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http://lawyerly.ph/juris/view/c1e51?user=fbGU2WFpmaitMVEVGZ2lBVW5xZ2RVdz09
[PEOPLE OP PHILIPPINE ISLANDS v. REMEDIOS AVELINO DE LINAO ET AL.](http://lawyerly.ph/juris/view/c1e51?user=fbGU2WFpmaitMVEVGZ2lBVW5xZ2RVdz09)
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56 Phil. 360

[ G. R. No. 33909, December 16, 1931 ]

THE PEOPLE OP THE PHILIPPINE ISLANDS, PLAINTIFF AND APPELLEE, VS. REMEDIOS AVELINO DE LINAO ET AL., DEFENDANTS. REMEDIOS AVELINO DE LINAO, APPELLANT.

D E C I S I O N

MALCOLM, J.:

In this case there have been pending action for sometime a number of motions filed on behalf of the accused which have  not heretofore been decided because of  the  absence on  leave of the author of the decision, but which the court has determined  to dispose  of  because of there being no probability of the ponente returning to duty  before the adjournment of the court at the end of the present calendar year.  Further,  by way of  introduction,  it should be said that in the Court of First Instance of Manila, Judge Albert presiding,  the accused  Remedios  Avelino de  Linao was found guilty beyond reasonable doubt of the crime of attempted parricide, and  was sentenced therefor to twelve years' imprisonment, prision mayor.  On appeal, following the presentation  of lengthy briefs and  memoranda, and to follow the language  of  the decision after having  "given this case the serious consideration which its importance deserves," the judgment of the lower court was affirmed.1 All the seven members  participating agreed that the accused was guilty, but disagreed as to the proper penalty, five voting to affirm and two voting to convict the accused as an accomplice.   Thereafter, as above indicated, motions were filed which it is now proposed to take up and  decide.
  1. Motion  for Reconsideration. A motion for reconsideration,  presented by the original  attorneys  of record, relies on  four  grounds.   The  first three  grounds enumerated all  go to propositions which were  thoroughly  analyzed when the case was considered on  its merits,  and  so it would serve no good purpose to stir up the same matters again.  The  fourth ground stated in the motion for reconsideration relates to  a point more specifically  set  out  in a motion  for rehearing which  will next be discussed.  As to the motion for reconsideration in its principal phases, we are of the opinion that the same should be  denied, reserving, of course, the individual opinions of the members of the court  as to the proper penalty.
  2. Motion  for Rehearing. Related to the fourth ground stated in  the motion for reconsideration  is a motion for rehearing presented by the attorneys of record, which alleges that the decision  was rendered without a quorum being present in this tribunal, as required by section 133 of the Administrative Code, as amended by Act No. 3816. It is argued that, as the case was considered in banc,  nine members  are required to constitute a quorum,  and that  as the decision shows that only seven justices  took part in the consideration of the case,  a rehearing should  be  granted. It is, of course, evident  that of  the  nine  members  of the court seven  only  participated  in the decision, the other two not taking part in the consideration  of the case.  It further appears  that  the  decision  is entitled "in  bane." However,  that  nine members constituting a quorum were present cannot be denied,  for otherwise the court would have been forced to adjourn on account of the absence of a quorum, and the fact that two members did not participate in this particular case does not affect the result.  It should also be explained that following the enactment of Act No. 3816, a number of decisions of this court were promulgated under the old nomenclature of "First Division," "Second Division," and "In Banc" whereas, in reality, such decisions fell either into a  "Division of Five," a "Division of Seven," or "In Banc" according to  the  nature of the case.   The case at bar is plainly one for a division of seven. To quote from Act No. 3816, "Seven of the judges of the Supreme Court, lawfully convened, shall be necessary to form  a  quorum  *   *  *  for the  final  disposition  of *  *   * a  criminal case  in which the judgment of the lower court imposed imprisonment for more than ten years, or a fine of more than  ten thousand pesos, and the concurrence of five judges shall be necessary for the pronouncement of a judgment."   That is exactly the case at bar, and as none of the  requirements for  the  consideration and decision by the court sitting in bane were present, the court rightfully disposed of the case in a division of seven.  Accordingly, we  are of the opinion that the motion for rehearing should be denied.
  3. Motion for  New  Trial. A motion for a new trial, supported by  a  number  of affidavits, signed  by new attorneys for the accused, has been filed.   Exhibit A is the affidavit of Felix Tuazon,  one of  the accused who  plead guilty  and who  is now serving his sentence in Bilibid Prison.  In synthesis,  Tuazon states  that the purpose of the assault on Mr. Linao  was robbery; that  Mrs. Linao had no previous  knowledge of this robbery nor  did she instruct Tuazon and his companions to kill her  husband, and that he, Tuazon, made the admission that Mrs. Linao was the one who induced him and  his companions to kill Mr. Linao in the belief that he could thereby save himself from criminal prosecution.  Exhibits B and C relate to a letter of Eustaquio Lagrimas, a prisoner in Bilibid Prison, amplified by his affidavit to the effect that he prepared the motion for reconsideration for Antonio Ubaldo and Felix Tuazon, two  of the accused, and that they confessed that they were induced to involve  Mrs. Linao in the case  due to promises  of detectives, and  that they told him  (Lagrimas) a  true story of 'the occurrence.  Exhibit D is a lengthy affidavit executed by the accused, Remedios Avelino de Linao, consisting of denials, allegations of innocence, and other matters to support her defense.   Exhibit  E is the affidavit of the boy Angel Linao, the son of Joaquin Linao and Remedios Avelino de Linao, in which he asserts positively that his father, when sleeping, does not have the custom of snoring.   Exhibits F and G consist of a request addressed to  the Director of the Weather Bureau and his answer, relative to the  rising and setting of the moon on March 24,  and March  25, 1930.  Exhibit  H  is the affidavit of Teofilo Alcantara, a policeman, who says that he intervened in the investigation and who purports to reveal a damaging conversation had with  Clemente Pescante, a policeman and a  witness  for the prosecution.  The  Attorney-General has opposed the granting of the motion for a new trial on the grounds that Exhibits A, B, and C are inherently improbable  and utterly unreasonable; that  Exhibit  D is not newly discovered evidence, and that none of the exhibits would warrant modification or reversal of the judgment rendered in this case.

    Passing  in review the  various  exhibits,  it is readily apparent that the affidavit of the accused Remedios Avelino de  Linao does not  constitute  newly discovered evidence which the defense with  due diligence could not have offered at the trial, nor does the affidavit of the son Angel Linao, or the statement of the Weather Bureau.  Also, the  affidavit of the prisoner Eustaquio Lagrimas and the affidavit of the policeman Teofilo Alcantara speak of matters which merit but passing consideration.  The  best  basis for the motion lies in the affidavit of the  co-accused Felix Tuazon, which  indicates a motive  other than murder and which attempts to relieve Mrs. Linao from criminal responsibility. The view of the writer was that the affidavits in support of the motion for a new trial were  legally insufficient, and that even if the testimony  contained  in these  affidavits should be admitted, it is not such evidence as should change the result.   However, a majority of the court are impressed otherwise.   They believe that in the interest of justice, the case should be reopened to receive additional testimony. As responsive to this opinion, the  motion for a new trial will be granted.
  4. Additional Motion for New Trial. In an additional motion  for  a  new  trial filed by the same  counsel which prepared the main motion for a new trial, it is asked that at this  trial there be taken into consideration some notes of a detective, to be found  in the records of  the police department of the  City of Manila, in order to  show that Exhibits J and U were prepared  by a person other  than the accused Mrs. Linao.   The Attorney-General submits that this motion should be denied on the ground of improbability.  We  suppose that a motion of this character, of a new trial be granted, could properly be presented to the trial court  where, after requiring  the  defense to make a proper  showing and after  reflecting on the answer of the prosecution, an order, either granting or denying the motion, could be  made.
It should be stated before concluding that the author of the  decision in this case, after reading the motion for reconsideration  before his departure  on leave, made the following: "Memo This case was  fully and carefully considered by every member of the court who took part in it. Personally, I  am firm in  my conviction that, the majority opinion of the court is right, and any and all motions for reconsideration should be denied.   Charles A. Johns. June 23, 1931."  We fully agree with this recommendation, but the  motion for a new trial was  filed late in July when Justice Johns was no longer in the Islands, and so has had to be studied by  other members of the court.

In  accordance  with all the foregoing, the motion for reconsideration and the motion for rehearing will be denied as without merit, and the motion for a new trial will be granted, and the record remanded to the court below, with instructions to  reopen the case to take the evidence of the affiant Felix Tuazon in  support of the motion for a new trial, and such other and additional evidence as the defense and  prosecution may care to offer which in the opinion of the court may  be relevant.  So  ordered.

Avanceña, C. J.,  Street, Villamor,  Ostrand,  Villa-Real, and  Imperial,  JJ.,  concur.



1 G. R. No.  33909 promulgated March 10, 1931, not reported.

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