G.R. No. 17763. September 11, 1923

In their petition to rehear the attorneys for the appellants have made a
point which was not touched upon in any of the lengthy briefs filed for them in
this court, and a few words will be added to clarify the situation and exhibit
the facts in the light in which we view them.

It will be recalled that, after the appellants had been convicted in the
lower court and the cause brought before us upon appeal, the appellants made
application to this court for a reopening of the case in order that certain
newly discovered evidence might be brought before the court, consisting of the
testimony of Warren D. Smith, Honorio Garcia, Fausto Navarro and Sergio Dunca,
who had not been previously examined. This petition was at first denied, but the
court reserved the right to act favorably upon the application when the cause
should be heard upon its merits. Later, upon the recommendation of the
Attorney-General, by an order of March 23, 1922, amended by that of March 28,
1922, the record was returned to the court of origin in order that the testimony
of said witnesses and others might be taken. In a resolution of June 13, 1922,
the previous order was modified, or rather explained by a statement to the
effect that it was not intended that an entirely new trial should be had in the
lower court but only that the new proof might be taken in the lower court for
consideration by this court. In conformity with the orders mentioned various
witnesses were examined, some being presented by the attorneys for the
appellants and others by the prosecuting attorney; and said proof was returned
to this court with the original record.

The steps above-mentioned were taken upon the initiative of the attorneys for
the appellants, and no objection was made by them in this court to the use of
said testimony. On the contrary in a lengthy brief filed by the appellants, the
testimony of Warren D. Smith, as a handwriting expert, was relied upon to show
that the questioned signature of Liborio Bustos was a forgery.

When the cause was heard by this court, the fact did not escape notice that
this new evidence was introduced in support of an application for a new trial,
and in that light it was viewed. Nevertheless, in exhibiting the facts in the
narrative part of the opinion, we referred to and used the testimony so taken;
and it is quite apparent that the use thus made of it was legitimate. The
evidence had been brought before us chiefly upon the initiative of the
appellants and in so far as the facts revealed in said proof tended to support
the decision of the court below, it was not improper that it should be stated in
the opinion.

The position now taken by the attorneys for the appellants in the motion to
rehear is that we have used evidence against the accused which was not
considered by the court below. But it must be remembered that this court has
jurisdiction to grant a new trial upon newly discovered evidence; and when
evidence in support of such a motion is brought before us by the accused, it may
be accepted to refute the contention for a reversal, if it be found to be in
fact unfavorable to the point of view of the accused, as happened in this case.
It cannot be permitted to an appellant to experiment with the court by placing
before it evidence in support of a motion for a new trial, and after the
experiment has been found unsuccessful to make for the first time the contention
that such proof was not properly before the court.

In conclusion we have only to add that, in the opinion of the majority of
this court, the proof upon which the appellants were convicted in the lower
court was abundantly sufficient to justify the conviction, and if this court in
passing upon the appeal had at first confined itself to that proof and had
afterwards considered the new proof separately in support of the motion for a
new trial, the result would have been the same; and the circumstance that in the
narrative part of the opinion of the court all the testimony was woven into one
complete fabric does not alter the complexion of the case.

The motion is in our opinion not well founded, and the same is
denied.

Araullo, C.J., Malcolm, Villamor, Avanceña, and
Romualdez, JJ., concur.
Johnson, J., took no part in this
resolution.
Johns, J.: For the reasons assigned in my original
dissent,^[1] I dissent from this
opinion.

---

^[1] See page 56, ante.