Original petition for quo warranto, certiorari, prohibition and injunction filed with this Court by Jose C. Luciano, as Acting Mayor of Makati, Rizal, to forestall the alleged impending usurpation by suspended mayor Maximo Estrella of the position he is presently occupying; and to question the validity of the orders of the Court of Appeals granting new trial to the respondents who were convicted in Criminal Case No. 18821 of the Court of First Instance of Rizal, and ordering the remand of the records of said criminal case to the latter court for further proceedings.

Pertinent to the issue in this case are the following facts:

On 18 January 1969, Maximo Estrella, Teotimo Gealogo, Justino Ventura, Pedro Ison, Ignacio Babasa, Bernardo Nonato, Eduardo S. Francisco, Cirilo Delmo, Jose San Mateo, Lutgardo Ambrosio, Ciriaco Alano, Gualberto San Pedro, Jose Gutierrez, Franco A. Gutierrez were charged with violation of Sections 3-G and 4-B of Republic Act No. 3019 (Anti-Graft and Corrupt Practices Act) in an information reading as follows:

"That on or about July 26, 1967, and for sometime prior and subsequent thereto, in the Municipality of Makati, Province of Rizal, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, Maximo Estrella, then the Municipal Mayor of Makati, Rizal; Teotimo Gealogo, Justino Ventura, Pedro Ison, Ignacio Babasa, Bernardo Nonato, then Municipal Councilors of Makati, Rizal; Eduardo Francisco, then Muni­cipal Treasurer of Makati, Rizal; Cirilo Delmo, then Assistant Municipal Treasurer of Makati, Rizal; Lutgardo Ambrosio, then Chief of Traffic Control Bureau, Makati Police Department; Ciriaco Alano, then confidential Private Secretary to the Municipal Mayor; Gualberto San Pedro, then Provincial Auditor of the Province of Rizal; Jose Gutierrez and Franco A. Gutierrez, owner and/or representatives of the JEP Enterprises, respectively, conspiring, and confederating to­gether, did, then and there, willfully, unlaw­fully and feloniously, on behalf of the Municipal Government of Makati, Rizal, enter into a contract or transaction with the JEP Enterprises, represented by Jose Gutierrez and Franco A. Gutierrez, for the delivery and installation by the JEP Enterprises to the Municipal Government of Makati, Rizal of fifty-nine (59) units of traffic deflectors valued at ONE THOUSAND FOUR HUNDRED AND TWENTY-SIX PESOS AND FIFTY CENTAVOS (P1,426.50) each unit, that thirty- four (34) units were delivered, installed and paid for by the Municipality of Makati in favor of the JEP Enterprises in the amount of FORTY-EIGHT THOUSAND EIGHT HUNDRED FORTY ONE PESOS (P48,841.00), less ten percent (10%) retention, which contract or transaction is manifestly and grossly disadvantageous to the Municipal Gov­ernment of Makati, Rizal, to the damage and prejudice of the latter.

"That Jose Gutierrez and Franco C. Gutierrez, being the owner, manager and/or representatives of the JEP Enterprises, being private persons, did knowingly induce or cause the above-mentioned public officials and officers to enter into the aforementioned contract or transaction."

After due trial, during which the parties presented their respective documentary and testimonial evidence, the court rendered Judgment on 17 May 1969, finding that the contract for the purchase of 59 units of traffic deflectors at P1,436.50 per unit, was mani­festly and grossly disadvantageous to the municipality of Makati, Rizal, and that it was made possible through a sham bidding and a series of falsifications participated in by most of the accused.  Thus, accused Mayor Maximo Estrella, Councilors Teotimo Gealogo, Justino Ventura, Pedro Ison, Ignacio Babasa and Bernardo Nonato, Municipal Treasurer Eduardo Francisco, Provincial Auditor Gualberto San Pedro, Chief of Police Jose San Mateo, and Traffic Control Bureau Chief Lutgardo Ambrosio were pronounced guilty as charged, and each was sentenced to a prison term of 6 years, with perpetual disqualification to hold public office.  Thereupon, the Provincial Sheriff was ordered to remove said public officials from office pursuant to the provisions of Republic Act 3019.^[1] Accused Franco A. Gutierrez, Cirilo Delmo and Ciriaco Alano^[2] were acquitted for insufficiency of evidence.  On the same day, 17 May 1961, Mayor Estrella and Councilors Gealogo, Ventura, Ison, Babasa and Nonato perfected their appeal to the Court of Appeals, where the case was docketed as CA-G. R. No. 10250-CR.

On 28 November 1969, appellants Estrella, et al., filed in the Court of Appeals a motion for new trial, based allegedly on newly discovered and material evidence.  The evidence referred to consisted of the testimony of Acting Provincial Auditor Conrado S. Declaro, who allegedly discovered in the latter part of May, 1969, or after the appealed decision had been promulgated, that when the contract for the purchase of the deflectors was entered into, the municipality of Makati, Rizal, had an overdraft and, therefore, had no funds available to cover such purchase; and that the contract (Exhibit "E") does not have the necessary certification by the municipal treasurer as to the availability of funds therefor.  The motion for new trial was accompanied by an affidavit of Auditor Declaro to that effect, and a joint affidavit by appellants stating that they learned of the state of the municipality's finances only on 24 July 1969 when so informed by Declaro.

Required by the Court of Appeals to comment on the motion, the Solicitor General, representing appellee People of the Philip­pines, in effect offered no objection to the granting of the motion for new trial, opining that favorable action thereon would do no violence to judicial processes.  Consequently, on 31 January 1970, the Court of Appeals, taking note that the circumstances pointed out by Auditor Declaro were not, and could not have been, known to the appellants; that the trial judge who rendered the appealed judgment had already previously granted a new trial to two other accused who did not appeal (Lutgardo Ambrosio and Jose San Mateo), and that the subject matter of the prosecution is one of first im­pression and of serious consequences, granted the motion for new trial and ordered the remand of the case to the court a quo for new trial.  Also, at the instance of the appellants, another resolution was promulgated by the appellate court on 9 February 1970 declaring the order (granting new trial) final and directing the immediate remanding of the records of the case to the lower court.  On 13 February 1970, herein petitioner filed the present petition for the purposes earlier stated; and, as prayed for, this Court issued writs of preliminary injunction against the Court of Appeals, the Provincial Fiscal of Rizal and the Court of First Instance of Rizal, to restrain enforcement of the disputed orders of the appellate court, and the holding of new trial.

The petition questions the legality of the grant of a new trial by the Court of Appeals, as being contrary to law and established jurisprudence, averring that the alleged newly discovered evidence could have been discovered even before the decision of the Court of First Instance by exercise of due diligence; that said evidence is not of such character as would change the result when taken in connection with the evidence already on record.  Petitioner further avers that the motion and grant of new trial and the remand of the records to the court below before the expiration of the standard 15 days set by the Rules, were part of a plan to secure a reinstatement of the accused to the positions they formerly held, and the ouster of petitioner from his post as Acting Mayor of Makati.

Answering the petition, the Solicitor General, on 23 February 1970, sided with the petitioner and pleaded that there was no showing that the alleged newly discovered evidence sought to be presented will be likely change the result of the case; that the facts and circumstances surround­ing the contract entered into by appellants-movants for the supply of traffic deflector mirrors, such as the fact that they were shown to be grossly overpriced and totally useless for the purpose for which they were acquired, that the law on public bidding was not followed, the accused's undue haste in pushing the transaction through, the paying of the voucher before it was signed by the treasurer, the failure of the accused to see the deflectors themselves, and the appropriation of money for the purchase before the award was made, show the guilt of the accused despite the averred nullity of the contract of purchase without the treasurer's previous certificate of availability of funds.  The Solicitor General further pleaded that for a violation of Section 3 (g) of the Anti-Graft Law (Republic Act No. 3019) it is not necessary that the contract therein mentioned be perfectly valid and binding, so long as the transaction entered into in behalf of the Government be manifestly and grossly disadvantageous.  He prayed that the Court of Appeals' order for new trial be vacated.

Private respondents Estrella, Gealogo, et al., denied any intent to reassume their offices unless authorized by the courts; pleaded that they filed a motion for their reinstatement in the Court of First Instance, on 14 February 1970, only to stop speculations that they would take over their respective offices without judicial authorization; and that the petition had no cause of action for quo warranto and petitioner had no personality whatsoever to object to the motion for new trial, not being a party to the criminal case wherein it was granted; that petitioner is not the offended party in said criminal case, nor could he question or appeal from the grant of new trial, since the fiscal and the Solicitor General are the ones authorized to represent the People, and these had not opposed the new trial.  They further alleged that the court of Appeals' order for new trial and for the immediate entry thereof were proper and legal, the People having favorably endorsed the new trial.  As special defenses, they claimed that the petitioner had neither personality to institute the proceedings nor has any cause of action; that only the People of the Philippines could do so; that the grant of new trial has become final and executory; and that certiorari and prohibition are not a substitute for timely appeal.

We consider it unnecessary, at present, for brevity's sake, to render an opinion on the question of petitioner Luciano's personality to institute these proceedings in view of the Solicitor General's answer to the petition, practically adopting the latter and praying for the vacating of the questioned resolutions of the Court of Appeals, granting the motion for new trial of private respondents Estrella, et al., and remanding the records to the court of origin without awaiting the expiration of the normal period of 15 days prescribed by the Rules for the finality of said orders.  Said answer on behalf of the Republic is and should be treated as its own petition for certiorari.  The Solicitor General, in representation of the Re­public, the prosecutor and complainant in Criminal Case No. 18821 of Branch VI of the Court of First Instance of Rizal, has unquestionable per­sonality to assail the grant of new trial therein.  This the other respondents concede.  It is no objection to the application for a prerogative writ that the Solicitor General had previously expressed no objection to the res­pondents' motion for new trial, as filed in the Court of Appeals, for nothing bars the Solicitor General from changing opinion upon a more detailed and thorough consideration of the facts and the law; and, anyway, it is a well known and settled rule in our jurisdiction that the Republic or its government, is usually not estopped by mistake or error on the part of its officials or agents.^[3] Moreover, the correctness, validity and legality of a grant of new trial in a criminal case do not depend upon the consent of the parties thereto, but upon the grant being made conformably to the prescriptions of the Rules of Court and the applicable jurisprudence.

Neither is the action taken by the Solicitor General in this case barred by the lack of a seasonable appeal or of an apposite motion to reconsider the questioned resolutions of the Court of Appeals.  In so far as they vacated the judgment of conviction rendered by the court of origin and decreed a new trial, said orders resolved no questions with finality; they were in fact interlocutory, and, therefore were not independently appealable (Rule 41, section 2; Rule 122, section 1, Revised Rules of Court).  This Court has ruled that a grant of new trial is not appealable since it is not a final judgment.^[4] As to the non-filing of a motion for reconsideration, the Court of Appeals itself foreclosed this remedy by ordering the remand of the records to the court of origin even before the 15-day period for finality had expired.

Finally, in People vs. Bocar (97 Phil. 398), this Court upheld as proper the filing of a certiorari and prohibition case to question a trial court's order granting a motion for new trial.  Explaining the action taken by this Court, we said in that case:

"To avoid any misapprehension and to explain why we entertained the present petition for certiorari and prohibition with preliminary injunction over an order granting a motion for new trial, it should be stated that in civil cases the granting of a new trial is considered a mere interlocutory order not subject to appeal or special civil action.  The reason is that the party dissatisfied with the order granting new trial may, after judgment, appeal from the same and include in his appeal the supposed error committed in the issuance of the interlocutory order.  However, in a criminal case like the present, that theory or procedure of appeal in due time may not be practical or satisfac­tory for the reason that at the conclusion of the new trial, the trial court deciding the case anew, may acquit the defendant and thereafter the prosecution would have no more opportunity of bringing before the appellate court the question of the legality or illegality of the order granting a new trial because the defendant acquitted may plead double jeopardy." (Cas. cit. at page 414).

We now proceed to the main issue in these proceedings:  was the grant of a new trial for allegedly newly discovered evidence granted improvidently and in grave abuse of discretion?

We answer the question in the affirmative, because the action of the Court of Appeals was not in conformity with the applicable provisions of Rule 124, in connection with Rule 121 and Rule 53.

By Section 13 of Rule 124,

"SEC. 13.  Motion for new trial.  -- At any time after the appeal from the lower court has been perfected and before the judgment of the appellate court convicting the accused becomes final, the latter may move for a new trial on the ground of newly dis­covered evidence material to his defense, the motion to conform to the provisions of section 3, Rule 121."

The motion for new trial of respondents Estrella, et al., accused in the court below is anchored on Section 2 (b) of Rule 121, i.e., that new and material evidence has been discovered which (1) the defendant could not with reasonable diligence have discovered and produced at the trial; and (2) which if introduced and admitted would probably change the judgment.

Now, it will be recalled that the proffered new evidence consisted of the testimony of auditor Conrado Declaro, substantially to the effect that after testifying at the trial in the court of origin he discovered for the first time that the Municipality of Makati had an overdraft and, therefore, did not have the necessary funds to cover such purchase; that upon examination of the contract itself, it was found to be without the necessary certification of the municipal treasurer regarding availability of funds therefor; that the execution of the contract without such certificate of the municipal treasurer renders the contract null and void, pursuant to Sections 607 and 608 of the Revised Administrative Code; that the foregoing information was relayed by Declaro to respondents only in July, 1969, or after the promulgation of the decision in the criminal case and the said respondents had perfected their appeal to the Court of Appeals.

Measured against the recognized standards on newly-discovered evidence, the above testimony of the auditor clearly falls short of the requirement for the holding of a new trial.

First, because for the purposes of the Rules, Declaro's detection of the sad condition of the municipality's finances can hardly be called a newly-discovered fact.  The financial position of the municipality in 1967 is a matter that the then incumbent Provincial Auditor of Rizal and Municipal Treasurer of Makati, who were accused together with the herein respondents in Criminal Case No. 18821, should have known all along and could have presented during the hearing of the case.  In fact, it was stated in Declaro's affidavit, attached to the motion for new trial, "that actually the Municipal Treasurer used trust funds of the municipality to partially pay" (Affidavit, paragraph 5) for the articles initially delivered (P43,956.90, for the 34 units delivered, at P1,436.50 each less 10% retention),^[5] thereby indicating that said municipal official was actually aware of the lack of available and uncommitted funds to cover the purchase.  That must even be the reason why he did not certify that there were available funds for the purpose:  because he knew that there were none.  And it is unconceivable that the other accused did not discover this fact at the time.  Besides, it may be pointed out that for the duration of the criminal case, i.e., from 18 January 1969 when the information was filed in court up to 17 May 1969when the decision was rendered, respondents were occupying their respective positions as mayor and councilors of the municipality of Makati.  They could have obtained with facility the information about the financial condition of the municipal government when the questioned contract was entered into had they wanted to.  This, how­ever, they failed to do, and nothing appears in the records to explain such failure.  In one case,^[6] not even the detention of the accused was considered sufficient justification for his failure to present the alleged new testimonies, this Court reasoning that he could have secured and presented the "new" witnesses during the original trial, through his relatives and friends, or through compulsory process.  As it is, the evidence now relied upon by the respondents Estrella, et al., amounts to no more than forgotten proof, the belated uncovering of which would not justify an order to conduct a new trial.^[7]

Second, herein respondent municipal officials were charged with violation of Republic Act 3019 under its Section 3(g), or specifically, for having entered, on behalf of the government, into a contract or transaction manifestlyand grossly disadvantageous to the government.  It is not at all difficult to see that to determine the culpability of the accused under such provision, it need only be established that the accused is a public officer; that he entered into a contract or transaction on behalf of the government; and that such contract or transaction is grossly and manifestly disadvantageous to that government.  In other words, the act treated thereunder partakes of the nature of a malum prohibitum; it is the commission of that act as defined by the law, not the character or effect thereof, that determines whether or not the provision has been violated.  And this construction would be in consonance with the announced purpose for which Republic Act 3019 was enacted, which is the repression of certain acts of public officers and private persons constituting graft or corrupt practices or which may lead thereto.^[8] Note that the law does not merely contemplate repression of acts that are unlawful or corrupt per se, but even of those that may lead to or result in graft and corruption.  Thus, to require for conviction under the Anti-Graft and Corrupt Practices Act that the validity of the contract or transaction be first proved would be to enervate, if not defeat, the intention of the Act.  For what would prevent the officials from entering into those kinds of transactions against which Republic Act 3019 is directed, and then deliberately omit the observance of certain formalities just to provide a convenient leeway to avoid the clutches of the law in the event of discovery and consequent prosecution?  In the present case, assuming arguendo that the absence of certification by the municipal treasurer as to availability of covering funds would materially affect the validity of the contract, that matter would be immaterial to the determination of respondents' liability under Republic Act 3019; so that the discovery of such fact would not constitute a proper ground to support a motion for the reopening and retrial of the case.

But the improvidence of the action taken by the Court of Appeals goes further than the disregard of the specific requirements that newly discovered evidence should meet to justify granting a new trial.  It goes deeper.  Section 17 of Rule 124, provides that -

"SEC. 17.  Application of certain rules in civil to criminal cases.  -- ­The provisions of Rules 46 to 56 relating to pro­cedure in the Court of Appeals and in the Supreme Court in original as well as appealed civil cases shall, in so far as they are applicable and not in­consistent with the provisions of this rule, be applied to criminal cases."

One of the rules thus made applicable to criminal cases is Rule 53, Section 2 of which requires that in granting or refusing a new trial "the Court of Appeals shall consider the new evidence together with that adduced in the Court below" (emphasis supplied).  The purpose is clearly to have the new evidence weighed in conjunction with the old, in order to ascertain whether the new proofs tendered would probably change the result, as required by Section 2(b) of Rule 121.  Nowhere in the questioned resolution does it appear that both the "new" and the "old" evidence were considered jointly.  In fact, the Court of Appeals could not then have done so, for the petitioner avers, and it is not denied, that when the motion for new trial was filed, the testimony of the witnesses at the original trial was not yet transcribed.

With these violations of the Rules of Court thus made patent, we have no alternative but to conclude that the grant of the motion for new trial by the Court of Appeals was made, not only in error, but with grave abuse of discretion amounting to excess of jurisdiction.  We are left with no alternative but to disavow and set aside the actuations of the Appeals Court.

WHEREFORE, the writ prayed for is granted and the order of the Court of Appeals granting a new trial for newly discovered evidence in its Case CA-G. R. No. 10250-CR, as well as its order remanding the records of the case to the court of origin, are hereby revoked and set aside.  The Court of Appeals is consequently instructed to recall and proceed with said criminal case until its termination in con­formity with the applicable law and rules of court.

The preliminary writs of injunction heretofore issued are made permanent.

SO ORDERED.  Costs against private respondents Estrella, Gealogo, Ventura, Ison, Babasa and Nonato to be paid by them jointly and severally in favor of the Republic of the Philippines.

Concepcion, C.J., Dizon, Makalintal, Castro, Fernando, Teehankee, and Barredo, JJ., concur.
Zaldivar and Makasiar, JJ., took no part.
Villamor, J., abstains.

---

^[1] Vide Luciano vs. Provincial Governor, L-30306, 29 June 1969, 28 SCRA 517.

^[2] In the copy of the trial court's decision submitted to this Court, there was no mention of Jose Gutierrez, one of the accused in the case (Annex "B", Petition).

^[3] United Christian Missionary Society vs. SSS, L-26712-16, 27 December 1969, 30 SCRA 982; Rodriguez, Inc. vs. Collector of Internal Revenue, L-23041, 31 July 1969, 28 SCRA 1199; Republic vs. PLDT Co., L-18841, 27 January 1969, 26 SCRA 620; Republic vs. Go Bon Lee, L-11499, 29 April 1961, 1 SCRA 1166.

^[4] Veloso vs. Pacheco, 1 Phil. 271; Herman vs. Crossfield, 7 Phil. 261.

^[5] Annex D, page 64, Rollo.

^[6] People vs. Penesa, 81 Phil. 398.

^[7] People vs. Evaristo, L-14520, 26 February 1965, 13 SCRA 172; People vs. Penesa, supra; also Suva vs. Corpus, L-18397, 29 November 1962, 6 SCRA 699; Sy Ha vs. Galang, L-18513, 27 April 1963, 7 SCRA 797; Necesito vs. Paras, L-10605, 11 September 1958.

^[8] Section 1, Republic Act 3019.

---

Clean 6 pt 6 pt 0 3 MicrosoftInternetExplorer4 style-->