GR L 15766; (October, 1919) (Digest)
G.R. No. L-15766; October 24, 1919
CALIXTO BERBARI, petitioner, vs. THE HON. PEDRO CONCEPCION, Judge of the Court of First Instance of Manila and THE PROSECUTING ATTORNEY OF THE CITY OF MANILA, respondents.
FACTS:
Petitioner Calixto Berbari filed a petition for prohibition and mandamus against the respondent Judge. He sought to prohibit the Judge from proceeding with his criminal trial without first appointing assessors and to compel the Judge to appoint such assessors. Berbari had filed a written application for assessors under Section 154 of Act No. 190 (Code of Civil Procedure) in relation to Section 2477 of Act No. 2711 (Administrative Code). The respondent Judge denied the application. The respondents argued that the request was not made in a timely manner and was intended to delay the trial. The facts were admitted by the parties, leaving a pure question of law.
ISSUE:
Whether, under Section 154 of Act No. 190 in relation to Section 2477 of Act No. 2711, a judge of the Court of First Instance of Manila is mandatorily required to appoint assessors in a criminal case upon a party’s written application, or whether the judge has discretion to deny such a request.
RULING:
The Supreme Court GRANTED the petition. The Court ruled that the provisions of Section 154 of Act No. 190 , in relation to Section 2477 of Act No. 2711, are mandatory. When a party files a proper written application for assessors, the judge has no discretion to deny it; the judge “shall direct” that assessors be provided. The Court further held that:
1. The law does not specify a time for filing the application, but it must be made before the trial begins; otherwise, the right is deemed waived. On the facts, Berbari’s application was made opportunely.
2. The parties have the right to select assessors from a complete list prepared by the municipal board as required by law, unless all interested parties agree to use an incomplete list. The prosecuting attorney and the defendant are the interested parties in a criminal case.
The Court did not rule on situations where a demand is clearly and manifestly made solely for delay, as that was not the circumstance here. The dissenting opinion argued that court rules requiring notice for motions should apply, meaning an application for assessors should be filed with three days’ notice, but the majority did not adopt this view.