PEOPLE V.

CASTELO

RESOLUTIONS (1961)

G.R. No. L-10774 February 16, 1961

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
OSCAR CASTELO, ET AL., defendants-appellants.

Office of the Solicitor General for plaintiff-appellee.

Liwag and Vivo, Mariano H. de Joya, Estanislao Fernandez, Constancio Leuterio, Feliciano
Ocampo, A. V. Tolentino and A. de Santos for defendants-appellants.

RESOLUTION

BARRERA, J.:

Defendant-appellant Oscar Castelo, who has been sentenced to death by the Court of First Instance
of Rizal (Pasay City) in Criminal Case No. 3023-P for murder, which case is now pending review by
this Court, filed a "Motion for Urgent Disposition of Petition for New Trial and Bail," dated January 9,
1961, based mainly on the ground that the stenographic notes containing the testimonies of Edgar
Bond (now deceased), Mariano Almeda, Raymundo Tal Villareal, Matias Soriano, and Francisco
Espiritu are already definitely lost; that said testimonial evidence is vital to the disposition of the case
on the merits; that the aforementioned loss of the notes would delay the filing of appellee's brief and,
consequently, the termination of the appeal, for an indefinite period of time; that to allow the
continued detention of movant during the pendency of the appeal for such an uncertain or indefinite
period is violative of his constitutional right to a speedy trial. Thus, it is prayed that the case be set
for new trial, and in the meantime, defendant-appellant Oscar Castelo be released on bail.

This argument was also the basis of the petitions previously filed by the same appellant on May 31,
1957 (Petition for New Trial and Bail), December 18, 1959, (Urgent Motion for Bail) ; November 14,
1960 (Motion for Release on Bail); and January 3, 1961 (Petition for a Writ of Habeas Corpus).

Except for the missing transcript of the stenographic notes containing the testimonies of the
five witnesses mentioned heretofore, we find the record of this case complete, with the other
evidence and the original decision of the trial court intact. It has been suggested, however, that
under the circumstances, the only remedy left to the Court is to set aside the decision of the trial
court and order a new trial under the provisions of Rule 117, Section 2, on the alleged ground that
the loss of the stenographic notes in question constitutes an irregularity that has been committed
during the trial prejudicial to the substantial rights of the defendant. We do not think so. The
irregularity that justifies a new trial under this Rule is, as the rule itself prescribes, one that has been
committed during the trial. There is no pretense that an actual irregularity has been committed during
the trial. The proceedings have been all in accordance with law and a decision on the merits has
been duly rendered and promulgated. This present appellant has already filed his brief and no
reference to any irregularity has been made therein. All that he assails is the correctness of the
decision on the merits.

We rather believe that the remedy is the reconstitution of the missing evidence as provided in
Sections 14 and 15 of Act 3110,1 dealing with pending criminal cases, which read:
 SEC. 14. The testimony of witnesses, if any has already been taken, shall be reconstituted
by means of an authentic copy thereof or by a new transcript of the stenographic notes; but if
it is impossible to obtain an authentic copy of the evidence and if the stenographic notes
have been destroyed, the case shall be heard anew as if it had never been tried.

SEC. 15. If the case has already been decided, the decision shall be reconstituted by means
of an authentic copy. If a n authentic copy is not obtainable, the case shall be decided anew,
as if it had never been decided.

Under these legal provisions, the original decision, which is, as already stated, extant upon the
records, need not be set aside as no new judgment can be rendered. It is only when the decision
itself has been lost and no authentic copy thereof is obtainable that the case be decided anew as if it
had never been decided. This Court has had an occasion to interpret Sections 6 and 7 of Act 3110,
the counterpart in civil cases of Sections 14 and 15 above quoted, in the case of Benigno Madalang
v. Court of First Instance of Romblon, et al., 49 Phil. 487, 490. There, in a unanimous decision, this
Court said:

The pertinent provisions of Act No. 3110 are contained in the following sections:

SEC. 6. Testimony of witnesses taken in civil cases shall be reconstituted by means of an

authentic copy thereof or a new transcript of the stenographic notes. If no authentic copy can
be obtained and the stenographic notes have also been destroyed, the cases shall be
tried de novo as if called for trial for the first time.

SEC. 7. If a civil case has already been decided, the decision shall be reconstituted by
means of an authentic copy. In case an authentic copy cannot be found, the court shall make
a new decision, as if the case had never been decided.

It appears from section 7 above quoted that a new judgment can be rendered, as if the case
had never been decided, only when the original decision cannot be reconstructed by means
of an authentic copy. So that if an authentic copy of the original decision exists, the latter
must be reconstructed by means thereof. If this is so, the reconstruction of the oral evidence
introduced at the original trial of civil cases, when no authentic copy thereof exists, or when
the stenographic notes have been destroyed and it is impossible to secure another transcript
of the same, the testimony of the witnesses who testified at the original trial shall be taken
again; because, as the original decision is reconstructed by means of an authentic copy of
the same, it is not necessary to render a new one, and the reconstruction of the oral
evidence is only for the purpose of permitting the court of appeals to review it and determine
whether the appealed decision is in accordance therewith.

Consequently, Act 3110 in providing in its section 7 that if an authentic copy exists the
decision shall be reconstructed by means thereof, it was the intention that in the
reconstruction of the oral evidence, provided in section 6, only the testimony of the same
witnesses who testified at the original trial must be taken again and not the testimony of
additional witnesses, because neither the literal meaning of the verb "reconstitute" used in
said law, nor the spirit, nor the object of the same warrants a different interpretation.

This doctrine was later ratified and amplified in the case of Almario v. Ibaez (81 Phil. 592, 600)
where this Court held that in case one of the principal witnesses who testified in the original trial and
whose testimony has been lost, is no longer available because he has disappeared, as in the
Almario-Ibaez case, or has died, as in the present case of witness Edgar Bond, the party
presenting the unavailable original witness may substitute his testimony with that of another witness
or witnesses who may have knowledge of the same facts to which the first witness testified in the
original trial.

While the Madalang and Almario cases were civil actions, there is no reason of law or justice why
the same principles should not apply in criminal cases. In fact, the legal provisions concerning the
reconstitution of pending criminal cases are identical in terminology mutatis mutandi to those
referring to pending civil cases. And, since the law in both cases is procedural or adjective and is
only a means to an end an aid to substantive law it should be interpreted and applied to
accomplish that end.

Following these precedents and in the exercise of its inherent power to restore and supply
deficiencies in its records and proceedings2 and of its discretion to adopt, in the absence of specific
procedure provided in the Rules, any suitable process or mode of proceeding which appears most
conformable to the spirit of said Rules,3 this Court, pursuant to Section 64 of Act 3110, resolves to
remand this case to the court of origin solely for the purpose of reconstructing the testimony of the
witnesses, the stenographic notes of whose original testimony had been lost, by retaking the
testimony of those original witnesses still available and, if desired and necessary, of some other
witness who had personal knowledge of the facts testified to by the first witness who had already
died.

In connection with appellant's petition for bail upon the ground of the subsequent further delay in the
final disposition of this case, the records show that upon being informed of the loss of the
stenographic notes taken by stenographer Claro Leuterio, of the testimonies of the five witnesses in
question, this Court took the necessary steps to determine whether said notes had actually been
lost, ordering, for the purpose of compelling the stenographer to transcribe his notes, his
confinement in the Supreme Court premises until he shall have filed said transcript or proved to the
satisfaction of the Court that the same can not be done. The stenographer concerned was given
opportunity to go, under custody, to Cebu City where he claimed to have entrusted his notes to a
certain individual. Upon his return to Manila, he reported that he was unable to locate the same.
Then later, upon the Court's requiring the Solicitor General to state whether he could present his
brief based on the evidence existing on the record (appellant Oscar Castelo having filed his brief
notwithstanding the absence of the testimonies of said five witnesses), the Solicitor General
informed the Court that another stenographer who was engaged privately by appellant Oscar
Castelo during the trial might be able to reproduce the testimonies of these witnesses. Upon further
inquiry, however, said other stenographer manifested that he took down no notes of the testimonies
in question inasmuch as he was not present during the time they were given in court. Confronted
with this situation, the Court ordered the release from detention of stenographer Claro Leuterio, at
the same time requesting the Secretary of Justice to have the loss of these official records
investigated with a view to prosecuting, if warranted, stenographer Leuterio for infidelity in the
custody of official documents.

The Government can not, therefore, be blamed for the resulting delay in the final termination of this
case. In this connection, we quote the following from the decision of this Court, speaking through
Chief Justice Ricardo Paras, in the case of People v. Dagatan, G.R. No. L-4396, October 30, 1951:

In the present case, there might have been a delay, that has worked hardship or
disadvantage on the accused, but the same cannot be attributed solely to the Government,
since reconstitution is as much the duty of the prosecution as of the defense (Gunabe vs.
Director of Prisons, 44 O.G. 1244)....

The following passage from the decision of this Court in U.S. vs. Laguna, 17 Phil. 532, 540,
has full application to the case now before us: "Every person who finds himself in a court of
 justice, in whatever capacity, must hold himself while there, subject to those unforeseen
events which suddenly and unavoidably intervene and change the whole aspect of things.
The sickness or death of the judge, or of counsel for the prosecution, the destruction by fire
or flood of the courthouse and all the records and evidence of the pending trial any of
these things are sufficient to interrupt the court of the proceedings and to require that they be
begun anew. Such events weigh equally against all. As no one can be charged with their
occurrence, so no one can legally lose or profit by their results. While the law protects
persons charged with crime from the unjust and arbitrary acts of man, there is no shield
which may be interposed against the tyranny of unforeseen events. Until the proceedings
which, under the system which the law provides, constitute his trial are terminated, the
happening of an unforeseen event which renders the continuance of his trial for the time
impossible, as it can not be used for his conviction, can not be urged for his absolution."

WHEREFORE, the petitions for bail presented by accused-appellant Castelo are hereby denied, and
this case is remanded to the Court of origin with directions to reconstruct, in the manner indicated
above, the testimony of the witnesses, the stenographic notes of whose original testimony have
been lost, within sixty (60) days from the receipt of this Resolution, and to elevate the same to this
Court within ten (10) days after the same has been retaken. The stenographer or stenographers who
will assist during the re-hearing shall immediately transcribe their notes and shall file their transcripts
with this Court within thirty (30) days after the conclusion of the retrial. So ordered.

Bengzon, Bautista Angelo, Labrador, Reyes, J.B.L., Paredes and Dizon, JJ., concur.

Separate Opinions

PARAS, C.J., dissenting:

In my opinion, Rule 117, Section 2 and Section 5 are applicable. Even Act No. 3110, Section 6, can
be made applicable. See also U.S. vs. Tan, 4 Phil. 626-627 and U.S. vs. Laguna, 17 Phil. 537.

PADILLA, J., concurring and dissenting:

I agree to that part of the majority opinion concerning the reconstruction of the lost stenographic
notes of the testimony of witnesses taken at the trial of the appellant in the Court below, but disagree
to that part thereof which denies the appellant's petition for bail, the disposition of his appeal having
been long delayed due to the fault or negligence of the stenographer who took down the notes of the
testimony of some witnesses and lost them. In this circumstance, although the appellant was
sentenced to death, his release on bail may be granted under such terms and conditions as would
insure his availability or personal appearance and surrender of his person to the Court when the
reading and execution of the final judgment rendered in the case be set by the trial court.

Petition for bail denied; case remanded to lower court for reconstruction of testimony of certain
witnesses.
G.R. No. L-10774 August 24, 1961

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
OSCAR CASTELO, ET AL., accused-appellant.

Office of the Solicitor General for plaintiff-appellee.

Liwag & Vivo for accused-appellant Oscar Castelo.
M.H. de Joya, E. A. Fernandez, Feliciano Ocampo, A. V. Tolentino and A. de Santos for all other
accused-appellants.

RESOLUTION

BARRERA, J.:

Pursuant to our resolution of February 16, 1961, this case was ordered remanded to the court of
origin "solely for the purpose of reconstructing the testimony of the witnesses the stenographic notes
of whose original testimony had been lost, by retaking the testimony of those original witnesses still
available and, it desired and necessary of some witness who had personal knowledge of the facts
testified to by the first witness who had already died." (emphasis supplied.)

In an order dated May 15, 1961, Her Honor, Cecilia Muoz-Palma, acting as vacation Judge of the
Court of First Instance of Rizal, Pasay City (Branch II), returned the case to this Court "for new
instructions as the task of reconstructing the original testimony of the witnesses concerned has
become legally and physically impossible of accomplishment." (Emphasis supplied.).

The position taken by Her Honor, it is believed, must have been based on misinterpretation or
miscomprehension of our said directive. This is evident from her use of the phrase "original
testimony of the witnesses", instead of the term "testimony of those original witnesses". By the very
nature of things, it is of course physically impossible to reproduce word for word the original
testimony of the witnesses. What is required is the reconstruction, substantial as much as possible,
of the testimony given by the original witnesses on the matter originally testified to by them. And this
permissible under the law and jurisprudence on the matter.

The requirement of a new trial and a new decision is applicable in cases where the entire
testimonial evidence has been lost or become unavailable. In the present case, the entire record
is complete save only for the missing portion of the testimony of Edgar Bond (now deceased) and
that of Mariano Almeda, Raymundo Tal Villareal, Matias Soriano, and Francisco Espiritu, who are all
still available. Article 43 of Act No. 3110 provides that "In case of the partial loss or destruction of a
judicial record, the destroyed portion may be reconstituted in accordance with the provisions of this
Act." It is, therefore, unnecessary for us to make further instructions other than those already
prescribed in our Resolution of February 16, 1961.

Let this case be again remanded to the Court of First Instance of Rizal (Pasay Branch) where it was
originally heard, for compliance with the Resolution of this Court of February 16, 1961. So ordered.

Bengzon, C.J., Padilla, Labrador, Concepcion, Reyes, J.B.L., Paredes, Dizon, De Leon and
Natividad, JJ., concur.
Bautista Angelo, J., on leave, took no part.
G.R. No. L-6201 April 20, 1954

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
FELIPE A. LIVARA, defendant-appellant.

Office of the Solicitor General Pompeyo Diaz and Solicitor Isidro C. Borromeo for appellee.
Marcelino Lontok for appellant.

BENGZON, J.:

After the corresponding trial in the Court of First Instance of Romblon, Felipe A. Livara, was found
guilty of malversation of public funds and sentenced to imprisonment for four (4) years, two (2)
month and one (1) day ofprision correccional to ten (10) years of prision mayor, with perpetual
special disqualification, to pay a fine of P5,000, to indemnify the government in the sum of P9,597,
without subsidiary imprisonment in case of insolvency, and to pay the costs. From this judgment he
appealed on time. Because he assailed the constitutionality of Article 217 of the Revised Penal
Code, the expediente was forwarded to this Court.

Appellant was from January 1947, to July 22, 1948, provincial disbursing officer of the Philippine
Constabulary in Romblon. As finance and accountable officer, he took charge of paying the salaries
and subsistence of the PC officers and enlisted men of that region. On July 22, 1948, he came to
Manila carrying some money, and, having secured a Treasury Warrant from the finance officer at
Camp Crame for more than P8,000, he cashed the same in the Finance Building at Taft Avenue. In
November, 1948, an examination of his accounts was conducted by Major Emilio Baldia, Chief of the
Cash Examination and Inspection Branch of the Finance Service, who found him with a net shortage
of P9,597 unaccounted for. Major Baldia submitted a report of his findings to the Adjutant General of
the PC. Days afterwards, a board of officers was created formally to investigate the appellant. That
board found him accountable for P9,597, and recommended his prosecution before the civil courts
for malversation of public funds. An information for the crime of malversation of public funds was
consequently filed in the Court of First Instance of Romblon, September 10, 1949.

Major Emilio Baldia, testified in the Romblon court that sometime in November 6, 1948, he examined
the accountability of Lieutenant Felipe A. Livara and found that he had incurred a net shortage of
P9,597; and that in answer to his question, appellant admitted his financial liability but asserted he
had lost the money in Manila on his way to North Harbor to board a vessel for Romblon.

Capt. Teofilo V. Dayao, Zone Finance Officer, testified that in the month of August, 1948, he was
dispatched to Romblon to pay the salaries and subsistence of the officers and enlisted men of the
PC stationed in said province; that he inquired into the whereabouts of Lt. Livara but was informed
that ha had left for Manila in July 23, 1948, to submit for approval the disbursement he had made
and get the return of the same from the PC headquarters; that finding the safe of the accused
locked, he sealed it in the presence of Capt. Diaz and Lt. Taedo and brought it to Manila where it
was opened in the presence of eleven officers including the appellant; and that no cash was found in
the safe.

Provincial Auditor Aproniano S. Celajes, last prosecution witness, declared that on July 16, 1948, he
examined and verified the books of account and money accountability of the appellant and found a
balance of P14,984, represented by cash of P6,330.10, actually found on hand and vouchers in the
amount of P8,654.
The appellant Felipe A. Livara was the lone witness for the defense. He declared that on July 22,
1948, he came to Manila and submitted his abstract to the Auditor of the PC, that a treasury warrant
was issued to him in the amount of more than P8,000; that he proceeded to the Finance Building at
Taft Avenue and cashed the same; that while riding a public utility jeepney bound for the North
Harbor to embark on the S.S. Elena for Romblon, he lost hisportfolio containing the said money plus
about P1,000 more, and other public documents. He swore to having made effort to recover the
portfolio but the jeepney was nowhere to be found.

There is no doubt about the shortage. It constitutes prima facie evidence that the accused made
personal use of the money, unless he gives a satisfactory explanation (Art. 217, Rev. Penal Code).
His account of the loss of the portfolio was not believed by the board officers that investigated him,
and the court below. It is really an incredible story. With about ten thousand pesos in it, the portfolio
could not have been forgotten for one moment by any passenger, especially a finance officer like the
accused. The alleged loss was obviously a ruse to conceal his defalcations. As a matter of fact, even
before the Manila trip he was already in the red, as shown by the testimonies of Lt. Bernabe Cadiz,
commanding officer of the 83rd PC company and Lt. Damaso C. Quiao, adjutant, supply and finance
officer, of Romblon.

If the portfolio had actually been lost as recounted by appellant, he would not be responsible for the
money. Yet he admitted his liability, made efforts to pay it, even used for that purpose a false check
payable to Colonel Selga of the Constabulary.

Counsel for the appellant contends that the Court of First Instance of Romblon had no jurisdiction
over the case, arguing that the alleged crime of malversation of public funds occurred during the
incumbency of the accused as an officer of the Philippine Constabulary. Such contention is without
merit. The civil courts and courts-martial have concurrent jurisdiction over offenses committed by a
member of the Armed Forces in violation of military law and the public law. The first court to take
cognizance of the case does so to the exclusion of the other (Grafton vs. U.S., 11 Phil., 776;
Valdez vs. Lucero, 42 Off. Gaz., No. 112835). The accused-appellant having been first tried and
convicted of the crime by the Court of First Instance of Romblon he cannot now claim that the
criminal action should have been brought before a court-martial.

The constitutionality of the last paragraph of Article 217 of the Revised Penal Code is likewise
assailed. It reads:

The failure of a public officer to have duly forthcoming any public funds or property with
which he is chargeable, upon demand by any duly authorized officer, shall be prima
facie evidence that he has put such missing funds or property to personal uses.

Defense counsel maintains the view that this provision is contrary to the constitutional directive that
in criminal prosecutions the accused shall be presumed innocent until the contrary is proven.

This contention deserves no merit, inasmuch as the validity of the said article has already been
discussed and upheld in People vs. Mingoa, 92 Phil., 856, wherein this court through Mr. Justice
Reyes declared: "there is no constitutional objection to the passage of a law providing that the
presumption of innocence may be overcome by a contrary presumption founded upon the
experience of human conduct, and enacting what evidence shall be sufficient to overcome such
presumption of innocence."

Wherefore, as this appellant is guilty of malversation of public funds and as the penalty imposed on
him accords with the law, we hereby affirm the judgment with costs against him. So ordered.
Paras, C.J., Pablo, Bengzon, Montemayor, Reyes, Jugo, Bautista Angelo, Concepcion, and Diokno,
JJ., conc