MARIANO CU UNJIENG, PETITIONER, VS. LEONARD S. GODDARD, JUDGE OF FIRST INSTANCE OF MANILA, AND THE HONGKONG & SHANGHAI BANKING CORPORATION, RESPONDENTS.

This
is an original petition for writ of certiorari, mandamus and
prohibition. The petition sets out three “causes of action” and we will
dispose of them seriatim.

The petitioner is on
trial in the Court of First Instance of Manila in criminal case No.
40649, entitled “The People of the Philippine Islands vs. Mariano Cu Unjieng et al.”, in which the accused are charged with the crime of estafa
thru falsification of commercial documents. The respondent, the
Honorable Leonard S. Goddard, is the judge presiding at said trial.

On Wednesday, August 9, 1933, while the petitioner, as a witness in his
own behalf in the said case, was on the stand under cross-examination,
the court asked the following questions and received the following
answers:

“COURT. Q. Who were some of the
brokers in Manila that charged such commissions?—A. Mr. Isaac Barza; he
was the former president of the Philippine Chamber of Commerce.
“Q. Who else? — A. Mr. Molina.

“Q. Do you know his first name? — A. Juan.

“Q. Who else? — A. Mr. Eduardo Alcantara.

“Q. Any more? — A. Yes, your Honor.
“Q. Do you mean to say that these three that you have named charged as
much as 5 per cent for securing loans for 30 days? —A. I did not mean
for 30 days, Your Honor; I mean for securing loans.
“Q. No matter what the length of time that the loan was to run? — A.
That may depend upon the agreement between the broker and the debtor.”

The petition alleges that immediately after the question first above
quoted, counsel for the defendant “by way of protest” asked the
respondent judge if he did not think it was hard on the accused to
require him to disclose the names of the brokers thereby making
personal enemies of them, to which the respondent judge replied in
substance that it would probably make them his enemies too; that if
they had no better way of making a living, then that they all ought to
be in Bilibid; that immediately after the last answer quoted above, the
respondent judge, in open court, without suspending the proceedings or
declaring a recess, dictated to the court stenographer a letter
addressed to the city fiscal, as follows:

“The City Fiscal
“Manila

“Sir: From the evidence given by Mariano Cu Unjieng in criminal case No. 42649, entitled ‘The People of the P. I. vs.
Mariano Cu Unjieng, et al.’, it appears that the following brokers and
others in the City of Manila are charging as much as 5 per cent for
securing loans regardless of the time such loans are to run:

	Mr. Isaac Barza;
	Mr. Juan Molina;
	Mr. Eduardo Alcantara.

“In view of this evidence, the court believes that an investigation
should be made and you are requested to make such an investigation
which the court believes would be to the interest of the public in
Manila.

	“Very respectfully,
		“LEONARD S. GODDARD
		“Judge, Branch IV”

Upon learning that the above quoted letter to the city fiscal was not
included in the certified transcript of the proceedings in said case,
the petitioner, on August 12, 1933, filed a verified motion praying
that the court order the stenographer to correct the official
transcript by including the said letter therein in its proper place as
an incident of the trial. The letter is transcribed in said motion
verbatim and the correctness of the transcription is not questioned.

In ruling on said motion, the court below under date of August 17, 1933, stated the following:

“The
letter to the fiscal, quoted in paragraph (1) of the motion, was
dictated to the stenographer when it appeared from the testimony that
there had been a probable violation of law. Such being the case the
court had a right to call the city fiscal’s attention to the testimony
and request an investigation. The letter certainly cannot be construed
as a statement made by the Judge with reference to the case now being
tried by him, or to any of the parties thereto, witnesses or attorneys,
during the hearing of this case. Nor is there any provision of law or
rule of evidence that obligates this court to grant the request that
said letter be made of record in the stenographic notes. It was not in
reality a part of the proceedings in this case, as alleged in the
motion under consideration. Its inclusion in said notes could not in
any way affect the decision in this case.”

The petitioner contends that in refusing to permit said letter to be
incorporated in the official transcript of the proceedings in said
case, the respondent judge violated the mandatory provision of section
1 of Act No. 4011 of the Philippine Legislature, which reads as follows:

“SECTION
1. Any statement made by a judge of First Instance or Public Service
Commissioner with reference to a case tried by him, or to any of the
parties thereto, witnesses or attorneys, during the hearing of such
case, shall be made of record in the stenographic notes if requested by
either of the parties.” The answer of the respondent denies that said
letter constitutes a statement made by the judge with reference to the
case being tried by him or that it was made during the hearing of such
case. But if it should be held that said letter and the incidents
connected therewith are embraced in section 1 aforesaid, the respondent
contends that said Act is unconstitutional and void in so far as it
attempts to cut down the “inherent power of the courts of record in
these Islands to control their own records.”

It requires no citation of authorities to reinforce a statement of the
elementary rule that certiorari does not lie if the petitioner has or
may have an adequate review by way of appeal of any ruling of the court
to which he has made a proper objection and taken the proper exception.
Apparently, every material fact which the petitioner contends should
appear in the official transcript in connection with said letter is set
out in the said motion and not denied by the respondent. (Compare the
order dated August 17, 1933, Exhibit E.) The said motion and the order
thereon are actually a part of the record of the case. There is
nothing, therefore, to prevent petitioner, in the event of his
conviction, from presenting upon an appeal the identical question which
he now presents in his first cause of action on this certiorari. It
follows, therefore, that the prayer for writ of mandamus in the first
cause of action is not in order and must be denied.

The petitioner’s second cause of action relates to two separate incidents which we will designate for convenience, A and B.

A

During the hearing of said criminal case on August 9, 1933, while the
accused Mariano Cu Unjieng, the petitioner herein, was testifying on
cross-examination by counsel for the private prosecution, the witness
testified as follows:

“Q. In what amount?
—A. That is what I said, that it was guaranteed to give at least 2 per
cent per month. Now, before going any further, following exactly your
procedure, I will show that Warner, Barnes had been charging Rafael
Fernandez not only 10 per cent as the document shows, but working on
the same basis as Mr. DeWitt wants to put before the court, it will
show that they were charging him 40 per cent per annum.”

Thereupon, the following proceedings took place:

“Mr. DeWitt. We ask to have that stricken out as entirely non-responsive.
“COURT. Strike it out.

“Mr. Gibbs. I except.

“Mr. DeWitt. And I will have that expunged from the record. May we have that expunged from the record?
“Mr. Gibbs. I object, Your Honor, and I protest against the expunging
of the answer of the witness from the record; it is a part of the
witness’ testimony, and I do not like to have the record mutilated that
way.

“COURT. Expunge it from the record.

“Mr. Gibbs. Exception.”

It appears from the order of the court dated August 17, 1933, above
referred to, that the portion of the answer of the witness which was
ordered expunged is the following:

“Now,
before going any further, following exactly your procedure, I will show
that Warner, Barnes had been charging Rafael Fernandez not only 10 per
cent as the document shows; but working on the same basis as Mr. DeWitt
wants to put before the court, it will show that they were charging him
40 per cent per annum.”

The court also
ordered an amendment of the record to be made by interlining the
following sentence just before the expunged passage: “The latter part
of this answer was expunged upon motion of the prosecution over the
objection of the defense.”

The petitioner contends that in
obliterating from the record the answer of the witness precisely as it
was actually given in response to the question, the respondent judge
violated the mandatory provisions of section 32 of the Code of Criminal
Procedure (General Orders, No. 58) which reads as follows:

“Sec.
32. In courts of first instance or of similar jurisdiction each witness
must be duly sworn and his testimony reduced to writing as a deposition
by the court or under its direction. The deposition must state the
name, residence, and occupation of the witness. It must contain all
questions put to the witness and his answers thereto. If a question put
is objected to and the objection be either overruled or sustained, the
fact of objection and its nature together with the ground on which it
shall have been sustained or overruled must be stated, or if a witness
declines to answer a question put, the fact and the proceedings taken
thereon shall be entered in the record. The deposition must be read to
the witness and made to conform to what he declares to be the truth. He
must sign the same, or, if he refuses, his reason for such refusal must
be stated. It must also be signed by the magistrate and certified by
the clerk. In cases where an official stenographer is engaged, the
testimony and proceedings may be taken by him in shorthand, and it will
not then be necessary to read the testimony to the witness nor for the
latter to sign the same; but a transcript of the record made by the
official stenographer and certified as correct by him shall be prima
facie a correct statement of such testimony and proceedings.”

The
petitioner emphasizes the sentence in said section which provides that
the deposition of a witness “must contain all questions put to the
witness and his answers thereto.”

On the face of it, the
answer which was ordered expunged is not responsive to the question. It
appears to be a statement of fact volunteered by the witness which may
have been associated in his mind with some other aspect of the case but
was certainly not within the reasonable intendment of the question
propounded to him. The question thus presented is whether section 32 of
the Code of Criminal Procedure requires the court to include in the
deposition of the witness statements volunteered by him which are not
“answers” to “questions put to the witness”. We are inclined to the
view that although the provision referred to in section 32 is
mandatory, nevertheless, it is mandatory only as regards answers that
are responsive to the question put to the witness. If that were not
true, a designing witness could clutter up a record with unfair or
scandalous or unduly lengthy statements. Obviously, an unfair statement
which is not responsive to the question could be slipped into the
record and counsel for the opposing side be deprived of all opportunity
of objecting thereto. We do not mean to hold that answers alleged to be
irrelevant may be obliterated from the record. The question of
relevancy of an answer may be the subject of review in this court; but
statements which are volunteered and are alien to the question put to
the witness may, for the sake of orderly procedure and within the exact
terms of section 32, be omitted from the record.

We
recognize the importance of a true, full and accurate record of all the
incidents in a criminal trial, especially in this jurisdiction where we
do not have the safeguard of trial by jury. (Cf. United States vs. Salanatin, 7 Phil., 199; United States vs.
Custan, 28 Phil., 19, 23.) An order of expunction, like the one here in
question, may, like any other order of the trial court, be reviewed on
appeal if proper objection and exception have been made. Hence,
wherever practicable, it seems expedient and just that the trial courts
should not render it impossible for the appellant to present the issue
on appeal.

It may be stated, in passing, that the case of Corporacion de Padres Agustinos Recoletos vs.
Crisostomo (32 Phil., 427), relied on by respondent, in which it is
stated: “allegations of mere evidenciary or immaterial facts may be
expunged from the pleadings or may be stricken out on motion”, does not
involve section 32 of the Code of Criminal Procedure. The statement
quoted refers to the pleadings filed in the cause, and in such cases
the expunction is not physical but theoretical only; in other words,
the stricken matter is still preserved in the record.

Our
conclusion, therefore, upon count A of the petitioner’s second cause of
action is that the matter ordered expunged is not in any true sense an
“answer” to the “question put to the witness” and, therefore, does not
fall within the mandatory requirements of section 32 of our Code of
Criminal Procedure.

B

Under the same circumstances as A, on the same day and in the same case, the following proceedings took place:

“Mr. DeWitt. Q. Were these two checks, about which you have just
testified, Exhibits 745 and YY-4860 for P3,000 and P3,012,
respectively, included in this Exhibit 751? —A. Yes, sir, on page 1.

“Q.
There was another transaction at about that same time, that is, March
19 1931, represented by the check Exhibit 873 which Fernandez borrowed
from you for P500 also, and which was delivered to Maria A. de Buyson,
and also another check in like amount which he borrowed from you on May
2, 1931, Exhibit 1512, for P500. Why did you draw these checks which
Fernandez used to pay Maria A. de Buyson? — A. Exhibit 873 was paid to
Rafael Fernandez; only Exhibit 1512 was made payable to Maria A. de
Buyson.

“Q. Your testimony shows that the check of March
19, 1931, was payable to Maria Buyson, according to my notes. — A. That
is probably wrong, the exhibit was a mistake.

“Mr. DeWitt.
I misunderstood the testimony. I would like to have that question
expunged from the record based upon my misapprehension of the testimony.

“Mr. GIBBS. It is already answered, if Your Honor please.

“Mr. DeWitt. I assumed that the two checks were payable to Maria A.
Buyson, but I find that only the last one was payable to her, but the
two checks were paid back by Fernandez by one check. I asked the
question through a misapprehension of the facts and I ask that it be
expunged from the record.

“Mr. GIBBS. I object, if Your Honor please . . .

“Court. Expunge it. “Mr. Gibbs. I except, and I protest against these mutilations of the record.

* * * * * * *

“Mr. Gibbs. I ask that the stenographer furnish me a certified copy of all of these parts which have been ordered expunged.”

The answers of the witness as set out above are responsive to the
questions put to him. Whether they are relevant or irrelevant, true or
false, correct or incorrect, they must be transcribed in the record in
conformity with the mandate of section 32 of General Orders, No. 58.
That section makes no provision, nor can any be read into it by
implication, to the effect that questions having actually been put and
answers made thereto may be obliterated from the record because of an
assertion of counsel that he misapprehended the testimony, in the face
of the protest and objection of counsel for the accused.

The
respondent judge, in his order of August 17, 1933, stated in substance
that “no good purpose would be served by leaving them in the record” *
* * “the question and answer are certainly irrelevant and in no way
material; they cannot be of any benefit to the accused.” It is to be
observed that no objection was made to the relevancy of the question
nor is there any expression in section 32 of General Orders, No. 58
which makes benefit or lack of benefit to the accused, the criterion
for determining what questions and answers the trial judge may
obliterate from the record. Counsel for the accused insisted that the
record stand as it was made and he excepted and protested against the
mutilation of the record. Section 32, supra, sustains him; and the
respondent judge must be required and directed to require the court
stenographer to correct his official transcript of the proceedings in
the said criminal case No. 42649 by including therein at the proper
place the questions and answers ordered expunged by the respondent
judge as set out hereinabove in paragraph B.

The
petitioner’s third “cause of action” complains of general orders of the
court to the court stenographers not to take down the arguments of
counsel; that said orders have resulted in delegating judicial powers
to the stenographers; that the stenographers have denied the request of
counsel for the defense to take down statements made for the record as
grounds of objections or of motions and the rulings of the court and
the exceptions of counsel thereto; and that unless prohibited from so
doing, the respondent will continue to instruct stenographers not to
take down statements of counsel for the defense as aforesaid.

The petitioner cites no specific instances to support the foregoing
general allegations. The answer of the respondent admits that the
respondent judge has given general orders to the court stenographer not
to take down arguments of counsel, but alleges that such action has
been acquiesced in by the petitioner and his counsel during the trial.

It further appears from the answer that the trial of said cause has
proceeded almost continuously since October 19, 1931; that the
transcript of the evidence contains nearly 21,000 pages and there are
between 40,000 and 45,000 exhibits in the record at the present time.
We were informed at the oral argument in this court that the trial is
approaching its end. It is apparent, therefore, that the petitioner is
tardy in seeking the relief prayed for in his third cause of action,
even assuming that it stated a cause of action of which we could take
cognizance. Therefore, as regards the third cause of action, the
petition for the writ of prohibition is denied.

Let the writ
of mandamus issue as hereinabove set out under the petitioner’s second
cause of action, paragraph B; in all other respects, the petition is
denied without special allocation of costs.

Street, Malcolm, Villa-Real, Abad Santos, and Imperial, JJ., concur.

---

 

DISSENTING IN PART

HULL, J.:

I
regard the letter, the basis of the first cause of action, as without
the provisions of section 1 of Act No. 4011. I concur with the holding
that the trial court has the right to expunge from the record an answer
volunteered by a witness, especially so when the remarks made are
derogatory to a person not a party to the trial.

I cannot agree with the majority of the court that relief should be granted relative to 2B. (Beech vs.
Crossfield, 12 Phil., 555-558.) The matter is too trivial to be given
serious consideration by an appellate court. Defendants were not harmed
by the exclusion and cannot possibly be benefited by this court’s
action in ordering its restoration to the record.

As to the
fourth cause of action, a court has the inherent right to expunge from
the record arguments of counsel, and the denial of relief on the fourth
ground should be predicated upon that power of the trial court, not on
the delay of petitioner.