G.R. No. L-30894. March 25, 1970
EDUARDO L. MARTELINO, CIRILO OROPESA, TEODORO FACELO, RUPERTO AMISTOSO, ALBERTO SOTECO, SOLFERINO TITONG, ET AL., PETITIONER, VS. JOSE ALEJANDRO, RUBEN S. MONTOYA, SIXTO R. ALHA…
CASTRO, J.:
This case presents another aspect of the court-martial
proceedings against the petitioner, Major Eduardo Martelino,
alias Abdul Latif Martelino,
of the Armed Forces of the Philippines, and the officers and men under him, for
violation of the 94th and 97th Articles of War, as a result of the alleged
shooting on March 18, 1968 of some Muslim recruits then undergoing commando
training on the island of Corregidor. Once before the question was raised before
this Court whether the general court-martial, convened on April 6, 1968 to try
the case against the petitioners, acquired jurisdiction over the case despite
the fact that earlier, on March 23, a complaint for frustrated muder had been filed in the fiscal’s
office of Cavite City by Jibin
Anula (who claimed to have been wounded in the
incident) against some of the herein petitioners. The proceedings had to be suspended until the
jurisdiction issue could be decided, On June 23, 1969 this Court ruled in favor of the
jurisdiction of the military court.[1]
The jurisdiction question thus settled, attention once again
shifted to the general court-martial, but no sooner had the proceedings resumed
than another hitch developed this came about as the petitioners, the accused in
the court-martial proceedings, in turn came to this Court, seeking relief
against certain orders of general court-martial.
It appears that at the hearing on August 12, 1969 the petitioner Martelino
sought the disqualification of the president of the general court-martial,
following the latter’s admission that he read newspaper stories of the Corregidor incident. The petitioner contended that the case had
received such an amount of publicity in the press and other news media and in
fact was being exploited for political purposes in connection with the
presidential election on November 11,
1969 as to imperil his right to a fair trial. After deliberating, the military court denied
the challenge.
Thereafter the petitioners raised peremptory challenges against
Col. Alejandro, as president of the court-martial, and Col. Olfindo,
Lt. Col. Camagay, Lt. Col. Valones,
Lt. Col. Planco and Col. Malig,
as members. With regard to peremptory
challenges it was the petitioners’ position that for each specification each
accused was entitled to one such challenge.
They later changed their stand and adopted that of the trial judge
advocate that “for each specification jointly tried, all of the accused
are entitled to only 1 peremptory challenge; and that with respect to the
specifications tried commonly, each one of the accused is entitled to one
peremptory challenge.” They there
contended that they were entitled to a total of eleven peremptory
challenges. On the other hand the
court-martial ruled that the accused were entitled to only one peremptory
challenge as the specifications were being jointly tried.
The petitioners therefore filed this petition for certiorari and prohibition, to
nullify the orders of the court-martial denying their challenges, both
peremptory and for cause. They allege
that the adverse publicity given in the mass media to the Corregidor incident, coupled with the fact
that it became an issue against the administration in the 1969 elections, was
such as to unduly influence the members of the court-martial. With respect to peremptory challenges, they
contend that they are entitled to eleven such challenges, one for each
specification.
On August 29, 1969
this Court gave due course to the petition, required the respondents as members
of the general court-martial to answer and, in the meantime, restrained them
from proceeding with the case.
In their answer the respondents assert that despite the publicity
which the case had received, no proof has been presented showing that the court-martial’s
president’s fairness and impartiality have been impaired. On the contrary,
they claim, the petitioner’s own counsel expressed confidence in the
“integrity, experience and background” of the members of the
court. As a preliminary consideration,
the respondents urge this Court to throw out the petition on the ground that it
has no power to review the proceedings of the court-martial, “except for
the purpose of ascertaining whether the military court had jurisdiction of the
person and subject matter, and whether, though having such jurisdiction, it
had exceeded its powers in the sentence pronounced,” and that at any rate
the petitioners failed to exhaust remedies available to them within the
military justice system.
I
It is true that civil courts as a rule exercise no supervision
or correcting power over the proceedings of courts-martial, and that mere
errors in their proceedings are not open to consideration. “The single inquiry, the test, is
jurisdiction.”[2] But it is equally true that in the exercise
of their undoubted discretion, courts-martial may commit such an abuse of
discretion – what in the language of Rule 65 is referred to as “grave
abuse of discretion” – as to give rise to `a defect in their
jurisdiction.[3] This is precisely the point at issue in this
action suggested by its nature as one for certiorari
and prohibition, namely, whether in over-ruling the petitioners’ challenges,
the general court-martial committed such an abuse of discretion as to call for
the exercise of the corrective powers of this Court. It is thus obvious that no other way is open
to this Court by which it may avoid passing upon the constitutional issue
thrust upon it. Nor will the fact that
there may be available remedies within the system of military justice bar
review considering that the questions raised are questions of law.[4]
And so the threshold question is whether the publicity given to
the case against the petitioners was such as to prejudice their right to a fair
trial. As already stated, the petitioner Martelino
challenged the court-martial president on the ground that newspaper accounts
of what had come to be referred to as the “Corregidor
massacre” might unduly influence the trial of their case. The petitioner’s counsel referred to a news
item appearing in the July 29, 1969 issue of the Daily Mirror and
cited other news reports to the effect that “coffins are being prepared
for the President (of the Philippines) in Jolo,”
that according to Senator Aquino “massacre
victims were given sea burial,” and that Senator Magsaysay,
opposition Vice Presidential candidate, had gone to Corregidor
and “found bullet shells.” In
addition the petitioners cite in this Court a Manila
Times editorial of August 26,
1969 which states that “The Jabidah
[code name of the training operations] issue was bound to come up in the course
of the election campaign. The opposition
could not possibly ignore an issue that is heavily loaded against the
administration.” The petitioners
argue that under the circumstances they could not expect a just and fair trial
and that, in overruling their challenge for cause based on this ground, the
general court-martial committed a grave abuse of discretion. In support of their contention they invoke
the rulings of the United States Supreme Court in Irvin v. Dowd,[5] Rideau v. Louisiana,[6] Estes
v. Texas,[7]
and Sheppard v. Maxwell.[8]
An examination of the cases cited, however, will show that they,
are widely disparate from this case in a fundamental sense. In Irvin, for instance, the Supreme
Court found that shortly after the petitioner’s arrest in connection with six
murders committed in Vanderburgh County, Indiana, the prosecutor and police
officials issued press releases stating that the petitioner had confessed to
the six murders and that “a barrage of newspaper headlines, articles,
cartoons and pictures was unleashed against him during the six or seven months
preceding his trial.” In reversing
his conviction, the Court said:
“Here the ‘pattern of deep and bitter prejudice’ shown to be
present throughout the community, . . . was clearly reflected in the sum total
of the voir dire examination of a
majority of the jurors finally placed in the jury box. Eight out of the 12 thought petitioner was
guilty. With such an opinion permeating
their minds, it would be difficult to say that each could exclude this
preconception of guilt from his deliberations.
The influence that lurks in an opinion once formed is so persistent that
it unconsciously fights detachment from the processes of the average man. . .
. Where one’s life is at stake – and
accounting for the frailties of human nature – we can only say that in the
light of the circumstances here the finding of impartiality does not meet the
constitutional standards. “[9]
Irvin marks the first time a state conviction was struck
down solely on the ground of prejudicial publicity.[10] In the earlier case of Shepherd v. Florida,[11]
which involved elements of publicity, the reversal of the conviction was based
solely on racial discrimination in the selection of the jury, although to
concurring Justice Jackson, who was joined by Justice Frankfurter, “It is
hard to imagine a more prejudicial influence than a press release by the
officer of the court charged with defendants’ custody stating that they had
confessed, and here just such a statement unsworn to,
unseen, uncross-examined and uncontradicted, was
conveyed by the press to the jury.”[12]
In Rideau the petitioner,
suspect in the robbery of a bank in Lake Charles,
Louisiana and in the kidnapping of three of
its employees and in the killing of one of them, was similarly given
“trial by publicity.” Thus,
the day after his arrest, a moving picture film was taken of him in an
“interview” with the sheriff.
The “interview,” which lasted approximately 20 minutes,
consisted of interrogation by the sheriff and admission by Rideau
that he had perpetrated the bank robbery, kidnapping and murder. The interview was seen and heard on
television by 24,000 people. Two weeks
later he was arraigned. His lawyers
promptly moved for a change of venue but their motion was denied and Rideau was convicted and sentenced to death. Rideau’s counsel
had requested that jurors be excused for cause, having exhausted all of their
peremptory challenges, but these challenges for cause had been denied by the
trial judge. In reversing his conviction, the Court said:
“[W]e hold that it was a denial of due
process of law to refuse the request for a change of venue, after the people
of Calcasieu Parish had been exposed repeatedly and in depth to the spectacle
of Rideau personally confessing in detail to the
crimes with which he was later to be charged.
For anyone who has ever watched television the conclusion cannot be
avoided that this spectacle, to the tens of thousands of people who saw and
heard it, in a very real sense was Rideau’s
trial – at which he pleaded guilty to murder.
Any subsequent court proceedings in a community so pervasively exposed
to such a spectacle could be but a hollow formality.”[13]
In the third case, Estes, the Court voided a televised criminal
trial for being inherently a denial of due process.
“The state . . . says that the use of television in the
instant case was ‘without injustice to the person immediately concerned,’
basing its position on the fact that the petitioner has established no isolatable
prejudice and that this must be shown in order to invalidate a conviction in
these circumstances. The State paints
too broadly in this contention, for this Court itself has found instances in
which a showing of actual prejudice is not a prerequisite to reversal. This is such a case. It is true that in most cases involving
claims of due process deprivations we require a showing of identifiable
prejudice to the accused. Nevertheless,
at times a procedure employed by the State involves such a probability that
prejudice will result that it is inherently lacking in due process.”[14]
In Sheppard, the celebrated murder case of Sam Sheppard,
who was accused of the murder of his wife Marilyn, the Supreme Court observed a
“carnival atmosphere” in which “bedlam reigned at the courthouse
… and newsmen took over practically the entire courtroom, hounding most of
the participants in the trial, especially Sheppard.” It observed that “despite the extent and
nature of the publicity to which the jury was exposed during the trial, the
judge refused defense counsel’s other requests that the jury be asked whether
they had read or heard specific prejudicial comment about the case. … In
these circumstances, we can assume that some of this material reached members
of the jury.” The Court held:
“From the cases coming here we note that unfair and
prejudicial news comment on pending trials has become increasingly prevalent,
Due process requires that the accused receive a trial by an impartial jury
free from outside influences. Given the
pervasiveness of modern communications and the difficulty of effacing
prejudicial publicity from the minds of the jurors, the trial courts must take
strong measures to ensure that the balance is never weighed against the
accused. And appellate tribunals have
the duty to make an independent evaluation of the circumstances. Of course, there is nothing that proscribes
the press from reporting events that transpire in the courtroom. But where
there is a reasonable likelihood that prejudicial news prior to trial will
prevent a fair trial, the judge should continue the case until the threat
abates; or transfer it to another county not so permeated with publicity. In addition sequestration of the jury was
something the judge should have raised sua sponte with counsel.
If publicity during the proceeding threatens the fairness of the trial,
a new trial should be ordered. But we
must remember that reversals are but palliatives; the cure lies in those
remedial measures that will prevent the prejudice at its inception. The courts must take such steps by rule and
regulation that will protect their processes from prejudicial outside
interference. Neither prosecutors, counsel for defense, the accused, witnesses,
court staff nor enforcement officers coming under the jurisdiction of the court
should be permitted to frustrate its function.
Collaboration between counsel and the press as to information affecting
the fairness of a criminal trial is not only subject to regulation, but is
highly censurable and worthy of disciplinary measure.”[15]
In contrast the spate of publicity in this case before us did not
focus on the guilt of the petitioners but rather on the responsibility of the
Government for what was claimed to be a “massacre” of Muslim
trainees. If there was a “trial by newspaper” at all, it was not of
the petitioners but of the Government.
Absent here is a showing of failure of the court-martial to protect the
accused from massive publicity encouraged by those connected with the conduct
of the trial,[16]
either by a failure to control the release of information or to remove the
trial to another venue or to postpone it until the deluge of prejudicial
publicity shall have subsided. Indeed we
cannot say that the trial of the petitioners was being held under circumstances
which did not permit the observance of those imperative decencies of procedure
which have come to be identified with due process.
At all events, even granting the existence of “massive”
and “prejudicial” publicity, since the petitioners here do not contend
that the respondents have been unduly influenced but simply that they might be
by the “barrage” of publicity, we think that the suspension of the
court-martial proceedings has accomplished the purpose sought by the
petitioners’ challenge for cause, by postponing the trial of the petitioner
until calmer times have returned. The
atmosphere has since been cleared and the publicity surrounding the Corregidor incident has so far abated that we
believe the trial may now be resumed in tranquility.
II
Article of War 18 provides that “Each side shall be entitled
to one peremptory challenge, but the law member of the court shall not be
challenged except for cause.” The
general court-martial originally interpreted this provision to mean that the entire
defense was entitled to only one peremptory challenge. Subsequently, on August 27, 1969, it changed its ruling and held
that the defense was entitled to eight peremptory challenges, but the
petitioners declined to exercise their right to challenge on the ground that
this Court had earlier restrained further proceedings in the court-martial.
It is the submission of the petitioners that “for every
charge, each side may exercise one peremptory challenge,” and therefore
because there are eleven charges they are entitled to eleven separate
peremptory challenges. The respondents, upon the other hand, argue that
“for each specification jointly tried, all of the accused are entitled to
only one peremptory challenge and that with respect to specifications tried
commonly each of the accused is entitled to one peremptory
challenge.” Although there are
actually a total of eleven specifications against the petitioners, three of these
should be considered as merged with two other specifications, “since in
fact they allege the same offenses committed in conspiracy, thus leaving a
balance of eight specifications.”
The general court-martial therefore takes the position that all the 23
petitioners are entitled to a total of only eight peremptory challenges.
We thus inescapably confront, and therefore now address, the
issue here posed.
We are of the view that both the petitioners and the general
court-martial misapprehend the true meaning, intent and scope of Article of War
18. As will hereinafter be demonstrated,
each of the petitioners is entitled as a matter of right to one
peremptory challenge. The number of
specifications and/or charges, and whether the accused are being jointly tried
or undergoing a common trial, are of no moment.
In the early formative years of the infant Philippine Army, after
the passage in 1935 of Commonwealth Act No. 1 (otherwise known as the National
Defense Act), except for a handful of Philippine Scout officers and graduates
of the United States military and naval academies who were on duty with the
Philippine Army, there was a complete dearth of officers learned in military
law, this aside from the fact that the officer corps of the developing army was
numerically inadequate for the demands of the strictly military aspects of the
national defense program. Because of
these considerations it was then felt that peremptory challenges should not in
the meanwhile be permitted and that only challenges for cause, in any number,
would be allowed. Thus Article 18 of the
Articles of War (Commonwealth Act No. 408), as worded on September 14, 1938, the date of the approval of
the Act, made no mention or reference to any peremptory challenge by either
the trial judge advocate of a court-martial or by the accused. After December 17, 1958, when the Manual for Courts-Martial[17]
of the Philippine Army became effective, the Judge Advocate General’s Service
of the Philippine Army conducted a continuing and intensive program of training
and education in military law, encompassing the length and breadth of the Philippines. This program was pursued until the outbreak
of World War II in the Pacific on December
7, 1941. After the formal
surrender of Japan
to the allies in 1945, the officer corps of the Armed Forces of the Philippines
had expanded to a very large number, and a great many of the officers had been
indoctrinated in military law. It was in
these environmental circumstances that Article of War 18 was amended on June 12, 1948 to entitle “each
side” to one peremptory challenge, with the sole proviso, that “the
law member of the court shall not be challenged except for cause.”
By its very inherent nature a peremptory, challenge does not
require any reason or ground therefor to exist or to
be stated. It may be used before,
during, or after challenges for cause, or against a member of the court-martial
unsuccessfully challenged for cause, or against a new member if not previously
utilized in in the trial. A member challenged peremptorily is forthwith
excused from duty with the court-martial.
The right of challenge comes from the common law with the trial
by jury itself, and has always been held essential to the fairness of trial by
jury.[18]
“As was said by Blackstone, and repeated by Mr. Justice
Story: ‘In criminal cases, or at least in capital ones, there is in favorem vitae, allowed to the Prisoner an
arbitrary and capricious species of challenge to a certain number of jurors,
without showing any cause at all, which is called a peremptory challenge; a
provision full of that tenderness and humanity to prisoners, for which our
English laws are justly famous. This is
grounded on two reasons: 1. A s every one must be sensible, what sudden
impression and unaccountable prejudices we are apt to conceive upon the bare
looks and gestures of another; and how necessary it is that a prisoner (when
put to defend his life) should have a good opinion of his jury, the want of
which might totally disconcert him; the law has conceived a prejudice even
without being able to assign a reason for his dislike. 2. Because, upon challenges for cause shown,
if the reason assigned prove insufficient to set aside the juror, perhaps the
bare questioning his indifference may sometimes provoke a resentment, to
prevent all ill consequences from which, the prisoner is still at liberty, if
he pleases, peremptorily to set him aside.’”[19]
The right to challenge is in quintessence the right to reject,
not to select. If from the officers who
remain an impartial military court is obtained, the constitutional right of
the accused to a fair trial is maintained.[20]
As we have hereinbefore stated, each of the 23 petitioners
(accused before the general court-martial) is entitled to one peremptory
challenge,[21]
irrespective of the number of specifications and/or charges and regardless of
whether they are tried jointly or in common.
Three overriding reasons compel us to this conclusion.
First, a peremptory challenge is afforded to an accused
who, whether rightly or wrongly, honestly feels that the member of the court
peremptorily challenged by him cannot try him, can not sit in judgment over
him, impartially. Every accused person
is entitled to a fair trial. It is not
enough that objectively the members of the court may be fair and
impartial. It is likewise necessary that
subjectively the accused must feel that he is being tried by a fair and
impartial body of officers. Because the
petitioners may entertain grave doubts as to the fairness or impartiality of
distinct, separate and different individual members of the court-martial, it
follows necessarily that each of the accused is entitled to one peremptory
challenge.
Second, Article of War 18 does not distinguish between
common trials and joint trials, nor does it make the nature or number of
specifications and/or charges a determinant.
Reference is made by the respondents here to U.
S. military law, in support of their
argument that for each specification jointly tried all of the accused are
entitled to only one peremptory challenge and with respect to all
specifications tried in common each of the accused is entitled to one
peremptory challenge. We have carefully
scrutinized U. S.
Military law, and it is unmistakable from our reading thereof that each accused
person, whether in a joint or common trial unquestionably enjoys the right to
one peremptory challenge.[22]
Third, a perceptive analysis of the companion articles[23]
to Article 18 convinces us that the words, “each side,” as used in
the said article in reference to the defense, should be construed to mean each
accused person. Thus, Articles of War 17
(Trial Judge Advocate to Prosecute; Counsel to Defend), 19 (Oath), 21 (Refusal
or Failure to Plead), 28 (Court to Announce Action), 29 (Closed Sessions), 30
(Method of Voting), and 36 (Irregularities – Effect of), unequivocally speak of
and refer to the “accused” in the singular.
ACCORDINGLY, subject to our pronouncement that each of the
23 petitioners is entitled to one separate peremptory challenge, the present
petition is denied. The temporary restraining order issued by this Court on August 29, 1969 is hereby
lifted. No pronouncement as to costs.
Concepcion, C.J., Reyes, J.B.L., Makalintal, Zaldivar, Fernando, Teehankee, Barredo, and Villamor, JJ., concur.
Dizon, J., did not take part in view of his dissent in G.R. L-28949.
[1] Arula v. Espino,
L-28949, June 23, 1959, 28
SCRA 540. This Court held that while a
complaint had earlier been filed in the fiscal’s
office, no case had been filed in the Court of First Instance on or before
April 6, 1968, when charge and specifications arising from the same incident
were referred for trial to a general court-martial, and that the latter court
had acquired jurisdiction of the persons of the accused by their arrest.
“[J]urisdiction
to try a particular criminal case is vested in a court only when the
appropriate charge is filed with it AND when jurisdiction of the
person is acquired by it through the arrest of the party charged or by
his voluntary subs fission to the court’s jurisdiction.” Id.
at 565.
[2] United
States v. Grimley,
137 U.S. 147,
150 (1890).
[3] Hiatt
v. Brown, 339 U. S.
108 (1949); cf. Grafton v. United
States, 206. U. S. 333 (1907).
[4] Arula v. Espino,
supra, note 1.
[5]
366 U.S. 717
(1961).
[6]
373 U. S. 723
(1963).
[7]
381 U. S. 532
(1965).
[8]
384 U. S. 333
(1966).
[9]
366 U.S. at
727.
[10]
W. LOCKHART, Y. KAMISAR & J. CHOPER, CONSTITUTIONAL LAW, CASES, COMMENTS,
QUESTIONS 715 (2d ed. 1967).
[11]
341 U.S. 50 (1951), see also Stroble v.
California, 343 U.
S. 181 (1952).
[12] 341
U. S. at 52.
[13]
373 U. S. at
726.
[14]
381 U.S. at
542.
[15]
384 U.S. at
362.
Compare the American Ear Association
Standards Relating to Fair Trial and Free Press, adopted in February, 1968
particularly Part sec. 3.1(c) which provides:
“A motion for change of venue
or continuance shall be granted whenever it is determined that because of the
dissemination of potentially prejudicial material, there is a reasonable
likelihood that in the absence of such relief, a fair trial cannot be had. This determination may be based on such
evidence as qualified public opinion surveys or opinion testimony offered by
individuals, or on the court’s own evaluation of the nature, frequency, and
timing of the material involved. A showing of actual prejudice shall not be
required.” 54 A.E.A.J. 347, 349 (1968).
[16]
Compare Cruz v. Salva, 106 Phil. 1151
(1959) in which this Court censured a fiscal for allowing wide publicity and
sensationalism to be given to an investigation of a criminal case being
conducted by him.
“However, according to the
petitioner and not denied by the respondent, the investigation was conducted
not in respondent’s office but in the session hall of the Municipal Court of Pasay City evidently, to accommodate the big crowd that
wanted to witness the proceeding, including members of the press. A number of microphones were installed. Reporters were everywhere and photographers
were busy taking pictures. In other
words, apparently with the permission of, if not the encouragement by the
respondent, news photographers and newsmen had a field day. Not only this, but
in the course of the investigation,’ as shown by the transcript of the
stenographic notes taken during said investigation, on two occasions, the
first, after Oscar Caymo had concluded his
testimony, respondent Salva, addressing the
newspapermen said, ‘Gentlemen of the press, if you want to ask questions I am
willing to let you do so and the questions asked will be reproduced as my own’;
and the second, after Jose Maratella y de Guzman had
finished testifying and respondent Salvia, addressing the newsmen, again said,
‘Gentlemen of the press is free to ask questions to the witness if you want
to. We are willing to adopt the
questions as ours.’ Why respondent was willing to abdicate and renounce his
right and prerogative to make and address the questions to the witnesses under
investigation, in favor of the members of the press, is difficult for us to
understand, unless he, respondent, wanted to curry favor with the press and
publicize his investigation as much as possible. Fortunately, the gentlemen of the press to
whom he accorded such unusual privilege and favor appeared to have wisely and
prudently declined the offer and did not ask questions, this according to the
transcript now before us.
“But, the newspapers certainly
played up and gave wide publicity to what took place during the investigation,
and this involved headlines and extensive recitals, narrations of and comments
on the testimonies given by the witnesses as well as vivid descriptions of the
incidents that took place during the investigation. It seemed as though the criminal
responsibility for the killing of Manuel Monroy which
had already been tried and finally determined by the lower court and which was
under appeal and advisement by this Tribunal, was being retried and redetermined in the press, and all with the apparent
complaisance of respondent.
“Frankly, the members of this
Court were greatly disturbed and annoyed by such publicity and sensationalism,
all of which may property be laid at the door of respondent Salva. In this, he committed what we regard a grievous
error and poor judgment for which we fail to find any excuse or satisfactory
explanation. His actuations in this
regard went well beyond the bounds of prudence, discretion and good taste. It is bad enough to have such undue publicity
when a criminal case is being investigated by the authorities, even when it is
being tried in court; but when said publicity and sensationalism is allowed,
even encouraged, when the case is on appeal and is pending consideration by
this Tribunal, the whole thing becomes inexcusable, even abhorrent, and this
Court, in the interest of justice, is constrained and called upon to put an end
to it and a deterrent against its repetition by meting an appropriate disciplinary
measure, even a penalty to the one liable.
[17]
The writer of this opinion was the Chairman of the Committee (of three Judge
Advocates) which was entrusted with the responsibility of preparing the Manual
for Courts-Martial. The Manual was
published under cover of Executive Order 178, series of 1938, of President
Manuel. L. Quezon.
[18]
“The court-martial, as its history and development demonstrate, is a blend
of the jury system and the one-judge (non-jury) judicial system. In common law jurisdictions, an accused is
tried by his peers. In one-judge
(non-jury) jurisdictions, the accused is tried by a lone judicial arbiter. In a
court-martial trial, the entire panel of officers who constitute the
court-martial is judge and jury.” (Concurring opinion of Justice Fred Ruiz
Castro in Santiago v. Alikpala, L-25133,
Sept. 28, 1968, 25 ‘SCRA, pp. 367-368)
[19] Lewis
v. U.S.,
146 U. S. 370.
[20] Hayes
vs. Missouri,
120 U.S. 68.
[21]
Modern statutes allow peremptory challenges in all criminal prosecutions and
fix the number for both the prosecutor and the defendant. Under some statutes the number of peremptory
challenges allowed defendants jointly indicted is the same as though there were
only one defendant, while under other statutes each defendant is allowed the
same number of challenges as though he were prosecuted individually. Some of these statutes increase the number of
challenges allowed the prosecution when the number of defendants is increased,
while under others the prosecution is only given additional challenges when
the defendants are entitled to additional challenges. (See Vol. 5, Wharton’s Criminal Law and
Procedure, tar. 1991, pp. 122-124, citing authorities.)
It is pertinent to note that in U.S.
federal courts, the basis for the number of peremptory challenges is the number
of indictments. In Krause vs. United
States; 147 F 442 (1906) it was held that each defendant is entitled to
three peremptory challenges on each indictment, citing, in support thereof,
section 819 of the Revised Statutes (U.S. Comp. St. 1901, p. 629). In Gallaghan vs. United States, 299 F.
472 (1924), it was likewise held that each defendant is entitled to three
peremptory challenges on each information under the Judicial Code, 287 (Comp.
St. 1264).
[22]
See Articles 36 and 41 of the U. S. Uniform Code of Military Justice, and
pars. 53(c) and 62(e) of the 1969 U. S. Manual for Courts-Martial.
[23]
Articles of ??? 17 to 37 are lumped
under the title “Procedure.”