G.R. No. 14327. January 30, 1960
PEOPLE OF THE PHILIPPINES, PLAINTIFF AND APPELLANT, VS. BERNARDO BORJA, ET AL., DEFENDANT AND APPELLEES.
BARRERA, J.:
Emper, and Teofilo Bag-ao, were charged in the Court of First Instance
of Surigao (in Crim. Case No. 2226), with the crime of murder, for
having allegedly killed Manuel Ibañez on January 13, 1943, in the
municipality of Mainit, province of Surigao, with evident premeditation
and treachery, and with abuse of superior strength and weapons.
On April 8, 1957, the accused, claiming that the execution of the
deceased for which they are charged, was done in furtherance of the
guerrilla movement, filed a petition for guerrilla amnesty, pursuant to
Guerrilla Amnesty Proclamation No. 8 of the President.
On May 2, 1957, while said petition was pending, the Provincial
Fiscal moved to exclude from the information the accused Floro Tandang
and Joaquin Odog to be utilized as state witnesses.
The other accused opposed the motion of the Provincial Fiscal, and
on June 29, 1957, the court issued an order of the following tenor:
“ORDER
“The Fiscal in his motion dated May 3, 1957 (should
be May 2, 1957), which was considered submitted that in view of the
fact that there was no date set for the same, asked for the discharge
of the two accused, namely: Floro Tandang and Joaquin Odog, alleging1
the fact that there is absolute necessity for the testimony of the
defendants whose discharge is requested; that there is no other direct
evidence available for the proper prosecution of the offense committed
except the testimony of said defendants; that the testimony of said
defendants can be substantially corroborated in its material points;
that said accused do not appear to be the most guilty; and that said
accused have not at any time been convicted of any offense involving
moral turpitude. The rest of the accused opposed this motion alleging
that there is no absolute necessity for the release of the said
defendants and that it is not true that there is no other direct
evidence of the prosecution except the testimonies of the said
defendants because in the written statements of two prosecution
witnesses in the record, namely; Leonardo Ybañez and Eduardo Baloran,
show that they were eyewitnesses to the killing and that said witnesses
stated that they heard one of the accused, Bernardo Borja, order his
co-accused to kill the deceased, and conspiracy can be inferred from
the acts of the accused prior, during and after the offense was
committed and that fact can be substantially corroborated by the fact
that could be inferred from the testimonies of the other witnesses. The
Fiscal and Private Prosecutor insisted that they have no direct proof
to establish the motive of the commission of the act and such proof is
essential in the consideration of this case before the Amnesty
Commission.“The Court after consideration of the matter
believes and concludes that the two essential elements for the
discharge of these accused, namely: that there is absolute necessity
and that there are no other direct evidence available to prove the
offense, do not exist and, besides, in this Court proofs to establish
motive is not necessary if the act committed is clear. Under these
circumstances, there exists no justification to grant the motion to
exclude the two accused and that point concerning the proof of motive
which is claimed is essential in favor of the accused can be brought
again when this case shall be submitted to said Amnesty Commission for
consideration“Wherefore, the motion to exclude the accused,
Ploro Tandang and Joaquin Odog, is hereby denied. Having now resolved
this point which the Amnesty Commission believed should be disposed of
by this Court before said Commission could take jurisdiction over the
case, the record of the case may now be transmitted and forwarded to
the Commission for its hearing on the merits and final determination of
the case.“SO ORDERED.”
The Provincial Fiscal filed a motion for reconsideration, which was denied by the court as follows:
“ORDER
“The motion for reconsideration is hereby denied, it
appearing that the Rules of Court does not state as one of the grounds
for excluding one accused to prove personal motive. That matter which
is claimed to be necessary when the case comes before the Amnesty
Commission for decision, and before that time comes, this Court cannot
take into account the exclusion of a co-accused to establish motive,
because this Court believes that said Amnesty Commission is clothed
with all the powers to dispose (of) the principal question, as well as
the subsidiary question of motive involved in the case.“Wherefore, the said motion is hereby denied.
“SO ORDERED.”
From the foregoing orders, the prosecution appealed to the Court of
Appeals, but said court, in its resolution of July 14, 1958, certified
the case to us, as it involves only questions of law.
The prosecution in this instance, claims that the lower court erred
in denying its motion to exclude from the information the accused Floro
Tandang and Joaquin Odog, to be utilized as witnesses for the
Government.
We do not agree with the prosecution. Section 9, Rule 115 of the Rules of Court provides:
“SEC. 9. Discharge of one of several defendants to be witness for the prosecution.—When two or more persons are charged with the commission of a certain offense, the competent court, at any time before they have entered upon their defense, may direct any of them to be discharged with the latter’s consent that he may be a witness for the government when in the judgment of the court:
“(a) There is absolute necessity for the testimony of the defendant whose discharge is requested:
“(b)
There is no other direct evidence available for the proper prosecution
of the offense committed, except the testimony of said defendant;“(c) The testimony of said defendant can be substantially corroborated in its material points;
“(d) Said defendant does not appear to be the most guilty;
“(e) Said defendant has not at any time been convicted of any offense involving moral turpitude.” (Italics supplied.)
Under the above-quoted provision of the Rules of Court, it is
well-settled that the discharge or exclusion of a co-accused from the
information, in order that he may be utilized as a prosecution witness,
is a matter of sound discretion with the trial court (U.S. vs. Abanzado, 37 Phil., 658; People vs. Ibañez,[1]
92 Phil., 933) to be exercised by it upon the conditions therein set
forth. The expedient should be availed of, only when there is absolute necessity
for the testimony of the accused whose discharge is requested, as when
he alone has knowledge of the crime, and not when his testimony would
simply corroborate or otherwise strengthen the evidence in the hands of
the prosecution. (2 Moran, Comments on the Rules of Court [1957 Ed.]
827.)
In the case of People vs. Ibañez, supra, it was held that—
“The court’s is the exclusive responsibility to see
that the conditions prescribed by the rule exist. The rule is
completely silent as to any authority of the prosecution in the
premises, although authority may be inherent in the office of the
prosecuting attorney to propose. Section 2 of Act No. 2709 from which
the preceding rule was taken, was enacted avowedly to curtail
miscarriage of justice, before too common, through the abuse of the
power to ask for the discharge of one or more defendants. ‘Absolute
necessity of the testimony of the defendant whose discharge is
requested,’ among other things, must now be shown if the discharge is
to be allowed, and, as above stated, it is the court upon which the
power to determine the necessity is lodged.”
The trial court, in the instant case, properly denied the
prosecution’s motion to exclude from the information the accused
Tandang and Odog, after being convinced that there was no absolute
necessity for their testimony, it appearing that the killing of the
deceased Manuel Ibañez could be established by other available direct
evidence, namely, the testimony of prosecution witnesses Leonardo
Ybañez and Eduardo Baloran, who were eyewitnesses to the said killing,
as shown by their written statements on record.
As to the prosecution’s claim that the exclusion of the accused
Tandang and Odog from the information is necessary to prove the
personal motive or reason of their co-accused in the killing of said
deceased, it may be stated that proof of motive is not absolutely
indispensable or necessary to establish the commission of a crime. (3
Moran, Comments on the Rules of Court [1952 Ed.] 630-631; U.S. vs. Ricafort, 1 Phil., 173; U.S. vs. Balmori, et al., 18 Phil., 578; U.S. vs.
Valdez, et al., 30 Phil., 293.) It is true that motive is essential in
cases falling under the Amnesty Proclamation, but as stated by the
trial court, the exclusion of said accused for the purpose of
establishing personal motive of their co-accused is a matter which may
be properly taken up when the case is submitted to the Amnesty
Commission for consideration, pursuant to the provisions of
Proclamation No. 8,[2] dated September 7, 1946 (Guerrilla Amnesty Proclamation) and Administrative Order No. 11,[3]
of October 2, 1946 which authorize the Guerrilla Amnesty Commission to
“examine the facts and circumstances surrounding each case and, if
necessary or requested by either or both of the interested parties,
conduct summary hearings of witnesses both for the complainants and the
accused.”
Wherefore, finding no reversible error in the order appealed from,
the same is hereby affirmed, without pronouncement as to costs. So
ordered.
Paras, C. J., Bengzon, Padilla, Bautista Angelo, Labrador, Concepcion, Reyes, J. B. L., Endencia, and Gutierrez David, JJ., concur.
[1] See also U. S. vs. De Guzman, 30 Phil., 416; U. S. vs. Bonete, 40 Phil., 958; People vs. Bautista, 49 Phil., 389; and People vs. Palcoto, et al., G. R. No. L-8458, prom, January 30, 1956.
[2] 42 Off. Gaz., 2072.
[3] 42 Off. Gaz., 2360; see also
Adm. Order No. 17 dated Nov. 15, 1946, (42 Off. Gaz., 2725), and Adm.
Order No. 41, dated July 6, 1954 (50 Off. Gaz., 2928).