them
were ever heard of or seen alive since then. These facts are proven
by the testimonies of Patrocinio Vda. de Biel, Agueda Vda. de Biel,
Romula
Biel,
Fermin
Filoteo
and
Mamerto
de
Leon.
In the morning of February 11, 1944, another patrol of armed
Japanese and "Kaigun Juitai" Filipino soldiers, led by appellant as
one of the leaders, arrived at the house of Venancio Ventura in
Boongan, Isabela de Basilan, Zamboanga. Several persons in the
house were called by the members of the patrol for investigation.
After Eduardo Ventura, one of the members of the patrol, had
started to make investigation about the guerrillas and their
activities in the place, shots were fired from a nearby hill directed
towards the patrol, the members of which laid flat on the ground
and returned the shots. The firing lasted almost half an hour. While
the firing was going on, Prudencio and Raymundo Nonial ran away
to a nearby bush and were able to escape. After the shooting had
ceased, Moreno and his companions continued investigating
Agustin and Claro Nonial regarding the whereabouts of Ramon and
Miguel Nonial, lieutenant and surgeon respectively of the guerrillas
at Bangue. Because of their denials, they were slapped and struck
with fist blows. Agustin Ventura, Venancio Ventura, Claro Nonial,
Agustin Nonial, Agustin Laracochea and Victor Garcia were ordered
to march in single file. After they walked for about thirty meters,
Eduardo Ventura ordered them to turn to the left and on
appellants order, he machine-gunned them all. Agustin and Claro
Nonial were instantly killed, while the four others were wounded.
The
left
arm
of
Laracochea
was
later
amputated.
unless the court for good cause shown shall allow further
time."cralaw
virtua1aw
library
The prosecution contends that appellant cannot invoke the above
provision, because the petition was made before the arraignment,
and the proper time for filing the petition is after arraignment and
a plea of not guilty, and not before. The prosecution contends
further that, from what appears in the transcript, counsel has
waived the right for postponement because, when asked whether
he had any objection to the prosecution introducing its evidence,
he answered: "Yes, Your Honor without prejudice to reserve our
right to ask for the postponement for the presentation of the
evidence
for
the
defense."
(2).
There cannot be any question that a petition or a motion for
postponement of hearing can be filed before or after arraignment.
The proper time for filing said petition or motion is not provided for
in section 7 of Rule 114, which is only intended to guaranty that
"after a plea of not guilty, . . .the defendant is entitled to at least
two days to prepare for trial."cralaw virtua1aw library
There is conflict of opinion as to whether defendants counsel made
expressed waiver of his petition for postponement. The majority
had voted affirmatively. Although the majority vote appears to be
supported by the wording of counsels statement in the lower court,
the writers dissenting vote was cast on the ground that said
statement should be interpreted jointly with the petition for
postponement and the statements made by the court, the fiscal
and the accuseds counsel, made before and after the statements
in question, and all said circumstances when considered make the
waiver at least doubtful.
II
"The trial court erred in denying the petition of appellant for the
voluntary inhibition of the trial judge who tried this case for the
simple reason that they had already formed a biased opinion and
therefore could not render an impartial judgment." (1).
Because of the fact that Judge Florentino Saguin one of the
members of the trial court had sentenced appellant for murder
"The trial court erred in finding appellant herein guilty of the crime
charged."cralaw virtua1aw library
VIII
"The trial court erred in holding appellant guilty and responsible for
the crime of high treason complexed with multiple murders, and in
not
acquitting
him."
(1).
This court is fully satisfied that the findings of fact of the trial court
are substantially supported by the evidence on record. This
conclusion disposes of the appellants contentions as to the last
three alleged errors of the lower court. The appellant admitted that
he
is
a
Filipino
citizen.
Upon the facts proved we find that appellant is guilty of the crime
of treason as punished under article 114 of the Revised Penal
Code.
A majority voted for the affirmance of the appealed judgment,
while there are minority members who voted that appellant be
sentenced to reclusion perpetua. The writer, as a result of his
position regarding the non-postponement of the trial in the lower
court, voted to remand this case for a re-trial in the lower court.
The
final
result
is
to
modify
the
judgment.
Accordingly, appellant is sentenced to reclusion perpetua and to
pay a fine of P10,000 and the costs. Under the ruling in People v.
Amansec (80 Phil., 424, 435) he is also ordered to pay an
indemnity of P90,000 at the rate of P6,000 to the respective heirs
of each one of the following fifteen persons: Otto Galle, Ines Galle,
Eduardo del Rosario, Heddy del Rosario, Nene del Rosario, Fred del
Rosario, maids Alejandra and Gregoria, Cristino Geronimo, Andres
Fabian, Eulogio Biel, Dionisio Biel, Enrique Fargas, Agustin Nonial
and Claro Nonial. With these modifications the appealed judgment
is
affirmed.
Moran, C.J., Paras, Bengzon, Briones and Montemayor, JJ., concur.
G.R. No. L-55177 February 27, 1987
PEOPLE
OF
THE
vs.
RUBEN MANALO, defendant-appellant.
PHILIPPINES, plaintiff-appellee,
recently been aggravated by the fatal stabbing of a member of the SigueSigue Sputnik gang by members of the BCJ gang.
On 6 February 1978, Ruben Manalo was charged with murder in an
information which read as follows:
FELICIANO, J.:
The judgment of the former Circuit Criminal Court of Rizal in Criminal Case
No. CCC-VII-2505 finding Ruben Manalo guilty of murder and imposing the
death penalty, is before us on automatic review.
The record discloses that in the morning of 23 May 1977, appellant Ruben
Manalo, a prisoner serving sentence in the National Bilibid Prison, was at the
visiting area of the prison waiting for transfer to the San Ramon Penal
Colony. Alfredo de la Cruz, Jolly Hilario and Reynaldo Cariso, all convicted
prisoners serving their respective sentences, were similarly waiting in the
same visiting area for transfer to the same penal colony. While at the visiting
area, appellant engaged another convict in a betting game called "honkiang",
after which appellant and dela Cruz indulged in speculation concerning their
prospective life in the penal colony. During this conversation, appellant
attacked dela Cruz with a knife, inflicting two fatal stabwounds on the latter's
back. Immediately after the stabbing, appellant voluntarily surrendered to the
prison authorities and handed over the fan knife (balisong) he used in killing
dela Cruz.
Immediately after the killing and the appellant's surrender, the appellant was
investigated by the prison authorities. During this investigation, Ruben
Manalo readily admitted verbally having stabbed the victim and nonchalantly
advised that the fan knife he used had been bought by him for P25.00 a
month ago and had been concealed inside his right rubber shoe and so was
not discovered by the prison guard who had searched him before entering
the Visiting Shed.
The investigation also revealed that the victim was a member of the BCJ
(Batang City Jail gang from prison Dormitory 3D while Ruben Manalo is a
member of the Sigue Sigue Sputnik gang from prison Dormitory 2B. These
two gangs have had a serious, ongoing feud for a long time, winch had
IPINAGUUTOS.
A It is possible.
In his brief, appellant does not question the finding of the trial court that he
had killed Alfredo dela Cruz. Instead, the appellant assigns two distinct
errors:
(1) the proceedings in the trial court were null and void since certain
constitutional rights of the appellant had been disregarded therein; and
(2) the trial court erred in finding that the killing of dela Cruz had been
attended by the qualifying circumstances of evident premeditation and
treachery.
In respect of the first assigned error, it is the contention of the appellant that
he was deprived of his constitutional right to due process, to be presumed
innocent until the contrary is proved, to an impartial trial and to counsel, by
reason of the lower court's partiality, bias and lack of objectivity during the
trial. The appellant urges that since the trial-court was not an impartial
tribunal, all the proceedings before it should be set aside as null and void.
COURT Proceed.
xxx xxx xxx 2
The appellant claims that the above interventions of the trial court show that,
at the very outset, the judge had already concluded that appellant was guilty
of murder and had resolved to convict him; that the trial court had functioned
"both as judge and prosecutor" asking questions of witnesses "calculated to
establish treachery, premeditation and motive"; that the questions raised by
the trial court were exceptionable ones, being "leading, misleading, caged for
opinions or were objectionable on the ground of the witness' incompetence";
and that therefore, appellant "never had a fair chance." 3
We are not persuaded by the appellant's contention. As long ago as 1915,
this Court held that:
the previous [fourth] hearing) and thereupon proceeded with the trial of the
case.
Appellant raises the entertaining, if rhetorical question of how ably his
counsel de oficio could defend him since they were playing musical chairs
hearing after hearing." 6 Thus, the appellant asserts that his right to counsel
was "but a sham." that by appointing multiple counsel de oficio the trial court
did not effectively provide him with the assistance and protection required by
the Constitution. 7
The appellant's argument is novel and interesting but, once more, we are not
persuaded that there has here been a deprivation of a constitutional right
which requires annulment of all the proceedings before the trial court. We do
not believe that the fact that a particular counsel de oficio did not or could not
consistently appear in all the hearings of the case, is effectively a denial of
the right to counsel, especially so where, as in the instant case, there is no
showing that the several appointed counsel de oficio in any way neglected to
perform their duties to the appellant and to the trial court and that the
defense had suffered in any substantial sense therefrom. Fairness to the
several counsel de oficio requires us to note the record which reveals that
each of them had conscientiously performed their duties in assisting the
appellant and protecting his interest by, for instance, making the necessary
objections in a timely manner during the examination of the prosecution
witnesses to test their credibility and freedom from bias or evil
motive. 8 Contrary to the suggestion of the appellant, Atty. Agoot was not
entitled to a recess of two days to prepare to defend the appellant after Atty.
Agoot was re-appointed counsel de oficio at the fifth hearing. That lawyer
had previously been designated counsel de oficio during the preceding
(fourth) hearing. 9 Both the appellant and the court had therefore the right to
expect that counsel de oficio was familiar with the facts of the appellant's
case and that he had prepared himself for the fifth hearing since his prior
appointment as counsel de oficio had not been revoked by the trial court. In
point of fact, his designation once more as counsel de oficio during the fifth
hearing was totally unnecessary. In any case, Rule 116, Section 5 of the
Rules of Court gives the trial judge discretion to shorten or extend the time
given to an attorney de oficio to prepare his defense.
10
FRANCISCO
BELTRAN, petitioner,
vs.
FELIX SAMSON, Judge of the Second Judicial District, and FRANCISCO
JOSE, Provincial Fiscal of Isabela, respondents.
Gregorio
P.
Formoso
and
Vicente
The respondents in their own behalf.
Formoso
for
petitioner.
ROMUALDEZ, J.:
This is a petition for a writ of prohibition, wherein the petitioner complains that
the respondent judge ordered him to appear before the provincial fiscal to
take dictation in his own handwriting from the latter.
The order was given upon petition of said fiscal for the purpose of comparing
the petitioner's handwriting and determining whether or not it is he who wrote
certain documents supposed to be falsified.
There is no question as to the facts alleged in the complaint filed in these
proceedings; but the respondents contend that the petitioner is not entitled to
the remedy applied for, inasmuch as the order prayed for by the provincial
fiscal and later granted by the court below, and again which the instant action
was brought, is based on the provisions of section 1687 of the Administrative
Code and on the doctrine laid down in the cases of People vs. Badilla (48
Phil., 718); United States vs. Tan Teng (23 Phil., 145); United States vs. Ong
Siu Hong (36 Phil., 735), cited by counsel for the respondents, and in the
case of Villaflor vs. Summers (41 Phil., 62) cited by the judge in the order in
question.
Of course, the fiscal under section 1687 of the Administrative Code, and the
proper judge, upon motion of the fiscal, may compel witnesses to be present
at the investigation of any crime or misdemeanor. But this power must be
exercised without prejudice to the constitutional rights of persons cited to
appear.
11
And the petitioner, in refusing to perform what the fiscal demanded, seeks
refuge in the constitutional provision contained in the Jones Law and
incorporated in General Orders, No. 58.
12
13
And we say that the present case is more serious than that of compelling the
production of documents or chattels, because here the witness is compelled
to write and create, by means of the act of writing, evidence which does not
exist, and which may identify him as the falsifier. And for this reason the
same eminent author, Professor Wigmore, explaining the matter of the
production of documents and chattels, in the passage cited, adds:
For though the disclosure thus sought be not oral in form, and
though the documents or chattels be already in existence and not
desired to be first written and created by testimonial act or utterance
of the person in response to the process, still no line can be drawn
short of any process which treats him as a witness; because in virtue
it would be at any time liable to make oath to the identity or
authenticity or origin of the articles produced. (Ibid., pp. 864-865.)
(Emphasis ours.)
It cannot be contended in the present case that if permission to obtain a
specimen of the petitioner's handwriting is not granted, the crime would go
unpunished. Considering the circumstance that the petitioner is a municipal
treasurer, according to Exhibit A, it should not be a difficult matter for the
fiscal to obtained genuine specimens of his handwriting. But even supposing
it is impossible to obtain specimen or specimens without resorting to the
means complained herein, that is no reason for trampling upon a personal
right guaranteed by the constitution. It might be true that in some cases
criminals may succeed in evading the hand of justice, but such cases are
accidental and do not constitute the raison d' etre of the privilege. This
constitutional privilege exists for the protection of innocent persons.
With respect to the judgments rendered by this court and cited on behalf of
the respondents, it should be remembered that in the case of People vs.
Badilla (48 Phil., 718), it does not appear that the defendants and other
witnesses were questioned by the fiscal against their will, and if they did not
refuse to answer, they must be understood to have waived their constitutional
privilege, as they could certainly do.
The same holds good in the case of United States vs. Tan Teng (23 Phil.,
145), were the defendant did not oppose the extraction from his body of the
substance later used as evidence against him.
In the case of Villaflor vs. Summers (41 Phil., 62), it was plainly stated that
the court preferred to rest its decision on the reason of the case rather than
on blind adherence to tradition. The said reason of the case there consisted
in that it was the case of the examination of the body by physicians, which
could be and doubtless was interpreted by this court, as being no compulsion
of the petitioner therein to furnish evidence by means of testimonial act. In
reality she was not compelled to execute any positive act, much less a
testimonial act; she was only enjoined from something preventing the
examination; all of which is very different from what is required of the
petitioner of the present case, where it is sought to compel him to perform
a positive, testimonial act, to write and give a specimen of his handwriting for
the purpose of comparison. Besides, in the case of Villamor vs. Summers, it
was sought to exhibit something already in existence, while in the case at
bar, the question deals with something not yet in existence, and it is precisely
sought to compel the petitioner to make, prepare, or produce by this means,
evidence not yet in existence; in short, to create this evidence which may
seriously incriminate him.
Similar considerations suggest themselves to us with regard to the case of
United States vs. Ong Siu Hong (36 Phil., 735), wherein the defendant was
not compelled to perform any testimonial act, but to take out of his mouth the
morphine he had there. It was not compelling him to testify or to be a witness
or to furnish, much less make, prepare, or create through a testimonial act,
evidence for his own condemnation.
Wherefore, we find the present action well taken, and it is ordered that the
respondents and those under their orders desist and abstain absolutely and
forever from compelling the petitioner to take down dictation in his
handwriting for the purpose of submitting the latter for comparison.
Without express pronouncement as to costs. So ordered.
14
MARIA
vs.
LEODEGARIO D. CASTILLO, respondent.
G.
Viola
Fernando
Office
of
the
Solicitor-General
The respondent in his own behalf.
hilado
BERMUDEZ, complainant,
for
for
the
complainant.
Government.
DIAZ, J.:
In the course of the investigation which was being conducted by the office of
the Solicitor-General against the respondent, in connection with this
15
16
a way that the protection referred to therein extends to all cases, be they
criminal, civil or administrative. The constitution provides: "No person shall be
compelled to be a witness against himself." It should be noted that before it
was attempted to require the complainant to copy the six documents abovestated, she had sworn to tell the truth before the investigator authorized to
receive statements under oath, and under said oath she asserted that the
documents in question had not been written by her. Were she compelled to
write and were it proven by means of what she might write later that said
documents had really been written by her, it would be impossible for her to
evade prosecution for perjury, inasmuch as it would be warranted by article
183 of the Revised Penal Code, which reads:
The penalty of arresto mayor in its maximum period to prision
correccional in its minimum period shall be imposed upon any
person who, knowingly making untruthful statements and not being
included in the provisions of the next preceding articles, shall testify
under oath, or make an affidavit, upon any material matter before a
competent person authorized to administer an oath in cases in which
the law so requires.
Any person who, in case of a solemn affirmation made a lieu of an
oath shall commit any of the falsehoods mentioned in this and the
preceding articles of this section, shall suffer the respective penalties
provided therein.
The respondent invokes in his support the doctrine laid sown in Ex
Parte Crow (14 Pac. [2d series], 918), to the effect that ". . . a witness may
not arbitrarily refuse to answer a question on the ground that his answer
might incriminate him when the court can determine as a matter of law that
'no direct answer which the witness may make can tend to criminate him.'" It
must be taken into account that the question asked the petitioner in said
case, as stated by the prosecuting attorney, was only a preliminary question,
as it was simply attempted to learn from her who was with her on a certain
occasion, and on what date, to the best of her recollection, had she visited
Dr. Groose. She refused to answer said questions alleging that her answer
might incriminate her. The court upheld her saying:
We are therefore of the opinion that the trial court erred when it
determined as a matter of law that petitioners answer to the
questions propounded could have no tendency to incriminate her.
They clearly might have such tendency, and it was petitioners right
and privilege to decline to answer any of the above-mentioned
questions upon the ground stated. We fully realize the difficulty
encountered in the prosecution of cases under section 274 of the
Penal Code when those present and capable of establishing the
facts are unwilling to testify because of fear of subjecting themselves
to prosecution. But the constitutional and statutory guaranties
accorded to petitioner cannot be swept aside merely because they
may result in making difficult, or even impossible, the conviction of
the accused.
The respondent likewise invokes in his support doctrine laid down in
re Mackenzie (100 Vt. Rep., 325). This court is of the opinion that what had
been said in the above-cited case is not applicable to the case under
consideration. The petitioner Mackenzie, upon being required after he had
pleaded guilty of intoxication to disclose the person or persons who had
furnished him the liquor, said that they were stranger to him, whom he met
late in the evening in Barre. The court, considering his alleged disclosure
unsatisfactory, ordered him committed to jail until he should tell the truth or
until further orders. He instituted habeas corpus proceedings in his favor
alleging in his pleading that as he had already made a truthful disclosure, the
result of his commitment would be to compel him to deny his former
statements and make others which would make him guilty of perjury. The
court, deciding the question, said:
The privilege against self-crimination is a personal one. . . . But the
privilege is an option of refusal, not a prohibition of inquiry. Hence,
when an ordinary witness is on the stand, and self-criminating act
relevant to the issue is desired to be shown by him, the question may
be asked, and then it is for the witness to say whether he will answer
it or claim its privilege, for it cannot be known beforehand what he
will do.
It further state that "the proper place in which to claim the privilege is in the
trial court, when the question is propounded, not here." This is exactly the
17
case of the herein complainant. She opportunely invoked the privilege when
it was desired to subject her to trial by copying the six letters in question,
which Mackenzie failed to do.
It is true that in said case of Mackenzie, it was likewise stated that "No
reason appears why the examination on disclosure should not be subject to
the ordinary rule of cross-examination. The person making the disclosure is
in the petition of a witness called by the State, and is subject to the rule
permitting the impeachment of such a witness. It is no invasion of the
constitutional guaranty against self-crimination to compel the witness to
answer questions relating to the truthfulness of his previous testimony." This
court, however, is of the opinion that the foregoing is not applicable to the
case of the herein complainant, firstly, because she has made no disclosure;
she confined herself to denying the letters in question were hers when the
respondent, appressing in court with them, said rather than insinuated, that
they were hers, presenting in support of his statement, other letters which, by
reason of the handwriting, were to all appearances similar thereto; and
secondly, because her testimony, denying that she was the author of the
letters in question, may be attacked by means of other evidence in the
possession of the respondent, which is not precisely that coming from the
complaint herself.
The reason for the privilege appears evident. The purpose thereof is
positively to avoid and prohibit thereby the repetition and recurrence of the
certainly inhuman procedure of compelling a person, in a criminal or any
other case, to furnish the missing evidence necessary for his conviction. If
such is its purpose, then the evidence must be sought elsewhere; and if it is
desired to discover evidence in the person himself, then he must be
promised and assured at least absolute immunity by one authorized to do so
legally, or he should be asked, one for all, to furnish such evidence
voluntarily without any condition. This court is the opinion that in order that
the constitutional provision under consideration may prove to be a real
protection and not a dead letter, it must be given a liberal and broad
interpretation favorable to the person invoking it.
In view of the foregoing consideration and holding, as it is hereby held, that
the complainant is perfectly entitled to the privilege invoked by her, the
respondent's petition is denied. So ordered.
THE
PEOPLE
OF
THE
PHILIPPINES, petitioner,
vs.
HON. ALBERTO V. SENERIS, As District Judge, Court of First Instance,
Branch II, Sixteenth Judicial District, Zamboanga City and PILAR
ANGELES DE PIMENTEL, respondents.
MAKASIAR, J.:
The legal issue posed in this special civil action for certiorari, with prayer for
a writ of preliminary injunction, spawned by the August 4, 1978 order of
respondent judge in Criminal Case No. 750 for parricide against therein
accused Pilar Angeles de Pimentel, hereinafter referred to as private
respondent, is the admissibility in evidence of the testimony of a prosecution
witness in the said criminal case who dies before completion of his crossexamination. That issue is crucial to the fate of private respondent,
considering that the deceased prosecution witness "... is the most vital and
the only eyewitness available to the prosecution against respondent Pilar
Angeles de Pimentel for the commission of the gruesome crime of
parricide ..." (p. 10, rec.).
The factual background of the action is undisputed.
On February 8, 1978, Assistant Provincial Fiscal Camilo E. Tamin, who was
then on official detail with the office of the City Fiscal, Zamboanga City, filed
with the Court of First Instance, Sixteenth Judicial District, Zamboanga City,
an amended information for parricide in Criminal Case No. 1742, charging
herein private respondent as principal by inducement, Mario Nemenio y
delos Santos and Salim Doe as principals by direct participation and
MoisesAndaya y Julkanain, as accomplice, in the fatal stabbing on
September 6, 1977 in Zamboanga City of Eduardo Pimentel y Orario, the
lawful husband of private respondent. The amended information reads:
18
19
On June 7, 1978, counsel for private respondent commenced his crossexamination of prosecution witness Mario Nemenio y delos Santos, which
cross-examination however was not completed on that session for lack of
material time, thus:
ATTY. CALVENTO:
I reserve my right to cross-examine the witness further.
COURT
Reservation to continue the cross-examination is granted.
ORDER: For lack of material time, as prayed for and upon
agreement of the parties today's hearing is hereby adjourned
and to be resumed on July 3, 1978 at 8:30 o'clock in the
morning (p. 84, rec.).
According to the petition, the uncompleted cross-examination reduced in fiftythree (53) pages of transcripts of stenographic notes (pp. 65-84, rec.) had
already "... touched on the conspiracy existing among Salim Doe, witness
Mario Nemenio and respondent Pilar Angeles de Pimentel to kill Eduardo
Pimentel, in the latter's residence in Zamboanga City in the evening of
September 6, 1977, and also on the actual stabbing by witness Mario
Nemenio of the victim Eduardo Pimentel who was pointed out to the witnesskiller by his wife, respondent Pilar Angeles de Pimentel ..." (p. 7, rec.). This is
not disputed by private respondent.
Continuation of the cross-examination was, as aforestated, set for July 3,
1978 at 8:30 o'clock in the morning.
However, prosecution witness Mario Nemenio y delos Santos was shot dead
by the Integrated National Police patrols on June 21, 1978 while allegedly
escaping from the San Ramon Prison and Penal Farm, Zamboanga City,
where he was then serving his sentence. Consequently, the completion of his
cross-examination became an impossibility.
On July 20, 1978, petitioner, without any motion on the part of the defense for
the striking out of the deceased witness's testimony, filed with the respondent
court a motion praying for a ruling on the admissibility of the testimony of
deceased witness Mario Nemenio y delos Santos.
On August 4, 1978, respondent judge issued an order declaring as
inadmissible the entire testimony of the deceased witness Mario Nemenio y
delos Santos on the principal ground "... that the defense was not able to
complete its cross-examination of said witness ...", relying on the case of
Ortigas, Jr. vs. Lufthansa, etc., L-28773, June 30, 1975, 64 SCRA, pp.
610,636-37).
Hence, this action, to which WE gave due course on December 4, 1978, after
considering private respondent's comment as well as those of the Solicitor
General and of the respondent judge who was required to file one. On even
date, WE likewise issued a temporary restraining order "... effective
immediately and until further orders from this Court enjoining respondent
District Judge from continuing with the trial of Criminal Case No. 750 (1742)
entitled People of the Philippines, plaintiff, versus Pilar Angeles de Pimentel,
accused, in the Court of First Instance of Zamboanga City, Branch II."
Petitioner contends that respondent judge gravely abused his discretion in
ruling as inadmissible the testimony of prosecution witness Mario Nemenio y
delos Santos.
WE agree.
I
1. The constitutional right of confrontation, which guarantees to the accused
the right to cross-examine the witnesses for the prosecution, is one of the
most basic rights of an accused person under our system of justice. It is a
fundamental right which is part of due process not only in criminal
proceedings but also in civil proceedings as well as in proceedings in
administrative tribunals with quasi-judicial powers (Savory Luncheonette vs.
Lakas Manggagawang Pilipino, et al., 62 SCRA 258 [1975]).
20
In almost exactly the same language, both the 1935 and 1973 Constitutions
secured it, thus: "In all criminal prosecutions, the accused ... shall enjoy the
right ... to meet the witnesses face to face ..." (Section 19, Art. IV, Bill of
Rights, 1973 Constitution; Section 17, Art. III, 1935 Constitution). Echoing the
same guarantee, Section I (f) of Rule 115 of the Revised Rules of Court
provides that in all criminal proceedings the defendant shall have the right to
be confronted at the trial by, and to cross- examine the witnesses against
him. Constitutional confrontation requirements apply specifically to criminal
proceedings and have been held to have two purposes; first and primarily, to
secure the opportunity of cross-examination, and secondarily, to obtain the
benefit of the moral impact of the courtroom atmosphere as it affects the
witnesses demeanor (21 Am Jur 2d 360). Stated otherwise, it insures that the
witness will give his testimony under oath, thus deterring lying by the threat
of perjury charge; it forces the witness to submit to cross-examination, a
valuable instrument in exposing falsehood and bringing out the truth; and it
enables the court to observe the demeanor of the witness and assess his
credibility (California v. Green, 339 U.S. 157 [1970]).
2. But while the right to confrontation and cross-examination is a fundamental
right, WE have ruled that the same can be waived expressly or implied by
conduct amounting to a renunciation of the right of cross-examination
(Savory Luncheonettee vs. Lakas ng Manggagawang Pilipino, et al., supra,
p. 259, citing U.S. v. Atanacio, 6 Phil. 413 [1906]; People vs. dela Cruz, 56
SCRA 84, 91 [19741). The conduct of a party which may be construed as a
implied waiver of the right to cross-examine may take various forms. But the
common basic principles underlying the application of the rule on implied
waiver is that the party was given the opportunity to confront and crossexamination an opposing witness but failed to take advantage of it for
reasons attributable to himself alone. Thus, where a party has had the
opportunity to cross-examine an opposing witness but failed to avail himself
of it, he necessarily forfeits the right to cross-examine and the testimony
given on direct examination of the witness will be received or allowed to
remain in the record (Savory Luncheonette vs. Lakas ng Maggagawang
Pilipino, et al.,supra, citing Francisco, Revised Rules of Court, Vol. on
Evidence, p. 853, in turn citing People vs. Cole, 43 N.Y. 508-512 and Bradley
vs. Mirick, 91 N.Y. 293; see alo 29 Am. Jur. 2d 749).
On the other hand, when the cross-examination is not and cannot be done or
completed due to causes attributable to the party offering the witness, as was
the situation in the Lufthansa German Airlines case (64 SCRA 610 [1975])
relied upon by respondent judge, the uncompleted testimony is thereby
rendered incompetent and inadmissible in evidence. WE emphasized in the
said case that "[T]he right of a party to cross-examine the witness of his
adversary is invaluable as it is inviolable in civil cases, no less than the right
of the accused in criminal cases. The express recognition of such right of the
accused in the Constitution does not render the right of parties in civil cases
less constitutionally based, for it is an indispensable part of the due process
guaranteed by the fundamental law. Subject to appropriate supervision by
the judge in order to avoid unnecessary delays on account of its being unduly
protracted and to needed injunctions protective of the right of the witness
against self-incrimination and oppressive and unwarranted harassment and
embarrassment, a party is absolutely entitled to a full cross-examination as
prescribed in Section 8 of Rule 132 ... Until such cross-examination has been
finished, the testimony of the witness cannot be considered as complete and
may not, therefore be allowed to form part of the evidence to be considered
by the court in deciding the case" (p. 637). However, WE likewise therein
emphasized that where the right to cross examine is lost wholly or in part
through the fault of the cross-examiner, then the testimony on direct
examination may be taken into account; but when cross-examination is not
and cannot be done or completed due to causes attributable to the party
offering the witness, the uncompleted testimony is thereby rendered
incompetent (p. 636)
3. The effects of absence of and incomplete cross-examination of witness on
the admissibility in evidence of his testimony on direct examination has been
extensively discussed thus: "As a general rule, the testimony of a witness,
given on direct examination, should be stricken where there is not an
adequate opportunity for cross-examination, as where the witness by reason
of his death, illness, or absence cannot be subjected to cross-examination.
Although the contrary has been held (Scott v. McCann, 24 A. 536, 76 Md.
47), the testimony of a witness, given on direct examination, should be
stricken where there is not an adequate opportunity for cross-examination
(Nehring v. Smith, 49 N.W. 2d 831, 243 Iowa 225), as where the party
against whom he testified is, through no fault of his own, deprived of the right
to cross-examine him by reason of his death (Henderson v. Twin Falls
County 80 P. 2d 801, 59 Idaho 97; Twin Falls County, State of Idaho v.
21
Henderson, 59 S. Ct. 149, 305 U.S. 568, 83 L. Ed. 358), or as a result of the
illness of the witness or absence, or a mistrial ordered. The direct testimony
of a witness who dies before conclusion of the cross-examination can
be stricken only insofar as not covered by the cross-examination (Curtice v.
West, 2 NYS 507, 50 Hun 47, affirmed 24 N.E. 1099, 121 N.Y. 696),
and absence of a witness is not enough to warrant striking his testimony for
failure to appear for further cross-examination where the witness has already
been sufficiently cross-examined (Lew Choy v. Lim Sing 216 P. 888, 125
Wash 631), or the matter on which further cross-examination is sought is not
in controversy (supra). It has been held that a referee has no power to strike
the examination of a witness on his failure to appear for cross-examination
where a good excuse is given (In re Crooks, 23 Hun 696)" [98 CJS 126-127,
Emphasis supplied].
Moreover, "[I]f one is deprived of the opportunity of a cross-examination
without fault upon his part, as in the case of the illness or death of a witness
after direct examination, it is generally held that he is entitled to have the
direct testimony stricken from the record. This doctrine rests on the common
law rule that no evidence should be admitted but what was or might be under
the examination of both parties, and that exparte statements are too
uncertain and unreliable to be considered in the investigation of controverted
facts (Wray vs. State, 154 Ala 36, 45 So 697; People vs. Manchetti, 29 Cal.
2d 452,175 P2d 533; A. H. Angerstein, Inc. vs. Jankowski, 55 Del 304, 187
A2d 81; Nehring vs. Smith, 243 Iowa 225, 49 NW2d 831; Citizens Bank &
Trust Co. vs. Reid Motor Co. 216 NC 432, 5 SE 2d 318). It has been held,
however, that the trial court did not abuse its discretion in refusing to
discharge the jury where the state witness collapsed before crossexamination was completed, it being shown thatno motion to strike the
testimony was made, that it was not indicated what further information was
sought to be produced by further cross-examination, and that the witness'
testimony was largely cumulative (Banks vs, Commonwealth, 312 Ky 297,
227 SW 2d 426)" [81 Am Jur 2d 474].
4. Wigmore, eminent authority on evidence, opined that:
xxx xxx xxx
22
The contention does not deserve serious consideration. There was no finding
nor any showing as the same is farfetched or inconceivable that the killing of
the witness of petitioner by its own agents was ill-motivated. The prosecution
did not order the shooting of the government witness. He was shot while
escaping from prison. It is petitioner's cause which will possibly suffer from
said death; not the cause of private respondent. It may be true that the
escape of the said witness and his consequent death may be attributable to
the negligence of petitioner's agents; but such negligence may not bind the
petitioner as to pre-judicially affect its cause and interest the prosecution
of criminal offenses by reason of the generally accepted principle that the
State is not bound by the negligence or tortious acts of its agents. As the
cause of non-completion was, as aforesaid, beyond the control of the
prosecution, respondent judge's questioned order cannot be sustained on the
basis of the Lufthansa ruling which, as aforestated, was principally anchored
on the finding that the cause of the non-completion of the cross-examination
of the therein witness was attributable to the very party offering him as a
witness.
2. On the other hand, WE find no merit in petitioner's contention that the
testimony of its deceased witness is admissible on the ground that private
respondent had waived her right to cross-examine the witness and that the
23
neither to the fault of petitioner nor the private respondent. Consequently, the
admissibility or inadmissibility of the testimony of the said witness cannot be
resolved on the basis of the rule enunciated in the Lufthansa case.
III
There is merit in the contention of the petitioner that the questioned
testimony of its deceased witness is admissible in evidence because private
respondent's counsel had already "... rigorously and extensively crossexamined witness Mario Nemenio on all essential elements of the crime
charged (parricide), all of which have been testified upon by said witness in
his direct examination-in-chief, and consequently, the cross-examination-inchief, has already been concluded."
The cross-examination was completed insofar as the essential elements of
the crime charged parricide, fact ofkilling-is concerned. What remained
was merely the cross-examination regarding the price or reward, which is not
an element of parricide, but only an aggravating circumstance (par. 11, Art.
14, Revised Penal Code).
As elaborated by petitioner in its memorandum:
The crime charged in the case at bar is Parricide under
Article 246 of the Revised Penal Code.
The elements of the crime of Parricide are that a person was
killed; that the killing was intentionally caused by the
accused; and that the victim is a parent or child, whether
legitimate or illegitimate, or the lawful spouse, or legitimate
ascendant or descendant of the accused. Once these facts
are established beyond reasonable doubt, conviction is
warranted (See Aquino, The Revised Penal Code, 1961 Ed.,
Vol. II, p. 1171).
The deceased Eduardo Pimentel has been sufficiently
shown to be the lawful husband of private respondent Pilar
Pimentel by means of the marriage contract executed
between them on May 18, 1971 ... marked as Exhibit 'R' for
the prosecution ...
The cross-examination of witness Mario Nemenio by the
counsel for private respondent on June 7, 1978 touched on
the conspiracy, and agreement, existing among Salim Doe,
witness Mario Nemenio and private respondent Pilar
Pimentel to kill Eduardo Pimentel, in the latter's residence in
Zamboanga City in the evening of September 6, 1977, and
also on the actual stabbing by witness Mario Nemenio of the
victim Eduardo Pimentel who was pointed out to the witnesskiller by his wife, the private respondent Pilar Pimentel
herself... The matter of consideration or price of P3,000.00,
which both the public and private respondents maintain was
not touched in the cross-examination of witness Mario
Nemenio, is not an essential element of the crime of
parricide. Price or consideration is merely an aggravating
circumstance of the crime charged, not an essential element
thereof. The failure to touch the same in the crossexamination would not at all affect the existence of the crime
of parricide. Furthermore, there is no showing or even the
slightest indication that the witness or his testimony would be
discredited if he was cross-examined on the promised
consideration. The probability is rather very great that the
witness would only have confirmed the existence of the
promised consideration were he cross-examined on the
same.
From the foregoing discussion, it is submitted that the
rigorous and searching cross-examination of witness Mario
Nemenio on June 7, 1978, practically concluded already the
cross-examination-in-chief, or has already substantially
accomplished the purpose of the cross-examination, and
therefore, the failure to pursue the privilege of further crossexamination, would not adversely affect the admissibility of
the direct testimony of said witness anymore (pp. 159162,
rec.).
24
Private respondent did not dwell on the aforesaid points in her memorandum.
Because the cross-examination made by the counsel of private respondent
of the deceased witness was extensive and already covered the subject
matter of his direct testimony as state witness relating to the essential
elements of the crime of parricide, and what remained for further crossexamination is the matter of price or reward allegedly paid by private
respondent for the commission of the crime, which is merely an aggravating
circumstance and does not affect the existence of the offense charged, the
respondent judge gravely abused his discretion in declaring as entirely
inadmissible the testimony of the state witness who died through no fault of
any of the parties before his cross-examination could be finished.
WHEREFORE, THE AUGUST 4,1978 ORDER OF THE RESPONDENT
JUDGE IS HEREBY SET ASIDE; THE RESTRAINING ORDER OF
DECEMBER 4, 1978 ISSUED BY THIS COURT IS HEREBY LIFTED; AND
RESPONDENT JUDGE OR HIS SUCCESSOR IS ACCORDINGLY
ORDERED TO PROCEED WITH THE TRIAL OF CRIMINAL CASE NO. 750
(1742) AND TO ADMIT AND CONSIDER IN DECIDING THE CASE THE
TESTIMONY OF THE DECEASED WITNESS MARIO NEMENIO y DELOS
SANTOS EXCLUDING ONLY THE PORTION THEREOF CONCERNING
THE AGGRAVATING CIRCUMSTANCE OF PRICE OR REWARD WHICH
WAS NOT COVERED BY THE CROSS-EXAMINATION. NO COSTS.
25
reason Judge Granados declared that they had waived their right thereto and
elevated the case to the Court of First Instance of Bulacan, (Id, p. 87.)
On March 19, 1975, Provincial Fiscal Pascual C. Kliatchko filed with the CFI
of Bulacan an information for forcible abduction with rape against Gorospe
and Bulanadi. It was docketed as Criminal Case No. 1293-M. (Id., p. 88.) But
on July 25, 1975, Fiscal Kliatchko filed an amended information which reads:
That on or about the 25th day of September, 1974, in the
municipality of Plaridel province of Bulacan, Philippines, and
within the jurisdiction of this Honorable Court, the said
accused Feliciano Gorospe and Rufino Bulanadi, together
with one Oscar Alvaran who is still at large, conspiring and
confederating together and helping one another, did then
and there wilfully, unlawfully, and feloniously, by means of
force, violence and intimidation, and with lewd design abduct
the complaining witness Anastacia de Jesus, an unmarried
woman, 14 years of age, by then and there taking and
carrying her to Talavera, Nueva Ecija, against her will and
with-out her consent, and upon arrival there, the said
accused by means of violence, force and intimidation have
carnal knowledge of the said Anastacia de Jesus against her
will and consent. (Id, p. 100.)
Judge Nelly L. Romero Valdellon started the trial of the case on October 15,
1975. The accused and their counselde parte had long been notified that the
case was to be tried on that day but they did not appear so the former were
tried in absentia, After hearing part of the testimony of Anastacia de Jesus,
the complainant, Judge Valdellon was transferred to Metro Manila and she
was replaced by Judge Fidel P. Purisima who finished the trial. But Judge
Purisima issued an order on March 10, 1976, wherein he inhibited himself
from deciding the case. He said, "Considering that Judge Alfredo V.
Granados is a first cousin by affinity of the undersigned Presiding Judge and
if only to make sure that the decision to be rendered in this case shall be
above suspicion and considering further the gravity of the offense charged,
the undersigned Presiding Judge hereby inhibits himself from deciding this
case." (Id, pp. 386-387.) So it was Judge Jesus R. de Vega who decided the
case and rendered the following judgment:
26
27
The second assignment of error asserts that Judge de Vega had no authority
to render the decision in the case.
Judge Purisima in the order wherein he inhibited himself from deciding the
case also "ordered to have the same re-raffled off and assigned to another
branch. " The case was presumably re-raffled to Judge de Vega who issued
an order on June 23, 1978, which states, inter alia:
Considering the foregoing, and in order to be properly
guided in the further disposition of this case, and to obviate
possible objections and criticisms which may come from any
or both parties in the final disposition thereof, the Court
resolves to require the parties to submit their respective
written comments within fifteen (15) days from receipt hereof
on the propriety and advisability of the decision in this case
to be rendered by the Presiding Judge of this Court; and to
call a conference to hear further the views and arguments of
the parties on this question, which is hereby set on July 18,
1978, at 1:30 p.m. Let notices be sent accordingly, to all
parties concerned. (Expediente, p. 390.)
Neither the comments nor the memorial of the conference are in
the expediente but on March 28, 1979, counsel for the accused filed a motion
stating:
2. That the above promulgation was held in abeyance, and
then the accused received the order dated June 13, 1978
where the Court, called the parties to a conference on July
18, 1978;
3. That the parties appeared before this Court on July 18,
1978;
4. That up to the present a Decision in the above entitled
case has not yet been promulgated.
WHEREFORE, it is respectfully prayed of this Honorable
Court that the above entitled case be resolved. (Id., p. 401.)
28
And on June 4, 1979, Judge de Vega promulgated the decision. (Id, p. 410.)
We hold that Judge de Vega had the power to decide the case. "Where a
court of first instance is divided into several branches each of the branches is
not a court distinct and separate from the others. Jurisdiction is vested in the
court, not in the judges, so that when a complaint or information is filed
before one branch or judge, jurisdiction does not attach to said branch of
judge alone, to the exclusion of the others. Trial may be had or proceedings
may continue by and before another branch or judge." (Lumpay, et al. vs.
Moscoso, 105 Phil. 968 [1959].)
It is to be recalled Chat in the original complaint filed by Anastacia de Jesus
before the Municipal Court of Pulilan, Gerardo Fajardo was one of the
accused. In the amended complaint, Fajardo's name was dropped and Oscar
Alvaran was named instead. Nonetheless, when Anastacia testified she said
that she was brought to the house of Gerardo Fajardo in Talavera, Nueva
Ecija; that when she woke up after she was forced to drink something,
Fajardo was there with Gorospe and Bulanadi, and all three were naked; that
Fajardo was one of those who raped her; and that it was Fajardo who
brought her to Cirilo Balanagay.
Why was Fajardo dropped from the complaint? The record does not yield an
answer but perhaps he decided to cooperate with the complainant because
soon after she finished her testimony the prosecution presented Fajardo as
its next witness.
Fajardo testified, among other things, that he was given a lift from the
monument in Caloocan City to Nueva Ecija by Gorospe and Bulanadi; that in
Plaridel, between the market and the bridge, the two forced Anastacia to go
with them; that Anastacia was brought to his house and later transferred to a
nipa hut near an irrigation pump; that in the nipa hut Anastacia was
undressed by Gorospe; that Gorospe, Bulanadi and Alvaran took turns in
spending 20 to 30 minutes inside the hut with Anastacia; and that he did not
have sex with her.
It can thus be seen that Fajardo was a key witness. His testimony
corroborated that of Anastacia in material matters.
His direct examination took place on June 23 and 24, 1976. His crossexamination commenced on August 4, 1976 (whole day), and was continued
on August 9, 1976. The cross-examination is recorded on pages 112 to 230
of the transcript. But the defense did not indicate that it was through with
Fajardo.
On August 9, 1976, the trial court continued the hearing to August 11, 1976.
(Expediente, p. 204.) On the latter date, Fajardo failed to appear and the
case was re-scheduled to be heard on September 13, 1976. (Id. p. 208.) On
September 13, 1976, Fajardo again failed to appear and the case was re-set
to September 29, 1976. (Id. p. 222.) Fajardo did not appear on September
29, 1976, so he was ordered arrested. (Id, p. 223-226.) Fajardo was not
arrested but despite such fact the prosecution rested its case.
In their third assignment of error the appellants bewail the fact that the trial
court decided the case even though they had not finished cross-examining
Fajardo.
The trial court committed no error in admitting the testimony of Fajardo
although the defense had not finished its cross-examination. An examination
of the transcript of Fajardo's testimony shows that he was subjected to
detailed cross-examination on material points. In fact, the cross-examination
was lengthier than the direct examination. We adopt with approval the
statement of the court a quo on this point:
The records show that the counsel for the accused has
extensively cross examined Fajardo. The Court could not
help but wonder what other matters not yet touched during
the cross-examination of Fajardo could still be elicited from
him that would probably destroy or affect his testimony inchief. If the counsel for the accused expected Fajardo to
testify further on material matters favorable to the cause of
the defense, he should have proffered such further testimony
and entered into the records how the absent witness would
have testified if he were available for further crossexamination. The failure of the said counsel to do so
indicates that every material point has been asked from
Fajardo during the time he was under examination.
29
30
31
32
his shoulders and said that the case can be settled in the
amount of P200.00. Gorospe said "tarantado ka pala" (You
son of a bitch). "I will not give even a single centavo because
you are the one responsible for this. I have nothing to do
with this case." Gorospe proceeded to see Sgt. Jimenez who
told him that the case was transferred to Cabanatuan City.
The 3 of them, Bulanadi, Gorospe and Fajardo were brought
to the PC headquarters where they were interviewed one
after the other, after which Gorospe and Bulanadi were sent
home.
The complainant filed the case in the Municipal Court of
Pulilan, Bulacan, on October 8, 1974, two (2) days after she
had gone home in Pungo, Calumpit, Bulacan (Exhibit 8).
Gerardo Fajardo who was in the custody of the Police
Department of Talavera, Nueva Ecija was taken by the
Policemen of Pulilan, Bulacan.
On October 22, 1974 while the case was being investigated
by Municipal Judge Alfredo Granados where Anastacia had
already testified on October 9, 1974, Anastacia again
executed another affidavit because that was what her lawyer,
Atty. Santos wanted (p. 26, t.s.n., March 12, 1976, CFI). On
the same date Gerardo Fajardo executed another statement
in the Police Department of Pulilan Bulacan. Thereafter,
complainant filed an Amended Complaint wherein Gerardo,
against whom she was originally complaining against, was
excluded as one of the accused to be utilized as her witness,
and Oscar Alvaran was included for the first time. The
alleged date of the incident was changed from September
30, 1974 to September 25, 1974. Subsequently the case
was elevated to the Court of First Instance of Bulacan,
Branch I. (Brief, pp. 12-21.)
The version of the appellants does net inspire belief because it appears to
have been contrived. The appellants portray Anastacia as wanton and
unchaste woman a prostitute. But one's credulity has to be unduly stretched
in order to buy the line that a girl of 14 years who was still going to school
was a prostitute who went far away from her home in order to peddle her
body. The appellant's version is simply too crude to be convincing.
Opposed to the appellants' version is the affirmative narration of events
made by Anastacia which were corroborated by Gerardo Fajardo. The story
winch she unfolded could have been inspired only by her thirst for justice. In
her quest she had to live her ordeal all over again for a lengthy period
because she was on the witness stand on December 15, 1975; January 12,
March 10, March 11, May 3 and June 16, 1976. During all those days she
had to bare in public her shame and humiliation.
To be sure there were inconsistencies in the testimony of Anastacia but they
were in details rather than in the highlights of her terrible experience and
could very well be attributed to her tender age and confused state of mind
caused by her private hell.
guilty of three (3) rapes because in a conspiracy the act of one is the act of
all. We cannot agree in respect of the participation of Fajardo. Since Fajardo
was dropped from the complaint his guilt had not been established. However,
We agree with the Solicitor General's observation "that a motor vehicle was
used to bring her [Anastacia de Jesus] from Plaridel, Bulacan, where she
was first deceived and drugged, and then taken to an isolated uninhabited
place at a nipa hut, near an irrigation pump at Calipahan, Talavera, Nueva
Ecija, where she was abused, two (2) aggravating circumstances are
present, namely use of motor vehicle and uninhabited place (Art. 14,
R.P.C.)," so that death is the proper penalty. (Brief, pp. 14-15.) However, for
lack of the necessary number of votes the death penalty cannot be imposed.
WHEREFORE, the judgment of the court a quo is hereby affirmed in all
respects. Costs against the appellants.
SO ORDERED.
The Solicitor General states that Gerardo Fajardo, the discharged state
witness, also committed rape hence the appellants should each be found
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