THE PEOPLE OF THE PHILIPPINES, PLAINTIFF AND APPELLEE, VS. BUENAVENTURA MARIANO Y TABAQUIN, DEFENDANT AND APPELLANT.

From an order of the Court of First Instance of Manila defendant
Buenaventura Mariano y Tabaquin has taken this appeal, which is before
us only a question of law being raised therein.

Said defendant is charged in said court with having illegally
engaged, in the City of Manila, and without the authority required
therefor, in the business of carrying, conveying or transmitting
letters or packages for monetary consideration in places where the
government has provided means for the carriage of mails. Upon
arraignment he pleaded not guilty of the charge. Thereafter the case
was set for hearing, which was postponed several times on motion of the
defendant, Eventually, it was set for trial on June 7, 1961, but, four
(4) days prior thereto, defendant moved for the appointment of
assessors. The lower court denied this motion upon the ground; (1) that
the appointment of assessors is discretionary for the court which,
under the circumstances, felt should be exercised adversely to the
accused; and (2) that the motion had merely a dilatory purpose. Hence
this appeal.

The Solicitor General assails defendant’s right to appeal from the
order complained of, the same being interlocutory (People vs. Sampoli,
51 Off, Gaz., 263). The objection is well taken. In view of the
interlocutory nature of said order, the proper remedy against the same
would have been for the defendant to apply for a writ of certiorari and
mandamus. Nevertheless, we deem it fit to dispose of the issue raised
by defendant herein in order that it could no longer be reiterated in
the future, should the decision of the trial court on the merits of the
case be unfavorable to him.

Defendant maintains that the lower court had the mandatory duty to
appoint assessors upon the filing of his aforesaid motion. Upon the
other hand, in overruling this contention, the lower court relied upon
section 154 of the Code of Civil Procedure (Act No. 190) providing that
”either party to an action may apply for assessors to sit at
the trial” and section 49 of the Charter of the City of Manila
(Republic Act No. 409), pursuant to which

“* * * The aid of aggressors in the trial of any
civil or criminal action in the municipal court, or the Court of First
Instance, within the city, may be invoked in the manner provided in the Code of Civil Procedure. * * *.”

and held that the verb “may” used in both provisions “does not in
any way imply a duty on the part of the Court to grant the petition.”
It, likewise, cited, in support of this conclusion, a passage in our
decision in Primicias vs. Ocampo (49 Off. Gaz., 2230) declaring that
the respondent Judge therein had “acted with abuse of discretion in denying petitioner (therein) his right to the aid of assessor in the trial * * *.”

The view thus taken by His Honor, the trial judge, is incompatible
with the rule laid down and consistently applied by this Court in
several cases. In Berbari vs. Concepcion (40 Phil., 320, 322, and 324),
this Court said:

“Said section 154 in its relation with section 2477
provides a specie of jury trial for the defendants in criminal and
civil cases in the city of Manila, when a demand therefor is made by
the defendant. By the terms of said section assessors are only
appointed when one or both of the parties shall apply therefor in
writing to the judge. The parties may therefore waive their right to
assessors, and if they do not demand the appointment, they of course
waive their right thereto. The necessity or advisability of having
assessors is left to the discretion of the parties. Either or both may
exercise the right to have assessors appointed. But when the demand is
made, for the appointment of assessors in the form prescribed by the
law, has the judge any discretion to deny it? Said section (154)
provides that ‘upon the filing of such application the judge shall direct that the assessors be provided.’

“It would be difficult to draw a law in which the terms could be
made more mandatory. We are of the opinion that when the Legislature
said that the court shall direct etc., it did not intend that the judge might, could or should
appoint; that the Legislature, considering the purpose of the law,
meant exactly what it said —that the judge upon proper application shall appoint.

****

“* * * From all of the foregoing our conclusions are:

“1.
That the provisions of section 154 of Act No. 190 in relation with
section 2477 of Act No. 2711 relating to the appointment of assessors
is mandatory; * * *.”

In Colegio de San Jose vs. Sison (56 Phil., 344, 349) it was held:

” * * * The respondents could not be deprived of a substantial right
granted them by law. According to section 62 of the Code of Civil
Procedure, the assessors thus appointed shall after qualifying sit at
the hearing and advise the justice of the peace in the determination of
all questions of facts as well as of law, and in case of their dissent
as to the merits of the action, they are required by law to certify in
writing their dissent, giving the reasons therefor, and such dissent
shall be taken into account by the Court of First Instance in case of
appeal. All these provisions necessarily lead to the conclusion that
the intervention of the assessors is not an empty formality which may
be disregarded without violating either the letter or the spirit of the
law. It is another security given by the law to the litigants, and as
such, it is a substantial right of which they cannot be deprived
without vitiating all the proceedings. * * *.”

And in Primicias vs. Ocampo (93 Phil., 446; 49 Off. Gaz. 2230), the language used was:

“* * * we hold that the provisions on assessors
embodied in the Code of Civil Procedure are still in force and that the
same may still be invoked in the light of the provisions of section 49
of Republic Act No. 409. It is therefore our opinion that the
respondent Judge acted with abuse of discretion in denying petitioner
his right to the aid of assessors in the trial of the two criminal
cases now pending in the Court of First Instance of Manila.”

It is thus clear that, whereas the party in a criminal case in the
City of Manila may, in his discretion, move or not for the appointment
of assessors, once the motion to this effect has been filed, “the
appointment of assessors is mandatory.”

This notwithstanding, the order appealed from should not be
disturbed, insofar as it denies defendant’s motion, for, as stated in
said order:

“On the other hand, the Court feels that the
Insistence of the defense to have assessors appointed is merely part of
the dilatory tactics employed by the defense. This case was filed on
August 11, 1960. When the case was called for the arraignment of the
defendant, the defense sought and obtained a postponement on the ground
that it had sought the reinvestigation of the case. Finally, the
defendant was arraigned on September 26, 1960. On November 14, 1960,
the date set for trial, the defendant moved for a postponement on the
ground that his original counsel had withdrawn and that he needed time
to secure the services of another counsel. This was granted in an order
dated November 18, 1960. The hearing was set for January 4, 1961. On
January 3, 1961, the defense filed a motion for permission to withdraw
his original plea of not guilty to enable him to file a motion to
quash. The Court granted the defense permission to file the said motion
which was in fact filed on January 9, 1961. On the same date, the Court
denied the motion to quash and the case was set for hearing on March 6,
1961. On March 3, 1961, the defense, alleging that they had to file
several briefs and memoranda, moved for the postponement of the
hearing. The defense counsel, however, taking for granted, perhaps,
that the Court would grant their motion to postpone, failed to appear
on March 6, 1961, whereupon the Court ordered them to show cause why
they should not be held in contempt. On March 16, 1961, the Court
excused counsel for his non-appearance. The trial was set for June 7,
1961. On June 3, 1961, the defense filed his original motion for the
appointment of assessors.”

We are fully in accord with this view. Indeed, defendant has. not
even tried to explain why it took him over eight (8) months since his
arraignment, on September 26, 1960, and almost seven (7) months since
the case was first set for trial (on November 14, 1960), to ask for the
appointment of assessors. It is, also, noteworthy that the issues of
fact, under the information filed against the defendant, are limited
to: (1) whether he had engaged in activities analogous to the carriage
of mail, as alleged in said information; and (2) whether he had the
requisite authority therefor. Obviously, the determination of these
issues does not depend materially upon the appreciation or credibility
of testimonial evidence, for which the services of assessors may be of
substantial assistance in the administration of justice. This
circumstance and the delay in moving for the appointment of assessors,
after several postponements of the hearing upon defendant’s request,
indicates clearly that his purpose in filing the motion was purely
dilatory. Its denial by the lower court did not amount, therefore, to
an abuse of discretion warranting our intervention for, “the request
for the appointment of assessors should be made at the earliest
convenient time so as not to hinder or delay the trial or to
unnecessarily inconvenience the progress of the work of the court” (Berbari vs. Concepcion, 40 Phil., 320, 323), which would have been the necessary effect of said motion, had it been granted.

Wherefore, the order appealed from is affirmed, with costs against the defendant. It is so ordered.

Bengzon, C. J., Padilla, Bautista Angelo, Labrador, Reyes, J. B.
L., Barrera, Parades, Dizon, Regala and Makalintal, JJ., concur.