THE PEOPLE OF THE PHILIPPINES AND THE HONGKONG & SHANGHAI BANKING CORPORATION, PETITIONERS, VS. JOSE O. VERA, JUDGE AD INTERIM OF FIRST INSTANCE OF MANILA, AND MARIANO CU UNJIEN…

After rendition of the judgment of this court in the above-entitled case,^[1]
the respondent Mariano Cu Unjierig, on November 26, 1937, gave notice
of his intention to petition the Supreme Court of the United States for
a writ of certiorari for the review of said judgment and, desiring to
stay execution during the pendency of the application for the writ and
of the proceedings relative thereto in the Supreme Court of the United
States, now prays that the corresponding supersedeas bond be fixed, as
provided by the rules of this court. The People of the Philippines and
the Hongkong and Shanghai Banking Corporation, petitioners in the
above-entitled case, oppose the application of the respondent for the
granting of a supersedeas bond.

The original action instituted in this court which resulted in
the declaration of unconstitutionality of the Probation Act (No. 4221)
was for certiorari and prohibition. Respondent Mariano Cu Unjieng, thru
counsel, states that as certiorari and prohibition are civil remedies,
it is mandatory upon this court to stay enforcement of its judgment in
the above-entitled case. (Sec. 46 [a] infra, Rules of
the Supreme Court of the Philippines.) He also calls attention to the
principle that probation can not be granted after the defendant has
begun the service of his sentence and to the policy of this court to
encourage review of its decisions and judgments on certiorari by the
Federal Supreme Court. In opposition, the petitioners state that the
judgment of this court declaring the Probation Act unconstitutional and
void is self-executing; that there is no judgment in the instant
proceedings to be executed and that the supersedeas will serve no
useful purpose. The petitioner gave answer to the foregoing objections
raised by the respondents and reiterated the arguments advanced by him
in support of his petition for the fixing of the bond.

Section 46 (a) of the rules of this, court provides that:

“Whenever it is made to appear by notice in writing
that any party to a civil case in which final judgment has been
rendered by this court intends to petition the Supreme Court of the
United States for a writ of certiorari for the review of the decision
and judgment of this court, and it appears that the case is one which,
by reason of the amount involved or the nature of the questions of law
presented, may be removed to the Supreme Court of the United States by
writ of certiorari, and it further appears that the party intending to
make application for such writ desires to stay the enforcement of the
judgment of this court during the pendency of the application for the
writ of certiorari and of the proceedings in the Supreme Court of the
United States, if such is granted, this court shall grant a stay, for a
term not to exceed ten days, within which the moving party may give a
supersedeas bond, and shall designate one of its members to determine
the sufficiency of such bond.”

The foregoing rule requires that in any civil case in which final
judgment has been rendered by this court, if any party thereto gives
notice in writing of his intention to remove the case to the Supreme
Court of the United States by writ of certiorari, this court shall
grant a stay for the period therein mentioned within which said party
may give a supersedeas bond, the sufficiency of which is to be
determined by one of the members of this court. It is admitted that
certiorari and prohibition are civil remedies but the certiorari and
prohibition proceedings originally instituted insthis court were, like
the proceedings for probation, an incident of the criminal case. Apart
from this, it will be noted that the appeal taken is from the judgment
of this court declaring the Probation Act unconstitutional and void.
That judgment does not command or permit any act to be done. There is
nothing there to be actively enforced by execution or otherwise.
Because of its negative or prohibitive character, there is nothing to
supersede; nothing, as petitioners assert, upon which the stay bond can
operate. In reality, the supersedeas is intended to operate on the
decision and judgment in the criminal case entitled “The People of the
Philippine Islands vs. Mariano Cu Unjieng et al.” The
decision of the Court of First Instance of Manila in that case,
rendered on January 8, 1934 (Criminal Case No. 42649), was affirmed by
this court on March 26, 1935 (G. R. No. 41200) ^[1]
The decision of this court in that criminal case has already become
final and the petition for a writ of certiorari to review said decision
was denied by the Supreme Court of the United States in November of
last year. At bottom, supersedeas is being sought to stay the execution
of the final judgment in said criminal case. Thereby, the petitioner
will continue to be at large and this is the status quo desired to be maintained. We do not think that this should be allowed. (Sec. 46 [f],
Rules of the Supreme Court of the Philippines.) The suspensive effect
of supersedeas can only operate in this case on the judgment sought to
be reviewed and cannot arrest the execution of the final judgment
rendered in the criminal case against the respondent Mariano Cu
Unjieng. (Cyc. of Fed. Proc, Civil and Criminal, Longsdorf, vol. 6,
sec. 2869, p. 362.)

The public interest and the interest of the speedy administration
of justice demand prompt execution of the final sentence of conviction
rendered against the petitioner. Said petitioner has had all the time
and opportunity which the law can possibly afford to anyone in
self-defense. He had the assistance of able counsel and had opportunity
to appeal to this court and the Supreme Court of the United States, and
the least that can be said is that he must abide by this judgment and
serve his term. It is further to be observed that the petition for
probation of the respondent Mariano Cu Unjieng has already been denied
by the trial court.

There is force in the argument that where the case is appealable
under the Constitution and law to the Supreme Court of the United
States, this court is but an agent of that court and must permit the
case to take its due course. In such a case, the appeal is a matter of
right. But from this premise it does not follow that a stay must be
granted by this court where nothing can be stayed, or that the final
decision in a criminal case which can no longer be appealed from should
be superseded. Upon the other hand, the wide latitude necessarily
possessed by this court in the interpretation of its Rules must be
exercised in favor of what is believed to be a matter of public
interest in the present case.

As a rule of federal practice in the United States, section 8 cd.
of the Act of Congress of February 13, 1925 (43 Stat., 936, 940; 28 U.
S. C. A., sec. 350), provides that in any case the execution and
enforcement of final judgment or decree which is subject to review by
the Supreme Court of the United States on writ of certiorari is
discretionary with “a judge of the court rendering the judgment or
decree or by a Justice of the Supreme Court,” and this rule is
reiterated in paragraph 6 of Rule 38 of the Supreme Court of the United
States. (Robertson & Kirkham, sec. 413, p. 831 et seq.) In Magnum Import Co. vs.
De Spoturno Coty (262 U. S., 159, 163; 43 S. Ct., 531; 67 Law. ed.,
922), the Supreme Court of the United States, through Chief Justice
Taft, said:

“The petition should, in the first instance, be
made to the circuit court of appeals, which, with its complete
knowledge of the cases, may, with full consideration, promptly pass on
it. That court is in a position to judge, first, whether the case is
one likely, under our practice, to be taken up by us on certiorari;
and, second, whether the balance of convenience requires a suspension
of its decree and a withholding of its mandate. It involves no
disrespect to this court for the circuit court of appeals to refuse to
withhold its mandate or to suspend the operation of its judgment or
decree pending application for certiorari to us. If it thinks a
question involved should be ruled upon by this court, it may certify
it. If it does not certify, it may still consider that the case is one
in which a certiorari may properly issue, and may, in its discretion,
facilitate the application by withholding the mandate or suspending its
decree. This is a matter, however, wholly within its discretion. If it
refuses, this court requires an extraordinary showing before it will
grant a stay of the decree below pending the application for a
certiorari, and even after it has granted a certiorari, it requires a
clear case and a decided balance of convenience before it will grant
such stay. These remarks, of course, apply also to applications for
certiorari to review judgments and decrees of the highest courts of
states.”

Petition for stay of execution and the fixing of a supersedeas bond is denied. So ordered.

Avancena,, C. J,t Villa-Real, Abad Santos, Imperial, Diaz, and Concepcion, JJ., concur.

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^[1] Promulgated November 16, 1937.

^[1] 35 Off. Gaz., 738. See also resolutions of December 17, 1935.