G.R. No. 1883. May 01, 1905

The defendants were tried in the court below under a complaint for
brigandage and were convicted of robbery with homicide. Padilla and
Pablo Gallano were sentenced to life imprisonment (cadena perpetua), Benedicto Gallano to twelve years and one day, and Paulino Gacillos to six years ten months and one day of prision mayor.

We think that there is evidence in the case sufficient to convict
the defendants of the crime of brigandage and that the conviction for
robbery with homicide should be set aside. As the minimum penalty for
brigandage is twenty years, the defendants Benedicto Gallano and
Paulino Gacillos should have been sentenced for that period at least. A
majority of the court are of the opinion that we have the power to
impose that sentence now. (U.S. vs. Flemister,^[1] March 18, 1905.) In this, however, the writer of this opinion does not agree. In his opinion the case of Kepner vs. United States^[2]
(2 Off. Gaz., 974) establishes the proposition that after a trial and
judgment in the Court of First Instance, a trial here on the merits is
a second trial and can not be had without the consent of the defendant.
The writer thinks that his appeal gives consent only to the examination
here of those errors of the court below which are prejudicial to him or
at most to those errors which he specifically assigns here and as to
which his assignment is sustained; that he does not by his appeal give
his consent that this court may examine errors which the court below
may have committed to his advantage and which the Attorney-General may
here assign, and that his appeal is not a waiver of all his rights and
a consent that the whole case may be retried here.

One of the defendants below was Gabino Gallano, a boy 14 years of
age. The record before us does not show that any judgment either of
conviction or acquittal was entered against him. Said record would, in
our judgment, have justified an acquittal. When the case is returned to
the court below, that court will take such action in regard to the
defendant Gavino Gallano, if none has already been taken, as may be in
conformity with law.

The judgment of the court below is reversed, and the defendants
Vicente Padilla, Pablo Gallano, Benedicto Gallano, and Paulino Gacillos
are convicted of the crime of brigandage, and are sentenced, Vicente
Padilla and Pablo Gallano each to life imprisonment (prision perpetua),
and Benedicto Gallano and Paulino Gacillos each to twenty years’
imprisonment, with the costs of this instance against the said four
appellants.

Arellano, C. J., Torres, Mapa, and Carson, JJ., concur in the result.

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^[1] Page 300, supra.                                                                        ^[2] 195 U.S., 100.

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CONCURRING

JOHNSON, J.:

We concur in the opinion that the defendants in this case should be
punished in the manner indicated in the decision prepared by Mr.
Justice Willard. We do not, however, agree with that part of his
decision in which it is intimated that this court has no power to
modify the decisions of the inferior courts in criminal cases except
where the modification is favorable to the defendants.

We believe that this court, when a defendant appeals, has the
authority to render such a decision upon the complaint and evidence as
is justified by the law.

For example: A complaint is filed against A. under section 1 of Act
No. 518, charging him with the crime of brigandage, the minimum
punishment for which is twenty years. The evidence adduced during the
trial shows beyond peradventure of doubt that the defendant is guilty
of the crime charged in the complaint. The judge finds him guilty of
the crime charged, and imposes a sentence of one year of imprisonment
only. The defendant appeals to, this court, alleging that the lower
court committed certain errors; for example, that the evidence was not
sufficient to show that he was guilty of the crime of brigandage as
charged in the complaint. This court on the appeal examines the
evidence and finds that it is sufficient beyond a reasonable doubt to
show that the defendant is guilty of the crime of brigandage, as
charged in the complaint. We are of the opinion that we have the
authority to impose a sentence upon the defendant in accordance with
the complaint, the evidence, and the law. It certainly can not be
contended that where the law provides that the minimum penalty shall be
twenty years that an inferior court has authority to impose a penalty
of one year as is supposed in our example.

The opinion prepared by Mr. Justice Willard takes the position that
the hearing in this court is a second trial and therefore the defendant
is put in jeopardy the second time; that this court can not modify the
sentence from which he appealed, except wherein such modification is
favorable to him. If the doctrine be true that this is a second trial,
then this court has no authority to consider the case at all, for the
reason that under the doctrine of jeopardy, if it can be applied as
indicated, we have no authority to consider either the points that are
favorable or unfavorable to the defendant, for the reason that the
doctrine of jeopardy prohibits a second trial. (U. S. vs. Kepner.^[1]) Further, if in fact this is a second trial, then upon what theory can this court consider cases that come here en consulta
without any request whatever on the part of the defendant, according to
the provisions of section 50 of General Orders, No. 58, as amended by
section 4 of Act No. 194? This court considers cases en consulta in the same manner that it considers cases on appeal.

We recognize and accept the doctrine announced in the case of the United States vs.
Kepner, relating to jeopardy, that a man can not be placed upon trial
for the second time for the same offense, except with his consent; but
we hold that when he appeals, under the system in vogue here, he
expressly agrees to a rehearing of his case. The right of appeal is
purely a statutory right. The method of perfecting an appeal is
provided for by statute. When a defendant appeals he submits his cause
to the superior court to be considered under the rules in vogue at the
time of his appeal.

Jeopardy begins here the very moment that a defendant is arraigned
upon a good indictment before a competent court which is charged with
his deliverance, and if for any reason, over which the State has
control, the trial is not concluded against the wishes of the defendant, or if the same is concluded, the defendant has been in jeopardy and can not be placed upon trial again.

But to this doctrine there are numerous exceptions, which may be briefly indicated as follows:

(1) If it is discovered later that the court had no jurisdiction ; or

(2) If it is discovered that the complaint was defective in that it did not contain some material allegation; or

(3) If the term of the court should have terminated before the end of the trial; or

(4)
If the trial judge should have died before the termination of the
trial, or become unable by reason of sickness or otherwise to have
concluded the trial; or

(5) If the defendant should have, by reason of sickness or otherwise, become unable to attend the trial; or

(6)
If through fraud on the part of the accused there was a mistrial; for
example, if the defendant had conspired to prevent witnesses from
attending the trial; or

(7) If by reason of conflagration or inundation the court could not have concluded the trial; or

(8)
If the defendant should appeal from the decision of the court rendered
at the termination of the trial to a superior court, and the superior
court for errors committed reverses the sentence and remands the case
for a new trial, and in numerous other conditions which might be
mentioned, over which the State has no control, the doctrine of
jeopardy does not apply and the accused may be placed upon trial the
second time.

The reports of the supreme courts of the different jurisdictions of
the United States are full of cases holding, where the defendant
appeals from the decision of an iferior court and the sentence is
reversed by reason of errors committed, that he may be ordered to be
tried again.

Under the sovereignty existing here prior to American occupation,
this court had authority, when a defendant appealed from a decision of
an inferior court, to render such a decision on the appeal as the
evidence and the law justified, whether such decision increased or
diminished the sentence of the lower court.

This court, as it is now constituted, was organized by the United
States Philippine Commission under Act No. 136, by which it was
substituted for the former Audiencia or Supreme Court. It stands,
therefore, in the position of the Audiencia, under the former
sovereignty, and no law has been passed by the legislature of the
present sovereignty which in any way affects the criminal jurisdiction
exercised by the said Audiencia, except as is found in section 50 of
General Orders, No. 58, and section 4 of Act No. 194 of the Philippine
Commission. These provisions in no way affect the jurisdiction of this
court in criminal cases when an appeal is made from the sentence of an
inferior court by the defendant.

Our conclusion is, therefore, that inasmuch as the Audiencia had
power to render such a decision upon an appeal by the defendant, as the
complaint and the evidence justified under the law, this court is still
possessed of the same power.

When a defendant appeals to this court under the present system of
appeals, as provided for by sections 43 to 49, inclusive, of General
Orders, No. 58, he submits his case to the court for such a decision as
is justified under the law, the complaint, and the evidence. By his
appeal he waives any plea of jeopardy which he might have had under an
appeal by the State, and submits his rights to this court under the law.

It would be a strange doctrine indeed, under the example given in
the beginning of this opinion where an inferior court had rendered a
sentence diametrically opposed to the law, the complaint, and the
evidence, if this court could consider only such errors as were
favorable to the defendant.

Another example: A defendant is charged under a provision of the
Penal Code which provides an imprisonment and a fine. The court imposed
a fine only. Or, if the code should provide for a penalty of
imprisonment, or a fine, and the court should have imposed both
imprisonment and a fine, can this court under these conditions not
correct such an error on an appeal by the defendant? Such a decision by
the inferior court is absolutely void, because the penalty imposed is
not in accordance with the law. Suppose under these conditions the
defendant appeals to this court and the only error which the record
disclosed was the fact that the court had not imposed a sentence
provided for by law and this error happened to be favorable to the
accused, then the only remedy which this court has is to affirm this
void sentence. If that is the true doctrine, then what is to prohibit
the defendant immediately after his sentence is affirmed, from suing
out a writ of habeas corpus and securing his liberty upon the
ground that the sentence rendered against him, by the inferior court,
and affirmed by this court, is null and void? A defendant can not be
held in prison under a void sentence. Can this court affirm a null
sentence?

Granting that the consideration of the cause in this court is a
second trial, then we can not consider any cause, for the reason that
the doctrine of jeopardy prohibits it, unless we accept the doctrine
that the defendant by appealing to this court waives jeopardy. If we
accept the doctrine that the defendant waives jeopardy, can we say that
he waives it only so far as it happens to be favorable to him and that
he does not waive it when it detrimentally affects him? We think not.
He can not waive it for one purpose and claim its benefits for another
in the same appeal. There can be no such thing as a partial waiver of
jeopardy.

The method of appealing criminal causes here in the Philippines is
very different from the method in vogue in the different jurisdictions
in the United States. There it is generally by a writ of error. The
appellate court can only consider errors assigned by the appellant. The
appellate court can not consider the facts further than is necessary to
reach a conclusion upon the errors assigned by the appellant. The facts
are found by a jury. The appellate court can not review or revise the
facts. Here the appellate court not only reviews the facts, but has
authority to make a finding of facts from the evidence adduced during
the trial. This court is not limited to the conclusion of facts found
by the inferior court.

If the doctrine contended for, that this court has no power to
correct a sentence that is manifestly contrary to the law, except where
such correction is favorable to the defendant, where the defendant
himself appeals, then inferior courts may absolutely disregard the law
and impose whatever sentences they please so long as they are favorable
to the defendant In other words, under the bandolerismo law
existing in these Islands, the minimum punishment under section 1 is
twenty years, and if the inferior court should impose a punishment of
but one year, where the facts clearly show that the defendant is guilty
beyond a reasonable doubt and the court so finds, and the appeal comes
to this court, this court can not in any way correct this violation of
the law, for the reason that the sentence is favorable to the
defendant. This doctrine certainly has no reason in law to support it.
It would be a strange doctrine indeed if this Court, in the exercise of
its appellate power, can not correct or authorize the correction of
errors on appellate proceedings instituted by the defendant.

In the case of Massachusetts vs. Murphy (172 Mass., 264;
177 U. S., 155; 87 Fed. Rep., 549; 43 Law. Rep. An., 154; 48 Law. Rep.
An., 393) the defendant appealed upon the ground that the statute under
which he was sentenced was unconstitutional. The Supreme Court found
that the sentence was not in accordance with the law, and therefore
reversed it and remanded the case to the court below, with direction
that the defendant be resentenced in accordance with the statutes then
in force. In that case the defendant contended that one who has been
sentenced by a court having jurisdiction of the offense and of the
person and the right to sentence, and who has served a substantial
portion of the time for which he was sentenced, can not be resentenced
if it turns out on a writ of error brought by him that the original
sentence was unlawful. He contended that the resentence constituted a
second punishment for the same offense; that he had been put twice in
jeopardy thereby and had been deprived of his constitutional rights.
The court unanimously held in reply to this contention of the defendant:

“That where, either for want of jurisdiction, or
from some defect in the indictment, or from such error in the course of
the proceedings, the verdict has been set aside or the judgment has
been arrested on a writ of error brought by the defendant, or on a
motion made by him, and he has been tried again, he was not thereby put
in jeopardy a second time and his constitutional rights were not
abridged.”

Citing in support of this doctrine the following cases: Massachusetts vs. Wheeler (2 Mass., 174) ; Massachusetts vs. Peters (12 Met., 387); Massachusetts vs. Roby (12 Pick., 496); Massachusetts vs. Lahy (8 Gray (Mass.) 459); Massachusetts vs. Gould (12 Gray (Mass.), 171); McKee vs. People (32 N. Y., 239); People vs. McKay (18 Johns., 212); State vs. Walters (16 La. Annual, 400) ; Cooley’s Constitutional Limitations (3d ed.), 327.

Judge Cooley, one of the greatest constitutional lawyers in the
United States, in discussing the question of legal jeopardy, makes the
following statements:

“A person is in legal jeopardy when he is put upon
trial, before a court of competent jurisdiction, upon indictment or
information which is sufficient, in form and substance, to sustain a
conviction. (Price vs. State, 19 Ohio, 423; People vs. Cook. 10 Mich., 164; People vs.
Webb, 28 Cal., 467.) * * * The defendant then becomes entitled to a
verdict which shall constitute a bar to a new prosecution; and he can
not be deprived of this bar by a nolle prosequi entered by the prosecuting officer against his will. (Mounts vs. State, 14 Ohio, 295; Pizano vs. State, 20 Tex. Ap., 139.)

“If,
however, the court had no jurisdiction of the cause, or if the
indictment was so far defective that no valid judgment could be
rendered upon it, or if by any overruling necessity the jury are
discharged without a verdict, which might happen from the sickness or
death of the judge holding the court, or of a juror, or the inability
of the jury to agree upon a verdict after reasonable time for
deliberation and effort; or if the term of the court as fixed by law
comes to an end before the trial is finished; or the jury are
discharged with the consent of the defendant expressed or implied; or
if, after verdict against the accused, it has been set aside on his motion for a new trial, or on writ of error, or the judgment thereon has been arrested—in
any of these cases the accused may again be put upon trial upon the
same facts before charged against him and the proceedings had will
constitute no protection.” (Cooley’s Constitutional Limitations (6th
ed.), 399, 400.)

It can not be said that a defendant is in legal jeopardy in a prosecution brought about by his own procurement.

In the case of McKee vs. The People (32 N. Y., 239) the court said that—

“The trial and conviction were regular and legal;
and the only ground upon which the judgment pronounced against the
defendant upon such a verdict is sought to be reversed, is, that the sentence and judgment pronounced by the inferior court were erroneous.
The conviction was legal and the sentence only was erroneous. The term
jeopardy has no relation to the reversal of an erroneous judgment, and
pronouncing a legal one pursuant to a legal conviction.”

In the case of Jeffries vs. The State (40 Ala., 381) the court held that a prisoner could not plead autrefois convict
if the former conviction had been reversed on proceedings instituted by
himself, notwithstanding the fact that he had served a part of the term
of his imprisonment before the reversal.

In the case of In re Bonner (151 U. S., 242) the defendant had been
sentenced to be confined in a prison not authorized by law. He applied
to the Supreme Court for the writ of habeas corpus, alleging that fact. In passing upon the question the court said:

“Where a conviction is correct, and where the error
or excess of jurisdiction is the ordering the prisoner to be confined
in a penitentiary where the law does not allow the court to send him,
there is no good reason why jurisdiction of the prisoner should not be
reassumed by the court that imposed the sentence in order that its
defects may be corrected.”

Such a sentence not in conformity with the law is absolutely void,
and the prisoner should be discharged under such conditions. But the
court in discharging a prisoner in such a case on habeas corpu
should delay his discharge for such reasonable time as may be necessary
to have him taken before the court where the judgment was rendered, in
order that the defects in the former judgment may be corrected. (Ex
parte Lange, 18 Wall., 163; Ex parte Parks, 93 U. S., 18; Ex parte
Virginia, 100 U. S., 339; Ex parte Rowland, 104 U. S., 604; In re Coy,
127 U. S., 731; In re Mills, 135 U. S., 263.)

In the present cause the defendants, when they appealed to this court, assigned no errors. A lawyer was appointed de oficio
in this court. The only error which he assigns is that the “cause
discloses an entire lack of evidence on the part of the Government
which would justify a conviction.” An examination of the proof adduced
during the trial convinces us beyond a reasonable doubt that the
defendants are guilty of the crime charged in the complaint, and
therefore should be punished in the manner indicated in the opinion of
Mr. Justice Willard.

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^[1] Phil. Rep., 397.