In re: Disbarment proceedings Against Atty. Diosdado Q. Gutierez, Respondent, Adm. Case No. 363, July 31, 1962

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Part of The Lawyers Journal

Title: In re: Disbarment proceedings Against Atty. Diosdado Q. Gutierez, Respondent, Adm. Case No. 363, July 31, 1962
Language: English
Year: 1962
Subject: Lawyers -- Philippines; Lawyers -- Dismissal of; Practice of law -- Philippines
Rights
Abstract: [Respondent Diosdado Q. Gutierrez is a member of the Philippine Bar, admitted to it on October 5, 1945. In criminal case No. R-793 of the Court of First Instance of Oriental Mindoro he was convicted of the murder of Filemon Samaco, former municipal mayor of Calapan, and together with his co-conspirators was sentenced to the penalty of death. Upon review by this Court the judgment of conviction was affirmed on June 30, 1956 (G.R. No. L-7107), but the penalty was changed to reclusion perpetua. After serving a portion of the sentence respondent was granted a conditional pardon by the President on August 19, 1958. The unexecuted portion of the prison term was remitted "on condition that he shall not again violate any of the penal laws of t he Philippines."]
Fulltext: close of business hours of said day for lack of lntst nnd conficlence upon the recommendation of t-he chief of lJOlice. With regard to Aguilar, he was f::eparatcd on the aclditionnl gi·ound of immornlity and of maintaining a house of prostitution. His position was filled by a civil service eligible on August 16, 1951. As n justification for the action he has taken against petitioners, respondent invoked the provisions of Executive Order No. 26-l prnmulgated by President Quezon on April 1, 1940 believing that petitioners as detectives who occupy confidential positions could be separated UJlOn a moment's notice for lack of trust and confidence, and his authority to dismiss them was sustained by the Executive Sccrcta1-y who in an indorsement intimatl"!d that the n·moval o{ a <ktcctive from the service fo1 · lack of confidence was lawful. His action was also sustained by a provincial circula r issued on April 3, 1954 by the Executive Secretary confirming the propriety of his action. With regard to petitioner Diaz, who :'idmittedly w~1l' n civ1: service eligible nnd was extendetl on moro! than one C'!'Casion a permanent appointment as member of tho! police force C ·f B:tcolod City, there is no question that his dismissal was illegal fo1· huving been made in a manner co11trnry to the proccdui·e pl'e~cl'il•ed i1! Republic Act No. 557.t Executive Order No. 2G4 is no longer in force, t.he same hanng been impliedly repealed by said A<:t. Thus, i1: ~li;;sbn v. Del Rosa1io, ;JO 0. G., No . .i, 1571, this Cou1·t said: " It appearing that petitioners, as detectives, 0 1· members of thC' JJOlice force of Cebu City, were separ~l<:?d from the se1 vice not for ar.~ of the grounds enumer2tc<l in Hepublic. Act No. 557 nnd w.ithout the benefit of investigation or trial therein prescl'ibcd, the condus1on is mescupable that then 1emovnl 1s 11legnl and of no valid effect In this sense, the p1ov1s1ons of Executive Oide. No 2G4 of the President of the Philippines should be deemed as having been impliedly repealed in so far as thC'y may be inconsis1·en!. with the p1'Qvisions of said A~t." A different con:iiderntion should be made with regard to 1wtitioner Aguilar for it appears that he was not a civil service eligible even if he was C'Xtende<l several appointmenb as detective or 1 m.tn?lman by the City 1\Iayol" of Bacolod, for not being a civil ~;crvice eligible, he is not qulllified for a permanent uppointmC'lll. Thus, in one case, this Court said; " In accordance with Section t;82 of the Rev. Adm. Code, when a position in the classified service is fille<~ by one who is not a qualified civil service digible, his appointme11t is limited to the pel'iod neces~ary to enable the uppoi11t111g officer to secure a civil service eligible, qualified for the positio11, and in no case is such temporary appointment fol' a long 1>ariod than three months. As petitioners herein were not civil se1 vie·~ eligibles at the time of their appointment, and it docs not a ppear that they have since then qualified for the positions they arc holding, their respective appointments were only for a per iod of thrcf' months and not more." (Pana, et al. v. City Mayor, et al., G. R. No. L2700, Derember 18, 1953) ,2 The case of Aguila1· comes squarely within the purview of this ruling. T he lower court oi·dcred respondent 1wt only to n•instatt! petitioners but also to pay them their back salaries and moral and exemplary damages in the aggt·egatc amount of P7,000.00. We agree with the trial court that respondent should bo made to pay the back sala1·ies of petitioners for the reason that under the Chartei- of the City of Bacolod (Section 5, Commonwealth Act No. 326), the city cannot be made liable for damages arising from the failure of the mayor to enforce any provisions of the law or from his negligence in the enforcement of any of its provisions. We may also ag1ee with the trial court in holding that respondent in separating the petitioners from the service act~d with gross negligence, if not in bad faith, considering the events of contemporary history that had happened in his province and his official arts amounting to abuse I. Uy v. Rodriguez, July 30, 1954, 50 0.G., No. 8, pp. 3G74-·76 : Abella v. Rodriguez, June 29, 1954, 50 0 G., No. 7, pn. 3039-41; !\'lission v. Del Rosario, Feb. 26, 1954, 50 O.G., No. 4, pp. 1571, 1573-74; Palamine v. Zagado, !\larch G, 1!104, 50 O.G., No. 4, pp. 1566-67. 2. See also Reyes, et al. v. Dones, et al., G.R. No. L-11427, May 28, 1958. of authority of which the trial court took judicial notice in its decision, but we believe that t he sum of 1 '5,000.00 it slapped upo!l 1 ·espondent as morn! damages is not j ustified, for the s:ime is already included in, if not absorbed by, the back salaries he was ordel'e<l to pay to pet itioners. And with regard to the sum of 1'2,000.00 which respondent was ordered to pay as exemplary damages, the same is somewhat excessive, considering that 1 ·espondent acted in the belief that he had the requisite authority u nder E xecutive Order No. 264 of the President which at that time has not yet been declared repealed by tl1e Supl'eme Court. But ti1ese damages should be imposed if only to cm'.tail the abuses that. £ome public officials are prone to commit upon coming to power in utter disregard of the civil service l'Ulcs which constitute the only safegua!'d of the tenure of office guaranteed by our Constitution. These damages should therefore be reduced to 1'1,000.00. Wherefore, the decision appealed from is hereby modific-d :ui follows: respondent, or the incumbent Mayol' of Bacolod City, is onlercd to reinstate J)etitioner Leonardo Dinz as prayed for; respondent Amante is ;:irdered lo pay petitioner Diaz his unpaid salaries from August 16, 1951 up to the date of his reinstatemf'nt and the sum of l'l,000.00 as exemplary damages. I n all othe1· 1·espects, the de<:ision appealed from is hereby J"eversed. With costs ag:iinst respondent. Para.s, C.J., Padilla., . L(lbra<lor, Co11ccvcion, J.B.L. Reyes <i>i.-l Emlcncin, JJ., concurred. Bc11azo11, J., toqk no part. III In re ; Dfabci1·ntent p,.oceeding11 A gai11st Atty. Dio11tlado Q. G11tiCl'l'ez, l?e.~pomlcttl, A dm. Casi· No. 363, J nly ::11, J96Z, .lfokaliut<d, J. l. ATTORN EYS-AT-LAW ; R EMOVA L AND SUSPENSION BY HEASON OF CONVICTION OF CRIME INVOLVI:-lG MORAL T U RPIT U DE SUCH AS MURDER.- Under Section 5 of Rule 127 a member of the bar may be removed or susJJended from his office as attorney hy the Supreme Cou1·t by reason of his conviction of a crime involving moral turpiturie. · MuJ"der is, without doubt, such a crime. 2. ID.; MORAL TURPITUDE ; WHAT J\I AY IT INCLUDES.The term "moral turpitude" includes everything which is done contrary to justice, honest, modesty or good morals. (In re Carlos S. Basa, 41 Phil. 275.) 3. ID.; ID·; I N DISBA RMENT STATUTES; MEAN ING OF.As used in disbarment statutes it means an act of baseness, vileness, or depravity in the private and social duties which a man owes to his fellowmen or to society in general, contrnry to the acce1 Jtcd rule of right and duty between man and man. (State ex 1 ·el. Conklin v. Buckingham, 84 P. 2nd 4~ ; 5 Am. Jur. Sec. 279, pp. 428-429.) 4. 10.; ID.; PARDON; WHEN IT : MAY BE A BAR TO 'DISBARMENT PROCEEDING.-When proceedings to st rike on attorney"s name from the rolls are founded on, and depend alone, on a statute making the fact of a conviction for a felony ground for disbarment, it has been held that a par•lon operates to wipe out the conviction and is ~l bar to any proceeding for the disbarment of the attorney after the pardon has been granted. 5 . JD. ; IO.; ID.; EFFECTS OF ABSOLU TE PARDON·-A person reaches both the punishment prescribed for t he offense and the guilt of the offender; and when the pardon is full, it releases the punishment and blots out of existence the guilt, so that in the eye of the law the offendel' is as innocent as if he had never committed the offense. If granted before ccnviction, it prevents any of the penalties and disabilities, consequent upon conviction, from attaching; if granted after conviction, it removes the penalties and disabilities, and restores him to all his civil rights; it makes him, as. it were, a new man, and gives him a new credit and capacity. Page 270 LAWYERS JOURNAL September 30, 1962 6. ID.; ID.; ID.; PARDON GRANTED TO RESPONDENT JS NOT ABSOLUTE BUT CONDITIONAL.- The pardon grantc<! to respondent here is not absolute but.. conditional, and mCl'cly remitted the unexeeuted portion of his tenn. I t does not reach the offense itself, unlike that in Ex parte Gal'iund, which was ·•a full pardon and amnesty for all offenses by him committed in connection with the J"ebellion (ctvil war) agai:ist the government of the United Stales." 7. ID·; ID. ; ID.; I N RE LONTOK CASE INAPPLICABLE '1'0 TO THE CASE AT BA R.-Rcspondent Gutierrez must be judged upon the fact of his conviction for murder without regard to the pardon he invokes in defense. The cdme was qualified by treachery and aggravated by its having b('en C<'Jllmittcd in band, by taking advantage of his official position (espondent being municipal mayor at the time) and with the use of a motor vehicle. The degree of moml turpitude involved is such as to justify his being purged from the profession. 8. I D.; PRACTICE OF LAW; RIGID STANDARD REQUIRE1\lENTS.- The prnctice of law is privilege accorded only to those who measure up to certain rigid standards of mental and moral fitness. For the admission of a candidate to thf' bar the Rules of Coui·t not only prescribe a test of academic preparation but require satisfactory testimonials of good moral character. These standards are neither dispensed with nor lowered after admission; the lawyer must CC'ntinue to adhere to them or else incur the risk of suspension or removal. 9. ID.; DUTI ES TO U PHOLD THE LAWS.-"Of all cl~sscs and professions, the lawyer is most sacredly bound to uphold the laws. He is their sworn servant; and for him, of all mC'n in the world, to repudiate nnd override the laws, to trample them under foot and to ignore the very bands of socil'~y, ari;ues recreancy to his position and office and sets a pernicious example to the insubordinate and dangerous elements of the body politic. (Ex parte Wall, 107 U.S. 263, 37 Law ed., 552, 556.) DEC I S I ON Respondent Diosdado Q. Gutierrez is a memLer of the Philippine Bar, admitted .to it on October 5, 1945. In criminal case No. R-793 of the Court of First Instance of Oriental Mindoro he was convicted of the murder of F ilemon Samaco. former municiJi:ll ma:10r of Calapan, :rnJ together with his co-conspirators was sentenced to the penalty of death. Upon review by this Com't the judgment of conviction was affirmed on June 30, 1956 (G.R. No. L-7107). but the penalty was changed to reclusi<m pcrpetua. After serving a po11ion of the sentence respondent was granted a conditional pardon by the President on August 19, 1958. The unexecuted p!)l'· tion of the prison term was remitted "on condition that he shall not again violate any of the penal laws of t he Philippines." On October £1, 1958 the widow of the deceased Filemon Sam:ico, ''ictim in the murder case, filed a verified complaint before this Court praying that respondent be removed from the roll of hw~·e!'s pursuant to Rule 127, 'section 5. Respondent presented his answc!' in due time, admitting the facts alleged by comr1lainant regarding his previous conviction but pleading the ccnditional pard0n in defense, on the authority of the decision of this Court in the .::ase of In re Lontok, 43 Phil· 293. Under section 5 of Huie 127 a member of ~hc- bar may be r"· moved or suspended from his office as attorney by the $u1>re>ne Court by reason of his conviction of a crime i1wolving moral t111·pitude. Murder is, without doubt, such a cr ime. The term "moral turpitude" includes everything which is done contrary to justice, honesty, modesty or good morals. In re Carlos S. Basa, 41 Phil. 275. As used in disbarment statutes, it means an act of baseness, vileness, or depravity in the private and social duties which a man owes to his fellowmen or to society in general, contrary to the :\Ccepted rule of right ai1d duty between man and man. State ex l'el. Conklin v. Buckingham, 84 P. 2nd 49; 5 Am. Jur. Sec. 27!J, pp· 428-429. The only question to be resolved is whether or not the conclitional pardon extended to respondent places him beyond the scope of the rule on disbarment aforecited. Reliance is placed by him squarely on the Lontok case. The respondent therein was convic!c-d of bigamy and thereafter pa1·do11ed by t.he Govcrnor-Genernl. In a subsequent proceeding for his disbarment on the gi·ound of such conviction, this Court decided in his favOI' and held: "When 1>roceedings to strike on attorney's name from the rolls are founded on, and depend alone, on a statute makng the fact of a conviction for a felony ground for disbarment, it has been held that a parCon operates to wipe out. the conviction ai1d is a bar to any p1·ocecdi11g for the disbarment of the attorney after the pardon has been grnllt· ed." It is our view that the ruling does not govern the question n.ow befol'e us. In making it the Court proceeded on the assumption that the pardon granted lo respondent Lo11tok was absolute. This is implicit in the ratio (/C<"idc11cli of the case, particulal'ly in the citations to support it, namely, In re Emmons, 29 Cal· App. 121; Scott vs. State 6 Tex. Civ. App. 343; and Ex pade Garland, 4 Wall. 380. Thus in Scott vs. State the court said : " We al'c of opinion that after he i·eceived an unconditional pardon the l'Ccord of the felony conviction could no longer be used as a basis for the proceeding provided for in article 226. This record, wl1en offered in evidence, was met with an unconditional pardon, and cou\rl not, therefol'e, prop~rly be s.:\id to afford "proof of ; conviction of ai1y felony." Having be-en thus cancelled, all its force as a felony conviction was taken nway. A pardon falling short of this would not be a pardon, according to the judicial construction which that act of cxccu· tive grace was received. Ex parte Gal'land, 4 Wall, 344; Knote v. U.S., 95 U.S. 14!J, and cases there cited; Young '" Young, 61 Tex. 191." And the portion of the decision in Ex part.:i Garland quoted with ap1J1·oval in the Lontok case is as follows : ·•'A pardon reaches both the punishment prescribed for the offense and the guilt of thC' offender; and when the pardon is full, it releases the punist.ment and blats out of existence the guilt, so that in the eye of the law the offender is as innoceut as if he had never committed the offense. If granted · before conviction, it prevents any of the penalties and disabilities, consequent upon convictio11, from attaching; if grnnted after conviction, it removes the penalties and disabilities, and restores him to all his civil rights; it makes him, as it were, a new man, and gives him a new credit and capacity.'" The pardon granted to respondent here is not absolute but conditional, and merely remitted the unc.xecuted po1'tion of his term. It does not J'euch the offense it.self, unlike that in Ex parte Garland, which was "a full pardon and amnesty for all offenses hy him committed in connection with the rebellion (civil war) agair.st the government of the United States.'' The foregoing considerations render In re Lontok inapplicable here. Respondent Gutierrez must be judged upon the fact of his conviction for murder without l'egard to the pnrdon he invokes in defc11sc. The crime was qualified by t reachery and aggravated by its having been committed in band, by taking advantage of his official position (respondent being municipal mayor at the time) and with the use of a motOr vehicle· People vs. Diosdado Gutierrez, supra. The degree of moral turpitude inv.1lvcd is such as to justify his being purged fr(IJll the profession. The practice of law is a privilege accorded only to t-hose who measure up to certain r igid standards of mental and moral fitness. For the admission of a candidate to the bar the Rules of Coul't not only prescribe a test of academic preparation but 1·equire satisfactory testimonials of good moral character. These standards are neither dispensed with nor lowered after admission; the lawyer must continue to adhere to them or else incur the r :sk of suspe11sio11 or removal. As stated in Ex. parte Wall, 107 U.S. 2G3, 27 Law ed., 5G2, 556: "Of all classes and professions, the lawyer is most sacredly bound to uphold the laws. He is their sworn servant; and for him, of all men in t)le world, to re1mdiate ::ind override the laws, to trample them under foot and to ignore September 30, 1962 LA WYERS JOURNAL Page 271 the very bands of society, argues recreancy to l1is position and ::>fficc and sets a pernicious example to the insubordinate and dangrrous clements of the body politic." Wherefore, pursuant to Rule 127, Section 5, and considering the nature of lhe crime for which respondent D iosdado Q. Gutierrez has been convicted, he is ordered disbal'l'ed and his 11amc stricken from the roll of lawyers. Bengzo11, C.J., Labrador, Concepcion, flor l'Crn, Parnle.~ , Di':'MI am/ Regala. JJ., concurred. Padilla, J., took no part. IV Matro Ca11it.?, et c!l., plui111iffs-appcllm1ts vs. Macfrigul & Co., Inc., et c1/, dcfendants-appcllees, G. fl. i\"o. l-1 78Jo;, All!//!:;/ 80, 19U.:, Dcwtista Angelo, J. I. PLEADING AND PRACTICE; MOTION TO D!Si\IISS COMPLAINT; GROUNDS l\IA Y BE BASED ON FACTS NOT ALLEGED IN THE COl\IPLAINT.-Undcr Ruic 3 of our Hules of Coui·t, a motion to dismiss is nol like a dcmutTCI' pr-.::vidCd for in the old Code of Civil Proc~dui·c that must be b~scd only 011 facts alleged in the com1>laint. Except where 1.h(' gl'ound is that the complaint does state no cause of action which must be based only on the allegations of the co111plaint, a mot\on to dismiss may be based on facts not alieged and may even deny those alleged in the complaint (Ruperto vs. Fernando, 83 Phil., 943}. - · ID.; JD.; DISMISSAL OF COMPLAINT WITHOUT RES E RVATION IS AN Al)JUDICATION UPON THE l\IERITS."Section 4, Rule 30, of the Rules of Coul't provides that "Unlf>SS otherwise ordered by the court, any d ismissal not provid('d for in this rule, other than a dismissal fo1· lack of jurisdiction, operates as ai1 adjudication upon thC' merilll". Where a com1 >laint had b('Cn dismissed without reservation, the dismiss~1l opcrnted as an adjudication upon the merits. 3. RES JUDICATA; AS GROUND TO D!Sl\IISS A COl\IPLA lr\T. - Where all the e.ssential requisites fo1 the existence of ffll' jmlical(t ar(' 1iresent, name\~·. final judgment, jurisdiction of the court, judgment on the merits, and identity of parties, cause of action and subjC'ct matter, the motion to dismiss the complaint on the gl'Ou11d of res judicattt must be grnnted. 4. STATUTE OF LJl\llTATIONS; WHEN ACT ION IS BAHRED BY STATUTE OF LlMITATIONS.-Whcl'<! the facts disclose that more than ten years had already elapsed since the cauf;e of action accrued on September 30, 1948, the action of pluintiffs is baned by the statute of limitations. DECIS I ON Plaintiffs impl('aded defendants before the Court of First Instance of Manila to rC<!over certain sums of money representing the salaries and allowances due them from March 17, 1948 to Sep· tember 30, 1948 as members of the crew (::mployed Ly defendants to fetch the ship S.S. BRIDGE from Sasebu, Japan to Manila by virtue of a certain shipping contract entered into between them. Within the reglcment:ny period, defendants filed a motion to dismiss on the gl'Ounds (a) that plaintiffs' cause of action is already barred by a prior judgment rendel'ed by the Coul't of First Instance of Manila in Civil Case No. 29663 and (h) that plaintiffs' cause of action is also barred by prescription. Counsel for plaintiffs filed his opposition to this motion, and after both the motion and the opposition were Sf:t for hearing, the court issued an order dismissing the complaint C'll the grounds set forth in the motion h; dismiss. Plaintiffs mterposed the present appeal before this Court on purely questions of law. It appears that 1 irior to the filing of the i:1stant ease, :i complaint was filed before the Court of First Instance of l\lanila by the same plaintiffs herein and other co-members of the same crew to which they belonged seeking to recover from the same defendants the total amount of 1'14,254.12 representing their unpaid salaries as crew members of the vessel S.S. BRIDGE concsponding to the period from March 17, 1948 to September 30, 1948, whid1 amount includes the same sums now sought to be recovered in the insta11t case. Plaintiffs' cause of action is predicated upon alleged violation of the same shipping contract entered into between hC'rein plaintiffs a nd defendants. After trial on the mer its, the court rende1·c<l decision ordering defendants to pay to one· J\ligucl Olirnpo th(' amounts of Pl,OHi.13 as wages and 1'300.00 as atlot'ney's fees and costs, but dismissing the comt>!aint with regard lo the other plaintiffs among them the ckims of l\Iatco Canite, Abdon Jamaquin and Filomena Sampinit, who are the plaintiffs in lhc instimt ease. The dispositivc part of the decision states that "the case of the other plaintiffs is dismissed as well as defendant's counterclaim for iiisufficiency of evidence." ( Underlining supplied} The 1 ilaintiffs, whose complaint was dhm1issed, gave notice of their intention to appeal, but the same was denied because it was filed out of time. They f il0<l a petition for mandamus with the Cou1·t of Appeals m an altc.-mpt to havf' the low0r coui·t approve and give course to their appeal, but their petition was dismissed, and so the decision became final and execulory. It is because of these facts which appear to be undisputed that the court a quo found no other alternative than to dismiss the JJl'CScnt action on the ground of 1"C'8 ;11dicala. I n this we find no ('J'l'Or for evident!}· all the essential requisites for the existence of lhc principle of 1·es judicatti a re here present. These requisiteii " In order that a Judgment rendered in a case may be con· elusive and bar a subsequent action, the following requisites must be present: (a) it must he a final judgment ; (b) the court rendering it must have jurisdiclion of the subject mattc1· and of the parties; (c) it must be a judgment on the merits; and (d) there must be between lhe two cases identity of pa1'lies, identity of subject matter, and identity of cause of action." (Lapid v. Lawan, ct al., C.R. No. L-10686, May 31, ]!)57) It is, however, contended that the court a quo erred in dismissing the complaint on the gl'Ound of res ;iulic!tla there bciug no allegation m the complaint t hat the present action has heen the subj('ct of a decision in a previous case. This contention is clearly unmeritorious, for under Rule 8 of our Hules of Court, a motion to dismiss is not like a demurrer pt·ovhled for in the Old Code of Civil Procedure that must be based 011/y on facts alleged in the complaint. "Except where the ground is that the complaint does state no cause of act.ion which must be based only on the allegations of the complaint, a motion to d ismiss may be based on facts not alleged and may even deny those alleged in the com· plaint x x x."l The court « quo, therefore, acted properly in susta ining the motion to dismiss. The contention that only the claim of Miguel Olimpo was adjudicated on the merits while the claims of the other plaintiffs, including the plaintiffs in the instant case, were dismissed merely for failure of the parties to testify in the hearing of the case .and so not on the merits, cannot also he sustained in view of what is pl'Ovided for in Section 4, Rule 30, of our Rules of Court. Thus, under said Section 4, '•Unless otherwise ordNed by t he court, any dismissal not provided for in this rule, other than a dismissal for lack of jurisdiction, opel'atcs as an adjudication upon the merits", and in the aforesaid case there is nothi11g in the decision that would take the case out of the operation of the general rule. T he compla int having been dismissed without rescr\'ation, the dismissal operated as an adjudication UJ)()n the merits. It appcai·ing that all the essential 1 ·equisites for the existence of res j1uliC(ila are here present, namely, final judgment, jurisdiction of the cou1·t, judgn1ent on the merits, and identity of parties, cause of action and subject matter, as laid down in t he case above-mentioned, the court a quo l1ad no other alter native than to dismiss the pl'escnt action on lhe ground of res judicata. Aside from the foregoing, the facts also discloses that more than ten years lrn<l already elapsed since the cause of action herein accrued on September 30, 1948, which justifies the contention that the action of plaintiffs is also barred by the statute of limit· ations. 1 Ruperto v. Fernando, 83 Phil., !J43. Page 272 LAWYE RS J OURNAL September 30, 1962
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