THE PEOPLE OF THE PHILIPPINES, PLAINTIFF AND APPELLANT, VS. ESMINIA PUDOL AND ALBERTO REYES, DEFENDANTS.

An information had been filed in the Court of First Instance of Ilocos
Sur charging Esminia Pudol and Alberto Reyes with having committed the
crime of perjury, the former by subscribing a false affidavit by
induction and with the further cooperation of the latter.

When the case was called for trial, the provincial fiscal filed a
motion asking for the discharge of Esminia Pudol in order to be
utilized as a witness for the prosecution against her coaccused. Lipon
arraignment, Alberto Reyes pleaded not guilty, although his plea was
withdrawn shortly thereafter. The court, acting on the fiscal’s motion,
dismissed the case as to Esminia Pudol for the purpose intended by said
fiscal. The accused Alberto Reyes, in turn, asked for the dismissal of
the case as to him, alleging: (1) That once the case is dismissed as to
Pudol, the alleged principal by direct participation, there is no
longer any ground for prosecuting the case against the suborner Reyes,
and (2) that the Revised Penal Code does not penalize subornation of
perjury, as it was formerly penalized by section 4 of Act No. 1697,
which has expressly been repealed by article 367 of said Revised Penal
Code. The court, favorably sustaining the first ground of the motion
and deeming it unnecessary to pass upon the second ground, also
dismissed the case as to the accused Alberto Reyes, in an order of
December 16, 1936, from which the fiscal appealed.

The first
question to be decided in this appeal is that raised indirectly by the
accused in his memorandum citing authorities, to the effect that the
order appealed from is an order of dismissal of the case upon its
merits, from which the fiscal cannot appeal. Such contention is
untenable: (1) Because as the accused withdrew his plea of not guilty,
he has not yet pleaded to the information, and in such condition of the
case it is legally impossible to decide it upon its merits, and (2)
because the order of dismissal of the court is not an acquittal of the
accused. Therefore, it is appealable (sec. 44, General Orders, No. 58;
U. S. vs. Ballentine, 4 Phil., 672).

The second
question is that discussed by the Solicitor-General in the two errors
attributed to the court. The order of dismissal is based on the
following considerations:

“In the
above-quoted motion of the fiscal, it is stated ‘that there is absolute
necessity of the testimony of said accused’ Esminia Pudol, because
‘there is no other direct evidence to support the information.’ This
allegation assumes that it cannot be proven and there is no means of
showing that Esminia Pudol has committed perjury or has given false
testimony. If the principal act, which must be the result of the
subornation, cannot be proven, it seems clear that even if it should be
shown that there has been subornation, after all the latter does not
constitute a crime.”

In the first place, it
cannot be inferred from the motion of the fiscal that “there is no
means of showing that Esminia Pudol has committed perjury or has given
false testimony.” The only thing stated in the motion is “that there is
no other direct evidence to support the information except the
testimony of said accused.” And continuing, it adds: “that the
testimony of said accused can be substantially corroborated in its
material points.” Consequently, there is no basis for the conclusion
laid down by the court that: “If the principal act, which must be the
result of the subornation, cannot be proven, it deems clear—according
to it—that even if it should be shown that there has been subornation,
after all the latter does not constitute a crime.”

The court
further states: “if the guilt of the latter (Pudol) cannot be proven
and the dismissal of this case, as to her, restores and places her
under the protection of a strong presumption of innocence, it would
seem soundly logical that her said innocence cannot be made the basis
of a judgment of guilt for Reyes.”

The court was not right
in affirming that the order of dismissal restores to the accused
(Pudol) the presumption of innocence. The fiscal did not ask for the
dismissal of the case on the ground of Pudol’s innocence, but because
she did not appear to be the most guilty. The fiscal has asked for her
discharge in order to be utilized as a witness for the prosecution
against the accused. If she really testifies in support of the
allegations of the information, Act No. 2709 affords her certain
immunity, but this is not tantamount to restoring the presumption of
her innocence, and her discharge does not affect the status of the
accused Reyes (U. S. vs. Abanzado, 37 Phil., 658).

As to the second point of the motion of the accused, that is, that the
Revised Penal Code does not penalize subornation of perjury, as it was
formerly penalized by section 4 of Act No. 1697, which has expressly
been repealed by article 367 of the Revised Penal Code, suffice it to
state that, according to article 17 of said Code, the following are
considered principals:

“1. * * * * * *

“2. Those who directly force or induce others to commit it. (Underscoring ours.)

“3. Those who cooperate in the commission of the offense by another act without which it would not have been accomplished.”

The information charges Alberto Reyes not only with having directly
induced Esminia Pudol to testify falsely under oath and to subscribe
the affidavit before a person authorized by law to administer oath, but
also with having cooperated and taken a direct part in the execution of
said false affidavit, without which induction, cooperation and
participation the false affidavit in question would not have been
accomplished.

Therefore, the fact that subornation of
perjury is not expressly penalized in the Revised Penal Code does not
mean that the direct induction of a person by another to commit perjury
has ceased to be a crime, because said crime is fully within the scope
of that defined in article 17, subsection 2, of the Revised Penal Code.
Furthermore, Alberto Reyes, as already stated, is charged in the
present case not only as suborner of the perjury committed by his
coaccused but also as principal by cooperation and participation in the
preparation of the false affidavit subscribed by Esminia Pudol.

The order appealed from is reversed and this case is ordered remanded
to the Court of First Instance of Ilocos Sur, so that it may proceed
with the hearing thereof and decide the same in accordance with law,
with the costs to the appellee. So ordered.

Avanceña, C. J., Villa-Real, Abad Santos, Imperial, Diaz, and Laurel, JJ., concur.