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[US v. VS.. MIKE BEECHAM](https://lawyerly.ph/juris/view/c9b9?user=fbGU2WFpmaitMVEVGZ2lBVW5xZ2RVdz09)
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[ GR Nos. 5161 and 5162, Oct 09, 1912 ]

US v. VS.. MIKE BEECHAM +

DECISION

23 Phil. 258

[ G.R. Nos. 5161 and 5162, October 09, 1912 ]

THE UNITED STATES, PLAINTIFF AND APPELLEE, VS.. MIKE BEECHAM, DEFENDANT AND APPELLANT.

D E C I S I O N

CARSON, J.:

Mike Beecham,  the defendant and appellant in this case, was convicted in the Court of First Instance of Pampanga of the crime of asesinato (murder in the first degree) and sentenced to life imprisonment together with the accessory penalties prescribed by law.

From  the judgment of that court convicting  and sentencing him, he appealed to this court.   Upon a full review of the whole case and upon the evidence  disclosed by the record made  up  in the  court  below, this court was of opinion that he was guilty beyond a reasonable doubt of the crime of which he was convicted in the court below, but marked with  an  aggravating circumstance, premeditacion conocida (deliberate premeditation), which  was not taken into consideration by  the trial judge;  and that  the trial judge erred  in not  taking this aggravating circumstance into consideration and  in failing to  impose  the capital penalty upon the convict, that being the penalty prescribed by law for the commission of the crime with which he was charged and of which the evidence of record conclusively established his guilt.  Thereupon and, in accordance with the practice in this jurisdiction, and  under authority of the law provided in such cases, this court entered final judgment reversing the sentence of life imprisonment, declaring the defendant and appellant guilty of the crime of asesinato (murder in the first degree), marked with the aggravating circumstance of premeditacion conocida (deliberate premeditation), and sentencing him to the death penalty.

From  the judgment of this court an  appeal was taken to the Supreme Court of the United States.  This appeal was dismissed in that court for lack of jurisdiction.  In due course certified copies of the mandate of the Supreme Court of  the United States dismissing the appeal and of the judgment entered by this court, were remitted to the trial court, wherein the following  auto (order) was entered on the 19th day of August, 1912: 

"Received  certified copies  of the mandate of  the  Supreme Court of the United States and of  the judgment and sentence rendered  by the  Supreme Court of these Islands,
"Observe, fulfill, and execute the  provisions thereof  and file the case.
"September 9, 1912, at 7 a. m., is fixed for the execution of  Mike  Beecham.
 "So ordered.

(Sgd,)   "JULIO LLORENTE,

  "Judge of First Instance of the Fourth District"

Thereafter,  on the 19th day of August, 1912, the following order was issued to the Director of Prisons:

"Whereas, the Supreme Court of these Islands has reversed the judgment rendered  in this case  and sentenced the defendant to the penalty  of death, with the accessories of article 53 of the Penal Code; 

"Whereas, the Supreme Court of the United States has dismissed. the writ of error  filed in this case for lack of jurisdiction; 

"Whereas, this court issued an order,  directing  that the mandate  of the judgment of  said Supreme Court  of these Islands be observed, fulfilled, and executed and September 9, 1912, at 7 a. m., be fixed for the execution of the defendant Mike Beecham; 

"Therefore, it is ordered that you proceed to carry out said sentence, copy whereof  is hereto attached, in accordance with Act No. 1577, on September 9, 1912, at 7 a. m. Please notify this court of compliance herewith. 

"Given by the Honorable  Julio Llorente, judge of First Instance of the Province of Pampanga, fourth judicial district, this 19th day of August, 1912.

"ESTANISLAO TAMAYO,

  "Clerk  of  Court of' Pampanga.

By (Sgd.)   "JOSE PANLILIO,
  "Deputy Clerk."

On  the 27th of August, 1912, counsel  for the convict submitted the  following niotion  for the revocation  of the action thus  taken by the trial judge: 

"The  defendant  hereby appears  in the  above-named case and asks for reversal of the sentence promulgated by this court on August 19, 1912, for the following reasons: 

"First, That it does not appear from said sentence that the defendant and his counsel had any notice of the rendition thereof and  neither one nor the other was present in this court at the time of the promulgation of said sentence. 

"Second.  That it  is a fact that  neither said defendant nor his counsel was notified to be present a^; the time of the promulgation  of said sentence and  neither  one  nor the. other was present in the court at the time of the promulgation thereof,  as provided  by  General  Orders,  No. 58, section 15., paragraph 1. 

"Dated at Manila, this 27th day  of August, 1912.

(Sgd.)  "FREDERICK GARFIELD WAITE,
  "Attorney for defendant."

On the 30th day of August, 1912, the trial judge entered the following auto (order)  in the record of the case: 

"In  the  present  case  the defendant,  Mike Beecham, through his  counsel, asks for reversal of the 'sentence promulgated by this court on August 19, 1912/ on the ground that they were not  'notified' nor 'present' at the  time of the promulgation thereof. 

"The 'sentence' to which the defendant's petition refers is  an auto (order) of this court directing that the mandate of the Honorable Supreme Court of these Islands in this case be observed, fulfilled, and executed and fixing the day and hour for the execution of the penalty imposed.   It is not a sentence for the promulgation whereof the notification or the presence  of  the defendant or his counsel is necessary.  It is simply an  order  of execution, absolutely necessary for executing the  mandates of higher courts in this case.  Therefore,  no  legal reason exists for entertaining the defendant's motion. 

"Wherefore, the motion is denied.

"So ordered.

(Sgd.)  "JULIO LLORENTE,
  "Judge of First Instance of the Fourth District"

It is from this auto (order) that this appeal was taken. Counsel for the convict contends that all the  proceedings had in  the trial court since the  receipt  therein  of  the certified copies of the mandate of the Supreme Court of the United States and of the  judgment of this court were null and void because neither  the accused nor his counsel were given an opportunity to be present,  and as he alleges and as it appears from the record, were not in  fact present when these proceedings were had.

There is  no question as  to the authority of the trial court to issue the auto (order) fixing the time and place for the execution of a  valid judgment which had been duly rendered and which imposes the sentence of death upon  one convicted of a capital offense.  Under  the provisions of Spanish law still in force in this jurisdiction,  whereby all capital sentences imposed  by  the trial courts are brought to this court for  review (en consulta), and whereby this court is authorized in a proper case to reverse a sentence imposing a  less penalty and  itself  impose the death penalty, it has always been and still  is the  duty of the trial court, after a judgment imposing the death penalty has become final and the record has been returned  to that court for the execution of the sentence, to enter in the record an auto (order) fixing the time and place therefor, and directing the proper officer to carry out the sentence of the court. Some modifications have been made by a  statute under American  sovereignty in regard to the mode in which death penalties are to be executed, and, with certain exceptions, Bilibid Prison has been designated by law as the place of execution of all such penalties.   But there are no provisions in these statutes which change or modify the uniform practice whereby the trial court is required to designate the time and place for the execution in a proper auto  (order) entered of record after a judgment imposing the death  penalty has become final.

But it is contended that no valid judgment imposing the death penalty  has ever been rendered in the case at bar because the defendant was  not present when  the judgment of this court imposing that penalty was promulgated, and it is further contended that even if it be admitted that the judgment of this court was lawfully rendered in the absence of the defendant,  nevertheless the order of the trial court designating the place and date for its execution was erroneously  entered  in the  absence  of  the  convict and  his counsel.   It is urged that  no such  order can be  legally entered of record in the  absence of the convict,  and that he is as much entitled to be present when such an order is entered as he  is  at any other stage of the proceedings.  It is said that the alleged rights  which were denied the  convict are guaranteed him not only by the  provisions of the Philip- pine Bill of Rights (sec,  5  of the Act of Congress of July 1, 1902), but also by the express  terms of sections 15 and 41 of General Orders, No. 58.

The pertinent provisions  relied upon are as follows: 

"Sec. 5 of Act of Congress, July 1,  1902, 

"That  in  all criminal prosecutions  the  accused shall enjoy  the  right to be  heard by himself and  counsel,  to demand the nature and  cause  of the accusation  against him, to have a speedy  and public trial,  to meet  the  witnesses face to face,  and to have compulsory  process  to compel the attendance of witnesses in his behalf."

Section 15 of General Orders, No. 58, under the caption of "Rights  of Accused  at the Trial,"  provides  that: 

"In  all  criminal prosecutions  the  defendant  shall be entitled - 

"1. To appear  and defend in person and by counsel at every stage of the proceedings."

Section 41 of General Orders, No. 58, provides that - 

"The  defendant must be personally present  at the time of pronouncing judgment, if the conviction is for a felony; if for a misdemeanor, the judgment  may  be  pronounced in his absence."

We are  cited to our own construction of these statutes set forth in our decision in the case of U. S. vs. Karelsen (3 Phil. Rep., 223) wherein  we said: 

"In all criminal prosecutions the accused has  an absolute right to be personally present during the entire  proceedings from arraignment to sentence if he so desires.  In cases of felony he cannot waive this right.  The  court in case of felony must insist upon the presence of  the accused in court during every step in  the trial.  The record must also show  that the accused was present at  every stage of the  prosecution.   (Hopt vs. Utah, 110 U. S., 574.)   It is not  within the power of the court, the accused, or his counsel to  dispense with the provisions of General Orders, No.  58 (sec. 41), as to the personal presence of  the accused at the trial.   We mean by the phrase 'at the trial1 to include everything that is  done in the  course of the trial, from the arraignment until after sentence is  announced by the judge in open court."

We  are of the opinion, however,  that both on principle and  authority these various provisions securing to an accused person the right to be present "in all  criminal prosecutions" must be understood  as securing to him  merely the  right to be present during every step in the trial in the  Court of First Instance; and that as was said in the case cited by  counsel  for appellant, the phrase  "at  the trial" is  to be taken "to include everything that is done in the  course of the  trial,  from  the arraignment until  the sentence  is announced," which clearly refers to the proceedings had in the nisi  prius court.  A careful examination of the language and  the  context of each of the statutory provisions above cited satisfies us that it was not the intention of the legislature to extend the right to be present beyond the limits just indicated, and we are confirmed in our conclusions in this regard by a review of the decisions of  the various courts of last  resort in the United States construing  similarly worded constitutional  and  statutory provisions touching  the right of  accused persons to  be present in  the course of criminal  proceedings instituted against them.

In the case of Fielden et al. vs. The People (128 111., 595), the supreme court of Illinois, discussing contentions substantially similar  to  those relied upon by counsel for appellant, said: 

"We are not unmindful that it is guaranteed by section 9 of  article 2 of the constitution of this State, that 'in  all criminal prosecutions the accused  shall have  the right to appear and defend, in person and by counsel.'   But  it is clear, from the connection of the clause, that this has reference to trials  at nisi prius, only.   The entire paragraph reads thus: 'In all criminal  prosecutions the  accused  shall have the right to appear and defend in person and by counsel, to demand the nature and cause  of the accusation and to have a copy thereof, to meet the witnesses face to  face, and to have process to compel the attendance of witnesses in his behalf, and a speedy public trial by an impartial jury of the county,' all of which rights these plaintiffs in error have fully enjoyed on the trial in the criminal court resulting in their conviction.   But they  are not  now defending against a prosecution.   They are, themselves, prosecuting a suit to reverse the judgment by which they were convicted, and it is therefore impossible that these provisions can  have any application to it  (Tooke vs. State, 23 Tex. Ct. App., 10.) 

"The mere naming of the day on which the sentence was to be executed was but the exercise of a ministerial power, which, at  common law, was sometimes exercised by the sheriff (1 Chitty's Crim. Law,  5th Am. ed., 782, 783), and  is in this state exercised by t'he governor in case of a temporary reprieve."

In the review of this case on appeal to the Supreme Court of the United States (143 U. S., 452) it was held: 

"That due process of law  did not require the presence of the accused in the appellate court when the original judgment of the trial court was affirmed, and a new day fixed for his execution."

In the case of Schwab vs.  Berggren (143 U. S., 442), the Supreme Court of the United States said that: 

"The demurrer to the petition for the writ admits that the judgment of the supreme court of Illinois of September 14, 1887, was rendered in the absence of both the appellant and his counsel, and without notice to  either that the case would be disposed of at that time.  It is, therefore, contended by  the appellant that the judgment was void, as not being, that due process of law required by the Constitution of the United States, where life or liberty is involved. 

"At common law, it was deemed essential in capital cases, that inquiry be made of the  defendant, before judgment was passed, whether he had anything to say why the sentence of death should  not be  pronounced upon him; thus giving him an opportunity to allege any ground of arrest, or to plead a  pardon, if he  had obtained one, or to urge any other legal objection to further proceedings against him. This privilege was deemed of such substantial Value to the accused, that the judgment would be reversed if the record did not show that it was accorded to him.  (Ball vs. United States, 140 U. S., 118, 129; 1 Chitty's Crim. Law, 699, 700; Rex vs. Geary, 2 Salk., 630; King vs, Speke, 3 Salk., 358; Anonymous, 3 Mod., 266; 1 Archbold's Crim. Prac. & Plead. (Pomeroy's ed.) 577, 578.)   And it has been so ruled in the courts of some of the States.   (Hamilton vs. Commonwealth, 16 Penn. St., 129,133; Messner vs. People, 45 N. Y., i, 5; James vs.  State, 45 Miss., 572, 579; Crim vs. State, 43 Ala., 53,  56; Perry vs.  State, 43  Ala., 53; State vs. Jennings, 24 Kans., 642, 659; Keech vs. State,  15 Fla., 591, 609;  Grady vs. State, 11 Ga., 253, 257; Safford vs. The People, 1 Parker's Crim. Rep., 474, 476.)

"But this  rule of the common law,  as the authorities clearly show, applied to the court of original jurisdiction which pronounced the sentence,  and not to an  appellate court, which, upon review of the proceedings in the trial court, merely affirms the final judgment no error having been  committed to the prejudice of the accused without rendering a new judgment.  The entire argument, on behalf of the appellant, assumes that the supreme court of Illinois pronounced  a sentence of  death upon him.  But such  is not the fact.  The sentence  of death, by hanging, was pronounced  by the criminal court of Cook County, October 9, 1886, 'neither the said defendant nor his counsel for him saying anything further why the judgment of the court should  not now be pronounced against him  on the verdict of guilty  heretofore rendered to the indictment in this cause.'  The execution of that  sentence having  been stayed by the prosecution of a writ of  error, with supersedeas, the supreme court of the State, upon  examination of the matters assigned for error, affirmed the judgment in all things, and  (the day originally fixed for the execution having passed) fixed November 11, 1887, as  the day for carrying into execution 'the sentence by the criminal court of Cook County.'  What that court did was in strict conformity with the Criminal Code of Illinois relating to prosecutions by  indictment for capital offenses, which provides that if the judgment is affirmed, the supreme court shall, by order, fix the time when the original sentence of death shall be executed, a copy of which order shall be  sufficient authority to the sheriff for the execution of the prisoner at the time therein specified;' and that 'if the judgment is affirmed, the supreme court shall direct the court in which the original sentence was rendered to carry the same into effect, and shall give judgment against the plaintiff in error for costs, and execution may  issue  therefor from the supreme court.'   (Rev. Stats.  111.,  c.  38,  Crim.  Code,  par. 459, 466, Div. XV.) 

"Numerous authorities have been cited for the appellant in support of the general common law rule that the accused must be present when  the judgment  against him is pronounced;  but they fall  far short  of establishing the contention that due  process  of law required his  personal presence in  the supreme court of Illinois at the time the order  was entered affirming the  judgment by  which he was sentenced to  death.   No case  is cited,  and we are aware of no well-considered case, which supports that contention.  The personal  presence of the accused,  from the beginning to the end of a trial for felony, involving life or liberty, as well as at  the time final judgment is rendered against him, may be, and  must be assumed to be, vital to the proper conduct of his defense, and  cannot be  dispensed with.   This  court  in Hopt vs. Utah  (110  U.  S., 574, 579), after observing that the public has an interest in the life and liberty of the accused, and that neither can be  lawfully taken except in the mode precribed by law, said: 'That  which the law makes  essential  in proceedings involving deprivation of life or liberty cannot be  dispensed with or affected by the consent of the accused, much less by his mere failure, when  on trial and in custody,  to  object to unauthorized methods.   The great end of punishment is not the expiation  or  atonement of the offense committed, but  the prevention of  future offenses of  the  same kind. (4 Bl. Com., 11.)   Such being the relation which the  citizen holds to the public, and  the object of punishment for public wrongs, the legislature  has deemed it  essential to the protection of one whose life or liberty is involved in a prosecution for felony, that he shall be personally present  at the trial, that is, at every stage of the trial  when his substantial rights may be affected by the proceedings against him.   If he be deprived of his life or liberty without being so present, such deprivation would  be  without that due process  of law required by the Constitution.'  See Harris vs. People (130 Ill, 457, 459).  But neither reason nor public policy require that he shall be personally present pending proceedings  in an  appellate court whose only function is to determine whether, in the transcript submitted to them, there appears any error of law to the prejudice of the accused; especially, where, as in this case, he had counsel to represent him  in the court of review.  We do not mean  to say that the appellate court may not, under some  circumstances,  require his personal presence;  but  only that his presence is not essential to its jurisdiction to proceed with the case."

In Donnelly vs. State  (2 Dutcher (26 N. J. Law),  463, 471), it was said:

" 'If the presence of the prisoner is necessary in cases  of murder to conduct a writ of error, or to receive the judgment of the court, it is, upon the principles of the English law, equally so in all other cases of felony or crimes above misdemeanors.   But upon examining the precedents, we do not find  a single case, where, upon writ of error,  the defendant was either brought  into this court or prosecuted the writ in person.'  After  referring to several previous cases, the court proceeded: 'We think it must be considered as settled by the practice in this State, that in proceedings upon  writ of error the personal presence of  the prisoner in court is  not  a technical necessity; that he appears by counsel, errors are assigned by counsel,  and judgment may be pronounced in the defendant's absence.' "

In State vs. Overton (77 N. C, 485),  it appears that the prisoner  objected to any judgment being rendered  against him, because he had been denied his constitutional right of being present in the supreme  court of North Carolina when his case was there argued and determined.  In that case the court said: 

"This objection is founded upon an erroneous  idea of a criminal  trial, and of the power and duty of this court in such a case  brought before it by appeal.  The constitution provides  that a defendant in  a criminal action shall be informed of the accusation against him, and shall have the right  to  confront the accusers  and witnesses with other testimony, and shall hot  be convicted except by the unanimous verdict of a jury of good and lawful men in open court as heretofore used.  That is his trial.  This of course implies that he shall have a right to be present.  If he complains of any error in his trial, the record of the trial  is transmitted to this court.  Here, are no 'accusers/ no 'witnesses,' and no  'jury;' but  upon inspection of the record this court decides whether theVe was error in the trial, and without rendering any judgment, orders its decision to be certified to the court below.   It has never been understood, nor  has  it been the practice that the defendant  shall be present in  this court; nor is he ever 'convicted' here.  To the same effect are State vs. Leah  (90 N. C, 655); State vs. Jacobs  (107 N. C, 772).   (See  also People i Clark, 1 Parker's Criminal Rep., 360, 367.)"

In commenting  on  these  various  decisions of the state courts, the Supreme Court of the United States said in the case of Schwab  vs. Berggren (supra): 

"We are of opinion that the practice prevailing in Illinois, New Jersey  and North Carolina, as shown in the above cases, is that which is pursued, and has always been pursued, in the different States, as well as at common  law.   It is not only consistent with 'due process of law' - giving these words the most liberal interpretation but is founded on a wise public policy. 

"Nor is the question affected by the fact that the  supreme court of Illinois, under express authority conferred by statute,  fixed the time when the  punishment prescribed by the judgment which it affirmed should  be inflicted.   Neither the statute nor due process of law required that the accused should, upon the affirmance of the judgment, be sentenced anew by the trial court to suffer  the punishment of death, or that he should be present when the day was fixed by the appellate court for carrying the original sentence into execution.  The judgment prescribing  that  punishment was not  vacated by the writ of error; only its execution was stayed pending proceedings in the appellate court.   Besides, it is well settled that the time and place of execution are not,  strictly, part of the judgment or sentence, unless made so by statute.  (Holden vs. Minnesota,  137 U. S., 483, and authorities  there cited; 1 Chitty's Crim.  Law, 780, 787; Costley vs. Commonwealth, 118 Mass., 32.)"

In the case of Holden vs. Minnesota (137 U. S., p. 483), the Supreme Court of the United States,  discussing a statute of the State of Minnesota conferring upon the governor of the State the power to designate the day upon which sentences of death imposed  by the courts  shall be executed, said:

"The court sentenced the convict to the punishment prescribed for the crime of murder in the first degree, leaving the precise  day for  inflicting the punishment to be  determined by the governor.  The order designating  the day of execution is,  strictly speaking,  no  part of the  judgment, unless made so by statute.  And the power conferred upon the governor to fix the time of infliction is no more arbitrary in its nature than the same  power would be, if conferred upon the court.  Whether conferred upon the governor or the court, it is arbitrary in no other sense than every power is arbitrary that depends upon the discretion of the tribunal or the person authorized to exercise it.  It may be also observed that  at common  law the sentence of death was generally silent as to the precise day of execution.   (Atkinson vs. The King, 3  Bro. P. C.  (2d ed.),  517,  529;  Rex vs. Rogers, 3 Burrow, 1809, 1812; Rex vs. Doyle, 1 Leach (4th ed.), 67;  Cuthcart vs.  Commonwealth,  37  Penn. St., 108, 115; Costley vs. Commonwealth, Commonwealth vs. Costley, 118 Mass., 1,  35.)"

In the case of State vs. Haddox  (40 S.  E.  Rep. (W. Va.), 387) it was held, in the language of the syllabus - 

"1. If a prisoner pending  a sentence of death obtain a writ of error to this  court, and thereby delay the execution of such sentence until the  time fixed  therefor has passed, and  the judgment is afterwards affirmed, it is the legal ministerial duty of the trial court, without requiring  the prisoner to  be again  brought before it, to  enter an  order fixing a further time for the  execution of such sentence. 

"2. After  a sentence  of  death has  been  passed  upon a prisoner, his trial is at an end, and he has no right to be present, and there is no necessity for his presence, at the further ministerial  steps  necessary to  be taken to carry into execution such sentence.  The final denouncement alone requires his presence."

In the body of the opinion in this case it is said that - 

"In Ex Parte Howard  (17  N.  H., 548),  it is said that if, from any cause,  'the time prescribed for execution  has passed, the court  must make a new order, if no other  disposition has been made of the case Nor is the presence of the prisoner necessary or required when such order is made.   He has had his trial, been convicted, and sentenced to death.  All that remains to be done is to fix the time and carry the execution  of  the sentence into effect. Whether  that time shall be short or long, on Monday or Friday, on the  first or  thirteenth of the  month, it is  for the law and  the trial court to fix; and, having forfeited his life by his criminal conduct, he is  permitted no voice in the matter.  It has nothing to do with the trial.   He is as though dead, in so far as his legal rights are concerned, for his own conduct has destroyed them all.  It is probably  better for his peace of mind if he know  not  the day of his death, that it  come upon him suddenly, after the law of nature, which  blinds the eyes of the doomed, so that on the  very  verge of  the grave their hearts  are buoyant with the anticipation, of long life and unnumbered days.  Sometimes  death had better come as  a thief in  the night, than  as  a  torturing savage  in  the  noonday sun. After sentence is affirmed, the law gives him no more right to be present when  the day for  execution  is fixed, than to be present when  the warden selects the rope for  the noose, the lumber for  the scaffold,  or  the  coffin for  his remains,  These arrangements are purely ministerial.  His presence is not  needed.  He is civilly dead.   (Fielden  vs. People, 128 111., 595, 21  N. E., 584, affirmed in 143 U. S., 452, 12 Sup. Ct., 528, 36 L. Ed., 224.)   The conclusion of the whole matter is that the trial court,  when the day fixed by it for execution has passed,  as soon as convenient after the judgment and sentence has been affirmed by this court by its order entered of record, without requiring the prisoner  to be brought before it, should fix a further  day for the execution of its sentence, and  certify the same to the warden of the penitentiary."

We think that upon the authority and the reasoning of the foregoing citations there can be no question that the language of the Philippine Bill of Rights in which it secures to the accused the right to be heard by himself and counsel in all criminal prosecutions, and the language  of General Orders, No. 58,  which secures to the accused the right "at the trial" to be present in person and by counsel at every stage of the proceedings, and specifically "at the time of pronouncing judgment," must be understood to be limited to the proceedings in the trial court, that  13 to say the Court of First Instance, and to extend only  to the  actual trial therein, and not to appellate proceedings or to proceedings subsequent to the entry of final judgment looking merely to the execution of the sentence.

But it is contended that the proceedings in the Supreme Court of the Philippines  are differentiated from the  proceedings in the courts of last resort wherein these opinions were  rendered, because while in  those courts no new  sentence is imposed upon appeal, in the Supreme Court of the Philippines, in a case such as that at bar, the judgment in the court below is reversed, a new trial is  had upon  the record, and an original judgment is rendered convicting the defendant and sentencing him to a higher penalty than that imposed in the court below.  This  is true, but it does not justify the conclusion that the language used in the Philippine Bill of  Rights and in General Orders, No. 58, is to be given a different meaning from the settled and well known meaning, sanctioned  by judicial decision which  was given to substantially similar language in general use at the time when  those laws were enacted.  (Kepner vs. United States, 195 U. S., 100.)[1]  Moreover, as we have  said already, an examination of the language used clearly indicates  that it       was intended to apply only to the proceedings in the Court of First Instance in the course of the trial.

In the case of Trono vs. United States (199 U. S., 521),[1] wherein it was held that in reversing the lower court and itself convicting the accused on  appeal and imposing a higher penalty than that imposed in the lower court, the Supreme Court of the Philippine  Islands acted within its powers and in  ordinary procedure  in  the  courts of that country under the Act of July 1,1902, the Supreme Court of the United States said: 

"It is urged, however, that he has no power to waive such a right,  and the case of Hopt vs, Utah (110 U. S., 574) is cited as authority for that view.  We  do not so regard it. This court held in that case that in  the Territory of Utah the accused was bound, by provisions of the Utah statute, to be present at all times during the trial, and that it was not within the power of the accused or his  counsel to dispense with such statutory  requirement.  But  on an appeal from a judgment of this nature there must be a waiver to some extent on the part of the accused when he appeals from such judgment."

It is very clear therefore, upon the authority of this decision, that even if  it were granted that the language of the statutes would seem to secure to the accused the right to be present when he is retried in the Supreme Court upon the record, nevertheless he waives any such right when he comes before this court by way of appeal from a judgment entered in the Court of First Instance.

But the  truth is, as we have already indicated, that an examination of  the language  and  the context of the provisions of law securing to an  accused person in this jurisdiction the right to be present "in all criminal prosecutions" and specifically at the time when the judgment is entered, quite clearly discloses that they were not intended to have any application, and that they have no application to the proceedings in  this court on appeal nor to the  entry and promulgation of our judgments.  Furthermore, the reasons which have been  assigned  for the original  grant of the right of the accused to be present in all criminal prosecutions are not  applicable to the proceedings in this court.   In Fielden vs. The People (supra), the court in discussing these reasons says: 

"The common law required, when any  corporal punishment was to be inflicted on the defendant, that he should be personally present before the court at the time of pronouncing the sentence. (1  Chitty's Crim. Law (5th Am. ed), 693, 696.)  Reasons given for this are, that the defendant may be identified by the court as the real party adjudged to be punished  (Holt, 399);  that the defendant may have a chance to plead a pardon  (3 More, 265); that he may have a chance to plead or move in arrest of judgment (King vs. Speke, 3 Salk., 358); that he  may have an opportunity to say what he can say why judgment should not be given against him (2 Hale's Pleas of the Crown, 401, 402); and that the example  of the defendants, who have been guilty of misdemeanors of a gross and public kind, being brought up for the animadversion of the court and the open denunciation of punishment, may tend to deter others from the com- mission of similar offenses (Chitty's Crim. Law (5th ed.), 693, 696).  It is manifest that none  of these can apply to this court, because, first, it acts and decides only upon the record made in the court below.  It can therefore have nothing to do with the question  of the identity of the party whom the sheriff shall have in his  custody for punishment.  Nor can it entertain a motion in arrest, or a plea of pardon. And since its opinion is prepared and written out and filed with the clerk without being read from the bench, there is, when judgment of affirmance is given, no animadversion and open denunciation of punishment which could benefit bystanders. If the present plaintiffs in  error and their counsel had been actually present in court when the judgment of affirmance, here, was entered, the law allowed them to then say or do nothing which, by  any possibility, could  have benefitted plaintiffs in error.   They were, after judgment was entered, entitled only to move for a rehearing - and this could only be done on printed petition; but thirty days were allowed in which to prepare it (93 111., 11, rule 43).  Undoubtedly, if plaintiffs  in  error  or  their  counsel had been  actually present in court when the decision was announced, they would then have known what the decision was;  but that fact was equally well made known to them  by  notice from the clerk - in ample time to avail of  their right to file a petition for rehearing.  And if, indeed,  without any fault of theirs, more time would have been needed within which to prepare the petition for rehearing, it was  within  the recognized practice of this court to have  extended the time for that purpose beyond the thirty days.  But no claim is here made that plaintiffs in error Were not informed of  the decision in the case in  time to file a petition for rehearing. They did not seek to  avail of that right, but voluntarily waived it, and prosecuted a writ of error upon the record from the Supreme Court of the United States, and it was not until  after that was decided adversely to them, that they discovered the claimed error in the record of which amendment is now sought. 

"In  The People vs. Clark  (1  Park.  Crim. R., 360),  the supreme court of New York, at general term, held, that on a writ of error brought to reverse a judgment  in a capital case,  the personal attendance of the defendant on the  argument or at the decision in the appellate court is not necessary to give  such  court jurisdiction.   And  there was like ruling in Donnelly vs. The  State (2 Dutch., 468).  See, also> in principle, to like effect, Bales vs. The State (18 Mo., 318), and Commonwealth vs. Costello  (121 Mas., 371)."

The comment of the supreme court of Illinois just  set forth is substantially applicable in the case at bar,  and  the reasoning in  this regard is in no wise affected  by the fact that in cases  such as that at bar, the Supreme Court of  the Philippines, after reversing the judgment of the trial court proceeds  to retry the accused on the record and to convict and  sentence him if the  evidence of record conclusively establishes his guilt of the crime with which he is charged in the complaint or information.

The Philippine Supreme Court, even when it retries the case, acts and decides only upon the record made up in the court below.  The judgments in criminal cases are never entered by the clerk until a sufficient time has elapsed after the order directing the  entry of judgment has been  filed and after notice thereof  has been forwarded to the counsel for the accused and the Government to give to counsel full opportunity to move for a  rehearing, or to  submit any reason which  he may have for objecting to the final entry of the judgment by the^  clerk.  We are unable to perceive any useful end which would be  attained by bringing the accused himself before this court in person, during the proceedings on appeal, or at the time of the entry and promulgation of the judgment.  We do not believe that it was the intention of  the  lawmaker to  burden  the proceedings  in criminal cases with an utterly useless formality, for there is nothing which the accused himself can do  in  his  own behalf if he be present during the proceedings in this court on appeal, which cannot be done as effectively by his counsel.

If the appellant is entitled to be present in this court throughout the proceedings on appeal in capital cases he is equally entitled, on principle, to be present  in all cases wherein he is charged  with a  felony.  We are satisfied however not only that the various statutes organizing this court and providing for  the trial of appealed cases do not contemplate that the appellant  in criminal  cases will be personally  present coring  the proceedings on  appeal, but that they contemplate that he will not be present; and it has been the uniform practice of this court from its organization to the present time to hear and decide appeals  in criminal cases wherein the accused is represented by counsel in the absence of the accused.  Thus in the early case  of U. S. vs. Lewis (2 Phil. Rep., 193), we held that -

"Proceedings on appeal in the Supreme Court will not be stayed in a criminal case on account of the absence of the accused, as his presence is not necessary at the hearing."

Although it should not be necessary to do so, nevertheless, in conclusion, and to avoid misunderstanding,  we repeat  that  the "rendering," "pronouncing," or  "legal promulgation"  of our judgments  (whichever of those terms may be employed  to  designate  the act), takes place when the clerk of this court enters judgment in accordance with the order of the court, and that when judgment is thus entered it is "legally promulgated," and all the parties to the appeal are bound to take notice of the action of the court, although as a, matter of convenience the clerk invariably serves notice on the various counsel of record inviting their  attention to the fact that the judgment  has  been entered.  The  trial courts have nothing to do with the "rendering," "pronouncing," or  "legal promulgation" of our judgments, the duty of those courts in respect to  our judgments being merely to see that they are duly executed when in their nature the intervention of the Court of First Instance is necessary to that end. We find no error  in the proceedings  had in the Court of First Instance of Pampanga looking to the execution of the sentence imposed upon  the appellant, and without stopping to inquire whether counsel for the accused was entitled to bring these orders and proceedings before us for  review at this time, a point which was not raised or discussed by counsel,  we affirm the orders entered in the  lower court from which this appeal was taken.   So ordered.

Arellano, C. J., Torres,  Mapa, Johnson,  and  Trent, JJ., concur.
 


[1] 11 Phil. Rep., 669.

[1] 11 Phil. Rep., 726.

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