Criminal Procedure

Criminal Procedure pc1 Normal RND GROUP 3 16 2002-01-11T08:12:00Z 2002-01-19T05:36:00Z 5 2340 13341 sc 111 26 16383 9.2720 110

Checklist IV

Incidents During Trial

What To Do When There Is Application To Discharge Accused To Be State Witness

1. Applicable Rule: Section 17, Rule 119.

2. When applicable

Two or more persons jointly charged with the commission of the offense.

Whether to discharge more than one depends upon the need of the prosecutor and the discretion of the Judge. 147

3. When to apply

Upon motion of the prosecution before resting its case. 148

4. Things the Court should do

4.1 require prosecution to present evidence. Trial court should hold in abeyance or defer its resolution on the motion until the prosecution had presented all its evidence. 149

4.2 require submission of sworn statement of each proposed witness at a hearing in support of the discharge and ascertain if the conditions fixed by Section 17 of Rule 119 are complied with, namely:

4.2.1 there is absolute necessity for the testimony of the defendant whose discharge is requested. 150

The prosecutor must show that there is absolute necessity for the testimony of the defendant whose discharge he seeks, in order to be a witness for the prosecution 151 or the accused is the only one who has knowledge of the crime and not when his/her testimony would simply corroborate or otherwise strengthen the evidence in the hands of the prosecution. 152

Example: Where the prosecution itself admitted that one of the government witnesses, named Michael Yu testified that he saw and recognized the accused, Domingo Can as one of those who committed the robbery, such testimony is direct evidence of Can's participation and clearly negates the absolute necessity of Daria's testimony in identifying Can as one of the perpetrators of the crime. If at all, Daria's testimony would be merely corroborative and not essential. 153

4.2.2 there is no other direct evidence available for the proper prosecution of the offense committed, except the testimony of said defendant. 154

4.2.3 the testimony of said accused can be substantially corroborated in its material points. 155

4.2.4 said accused does not appear to be the most guilty. 156

a. Meaning of not the most guilty not the least guilty. 157 The rule does not require that he be the 'least guilty' but only that he not be the 'most guilty.' 158

b. Absolute certainty is not required. 159 In coming to his/her conclusion as to the 'necessity for the testimony of the accused whose discharge is requested'; as to the 'availability or non-availability of other direct or corroborative evidence'; as to which of the accused is the 'most guilty'; and like, the judge must rely in a large part upon the suggestions and information furnished by the state prosecutors. 160

4.2.5 said accused has not at any time been convicted of any offense involving moral turpitude. 161

a. Concept of moral turpitude

Moral turpitude has been described as an act of baseness, vileness and depravity in the private and social duty which a man owes to us fellowmen or to society in general, 162 done out of spirit of cruelty, hostility or revenge, 163 but there is also authority to the effect that an act is not done when it is prompted by the sudden resentment of an injury calculated in no slight degree to awaken passion. 164 In the absence, therefore, of any evidence to show the gravity and the nature of the malicious mischief committed, or at least, the value of the property destroyed and/or the circumstances under which the act of destroying was committed, we should not make haste in declaring that the crime of malicious mischief involves moral turpitude. 165

b. Examples of crimes involving moral turpitude

Estafa , 166 abduction with consent, 167 concubinage. 168 There is no moral turpitude for conviction for or playing mahjong 169

Effects of Discharge

1. Evidence adduced in support of the discharge shall automatically form part of the trial. 170 If the court denies the motion to discharge of the accused as state witness, his/her sworn statement shall be inadmissible in evidence. 171

2. Discharge of accused operates as an acquittal and bar to further prosecution for the same offense 172 except in the following cases:

2.1 Unless accused fails or refused to testify against his/her co-accused in accordance with his/her sworn statement constituting the basis of his/her discharge. 173

2.2 Failure to testify refers exclusively to defendant's will or fault. 174

2.3 Extrajudicial Confession: Admissibility; where an accused who turns State's evidence on a promise of immunity but later retracts and fails to keep his/her part of the agreement, his/her confession of his/her participation in the commission of the crime is admissible as evidence against him. 175

3. Erroneous or improper discharge of state witness does not affect the competency and quality of the testimony of the discharged defendant. 176

When A Motion/Petition To Suspend A Criminal Action Based Upon The Alleged Pendency Of A Prejudicial Question In A Civil Action Is Filed In The Criminal Action

1. At the hearing of the motion, ask the adverse party to comment on the motion if no such comment or opposition has not yet been filed.

2. Thereafter, determine if a prejudicial question exists. A prejudicial question is a question based on a fact distinct and separate from the crime but so intimately connected with it that it determines the guilt or innocence of the accused. 177 Its essential elements are: (a) the civil action involves an issue similar or intimately related to the issue raised in the criminal action; (b) the resolution of such issue determines whether or not the criminal action may proceed; and (c) the cognizance of the prejudicial question pertains to another tribunal. 178

2.1 Examples

Where a man was charged with bigamy by his second wife, a civil action filed by him against her for the annulment of their marriage on the ground that he was forced to contract said subsequent marriage is a prejudicial question to the criminal action. 179 The question of validity of said marriage cannot ordinarily be decided in the criminal action for bigamy but in the civil action for annulment. The annulment on the aforesaid ground would prove that his act of contracting that marriage was involuntary; hence, no criminal liability would attach.

In a civil action brought by plaintiff to annul the sale of land by defendant to a third party – the plaintiff alleging that the same land was previously sold by the defendant to him, but defendant raised the defense that his signature appearing on the deed of sale to plaintiff has been forged – the question of validity of the sale to plaintiff, to be determined in the civil action, is prejudicial to the criminal action for Estafa filed by plaintiff against said defendant. 180

2.2 Elements of prejudicial question

The elements of a prejudicial question are: (a) the previously instituted civil action involves an issue similar or intimately related to the issue raised in the subsequent criminal action, and (b) the resolution of such issue determines whether or not the criminal action may proceed. 181

The law limits a prejudicial question to a previously instituted civil action not to a subsequent one.

2.3 Note also although the present Rule does not specify who may file the motion or petition for suspension of the criminal proceedings on the ground of pendency of a prejudicial question, any party – the prosecutor, the accused, or the private prosecutor – may file the petition. 182

2.4 Finally, note that while such petition to suspend may be filed in the office of the prosecutor or the court conducting the preliminary investigation, it may be filed before the court trying the criminal action only 'before the prosecution rests.' 183 Accordingly, the petition should be denied if it is filed after the prosecution has rested.

If a petition to suspend is filed with the Prosecutor's Office, and the same is denied, the petition to suspend may be again filed before the Court. The determination of its finality is only provisional.

What A Judge Should Do If Accused Is Reported To Have Died 184

1. Ascertain veracity of report with submission of Death Certificate and Comment from prosecution.

2. If the accused dies before arraignment, the case shall be dismissed without prejudice to any civil action the offended party may file against the estate of the deceased. 185

3. The death of the accused after arraignment and during the pendency of the criminal action shall extinguish the civil liability arising from the delict .

4. However, the independent civil action instituted under section 3 of this Rule or which thereafter is instituted to enforce liability arising from other sources of obligation may be continued against the estate or legal representative of the accused after proper substitution or against said estate, as the case may be. The heirs of the accused may be substituted for the deceased without requiring the appointment of an executor or administrator and the court may appoint a guardian ad litem for the minor heirs.

5. Before ordering substitution, direct counsel for the accused to inform court of the names and addresses of the decedent's heirs or whether or not his/her estate is under administration and has a duly appointed administrator.

6. The court shall forthwith order said legal representative or representatives to appear and be substituted within a period of thirty (30) days from notice

7. The title of the case should be amended to show its civil aspect by including the name of the offended party as plaintiff and the legal representative or heir of the accused substituted as defendant. 186

8. A final judgment entered in favor of the offended party shall be enforced in the manner especially provided in these rules for prosecuting claims against the estate of the deceased.

What A Judge Should Do In Case A Motion For Disqualification Or Inhibition Is Filed

A. The Rules of Disqualification and Inhibition

1. Code of Judicial Conduct

Rule 3.12. – A judge should take no part in a proceeding where the judge's impartiality might reasonably be questioned. These cases include, among others, proceedings where:

(a) The judge has personal knowledge of disputed evidentiary facts concerning the proceeding;

(b) The judge served as executor, administrator, guardian, trustee or lawyer in the case or matters in controversy, or a former associate of the judge served as counsel during their association, or the judge or lawyer was a material witness therein;

(c) The judge's ruling in a lower court is the subject of review;

(d) The judge is related by consanguinity or affinity to a party litigant within the sixth degree or to counsel within the fourth degree;

(e) The judge knows the judge's spouse or child has a financial interest, as heir, legatee, creditor, fiduciary, or otherwise, in the subject matter in controversy or in a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceeding.

In every instance the judge shall indicate the legal reason for inhibition.

Rule 3.13. – A judge disqualified by the terms of Rule 3.12 may, instead of withdrawing from the proceeding, disclose on the record the basis of disqualification. If, based on such disclosure, the parties and lawyers independently of the judge's participation, all agree in writing that the reason for the inhibition is immaterial or insubstantial, the judge may then participate in the proceeding. The agreement, signed by all parties and lawyers, shall be incorporated in the record of the proceeding.

2. Rules of Court – Rule 137

Sec. 1. Disqualification of judges . – No judge or judicial officer shall sit in any case in which he, or his wife or child, is pecuniarily interested as heir, legatee, creditor or otherwise, in which he is related to either party within the sixth degree of consanguinity or affinity, or to counsel within the fourth degree, computed according to the rules of the civil law, or in which he has been executor, administrator, guardian, trustee or counsel, or in which he has presided in any inferior court when his ruling or decision is the subject of review, without the written consent of all parties in interest, signed by them and entered upon the record.

A judge may, in the exercise of the sound discretion, disqualify himself from sitting in a case, for just or valid reasons other than those mentioned above.

Sec. 2. Objection that judge disqualified, how made and effect . – If it be claimed that an official is disqualified from sitting as above provided, the party objecting to his competency may, in writing, file with the official his objection, stating the grounds therefor, and the official shall thereupon proceed with the trial, or withdraw therefrom in accordance with his determination of the question of his disqualification. His decision shall be forthwith made in writing and filed with the other papers in the case, but no appeal or stay shall be allowed from, or by reason of, his decision in favor of his own competence until after final judgment in the case.

B. Distinction Between Ground For Disqualification Or Inhibition

A ground for disqualification gives the judge no discretion, while ground for inhibition is addressed to the sound discretion of the judge. 187

C. If the judge disqualifies or inhibits himself, the inhibition is a judicial matter which does not require administrative action by the Supreme Court except under the situation discussed below:

1. The judge should send the copy of his/her Order of Inhibition or Disqualification to the Executive Judge for re-raffle of the case. 188

2. There should be no exchange of cases between the recusing judge and the judge to whom the case is re-raffled. However, appropriate adjustments must be made in the raffle of cases so that the judge to whom the case is re-raffled should be credited with one new case. And the recusing judge should be assigned one additional case to offset the case that he re-raffled.

D. Submission for approval or notation to the Supreme Court of order of inhibition is required where:

1. The judge is in a single sala seat and another judge from another seat has to be designated.

2. The judge is in a multiple sala seat and there is a conflict of opinion between the recusing judge and the judge designated on the propriety of inhibition or disqualification. 189

If the situation is not as described above, then the judge should merely send his/her order to the Executive Judge for re-raffle in a multiple sala court.

E. Significant Rulings

1. Test in inhibition is whether the parties can be assured that the case can be heard with the cold neutrality of an impartial judge. 190

2. Judge must either recuse himself or proceed with the case; he cannot do both by first disposing of the case and then inhibiting himself. 191 In single sala courts, judges should exercise prudence and discretion to avoid unnecessary problems and waste of time resulting in the transfer of the case to another sala. 192

3. The mere filing of an administrative case against respondent judge is not a ground for disqualifying him from hearing the case, for if on every occasion the party apparently aggrieved would be allowed to either stop the proceedings in order to await the final decision on the desired disqualification, or demand the immediate inhibition of the judge on the basis of his/her being so charged, many cases would have to be kept pending or perhaps there would not be enough judges to handle all the cases pending in all the courts. 193

4. A judge cannot sit any case in which he was a counsel without the written consent of all the parties in interest, signed by them and entered upon the record. He cannot proceed just because there was no objection from any of the parties. The rule is explicit that he must secure the written consent of all the parties, not a mere verbal consent much less a tacit acquiescence. 194

5. The fact that the judge issued a writ of preliminary prohibitory injunction on the question of whether the carousel was an attractive nuisance, does not disqualify the judge from hearing the case on the merits because this is not yet a final determination. An adverse provisional ruling does not disqualify a judge. 195

147 People v. Baesa, 104 Phil. 136 [1958].

148 Rules of Court, Rule 119, Sec. 17.

149 Flores v. Sandiganbayan , No. L-63677, August 12, 1983, 124 SCRA 409.

150 Rules of Court, Rule 119, Sec. 17 (a).

151 Flores v. Sandiganbayan , supra , note 149.

152 Flores v. Sandiganbayan , supra , note 149 ; People v. Ani�on, No. L-39803, March 16, 1988, 158 SCRA 701; Lugtu v. Court of Appeals, G. R. No. 42037, March 21, 1990, 183 SCRA 388.

153 Can v. Galing, G. R. No. 54258, November 27, 1987, 155 SCRA 663.

154 Rules of Court, Rule 119, Sec. 17 (b); People v. Ani�on, supra , note 152.

155 Rules of Court, Rule 119, Sec. 17(c).

156 Rules of Court, Rule 119, Sec. 17(d).

157 Ibid, Sec. 6(d); People v. Court of Appeals, No. L-55533, July 31, 1984, 131 SCRA 107.

158 People v. Faltado 84 Phil. 89 [1949].

159 People v. Court of Appeals, No. L-62881, August 20, 1983, 124 SCRA 338.

160 Ibid.

161 Rules of Court, Rule 119, Sec. 17(e).

162 Moore v. State 67 So. 789.

163 54 CJS 935.

164 54 CJS 935.

165 People v. Jamero, No. L-19852, July 29, 1968, 24 SCRA 206.

166 In re Abesamis, 102 Phil 1182 [1958].

167 In re Basa 41 Phil. 275 [1920].

168 In re Isada 60 Phil. 915 [1934].

169 Chiong v. Republic 103 Phil 1114 [1958].

170 Rules of Court, Rule 119, Sec. 17.

171 Ibid .

172 Rules of Court, Rule 119, Sec. 18.

173 Ibid .

174 People v. Mendiola 82 Phil. 740 [1949].

175 People v. Beberino, No. L-23092, October 29, 1977, 79 SCRA 694.

176 People v. Jamero, supra , note 165; Mangubat v. Sandiganbayan, No. L-60613, April 20, 1985, 135 SCRA 732; Ramos v. Sandiganbayan, G. R. No. 58876, November 27, 1990, 191 SCRA 671.

177 Mendiola v. Macadaeg, No. L-16874, February 27, 1961, 1 SCRA 593; Benitez v. Concepcion, 112 Phil. 105 [1961].

178 People v. Aragon 94 Phil 357 [1954].

179 Zapanta v. Montesa No. L-14534, February 28, 1962, 4 SCRA 510.

180 Ras v. Rasul, Nos. L-50441-42, September 18, 1980, 100 SCRA 125.

181 Rules of Court, Rule 111, Sec. 7.

182 Fortich-Celdran v. Celdran, No. L-22677, February 28, 1967, 19 SCRA 502.

183 Rules of Court, Rule 111, Sec. 6.

184 Revised Penal Code, Art. 89 (1).

185 Rules of Court, Rule 111, Sec. 4.

186 Torrijos v. Court of Appeals, No. L-40336, October 24, 1975, 67 SCRA 394.

187 Pimentel v. Salanga, No. L-29734, September 18, 1967, 21 SCRA 160.

188 SC Circular No. 10, May 22, 1987.

189 Adm. Circular No. 1, January 28, 1988.

190 Gutierrez v. Santos 112 Phil. 184 [1961].

191 Hacienda Benito v. Court of Appeals, L-75297, August 12, 1987, 153 SCRA 46.

192 Adm. Matter No. 90-8-1863RTC, October 4, 1990, Minute Resolution.

193 Aparicio v. Andal, G. R. Nos. 86587-93, July 25, 1989, 175 SCRA 659.

194 Lorenzo v. Marquez, A. M. No. MTJ-87-123, June 27, 1988, 162 SCRA 546.

195 McDonald's Corporation v. Court of Appeals, G. R. No. 98699, July 15, 1991. (Minute Resolution, First Division)