GR 14756; (September, 1919)

EN BANC

G.R. No. 14756; September 19, 1919

THE UNITED STATES, plaintiff-appellee,

vs.
MARTIN LAGBAN Y CASTRO, ET AL., defendants-appellants.

Lucas Paredes for appellants.
Acting Attorney-General Feria for appellee.

TORRES, J.:

A motion for reconsideration was filed in this cause on the following grounds:

(1) That the accused Jose Torno and Juan Escribir and the latter’s wife, the accused Fernanda Nicdao, did not appeal from the judgment of the lower court and that Torno and Escribir did not present their bonds; (2) That not one of them has authorized Attorney Guevara nor any other person to appeal from said decision or to present bonds for them (3) That not only did they not appeal but that they expressly submitted themselves to comply with the judgment; and (4) That said judgment was executed in all its parts by the lower court (a fact showing that they did not appeal) upon their paying the total amount of the fine and costs which they were sentenced to pay.

Forty-nine individuals were accused in seven separate informations for a violation of different articles of the Revised Ordinances of the city of Manila punishing gambling. One and the same counsel appeared on behalf of all these accused. In criminal cause No. 15934 against ten defendants all of the latter were found guilty and sentenced to pay a fine of twenty-five pesos. The decision of the lower court is date December 22, 1917. The notice of appeal was filed by counsel on behalf of the accused on February 6, 1918. Not one of the accused then or afterwards filed any motion with the Court of First Instance to withdraw their appeal On November 27, 1918, the clerk of the Court of First Instance of Manila issued a certificate stating “That on September 27, 1917, the information remitted by the municipal court was filed in the Court of First Instance; that on October 1, 1918, Attorney Pedro Guevara appeared before the court and entered a plea of not guilty in the name of the accused in this case; that on December 13 and 14, 1917, the case was heard; that on February 6, 1918, the condemnatory judgment was published and the majority of the accused presented bonds for their provisional liberty during their appeal; and that on February 7, 1918, Attorneys Moreno & Guevara presented their appeal in writing.” Because of the appeal interposed by all of the accused against the judgment in criminal cause No. 15934, the clerk of the Court of First Instance remitted said cause to the Supreme Court On January 27, 1919, one of the accused, Simeon Maturina y Santos, filed a motion to withdraw his appeal. This motion was granted by the Supreme Court.

On February 20, 1919, Attorney Lucas Paredes was appointed attorney de officio for the remaining nine accused because Mr. Guevara retired from the case. Mr. Paredes then filed a brief on behalf of he accused. On May 12, 1919, the Acting Attorney-General filed a brief on behalf of the Government and against the aforementioned nine accused. Upon hearing the cause, the second division of the court after due consideration reversed the judgment of the Court of First Instance and sentenced each of the accused Martin Lagban y Castro, Fernando Nicdao y Mariano, Jose Torno y Santos, Vicente Santos y Cruz, German. Villanueva y Gatchalian, Augusto Valdez y Tantoco, Fermin Lopez y de la Cruz, Jacinto Lumbad y Salazar, and Juan Escribir y Angeles to be imprisoned for one month, to pay a fine of one hundred pesos or to suffer the corresponding subsidiary imprisonment in case of insolvency, and to pay one-tenth part of the costs of both instances, the other tenth part being declared de officio.¹

The instant cause against the ten individuals accused therein having been duly heard in the Court of First Instance and forwarded to the Supreme Court upon appeal signed by the attorney who defended said accused in the lower court, and the appeal having been duly hear in the second instance, this court, exercising its plenary appellate jurisdiction and authority, decided to eliminate one of the accused, Simeon Maturina, who was the only one who withdrew his appeal from the judgment of the lower court on time. In view of what has been said and prayed for by the prosecuting attorney and the attorney for the nine remaining accused who up to the end of the trial did not give notice of their intention to withdraw and dismiss their appeal, we hold that by their silence they meant to maintain said appeal whereupon the cause decided against them was forwarded to this court, upon which the law has conferred complete jurisdiction and authority to hear and decide said cause, as it did decide in accordance with law.

The three accused Jose Torno, Juan Escribir and Fernanda Nicdao have been convicted by the lower court together with the accused. They were included in the decision rendered by this court inasmuch as they appealed from the judgment of the trial judge and they did not withdraw said appeal which was entered in their name by their counsel, as was done in the second instance by Simeon Maturina himself without the aid of counsel. The aforementioned three accused might have done what the latter did and they might have even shown to the Supreme Court that they did not have any intention or desire to prosecute an appeal from the judgment of the judge of the Court of First Instance, notwithstanding the appeal filed in their name by their counsel. This they never did.

After a final judgment has been rendered in the second instance by the court which acquired plenary jurisdiction of a case by virtue of an appeal duly filed, it is not proper to vacate said judgment upon a cause unknown before and after the date it was promulgated although said cause be supported by an affidavit.

The exercise of the right to appeal from a judicial decision by the interest party who believes to be injured thereby produces on trial all the natural consequences established by the procedural law; and in order that the appeal may be considered of no effect in accordance with the express will be of the interest party, it is indispensable that it should be opposed by him and be withdrawn on time before the cause or proceeding has become conclusive by virtue of a final judgment.

Final judgments of the foregoing class cannot be annulled or vacated upon facts or causes not mentioned or provided for by law. The facts that the convicts Torno and Escribir had not presented bonds and had paid, according to their statement, the fine imposed upon them in the judgment of the trial judge, when such payment does not appear in the certificate issued by the clerk of the Court of First Instance and is claimed to have been effected only afterwards as evidenced by some receipts not certified to by the clerk of court, and when it does not appear that the accused aforesaid and Nicdao had withdrawn or opposed the appeal prosecuted on their behalf?such facts appearing after the promulgation of the decision of this court, cannot in any manner serve as the basis for annulling and vacating said decision, as far as the petitioners are concerned, to the detriment of the administration of justice.

From the foregoing considerations and from the fact that the judgment rendered in the cause aforesaid has no vice or defect inductive of nullity respecting the three accused herein, the motion for reconsideration is hereby overruled, with costs, and said judgment shall stand. So ordered.

Arellano, C.J., Street, Avanceña and Moir, JJ., Concur.

Separate Opinions

MALCOLM, J., dissenting:

The principal facts relating to the motion for reconsideration are set forth in the opinion of the majority. In addition it is well to recall that when the second division of the court found the defendants guilty of a violation of the provisions of the Revised Ordinances of the City of Manila pertaining to gambling and changed the sentence of the lower court from the payment of a small fine to a term of imprisonment, there was nothing in the record to indicate that any of these defendants, with the exception of one whose case was not considered by the court, had withdrawn their appeals. It was the affidavits submitted by counsel for the defendants and appellants in support of his motion for reconsideration which now for the first time bring to the attention of the court that Jose Torno y Santos paid the fine and the costs imposed upon him by the Court of First Instance of the City of Manila on April 30, 1918, that Juan Escribir y Angeles and Fernanda Nicdao y Mariano paid the fines and costs imposed upon them respectively, on May 2, 1918, that Jose Torno and Jose Escribir did not present bonds for their provisional liberty during their appeal to the Supreme Court, but that Fernanda Nicdao did present a bond. Combining, therefore, the facts of record with those newly brought to our attention, it will be noted that while the decision of the trial court is dated December 22, 1917, and the appeal made by counsel on behalf of the accused is dated February 6, 1918, the payment of the fines is subsequent thereto, on April 29, 1918, and May 2, 1918, but is prior to the elevation of the record to the Supreme Court on November 22, 1918.

The puzzling question, without judicial precedent in other jurisdictions, is whether the voluntary payment of a fine by a defendant has the effect of a withdrawal of an appeal. The majority answer in the negative, very reasonably placing emphasis on the appeal taken by counsel for his clients and never withdrawn or modified except as to one whose case does not concern us. Those who subscribe would answer in the affirmative, being of the opinion that the serving of a sentence is totally incompatible with the perfection of an appeal. Our reasons for this view are the following:

When a defendant has been tried and convicted and has been sentenced to pay a fine, two courses are open to him ? he can pay the fine or he can give notice of appeal. He has a right to select which he will pursue. He cannot very well follow the two roads to the journey’s end at one and the same time. Having selected his remedy, he must be held bound by his choice until by some assertive act he waives such selection. It would thus be totally inconsistent for an accused to yield a voluntary obedience to a judgment of a court and afterwards appeal therefrom. The appeal subsists until the accused shows his inclination not to press the same by appropriate motion or by the equally appropriate method of paying the fine imposed. When, therefore, the defendants came into court and voluntarily paid their fines, they could no more forcibly indicate their acquiescence in the sentence, and this action perforce had the effect of nullifying the appeal therefore perfected by their attorney.

The great majority of the American cases hold to the doctrine that the payment of a fine bars the prosecution of an appeal. The converse proposition must be equally true, that payment of a fine constitutes a waiver of appeal. (See State vs. Westfall [1873], 37 Iowa, 575; Payne vs. The State [1882], 12 Tex. App., 160; Washington vs. Cleland [1907], 49 Ore., 12; 12 Cyc., 807.)

The motion for consideration should be granted, and so much of the decision of this court of August 21, 1919, as concerns Jose Torno y Santos, Juan Escribir y Angeles, and Fernanda Nicdao y Mariano, should be stricken therefrom, for the very good reason that these defendants are not appellants.

Araullo, J., concurs.

Footnotes

¹ See decision of this case dated August 21, 1919.

Batas Pinas