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UNITED STATES SUPREME COURT JURISPRUDENCE
 

 
PHILIPPINE SUPREME COURT JURISPRUDENCE
 

   
 





 
 

G.R. No. 48955   July 27, 1943 - GERVASIO ERAÑA, ET AL. v. JOSE O. VERA, ET AL. <br /><br />074 Phil 272

 
PHILIPPINE SUPREME COURT DECISIONS

FIRST DIVISION

[G.R. No. 48955. July 27, 1943.]

GERVASIO ERAÑA ET AL., Petitioners, v. JOSE O. VERA, Judge of First Instance of Manila, and MARIE JOSEPHINE PANZANI, Respondents.

Vicente J. Francisco, for Petitioners.

Mariano H. de Joya for Respondents.

SYLLABUS


1. ATTACHMENT; ISSUANCE IN A CRIMINAL CASE WHEREIN THE CIVIL ACTION IS NEITHER WAIVED NOR RESERVED. — According to Rule 107, section 1, of the new Rules of Court, "when a criminal action is instituted, the civil action for recovery of civil liability arising from the offense charged is impliedly instituted with the criminal action, unless the offended party expressly waives the civil action or reserves his right to institute it separately." In the estafa case at bar, since the offended persons did not either waive or reserve their right to institute their civil action separately, the same is deemed instituted with the criminal action. There were, therefore, in the estafa case two actions before the court: the criminal action for the punishment of the accused, and the civil action for recovery of the money fraudulently taken by her. If the court had jurisdiction over the civil action, it must necessarily have jurisdiction of all its necessary incidents. Indeed, it is expressly provided in Rule 124, section 6, that "when by law jurisdiction is conferred on a court or judicial officer, all auxiliary writs, processes and other means necessary to carry it into effect may be employed by such court or officer; and if the procedure to be followed in the exercise of such jurisdiction is not specifically pointed out by these rules, any suitable process or mode of proceeding may be adopted which appears most conformable to the spirit of said rules." One of the auxiliary writs to carry into effect the jurisdiction of the court over the civil action is the preliminary writ of attachment without which the judgment of the court awarding civil indemnity may be nugatory. Other processes which the court may issue are those which refer to the execution of such judgment where the rules applicable in civil cases should be followed.

2. ID.; ID.; ABANDONMENT OF RULING IN UNITED STATES v. NAMIT (38 PHIL., 926), AND PEOPLE v. MORENO (60 PHIL., 674). — It is true that in United States v. Namit (38 Phil., 926), and in People v. Moreno (60 Phil., 674), it was held that preliminary attachment is not proper in criminal cases. But this ruling is predicated fundamentally upon the theory that preliminary attachment is a purely statutory remedy and there was then no clear legal provision making it applicable in criminal proceedings. All doubts on this question have, however, disappeared upon the promulgation of the new Rules of Court wherein, by clear authority of Rule 124, section 6, above quoted, a criminal court having jurisdiction over the civil action arising from the offense charged, is now permitted to issue all the auxiliary writs necessary to carry such jurisdiction into effect. A similar legal principle was recognized before in scattered provisions of law or decisions (see Act No. 136, section 19; Revised Administrative Code, section 145-G; Act No. 190, section 610; Shioji v. Harvey, 43 Phil., 333, 344), applicable only in some courts and in certain cases, and does not seem to cover the question now before this court. Now, it is made general and applicable in all cases and in all courts provided the requirements therein specified are present.

3. ID.; ID.; DOCTRINE NOT APPLICABLE TO CRIMINAL CASES WHERE OFFENDED PERSONS RESERVED RIGHT TO INSTITUTE CIVIL ACTION SEPARATELY. — In the criminal cases for murder and frustrated murder, since the offended persons reserved their right to institute their civil action separately, preliminary attachment is not proper. As the court in said criminal cases has no jurisdiction of the civil actions arising from the offenses charged, there is nothing before the court to which the preliminary attachment may be considered as an auxiliary writ and, therefore, the court has no jurisdiction to issue such writ.

4. CERTIORARI; MANDAMUS; WRITS LIE AGAINST JUDGE WHO FOLLOWED FORMER DECISIONS OF THIS COURT. — It has been suggested that as the respondent judge merely followed former decisions of this court, he should not be blamed therefor and that accordingly the writ does not lie against him. This suggestion confuses the basic ground for the writ. The personal motives of the respondent judge as well as his good or bad faith are in no way material for the grant or denial of the writ. The only issue before this court is whether the action taken by him constitutes a mistake of law.

This court holds it to be such according to its construction of the law as it is. The fact that he has followed previous rulings of this court may exempt him from blame but it can in no wise wipe out his mistake. And such mistake, however well-grounded it may be, is a sufficient basis for granting the writ.


D E C I S I O N


MORAN, J.:


Respondent Marie Josephine Panzani was charged in the Court of First Instance of Manila with the crime of murder committed against Dr. Francisco Eraña and with the crime of frustrated murder committed against Bienvenido B. Eraña. In these two criminal cases, the offended parties reserved their right to institute a separate civil action for the civil liability arising from the two crimes charged. The same respondent was charged in the same court in another criminal case with estafa wherein the right to institute a separate civil action was not waived nor reserved by the offended persons.

In these three criminal cases — for murder, frustrated murder and estafa — a petition was filed by the offended parties wherein a preliminary attachment of the properties belonging to respondent was applied for upon some of the grounds specified in Rule 59, section 1, of the new Rules of Court. The Court issued an order declaring itself to be without authority to issue writs of preliminary attachment in criminal cases. Hence, this petition for combined writs of certiorari and mandamus to annul such order and to compel the respondent court to consider the merits of the motion for preliminary attachment.

The question here raised is, therefore, whether or not a court, acting on a criminal case, has authority to grant preliminary attachment. According to Rule 107, section 1, of the new Rules of Court, "when a criminal action is instituted, the civil action for recovery of civil liability arising from the offense charged is impliedly instituted with the criminal action, unless the offended party expressly waives the civil action or reserves his right to institute it separately." In the estafa case, since the offended persons did not either waive or reserve their right to institute their civil action separately, the same is deemed instituted with the criminal action. There were, therefore, in the estafa case two actions before the court: the criminal action for the punishment of the accused, and the civil action for recovery of the money fraudulently taken by her. If the Court had jurisdiction over the civil action, it must necessarily have jurisdiction of all its necessary incidents. Indeed, it is expressly provided in Rule 124, section 6, that "when by law jurisdiction is conferred on a court or judicial officer, all auxiliary writs, processes and other means necessary to carry it into effect may be employed by such court or officer; and if the procedure to be followed in the exercise of such jurisdiction is not specifically pointed out by these rules, any suitable process or mode of proceeding may be adopted which appears most conformable to the spirit of said rules." One of the auxiliary writs to carry into effect the jurisdiction of the court over the civil action is the preliminary writ of attachment without which the judgment of the court awarding civil indemnity may be nugatory. Other processes which the court may issue are those which refer to the execution of such judgment where the rules applicable in civil cases should be followed.

Respondents, however, invoke the decisions of this Court in U. S. v. Namit, 38 Phil., 926 and People v. Moreno, 60 Phil., 674, wherein it was held that preliminary attachment is not proper in criminal cases. But this ruling is predicated fundamentally upon the theory that preliminary attachment is a purely statutory remedy and there was then no clear legal provision making it applicable in criminal proceedings. All doubts on this question have, however, disappeared upon the promulgation of the new Rules of Court wherein, by clear authority of Rule 124, section 6, above quoted, a criminal court having jurisdiction over the civil action arising from the offense charged, is now permitted to issue all the auxiliary writs necessary to carry such jurisdiction into effect. A similar legal principle was recognized before in scattered provisions of law or decisions (see Act No. 136, section 19; Revised Administrative Code, section 145-G; Act No. 190, section 610; Shioji v. Harvey, 43 Phil., 333, 344), applicable only in some courts and in certain cases, and does not seem to cover the question now before us. Now, it is made general and applicable in all cases and in all courts provided the requirements therein specified are present.

At the hearing of this case, it has been suggested that as the respondent Judge merely followed former decisions of this Court, he should not be blamed therefor and that accordingly the writ does not lie against him. This suggestion confuses the basic ground for the writ. The personal motives of the respondent Judge as well as his good or bad faith are in no way material for the grant or denial of the writ. The only issue before us is whether the action taken by him constitutes a mistake of law. We hold it to be such according to our construction of the law as it is. The fact that he has followed previous rulings of this Court may exempt him from blame but it can in no wise wipe out his mistake. And such mistake, however well-grounded it may be, is a sufficient basis for granting the writ.

In the criminal cases for murder and frustrated murder, since the offended persons reserved their right to institute their civil action separately, preliminary attachment is not proper. As the court in said criminal cases has no jurisdiction of the civil actions arising from the offenses charged, there is nothing before the court to which the preliminary attachment may be considered as an auxiliary writ and, therefore, the court has no jurisdiction to issue such writ.

Judgment is, therefore, rendered declaring the respondent Court with authority to grant preliminary writ of attachment in the estafa case wherein the civil action arising from the offense charged is deemed instituted, and the respondent Court is hereby ordered to act upon the merits of the motion for preliminary attachment filed therein by the offended parties. With respect, however, to the criminal cases for murder and frustrated murder, the respondent is declared to be without authority to issue preliminary writs of attachment therein, and, accordingly, its order to that effect is valid. Without costs.

Yulo, C.J., concurs.

Separate Opinions


PARAS, J.:


I vote for a complete abandonment of the old doctrine because, in my humble opinion, the new interpretation or application of the law or rule is sound and correct.

BOCOBO, J., concurring:chanrob1es virtual 1aw library

I concur in the judgment which declares the respondent Court with authority to grant a preliminary writ of attachment in the estafa case, wherein the civil action arising from the offense charged is deemed instituted. But my reasons are different from those set forth in the opinion penned by Mr. Justice Moran.

In this jurisdiction, criminal responsibility carries with it civil liability, the latter consisting of restitution, reparation of the damage caused and indemnification for consequential damages. (Arts. 17 and 119, old Penal Code; and Arts. 100 and 104, Revised Penal Code.) Under the Spanish Code of Criminal Procedure, the criminal and the civil actions could be brought either jointly or separately (Art. 111). If the criminal action alone was filed, the civil action was understood to have been likewise utilized ("se entendera también utilizada la civil", ) unless the civil action was waived or the right to file it separately was expressly reserved. (Art. 112, Spanish Code of Criminal Procedure.) When General Orders No. 58 took effect, no change was made, for Section 107 of said General Orders provided:jgc:chanrobles.com.ph

"SEC. 107. The privileges now secured by law to the person claiming to be injured by the commission of an offense to take part in the prosecution of the offense and to recover damages for the injury sustained by reason of the same shall not be held to be abridged by the provisions of this order; but such person may appear and shall be heard either individually or by attorney at all stages of the case, and the court upon conviction of the accused may enter judgment against him for the damages occasioned by his wrongful act. It shall, however, be the duty of the promotor fiscal to direct the prosecution, subject to the right of the person injured to appeal from any decision of the court denying him a legal right." (Italics supplied.)

The Code of Civil Procedure (Act 190) authorized the preliminary attachment of defendant’s property under Section 424 which reads thus:jgc:chanrobles.com.ph

"SEC. 424. Attachment. — A plaintiff may, at the commencement of his action, or at any time afterwards, have the property of the defendant attached as security for the satisfaction of any judgment that may be recovered, unless the defendant gives security to pay such judgment, in the manner hereinafter provided, in the following cases:chanrob1es virtual 1aw library

1. In all cases mentioned in section four hundred and twelve, providing for the arrest of a defendant. But the plaintiff must make an election as to whether he will ask for an order of arrest or an order of attachment; he shall not be entitled to both orders;

2. In an action against a defendant not residing in the Philippine Islands."cralaw virtua1aw library

One of the grounds stated in section 412 of Act 190 was the following:jgc:chanrobles.com.ph

"5. When the defendant has removed or disposed of his property, or is about to do so, with intent to defraud his creditors."cralaw virtua1aw library

In U. S. v. Namit, 38 Phil., 926 and People v. Moreno, 60 Phil., 674, this Court held that preliminary attachment being a statutory remedy, and there being no statute authorizing preliminary attachment in criminal cases, this process was not available in criminal proceedings.

With all due respect to those Justices who held this view in the two cases mentioned, I am of the opinion that at the time these two decisions were rendered there was already a clear statutory authorization for a preliminary attachment to enforce the civil responsibility for damages arising from a crime. Unless there was a waiver or a reservation of the civil action, two suits were initiated at the same time, namely, the criminal prosecution and the civil action. What happened when both the criminal and the civil actions were thus brought and tried together? Each retained (as it now retains) its own nature and individuality, as shown by the following:chanrob1es virtual 1aw library

1. In U. S. v. Heery, 25 Phil. 600, this Court held that there is no merger of the two kinds of liability (criminal and civil) from the mere fact that they are tried together. In that case, this Court upon the first appeal affirmed the sentence of the lower court condemning the defendant-appellant to one year and three months of prision correccional, but the appeal of the injured party against the ruling of the trial court which refused to allow him to submit evidence on the damages suffered by him was sustained and the case was returned with the following instructions: "It is therefore ordered that the record be returned to the court whence it came for the execution of the criminal judgment herein affirmed, and for the further purpose of completing the civil branch of the case." (Italics supplied.) Upon the second appeal, the defendant raised the question of double jeopardy, but this Court held that the remanding of the case for the determination of the civil damages did not subject the accused to double jeopardy. This Court said in part:jgc:chanrobles.com.ph

"Does the fact that in this country civil liability is, as a rule, determined in the criminal action transform it into criminal liability and thus make it a part of the punishment for the crime? Certainly the mere form of a remedy should not affect its substance. And there are many indications in the Penal Code that the civil liability therein imposed for the commission of crimes was not intended to be merged into the punishment for the crime. Articles 17, 119-126, which provide for civil liability of offenders, are confined strictly to that subject. Article 23 sharply defines one distinction between the criminal and civil liability, in that the former cannot be waived by a pardon of the party injured, while the latter may be waived. The chapters of the Penal Code dealing with the classification and duration of penalties (articles 25 to 62 inclusive), nowhere list the civil liability attached to a crime. And article 133 provides that "Civil liability arising out of crimes or misdemeanors shall be extinguished in the same manner as other obligations, in accordance with the rules of civil law.’

"In commenting upon this article, Groizard (vol. 2, p. 717), says:chanrob1es virtual 1aw library

‘From crimes arise, as we know, two liabilities: criminal and civil. The first is extinguished by the methods to which we have just adverted. The method of terminating the second is not a subject of criminal law, but of civil law.

‘The character of this work does not permit us to tarry for further explanations. We would not be commenting upon subjects included within the Penal Code but laws of a purely civil character.’

"And, as a complement of this article, article 1813 of the Civil Code provides that civil liability attached to crimes may be compromised but that the criminal liability is not thereby extinguished. Other distinctions might be noticed which show that there is no merger of the two kinds of liability from the mere fact that they are tried together. But these are, we think, sufficient to sustain the point." (Italics supplied.)

2. The aggrieved party could take part in the prosecution of the offense. (Articles 109 and 110, Spanish Code of Civil Procedure). This privilege has been preserved by Section 107, General Orders No. 58, and by Sections 15 and 4, Rule 106 of the new Rules of Court.

3. The extinction of the criminal action did not carry with it that of the civil action, unless the extinction proceeded from a declaration in a final judgment that the fact from which the civil action might arise did not exist. (Art. 116, Spanish Code of Criminal Procedure). This principle is reiterated in the new Rules of Court (Rule 107, Sec. 1-d).

Inasmuch as each of the two actions kept its own separate existence and individuality, although both were tried at the same time, it would seem to follow that each action also retained its own incidents. And one of the incidents of a civil suit was the preliminary attachment provided for in Sections 424 and 412 of the Code of Civil Procedure. If the aggrieved party brought his civil action separately, a preliminary attachment was unquestionably proper. But in the Namit and Moreno cases, this Court in effect held that if the civil suit was filed together with the criminal prosecution, no such attachment could be allowed because there was no specific authority therefor. In the one case, the civil damages could be safeguarded, but in the other, they were precarious and uncertain. I am not inclined to indulge in such a hairsplitting nicely. It is hard for me to believe that the lawmakers contemplated such a distinction, which made the vitality of a judgment for civil liability depend upon the course taken: whether a separation or a joining of the criminal and civil actions. If the choice was for the former, the judgment for damages was real, efficacious and commanding, but if the choice was for the latter, then such judgment might become an egregious delusion and a solemn mockery, because the defendant could dispose of all his property with intent to evade and defeat his civil liability. Unless the statute is clearly worded to that effect, I cannot bring myself to adhere to an interpretation whereby, on account of a technicality, pure and simple, a court judgment might become illusory, the civil redress justly due an aggrieved person might be rendered nugatory and meaningless, and the accused upon conviction might easily escape his obligation to repair the injury he has caused through his wrongful deed. A situation so deplorable and so extraordinary, which defies and contravenes every primary concept of right and is gravely destructive of the administration of justice, should never be countenanced unless the law interpreter is constrained to do so by the explicit and unequivocal terms of the statutes. And in the instant case, as already indicated, the Philippine statutes authorized a preliminary attachment, whether the civil action was brought separately from, or jointly with the criminal prosecution.

The fact that in neither the General Orders No. 58, nor the Code of Civil Procedure, was there any specific authority for preliminary attachment in case a civil action was brought and tried together with a criminal action does not in the least affect my conclusion just formulated, for these reasons:chanrob1es virtual 1aw library

1. Such explicit provision for the specific case mentioned was not necessary, because when the law said that the civil action was understood to have been likewise utilized, all the incidents of the civil action were retained, as already explained.

2. Section 107 of General Orders No. 58, when read in connection with Section 112 of the Spanish Code of Criminal Procedure clearly intended that the right to recover civil damages should be undiminished and should conserve its original vigor and efficacy. Such right to damages was later implemented and strengthened in Sections 424 and 412 of the Code of Civil Procedure. The creation of the auxiliary remedy of preliminary attachment in the Code of Civil Procedure rendered it superfluous to provide in an amendment to General Orders No. 58, or in any other subsequent legislation, for specific authority for preliminary attachment in case a civil action was instituted together with a criminal action.

The above was, I believe, the law when the cases of U. S. v. Namit and People v. Moreno were decided by this Court. Has the law been altered or modified? I do not think so, because Rule 107, Section 1 (a) of the new Rules of Court which reads:jgc:chanrobles.com.ph

"(a) When a criminal action is instituted, the civil action for recovery of civil liability arising from the offense charged is impliedly instituted with the criminal action, unless the offended party expressly waives the civil action or reserves his right to institute it separately,"

is a mere reiteration of the old principle that if the criminal action alone was filed, the civil action was understood to have been likewise utilized. Neither does Rule 124, Sec. 6, announce a new principle, inasmuch as before said Rule came into being, every court already had an inherent power to issue any auxiliary writ or process to carry out its judgments. (14 A. J., 371 and 373; 7 R. C. L., 1033). Today, as before the promulgation of the new Rules of Court, though the two actions are brought and tried together, each however, retains its own character and individuality; as stated by Mr. Justice Moran, there were in the estafa case herein, "two actions before the court: the criminal action for the punishment of the accused, and the civil action for the recovery of the money fraudulently taken by her." Today, as before the new Rules of Court took effect, a preliminary attachment under Section 1 of Rule 59, is an incident in a civil action instituted and tried simultaneously with the criminal prosecution. Today, as before the new Rules of Court became binding, the existence of authority for a preliminary attachment under Section 1 of Rule 59, of the Rules of Court, renders it unnecessary that Part III (Rules 106-122) of the same Rules should again specifically provide for such process in case a civil suit is brought and tried at the same time with the criminal action. Consequently, today as before the new Rules of Court became operative, there is clear statutory authority for the preliminary attachment in question. The foregoing construction is supported by precedent. Thus:jgc:chanrobles.com.ph

"While the remedy of attachment or garnishment is statutory and in derogation of the common law, strict construction should not be pushed to the extent of nullifying the beneficial intent of the statute or depriving the creditor of recourse thereto in a proper case, for it is an indisputable fact that the policy of the law is that a man’s property shall be amenable to legal process for the satisfaction of his pecuniary indebtedness. Indeed, in view of the abolition of the capias and of imprisonment for debt, and in view of the enlarged and liberal provisions in more recent statutes on the subject of attachments and garnishments, it has been said that a more favorable and liberal construction of these laws should be adopted. In some states the statutes expressly require that a liberal construction be put upon their provisions. In any event, such construction ought to be given to a law, if it will reasonably admit of it, as will not suffer it to be defeated, and technicality should not be allowed to override justice." (4 A. J., 567-568.)

The view which I take of the instant case makes it unnecessary, I believe, to amend Rule 107 of the Rules of Court, as suggested by the dissenting opinion herein.

The next inquiry which I wish to take up is this: Can certiorari and mandamus be ordered when the trial court simply followed the previous decisions of this the highest court of the land? The negative answer would seem, at first sight, to be warranted, because the interpretations of the law rendered by this Court become part and parcel of the Philippine legal system, and are invested with compelling authority that binds all the lower courts in the country; so a trial court that merely yields to them incurs in no mistake of law, and does not commit any abuse of discretion.

The point urged is that the respondent court cannot be held to have incurred in any error of law when it only applied the law as interpreted by this Court in previous cases. Such a theory implies the argument that the adoption by this Court of a new and different interpretation of the same law cannot logically convert the trial court’s order, which was correct at the time it was signed — according to the highest court’s previous pronouncements — into a mistaken one. I believe, however, that this mode of reasoning would prevent this Court from revising or abandoning its previous rulings, a power which this Court exercises in the interest of justice. There is nothing inviolably sacrosanct in the doctrine of stare decisis, for an orderly and wholesome development of jurisprudence demands that there should be no undue reluctance to re-examine previous interpretations of the law.

This is especially true when the former view of the law was not unanimously held. In U. S. v. Namit, five Justices were on the majority, while one Justice dissented. In People v. Moreno, seven Justices constituted the majority, while four Justices formed the minority. The existence of a forceful dissenting opinion — and dissenting opinions are often of that character — dulls the edge of the majority decision. It would seem that an opinion whose power is thus impaired, while technically it may be cited as a precedent — because it is presumed to be the correct view until the contrary is maintained by the court in a subsequent decision — nevertheless practically leaves the legal question open for further examination in future cases. If the original interpretation is intrinsically sound, it can stand the pressure of additional discussion and inquiry in subsequent cases, and instead of being weakened, it will gather greater strength and momentum. But if on the other hand, the original view of the minority bears within itself the puissant urge of reason and the driving impetus of justice, it will eventually, after one or more searching re-examinations of the issue involved, gain ascendancy, thus replacing the old proposition. It is this possibility, among other considerations, that justifies the writing of dissenting opinions, and makes it particularly desirable and necessary that the original majority ruling be re-studied.

The stability of judicial decisions, which is earnestly to be sought, requires that a legal interpretation which is still on the way toward final crystallization, as it has yet to gain general acceptance (a majority opinion questioned by a strong dissent being of such type), should not be looked upon with awesome reverence as a primitive taboo. On the contrary, it should be openly subjected to the most thorough discussion in order to find out whether it is sufficiently solid and enduring to be incorporated into the legal structure. Without such a rigid and severe test, the rule of law announced by a majority of the court will continue to languish in the penumbra of doubt, whereas the doctrine of stare decisis can thrive only in the life-giving sunshine of reason and justice, and in the clear atmosphere of widespread concord in the legal profession.

In view of the foregoing, my vote is that the respondent court had authority to grant the preliminary attachment prayed for in the civil action impliedly instituted with the criminal action for estafa.

OZAETA, J., dissenting:chanrob1es virtual 1aw library

I find no innovation in the new Rules of Court insofar as the issuance of preliminary attachment in a criminal case is concerned. Section 1 of Rule 107 is but a re-enactment of article 112 of the Spanish Code of Criminal Procedure, which had been carried over under General Orders No. 58. (Almeida v. Abaroa, 218 U. S., 476, 40 Phil., 1056; Alba v. Acuña, 53 Phil., 380; Orbeta v. Sotto, 58 Phil., 505.) And section 6 of Rule 124 is but a restatement of a general principle of law theretofore recognized in our statutes and jurisprudence, as indicated in the majority opinion itself. So it is to me clear that the law now is the same as it was when this Court handed down its decisions in the cases of United States v. Namit (1918), 38 Phil., 926; and People v. Moreno (1934), 60 Phil., 674, in both of which it was declared in effect that there was no law authorizing the issuance of preliminary attachment in a criminal case to secure the payment of the civil liability of the accused to the offended party. With these decisions in mind, if this Court had intended to change the law on the subject by allowing preliminary attachment in a criminal case when it promulgated the new Rules of Court in virtue of the rule-making power conferred upon it by the Constitution, it could and would have done so by inserting in Rule 107 an express provision to that effect.

I am in full accord with my associates in the Court that such provision is desirable to secure full remedy to the offended parties in criminal cases. But this desideratum should, in my opinion, be satisfied by amending Rule 107 and not by giving it a new interpretation or application different from that in the previous cases aforecited. In other words, this Court should exercise its rule- making power and not its judicial power to achieve the desired result. The judicial power cannot be used to change the rule but only to apply it. On the other hand, the rule-making power may be availed of to amend the rule prospectively. The change or amendment effected by the majority through judicial interpretation is the more objectionable because it is necessarily retroactive in operation.

Another reason why I cannot give my assent to the majority opinion is, that it brushes aside the important and well-recognized rule of stare decisis without justification, and tends to undermine the stability of the jurisprudence established and followed in virtue of that rule. We should carefully avoid the impression that a change in the membership of this Court creates an open season against its previous decisions. These should be abandoned only when clearly shown to be erroneous or untenable. No attempt is made in the majority opinion to demonstrate that the decisions of this Court in the cases of United States v. Namit and People v. Moreno, supra, are clearly erroneous. The refusal to follow them in this case is predicated upon a supposed change in the law effected by section 6 of Rule 124. But I think the mere restatement in section 6, Rule 124, of a general principle of law previously recognized in scattered provisions of different statutes and in adjudicated cases furnishes no justification for a different interpretation or application of Rule 107, which is the basic statutory provisions involved.

In his concurring opinion, Justice Bocobo admits that the law now is the same as it was when this Court decided the cases of U. S. v. Namit and People v. Moreno; but he dissents from the opinion of this Court in said cases and maintains that the statutory authorization for preliminary attachment in civil actions may be availed of by the offended party in a criminal action even in the absence of an express provision to that effect in the rules of criminal procedure and in spite of the undisputed principle that attachment is a purely statutory remedy. If we were to interpret the law for the first time, we might adopt the liberal view sustained by the concurring opinion instead of amending the rule. But inasmuch as this Court, after mature and conscientious deliberation, has repeatedly and consistently maintained the view that express statutory warrant for the issuance of a preliminary attachment in a criminal action is necessary — which view is not without support in reason and authority; inasmuch as the legislature acquiesced in that interpretation ever since it was handed down for the first time in the Namit case in 1918 and reiterated in the Moreno case in 1934, until this Court promulgated the new Rules of Court in 1940 in lieu of the codes of civil and criminal procedure; and inasmuch as it is within the power of this Court to amend said Rules, I am persuaded that we should amend Rule 107 instead of giving it now a new interpretation. The same end would be achieved regularly and without violence to our own jurisprudence. The fact is, that the jurisprudence in question has stood its ground for a quarter of a century notwithstanding repeated attempts to overthrow it, and that even now the majority of the Court are not persuaded that the opinion is untenable.

I think the respondent judge acted with commendable propriety in following the previous decisions of this Court, saying that it is up to us either to reverse them or to amend the Rules of Court. I believe the last inquiry in the concurring opinion to be a superfluity. If the previous opinion of this Court were clearly erroneous or untenable, no argument is needed to demonstrate that we would be justified — indeed we would be in duty bound — to reverse it, regardless of whether or not it was followed by the lower court. And the fact that such previous opinion "was not unanimously held" is of no consequence. Stare decisis recognizes no distinction between a unanimous and a dissented opinion. Every opinion of a collegiate court, whether unanimous or not, derives its persuasive force as precedent from the cogency and intrinsic validity of its reasoning and not from the number of Justices who subscribe to it.

My vote is to deny the petition in toto, without prejudice to amending Rule 107 by inserting another section therein expressly providing for the issuance of a preliminary attachment in criminal cases.

G.R. No. 48955   July 27, 1943 - GERVASIO ERAÑA, ET AL. v. JOSE O. VERA, ET AL. <br /><br />074 Phil 272


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