[ G.R. No. 10543. January 23, 1915 ] 29 Phil. 265
[ G.R. No. 10543. January 23, 1915 ]
THE DIRECTOR OF PRISONS, PETITIONER, VS. THE JUDGE OF FIRST INSTANCE OF CAVITE, RESPONDENT.[1] D E C I S I O N
PER CURIAM:
The judge of the Court of First of Instance of Cavite fixed a definite date, the 12th of the present month of January, 1915, for the execution of a capital sentence, and then upon petition of one of the parties the same judge of first instance of the said district postponed or deferred for several days the date so fixed, by setting another definite date, the 27th of this same month. The Attorney-General applied to this Supreme Court for a writ of certiorari, alleging that the lower court had exceeded its jurisdiction, because after it had once performed its ministerial duty of fixing the date for execution of the sentence its jurisdiction had terminated and nothing done by it thereafter could have any validity. The respondent judge filed a demurrer to the Attorney-General’s petition. At the hearing on the demurrer the parties agreed that the facts had already been reviewed by this Supreme Court, as well as the question of law involved in the demurrer, and really the only fact is that the defendants were seeking a pardon or commutation of the capital penalty; and as the 12th day of January, 1915, the date on which the penalty was to be inflicted, was approaching, they requested the lower court to set another date or to grant the extension which the court ordered in deciding the motion. In view of this agreement of the parties it is unnecessary to call for the transcript of the record to be reviewed by this Supreme Court in accordance with the provisions of section 217 of Act No. 190, or to try the case and hear the parties in order to pass upon the application for the writ of certiorari, that is, whether the lower court exceeded its authority in the exercise of its powers, as is provided in section 220. In fact, even though the record had been called for and the application transmitted to the respondent judge, the present status of the case would have been attained whether he had filed the present demurrer or had answered. Hence we consider that there has been fully submitted to us the case of whether or not the lower court exceeded its authority in fixing another subsequent date for carrying out the capital sentence in question, already set by it for the 12th of the present month. The question, therefore, is this: Did the court have jurisdiction, after fixing a date for the execution of its sentence, to set another subsequent date by deferring it or by fixing an interval of time for its fulfillment? It is contended that after the court has once issued its order of execution it has performed its final act of jurisdiction and then has nothing more to do with the case; that the convict has then passed to the hands of the executive, the only authority thenceforward competent to perform the acts necessary for putting the penalty into effect; in other words, that judicial authority over the convict has terminated and that he has passed completely into the control of the executive. Hence it is inferred that if there were any cause or reason for putting off the execution, the application for that purpose could not be addressed to the court that ordered the execution but to the executive authority charged with carrying it out. In this way, it is further contended, the independence of each authority is maintained, and interference with one by another is prevented. Also, the immutability of the res judicata is assured by not permitting the court that has already said its final word in the case to add any further word whereby it may substantially alter or change its decision therein, which is what would happen by changing or altering the execution date already fixed. This Supreme Court has repeatedly declared in various decisions, which constitute jurisprudence on the subject, that in criminal cases, after the sentence has been pronounced and the period for reopening the same has elapsed, the court can not change or alter its judgment, as its jurisdiction has terminated, functus est officio suo, according to the classical phrase. When in cases of appeal or review the cause has been returned thereto for execution, in the event that the judgment has been affirmed, it performs a ministerial duty in issuing the proper order. But it does not follow from this cessation of functions on the part of the court with reference to the ending of the cause that the judicial authority terminates by having then passed completely to the executive. The particulars of the execution itself, which are certainly not always included in the judgment and writ of execution, in any event are absolutely under the control of the judicial authority, while the executive has no power over the person of the convict except to provide for carrying out the penalty and to pardon. Getting down to the solution of the question in the case at bar, which is that of execution of a capital sentence, it must be accepted as a hypothesis that postponement of the date can be requested. There can be no dispute on this point. It is a well-known principle that, notwithstanding the order of execution and the executory nature thereof on the date set or at the proper time, the date therefor can be postponed, even in sentences of death. Under the common! law this postponement can be ordered in three ways: (1) By command of the King; (2) by discretion (arbitrio) of the court; and (3) by mandate of the law. It is sufficient to state this principle of the common law to render impossible the assertion in absolute terms that after the convict has once been placed in jail the trial court can not reopen the case to investigate the facts that show the need for postponement. If one of the ways is by direction of the court, it is acknowledged that even after the date of the execution has been fixed, and notwithstanding the general rule that after the Court of First Instance has performed its ministerial duty of ordering the execution, functus est officio suo, and its part is ended, if however a circumstance arises that ought to delay the execution, there is an imperative duty to investigate the emergency and to order a postponement. Then the question arises as to whom the application for postponing the execution ought to be addressed while the circumstance is under investigation and as to who has jurisdiction to make the investigation. Here are some possible instances that immediately present themselves, of postponement by mandatory provisions of the law. Commentators point out that of the execution of a woman who is pregnant. For example, the 12th of the present month of January is fixed for the execution of the capital penalty upon such a woman, and on the 11th, one day previous, a motion is presented to postpone the execution during investigation of the circumstance as to whether she is really pregnant. The law prescribes that the death penalty shall not be inflicted upon a pregnant woman, nor may the sentence wherein it is imposed be communicated to her until forty days after delivery (Penal Code, art. 104). If on the 11th of January it were clearly shown by sufficient evidence that the woman was pregnant, the law’s precept must be obeyed; the capital penalty must not be inflicted, nor may the sentence even be communicated to her until forty days after her delivery. Were the penalty to be executed on the 12th of January on the ground that this date is unalterable on account of lack of jurisdiction in the trial court, the law’s prohibition would be plainly violated and the consequent responsibility unavoidably incurred. Postponement, alteration of the date, or fixing an interval of time for investigating the emergency and carrying out the provision of the law, should the circumstance be proven, is absolutely necessary. No one can doubt that jurisdiction for investigating such a circumstance can not be other than judicial, so that a proper and decisive finding may be made on the point of law. The motion on this particular incident of the execution must necessarily be presented to the court, for to no body can it imply a change or alteration of the judgment, because the judgment remains in force and will be executed, as res judicata, and finished; it would not be a thing decided and finished if it were to have been executed on some particular date, since this is not a part of the judgment, for neither the judgment of the lower court nor the affirmation of the Supreme Court makes any mention of the date of execution. And if it did, for that very reason the courts must be applied to for securing compliance with this article 104 of the Penal Code. So it is that it is always the courts to which application must be made for postponement of the execution, for deferring the time fixed therefor, because the law so directs, and the court is, beyond any doubt at all, the only authority competent to apply this provision of the Penal Code. Another instance where the law intervenes is that where insanity develops in the convict before the date fixed for the execution. The same reasons as set forth for the preceding instance hold good in this one, wherein it is the Penal Code itself which positively determines the function of the trial court to pass upon and decide the matter. (Penal Code, art. 8, par. 2.) An instance of the discretionary power (arbitrio) of the court that may be pointed out is that of identification of the convict to be executed. A capital sentence has been passed upon Pedro Fernandez, and one Pedro Fernandez has been a prisoner at the disposition of the court wherein all the proceedings in the case have been had; but before the date fixed for the execution it has been discovered on sufficient evidence that the prisoner Pedro Fernandez who is to be executed is not the Pedro Fernandez of the complaint in the case and of the judgment; and as the judgment cannot be executed upon any but the real culprit the execution must be postponed in order not to incur the risk, the inhumanity, and the iniquity of hanging an innocent person. It is an obligatory case of deferring or postponing the execution, and no one can doubt that it is the trial court, and not the executive authority, which has power to make the proper finding on the identity put in question, and therefore to it must be presented the application to postpone the execution for the purpose of investigating such emergency. In these and analogous cases that may occur, a genuine point of law, and not of administration, presents itself, an incidental question of exact and strict law, of indisputable judicial character, which necessarily has to be inherent fn the principal question decided, wherefore, the court. having jurisdiction over the principal question, must have jurisdiction over the accessory. Now an instance is presented, in the case at bar, which is neither one of justice nor strictly of law. The parties have submitted for our decision as a stipulated fact that the reason for the motion presented to the respondent judge for ordering the postponement he decreed was the need of allowing time for action on the petition for pardon or commutation presented to the Governor-General, or, briefly, an act of clemency. This is an instance of postponement by command of the King under the common law. The whole question now resolves itself into these definite terms: To whom should have been presented this application for postponement of the execution of the capital sentence fixed by the respondent judge for the 12th day of January, 1915? It is the most genuine instance of a reprieve—the postponement of a sentence of death. Webster defines the word reprieve as “the temporary suspension of the execution of a sentence, especially of a sentence of death,” and there are not lacking those who maintain that this word ought to be applied only to postponement of a sentence of death. In order to correct or prevent misconceptions some preliminary observations should be made: first, that reprieve, the postponement of execution of the judgment, is not a suspension of the judgment itself, the distinction being that the postponement merely puts off or defers the execution of the judgment to a certain day, while suspension of the judgment is for an indefinite time (Carnal vs. People, 1 N. Y., Parker Cr. R., 262); second, that postponement of execution of the judgment does not in any way affect the executory nature thereof, and it will be carried out on the day to which it has been set forward. What is done is to defer or postpone the execution. In resolving the question we decide that there can be no doubt that the Governor-General, who has the power to pardon the convict or commute the penalty imposed upon him, has necessarily and as a consequence the power to defer or postpone the execution of the sentence, in order to enable him to consider the petition presented to him and to exercise in due form such a sovereign prerogative; and it is clear that to him can be addressed the application for postponement of the date of execution fixed by the court in order that he may pass upon the petition which he has under consideration. But must the application for reprieve or postponement necessarily be presented to the Governor-General, along with the petition for pardon or commutation of the penalty, as the only one who has authority in such case ? This we do not find to be determined by any provision, while the contrary is laid down as the principle in standard text books. The action of the respondent judge may have been guided by the principle that both fixing and postponement of a day for the execution of a convicted criminal is, under the common law, a judicial power and cannot be exercised by a governor unless he be expressly authorized by the Constitution. He may also have been guided by the principle that in the common law the power to postpone the execution, to reprieve, is vested in the courts as the agents of the King, who is regarded as the true source of justice and to whom appeals for administering it are not made in ordinary cases but only in those of extreme necessity. (State vs. Hawk, 47 W Va., 434; 34 S. E., 918.) Finally, a consideration that decides the question involved in the present certiorari proceedings is the principle, well authenticated, that in the common law a reprieve or postponement can be granted by either one or the other, either by the King under his pardoning power or by the court; and that every court which has the power to order an execution has also the power to order its postponement. (Clifford vs. Heller, 63 N. J. L., 105; 42 Atl., 155; 57 L. R. A., 312.) Only by demonstrating that all these principles are incorrect, and the only correct one is that the power to postpone the execution rests exclusively with the Governor-General and that the trial court cannot exercise it, can it be concluded that the respondent judge has exceeded his authority in the exercise of his jurisdiction and has given cause for the remedy sought. As this has not been demonstrated, his action appears to be lawful. There is no ground for annulling the order of the Court of First Instance of Cavite sought to be reviewed in the present certiorari proceedings; without special finding as to costs. A copy of this final judgment will be transmitted to said court. So ordered. Arellano, C. J., Torres and Araullo, JJ.