PEOPLE OF THE PHILIPPINES AND NICOLAS P. SONALAN, PETITIONERS, VS. THE HONORABLE COURT OF APPEALS, HONORABLE MIDPANTAO ADIL, JUDGE OF THE COURT OF FIRST INSTANCE OF ILOILO, AND …

In this Petition for Certiorari with Preliminary
Injunction, petitioners seek the annulment of the Court of Appeals’ Resolution,^[1]
promulgated on November 19, 1976,
granting respondent Antonio Calanza’s Motion for New
Trial in CA-G.R. No. 19694 entitled “People vs.
Antonio Calanza“, for Homicide and Frustrated
Homicide.  The Petition also seeks to
enjoin respondent Judge Hon. Midpantao Adil of the Court of First Instance of Iloilo, Branch II,
to whose Court the records of the case were remanded, from continuing with the
new trial proceedings.

The records show that private respondent, Antonio Calanza, was charged on April 22, 1970 with the crime of Homicide and Frustrated
Homicide before the Court of First Instance of Iloilo, Branch II.  The victim who was shot and killed on April 17, 1970 at the balcony of the
Cinema Theatre, Iloilo City,
was Ponciano Sonalan,
brother of private petitioner and private prosecutor in the Court below, Atty.
Nicolas P. Sonalan. 
Also hurt and wounded in the same incident was one Virginia Sarrol.

On November 10, 1975,
the trial Court convicted Calanza in a Decision which
dispositively and partly provided:

“WHEREFORE, premises considered, the Court hereby finds the
accused Antonio Calanza guilty beyond reasonable
doubt of the complex crime of homicide with frustrated homicide and hereby
sentences him to an indeterminate penalty ranging from TWELVE (12) YEARS of Prision Mayor Maximum as its minimum to TWENTY (20) YEARS
Reclusion Temporal Maximum as its maximum, together with all the acces­sory
penalties provided for by law and to pay the costs.

“Further, the accused is ordered to indemnify the heirs of the
late Ponciano Sonalan:  Twelve Thousand (P12,000)
Pesos as death compensation; x x x
“^[2]

In arriving at the judgment of conviction, respondent Judge gave
full credence to the positive identification of the accused Calanza
by Elizabeth Soliven, the deceased’s companion, and
former paramour of Calanza, and by another
eyewitness, David Sustento, and it rejected the
defense of alibi proferred by Calanza
and his witnesses.  The prosecution did
not present as a witness Ofelia Ticzon, who was
Elizabeth Soliven’s companion at the time of the
incident.

Briefly, Elizabeth’s
testimony was to the effect that when they were leaving the theatre, Calanza accosted them at the aisle, held Elizabeth’s
hand, and when the deceased inquired for the reason, Calanza
struck him with a revolver and ultimately shot him (deceased) as the latter was
trying to stand, hitting him near the ear.

Dissatisfied with the trial Court judgment, Calanza
appealed to respondent Court of Appeals.

On August 13, 1976,
before filing his Brief, Calanza filed a Motion for
New Trial on the following grounds:

“I.

“NEW and material evidence con­sisting of an Affidavit by
Ofelia Ticzon, Annex “1”, attesting, inter alia, that accused-appellant Antonio Calanza
(hereinafter called APPELLANT) was not the gunwielder
who fired the fatal shot that killed Ponciano Sonalan, for which APPELLANT was convicted, and which
evidence APPELLANT could not with reasonable diligence have discovered and
produced at the trial, and which if introduced and admitted, would probably
change the judgment; and

II.

“ERRORS of law or irregularities have been committed during the
trial prejudicial to the substantial rights of the APPELLANT.”^[3]

The Affidavit of Ofelia Ticzon, sought
to be admitted and introduced, reads as follows:

“I, Ofelia Ticzon, of legal age,
widow, Filipino and a resident of Gen. Hughes St., Iloilo City after having
been duly sworn to in accordance with law depose and say:

“That I have been employed as clerk with the Lopez Vito Law
Office at Iloilo City, Philippines,
since 1957 to the present;

“That I personally know Mr. Antonio Calanza
to be a businessman for more than ten (10) years before April 17, 1970 because we often met in the law
office when he has some legal consultations and notarization to be done, thus I
know him very well;

“That prior to the year 1970, Elizabeth Soliven
worked as clerk in the same law office where I was working;

“That on April 17,
1970, after office hours, Elizabeth Soliven
and I went out of office together to see a movie at Cinema Theatre, Iloilo
City;

“That we were watching the movie at the balcony when a certain
Ponciano Sonalan arrived
and sat on my extreme right seat next to Elizabeth Soliven
and that thereafter, a man whom I do not know suddenly appeared standing facing
in front of us that his position naturally obstructed the view of Elizabeth Soliven;

“That on that position, Ponciano Sonalan uttered words in an angry manner and stood up and
they immediately grappled with each other;

“That while they were grappling I heard a burst of gunfire and
when Ponciano Sonalan was
taken aback and fell on the floor and that man fled;

“That I was able to see the face of that man before, during
and after the grappling because of the bulb dim lights at every step of the
stairways so much so that if I could see that man again, might be able to
recognize him; but I am sure that the man is not Antonio Calanza;

“That after the incident when the police authorities were
investigating an unidentified person accosted me by threatening that if ever I
will testify in Court for the accused, the members of my family and I will be liquidated
which threat were many times carried over thru telephone calls;

“That it was only when I learned that Antonio Calanza was convicted that I decided to come out in the
open and execute this affidavit because my conscience cannot keep me at peace
that a man who was not the assailant of Ponciano Sonalan will go to jail for a crime he did not commit
because of my failure to testify.

“IN WITNESS WHEREOF, I have hereunto affixed my signature this
29th day of May, 1976 in the City of Iloilo, Philippines.

(SGD) OFELIA TlCZON

Affiant”

The errors of law or irregularities claimed by Calanza to have been committed by the trial Court refer to
its having given credence to the testimony of Elizabeth Soliven,
an allegedly scorned paramour of Calanza, and to the so-called
fabricated testimony of David Sustento, specially
considering that respondent Judge did not himself hear the evidence and was
unable to observe their demeanor on the stand.

Required by the appellate Court to file a Comment on the Motion
for New Trial, the Solicitor General averred that the Affidavit of Ofelia Ticzon aims merely to impeach the testimonies of Elizabeth Soliven and David Sustento, and
the settled rule is that “evidence which merely seeks to impeach the
evidence upon which conviction was based would not constitute a ground for new
trial;”^[4]
that even if the testimony of Ofelia Ticzon were to
be introduced or admitted, the same would not probably alter the decision as it
comes from a person “whose credibility is subject to suspicion having
maintained her silence for an incredibly long period of six (6) years; that if
threats on her life were really made, it is surprising that Ofelia did not
report them to the authorities; and finally, the record does not show that
diligent efforts were exerted to produce said witness or even to secure her
appearance by compulsory process.

In private respondent’s Reply to Comment he maintains that
Ofelia’s Affidavit is not merely to impeach but is of independent probative
value showing as it does a state of facts different from that presented by
prosecution witnesses, Elizabeth Soliven and David Sustento, and which would probably alter the judgment
appealed from; that despite diligent search, Ofelia Ticzon
could not be traced as she went into hiding for fear of her life and that of
her family; that “in the highest interest of justice” she must be
heard, and the question of her credibility left to the discretion of the trial
Court.

On September 28, 1976,
respondent appellate Court prom­ulgated a Resolution quoted hereunder:

“Before Us is a motion for new trial
on the ground of newly discovered evidence to which the Solicitor General filed
an opposition stating that the proposed tes­timony of Ofelia Ticzon is not newly discovered evidence and that it merely tend
to impeach or discredit prosecution witnesses.

“Considering that the motion can only be properly and
adequately determined after all the transcripts of the proceedings are on hand
and the briefs duly filed, let the resolution thereof be held in abeyance and
the motion be referred to the division to which the case may ultimately be
raffled for decision.”

To the aforequoted Resolution, Calanza filed a Motion for Reconsideration contending that
there is no necessity for submission of Briefs to resolve the Motion for New
Trial based on new evidence of independent probative value and showing facts
different from what prosecution witnesses presented.  Respondent also sought a liberal
interpretation of the legal provisions on new trial.

Acting thereon, on November
19, 1976, respondent Court of Appeals set aside its previous
Resolution and allowed new trial in this wise:

“It is not denied and in fact it was submitted by the
prosecution, more particularly Elizabeth Soliven,
“the star witness” for the prosecution that on April 17, 1970 at 5:30
p.m., she was with Ofelia Ticzon inside the Cinema
Theatre at Plazoleta Gay, Iloilo City, watching the
movie “John and Mary” when the shooting incident happened.  It is apparent therefore, that Elizabeth Soliven and Ofelia Ticzon are the
possible witnesses to the shooting incident in question.  However, it appears, as sufficiently
established by appellant that Ofelia Ticzon could not
be located to testify during the trial des­pite reasonable diligence to that
effect because she went into hiding due to threats on her life and that of her
family from an unidentified person.

“While it is true that the new trial will not be granted upon
ground of newly discovered evidence when it appears that such new evidence can
have no other effect than to contradict the testimony of a witness at the
original trial, we believe however, that the materiality of the evidence sought
to be presented for the defense may probably give the appellant a chance to
gain an acquittal, and if he is not given that chance to adduce the same in
court, his conviction stands.

“A case in point is CA-G.R. No.
17088-CR, People vs. Morando.  Without waiting for the records of the case
to be forwarded to the Court of Appeals, this Court outrightly
resolved to remand the case for new trial in a resolution dated 16 April 1976.

“Thus, in the interest of justice, our Resolution of September 28, 1976 is SET ASIDE and
appellant’s motion for New Trial is hereby granted.”

Copies of the Resolution were served on counsel for private
respondent on November 22, 1976
and on the Solicitor General on November
23, 1976, but not on the private prosecutor, petitioner Sonalan, nor on the City Fiscal of Iloilo.^[5]
The latter two-mentioned came to know of the aforesaid Resolution only when
they received copies of the Entry of Judgment thereof on January 3 and 4, 1977,
respectively, accompanied by copy of a letter of transmit­tal of the records
from the Court of Appeals to the Court below. 
On December 9, 1976,
the aforequoted Resolution became final and executory.^[6]
Private respondent then filed before the trial Court an Urgent Motion to Set
the Case for Hearing originally on January
18, 1977, and subsequently advanced to January 12 and 13, 1977.

The lower Court, presided by respondent Judge, and over the
objection of private petitioner, conducted hearings on the said dates wherein
Ofelia Ticzon testified and was cross-examined.  The continuation of new trial was set for January 24, 1977 for the presentation
of rebuttal evidence but was cancelled due to the Re­straining Order issued by
this Court.

In the meantime, on January 11, 1977, private petitioner, Atty.
Nicolas P. Sonalan, filed with this Court this
special civil action for Certiorari with Preliminary Injunction with a
request for permission to file the same without prior conformity of the
Solicitor General or of the City Fiscal of Iloilo on the ground that said
officials respectively believed that the other should file the same^[7]
and there was not much material time left for him to secure said
conformity.  On January 18, 1977, the
City Fiscal of Iloilo also filed a separate Petition for Certiorari with
Prelimi­nary Injunction after then Chief State Prosecutor Rodolfo A. Nocon (now a Court of Appeals Associate Justice) called
attention “to the view expressed by Solicitor Farolan
that the conformity of the Solicitor General’s Office is not proper owing to
the fact that the case has been remanded for new trial to the Iloilo CFI in
view of which, he believes that the proper party to file the petition for certiorari
should be the City Fiscal of Iloilo City who represented the state in the trial
court.”^[8]

On January 19, 1977,
this Court resolved to consolidate the two Petitions.  In the same Resolution and without giving due
course thereto, we required the Solicitor General and the private respondent to
submit their Comment.  We likewise
ordered the issuance of a Restraining Order enjoining respondent Judge from
proceeding with the new trial.^[9]

On March 30, 1977,
this Court resolved to give due course to the consolidated Petitions and
required the parties to submit their respective Memoranda in lieu of Briefs.^[10]

On July 18, 1977,
we considered the case submitted for decision.^[11]

The principal issue to resolve is whether or not respondent
appellate Court acted with grave abuse of discretion in granting the Motion for
New Trial on the ground of newly discovered evidence based on Ofelia Ticzon’s Affidavit.

Prescinding from this substantive issue
to consider the purely procedural aspect, we are constrained to find that the
herein Petitions for Certiorari were filed out
of time.

There should be no question that in a criminal case, when a
Decision or Resolution of the Court of Appeals becomes appealable
to this Court by the People, it is the Solicitor General who represents the
State.^[12]
And where the period of appeal has expired, neither a private prosecutor (on
the assumption that he has the authority) nor a City Fiscal can file a petition
for review on certiorari since the Office of the Solicitor General itself
could not have done so.

In the instant case, the Resolution of the Court of Appeals
granting new trial was served on the Solicitor General on November 23, 1976.^[13]
The Resolution became final on December
9, 1976.^[14]
No action having been seasonably taken to seek reconsideration, nor review by a
higher Court, before the finality of said Resolution, it has to be held that
appeal therefrom has been foreclosed and the present
Petitions for Certiorari, may not be utilized
to obtain re­view of that Resolution after the time of appeal has elapsed.^[15]
The remedy of Certiorari cannot be used as a substitute for appeal.^[16]
Respondent appellate Court, having acted within its jurisdiction when it issued
the Resolution in question, the same cannot be corrected by Certiorari but
is more properly the subject of appeal.^[17]

It will also have to be noted that when the Petition for Certiorari
was filed by the private prosecutor on January 11, 1977 and by the City Fiscal on
January 18, 1977, new trial had already commenced on January 12 and 13, 1977 in
the Court of First Instance of Iloilo and at the time our Restraining Order was
issued only the prosecution had to present rebuttal evidence.

Neither can it be successfully argued that an Order granting or
denying new trial is an interlocutory order and cannot be the subject of appeal
or of a special civil action.  As
enunciated in People vs. Bocar, et al.,^[18]
that rule does not apply in a criminal case because in deciding the case anew
the trial Court may acquit the defendant and thereafter “the prosecution
would have no more opportunity of bringing before the appellate Court the
question of the legality or illegality of the order granting a new trial
because the defendant acquitted may plead double jeopardy.”

Considering all the foregoing facts, dismissal is called
for.  The ends of justice will not be
subverted by the re-opening for if the newly discovered evidence consisting of
the testimony of Ofelia Ticzon is, as contended by
the Solicitor General, merely impeaching and not persuasive enough to secure a
reversal of the judgment, the accused will still stand convicted and his appeal
will take its course.  But if the trial
Court should find that the testimony of this witness is sufficient to overthrow
the evidence submitted during the trial, then the accused would be entitled to
an acquittal.

WHEREFORE, the consolidated Petitions for Certiorari
are hereby dismissed and the Restraining Order heretofore issued ordered
lifted.

SO ORDERED.

Teehankee, (Chairman), Makasiar, Fernandez, Guerrero, and De Castro, JJ., concur.

^[1]
Penned by Justice Emilio Gancayco, and concurred in
by Justices Mama D. Busran and Samuel F. Reyes.

^[2] p. 58, CA Rollo.

^[3] p. 63, ibid.

^[4] People vs. Curiano, L-15256-57, Oct. 31, 1963, and others.

^[5] p. 113, CA Rollo.

^[6] p. 87, ibid.

^[7] p. 2, Rollo.

^[8] p. 105, ibid.

^[9] p. 38, ibid.

^[10] p. 135, ibid.

^[11] p. 319, ibid.

^[12] See par. (a) sec. 1, P.D. 478; see
also par. (b) sec. 1661, Revised Administrative Code.

^[13] p. 113, CA Rollo.

^[14] p. 119, ibid.

^[15] City of Manila vs. Macadaeg, 3 SCRA 484 (1961).

^[16] Francisco vs. Caluag, 3 SCRA 694 (1961).

^[17]
Villa Rey Transit, Inc. vs. Bello, 7 SCRA
735 (1963); Associated Labor Union vs. Ramolete,
13 SCRA 582 (1965)

^[18] 97 Phil. 414 (1955).