The Lawyers Journal

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Part of The Lawyers Journal

Title: The Lawyers Journal
Issue Date: Volume XXVIII (Issue No. 12) December 31, 1963
Year: 1963
Language: English
Rights
Abstract: THE LAWYERS JOURNAL is published monthly by Hon. Vicente J. Francisco, former senator and delegate to the Constitutional Convention, practising attorney and president of the Francisco College (formerly Francisco Law School).
extracted text: ]Ju., J VOLUME XXVIII V lGENTE J. l'ltANCI::>CO Kdit.,. umJ Puhli11hn KICAlWO J. l'RANCISCO As11i11lant Editor VlCTOlt 0. l>'llANCISCO Jl1ui'ft1JRll Mn:nllQlr BENJAMIN M. TONGOL A1111t. Busine:rn i\lauaycr Ui~,. J.AWY.l!:Ul:S JUUUNAl. 111 pu J1l1hetl 111u11lhly l1y Hon. Vi· c lil J. l"r1111c111co, Jor111er sen~tgr uud ddcgute lo the Con~ti tul1u11ul Couvcul.iou, 1Jn1.cli11111g 11.ttorney uud p1·e9idenl. of thu F'nrnciscu College (formurly l•'ra11ci11co l~uw School.) SU.li::iC..:ltll'TJON AND AUVEU1'J81Nli HA'1'1~8: 8ull11cri11tion. 111 the l'hili1111i1U!ll-l':W.UU for Olltl JClll'j 1"10.UO for Ii 11Lolllb11; P2.UU pu co11y. 111 the United 8talt!11 a11tl !01cig11 t~ountriu UO.UO for olltl year; $10.0U fo1· ti mo11Lh11; $::!.00 i1er copy. AdverLisiug: l•'ull jlUge-1'105.00; Half 1mge-Pti6.0U; Ollt!·!ourth page-1'4U,OO; Oue-eii;:hlh imice35.00; One-sixteenth pugeP25.00; lluclc Issues: In the Philippines-P25.00 -· t we he isAWYE'.R'S 1? URN AL . MANILA, PHILIPPINES DECEMBER 31, 1963 NUMBER 12 EDITORIAL' A FEARLESS AND INDEPENDENT SUPREME COURT ---·------------ .i53 CHRISTMAS MESSAGES' Emmanuel Pelaez, Vice-Pres. of the Phil. Roberto Concepcion, Associate Justice, Supreme Court Conrado V. Sanchez, Associate Justice, Court of Appeals Mariano Nable, Presiding Judge, Court of Tax Appeals Salvador Marino, Secretary of Justice Jesus Morfe, Executive Judge. Manila Court of First Instance Lourdes San Diego, Judge of the Court of First Instance of Rizal, Quezon Oty Branch . . ... ···············-··-· _ ........• 355 . 355 . 355 ..... ··. 355 ..... 356 356 356 Jose Bautista, Presiding iJudge, Court of Industrial Relations --···-··· 356 THE PHYSICIAN'S ROLE IN' THE ADMINISTRATION OF JUSTICE - Justice Felix Bautistr.. ~gelo . . ................. __ .................. 357 SET~\i~~NJA~fo~A!0fN~i~\LlsTTE~J~e:~0s~;J~,~;!s~FFE.~~:~.... 359 SUPREME COURT DECISIONS: Libames vs. Hon. Executive Secretary, ct al - Justice Concepcion ____ 364 People vs. Curlano, et al. - Justice Barrer!! 368 REPUBLIC ACTS Rep. Act. No. 3600 Rep. Act No. 3677 1963 BAR EXAMINATION QUESTIONS (Continuation) . -·-·-·- 377 ·········-····-, 377 R e m e d i a l L a w .. . __ ........... -·-·· ~ ... ··--········--·-······--·--···········-·-· 380 A NOVEL CASE sues i PJ.00-per issue. In the . _ United States a11d foreign couutnes- -$2.,.00-twelve sues; S3.00-per iHue. Ellte!"ed ae !!econci ciass maii matter at the Post Office. * * * BUSINESS OFFICE: P..-50l! S.unan:ilo Bldg. 374 F.scolta. Manila - Tel. No. 4-13-!l! STRICTLY FOR FORENSIC MEN VELA YO 'S DIGEST An Intelligent person needs Accurate referral books ... of Philippine Supreme Court and Court of Appeals DECISIONS-1942-1960 I' The Digest is a new pa.th lo knowledge. " A new System that operates in the field of of jus~lce much in the same wo.y the Dictionary does ln th~ field of words or the Encyclopaedia in the field of facts. Paqi~ .. 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A FEARLESS AND INDEPENDENT SUPREME COURT CHRISTMAS is with us again with its spirit of joy, its wish of goodwill, its hope fcrr continuing peace and 'J1TOS'Pe:rity. We hear Christmas songs, we see Christmas lights, we note people exchanging the greetings of the s~on. But the natural spontaneity of Yuletide is · not there .because the people continue to suffer from u.nemp1oiiment, soaring commodity prices, bigger budgets, higher tax:es, and needless, excessive government spendi!1f1. Two years of Macapa9al administration have only brought two years of economic upheavals and difficulties. In the~e two years, there has been only one shining, redeeming feature like a beacon piercing the night~the com·a.ge of our Judiciary. To specify, our Supreme Court has decided delicate, fundamental contToversies with frank1)2ss, wisdom, and great independence of mind. Often it has decided against Presidential wish, opinion and action. Ren• dered without fear ' fir favor, its resolutiofis have been warmly received afld applauded by the Bar and by the people whose trust and confidence in our Judiciary is implicit and unshaken. f'• L~t us review some ~ these far-reaching decisions anrl precedents. 1. The first is the case of Dominador Aytona vs. A~ dres Castillo (G.R. No. L-19137, Jan. 20, 1962) which is a wami11§-'"119'ai'RBt abuse of Presidential prerogatives. On. Dee. 29, 1961, along with 350 odd appointments he had made, President Garcia appointed Aytona. as Governor of the Central Bank. Branding those as "midnight appointments", newly-sworn in President Macapagal cancelled th~ appointments, including Aytona.•s, on Dec. 31, and appointed Castillo instead cm Jan. 1, 1962. Aytona challenged Castill"'".~ right as Central Bank governor. The Supreme Court ruled that such midnight appoinr.ments, including Aytona's, was an abuse of Presidervtiat prerogatives by filling all -vacant positions so as to deprive the new Macapagal administr!Ztion of making its own appointments. Legally, the eipiration of the term of the Fourth Congress, ·which also ended the life of the Cammission on Appointments, brought about the lapse and ineffectuality of such appointments. Aytona's appointment had not been confirmed by the Commission OT1J Appointments of the · Fourth Congress, hence it ceased, lapsed and expired on Dec. 30, 1961. Castillo was declared the rightful Central Bank governor. 2. The high tribunal also served notice' that the Commission on Appointments is an independent. ... body whose membership cannot be changed with every change .of political parties, in the House particula_rly, as to affect conffrmations of appointments by the Commission. In the case of Ca1'ws Cunanan vs. Jorge Tan, Ji-. (G.R. No. L-U721, May 10, 1962), Cunanan was appointed by President Ga,-. cia successively in 1961 first a~ act-ing deputy administra,.. tor, then as deputy administrator of the Reforestation .Admini8tration. On April 9, 1962, six senato1·s and seven con.. gressmen, purporting as the Commission OT1J Appointments, rejected Cuna.nan's· .ad interim appointment; this resulted in President Macapagal naming Jorge Tan, Jr., in Cunanan's stead. The case involved changes in membership of the Commission that acted on Cunanan's appointment. A Com. mission was validly constituted when Congress opened. on Jan. 22, 1962; however, the House effected a new political lineup on March 21, 1962, hence House membership in the Commission was also revised. The decision is thcit: the Commission is independent of Congress because its powe1·, emanate from the Constitution; so, arvy change in the House does not suffice to authorize a reorganization of House membership in the Commission. The rejection of Cuna-nan's appointment was declared null a~ void. 3. Ag~inst the present Administration, the Supreme Court prohibited indefinite, prejudicial suspensions of public servants. In Paulino Garcia vs. Juan Salcedo, Jr. (GR No. L-19748, Sept. 13, 1962), Dr. Garcia was the lawf11l chairman of the National Science Development Board (NSDB) since July 15, 1958. When the Macapagal administratipn took over, he was asked to r~sign,· then the President designated Dr. Salcedo, Jr. as acti~g NSDB chairman on Feb. 17, 1962; and for refusing to resign, Dr. Garcia was charged with electioneering and placed under preventive suspension on Feb. 18. According to the Cipil Service Law, preventive suspension lasts only 60 days; so, when. it expired on April 19, 1962 and his suspension was not lifted, Dr. Garcia brought his case to the Supreme Court. Decision: the 60-. day P1"Wentive suspension applies to both classified and unclassified civil service. To suspend Dr. Garcia indefinitely until final determination of administrative charges against him would nullify the fixity of his tenure ( 6 years) and render useless the condition ( 60-day preventive suspension) imposed by the Civil Service Law. Dr. Garcia. was immediately reinstated; subsequently, charges against him~ were jou:rll), untrue, hence dropped. !AWYBRS IOUll*L Page _353 4. Freedom of speech and the right to be heard fou'l.d the Armed Forces upon authority of Hecha1UY1Ja. He claimed new vindication in Eliseo Lemi vs. Public Works Sec. Bri- it was authorized by President Macapagal as com;mangido Valencia, et al. (GR No. L-20768, Feb. 28, 1963). Lemi, der-in-chief, for "military stockpile purpose&." holder of a radio broadcasting franchise, operated his Tadio station DZQR, dutifully paid his operation licens:e fees annually down to May 23, 1963. Then on Jan. 11, 1963, the Radio Control Offi.ce personnel armed with a court search warrant, interrupted DZQR's program, seized the station'.~ tran.miitter as not the One authorized for use, and thereb'lj' halted the station's broadcasting operations. The seizure, sai.d the high tribunal, amounted to closure of the station, hence it was illegal. No radio station license, according to Sec. 3 of. the Radio Control Act, Shall be. revoked without 9iving the li.censee a hearing. Respondents were ordered to return the transmitter to Lemi and to allow his station to continue broadcasting: 5. The Supreme Court sided with the Administration in the case of Genaro Visarra vs. Cesar Miraflor (GR No. .L-20508, May 16, 1963). Former President Garcia appointed Visarra as member of the Commission on Elections on May 12, 1960; but President Macapagal named Mira.flor i'i November, 1962 on aswmption that Visarra.'s term had expired in June, 1962. The case involved tenure succession, with Visarra serving only the unexpired balance Qf Commissioner Gaudencio Garcia's fixed term which expired on June 20; 1962. 6. The Supreme Court also differentiated proprietary and governmental functions in relation to declaration of strikes in the case of Associated Workers Union vs. Burea1t of Customs as arrastre operator. The tribunal ruled that in impliedly authorizi'W government employees engaged in proprietariJ functions to ioin. labor organizations wh'ich impose the obligations to strike or to ;oin in strike, th.? Government has pla!:ed itself under the provisions of the industrial Peace Act insofar as employees are conctfrn8d. It then has consented to be sued; furthermore, statutor4 provisions authorizing the Bureau of Customs to grant by contract to any private party the right to render arrastTi:? servi.ces definitely· imply that such service are deemed by Congress to be proprietary or non~overnmental function. 7. The high tribunal dealt the Administration a heavy blow when it declared as illegal the recent foreigtwic'!! importatioru in deciding the case of Ramon A. Gonzales vs. Secretary Rufino Hechanova (GR No. L,21897, Oct. 22, 1963). JZOilo Tice planter Gonzales last Sept. 25, 1963 sought to stop the importation of 67,000 tons of fOTeign rice by But the importation was rightfully declared illegal. Under Rep. Acta Nos. 2207 and 3452, it is unkwful for any person, association, COTpOT~tion or government agency-the Armed Forces is a government agency-to import rice and corn into this country. Buffer stocks are only to be held as national reserve to meet the occurrence of calamities or emergencies. There were non~ s-µ.ch at the time of importation. Under Commompealth Act No. 1, the Government may obtain rnsources for national defense only ''during national mobilization." There was no such mobilization. Under Comm. Act No. 136 also, requisitions and purchases must be directed to domestic entities, rwt fareign ones; there must be pr~ference also for materials produced in the Philippines or U.S. This was not done in the cas:? of rice importation. Rep. ·Act 3452 also speC.i/i'~S ·that any rice importation is to be done by· priv~t~ .. Parti.es; it prohibits the Government from doing sp. . 8. The most recent case is that of Lucio Libarnes v.;, Executive Secretary et. al. (GR No. L-21505, Oct. 25, 1963) concerning an attempt to tePminate illegally the service:? of a civil sen..•ice employee. Libarnes was police chi~ 'Jf · Zamboanga City since March 11, 1959. But on May 'i6,.' 1963, President Macapagal named defendant Miguel Apostol as acting Zamboanga City police chief, and Libarn.es Was asked to give up his office in favor of Apostol. He· refused. The tribunal, siding with Libarnes, deczeired th~t h~ is u member of the civil service, hence he cannot be removed or suspended except for cause. The attempt to terminat~ his services constitutes illegal removal from office .. THESE are Supreme Court decisions of lasting and far· reaching value and significance. They affect na:tional poli· cies, the very life of the Government, and the sacred tenure of public officials an.d employees. It is to the honor and prestige of our Judiciary that it renders decision~ without influence, fear or favor. The Executive may abuse its own powers, Congress may commit errors, but the people can rely on the Supreme Court as their in:ipregrrrab!e constitutional garrison of last resort for redress, protection. and ;ustice. Well may this Christmas be a happy, merry one for us all as we find iudicial integrity and courage in the interest of national w~lfare! Page 354 UWYERS JOURNAL December 31, 1963 ,CHRISTMAS MESSAGES I consider it my great pride and pleasure to wi8h my colleagues in the law profession a most blessed Christmas and a ~008 New Year. I also wish to thank the Editors of the Lawyer's Journal for giving me thi8 valuable opportunity to ~ my fellow lawyers. Now that we a1-e in that sea.son of the year most cheri8hed by mankind for its spirit of selflessness and love, I wish to :recall with you, my eateemed fellow lawyers, the role of the men of law in our country. Looking at the hiatory of our couftt?'Y, from the beginning of our struggle for political freedom and independence, lawyers have always been at the helm. of our.destiny. The maimtay of our democracy i8 the rule, not of force but of law. Not of the bullet bui the ballot. Not of impul8e but of reaeon. In the executirin and interpretation of the role of law, the government officiaUJ as well as the common citizen necessarily must look to the men in the law profession for guidance and direction. So, in a very real sense, we of the law profession are, in effect, the real cuatodiam of democracy. Vigilance, it was once said, i! the price of liberty. Jt i8 ttp to us, the men of law, to keep the mainstream of our democracy healthy by constant and unabated vigilance over the civil liberties of our people. On. this joyOUll seaaon of love and selfgiving, therefor11, I would like to appeal to your patriotism and love of country. May I ~hort each and everyone of ybu to be your own vigilance committee in safeguarding that precious essense of democracy, the legacy of our fathers .and of the West: the BUPremacy of law over men. On your vigilance may very well hinge the future of our country. EMMANUEL PELAEZ Vice-President of the Philippines The message of Christmas-Peace to Men of Goodwill-has a particular significance for the Bench and the Bar. There can be no po8dble peace without goodwill among men. No such goodwill ia, however, conceivable without a minimum modicum of contentment, which cannot exist unless human rights and fundamental freedoms are recognized, as well 08 respected and ob8e1'\:led. Upon the other hand, the recognition of those rights and freedom.a, and the respect and observance thereof must be 'JJTO'moted 'Within the Rule of Law, for adherence thereto is a condition "sine qua non" to the very e~stence of every organized ' society and the same may not, without paving the way to its own dissolution, disregard the law, thereby jeopardizing the cause of peace, which i8 e&Bential to the well-being of all. Last, but not least, the Rule of Law cannot fully achieve its objectives without the earnest and full cooperation of the -peaple. TheTe must be a climate propitious to the effective operation of the law, which the Bench and the Bar may help create by settling disputes ,or solving legal problems in auch a way :l8 to impart the conviction that adherence to law and to its Peaceful processes is the best means to promote the welfare of all, and that, to this end, there must be tolerance and understanding and we mu.st guard ourselves against the evils of the passion, the prejudices, the hate and the bigotry that ha8 brought .so much sorrow to the world. Every Chriatmas is thm a reminder to the Benck and the Bar that their main role in the contea:t of society is that of peacemakeTs, which they are challenged to play to the best l'Jf their ability. In conveying my greetings and best wishes to my brethren in the judiciary and in the legal profession, I wish, also, to exyress the earnest hope that each one will meet the challenge fittingly. ROBERTO CONCEPCION Associate Justice Supreme Court bi Christmas, the divine tidings is distilled into one word: Peace. So. it has been since Nativity was heralded with the bZiblical message "Glory be to God in the highest and on earth peace to m~ of gaodwill." Triteness could have detracted s~ much from the import of this expreasion. Yet the centuriu through which it had been echoed and reechoed have not impairE:d its timeliness and validity. Today, as evBT, true and lasting peace still is an elusive ideal and brotherhood among men a cherished dream. It is, 'P6f"haps, little realized that we of the Bench and the Bar may al8o lend a hand to the attainment, limited though it is, of the noble aim-Peace. We are privy, by virtue of ou.r office and FO/ession, to the never ending contests in which parties vie for the advancement of their interests. Rivalries inmiitably generate passion, if not animosity and iU-will, amongt1t the participants. So it is that the avoidance of occasions or mf.sunderstandings and conflicts and the expeditious and just resolution of disputes-which are well within attr capacity to achieve-are amongst the seeds from which peace and goodwill could be fostered. They are, indeed, the constant desideratum of our every effort and endeav1'r. Propitio'U8 is it now, the advent of the Yuletide season, for a rededication to this goal. May the SJJ!.rit that pervades these Holidays abide with us all throughout the coming New Year. CONRADO V, SANCHEZ Associate Justice Court of Appeal8 Never in the history of our country da social problems make the life of an individual so difficult. And Christmas spirit undoubtedly becomes a sort of an oaais. In this spirit, we shoul.d turn our eyes towards our Creator for guidance and more or less permanent remedies. At least, during these day11, let m forget our problems and enjoy the season. Merry Christmas and a H°'1YfJ1/ New Year to all. Deceinber 31, 1963 LAWYERS JOURNAL MARIANO NABLE Presiding Judge OC>Urt o'f T""' AP11eal8 Page 355 ·. Through the years, Christmaa greetings and.measages QJ!.16 ~come atereo~.yped . .. and commercioUzed. The message of Chri8tma8 is not any less valid or true becauae of these---but they have a: tehdenCy to be, and to sound, hoUow, few tke Spirit of the Christ is not in them. The greetings are said only because they are in vogue, in season---as substitutes for "hello"' and ugoodbye"; and the ob;ect of these gTeetings are conditioned to react accordingly. For my pa.rt, I believe in the promise of Christmas--:tlie promise that the Coming of Christ was the beginning of the fulfillment of the prophecy at Eden; that even as God sent Man out of Paradise, He promised Man's redemption through Christ. I believe that the true spirit of Chriatmas cannot be, and is not, turned on at the start of the Beason and shut-off at the snd of the Year. 1 belieUe, imitead, that Christmas time is the period during which to rekindle and to strengthen maew that 8'J)irit of Love, of Charity, of Hope, and of Joy, that comes from a genuine belief in Christ. i believe, therefore, that Christmas is the time for the Brotherhood of the Bar to rededicate ourselves to our Oath: to seek, above all, Justice for every man; to champion always the cause of truth; and to see that the· innocent shall not be condemtied. And this is the time for those to whom we have entrusted the powers of government to remember and tO ponder upon the old message from. the Bible that Juatice to be Just should be tempered with Mercy. SALVADOR L. JllARIRO Secretary of J\tStice ·As ive usher in the Christmas Season this year we are reminded of the immortal message of the heavenly hosts in the night of the birth of Christ: "Glory to God in the highest, and on earth peace, good will towards men" (Luke 2:14). This should remind us that the goal of justice is . peace and good will among men, for the attainment of which Christianity was founded, which goal tve seek to achieve in the fTfie world through peaceful settlement of individual or group d~ putes by bloodless legal' combats in our courts. Indeed, the motto of the Philippine Department of Justice, as imcribed on its seal, is: JVB'l'ITIAE PAX OPVS" which, freely translated, means: "The Work of Justice is- Peace." But the judicial process can end in peace and good wi!l between litigants only if their disputes be ventilated before judge~ who are honest, capable, and ded1cated to tlie search for truth in every litigation, assisted by ethical lawyers whQ p1'68ent the cases of their clients capably and firmly, but with fairness and gentlemanliness ·towards adversaries and judges alike; bearing in mind always that decisions obtained through unethical practices and! or rendered by judges who were corropted by polit1cal, financial, or other extraneous influences,. cartnot ho'fJ8 to create either peace in the minds of the l68ing parties, or respect in the hearts of the favored agents of judicial coTruption. With these in mind, my u>ish is that the coming Chtistm.as bless all of us with the spirit of peace and good will, and 'the coming ·year shower both riches and honor on us all. JESUS P. MORFE Executive Judge Manila Court of First In.stance It has often occurred to me that the coming of Chri8Mias. once a year 48~~- a divine.-..flllln'"~··to fill a-crying need in man's altogether mad pursuit for material well-being the rest of the year. Come ChriBttnaa we all suddenly remember to take stock of the fortunes that the Little Child came all t1ie way down to earth to teach us, by ·ea:aJted word and sublime deed, to live by. Suddenly we pause from thC break-neck speed of wo1·ldly chores to evaluate, to make inventory, and pirkalps to hurriedly fntBT last-minute corrective and very often exculpatory adjustments before closing the balance Bheet of ou1· year's book of deeds. We pause to ask ourselves these questions: What have 1ve contributed towards making O'Ur homes happier, our communities safer and gladde1·, the w01·ld f1·eer? Christmas underscores for u.s the truth that man does not live by b1·ead alone. And in this age of bitter ideological stri.f6 thanks to which the world is jolted into the realization that there is, indeed, nothing more precious than human freedom from intfllectual., moral and social bondage, Christmas should come as a welcome day of truce for all men and women of good will - a day dedicated to an examination in retroapect of those opportunities they let go which could havf! been so eaaily and so effortlessly employed to right a wrong, to gladden a sad heart, to lessen another's bu1·den, to p1·omote a worthy caUBe, to help eradicate an evil. And in so doing, look forward in antici'J)ation to acomplishing in the coming year that which was left undone this and the past years, to resolving that the coming yea1· will be as fruitful in spfritual wealth as all of u.s so carefully resolve to make in material riches. To the readers of the Lawyers' Journal in particular, I wish to extend the prayer and the hope that in the coming year you will not by-pass any chance that the profession will surely afford you to contribute your share towards humanizing the law and the legal practices with the end in view of attaining, at least in your very own spheres of contacts and influence, a truly free, just and compassionate world. So that come nert Christmas, when once again you linger awhile on matters not of thia rude earth and look over your Book of Life you may, like the Angel that wrote thereon, enter a satisfactory judgment. May the Child Jesus b"less you and all of your loved ono,s, and may His guUling hand be with you in all your enterpri.. ses throughout the coming year. • My message to the lawyers is this: LOURDES P. SAN DIEGO Judge Court of First Instance Quezon City Branch The lawyers' duty is not to prove the guilty innocent but to help the Court arrive at the truth. A true lawyer '8 one who p"laces troth and service in the first place and the emoluments of the profession in the second place only. That is, Service, TTUth and Justice above all. But, Justice and Wisdom without Fortitude are useless. Page 356 LAWYERS JOURNAL JOSE s: BAUTISTA Presiding Judge Court of ln4ustrial Re~iona December. 31, ~96,3 THE PHYSICIAN'S ROLE IN THE ADMINISTRATION OF JUSTICE• By Justice FELIX BAUTISTA ANGELO As a member of our highest tribunal it is my sworn duty to help protect the llfe, liberty and property of the people pursuant to ::.. constitutional mandate. Whene\•er any o( your fundamental rights are grossly violated or trampled upon by any individual or public official, you go to the court of justice for redress. You repose on us your faith a.nd tmst that justlcE" be dispensed with justly and promptly regardless of your stations in llfe, religious beliefs, or politiee;I affiliations. In short, believing that we are the guarcJ.ians of justice you put your fate into our hands. That situation, gentlemen, is Dow reversed temporurily for durl.i~ the rendition of this program it is my tum to place my life. into your hands. . I wish to congratulate you for organizing this association which I reckon is aimed ~t promoting certain civic and cultural objecthes. I believe in organizatlor.. Organization is 'the order of the day. You cannot nowadays accomplish anything of value without the collective efforts of those interested in a common objective. The era of isolationism is a thing of the pist. This has given rise to the common saying, "In union there is strength.'' I wish, therefore, to commend you for organizing "The Catholic Physicians Guild'' because only in that way you can fully accomplish the ideal aims and purposes of the profession to which you belong. Your profession should not be looked upon merely t.s a means to make a living. It is not a mere trade established for profit or personal enrichment. It has its moral aspect fhat should not be overlooked 0 but should weigh heavily on the conscience of the physician. Important as he is in the healthy growth of thl! hwnan specie, a physician should exlend his h..::lping hand to the,. needy·:who may be found in distress. He should not begrudge hL~ help lo them simply because they arc in penury or L·annot give him reward for his services. There is greater satisfaction coming from service rendered in charity than from one with monetary consideration. Your professon is humanitarian and should be undertaken haVing always in mind the general welfare of society. The functions of a physician o;,.re not merely confined to rendering medical aid 10' a person suffering from physical ailment. While this may be the main purpose of your profession, the role a physician ls called upon to play in the community is of much wider scope. He is called upon not only to cure sick people and alleviate thelr sufferings but dso to help in every way in promoting the moral i:.nd social welfare of the community. He cannot fold his anns and remain indifferent to the problems that beset the community especially those which affect the health and happiness of the people. He must be alert, assertive and militant in order .to make of his community a decent and healthy place to live in. This is specially so in connection with the mqintenance of peace and order and the solution of the problems affecting the administration of justice. One of the greatest problems that our government is now • $peech . .delivered: .. be{Qre .the. Catholic Physicians Guild of the Philippines on NQvember 17, 1963. confronted rerers to the maintenance of peace and order in our country and this cnn only be achieved if we maintain a successful adminislration of just~ce. This problem is vital and farrei:.ching not only because it affects the life, liberty and property of the individual but also because it transcends to the community and affects the general welfare of the people. In the admil1istration of justice are involved not only judges, fiscals and other members of the bar but- also the physicians - the members of your profession. Many of the cases that are brought to the courts hi:.ve to be threshed out with the indispensable cooperation of the physician. In every case which involves physical injuries, rape, seduction, homicide or murder, the help of a physician is necessary and the role a physician plays is very important, because much, of "the success of the case depends upon the opinion of the physician. A physician, therefore, is an indispensable ally of the court. Without him the court cwinot dispense justice with success and efficiency as demanded by our Constitution. In fact, much of the success of a case in. \·olving a medical problem depends upon the honesty, Integrity and trustworthiness of the members of your profession. The intervention of a physician is specially important in workmen's compensalion cases which involve the claims of injured or deceased employees. Under the fa.w a claim for compensation is compensable only if it can be proven that the injury giving rise to the claim is caused or suHered in the course ot employment or is aggravated as a consequence of the nature of the work performed; and this causal connection between the injury and the employee can only be established ·thru the testimony of a physiclc.n. Invariably, the physician who ~ppears for the claimant testifies in his favor while the physician who appears for the company gives a contrary opinion. Thl.i may appear paradoxical considering that the opinions are rendered in relat~on to the same medicc;.l problem, and yet this phenomenon usually happens. This divei-gence of opinion places the court in a predicament where it has to make use of its own judg_ ment even disregarding the opinions of the physicians. Such a situation is not conducive to the proper administration of justice. This can be avoided if the physician who intervenes should only give an honest i:..nd sincere opinion in an objective manner without regard to the interest of the party he Js representing. Only in this way can he help In promoting the best interest of justice. Your o~anizati~n can do much in doing away with this obnoxious. practice for in the last analysis our common objective is to find out the truth. It is noteworthy to state, however, that the opinion of a physician &s an expert witness is nett conclusive upon the court. He merely acts in an advisory c.apacity in the sense that the com t may draw its own inference from the facts testified to by him and accept or reject the opinion given. But an opinion given by a physician on a matter which does not come within the common knowledge of laymen carries considerable weight and as such must be correct and truthful. Otherwise it becomes deceitful and may lead to a miscarriage of J,ustice. UWYERS J0~.1:1, Page J57 Should a physician be in doubt as to the; niatter plaCed un. ·. ;quenC:es of ;your: dereliction and misbehavior. Like other pro. der his consideration he should so inform the cow-t. The ex.- .f~ssionals, su~h . as l~wyers, nurses and dentists, you may as. pression of such an opinion does not conslitiU.te ·a· ~hameful Con. sume civil and Ci-imlnal liability if you commit gross negligence fession of Ignorance. It is merely a revelation of the l.Ontrover- and misbehavior ti:i the performance of your duties, and. If such sial nature of the case at hand. He should becir 10.' m'lnd. that happens it will inD.rk the end of your career. There is, there. his duty Is to testify to what he knows to be true and not fore a great need on your part to obser\'e the canons of mo. merely to help the court in decl~ing the ·C!UC, T~is would ~Ive rals and ethics that are necessary to enable you to profess your the court sufficient t;.asis to decide· the case acco"rding to its calling with hOnor and with dlgnltr to insure yo~ st.i.ccess. Our best judgment always having in view the"beSt inteR:st of justice. jurisprudence reco"rds some pathetiC cases whicP. involve thC: derellctlon of some physicians ·to the great prejudice of your pro:, Sincerity on the pa.rt of the physician is of utmost import- fession. · ance in the litigation of a case. He shoulc;l not allow himself to Our government has recognized the importance Of your pro:.. sway his conviction simply because of monetary consideration. Cession iri promoting the health of our people when it approved ~:m~1:4::t:~Y ~~:~~e~ntoa~:~:!:~h~h~s P::::ie~~Ya =~~!~~ :°i,~~!1:~u1~~: ~~/::~:~~ ir';:11~~7:e ~~v:~; 'y:t1~~:et!;: from the medical or legal point of view may find that his only ing this step our government came to realize that a vigilant and hope is to set up the defense of insanity. So he comes to a continuous care of our youth ts vital to tum out a healthy and physician for assistance upon the plea that his only salvation robust race. And so it made compulsory the medical clinics in lies in his hands. As unscrupulous physician may submit.him- our rural areas fo"r the be'ne.fit of our ru1·al people who may not ~~~ :a:~tb~~dtl~ri~; :b:~n:t~7sc~;;1i~:=r:~i~~~ti!~cl~ ~i:~:; have the means to employ the services of a physician to minister situation may arise when a litigant desires to recover damages ~~f!~;~~ :~:~:t~e !::~ :~a~~::~o~~~e :.:d~~;d~~~ i~~::.ic::! in connection with some physical Injury he may have suffered the other a source of employment for our physicians, Our gov. ~::~g ~~o~:~r~:~hth':: ~~~:t~~~:Oe~~ ~i~t~~~cl:::~ ~~e '::.. crnment should be congratulated for having approved these mea. ployment of his technical knowledge. A physician should never sures which Indeed meet a Jong-felt need in ow- community. lend himself to giving a seemingly expert testimony to acc'?m· It may be of interest to you to know whether a physicif.I'!. plish this end merely to earn a substantial remuneration know. ·;~~g~~n b.:~~t~!~~~se:h:~:':x~:~:l:~dl~~~~n~n~o s~~ei:t~~ ;:: • :~~;!r!;. d~~sg ~~t~: s~~~: :~:;:tb~njt~st~~~P a:~i~~t!~: ::d fesslon. A case has arisen in this jurisdiction wherein a phy. never to defeat it. sician has engaged in the activities of a dentist upon the claim that his profession also embraces the activities and prerogatives A signlficwt fact that a physician should always remember belonging to the prOfession of a dentist. And so he was lnvesti. is that he Is a physician, and not an advocate. When a physi- gated and prosecuted and in defending himself against · the cian is called to testify in court, either as an ordinary wltnes;; charge he invoked in his f&vor some precedents in the United or as an expert witness, he does not become an advocate; he 1s States wherein a· physician has beeQ. allowed cto -engage in the a physiciG.n and remains a physician. He should not be cop. activities of a dentlBt upon the theory that the profession of a cemed with the outcome of the case except only in so far as physician covers the whole human anatomy and so tt can cm. giving a true and. full testimony and endeavoring to see that brace the treatment of the teeth and of the gums which strictly justice prevails. belongs to the profession of a dentist. Indeed, under the laws A physician has a duty to obey subpoena. A physician when of some states in the United States the profession of a physician subpoenaed may be called as ~ ordinary witness, a professional covers that of a dentist and so he only needs to undergo the ex.. witness, or an expert witness. If, for instance, a physician is aminatlon required for a physician. But in this jurisdlcUon a subpoenaed to testify to something wherein the fact of his be. dfferent situation obtains. The law governing the profession of ing a physician does not enter, he is an ordinary witness; where a physician Is different from the law governing the profession o( he testifies on the subject of medlcine merely becawe he treated a. dentist. These are twO distinct and separate professions and a certain person during a certa.in illness, he testifies as a pro- our laws require that one should pass an examination for each fesslonal or "technical" witness; and where he is asked a ques.. before he can engage in the practice of both professions, and so tion which calls for an opinion evidence, he becomes an expert the accused was convicted for having encroached on the func. witness, for he gives an opinion evidence based on his knowledge tions and prerogatives of a. dentist. I am bringing this matter of medicine. to you so that you may know the llmltations of your profes.. sion and avoid the consequences that such encroachment may Yes, my friends, the judiciary needs your whok-hearted co. heap upon you. ;::a!o~a:~:o;t b:!~~i~a~~n:::ov~d=:~:::;n0: !~::L After liberation, the number of schools of medicine in the ex:rt ~sttem, n~t 11so ~uch for ~ore tkno~edg~ an;~n~~~d ex:~~~~~~;:~::~~: :::~::e::a~~~s:e=:~~i~~eln m~~:. =p~ve: m::~:-0~ pr:u~~~e an:n:~J~g e;;ert :umon;. ~: profession. Statistics show that where before the last world war in this regard, allow me to reiterate again the three things which only two medical colleges were in operation the nwnber substan. a physician should possess to qudify himself as a medical ex. tially Increased thereafter reaching a total of seven in Manila pert: (1) he must be honest and unbiased 1n his testimony; and In the provinces. As of the school year 1962..1963, the over. (2) he must have real expert knowledge of the particular sub. ~!~;;~~~:rinoft;~u:=~e;n:,1~:;:h:!ie~e~~l ~~1:•7!8·in T: ject on which he ls called upon to testify; and (3) he must study number of graduates that every year are turned out has necessa!!:~:=: ~~~:;e ~: ~~sto~~~~~te~~p~:: b~i~:lf a~h~~~ ~~~~~o~:~n~ t:e ~~td::::e~ ~:c:~:~~t:fd:l~~:i:=t ~uto~~ hies on the subject. our population of 28 million we have at present 27/j72 pbysicla.ns, Since your profession deals directly with the health of our male and female, 9,862 dentists, 16,417 pharmacists, and people the law imposes upon you certain duties an~ responsibilities 27,500 lawyers. This shows that there are at present more pby. which you should observe with care, diligence; skill. and ability", slcians than lawyers tn the Philippines. lest you may be· indicted· and ·held accbU.n~ble··for thC conse- (Continued next page) LAWYERS JOURNAL ~eriJ.bel" 31f 'I9M SETTLEMENT OF LABO'R DISPUTES IN INDUSTRIES AFFECTE!D WITH A NATIONAL INTEREST* By JERRE;. S. WIUIAMS Professor of Law, University of Texas SchCJol of Law RECENTLY WIDELY publicized lo.bar disputes reveal a serious need for re-evaluation of collective bargaining and also of the procedures being used for dealing with crltical work stoppages. The initial postulate should be the pr_eservation of the free· collective bargaining system. Yet we must be willing· to admit honestly that the freedom to barga.in cannot be allowed alwal's to prevail. Prolonged strikes in some critical areas cannot be tolerated. Further, we have recently begun to realize that contract settlements without work stoppages in sorqe industries may hr.\.'C such permeating effects on the economy that public concern tor the bargain is inescapable. These considerations make it impossible to define with precision those labor disputes which affect the national interest. There is a broad difference between critical production stoppages and inflationary wo.ge settlements, yet both situations evoke the national interest. In some instances the national- interest in labor disputes will be only generally involved, but tn . others it will be intei;ise and immediately demanding. These "' Here is the winning paper in the 1963 Ross Essay competL tion sponsored by the American Bar Association under a bequest from the late Judge Eskine Mayo Ross. Mr. Wllliams declares that collecti,,·e bargaining must be nurtured and strengthened so that the drastic measures that might be necessary to settle na.. tional-emergency strikes may be kept within narrow bounds. This article is reproduced from the AMERICAN BAR ASSOCIATION JOURNAL Vol. 49, No. 9, Sept., 1963; pp. 862-868. THE PHYSICIAN'S . . . (Conth1ued from page 358) Considering the present trend towards the medical profession which beats by a mile other academic professions, the question m&.y be asked: Is there need of moratorium in the study of medicine in the Philipi:iines? Many will no doubt give an affirmative answer bearing in mind that in this era of science, technology aod industrlaliz&tion there ls more need of technical and scientific men than men of letters, phllosophy, law and medicine. Our country ls endowed ·with rlch natural resources which remo.in untapped and await only the hands of technical men to make them productive, thus contributing to our economic advancement. Technology is the thing we need coupled wth the promotion of vocational courses to give impetus to our economic growth and natural wealth. Dr. Juan Salcedo, President of this Association, who is the Chairman of the National Development Science Board, will bear me out in this imperative need for technicians in our country. But there are many, to be sure, who wlll differ from this way of thinking, for they know that the study of medicine is as essential to society as the food to men. They will argue th.o..t medicine is studied not alone as a modus vivendi but to be useful in society and in the healthy growth of our population. In fact, many study medicine not to engage in private prE.ctice but to make use of it in the service of the government and in the promotion and conservation of the Fillpino race. The truth ts that knowledge of medicine is essential to the individual not only for the protection of his health z.nd of his family but also to advance his social st;;..ture and culture. Weghty reasons, therefore, exist in favor of the continuation of the study of medicine. The question may be asked whether physicians who are en~ differences must guide in the development of solutiolll!I to the problems created by these labor disputes. The first of the two major inquiries in reaching tow.o.rd the solution of problems posed by labor disputes affected with the national interest is to consider the extent to which collective bargaining can serve this function. The more "effective collective bargaining ts, the Jess need there will be for extreme and regimented measures. But the bargaining process wUI not be effective in every case where the public property is deeply concerned about a work stoppage. So the second major Jlne of inquiry must be into additional needed measures where collective bargaining fails adequately to protect the public interest. Collective Bargaining Is . Fundamental, but Stagnant Collective bargaining ho.s been the fundamental national ap.proach to the resolution of economic disputes between emplayees and employer for well over a generation.I Yet the most noteworthy circumstance surrounding our governmental approach to collective bargaining today is that there has been little attempt to hnprove the process since its creation. Governmental p0Ucy-mo.king has constantly been concerned with balancing bar( Continued next page) 1. National Labor Relations Act, 49 Stat. 449 (1935), as amended, 29 U.S.C. Sections 151-167 (1958); Railway Labor Act 44 Stat. 577 (1926), as amended, 45 U.S.C. Sections )51-163 (1958). gaged .;;.s college professors or doctors in private enterprises are entitled to organize themselves within the meaning of the Magna Carta of Labor which is Republic Act 875. The answer is in the affirmative. It is now settled that doctors, lawyer&, teachers, and other professional people can organize themselves into unions if they want to promote their rights and defend their economic security. Medical societies uid bar associations are sometimes referred to by laboring peoples as "doctors' unions" and "lawyers' union." It must, however, be born in mind that such right is quallfied by the circumstance that the employing institution must be one operated for profit. If the employer is a non-profit organization it does not come withiri the purvie-w of the Act. This means that while professors can organize themselves into a union they cannot however make use of a strike as a weapon to enforce their demands nor can they file an unfair labor practice charge against their employer. As an example we may cite physicians who are employed in the Red Cross Organization or in hospitals, public or private, that are organized not for profit but for humanitarian reasons. As members of a respectable profession in our society, your activities should not be confined to the narrow circle of your calling. You must also do your part in promoting the welfare of your community. You must take part in the crusade to which good citizens are now dedicated for the moral uplift of our people. This is especially so <>.t this time when the moral of our youth is at its lowest ebb. In doing so yqu will not only contribute to the healthy growth of our youth but to the moral and spiritual regeneration of our people. December 31, 1963 LAWYERS JOURNAL Page 359 gaining strength,2 llmlting union attempts to spread labor dis. putes through secondary pressures• and increasing protection of the rights of individual union members.4 But there has been no similar continuing drive to !infuse bargaining with new life. The bargaining process has largely remained. stagnant in an othe1wise dynamic area of law and policy. Much can and should now be done to achieve the potential of colJecth•e bargaining. There have been some encourc.glng developments of a voluntary nature emanating from companies and unions. One of these is the use of third parties, brought tn by employers and unions themselves, lo participate Jn the bargaining. This pdv"lte third party .::an sit in on the bargaining sessions to serve as an independent, objeelive mediator.5 He may well be more effective than a government mediator since he has been voluntarily chosen by the parties and can be expected to know better thetr interests and situation. He Can feel freer to suggest settlement terms. The use of this third-party device has also o.ppeared in accomplishing impartial studies and analyses of the information underlying the bargain which ·must be made.6 Ca.lied well in advance of any contract termination, such a peISOn can investigate the economic and other conditions surrounding the bargain and can make recommendations on <>. sensible pattern of settlement. · There is progress in another facet of Voluntary settlements between management and labor. This is manifested in contract terms designed to ease later contract renewo.ls.7 Cost-of-living wage provisions and automatic productivity increases are examples of these bargainjng-easing improvements. The use of a joint committee to make a continuing study of difficult dead. locked issues is a newer, effective development. This wis the means of handling the work-rules dispute in settling the pro. Jonged steel strike of 1959.B It has also just been used in disposing of the workcrew issue in the longshoremen's labor dis~ pute of 1962.9 The committee device achieved a most successful fruition °in ~~t~l~:::.2.ce~~w~~n th1:e19~a~~~1e!!:~ ~:7:e~~yba~~in~~: dispute, a tripartite committee was given a broo.d c~arge to 2. E.g. in the Labor.Management Relations Act, 1947, outlawing th.; closed shop, Section S(a) {3), 61 Stat. 40, 29 U.S.C. 5ect1on 158(a) (3) (1958); defining and limiting the obligation to bargain, Section 8(d), 61 Stat. 142, 29 U.S.C. Section 158fd) (1958); restricting the nature of bargaining units, Section 9(b), 61 State. 143, 29 U.S.C. Section 159(b) {1958); permittin)! states to outlaw the union shop, Section 14(b), 61 Stat. 151, 29 U.S.C. Section 164(b) (1958). In the Labor-Man.agcment Reporting and Dis_ closure Act of 1959, r~gulating organiz<:..tional picketing and pub· llcity, Section 8(b) (7), 73 Stat. 844, 29 U.S.C. Section 158(b) (7) 5upp. III, (1962J. 3. E.g., Labor-Management Relations Act, 1947. Section 8(b) ("4), 61 Stat. 141, 29 U.S.C. Section 158 (b) (4) (1958). 4. Labor-Management Reportin.e and Disdo~ure Act of 1959, Titles I-V, 72 Stat. 522, 29 U.S.C. Sections 411-15, 431-40, 461-66, 481-83, 501-04, 521-31 (Supp. III, 1962). 5. Hildebrond, The Use of Neutrals in Collective Bargaining in ARBITRATION AND PUBLIC POLICY (Proceedin~s of the Fourteenth Annual Meeting, Natfom:.I Academy of Arbittatol"'S) 135 (1961); Report of the President's Advisory Committee on Labor.Management Policv, Free and Collective Bar1ialning ond Jn_ dustrial Peace, Sec. Ill C, 50 LAB. REL. REP. 25, 42 (1962), (LAB. REL. REP. is the Labor Relations Repo1ter, published by the Bureau of National Affairs.) 6. Chamberlain, Neutral Consultants in Collective Barp:aining, in COLLECI'lVE BARGAINING AND THE ARBITRATOR'S ROLE (Proceedings of the Fifteenth Annual Meeting, National Academ_y of Arbitrators) 83 (1962); Report, supra note 5, Sec. 111 B, at 42. 7. Address of Secretary of Labor Willard Wirtz, National Academy of Arbitrators, 52 LAB. REJ.. REP. 133, 165 (1963). 8. Steel Memorandwn of Agreement, Section' 6, 45 LAB. REL. REP. 2frl, 208 (1960). 9. 52 LAB. REL. REP. 81 (1963). recommend a plan for equitable sharing ~ economic progress by employees, the company and the public.ID The plan was made public in December, 1962. Its goal .is to eliminate dead. une bargaining over economic issues. In genero.l, wage increases are keyed to a sharing of all increased productivity ind all savings in the use of materials. Further, it contains a guarantee to emploYees against loss of income resulting from automation.u These examples are tangible steps taken by the parties to collective bargaining in attempting creatively to improve it. Such succe!lsful efforts undoubtedly lead others to experiment also. Yet In a society which is properly competitive, it canuot be expected that private innova.tions will of themseh•es develop the full patent~aJ of colllecttve bargaining. The · government must step in to 'give additional stimulus.12 Government Should Provide Better Mediation The most obvious means for governmental aid io improve collective bargaining is bettering mediation. A larger staff of professional mediators is needed in the Federal Mediation and Conciliation Servlce.u lnfu~ion of governmental mediation be· fore a crisis in bargaining is r.eached is another indicated advance. Early mediation proved most effective in the steel settlement of 1962. There Jhe government insisted that bargaining begin four and one-half months before contract deadlines. When the parties broke off negotiations during bargaining, a proper bargaining technique to test strength and determination, the · government mediators dogged the parties back to the barg3ining table.14 The Depo.rtment of Labor ls now undertaking a broader role in providing economic data useful to successful collective bargaining. Cost-of-Uving statistics and productivity-increase analyses have been a valuable contribution for many years.ts Further steps are now being taken ·to make· the Depo.rt:ment of Labor the source of detailed ·iand intensive economic studies needed for enlightened bargaining,16 More specifically, the De.. partment has Just begun to hold itself open to make studies on precise issues for parties who have been stymied in their bargaining. A study ls to be made of workcrew composition, as one .aspect of !he settlement of the longshoresmen's strike of 1962.11 This development of a governmental role to supply data for collective bargaining is a commendable major advance.18 A governmental activity of a different nature should also be mentioned. This is the labor-management "summit" confer~ ence.tt Its current form Is the President's Advisory Committee mon!.~·d~~~f li~e~:i;f.0~~~i~n °'~~-4~n~'k. s~L.0'itEP: j:1eg (1959). 11. The text of the agreement w111 be found in 52 LAB. REL. REP. 35 (1963.) 12. Cox, LAW AND THE NATIONAL LABOR POLICY 48 (1960). 13. Report, supra note 5, Sec. Ill D, at 43. 14. Under urging by the government the parties began bargaining on February 14, 1962. 49 LAB. REL. REP. 359 (1962). Negotiations were broken off indefinitely by the parties on March 2, but were resumed on March 14 in response to a telegram from the President, id. at 460. Settlement was re.:ched on March l9, id. at 523. 15. On the role of the Bureau of Labor Statistics in suppiy. ing pertinent economic information, see Cla.izue, the Economic Chmate of Collective Bargaining in NEW YORK UNIVERSITY THIRTEENTH ANNUAL CONFERENCE ON LABOR 41 (1960) 16. Wirtz, supra note 7. at 166, Secretary Wirtz suggested the possibility of supplyinJ? information and aid through an exten.. sion service, as in the Department of Agriculture. · 17. See column one, supra. 18. The need for more complete dato. and for a frank interchange between the parties and the goveinment was stated by the President's Advisory Committee on Labor-Management Policy. 1:.K!:~;.t·E~~~:e~~:es~rl~~~. U1L1.B~tL~." 221, ~34 (1960). Page 360 LAWYHRS JOURNAL DeCerriber jI, 1963 on Labor-Managament PolJcy.20 In a report dated May, 1962, this committee referred· to collective barga,lning a.s "an es.. sential element of ·economic democracy."21 S~e of the devices stated above were recommended by the committee. But. by its nature It cannot be relied upon to carry much of the burden of strengthening collective bargaining. "Guideposts" Issued for Wage Increases . The meo.ns so far described for improving collective barga.inlng are encouraging developments. By themselves, however, they cannot eradicate all difficulties in the settlement of those labor disputes which can be solved by negotiation. Settlements by collective bargaining may raise questions rather than resolve them. The government may feel it necessary to give ;;.ttentlon to the inflationary pressures arising from wage bargains 1n basic industries. In his economic report to the Congress on January 22. -1962,22 President Kennedy released and approved the recommendation of his Council of Economic Advisers for "guideposts" in wage price decisions.2a In brief, the guide invoked was that wage increases should be Umlted to growth, in prbduct.. ivity to avoid the inflationary Pressures of higher wages. While there have been general governmental sts.tements 1n the past concerning the inflationary pressures of wage settlements,H outside of wartime this is the first Instance of the government's embarking on a deftntte program. · The over-o.11 productivity increase since the guideposts were stated has almost exactly equalled the percentage increase in wage settlements during the same period.26 There ts some doubt, however, whether the guideposts h&\•e been successful or whether admitted signs of stagn;;.tion in the economy caused wage increases to be limited.zs In spite of some opposition to the guidepost concept,21 it must be accepted as a useful experiment. It ts unlikely, though, that something as noncompulsive as the guideposts could be effective in a time of serious Inflationary pressures. Sollcltor General Suggests Governmental Representation A step beyond was offered by the Solicitor General of the United States, Archibold Cox, in June, 1962.2e He proposed developing a means to introduce governmental representation at an early stage in critical wage bargaining and to carry it on throughout negotiations. He made clear that he did not suggest a governmental veto to the economic bargains made. Rather, he asked only that the govemment be given "an opportunity to be heard as spokesman of the wider public interest while the decision is made".29 A reciprocal obligation upon the government to be receptive to the pressing interests of the pz.r. ties was recognized. Coming on the heels of the steel settlement of 1902 with the price increase later withdrawn under govemment;;.l pressure,ao this plea by Mr. Cox for formalized procedures ls pet·· 20. The committee was set up under Executive Order No. 1091~1~6R~~~rl~~~·p::2~~t~~~)introduction, at 25 fr. ~e '1.:~~P!~~· s!~~o~a~}Y th!i~~Or~a~ra~e 2E'oi!!~~?"of Economic Advisors is printed ln 49 LAB. REL. REP. 306 (1961). 24. Ross, Wage RestrUnts in Peacetime. Address before the Western Economic Association, 51 LAB. REL. REP 50 (1962). 25 The figure "runs three per cent or a little Over. 51 LAB. REL REP. 173, 277 (1962). 26. Ross, supra note 24, at 52. 27. E.g., George Meany, Presideql;, AFL-CIO, responding to an address by $ecretary of Labor Goldberg, 49 LAB. REL REP. 436, 437 (1962); Walter Reuther, President, United Automobile Workers, SO LAB. REL. REP. 49 (1962), J. Ward Kenner, President, BF. Goodrich, 50 1=-A.B. REL. REP. 119 (1962); John DavR_nlL.r1R.:tt.s'6.:~6~ ~%j~ing Editor, Fortune Magazine, 52 LAB. 28. Cox, Address at Harvard Law School, Wall Street Journal, June 14, 1962, page 3, column 1. 29. Ibid. 30. 49 LAB REL. REP. 605, 606 (1962). suasive. The abortive steel price increase exposed the disacL vantage. of the government's remaining out of the economic bargain unW .ita.,completion, If the b~gain .is' one where the. publlc inte!est plainly needs protection. Professor Arthur Ross Ms said that "any influential national wage policy must be im.preg. nated Into the collective bargaining apparatus".Bt And he asserted that "there must be a potent, competent, consultative mechanism cap;;.ble of producing an authoritative consensus•oaa to make wage restraints effective. The tmplicatlons of thC$e suggestions admittedly carry overtones of danger to the co11ective· bargaining process. Insofar as the government issues guideposts or attempts to indlcate to p~rticular parties what it considers to be an acceptable econo.. mic settlement, governmental planning is intruded into bargains. Yet a realtstic appra"isal of the intricate balance pf the market control mechanisms in our economj" shows that public needs are entitled to protection. What ts quite certain is th;;.t 1n the past there has been a lack of communication between the parties to labor disputes on the one hand and the government on the other, untll that moment of highest pressure when the critical strlke is about to occur. Labor Department Should Develop lndustl'J Sectl~ Moving beyond present developments, the LG.bor Department should create administrative sections for the major Indus. tries, which would specialize 1n the labor problems of those industries. These sections could hold useful conferences from time to time with industry and union leaders. They could also concentrate research on the problems of their industries so that fair exchange between the government and the industries could be effectuated in informal, noncompulsory fashion. But the govenunent must move carefully 1n developing these devices, limiting their applicability to the minimum governmental intrusion which wUI reasonably protect national economic poJ1cy. Secretary of Labor Willard Wirtz has stated dramatically that at this time we are seeing "the last clear chance" of coliective bargaining.as . The pressures against the efficacy of the bargaiiilng device are of a different nature and are more threatening than they have ever been before. There are several reasons why this is so. Probably the most salient reason is the development of automation. The underlying concern of the workers in virtually every critical labor dispute since the steel dispute of 1959 has been the fear of being displaced by machines. From the workers' point of view, impending automation makes their strike far more desperate than a strike which is simply the manifestation of their desire for a wage increase.u The development of strike benefits for employees and strike insurance for employers, greater interdependence within the economy, concentration of bargaining units, bf.rgained settlements by wage leaders which affect the entire economy, and the greater dependence by society on the production of goods deemed necessary, all lead to an increased abiltty of employers and unions to hold out longer in the strike process and a decreased &.b1llty of the public to stand the work stoppage.B6 Involved also are the bro;;.dest aspects of international fiscal poltcy. As our nation leads the Free World in the cold war and faces the intense competition of the Common Market, the complexity of the economic structW'e and the role that the collective bargaining process is designed to play in that structure become matters of unayoldable moment. 31. Ross, supra note 24, at 54. 32. Id., at 53 33. Wirtz, supra note 7, at 163. ANJ1i~i~~nrt%2>?1R:~:1~~n;~li~~at:~~\:,~:ir:::i·~0t.~ V(ewpolnt, Id. at 100. 35. Wirtz, supra note 7, at 162. December 31, 1963 LAWYERS JOURNAL Page 361 Some w111 assert that the burden is too great. Collective bargaining cannot bear the pressures here briefly suggested. If thfs is so, governmental planning must take over a large segment of whr.t has been relatively free economic determinism. Certainly this regrettable development should be averted at all reasonable cost. There must be a resolute willingness to strengthen collecU\·e bargaining to make it work. This cam~ot be done simply by asking labor and management not to en~age in strikes. There will h&ve to be governmental intervention to a degree. A realistic acceptance or this fact will enable evaluation of the techniques of governmental intervention which can keep it in the posture of protecting and implementing collective bargaining, rather than subverting it. The ferment which has brought about the m;;.ny nascent developments ouUined. above is a healthy sign. But much creative improvement lies aheat;l if the potential ot collective bz.rgaining is to be fulfilled. Evaluating Work Stor1£""'.ages in Critical Industries The second inquiry must be· as to work stoppages in critical industries when the public cannot stand prolonged loss of production. Herc it ts alrer.dy accepted that there must be governmental intervention,lloi although to :-:ome extent the collective bargaining process is undermined. What is needed ts a straightforward., objecth·e evaluation of the right of employers and unions to engage in critical work stoppages. A fundamental aspect of authentic collective bargo.ininS is the right lo strike. Only by the device of withholding labor can 'the ultimate relative bargaining strength of the parties be determinedJ17 While it is unfortunate in a given case that no agreement is reached and a strike occu1"S, the thre;;.t of the strike must always be present or the employees have no bargaining power. So the right to strike, the complete antithesis of totalitarian economic devices, must be preser.ved_wh~rever possible to do so. This is the first tenet and beginning propOsitton for any analysts of the problem of emergency strikes. · The second step must be a frank recognition that the right to strike in an absolute sense does not and cannot exist throughout our economy. We recognize this in government employment and forbid strikes against the govemmentJ18 During World War II we prohibited strikes and set up a system of establishing wages and working conditions through a process other than collective bargainlng.n But there are other situations not so unusual where the right to strike likewise cannot exist. Pragmatically, there is no right to strike .,,n the nation's railroads at the same time. Such strike action is not forbidden by law, but 1t simply cannot be tolerated,40 as some past experiences show.n A work stoppage for a few days might be al36. Ll:.bor Man<igcr;ncnt Relations Act, 1947, Sections 206-10, bl Stat. 155, 29 U.S.C.. Sections 176-80 (1951S) (the "national emergency'' provisions of Taft-Hartley J ; Railway Labor Act, Section 10, 44 Stat. 586 (1926), as amended, 45 U.S_C. Section 160 (1958). 37. Frey, Democracy, Free Enterprise, r..nd Collective Bargaining, in LABOR RELATIONS AND THE LAW 24, 30-31 (2d ed, Wollett and Aaron, eds , 1960). 38. Labor Managenlent Relations Act, 1947, Section 305, 61 Stat. 160, repealed b:V Act of August 9; 1955, 69 Stat. 624, 5 U.S.C. Section 118p (1958), which continues the prohibition against strikes by government employees. 39. War Labor Disputes Act of 1943, 57 Stat. 163. 40. Smith, The Effect of the Public Interest on the Right To Strike and Bf.rgam ColtecU\'ely, 27 N.C...L. REV. 204, 208 {1948). 41. The history of the many crises in threatened and actual nationwide railroad strikes is detailed in LETCHT, EXPERIENCE UNDER RAILWAY LABOR LEGISLATION, Chapters X-XIV (1955); Kaufman, Emergency Boards under the Railway Labor Act, 9 LAB. L.J. 910 (1958). The history of the most recent crisis, that concerning work rules, is told in Brotherhood of Locomotive Engineers v. Baltimore & Ohio Railroad, 372 US. 284 (1963), upholdiiig the right of the railroi:.ds to act in acCordance with tile report of the presidential commission. lowed, but the right to strike for a few days is not a tight to strike effectively. In the co;;,l and steel industries, the right to strike is directly related to the size of the stockpile. If there is a large stockpile, there is a right to strike. If there is no stockpile, then a strike simply cannot be tolerated,4t A demonstration ot this principle was given in 1959 when the steel production stoppage was permitted to continue for 116 days because of the stockpile. As soon as the stockpile was gone, the national emergency. occurred, and the Taft-Hartley injunction was invoked to force the Cmployees back to work.43 A more extreme a11d more dramatic example of the practical disappearance of the right to strike is made evident by considering what would be the effect of cutting otf electric power in any major city. Unions engaged in this and other similar critical production seem ·to realize that there ls no right to strike, and they work out some sort of soft strike technique which causes discomfort, but keeps essential services flowing. Can there be a right to strike in any real sense today in the aerospace industry! Surely not. In the cold war and the race for space, the strike which runs its course cannot be permitted." Intervention Might Furnish Bargaining Impetus The next proposition in a step-by-step analysis is that collective bargaining is not fully available in all of its connotations where there is no complete right to strike. Bargaining can still be carried on, but the bargaining cannot be based on the threat of strike. Rather it must be based upon the threat of governmental intervention to resolve the dispute. This threat constitutes an effective pressure upon the bargf.ining parties in·-.mMly tnstanars.:-· Yet these,~1:11;ft!';siinplY- are of neither the same nature nor magnitude as the ultimate threat of strike, and the bargaining is less sat'isfactory for this reason. In spite of the extent to which the efficacy ot collective bargaining is under.mined, It Is necessary that governmental intervention be accepted in these disputes. Without something lo take the place of the right to strike, the union would be forced into the position of trying to bargain without bargaining strength. Insistence upon bargaining under . these conditions would surely lead to a complete loss of faith in bargaining and a demand by workers for drE.Stic governmental controls.41i 42. Wfiliams, The Steel Seizure: A Legal Analysis of a Politi~l Controversy, 2 J. PUB. L 29, 35 1(953). curri;;g ~~~n~~toy J~si~1:s di~~~fu1:te~1=~~d tfart: ~iniJ~d Steelworkers of America v, United States, 361 U.S 39.1 44 (1959). See ali:o, Seidman. National Emergency Slrike Legislation, in SYMPOSIUM ON LABOR RELATIONS LAW 474, 480-84 (SWVENKO ed. 1961). 44. Brief work stoppc:.ges at missile sites have been much in the news the last two years On May 26, 1961, the President created the Missile Sites Labor Commission, Exec. Order No. 10946, 26 Fed. Reg. 4629 ( 1961). Senator McClellan has intro.. duced a bill to outlaw strikes al missile sites and other defense factlities. S. 288, 88th Cong., Jst Sess. (1963). He has mtro.. ~rL~b~i;ig:Jd~~~~ i~=~~idr t~~tsith~· a~nmt~~:!ii~!6~o~i~re~~ ~~~il~bac~i;!~~~~i~~1~~~J3. i\tr\~. s~~E~gRiP~0~~~n(~~611~ ~~~ a thorough study, see Van de Water, Applications of Labor Law To Construction and Equipping of United States Missile Bases, 12 LAB. L.J. 1003 (1%1 ). 45. After the National Aeronautics and Space Admtnistralion obtained an injunction against picketing of a missile site, President Neil Haggerty of the AFLC10 Building and Construction Trades Department said: "Labor must have a place to f(o witlt its problems if It is to t.bide by the no-strike pledge." 51 LAB. REL. REP. 209 (1962). ' Page 36l LAWYERS JOURNAL December 31, 1963 The question, then, is as to the nature of the government.a.I. iilterventlon. Here there 3hould be no opposition to the basic proposition that governmental intrusion should be kept to the minimum needed to prevent strikes which cannot be tolerated. In evaluating the various techniques of governmental intervention, the tendency must be resisted to fasten upon a supposed panacea. The current demand for placing unions under the antitrust laws is such a shibboleth. Much of the e&rller monopolistic aspects of union activity, such as the secondary boycott, have been specifically eliminated by statute.46 The push for placing unions under the antitrust laws appears to result from the desire to limit each labor union to existence in only one company, thus eliminating industry-wide bargaining.H This would unquestion<.bly mean that there would be fewer critical industry-wide work stoppages, because all production in a given cominodity normally would not cease. The great weakness of this approach has been revealed in the recent New York newspapers strike. Only tot.ir of the NC\v York newspapers 'were struck. The other five shut down voluntarUy.48 In industries where there are only a few producers, one cannot afford to be shut down while his competitors r.re operating. So the producers join together to avoid partial showdown. This has been the great spur to the development of industry-wide bargaining.a It has been proposed that the transportation industry. be placed under the antitrust laws to avoid industry.wide transportation strikes.60 But the kind of pressures which are involved in round-robin strikes,' with each competitor being struck sepa· n;.tely and at a different time, have led the American Trucking Association to take a firm stand in favor of industry-wide bargaining.'1 If uolons are to be fragmented, the constant economic turmoil ca.used by employer-by-employer work stoppages,52 together with the lessening of union bargaining strength which might put it significantly out of balance with employer strength, 68 would -almost surely lead to polltical remedies. This ls the past history of unbalanced collective bargaining, and m any democratic country 1t can be expected that the go\'• emment will play the role of equalizing undue dispt..ritles in bargaining power. Another sweeping proposal is the so..called nonstoppage strike, which would set up monetary penalties to create bargaining pressure upon both employers and unions.&" The com46. Levitan, An Appraisal of the Antitrust Approach, 333 ANNALS 108 (1961); Sovern, Address before National Association of Str,te Labor Relations Agencies, 51 Lab. Rel. Rep. 68, 80 (1962). 47. Ladd Plumley, President of the United States Chamber of Commerce, has strone.y urged pulling unions under the antl~rusr!~~b~r ~i ~:· :~sid~:i~· ~~vls":d 1~~~mftt!~pl~n!"· ~g~~~ Management Policy, expre"ised a similar views in the May, 1962, report of that body. See Report, supra note 5, at 45. 3_ 48. Wall Street Journal. December 10, 1962, page 2, column 49! Cox, op. cit. suprQ. note 12, at 51. 50. S. 2573, 87th Con~ .• 1st Sess. (1961), sponsored by Sena.. tors McClellan. Byrd (Virginia), Thurmond, Curtis, Case (South Dakota) and Bennett 51. Report, lndusirial Relations Committee, American Trucking Association, 52 LAB. REL. REP. 91 (1963). 52 Kramer, supnl note 19, at 232: McPherson, Cooperation Among Auto Managements in Collective Bargaining, id. at 607, 60.8. Pierson, Coopen:.tion among Managements in Collective Bargain!ng, id. at 621. See also McDowell, Labor and Antitrust: Collective Bargaining or Restraint of Trade? 20 FED. B.J. 18 (1960) 53. Cox, op cit. supra note 12, at 52. A w5:Y ~~~e~¥ H~~~5l~~eRiVi~U ~~94~)~G~b\e,1nti~st:;:~~~ stoppage Strike, 2 LA~. L.J. 105 <1951). But cf. Marshall & Mar_ chall, N'onstoppage.-Strikes anct"NatiOnal Labor Polley - A Crl:. tique, 7 LAB. LJ. 299 (1956). plex problem of creating and defining the penalties makes its ut11ity most doubtful. Pressures on the parties should be related to the bargaining strength c.f the parties. In the nonstoppage strike they are not, but are simply a leglsJative fiat appllcable to all disputes. · Taft..Jlartley Postpones, But Doesn't .Resolve The present Taft...Hartley procedures have a history of sue.. cesses and failures.ss The ·most obvious weakness of the procedures is that they have no ierminal point. While they postpone a strike, they have no way of ultimately resolving one. If the proposition is accepted that strikes simply cannot be tolerated in certain phases of our national life, then having as our only procedure one which cannot tennlnate such a dispute is a serious weakness. In addition, any procedure which takes away the right to strike even tempor;;.rily, substituting nothing for it, is bound to alter sharply the relative bargaining strength of the parties, Failure of the Taft-Hartley provis1ons to authorize the fact-finding body to make recomendations Is an example of the operation of the law with an uneven hand. Senator Taft reallzed this weakness and later recorpmended that the boa.rd be empowered to suggest settlement tenns.66 There are several unwieldly facts to the Taft-Hartley pro, \.'isions. The last-offer vote has not been successful.&7 The requirement that the President must go to court to get an injunc .. lion seems unjustifiably indirect.68 Of far greater concern is the fact that the statute leaves the government largely impotent until the emergency occurs. Only then ls the fact-finding board created, and it must hurry to report at once before the strike can be postponed by injunction. All of these matters establish an undue rigidity in the Taft-Hartley provisions. Critical labor disputes differ. Each has its own stumbling. blocks to settlement. The impact upon the public differs. Sometimes the public can tolerate a work stoppage for quite a while, even though in a critical industry. At other times a strike for one minute, as In the case of electric power, could be di&.strous. These considerations indicate that there should be a choice of prooedures for use in resolving critical work stoopages.r.9 There might well be concern that the choke-Of-procedures approach le<.vcs too much to the discretion of the President. But power must be lodged somewhere, and it cannot be lodged in a more responsible place than in the executive. To have these procedures available is not to give the President a bludgeon consisting of threats of ~any different kinds of procedures. The visio~~. Pf~rs£ME1I'GfN~ai~SP'lfT~~e ..fN~0N~TiONArn~bL~CY J29 (Bernstein; Enarson anc.I Fleming, eds. 1955); Taylor, The Adequ~cy of Taft-Hartley in Public Emergency Disputes, 333 ANNALS 76 (1961). • ~: ~~~<~~a479 supra note 43, <.t 478. 58. The President's Advisory Committee on Labor-Management Folicy proposed that the injunction be eliminated and the President be empowered lo direct the continuation of operations subject to ju~icial review. Report, supra note 5, Sec. IV, at 44_ 59. The hlerature on the choice of procedures approach is voluminous. Of parliculr.r value are Cox. op. cit supra note 12, ~in~~e!~;tz,Drs~~t~~hi~e E~~RGEWC~., t"fSP~~Ws 10 ~DtiNA~ TIONAL POLICY 149 (Bernstein, Ensrson and Fleming. eds. r.~~>;6f,l~~infiJD).ergency Strikes and National Policy, 11 LAB. The Schlichter Law in Massachusetts is a choice of procedures law. MASS. GEN. LAWS, Ch. !SOB (1957); Shultz, The Ma998chusetts Choice of Procedures Approach to Emergency Disputes, 10 IND. & IAB. REL. REV. 358 (1957): December 31, 1963 LA WYERS JOllRNAL • 1'81'1 363 power should be given to the President, instead, because of the need for flexibility, since the disputes differ so much tn their attributes. · ' Variety of Procedures Should Be Available The remaining issue, then, is the nature of the procedures which should be available in hand.ling critical labor disputes. Properly, the most usually recommended procedure is the development and refinem~nt of the process of fa.ct f~cllng by an independent board, coupled with the additional power of that board to suggest terms of settlement.so The theory is that there will be strong pressures upon the parties to settle in close conformity to the recomendations, if the recomendations are reasonable. Publlc opinion, reacting to a sensible proposal for settle,. could make it quite difficult for the pr.rties to refuse to accept it. One serious need is for the fact finding boards to be activa.. ted before the emergency develops. The invCstigation shOuld be made and the recomendation should be ready before the strike occurs. Earlier governmental intervention ts receiving increasing acceptance, as ls shown through its approval by the President's Labor-Management Commlttee.Gl We should experiment with the operation of fact-finding boards, and the details need not be explored here.e2 From time to time the government has used the device-of selzlng businesses to bring about the end of criti~l. strik~s,68 ,But seizure o.s the sole ~overnm.ental intervention disregards the rights of employees. It takes away the source of bargaining strength, the right to strike, and gives nothing tO take its place. Seizure should be used only as an !!nforcement device to aid in effectively carrying out other procedures, such "as fact finding with recommend~tions. Seizure was used merely as an enforcing device during World War 11.64 It ls necessary to accept the need to have available addition&.1 means for the gov'rmmental intervention more stringent than fact-finding. There are some work stoppages in which, because of the nature of the goods withdrawn from the market, the public automatically opposes those who strike, regardless of the merits of the dispute. In these situations employers would be enabled effectively to hold out against any board-recommended settlement properly favorable to workers. It follows that when necessary the government should have the power to introduce a fact-finding board's recomends..ttons as the work conditions actuaHy to be used for a temporary period.Gr> It ls true this de6o."A..rthorlz&.tion of the fact-finding board to make recommendations has been the established procedure under the Railway Labor Act. On fact finding whh recommendations generali~~ ;sewJ::~i1ffati~'!ia1ia E~~~g~~c:t J~~~t~~~'TiaLA~~P[~ f0~1. 4~ (1961) 6L Report, supra note 5, Sec. !,.V, at 43. 62. Sollcltor General Archibald Cox has proposed the setting up of Boards of Public Responsibility in major induCJtries. The function of the boards would be to organize and expedite bargaining procedures to try to head off emergency disputes. This could well take the form of early fact finding with rccOmmendations. Cox, op. cit. supra note 12, at 55. She:i"iT~~: l~~~t;:ss;~~~~~4f 8~~~19 ~~951),u~~~~~~ two valuable appendices giving the history of governmental seizure of business enterprises. Appendix I is an analysis of legislation authorizing seizure (page 615); Appendix II lists the inStances of seizure (page 619). _ On seizure generally SeE! Cox, Seizure in Emergency Disputes, in EMERGENCY DISPUTES AND NATIONAL POLICY 224 (Bernstein, Enanon and FJeminJ?, eds. 1955); Teller, Government Seizure in Laber Disputes, 60 Harv. L REV 1017 (1947). 64. War Labor Disputes Act of 1943, Section 3, ·'57 Stat. 164. 65. Cox, op. cit. supra note 12, at 56; Givens, Deallng with National Emergency Labor Disputes. 34 TEMP .. L.Q. 17 (1960); Seidman, supra riote 43, at 491. vice would tend strongly to establish the recommended settlement as the final settlement of the dispute, since the partiea woUJ.d be forced to operate under these conditions for a time. Yet where the strike cannot tolerated, some such procedure is justified. It must be stressed again that in this kind of situation collective bargaining in the usual sense cannot exist. Since lt cannot, wages working conditions must ultimately be esta.. bltshed ln another way if the parties fail to reach agreement under the threat of governmental intervention. Compulsory Arbitration May Be Justified Even the final step, so bitterly opposed both by management and labor, is justified by the analysis here set forth. The compulsory arbitration of wages and working conditions to settle a dispute in an industry in which a work stoppage would be disastrous to the national interest is a proper ·procedure to have available. We used compulsory arbitration in wartime because we could not tolerate strikes. && It needs to be an available ultimo.te weapon in those instances In which the right to strike simply cannot exist. Compulsory settlement procedures should not ever be the 011ly available procedures in a given industry, no matter how critical. Often mecho.nisms short of compulsory settlement could bring the parties to a re!!olution of the labor dispute. It must be frankly realized that the availability and use of compulsory arbitration tends seriously to weaken bargaining; the party most likely to benefit from a forced settlenient may negotiate OnJy perfunctorllY 67 But the premise here stated is that at least sometimes there ~an not be a right to strike. When this ts so, bargatn1ng is not available as the ultimate solution to the dispute, and the fact that compulsory settlement seriously weakens the bargaining does not outweigh the necessity tho.t a means of settlement without stoppage must be ready for use, although only in the most extreme situations.es If the right to strike ts gone, something else must take its place. The most common objection stated both to compulsory arbliration and to fact finding with recommendations is that they put the government in the business of fixing wages, leading inevitably to a mo.naged economy.GI We already have enough ex.. (Continued next page) ~Labor Disputes Act of 1943, Section 7, 57 Stat 166; ~:~~bi~~r!~t~rrl3IC~.1t~ i'E~~n3~~ Y1~44 ~ab On ~:rgis~~:; of the development and use of the compulsory arbitration device see Williams, Compulsory Settlement of Contract Negotlatlon Lab67. D4h~u~ie 2~~:i~~e \:~~~5~~i-s~~-~~i~~9:>Commended the repeal of that state's publlc utility arbitration law in favor :l ~01f~~i~~ b~fg~i~i~u.re~~~~~~~h8 f1ND~ : IT3~sR~l~~E~ 408, 415; 423 (1955). ~eidman, supra note 43, at 488; Secretary of Labor Wirtz, q.ddress before National Academy of Arbitrators, 52 LAB. REL REP. 133, 164 (163). 68-. Impartial obsen.oers tend to accept, albeit reluctantly, the principle of compulsory arbitration in the ultimo.te situation where a work stoppaRe must be absolutely forbidden. The Committee on Labor Arbitration Law, Section of Labor Relation Law, American Bar Association, in,1960 took a position opposed to compulsory arbitration, yet recognized. that "national interest may be so imperiled as to make some form of comoulslon essential". PROCEEDINGS, SECTION OF LABOR RELATIONS LAW, 166, 167 (1960). To 1he same effect are Feinsinger, Comment on National Emergency Strike Legislation in SYMPOSIUM ON LABOR RELATIONS LAW 493, 495 (Slovenko ed 1961); Seidman, Na~~~8io,E~)1°1i~n~he ~ric~gi~~~:r~e its~~ia~~~~ ~ffi~~hys%~ ors comoulsorv arbitration, 52 LAB. REL. REP. 104 (1963). tion,6~2 Ftzv riz:n ~8NT~tnfT.11ef~~':o:am:1~\n! c:!1!::~~~~ ~~~~~~;It ~!ur;~f~n r~~: .. ;·~0A1~~~~~ :ia~:!~~~a~~ ~;Pi%iJ: to recommendations as part of fact finding,.seeing the procedure as an undue governmental intrusion, w~s made by Henry Ford II as· a member of the President's Advisory Committee on La~~f;~~a!::°~J :;1~~te ~fit~~eni~pa~ Jo~e 5, Sec. ~ (foo~ Page 364 . _::.: LAWYERS JOURNAL December 31, 196.3 SUPREME COURT DECISIONS Ludo Libames, petitioner vs. The Hon. Executive Secretary, et al., respondents, G.R. No. 1.-21505, Oct. 24, 1963, Concepcloll, J.: 1. PUBLIC OFFICERS; REMOVAL OR SUSPENSION; CHIEF OF POLICE OF ZAMBOANGA CITY; CANNOT BE REMOVED OR SUSPEND~D EXCEPT FOR CAUSE.-lt is conceded that the Chief of Police of Zamboanga City ls a member of our clvU service system <Section 5, Republic Act No. 2260). Hence, he cannot be "removed or suspended except .for cause as provided by law and after due process" (Sec. 33, Republic Act No. 2260). 2. i:o.; ID.; CASE COMPARED WITH CASES OF LACSON V3. ROMERO AND DE LOS SANTOS VS. MALLARE.-It can· not be denied that the attempt to terminate the services of pltintiff herein, as de jure ·holder of the office of Chi et of Police of Zamboanga City, entailed his removal therefrom. even more than the attempt to transfer the provincial fiscal of Negros Oriental and the City Engineer of Baguio City without their consent was held in Lacson Ys. Romero (47 Oft. Gaz. 17781 and De las Santos vs. Mallare <87 Phil. 289J to constitute Illegal removal from their respective of. flees. 3. ID.; ID. ; PO\VER OF PRESIDENT TO REMOVE CHIEF OF POLICE OF ZAMBOANGA CITY AT PLEA.SURE UNDER Sl':C. 34, COMMONWEALTH ACT 39 ELIMINATED BY SEC. 5, REP. ACT 2259.-Detendants argue that the pro· vision of Section 5 of Republic Act No. 2259 ts inapplicSETTLEMENT . . . (Continued from page 364) perlence to show that this is not necessarily so. We have had a number of past instances of fact finding with recommenda. tions fanning the basis of settlement,10 There is a clear distlnction to be made. The wage settlement proposed with regularlty by a government agency is ~ far greater intrusion by the government than is the recommendation of an ad hoc factfindmg ~(d or_ board of arbitration which has been chosen to bring about settlement of one particular dispute. Insofar as the independent board c~n approximate the settlement that the parties themselves would hQve reached if the strike had been allowed to run its course, the settlement has no more effect upon the economy than would the settlement of the parties themselves. Of cOursc, just what the settlement of the parties would have been can never be known exactly. But there is enough experience with collective bargaining settlements and voluntary arbitro.tions of wage di~putes to know that, given the facts, the economic pattern .which should be followed can be ascertained. n Collective Bargaining b Absolute Requisite The key to the resoluticn of the emergency dispute problem is therefore revealed. 1he matter of pressure in settlements ~note 41, supra for citations to the fact-finding-withrecommendations experience ~inder the R~llway Labor Act. In the 1949 steel pension dispuh:, President Truman bypassed the Taft-Hartley provisions and appointed a fact-finding board empowered to recommend. The dispute was settled in close COl!lpliance with the recommendations. The- Board report is printed in 13 L.A. (BNA) 46 (1949). A recent example of the fact-finding board empowered to recommend ter.riis is the Missile Sites Labor Commission, see note 44, supra. 71. There is extensive literature on wage patterns. E.g., BERNSTEIN, ARBITRATION OF WAGES (1954); NEW CONCEPTS IN WAGE DETERMINATION (Taylor and Pierson, eds 1957). able to the case at bar because plaintiff herein has not been removed from office, his tenn of office having merely expired when the President terminated his services. Suf· fice it to say, that this attempt to terminate plaintiff's services was predicated upt>n said.Section 34 of Conunonwealtil · Act No. 39, pursuant to which the Executive may "remove at pleasure" the Chief of Police of Zamboanga City, and that this is the reason why section 5 of Republic Act Nl>. 2289 speaks, also, of removal to indicate that it seeks to withdraw or eliminate precisely such power to "remove at pleasure" under Commonwealth Act No. 39, among other pertinent legislations. 4. ID.; JD.; STATUTORY CONSTRUCTION; REPEAL; WHEN MAY A SPECIAL LAW BE REPEALED OR AMENDED BY SUBSEQUENT GENERAL LAW.-The question whether or not a special law has been repealed or amended by one er more subsequent general 18.ws is dependent mainly upon the intent of Congress in enacting the latter. The discussions on the floor at Congress show beyond doubt that its members Intended to amend or repeal all provisions of speciaJ laws inconsistent with the provisions of Republic Act No. 2259, except those which are expressly excluded from the operation thereof. In fact, the explanatory note to Senate Bill No. 2, which, upon approval; became RepUblic Act No. 2259, specifically mentions Zamboanga City, among others that had been considered by the authors of (Continued next page) by governmental intervention through emergency-dispute processes will oat disrupt the role of collective bargaining so long as the settlements brought about follow collective bargaining patterns rather than establish them. The m£intalning and strengthening or effective collective bargaining then becomes the absolute requls1tc to the keeping of emergency procedures in narrow bounds. If the basic labor-cost decisions in the American economy are made by collective bargaining, we have little to fear from the occasional emergency settlement dictated by ad hoc governmental intervention. The dictated settlements can follow the pattern established by bz.rgaining. So it is that the newly awakened emphasis on improving collective bargaining is as significant a part of the solution to the emergency strike problem as are the techniques for dealing with such strikes Governmental intervention in emergency work stoppages need ·not bring ab()ut government2..l management of the economic bargains in our society 1f collective bargaining is strengthened to maintain its proper role in making these economic decisions. We must endeavor to reach this balanced approach. Realistically speaking, we cannot continue to hold o. false belief that the right to strike is unlimited. We cannot insist that all bargains must be made through the collective bargaining process. We can and must make every effort to hone the keen edge of collective bargaining so that it is an effective tool in all but the \'Cry ht.rde;;t or cases. But we must be courageous enough to handle the hardest cases another way. The alternative is facing the resolution of each crtsis &.fter the crisis occurs. Drastic measures which will destroy the process of collective bargaining seem the inevitable outgrowth o( such a passive approach when the spectrum of the kinds of cri. si~ which cr.n arise is viewed. Advance preparation for emergencies by creating the structures to meet them is needed to preserve our economic freedom. Freedom does not flourish in chaos, but in enlightened order. Dec'eniber 31, 1963 LA WYERS JOURNAL; Page 365 the bill in drafting the same. Similarly, Section 1 of Republic Act No. 2259 makes reference to "all chartered cities in the Philippines", whereas Section 8 excludes fi'om the operation of the Act "the cities of Manila, Cavlte, Trece Martires and Tagaytay," and Section 4 contains a proviso exclusively for the City of Baguio, thus showing clearly that all cities not particularly excepted from the provisions of said Act - including, therefore, -the C'ily of Zamboangaare subject thereto. 5. ID.; ID.; RULING IN CASE OF FERNANDEZ VS. LEDES· MA NOT IN POINT.-The case of Fernandez vs. Ledesma, L-18878 IMarch 30, 1963J, relied upon by the defendants herein, is not in point, the termination of the services of the officer involved ·in the Fernandez case having takt'n place on April 28, 1959, or prior to the approval of Republic Act No. 2259, on June 19, 1959, whereas plaintiff herein was advised of the attempt to terminate his services on May 23, 1963, or almost four C4l yea.rs after said legislation had become effective. 6. CON&Tl'IUTIONAL LAW; BILL; SUBJECT SHOULD BE EMBRACED IN TITLE OF A BILL; PURPOSE OF; EX· CEPTION.-It is contended that the provision tti Section 5 of Republic Act No. 2259, to the effect that "all ·other of. ficials now appointed by the President of the Phil1ppines may not ·be removed from office except for cause" is a rJder violative of the constitutional inju.nction that "no bill which may be enacted' into law shall embrace more than·- one subject which shall be expressed In the title of the bill", that cf Republlc Act No. 2259, being: "AN ACT MAKING ELEC'l'IVE THE OFFICES-OF MAYOR, VICE-MAYOR AND COUN· CILORS IN CHARTERED CITIES, REGULATING THE ELECTION IN SUCH CITIES AND FIXING THE SALARIES AND TENURE OF SUCH OFFICES".-It is claimed th~t the contl!nts of Seelion 5 of Republic Act No. 2259 are alien to the subject of this title and that consequently said provision :is uncOnstitutional. 'l'his pretense is untenable. As stated in the explanatory note to the aforementioned .Senate Bill No. 2, the purpose thereof is to establish "uniformity in the number of city officials, in the manner ln which they are to be cha.sen, in the extent of their powers, duties and functions", as well as "equality in the rights and privileges enjoyed by the residents of said cities, particularly the right to choose the officials who should be at the helm of their respective city governments". Obviously, the matter of the conditions under which local officials appointed by the President may be remcved from cffice ncl; c:nly is iermane to such purpose, but, also, forms an essential part therenf. "One purpose Of the constitutional directive that the subject of a blll should be embraced in its title is to appraise the legislators Of the purpose, the nature and scope of its provisions, and prevent the enactment into law of mat· ters which have not received the notice, action and study of the legislators or of the public." Cinchong vs. Fernandez, G.R. No. L..7995, May 31, 1957). In the case at bc.r, the provisions of Section 5 of Republic Act No. 2259 was debated upon o.n the floor of Congress, whose .members were actually aware of its existence. DECISION This is an original petition for quo warranto and injunction, with preliminary injunction and/or mandatory injunction. Plaintiff Lucio Libames was, on January 29, 1959 nominated by the President of the Philippines for the office of Chief ot Police of Zamboanga City. The nomlnatl.On having been confirmed by the Commission on Appointments on February 25, 1959, Libames asswned the aforementioned office 'on March 11, 1959, and continued discharging the duties of said office ev~r since. pn May 16, 1963, the new Executive designated defendant Miguel Apostol as Acting Chief of Police of Zamboanga. City. On May 18, 1963, Apostol took his oath of office as such acting chief of police before the Speaker of the House of Representatives, in Manila, and soon thereafter, or on May 23, 1963, defendant Tomas Ferrer, as City Mayor of Zamboanga, transmitted to Llbarnes a letter of the Acting Assistant Executive Secretary, Office o! the President, Malacaiian, dated May 16, 1963, informing him ILlbarnesl that "under the provisions of Section 34 of the Charter of Zamboanga City, as amended, the President" had terminated his "services as Chief of Police of said City effective immediately and x x x designated Major Miguel Apostol" in his stead and stating that tt would "be appreciated if" he ILibamesl _could "turn o.ver the office in question to Major Apostol upon receipt" of said communications. Mayor Ferrer, furthermore, requested Libarnes to turn over his "property responsibility" with the property custodian of the police department. In a memorandum of the same date CMay 23, 19631 Mayor Ferrer, likewise, informed all members of the police force of Zamboang.a. City of the appointment of Ap0&tol and oath taken by him as acting head of said force, and requested therri to "te.ke orders from the new Chief of Police." However, Libarnes refused to turn over his office to Apostolwho tried to take possession thereof-as well as his ILibame.s') ,property responsibility, and, soon thereafter, or, on July 5, 196:-1, he (Llbarnes) initiated the present action for the purpose of nullifying the. aforementioned designation of Apostol as Acting Chief of Police of Zamboanga City and of restraining him, as well as its mayor, the Executive Secretary and their subordin· ates, assistants or persons acting under them, or for or in their behalf, from molesting Libarnes in the possession of the office in question or in the exercise and enjoyment of the functions and prerogatives thereof. Pbttntlff's. complaint is anchored upon the theory that, under the provisions of Section 5 of Republic Act No. 2259 and of the Civil Service Law (Republic ' Act No. ·2260), he is entitled to hold said office until removed for cause, which ts not claimed to exist in his case, and "after due proce~". which, he asserts, has been denied him. Upon the other hand, defendants maintain that the dis· puted designation of defendant Apostol is perfectly valid because, as Chief of Police of Zamboanga City, plaintiff held said office at the pleasure of the President, pursuant to Section 34 cf .the Charter of said City, or Commonwealth Act No. 3B, reading: "Appointment and removal of officials and employees - Compemation.-The President shall appoint, with the consent of the Commission on Appointments of the National Assembly, the Judges of the Municipal Court, the city treasurer, the city engineer, the city assessor, the city attorney, the chief of police and the other heads of the city departments as may be created from time to time, and he may removed at pleasure any of the said appointive officials, except the judges of the Municipal Court, who may be removed only according to law.'' and that this provision has not been amended l:y said Republic Acts Nos. 2259 and 2260. Defendants' contention cannot be upheld, for said Section 34 of Commonwealth Act No. 39 ls inconsistent with Section 5 of Republic Act No. 2259, which provides: "The incumbent appointive City Mayors, Vice-Mayors and Councilors, unless sooner removed or suspended for cause, shall continue in office until their successors Shall have been elected in the next general elections for local officials and shall have qualified. Incumbent appointiv~ Page 366 LA WYERS JOURNAL December 31, 1961 city .. secretaries shall, unless sooner removed ·or suspended for cause, continue in office until as elective city council or municipal board shall have been elected and qualified; thereafter the city secretary shall be elected lby majority vote of the elective city council or m'llJlicipal board. All other city officials now appointed by the President of the Philippines may not be removed from office except for cause." and Section 9 of said Republic Act No. 2259 expressly repeals "all acts or parts of acts x x x inconsistent with the provisions" the constitutional injunction that "no bill which may be enacted into law Shall embrace more than one subject which shall be expressed in the title of the bill", that of Republic Act No. 2259, being: "AN ACT MAKING ELECTIVE THE OFFICES OF MAYOR, VICE-MAYOR AND COUNCILORS IN CHARTERED CITIES, REGULATING THE ELECTION IN SUCH CITIES AND FIXING THE SALARIES AND TENURE OF SUCH OFFICES." thereof. It is ch:.imed that lhe contents of the aforementioned proIt is conceded that the Chief of Police of Zamboanga City vision are alien to the subject of this title and that con.seis a member of our civil service system <Section 5, Republic quently said provision is unconstitutional. This pretense js Act No. 2260). Hence, he cannot be "removed or suspended ex- untenable. As stated in the exph~.natory note to. the aforemencept for cause, as provided by law and after due process•' <See- tioned Senate Bill No. 2. the purpose thereof is to establish ~to~;:t ~e~~:~~: ~:· s!!:':~~s ~~ ~~:n~:ffb~e~=~~~~st~~t J~~= "uniformity In the number of city officials, In the manner in holder of said office, entailed his removal therefrom, even more which they are to be chosen, in the extent of their powers, duthan the attempt to transfer the provincial fiscal of -Negros ties and functions", as well as "equality in the rights and priOrlental and the City Engineer of Baguio without their consent vileges enjoyed by the residents of said cities, particularly the was held in Lacson vS. Romero (47 Off. Gaz., 1778> and De los right to choose th.e officials :who should be at the helm of Santos vs. Mallare (87 Phil. 289> to constitute an illegal re· their respective city governments". Obviously, the matter of moval from their respective offices. t.he conditions under wl)ich local officials appointed by the Pre. Defendants argue that the above quoted provision in Sec- sident may be removed from office not only ls germane :.n tion 5 of Republic Act No. 2259 Is inapplicable to the case at .such purpose, but, also, forms an essential part thereof. bar because plaintiff herein has not been removed from office, his term of of!iee having merely expired when the :Pre&- · Furthermore, as stated in Inehoug vs. Fernandez, G. R. Nr>. dent terminated his services. Suffice it to say that this at- L1995 <May 31, 1957): tempt to terminate plaintiff's services was predicated. upon satd Section 34 of CommOnwealth Act No. 39, pursuant to which the Executive may "remGve at pleasure" the Chief of Police ·of Zamboanga City, and that this is the reason why Section 5 of Republic Act No. 2259 speaks, also, of removal to indicate that it seeks to withdraw or eliminate preelsely such power to "remove to pleasure" under Commonwealth Act No. 39, among other pertinent legislations. Again, the question whether or not a special law has been repealed or amended by one or more subsequent general laws is dependent mainly upon the intent of Congress in enacting the latter. The discussions on the floor of Congress show beyond .doubt that its members Intended to amend or repeal all provisions of special laws inconsistent with the provisions of Republic Act No. 2259, except those which are ex.. pressly excluded from the operation thereof. In fact, the explanatory note to Senate Bill No. 2, which, -upon, approval, became Republic Act No. 2259, specifically mentions Zamboanga City,. among others that ·had been considered by the authors of the bill in drafting the same. Similarly, Section 1 of Republic Act No. 2259 makes reference to "all chartered cities In the Phlllppines," whereas Section 8 excludes from the operation of the Act "the cities oj Mantia, Cavlte, Trece Marttres and Tngaytay," and Section 4 contains a proviso exclusively for the City of Baguio, thus showing clearly that all cities not parti· cularly excepted from the provisions of said Act-including, therefore, the City of Zamboanga-are subject thereto. The ease of Fernandez vs. Ledesma, L18878 <March 3U, 19631, relied upon by the defendant herein, is not in point, the termlnatlon of· the services of the officer involved in the Fernandez case having taken place on April 28, 1959, or prior to the approval of Republic Act No. 2259, on June 19, 195?, whereas plaintiff herein was advised of the attempt to terminate his services on May 23, 1963, or almost four (4) years after said legislation had ·become effective. lt is next urged, however, that the provision in Section S of Republic Act No. 2259, to the effect that "all other officials now appolnted:by the· P-resident of· the· Philippines. may not be reinOved from office except for cause" 1.s a rider violative of "One purpose of the constitutional directive that tlte subject of a blll should be embraced In its title is to ap. prise the legislators of the purpose, the nature and scope of its provisions, and prevent the enactment into .law 'lf its matters which have not received the notice, action and study of the legislators or of the publle. In the case at bar It cannot be claimed that the legislators have not been • apprised of the nature of th~ law, especially the nationalization and prohibition provisions. The legislators took active interest in the discussion of the law x x x." In the ease at bar, the provision i~ question was, similarly, debated upon on the floor of Congress, whose members were, therefore, actually aware of its existence. WHEREFORE, we hold that said provision in Section 3 of Republic Act No. 2259 is constitutional and valid; that as Chief of Police of Zamboanga City, plaintiff Libames is entitled to the benefits of the aforementioned provision; and that, pursuant thereto and to Section 32 of Republic Act No. 2260, he no longer holds the office at the pleasure of the Executivf?, and may be removed therefrom only "for cause as provided by law and after due process," and, accordingly, judgment is hereby rendered declaring that plaJntlff Lucio c. Libarnes is still the de jure Chief of Police of Zamboanga City, and that. as such, he is entitied to continue holding said office and discharging the powers and duties thereof, and, consequently, enjoining the defendants herein, as wen as their subordinate> or persons acting in their behalf, to refrain from molesting tho:? plaintiff, er ctherwise interfering In the possession· of said office, and in the discharge of the powers and duties attachP.d thereto, with costs against said defendants. IT IS: SO ORDERED. Bengzon, C.J., Padilla, Bautista Ang~lo, Labrador, Concepcion, Reyes, Barrera, Paredes, Dizon, Reg~Ia. and Makallntal, J J ., concurred. December 31, 1963 LA WYERS JOURNAL Page 367 II People of the Philippines, plaintlff.appellee vs. Pascual Curlano, et al., def.endants..appellants, · G.R. Nos. L-151!56 and L-15257, October 31, 1963, Barrera, J.: 1. CRIMINAL PROCEDURE; NEW TRIAL; RETRACTIONS OF WITNESSES; WHEN NOT GROUNDS FOR NEW TRIAL. -Evidence which merely seeks to impeach the evidence upon which the conviction was based (U.S. v. Smith, 8 Phil. 674; U.S. v. Valdez, 30 Phil. 290; U.S. v. Lee, 38 Phil. 466; U.S. v. Singuimolo, 3 Phil. 176), or retraction of witnesses (People v. Olfindo, 47 Phil. l; U.S. v. Dacir, 26 Phil. 503; People v. Follantes, 64 Phil. 527), will not constitute grounds for new trial, unless it is shown that there is no evidence sustaining the judgment of conviction except the testimony of the retracting witness (U.S. v. Dacir, supra; People v. Gallemos, 61 Phil. 884; People v. Cu Unjieng, 61 Phtl. 906·. 2. ID.; ID. ID.; ID.; REASON FOR THE RULE.-The reason for this rule is that if new trial should be granted at. every instance where ~ interested party succeeds in inducini: some of the witnesses to vary their testimony out.side ('If court after trial, there would be no end to every litigation 1Reyes v. People, 71 Phil. 598). 3. ID.; ID.; AFFIDAVIT OF A PERSON CONVICTED OF A CRIME EXECUTED SUBSEQUENT TO CONVICTION; WHEN NOT GROUND FOR NEW TRIAL-It has been held that an affidavit, which a person convicted of a crime· (as in the instant case l executed subsequent to his conviction, to the effect that, another person, also convicted of crimi· nal participation in the same offense, did not actu.o.Uy take part therein, furnishes no ground for a new trial (U.S. v. Smith, 8 Phil. 674). 4. ID.; ID.; WITNESSES; RETRACTIONS; WHEN PRE.SEN· TATION THEREOF NOT GROUND FOR NEW TRIAL.It is unnecessary to grant a new trial when there is .no assurance that the witness to be introduced could not have been presente'1 at the original hearing; and his testimony will not materially Improve defendant's position (Peopl~ v. Torres, 73 Phil. 107J. 5. ID.; ID.; ID.; TESTIMONIES TAKEN BEFORE COURTS OF JUSTICE; DANGEROUS RULE TO REJECT THEM UPON RETRACTIONS OF ~ES.-In People v. Ublna (G. R. No. L6969, prom. August 31, 1955), it was held that "It would be a dangerous rule for courts to reject testimonle.c; solemnly taken before courts of justice simply because the witnesses who had given them later on change their mind for one reason or another, for such a rule would make so· lemn trials a mockery and place the lm:estigation of truth at the mercy of unscrupulous witnesses." 6. ID.; ID.; AFFIDAVITS OF RETRACTIONS OF WITNESSES; PREPARED FOR MONEY CONSIDERATION; NOT GROUND FOR NEW TRIAL-The Supreme Court has consistently refused to entertain motions for new trial based on impro· babllity of the alleged new versions of the com.mission of the crime, and the easiness and faclltty with which sucil affidavits are obtained (People v. Monadi, G.R. Nos. L-377071, pro. September 27, 1955 ;People v. Agulpo, G. R. N1. L12655, prom. June 30, 1960), and the probabtlity of their being repudiated later <People v. Galamlton, G. R. No. l-6302, prom. August 25, 1954). It is likewise not improbable that such schemes are conceived and carried out f{)r a consideration, usually monetary (People v. Francisco, G.R. No. L5900, prom. May 14, 1954). There is, therefore, no reason for acceding to appellants' motion for new trial. 7. ID.; CRIMINAL EVIDENCE; ALIBI:; REQUISITE FOR AD· MISSIBil.ITY AS EVIDENCE.-In the long line Of ca.sel:i, it had been held that in order to establish an alibi, a defendant must not only show that he wa.s present at some other place about the time of the alleged crime, but also that he was at such other place for so long .a time ~hat it was impossible for him to have been at the place whe1~ the crime was committed, either before or after the time he was at such other place. <People v. Alban, G. R. No. L15203, prom. March 29, 1961, citing People v. Oxlles, 20 Phil 587; People v. Pala.mos, 49 Phil. 601; People v. Resabal, 50 Phil. 80; People v. Nlem, 75 Phil. 668.) 8. ID.; ID., WITNESSES; CREDIBILITY; FINDINGS OF TRIAL COURT NOT DIS1'URBED BY APPELLATE COURTS; EXCEPTION&.-Where the appeal merely Involves the credibility of the various witnesses, the rule is well..est&blished that appellate courts will not generally disturb the findings of the trial court, as the latter ls in a belter position to decide the question, having seen and heard the witnesses themselves and observed their behavior and manner of testify. ing during the trial, except when it is shown that the trial court has overlooked certain facts of substance and value that, if considered, might affect the result of the case <People vs. Alban, G. R. No. L15203, March 29, 1961, citing People vs. Berganio, G.R. No. L-10121, prom. January 22, 1957J. The trial court In the case at bar has made a complete and through anz.lysis of the various testemontes which we found to be properly and well-supported by the evidence adduced. 9. ID.: ID.; ALIBI: WHEN ALIBI IS OVERCOME BY IDENTIFICATION OF ACCUSED BY AN EYEWITNESS.The alibi of the appellants eannot overcome the testimony of a wtness and eyewitness to the bloody incident who testified in a clear, credible, straightforward, and convincing manner and who positively lndentified appellants as· the" Perpetrators of. the crimes ID. question. 10. CRIMINAL LAW; MURDER; AGGRAVATING CIRCUMSTANCE; SUDDEN AND UN-EXPECTED ATTACK OF VIC· . TIMS.-There was treachery, which qualified the kllllng of· the four victims, to murder, as the attack was so sudden &.nd unexpected, thereby insuring the accomplishment of the crimes, without risk to appellants arising from the d~ fense which they (victims) might have Offered (People v. Alban, supra, citing People v. Godines Martinez, G.R. No. L-12268, prom. November 28, 1959; People v. Ambahang, G. R. No. L12907, prom. May 30, 1960). 11. ID.; ID.; ABUSE OF SUPERIOR STRENGTII; ACCUSED ALL ARMED WITH DEADLY WEAPONS AND SUPERIOR IN NUMBERS.-Abuse of superior strength was also attendant, it appearing that appellants, aside from being all armed with deadly weapons, were decidedly superior in number(8 in all] In relation to the number of the assaulted parties [only 3 and a boy of 2 years] (U.S. v. Tandoc, 40 Phil. 954; People v. Caroz, 68 Phll. 521). 12. ID.; ID.; KILLING IN. DWELLING OF VICTIMS.-The circumstance of dwelling may, further, be considered as to the kUling of Daniel Err.o.bo, Engracia Salazar, and Mario Errabo, as It occurred Jn their dwelling place (the hut> or on the ground thereof cU.s. v. Macarliilas, 40 Phil. 1>. 13. ID.; ID.; NIGHTTIME ABSORBED IN TREACHERY.-Thc aggravating circumstance of nightUme, although present, may not lbe taken into account, inasmuch as It ts absorbed in treachery <People v. Balagtas, 68 Phil. 675). 14. ID.; ID.; CRUELTY; NUMBER OF WOUNDS FOUND UPON CORPSE; WHEN CONSIDERED AS AGGRAVATING CIR· C1.JMSTANCE OF CRUELTY.-Neither may the clrcumstance of cruelty as found by the tria,l cow;t be co~ered, be~age 36,B LAWYERS JOURNAL December 31, 1963 cause there ts no showing that the other wounda. found oO the bodies of the victlm.s were inflicted unnece$8.rily ·While they were stlll alive in order to prolong their physical suffering. The number of wounds found upon the corpse does not, by itself alone, justify the acceptance of the cir· cumstar::e of cruelty, It being necessary to show that the accused deliberately and inhumanly Increased the suffering., of the victims (People v. Aguinaldo, 55 Phil. 610; See also People v. Dayug, 49 Phll. 423; People v. Daqulfi.a, 60 Phil. 279). 15. ID.; ID.; LACK OF PROVOCATION; NOT AGGRAVATING CIRCUMSTANCE ENUMERATED BY THE REVISED PE· NAL CODE.-The circumstance of lack of provocation wa-1: incorrectly considered by the trial court as aggravating in the killing of the Errabos; the same is not one of the ag. gravating circumstances enumerated in the Revised Penal .Code. DECISION Pascual Curano alias Pap_ing, Candido Violante, Fra0ncisco Tafalla, Marcelo Tafalla, Santos Tafalla, Herminiglldo Tafalla, Olimplo Tafalla, and Pamfllo Balasbas, were charged in the court of First Instance of Samar with the crimes of murder ("Crim. Case No. 4535),t for the killing of Rafael Yboa and multiple murder (Crim. Case No. 4565)2 for the killlng of Daniel Er'rabo, Engracia Salazar, and Mario Errabo. On arraignment, they pleaded not guilty and, upon motion of the Provtnclu.I Fiscal consented to by defense cbunsel, the cases were joihtly tried in said court. After trial, defendants were found guilty of the crhnes of murder and multiple murder as charged and, ' considering the presenCe of four <4> aggravating circumstances in the murder case and five 15) aggravating circumstances .i.n the triple murder case, without any mitigating circumstance in either of the .two cases, were sentenced each to the maximum penalty of death, with the accessory penalties inherent In said crimes, and to pay Indemnity (jointly and severally> in th'": sum of PS,000.00 to the heirs of Rafael Yboa., !'5,000.00 to tht! heirs of Daniel Errabo, PS,000.00 to the heirs of Engracia Sa· lazar, and PS,000.0Q to the heirs of Marlo Errabo, and to p::i.y the corresponding costs. Both cases are now before us for review, in accordance with Section 9, Rule 116 of the Rules of Court. Pending appeal in this Court, counsel for appellants sub· mltted a motion for new trial, based on newly-discovered evidence, consisting of the aftldavit.s of UJ appellant Hermini· gildo Tafalla, to the etfect that only he and three others who are still at large, namely, Sebastian Layo, Rodolfo Catalan, and Jose Catalan, were the real authors of the murder [An· ne:>res A and A-17; Remedios Rojas, Hermlnlglldo's common-law wife, corroborating to a substantial degree said aftldavit of ·appellant Hermtniglldo Tafalla [Annexes B and S..17; (3) An· dres Caber, to the ef'fect that said Rodolfo Catalan told him and several others that only he [Rodolfo], his brother Jose Catalan, Sebastian Layo, and appellant Hermenlglldo Tafalla committed the murders [Annexes C and Cl]; <4> Comella Chan, wife of accused Francisco Tata.Ila, to the same effect substantially as the affidavit of Andres Cc;.ber [Annexes D and D-1]; \5> Floro Opinlano, relating how his coUBlns Jose and Rodolfo Catalan came to h1in in Ormoc City looking for jobs, and how seeing them restles.s, asked Rodolfo what the ma.tter was, and the latter confided that he and Hermenegildo Tafalla participated in the killing of Rafael Yboa [Annex E); and (6) appellant Santos Tafalla, to the effect that it was not true, as he was wrongfully advised to sta.te In court, that he saw th:it Oltmpto, Lucilo and Hermenlglldo Ta.falla sailing in a banca towards the scene of the crime [Annexes F and F-1). Action IG.R. No. L-15256. •G.R. No. L-15257. on said motion for new trial was deferred by resolµtion of this Court on July 13, 1959. These affidavits, we now flnd, are without merit. Appellant Henninigildo Te.fa.Ila's affidavit ts, evidently, a last-minute attempt to save the lives of his co-appellants, most important of whom are his brothers Francisco, Olimplo, and Lucllo Tafa.lla, who with him have been sentenced to death for the com.mission of the gruesome crimes at bar. Likewise, since the crimes could not have been committed by only one person as observed by the trial court, it has been deemed expedient to implicate the Catalan brothei-s (Jose and Rodolfo) who, anyway, could not be apprehended since their whereabouts are unknown. Appellant Hermlnlglldo Ta.fa.Ila, also, had to implicate Sebastian Layo, who according to witness Sgt. Prlmltlvo Gonzales, has been of so much help in the solution of the cases. It is to be noted that the conviction of the other 8.ppellants had not been based on appellant Hermlnlgtldo Tafalla's testimony, since the latter had all along relted on an alibi. It ts, thert~ fore, now too late for him to present for the first time a different theory of the said cases. Besides, the story of the.;;e aftiants can not be considered as newly dJscovered evidence because it appears from the affidavits that as early as June, 1957, or only over a month alter the Incident, the admis&lon of the Catalans was already known to the wives of two of the accused, but nothing has been done to present the evidence to the court untll long after the conviction of the appellants. In facl the motion for new trial was only filed here In this Court. Evidence which merely seeks to impeach the evidence upon which the conviction was based (U.S. v. Smith, 9 Phil. 674; U.~. v. Valdez, 30 Phil. 290; U.S. v. Lee, 38 Phil. 466; U.S. v. Slngui· moto, 3 Phil. 176), or retractions of witnesses (People v. Olflndo, 17 Phil. l; U.S. v. Dacir, 26 Phil. 503; People v. Follantes, 64 Phil. 527), wlll not constitute grounds for new trial, unless It is shown that there is no evidence sustaining the judgment of conviction except the testimony of the retracting witness) U.S. v. Daclr, supra; People v. Ga.Demos, 61 Phil 684; People v. Cu Unjieng, 61 Phil 906). The reason for this rule is that if new trial should •be granted at every Instance where an interestecl ' party succeeds In Inducing some of the witnesses to vary their testimony octside of court after trial, there would be no end to every litigation (Reyes v. People, 71 Phll. 598). It has been held that an affidavit, which a person convicted of a crime as in the instant case) executed subsequent to his conviction, to the effect that another person, also convicted of criminal participation in the same offense, did not actually take part therein, furnishes no ground for a new trial (U.S. v. Smith, 8 Phil. 674). And, it is unnecessary to grant a new trial when there is no assurance that the witness to be Introduced couid not have been presented at the original hearing; and hls te;o. timony will not materially improve defendant's position (Peo· ple v. Torres, 73 Phil. 107·) In People v. Farol <G. R. Noo. L·9424, prom. May 30, 1956), we declared: "x x x resort lo the use of affidavits of recantation x x x is becoming rather common. Appellate courts must therefore be wary of accepting such affidavits at their face value, always bearing in mind that the testimony which they purport to vary or contradict was taken in an open and free trlal In the court of justice and under conditions calculated to discourage and forestall falsehood, these conditions being as pointed out ill the case of U.S. v. Daclr (26 Phil. 507) that such testimony 'is given under the sanction of an oath and of the penalties prescribed for perjury; that the witness' story 1s told In the presence of an impartial judge 1n the course of a solemn trial 1D an open court; that the witness is subject to cross-exam1nation, with all the facilities afforded thereby to test the truth and accuracy of his statements and ~ develop his atti,lle<embor 31, 1963 LAWYERS JOURNAL .Page .. 369 tude of mind towards the parties, and his dlsposltion to as.slst . the ca.use of truth rather than to f·ur-ther some personal end; that· the prt>C"~i:Ungs ·are had oUnder the protectloa of the court and under such conditions as to re· move, so far as is humanly possible, all likelihood that undue or unfair influences will be exercised to induce the witness to testify falsely; and finally that under the watchful eye of a trained judge his manner, his general bearing and demeanor and even the Intention of his voice often unconsciously disclose the degree of credit to which he J.~ entitled as a witness. Unless there be special circumstances which, coupled with the retraction of the witness, real!y raise a doubt as to the truth of the testimony given by him at the trial and accepted by the trial judge, and only if such testimony Is essential to the judgment of convk· tion so much so that Its elimination would lead the ti-lal judge to a different conclusion, a new trial •based on such retraction would not be justified. Otherwise, there would never be all end to a criminal Utigatlon and the admlmstratlon of justice would be at the mercy of crlmlna~ and the unscrupulous. x x x.". In People v. Ublfia (G. R. No. L6969, prom. August 31, 19551, we said that "it would be a dangerous rule for courts to reject testimonies solemnly taken before courts of justice simply tiecaUse the witnesses who had given them later on chilnge their mind for one reason or another, for such a rule would make solemn trials a mockery and place the investigation of trutn at the mercy of unscrupulous witnesses". We have consistently retused to entertain motions for new trial based on Im· probability of the alleged new versions of the commission of ·the crime, and the easiness and facility with whlCh such affi. davits are obtained <People v. Mona.di, G. R. Nos. L3770-71, prom. September 27, 1955; People v. Agulpo, G. R. No. L12655, prom. June 30, 19601, and the probabtllty of their being repu· diated later IPeople v. Galamitan, G. R. No. L6302, prom. August 25, 1954 J. It .ls llkewlse not improbable that suc~1 seh.emes are conceived and carried out for a consideration, usually monetary (People v. Francisco, G. R. No. L-5900, proin. May 14, 19541. There is, therefore, no reason for acceding to appellants' motion· for new trial. Coming now to the merits of the cases, according to the evidence for the prosecution, and as found by the trial court, in the early morning of April 30, 1957, Rafael Yboa (of Barrio Mercedes, Catbalogan, Sa mar I and his wife Juanita Yboa went to Sition Cagutsan, Bario Mahacob, Tarangan, Samar; where they have a big parcel of land. At said sltio, the only dwelling place was the little shabby hut, where their tenant Daniel Errabo lived with his wife Engracia Salazar and their two-year old son Marlo Errabo. Ra.fael Yboa and Juanita Yboa arrived at the hut at around 10:00 o'clock in the morning. Said hut, which was partly walled by roughly woven coconut leaves, measured 10 feet on the frontage, by aboi.it 6 feet wide, with d floor made of course bamboo splits 15 inches above the ground. lt had a very low roof made of nipa. It was erected near the still standing posts of a destroyed house of Rafael Yboa <Exh. NN). It was only 85 feet away from the shoreline. (Exh. MM). Rafael Yboa and his wife went to Sltio Cagutsan that day to verify the information given by Daniel Errabo that appellant herein Pascual Curiano had been cutting some trees for posts from Rafael Yboa·s· land in Sitio Talabon not far from Sltio Cagutsan, which property was the subject of a pending litigation between Rafael Yboa and appellant Pascual Curiano Rafael Yboa, his wife, and Daniel Errabo prOceeded to the land at Sitio Talabon where they found some trees already cut. But only the stumps were there; the trunks were already carried away. Having been told by Daniel Errabo that appellant Herminigildo Tafall<:. also cut some trees, they hastened Lo said appellant's house at Sitto Sogod, a place very near and ad· Joining Sltio Cagutsan. They found on the yard of appellant Herm1h1glldo Tafalla's house some split wood intended for firewood. Rarfael Yboa confronted said appellant, who angriJy retorted Saytng "These splits of wood· are not from youi-· 'tand but from our land." · ' From the house of appellant Hermlniglldo Tafalla: at Sitio Sogod, the trio proceeded to Barrio Mahacob, one· kilometer away, to report to the barrio lieutenant about the· c'utting of the trees. Rafael Yboa requested the latter to admbnish appellant Pascual Curia.no to stop cutting the trees in the;land whlle the litigation was pending. The time was about · 4:0:J o'clock in the afternoon. .Leaving Bardo Mahacob a.t · dusk, the trio proceeded to Sltio Cagut.san. Sitio Cagut.san is a short and narrow tongue of 18.nd extending northward to the sea. From the shore on the West where the hut was located to the opposite shore on the"'East, is a trail 138 regular paces long <Exh. MM>. The ·nearest· dwel!ing place to that hut ls another hut in the adjoining sitlo, With a distance of more than 100 meters, which Is covered bY' tan trees and thick shrubs growing wild. The way from the one place to the other is along the seashore. 5aid way is reached by the water during high tide. At arou·nd 8:000 o'clock in the evening of the same day CApril 30, 1957) while Rafael Yboa, Juanita Yboa, Daniel Errabo, and Engracia S3.laza.r were taking their supper inside the hut, appellants Francisco Tafalla, Pamfllo Balasbas, and Candido Violante, stealthlly approached the hut, snatched the basket which was by the door, and ran away with it. Daniel Er·rabo ran after them, but was not able to overtake theni. The basket contained some rice and tobacco and the eyeglaues of Rafael Yboa. At around 11 :00 o'clock that night, the inmates of the hut stopped conversing, put out the lights, and prepared ti> retire. Rafael Yboa was seated on the floor with his .back against the north wall of the hut (point 6 on Exh. G). Jua.nlta Yboa was also in that position on his left, while Daniei Errabo and Engracia Salazar were leaning against the other wai.l. OnlY the ltttle boy Mario Erra.bo was lying on the floor. Suddenly, Juanita Yboa observed light-beams from flashlights, and heard repressed voices from the nearby beach. After . calling the attention of her husband, she and Engracia peeped. tl;lreugh the holes or slits in the walls and observed the apprOa.Ching group of people, eight in number. As they came nearer they were flashing their flashlights and from these llght beams as well as the glow of the many lights from the several fishing boats along the beach, Juanita recognized the appellants who were all residents in the place, headed by accused Curia.no whowas bearing a firearm. As they got at a short distance from the hut, Curlano fired his gun, hitting Rafael Yboa who was then in a kneeling position reaching for matches in thee packets of his trousers perched on the wall. Appellants Candido Violante, Santos Tafalla, and Pamfllo Balasbas, stood behind appellant Pascual Curia.no. Rafael Yboa fell to the floor. .Juanita Yboa jumped out of the hut, ran a short distance and bid. Daniel Errabo, Engracia Salazar, and Mario Errabo, also jumped out of the hut, but appellants caught up with them. From her hiding place, Juanita Yboa heard Daniel Errabo and Engracia Zalazar crying aloud thus "Aroy, Paplng (referring to appellant Pascual Curiano>, please do not kill ·US because we have not committed any fault", and saw appellant Pascual Curia.no standing by with the butt of his rifle (Exh. 3) resting on the ground, while the latter's companions, including appellants Olimplo Tafalla and Herminigildo Tafalla <who earlier were left at the seashore, but by now had joined their companions>, hacked and stabbed to death with" their boloes Daniel Errabo, Engracia Salazar, and their two-year old. son Mario· Errabo behind the hut, near the tamarind ~e. Juanita Yboa Page 370 LAWYERS JOURNAL December 31, 1911~ then hea.rd appellant Pascual Curiano direCt1ng his companions to look.for c.nd kill her, whereupon, appellants Santos Tafalla; Ollmplo Tafalla, and Francisco Tafalla searched the vicinity with their flashlights, but failed to locate her. ··Moments later, Juanita Yboa saw appellants dragging the bodies o1 the victims to -the beach. Juanita Yboa thereafter crawled from her hid· ing place ·until she reached the opposite shore, following the shore Jine northward and, upon reaching the point, crossed t:o the islet called Moropuro <Exh. MM> and there hid about the cemetei-y until dawn. From that point of Sitto Cagutsan to the islet Moropuro is about 200 meters. The water waa shallow. From Moropuro, she retraced her steps to S1tio Cagutsan from where she hiked to Barrio Ma.hayag, went to the house of her Son Severino Yboa, and Informed him of the tragic incident. Juanita and S"everlno Yboa hurried to Catbalogan and lmmedi· ately reported the gory incident she had witnessed to the Phil· ;ppine Constabulary authorities. A Constabulary patrol was dispatched to S'ltio Cagutsan that same day (May 1, 19571 ~o investigate. Arriving at the scene of the crime, they made the sketch (Exh. G), found the slug IExh. I at point 7>, the empty shell (Exh. I·l at point SJ, blood stains, and the traces on the ground to the seashore, left b)' the bodies of the victims (Rafael Yboa, Dani et Errabo, Engracia. Salazar, and Marlo Errabo) as they were dragged by appellants to the beach (Exh. Gl. Three days after the killing, or on May 3, 1957, at around 12:00 o'clock noon, the bodies of the victims were found float).ng on the sea, about 290 brazas from Cagutsan beach. Rafael Yboa's neck was tied to a rope the other end of which weighted with stone. About 100 brazas from Rafael Yboa's body, were the bodies of Daniel Errabo, his wife Eniracla Salazar, and their two-year old son Marlo Errabo, joined together by a piece of rope tied around their stomachs and necks, while the other end was tied to four big stones. It appears that after the victims were killed and their bodies dragged to the beach, they were loaded on a banca, tied to heavy stone.S to constitute as sinkers, and cast into the sea away from the beach for the purpose of concealment. But the sinkers could not hold the bodies at the bottom of the sea after the process of putrefaction had started. For the formation of gas brought about by the decay of the bodies, caused them to swell, making them more buoyant. Hence, their coming to the surface and their recovery. On May 3 and 4, 1957, a post-mortem examination of the cadavers was performed by Dr. Tomas 0. Ricalde, municipal health· officer of Catbalogan; Samar. He made the correspond· ing reports of his findings, drew the sketches showing the location of the wounds sustained by each of the victims, and ismled their respective. death certificates. His findings are a:; follows: n) Rafael Yboa: 72 years old, in advance state of d'!· composition, with the following wounds: 1. Wound, gunshot, left midclavicular region; about 1/2 inch below the left uipple. 2. Wounds,- gunshot, 7 in number located closed t<> each other at the· region of the right breast and epigastric region. 3. Wound, stabbed, penetrating, epigastric region. 4. Wound, stabbed, penetrating, rightiliac region. 5. Wound, gunshot <point of exit), right scapular re· gton. 6. Wound, gunshot (point of exit>. left lumbar region. Cause ot death: Shock due to severe hemOrrhage, secon· da.ry to the above-mentioned wounds. (Exh. AL . (2) Daniel Errabo: 30 years old, in advanced state of de. .,. CQIJlPO~tion, with the following wounds: 1. Wounds, 16 in numbel', .. ,stab_b.ed scattered at the postertor portion of the body. 2. Wound, stabbed, penetrating, left supra·clavlcular region. 3. Wound, stabbed, penetrating, one inch to the right of the right nipple. 4. Wound, stabbed, penetrating, right hypochOndrlac region. 5. Wound, stabbed, penetrating, right iliac region. 6. Wound, stabbed, left wrist, dorsal surface. 7. Wound, stabbed, right wrist,· ventral surface. Cause of death: Shock due to severe hemoi::rhage due to above wounds. ( Exh. B) (3) Engracia Salazar: 25 years old, in advanced state of decomposition, with the following wounds: 1. Wound, stabbed, penetrating, left lumbar region. 2. Wounds, stabbed, penetrating, 6 in number, located at the right iliac a~d lumbar region. Caused of death: Shock due to severe hemorrhage due to above wounds. . ( Exh. C) <4J Mario Errabo: 2 yea.rs old, in advanced state of decomposition, with the following wounds: 1. Wound, stabbed, left upper arm cuttiilg the humerus and almost severing the left arm. 2. Wound, stabbed, right hypochondriac region, penetrating the Uver. · Caused of death: Shock due to severe hemorrhage due io due to above-mentioned wounds. (Exh. D) Appellants Pascual Curia.no, Hennlnigildo Ta.falla, Santos TafaUa, Francisco Tafalla, Candido Violante,· and Pamfilo ·sa... lasbas were arrested on May 1, 1957, after Juanita Yboa narrated the incident. Appellants Oltmpio Tafalla and Marcelo Tafalla were arrested on May 4, 1957. · Sometime prior to the date of the killing, there existed serious land troubles between the deceased Rafael Yboa and appellants, c.s disclosed by the following complaints which were filed in court: On January 21, 1955, a complaint for the.ft of bamboos was filed by the deceased Rafael Yboa. against appellants Pascual Curiano and three 13) others in the Justice of the Peace Court of Tarangan, Samar <Exh. FF). On April 1, 1955, a complaint for forcible entry and detainer was filed by the deceased Rafa.el Yboa against appellant Pascual Curiano in the Justice of the Peace Court of Tarangnan, Samar (Exh. DD·ll. On February 23, 1956, complaint for theft <cutting of timber treesJ was filed 'by the deceased Rafael Yboa against appellant Pascual Curlano and seven (71 others in the Jllstlce of the Peace Court of Tarangnan, S'amar (Exhs. GG and GG-U. On the same date, a complaint for theft of bamboo post and firewood was filed by the deceased Rafael Yboa against appellants Pascual Curiano and Candido Violante and one Mateo Bz.lasbas in the Justice of ihe Peace Court of Tarangnan, Samar (Exhs. HH and HH-lJ. On March 16, 1957, a complaint for theft was filed by the deceased Rafael Yboa against appellant Pamfilo Balasbas and one Rufino Versoza In the Justi~e of the Peace Court of Tarangnan, Samar (Exhs. JJ and JJ-1}. Lastly, on April, 1957, the deceased Rafa.el Yboa filed a complaint for theft (cutting of timber treesl against appellants Pamfllo Balasbas and Candido Violante, and one Lucio Balasbas in the Justice of the Peace Court of Ta.ra.ngnan, Samar CExhs. II and Il·ll. On the other hand, appellant Pascual Curlano and two others as plaintiffs, filed on March 2, 1950, a complaint again."!t the deceased Rafael Yboa as defendant, which was docketed as Civil Case No. 4512 of the Court of First 'Instance of Samar, December 31, 1963 LA WYERS JOURNAL Page 371 involving the piece of land which is the subject matter Of the forcible entry and detainer case (Exh. EEJ aforementioned. Appellants' defense is alibi, to wit: Pascual Curtano in the evening of April 30, 1957, rode in a motor boat to a fish corral out in the sea of Mahocob, Tarangnan, Samar, about 2 kilometers from Sitio Cagutsan. After dropping the net at about 9:00 o'clock in the evening, he and his companions in the motor boat, as well as the men who were in charge of the fish corral, went to sleep until 5:00 o'clock of the following morning. Then they loaded 4 canastas of fish in the boat, proceeded to another fish corral in Calbo, where they loaded another 3 canastas of fish, after which, they sailed for Catbalogan, where they sold all the fish to one Vicente Alabat for P60.00. As witnesses he presented Jorg~ Cortan, Maximo Latoja, Jaime Acaln, and Vicente Alabat. Their narrative follows: Appellant Pascual Coriano and Sgt. Acain of the PC stationed at Catbalogan, Samar, were c~wners or the fish corral, the motorboat, and the fish business which was then managed by appellant Pascual Curiano. The fish corral was about 2 kilometers from· Sitio Cagutsan. To that fisn corral went Jorge Cartan and hi.s 7 helpers, leaving Barrto Silanga on a big banca <sampanl on the night of April 30, 1957. Upon reaching it at about 9 p.m., they dropped the net to catch fish. Shortly after, the motorboat manned by" appellant Pascual Curiano, Maximo Latoja, Jaime Acaln and one Julian arrived. It was moored to the fish corral and the crew went to sleep. Cartan slept soundly and woke up at 5 a.m. Ma1 1, 1957. Latoja woke up at about 12 p.m. midnight and Jaime Acain at about 2 a.m. and the last two, to urinate. Both La· · toja and Acain saw appellant Pascual CUriano sleeping at the time each stood up to urinate. Both returned to slrep after urinating and woke up at about 5 a.m. May 1, 1957. After load· ing the catch in that fish corral (4 canastas) and buying 3 canastas of fish in Talbo, they sailed to Catbalogan arriving ~t 7 fi.m. and sold their load of fish to one Vicente Alabat for P60.00. The alibi of appellant Pascual Curiano deserves no credit. As observed by the trial court: ••x x x the alibi of Pascual Curiano has all the aspects of fabrication. It has all the characteristics of a story de· signed to fit the intended. purpose of showing the where· abouts of the defendant to be 1n a place other then tha.t where the crime was committed at the time of its commission. The uniformity of the declarations <of his witnesses), the lack of documentary record, and the omission of the necessary witnesses prove it to be made-up story. "It is strange that in spite of more than one and a half years that had elapsed, the witnesses could be so accurate not only as to the different hours of their mO\.f!· ment, but also as to the quantity and the quality of the fishes which were alleged to have been taken by them from two different fish corrals. As was said above, such unformlty even in the details given by the several witnesses, connotes an agreement among them on the story they would tell the Court. · "If it were true that Curiano had fish corral and w::..s engaged in the business of selling fish on April 30, 1957, he should have exhibited a license for the said fish corral, or a license for the business he claims to have had. Such documents cannot be fabricated. If he had them he would have shown them. By not showing them, the inference is that he had no business on April 30, 1957. It might be that he had it another time: and the story now given could have referred to that other time. "No one of the seven men alleged to have been with Jorge Cortan was presented to testify. It was not·. shown that they could not be available. Since an alibi needs all the possible evidence because it can easily be fabricated, those men should not have been omitted. Again, it can be said that from their omission logically ar'lscs the inference that if they testlfled they would have told that the fish corral they served with Jorge Cartan was one in business before April 30, 1957. "Even conceding th&.t at tbat time Curiano haci a fish corral and arrived thereat at nine o'clock that evening of April 30, 1957, slept in the motorboat at ten o'clock and was found by Cartan. Acain and Latoja. to be still there when they woke up at five o'clock the following: morning, still the alibi ls imperfect. The witnesses said to have slept at ten o'clock and Cortan claimed to have woke up at five o'clock in the morning; Latoja woke up at twelve midnight, stood up to urinate, saw Curlano, slept again, and woke up at five o'clock in the morning; and Acain woke ·up at two o'clock to urinate, saw Curlano slept again, and woke up also at five in the morning. The declarations of Latoja ·that he woke up and Saw C~1riano when he urinated at twelve o'clock and that of Acain r..t two o'clock are· declarations without any support IQ keep them upright as a good and credible proof. Both are without corroboration. Each stands by itself. How and why could they remember that they urinated at thOS"e hours? That they saw Curlano? Could it not ·be another? The evidence adduced had no answer to these questions. It is believed that in an alibi, these points a.re relevant indeed. Only their declarations that they woke up at five o'clock in the morning have some color of proof; ea.ch corroborated the other. Such being the case, they. slept from ten to five o'clock or for seven hours. Considering the distance of the fish COJTal to the scene ot the crimv.. even a period of two holll'9 was sufficient for one to 10 from the fish corral and return to it after the a.a.ult. His companions could have done the disposal of the bodies." fEmphasis Supplied, pages 49-52). Candido Violante and Pamafilo Balasbas loaded 260 bundles of firewoods in their banca in the afternoon of Aprjl 29, 1957 and sailed for Catbalogan., at. aboqt 3 a.m. AprJI. 30: to sell those firewood. They failed to sell them to one Marcelino Tuazon of Catbalogan as the latter had plenty of the~ in stock. So, they carried and peddled them around the town and were able to dispose of 100 bundles on the same day April 30. In the evening, until the morning <May 1), appellant P8.mmoBalasbas and hi.s wife slept in the kitchen of Marcelino TuSl· zon's house at Catbalogan, while appellant Candido Violante slept in the banca to watch the remaining firewood. On May 1, 1957, they sold the remaining 160 bundles of firewood, after which, they went shopping and left Catbalogan at 7 a.m. of the same day, reaching their h?use at noontime. As witnesses they presented Marcelino Tuazon, Encarnacion Bolos, and Porfiria Bellasana. Their narratve follows: Appellants Candido Violante and Pamfilo Balasb~s were together ln Catbalogan, Sa.mar, from the morning of Aprll 30, to the morning of May 1, 1957. Violante and Balasbas had 260 bundles of firewood. in the yard of their houses at Sitto Dalongdong, Mahacob, Tarangnan, samar, to be brought to Catbalogan. They loaded them in the banca in the afternoon of April 29, 1957. At about 3 a.m. April 30, Violante and Balasbas sailed for Catbalogan. Porfiria Bellas;na, wife of Villante, went with them. They arrived at Catbalogan at 8:00 a.m. that morning and docked near the house of Marcelino Tuazon, a. firewood dealer at Catbalogan. The latt~r did not. buY the Page 372 LA WYERS JOURNA~ December 3'1, 1963 firewood as he had still some in stock. Violante and Bala;-.. bas then peddled them around the town and then went to th~ market' the· whole day Untn an· of the firewood were sold. In the me&.n"tlme, Pcirflrla Bellasana went to a photographer to have her picture taken CExh. 8-a) and then proceeded to the Justice Of the Peace Court for the contract Exhibit 6 which she made with a recruiter of an employment agency. Via· lante, Balasbas and Porflria ate their 3 meals that day at the house of Tuazon. After taking their supper at 7 p.m., Violante and his v;ife Porfirla slept in the kitchen of Tuazon's house and Balasbas slept In the banca.. They left Ca.tbalogan at 7 a.nt. May 1, 1957 and reached their homes in Dalongdong at noon. Porftria Bellasana took that trip to Catba.logan to make ·the necessary arrangement with the recruiter about the employment of her cousin Engracia Cabarles. On that trip, Engracia was in another boat with Peltng, Cleta and Filomena. The l)anca where Engracia and other companions boarded and that where Porflria, Violante, and Balasbas were, salled togethet from Dalongdong until Catbalogan. The two vessels wer'? side by side and only about 5 meters apart during the whole trip. Also, the alibi of appellants Candido Violante and Pamfil:l Balasbas is unconvtnctng. We agree with the following Ob· servatlon of the trial court: "The story ls fi;1.ulty. The declaration of the witnesses ~ow that the story Is fabricated. It has the following fl~ws and cracks: "1. Marcelino Tuazon lied throughout his declaration. He clalnis to 'be engaged in business dealing in firewood. x x x BU:t he bad no llcense tor that business x x x nor kept any record of his transactions. x x x In all his answers, ~ the direct as well as the cross-examination, he couH n9t give dates, much less hours, when he purchased flre'?79od from several dealers. But yet he could give not OlllY the date, April 30, 1957, but also the hours; and further, the movements of Violante and Balasbas even if he , Qtd .not buy firewood from them. And no reasons were shoWn for so remembering that partlci.i.la.r date, the hours and their movements. "2. U it were true that they were at Tuazon's house during the whole night of April 30-May 1, 1957, Violante, Balasbas, and/or Porflria could have told the constable.:; who held the first two that afternoon for the murder thd took place in Cagutsc.n. None of them told the soldiers. Not even when they were kept in the Constabulary barracks whch was only a few meters to the house of Tuazon. Even Tuazon was not informed of their arrest by any one 01' them although they could do so had they wanted to. They could not make that information because it did not happen. They had to fabricate an alibi, the only feasible defense In these case. Tuazon was the only stranger avail· able for the fabricated story. Encarnacion Bolos and Perfltia Bellasana are the wives of the two accused. "3. Why Engracia Caba.rles and/or any of her companions in the other banca (Feling, Cleta, Filomena) wete not called to testify, was not shown; they knew them; and ihey know. where they were at the time of the trial of the case. x x x Porfirla Bellasana who was used to make trips to Catbalogan without her hUSband was alleged to have a trip with him for the first time only that day; and for a purpose which had no concern with him x x x Porflrla accompanied her cousin Engracia to Catbalogan. She was her guardian; and she expected money from tti.e transaction she was to have with Pellng. x x x Peling w.is interested in her recruitment work. Porfiria was interested tn the money she could get out of the deal. Peling hir~d Cleto to bring them to Catbalogan. Filomena, the wife of Cleta, accompanied her husband. S'o tn the early morning of April 30, 1957, Cleto and the four women CPorfiria yellasana, Engracia, Peling, and Filomena) tn Qne bancu., left Do.longdOng fo_i- Catbalogan On April 30, 1957, ~hen the contract Exhibit G was executed. Engracia, Peling, Filomena. and Cleta would have thua testified if "called to the witness stand. Hence, their omlssion. "4. Porflrla's declaration a.bout the picture-taking she and Engracia had on Aprll 30, 1957, proved her to be lying. x x x The figure on the right of the picture marked Exhibit 8-A ls that of Porfiria, and that on the left marked Exhibit 8-B Is that of Engracia. Porfiria referred to this plctu1·1? when she declared that she and Engracia posed for it before the photographer. The figure below Porflria's figure CExh. 8-A) ls the head of a woman. It ls clear that the picture was not posed by Porflria and Engracia alone as claimed by Porflria in her declaration, but one taken from a group picture of at least three women. "That declaration of Porfiria about she and Engracia only posing on April 30, 1957, ts of substance as it affect the date which Is relevant to the issue. It ts therefore a material declaration; one which tries to make e\l'ident a point of consequence. Having lted, and knowingly, on a material point, she made her whole testimony inci'edibl~. rFalsus, in uno, falsus In omnibusl. "Our experience shows that several persons witnessing an incident and later give a deeription of it, they will surely differ widely as to details or collateral matters while agreeing on the particular thing which is the Incident itself. Bot in this alibi of Violante and Balasbas, we have the declarations of all the witnesses agree on al• t~e de· tails and rerardlng the mov~ents of the· perso~. eoq· cemed and the time when such movements were allefed to have taken place,· and, in spite of the lapse of one year and seven months. Such a perfect narration connotes ::an agre~ent among the witnesses of tbe story to be told; a fabrication of the alleged alibi." CEmphasis supplied; pages 4041, Decision.) Olimpia Ta.fa.Ila and Marcelo Tafalla attended a meeting held In the house of Councilor Joaquin Nanaunag at Barrio Maha.cob, Tarangnan, Samar, from 8 to 12 p.m. April 30, 1957, after which. they went home and slept till the next morning May 1, 1957. As witnesses, appellants presented Joaquin Nabaunag, Le· oncto Beato, and Paclencta Molito, whose story follows:· Na· baunag was the municipal councilor for Barrio Maha.cob; Beato was the assistant barrio lieutenant of Maha.cob; and Pactencla Melito is the wife of appellant Ol1mp1o Ta.fa.Ila.. On April 30, 1957, from 1 to 4 p.m., the councilors of Tarangnan were at Mahacob and had its session attended by many residents of the barrio including women and, among those who attended, were appellants Olimpia Ta0fa.lla and Marcelo Tafalla. Thereafter, the residents of the barrio returned to their homes; after the merienda the visitors left Mahacob. Then at about 8 pm., Nabaunag caited the officials of the barrio to his house to talk about means to be used in gathering funds needed to defray the expenses for the transportation of a driller to Ma.hacob. Among (hOse present thereat were appellants Olimpio Tafalla and Marcelo Ta.fa.Ila. The last persons to leave the house at around 12 pm., midnight, were five, including appellants 011mpio Tafalla and Marcelo Ta.fa.Ila. Lkewtse, appellants' alibi is unworthy of belief. We concur with the following findings of the trla;l court: LA WYERS JOURNAL P.;.ge 373 "x x x x there is nothing in the testimony of the witnesses to show they could not have been mistaken about the time. Could the meeting referred to not have been some time before April 30, 1957? What categorical proQf was shown that it was on that day and not on another? Could it have been that the municipal council did not hoJd any session In Mahacob? Or if it had, was it not on a day other than April 30, 1957? The human memory 13 short. A meeting must have some minutes. It may be argued that the alleged meeting from eight o'clock to midnight was one without need of any written reminder. But there was an alleged session of the municipal council. It must not be without minutes. Since the testimony of the witnesses was intended to show that the alleged meeting of the barrio residents followed a session of the municipal council, proof of such council session should be produced Jor precision a.s to time to avoid uncertainty. "And the unreliability of the memory of the witnesses is shown by the discrepancy of their testimony about the date when the constables went to Mahacob to arrest Olimpia Tafalla and Lucila (Marcelol Tafalla. While Olimpio Tafalla said that he was taken by the soldiers on May 4 (p. 414, t.s.sn.) and Luella on May 11 (p. 439, t.s.n.), the inunicipal councilor Joaquin Nabaunag said that· they were on May l; and he was present when they were so taken Cp. 349, t.s.n.)." (Pages 53-54, Decision). Santos Ta.fa.Ha attended the same meeting aforementtencd from 6 to 10 p.m. on Aprll 30, 1957. As witnesses, he presented his father-in-law Elias Magallanes, whose narrative is as follows: After taking supper in the night of April 30, 1957, appellant Santo Tafalla went to attend the meeting in the house of councllor Nabaunag. On this allbl of appellant Santos Tafa.Ua, the trlal court aptly observed: "With respect to his going to the house of the councilor that evening of April 30, 1957, Santos Tafalla contradicted his· father-in-law who said that he csantos) went after taking supper.x x x But yet none of those four persons he mentioned was called to testify to his alibi; and no reason was shown for that omission. It can be said that if called, they would belie him. "Then he went on in his direct testimony that he went home from the house of Councilor Nabaunag at about ten o'clock that evening, and before going up the house he stopped to urinate. x x x Stlll in direct examination, Santos Tafalla admitted having executed the affidavit Exhibit U (translation Exh. U-lJ. "Santos Tafalla who knew the commission of the crime is now excusing himself by throwing the blame to some of his co-defend8.nts. But his alibi is indeed very poor. Since an alibi can easily be fabricated, it should have a strong support in the way of all available proofs. Failure to present such proofs without justifiable excuse, makes this kind of defense suspicious. In an alibi, the testimony of disinterested persons is the most needed. Elias Magri,. Hanes is certainly a person who is very much interested in the liberty of Santos Tafalla. Circumstances make him :so." CPages 45-18, Declsion.) Francisco Tafalla went home to Barrio Mahacob, Tarangnan, 5amar, at 7 p.m. on April 30, 1957, took supper, and went to sleep until 8 p.m. the following day May 1, 1957. As witnesses, he presented his wife Cornelia Chan, Anlceto Camas, and Dolores Aquil, whose narrative is to this effect: Cornelia Chan, wife of appellant Francisco Tafalla went to get Dolores Aquil at 7 p.m. on Aprll 30, 1957, and brought her to their house because her grandmother was complaining of severe stomach pain. At that hour, Dolores entered the house, administered to the sick woman, and she saw Francisco TafallR sleeping thereat. Aniceto Camas stated that the stains in the trousers (Exh. Vl of appellant Francisco Tafalla was caused by chicken blood. We agree with the observation of the trial court as to the incredibility of appellant Francisco Tafalla's alibi, to wit: "How the trousers· Exhibit 'V' of Francisco Tafalla happened to be stained with blOOd as narrated by him and Aniceto Camas is somewhat unusual; some happening that does not run parallel to the ordinary way of man's behavior. It is much of a coincidence that Francisco Tafalla. would cut the neck of a dying and beate~ chicken and splashed his trousers with bloOd only several hours before the blood of four persons (the victims) was split. However, he was not picked because his pair of trousers had bloodstains. The trow;ers were found to have the stains after he was pointed out to be one of the assailants. x x x ''Granting that Dolores went to Francisco's house for the sick woman, could Ii not be that she went on a night other than the night of Apr11 30? It could have been possible. For· with respect to dates, both Cornelia and Dolores were not attentively particular. Nelther could tell the date when their patient died. In fact Dolores even went to admit repeatedly that it was on March 30 and not on April 30, when she went to Francisco's house to adminlster to t.he sick woman (p. 331, t.s.n.) whlch she repeated after she tried to show that she knew to remember dates <p. 337, t.s.sn.J. "And on May 1, when the constables went to take along Francisco Tata.Ila for the murders committed the previous night, both Cornelia and Dolores were there face to face with the const&.bles. Dolores did not say anything; and Cornella did not make any move to make known to the arresting soldiers the presence of her husband and Do- · lores in the house that evening. Camelia persisted on being evasive in her answers until the last moment she was on the witness chair." IPages 55-57, Decision.) Lastly, Hermlnipldo T.afaHa went home from his farm, slept beside his wife and children in their house at Sitio Sogod, Tarangnan, Samar, from 8 p.m. April 30, to 6 a.m. May 1, 1957. In the afternoon of the latter date (May 1) he was arrested by soldiers. He did not present any witness to support his alibi, and we are wtth the trial court that said allbi should not be believed. Apart from the trial court's observations above-quoted regarding the incredibility of appellants' alibi in this case, we note from a cursory examination of the map <Exh. OOJ showing the relative distances between the scene of the crimes at bar in Sitio Cagutsan and, the sea near Barrio Mahacob, Tarangnan, Sa.mar, where appellant Pascual Coriano allegedly was, and Barrio Mahacob, where appellants Olimpio, Man:elo; Santos, and Francisco Tafalla allegedly were at the time of the commission of said crimes, will clearly show that it has not even established by said appellants' alibis that it Wf.S physically impm:~ible for for them to be present in nearby Sitio Cagutsan. In a long line of cases, it had been held that in Order to establish an alibi, a defendant must not only show that he was present at some other place about the time of the alleged crime, but also that he was at such other place for so long a time, that it was impossible for him to have been at the place where the crime was committed, either before or after the time he was at such other place. <Pe:ople _v. ·..\lban, G. R. No. L-15203, prom. March 29, 1961, citing People v. Qxlles, 20 ?hil. 587; LAWYERS JOURNAL December 31, 11163 People v. Pala.mos. 49 Phil. 601: People v. Resabal, 50 Phil. 780; People v. Ntem, 75 Phil. 668.) The appeal presents no issues of law. It merely involves the credibility of the various witnesses. and the rule is weltcstablished that when the issue involves credibility of witnesses, appellate courts will not generally disturb the findings of the trial court, as the latter is In a better position to decide the question, having been and heard the witnesses themselves and observed their behavior and manner of testifying during the trial, except when it is shown that the trial court has overlooked certain facts of substance and value that, !f considered, might affect the result of the case (People v. Alban, supra, citing People v. Berganlo, G. R. No. L-10121, prom. January 22, 19571. 1'he trial court In the case before us has made a complete and thorough analysis of the various testimonies, which we find to be properly and well-supported by the evi· dence adduced. Said alibi of appellants, to our mind, cannot overcome the testimony of Juanita Yboa, wife of the deceased Rafael . \"boa <i.n eyewitness to the bloody incident, who testified in a clear, credible, straightforward, and convincing manner and who positively identified appellants as the perpetrators of the crimes in question. On this point, the trial court observed: "The direct evidence come only from the wid0w of the deceased Rafael Yboa <Juanita de Yboal, the lone survivor in the group. Considering her intelligence, her opportunity Of knowing the fact, her memory, the heart-rending ordeal she Passed. the probabilities and improbabillties of her teo,;timony, the character of her testimOny, the long hours or &a:d.ng and contus'ing cross-eiaminatlon, and her way 11f answering the question and general behavior while testilyillg, the Court finds no reason to doubt her deelaration. Juanita de Yboa recognized six of the accused immediately preceding the fatal moment. When she heard low voices and saw llght·beams from flashlights on the beaC:h immediately In front ot the hut, she looked through the holes of of th~ wall of the roughly woven coconut leaves. She recognized the six men approaching the hut from the beach to be Pascual Coriano, Francisco Tafalla and Pamfllo Balasbas, Lucilo <Marcelo) Tafalla, S.antos Tafalla, and candido Violante. Pascual Curia.no was holding the rifle that fired at her husband. At the time she was hiding in the bushes, she saw Olimpia Tafalla stab Engracia Salazar and Herminigtldo Tafalla stabbed Daniel Errabo. "The Court went to the scene of the crime after the testimony of luanlta. de Yboa. From the observation ·>f t.he Court about the make of the hut and the field around, the declaration of Juanita. was possible." (Emphasis supplied, Pages 58-59, Decision.) Needless to say, said testimony of Juanita Yboa regarding the Incident is amply supported by "strong circumstantial proo!s which took place before and after" the commission of the crimes. Said the trial court: "That direct evidence is supported by strong circumstantial proofs . which took place before and after the inci· dent." "As was said above, the motive of the crime was re- l t sentment against Rafael Yboa who continuously annoye.J, haramed and humiliated the defendants. That resentment is briefly expressed by Pc.scual CurlaJ10 in paragraph 9 of his complaint Exhibit 'EE', to wit: '9. That every time the plaintiffs herein and the!r laborers are cutting lumber and gathering bamboos and fore.st products and firewood from the said land of Ramona Moreno, the herein defendant is continuously molesting them by filing either crlmiD.al or civil cases against the said plaintiffs particularly Pascual Curiano and his laborers. "Earlier on that fatal day, Rafael Yboa, Juanita and Daniel Errabo went to that part of the land to verify the report about the recent cutting of trees by Pascual Curia.no: then they went to the house of Herminiglldo Tafalla who was confronted thereat by Yboa about the pieces of trees on his yard and then they proeeeded to the barrio to report to the barrio lieutenant about the recent cutting of trees. Yboa requested the· barrio lieutenant to stop Coriano from further cutting any thing in the land until the termination of their litigation about the land pending in court. "And then at around eight o'clock that evening Sebastlna Loyo s.o.w the four accused (Pascual Curia.no, Henniniglldo Tafalla, Olimpia and Lucllo [Marcelo) Tafalla) pass by his house in Sogod walking toward Cagutsan. Hermlnigildo Tafalla was carrying a rifle. At about three o'clock following the time when they passed by his house, he met them again. This time it was on the beach. 'l'hey we!'e in a banca which docked in front of the house of Herminigildo Tafalla. Afr.aid of the threat of Pascual Curia.no, he allowed the rifie to be left in his house. The presence of the rifle therein made him and his family move to Da.longdong. "On May 16, 1957, Hermlnlgildo Tafalla revealed to Sergeant Gonzales that the gun was hidden in the house of Loyo. It was found ln that house. The gun is now marked Exhibit 'E'. "A ballistic examination showed that the slug CExh. 'I'l and the empty shell <Exh. I-1> which were found about the scene of the Incident, were fired from the rifie Exhibit 'E'. "On May 2, 1957, Olimplo Tafalla, referring to the blood-stains in the banca told Encarnacion Bolos to tell any one who might inquire about those blood-stains that 3. butchered pig was loaded in the banca. "The laboratory examination showed the stains to be 'positive for blood'. "It Is important to note that Olimpio Tafalla. was one cf the four who was seen by Sebastian Loyo at about three o'clock boarded In a banca. "And Josef Nabaunag said so in Exhibit 'KK' that he saw Ollmpio 1'afalla at about two or three o'clock that morning sailing in the banca of Encarnacion Bolos. "Two events are noteworthy: (I) It was about eight o'clock that evening when Juanita saw Francisco Ta.falla, Pamfilo Balasbas, and Candido Violante snatched the ba..:;ket from the door of the hut; <2J it was also about tha.t time when Sebastian Loyo saw Pascual Curia.no, Herminigildo Tafalla, Ollmplo 'tafalla and Lucilo Tafalla passed t:y his house in Sogod walking towards Cagutsan. So that while some of the accused were on their way to Cagutsa:.1 the others were already there to perform some preliminaries for the main objective. "The examination about the presence of the blood stains on the trousers Exhibit 'U' of Candido Violante and on the trousers Exhibit 'V' of Francisco Tafalla, were silly. "Against the strong and convincing proofs which clearly and directly point at the accused to be the perpetrators of the heinous and savage murders, the defendant.s put in several and separate alibi which were made Incredible by the absurd stories told to support them. December 31, 1963 LA WYERS JOURNAL Page 375 "By ·the evidence, there is no doubt In the mind ot tile Court' that the def~ndants a~ guilty of the crimes they starid charged ht both intor.D.atlons." (Emphasis supplied, Pages 59-62, Decision.) There was conspiracy on the part of appellants in the commission of the crimes, which make each of them liable for the crimes committed and for as many victims killed. As pointed out by the trial court: The manner of the commission of the crime shows a concerted action by several persons who conspired and confederated together and helped each other in it.a execution. "That there was a previous planning about the execution of the crime, Is clear enough. The perpetrators must have met that evening at a given place, and from there went together to the place where they knew their victims ~ere to be found at the time. The act was impelled by revenge. R.obbery could not have been the motive. There was nothing to take with intent to gain from the intended victims. Nothing of value would be kept in such a frail hut which was in an isolated place. x x x" (Pages' 9-10, Decision.) ·There was treacherY, which qualified the killing of the foUr victims, to murder, as the attack was so sudden and unexpected, thereby insuring the accomplishment of the crimes, without risk to appellants arising from the defense which they (victims) might have offered (People v.Alban, supra, citing People v. Godinez Mt.rtinez, G.R. No. L-12268, Prom. November 28, 1959; People v. Ambahang, G. R. No. L-12907, prom. May ·30, 1960). The trial court stated thus: "That the act. was committed with treachery, cannot be doubted The victims were surprised. They were not given the least warning. The attack was instantaneous. They were not afforded the least chance to escape. They fired at Rafael Yboa. When the other Inmates jumped from the hut to escape, the offenders were around to meet and assault them at that time when they could not offer any resistance or defense. The offenders employed means which tended to insure the execution of the intended crime. x xx." (Page 11, Decision.) There was evident premedlktion in the commission of the crimes. According to the trial court: "x x x The pieces of rope and stones were objects which could not have been picked up anywhere at that time of the night and In that isolated place. The rope and the stones were in the banca before they went to the place of the incident. This was another part of the plan. The synchronized movements of the actors which made possible the successful termination of their acts from the killing so the disposal of the bodies, during such a brief period, must be the result of a pre-conceived plan. All the preparations to carry out the conceived plan could not have been effected in a short expanse of time. It could have taken at least hours, possibly days. In premeditation, there ls no fixed period of time. The period of time necessary to Justify the inference that there ts known pre. meditation ls a period sufficient in the judicial sense to give the accused full opportunity for meditation and reflection, and sufficient to allow the conscience of the ac· tor to overcome the resolution of his will if he desires to harken to its warnings. (U.S. v. Blanco, 18 Phil. 208.) x x x." (Pages 10.11, Decision.) Abuse of superior strength was also attendant, it appearing that appellants, aside from being all armed with deadly weapons, were decidedly superior In number [8 In all] In relation to the number of the assaulted parties [only 3 and a boy :~i~. ~~~~~] (U.S. v. Tandoc, 40 Phil 954; People v. Cuoz, eg The aggravating circumstance of uninhabited place attended the commission of the crimes. On this point, the trial court pointed out that"ConaJderJng the tre~s thal aboun.d and tl;le thick shrubbery which was glowing _between the place of '.'the incident and the nearest house which was more thin C.he hundred meters &way, the circumstance of milDhabited place has to be taken into account as it was apparent.. that at such a place the victims did not have a chance. of .. be· Ing seen and helped by another person." (Page 12, Declslon.) The circumstance of dwelling may, further, be considered .· as to the killing of Di;.niel E~abo, Engracia Salazar, and Mario Errabo, as l't occurred in their dwelllng place (the hut)" or on the ground thereof (U.S. v. Macarlfias, 40 Phil. 1). The aggravating circumstance of nighttime. although pre- .. sent, may not be taken Into account, Inasmuch as it ·ts ab· sorbed In treachery (People v. Balagtas, 68 Phil. 6'l5). Neither may we consider the circumstance 'Of cruelty as found .it).y .. ·the trial court, because there Is no showing that the other . wounds found on the bodies of the victims were inflicted unnecessarUv while they were still altve Jn order to prolong their physlce:i suffering. The number of wounds found upon the corpStf does not, by itself alone, justify the acceptance of the circumstance ot cruelty, It being necessary to show that the accused deJlberately and Inhumanly Increased the sufferings of the victims· <People v. Aguinaldo, 55 Phll. 610; See also People v. Dayug, 49 Phil. 423; People v. Daquiiia, 60 Phil. 279). LastlY, 'th~""clr: cumstance of lack of provocation was incorrectly considered by the trial court as aggravating in the k1Wng of the E;r,r$bos; ::e~a~e th~ ~tvi::: ;~n~e C:.~~avatlng circumstance~ . en.vmeIn the circumstances, we find each of the appellants.~ut.y of four (4) crimes Qf murder in the ·two (2) cases re.vlt:rWed. However in view of the lack of the required number of B v,otes, the death penalty Imposed by the trial court upon each .. ot. the appellants ls hereby reduced to life Imprisonment for ea.Ch C"f the four crimes committed, the maximum of which shall not exceed forty years. The Indemnity adjudged by the trial court ls, however, increased from P5,000.00 to P6,000.00. Modified, as a:bove indicated, the judgment of the:•trlaI court, ls affirmed, with costs againSt the appellants. :·~ SO ORDERED. Bengzon, C.J., Bautista Angelo, Concepcion Reyes, Pare4~~~ Dizon, Regala and Makallntal, JJ., concurred. · ·,:; • Printers • Publishers • Bookbinders • Typesetters 1'1-intor cf th< LAWYERS JOURNAL 2838-42 AURORA BLVD. CORNER RIZAL AVE., STA. CRUZ, MANILA Tel. 2-89-0? Page 376 LAWYERS JOURNAL December 3Ji .1963 REPUBLIC ACTS REPUBLIC ACT No. 3600 AN ACT TO PROHIBIT THE EMPWYMENT OF STRIKE BREAKERS ANt> THE TRANSPORTING OR ESCORTING BY PEACE OFFrCERS AND/OR ARMED PERSONS OR PERSONS SEEKING TO REPLACE STRIKERS IN ENTERING AND/OR LEAVING THE STRIKE AREA, AND TO PROVIDE PENAL· TIES THEREFOR. Be it enacted by the Senate and House of Representatives of the Philippines in Congress assembled: SECTION 1. Hereafter, it shall be unlawful for any ·employer to employ any strike breaker, or for any person to be knowingly employed as a strike breaker. "Strike breaker" shall mean any person knowingly employed for the purpC>Se of obstructing or interfering by, fore~ or threats peaceful pickcling .by employees during any labor controversy affecting wages, hours or conditions of labor; or the exercise by employees of any o! the right.s of self organization or collective bargaining. SEC. 2. It shall be unlawful fo1· any commanding officer of troops in the Armed Forces of the Philippines or indki· dual soldier or any member thereof or any peace officer and/or armed person to bring in, introduce or escort in any maJJ,ner any person who seeks to replace strikers, in entering and!ot· leaving the premises of a strike area or to work in place of , the strikers. "strike area." shall mean the establishment of the employer struck against, as well as the immediate vicinity actually used by picketing strikers In marching to and fro before all·"poblts of entrance and exit to and frc;im said establishment. Nothing in this Act shall be Interpreted to prevent any commanding officer of troops in the Armed Forces of the Philippines or any member thereof or any peace officer from taking any measu're necessary to maintain peace and orde!· and/or protect u:re and property. SEC. 3. Any of the persons mentioned above violating the provisions of Section two hereof sh<.11 be deemed guilty of a felony and shall upon conviction thereof, be fined not more than five thousand pesos or imprisoned for not more tha:i. two years, or both, at the discretion of the court. If the violation is committed by a firm, association Jr corporation, the manager,. or in his default, the persons acting as suCh, sha11 be liable. SEC. 4. In case the strike be judicially declared illegal, any criminal liability arising from violation of any of the pr•J· visions of this Act shall be deemed extinguished: Provided, That during the pendency of the legality or illegality of the strike prosecution for violation of any provision shall be deemed suspended or held in abeyance. SEC. 5. This Act shall take effect upon its approval. Approved. June 22, 1963. REPUBLIC ACT No. 3677 AN ACT TO AMEND CERTAIN SECTIONS OF REPUBLIC ACT NUMBERED TWO HUNDRED AND NINETY·SIX, OTHERWISE KNOWN AS "THE JUDICIARY ACT OF 1948, .. AS AMENDED. Be it enacted by the Senate and House of Representatives of the Philippines in Congress assembled: SECI'ION 1. The seventh, twelfth and fifteenth paragraphs of Section forty-nine of Republic Act Numbered Two hundred and ninety-six, as amended, ·are hereby further amen!1ed to read as follows: "The Seventh .Judicial District, of the Province of Rizal, Quezon City, Pasay City and Caloocan City, the Province of Cavlte, City of Cavite, thf! City of Tagaytay, Trece Martires City and the Province of Palawal'I.; "The Twelfth Judicial District, of the Province of Oc· cidental Negros, the Cities of Bacolod, Silay and San Carlos, the PrC"vlnce of Oriental Negros, Dumaguete City, and the Subprovince of Siquljor; "The Fifteenth Judicial District, of the Province of Surigao del Norte, Surigao del Sur and Agusan, Butuan City, the Province of Oriental Misamis, Cagayan de Oro City, the Provinces of Bukidnon, Lanao del Norte and Lanae del Sur, and the Cities of Iligan and Marawi; and" SEC. 2. The first, second, fourth, sixth, seventh, eigll~h. ninth, tenth, eleventh, twelfth, ·thirteenth, fourteenth, fifteenth and sixteenth paragraphs of Section fifty of the same Act, as amended, are hereby funher amended to read as follows: "Ten judges shall be commissioned for the First Judicial District. Four judges shall preside over the Courts of First . Instance of Cagayan, Batanes and the Subprovlnce of Apa.ya;> in the Mountain Province, and shall be known as judges of the first, second, third, and fourth branches thereof, respectively, the judge of the first branch to preside also over the Court of First Instance of the SUbprovlnce of Apayao and the Judge of the second br&nch to preside also over the Court of First Instance of Batanes: four judges shall preside over the Court ot First Instance of Isabela, and shall be known as the judges of the first, second, third and fourth branches thereof; and two judges shall preside over the Court of First Instance of Nueva Vizcaya, to be known as the judges of the first and .second branches thereof. "S1xteen judges shall be commissioned for the Second Judicial District. Four judges shall preside over the Court of First Instance of Ilocos Norte; four judges shall preside over the Court of First Instance or Docos Sur; one judge shall pre· ~Ide over the Court of First Instance of Abra; one judge shall preside over the Court of First Instance of the City of Baguio and the Subprovtnce of Benguet; three judges shall preside over the Court of First Instance of Mountain Province with JUrisdictlon covering the whole Mountain Province, except the City of Baguio and the Subprovince of Benguet; three judges shall preside over the Court of First Instance of La Uniou and shall be known as judges of the first, second and third branches thereof, respectively. "Nine judges shall be comm.lssioned for the Fourth Judicial District. Six judges shall preside over the Courts of First In.stance of Nueva Eclja and Cabanatuan City and shall be known as judges of the flr"st, second, third, fourth, fifth and six.th branches thereof, respectively; and three judges shall preside over the Court of First Instance of Tarlac, and shall be known as judges of the first, second and third branches thereof, respectively. "Twenty-five judges shall be commliSioned for the SIUh Judicial District. They shall preside over the Court of First Instance of Manila and shall be known as judges of the first, second, third, fourth, fifth, sixth, seventh, eighth, ninth, tenth, eleventh, twelfth, thirteenth, fourteenth, fifteenth, sixteenth, seventeenth, eighteenth, nineteenth, twentieth, twenty.first, twenty-second, twenty-third, twenty-fourth and twenty-fifth branches thereof, respectively. Deceniber 31, 1963 LAWYERS JOURNAL Page 377 "E1ght.een judges shall be commLssioned for the Seventh Judicial District. Twelve judges shall preside over the Courts of P'irst Instance of the Province of RLzal, Quezon City, Pa.say City and Caloocan City and shall be known as judges of the first. second, third, fourth, fifth, sixth. seventh, eighth, nintil, tenth, eleventh and twelfth branches thereof, respectively: four judges Shall preside over the Courts ot First Instance of the Prov.lnce of Cavlte and the CltJes of Cavlte, Tagaytay and Trece Martlres, and shall be known as judges of the first, second third and fourth branches thereof respectively; and two judg;s shall preside over the Court of First Instance ot Pala. wan. "Nine judges shall be commissioned for the Eighth Judi· cial District. Four judges shall preside over the Courts of First Instance of Laguna and the City of San Pablo, and shall be known as judges of the first, second, third and fourth branches thereof, respectively; three judges shall preside over the Courts of ·First Instance of Batangas and the City of IJpa, and shall be known as judges of the first, second and third branches thereof, respectively; cne Judge shall preside over the court of First Instance of Mindoro Oriental; and one judge shall preside over the Court of First Instance of Mindoro Occidental: Provkied, That the incumbent judge of the Courts of First Instance of Mindoro Oriental and Mindoro Occidental shall be given the privilege of selecting which court of first instance of said provinces he prefers to preside over. "Six judges shall be commlssloned for the Ninth Judicial District. Four judges shall preside over the Court of First Instance of Quezon, and shall be known as judges of the first, second, third and fourth branches thereof, respectively; one •judge shall preside over the Court of First Instance Of the Subprovince of Aurora; one judge shall preside over the Court of First Instance of Camarlnes Norte. "Thirteen judges shall be commissioned for the Tenth Judicial District. Five judges shall preside over the Court.~ of First Instance of Camarines Sur and Naga City and shall be known as judges of the first, second, third, fourth and fifth branches thereof, respectively; three judges shall preside over the Court of First Instance of Albay and shall be known as judges of the first, second, and third branches thereof; one judge shall preside over the Court of First Instance of Catanduanes; two judges shall preside over the Court of First Instance of the Province of Sorsogon; and two judges shall preside over the Court of First Instance of Masbate. "Fifteen judges shall be commissioned for the Eleventh Judicial Dtstrict. Three judges shall preside over the Courts of First Instance of Capiz and Roxas City and shall be known as judges of the first, second and third branches thereof, respectively; one judge shall preside over the Court of Flr.:it Instance of the Province of Romblon; one judge shall preside over the Court of First Instance of Marlnduque; two judges shall preside over the Court of First Instance of Aklan; seven judges shall pre.Side over the Courts of First Instance of the Province of Iloilo and the City of Iloilo and shall be known as judges of the first, second, thlrd, fourth, fifth, sixth and seventh branches thereof, respectively; and one judge shall preside over the Court of First Instance of the Province :...l Antique. "Ten judges shall be commissioned for the Twelfth Judicial District. Seven judges shall preside over the Courts Of First Instance of Occidental Negros and the Cities of Bacolod, Silay and San Carlos and shall be known as judges of the tlrst, second, third, fourth, fifth, sixth and seventh branches thereof, respectively; and three judges shall preside over tM Courts of First Instance of Oriental Negros, Dumaguete City, and the Subprovince of S'iquijor. "Seventeen judges shall be commissioned for the Thirteenth Judicial District. Eight judges shall preside over the Courts of First Instance of Samar and Calbayog City and shall be known as the judges ot the first, second, third, fourth, fifth, sixth, seventh and eight branches thereof, respectively; and nine "judges shall preside over the Courts of First Instance of Leyte, Southern Leyte and the Cities of Onnoc and Tacloban, and shall be known as judges of the first, second, third, fourth, fifth, sixth, seventh, eigl,lth and ninth branches thereof, res. pectlvely. "Fourteen judges shall be commissioned for the Fourteenth Judicial District. Eleven }udges shall preside over the Courts of First Instance of the Province of Cebu, the City of, Cebu and Toledo City, and shall' be known as judges of the. first, second, third, fourth, f1fth, sixth, seventh, eighth, nlneth, .. tenth and eleventh branches thereof, respectively; and three judgf"s shall preside over the Court of First Instance of Bohol · "Thirteen judges shall be commissioned for ~he F«:~~nth Judicial District. Three judges shall preside over the Court of First Instance of Surlgao del Norte; one judge shall pi:esid(? over the Court of First Instance of Surig'.ao del .S:ur; two 'j~dges shall preside over the Courts of First Instance of Agus3n and Butuan City and shall be known as judges of the "first and second branches thereof, respectively; four judges shall ·preside over the Courts of First Instance of Oriental Misamls, C1.gayan de Oro City and Bukldnon, and shall be known as judges of the first, second, third and fourth branches thereof, respectively; and three judges shall preside Qver the Courts of First Instance of Lanao del Norte, Lanao del Sur and the Gltles of Marawl and Illgan, and shall be known as judges of the first and second branches thereof. "Eighteen judges shall be commissioned for the Sixteenth Judicial District. Four judges shall preside over the Courts of First Instance of Davao and Davao City to be known a"-s judges of the first, second, third and fourth branches thereof; four judges shall preside over the Court of First Instance of Cotabato, to be known as judges of the first, second, third and fourth branches thereof; three judges shall preside over the Courts of First Instance of Occidental Mlsamis and Oza.mis City to be known as judges of the first, second and .thil"d branches thereof; two judges shall preside over the C.QU.rt of First Instance of Zamboanga del Norte to be known as judges of the fil"st and second branches thereof; one judge sliall pre. side over the Court of First Instance ot Zamboanga: de~ Sur; one judge shall preside over the Court of First Instance of Basilan City; and two judges shall preside over the cOurt. af First Instance of S"ulu, to be known as judges of the first and second branches thereof." · SEC. 3. The first, second, third, fow-th, fifth, seventh, eigth, ninth, tenth, eleventh, twelfth. thirteenth, fourteenth, fifteenth and sixteenth paragraphs of Section fifty.two of the same Act. as amended, are hereby further amended to read as follows: "For the first Judicial District, the judge of the first branch of the Court of First Instance of Ca&"ayan and Batanes and the Subprovince of Apayao in the Mountain Province shall be stationed in the Municipality of Tuguegarao, Province of Cagayan; the judge of the second branch, in the Municipality of Aparri, same province; the judge of the third branch, in the Municipality of Sanchez Mira, same province; and th~ judge of the fourth branch, In the Municipality of Tuao, ·same province; one judge shall •be stationed tn the Municipality of Ilagan, Province of Isabela; one judge shall be stationed in the Municipality of Cabagan, same province; one judge shall be stationed at Cauayan, same province; the judge of .the fourth branch shall be stationed in the Municipality of Roxas, same province ;and two judges, in the Municipality of Bayombong, Province of Nueva Vizcaya. "For the Second iudicial District, three judges shall be stationed in the Municipallty of Laoag, Province of Docos Norte: one judge shall be stationed In the Municipality of Ba tar, same province; one judge in the Munlcip8;1tt:v of Vlgan, ProPage 378 LAWYERS JOURNAL December· 31, 1963vi.nee of !locos Sur; one Judge in the Municipality o( Nar. vacan, same province; two judges ln .tP.e Municipality .of pandon,. same province; one judge In the City of Baguio; one judge in the Municipality of Bontoc, Subprovince of Bontoc; one judge·. in the Municipality of Kiangan, Subprovince of lfugao; one · judge ·in:· the Municipality of Tabuk, Subprovtnce of Kallnga; one judge in the Municipality ·of Bangued, Province ·of Abra: two judges in the Municipality of San Fernando, Province of La Union; . and one judge in the Municipality of Agoo, same province,· "For· the Third Judicial District, two judges shall be sta. tioned in the Municipality of Ltngayen, Province of Pangasi· nan; three judges shall be stationed In the City Of Dagupan: two judges, in the Municipality of Urdaneta, Province of ·Pan. gasinan; one judge in the Municipolity of Tayug and another in t-he Municipality of Alamlnos, same province; the judge of ~be flrst branch Of the Court Of First Instance of Zambales ~hall be stationed in the Municipality of Olongapo, Province of Zamba.J.es, and the judge of the second branch, in the MunicipalitY · of Iba, same province. "For the Fourth Judicial District, three judges shall be :Stationed in the City of Cabanatuan; one judge in the Munici· pality· .. of G.uimba, Province of Nueva Ectja; one judge in the Municipality of Ga pan, same province: one judge in the Muni· cipalill!" .of. Sto. Domingo, same province: Provided, That as soon as the cour:troom is constructed in the barrio of Baloc, Municipality of Sta. Domingo, same province, the judge shall· be stationed in the said barrio; and three judges, in ttte Muni<:i· • pa.Iity of Tar lac, Province of Tarlac. "For the Fifth Judicial Di.strict, two judges shall be sta· itoned in . the Municipality of San Fernando, Province af Pam~ panga; ·.and one judge shall be stationed In the Munlclpallty of Guagua, Province of Pampanga; one judge in the Municipality of Balanga, Province of Bataan; two judges in the Municipality Of MaJolos, Province ot Bulacan; and the judge of the third branch, in the Municipality of Valenzuela, same province .. "For the Seventh Judicial District, six judges shall be sta· tioned in the Mwlicipalily of Paslg, Province of Rizal; two judges sh~ll be stationed In Pasay City; three judges in Quezon City; and one judge in Caloocan City; one judge, in the Mtm.lcipallty of Puerto Prlncesa, Pale.wan; one judge in the Municipality of Brooke's Point, same province; two judges, in the City of Ca· vite; one judge in the City of Trece Martires; and one judge in Tagaytay City. "For the Eighth Judicial District. one judge shall be stationed in the Municipality of Blfl.an, Province of Laguna; two judge& shall be stationed in the Municipaltty of Sta. Cruz, same province and one judge, in the City of San Pablo; the judce of the first branch of the Court of First Instance of Batangl'ls shall be stationed in the Municipality of Batangas, Province of Batangas; and thOlle of the second and third branches, 1n the a.ty or Lipa and the Municipality of Balayan, Province Qf Batangaa, respectively; one judge, in the Municipality of CaJE.. .. pan, Province of Mindoro Oriental: and one judge in the Muni· cipality of Mamlburao, Province of Mindoro Occidental. "For the Ninth Judicial District, the two judges shall be stationed in the Municipality of Lucena, Province of Quezon; one judge each shall be stationed in the Municipalities of Gumaca and Calauag, in the same province; one judge, in the Municipality of Baler, Subprovince of Aurora; and one judg~. in the Municipality of De.et, Province of Ce.marines Norte. "For the Tenth Judicial District, three judges shall be stationed in the City of Naga; one judge each shall be Sta.· tioned in the Municipalities of Tigaon and Llbmanan, Province of Camarlnes Sur; three judges, in the City of Legaspi, Pro· vince of Albay; one judge in the Municipality of Virac, Pro. vince of Catanduanes; one judge each in the Municipalities of Sorsogon and Gubat, Province ot Sorsogon; and one judge each, in the Municipalities of Masbate and catatngan, Province of Masbate. "For the E;levent.b Judicial District, two judge.s shall be statioiied tn Roxas City; one j.udge !n the Municipality of Mam. buaao. Province of Caplz; one judge in the Municipality of Romblon, Province of Romblon; one judge in the Municipality of Boac, Province of Maitndu<i,ue; and two judges in the Municipallty of Kallbo, Province of Aklan; seven judges in the City ot llollo; and one judge, in the Municipality of San Jose de Buenavtsta, Province of :Antique. "For the Twelfth Judicial District, four judges shall be stationed in the City of Bacolod; one judge in the City of Sllay; one judge in San C&rlos City; and one judge in the Municipality of Himamaylan, Province of Occidental Negros; and three judges in the City of Dumaguete. "For the Thirteenth Judicial District, one judge shall be> stationed in the Munictpallty of Catbalogan, Province of Samar: one judge in the Municipality of Borongan, same pro. vince: one judge in the Municipality of Laoang, same pruvince: one judge in the Municipality of Catarman, same province; one judge in the City of Catbayog; one Judge in the Municipality of Guinan, Province of Samar, one judge in the Municipality of Allen, same province, and one judge in the Municipality of Oras, same province: three judges shall be stationed in the City of ·Tacloban; one judge in the Munictpa. lity of Maasin, Province of Southern Leyte; one judge in the City of Ormoc, who shall hold court sessions in the Municipality· Qf Palompon at least two months every year; one judge in the Municipality of Carlgara, Province of Leyte; one judge in the Municipality or Baybay, same ~rovince; one judge in the Municlpallty of Burauen, same provi.nce; and one judge in the Municipality of Naval, Subprovince of Biliran. "For the Fourteenth J.udiclal District, six judges shall be stationed in the City of Cebu; one judge shall be stationed. In Toledo City; one judge each shall be stationed in the Municlpalities of Barili, San Francisco, Bantayan and Bogo; Province of Cebu, one judge in the Municipality of Tagbllaran, Province of Bohol, one judge in the Municipality of Tubigon, same province; and one judge in the Municipality of Taltbon, same prDvince. "For the Fifteenth Judicial District, two judges shall be stationed in the Municipality of Surlgao, Province of Surlgao del Norte: one judge shall be stationed in the Island ot S'iargao, Municipality of De.pa, same province; one judge shall be stationed in the Municipality of Tandag, Province of Surigao del Sur; one judge shall be stationed in the City of Cagayan de Oro; one judge in the Municipality of Malaybalay, Provine~ of Bukldnon; one judge in the Municipality of Medina, Province of Misamis Oriental; and one judge shall be stationed in the Municipality of Catarman, Camtguin Island, subject to call for sen-ice by the Secretary of Justice to Cagayan d(: Oro City; one judge shall be stationed in the City of Mara.wt; one judge shall be stationed in the Municipality of Ganassl, Province of Lanao del Sur; one judge in the City of Illgan; and two judges in the City of Butuan. ''For the Sixteenth Ju<licial District, three judges shall be stationed in the City of Davao; one judge in the Municipality of Me.ti, Province of Davao; one judge shall be stationed in the City of Cotabato; one judge shall be stationed in the Municipality of General Paulino Santos, Province of Cotabalo; one .iudge each shall be stationed in the Municipalities of Pagalungan and Sultan as Barongis; two judges shall be stationed in the Municipality of Oroquieta, Province of Occidental Misamis; one judge shall be stationed in Ozamis City; two judges in the Municipality of Dipolog, Province of Zamboanga del Norte; one judge in the Municipality of Pogadian, Province of Zamboanga del Sur; one judge in the City of Zamboang-a; one judge in the City of Basilan; one judge in the Municipality of Jolo, Province of S'ulu; and one judge in the Municipality of Sias!., same province. (Coiitinued on.page 384) LAWYERS JOURNAL 1963 BAR EXAMINATION QUESTIONS (Conti'l1!U!lltion) REMEDIAL LAW I. Ca) State the rule on splitting a cause of action, and the ef. feet on the respective rights of the parties for failure to comply with the same. (b) May different ca.uses of action be joined or alleged in a complaint? In the affirmative, what should be the basis for determlnlnc the jurisdiction of the court as to the amount of the demand? II. Ca) What actions do not survive the defendant? In case the defendant dies before final judgment ts rendered by the Court of First Instance In a.n action that does not suryive, what must be done with such action, and where must the claim sought to be 'enforced by the action be prosecuted or presented? (b) When may the deposition of any person, whether a party or not, be taken without leave or court, and when must BUCh leave be first obtained? If the party upon whom no. t1ce of the taking of his deposition is served be not agree· able to the time scheduled or fixed in the notice, what step or steps should be taken by him to protect his 1nterestS? III. (a) What property sold upon. execution may be redeemed, who may redeem it, altd wtthln what time must the redemp· tion from the purchaser be made by the judgment debtQr or his successors ln interest, or by the redemptioner? (b) May the Court er· First Instance, instead of dismissing a case tried by an 1nlerior court without jurisdiction over the subject-matter, and appealed to it, proceed wtth the trial thereof in the exercise of Ita original jurisdiction? In the atflnnative, state in what instances may the court exercise such otiginal jurisdiction and what step shou~d the party concerned take to prevent the court tram legally e:i:erctslng it. IV. (a) May a defendant who has been declared in default appeal from the judgment taken against him by default? What remedy or remedies are available to said defendant for the protection of his interests? Cb) State how and within what time may a party appeal !o the Supreme Court from a judgment of the Court of Ai;peals. What question or questions may the parties raise In the appellate court, and when must the Court of AP· peals be made a party to the action? v. (a) "A'', an alien who arrived at the City of Manila from Hong. kong, asked that he be allowed to land as an American citizen. After hearing, the board of special inquiry found "A's" claim unfounded and denied his petition. The de.;:t. sion was affirmed by the Commissioner of Immigration. After said dental, "A" ftled in the Court of First Instance of the city a petition for a writ of habeas corpus alleging that the decision of the board of special inquiry, affirmed by the Commissioner, was erroneous, and that for that rea· son he claimed that he was illegally detained. After due hearing, the court denied "A's" petition. Two days after the attorney of "A" had been served with notice of th~ order of denial of his petition, he filed a motion for recon· sideratlon of the order. This motion was likewise denied by the court. Upon receipt of the order of denial of his motion for reconsideration, "A" appealed to· the Supreme Court from the Judgment of the Court of First Instance denying his petition for a writ of habeas corpus. The So. licitor.General moved that "A's" appeal be dism~d, on the ground that It was not taken within the period pre. scribed by the Rules of Court. ls the position of the Sottcitor·General well-taken? Reason out your answer. <b) State what is sought to be secu,red or obtained by a peti.. tion for a writ of certiorari, prohibition, mandamus and quo warranto, and against whom and upon what showing may the writ Issue in each? VI. (al On what grounds may the last will and testament·· of a person be dlsa11owed? (b) Who may Intervene in the proceedings for the probate ol a wlll? May a person, who has a contingent interest ln the will, be allowed to intervene in the proceedings for the probate of said wtll? VII .. (a) In what place or places should criminal actions be In~ tituted and tried? Where may the crime of piracy be prosecuted? · (b) In what instances may the offended party intervene personally or by counsel in the prosecution of an offense? state the reason for the rule, and the limitations 'On the offended party's right to intervene. VIII. (a) Is the right of the defends.nt to be present at every stage of the proceeding waivable? In the affirmative, state in what instances may said right be waived, and when it may not be waived? (bJ Under what conditions or when may the accused in a criminal case invoke double jeopardy? IX. (a) When and on what grounds may one of several defendants in a criminal case be discharged to be a witness ·for the prosecution, and what ts the effect of such discharge? (b) "A" and' "B" were charged in nn information filed in the Court of First Instance with the crime of murder. Before arraignment, "A" was, on motion of the prosecution, discharged to be a witness for the government. ·subsequently, the fiscal filed in th~ case an amended information in which he included "A" as defendant together with "B", "C" and "0"1 • charging them with the same crime. Counsel for defendant "A" moved to quash the information in so far as said defendant is concerned, on the ground that the latter previously had been acquitted of the crime charged. The fiscal objected to the motion, contending that "A" was not entitled to the benefits of his previous discharge, because when the prosecution discovered that he, among his co.defendants, was the most guilty of the crime charged, it no longer availed itself of his testimony. If you were the trial Judge, how would you decide the incident? State the reasons on which you would ground your opinion or judgment. x. <a> When may a witness be allowed in the course of his tes· timony to read a memorandum? What rights, if any, over said memorandum are reserved to the adverse party? tbJ By what evidence may a witness be Impeached by the par. ty against whom he was called? May said witness be Impeached by evidence of particular wrongful acts committed by him? CcJ Before a witness may be impeached bY· evidence of incon· slstent statements previously made by him, what must be done by the ·party impeaching his testimony? How is the process called? Page 3811 LAWYERS JOURNAL llewnbe<-31,_19&3 A NOVEL CASE Judge Alberto J. Frrncisco In the Matter of the Change of Name of Moises Tumale Jlumo; Moises Tumale J:Jueno, petitioner, Sp. Proc. No. SC-121; In the Matter of Change of Name of Francisco Perez Javier. Sp. Pree. No. SC-122; Court of First Instance of Laguna, Branch 11, Francisco, I. DECISION Petitioners Moises Tumale Bueno and Francisco Pere.l Ja\'ler seek the authorization of the Court for a change of their nz.me~ from Moises Tumale Bueno to TStstststststststststs.THtilthththththtbth TH-th-TS-th, and from Francisco Perez Javier to Zu.. nn'znznn1 v Z-z 'z.z, respectively. Both are allegedly the founders of a religious sect known as "Iglesia Ygy.Nygy Philippina~·· with a membership of around one hundred followers at present, of both sexes. Theise two petitions were heard jointly. It is the pretension of herein petitioners that while delving into· the mysteries .;:.nd revelations of their religion - in the studies ·of which they had supposedly adverted to the sciences of Horology and Numerology. in conjunction with the Bible as translated in the vernacular - they have been imbued with the sincere bCUef that in order to enjoy an auspicious existence on this earth and to attain succes in life their newly established religion requires of its ':'Otaries to adopt or assume a name consisting of a series of a letter or letters of the alphabet, either vowels or consonants, of a number unlimited, i.e., from two and so !Orth ad infinitum as long as to their belief and intent, there· appears & conformation of the number of letters with the pogi~lon of the heavenly bodies - the planets and the stars with the time, date, day, hour, month and year of their birth. Counsel for· petitioners contends in his memorandum that these petitions for the change of names are based "on petitioners' reUgious sect or affiliation", "a mz..tter purely of belief whiC:h i~ strictly personal to them'', and "that this fundamental right of freedom of wonhlp and religion is a constitutional right guaranteed to everyone.'' It should be made clear outright that this Court does not preswne .to indulge into an abstract tnd metaphysical theological disputation or dissertation of the virldity or the irrationality of the tenets and precepts of this religion - which are matters ii.at Justiciable and hence beyond Judicial cognizance; neither does it intend to pass upon th"e sinc~rity of the convictions of the founders and followers of this religion; nor does it attempt to lay down a criterion by which the v&lidity, the propriety or impropriety for the_ establishment· of such religion may be gauged or determined. The task of dabbling into the abstruse study of the mystics and mysteries of this religion and of imparting them to its converts properly falls within the competence of its founders. In short, the c_ourt does not. concern itself with the question of the free exercise of religion gu&ranteed by the constitution which connotes freedom of belief and worShip. Insofar as these matters are concerned they are of no mom~nt in these proceedings since they are not in issue; hence irrelevant. However, when attention is focused to the details in motivation of the devotees of such religion as when such religious beliefs or theor:les are sought to be ach,taliie.d or translated into overt acts ~ in the present cases by an attempt to change baptismal names and surnames to those consisting of a: long series of a particular letter of the alphabet """"."' they may collide with certain interests which the State for reasons of public poltcy and welfare has a right to intervene and protect. Consequently, while the freedom to entertain a particular religious belief is absolute a'.rul falls within the meaning and protectiori of the constitutional precept, yet freedom to act in accordance . therewith cannot always be unbridled and should accordingly be deemed subject of appropti&te legislation; hence, the existence of statutory regulations governing the matter, viz., Articles 376; 380; 408(16); 412 of the Civil Code; Rule 103, Rules of Court. The juridical basis or rationale of these legal provisions cannot be circumvented by the pretense that their wise and proper application would result in a denial of the freedom or religion vouchl!lafed by the constitution. Indeed, while the latter guarantees liberty as concerns religious beliefs, worship or expression It does not necessarily negate, nor does it exclude by implication the right of the State to establish such safeguards against the abuse of_ such right albeit sincerity of motives, so long as they may aff!Ct ad\•ersely the public weal or tr&duce public policy. It has been held that public policy is the "community common sense and common conscience extended and applied through the state to matters of public morals, public health, public safety, public welfare and the like; it is that geileral and well-settled public opinion relating to mal'S plain, palpable duty to his fellow men having due regard to all the circumstances of each particular relation and slluation." (Pittsburg, C.C. & St. L. Ry. Co. vs. Kinney, 115 N. E. 505, 506, 95 Ohio St. 64 L.R.A. ). An act as to the consideration or thing to be done is contrary to or against public policy when it "has a tendency to injure the public, is <.gs.inst the publlc good, or contravenes some established interests of society, or is inconsistent with sound policy and good morals, or tends clearly to undermine the security of individual rights, whether of perSonal liberty or of private property." (Gabriel vs. Monte de Piedad, 40 Off. Gaz., 14th. Suppl., p. 67). Let us consider the case of herein petitioners, the co-founders of the aforementioned religious sect - and parenthetically, its followers who may file similar petitions for change of name - from the viewpoint of their personality as natural persons. As such physical entities they have the aptitude to be subj~cts of rights and obligations and are endowed with the power and capacity to enter into juridical relations, and to perform acts with legal effects, e.g., to enter into contracts; to make wills; to borrow monCy; to dispose or acquire property; to morry; etc. It is an acknowledged fact that ma.n is beset by limitations and ls insufficient to obtain by himselt alone the means for the sati.sfactiOn of his necessities, either p;ersonLI or social. J)eceJl)ber 31, 1963 LAWYERS JOURNAL Page 381 Hence for the realizaticin of his individual and socio.I end&, and to a.t~in the means required for common life and soclar cooperation he has often to enter into or engage in mani~ol~ dea~ ings with others, sometimes with those residing wtthm his own community; at tlmes with others dispersed throughout the length and breadth of the archipelago; and, under certain circl1m.stances with those residing outside the Islands even to the extent of his being impelled to )eave his own country and set~lc tn a foreign land. Consequently, it is likewise an unde-niablc fact- that man's activities are not limited or circumscribed with· in the premises of his own home; nor within the walls which enclose the bethel where he wor8hips or conducts the ceremonial rites of his religion; nor within the confines of the community wherein he lives; nor even within the territorial boundaries 9f his own country. In resume, when pursued down to its essentials man - with a view to satisfying or complementing his individual ends - has to enter into civil agreements, tranSact business, execute contracts, issue negotiable papers, may bring suits or may even be sued, civilly or criminally. According to herein petitione'rs those who are affiliated with this religion including their children, are not prohibited from assuming id~nticol style of names and surnames, that is: consisting of a similar series of any of the letters of the alphabet as already adopted by another or others, the differentlatiiJg factor that would serve to distinguish one individual from the other being the numbers or frequency of that particular letter of the alphabet in the series constituting the name or surname. Hence, one follower may procure as his name twenty-eight in number of the letter z and as his surname thirty-one in number of the ·letters Th; another maY assume twenty.nine of the letter Z as his name and thirty-two of the letters Th as his surname. By the same token, one of them may adopt ninety-nine letters S as his n&me and ninety-eight letters H as his surname. In effect therefore several per.sons may adopt as their praenomen or Christian name a series of the same letter of the alphabet, e. g .• T; as their nomen or middle name a series of the Sain~ letter of alphabet, e.g. X and as their cognomen or sum£.me a series of the same Jetter of the alphabet. e. g.; Z - the onlv mode of distinguishing or identifying one from the other being the frequency or the number of times that parllcular letter appears or is written as applied to one individual in contradistinction to the other individual. Thusly: A follower of _this sect may bear &.S his Chlistian name the letter T multiplied sixteen times; and as his surname the letter T multiplied eighteen times. Another may carry the same letter T multiplied seventeen times as his Christian name; the same letter X multiplied eight. een times as his middle name; and the same letter Z multiplied nineteen times as his surname. A third individual ·may adopt the name and surname, respectively, multiplied into a different number of times, with one letter more or one letter less to constitute a shade of variation; and so forth ad nauseam. To compound the coil.fusion it may be stated here without per - &dventure of doubt that the use of the agnomen or nickname mc.y not even be availed of. Let us now analyze the impact of such disquieting atmos.. phere upon the various facets of normal human activities. Cer. talnly, it would be rational and justifiable to conclude that such situation would breed in most likelihood chaos and confusion that could serve to seriously undermine or tmp&ir stability in juridical relations. Thus: a.) Incertitude on the binding effects of contracts or agreements.-If one or two letters of the alphabet written repeatedly in series were to constitute the name and surname then the de. termining factor for identification of the individual would be the numerous frequencies in which the same letter appears in such name &nd surname. Consequently, an of said letters would have to be counted in order to detennlne the number of repetitions of that particular letter so as to identify or differentiate the individuals transacting business from other or others bearIng as their names and surnames identical letters of the alphabet but with a sh<ide of variation in their frequencies, consisting in a letter less or in a letter more. Under such queasy circmnstances it would not be a far-fetched conclusion tri state that a mistake in the exact number of the same letter of the alphabet either in the name or in the surname, whether inadvertently m&de or "'ith malice aforethought. would be conducl\'e to or would afford ample opportunity for one of the contracting parties to renege on an agreement or to disavow liability thereon as not the person signatory thereto; let alone the delay in the expeditious dispatch of mercantile transactions. b.) Inducement tor the c~l:mnlsston of forgery. - In affixing a person's no.me and surhame by signing in such style it would be very hard to determine whether a particular signa.. turc has been forged. Conversely, t~is difficulty in. verifying simulation of signature would constitute an open invitation to the commission of forgery. From the standpoint of the pictorial effect of the whole signature of the name and surname such styling in signing would easily fail to yield sufficient clues of forgery. A fortiori, even & scrutiny and analysis of each character in the signature would make just as difficult the· detection of forgery inasmuch as the connection and spacing of the letters; their alignment; their irregularity or conformity would render extremely arduous the task of determining the similarities and dissimilarities; the significant differences or divergencies between a genuine slgnat,ure and a simulated one. In short, the &doption of such style of names and surnames, and apropos, the affixing of suCh signatures would greatly detract from aniving at a fair and reasonable conclusion whether a particular signature is aO , authentic or a spurious one, considering the lack of continuitY or conslstency of the various parts of the signature with itself - which would be otherwise if there were 4 variation in the employment of several different letters of the alphabet and from which a fairly accurate deduction may be derived on the qualities, clements, features and characteristics of the handwriting -constituting the signature. c.) Indecisiveness of judicial orders, decrees anci Judgments ;-In judicial proceedings such styling of a:Ppellatlons would necessitate the outmost precision in writing down the nam,e and surname of the person who may be involved in the -llti_giltion, whether criminal or civil. This would be especially. true in cases where there :might be several perSons who bear in common identical names and surnames consisting of a series of the same letter of the alph&bet with only a slight modificatioit or difference in the number of their repetition or consistency. In the issuance of waITants of arrests, subpoenas or summonses a detraction from or an addition of a Jetter in the corfect name or surname of the subject of the writ would constitute a substanti~ difference that would render difficult service thereof. In like manner, <ill oversight or a slight mistake due to inadvertence in writing down the correct number of the same letters of the alphabet constituting the name ~d surname of a party-litigant would render effete the orders, decrees and decisions· of the Court which otheIWise, under normal circumstances should have binding effect on the Party sought to be affected 'thereby. d.) Overriding the doctrine of idem .sonans. - Under the doctrine of idem sonans - which is addressed to the &.urlcular sense.if two or more names, though spelled differently, sound alike; they are to be regarded as the same and hence pertaining to a particular individual. This doctrine would become completely useless and nugatory when sought to be appli.ed to the circumstances obtaining in the c&se at bar. Moreover, such set_ up might tend to encourage the commission of crimes due to the facility in the concealment of the offender's identity and the consequent difficulty in his apprehension. e.) Undermining the legal presumption of identity of persons from identity of names. - From the viewpoint of the law on evidence the presumption of ''identity of person from. identity Page .382 LAWYERS JOURNAL December 31,- 1963 <;f name" (Rule 123, section 69 /w/, Rules of Court) - which has reference to the visual sense - would be extremely difficult of application. Inasmuch as the name and sumz.me would be composed of a series of an idt:ntical letter of the alphabet written. in succession, the existence of the slightest var1ati0n in the number of frequencies or in the continuit.y in which that parUcular letter might appear in the written name z.nd surname would necessarily result in a vast difference in the identity of the persons who may ha,•c adopted the same alphabetical character, differing only in the numbe1· in which it is repeated. In effect under such circumstances this would be tantamount to an indirect abrogation of the aforecited rule. f.) Turmoil In the political field. - There i"s no gai_naaying the fact that herein petitioners and the followers of this religious sect are and would not be burred from actively engz.ging in partisan political activities, even to the extent of launch_ ing their candidacy for elective public offices. Once such style of name and surname sought to be adopted by the petitioners - and for that matter by others who may follow suit _ carry the badge of judicial sanction there is no telling the extent of the deleterious effect that same would hr..ve in this aspect of political affairs. It would not do to dismiss as purely -speculative the great probability that two or mOre candidates for an elective office may bear the same names and sum..mes consisting of an identical letter of the alphabet written in series but differing only In the number of frequenci~. A single mistake In writing down the precise and correct number of letters in both names would nulUfy as stray votes, the ballots purportedly ca.st.r tor these candidates since it would not avail to advert t.o the doctrine of idem sonans. Moreover, .such disconcerting situation would demand an undue strain on the part of the voters in filling out the ballots r..nd on the election inspectors in ascertaining for whom the votes had been cast. To say the least, the logical outcome of such situation would be chaos and confusion. g.) Embarrassments in normal social intercourse. - Even Jn the ordinary pur;mit of the amenities of social life, should perchance there would be a gathering of a group of persons affiliated with this religious sect bearing as their appellations the identical letter of the alphabet, e.g., "Z", though varying in the frequency in which such letter is repeated, it would be a frustrating experience to address, call or summon any one of the.-n in particul61" for what would emit in pronouncing the individual's ,name would be a hizzing sound. h.) Indetermination of gender. - Human individuals, are by virtue _o( their natural state, either males or females. Hence, it has been determined by implled agreement and general as.sent among civilized nr.tlons to give to either sex such Christian or proper name as would senre to distinguish one from the other. Under the unorthodox: style in the use of names advocated by herein petitioners such conventional distinction which has ripened into custom and tradition would be totally eradicated. This new system would seem to connote the idea or to create the impression of the existence of a sexless aggroupation of individuals In the humr..n species. i.) Difficulty in tracing the lineage or parentage. - As testified to by one ot here"in petitioners their religion does not forbid, hence It sanctions, the adoption of similar style of names and surnames by the offsprings, whether males or females of its members; even by utilizing another sundry letter of the alphabet other than that alref.dy appropriated by their parents. This would be a drastic departure from the orthodox: practice obsenred throughout the civilized world of conferring on a descendant at least the sumame of his immediate ascendant or to be baptized with the patronymic or patrilineal name of his forbears. Furthermore, this would constitute a crasS disregard of the legal requirement that children should bear the surname of -ber31,.1%j either their father or mother, as the case may be. (Arts. 364, 366, 367, 368, 369, Civil Code). Hence, to aCcede to the petitions would be to put a premium to the creation of perplexing situations in endeavors to trace or to identify either the lineage or ancestry of the persons concerned whether through the ascending, descending or collateral lines. These difficulties would be more patent and pronounced In cases involving wills, descent and succession; paternity and filiation; and, compul~ory acknowledgment of children. Before concludlng it would noi. be amiss to dwell upon the nature and purpose of the name and surname. To all legal practical purposes a man's name is the designation by which he Jives and is best known. A person's name consists, in law, of a Christ1c..n name and a family surname. A Christian name or first name or proper name js one that is used to distinguish a particular individual from his fellowmen; while a surname is that portion of the name of the individual which is employed by him in common with other members of the family. It has been the practice which has ripened into custom and usage In All civilized countries, founded on a well-entrenched social order, that a person's nanie consists of a combination of letters or characters of the alphabet that spell out or denote a syllable or syllables such ·that a particular indivldwJ could be addressed, designated or identified by the distinct phonetic and limpid enunciation emitted by the syllabification of his name. The names sought to be adopted by herein petitioners are unquestionably of a different version, constituting a violent dep&.rture from established practice, and borrowed independently from a source contrived to be impregnated with a tinge of religious motive. In addressing or identifying them - and by the same measure :many others who may later seek to adopt sbnUar style of appellations - one would have to slbilate; and this sibilation must perforce have to be produced by s.. stock of a similar letter of the alphabet repeated in successive frequencie.s resulting in a hissing sound, with ubiquitous and equivocal effects. That the adoption of such style in name could easily lead to the commission of mistakes, and th.e creation of confusion and chaos, must have to be admitted. For, one of the petttioners himself, Tumale, had committed outright an error in writing down the very name he desires to assume, in lieu of his original baptismal name. Thus: Cros~xamination by Asst. Fiscal Tengco: Q. Will you please write In this Exhibit "5'' which is Exhibit "I'' for Bueno and Exhibit "3" for Javier, now you will write your official signature b&sed upon the supposed to be adopted name? How will you write your signature? Atty. Plantilla: Your official signature. If you are granted that name, what will be your official signature? Court: Make it of record that after writing down the lettCrs, the witness hf.s been counting the number of the let.. ters supposed to be his signature. Asst. Fiscal Tengco: There is a statement which was made by this witness which we will request that the interpreter to please interpret the same. Interpreter: The witness wants to call the attention of the Court that he made a mistake in Exhibit ·'I-A" and he is making the proper correction and he writes the same in llne with . , . · Asst. Fiscal Tengco:. I will request that the same be marked as Exh~bit "8" for the oppositor. Interpreter: Witness wants to call the attention of the Court that in Exhibit "A-1" in.writing his surname, he committed an error and wants to point to the Court that the correct figure will be •.. Asst. Fiscal: We wlll request that· the same be marked c:,s Exhibit "8-A'' - ·Moises and as Exhibit "8-B" --=- Tumale. (T.s.n., June 18, 1963; pp. 2-3). Moreover there Is one important factor ·which the Court can not dlsc~ur!t nor be obllvlous of. It should be emphasized that to grant the herein petitions would be to" establish a precedent tho.t would pave the way for similar petitions on the part. of others, who may be fascinated and intrigued by this new fangled Idea, whether Under claim of religious convictions ingenioi.Jsly felgn~d or otherwise. To limit the grant of such petitions to those who may be affiliated with this religious sect would not only lay the Court open to the charge of discrbpin&tlon and inconsistency but would, moreover, controvert the very contention of counsel for herein petitioners that freedom in the choice of religious beliefs is beyond the pale of legislative regulation or judicial determination. Furthermore, such cir'Cum.scription to affiliates of this sect would be viols..tive of the 1njwictlon that o: person should not be unduly deprived of the e..xercise of his prerogatives on account of his religious belief or political opinion (Art. 39, Civil Code). . PurSued down to its ultimate conclusions, one need not necessarily be endowed with a fendd Imagination to be able to -envisage the perplexing eituations; the unpleo.sant predicaments; the chaos, confusion and dili'orders that would be generated by the frequent repetition of such unimaginative device in the style of names, In substitution ot conventional appellations. Such, indeed, would be the resultant and far-reaching chaotic effects were the Court to acquiesce to these arbitrary permutations of the letters of the alphabet. What may be a novelty for the present, could in the future, be a parody ot the past. · To grant the petitions at bar would be to subserve sound public policy In pla~e of emphasis to delaUs of personal motlvatiom>· under the .simple exped1ent that the s&me are blended with certain religious connotations. In concluding, the Court wishes to reitera(e that, as hereREPUBLIC . . . (Continued from page 379) SEC. 4. The eleventh and thirteenth paragraphs of Sec· tion fifty.four of the same Act, as amended, is hereby furtnE-l' amended to read as follows: "Eleventh Judicial District: At Culasi, Province of Anti· que, on the first Tuesday of December of each year, a special term ot court shall be held at least once a year on dates to be fixed by the district judge. Special terms of court sha11 also be held at San Agustin, Province of Romblon, on the third Tuesday ot August, December and April of each year; and at Odlongan and Cajldioean, same province, at least once a year on dates to be fixed by the judge, "Thirteenth Judicial District: The Calbayog branch to hold court at Basey, Sa.mar, on the first Tuesday of January of each year; the Laoang branch, at Gamay, same province, on the first Tuesday of July of each year." SEC. 5. Section seventy.one of the same Act, as amended, ls hereby further amended by adding another paragraph ther~ to which shall read as follows: "No person shall be appointed judge ot the municipal court of any chartered city or justice ot the peace of any provincial capital unless he is (1) at least thirty years of age; (2) a citizen ot the Philippines; (3) of goad moral character and has not been convicted of any felony; <4> has been admitted by the Supreme Court to the practice of law; and (5) has- practised law In the Phlllppines for a period of not less than five to fore s~ated, the issue In the present cases does not cqne:em the establishment of a particular :rollgion nor with th~: .q~ tion of one's views of his relations to his Creator, and to the obligations they impose of reverence for Hi• Being arid : thai"acter, and of obedience to His will. Neither is the cou'rt ·Concerned with the free exercise thereof and the form of whl'ship that is imposed to the followers of this particular religio"us· sect as approved by their judgment and conscience; nor to the mode by which they may exhibit their sentiments in re».:tion thereto insofar as they do not undermine public policy cir subvert the welfare ·or the rest· of the community. ·. Parenthetically, neither <>re the Votaries of his religion, .<ie~ied the right to appropriate to themselves a shibboleth to ~der;i_tlfy or designate the particular religious denomination to which .they may belong, as for example, that of being Lutheran, a CalVinist; a Baptist, a Methodist or &n Aglipayan. Premises alluded to, it is the considered opinion : of the Court that two or more detached and separated letters' df' the alphabet do not constitute a name; and, that the intent by'\i.ihich any speciric combination of letters ls used is immaterial Provided their use tends, as a matter of fact, to deceive or· td·'Confuse. · As the declared purpose of proceedings for change of name is the ~revention of fraud, rules enacted in connection therewith are valid exercise of the ·police power of the State; and, sinee the change of name of person may affect hts business and social relations, the rule allows any interested person, besides the Solicitor General or the proper provincis..I fiscal, to appear at the hearing and oppose the petition. (Rule 103, sec. 4, Ri.lks of Cburt), , Furthennore, it is settled doctrine that an order changing the name of·the applicant is a matter of judicial discretion and not of right and that the Court; is not subject to the whims· Of every petitioner, hence, it may make 11.n order dismissing the applico.tion, as the Court may deem right and proper. (38 Am',1 • Ji.Jr., P• 610; 45 C.J., p. 382). . . In view of all the foregoing considerations, the Court· is constrained to. deny, as it hereby denies, the two herein petitions for change of names. . Without pronouncement as to costs. · SO .ORDERED. Sta. Cruz, Laguna, November 1, 1963. years." ALBERTO J. FRANCISCO Judge SEC. 6. Wherever an additional braneh or branches of the Court of First Instance is or are established In this Act in the same place where there is an existing court or courts Of first instance, all eases already filed in the latter Court or courts shall be heard, tried and decided by such latter ·court or courts. SEC. 7. The stenographer ot a Court of First Instance shall receive a" compensation ot not less than four thousand eight hundred pesos per annum except the stenographers of the Courts of '.Fl.rst Instance of the City of Manila, PasaY: City, Quezon City, Caloocan City and the Provinces of Rizal, Cebu, Negros Occidental, Iloilo, Le'yte and Davao who shall reCeive a compensation of not less than six thousand pesos per annum: Provided, That no salary shall be paid to a court stenographe!· µ.nless he submits a sworn statement to the effect that he has given requesting parties copies ot transcript of stenographic notes upon payment of proper fees, and transcripts have been completed z.nd attached to the records of every appea.led case within sixty days after receipt of notice from the appellate courts. SEC. S. Such swns as may ~e necessary to carry out the puri:mses of this Act is hereby appropriated out of any funds in the National Treasury not otherwise appropriated. SEC. 9. This ~ct ~~al~ take effect upon its approval. Approved, June 22:. 1963. I,AWYERS ~OURNAL Lawyers Directory ha view of i.be preen~ d.itflcu.lQ" oi. loc.o.tina- ti!.! oiliu of practiclna attornen, tbe Journal pub&hes lb.is directorJ to •CQll•liit ll01: onl;r tl!.eir clieo.f.a but also tbe public of tbeir address. Lawyara may avai.I tlll!mllO!.IVfllll of tbis nrv1ce 1.1po11 payment of Two Paos for eacil iuue of tD..is publication or i:>b:. Pesos for one yemr AN'l'ONIO. llOMAN II. R-420 Rom1111 :.i.utus llldir. i-'Jnz.1t t;oili, Maniln Olf. 'l"elll. 3-91-BO 3-E4•4U Res. ·rel. 2-46-3" ARANAS, J(JS.ll: R-3(11 ilani; of tb., l'11il. hll••nd BJd11:. Pl11za Ce1·v1ml1!11, M"ui1i. '1'els:3-69-ao 3-17-411 A:>A, LEON 1.. F•·1111ci~c11 L11w OUice~ , lt.201 S1111111nill" llld11. &c.,llu, M1rnill1 'l'el. ;1.;13.u UJ::ltNAl.00, lllCAllUO MAG. Ao;st. Atlul·11e1H: Leonardo S. 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DENITO, JU.STINO Z. GUZMAN, PUUDENCIO DE, R-!04 Le1ba Bids. 381 DasmariiilUI, Manila1 'rel. No. ;t.21.711 • !:•~tc n!~!na~ .. ~~8.1111;~;~,t_ ~·=~t.3·~·~i~6 22·U2·1>0 ·~ .___---....._ LEo:Eg;.~;~nG~::s-;go~Es:1::i?i CLETO I'. EVANm;:J.IS'l'A I.AW OFFICE ~~ of·C~t~!:-i~i!.~~~i~;•(cc~Ui Greirorio 'f. M1111io, Sr. Ed11:ardo E. Sunco Gresol"lo Mnnio, Jr. Office: Isl FJ0111· Evangelista BldK. Ormoc City - 'l'el. 2~.; Residence: Lo1>u Jnena cor. Risa! St. Ormoe City: 1!122 P"dre Florentino cor. 9a Crnii: St., S11mpaloc Manila and 21 llMA Ave., Quezon Cit7 Tel. 6·'2·H DONATO, AMANCIO S. Rm. -107 Mllrtinez Dlds. 378 Dasl?'m•iiilUI, Mllnil" Tel. 4·29·13 ' Rwidencc: 2460 Coira:ven St. Sta. Ana, Manila l"li:llNANDEZ, ESTANJSl,AO R-420 Ilom1111 S1111too nldi,::. Plaui GoiU, Manill• Tf'b. 3·91·80 3·64·40 l'ltANCISCO, JllCAllDO· J. R·201 Somouillo Buildinir Ellcolt11, Mnuil11 Tel. 3·33-64 FRANCISCO, llODOl.FO J. R-201 Samanillo Duildio1t F...,<"Ollll, Mnnil11 ·rorl. 3-33-64 PRANCISCO. VICENTE J. R-201 Somanillo D11ildin1r F.4colta., Manila Tel. 3.aa.64 3·83·H GARCIA, RIENVENIDO L. 210 Cal•o Bldir. E.colta, Manila Tel. 3·69·U Rm. 303 Free Pren Didi::;., 70!1 Rizal AV<!~ Maniha, Tel. 3-ill·7', 2-2'·J7. Branck Of· ficc: ;; Riul A•~ .. S11n Pohlo Ci~ (c/o 1'.ed .... otion of Cocon1.1t Workera (San Pablo City Cbai.oter - CCLU) LEU'fERIO, CON~'l'ANCIO Salta 100 Roman Santo. Bid&. Plaza Golti, Manila Tel. 4·11·18 LOJtF.NZO J. LIWAG LAW OFFICE Law Office Addresu aoz Free Prua B1.11ldin• lf.iz11I Ave., Manila Tel. 22·<16-21 Busill~ Addreiie: 35ii0 Sta. 1111.esa Blvd. Manila Tel. 8·114·0 MENDIOLA, MARCIAL G. S-203 ~ui .. pu llulldlnir '1ii8 Hid11lso, Pl11aa Miranda Man I I a Teb. 3·41-li9 - 44·18·26 Re6.: 3~·A Piy MarKal Quezon City Tel. li·ii6-12 MORALES, ERNESTO T. ~24 SIDR'SOD BulldinK Plazn Mora11:0, Manila Tels. 3-52-36 & 4·!3·65 Res. 1~21 Dnkoto, Malate. Manila 'Tel. i-20·3' OLIVEROS LAW OFFICE TEOTIMO OLIVEROS 321 Panay St., Sampaloe Tel: 6·41·1& ORDOVEZA, DOMINGO L. Fronciaco Law Offices R·201 Samanillo Ille!& • · Escolto, Manilo TeL 3-33·64 Tel. 7·9347, Q1.1ezon City .tiERMOGENES J. PABLO Ill RODRIGO D. S'J'A. ANA CELSO P. MARIANO MONINA A. AREVALO . Suite 322-326 Madrigol Bldg. Escolta, Manila Tel. 3·42-11 QliITZOl'\", ALEJANDRO S. iU3 1..:nma1rong Street llakatl, Rizal 'l'el.88·llU·89 VICENTE .~. RAli'AJ;;L & ASSOCIATll>S t.ene~al Cr.11n11el fo1· "PLUM FEDERATION of Jnduatriol & Ag1•orian Workera" PLUM R>·an~hcs in 32 P1·ovinr.f'l!I VICENTE A. RAFAEL, KCn. counael Att11. J. Moya, J. lluatre, L. Oplda 1433 Rizal Ave., Manila REGALA., GRACIANO Ir. A~SOCIATES 310·311 Calvo Uldii. Escoltn, Manilft Tel. Nos. 3.39.711 3-50·78 UIEL, 'l'ECllDOltO 'f. lles. 12 Vonaouve1· St.-e.,t Cul>ao, Quewn Ci1y '!'el. 7.41.23 Office Tels. 3-47·73: 3·32.01 Loc11l 630,323.700. ROJAS, ARTURO A. Office & RGolidence: \17~ Washi111rtU11 :it. S11mp11loc, Maniln llOXAS, llUDEN L. 201·202 Caivo Blclii. Escolta, Manila '!'el. 3-06-tlll El.F.Af . .i.no SAMSON )' Altl~l.LANO Office: ltm·211 E. Vergel de Dio1 Bld1r. l•v,.ni:P.Jiijth -· P. Pn1crllo Quil•J>o .. i\1011il11 Tel. 3-20-47 SAN JUAN, AFRICA & BENEDICTO LAW 01•'1'1CES 480 Padre Fnur", Ermita, i\lnllilll Tels: 5.70.72 & i;.70.;a SAN'ros. ,JOSE T. DE LOS SAN'fOS, CIRIACO 'f. DE I.OS SANTOS, JOltGE 'l'. DF. I.OS Znd Floor EMA Dld11:. No. 111 Quinpo, J.fanil11 Tel. 3.34.49 SYCIP, SALAZAR, LUNA & ASSOCIATlilS 5~h floor, Trnde und Cummerce DJd1r. 21U Juan l.11110, Manilu 'J'els. 2·69-06, 2-69-117 & 2°6!1°08 SYQUIA LAW Ol"f"ICE ENRIQUE P. SYQUIA Andres L. Daltuzor Conrado o. ViUalluevn, Jr. Jillie J. Ferre1·, Jr. Rms. 320 & 3~G S11manillo Uld11. Escolta, Manila Tell. 3.77.02 & 4-19·70 EMERENCJANA S. PACHECO.'flGLAO i). R. PACl·rnco PRIVATE DE'rECTIVJi: & ~PEClAL WATCHMAN AGENCY 2Hl-D San Anton, Samp11loc Man I I a Tel. 3·86·29 VALMONTE. LEONARDO P. Office: Frnnciseo Law Office. 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