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Republic of the Philippines

SUPREME COURT
Manila
G.R. No. L-54881 July 31, 1984
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
RODOLFO QUIBATE, defendant-appellant.
The Solicitor General for plaintiff-appellee.
David E. Calvario for defendant-appellant.

GUTIERREZ, JR., J.:


EN BANC
Accused Rodolfo Quibate appeals the decision of the Court of First Instance of Capiz finding him guilty beyond reasonable doubt of the crime
of parricide and sentencing him to suffer the penalty of reclusion perpetua and to indemnify the heirs of Prima Baltar-Quibate.
Around 4:00 in the early morning of July 22, 1978, the accused-appellant stabbed his wife Prima Baltar to death in a fit of jealousy. The
couple's ten-year old daughter, Imelda Quibate, testified that her father stabbed her mother to death with a knife while the two were
quarreling in the balcony of their house at Aranguel, President Roxas, Capiz. The daughter stated that the quarrel arose from her father's
jealousy of "Gabi" their neighbor. Imelda ran to the house of her uncle, Alberto Baltar who immediately went to his sister's house. Alberto saw
his sister already dead, the accused-appellant drumming the death weapon against the window sill. When the police arrived at the scene,
Quibate was still holding the knife. The accused tried to kill himself with the knife pointed at his chest but when Corporal Calixto Morales fired
a shot with his revolver, the accused surrendered the knife.
The wounds suffered by the deceased were stated by Dr. Manuel Buenvenida, rural health physician of President Roxas, Capiz, in his
autopsy report as follows:
l. Incised wound at the left side of the chest above nipple, perforating, 1" wide.
2. Incised wound at the right side of the chest below the nipple, perforating, 1" wide.
3. Incised wound at the left side of abdomen, at the iliac side, 4" below the navel, perforating, 1" wide.
4. Incised wound at the medial and posterior aspect of the left forearm, 1 cm. wide, gapping, (sic) involving the skin.
5. Abrasions-hematoma at the right arms and forearms.
The deceased died of shock secondary to profuse hemorrhage.
The accused-appellant raised two assignments of errors in this appeal, namely
I. THE COURT ERRED IN MOTO PROPRIO CANCELLING THE PROMULGATION OF DECISION OF MARCH 4,
1980.
II. THE COURT ERRED IN CONVICTING THE ACCUSED OF THE CRIME OF PARRICIDE.
The trial court promulgated its decision on March 4, 1980 sentencing the accused to an indeterminate period of imprisonment of 12 years
minimum to 17 years maximum. However, immediately after promulgating it on that day, the court had second thoughts and issued the
following order:

After the promulgation of this case, the court moto proprio cancels the promulgation upon noting that the regular
counsel de oficio, Atty. Antonio Bisnar was not around at the time and the accused refused to sign receipt of a copy of
the decision and upon noting that there was a typographical error in the decision consisting of the wrong penalty and
the court noting further that the decision have not been filed.
Notifying accused and counsel of the new date of promulgation which is hereby set for March 20, 1980.
It may be noted that apart from cancelling the promulgation, the court ordered that the accused and his missing counsel be notified of the
new date of promulgation which was set for March 20, 1980.
On March 20, 1980, the counsel de oficio was again absent so the court appointed a well-known practitioner in the area, Atty. Jose Alovera,
to assist the accused in the promulgation and to coordinate with the other counsel Atty. Antonio Bisnar. Promulgation was re-set to April 1,
1980.
On March 27, 1980, Atty. Alovera filed a motion to advance the date of promulgation to March 31, 1980 as counsel had to leave for Iloilo City
on April 1, 1980. The motion to advance the date of promulgation was considered on April 1, 1980. Promulgation was re-set to April 11,
1980.
On April 11, 1980, an oral motion to quash promulgation was made. No memorandum in support of the motion was filed and the records fail
to indicate the grounds relied upon by counsel. On June 9, 1980, the motion to quash promulgation was denied. The promulgation was reset
to June 13, 1980 on which date the questioned decision imposing reclusion perpetua instead of the earlier indeterminate period of
imprisonment of 12 years as minimum and 17 years as maximum was rendered.
We resolve the second assignment of error first. The allegation that the marriage of the accused-appellant and the deceased was not
established has no merit.
The marriage contract (Exhibit B) evidencing the marriage solemnized on May 16, 1954 was introduced in evidence. Father Gaudioso
Tropico of the Roman Catholic church testified that he solemnized the marriage of the accused and Prima Baltar and that the newly married
couple, the witnesses, and himself signed the said marriage contract in each others presence. True, the contract shows that Prima Baltar
was married to "Teodulfo" Quibate but defense witness Atty. Jose Azarraga testified that the accused used the name "Teodulfo" when they
were classmates. The accused himself admitted that he used to be called "Teodulfo". On the fact of marriage, Alberto Baltar testified that he
was present in church when his sister and the accused were married. Father Gaudioso Tropico, on re-direct examination was asked to go
around the courtroom and identify the "Teodulfo Quibate" whose marriage he solemnized. He did so and picked out the accused-appellant.
The accused-appellant did not deny the marriage but admitted during trial that he and his late wife were married, that they were married by
Father Tropico who testified in the case.
The appellant raises no issue in this appeal regarding his main defense during the trial below that the acted in self-defense. We have
nonetheless examined the records on this point because of the serious nature of the crime. We find no error in the court's rejecting this
defense. The allegation of self-defense has no basis.
The accused-appellant testified that two months before the fatal incident, he caught his wife having sexual intercourse with their neighbor
"Gabi" or "Gabe" and that he called her to come up their house. He was so angry that he boxed her. Gabi was not only bigger than the
accused, but he also had a gun. Yet when he wanted to have sexual intercourse with his wife, she refused. When he insisted, she still
refused. According to the accused, he begged for almost two hours to have sex with his wife but she refused. Later on, he noticed that she
took a knife from a "baul" or clothes trunk by her side and tried to stab him. They grappled for the knife and she was hit. The trial court found
the story of self-defense not believable. We agree. The accused-appellant, in a fit of jealousy, stabbed his wife inflicting the four separate
incised wounds described in the autopsy report, which resulted in shock, profuse hemorrhage, and death.
The appellant states in his first assignment of error that the lower court erred in cancelling the March 4, 1980 promulgation because the
grounds given by the court do not warrant such a cancellation.
The appellant questions the cancellation and resetting of promulgation stating that the counsel did not have to be present during the
promulgation of judgment and that there was no need to nullify a promulgation already effected simply because the accused refused to sign.
According to the appellant's brief, the appellant refused to sign because he did not know how to write.
It is not required that counsel for the accused must be present when judgment is promulgated for it to be valid and effective. However,
considering the level of intelligence of the accused and the serious nature of the offense, the Court had reason to require counsel's presence
during promulgation. The court, however, followed a manifestly strange procedure when it pronounced the sentence of conviction and then
immediately afterwards, reconsidered and cancelled the whole thing on the ground, among others, that the lawyer was not present. On
noticing that there was no lawyer for the accused, the Court should have deferred the promulgation of the decision if it wanted counsel to be
around.
It is obvious from the appealed decision that the presiding Judge had conflicting feelings in his mind when the date for promulgation arrived.
If so, he should have resolved them before going ahead.
The decision reads, in part:

The Court finds in accordance with Art. 13, of the Revised Penal Code, mental weakness, and voluntary surrender.
Likewise, the Court considers the history of infidelity of the victim's wife, coupled with her refusal to perform her marital
duties, after accused had begged for two (2) hours, immediately preceding the stabbing, as analogous to an
aggression and should also be considered mitigating. The Court believes that the attitude and behaviour of the
accused, such as the tenderness he showed to his daughter Imelda after the latter's testimony, shows remorse and
lack of real malice.
In view thereof, the Court recommends Executive Clemency, such as would reduce the imprisonment to a lesser
period.
The procedure followed by the lower court is not the most appropriate under the circumstances but it does not constitute a ground to nullify
the decision later promulgated.
The second reason about the refusal to sign may have been insufficient to warrant postponement of promulgation of judgment but, under the
circumstances, it is not a basis to set aside or modify the appealed decision.
Regarding the last ground for the first assignment of error, it is unlikely that the imposition of a sentence of 12 to 17 years imprisonment
instead of reclusion perpetua would be a typographical error. It was not. It was an error of hasty judgment based on a misapprehension of
the provisions of the Revised Penal Code applicable to the facts of the case. The lower court made a mistake and it should have taken
immediate steps to rectify it instead of waiting for more than three months.
The more serious questions arising from the facts of this case are not raised in the appellant's brief but the Court has decided to resolve
them considering that a man's liberty is at stake and the lower court itself has recommended executive clemency for the appellant.
What was the effect of the cancellation of promulgation on March 4, 1980? Did the decision whose promulgation was cancelled become final
and executory fifteen days later on March 19, 1980? Did the court have jurisdiction to impose the penalty of reclusion perpetua on June 13,
1980?
Under Section 7 of Rule 120 of the Rules of Court, a judgment of conviction may be modified or set aside by the court rendering it before the
judgment becomes final or an appeal is perfected. In the instant case, no appeal had been perfected when the trial court set aside its
judgment and cancelled its promulgation. But had the judgment become final? The cited section provides:
A judgment in a criminal case becomes final after the lapse of the period for perfecting an appeal, or when the
sentence has been partially or totally satisfied or served, or the defendant has expressly waived in writing his right to
appeal.
In the case at bar, the judgment of conviction and its promulgation were set aside on the very day that the judgment was promulgated. At that
time, the period for perfecting an appeal had not lapsed; and the accused had not waived his right to appeal. Only if he were deemed to have
commenced service of his sentence could the judgment be deemed final.
The law gives the accused 15 days after promulgation of a judgment of conviction within which to decide whether he will take an appeal or
not; and unless he has expressly waived in writing his right to appeal or has voluntarily commenced service of his sentence, the accused
may yet take an appeal within the 15-day period. (See People vs. Valle, 7 SCRA 1025; Mabuhay Insurance and Guaranty, Inc. vs. Court of
Appeals, 32 SCRA 245). The accused was returned to the same detention cell where he was confined pending trial. He never intimidated
acceptance of the judgment or that he would no longer appeal.
From the above considerations, it follows that when the trial court cancelled the promulgation it had just concluded, it were as if no decision
had been rendered and no judgment had been imposed. The promulgation or the entire process had been set aside to be effected on a
future date. The decision promulgated on June 13, 1980 would not merely be an amendment of the sentence imposed earlier but would be
the decision itself being promulgated in the case. Consequently, there was no judgment to become final and executory except from June 13,
1980. If the court had decided to commit the accused to jail on March 19, 1980, there would have been no basis for the execution of
judgment and the commitment as the decision promulgated earlier had been cancelled and set aside. The accused could not have accepted
a judgment or commenced to serve a sentence based on a cancelled and, therefore, non-existent promulgation.
We find in this case an opportune occasion to remind an trial courts to devote a little more time to the study of the penalty provisions of the
Revised Penal Code immediately before promulgating each decision, to obviate the necessity of issuing amended or "repromulgated"
decisions increasing sentences of imprisonment. Trial courts should likewise note the dictum in Flores v. Dalisay (84 SCRA 46, 48).
What the trial court should have done was to have categorically asked the counsel de oficio of the accused (who was
not the counsel de oficio who handled the defense of the accused) whether or not he would appeal. Because the
accused did not file any notice of appeal immediately after the judgment was promulgated, the trial court jumped to the
conclusion that he had no intention of taking an appeal. ...
Considering the factual circumstances of this case, the low intelligence of the accused, and the gravity of the offense of parricide, it was the
duty of the lower court on March 4, 1980 to ascertain whether or not the detention prisoner whose sentence of conviction had just been read
intended to appeal. Upon the answer would have depended its power to modify the decision but within the period for the taking of an appeal.

WHEREFORE, the judgment of the Court of First Instance of Capiz finding the accused-appellant guilty beyond reasonable doubt of the
crime of parricide and sentencing him to suffer the penalty of reclusion perpetua is hereby AFFIRMED. The accused-appellant is also
ordered to indemnify the heirs of Prima Baltar Quibate in the sum of THIRTY THOUSAND (P30,000.00) PESOS.
SO ORDERED.
Fernando, C.J., Concepcion, Jr., Guerrero, Abad Santos, Melencio-Herrera, Plana, Relova, De la Fuente, and Cuevas, JJ., concur.

Separate Opinions

AQUINO, J., concurring:


Judge Oscar Leviste's decision dated March 3, 1980 was promulgated on the following
day, March 4, in the absence of accused's counsel, Antonio Bisnar. The accused (a
registered voter who studied at the Elizalde Academy) refused to sign on the original
copy of the decision as proof that he received a copy of the decision.
It is stated in the handwritten minutes of the incident that "when this case was called for
promulgation of decision, the court interpreter read the whole decision and after which
the dispositive part of the decision was translated to the accused. The Court sentences
the accused (to) 12 years to 17 years. Later, the Court discovered that Atty. Bisnar,
counsel de oficio for the accused, was not present in court. The Court appointed Atty.
Jose Brotario as counsel de oficio for the purpose of promulgation. The dispositive
portion of the decision was read to the accused. "
The said minutes were signed by the court interpreter. The deputy clerk of court
executed a certification as to the promulgation and the refusal of the accused to affix his
signature on the original copy .
A few hours later on that same day, March 4, 1980, Judge Leviste issued an order
cancelling the promulgation (1) due to the absence of Bisnar, the regular counsel de
oficio, (2) the refusal of accused to sign as proof that he received a copy of the decision,
(3) the imposition of the wrong penalty and (4) the fact "that the decision has not been
filed".
In fact, the said decision is in the record but it contains numerous handwritten
corrections made by Judge Leviste. It was retyped. The retyped decision, imposing
reclusion perpetua, dated March 5, 1980, and the original decision of March 3, 1980
(with corrections) were both refiled in court at 4:30 p.m. on March 5,1980.
Later, or on April 11, 1980, there was an oral motion to quash the second promulgation.
It was denied by Judge Leviste in his order of June 9, 1980.

The corrected decision of March 5, 1980 was promulgated on June 13, 1980. The
accused and his counsel signed the original copy of the said decision. The clerk of court
certified to the promulgation on June 13, 1980. This was also signed by the accused
(pp. 126-7, Record).
Written notices of the decision were sent to the fiscal, the warden and Bisnar on June
16, 1980. Bisnar filed his notice of appeal to the Court of Appeals.
The minutes of the proceeding on June 13, 1980 show that Bisnar objected to the
promulgation of the corrected decision and insisted that the promulgation of the first
decision was valid.
Judge Leviste had the power and jurisdiction to correct his decision of March 3, 1980
which was not yet officially filed. He corrected it on the same day and filed the corrected
copy on March 5, 1980 together with the original decision of March 3, 1980.
A judgment of conviction may be modified or set aside by the court rendering it before
the judgment has become final or appeal has been perfected. A judgment in a criminal
case becomes final after the lapse of the period for perfecting an appeal, or when the
sentence has been partially or totally satisfied or served, or the defendant has expressly
waived in writing his right to appeal. (Sec. 7, Rule 120, Rules of Court.)
The accused or his counsel should expressly inform the court that he does not want to
appeal or is going to start serving his sentence. In the absence of such manifestation,
the judge can change his decision within the reglementary fifteen-day period. It is not
right to conjecture from the silence of the accused-detainee in the absence of his
counsel that he started to serve his sentence. (People vs. Espaol, G.R. No. 57597-99,
June 29, 1982, 114 SCRA 911.)
In this case, counsel de oficio's absence during the first promulgation rendered it
uncertain whether or not the accused was going to appeal. The fact that he was a
detention prisoner does not justify the conjecture that he did not appeal and that he had
started the service of his sentence on March 4, 1980.
MAKASIAR, J., dissenting:
Appellant herein assigns two errors, one of which is the following:
I. The Court erred in motu proprio canceling the promulgation of decision
on March 4, 1980.
I dissent from the resolution of the said assigned error.
On March 4, 1980, the trial court promulgated its decision convicting herein appellant of
the crane of parricide and sentencing him to an indeterminate period of imprisonment of

12 years minimum to 17 years maximum. Thereafter, on the same date, the same court
issued the following order:
After promulgation of this case, the court motu proprio cancels the
promulgation upon noting that the regular counsel de oficio, Atty. Antonio
Bisnar was not around at the time and the accused refused to sign receipt
of a copy of the decision and upon noting that there was a typographical
error in the decision consisting of the wrong penalty and the court noting
further that the decision has not been filed.
Notifying accused and counsel of the new date of promulgation which is
hereby set for March 20, 1980.
After several subsequent resetting of the promulgation date, on June 13, 1980, the
lower court promulgated a revised decision maintaining the conviction, but sentencing
appellant to suffer the greater penalty of reclusion perpetua and to indemnify the heirs
of the deceased.
The majority opinion sustains this second promulgation. That is double jeopardy.
The promulgation of March 4, 1980 was a valid promulgation. The reasons advanced by
the trial court for its cancellation has no basis in law and in fact. The order of
cancellation was issued in abuse of discretion, which this Court should not
countenance.
The discrepancy in the penalty imposed under the first and under the second
promulgation can hardly be considered a typographical error.
That the decision promulgated on March 4, 1980 had not as yet been filed, is not by
itself a ground for withdrawing or canceling the first promulgation, which was a valid and
effective promulgation. Even an oral promulgation of an unwritten decision is valid
(Cinco vs. Cea, 96 Phil. 131; Catilo vs. Abaya, 94 Phil. 1014).
The promulgation of March 4, 1980 complies with the requirements of Section 6, Rule
120 of the Rules of Court, to wit:
The judgment is promulgated by reading the judgment or sentence in the
presence of the defendant and any judge of the court in which it is
rendered. The defendant must be personally present if the conviction is for
a grave offense; if for a light offense the judgment may be pronounced in
the presence of his attorney or representative. And when the judge is
absent or outside of the province or city, his presence is not necessary
and the judgment may be promulgated or read to the defendant by the
clerk of court.

If the defendant is confined or detained in another province or city, the


judgment of conviction may be promulgated by the judge of the Court of
First Instance having jurisdiction over the place of confinement or
detention upon the request of the court that rendered the judgment. The
court promulgating the judgment shall have the authority to accept the
notice of appeal and to approve the bond.
Clearly, it is not necessary that defendant's counsel be present at the time of
promulgation of the judgment. Where the judgment is one of conviction for a grave
offense, all that is required is that the defendant be personally present in court at the
time of promulgation. Where the judgment is one of acquittal, the presence of the
defendant during promulgation is not at all required in any case (Cinco vs. Cea, L-7075,
November 18, 1954, 96 Phil. 131). Here, all that is required is that a copy of the
judgment be served on said acquitted defendant (Ibid.). This notwithstanding, it is noted
from the records of this case that a counsel de oficio for the purpose of promulgation
(Atty. Jose Brotarlo) was in fact afforded the defendant prior to the promulgation of
judgment conducted on March 4, 1980 (p. 108, CFI rec.).
Finally, there is no hint from the above-cited provision that the defendant's signature
evidencing receipt of a copy of the decision is necessary to effect a valid promulgation
of judgment. In the case at Talabon vs. Iloilo Provincial Warden (44 No. 11 O.G. 4326),
this Court upheld the validity of a promulgation of a verbal judgment of conviction.
Failure on the part of the court to comply with Section 2, Rule 120 of the Rules of Court
and the Constitution did not divest the lower court of its jurisdiction acquired over the
offense and the petitioner (Ibid.). By inference, the lack of defendant's signature
evidencing receipt of a written copy of a decision does not render invalid and
inefficacious the promulgation thereof.
Concededly, under Section 7 of the same Rule, "a judgment of conviction may be
modified or set aside by the court rendering it before judgment has become final or
appeal has been perfected." But such "discretion" afforded a judge means sound
discretion exercised, not arbitrarily or wilfully, but with regard to what is right and
equitable under the circumstances and the law, and directed by the judge's reason and
conscience to just result (12A Words and Phrases 344). Evidently however, the order of
cancellation issued by the trial court above does not conjure with the circumstances of
and the law pertinent to the case as above described. The discretion granted by the
Rules, having been exercised to an end not justified by the evidence, the order of
cancellation being clearly against the logic and effect of the facts as are found, this
Court should reverse the same (1 Words and Phrases 341). The order of cancellation is
null and void for having transpired from an improvident exercise of discretion.
It is noted that the discretion provided the court under Section 7 of Rule 120 cannot be
exercised in case of a valid promulgation of a judgment of acquittal (Catilo vs. Abaya,
No. L-6921, May 14, 1954; 94 Phil. 1014). The promulgation therein cannot be
cancelled even on the ground of misrepresentation of facts and misappreciation of

evidence. Here, the first jeopardy is terminated, and a subsequent modification of the
said judgment would result in double jeopardy.
Cabarroguis vs. Judge San Diego (G.R. No. L-19517, November 30, 1962, 116 Phil.
1184) does not apply to the present case to validate the second promulgation of June
13, 1980. In Cabarroguis, the respondent judge dictated in open court her order of
acquittal even before the direct testimony of the lone witness for the prosecution could
be completed. Upon prompt oral motion for reconsideration by the prosecution, the
court "withdrew" its order. Thereupon, direct examination resumed. Counsel for the
defendant afterwards cross examined the witness. During the day's proceedings, no
objection thereto was heard from the defendant's counsel. Thus, as ruled by this Court,
"petitioner's failure to object, at that time, to the taking of said evidence for the
prosecution, and the cross examination of complainant by counsel for the petitioner
amounted therefore, to a waiver of her constitutional right against double jeopardy
"(People vs. Casiano, L-15309, February 16, 1961; 14 Am. Jur. 958).
Petitioner did not invoke such right until about a week later, or on March 7, 1962, when
the hearing resumed for the reception of the evidence for the defense. The objection
then made by her came too late in view of her aforementioned waiver (Ibid.).
In the present case, however, the promulgation of judgment on March 4, 1980 was
conducted after both the prosecution and the defense had rested their case. Defendant,
assisted by a counsel de oficio (although not his regular counsel de oficio), was present
during the promulgation. Thereafter, said defendant promptly returned to his cell. Upon
receipt of the court's order canceling said promulgation, Atty. Bisnar, defendant's
regular counsel de oficio, promptly and vehemently objected to the same. He reiterated
his objections to said order of cancellation and second promulgation on June 13, 1980.
Clearly, having promptly invoked his right against double jeopardy, defendant should
benefit therefrom.
Perforce, the promulgation of judgment on March 4, 1980 stands undisturbed by the trial
court's subsequent cancellation thereof. Fifteen days after said date, and no appeal
having been taken by the defendant, the judgment thereby promulgated became final.
Some discussion was focused on whether or not the defendant, by returning to his
detention cell after promulgation of judgment on March 4, 1980, commenced to serve
the sentence under said promulgation. Consonant with OUR basic criminal law doctrine
that doubts should be interpreted in favor of the accused, the equivocal gesture of the
accused should be interpreted as an act to commence the service of his sentence. The
penalty imposed under the promulgation of March 4, 1980 was clearly lighter than what
is prescribed by the law. To immediately submit to it, doubtless, would favor the
accused.
This dissent notes the oral motion to quash the second promulgation of Atty. Antonio
Bisnar, regular counsel de oficio of the accused, on April 11, 1980 (p. 121, CFI rec.),
and his subsequent objection to said second promulgation on June 13, 1980 (p. 129,

CFI rec.). These facts support the position that the accused returned to his cell after the
promulgation of March 4, 1980 with the intention to commence the service of his
sentence.
Nonetheless, the incontrovertible fact under the circumstances is that 15 days after the
promulgation of March 4, 1980, with the defendant not having taken an appeal from the
decision promulgated, the same became final. Thereafter, the trial court lost its control
and jurisdiction over the case, and the trial judge could no longer modify nor set aside
the judgment rendered therein (U.S. vs. Vayson [1914], 27 Phil. 447). The subsequent
promulgation of a revised decision on June 13, 1980, three months after the first
promulgation, is null and void.
By sustaining the second promulgation, this Court countenances a second jeopardy
cutting deep into the constitutional protection against double jeopardy. There is no
question that a first jeopardy attached. The same was terminated 15 days after
judgment thereon was promulgated on March 4, 1980. Any substantial modification by
increasing the penalty decreed in such decision after March 19, 1980 would amount to
double jeopardy (Gregorio vs. Director of Prisons, 43 Phil. 650).
Teehankee, J., concurs.
ESCOLIN, J., dissenting:
I dissent. The records disclose that after the promulgation of the first decision on March
4, 1980, petitioner did not manifest his desire to appeal and was therefore committed to
jail; that the 15-day period to appeal lapsed without petitioner having perfected his
appeal; and that before the promulgation of the new decision on June 30, 1980, he
vehemently objected to the cancellation of the March 4, 1980 promulgation as well as
the promulgation of the new judgment. Surely, any doubt as to the conclusion to be
drawn from this factual setting should be resolved in favor of the petitioner's posture that
he immediately commenced service of sentence after the promulgation of the first
decision, and that therefore the same became final in accordance with the rule that a
judgment in a criminal case becomes final when the sentence has been partially served.
[Section 7, Rule 120 of the Rules of Court].
Teehankee, J., concurs.

Separate Opinions
AQUINO, J., concurring:

Judge Oscar Leviste's decision dated March 3, 1980 was promulgated on the following
day, March 4, in the absence of accused's counsel, Antonio Bisnar. The accused (a
registered voter who studied at the Elizalde Academy) refused to sign on the original
copy of the decision as proof that he received a copy of the decision.
It is stated in the handwritten minutes of the incident that "when this case was called for
promulgation of decision, the court interpreter read the whole decision and after which
the dispositive part of the decision was translated to the accused. The Court sentences
the accused (to) 12 years to 17 years. Later, the Court discovered that Atty. Bisnar,
counsel de oficio for the accused, was not present in court. The Court appointed Atty.
Jose Brotario as counsel de oficio for the purpose of promulgation. The dispositive
portion of the decision was read to the accused. "
The said minutes were signed by the court interpreter. The deputy clerk of court
executed a certification as to the promulgation and the refusal of the accused to affix his
signature on the original copy .
A few hours later on that same day, March 4, 1980, Judge Leviste issued an order
cancelling the promulgation (1) due to the absence of Bisnar, the regular counsel de
oficio, (2) the refusal of accused to sign as proof that he received a copy of the decision,
(3) the imposition of the wrong penalty and (4) the fact "that the decision has not been
filed".
In fact, the said decision is in the record but it contains numerous handwritten
corrections made by Judge Leviste. It was retyped. The retyped decision, imposing
reclusion perpetua, dated March 5, 1980, and the original decision of March 3, 1980
(with corrections) were both refiled in court at 4:30 p.m. on March 5,1980.
Later, or on April 11, 1980, there was an oral motion to quash the second promulgation.
It was denied by Judge Leviste in his order of June 9, 1980.
The corrected decision of March 5, 1980 was promulgated on June 13, 1980. The
accused and his counsel signed the original copy of the said decision. The clerk of court
certified to the promulgation on June 13, 1980. This was also signed by the accused
(pp. 126-7, Record).
Written notices of the decision were sent to the fiscal, the warden and Bisnar on June
16, 1980. Bisnar filed his notice of appeal to the Court of Appeals.
The minutes of the proceeding on June 13, 1980 show that Bisnar objected to the
promulgation of the corrected decision and insisted that the promulgation of the first
decision was valid.
Judge Leviste had the power and jurisdiction to correct his decision of March 3, 1980
which was not yet officially filed. He corrected it on the same day and filed the corrected
copy on March 5, 1980 together with the original decision of March 3, 1980.

A judgment of conviction may be modified or set aside by the court rendering it before
the judgment has become final or appeal has been perfected. A judgment in a criminal
case becomes final after the lapse of the period for perfecting an appeal, or when the
sentence has been partially or totally satisfied or served, or the defendant has expressly
waived in writing his right to appeal. (Sec. 7, Rule 120, Rules of Court.)
The accused or his counsel should expressly inform the court that he does not want to
appeal or is going to start serving his sentence. In the absence of such manifestation,
the judge can change his decision within the reglementary fifteen-day period. It is not
right to conjecture from the silence of the accused-detainee in the absence of his
counsel that he started to serve his sentence. (People vs. Espaol, G.R. No. 57597-99,
June 29, 1982, 114 SCRA 911.)
In this case, counsel de oficio's absence during the first promulgation rendered it
uncertain whether or not the accused was going to appeal. The fact that he was a
detention prisoner does not justify the conjecture that he did not appeal and that he had
started the service of his sentence on March 4, 1980.
MAKASIAR, J., dissenting:
Appellant herein assigns two errors, one of which is the following:
I. The Court erred in motu proprio canceling the promulgation of decision
on March 4, 1980.
I dissent from the resolution of the said assigned error.
On March 4, 1980, the trial court promulgated its decision convicting herein appellant of
the crane of parricide and sentencing him to an indeterminate period of imprisonment of
12 years minimum to 17 years maximum. Thereafter, on the same date, the same court
issued the following order:
After promulgation of this case, the court motu proprio cancels the
promulgation upon noting that the regular counsel de oficio, Atty. Antonio
Bisnar was not around at the time and the accused refused to sign receipt
of a copy of the decision and upon noting that there was a typographical
error in the decision consisting of the wrong penalty and the court noting
further that the decision has not been filed.
Notifying accused and counsel of the new date of promulgation which is
hereby set for March 20, 1980.
After several subsequent resetting of the promulgation date, on June 13, 1980, the
lower court promulgated a revised decision maintaining the conviction, but sentencing
appellant to suffer the greater penalty of reclusion perpetua and to indemnify the heirs
of the deceased.

The majority opinion sustains this second promulgation. That is double jeopardy.
The promulgation of March 4, 1980 was a valid promulgation. The reasons advanced by
the trial court for its cancellation has no basis in law and in fact. The order of
cancellation was issued in abuse of discretion, which this Court should not
countenance.
The discrepancy in the penalty imposed under the first and under the second
promulgation can hardly be considered a typographical error.
That the decision promulgated on March 4, 1980 had not as yet been filed, is not by
itself a ground for withdrawing or canceling the first promulgation, which was a valid and
effective promulgation. Even an oral promulgation of an unwritten decision is valid
(Cinco vs. Cea, 96 Phil. 131; Catilo vs. Abaya, 94 Phil. 1014).
The promulgation of March 4, 1980 complies with the requirements of Section 6, Rule
120 of the Rules of Court, to wit:
The judgment is promulgated by reading the judgment or sentence in the
presence of the defendant and any judge of the court in which it is
rendered. The defendant must be personally present if the conviction is for
a grave offense; if for a light offense the judgment may be pronounced in
the presence of his attorney or representative. And when the judge is
absent or outside of the province or city, his presence is not necessary
and the judgment may be promulgated or read to the defendant by the
clerk of court.
If the defendant is confined or detained in another province or city, the
judgment of conviction may be promulgated by the judge of the Court of
First Instance having jurisdiction over the place of confinement or
detention upon the request of the court that rendered the judgment. The
court promulgating the judgment shall have the authority to accept the
notice of appeal and to approve the bond.
Clearly, it is not necessary that defendant's counsel be present at the time of
promulgation of the judgment. Where the judgment is one of conviction for a grave
offense, all that is required is that the defendant be personally present in court at the
time of promulgation. Where the judgment is one of acquittal, the presence of the
defendant during promulgation is not at all required in any case (Cinco vs. Cea, L-7075,
November 18, 1954, 96 Phil. 131). Here, all that is required is that a copy of the
judgment be served on said acquitted defendant (Ibid.). This notwithstanding, it is noted
from the records of this case that a counsel de oficio for the purpose of promulgation
(Atty. Jose Brotarlo) was in fact afforded the defendant prior to the promulgation of
judgment conducted on March 4, 1980 (p. 108, CFI rec.).

Finally, there is no hint from the above-cited provision that the defendant's signature
evidencing receipt of a copy of the decision is necessary to effect a valid promulgation
of judgment. In the case at Talabon vs. Iloilo Provincial Warden (44 No. 11 O.G. 4326),
this Court upheld the validity of a promulgation of a verbal judgment of conviction.
Failure on the part of the court to comply with Section 2, Rule 120 of the Rules of Court
and the Constitution did not divest the lower court of its jurisdiction acquired over the
offense and the petitioner (Ibid.). By inference, the lack of defendant's signature
evidencing receipt of a written copy of a decision does not render invalid and
inefficacious the promulgation thereof.
Concededly, under Section 7 of the same Rule, "a judgment of conviction may be
modified or set aside by the court rendering it before judgment has become final or
appeal has been perfected." But such "discretion" afforded a judge means sound
discretion exercised, not arbitrarily or wilfully, but with regard to what is right and
equitable under the circumstances and the law, and directed by the judge's reason and
conscience to just result (12A Words and Phrases 344). Evidently however, the order of
cancellation issued by the trial court above does not conjure with the circumstances of
and the law pertinent to the case as above described. The discretion granted by the
Rules, having been exercised to an end not justified by the evidence, the order of
cancellation being clearly against the logic and effect of the facts as are found, this
Court should reverse the same (1 Words and Phrases 341). The order of cancellation is
null and void for having transpired from an improvident exercise of discretion.
It is noted that the discretion provided the court under Section 7 of Rule 120 cannot be
exercised in case of a valid promulgation of a judgment of acquittal (Catilo vs. Abaya,
No. L-6921, May 14, 1954; 94 Phil. 1014). The promulgation therein cannot be
cancelled even on the ground of misrepresentation of facts and misappreciation of
evidence. Here, the first jeopardy is terminated, and a subsequent modification of the
said judgment would result in double jeopardy.
Cabarroguis vs. Judge San Diego (G.R. No. L-19517, November 30, 1962, 116 Phil.
1184) does not apply to the present case to validate the second promulgation of June
13, 1980. In Cabarroguis, the respondent judge dictated in open court her order of
acquittal even before the direct testimony of the lone witness for the prosecution could
be completed. Upon prompt oral motion for reconsideration by the prosecution, the
court "withdrew" its order. Thereupon, direct examination resumed. Counsel for the
defendant afterwards cross examined the witness. During the day's proceedings, no
objection thereto was heard from the defendant's counsel. Thus, as ruled by this Court,
"petitioner's failure to object, at that time, to the taking of said evidence for the
prosecution, and the cross examination of complainant by counsel for the petitioner
amounted therefore, to a waiver of her constitutional right against double jeopardy
"(People vs. Casiano, L-15309, February 16, 1961; 14 Am. Jur. 958).
Petitioner did not invoke such right until about a week later, or on March 7, 1962, when
the hearing resumed for the reception of the evidence for the defense. The objection
then made by her came too late in view of her aforementioned waiver (Ibid.).

In the present case, however, the promulgation of judgment on March 4, 1980 was
conducted after both the prosecution and the defense had rested their case. Defendant,
assisted by a counsel de oficio (although not his regular counsel de oficio), was present
during the promulgation. Thereafter, said defendant promptly returned to his cell. Upon
receipt of the court's order canceling said promulgation, Atty. Bisnar, defendant's
regular counsel de oficio, promptly and vehemently objected to the same. He reiterated
his objections to said order of cancellation and second promulgation on June 13, 1980.
Clearly, having promptly invoked his right against double jeopardy, defendant should
benefit therefrom.
Perforce, the promulgation of judgment on March 4, 1980 stands undisturbed by the trial
court's subsequent cancellation thereof. Fifteen days after said date, and no appeal
having been taken by the defendant, the judgment thereby promulgated became final.
Some discussion was focused on whether or not the defendant, by returning to his
detention cell after promulgation of judgment on March 4, 1980, commenced to serve
the sentence under said promulgation. Consonant with OUR basic criminal law doctrine
that doubts should be interpreted in favor of the accused, the equivocal gesture of the
accused should be interpreted as an act to commence the service of his sentence. The
penalty imposed under the promulgation of March 4, 1980 was clearly lighter than what
is prescribed by the law. To immediately submit to it, doubtless, would favor the
accused.
This dissent notes the oral motion to quash the second promulgation of Atty. Antonio
Bisnar, regular counsel de oficio of the accused, on April 11, 1980 (p. 121, CFI rec.),
and his subsequent objection to said second promulgation on June 13, 1980 (p. 129,
CFI rec.). These facts support the position that the accused returned to his cell after the
promulgation of March 4, 1980 with the intention to commence the service of his
sentence.
Nonetheless, the incontrovertible fact under the circumstances is that 15 days after the
promulgation of March 4, 1980, with the defendant not having taken an appeal from the
decision promulgated, the same became final. Thereafter, the trial court lost its control
and jurisdiction over the case, and the trial judge could no longer modify nor set aside
the judgment rendered therein (U.S. vs. Vayson [1914], 27 Phil. 447). The subsequent
promulgation of a revised decision on June 13, 1980, three months after the first
promulgation, is null and void.
By sustaining the second promulgation, this Court countenances a second jeopardy
cutting deep into the constitutional protection against double jeopardy. There is no
question that a first jeopardy attached. The same was terminated 15 days after
judgment thereon was promulgated on March 4, 1980. Any substantial modification by
increasing the penalty decreed in such decision after March 19, 1980 would amount to
double jeopardy (Gregorio vs. Director of Prisons, 43 Phil. 650).
Teehankee, J., concurs.

ESCOLIN, J., dissenting:


I dissent. The records disclose that after the promulgation of the first decision on March
4, 1980, petitioner did not manifest his desire to appeal and was therefore committed to
jail; that the 15-day period to appeal lapsed without petitioner having perfected his
appeal; and that before the promulgation of the new decision on June 30, 1980, he
vehemently objected to the cancellation of the March 4, 1980 promulgation as well as
the promulgation of the new judgment. Surely, any doubt as to the conclusion to be
drawn from this factual setting should be resolved in favor of the petitioner's posture that
he immediately commenced service of sentence after the promulgation of the first
decision, and that therefore the same became final in accordance with the rule that a
judgment in a criminal case becomes final when the sentence has been partially served.
[Section 7, Rule 120 of the Rules of Court].
Teehankee, J., concurs.