G.R. No. L-55213. October 09, 1981
PEOPLE OF THE PHILIPPINES, PETITIONER, VS. HON. HAROLD M. HERNANDO IN HIS CAPACITY AS PRESIDING JUDGE OF THE COURT OF FIRST INSTANCE OF ABRA, AND COSME CALIBUSO, ERNESTO CALIBUS…
MELENCIO-HERRERA, J.:
In this original Petition
for Certiorari, the People seek to set aside 1) the Amended Decision of
respondent Judge, dated August 1, 1980, acquitting herein respondents who were
the accused in Criminal Case No. 1020, and 2) the Orders of August 21, 1980 and
September 1, 1980 denying reconsideration.
The antecedental
facts follow:
On March 20, 1979, the
three private respondents and two others were charged with the crime of
Frustrated Murder for having stabbed with a pointed bladed weapon one Romeo Dukinal, inflicting upon him a stab wound, thus performing
all the acts of execution which would have produced the crime of Murder as a
consequence were it not for the timely medical attendance rendered to said
victim, which prevented his death.
After pleas of Not Guilty
were entered, trial proceeded with the accused setting up the common defense of
“general denial” by disclaiming knowledge and/or participation in the
commission of the crime.
On July 10,
1980, respondent
Judge rendered a Decision finding the guilt of the three private respondents
proven beyond reasonable doubt and convicting them of the crime charged. The other two accused had remained at large
and were not tried. Supportive of the
conviction, respondent Judge explained:
“The issue must be resolved in the affirmative side because no
mount of general details as a defense can overcome or off-set the clear and
positive identification (of all the accused as the perpetrators of the crime
charged in the information) by the several witnesses of the prosecution
especially Romeo Dukinal and William Gonzales who
were the offended parties and at the same time eye-witnesses to the stabbing at
about 4:30 P.M. of November 27, 1978,
inside the premises of the beerhouse located at Modiit,
Dolores, Abra; The act of Cosme
Calibuso in ordering or commanding his co-accused ‘to
kill Dukinal and Gonzales and give them reminder‘
and in immediate response, they consentedly and
simultaneously, one after the other, actually acted in conspiracy, stabbed and
stoned their victims and as a result, Romeo Dukinal
was stabbed by Rey Tubaña
and the rest of the other accused stoned Dukinal and
Gonzales; the act of one was, therefore, the criminal act and responsibility of
all the said accused. The commission of
the crime at bar by all the accused was also attended with evident
premeditation because after two (2) successive request to borrow the motorcycle
by Cosme Calibuso from Dukinal and the latter refusal because Cosme
Calibuso was drunk, the latter uttered ‘Vulva of
your mother‘ and then followed ‘Kill them and give them reminder‘,
by the interval of the utterances which were made after the other in a
considerable space of tine, all the accused were already alerted and placed on
reflection and had decided to undividedly respond to the order of their
commander Cosme Calibuso
and which resulted to the stabbing of Dukinal and the
stoning of Gonzales.[1]
On July 18,
1980, the accused Cosme Calibuso and Ernesto Calibuso (the Calibusos) moved
for reconsideration on the ground of variance between the crime committed and
that actually proven at the trial.
Before respondent Judge
could act thereon, the Calibusos, joined by the other
respondent-accused, Rey Tabaña,
presented an Amended Motion for Reconsideration and/or Motion for New Trial on July 23,
1980, based on newly
discovered evidence and their common claim that another person had committed
the crime charged. Attached to the aforestated Motion was an Affidavit of Merit of Leonico Talingdan, who averred
that it was William Gonzales who had committed the crime after a quarrel
between him and the victim, and another Affidavit of Merit of Nory S. Fernandez, a waitress in the beerhouse, who
confirmed the quarrel between those two individuals.
Reconsideration and/or
new trial was opposed by the Trial
Fiscal on July 24, 1980 on the ground that the facts sought to be established
by the proposed testimonies of Talingdan and
Fernandez were not newly discovered evidence, having been known to the accused
even during the trial, and that they would not in any way alter the judgment of
conviction.
The Motion for
Reconsideration, the Amended Motion for Reconsideration and/or Motion for New
Trial were jointly heard on July 25, 1980. The
transcript of stenographic notes taken during said hearing, which respondent
Judge attached to his Comment, discloses that in the course thereof, he had
issued this verbal
“ORDER. Motion for reconsideration, for lack of
merit, the same is hereby denied. New trial is
given due course. You can present now your witness compañero.”[2]
The Fiscal’s
Motion for Reconsideration thereof was denied with respondent Judge stating
that the prosecution could
cross-examine the witness, Leonico Talingdan.
On the witness stand, Talingdan reiterated substantially the same facts alleged
in his Affidavit of Merit. The Fiscal
endeavored to reserve the cross-examination for the main trial, the
“hearing being only as to whether there is a prima facie case for new trial”, but respondent
Judge replied “No, this is now the hearing and the court will determine if
the new trial is meritorious or not.”[3]
Thereafter, the following proceedings transpired:
“FISCAL BARBERO
Are we made to understand that the motion
for new trial is already granted, Your Honor?
“COURT
Yes.
You go ahead with your cross-examination, unless if you waive.
“FISCAL BARBERO
No we
are not waiving, Your Honor.
“COURT
Alright, proceed.”
The Fiscal then proceeded to cross-examine Leonico
Talingdan lengthily.
On the same date of the hearing, July 25, 1980, respondent Judge issued the following
Order:
“For lack of merit, the Motion for Reconsideration from the
decision of this Court is hereby denied.
Set the promulgation
of the decision on the basis of the new trial on August 1, 1980 at 8:00
o’clock in the morning.
SO ORDERED.
Bangued,
Abra, July
25, 1980.”[4]
On the date set, August 1,
1980, respondent
Judge rendered an Amended Decision acquitting all of the accused, which is reproduced hereunder in full:
“AMENDED DECISION
Acting upon the motion for new trial and finding the same to be
meritorious, the same is hereby given due course.
The basis for new trial is upon the newly discovered witness or
evidence in the person of Leonico Talingdan
who, on July 25, 1980, in open court, testified as follows: That on November 27, 1978, in the afternoon
together with Federico Buenavista were in the beer
house at Modiit, Dolores, Abra,
at about 3:00 o’clock in the afternoon; that they occupied a table and began
ordering beer; that at about 4:30 that same afternoon, two persons or customers
came inside the beer house in the person of Romeo Dukinal
and William Gonzales who rode on a motorcycle.
When these two persons had already parked their motorcycle they also
entered the beer house and
occupied another table and began ordering beer; their tables were near each
other; afterwards, Romeo Dukinal and William Gonzales
were talking in a loud voice and then Romeo Dukinal
stood up and shouted: ‘Vulva of your
mother’, addressed to his companion William Gonzales. The other customers inside the beer house
were surprised and so the persons inside began to disperse; While the people
inside were busy dispersing, Ernesto Calibuso and Rey Tubaña who were inside the
kitchen of the beer house overheard the loud voices and shouts or Romeo Dukinal and William Gonzales who were at that time arguing
each other as to who of them would pay for their bills in the beer house;
hence, Ernesto Calibuso and Rey
Tubaña went out of the kitchen and accosted and
brought Romeo Dukinal and William Gonzales outside
the beer house because they did not want trouble inside the beer house; the two
were able to pacify Romeo Dukinal and William
Gonzales and were taken outside the beer house; when Romeo Dukinal
and William Gonzales were already outside the beer house, they continued
quarreling with each other and Ernesto Calibuso and Rey Tubaña returned inside the
beer house. Romeo Dukinal
and William Gonzales continued quarreling and then William Gonzales said to
Romeo. Dukinal,
‘If you do not stop, then I
will give you something‘ and
at the same time he unsheathed a knife placed on his waist and thrusted it on the right chest of Romeo Dukinal; hence, the
injury inflicted upon Romeo Dukinal and because it
was not serious, the two (2) went together and rode on the same motorcycle and
proceeded to the highway until they reached the Bangued
Christian Hospital where Romeo Dukinal was
treated. After Romeo Dukinal
and William Gonzales had left the beer house, this witness and Federico Buenavista also left.
The witness was cross-examined by the Acting 1st Assistant
Provincial Fiscal Carlos B. Barbero and after the
cross examination, the defense submitted their case on new trial.
Issue: ‘Whether or not the accused are
prima facie guilty of the crime of
Frustrated Murder as alleged in the Information.’
The testimony of Leonico Talingdan on new trial had completely erased any and all
criminal liability and/or participations of the accused in the present case
because said witness, had positively testified during said new trial that it
was William Gonzales, the companion of Romeo Dukinal,
who stabbed the latter and not any of the accused in this case. This testimony of Leonico
Talingdan on new trial was never rebutted by the
prosecution. Clearly, therefore, the
charge of Frustrated Murder in the Information, if the Office of the Provincial
Fiscal should have carefully investigated this case, it would have found out
the correct culprit.
WHEREFORE, judgment is hereby rendered acquitting all the accused
in the present case. With
costs de oficio.
The bail bond of the accused posted by them for their provisional
liberty during the pendency of this case are hereby
released and cancelled.
SO ORDERED.
Bangued, Abra, August 1, 1980″
The Fiscal moved for
reconsideration on the following grounds:
“I. Amended Decision is contrary to law denying
plaintiff’s fundamental right to due process;
II. Findings (of) Amended Decision are contrary
to facts, not newly discovered not material and thus not sufficient to grant
new trial.”[5]
Respondent Judge denied
reconsideration predicated on the doctrine of double jeopardy. The dispositive
portion of said Order dated August 21, 1980, also challenged herein, read:
“WHEREFORE, the Provincial Fiscal is therefore directed to
submit before this Court within 10 days from today a decision of the Honorable
Supreme Court whereby a judgment of acquittal can be the subject matter of a
motion for reconsideration. If, after
the lapse of 10 days counted from today, and the prosecution cannot submit said
decision, then the motion for reconsideration will be DENIED.
SO ORDERED.”[6]
On September
1, 1980, respondent
Judge again denied reconsideration presumably for failure of the Fiscal to
submit the Supreme Court Decision that was required. This Order is likewise assailed.
The issues presented for
resolution in these Certiorari proceedings are:
“First, whether or not the petitioner People of the Philippines
was deprived of its day in court without due process of law;
Second, whether or not the respondent judge acted without or in
excess of jurisdiction and/or committed grave abuse of discretion amounting to
lack or excess of jurisdiction in issuing the Amended Decision of August 1,
1980 and the Order dated September 1, 1980 denying a motion for
reconsideration thereof; and
Third, whether or not the granting of this
petition would violate the right of the accused against double jeopardy.”[7]
Upon the record, we are
hard-pressed to find deprivation of due process of law. Petitioner contends that “while the
counsels for the accused were allowed to argue fully in support of their motion
for reconsideration and motion for new trial, the Fiscal was allowed to argue
only against the motion for reconsideration.” That contention is not
supported by the aforequoted portions of the
transcript taken during the hearing of July 25, 1980.
Respondent Judge had stopped the Fiscal from proceeding with his
argument because the Judge felt that the latter was going “too far”
and was told to “go to the point directly.”[8]
Again, contrary to the prosecution contention, the Fiscal was given a
chance to argue against the Motion for New Trial. In fact, he expounded:
“FISCAL BARBERO
The
testimony of proposed witness Leonico Talingdan, Your Honor, tends to show that it was William
Gonzales who stabbed the victim, and going over the motion for new trial, witness Leonico
Talingdan is a first degree cousin of Cosme Calibuso and known to me
personally being a neighbor in Lagangilang and
Dolores, Abra.
And we have seen him during the trial and in fact he was always here in
court during the trial and in fact he is here now. Even during the trial, Your Honor, he was
here. How could the defense say now that
he is a newly discovered evidence.”
True, respondent Judge
forthwith proceeded to take Talingdan’s
testimony. However, the Fiscal was given
all the opportunity to cross-examine said witness.
It is not apt to state
that the Order of July 25, 1980 resolved only the Motion for
Reconsideration, not the Motion for New Trial. The verbal Order during the hearing held on
said date stated in no uncertain terms “new trial is given due
course.” It was followed by the written Order, which explicitly ordained
“set the promulgation of the decision on the basis of the new trial on August 1,
1980 x x x “.
It is also inaccurate to
aver that the Motion for New Trial was yet to be resolved when respondent Judge
issued his Amended Decision on August 1, 1980. In
said Judge’s verbal Order during the hearing, heretofore quoted, he
specifically ruled “New trial is given due course. You can present now your witness compañero.”[9] But
apparently, respondent Judge had forgotten what had transpired during the
hearing for he prefaced the Amended Decision by stating: “Acting upon the motion for new trial
and finding the same to be meritorious, the same is hereby given due
course.” While, in fact, misleading, the Trial Fiscal was present during
the hearing, was informed that the new trial had been granted, and that the
decision based thereon was to be promulgated on a certain date.
The reception of Talingdan’s testimony on July 25, 1980 was actually, as events transpired,
the new trial. The Fiscal had pointedly
asked “are we made to understand that the motion for new
trial is already granted, Your Honor?” To which the Court succinctly
replied: “Yes, You go ahead with
your cross-examination, unless if you waive.”[10] If
the Fiscal was desirous of presenting rebuttal evidence after the re-direct
examination he could have asked the Court for permission to do so, but he did
not.
We are not minded to
conclude, therefore, that the prosecution was deprived of the right to assail
the granting of the new trial either by asking for a
reconsideration thereof and/or by filing a petition for certiorari
therefrom.
Between July 25, 1980, the date of the written Order, and August 1,
1980, the date set
for the promulgation of the Decision “on the basis of the new trial”,
the Fiscal could have moved for reconsideration or filed a petition for Certiorari. But again, he did not.
Be that as it may,
respondent Judge committed grave abuse of discretion amounting to lack or
excess of jurisdiction when he granted new trial. The facts sought to be established by the
testimonies of witnesses Talingdan and Fernandez
could not be considered newly discovered evidence within the meaning of the law
(Sec. 2(b), Rule 121, Rules of Court). They could have been discovered and produced
during the trial with the exercise of reasonable diligence. They were forgotten evidence, which is not a
ground for new trial.[11]
Moreover, more meticulous
and careful evaluation would have disclosed that the proferred
evidence could not, in any way, have altered the judgment. It could only affect the credibility of
witnesses. It was essentially impeaching
in character.[12]
William Gonzales was himself the victim of stoning by the accused. He was a witness at the trial and pointed to
the accused as the culprits. The defense
had sufficient opportunity to turn the tables on him. And if, as testified to by Talingdan, William Gonzales had stabbed the victim, it is
highly incredible that they would have ridden together on
the same motorcycle going to the highway.
On other hand, as stated in his original Decision, respondent Judge had
categorically found that the offended parties Romeo Dukinal
and William Gonzales had clearly and positively identified the accused as the
culprits. The evidence introduced by the
prosecution at the original trial was too strong to be overcome by a reproduction
on the witness stand of the contents of the affidavits of the proferred witnesses.
It was grave abuse of discretion, therefore, on the part of respondent Judge to have rendered the Amended Decision
acquitting the accused. He should also
be called to task for his lack of clear-cut procedures that led to confusion in
the proceedings before him.
Notwithstanding, the
error committed can no longer be rectified under the cardinal rule on double
jeopardy. The judgment of acquittal in
favor of an accused necessarily ends the case in which he is prosecuted and
the same cannot be appealed nor reopened because of the doctrine
that nobody may be put twice in jeopardy for the same offense. Respondents have been formally acquitted by
respondent Court, albeit erroneously.
That judgment of acquittal is a final verdict. Errors or irregularities, which
do not render the proceedings a nullity, will not defeat a plea of antrefois acquit.[13] The proceedings in
the Court below were not an absolute nullity as to render the judgment of
acquittal null and void. The prosecution
was not without the opportunity to present its evidence or even to rebut the
testimony of Leonico Talingdan,
the witness on new trial. It cannot be
justifiably claimed, therefore, that the prosecution was deprived of its day in
Court and denied due process of law, which would have rendered the judgment of
acquittal a nullity[14] and beyond the pale of a claim of double
jeopardy. What was committed by
respondent Judge was a reversible error but which did not render the
proceedings an absolute nullity.
WHEREFORE, although
respondent Judge had committed grave abuse of discretion in rendering his
Amended Decision acquitting the accused, relief herein is barred by the
fundamental principle of double jeopardy.
No costs.
SO
ORDERED.
Makasiar, (Acting Chairman),
Fernandez, Guerrero, and De Castro*, JJ., concur.
[1]
Decision, Annex “B” of Petition, p. 13, Rollo.
[2]
T.s.n., p. 7.
[3]
T.s.n., p. 17.
[4]
p. 29, Rollo.
[5]
p. 32, Rollo.
[6]
p. 34, ibid.,
[7]
p. 146, ibid.
[8]
T.s.n., p. 6.
[9]
T.s.n., p. 7.
[10]
T.s.n., p. 17.
[11]
People vs. Penesa, 81 Phil.
398 (1948).
[12]
People vs. Evaristo, 13 SCRA 172, 184
(1965); Lee Cheng Poe, 39 Phil. 466 (1919).
[13]
Com. vs. Goddard, 13 Mass.
458.
[14]
see People vs. Balicasan,
17 SCRA 1119 (1966).
* Justice Pacifico P. de Castro was designated to sit in the First
Division, Justice Claudio Teehankee being on official
leave.