G. R. No. 18237. January 31, 1964
IRINEO V. BERNARDO, PETITIONER, VS. VICENTE DEL ROSARIO, JUDGE, COURT OF FIRST INSTANCE, GUMACA, QUEZON, AND ANGEL VERAN, RESPONDENTS.
PAREDES, J.:
charged Gregorio Orfanel and eleven others including Angel Veran alias Bayabas,
alias Heling, in an amended information for kidnapping for ransom, in
the CFI of Quezon, (Gumaca Branch), docketed as Grim. Case No. 901-G
presided by Judge Vicente del Rosario. The accused after arraignment,
pleaded not guilty. On September 19, 1960, the prosecution commenced
presenting its evidence and up to the filing of the present petition,
had not yet completed or closed the evidence for the State. On February
23, 1961, Fiscal Bernardo filed with the same Court, a petition to
discharge accused Angel Veran from the information, under the
provisions of section 9 of Rule115. On March 2, 1961, respondent Court
granted the discharge (Annex C, Petition).
In the hearing of March 2, 1961, Veran was presented as witness, but
he did not declare on the matters he had promised to testify upon and
showed signs of hostility, thus causing the Fiscal to ask the Court for
a suspension of the proceeding. Confronted as to his promise to
testify, Veran told the petitioning Fiscal that he had decided not to
testify for the State and that he could not anymore comply with his
previous commitment. On March 4, 1961, the Fiscal filed with the
respondent Court a “motion to reinclude Veran in the information”
(Annex I, petition), on the grounds stated therein. It appears that
previous to this incident, Marcos Ramos alias Marking, one of the
accused, was also discharged from the information, but reincluded, for
the same reasons stated herein with respect to accused Veran, On March
9, 1961, the respondent Court decided the motion for reinclusion of
Veran, in an Order (Annex 5 of the Petition), which is hereunder
reproduced :
“The Court having seen that Angel Veran after his
discharge consented to become a witness for the prosecution, as proof
of which many questions had already been propounded to him by the
special prosecutor which lie answered and this Court not knowing what
the promise of this accused was to the prosecution, the Court is of the
belief that this accused has complied at least partially with his
promise to testify for the State and his discharge from the information
to become State witness operated as an acquittal as provided in the
rules. The petition to reinclude him in the information is hereby
DENIED and if. the prosecution believes that he has violated the terms
of the agreement concerning his discharge from the information, a
separate information “Would be necessary, charging him with the offense
allegedly committed by him and the fact that he failed to live up to
his’ promise to the State.”
A motion for reconsideration dated March 15, 1961, was presented by
the petitioner herein (Annex K, petition), giving stress to the
substantial facts disclosed to him by Veran which he (petitioner),
had written down before going to trial. Petitioner also delved on the
hostility of Veran and the alibi made, by him in his testimony in
Court. In other words, as explained in the said motion for
reconsideration, Veran had told to the Fiscal that he had taken an
active part, together with his co-accused in the kidnapping of the
victim on the night it it was perpetrated; and made also similar
statements in his confessions (Exhibit C and Q-l), but during the
hearing, he made a volte face, by stating that he was sick
then and was not present during the kidnapping. On March 17, 1961,
respondent Judge, denied the motion for reconsideration in an order,
the pertinent portions of which state—
“Angel Veran having partially complied with his
promise to testify in the case for tile prosecution and the prosecution
having withdrawn him from the witness stand without asking him further
questions to show his hostility to the prosecution and biased attitude
contrary to his promise to testify for the government the discharge
from the information of Angel Veran operated as an. acquittal for him
and as stated in the order of this Court of March 9, 1961, the remedy
for the prosecution is to file anew the information against him wherein
the necessary evidence may be taken by the Court to show that this
accused refused or failed to comply with his promise to testify for the
State.”
A petition for certiorari with a writ of preliminary injunction was
filed in this Court. On March 22, 1961, a writ of preliminary
injunction was issued, prohibiting and enjoining the respondent Court
from proceeding with the trial of Criminal Case No. 901, until further
orders from this Court, and the respondent Court was required to
answer. The preliminary injunction was served upon the respondent Judge
on March 23, 1961. The records fail to show that respondent Judge ever
answered. The present case has, nevertheless, been set for hearing on
October 9, 1961, on the occasion of which petitioner asked and was
permitted to submit the case on memorandum. Realizing-, however, that
Angel Veran was a necessary party, he was ordered included as
respondent, which was done in an amended petition for certiorari with
preliminary injunction, filed on April 15, 1963. Having been duly
summoned, Veran filed on June 15, 1963, a motion to dismiss the
petition on the ground that: (1) the amended petition is not verified
as required by sec. 1, Rule 67, in relation to sec. 6, of Rule 15; and
(2) Veran was not a respondent in the original petition; and the
incorporation thereto of the annexes in the original petition simply by
reference, deprives him to be duly informed of the motives and causes
of the petition., The alternative petition, to the effect that in the
event of denial of the motion to dismiss, the respondent should be
furnished with certified true copy of the original petition, was,
however, granted and complied with.
Answering the amended petition, respondent Veran alleged that
special prosecutor Bernardo did not conduct any investigation of his
own of the case, but simply relied on the records gathered from the
P.C. and Provincial Fiscal of Quezon; that Veran did not turn hostile,
for all he declared was the truth previously made known to the said
special prosecutor, without mental reservation, after informing him
that certain portions of Exhibits D and E were not true; that he never
relaxed in his willingness to testify, only that as previously
intimated to the special prosecutor, he would only tell the truth and
nothing but the truth; that the acts of the respondent Judge, were not
the product of arbitrariness in the exercise of judicial prerogatives.
There are two questions posited in view of the facts elicited from the record, to wit:—
- In the event that a co-accused discharged from the
information under the provisions of section 9, 10, and 11 of Rule 115,
failed to live to his promise to the State, should his reinstatement or
reinclusion he made in the same information or should the prosecuting
attorney file a separate information charging the accused with the
offense allegedly committed by him and the fact that, he failed to live
up to his promise to the Government? The trial court took the latter
alternative. - Do the facts and circumstances appearing in
the record warrant the re-inclusion of accused Veran in the same
information? The respondent answers they are not
First: The pertinent provisions. of Rule 115 state:
“Section 11.—Discharge of defendants operates as acquittal.—The
order indicate:! in the two preceding sections shall amount to an
acquittal of the defendant discharged and shall be a bar to future
prosecution for the same offense, unless the defendant, in the case provided in section 9 fails or refused to testify against his co-defendant.” (Italics supplied.)
The pertinent provisions of the Rules on the matter, do not ordain
that in the case a discharged accused becomes recalcitrant, he should
be prosecuted anew in another information. On the other hand, We gather
from the very objectives of the Rules, that he should be prosecuted
again by re-inclusion, in the same information. The evidence of the
prosecution in the case under consideration, is joint as to all
accused, Veran inclusive, there being an allegation of conspiracy. The
whole incident of discharge arose from the same case and the same
information, and the filing of a separate information would necessitate
the commencement of another preliminary investigation of the principal
case; it would amount to splitting the case into as many separate cases
as there are recalcitrant accused; it would entail reproduction of
evidence in every case; and because the discharge operates as an
acquittal for him, there might be created a situation where the
question of double jeopardy could be raised and,which might frustrate
the very purposes of the rule providing for the discharge of an
accused, to be utilized as a witness against his1 co-accused. One can
readily see the dangerous effect of such a procedure, for both the
co-accused or the accused-recalcitrant witness might get scot free. We,
therefore, hold that the trial court erred in finding that the
prosecuting attorney a, should file a separate information against the
accused-discharged witness Veran.
Second:—It would seem that the trial court was not
satisfied with the proofs that accused. Veran did not comply with his
promise to the prosecuting attorney. His. Honor’s first reaction was
that he did not know what was the promise made by the discharged
witness to the fiscal and the discharged witness had complied “at least
partially with his promise to testify for the State”. In resolving the
motion for reconsideration, the trial court’s second reaction was that
the discharged witness “did not refuse to testify as agreed upon
between him and the prosecution”; “the remedy for the prosecution is
to file anew the information against him wherein the necessary evidence
may be taken by the Court to show that this accused refused or failed
to comply with his promise to testify for the State”.
In the course of the testimony of Veran in Court, after stating that he (Veran) was “inventing an alibi“,
and “turning hostile”, the special prosecutor was permitted by the
Court to profound questions on his confessions Exhibits C and Q-1, and
his sworn statement Exh. Q, executed before the special prosecutor,
wherein he admitted his participation in the commission of the offense
and promised to testify according to the facts stated therein. On the
witness stand, Veran affirmed his promise to testify on his
participation and that of his co-accused in the kidnapping of Mrs.
Rosita. P. de Leon and her two minor children. The special prosecutor,
after the suspension of the testimony of Veran, had a confrontation
(conference) with the latter who stated categorically that he would not
testify against his co-accused. The trial court had been informed of
these facts, in the formal motion to reinclude Veran in the
“information dated March 4, 1961 (Annex 1, Petition), at the hearing of
the said motion on March 9, 1961, and in motion for reconsideration of
the motion to re-include, dated March 15, 1961 (Annex K, petition),
Veran’s confessions Exhs. C and Q-1, and the trial brief of the special
prosecutor (Annex A, petition), state the facts on which Veran had
promised the prosecutor to testify in court. In a nut shell, Veran was
to testify on the following:
On November 18, 1955, at 3:00 o’clock p.m. 14 men, among whom ware
Marcos Ramos and Veran arrived at Barrio Tagbalcan, Catanauan, Quezon.
Commander Pepe sent Solomon Catan to letch Alejandro Libao and Irene
Comisa who were ordered by- Comdr. Pepe to tell Mayor Orfanel (one of
the accused), that they were waiting for him. On November 19, 1955,
Mayor Orfanel and 5 others, arrived at the barrio and the former told
Comdr. Pepe that he wanted the De Leon family to be kidnapped as soon
as possible, because they were his political rivals and were rich. They
agreed to kidnap them the following day, November 20, 1955, at 6:00
o’clock in the afternoon, and each would have a share in the ransom
money. Mayor Orfanel delivered to Comdr. Pepe a map of Catanauan, and
accused Marcos Ramos indicated the location of De Leon’s house. Comdr.
Pepe and thirteen (13) men divided into three groups, with different
assignments and places, in and around the house of Dr. De Leon’s house.
At 6:00 o’clock in the .evening of November 20, 1955, they entered the
town and kidnapped Mrs. Rosita de Leon and her two children and took
them to the mountains, travelling until 12:00 o’clock midnight. This
was the first time that Veran saw the victims, who were then taking a
rest. On November 21, 1955, the victims were given a hut to stay and
Veran was one of these assigned to guard the victims. Veran was present
when the ransom money was paid to Comdr. Pepe, on December 19, 1955, by
Dr. Arturo de Leon, one of his sons, Manosca and a person not known to
Veran. Manosca later asked Comdr. Pepe for his share and that of Mayor
Orfanel.
There is no question then as to the promise of Veran to testify
against his co-accused. If there was no such promise, the prosecutor
would not have discharged him from the information. It is true that
there was a partial compliance of the promise because Veran actually
began to testify, but which was limited only, to the identification of
his co-accused. He failed or refused to testify against them and state
their participation in the crime, which was the principal part of the
bargain (Sec. 11, Rule 115, supra).
The trial court, however, claims that Angel Veran having partially
complied with his promise “and the prosecutor having withdrawn him from
the witness stand without asking him further questions to show his
hostility to the prosecution and biased attitude contrary to his
promise”, his discharge operated as an acquittal. The evidence of
hostility of Veran is shown by the fact that he was already putting up
an alibi, by declaring that on November 183 1955, he suffered
an alleged injury on the foot and was taken to the Base Hospital (HMB)
near the boundary of Catanauan, within another municipality, making it
appear that it was impossible for him to have seen what transpired
thereafter and identify his other co-accused or relate their respective
participation. The special prosecutor had also to remind Veran, in the
course of his testimony, of his written premise to testify by showing
him his confessions (Exhs. C & Q-1). The special prosecutor, after
the confrontation with Veran, made in the presence of Fiscal
Villafranca, told the Court that Veran categorically manifested he was
not going to testify against his co-accused among whom, was Mayor
Orfanel. There is no reason at all to doubt the veracity of the
statement of the special prosecutor that Veran told him he did no
longer want to testify against his co-accused. If Veran was willing and
ready to testify or complete his testimony against the accused, he
could have told so to the trial court. In cases of reinclusion of a
discharged accused from the information, the calcitrant’s failure or
refusal to testify is generally furnished by the prosecutor, much in
the same manner, as the case of discharge of an accused from the
information.
When a defendant is discharged from the information, a contract is
entered into between him and the State. The discharge will be secured,
if the defendant will honestly and fairly make a full disclosure of the
crime. It is incumbent upon him to keep his part of the contract if he
hopes to receive the promised immunity; and if his testimony is corrupt
or his disclosure is only partial (as found by the trial court, in the
case at bar), he gains nothing, but forfeits his rights under the
contract (15 Am. Jur. sec. 32 p. 17; U.S. vs. Grant &
Kennedy, 18 Phil. 122; V. Francisco’s Rules of Court, par. 11, p. 330,
Rev. Ed.) Courts should not give a premium to a culprit who worked
himself into gaining his acquittal, upon a deception and a contumacious
disregard of an agreement validly entered into.
In view of the conclusions reached, the consideration of other
issues raised, is not deemed necessary. The writ is therefore granted.
The orders of respondent Judge dated March 9, 1961, and March 17, 1961,
denying the re-inclusion of accused Angel Veran in the information, are
SET ASIDE, and the case remanded to the respondent Court, for further
proceedings. No pronouncement as to costs.
Bengzon, C. J., Padilla, Bautista Angelo, Labrador, Concepcion, Reyes, J. B. L., Barrera, Dizon, Regala and Makalintal, JJ., concur.