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Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

G.R. No. L-43082 June 18, 1937

PABLO LORENZO, as trustee of the estate of Thomas Hanley, deceased, plaintiff-appellant, vs.JUAN POSADAS, JR., Collector of Internal Revenue, defendant-appellant.

Pablo Lorenzo and Delfin Joven for plaintiff-appellant.Office of the Solicitor-General Hilado for defendant-appellant.

LAUREL, J.:

On October 4, 1932, the plaintiff Pablo Lorenzo, in his capacity as trustee of the estate of Thomas Hanley, deceased, brought this action in the Court of First Instance of Zamboanga against the defendant, Juan Posadas, Jr., then the Collector of Internal Revenue, for the refund of the amount of P2,052.74, paid by the plaintiff as inheritance tax on the estate of the deceased, and for the collection of interst thereon at the rate of 6 per cent per annum, computed from September 15, 1932, the date when the aforesaid tax was [paid under protest. The defendant set up a counterclaim for P1,191.27 alleged to be interest due on the tax in question and which was not included in the original assessment. From the decision of the Court of First Instance of Zamboanga dismissing both the plaintiff's complaint and the defendant's counterclaim, both parties appealed to this court.

It appears that on May 27, 1922, one Thomas Hanley died in Zamboanga, Zamboanga, leaving a will (Exhibit 5) and considerable amount of real and personal properties. On june 14, 1922, proceedings for the probate of his will and the settlement and distribution of his estate were begun in the Court of First Instance of Zamboanga. The will was admitted to probate. Said will provides, among other things, as follows:

4. I direct that any money left by me be given to my nephew Matthew Hanley.

5. I direct that all real estate owned by me at the time of my death be not sold or otherwise disposed of for a period of ten (10) years after my death, and that the same be handled and managed by the executors, and proceeds thereof to be given to my nephew, Matthew Hanley, at Castlemore, Ballaghaderine, County of Rosecommon, Ireland, and that he be directed that the same be used only for the education of my brother's children and their descendants.



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6. I direct that ten (10) years after my death my property be given to the above mentioned Matthew Hanley to be disposed of in the way he thinks most advantageous.

x x x x x x x x x

8. I state at this time I have one brother living, named Malachi Hanley, and that my nephew, Matthew Hanley, is a son of my said brother, Malachi Hanley.

The Court of First Instance of Zamboanga considered it proper for the best interests of ther estate to appoint a trustee to administer the real properties which, under the will, were to pass to Matthew Hanley ten years after the two executors named in the will, was, on March 8, 1924, appointed trustee. Moore took his oath of office and gave bond on March 10, 1924. He acted as trustee until February 29, 1932, when he resigned and the plaintiff herein was appointed in his stead.

During the incumbency of the plaintiff as trustee, the defendant Collector of Internal Revenue, alleging that the estate left by the deceased at the time of his death consisted of realty valued at P27,920 and personalty valued at P1,465, and allowing a deduction of P480.81, assessed against the estate an inheritance tax in the amount of P1,434.24 which, together with the penalties for deliquency in payment consisting of a 1 per cent monthly interest from July 1, 1931 to the date of payment and a surcharge of 25 per cent on the tax, amounted to P2,052.74. On March 15, 1932, the defendant filed a motion in the testamentary proceedings pending before the Court of First Instance of Zamboanga (Special proceedings No. 302) praying that the trustee, plaintiff herein, be ordered to pay to the Government the said sum of P2,052.74. The motion was granted. On September 15, 1932, the plaintiff paid said amount under protest, notifying the defendant at the same time that unless the amount was promptly refunded suit would be brought for its recovery. The defendant overruled the plaintiff's protest and refused to refund the said amount hausted, plaintiff went to court with the result herein above indicated.

In his appeal, plaintiff contends that the lower court erred:

I. In holding that the real property of Thomas Hanley, deceased, passed to his instituted heir, Matthew Hanley, from the moment of the death of the former, and that from the time, the latter became the owner thereof.

II. In holding, in effect, that there was deliquency in the payment of inheritance tax due on the estate of said deceased.

III. In holding that the inheritance tax in question be based upon the value of the estate upon the death of the testator, and not, as it should have been held, upon the value thereof at the expiration of the period of ten years after which, according to the testator's will, the property could be and was to be delivered to the instituted heir.

IV. In not allowing as lawful deductions, in the determination of the net amount of the estate subject to said tax, the amounts allowed by the court as compensation to the "trustees" and paid to them from the decedent's estate.

V. In not rendering judgment in favor of the plaintiff and in denying his motion for new trial.

The defendant-appellant contradicts the theories of the plaintiff and assigns the following error besides:

The lower court erred in not ordering the plaintiff to pay to the defendant the sum of P1,191.27, representing part of the interest at the rate of 1 per cent per month from April 10, 1924, to June 30, 1931, which the plaintiff had failed to pay on the inheritance tax assessed by the defendant against the estate of Thomas Hanley.

The following are the principal questions to be decided by this court in this appeal: (a) When does the inheritance tax accrue and when must it be satisfied? (b) Should the inheritance tax be computed on the basis of the value of the estate at the time of the testator's death, or on its value ten years later? (c) In determining the net value of the estate subject to tax, is it proper to deduct the compensation due to trustees? (d) What law governs the case at bar? Should the provisions of Act No. 3606 favorable to the tax-payer be given retroactive effect? (e) Has there been deliquency in the payment of the inheritance tax? If so, should the additional interest claimed by the defendant in his appeal be paid by the estate? Other points of incidental importance, raised by the parties in their briefs, will be touched upon in the course of this opinion.

(a) The accrual of the inheritance tax is distinct from the obligation to pay the same. Section 1536 as amended, of the Administrative Code, imposes the tax upon "every transmission by virtue of inheritance, devise, bequest, giftmortis causa, or advance in anticipation of inheritance,devise, or bequest." The tax therefore is upon transmission or the transfer or devolution of property of a decedent, made effective by his death. (61 C. J., p. 1592.) It is in reality an excise or privilege tax imposed on the right to succeed to, receive, or take property by or under a will or the intestacy law, or deed, grant, or gift to become operative at or after death. Acording to article 657 of the Civil Code, "the rights to the succession of a person are transmitted from the moment of his death." "In other words", said Arellano, C. J., ". . . the heirs succeed immediately to all of the property of the deceased ancestor. The property belongs to the heirs at the moment of the death of the ancestor as completely as if the ancestor had executed and delivered to them a deed for the same before his death." (Bondad vs. Bondad, 34 Phil., 232. See also, Mijares vs. Nery, 3 Phil., 195; Suilong & Co., vs. Chio-Taysan, 12 Phil., 13; Lubrico vs. Arbado, 12 Phil., 391; Innocencio vs. Gat-Pandan, 14 Phil., 491; Aliasas vs.Alcantara, 16 Phil., 489; Ilustre vs. Alaras Frondosa, 17 Phil., 321; Malahacan vs. Ignacio, 19 Phil., 434; Bowa vs.

Briones, 38 Phil., 27; Osario vs. Osario & Yuchausti Steamship Co., 41 Phil., 531; Fule vs. Fule, 46 Phil., 317; Dais vs. Court of First Instance of Capiz, 51 Phil., 396; Baun vs. Heirs of Baun, 53 Phil., 654.) Plaintiff, however, asserts that while article 657 of the Civil Code is applicable to testate as well as intestate succession, it operates only in so far as forced heirs are concerned. But the language of article 657 of the Civil Code is broad and makes no distinction between different classes of heirs. That article does not speak of forced heirs; it does not even use the word "heir". It speaks of the rights of succession and the transmission thereof from the moment of death. The provision of section 625 of the Code of Civil Procedure regarding the authentication and probate of a will as a necessary condition to effect transmission of property does not affect the general rule laid down in article 657 of the Civil Code. The authentication of a will implies its due execution but once probated and allowed the transmission is effective as of the death of the testator in accordance with article 657 of the Civil Code. Whatever may be the time when actual transmission of the inheritance takes place, succession takes place in any event at the moment of the decedent's death. The time when the heirs legally succeed to the inheritance may differ from the time when the heirs actually receive such inheritance. "Poco importa", says Manresa commenting on article 657 of the Civil Code, "que desde el falleimiento del causante, hasta que el heredero o legatario entre en posesion de los bienes de la herencia o del legado, transcurra mucho o poco tiempo, pues la adquisicion ha de retrotraerse al momento de la muerte, y asi lo ordena el articulo 989, que debe considerarse como complemento del presente." (5 Manresa, 305; see also, art. 440, par. 1, Civil Code.) Thomas Hanley having died on May 27, 1922, the inheritance tax accrued as of the date.

From the fact, however, that Thomas Hanley died on May 27, 1922, it does not follow that the obligation to pay the tax arose as of the date. The time for the payment on inheritance tax is clearly fixed by section 1544 of the Revised Administrative Code as amended by Act No. 3031, in relation to section 1543 of the same Code. The two sections follow:

SEC. 1543. Exemption of certain acquisitions and transmissions. — The following shall not be taxed:

(a) The merger of the usufruct in the owner of the naked title.

(b) The transmission or delivery of the inheritance or legacy by the fiduciary heir or legatee to the trustees.

(c) The transmission from the first heir, legatee, or donee in favor of another beneficiary, in accordance with the desire of the predecessor.

In the last two cases, if the scale of taxation appropriate to the new beneficiary is greater than that paid by the first, the former must pay the difference.

SEC. 1544. When tax to be paid. — The tax fixed in this article shall be paid:

(a) In the second and third cases of the next preceding section, before entrance into possession of the property.

(b) In other cases, within the six months subsequent to the death of the predecessor; but if judicial testamentary or intestate proceedings shall be instituted prior to the expiration of said period, the payment shall be made by the executor or administrator before delivering to each beneficiary his share.

If the tax is not paid within the time hereinbefore prescribed, interest at the rate of twelve per centum per annum shall be added as part of the tax; and to the tax and interest due and unpaid within ten days after the date of notice and demand thereof by the collector, there shall be further added a surcharge of twenty-five per centum.

A certified of all letters testamentary or of admisitration shall be furnished the Collector of Internal Revenue by the Clerk of Court within thirty days after their issuance.

It should be observed in passing that the word "trustee", appearing in subsection (b) of section 1543, should read "fideicommissary" or "cestui que trust". There was an obvious mistake in translation from the Spanish to the English version.

The instant case does fall under subsection (a), but under subsection (b), of section 1544 above-quoted, as there is here no fiduciary heirs, first heirs, legatee or donee. Under the subsection, the tax should have been paid before the delivery of the properties in question to P. J. M. Moore as trustee on March 10, 1924.

(b) The plaintiff contends that the estate of Thomas Hanley, in so far as the real properties are concerned, did not and could not legally pass to the instituted heir, Matthew Hanley, until after the expiration of ten years from the death of the testator on May 27, 1922 and, that the inheritance tax should be based on the value of the estate in 1932, or ten years after the testator's death. The plaintiff introduced evidence tending to show that in 1932 the real properties in question had a reasonable value of only P5,787. This amount added to the value of the personal property left by the deceased, which the plaintiff admits is P1,465, would generate an inheritance tax which, excluding deductions, interest and surcharge, would amount only to about P169.52.

If death is the generating source from which the power of the estate to impose inheritance taxes takes its being and if, upon the death of the decedent, succession takes place and the right of the estate to tax vests instantly, the tax should be measured by the

vlaue of the estate as it stood at the time of the decedent's death, regardless of any subsequent contingency value of any subsequent increase or decrease in value. (61 C. J., pp. 1692, 1693; 26 R. C. L., p. 232; Blakemore and Bancroft, Inheritance Taxes, p. 137. See also Knowlton vs. Moore, 178 U.S., 41; 20 Sup. Ct. Rep., 747; 44 Law. ed., 969.) "The right of the state to an inheritance tax accrues at the moment of death, and hence is ordinarily measured as to any beneficiary by the value at that time of such property as passes to him. Subsequent appreciation or depriciation is immaterial." (Ross, Inheritance Taxation, p. 72.)

Our attention is directed to the statement of the rule in Cyclopedia of Law of and Procedure (vol. 37, pp. 1574, 1575) that, in the case of contingent remainders, taxation is postponed until the estate vests in possession or the contingency is settled. This rule was formerly followed in New York and has been adopted in Illinois, Minnesota, Massachusetts, Ohio, Pennsylvania and Wisconsin. This rule, horever, is by no means entirely satisfactory either to the estate or to those interested in the property (26 R. C. L., p. 231.). Realizing, perhaps, the defects of its anterior system, we find upon examination of cases and authorities that New York has varied and now requires the immediate appraisal of the postponed estate at its clear market value and the payment forthwith of the tax on its out of the corpus of the estate transferred. (In re Vanderbilt, 172 N. Y., 69; 69 N. E., 782; In re Huber, 86 N. Y. App. Div., 458; 83 N. Y. Supp., 769; Estate of Tracy, 179 N. Y., 501; 72 N. Y., 519; Estate of Brez, 172 N. Y., 609; 64 N. E., 958; Estate of Post, 85 App. Div., 611; 82 N. Y. Supp., 1079. Vide also, Saltoun vs. Lord Advocate, 1 Peter. Sc. App., 970; 3 Macq. H. L., 659; 23 Eng. Rul. Cas., 888.) California adheres to this new rule (Stats. 1905, sec. 5, p. 343).

But whatever may be the rule in other jurisdictions, we hold that a transmission by inheritance is taxable at the time of the predecessor's death, notwithstanding the postponement of the actual possession or enjoyment of the estate by the beneficiary, and the tax measured by the value of the property transmitted at that time regardless of its appreciation or depreciation.

(c) Certain items are required by law to be deducted from the appraised gross in arriving at the net value of the estate on which the inheritance tax is to be computed (sec. 1539, Revised Administrative Code). In the case at bar, the defendant and the trial court allowed a deduction of only P480.81. This sum represents the expenses and disbursements of the executors until March 10, 1924, among which were their fees and the proven debts of the deceased. The plaintiff contends that the compensation and fees of the trustees, which aggregate P1,187.28 (Exhibits C, AA, EE, PP, HH, JJ, LL, NN, OO), should also be deducted under section 1539 of the Revised Administrative Code which provides, in part, as follows: "In order to determine the net sum which must bear the tax, when an inheritance is concerned, there shall be deducted, in case of a resident, . . . the judicial expenses of the testamentary or intestate proceedings, . . . ."

A trustee, no doubt, is entitled to receive a fair compensation for his services (Barney vs. Saunders, 16 How., 535; 14 Law. ed., 1047). But from this it does not follow that the compensation due him may lawfully be deducted in arriving at the net value of the estate subject to tax. There is no statute in the Philippines which requires trustees' commissions to be deducted in determining the net value of the estate subject to inheritance tax (61 C. J., p. 1705). Furthermore, though a testamentary trust has been created, it does not appear that the testator intended that the duties of his executors and trustees should be separated. (Ibid.; In re Vanneck's Estate, 161 N. Y. Supp., 893; 175 App. Div., 363; In re Collard's Estate, 161 N. Y. Supp., 455.) On the contrary, in paragraph 5 of his will, the testator expressed the desire that his real estate be handled and managed by his executors until the expiration of the period of ten years therein provided. Judicial expenses are expenses of administration (61 C. J., p. 1705) but, in State vs. Hennepin County Probate Court (112 N. W., 878; 101 Minn., 485), it was said: ". . . The compensation of a trustee, earned, not in the administration of the estate, but in the management thereof for the benefit of the legatees or devises, does not come properly within the class or reason for exempting administration expenses. . . . Service rendered in that behalf have no reference to closing the estate for the purpose of a distribution thereof to those entitled to it, and are not required or essential to the perfection of the rights of the heirs or legatees. . . . Trusts . . . of the character of that here before the court, are created for the the benefit of those to whom the property ultimately passes, are of voluntary creation, and intended for the preservation of the estate. No sound reason is given to support the contention that such expenses should be taken into consideration in fixing the value of the estate for the purpose of this tax."

(d) The defendant levied and assessed the inheritance tax due from the estate of Thomas Hanley under the provisions of section 1544 of the Revised Administrative Code, as amended by section 3 of Act No. 3606. But Act No. 3606 went into effect on January 1, 1930. It, therefore, was not the law in force when the testator died on May 27, 1922. The law at the time was section 1544 above-mentioned, as amended by Act No. 3031, which took effect on March 9, 1922.

It is well-settled that inheritance taxation is governed by the statute in force at the time of the death of the decedent (26 R. C. L., p. 206; 4 Cooley on Taxation, 4th ed., p. 3461). The taxpayer can not foresee and ought not to be required to guess the outcome of pending measures. Of course, a tax statute may be made retroactive in its operation. Liability for taxes under retroactive legislation has been "one of the incidents of social life." (Seattle vs. Kelleher, 195 U. S., 360; 49 Law. ed., 232 Sup. Ct. Rep., 44.) But legislative intent that a tax statute should operate retroactively should be perfectly clear. (Scwab vs. Doyle, 42 Sup. Ct. Rep., 491; Smietanka vs. First Trust & Savings Bank, 257 U. S., 602; Stockdale vs. Insurance Co., 20 Wall., 323; Lunch vs. Turrish, 247 U. S., 221.) "A statute should be considered as prospective in its operation, whether it enacts, amends, or repeals an inheritance tax, unless the language of the statute clearly demands or expresses that it shall have a retroactive effect, . . . ." (61 C. J., P. 1602.) Though the last paragraph of section 5 of Regulations No. 65 of the Department of Finance makes section 3 of Act No. 3606, amending section 1544 of the Revised Administrative Code, applicable to all estates the inheritance taxes due from which have not been paid, Act No. 3606 itself contains no provisions indicating legislative intent to give it retroactive effect. No such effect can begiven the statute by this court.

The defendant Collector of Internal Revenue maintains, however, that certain provisions of Act No. 3606 are more favorable to the taxpayer than those of Act No. 3031, that said provisions are penal in nature and, therefore, should operate retroactively in

conformity with the provisions of article 22 of the Revised Penal Code. This is the reason why he applied Act No. 3606 instead of Act No. 3031. Indeed, under Act No. 3606, (1) the surcharge of 25 per cent is based on the tax only, instead of on both the tax and the interest, as provided for in Act No. 3031, and (2) the taxpayer is allowed twenty days from notice and demand by rthe Collector of Internal Revenue within which to pay the tax, instead of ten days only as required by the old law.

Properly speaking, a statute is penal when it imposes punishment for an offense committed against the state which, under the Constitution, the Executive has the power to pardon. In common use, however, this sense has been enlarged to include within the term "penal statutes" all status which command or prohibit certain acts, and establish penalties for their violation, and even those which, without expressly prohibiting certain acts, impose a penalty upon their commission (59 C. J., p. 1110). Revenue laws, generally, which impose taxes collected by the means ordinarily resorted to for the collection of taxes are not classed as penal laws, although there are authorities to the contrary. (See Sutherland, Statutory Construction, 361; Twine Co. vs. Worthington, 141 U. S., 468; 12 Sup. Ct., 55; Rice vs. U. S., 4 C. C. A., 104; 53 Fed., 910; Com. vs. Standard Oil Co., 101 Pa. St., 150; State vs. Wheeler, 44 P., 430; 25 Nev. 143.) Article 22 of the Revised Penal Code is not applicable to the case at bar, and in the absence of clear legislative intent, we cannot give Act No. 3606 a retroactive effect.

(e) The plaintiff correctly states that the liability to pay a tax may arise at a certain time and the tax may be paid within another given time. As stated by this court, "the mere failure to pay one's tax does not render one delinqent until and unless the entire period has eplased within which the taxpayer is authorized by law to make such payment without being subjected to the payment of penalties for fasilure to pay his taxes within the prescribed period." (U. S. vs. Labadan, 26 Phil., 239.)

The defendant maintains that it was the duty of the executor to pay the inheritance tax before the delivery of the decedent's property to the trustee. Stated otherwise, the defendant contends that delivery to the trustee was delivery to the cestui que trust, the beneficiery in this case, within the meaning of the first paragraph of subsection (b) of section 1544 of the Revised Administrative Code. This contention is well taken and is sustained. The appointment of P. J. M. Moore as trustee was made by the trial court in conformity with the wishes of the testator as expressed in his will. It is true that the word "trust" is not mentioned or used in the will but the intention to create one is clear. No particular or technical words are required to create a testamentary trust (69 C. J., p. 711). The words "trust" and "trustee", though apt for the purpose, are not necessary. In fact, the use of these two words is not conclusive on the question that a trust is created (69 C. J., p. 714). "To create a trust by will the testator must indicate in the will his intention so to do by using language sufficient to separate the legal from the equitable estate, and with sufficient certainty designate the beneficiaries, their interest in the ttrust, the purpose or object of the trust, and the property or subject matter thereof. Stated otherwise, to constitute a valid testamentary trust there must be a concurrence of three circumstances: (1) Sufficient words to raise a trust; (2) a definite subject; (3) a certain or ascertain object; statutes in some jurisdictions expressly or in effect so providing." (69 C. J., pp. 705,706.) There is no doubt that the testator intended to create a trust. He ordered in his will that certain of his properties be kept together undisposed during a fixed period, for a stated purpose. The probate court certainly exercised sound judgment in appointment a trustee to carry into effect the provisions of the will (see sec. 582, Code of Civil Procedure).

P. J. M. Moore became trustee on March 10, 1924. On that date trust estate vested in him (sec. 582 in relation to sec. 590, Code of Civil Procedure). The mere fact that the estate of the deceased was placed in trust did not remove it from the operation of our inheritance tax laws or exempt it from the payment of the inheritance tax. The corresponding inheritance tax should have been paid on or before March 10, 1924, to escape the penalties of the laws. This is so for the reason already stated that the delivery of the estate to the trustee was in esse delivery of the same estate to the cestui que trust, the beneficiary in this case. A trustee is but an instrument or agent for thecestui que trust (Shelton vs. King, 299 U. S., 90; 33 Sup. Ct. Rep., 689; 57 Law. ed., 1086). When Moore accepted the trust and took possesson of the trust estate he thereby admitted that the estate belonged not to him but to hiscestui que trust (Tolentino vs. Vitug, 39 Phil.,126, cited in 65 C. J., p. 692, n. 63). He did not acquire any beneficial interest in the estate. He took such legal estate only as the proper execution of the trust required (65 C. J., p. 528) and, his estate ceased upon the fulfillment of the testator's wishes. The estate then vested absolutely in the beneficiary (65 C. J., p. 542).

The highest considerations of public policy also justify the conclusion we have reached. Were we to hold that the payment of the tax could be postponed or delayed by the creation of a trust of the type at hand, the result would be plainly disastrous. Testators may provide, as Thomas Hanley has provided, that their estates be not delivered to their beneficiaries until after the lapse of a certain period of time. In the case at bar, the period is ten years. In other cases, the trust may last for fifty years, or for a longer period which does not offend the rule against petuities. The collection of the tax would then be left to the will of a private individual. The mere suggestion of this result is a sufficient warning against the accpetance of the essential to the very exeistence of government. (Dobbins vs. Erie Country, 16 Pet., 435; 10 Law. ed., 1022; Kirkland vs. Hotchkiss, 100 U. S., 491; 25 Law. ed., 558; Lane County vs. Oregon, 7 Wall., 71; 19 Law. ed., 101; Union Refrigerator Transit Co. vs. Kentucky, 199 U. S., 194; 26 Sup. Ct. Rep., 36; 50 Law. ed., 150; Charles River Bridge vs. Warren Bridge, 11 Pet., 420; 9 Law. ed., 773.) The obligation to pay taxes rests not upon the privileges enjoyed by, or the protection afforded to, a citizen by the government but upon the necessity of money for the support of the state (Dobbins vs. Erie Country, supra). For this reason, no one is allowed to object to or resist the payment of taxes solely because no personal benefit to him can be pointed out. (Thomas vs. Gay, 169 U. S., 264; 18 Sup. Ct. Rep., 340; 43 Law. ed., 740.) While courts will not enlarge, by construction, the government's power of taxation (Bromley vs. McCaughn, 280 U. S., 124; 74 Law. ed., 226; 50 Sup. Ct. Rep., 46) they also will not place upon tax laws so loose a construction as to permit evasions on merely fanciful and insubstantial distictions. (U. S. vs. Watts, 1 Bond., 580; Fed. Cas. No. 16,653; U. S. vs. Wigglesirth, 2 Story, 369; Fed. Cas. No. 16,690, followed in Froelich & Kuttner vs. Collector of Customs, 18 Phil., 461, 481; Castle Bros., Wolf & Sons vs. McCoy, 21 Phil., 300; Muñoz & Co. vs. Hord, 12 Phil., 624; Hongkong & Shanghai Banking Corporation vs. Rafferty, 39 Phil., 145; Luzon Stevedoring Co. vs. Trinidad, 43 Phil., 803.) When proper, a tax statute should be construed to avoid the possibilities of tax evasion. Construed this way, the statute, without resulting in injustice to the taxpayer, becomes fair to the government.

That taxes must be collected promptly is a policy deeply intrenched in our tax system. Thus, no court is allowed to grant injunction to restrain the collection of any internal revenue tax ( sec. 1578, Revised Administrative Code; Sarasola vs. Trinidad, 40 Phil., 252). In the case of Lim Co Chui vs. Posadas (47 Phil., 461), this court had occassion to demonstrate trenchment adherence to this policy of the law. It held that "the fact that on account of riots directed against the Chinese on October 18, 19, and 20, 1924, they were prevented from praying their internal revenue taxes on time and by mutual agreement closed their homes and stores and remained therein, does not authorize the Collector of Internal Revenue to extend the time prescribed for the payment of the taxes or to accept them without the additional penalty of twenty five per cent." (Syllabus, No. 3.)

". . . It is of the utmost importance," said the Supreme Court of the United States, ". . . that the modes adopted to enforce the taxes levied should be interfered with as little as possible. Any delay in the proceedings of the officers, upon whom the duty is developed of collecting the taxes, may derange the operations of government, and thereby, cause serious detriment to the public." (Dows vs. Chicago, 11 Wall., 108; 20 Law. ed., 65, 66; Churchill and Tait vs. Rafferty, 32 Phil., 580.)

It results that the estate which plaintiff represents has been delinquent in the payment of inheritance tax and, therefore, liable for the payment of interest and surcharge provided by law in such cases.

The delinquency in payment occurred on March 10, 1924, the date when Moore became trustee. The interest due should be computed from that date and it is error on the part of the defendant to compute it one month later. The provisions cases is mandatory (see and cf. Lim Co Chui vs. Posadas, supra), and neither the Collector of Internal Revenuen or this court may remit or decrease such interest, no matter how heavily it may burden the taxpayer.

To the tax and interest due and unpaid within ten days after the date of notice and demand thereof by the Collector of Internal Revenue, a surcharge of twenty-five per centum should be added (sec. 1544, subsec. (b), par. 2, Revised Administrative Code). Demand was made by the Deputy Collector of Internal Revenue upon Moore in a communiction dated October 16, 1931 (Exhibit 29). The date fixed for the payment of the tax and interest was November 30, 1931. November 30 being an official holiday, the tenth day fell on December 1, 1931. As the tax and interest due were not paid on that date, the estate became liable for the payment of the surcharge.

In view of the foregoing, it becomes unnecessary for us to discuss the fifth error assigned by the plaintiff in his brief.

We shall now compute the tax, together with the interest and surcharge due from the estate of Thomas Hanley inaccordance with the conclusions we have reached.

At the time of his death, the deceased left real properties valued at P27,920 and personal properties worth P1,465, or a total of P29,385. Deducting from this amount the sum of P480.81, representing allowable deductions under secftion 1539 of the Revised Administrative Code, we have P28,904.19 as the net value of the estate subject to inheritance tax.

The primary tax, according to section 1536, subsection (c), of the Revised Administrative Code, should be imposed at the rate of one per centum upon the first ten thousand pesos and two per centum upon the amount by which the share exceed thirty thousand pesos, plus an additional two hundred per centum. One per centum of ten thousand pesos is P100. Two per centum of P18,904.19 is P378.08. Adding to these two sums an additional two hundred per centum, or P965.16, we have as primary tax, correctly computed by the defendant, the sum of P1,434.24.

To the primary tax thus computed should be added the sums collectible under section 1544 of the Revised Administrative Code. First should be added P1,465.31 which stands for interest at the rate of twelve per centum per annum from March 10, 1924, the date of delinquency, to September 15, 1932, the date of payment under protest, a period covering 8 years, 6 months and 5 days. To the tax and interest thus computed should be added the sum of P724.88, representing a surhcarge of 25 per cent on both the tax and interest, and also P10, the compromise sum fixed by the defendant (Exh. 29), giving a grand total of P3,634.43.

As the plaintiff has already paid the sum of P2,052.74, only the sums of P1,581.69 is legally due from the estate. This last sum is P390.42 more than the amount demanded by the defendant in his counterclaim. But, as we cannot give the defendant more than what he claims, we must hold that the plaintiff is liable only in the sum of P1,191.27 the amount stated in the counterclaim.

The judgment of the lower court is accordingly modified, with costs against the plaintiff in both instances. So ordered.

Avanceña, C.J., Abad Santos, Imperial, Diaz and Concepcion, JJ., concur.Villa-Real, J., concurs.


Manila

EN BANC

G.R. No. L-17905 January 27, 1923

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee, vs.JUAN MORAN, FRUCTUOSO CANSINO, and HILARIO ODA, defendants-appellants.

Pedro Ma. Sison for appellants.Attorney-General Villa-Real for appellee.

ARAULLO, C. J.:

On March 31, 1922, the decision of this court in the present case, affirming the judgment of the Court of First Instance of Pangasinan, was published, but the term of imprisonment by the said court upon the accused, for a violation of the Election Law, defined and punished in section 2639 of the Administrative Code, was increased to six months from which judgment the present appeal was taken by the accused. The accused, after asking for a reconsideration of the said decision and a rehearing and pending the resolution on the said petition, filed a special motion on May 2d of this year, alleging that the crime complained of had prescribed under the provision of section 71 of Act No. 3030, enacted by the Legislature on March 9, 1922, and praying that they be absolved from the complaint. Upon this motion the Attorney-General was heard, having filed an answer and a supplemental answer, with the corresponding arguments, opposing the same, as well as the accused who filed their reply thereto and supplementary replies, both parties stating at length the reasons and legal grounds for their respective contentions.

While it is a rule of general application that unless the defense of prescription is pleaded in the trial court, it will be deemed to have been waived and cannot later be raised, yet this rule is not of absolute application in criminal cases, for if the prescription of the crime, as well as of the penalty whereby criminal responsibility is extinguished, may, as is the case here with regard to the former, be provided by statute after the termination of all the proceedings in the trial court, as well as in the appellate court, and when the case has already been submitted for discussion and is awaiting only the final judgment; and if the prescription of the crime is but the extinguishment of the right of the State to prosecute and punish the culprit, it is beyond question that, once the State has lost or waived such right, the accused may, at any stage of the proceeding, ask and move that the same be dismissed and that he be absolved from the complaint. And not only that, — the right to prosecute and punish the criminal having been lost by the prescription of the crime expressly provided by the statute, the State itself, the Government through the proper court, is in duty bound to make a pronouncement to that effect. Therefore, as on March 9th of this year, 1922, when Act No. 3030 went into effect, providing in its section 71 that offense resulting from the violations thereof shall prescribe one year after their commission, the accused and the Attorney-General had already filed their respective briefs in this court for the prosecution of the appeal taken from the judgment of the court below, and the hearing of the case had already been held, this court itself, without the necessity of any motion of the accused, or of the Attorney-General, should have declared the crime in question to have prescribed, in view of the provision of said section. Consequently, as this court had not up to that time made such pronouncement, the accused are perfectly justified in asking, as they have done in their motion of May 2d of this year, that the offense having prescribed, they be absolved from the complaint. This duty is imperative upon the courts of justice at any moment that the offense appears to have prescribed under the provision of the law. With particular reference to the present case, this conclusion is necessarily reached from the letter as well as the spirit of the provisions of the Penal Code relative to prescription, and from that of section 71 of the aforesaid Act No. 3030, for once the offense or the penalty has prescribed, the State has no right to prosecute the offender, or to punish him, and if he has already been punished, it has no right to continue holding him subject to its action by the imposition of the penalty. The plain precept contained in article 22 of the Penal Code, declaring the retroactivity of penal laws in so far as they are favorable to persons accused of a felony or misdemeanor, even if they may be serving sentence, would be useless and nugatory if the courts of justice were not under obligation to fulfill such duty, irrespective of whether or not the accused has applied for it, just as would also all provisions relating to the prescription of the crime and the penalty.

That such is the duty of the courts of justice and has been so recognized by this court, is shown by the decision in the case of United States vs. Rama, R. G. No. 16247,1 for the crime of murder of four persons, committed in the month of July, 1902, in the province of Cebu, in which one of the accused was sentenced by the Court of First Instance of the said province to death and the other two to life imprisonment. That case was brought to this court on appeal and, after the filing of the respective briefs of the accused and the Attorney-General a hearing was had. No allegations was made as to the prescription of the crime, yet this court rendered a decision (not yet published in the Official Gazette) wherein, after finding that two crimes of murder and two of homicide had been committed and that seventeen years had already elapsed from the commission of the latter to the institution of the judicial proceeding for the investigation and punishment thereof, that is, more than the fifteen years fixed by lay for the prescription of the crime of homicide, this court held that the said two crimes of homicide had prescribed and the criminal responsibility of the three accused for the said crimes extinguished, convicting the accused only of the two crimes of murder. There is, therefore, on reason whatsoever why the allegation of prescription made by the accused in their motion of the 2d of May of this year cannot legally be considered; on the contrary, said motion must be decided before the petition for the reconsideration of the decision published on

the 31st of March of last year, and for a rehearing of the case, or, to be more exact, the said petition must be ignored, for the resolution of the aforesaid motion, if favorable to the accused, would put an end to the proceeding right at its present stage.

The first question to be decided, in connection with the contention of the accused, is whether or not the prescription provided in section 71 of Act No. 3030 refers only to that Act and not to any other, for said section 71 says: "Offenses resulting from violations of this Act shall prescribe one year after their commission," and section 72 adds: "This Act shall take effect on its approval."

It is enough to take into consideration the fact that Act No. 3030, is, as its title indicates, amendatory to several sections and parts of sections of chapter 18 of the Administrative Code, known as the Election Law, and of chapter 65 on penalties for the violation of various administrative laws, among them, those of the Election Law itself, included in said chapter 18 of the Administrative Code, in order to understand that when the Legislature used the words "This Act," that is, Act No. 3030, it referred, necessarily, to the Election Law included in various sections and provisions of the aforesaid two chapters of the above-mentioned Code, that is, the Election Law prior to Act No. 3030, under which the herein accused were convicted. One needs but examine one by one all the sections of said Act No. 3030, each of which declares the sense in which each of the sections included in said chapters in amended, in order to convince himself that said Act No. 3030 is similar to the law that preceded it, with the amendments and some additions thereto. If the Legislature had passed and enacted a new Election Law different from that contained in the above-mentioned chapters of the Administrative Code, then it may be said that the phrase "This Act" can in no way refer to the prior Election Law. Furthermore, if the offenses resulting from the violations of the Election Law, the provisions of which are contained in the aforesaid chapters of the Administrative Code, are the same offenses provided for in Act No. 3030, though with some modifications in the details as to some of them and with increase in the penalty, it cannot be denied that when the Legislature used the words "This Act" in section 71 of Act No. 3030, wherein it is provided that said offenses shall prescribe one year after their commission, it necessarily referred to offenses resulting from the violations of the former Election Law, as amended by said Act No. 3030. Besides, one of the objects of this Act, as its title indicates, is to make more effective the provisions and the purposes of the former Law contained in the Administrative Code; so that Act No. 3030 rather than being an integral part of the former election law is in conjunction with the latter the only Election Law in force; and any other interpretation to the contrary of the phrase "This Act" cannot, in our opinion, be accepted as good logic and in accordance with the principles of sound reasoning.

It is true that in the next section, 72, it is provided that said Act No. 3030 shall take effect on the date of its approval, which took place on March 9, 1922, but the meaning of such an expression in connection with prescription is that prescription can be invoked from that date, as was done by the accused, and not that such provision may have a retroactive effect from that same date.

In this connection, there arises the second question as to whether or not the provision of article 22 of the Penal Code above cited, declaring the retroactivity of penal laws in so far as they are favorable to the defendant in a criminal action for a felony or misdemeanor, is applicable to crimes penalized by special laws, as does Act No. 3030, account being taken of the fact that, under article 7 of the Penal Code, offenses punishable under special laws are not subject to the provisions of the said code.

Several decisions have been rendered by this court on this question in which the distinguished members of this court hold opposite views. Among those may be cited the case of United States vs. Cuna (12 Phil., 241), which is cited in a later case, United States vs. Lao Lock Hing (14 Phil., 86), in which case this court did not lay down a definite rule, but expressly reserved its opinion as to whether or not article 22 of the Penal Code above referred to was applicable. And it was so recognized by the Supreme Court of the United States, in an appeal taken by writ of error by the accused, Ong Chang Wing (40 Phil., 1046), said high court having limited itself to declaring that the accused, not having been convicted by this court of an offense which was not punishable when committed, and this court having held only that the right to impose the penalty prescribed by the Penal Code of the Philippines had not been lost by the subsequent statute, Act No. 1757, of the Philippine Commission, the accused had not been denied due process of law, for as the Supreme Court of the United States says in its decision, the duty of that court in that case was to determine whether or not the judgment of this court amounted to a denial of due process of law. Therefore, the decision rendered in those two cases cannot be invoked in the one now before us.

In the case of United States vs. Lao Lock Hing (14 Phil., 86) and United States vs. Calaguas (14 Phil., 739), cited also in support of the contrary opinion, as the offenses therein involved were penalized by special laws, that is, by the Opium Law, in the former, and by the Law of Police and Railroad Preservation, in the latter, this court held, as it could not have done otherwise, that, under article 7 of the Penal Code, the provisions of the said Code were not applicable to those offenses, inasmuch as said offenses were penalized by the said law which prescribed a special and definite penalty for said offenses, but in those cases said article 7 of the Penal Code was not interpreted in connection with the application of article 22 of the same Code, providing for the retroactivity of penal laws favorable to persons accused of a felony or misdemeanor. Wherefore neither can the holding of this court in those cases have any application to the one before us.

The case in which this court plainly and definitely decided the question under consideration is that of United States vs. Parrone (24 Phil., 29). There the said accused was charged with the crime of falsification of a cedula certificate, definite and punished in section 55 of Act No. 1189 of the Philippine Commission, but before the conviction of the accused, said Act was amended by Act No. 2126 of the Philippine Legislature, which prescribed a lesser penalty than the previous Act, and this court, after a careful perusal of all its decisions dealing with that question, as above indicated, and a luminous and exhaustive discussion on the interpretation of article 7 of the same Code in connection with the retroactivity of the penalty, in so far as it is favorable to the accused, held, upon the appeal taken by the said accused from the judgment of the court below, that, under the provisions of article 22 of the Penal Code, the penalty provided in Act No. 2126, which was later than Act No. 1189, was the proper penalty to be imposed upon the accused in that case. In the course of that decision, the court said:

Considering the provision of article 7 of the Penal Code, are the provisions of article 22 of the same Code applicable to the penal laws of the Philippine Islands other than the provisions of the Penal Code? Article 22 is found in chapter 1 of title 3 of the Penal Code. Said chapter is entitled "Penalties in General". Article 21 of said title and chapter provides that "no felony or misdemeanor shall be punishable by any penalty notprescribed by law prior to its commission." This article is general in its provisions and in effect prohibits the Government from punishing any person for any felony or misdemeanor with any penalty which has not been prescribed by the law. It (art. 21), therefore, can have no application to any of the provisions of the Penal Code for the reason that for every felony or misdemeanor defined in the Penal Code a penalty has been prescribed.

The provisions of article 21 can only be invoked, therefore, when a person is being tried for a felony or a misdemeanor for which no penalty has been prescribed by law. Article 21 is not a penal provision. It neither defines a crime nor provides a punishment for one. It has simply announced the policy of the Government with reference to the punishment of alleged criminal acts. It is a guaranty to the citizen of the State that noact of his will be considered criminal until after the Government has made it so by law and has provided a penalty. It (art. 21) is a declaration that no person shall be subject to criminal prosecution for any act of his until after the State has defined the misdemeanor or crime and has fixed a penalty therefor. The doctrine announcement by this section has been considered of so much importance to the citizen of a State that many of the States of the Union have been pleased to include its precepts in their constitutions or have so declared by express provision of law.

Article 22 provides that "Penal laws shall have a retroactive effect in so far as they favor the person guilty of a felony or misdemeanor, although at the time of the publication of such laws a final sentence has been pronounced and the convict is serving same." This provision clearly has no direct application to the provisions of the Penal Code. Its (art. 22) application to the Penal Code can only be invoked where some former or subsequent law is under consideration. It must necessary relate (1) to penal laws existing prior to the Penal Code; or (2) to laws enacted subsequent to the Penal Code, in which the penalty was more favorable to the accused. Rule 80, Ley Provisional para la aplicacion de las disposiciones del Codigo Penal. Under the provisions of said article 22, if a crime had been committed prior to the date of the Penal Code the punishment for which was more favorable to the accused than the provisions of the Penal Code, it is believed that the accused might invoke the provisions of said article (22) even though he was not placed upon trial until after the Penal Code went into effect. (U. S. vs. Cuna 2). So also if by an amendment to the Penal Code or by a later special law the punishment for an act was made less severe than by the provisions of the Penal Code, then the accused person might invoke the provisions of said article. It appears to be clear, then, that article 22 of the Penal Code can only be invoked when the provisions of some other penal law than the provisions of the Penal Code are under consideration. In other words, the provisions of article 22 can only be invoked with reference to some other penal law. It has no application to the provisions of the Penal Code except in relation with some other law. It is not believed, therefore, that the Legislature in enacting article 7 of the Penal Code intended to provide that article 22 should not be applicable to special laws.

There can be no doubt whatsoever that such was the intention of the legislature, in view of the doctrine laid down by the supreme court of Spain, whose authority as regards the application and interpretation of the provisions of the Penal Code of the Philippines is unquestionable, because said Code is the same as that of Spain. In two cases (decisions of July 13, 1889 and April 26, 1892), among others decided by that court, in which article 22 of the Penal Code was alleged to have been violated by the imposition of the penalty of prison correccional prescribed by the said Code, instead of prison menor, prescribed by article 168 of the Election Law of August 30, 1870, upon the accused therein, who were found guilty of a violation of the said Election Law, which, was therefore, a special law in force prior to the said Penal Code of that same year, the said Code having substitute the penalty of prision correccional for that of prision menor, said court held that the appeal was not well taken on the ground that the penalty of prision correccional had taken the place of that of prision menor prescribed by the Election Law, and while the duration of both penalties was the same, the correctional penalty was lighter and more advantageous and favorable to the accused than prision menor, as it was of a less grave nature; so that in those two cases, the supreme court of Spain not only applied the provisions of the Penal Code to a special law, but also gave retroactive effect to said provisions on account of being more favorable to the therein accused, in accordance with the precept of article 22 of the Penal Code. And here we have a most complete, clear and satisfactory solution of whatever doubt might have arisen as to the interpretation of articles 7 and 22 of the Penal Code aforesaid.

It cannot be maintained that said article 22 of the Penal Code refers only to penalties and is not applicable to appeals and proceedings, because the prescription of the crime is intimately connected with that of the penalty, for the length of time fixed by the law for the prescription depends upon the gravity of the offense, as may be seen from Title VI of Book I of the Penal Code, containing, as its heading indicates, "General Provisions Regarding Felonies and Misdemeanors, the Persons Liable and the Penalties," without distinguishing between the penalties and the extinguishing of the criminal responsibility dealt with in said Title VI of said Book, which title comes next to Title V, treating of the penalties incurred by those who evade service of sentence and those who, while serving sentence, or after having been convicted by a final judgment not yet served, commit some other crime. And aside from this intimate connection between the prescription of the crime and that of the penalty, a statute declaring the prescription of the crime has no other object and purpose than to prevent or annul the prosecution of the offender and, in the last analysis, the imposition of the penalty. Moreover, if the provisions relative to the prescription of ownership and to the prescription of actions in civil matters are part of the civil law, it cannot be denied that the provisions relative to the prescription of crimes and of penalties are penal laws or form part thereof.

With regard to the question whether prescription must be considered as a matter of procedural or formal law, or as a substantive law for the purpose of the retroactivity of laws, we must state, with reference to the present case, that the prescription provided in section 71 of Act No. 3030 is of the nature both of a substantive law, in so far as it gives a person accused of any of the crimes therein referred to, the right not to be prosecuted nor punished after the lapse of the period of one year from the commission of said

crimes, within which the criminal action must be commenced, and of a procedural or adjective law in so far as it fixes the time within which such action must necessarily be commenced in order that the prosecution may be legal and the proper penalty may lawfully be imposed. but however said provision may be considered, the same must have a retroactive effect, as will be seen later on.

Therefore, as the instant case involves two special laws of the Philippine Legislature, to wit, the Election Law contained in the above-mentioned chapters of the Administrative Code, and Act No. 3030 which amended and modified the former, it is evident that the provision declaring that offenses resulting from the violations of said Act shall prescribe one year after their commission must have retroactive effect, the same being favorable to the accused.

This, however, is objected to, although it is based on a general principle frequently applied by many courts of the American Union, and in support of the objection, several decisions of the said courts and a doctrine concerning the matter found in Corpus Juris (volume 16, p. 222) and in Ruling Case Law are cited, wherein it is established that laws fixing a period of prescription are not applicable to crimes previously committed, unless by their terms they are clearly retroactive or contain an express provisions to that effect.

We need not discuss each and every one of the said cases, it being sufficient for our purpose to take up one of them, namely, that of Martin vs. State ([1859], 24 Tex., 62). There the Supreme Court of Texas held that as regards crimes and misdemeanors, prescription had no retroactive effect and that the Statute of Limitations enacted in 1854 could not have the effect of barring a criminal action instituted within two years after the enactment of said Act, provided that no period of prescription was fixed in a former law for the crime in question, that is to say, that prescription cannot be invoked as a bar to a criminal action for an offense like that of falsification involved in that case, where said action was commenced under a statute authorizing it and in the old law penalizing that crime no period was fixed for the prescription thereof. As can be seen from a reading of the context of the decision in the aforesaid case and the opinion of the writer thereof, said doctrine was announced without taking into account the difference between the rule governing prescription in criminal procedure and that applicable to civil actions, but on the contrary, application was made only of the latter; hence the holding that a special provisions as to prescription was necessary in the later statute to give it a retroactive effect.

It should be noted, however, that the Chief Justice of that Supreme Court voted vigorously against the said decision, stating in a well-reasoned dissenting opinion the following:

I . . . am of opinion, that the limitation prescribe to prosecution applies as well to prosecutions for offenses, committed before the passage of the statute, as afterwards; and that, as the words of the statute plainly import, the limitation commences to run from the time of the "commission of the offense," whether that was before or after its passage. The statute makes no distinction, as respects the limitation; it makes no exception, from its provision, of offenses previously committed; and I know of no principle, or rule of construction, which will authorize the court to engraft an exception upon the statute. It is a statute relating to the remedy, and being enacted for the benefit of persons accused, is not an ex post facto law. The constitutional inhibition of the enactment of retroactive laws, and laws impairing the obligation of contracts, has no application to penal statutes. Retroactive criminal laws, which are forbidden, are those which come under the denomination of ex post facto laws. There is nothing to prevent statutes, respecting crimes, from being restrospective, provided they do not come under that denomination.

It is an acknowledged general rule, in the construction of statutes, that they will not be construed to have a restrospective operation so as to destroy or impair rights of property, or of action, unless the legislature have plainly expressed such to be their intention. But laws which affect the remedy merely are not held to be within the rule or the inhibition against retrospective laws, unless the remedy be entirely taken away, or so restricted, as to impair the right. Nor, as I conceive, do statutes relating to the punishment of offenses come within the rule of construction, or the constitutional inhibition, though their effect should be wholly to defeat a prosecution. On the contrary, laws respecting crimes, whether they relate to the remedy merely, or to the offense, are, I think, always construed to relate to past, as well as future offenses, where their operation is in any wise beneficial to the accused; unless the legislature have plainly declared that they are not to receive such a construction. To give such effect to laws respecting crimes and punishments, is not to render them retrospective, or retroactive laws, in the sense of the constitutional inhibition. These terms have no application to such laws, but relate exclusively to laws affecting civil rights. (De Cordova vs. City of Galveston, 4 Tex., 470.)

I do not think the reservation contained in the 81st section of the act was intended to have, or should be construed to have, any effect upon the limitation contained in the 75th section. That section was intended only to prevent repeals by implication, and to enforce the observance of the rule, which would have applied on general principles, without its enactment, that where the act mitigates the punishment, the milder penalty should be imposed. To hold it to apply to the limitation prescribed for prosecution by the act, would be to except all offenses committed before the passage of the act, from the operation of the periods of limitation therein contained, and to hold that those offenses would never become barred under its provisions. I cannot think that such was the intention of the legislature.

There may be differences of opinion, respecting the policy of prescribing so short periods of limitation, to prosecution for high crimes. But that was a question for the law-making power; and I can see no reason why the legislature should have intended the limitation to apply to future, and not to pas, offense. The same reasons, and the same policy, which dictated that the prosecution should be commenced within a prescribed period, after the offense was committed, would seem to apply equally to offenses committed before, as to those committed after the passage of the statute.

Entertaining these views, I could not give my assent to the imposition of the pains and penalties of the law, where the prosecution had not been commenced until after the expiration of the time within which the legislature have positively enacted that the offense "shall be prosecuted," or be forever barred.

Furthermore, Mr. Wharton, cited in one paragraph of the said dissenting opinion, in his work entitled Criminal Pleading and Practice, 9th edition, 1889, says that, as a general rule, the laws of prescription of actions apply as well to crimes committed before the enactment, as afterwards, and speaking of the rule to be applied to the prescription of actions and the interpretation of the laws on that subject, he says in section 316, page 215, of said book the following:

We should at first observe that a mistake is sometimes made in applying to statute of limitation in criminal suits the construction that has been given to statutes of limitation in civil suits. The two classes of statutes, however, are essentially different. In civil suits the statute is interposed by the legislature as an impartial arbiter between two contending parties. In the construction of the statute, therefore, the is no intendment to be made in favor of either party. Neither grants the right to the other; there is therefore no grantor against whom the ordinary presumptions of construction are to be made. But it is otherwise when a statute of limitation is granted by the State. Here the State is the grantor, surrendering by act of grace its rights to prosecute, and declaring the offense to be no longer the subject of prosecution. The statute is not a statute of process, to be scantily and grudgingly applied, but an amnesty, declaring that after a certain time oblivion shall be cast over the offense; that the offender shall be at liberty to return to his country, and resume his immunities as a citizen; and that from henceforth he may cease to preserve the proofs of his innocence, for the proofs of his guilt are blotted out. Hence it is that statutes of limitation are to be liberally construed in favor of the defendant, not only because such liberality of construction belongs to all acts of amnesty and grace, but because the very existence of the statute is a recognition and notification by the legislature of the fact that time, while it gradually wears out proofs of innocence, has assigned to it fixed and positive periods in which it destroys proofs of guilt. Independently of these views, it must be remembered that delay in instituting prosecutions is not only productive of expense to the State, but of peril to public justice in the attenuation and distortion, even by mere natural lapse of memory, of testimony. It is the policy of the law that prosecutions should be prompt, and that statutes enforcing such promptitude should be vigorously maintained. They are not merely acts of grace, but checks imposed by the State upon itself, to exact vigilant activity from its subaltern, and to secure for criminal trials the best evidence that can be obtained.

But even if the rule generally and frequently applied by many courts of the American Union and the doctrine laid down by them were those announced in the above-mentioned paragraphs of the Corpus Juris and the Ruling Case Law, the precept of article 22 of the Penal Code being clear and unmistakable, according to which, penal laws have retroactive effect in so far as they are favorable to persons accused of a felony or misdemeanor, the courts of justice of these Islands cannot, and must not, make any application of the said rule and doctrine, but must, on the contrary, abide by the said precept and comply with it and carry it into effect, as hereinbefore stated, although no petition to that effect is made by the accused that may be favored by those laws. And a provision for the retroactivity of penal laws having, as it has, been made in the said article in the terms already mentioned, it is evidently that when the Philippine Legislature, the majority of whose members are also members of the Philippine Bar, and, therefore, were aware of this legal provision, drew section 71 of the Election Law, Act No. 3030, to the effect that the offenses resulting from the violations of the said law prescribe one year after their commission, it ought to have known that it was not necessary for it to say that said provision was to have retroactive effect in so far as it was favorable to the accused, inasmuch as such provision had already expressly been made in article 22 of the Penal Code, which was applicable not only to the prescription therein provided when the same might be favorable to persons accused of those crimes, but also to every penal law the retroactivity of which might be favorable to persons accused of a felony or misdemeanor. And, this is the best and most conclusive proof that in making the provision in section 71 aforecited, the Legislature intended that same be given a retroactive effect, because the members thereof could not ignore the law. From all of which it also necessarily follows that, if that doctrine established by many courts of the metropolis is to be applied in the instant case, it must be by saying that the same is useless or that it was complied with in so far as the giving of a retroactive effect to the said prescription was concerned, because that provision regarding retroactivity has already been expressly made in article 22 of the Penal Code, and, therefore, it is of no importance that in the former Election Law, that in, the amended law, no provisions was made regarding prescription to give immediate and full effect to the retroactivity provided in section 71 of Act No. 3030. The provisions of article 22 of the Penal Code, declaring the retroactivity of laws favorable to persons accused of a felony or misdemeanor, is to be deemed as if also expressly made in any new law at the time of its enactment, when said law is a penal law, or one of a penal character, such as the prescription contained in section 71 of Act No. 3030 here in question, which is of that nature, as above stated, and there is no necessity of making in that law any provisions to that same effect. And this is the reason why in the case of Pardo de Tavera vs. Garcia Valdez, one of the first cases in the Philippine Jurisprudence (1 Phil., 468) in which, the question, among others, was raised whether the defendant, who was accused of grave insult defined and punished in paragraph 1, article 458, of the Penal Code, should be punished under said article, or under the provisions of Act No. 277, which is the Libel Law and went into effect after the publication of the libelous article and the institution of the criminal action, the court held, as stated in the syllabus, that:

"The general rule that penal laws shall be retroactive in so far as they favor the accused has no application where the later law is expressly made inapplicable to pending actions or existing cause of action," which clearly means that in order for a penal statute favorable to the accused to have a retroactive effect, it is not necessary that it be so expressly provided in the statues, or, to put it in another way, that the provision declaring the retroactivity be repeated therein, but that if the Legislature intends it not to have a retroactive effect, it should expressly so state in the same statute. And the reason for it is obvious. For it being the general rule, according to article 22 of the Penal Code, that penal laws have retroactive effect in so far as they favor the accused, said general rule applies to all laws that may be enacted in the future, and if the Legislature intends to make an exception to the said rule, it should expressly say so.

Now, the eminent professor of International Law, Mr. Fiore, in his work on the Irretroactivity and Interpretation of Statutes, which is termed by various eminent jurists "a work full of juridical science," after recognizing as a rule universally accepted by the courts and expressly sanctioned by most of modern legislation that no penal law can have any retroactive effect, that is, that no action or omission shall be held to be a crime, nor its author punished, except by virtue of a law in force at the time the act was committed, advocates the retroactivity of a penal law favorable to the offender, not as a right of the latter, but founded on the very principles on which the right of the State to punish and the combination of the penalty are based, and regards it not as an exception based on political consideration, but as a rule founded on principles of strict justice.

The same author, on studying the question that may arise in case the new land should have changed the rules regarding prescription, that is to say, the retroactivity of the law as to prescription, says:

The modifications as to prescription introduced by the new law may affect the penal action or the penalty itself. With respect to the former, it can be imagined that the new law has modified the rules as to the applicability or inapplicability of the prescription to a given crime, or the necessary conditions for its effectiveness, or, finally, the time and period when it will have effect.

The authors who had studied this question have reached different conclusions, because some have considered prescription as a law of procedure or of form, while others have regarded it as a substantive law, thereby admitting, therefore, the principle of vested right on the part of the offender.

Those who have considered the statutes of limitations as of a formal or remedial nature have maintained the opinion that the new law must always be applied in all cases of prescription where the period was already running at the time of the enactment of the new law on the ground that all procedural laws must be deemed retroactive by nature. Against this theory, however, it has been said that even admitting the principle enunciated, the truth is that the culprit cannot be placed in a worse situation, as would be the case if that theory is adopted, for although the prescription begun under the former law, fixing a shorter period, might have been completed, he would be subject to criminal action under the new law prescribing a longer term, even if the provisions of the latter, concerning the substance of the penal action, were not in force at the time of the commission of the crime. Again, setting aside the theory of vested right on the part of the accused, as we have already done (for we cannot admit any vested right on the part of a private individual as against that which is considered by the sovereign power as indispensable for maintaining the juridical order), it can, however, be maintained that the application of the new law about the prescription of the criminal action, when said law has extended the time of the prescription, is tantamount to giving that penal law a retroactive effect, as regards the very substance of punishment, thus prejudicing the offender and admitting, as to him, a right to punish, which, on account of the longer period fixed in the new law, cannot be considered as based on any law in force and already promulgated at the time of the commission of the crime.

On the other hand, those who have considered prescription as a substantive law hold that the old law should always be applied, the principal reason adduced by them in support of this opinion being that the accused must at all events suffer the consequences of the situation created by himself by committing the crime. Against this opinion, it has been held, however, that the consideration of public policy, which naturally prevails in matters of prescription, constitutes an obstacle to the invariable application of the old law, for if the new law is less severe as regards prescription, the result would be that the culprit would be subject to the more severe law, which has been modified in harmony with the more modern criteria sanctioned by the new law as more in consonance with justice.

x x x x x x x x x

To our mind, in accordance with the principles underlying all the foregoing theories regarding the retroactivity of a less severe penal law, it must be admitted that also when the question is one of prescription must the new law be considered retroactive if it is more favorable to the accused than the former law, and that contrariwise it should not be so considered, if it is found to be more prejudicial. Although we are maintaining this opinion, we do not thereby accept the unjustified theory above set forth of those who believe that there must be admitted here the supposed vested right on the part of the offender, for we have already stated the reason why no such vested right can be recognized as against the penalty provided by law. On the contrary, we admit this theory, but founded on the principles of justice itself upon which the right to punish, considered as a supreme right of sovereignty, rests.

In fact, where the new law has shortened the time of prescription or established easier conditions for its effectiveness with respect to a given crime, it is clear that the reduction of the period made in the new law implies an acknowledgment on the part of the sovereign power that the greater severity of the provision of the former statute relative to the substance of the criminal action is unjust.

Consequently, if the sovereign power should enforce its right under the former law it would be guilty of an inconsistency in view of its implied admission that the old law was too severe and consequently unjust. The necessity therefore of applying the less severe new law rests upon the principle that the sovereign power cannot exercise its right to punish except only within those limits of justice which that sovereign power has established as being just and equitable at the time of exercising that right.

On the other hand, when the latter statute of limitations of criminal actions is more severe than the former, either as to the applicability of the prescription itself, or as to the requirements and duration of the action, the application of the said law to crime committed before its enactment must be avoided not because the culprit has acquired any right to prevent said application, but for the reasons above set out. Indeed, on what ground can the culprit pretend to prevent the sovereign power from doing what it has the right to do for the purpose of maintaining the juridical order? There exists, therefore, no reason in support of the theory of vested right on the part of the culprit, but what must inevitably be admitted is that the sovereign power cannot, without doing an injustice, apply the more severe legal provision in the matter of prescription; and that that provision cannot justly be applied unless it was previously promulgated, as even the right itself to punish cannot come into existence except by virtue of a law duly promulgated and in force at the time that it was violated and the crime committed. The more severe law in matter of prescription extends the field of criminal action and affects the substance of the same, because it determines the basis and the sphere of the right to punish. Now, can the sovereign power do all this without any law? Can it, without committing an injustice, extend the effect of the new law to acts committed before its enactment? As the sovereign power cannot punish any act not expressly penalized by a former law, nor punish with a more severe penalty any act performed before said penalty was prescribed and the law fixing it promulgated, so it cannot extend the criminal action (that is, its right to punish) by virtue of a later law by applying to acts completed before its promulgation the less favorable provisions therein made regarding prescription. In fact, in any case where reduction of the time of prescription formerly fixed is to be made under a new law, or where harder conditions are required by said law for effectively taking advantage of the prescription, the sovereign power is exercising the right to punish acts committed prior to the promulgation of the new law, and it is evident that no such right can be recognized in the sovereign power.

From all of the foregoing, we conclude that upon the very principles of justice, under which the less severe provisions of the new law must regulate all the elements of the criminal action, said less severe new law must also control the matter of prescription, provided that there is no final and irrevocable judgment, and this rule holds good even if the modifications of the statute have reference to the prescription of the penalty, because in substance the prescription of the penalty is equivalent to the prescription of the criminal action. (Fiore, pages 423-428.)

Wharton gives a clear explanation of the distinction to be made between the construction of prescription in criminal actions and that of prescription in civil case in the paragraph above quoted from his book, and the grounds for the distinction are also clear and are not unknown to anybody, for, as Wharton says, they are inherent in the origin and nature itself of the law of prescription, which must be liberally construed in favor of the accused for if prescription in criminal matters is, as said author says, a benefit, a grace granted by the State, and a waiver of its right to prosecute and an announcement that the crime is no longer the subject of prosecution, from the moment that the granting of that grace or benefit, or the making of such waiver, is known, the prosecution for the said crime and the punishment of the offender would be a juridical contradiction.

But the opinions discussed by Fiore in his book abovementioned are more in point, for he refers precisely to the prescription provided in a later statute the subject of which is the criminal action or the penalty, that is, the prescription of the crime, as is the case now before us, or the prescription of the penalty, whether prescription be regarded as a law of procedure or of form, or as substantive law.

After examining the different opinions of the writers on the matter, Fiore has come, as seen from the above quotation, to the conclusion that, whether the statute relative to prescription be considered as of a procedural or formal, or substantive, nature, the new statute must be applied if it is less severe or more favorable to the accused, but not if it is more prejudicial, notwithstanding the general rule that all procedural laws are retroactive in regard to prescription. In view of the special motion filed by the accused on May 2, 1922, it does not matter and it is of no importance, so far as the question herein raised is concerned, whether the provision contained in section 71 of Act No. 3030 be considered as of a substantive, procedural, or adjective character, because applying the principles above enunciated, the result is the same, and the more severe law in the matter of prescription extends, as Fiore says, the field of the criminal action and affects the very substance thereof, because it determines the basis and the sphere of the rights to punish.

It may, perhaps, be argued that no term having been fixed in the Election Law prior to Act No. 3030 for the prescription of the offenses resulting from the violations thereof, and said Act No. 3030 having fixed at one year the period for the prescription, the former law is more lenient, less severe, and more favorable to the persons accused of those offenses than the latter. Such an argument, however, is absolutely erroneous and untenable, if it is borne in mind that no period of prescription having been fixed in the former law, those offense were imprescriptible, and the offender could be prosecuted and punished at any time and indefinitely, even ten, twenty, or more years after the commission thereof, whereas the new law, that is, Act No. 3030 in providing the period of one year for the prescription, has, in effect, shortened the time of prescription fixed in the old law by virtue of the silence thereof, reducing it to one year and has established less difficult conditions for the application of the same as regards those offenses, which is evidently more favorable and lenient to the violators of the said former law, and, as Fiore says in one of the paragraph above quoted from his book, the reduction made by the new law implies a recognition on the part of the sovereign power that the greater severity of the former law, as regards the substance of the criminal action, is unjust, and it would contradict itself if it would attempt to enforce its right under the conditions of the former law which has already been regarded by the conscientious public opinion as juridically burdensome, and, therefore, unjust, and the sovereign power cannot exercise the right to punish except within the limits regarded by it as just at the time of exercising it.

If, therefore, in reviewing the former Election Law contained in the two chapters of the Administrative Code hereinbefore mentioned, for the purpose of amending and reforming it in accordance with the dictates of reason, justice and experience, the Legislature did amend and reform it by the enactment of Act No. 3030, which supplied the deficiency found in the old law with regard to the prescription of the crimes penalized therein, by providing in section 71 of Act No. 3030 that those crimes, which year after their

commission, because their imprescriptibility was considered by the conscientious public opinion as juridically burdensome, and, therefore, unjust, it is evident that the State, the Government and the courts of justice representing it, cannot, without committing a gross injustice, exercise the right to prosecute and punish the violator of the old law under the conditions required by the law and outside of the limits now regarded by the sovereign power, that is to say, the Legislature, as just by the enactment of said Act No. 3030, which took effect on March 9, 1922. And such injustice would be more apparent still, if the violators of the old Election Law, which was amended by Act No. 3030, would be prosecuted and convicted five, ten, twenty, or more years after the said violations when the proof of their innocence may not have been kept by them, while violators of Act No. 3030, who may not have been prosecuted within the one year fixed by section 71 aforesaid, would be free from being prosecuted and punished for the crimes committed by them. And this injustice, which is so contrary to conscientious public opinion and repugnant to humane sentiments, would necessarily result, if the provisions of section 71 of Act No. 3030, which is now in force, are not immediately applied right at this stage of the case in favor of the herein accused, by taking up first the special motion of the accused filed on May 2d of this year, before the petition for reconsideration and re-hearing hereinbefore mentioned, or, better, by ignoring the said petition and disposing of the case by deciding the motion of May 2d, wherein the accused invoked the prescription provided in the said section, for the reason that this action was commenced on December 20, 1920, one year and a half after the commission of the offense resulting from the violation of the Election Law with which they are charged.

In view of the foregoing, we find the said crime to have prescribed, and setting aside the decision of this court published on the 31st of March of this year, the present action is dismissed with all the costs de oficio, and the bond given by the accused for their provisional release is cancelled, which release is hereby declared final. So ordered.

Street, Avanceña, Villamor, and Romualdez, JJ., concur.

MALCOLM, J., with whom concur JOHNSON and JOHNS, JJ., dissenting:

The high respect which I entertain for the authors of the majority opinions in the cases of People vs. Moran and People vs. Parel,1 should not, of course, keep me silent when I am strongly of the opinion that judgments grounded in a mistaken view of the law are being handed down. My desire to state clearly and bluntly my dissent from the majority opinions is only bounded by the paucity of the English language in which to express myself. According to my view, as will hereafter be demonstrated, the majority decisions discuss questions which need no discussion, do violence to plain provisions of the law, take stands sup-ported by no authority which can be discovered, and attain the result of effectuating a general jait delivery of crim-inals who had thwarted the people's will during the elec-tions in 1919.

An introductory and pertinent inquiry can well be, what is the effect of the majority decisions?

Juan Moran, Fructuoso Cansino, and Hilario Oda, election inspectors of the first precinct of the municipality of Bina-lonan, Pangasinan, were found guilty by Judge of First Instance Nepomuceno and again on appeal by the Supreme Court, with the sole modification that the penalty was increased, of having falsified election returns.-But Moran, Cansino, and Oda will now never enter the portals of prison.

Raymundo, Verceles, election inspector of the fifth pre-cinct of the municipality of Binalonan, Pangasinan, was found guilty by Judge of First Instance Nepomuceno, and again on appeal by the Supreme Court, with the sole modifi-cation that the penalty was increased, of having falsified election returns, and is now serving his sentence.-Verceles will now be liberated.

Norberto Parel and Daniel Paz, election inspectors of the second precinct of the municipality of Bantay, Ilocos Sur, were found guilty by Judge of First Instance Jaranilla, of having unlawfully written the ballots of illiterate persons, with the result that following the trial in an election contest, the protestant was declared elected.-But though the two cases are on the calendar, the motion to dismiss being granted, the question of the guilt or innocence of Parel and Paz will never be determined by the appellate court.

Andres Imzon, chief of police of the municipality of San Pedro, Laguna, was charged in the Court of First Instance of Laguna, with having unlawfully intervened in the elec-tions of 1919, by soliciting votes in the election booths and exchanging ballots previously prepared by him with those received by the electors from the election board; Claudio de Leon and Alejandro Cailao, election inspectors of the second precinct of the municipality of Bay, Laguna, were charged with having seized and destroyed fifty official ballots already filled in by different persons; and Alejandro Cailao, election inspector of the second precinct of the municipality of Bay, Laguna, was charged with having abstracted four official ballots duly filled in from the ballot box and having delivered them to Julian Carrillo, a can-didate for municipal president.-But Imzon, De Leon, Cai-lao, and Carrillo will never have these serious charges resolved by the courts of justice.

Francisco Hutalla, Jacinto Alfajora, and Hermogenes Orijuela, election inspectors in the first precinct of Maca-lelon, Tayabas, and Francisco Catarroja, election inspector in the second precinct of the same municipality, were charged with various unlawful acts intended to secure a victory for.Demetrio Pandeno, their candidate for munic-ipal president.-But Hutalla, Alfajora, Orijuela, and Cata-rroja, will now have this record stand without any judicial decision as to their guilt or innocence.

Mariano Quilona, Bartolome Severe, and Matias Operario, election inspectors of the municipality of San Julian, Samar, were found guilty by Judge of First Instance Capistrano of having falsified the election returns.-But though the guilt of Quiloiia, Severe, and Operario is clearly apparent, the appeal in this court cannot go forward and they are absolved from the criminal charges.

Liberate Exaltacion, municipal president of Meycawayan, Bulacan, was convicted of having extracted ballots from the urn used in Meycawayan, and was sentenced by Judge of First Instance Jocson to three months' imprisonment, and to pay a fine of f*125.-But Exaltacion, although thus found guilty by a judge of long experience, of a most serious crime, will now be exonerated.

Cesareo Navarrete, Ambrosio Diapo, Luciano Nabaira, Eugenio Nabor, Apolonio Castro, Mamerto Navarra, Esta-nislao Nabor, Tolomeo Segovia, Aproniano Navarrete, Hipolito Nalangan, Ricardo Nahil, and Severino Nalangan, residents of the municipality of Libacao, Capiz, were found guilty by Judge of First Instance Salas of having provoked such tumult and confusion in and about the second election precinct of the municipality of Libacao, that the election inspectors and policemen were prevented from performing their respective duties, and of having seized the ballot boxes and other election effects, thus frustrating th'e election in that precinct.-But all these twelve persons found guilty by the trial court, and guilty, also, as we read the record, will escape the penalties of the law.

Twelve (12) cases pending in this court relating to thirty (30) defendants are thus seen to involve the retroactivity of section 71 of Act No. 3030. According to the revised figures reported by the Attorney-General, the outcome of at least twenty (20) cases in courts of first instance relating to sixty-one (61) defendants likewise depend on our deci-sion on this question. All told, thirty-two (82) cases and ninety-one (91) defendants. Quite a respectable jail de-livery.

The point next in logical order, to which I would address attention, is whether the question of the retroactivity of Act No. 3030 is properly and legally before the court.

The status of the Moran case is of particular interest. Recall-Appeal perfected and four errors assigned, but naturally not including the point of prescription under Act No. 3030, for the very good reason that the Act was not yet on the statute books. Act No. 3030 enacted and effective on March 9, 1922. Case submitted, and judgment of Supreme Court rendered on March 31, 1922. Motion of reconsideration filed by the attorney for the appellants, within the regular fifteen-day period, based on two counts, but again not including the point of prescription, although Act No. 3030 was then in force. Not until May 2, 1922, that is, not until two months after judgment was rendered, when a third motion, which the Chief Justice is pleased to call a "special motion," was presented, was the contention made that the alleged crime had prescribed in accordance with section 71 of Act No. 3030.

The Chief Justice finds no difficulty in surmounting these obstacles, although the constant practice of the court has been not to allow new and original questions to be presented for the first time on a motion for rehearing; although the court has consistently required that all arguments be ad-vanced in one motion of reconsideration, and although the Rules of the Court are explicit and mandatory, when they provide that "judgment shall not be entered until ten days after * * * publication," that "five days after entry of judgment the clerk shall remand the case to the lower court," and that "applications for a rehearing shall be filed within fifteen days after the publication of the decision of the court." (Note U. S. vs. Serapio [1912], 3 Phil., 584; Lucido and Lucido vs. Vita [1911], 20 Phil., 449; Espidol vs. Espidol and Espidol [1913], 25 Phil., 4; Rules of the Supreme Court of the Philippines, 33, 34, 35; 4 C. J., pp. 629, 642.)

Conceding, however, that as to all these preliminary mat-ters the majority are right, and I am wrong, I am yet ready to meet them on their own ground and am prepared to prove that the provisions of section 71 of Act No. 3030 approved March 9, 1922, providing that "Offenses resulting from violations of this Act shall prescribe one year after their commission," should not, and cannot be given retro-active effect, if the law is to be followed and justice is to be done. The importance of the subject will serve as an apol-ogy for a lengthy and serious consideration of the question above stated.

Act No. 3030 of the Philippine Legislature is entitled, "An Act to amend certain sections and parts of sections of chapter eighteen, known as the Election Law, and chapter sixty-five, on penalties for violations of certain administra-tive laws, of Act Numbered Twenty-seven hundred and eleven, entitled 'An Act amending the Administrative Code/ to make more effective the provisions and purposes of said Election Law, and for other purposes." The first seventy sections of Act No. 3030 amend specifically named sections of the Administrative Code "to read as follows." Then follows section 71 above quoted. The Act concludes with section 72 reading: "This Act shall take effect on its approval." The Act was approved on March 9, 1922.

The first duty of the courts is to apply the law. The last duty of the courts is to interpret or construe the law. When, therefore, the Philippine Legislature said that "Offenses resulting from violations of this Act shall pre-scribe one year after their commission," it meant exactly what it said, and the only duty of the court is to make effective the legislative language. "This Act" could mean only Act No. 3030. Judicial interpretation or construction are consequently impertinent and offensive in the face of the plain words used by the Legislature.

It has, however, been suggested, that "this Act" means "the Election Law as amended." Even if this proposition be conceded, yet it remains true that the amendatory Act will not be given a retrospective construction; the new provisions are to be understood as enacted at the time the amended act takes effect. (36 Cyc., 1223.) In this instance section 72 says that "This Act (No. 3030) shall take effect on its approval"-on March 9, 1922.

It should be observed in relation to what has just been said with regard to the appropriateness of merely applying the law, that there is nothing in section 71, or in any other section of Act No. 3030, which would authorize a retrospec-tive construction. Not one word which even squints at a retroactive effect can be found in Act No. 3030. If the Philippine Legislature had intended that Act No. 3030 should apply to pending cases, it could easily have used language to this effect; as for example, "Offenses heretofore committed," etc. Not having done so, the courts cannot write such words into the law without usurping legislative prerogatives.

It is a cardinal rule of statutory construction, so elemen-tary that I hesitate to repeat it, that if the courts find it impossible to apply the law, then their duty is to ascertain and give effect to the intention of the law-making body. Here, the intention of the Philippine Legislature is self--evident. The various sections of Act No. 3030 were care-fully drafted to close up the loopholes in the old Election Law and to provide more severe penalties. The purpose of the Legislature, as announced in the title of the law, is, in part, "to make more effective the provisions and purposes of said Election Law." It would be a, strange interpretation indeed, which would attain the result, in a law of this character, of liberating criminals convicted at the time the law went into effect, when the Legislature intended to provide more effectively for cleaner elections.

With strong reluctance, therefore, am I led away from the firm ground on which my feet are planted, when we simply apply the law and effectuate legislative intention, to follow strange and treacherous.bypaths. That I do so is because of the energy with which these arguments have been pressed by counsel and out of respect to the point of -view of colleagues in the Court.

The majority say that "Both consistency and sound legal principle^, * * * demand that we, in this case, seek our precedents in Latin rather than in American jurispru-dence." I had thought that the Philippines was under American sovereignty and that the Election Law was an American importation. But apparently I have been mis-taken. As, however, the majority with "consistency" cite Wharton, an American authority, possibly, also, I may be pardoned if I use the same authority and give some promi-nence to the American precedents.

Mr. Wharton, in his treatise on Criminal Pleading and Practice (9th ed., 1889) announces the following doctrine: "As a rule, statutes of limitation apply to offences perpe-trated before the passage of the-statute as well as to sub-sequent offences."' (P. 219.) The. cases cited in support of the text are found on examination to be early Federal cases relating to the 32d section of the Act of Congress of April 30, 1790. The contention there denied was "that an act of limitations to criminal prosecutions can only be used as a bar in cases declared by law to be criminal at the time the act of limitations was passed, unless there be express words extending it to crimes to be created in fu-ture." (See Adams vs. Woods [1805], 2 Cranch, 336.)

Corpus Juris (published in 1918), which the majority decisions avoid mentioning, is authority for a different statement of the rule, under the subject "Limitation of Prosecutions in Criminal Cases," namely: "Such statutes are to be given a reasonably strict construction in favor of accused and against the prosecution. By the weight of authority, however, they do not apply to crimes previously committed, unless clearly retrospective in their terms." (16 C. J., 222.) The cases in support of the last sentence are the following: People vs. Lord ([1877], 12 Hun. [N. Y.L 282), and Martinis. State ([1859], 24 Tex., 62).. Contra, Commonwealth vs. Hutchinson ([1850], 2 Pars. Eq. Gas. [Pa.], 453, 1 Phila., 77).

The New York case cited is not available in our library. In a standard treatise, Wood on Limitations, special refer-ence is, however, made to it. It is said: "In New York such statutes are held not to apply to crimes committed before the statute was changed, unless expressly included therein, adopting the rule in that respect applicable In civil cases." (Wood on Limitations, 3d ed., p. 45.)

In the second case cited in the note to Corpus Juris, Martin vs. State, the Supreme Court of Texas held: "Stat-utes of limitations for the prosecution of crimes and mis-demeanors, do not have a retrospective operation. * * * The statute of limitations passed in 1854 could not operate as a bar to a prosecution commenced within two years from the time that statute went into operation, there being no previous limitation to the prosecution of the offense in question." The Chief Justice rendered a dissenting opinion, which is now made one of the props of the opinion of our Chief Justice.

The same result was obtained in decisions coming from Massachusetts. (Commonwealth vs. Boston and Worcester Railroad Corporation [1853], XI Gush. [Mass.], 512; and Commonwealth vs. Homer [1891], 153 Mass., 343.) In the first Massachusetts case it was held that an indictment against a railroad company under St. 1840, c. 80, for negli-gently causing the death of a passenger, is not within Rev. Sts. c 120, sec. 21, limiting actions and suits for any penalty, or forfeiture, to one year after the offense is committed, for the reason that St. 1853, c. 414, sec. 3, does not apply Jo indictments pending at the time of its passage. In the second Massachusetts case, it was held that the Statute of 389, c. 100, providing that in a criminal prosecution on the Pub. Sts. c. 207, sec. 9, for attempting to procure a mis-carriage, the dying declaration of the woman shall be ad-missible in evidence, if her death is alleged to have been the result thereof, is prospective only in its operation, and does not apply to an indictment found after its passage for' such an offense theretofore committed. The court followed the language of another case, namely:

"'The statute is equivocal and ambiguous in its terms, and might without doing violence to the words in which it is expressed be construed as retroactive. But such is by no means its necessary interpretation. On the contrary, it willhave full meaning and effect, consistent with the fair import of its language, if it is held to be prospective only. The true rule of interpretation applicable to such enactments is well settled, and has been often recognized and affirmed by this court. It is, that all statutes are to be considered as prospective, and are not to be held to prejudice or affect the past transactions of the subject, unless such intention is clearly and unequivocally expressed. (Whitman vs. Hapgood, 10 Mass., 439; King vs.'Tirrell, 2 Gray, 331; Gerry vs. Stoneham, 1 Allen, 319, 323; Garfteld vs. Bemis, 2 Allen, 446.) No good reason can be given for excepting the statute under consideration from the operation of this wise and salutary rule.' There is no express intention to make the St. of 1889, c. 100, retroactive in its operation,

and none can be implied from the subject-matter; it will have full effect if construed as prospective only, and, in the opin-ion of a majority of the court, it must be so construed."

The following was the holding of the Supreme Court of Pennsylvania in the case of Commonwealth vs. Duffy [1880], 96 Pa. St., 506):

"An act of limitation is an act of grace purely on th& part of the legislature, and especially is this the case in the matter of criminal prosecutions. The state makes no con-tract with criminals, at the time of the passage of an act of limitations, that they shall have immunity from punishment if not prosecuted within the statutory period. Such enact-ments are measures of public policy only. They are entirely subject to the mere will of the legislative power, and may be changed or repealed altogether as that power may sec fit to declare. When a right to acquittal has not been absolutely acquired by the completion of the period of limita-tion, that period is subject to enlargement or repeal without bemg obnoxious to the constitutional prohibition against ex post facto laws." (See also Thompson vs. State [1877], 74 Miss., 740, and Moore vs. State [1881], 43 N. J. L., 203.)

With the exception of the Philadelphia city case, which cannot be found in the Philippines, all other courts which have given consideration to the subject have refused to give retroactive effect to statutes establishing limitations of actions in criminal cases, and have, we think, with all propriety, adopted the rule in civil cases pertaining to limitations of actions.

A rule as old as law itself is that statutes ought to be construed to be prospective, and not retrospective, in opera-tion. Laws look forward and not backward. Nova cons-titutio futuris formam imponere debet, non praeteritis. This rule is applicable to statutes of limitation, unless by express command, or by necessary and unavoidable impli-cation, a different construction is required. It has been held that the rule for the construction of statutes of limita-tions, with respect to their operation as being retroactive or not, requires such statutes (whether new, reenacted or amended), to be given a wholly prospective effect, that is, to commence running with respect to a particular cause of action from the time when the cause is subjected to the operation of the act, so that the party may have the full period prescribed thereby, unless it clearly appears that the legislature intended the act to operate on existing causes, so as to commence running from the time any such cause accrued. (Thomas vs. Higgs & Calderwood [1910], 68 W. Va., 152, Ann. Cas.,.1912A, 1039; Hathaway vs. Mer-chants' Loan and Trust Co. [1905], 218 III., 580; 4 Ann. oGas., 164; Moore vs. State [1881], 43 N. J. L., 203; Herrick vs. Boquillas Land & Cattle Co. [1906], 200 U. S., 96, 102; U. S. Fidelity etc. Co. vs. Struthers Wells Co., [1907], 209 U. S., 806.)

Ruling Case Law summarizes the principles governing the construction of limitation laws as follows:

"One rule for the construction of laws is that statutes of limitation are presumed to be prospective and not retro-spective in their operation, in the absence of a clear legis-lative intent to the contrary, and the presumption is against any intent on the part of the legislature to make such statute retroactive. It has been said that words of a statute ought not to have a retrospective operation unless they are so clear, strong, and imperative that no other meaning can be annexed to them, or unless the intention of the legislature cannot be otherwise satisfied. *. * * Some courts take the view that since limitation laws apply only to the remedy, they are not within the principle that statutes should be given a prospective rather than a retrospective construction, and therefore that they should be construed as retrospective unless they contain no language clearly limiting their appli-cation to causes of action arising in the future. But it has also been pointed out that even statutes as to procedure are not necessarily retrospective in their operation and the courts are not compelled to construe as retrospective a limitation law dealing with procedure only." (17 R. C. L., 682-684.)

"While it is undoubtedly within the power of the legis-lature to pass a statute of limitations or to change the period of limitation previously fixed and to make such statute or changes applicable to existing causes of action, provided a reasonable time is given by the new law for the commence-ment of suit before the bar takes effect, yet such a statute is not to be readily construed as having a retroactive effect, but is generally deemed to apply merely to causes of action arising subsequent to its enactment, and the presumption is against any intent on the part of the legislature to make the statute retroactive. The statute will only be given a retroactive effect when it was clearly the intention of the legislature that it should so operate." (25 R. C. L., 792, 793.)

One of the cases cited in support of the general rule, and oft followed by other courts, is United States Fidelity etc. Company vs. Struthers Wells Co., supra. In the course of the opinion of the United States Supreme Court, it was said:

"There are certain principles which have been adhered to with great strictness by the courts in relation to the construction of statutes, as to whether they are or are not retroactive in their effect. The presumption is very strong that a statute was not meant to act retrospectively, and it ought never to receive such a construction if it is suscep-tible of any other. It ought not to receive such a construc-tion unless the words used are so clear, strong, and imperative that no other meaning can be annexed to them or unless the intention^ of the legislature cannot be otherwise satisfied. (Dash vs. Van Kleeck, 7 Johns., 477, 499; Jack-son ex dem Hicks vs. Van Zandt, 12 Johns, 169; United States vs. Heth, 3 Cranch, 399, 414; Southwestern Coal & Improv. Co. vs. McBride, 185 U. S., 499, 503; United States vs. American Sugar Ref. Co., 202 U. S., 563, 577.)

"The language of the amended act is prospective, as it provides 'that hereafter any person or persons entering into a formal contract with the United States/ etc. That language standing alone would leave little doubt as to the intention of Congress in the matter of the taking effect of the amendment.

"It is urged, however, that as the amendment in this respect but reiterates the language of the original act, the use of the word 'hereafter' in the commencement of the amendment ought not to have the significance which would >therwise attach to it, because it is simply in this particular reenacting the law as it already stood.

"There is considerable force in the suggestion that the word 'hereafter' is not to receive the weight which in other circumstances it ought to have. The question is, however, one as to the intention of Congress, and when we come to took at the provisions of the statute, as amended, we are convinced that Congress did not intend that the amendment should apply to cases where the bond had already been executed, the work done, the respective rights of the parties settled, and the cause of action already in existence. If Congress had intended otherwise, we think it would have still further amended the original act by providing in plain language that the amendment should apply to all cases, and not be confined to the future. * * *

"Viewing the whole section, we think Congress meant that only in future cases should the provisions of the amend-ment apply, although some trifling portion of those provi-sions might be regarded, technically, as in the nature of procedure. It is therefore wiser to hold the entire section governed by the usual rule and as applying only to the future."lävvphì1·né+

It is, however, insisted with marked earnestness, that notwithstanding the simple and plain provisions of section 71 of Act No. 3030, and the almost universal rule adopted by the American courts, we are in duty bound to apply the provisions of the Spanish Penal Code.

Article 7 of the Penal Code reads: "Offenses punishable under special laws are not subject to the provisions of this Code." In the decision of the Supreme Court of the Phil-ippines, in which most elaborate consideration was given to article 7 of the Penal Code, the rule adopted was: "That, when a crime is made punishable by a law other than by the provisions of the Penal Code, the provisions of said code do not apply." Following Viada in his commentaries on the Penal Code (1 Viada, 84), it was also pointed out that among the special laws are election laws. (U. S. vs. Se-rapio [1912], 23 Phil., 584, 592, 593.) The majority de-cisions are strangely silent as to the decision last cited.

Paraphrasing article 7 of the Penal Code as construed by this court: As offenses are made punishable by Act No. 3030, a special lawt the provisions of the Penal Code do not apply. But it is said that article 7 should be interpreted with reference to other articles of the Penal Code, and I concede that this is a fair argument.

Article 22 of the Penal Code is found in Title III, which is headed, "Penalties." Chapter I of Title III is entitled "Penalties in General." Only passing reference is made to the epigraphy, in order to concede everything possible to the argument of the petitioner in this case. Coming then to a consideration of the substance of article 22 of the Penal Code, its effect can best be judged by setting it side by side with article 3 of the Civil Code, since both articles have been given indiscriminate application to criminal laws. These two provisions of Philippine law read as follows:

"ART. 22. Penal laws shall have a retroactive effect in so far as they favor the per-son guilty of a felony or misdemeanor, although at the time of the publication of such laws a final sentence has been pronounced and the convict is serving same."

"ART. 3. Laws shall not have a retroactive effect un-less therein otherwise pro-vided,"lävvphì1·né+

Article 3 of the Civil Code, given express application to criminal laws in the case of United States vs. Cuna ([1908], 12 Phil, 241), bears out the general doctrine previously announced. Article 22, on the other hand, is of an opposite tenor, and if given controlling effect, might lead to a contrary result. The first two words of article 22 are "Penal laws." What is meant by the term "Penal laws?" Is section 71 of Act No. 3030 a "penal law?"

I feel that I can, with all propriety, turn to the definition of "penal law" given by the American authorities, not only because there are numerous judicial definitions of the phrase available, but because the Election Law, establishing the Australian Ballot System, is primarily an American innovation, which was unknown in Spain when the Penal Code of 1870 was promulgated.

"PenaUaws," all of the English and American decisions state, strictly and properly are those imposing punishment an offense committed against the state, and which, by the English and American constitutions, the executive of the state has the power to pardon. In other words, a penal law denotes punishment imposed and enforced by the state for a crime or offense against its law. It would be palpably incongruous to call a statute penal which did not contain a definite and certain provision for punishment. On the other hand, a statute which gives a remedy for an injury belongs to the class of remedial statutes, and not to that of penal statutes. (Huntington vs. Attrill [1892], 146 U. S., 657; Whitman vs. National Bank of Oxford [1900], 176 U. S., 559; Shick vs. United States [1904], 195 U. S., 65; The Antelope [1825], 10 Wheat., 66, 123; United States vs. Reisinger [1888], 128 U. S., 398, 402; Davis vs. Mills [1903], 121 Fed., 703, 704; United States vs. Illinois Cent. R. Co. [1907], 156 Fed., 182, 185; United States vs. Four Hundred and Twenty Dollars [1908], 162 Fed., 803, 805; Ross vs. New England Mortg. Security Co. [1893], 101 Ala., 362; Nebraska Nat. Bank vs. Walsh [1900], 68 Ark., 433; Levy vs. Superior Court [1895], 105 CaL, 600; Plumb vs. Griffin [1901], 74 Conn., 132; Mitchell vs. Hotchkiss [1880], 48 Conn., 9, 19; Southern Ry. Co. vs. Melton [1909], 133 Ga., 277; Woolverton vs. Taylor [1890], 132 111,, 197; Diversey vs. Smith [1882], 103 III., 378, 390; American Credit-Indemnity Co. vs. Ellis [1901], 156 Ind., 212; State vs. Hardman [1896], 16 Ind. App., 357; Lagler vs. Bye [1896], 42 Ind. App., 592; Sackett vs. Sackett [1829], 25 Mass., 309, 320; Cary vs. Schmeltz [1909], 141 Mo. App., 570; Casey vs. St. Louis Transit Co. [1905], 116 Mo. App., 235; State ex rel Rodes vs. Warner [1906], 197 Mo., 650; Manhattan Trust Co. vs. Davis [1899], 23 Mont., 273; Globe Pub. Co. vs. State Bank [1894], 41 Neb., 175; Boice vs. Gibbons [1826], 8 N. J. Law, 324, 330; Hutchinson vs. Young [1903], 80 N. Y. S., 259; People vs. Wells [1900], 65 N. Y.

S., 319; Smith vs. Colson [1912], 31 Okl., 703; Kiltoh vs. Providence Tool Co. [1905], 22 R. I., 605; Ayls-worth vs. Curtis [1896], 19 R. I., 517; Whitlow vs. Nash-ville, C. & St. L. R. Co. [1904], 114 Tenn., 344; Drew vs. Russel [1875], 47 Vt, 250, 253; Norfolk & W. R. Co. vs. Hall [1897], 44 W. Va, 36.)

Escriche, Diccionario Razonado de Legislacidn y Juris-prudencia (vol. Ill, p. 898), defines "ley penal," the Spanish equivalent of "penal law," as follows: "Ley penal es la que tiene por objeto algun delito y la pena con que ha de cas-tigarse." Diccionario Encidopedico de la Lengua Caste-liana defines "penal" thus: "Perteneciente o relativo a la pena o que la incluye;"-and "pena" thus: "Castigo im-puesto por superior legitimo al que ha cometido un delito o falta."

The first instance in which our Supreme Court gave con-sideration to article 22 of the Penal Code, was in the case Jof Pardo de Tavera vs. Garcia Valdez ([1902], 1 Phil, 468), The Chief Justice, in his decision, relies on the syllabus which, of course, is the statement of the reporter and not of the court. I prefer to go to the opinion, wherein it was said:

"Section 13 of the same act provides as follows: 'All laws and parts of laws now in force, so far as the same may be in conflict herewith, are hereby repealed: Provided, That nothing herein contained shall operate as a repeal of exist-ing laws in so far as they are applicable to pending actions or existing causes of action, but as to such causes of action or pending actions existing laws shall remain in full force and effect/ This act went into effect October 24, 1901, subsequent to the publication of the article in question, and during the pendency of the prosecution. By article 22 of the Penal Code 'Penal laws shall have a retroactive effect in so far as they favor the person guilty of a crime or mis-demeanor/ etc. The court below in fixing the punishment proceeded upon the theory that by the operation of this general rule the penalty prescribed in the Penal Code for the offense in question was necessarily modified and could not be inflicted in its full extension. In so doing we think the court overlooked or improperly construed the proviso in the section of Act No. 277, above cited, by virtue of which the previously existing law on the subject covered by the act is left intact in all its parts as respects pending actions or existing causes of action. The language is gpu-eral and embraces, we think, all actions, whether civil, criminal, or of a mixed character. In this view of the case we have no occasion to consider the question argued by coun-sel for the private prosecutor as to whether the provisions of Act No. 277 respecting the penalty are more favorable to the accused than those of the former law or otherwise. The punishment must be determined exclusively by the provisions of the former law."

The case of United States vs. Hocbo ([1908], 12 Phil, 304) oft mentioned by Mr. Justice Ostrand, merely holds that (I now quote from the body of the decision), "All amendments of the law (meaning the Penal Code) which are beneficial to the defendant, shall be given a retroactive effect, in so far as they favor the person charged with the crime or misdemeanor. * * * We find nothing in Act No. 1773 which is more favorable to the defendant than the provisions of the Penal Code."

The case of United States vs. Parrone ([1913], 24 Phil, 29), gave special attention to the relative effect of articles 7 and 22 of the Penal Code. It was said that "Article 22 must necessarily relate (1) to penal laws existing prior to the Penal Code, in which the penalty was less severe than those of the Penal Code; or (2) to laws enacted subsequent to the Penal Code, in which the penalty was more favorable to the accused. Rule 80, Ley Provisional para la aplica-cion de las disposiciones del Codigo Penal. Under the pro-. visions of said article 22, if a crime had been committed prior to the date of the Penal Code the punishment for which was more favorable to the accused than the provisions of the Penal Code, it is believed that the accused might invoke the provisions of said article (22) even though he was not placed upon trial until after the Penal Code went into effect. (U. S. vs. Cuna [1908], 12 Phil., 241.) So also if by an amendment to the Penal Code or by a later special law the punishment for an act was made less severe than by the provisions of the Penal Code, then the accused person might invoke the provisions of said article." We gather from this language that the phrase "penal laws" used in article 22 relates to laws enacted subsequent to the Penal Code, in which the penalty is more favorable to the accused or the punishment for the act is made less severe.

Statutes of limitation, it is well settled, relate to the remedy and not to the right; relate to procedure and not to the crime. (Moore vs. State, supra; Commonwealth vs. Duffy, supra; 17 R. C. L., 703, citing Mulvey vs. Boston [1908], 197 Mass., 178; U. S. vs. Serapio, supra.) Viada, in his commentaries on the Penal Code (vol. I, p. 570, 4th ed.), makes the following observations: "Prescription of the crime only means the termination of the right or power to prosecute or punish the offender, after the lapse of a definite period from the commission of the offense, or if this is not known, from the day of its discovery and the beginning of the judicial proceedings for investigation and punishment." The supreme court of Spain, in a decision of January 22, 1872, held that when the law speaks of the prescription of an offense, it cannot be understood to mean other than that of the action to prosecute the same.

This construction is the more apparent, when it is re-membered that the Penal Code, although it does contain some provisions concerning procedure, is, generally speak-ing, substantive law. As such substantive law, it is but reasonable to suppose that it would only reach special laws of a similar nature. It must also be recalled that the crim-inal actions in the case before us and in all other cases on appeal to tbe court, were instituted before the time Act No. 3030 took effect, and that these courts of first instance had jurisdiction of the cases at that time.

What, therefore, is the condition of the much vaunted Latin law and jurisprudence on the question under discus-sion? First, article 7 of the Penal Code and our decisions make Act No. 3030 not subject to the provisions of the Penal Code; second, article 22 is found in a title and a chapter of the Code relating to "Penalties," and the article itself specifies "Penal laws;" third, section 71 of Act No. 3030 does not concern "penalties," and is not a "penal law," but is a procedural law.

Not a single authority, Latin or American, supports the position of the majority.lävvphì1·né+

So much for our opinion on the principal question. I note, however, that the majority decision of Mr. Justice Ostrand argues the facts. I had been told that a legal ques-tion was to be resolved. But somehow or other, although none of us have read the record or the briefs in that partic-ular case, it may be a matter which strengthens his position. And if this is true, and if the argument at least serves as a smokescreen to obscure the real question, who can object?

The majority decisions also essay to sanctify and deify prescription laws. What this has to do with the question in issue I do not know. I had thought that the Supreme Court was a judicial body, but apparently I have miscon-ceived our functions.

The majority further say that "a strong appeal has been made to our emotions by describing in rather vivid colors, the disastrous consequences which will result from the dis-missal of actions," etc., etc. I can find no such plea in any of the briefs. But the statement brings to mind a point on which I would gladly comment. What then are the consequences which would result from holding that section 71 of Act No. 3030 has retrospective effect?

One consequence I have already noted. At least thirty-two cases dismissed, and the crimes of ninety-one accused condoned. "A clear legislative intent, by a repeal of the act imposing it, or some other expressed purpose, is re-quired to take away a penalty or condone a crime by a retroactive law. This is especially to be guarded against in legislation designed to favor individuals at the expense of the public." (State vs. Startup [1877], 39 N. J. Law, 423.)

In the next place, such a holding would mean that we would make of Act No. 3030 an ex post facto law, something which is not claimed for it by petitioner, and a pitfall which the courts invariably avoid. And, lastly, I would recall another well-known principle of statutory construction: "If the language is clear, and the intent manifest, there is, of course, no room for presumptions. But if, on the other hand, the language is not clear, and it is obvious that by a particular construction in a doubtful case great public in-terests would be endangered or sacrificed, the court ought not to presume that such construction was intended by the makers of the law. A statute will not be so construed as to work public mischief, unless required by clear, unequivocal words, especially if the statute be chiefly to subserve indi-vidual interests." (25 R. C. L., 1027.)

Having, then, in view the disastrous consequences of one holding, as contrasted with the reasonable consequences of another, I can properly recall that in every instance in which this court has considered the subject, it has avoided the condonation of crime. For example, when the United States Supreme Court in its decision in the Weems case ([1910], 217 U. S., 349), held article 300 of the Penal Code void, it was incumbent upon the Supreme Court of the Philippine Islands to apply and construe the 'decision of the higher tribunal. In the case of United States vs. Pico ([1911], 18 Phil., 386), in which this court discussed the subject, it was found that according to the official report of the Director of Prisons there were serving sentences of analogous crimes four hundred and eighty-five accused, and that should this court be bound thereby to liberate them, "it * * * would result in a general jail delivery of all those heretofore convicted of many of the gravest and most heinous offenses defined and penalized by law; and would be substantially equivalent to a proclamation of amnesty in favor of all those who have heretofore committed such crimes and have not yet been brought to trial, or who may commit them hereafter until such time as the Legislature niay be able to reform the Penal Code." The court con-tinued: "Confronted as we are with the knowledge that consequences so far-reaching and disastrous must result from a holding favorable to the contention of counsel on this motion, it is manifestly our duty rigidly to restrict the application of the doctrine laid down in the Weems case to cases wherein the ratio decidendi in that case is clearly applicable and to decline to be bound by inferences drawn from observations and comments contained in the opinion in that case which appear to be based upon a mis-apprehension of facts, or upon assumed facts which do not accord with the facts in the cases brought before us." (Note also Ong Chang Wing vs. U. S. [1910], 218 U. S., 272.)

Before closing, I would like to disencumber myself of the miscellaneous authorities which I have discussed, and would again prefer to get back to the fundamentals of ascertaining and giving effect to legislative intent. On the one hand, by applying the simple phraseology of section 71, it appears to me that we effectuate legislative intention and avoid indescribable harm. On the other hand, if we give to the language of the Legislature an unusual meaning, we nullify legislative intention and turn away from prison persons who are guilty of violations of the Election Law.

Not many years ago, the public was edified by executive pardons of criminals who had violated the Election Law during the elections of 1913 and 1916. A judicial veto of legislative intent, and judicial legislation now effects a blanket pardon of persons who audaciously thwarted the people's will during the elections of 1919.

It is incomprehensible that members of the Philippine Legislature convened for the avowed purpose of enacting "a more effective Election Law," to use their own language, and cognizant as many of the members must have been, of pending cases in the Courts of First Instance and in the Supreme Court,:-that these same members of the Legisla-ture would insert provisions tantamount to a legislative pardon of persons who had committed crimes during the elections in 1919, but whose causes had tardily been brought before the courts. It would, indeed, be a serious charge against the integrity of the members of the Philippine Legislature to ascribe to them the purpose of inserting in the new Election Law a section to effectuate a general jail delivery of convicted criminals, and the Supreme Court of the Philippine Islands is indeed assuming a grave re-sponsibility when it distorts legislative language with the result which I have described. Believing, however, that the Philippine Legislature acted in a patriotic manner to advance the general public interests, and that no lurking design hides behind the meaning of its legislative product to advance private interests, we should enforce the law of an independent branch of the Government as we find it-as it is our duty to do. Motion granted and case dismissed.

Footnotes

1Promulgated March 28, 1921.

212 Phil., 241.

Republic of the Philippines

SUPREME COURTManila

EN BANC

DECISION

May 26, 1949

G.R. No. L-2161

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.

JAMES YOUNG (alias JIMMY YOUNG, alias TENG ENG YOUNG), defendants-appellant.</B.

Juan B. Espolong for appellant.

Office of the Solicitor General Bautista Angelo and Assistant Solicitor General Guillermo E. Torres for appellee.

Ozaeta, J.:The above-named appellant, who claims who claims to have been born in Surigao, Philippines, of Chinese father and Filipino

mother, was accused of murder in the Court of First Instance of Davao in an information which reads as follows:

The undersigned accused James young, alias Jimmy Young, alias Teng Eng Young, of the crime of murder under article 248 of the

Revised Penal Code committed as follows:

That on or about April 15, 1946, in the City of Davao, Philippines, and within the jurisdiction of this Court, the above-mentioned

accused, conspiring and cooperating together with Dy To, alias Donato Pomarala, and Chu Chi Beng accused and convicted for

this same offense in criminal case No. 131 of this Court, as well as with Carlos Ching, Ang Chu Yeng and Uy Kuet Guan, who have

also been prosecuted by are still at large, with deliberate intent and with intent to kill, with treachery and evident premeditation,

attacked, assaulted and shot with a 45-cal. pistol on Alfonso Ang Liongto, thereby inflicting upon the latter gunshot wounds which

directly caused the death of the said Alfonso Ang Liongto.

The execution of the offense was also attended by the aggravating circumstances of (1) nighttime and (2) reward or promise.

Contrary to law.

Davao City, Philippines, December 18, 1947.

(Sgd.) Bernardo Teves

&nbsp &nbsp &nbsp &nbsp &nbsp &nbsp Provincial Fiscal and

&nbsp &nbsp &nbsp &nbsp &nbsp &nbsp City Attorney Ex-officio

Upon his plea of not guilty he was tried, convicted, and sentenced by Judge Enrique A. Fernandez to suffer life imprisonment with

the accessories of the law, to indemnify the heirs of the deceased Alfonso Ang Liongto in the sum of P2,000, and to pay the costs.

From that sentenced he appealed to this court.

During the trial of the cause seven witnesses testified for the prosecution, and the accused alone testified in his own behalf.

There be no doubt as to the guilty of the accused, since he himself, in his testimony before the trial court, admitted his participation

in the murder of Alfonso Ang Liongto in consideration of a promise of reward of P50,000, of which he claimed to have received only

P10,300 at the time of the trial. The circumstances under which the crime was committed, as narrated by the witnesses for the

prosecution and by the accused himself, are as follows:

Sometime before March 27, 1946, the appellant, who was then in Manila, received a letter from a friend of his named Go Tiong, of

the City of Davao, “urging me to go to Davao and bring along my followers and henchmen with me because they needed us there.”

Upon receipt of that letter the appellant took a boat bound for Leyte, bringing along with him a former classmate of his named Ang

Chiu Eng. In Leyte, according to his own narration, he picked up other friends of his named Carlos Ching, Chu Chi Beng, and Uy

Kuet Guan, and then proceeded to Cebu. There he invited another henchman named Dy To, alias Donato Pomarala, to join him,

and from there the party, then composed of six persons headed by the accused, took a plane for the City of Davao, where they

arrived on March 27, 1946. At the airport they were met by a delegation of several local Chinese residents, among whom the

accused named the following: Go Tiong, Lim Chan, Lim Peng, Go Cam, Te Chayne, Lo Bok, and Ang Tiong. From the airport the

local Chinese residents took the accused and his companions in three jeeps to a hotel on Claveria Street, Davao, where they

stayed for four days, after which they moved to a house on Magallanes Street.

As to what happened from the time the accused and his “followers and henchmen” arrived in Davao on March 27, 1946, to April 16,

1946, we find the following statement of facts contained in the printed brief filed in this court by Atty. Juan B. Espolong, who

defended the appellant in the trial court and who continued to represent him in this court, to be substantial correct:

. . . Since March 27 to April 12, 1946, in the Hotel, in the house at Calle Magallanes and in certain house at Matina, Davao City, Co

Tiong, Chuchi Beng, Lim Chan, Lim Sui, Co Cam and Lo Bok had conferences regarding the killing of Alfonso Ang Liontong (t. s. n.

pp. 105, 106, 107 and 108). Thus in the conferences above mentioned those local Chinese offered the accused-appellant and his

companions the amount of P50,000 to kill Alfonso Ang Liongto and further offered them help should they engage in business in

Davao, also assuring them immunity from arrest, because with the money which they had they could bribe the authorities of Davao.

And for the identification of the victim they furnished them a picture of Alfonso Ang Liongto. They also furnished them a list of the

names of the Davao Chinese community who were interested in the death of Ang Liongto. They maintained and insisted that Ang

Liongto ought to die for his pro-Japanese activities during the occupation and because of the competition in the business he offers

them. In the month of April, 1946, they had fixed the date of the commission of the crime on April 15, 1946, and in view of the fact

that the accused and his companions had not agreed as to who would work out or execute the agreement as to who would the one

who draws the No. 1 should be the killer and the one who draws the No. 2 will act as assistance. And the rest of his companions to

act as guards in the vicinity of the crime to be committed by one of the companions of the accused-appellant. And in the drawing of

the lot they prepared six pieces of paper with their respective numbers from 1 to 6, rolled the same and placed them on the table.

After the drawing of the lot, Dy To got the paper with the No. 1 and Carlos Cheng got the other one which bore No. 2 (t.s.n. pp. 19,

20 and 108). On the 15th day of April, 1946, Lim Chan delivered two pistols to the accused to be used in the commission of the

crime and on the night of April 15, 1946, [the accused] delivered the same to Dy To and Carlos Cheng about 6;00 o’clock in the

evening (t. s. n. pp. 52 to 53). The accused-appellant, Ang Chiu Eng, Chu Chi Beng, Uy Kuet Guan and some of the thirty-six

Chinese who were interested in the death of Ang Liongto, on seeing the latter go out of his house clothed in under trousers and

take a walk in front of his house, the accused-appellant upon instruction of the Chinese from Davao went to the Alolor Restaurant to

look for Dy To and Carlos Cheng. After having been notified that Ang Liongto is in front of his house they went to Santa Ana, in an

unlighted automobile. When they reached the place about 80 meters from the house of Ang Liongto where some local Chinese

were gathered, the local Chinese in Davao pointed to Dy To and Carlos Cheng the place where Ang Liongto was standing, advising

them to work with caution and should approach the place one after the other. Dy To on reaching the place about six meters from

Ang Liongto, and to be sure of the identity of the victim, called on him, “Ang Liongto” and when the victim looked at the rear, Dy To

fired at the deceased, hitting him at the back with the .45-caliber pistol which he was then bringing, thus killing Alfonso Ang Liongto

right on the spot (t.s.n. p. 61). And on the same night several hours after the crime the accused-appellant, Carlos Cheng, Chu Chi

Beng and Uy Kuet Guan were arrested by the police in the house at Magallanes Street, Davao City, while Dy To was arrested the

next day. The members of the Secret Service found in the possession of the accused-appellant and his companions the letter of Go

Tiong written to the accused-appellant inviting him to come to Davao to kill Ang Liongto and a list wherein and a list wherein

appears the names of the Chinese interested in killing Ang Liongto but the whereabouts of these documents are unknown.

On the next day about 9:00 o’clock in the morning, that was on April 16, 1946, the accused-appellant, Ang Chiu Eng, Carlos Cheng

and Uy Kuet Guan were released. Chiu Chi Beng and Dy To were prosecuted and subsequently convicted and sentenced

to reclusion perpetua. (Pages 5-8, brief for the defendant-appellant.).

According to the appellant’s own testimony, the Davao Chinese who hired him and his companions gave two reasons why they

wanted to have Ang Liongto killed. He said: “The first reason was that Ang Liongto was their enemy because he was with the

Japanese, he was a collaborator; the second reason was that Ang Liongto was their great business competitor.” (Page 107, t.s.n.)

On cross-examination the appellant testified in part as follows:

Q. And whereas here you admitted your participation in the killing of Ang Liongto, why is it that when [the] information was read to

you did not interpose a plea of guilty and rather take chances of your life and liberty? A. I really admit my guilt or participation in the

killing of Ang Liongto but I am sorry that those people here in Davao who were instrumental in the killing of Ang Liongto are not

being punished. I admit that I am also at fault but I believe that their guilt is heavier than mine and before I came here to Davao I

signed 2 affidavits and I presume that they are also i jail already, but when I arrived here I found out that these people are not in jail.

(Page 126, t.s.n.)

Anent the foregoing observation of the appellant, it may not be amiss to state here that the records of this court show that since the

filing of this case a separate criminal action has been instituted against several other persons involved in the murder of Ang

Liongto.

In this court the appellant makes the following assignments of error:

1. The lower court erred in admitting the testimony of Dy To, the trigger man in this murder cases, as a witness for the prosecution

and against his coaccused.

2. The lower court erred in admitting nighttime as an aggravating circumstance in the case at bar.

3. The lower court erred in imposing the penalty of reclusion perpetua to the accused and failed to apply to him the Indeterminate

Sentence Law.

4. The lower court erred in not ordering the fiscal’s office to drop the case against the accused-appellant as government witness in

order to bring before the bar of justice all the responsible parties in the murder of Alfonso Ang Liongto.

The first assignment of error deserves no serious consideration, first, because counsel for the appellant did not interpose any

objection to the testimony of Dy To during the trial in the court below; and, second, because when the appellant himself testified in

his own behalf he not only confirmed the testimony of Dy To but elaborated upon it with more details. When Dy To testified in this

case he had been convicted and sentenced in criminal case No. 131 of the Court of First Instance of Davao for his participation in

the murder of Ang Liongco. His testimony, therefore, could not have been given under a promise of leniency. Of what avail would it

be to the appellant to attack the admissibility of a testimony to which he did not object in the lower court but which on the contrary

he himself confirmed when he testified in his own behalf?

We sustain the second assignment of error in the sense that nighttime as an aggravating circumstance in this case is absorbed in

that of treachery, which is the proper aggravating circumstance to consider. (Pedro vs. Chan Lin Wat, 50 Phil. 191.) There was

treachery in this case because the attack was sudden and totally unexpected and, furthermore, the victim never had an opportunity

to defend himself. (U.S. vs. Cabiling, 7 Phil. 469; People vs. Pengzon, 44 Phil, 224.)

In support of his third assignment of error counsel for the appellant presents the startling argument that his client was a poor man

who had never owned a thousand pesos and that “a cold fifty thousand bucks in exchange of a man’s life” was too great a

temptation for him to resist. We quote counsel’s own words just to show to what extent one’s moral sense seems to have atrophied:

The accused since birth was a poor man and a son of a poor farmer, that since his boyhood he has never owned a thousand pesos

in his own name. Now, here comes a change for him. A cold fifty thousand bucks in exchange of a man’s life. A simple job. Perhaps

a question of seconds’ work and that would transform him into a new man. Once in a small nipa shack, now in a palatial mansion?

This poor ignorant man blinded by the promises of wealth, protection and stability was given to do the forbidden deed.

Such a plea is a disgrace to the bar and an affront to the court.

The fourth and last assignment of error hardly needs any comment. Suffice it so say that under section 9 of Rule 115 the court may

discharge a codefendant so that he may be a witness for the Government only under certain conditions therein specified, among

which are (1) that there is absolute necessity for the testimony of the defendant whose discharge is requested and (2) that said

defendant does not appear to be the most guilty – which conditions did not obtain in this case. As a matter of fact no one ever

requested the trial court to discharge the appellant for that purpose.

The appellant’s guilt has been proved beyond doubt. The degree of his depravity is apparent from the record. He was the leader of

a band of gangsters who hired their services to kill for a price. In the present case he traveled all the way from Manila to Davao, by

boat, by plane, and by automobile, in the pursuit of his nefarious trade, in which he enlisted the aid of five other killers to whom he

referred as his “followers and henchmen.” The only useful purpose which the life of such a public enemy could serve to society

would be for the latter to make of it a deterrent exemplarity through the application of retributory justice as ordained by law.

The killing in question was attended by evident premeditation, which qualified the crime as murder. (1) It was committed in

consideration of a price, reward, or promise and (2) with treachery. (Nos. 11 and 16, article 14, Revised Penal Code.)

The trial court erred in concerning to appellant the mitigating circumstance of lack of instruction. We agree with the Solicitor

General that there is no evidence to show that. On the other hand, his affidavits Exhibits E and G, on every page of which he wrote

his John Hancok like signature and from one to school, betray a fair degree of instruction and a high degree of intelligence on the

part of this appellant.

In view of the presence of two aggravating circumstances and the absence of any mitigating circumstances, we should impose the

death penalty upon the appellant in accordance with article with article 248, in relation to No. 3 article 64, of the Revised Penal

Code.

Before the approval on June 17, 1948, of Republic Act No. 296, the occurrence of all the Justices of the Supreme Court was

necessary for the pronouncement of a judgment imposing the death penalty. (Section 133, Revised Administrative Code.) Evidently

to remedy the notorious difficulty, if not virtual impossibility, of obtaining such unanimity, and in view of the alarming rise of

criminality, and particularly of the rampancy of the crime of murder, that for some years had prevailed (and is still prevailing) in this

country, the Congress by said Republic Act No. 296 concurrence of at least eight Justices in the imposition of the death penalty.

After a long deliberation, the Court by a majority vote reached the conclusion that Republic Act No. 296 is procedural and not

substantive, and that it is the approval of said Act and to crimes committed before that approval.

In the present case only seven Justices voted to impose the death penalty. Mr. Justice Perfecto dissented and voted to impose life

imprisonment only. Mr. Justice Paras and Mr. Justice Reyes agreed with the majority that on the merits of the case the appellant

deserves the death penalty, but, being of the opinion that Republic Act No. 296 is not applicable to crimes committed before the

approval of said Act, they beleived the death penalty cannot be imposed in this case in view of the dissenting vote for the imposition

of life imprisonment only.

Therefore, for lack of the necessary number of votes to impose the death penalty, the sentence appealed from is affirmed, with

costs. So ordered.

Paras, Feria, Pablo, Perfecto, Tuason, Montemayor and Reyes, JJ., concur.

Bengzon, J., concurs in the result.


SUPREME COURTManila

EN BANC

DECISION

September 24, 1918

G.R. No. 13990

THE UNITED STATES, plaintiff-appellee,

vs.

VICENTE SOTTO, defendant-appellant.

The appellant on his own behalf.

Office of the Solicitor-General Paredes for appellee.

Fisher, J.:This is an appeal from a judgment of the Court of First Instance of Manila by which the appellant, Vicente Sotto, was found guilty of

the crime of libel and sentenced to pay a fine of P600.

The information upon which this prosecution was based is as follows:

That during the period from the 1st day of May, 1915, to the 22nd of the said month and year, in the city of Manila, Philippine

Islands, within the jurisdiction of this Court, the said defendant, Vicente Sotto, being the director, editor, manager, and printer of the

weekly paper known as “The Independent,” edited and published in English and Spanish in the city of Manila, with the intention of

attacking the honesty, virtue and reputation of Lope K. Santos, Jose Turiano Santiago and Hermenegildo Cruz, the principal

leaders of the association known as the “Congreso Obrero de Filipinas,” and with the malicious intention of exposing the said Lope

K. Santos, Jose Turiano Santiago and Hermenegildo Cruz to public hatred, contempt and ridicule as private citizens and as the

leaders of the said association, voluntarily, illegally, criminally and maliciously published and caused to be published of the three

persons above named a certain false, injurious and malicious defamation and libel tending to attack the honesty, virtue and

reputation of the same, on page 23 of issue No. 4 of the said weekly paper, dated May 1, 1915, which said publication is as follows:

“WITHOUT MALICE . . . .

“Having become tired to seeing the workingmen at the mercy of parasites who, under the guise of a false sympathy for the laboring

classes, exploit the proletariat, making the latter the plaything of their ambitions and machiavelian manipulations; weary of these

self-styled labor leaders who are pointed out by the people as the ones responsible for the malversation of workingmen’s funds, the

bankruptcy of the “Tagumpay,” the “Katubusan scandals,” the disappearance of a promissory note from the office of attorney

Diokno, the misappropriations of funds in the management of the “El Ideal.” The combinations which resulted in the failure of the

seamen and street-car employees’ strikes, and other numerous blunders committed by the said labor leaders, all of which has left

the proletariat in the situation of a victim plucked by the very ones who set themselves up as their defenders; and, realizing that our

cause is in danger, now, for the sake of our honor, and for dignity of the laboring classes, we believe that the time has come to

speak plainly and to put an end for once and all to so many parasites.

“If all these charges are true, it is hard to understand why the workingmen have continued until now under the control of their

present leaders.

“Who is to blame?

“VICTI.”

which said libelous publication was amplified by a carbon published on page 1 of issue No. 7 of the said weekly paper “The

Independent, on the 22nd of May, 1915, which was also published at the place and on the date above-mentioned. Which said

cartoon, in which among others, there appear the caricatures of the aforesaid parties is made an integral part of this information as

Exhibit A; that the said defendant on the aforesaid date and place intended to accuse, as in fact he did accuse, Lope K. Santos, of

being responsible for certain scandals which occurred in the cigar and cigarette factory “Katubusan” and for the disappearance of a

promissory note from the office of attorney Ramon Diokno and of being indebted to the firm of E.C. McCullough & Co. and to the

printer I. Morales, both of this city of Manila; accusing also Jose Turiano Santiago, one of the organizers of the seamen and street-

car employees’ strikes, of being responsible for certain combinations and insinuating that he had received the sum of P2,000 to

bring about the failure of the strikes; and accusing also Hermenegildo Cruz of being responsible for the bankruptcy of the printing

establishment “Tagumpay,” of certain scandals in the aforesaid factory “Katubusan,” and of the misappropriation of funds in the

administration of the newspaper “El Ideal;” and accusing all of the said three parties of the malversation of workingmen’s funds; and

that the said malicious defamation was published and circulated at the said time and place by the defendant in the manner above

set forth with the intention of attacking the honesty, virtue and reputation of the said Lope K. Santos, Jose Turiano Santiago and

Hermenegildo Cruz, thereby exposing them to public hatred, contempt and ridicule.

All contrary to the law in such cases made and provided.

The defendant demurred to this information upon the ground of duplicity. The trial court sustained the demurrer, and from that ruling

an appeal was taken to this court on behalf of the government. Justice Moreland, writing the opinion of the court upon the questions

presented by that appeal (U.S. vs. Sotto, 36 Phil. Rep., 389), said:

It is contended that each publication set out in the information is libelous in itself and, therefore, constitutes a crime; and, as a

necessary result, that two crimes are charged in the information. We do not believe this contention is sound. The only purpose of

including in the information the second publications was to complete the publication. The first publication mentions no names. It

speaks of labor leaders in general but of no one in particular. It employs, however certain words and phrases such as “the

bankruptcy of the Tagumpay,” “the Katubusan scandals,” the disappearance of a promissory note from the office of Attorney

Diokno, “the misappropriation of funds in the management of El Ideal,” and the combinations which resulted in the failure of the

seamen and street-car employees’ strikes. The second publication consists of a cartoon in which the persons referred to in the first

publication are caricatured by name and to each one of them is attached one of the words or phrases just mentioned, thereby

identifying him as one of the persons meant in the first publication. It the first publication, as we have seen, the labor leaders

referred to are charged with having caused “the bankruptcy of the Tagumpay.” In the cartoon we have the picture of a man labeled

“H. Cruz” carrying a banner which bears among others, the word “Tagumpay.” The first publication also mentions “The Katubusan

scandal.” In the cartoon the word “Katubusan” is found inscribed on a banner carried by “H. Cruz” and also upon one carried by a

person labeled “L. K. Santos.” In the first publication we have also the charge that the labor leaders therein referred to were

responsible for “the disappearance of a promissory note from the office of Attorney Diokno.” The word “Diokno” appears in the

cartoon upon the banner carried by L. K. Santos.” On the banner carried by H. Cruz are the words “El Ideal” to which reference is

found in the first publication where the labor leaders are charged with responsibility for the disappearance of funds belonging to “El

Ideal.” A person named “J. Turiano” is seated at a table with a dish before him labeled “Labor Congress” which he is engaged in

eating. He also holds in his hand a banner carrying the devices “seamen strike and street-car employees strike.” The banner borne

by L. K. Santos carried in addition to the words “Katubusan” and Diokno the words “McCullough” and “Morales.” From the mouths

of the three figures thus depicted in the cartoon, H. Cruz, J. Turiano and L. K. Santos, issue the words respectively “I am the first

leader,” “And I am the second,” and “And I am the third.”

The evident purpose and result of the publication of the cartoon, called the second publication, was to make clear to the public that

the three men named in the cartoon were the labor leaders referred to in the first publication and the persons to whom they were

directed. It served as the means of identification of the unnamed persons who were the subject of the first publication; and also of

placing upon each one the particular offense of which the first publication charged him. It not only served to identify but it also

served to point out the person upon whom should fall the odium of the particular charge made.

In view of the close and necessary connection between the first publication and the cartoon, the Court held that “this joinder of the

separate parts of publications in one indictment is permissible even though each separate publication constitutes libel in itself,

provided that all the different publications refer to the same subject-matter and are necessary or convenient for the completion of

the other . . .” and upon this statement of the principles of law involved reversed the ruling of the lower court upon the demurrer.

The case was then remanded, and the defendant, having entered a plea of not guilty, was brought to trial.

The defense was based upon the contention (1) that the charges against the complainant Cruz, Santos and Turiano are true, and

(2) that they were published with good motives and for justifiable ends. The trial judge, without making any findings with regard to

the truth or falsity of the charges against the complainants, held that they were not published with “good motives and for justifiable

ends,” and that the defendant, in making the publication, was actuated by actual malice and personal spite against the persons

libeled.

The appellant contends that the trial judge erred in finding that he was the editor and manager of “The Independent,” a newspaper

in which the offending matter was published. We are of the opinion that the evidence is amply to sustain this finding and fully

establishes the responsibility of appellant for all matters published in this newspaper, of which he expressly admitted himself to be

the owner. He also contends that the trial court erred in holding that the publications complained of are libelous. The defamatory

nature of the publication is, however, so palpable that we cannot regard this contention as having been seriously advanced.

With regard to the defense that the libelous imputation are true, we are of the opinion, after a careful consideration of the evidence,

that the defendant has failed completely to make good his contention in this regard.

In the case of Jimenez vs. Reyes (27 Phil. Rep., 52), at page 59, Justice Trent, writing the opinion of the court, laid down the rule

that for the purpose of determining the meaning of any publication alleged to be libelous “that construction must be adopted which

will give to the matter such a meaning as is natural and obvious in the plain and ordinary sense in which the public would naturally

understand what was uttered. The published matter alleged to be libelous must be construed as a whole. In applying these rules to

the language of an alleged libel, the court will disregard any substle or ingenious explanation offered by the publisher on being

called to account. The whole question being the effect the publication had upon the minds of the readers, and they not having been

assisted by the offered explanation in reading the article, it comes too late to have the effect of removing the sting, if any there be,

from the word used in the publication.”

Applying this rule to the publications here under consideration, we are of the opinion that the readers of defendant’s newspaper

would naturally understand that by them it was intended to impute to the complainant Cruz, the malversation of funds belonging to

the “El Ideal” newspaper company; to the complainant Turiano the malversation of funds belonging to the labor unions with which

he was connected and to the complainant Santos the theft of a promissory note from the office of Diokno. Other derogatory

imputations may be inferred, more or less clearly, from the article and the cartoon, considered together, but there can be no doubt

that those we have mentioned are clearly brought to the mind of the reader. To make good his defense that the defamatory charges

are true, the burden rested upon defendant of showing that the complainants were in fact guilty of the reprehensible conduct

imputed to them. (Newell on Slander and libel, par. 969.) Having arrogated unto himself the authority to cast upon complainants the

stigma of guilt, without giving them an opportunity to be heard in their defense, he can escape the consequences of his officious

assumption of power by nothing short of positive proof that his accusation was warranted by the facts, and that in making it public

he was not actuated by personal spite against the complainants, or a mere delight in the propagation of scandal, but by a good

motive and a desire to accomplish a justifiable object. The proof of the truth of the accusation cannot be made to rest upon mere

hearsay, rumors, or suspicion. It must rest upon positive, direct evidence, upon which a definite finding may be made by the court.

It must embrace all the charges. A plea of justification of a libel charging more than one offense is not made out of proof of part of

the charges.

We are of the opinion that the evidence adduced by the accused in this case falls far short of proof of the truth of any of his charges

against the complainants. He has shown that there were rumors in circulation derogatory to them concerning these matters, and

that some people believe them to be guilty of misconduct, but that is the most that can be said. We, therefore, hold that his defense

of justification has failed.

Having failed to prove the truth of his charges, the motive which induced him to publish them is of comparatively little important.

Were we convinced that defendant acted in good faith, after careful inquiry, and was the victim of an honest mistake, we might take

that circumstance into consideration in fixing the penalty. As it is we are fully in accord with the trial court in the opinion that

defendant was actuated by express malice. This is shown by the insistence with which he has reiterated his charges against

complainants and the methods employed by him in holding them up to contempt and ridicule.

It is frequently suggested in cases of this kind, in which the medium of publication of the libelous matter is a newspaper, that a

conviction of the responsible party is objectionable as constituting an infringement of the freedom of the press. Such a criticism

involves a fundamental misapprehension concerning the nature of that freedom. The freedom of the press consists in the right to

print and publish any statement whatever without subjection to the previous censorship of the government. It does not mean

immunity from willful abuses of that freedom, which, if permitted to go unrebuked, would soon make the license of an unrestrained

press even more odious to the people than would be the interference of government with the expression of opinion. Certainly a

moment’s reflection will convince any one approaching the subject with an open mind that no public service is rendered by the

publication in a newspaper of defamatory statements which are false and were published, not from a sense of duty, but to gratify

the personal spite and animosity of the writer against the persons defamed. Such is this case. The trial judge, in his carefully written

opinion, said:

In order to form an opinion as to the degree of malice disclosed by the acts of the accused, it is sufficient to glance over the thirty

issues of his weekly paper, introduced in evidence by the prosecution . . . . The disclose the determination of the accused to hold

the complainants up to ridicule, sometimes by veiled hints, at others by direct expression, exposing to the public gaze even their

physical defects . . . . It would have been difficult to determine the malice and evil intention of the accused, which caused the

publication of the article and caricature, had he not, after their publication, so frequently made mention of the three complainants

over so long a period of time, referring to them in terms of contempt, depicting them, in several issues of “The Independent,” and

especially in the issue of July 31, 1915, as despicable fellows, scoundrels, and vagabonds.

Taking into consideration the systematic persecution by the accused of which the complaining witnesses have been the victims, we

are of the opinion that he Attorney-General is warranted in recommending that a sentence of imprisonment be imposed in addition

to the fine inflicted by the trial court.

It would hardly repay the effort for us to review the decisions of this court in earlier cases or criminal libel in which the punishment

inflicted has been limited to a fine, and to show why the particular penalty was imposed in each instance. No two cases are alike. It

may well be that the defamatory charges, though in fact untrue, were made under such circumstances as to convince the court that

the accused believed them to be true and that such a belief was not unreasonable. Or the proof may disclose that, while the

particular defamatory imputation charged is untrue, the general character of the complainant is good, which may properly be

considered in fixing the penalty or assessing the damage.

But, even admitting the tendency of the court in the past has been toward leniency, the conclusion to be drawn from the growing

frequency with which the Libel Law is disregarded would appear to be that it is time to treat offenders with somewhat greater

severity. It would be greatly to be deplored if the impression were to be created that libels may be published without fear of

personal inconvenience by anyone able and willing to pay a moderate fine for the privilege. Exemplarity is one of the effects which

may properly be expected in the infliction of a penalty. The purpose of a law penalizing libel and providing a remedy by civil suit for

defamation of character is to encourage persons so injured to appeal to the courts for vindication rather than to attempt to remedy

or revenge their grievances by taking the law into their own hands.

We, therefore, find the accused to be guilty of the crime of libel as charged against him in the information, and sentence him to

imprisonment for a period of three months and to the payment of a fine of P600, with costs. So ordered.

Arellano, C.J., Torres, Johnson and Street, JJ., concur.

Separate Opinions

MALCOLM, J., dissenting:

I dissent. Judgment should be affirmed.

ON MOTION FOR RECONSIDERATION.

October 1, 1918.

FISHER, J.:

Appellant has moved for reconsideration of the decision rendered in this case and argues that it is void for lack of jurisdiction upon

the ground that before the decision was filed the accused gave notice of the withdrawal of his appeal.

We hold that the rule announced in the case of Dee See Chon vs. Stanley (p. 208, ante) is applicable to criminal as well as to civil

cases, and that, after a case has been heard and is submitted to the court for decision, the appellant cannot, at his election,

withdraw the appeal. As was stated by Justice Torres in the case of Bautista vs. Johnson (2 Phil. Rep., 230), with respect to an

appeal to a Court of First Instance from a municipal court . . . “before the trial has commenced, and a hearing has been had before

the judge . . . having jurisdiction over the appeal, the right of the appellant remains intact to withdraw his appeal . . . .” Nothing

contrary to this doctrine, which is supported by the decisions of many American courts (Merill vs. Dearing, 24 Minn., 179; In re

Seattle, 40 Wash., 450) was decided in the case of U.S. vs. Samio (3 Phil. Rep., 691), inasmuch as the appeal in that case was

withdrawn before the hearing.

The motion is denied.

Arellano, C.J., Torres, Johnson, Street and Malcolm, JJ., concur.


Manila

EN BANC

VICENTE SOTTO January 21, 1949

In re VICENTE SOTTO, for contempt of court.

Vicente Sotto in his own behalf.

FERIA, J.:

This is a proceeding for contempt of our court against the respondent Atty. Vicente Sotto, who was required by their Court on December 7, 1948, to show cause why he should not be punished for contempt to court for having issued a written statement in connection with the decision of this Court in In re Angel Parazo for contempt of court, which statement, as published in the Manila Times and other daily newspapers of the locality, reads as follows:

As author of the Press Freedom Law (Republic Act No. 53.) interpreted by the Supreme Court in the case of Angel Parazo, reporter of a local daily, who now has to suffer 30 days imprisonment, for his refusal to divulge the source of a news published in his paper, I regret to say that our High Tribunal has not only erroneously interpreted said law, but that it is once more putting in evidence the incompetency of narrow mindedness o the majority of its members, In the wake of so many mindedness of the majority deliberately committed during these last years, I believe that the only remedy to put an end to so much evil, is to change the members of the Supreme Court. To his effect, I announce that one of the first measures, which as its objects the complete reorganization of the Supreme Court. As it is now constituted, a constant peril to liberty and democracy. It need be said loudly, very loudly, so that even the deaf may hear: the Supreme Court very of today is a far cry from the impregnable bulwark of Justice of those memorable times of Cayetano Arellano, Victorino Mapa, Manuel Araullo and other learned jurists who were the honor and glory of the Philippine Judiciary.

Upon his request, the respondent was granted ten days more besides the five originally given him to file his answer, and although his answer was filed after the expiration of the period of time given him the said answer was admitted. This Court could have rendered a judgment for contempt after considering his answer, because he does not deny the authenticity of the statement as it has been published. But, in order to give the respondent ample opportunity to defend himself or justify the publication of such libelous statement, the case was set for hearing or oral argument on January 4, the hearing being later postponed to January 10, 1949. As the respondent did not appear at the date set for hearing, the case was submitted for decision.

In his answer, the respondent does not deny having published the above quoted threat, and intimidation as well as false and calumnious charges against this Supreme Court. But he therein contends that under section 13, Article VIII of the Constitution, which confers upon this Supreme Court the power to promulgate rules concerning pleading, practice, and procedure, "this Court has no power to impose correctional penalties upon the citizens, and that the Supreme Court can only impose fines and imprisonment by virtue of a law, and has to be promulgated by Congress with the approval of the Chief Executive." And he also alleges in his answer that "in the exercise of the freedom of speech guaranteed by the Constitution, the respondent made his statement in the press with the utmost good faith and with no intention of offending any of the majority of the honorable members of this high Tribunal, who, in his opinion, erroneously decided the Parazo case; but he has not attacked, or intended to attack the honesty or integrity of any one.' The other arguments set forth by the respondent in his defenses observe no consideration.

Rules 64 of the rules promulgated by this court does not punish as for contempt of court an act which was not punishable as such under the law and the inherent powers of the court to punish for contempt. The provisions of section 1 and 3 of said Rule 64 are a mere reproduction of section 231 and 232 of the old Code of Civil Procedure, Act No. 190, amended, in connection with the doctrine laid down by this Court on the inherent power if the superior courts to punish for contempt is several cases, among them In re Kelly, 35 Phil., 944. That the power to punish for contempt is inherent in all courts of superior statue, is a doctrine or principle uniformly accepted and applied by the courts of last resort in the United States, which is applicable in this jurisdiction since our Constitution and courts of justice are patterned as expounded in American Jurisprudence is as follows:

The power of inflicting punishment upon persons guilty of contempt of court may be regarded as an essential element of judicial authority, IT is possessed as a part of the judicial authority granted to courts created by the Constitution of the United States or by the Constitutions of the several states. It is a power said to be inherent in all courts general jurisdiction, whether they are State or Federal; such power exists in courts of general jurisdiction independently of any special express grant of statute. In many instances the right of certain courts of tribunals to punish for contempt is expressly bestowed by statue, but such statutory authorization is unnecessary, so far as the courts of general jurisdiction are concerned, and in general adds nothing statutory authority may be necessary as concerns the inferior courts statutory authority may be necessary to empower them to act. (Contempt, 12 Jur., pp. 418, 419.)

In conformity with the principle enunciated in the above quotation from American Jurisprudence, this Court, in In reKelly, held the following:

The publication of a criticism of a party or of the court to a pending cause, respecting the same, has always been considered as misbehavior, tending to obstruct the administration of justice, and subjects such persons to contempt proceedings. Parties have a constitutional right to have their fairly in court, by an impartial tribunal, uninfluenced by publications or public clamor. Every citizen has a profound personal interest in the enforcement of the fundamental right to have justice administered by the courts, under the protection and forms of law, free from outside coercion or interference. Any publication, pending a suit, reflecting upon the upon court, the parties, the officers of the court, the counsel, etc., with reference to the suit, or tending to influence the decision of the controversy, is contempt of court and is punishable. The power to punish for contempt is inherent in all court. The summary power to commit and punish for contempt tending to obstructed or degrade the administration of justice, as inherent in courts as essential to the execution of their powers and to the maintenance of their authority is a part of the law of the land. (In reKelly, 35 Phil., 944, 945.)

Mere criticism or comment on the correctness or wrongness, soundness or unsoundness of the decision of the court in a pending case made in good faith may be tolerated; because if well founded it may enlighten the court and contribute to the correction of an error if committed; but if it is not well taken and obviously erroneous, it should, in no way, influence the court in reversing or modifying its decision. Had the respondent in the present case limited himself to as statement that our decision is wrong or that our construction of the intention of the law is not correct, because it is different from what he, as proponent of the original bill which became a law had intended, his criticism might in that case be tolerated, for it could not in any way influence the final disposition of the Parazo case by the court; inasmuch as it is of judicial notice that the bill presented by the respondent was amended by both Houses of Congress, and the clause "unless the court finds that such revelation is demanded by the interest of the State" was added or inserted; and that, as the Act was passed by Congress and not by any particular member thereof, the intention of Congress and not that of the respondent must be the one to be determined by this Court in applying said act.

But in the above-quoted written statement which he caused to be published in the press, the respondent does not merely criticize or comment on the decision of the Parazo case, which was then and still is pending reconsideration by this Court upon petition of Angel Parazo. He not only intends to intimidate the members of this Court with the presentation of a bill in the next Congress, of which he is one of the members, reorganizing the Supreme Court and reducing the members, reorganizing the Supreme Court and reducing the members of Justices from eleven to seven, so as to change the members of this Court which decided the Parazo case, who according to his statement, are incompetent and narrow minded, in order to influence the final decision of said case by this Court, and thus embarrass or obstruct the administration of justice. But the respondent also attacks the honesty and integrity of this Court for the apparent purpose of bringing the Justices of this Court into disrepute and degrading the administration of justice, for in his above-quoted statement he says:

In the wake of so many blunders and injustices deliberately committed during these last years, I believe that the only remedy to put an end to so much evil, is to change the members of the Supreme Court. To this effect, I announce that one of the first measures, which I will introduce in the coming congressional sessions, will have as its object the complete reorganization of the Supreme Court. As it is now the Supreme Court of today constitutes a constant peril to liberty and democracy.

To hurl the false charge that this Court has been for the last years committing deliberately "so many blunders and injustices," that is to say, that it has been deciding in favor of one party knowing that the law and justice is on the part of the adverse party and not on the one in whose favor the decision was rendered, in many cases decided during the last years, would tend necessarily to undermine the confidence of the people in the honesty and integrity of the members of this Court, and consequently to lower or degrade the administration of justice by this Court. The Supreme Court of the Philippines is, under the Constitution, the last bulwark to which the Filipino people may repair to obtain relief for their grievances or protection of their rights when these are trampled upon, and if the people lose their confidence in the honesty and integrity of the members of this Court and believe that they cannot expect justice therefrom, they might be driven to take the law into their own hands, and disorder and perhaps chaos might be the result. As a member of the bar and an officer of the courts Atty. Vicente Sotto, like any other, is in duty bound to uphold the dignity and authority of this Court, to which he owes fidelity according to the oath he has taken as such attorney, and not to promote distrust in the administration of justice. Respect to the courts guarantees the stability of other institutions, which without such guaranty would be resting on a very shaky foundation.

Respondent's assertion in his answer that "he made his statement in the press with the utmost good faith and without intention of offending any of the majority of the honorable members of this high Tribunal," if true may mitigate but not exempt him from liability for contempt of court; but it is belied by his acts and statements during the pendency of this proceeding. The respondent in his petition of December 11, alleges that Justice Gregorio Perfecto is the principal promoter of this proceeding for contempt, conveying thereby the idea that this Court acted in the case through the instigation of Mr. Justice Perfecto.

It is true that the constitutional guaranty of freedom of speech and the press must be protected to its fullest extent, but license or abuse of liberty of the press and of the citizen should not be confused with liberty in its true sense. As important as the maintenance of an unmuzzled press and the free exercise of the right of the citizen, is the maintenance of the independence of the judiciary. As Judge Holmes very appropriately said U. S vs Sullens (1929), 36 Fed. (2nd), 230, 238, 239: "The administration of justice and the freedom of the press, though separate and distinct, are equally sacred, and neither should be violated by the other. The press and the courts have correlative rights and duties and should cooperate to uphold the principles of the Constitution and laws, from which the former receives its prerogatives and the latter its jurisdiction. The right of legitimate publicity must be

scrupulously recognized and care taken at all times to avoid impinging upon it. In a clear case where it is necessary, in order to dispose of judicial business unhampered by publications which reasonably tend to impair the impartiality of verdicts, or otherwise obstruct the administration of justice, this court will not hesitate to exercise its undoubted power to punish for contempt. This Court must be permitted to proceed with the disposition if its business in an orderly manner free from outside interference obstructive of its constitutional functions. This right will be insisted upon as vital to an impartial court, and, as a last resort, as a individual exercises the right of self-defense, it will act to preserve its existence as an unprejudiced tribunal. . . ."

It is also well settled that an attorney as an officer of the court is under special obligation to be respectful in his conduct and communication to the courts, he may be removed from office or stricken from the roll of attorneys as being guilty of flagrant misconduct (17 L. R. A. [N.S.], 586, 594).

In view of all the foregoing, we find the respondent Atty. Vicente Sotto guilty of contempt of this Court by virtue of the above-quoted publication, and he is hereby sentenced to pay, within the period of fifteen days from the promulgation of this judgment, a fine of P1,000, with subsidiary imprisonment in case of insolvency.

The respondent is also hereby required to appear, within the same period, and show cause to this Court why he should not be disbarred form practicing as an attorney-at-law in any of the courts of this Republic, for said publication and the following statements made by him during the pendency of the case against Angel Parazo for contempt of Court.

In his statement to the press as published in the Manila Times in its issue of December 9, 1948, the respondent said "The Supreme Court can send me to jail, but it cannot close my mouth; " and in his other statement published on December 10, 1948, in the same paper, he stated among others: "It is not the imprisonment that is degrading, but the cause of the imprisonment." In his Rizal day speech at the Abellana High School in Cebu, published on January 3, 1949, in the Manila Daily Bulletin, the respondent said that "there was more freedom of speech when American Justices sat in the Tribunal than now when it is composed of our countrymen;" reiterated that "even if it succeeds in placing him behind bars, the court can not close his mouth," and added: "I would consider imprisonment a precious heritage to leave for those who would follow me because the cause is noble and lofty." And the Manila Chronicle of January 5 published the statement of the respondent in Cebu to the effect that this Court "acted with malice" in citing him to appear before this Court on January 4 when "the members of this Court know that I came here on vacation." In all said statements the respondent misrepresents to the public the cause of the charge against him for contempt of court. He says that the cause is for criticizing the decision of this Court in said Parazo case in defense of the freedom of the press, when in truth and in fact he is charged with intending to interfere and influence the final disposition of said case through intimidation and false accusations against this Supreme Court. So ordered.

Moran, C.J., Paras, Pablo, Perfecto, Bengzon, Briones, Tuason, Montemayor and Reyes, JJ., concur.

Separate Opinions

PERFECTO, J., concurring:

Respondent published in the Manila newspapers of Sunday, December 5, 1948, a written statement in relation with the decision rendered by this Court sentencing Angel Parazo to 30 days imprisonment for contempt.

On December 7, 1948, considering the statement as "intended not only to intimidate the members of this Court or influence the final disposition of said (Parazo) case, but also to degrade and vilify the administration of justice," this Court adopted a resolution ordering respondent to show cause within five days why he should not be punished for contempt, "without prejudice to taking further action against him as attorney."

Alleging to be suffering from myologenous leukemia, with moderately severe anemia, and that his physician had advised him to have "absolute rest and to avoid any form of mental and physical strain for a few weeks," respondent prayed for a 15-day extension to file his answer. He was granted a 10-day extension.

In the resolution of December 13, 1948, granting said extension, this Court branded as false respondent's allegations the effect that he had formal charges pending in this Court against Mr. Justice Perfecto and that the latter is the "moving spirit" of these contempt proceedings.

Two days after the expiration of the 10-day extension granted to him, respondent filed his answer. The belated filing of said answer was overlooked by this Court in order not to deprive respondent of the benefits of his answer. Filed out of time, due to his unexplained fault, it could legally have been rejected.

In said answer, dated December 24, 1948, respondent repeated one of his allegations which, in the resolution of December 13, 1948, this Court had already declared to be false.

Respondent has not denied that he is the author of the statement for which he has been summoned to our bar for contempt and he has not denied the correctness of the text published in the Manila Chronicle and other daily newspapers and which is reproduced in the resolution of this Court of December 7, 1948.

In his statement, respondent does not limit himself to saying that this Tribunal has erroneously interpreted Republic Act No. 53, but alleges that said erroneous interpretation "is once more putting in evidence the incompetency or narrow-mindedness of the majority of its members," coupled with this sweeping and calumnious accusation:

In the wake of so many blunders and injustices deliberately committed during these last years, I believe that the only remedy to put an end to so much evil, is to change the members of the Supreme Court.

To fittingly crown this dastard imputation of deliberately committing blunders and injustice, respondent would bully the members of this Court, by making the following intimidating announcement:

To this effect, I announce that one of the first measures, which I will introduce in the coming congressional sessions, will have as its objects the complete reorganization of the Supreme Court.

There are other rhetorical passages in respondent's statement, aimed to emphasize the nuclear ideas of the statement, to the effect that the majority of the members of the Supreme Court are incompetent and narrow-minded and guilty of "so many blunders and injustices deliberately committed" and that the author will introduce in the coming congressional sessions a measure "to change the members of the Supreme Court" and to effect a "complete reorganization of the Supreme Court.

Among such maximizing expressions intended to stress the main ideas and purposes of the statement are the following:

1. As it is now constituted, the Supreme Court of today constitutes a constant peril to liberty and democracy.

2. It need be said loudly, very loudly so that even the deaf may hear: The Supreme Court if today is far cry from the impregnable bulwark of Justice of those memorable times of Cayetano Arellano, Victoriano Mapa, Manuel Araullo and other learned jurists who were the glory of the Philippine judiciary.

3. The reporter, who is erroneously convicted of contempt and unjustly sentenced to 30 days imprisonment by the Supreme Court, should be immediately and spontaneously pardoned by the Executive Power, to serve as lesson in law to the majority of the members of that High Tribunal.

4. That sentence is intolerable, and should be protested by all newspapers throughout the country, under the cry of "The press demands better qualified justices for the Supreme Court."

There can be no question that respondent knowingly published false imputations against the members of this Court. He accused them of such depravity as to have committed "blunders and injustices deliberately." He has maliciously branded them to be incompetent, narrow-minded, perpetrators of evil, "a constant peril to liberty and democracy," to be the opposite of those who were the honor and glory of the Philippines judiciary, to be needing a lesson in law, to be rendering an intolerable sentence, to be needing replacement by better qualified justices.

Respondent has not presented any evidence or offered any to support his slanderous imputations, and no single word can be found in his answer showing that he ever believed that the imputations are based on fact.

Respondent appears to belong to the class of individuals who have no compunction to resort to falsehood of falsehoods. The record of this case indicates that the practice of falsehoods seems to be habitual in respondent, and this is proved when he reiterated in his answer one of his allegations in a previous petition which were pronounced by this Court to be false in its resolution in its resolution of December 3, 1948.

More than thirty years ago, using the words of respondent himself, in "those memorable times of Cayetano Arellano, Victorino Mapa, and Manual Araullo and other learned jurists who were the glory of the Philippines judiciary" and when it was the "impregnable bulwark of Justice," the Supreme Court pronounced respondent guilty of falsehoods three times: first, in case in which he was sentenced to 4 years and 2 months of prision correccionalfor criminally abducting Aquilina Vasquez, a girl less then 18 years of age, and to pay her a dowry of P500 and to support the offspring of his relations with her (U. S. vs. Sotto, 9 Phil., 231); second, in a sentence of disbarment as a blackmailer (In re Sotto, 38 Phil., 532); and third, in prison sentence for false libel (U. S. vs. Sotto, 38 Phil., 666). The first and the last sentences bear the signature of Chief Justice Cayetano Arellano himself.

In the first case the Supreme Court found that only on July 29, 1906, Vicente Sotto wrote a letter to Aquilina Vasquez, protesting his love for her and urging her to leave her house and go with him; on the afternoon of August 1, 1906, Sotto made an arrangement with Luis Crisologo for the renting of his house since that night when Sotto went with Aquilina into the room of the house, where she passed the night; Sotto had told Crisologo that he wanted the house for a forestry ranger who was just arriving from Bohol; Sotto

did not leave the room until the middle of the night; Aquilina transferred to a house in Sambag where Sotto brought various housekeeping utensils; during the following days and nights Aquilina was visited by respondent.

On August 10, 1906, a complaint was filed against Vicente Sotto and Pio Datan, charging them with the crime ofrapto. As a defense, respondent offered evidence to show that on August 5, 1906, a legal marriage was celebrated between Aquilina and the accused Pio Datan, Sotto's washerman and accomplice in crime. Upon the evidence, the Supreme Court pronounced the celebration of the alleged marriage to be false. The certificate of marriage offered as evidence in support of the claim that the marriage took place had been declared a forgery.

It is not necessary to give the details of the whole disgusting affair, wherein the revolting and sinister nature of an individual is pictured in bold relief with some of its ugliest features. The more that 4 years of imprisonment imposed upon the accused did not reform him. It only served to emphasize the beginning of along career of falsehoods and slanders already spanning more than 40 years, soon nearing half of a century.

Respondent also chose not to deny his intimidating announcement to introduce in the coming sessions of Congress, among the first measures, one for the change of the members of the Supreme Court and for the latter's complete reorganization.

He has not explained or justified why he has to intimidate the members of the Supreme Court with change and reorganization, and why, to make the intimidation more dreadful, he had to announce the horrible course of subverting and trampling down the Constitution, as all who can read and understand the fundamental law know that it is beyond the powers of Congress to reorganize and change the membership of the Supreme Court.

Because the announcement is highly subversive, being aimed at shaking the very foundations of this Republic, it could have been no less terrible than for the respondent to have announced an intention to attain his purposes by resorting to open rebellion. The fact that respondent is a lawyer and a senator aggravates his flaunted purpose to assault the very Constitution he has sworn to obey and defend.

We have devoted considerable time to respondent's answer.

As first defense, respondent alleges that he made the written press statement, not as a lawyer or as a private citizen, but as a senator. He avers a senator should have ample liberty to discuss public affairs and should not be annoyed with contempt proceedings.

Now law or valid authority has been invoked in support of the theory, unless we could countenance a fictitious maxim that respondent is the sovereign. The theory lacks even the merit of novelty. Long before the claim of respondent that, because he is a senator, he is above the law, Mussolini, Hitler and all the tyrants and dictators who preceded them since the dawn of history had always claimed that they were above they law and acted as if they were really so. Unfortunately for respondent, senators are creatures of the Constitution and the Constitution makes them amenable to law.

As a second defense, respondent alleges that, not having appeared either as attorney or a witness in the Parazo case, he cannot be held either for direct or for indirect contempt.

The defense is based on stark ignorance of the law on the subject.

Respondent alleges, as third defense, that he made his statement with "utmost good faith," with "no intention of offending any of the majority of the honorable members of the High Tribunal," and that he has not attacked nor intended to attack the honesty or integrity of any one.

This allegation lacks sincerity in view of his imputation, among several others equally false and calumnious, that the majority members of the Supreme Court have committed many blunders and injustices deliberately." The slanderous imputation can only be attributed to bad faith.

As another defense, respondent questions the validity of the penal provisions of Rule 64, implying that said penalties are not procedural in nature, and invoking the provisions of section 13 of Article VIII of the Constitution, limiting the rule-making power of the Supreme Court to matters of pleading, practice, and procedure in courts, and to the admission to the practice of law.

Respondent's contention can be easily disposed of by quoting the following provisions of Act No. 190:

SEC. 231. What Contempts of Court may be Punished Summarily. — A court of First Instance or a judge of such court at chambers, may punish summarily, by fine not exceeding two hundred pesos, or by imprisonment not exceeding ten days, or both, a person guilty of misbehavior in the presence of or so near the court or judge as to obstruct administration of justice, including the refusal of a person present in court to be sworn as a witness or to answer as a witness when lawfully required.

SEC. 232. What Other Acts are Contempts of Court. — A person guilty of any of the following act any be punished as for contempt:

1. Disobedience of or resistance to a lawful writ, process, order, judgment of command of a court, or injunction granted by a court or judge;

2. Misbehavior of an officer of the court in the performance of his official duties, or in his official transactions;

3. A failure to obey a subpoena duly served;

4. The rescue, or attempted rescue, of a person or property in the custody of an officer by virtue of an order or process of the court held by him.

5. The persons defeated in a civil action concerning the ownership or possession of real estate who, after being evicted by the sheriff from the realty under litigation in compliance with judgment rendered, shall enter or attempt to enter upon the same for the purpose of executing acts of ownership or possession or who shall in any manner disturb possession by the person who the sheriff placed in possession of said reality.

SEC. 235. Trial of the Charge. — Upon the day fixed for the trial, the court shall proceed to investigate the charge and shall hear any answer or testimony which the accused may make or offer.

SEC. 236. Punishment if Found Guilty. — The court shall then determine whether the accused is guilty off the contempt charged; and, if it be adjudged that he is guilty, he may be fined not exceeding one thousand pesos, or imprisoned not more than six months, or both. If the contempt consist in the violation of an injunction, the person guilty of such contempt may also be ordered to make complete restitution to the party injured by such violation.

Therefore, even on the false hypothesis that penalties for contempt are not procedural in nature, courts of justice may impose said penalties, if not under Rule 64, under the provisions of Act No. 190.

The power to punish for contempt is inherent in courts of justice. It springs from the very nature of their functions. Without such power, courts of justice would be unable to perform effectively their functions. They function by orders. Every decision is a command. The power to punish disobedience to command is essential to make the commands effective.

Respondent is in error in maintaining that the Supreme Court has no power to enact Rule 64, He is correct in calling it judicial legislation although he fails to remember that judicial legislation in matters of judicial practice and procedure is expressly authorized by section 13 of Article VIII of the Constitution.

As a last defense, respondent invokes the constitutional freedom of the press, which includes the right to criticize judges in court proceedings.

Respondent, undoubtedly, misses the point, and his citations about said freedom, with which we fully agree, have absolutely no bearing on the question involved in these proceedings.

No one, and the members of the Supreme Court would be the last to do so, has ever denied respondent the freedom of the press and his freedom to criticize our proceedings, this Court and its members. Respondent's statement goes much further than mere criticism of our decision and the majority members of this Court. The statement is an attempt to interfere with the administration of justice, to miscarry and defeat justice, by trammelling the freedom of action of the members of the Supreme Court, by bullying them with the menace of change, reorganization, and removal, upon the false accusation that they have been committing "blunders and injustices deliberately," and the menacing action constitutes a flagrant violation of the Constitution. Such a thing is not covered by the freedom of the press or by the freedom to criticize judges and court proceedings, as no one in his senses has ever conceived that such freedom include any form of expressed gangterism, whether oral or written.

The freedom of the press is not involved in these proceedings. To assert otherwise is to mislead. What is at stake in these proceedings is the integrity of our system of administration of justice and the independence of the Supreme Court and its freedom from any outside interference intended to obstruct it or to unduly sway it one way or another.

The freedom of the press is one of the causes which we have always endeared. The repeated prosecution and persecutions we have endured in the past for its sake — we have been hailed to court eight times, — are conclusive evidence of the firm stand we have taken as defender of such freedom. It can be seen from official records that every acquittal handed down to us by the Supreme Court had been a new step forward and new triumph for the freedom of the press. (U. S. vs. Perfecto, 42 Phil., 113 Sept. 9, 1921; U.S. vs. Perfecto, 43 Phil., 58, March 4, 1922; U. S. vs. Perfecto, 43 Phil., 887, March 4, 1922.) That stand has remained the same, as can be shown in our written opinion in another contempt proceedings in the Ben Brillantes case, which failed to attract public attention at the time.

Among the facts which we cannot ignore in deciding this case, are the following:

1. That this is not the first time respondent has been brought to a court of justice, for a grave misbehavior and for perpetrating stark falsehoods. In a decision by the Supreme Court of September 6, 1918, respondent was removed from the office of attorney-at-law and incapacitated from exercising the legal profession. He was found guilty of:

(a) Lack of fidelity to clients;

(b) Blackmailing, by abusing his position as director of a newspaper whose columns he used to blacken the reputation of those who refused to yield to demands made by him in his business as lawyer;

(c) Publication of malicious and unjustifiable insinuations against the integrity of a judge who had fined him for the crime of libel;

(d) Giving false testimony or perjury. (38 Phil., 532.)

2. On September 24, 1918, the Supreme Court sentenced respondent to imprisonment for libel, for besmirching the honesty of three private individuals, Lope K. Santos, Jose Turiano Santiago and Hermenegildo Cruz with false charges. (38 Phil., 666.)

3. After having been cited for contempt in these proceedings, respondent, in order to pose as a martyr for the freedom of the press, waged a campaign of viturperation against the Supreme Court. He made repeated press statements and delivered speeches in his home province to show that he cannot expect justice from the Supreme Court, that the Supreme Court will imprison him, that he will be imprisoned for the sake of the freedom of the press, thereby posing as a false martyr for it.

4. In his persecutory obsession, respondent would make all believe that, contrary to fact, the writer of this opinion is the moving spirit behind these contempt proceedings and that the Supreme Court is acting merely as a tool. Apparently, respondent was irked by his failure to sit even for a single moment in the Senate Electoral Tribunal, because of our objection. The publicity given to our objection has exposed the illegality of respondent's designation made by the Senate President as, under section 11 of Article VI of the Constitution, the power to choose Senators for the Electoral Tribunal belongs to the Senate, and not to its presiding officer. At the bar of public opinion, the Senate President and respondent appeared either to be ignorant of the Constitution or to be bent on flagrantly violating it.

5. Respondent is the number of the bill which was enacted into Republic Act No. 53, but the purposes of his bill were thwarted by an amendment introduced by the Senate, denying the privilege granted therein when in conflict with the interest of the Senate. Respondent's bill was for an absolute privilege. Because the majority decision of the Supreme Court had made his failure patent, respondent took occasion to give vent to his grudge against the Supreme Court, wherein, of the 15 cases he had since liberation, he lost all except three, as can be seen in the records of the following cases:

L-23, Filomena Domiit Cabiling vs. The Prison Officer of the Military Prison of Quezon City LOST

L-212, Narcisa de la Fuente vs Fernando Jugo, etc. et al. WON

L-247, Monsig. Canilo Diel vs. Felix Martinez, etc. et al. WON

L-301, In the matter of the petition of Carlos Palanca to be admitted a Citizen of the Philippines

LOST(As amicus curiae

L-307, Eufemia Evangelista et al. vs. Rafael Maninang LOST

L-599, Amalia Rodriguez vs. Pio E. Valencia et al. LOST

L-1201, Vicente Sotto vs. Tribunal del Pueblo et al. LOST

L-1287, Ong Sit vs. Edmundo Piccio et al. LOST

L-1365, Vitaliano Jurado vs. Marcelo Flores LOST

L- 1509, Tagakotta Sotto vs. Francisco Enage LOST

L-1510, Bernarda Ybañez de Sabido et al. vs. Juan V. Borromeo et al. LOST

L-1938, Vicente Sotto vs. Crisanto Aragon et al. WON

L-1961, The People of the Philippines vs. Antonio de los Reyes LOST

L-2041, Quirico Abeto vs. Sotero Rodas LOST

L-2370, Voltaire Sotto vs. Rafael Dinglasan et al. LOST

Upon the records of his previous cases in 1918 and of these proceedings, it is inevitable to conclude that we have before us the case of an individual who has lowered himself to unfathomable depths of moral depravity, — a despicable habitual liar, unscrupulous vilifier and slanderer, unrepented blackguard and blackmailer, shameful and shameless libeler, unmindful of the principles of decency as all hardened criminals. He is a disgrace to the human species. He is a shame to the Senate.

Aghast at the baseness of his character, we felt, at first blush, the impulse of acquitting him, as his contemptible conduct, culminating in the press statement in question, seemed compatible only with the complete irresponsibility of schizophrenics, idiots, or those suffering from doddery.

His repeated press releases in which he tried to focus public attention to the most harmless part of his statement, wherein he accuses the majority of the Supreme Court of incompetency or narrow-mindedness, have shown, however, that respondent is not completely devoid of personal responsibility, as he is aware that he has no possible defense for alleging that the members of the Supreme Court have committed "blunders and injustices deliberately," for which reason he has widely publicized his expectation that he will be sentenced in this case to imprisonment, a penalty that, by his repeated public utterances, he himself gives the impression that he is convinced he deserves.

Verily he deserves to be sentenced to six months imprisonment, the maximum allowed by Rule 64, and such penalty would not be heavy enough because of the attendance of several aggravating circumstances, namely, the falsehoods he resorted to in this case, his insolence after he was cited for contempt, the fact that he is a lawyer and a Senator, the fact that he has already been sentenced to imprisonment for falsely libeling three private individuals, the fact that more than 30 years ago he had been disbarred as a blackmailer, the fact that more than 40 years ago he was sentenced to be jailed for more than 4 years as an abductor. The majority of this Court has sentenced a young and humble newspaperman to 30 days imprisonment only for refusing to answer a question. The offense committed by respondent is much graver than a mere refusal to answer a question.

We concur, however, in the decision imposing upon respondent a fine of P1,000 with subsidiary imprisonment and ordering him to show cause why he should not be completely deprived of the privilege of practicing the profession of a lawyer. High reasons of humanity restrained us from sending respondent to prison, unless he should voluntarily choose to enter therein, instead of paying the fine. He is old and, according to his physician, suffering from myologenous leukemia with moderately severe anemia, requiring absolute and avoidance of any from of mental and physical strain, and we do not wish to endanger respondent's life by sending him to prison, and thus causing him the mental and physical strains which his physician advised him to avoid. Although the continued existence of respondents is more harmful than beneficial to our Republic and to human society, we have to be consistent with our abidance by the injunction of the Sermon on the Mount: "Thou shalt not kill." (Matth., Chapter 5, paragraph 21.) Although their segregation from the society of decent men is advisable because of the dangers of corruptive contamination, even the lives of moral lepers have to be spared. After all, the heaviest punishment for an evildoer is the inherent stigma of shame of his evildoings.

Let it be clear that we are not punishing respondent because we want to curtail his freedom of the press, but because of his wanton interference in the independence of the Supreme Court his overt attempt to deprive us of our freedom of judgment in a pending case, his swashbuckling bravado to intimidate the members of this Court to sway their decision in favor of a litigant.

The freedom of the press is not in the least involved in these proceedings. The offensive statements has not been published by respondent as a newspaperman, editor or journalist. He does not appear to be a member of the staff of any one of the newspapers which published his statement. We did not even molest said newspapers. Their editors have not been cited for contempt. We did not interfere with their freedom to publish the scurrilous statement.

If respondent has not attempted by his browbeating to undermine and overthrow the very foundations of our judicial system and actually sought to defeat and miscarry the administration of justification in a pending litigation, we would certainly have abstained from summoning him merely for criticizing, insulting and slandering the members of the Court. After all his reputation for lack of veracity, malice and unscrupulosity is well-known in official records branding him with the indelible stigma of infamy.

His blatant posing, therefore, in this case as a martyr for the freedom of the press, as part of his systematic campaign of falsehoods and slanders directed against the Supreme Court, is an imposture that only ignorants, blockheads and other mental pachyderms can swallow.

It takes too much effrontery for such a character as respondent to pose as a martyr and no less than for the sake of a sacred cause, the freedom of the press, which no one has no much dishonored with his blackmailing practices and by his long list of cases in the courts of justice, starting as far back as 1901. (Julia vs. Sotto, 2 Phil., 247; U. S.vs. Sotto, 9 Phil., 231; In re Sotto, 38 Phil., 532; U. S. vs. Sotto, 38 Phil., 666; R.G. No. 201; U. S. vs. Sotto, R.G. No. 11067; U. S. vs. Sotto, R.G. No. 14284; U. S. vs. Vicente Sotto, R.G. No. 16004; People vs. Vicente Sotto, R.G. No. 23643.)

Respondent belongs to that gang of unprincipled politicians headed by a Senate President who trampled down the popular will by the arbitrary and unconstitutional suspension of Senators Vera, Diokno and Romero (Vera vs. Avelino, 77 Phil., 192), who issued the false certification as to the voting of the congressional resolution regarding the infamous Parity Amendment, thus perpetrating falsification of public document (Mabanag vs. Lopez Vito, 78 Phil., 1), who muzzled the people by ordering, in usurpation of

executive powers mayors all over the country not to allow the holding of public meetings which the opposition had organized to denounce the frauds in the elections of November 11, 1947 (Cipriano C. Primicias, as General Campaign Manager of the Coalesced Minority Parties vs. Valeriano E. Fugoso, as Mayor of the City of Manila, 80 Phil., 71) who wantonly violated the Constitution by interfering with the management of the funds of the Senate Electoral Tribunal (Suanes vs. The Chief Accountant of the Senate, 81 Phil., 819), who, again in violation of the fundamental law, usurped the exclusive powers of the Senate when he designated respondent to sit in the Senate Electoral Tribunal, and who crowned his misdeeds by enunciating on Saturday, January 15, 1949, the most immoral political philosophy — that of open toleration of rackets, graft and corruption in public office.

According to Rizal, the victims immolated in the altar of great ideals, to be acceptable, have to be noble, spotless and pure. They should, therefore, be as noble and pure as Socrates, Christ, Joan of Arc, Lincoln, Bonifacio, Mabini, Gandhi and Rizal himself. Then and only then will martyrdom be hallowed and glorified because it is will worthy of the effulgent grandeur of sacred ideals. "Hate never produces anything but monsters and crime criminals!" Love alone realizes wonderful works, virtue alone can save! Redemption presupposes virtue, virtue sacrifice, and sacrifice love! Pure and spotless must the victim be that the sacrifice may be acceptable!" (El Filibusterismo.)

Respondent complains in his answer that he is not accorded fair dealing because the writer of this opinion has not abstained from taking part in this case. The complaint is absolutely groundless. It is based on two false premises, concocted by respondent to make it appear that he is a victim of persecution, and on a conclusion, also false, because based on the two false premises.

Respondent alleges that there are pending in the Supreme Court certain charges he filed against the writer and that the undersigned is the "moving spirit" behind these proceedings. Both trump-up allegations are false, and the Supreme Court has declared it to be so in its resolution of December 13, 1948.

The records of the Supreme Court show that no such charges have been filed. Respondent ought to know, if he can read and understand the Constitution, that if he has any charge to file against a justice of the Supreme Court to seek his ouster, he has to file it with the House of Representatives, the only agency authorized by the fundamental law to institute impeachment proceedings.

If the House of Representatives should institute it, the respondent will have the opportunity to sit in judgment as a senator as, under the Constitution, the Senate is the sole tribunal on cases of impeachment.

No justice with full sense of responsibility should commit a dereliction of official duty by inhibiting himself in a case upon imaginary or fabricated grounds. The members of the Supreme Court are not such moral weaklings as to easily yield to dishonest appeals to a false sense of delicacy. A cowardly surrender to groundless challenges of unscrupulous parties is unbecoming to a judge, and much more to a Justice of the Highest Tribunal of the Republic.

It is true that, after respondent had failed to sit in the Senate Electoral Tribunal, because we objected to the designation issued to him by Senate President Avelino on constitutional grounds, he requested the Chief Justice to relieve us one of the members of the Senate Electoral Tribunal, and respondent would make it appear that for his move we are prejudiced against him.

He is absolutely wrong. His request to the Chief Justice did not disturb us the least. The Constitution does not grant anyone the power to oust, replace, or dismiss any member of the Senate Electoral Tribunal, judicial or senatorial, during his term of office in the Tribunal. Although an illegal substitution has been made once in the case of Senators Sebastian and Cuenco, such precedent did not make constitutional what is unconstitutional, and the Chief Justice of the Supreme Court has made clear his stand to uphold the Constitution by stating it in black and white in the decision he penned in the Suanes case L-2460. Respondent's failure was so obvious for us to mind his move.

After all, should we waste time and energy by entertaining any kind of prejudice against respondent, when there are so many great minds, beautiful characters, and wonderful personalities that are demanding our attention and whose spiritual companionship makes life enjoyable?

If we had entertained any prejudice against respondent, we would have meted out to him the penalty of imprisonment which he well deserves ,without minding the ill consequences it may entail to his health and life and without heeding the promptings of our pity and sense of humanity. Fortunately, very many years have already elapsed since we acquired the state of mind with which we can judge things and persons with an open and free conscience, truly emancipated from the shackles of any prejudice. The hateful events during the Japanese occupation were the best mycelium for spawning and the choicest fertilizers for growing prejudices against Generals Yamashita and Homma, to the extent of justifying any measure or action that would spell their doom. Immediate members of our family and ourselves endured agonizing sufferings and some of our near relatives were liquidated under their regime. But when Yamashita and Homma came to this Supreme Court, seeking remedy against the absurdly iniquitous procedure followed by the military commissions which tried them, so iniquitous that it closed to the Japanese generals all chances of fair trial, no scintilla of prejudice precluded us from casting the lone vote intended to give them the remedy and justice they sought for, notwithstanding the fact that Yamashita and Homma, appeared, in the general consent of our people, to be veritable monsters of cruelty and murder. Certainly, respondent would not pretend having given us, if ever, stronger grounds for prejudice than Yamashita and Homma, or that he is worse than both of them.

We are not to end this opinion without expressing our steadfast addiction to the following propositions:

1. The independence of the judiciary from outside interference or obstruction is essential to the effectively of its functions so that it can afford protection to fundamental rights including the freedom of the press, against encroachments and illegal assaults.

2. The freedom of the press includes the right to comment on pending judicial cases and the right to criticize the public and private life of all public officers, without any exception.

3. The freedom of the press does not, however, safeguard any publication intended to bully courts and judges in order to sway their judgment on pending cases, and such interference and obstruction should be promptly and drastically checked for the sake of an effective administration of justice.

4. Tribunal should be prompt in stopping the threatening and browbeating tactics of swaggering political ruffians and cutthroats bend on thwarting the scale of justice, as the opposing alternative to such a stern judicial attitude is surrendered to judicial anarchy.

5. Courts of justice annealed to face and ever ready to deal vigorously with attempts to turn them into puppets of domineering would-be dictators are essential in maintaining the reign of law and guaranteeing the existence of an orderly society.

This opinion has been written to modify and clarify our stand in concurring in the decision.


Manila

EN BANC

G.R. No. L-2043 February 28, 1950

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.ALEJANDRO CARILLO Y ALMADIN ET AL., defendants.ALEJANDRO CARILLO Y ALMADIN and TORIBIO RAQUENIO Y PITAS, appellants.

Lino B. Azicate for appellant.Office of the Solicitor General Felix Bautista Angelo and Assistant Solicitor General Inocencio Rosal for appellee.

PER CURIAM:

On June 4, 1947, between 8 and 9 p.m., Emma Foronda-Abaya and her fried Marcelino Lontok Jr., while walking side by side on Pampanga Street, Manila. on their way home from the Far Eastern University, were held up by two men, each at the point of a pistol, and were robbed of their personal belongings consisting of the following:

One Bulova wrist watched valued at P50.00

One smoked glass with gold rim valued at 25.00

One Parker fountain pen valued at 25.00

Cash amounting to .40

Total P100.40

belonging to Marcelino Lontok, Jr., and

One gold bracelet valued at P35.00

One Elgin wrist watch valued at 80.00

One umbrella valued at 15.00

Cash in loose change 1.00

Total P131.00

belonging to Emma Foronda-Abaya.

After robbing Emma, one of the two robbers took her to a secluded place, a vacant lot south of the street, and then and there hugged her, kissed her on lips, laid her down, face upward on a log, and after pulling down her drawers placed himself on top of her with intent to satisfy his lust. In the meantime the other robber was holding Marcelino Lontok, J.., at the point of a pistol at a distance of about eight meters from the place where Emma was being ravished. Emma cried for help, saying, "Junior, pity me!" But Marcelino Lontok, Jr., was threatened by his captor with bodily harm if he should move to help her. The satyr did not succeed in raping his victim because she valiantly resisted and in the course of the struggle both of them fell on the mire beside the log. At that precise the other robber left Marcelino and approach his companion, telling him to stop and inviting him to leave the place. Marcelino escaped to seek help. At a distance of about 15 meters he heard two shots. When later in the same evening he returned to the place with a police patrol, they found Emma dead, her chest and abdomen pierced by two bullets. Two empty shells were found at the scene of the crime.

The Detective Bureau of Manila Police Department mobilized its forces to discover the authors of the crime. They got the first tangible clue on the morning of June 10 when Detective Leaño and Marcelino Lontok Jr., recovered the latter's Bulova wrist watch from a peddler who was offering it for sale in front of the Ideal Theater on Rizal Avenue. The peddler, a colored American named Samuel Rhones, said that he had received the watch from one Jacinto Cornel, alias Wy Teng Seng, to sell. Jacinto Cornel told the detective that he had received the watch from one Salvador Custodio. The latter in turn said that he had brought it from a man called Big Boy, who turned out to be Brigido Carlos. Brigido Carlos said that the watch had been given to him in payment of a debt by a man whom he knew by the name of Visaya and who had a stall at the foot of Quezon Bridge. Visaya's real name turned out to be Saturnino Macawile. The latter at first denied having had anything to do with the watch, but after further investigation he admitted having delivered it to Brigido Carlos alias Big Boy. At first he said he had bought the watch from a small boy about three years old; but after further questioning he said he had brought it from a fellow with tattoos on both arms, on the chest and on the

legs. Finally he revealed the identity of the mysterious seller as one known by the name of Romy. In view of his possession of the stolen watch, and because of his evasive answers as to its origin, Saturnino Macawile was suspected as one of the robbers. Indeed Marcelino Lontok, Jr., thought so at first. An information was therefore filed against Saturnino Macawile and John Doe on June 14, 1947, for the crime in question.

Subsequently, however, the detectives succeeded in establishing the identity of Romy as that of an ex-convict whose real name was Alejandro Carillo, alias Romy alias Iwahig. They went to the New Bilibid Prison in Muntinglupa, where they found his prison records and his photograph. His records show that he was convicted of robbery in an inhabited house in criminal case No. 63494 of the Court of the First Instance of Manila, sentenced to 4 months and 1 day of imprisonment as minimum and 2 years, 4 months, and 1 day as maximum, and commenced to serve his sentence on June 27, 1941. On January 4, 1942, he was released on conditional pardon. In August, 1942, he was again convicted of robbery in an inhabited house in criminal case No. 511 and sentenced to 6 months imprisonment as minimum and 2 years, 11 months, and 10 days as maximum, plus subsidiary imprisonment. He was also made to serve the unserved portion of his first sentence, he having violated the condition of his pardon. He was released from prison upon the expiration of his sentence on August 30, 1946. (Exhibit G.)

After thus ascertaining the identity of Romy, the detectives next task was to find and arrest him. They discovered that he left Manila on a boat bound for Tacloban, Leyte, on June 8, 19947. Three detectives were dispatched to Tacloban, where they found and arrested Alejandro Carillo in the public market on June 23, 1947. he was at first brought to the police station of Tacloban, where he admittedly verbally that he was the one who shot Emma Foronda-Abaya.

On the afternoon Of June 24, 1947, Alejandro Carillo was interrogated by Detective D. Lapiña in the presence of Detective L.O. Garcia in the office of the Manila Detective Bureau, the questions propounded to him in Tagalog and his answers having been reduced to writing by Stenographer D.B. Ferrer. He gave his name and personal circumstances as follows: Alejandro Carillo y Almadin, 23 years old, single, a native of Tacloban, Leyte, painter, and a resident of Magallanes Avenue, Tacloban, Leyte. he declared that he resided first at 1472 Calavite, La Loma, Rizal, up to 1943 and then at 13 Esperanza, Quiapo, Manila; that he left Manila for Tacloban on June 8, 1947, because he happened to commit a crime. Answering further questions, he revealed that on the evening of June 4, 1947, about 8:30, he shot a woman on Aurora Avenue. We quote from his answers the following:

On June 4, 1947, I was at 1472 Calavite at 5 p.m. Frank and I drank gin. At 8 p.m. we went out and walked on Aurora Avenue. While we were walking we met two persons, a woman and a man. We held them up and took them to a dark place. I took the watch of the man. After that I took hold of a woman and took off her drawers. The woman screamed. I pulled her to a muddy place. The woman pushed me. I also pushed her and then fired two shots at her. Afterwards Frank and I left and we separated. I slept at Blue Dahlia Hotel. Four days after the woman had been killed, I went to Leyte to the house of my sister on Magallanes Ave.

He said he had known Frank since May 2, 1947; that Frank did not tell his full name but Frank told him that he lived on San Juan Street, Pasay, City, and that he was a private detective; that on the night in question he was carrying a.45 caliber pistol and Frank, a Japanese Luger. He gave further details of the commission of the crime as follows:

I took up the watch of the man and Frank took the watch of the woman; I told Frank to watch the man. I approached the woman and when I saw that she was pretty I intended to have carnal knowledge of her; so I took her on the mouth, pulled down her drawers, grasped her breasts and laid her on the log. She screamed and struggled, so well fell into the mud. When I got up, my feet sank into mud; I got sore and took my pistol and shot her twice.

He further revealed that when the woman screamed she called "Junior" in aloud voice; that he sold the man's watch for P11 to Nonoy Macawile, and who according to him was his housemate at 13 Esperanza, Quiapo; that he sold the watch to Macawile near Quezon Bridge in Quiapo the day after the crime; that Macawile knew him by the name of Romy only; that Macawile did not know the watch had been stolen from the man he and Frank held up; that he learned from the newspapers that the victims of the robbery he committed on June 4 were Emma and Lontok. He was shown the Bulova watch Exhibit D, and he identified it as the same watch he had taken from Lontok. He ratified that when he was arrested on June 23 in Tacloban he admitted before the local chief of police that he was the one who had shot Emma Foronda Abaya. he also revealed that when he was seven years old he was confined in the Welfareville Training School for theft, and that in 1939 and in 1941 he was sentenced and incarcerated in Muntinglupa for robbery. After his declaration was put in writing, he signed it and then ratified it under oath before Assistant City Fiscal Julio Villamor. (Exhibit H.)

The detectives ascertained the identity of Frank mentioned by Alejandro Carillo to be Toribio Raquenio, who was apprehended on the night of June 25, 1947, and who on the evening of June 28, 1947, was subjected to interrogatories by Detective Tomas A. Calazan of the Manila Detective Bureau in the presence of Detective Bureau in the presence of Detective J. Senen. He gave his name and personal circumstances as Toribio Raquenio y Pitas, alias Torin alias Frank, 37 years of age, single, jobless, a native of Cabugao, Ilocos Sur, and residing at 55 Main Street, Sampaloc, Manila. The following is an excerpt from his answers to the interrogatories:

I am a graduate of public grammar school (seventh grade graduate) at Stockton, California, in the years 1932. at the age of eighteen I went there to work and engaged in cutting asparagus and lettuce in Salina and Stockton, California, earning S7 dollars a day. In July, 1946, desirous of seeing my parents and relatives, I returned to the Philippines on the S.S. Marine Lanes, paying P400 for my fare. After staying a few months in my home province, I came to Manila and stayed in the house of my Uncle Jesus Acosta at 73 Nacar, San Andres, Manila. I left the house of my uncle on the 1st day of June,

1947, and went to reside at 55 Main Street, Sampaloc, Manila, up to the time of my present arrest. I have been jobless since I arrived in Manila. In May, I happened to meet one James Lavaller at the Cosmos restaurant on the corner of Azcarraga and Rizal Ave. and he invited me to live with him in his house at 55 Main Street, Sampaloc, after learning that I was looking for a house to live in. A week later I became acquainted with one Romy while I was at the Star Restaurant on Azcarraga St.. Since then I have met him several times; once at the Central Hotel, corner Azcarraga and Rizal Avenue, and Later in the house Of Simeon Madayag at 1472 Calavite, La Loma; then at the Cosmos restaurant and again in the house of Simeon Madayag; then in the Aroma Cafe near the corner of Rizal Avenue and Azcarraga. The last meeting was on the afternoon of June 4, 1947. Romy invited me to a drink beer and gin at the Star Restaurant after I had a meet him at Cafe Aroma. About 6 p.m. of that day, June 4, 1947, we proceeded to the house of Simeon Madayag on Calavite Street, and there Romy ordered again for alcoholic drinks, and we drank in the house in the presence of an old woman. After drinking, Romy invited me to a walk after showing me his .45 caliber pistol stuck at his belly. Knowing him to armed, I looked for the .38 caliber Japanese Luger which Madayag used to hide underneath the piles of their clothes inside their unlocked dresser. Fortunately I found the said firearm, so I took it without the knowledge of its owner, Simeon Madayag. I became acquainted with Simeon Madayag thru my uncle, I learned that Simeon Madayag was the chief of police of Muñoz, Nueva Ecija, from his sister-in-law Viring. Romy and I boarded a bus in La Loma, heading for Santa Cruz, Manila, and we alighted and walked northward on Aurora Avenue. While walking Romy told me that we were going to hold up any passer-by and not long afterwards he was in pursuit of two person, one a girl and the other a man. He held them at the point of his pistol upon reaching a street corner. I then walked towards them and held the man at the point of my gun and took his wrist watch which I put inside the left breasts pocket of my polo shirt, I continued holding the man while my companion Romy held up the girl at the point of his pistol. They passed alongside us heading southward until they (Romy and the girl) reached the log lying on one side of the street. I did not notice what they were doing as I kept holding my man, the companion of the girl. We were at a distance of about five meters from them. I then heard the girl screaming, so I told Romy, 'That is enough; pity her." I noticed then that my man was moving away. i did not stop my man from going away but instead approached Romy, whose victim was calling for "Junior", he companion. I told Romy to stop and leave the place. While I was about ten meters away from them (from Romy and the girl) I again heard the suppressed shots fired from the direction of Romy and the girl) I again heard the suppressed cry of the girl and simultaneously I heard two successive shots fired from the direction of Romy and the girl. I continued my pace in haste southward while I notice that Romy was following me. Upon reaching the street corner which I found this morning to be that of Oroquieta and Bulacan, we separated from each other, Romy heading towards Rizal Avenue while I went to La Loma and returned the .38 caliber Japanese Luger to Simeon Madayag. Madayag was surprised to know that I took his firearm and he asked me for an explanation. I told him that I was drunk, not even telling him about the crime Romy and I committed on that particular night. Afterwards i left for my home in Sampaloc. The wrist watch which I forcibly took from the man was given by me to Romy on that same night of our robbery, while we were about to separate at the corner of Bulacan and Oroquieta Streets. I do not remember whether I have taken some other articles from our victims, as I was drunk at that time. I did not tell anybody about the crime I committed with Romy on that night of June 4 because I was afraid again yesterday morning, June 28, when I was made to confront him in that office of the other building (pointing to the office of Captain Tenorio in the Bilibid Compound). There he is (pointing to Alejandro Carillo y Almadin, alias Romy alias Romeo Reynaldo alias Amado Vergel). Although the place was dark at that time, I was able to recognize the man whom I held up at the point of my gun on account of his proximity to me. There is the man (pointing to Marcelino Lontok, Jr.). I could hardly recognize the girl because she was led away by Romy, but the memory of her features is still fresh in my mind, specially when she was in a reclining position on the log while Romy was stooping over her. (Exhibit E)

On the afternoon of June 29, 1947, Alejandro Carillo was further interrogated by Detective T. Calazan, and he then and there pointed to and identified Toribio Raquenio as the same man whom he knew as "Frank" who was my companion when we held up a couple at the corner of Pampanga and Oroquieta on June 4, 1947." The following is an excerpt from his answers to the questions propounded by Detective Senen:

The gun I used in the holdup was left by me in the possession of Simeon Madayag of 1472 Calavite, La Loma, Quezon City. I left it with him on June 7, 1947, before I left Manila for Leyte. That gun is mine. I bought it from a friend of mine who is already dead. It is a .45 caliber Colt pistol. I left it with Madayag because he is the only one I trust to take care of it. Aside from that, I had to leave with him because I was afraid I would be searched on the boat when I went home to Leyte. I have known Madayag since April, 1947, the same day I became acquainted with Frank. The only article I took from my victims was the watch of the girl(Emma), but I think I dropped it when she resisted when I tried to rape her. The watch of Lontok came to my possession because Frank gave it to me. I do not know where the articles taken from our victims are now. As far as I know, the gun used by Frank during the holdup was his, but I do not know where he got it. I do not know where Madayag is now. As to my educational attainment, I finished the sixth grade. (Exhibit F.)

After Alejandro Carillo and Toribio Raquenio had confessed as above narrated, and as part of the investigation, they were taken by the detectives on June 29, 1947, together with Marcelino Lontok Jr., to the scene of crime, which was ascertained to be the corner of Pampanga and Oroquieta Streets. Then and there they re-enacted the crime with a policewoman impersonating Emma. Photographs of the re-enactment were taken and introduced in evidence during the trial. (Exhibits B-8, B-9 and B-10.)

After apprehending and investigating Alejandro Carillo and Toribio Raquenio the fiscal, on July 1, 1947, amended the information in this case by dropping John doe and charging Alejandro Carillo and Toribio Raquenio as principal of the crime robbery with homicide and with attempted rape and Saturnino Macawile as accessory after the fact.

Simeon Madayag, of 1472 Calavite, La Loma, Quezon city, mentioned by Alejandro Carillo and Toribio Raquenio in their confessions, turned out to be a secret agent of the Department of the Interior. When he went to that Department on July 1, 1947, to

surrender, according to him, the .45 caliber pistol which he said had been left with his wife by Alejandro Carillo, he was informed that the Manila Detective Bureau wanted him for investigation. He was immediately taken thereto and asked whether the pistol in question was really in his possession. He answered in the affirmative and then and there surrendered it to Detectives Calazan and Senen.

Said pistol (exhibit I) and the two empty shells found at the scene of the crime (Exhibits J and J-1) were delivered to the National Bureau of Investigation for test and examination by Ballistics Expert Edgar Bond of that Bureau to determine whether the said pistol was the same gun from which the two shells had been fired. Mr. Edgar Bond fired three shots from the pistol Exhibit I in order to obtain therefrom the test shells Exhibits K, K-1, and K-2. He then examined the two sets shells under a comparison microscope and found from the congruent lines thereof that the two shells Exhibits J and J-1 had been fired from the pistol Exhibit 1. The congruences of the two sets of shells are graphically shown in Exhibits L, L-1, and L-2, entitled "Ballistics Experts Edgar Bond" and explained by him during the trial. He also made a written report (Exhibit M) on the result of his ballistics examination, wherein he established the conclusion that the two shells Exhibits J and J-1 were fired from the pistol Exhibit I.

Marcelino Lontok, Jr., one of the offended parties, testified during the trial to the facts set forth in the first two paragraphs of this decision. He also identified the two appellants Alejandro Carillo and Toribio Raquenio as the robbers, saying that it was a moonlight night and that he was able to see their features. He admitted on cross-examination that at first he pointed to the original defendant Saturnino Macawile (in lieu of Alejandro Carillo), but explained: "As you will see from these two accused, there is semblance between the two, specially when Carrillo's hair was still long and not cropped." He further testified that of the articles taken from him on the night in question he had been able to recover the watch (Exhibit D) in the manner and under the circumstances narrated in third paragraph of this decision. He said that he was sure that it was the same watch that had been stolen from him because "just below the secondary dial, on the face of the watch, there is a small crack on the glass," and in the spring balance on the back there are some scratches."

Simeon Madayag, of 1472 Calavite, La Loma, Quezon City, testified during the trial in substance as follows:

I know Alejandro Carillo because he used to go to my house once in a while in May and June, 1947. He wanted to court my sister-in-law. I know also Toribio Raquenio because he used to go to my house sometimes with Romy (Alejandro Carillo) and one named Nestor; they used to go there about three times a week. The Japanese pistol Exhibit N was the service pistol issued to me by the Department of the Interior in my capacity as secret agent of said Department and the pistol was defective. I gave it to my wife and secured another permit for .45 caliber pistol. On June 4, 1947, that pistol was place by my wife in her vanity case and put under a drawer of the aparador in my house on Calavite. I did not at any time lend that pistol to Toribio Raquenio. After June 23 or 24(1947) I delivered that pistol (Exhibit N) to a repair shop. Members of the Detective Bureau went personally to the repair shop to get it myself and I gave it to them. That was after I had delivered to the Detective Bureau on July 1 the .45 caliber automatic pistol Exhibit I. Exhibit I was given to my wife Antonieta Salazar by one Romy, according to her, but I was not present when it was given to her.

Antonieta Salazar, 34 married to Simeon Madayag and residing at 1472 Calavite, Quezon City, testified in substance as follows:

I know the pistol Exhibit I because that was left in my possession by Romy (pointing to Alejandro Carillo) on June 7, 1947. He told me, "Mining, I am going to leave this (Exhibit I) to you first because I have to go somewhere." He did not tell me where he was going at that time. I came to know Alejandro Carillo in May, 1947, when he went he went to the Funeraria Nacional. According to him he knew my brother-in-law who died. Since then he used to come to our house for a visit. Sometimes he would come alone and at other times he would come with companions. I also know Toribio Raquenio (pointing to the defendant by that name) because he used to be with Romy when he came to the house. I know the Japanese pistol Exhibit N "because this is the revolver that my husband used when he was new in the Department of the Interior." On June 4, 1947, it was in my vanity case which I place in the drawer under my aparador. Although I received the pistol Exhibit I from Alejandro Carillo on June 7, 1947, I did not report the matter to may husband until June 29, or 30 because he was not at home. I was waiting for the owner to get it. The pistol Exhibit N was taken by the police from the repair shop."

We have heretofore narrated in chronological order the facts and the developments of the case as established by the prosecution through the testimony of Detectives Jesus P. Senen, Wenceslao R. Leaño, Jose Dimagiba, Leon O. Garcia, and Tomas Calazan, Police Photographer Remigio Abolencia, Ballistics Expert Edgar Bond, and witnesses Marcelino Lontok, Jr., Simeon Madayag, and Antonieta Salazar, and through the written statements Exhibits H and F of Alejandro Carillo and Exhibit E of Toribio Raquenio. We shall now relate the evidence for the defense.

Aside from his own testimony, Alejandro Carillo presented only one witless, Narciso Villegas. The latter testified that he was 23 years of age, single, a prisoner at Muntinglupa, convicted of robbery; that while he was detained in the isolation cell in Bilibid Prison, he saw the accused Alejandro Carillo there two months before October 1, 1947 (that is to say, about August 1, 1947); that he (witness) was the one keeping the key to the cells of the prisoners; that it was his duty to search a prisoner for the isolation cell to see whether he had some contraband with him; that when he tried to search the person of Alejandro Carillo, the latter told him, that the sides of his body were painful and requested his permission to take off his clothes himself; that witness allowed him to do so" and when he took off his clothes I saw something in his body in the left side of his body and under his chest, left side, was bluish in color. I asked him why his body was black, and he told me, "I was maltreated by the secret service men." I allowed him to get inside the isolation cell, telling his companion prisoners to allow him to lie down because he was not feel. That is all I can say. On cross-examination he testified that the conversation he had with Carillo was witnessed by the guard who had brought Carillo;

that the guard did not attempt to stop him from talking with Carillo "because I was the one in charges of the key and it was necessary that I should search his pockets."

Testifying his own behalf, Alejandro Carillo declared that on the afternoon of June 4, 1947, he was in Quiapo, Manila working as a laborer or a cargador in the market; That he worked until 9 o'clock in the evening, when he went home and id not go out any more; that he did not know his co-accused Toribio Raquenio until the day the latter was arrested "because the policeman was insisting I was his companion"; that he did not know anything as to the accusation against him of having robbed as killed Emma Foronda-Abaya on June 4, 1947; that he was on Aurora Avenue and Pampanga Street, Manila on June 4, 1947; that he was arrested by the police on June in Tacloban, Leyte; that after his arrest he was ordered by whose who arrested him to admit "that case which occurred"; that he did not yet sign any documents then; that he sign Exhibit F in Manila; that "they ordered me to sign that document Exhibit F without me knowing its contents, they only told me to sign it"; that he did not give the police the information contained in Exhibit F; that he did not sign Exhibit F voluntarily but was forced to do so; that from Tacloban he had fear of them because they were pointing their revolvers at him.

Q. They only pointed at you their revolvers? — A. Yes they pointed the revolvers at my stomach and they beat me in the body.

Q. Who beat you in the body? — A. Those who arrested me.

He admitted his signature to Exhibit H but claimed that he signed it without knowing its contents and that before signing it they did not read its contents to him. He further testified that he did not know the watch Exhibit D; that he knew the revolver Exhibit I because on June 6 a friend of his name Nestor delivered it to him; that at first he did not want to receive it because it had no license, but that he was afraid of Nestor because he always beat him and for that reason he told Nestor, "Well, I am going to receive this Exhibit I on condition that I shall not use it; I shall keep"; that when he went to Leyte on June 8 he did not have the revolver in his possession because he left it with a friend of his who lived in La Loma. He denied having sold the watch Exhibit D to Macawile. He claimed that his acts depicted in the photographs of the re-enactment of the crime, Exhibits B-5, B-8, B-9, B-10, B-11, and B-12, were not voluntary but that he acceded to the wishes of the police because he was afraid of them because they carried long revolvers.

On cross-examination he admitted that the house on Esperanza Street where he lived on June 4, 1947, was the same house where Saturnino Macawile less than two years; that it was true that during Japanese occupation he used to go with Macawile but that he did not live with him in the same house then; that before going to Leyte he entrusted the revolver Exhibit I to a friend of his whom he knew as Aling Tuning; that he delivered said revolver to Aling Tuning although Nestor did not know her "because if I kept that revolver in my possession I possibly would be in bad plight because that revolver had no license.

Q. If that is true, why did you accept this revolver from Nestor? — A. Because he was in hurry and he only left this on the table and then left.

Q. Is that all the explanation you can give? — A. Yes, sir.

He reiterated that on June 4 he went at 9 o'clock; that he knew it was 9 o'clock because he had many friends in that house and he asked them what time it was.

Q. What did you go home very late that night? — A. I went home quite late that night because I entertained myself in the pool.

Q. What is that pool you are referring to? — A. It is a kind of game. I know how to play it.

Q. Do you play pool every night? — A. I do not play but only used to see.

Q. Are you very sure that on June 4, 1947, about 9 o'clock in the evening, you were playing pool? — A. I was not playing, I was only watching those playing pool.

He admitted that after he was brought to the police station the police asked him so many questions, but claimed that he was confused them indifferently because he had presentiments about his mother and he was confused and did not know what he was saying; that those who asked him in questions did not write anything down.

Q. Did anyone of those who have testified here beat you? — A. None of those who testified here beat me, because I know by face those who maltreated me.

The accused Toribio Raquenio was the only one who testified in his own behalf. He gave his personal circumstances as 37 years of age, single, residing at 55 Main Street, Sampaloc, Manila. He declared in substance as follows: He was out of work on June 4, 1947, and was looking for a job then. He did not remember having gone out on June 4, 1947. He did not know the accused Alejandro Carillo, alias Romy. He did not know anything about the accusation against him of having, in company with Alejandro

Carillo, held up and robbed Emma Foronda Abaya and Marcelino Lontok Jr. He did not remember where he was on June 4, 1947. He was arrested on June 26. The signature on Exhibit E is his . H e did not know the contents of Exhibit E; it was not read to him by the police. He signed it because he was maltreated and in proof of that he had a scar on the lower lip. He was maltreated by a detective whom he knew by face but who was then in court. He was maltreated before he signed Exhibit E; he was kicked, and when he fell on the floor they continued kicking him and spat blood. He admitted that he knew Simeon Madayag. He did not know whether Simeon Madayag possessed the .38 caliber Japanese Luger. He denied that he ever went with Alejandro Carillo to the house of Simeon Madayag. he did not know whether the contents of Exhibit E are true or not.

On cross-examination he admitted having stayed in America 19 years. He indicated Det. Wenceslao Leaño as the one and only one who had maltreated him. He said that after his arrest the police asked him many questions, and that is the reason why "they maltreated me"; that the only question he answered was that about his civil status. He admitted that he is from Cabugao, Ilocos Sur. He also admitted that he has an uncle named Jesus Acosta who lives at 73 Nacar, San Andres. Upon being interrogated by the court, he reiterated that he knew Simeon Madayag and knew where he lived but did not know the number. He admitted having been to the house of Simeon Madayag but that he went there alone for a visit, looking for work.

The accused Saturnino Macawile, testifying ion his own behalf, declared that he bought the Bulova watch Exhibit D from Romy (indicating the accused Alejandro Carillo) for P3 on June 5 at 6:30 a.m. at his (witness) store in Quiapo; that he sold it for P10 to one Bidoy; that he did not know that it was a stolen watch.

Q. Did the detectives employ force or maltreat you before you told them from whom you bought this watch Exhibit D? — A. No, sir.

He said that he knew Alejandro Carillo only by the named Romy; that Romy used to go to his house because he courted someone there, the daughter of his comadre.

Upon the evidence above set forth, Judge Felipe Natividad found the accused Alejandro Carillo guilty beyond reasonable doubt as principal of the crime of robbery with homicide, without any mitigating or aggravating circumstances, and sentenced him to suffer the penalty of reclusion perpetua, to indemnify the heirs of the deceased Emma Foronda-Abaya in the sum of P2,000 and to return the stolen articles for their value aggregating P231.40; and the accused Toribio Raquenio guilty beyond reasonable doubt as principal of the crime of robbery with violence against and intimidation of person, without any mitigating or aggravating circumstance, and sentenced him to suffer an indeterminate penalty of from 4 years and 2 months of prision correctional as minimum to 8 years of prision mayor as maximum and to indemnify, jointly and severally with his co-accused Alejandro Carillo, the offended parties in the sums of P131 and P100.40, respectively. The accused Saturnino Macawile was acquitted on reasonable doubt.

In their joint appeal Alejandro Carillo and Toribio Raquenio, through their counsel de oficio, challenge the sufficiency of the evidence to established their guilt and ask for their acquittal. The Solicitor General, on the other hand, recommends the imposition of the death penalty on the appellant Alejandro Carillo and the increase of the maximum penalty meted out to appellant Toribio Raquenio.

Having heretofore set forth in detail the evidence adduced during the trial, our task in resolving the appeal is reduced to analyzing the chain of direct and circumstantial evidence against the appellant to determine whether there is any missing or defective link which might warrant reversal.

The direct evidence consists of (1) the testimony of the eyewitness Marcelino Lontok Jr. and (2) the confessions of the accused. The circumstantial evidence consists of (1) the sale by Alejandro Carillo to Saturnino Macawile on the morning of June 5, 1947, of the Bulova watch Exhibit D, of which Marcelino Lontok Jr., had been robbed the previous evening; (2) the admission by Carillo and Macawile during the trial that they had known each other and had lived in the same house for a long time, thus precluding any possible mistake by Macawile as to identify of Carillo as the seller of said watch; (3) the .45 caliber pistol Exhibit I, which was conclusively established to be the gun from which the two empty shells Exhibit J and J-1 found at the scene of crime had been fired; (4) the testimony of the spouses Simeon Madayag and Antonieta Salazar that said pistol was left by Alejandro Carillo during the trial; (5) the testimony of the same spouses that the two appellants knew each other and used to frequent the house of said spouses at 1472 Calavite, La Loma, Quezon city; (6) the .38 caliber Japanese Luger pistol Exhibit N, which according to the confession of Toribio Raquenio he took from the house of said spouses and used in committing the crime in question and which said spouses identified during the trial; and (7) the flight of Alejandro Carillo to Tacloban, Leyte, shortly after the commission of the crime. We find no defective link in this strong chain of circumstantial evidence, which dovetails with the chain of direct evidence.

Appellant Carillo hammers on the weakness of the testimony of Marcelino Lontok, Jr., as to his identity, it appearing that said witness at first pointed to Macawile in lieu of Carillo. Considering that Lontok and his companions were held up at night, although with moonlight, and that the robbers were unknown to him, his testimony alone as to their identity would not be sufficient to convict the appellants, for his identification of them under the circumstances could not be absolutely relied upon, as indeed he at first mistook Macawile for Carillo in view of some resemblance between the two. It was, however, undoubtedly a mistake in good faith, not indicative of a will to prevaricate and not sufficient to divest his testimony of portably value as to identity of the appellants, if we consider it, as we must, together with the rest of the evidence in this case. The trial judge, who saw both Carillo and Macawile and who took Lontok's testimony into consideration, must have been satisfied with Lontok's explanation of his mistake due to the resemblance between the said two accused as pointed out by Lontok during the trial.

The other link of direct evidence is the written confessions of the two appellants before the members of the Detective Bureau. Inasmuch as these confessions were respectively repudiated by the appellants during the trial, we have to examine with caution and care the circumstances under which they were given and the inherent veracity of their contents in relation to appellants testimony during the trial, to determine whether they had been illegally extorted from them as they claimed. We are not unaware that some officers of the law resort to the illegal and reprehensible tactics of extorting confessions through violence and intimidation, and we have had occasions to express our condemnation of such tactics. Thus, in the case of People vs. Tipay (G.R. No. 49014 [March 31, 1944]; 74 Phil., 615), we said:

In this noonday of the twentieth century, when criminology and the investigation of crimes have developed into a science in all civilized countries abreast with the progress and the ever-increasing enlightenment of the human race, to force or induce a suspect to incriminate himself through violence, torture or trickery is a shameful disgrace — a reversion into the barbarism and the inquisitorial practices of the Dark Ages; and the minions of the law who would still resort to such crude and cruel methods are universally regarded as anachronistic blockheads, who should be immediately lopped off as a cancerous excrescence of the body politic.

The first written confession of appellant Alejandro Carillo is Exhibit H, which was taken by questions and answers in Tagalog by Detective D. Lapiña in the presence of Detective L.O. Garcia and written down by Stenographer D.B. Ferrer between 3.20 and 6.30 p.m. on June 24, 1947, the day after Carillo was arrested in Tacloban Leyte. Selective Garcia, as a witness for the prosecution, swore during the trial that Carillo answered the questions propounded by him by Det. Diosdado Lapiña and voluntarily signed and swore to Exhibit H before Fiscal Villamor after the latter had read and explained its contents to the affiant. It is apparent from Exhibit H that it contains information which was known only to the affiant and which could not have been known before by the investigator: the personal circumstances of the affiant; the places where he had resided before; that at the age of 7 he was confined in Welfareville for theft; that he knew Frank (his appellant); that he and Frank were in the house at 1472 Calavite, La Loma, Quezon City, about 5 o'clock on June 4, 1947, and that from the house they went together to commit the crime in question; that he was then armed with a .45 caliber pistol and Frank, with a Japanese Luger. At that time he told an untruth when he told the investigator that the .45 caliber automatic pistol he used belonged to Frank and that after the crime he returned it to the latter before they separated. As a matter of fact, it was the revelation made by appellant Carillo in Exhibit H that led the detectives to arrest his co-appellant Toribio Raquenio, alias Frank. And after the latter was arrested, Carillo in Exhibit H that led the detectives to arrest his co-appellant Toribio Raquenio, alias Frank. And after the latter was arrested, Carillo was subjected to further interrogatories by Detective Senen in the presence of Detective Calazan, as shown by Exhibit F, in which Carillo identified Raquenio as the same person to whom he had referred as Frank. It was then that for the first time Carillo revealed the truth that the gun he had used had been left by him in the house of Simeon Madayag at 1472 Calavite and that the gun was his (Carillo's) Again it was through that information that the detectives recovered the .45 caliber pistol Exhibit I from Madayag.

It will be recalled that before Carillo was arrested in Tacloban, Leyte, on June 23, the detectives entertained the theory that the holdup men were Saturnino Macawile and unknown individual designated in the original information as John Doe. The detectives did not then know the facts revealed by Carillo for the first time in his confessions Exhibits H and F. We therefore cannot give the credence to the insinuation made by Carillo for the first time during the trial of the case that the contents of Exhibits H and F were mere inventions of the detectives. The veracity of the facts set forth in said exhibits, with the exception of the statement made by Carillo in Exhibit H that the .45 caliber pistol belonged to Frank and was returned by him to the latter after the commission of the crime, cannot be doubted. The very falsity of said statement as to the ownership of the pistol, which Carillo subsequently rectified in Exhibit f, is in itself a clear proof that the contents of Exhibit H and F were not a fabrication of the detectives.

No one can doubt the veracity of a statement that turns out to be in conformity with the reality. If a person tells the police that he killed an individual with a revolver in another place and delivered the watch to another person, and if the police finds the corpse in the place indicated by the killer and also recovers the watch from the person to whom the killer said he had delivered it, it would be impossible not to believe the statement of the killer even if he should subsequently deny it. What could not be believed is such denial.

Equally unbelievable is the testimony of Carillo during the trial when at first he said he signed Exhibits F and H without knowing their contents because the detectives ordered him to do so; then later he gave a stronger reason by saying that he was afraid of the police because they were pointing their revolvers at him; and still later, after being prompted by his counsel, he gave a still stronger reason by saying that they beat him in the body. But on cross-examination, when asked whether any of the detectives who had testified before him had beaten him, he answered that none of them had. He could not point to any particular person as his alleged torturer. He did not even care to corroborate the testimony of his only witness, Narciso Villegas, for the latter's testimony was not in any way referred to by him when he (Carillo) took the witness stand.

The testimony of Narciso Villegas is inherently incredible. In the first place, he was a convict of crime involving moral turpitude — robbery. In the second place, if as he said he was in the isolation cell, we must assume that he was under disciplinary punishment and could not therefore have been entrusted with the duty of a trusty such as keeping the keys. Carillo, who was not yet then convict but a mere detention prisoner, could not have been placed in the isolation cell. And, lastly, the alleged physical examination or inspection made by Convict Villegas, during which he claimed to have found a bluish spot on the chest of Carillo, took place, according to him, about August 1, 1947, that is to say, more than one month after Carillo had signed Exhibits H and F. In any event, even assuming that there was such a bluish spot on Carillo's body, Carillo did not explain or refer to it when he testified.

In this connection it is significant to note that although the detectives at first suspected Saturnino Macawile as the one who had robbed, ravished, and killed Emma Foronda Abaya, they did not use any force upon or maltreat him to extort a confession from him, according to his own testimony.

We must, therefore, conclude that Carillo's confession Exhibits H and F were made by him voluntarily and without the employment of force or intimidation on him.

The alibi set up by Carillo as a defense hardly merits any considerations at all. At first he claimed that he worked in the Quiapo market as a cargador until 9 o'clock in the evening on June 4, 1947. Later, on cross-examination he said that he stayed out late on that day because he was in a poolroom watching the game.

Neither can we believe his testimony that the pistol Exhibit I was delivered to him on June 26, by a friend of his named Nestor. At first he said that he accepted the gun from Nestor although it had no license because he was afraid of Nestor. as latter always beat him. But on cross-examination he changed that the testimony by saying that he accepted the gun from Nestor because the latter was in a hurry "and he only left this on the table and left."

The conclusion is inescapable from the foregoing analysis of the evidence that it leaves no room for any hypothesis consistent with appellant Alejandro Carillo's innocence. We do not entertain the slightest doubt that he is guilty of the capital offense of robbery with Homicide and attempted rape, with which he was charged and duly tried. We shall consider the appropriate penalty later.

With regard to appellant Toribio Raquenio, he did not even care to set up an alibi. He said he did not remember where he was on June 4, 1947. We find that his guilt has been proved beyond reasonable doubt by his confession Exhibit E; by the testimony of Marcelino Lontok, J., who identified him as the robber who held him up at the point of a gun and robbed him; and by the testimony of the spouses Simeon Madayag and Antonieta Salazar. His confession Exhibit E contains information regarding himself that could not have been known to the police. His claimed, therefore, than it was a mere invention of fabrication of the police cannot be believed.

Neither can we accept his pretension that he signed said confession he had been maltreated him was not in court. Later he indicated Detective Wenceslao Leaño, who was in court, as the one who had maltreated him . In rebuttal Detective Leaño denied that imputation, saying that he was not the one who took part in his investigation. Exhibit E shows that it was taken by Det. Tomas A. Calazan in the presence of Detective Senen. And Det. Jesus P. Senen testified that Raquenio answered the questions propounded to him by Detective Calazan and signed the statement voluntarily after having read it.

We likewise, therefore, do not entertain any doubt as to the guilt of this appellant.

Appellant Toribio Raquenio did not participate in the attempted rape and killing of Emma Foronda Abaya but tried to induce his companion Alejandro Carillo to desist therefrom. The trial court was right in finding him guilty only of robbery with violence against and intimidation of person, which is penalized in Paragraph 5 of Article 294 of the Revised Penal Code with prision correctional in its maximum to prision mayor in its medium period. However, the trial court erred in not considering the aggravating circumstance of nocturnity, which facilitated the commission of the offense and rendered detection difficult (People vs. Corpus, 43 Off. Gaz., 2249).

Therefore with the only modification that the maximum of the indeterminate penalty imposed should be, as it is hereby, increased to ten years of prision mayor, the sentence as to the appellant Toribio Raquenio is affirmed, with costs.

The appellant Alejandro Carillo is guilty of robbery with homicide as well as of attempted rape. Robbery with homicide is penalized in paragraph 1 of article 294 with reclusion perpetua to death. The trial court erred in not considering the aggravating circumstances of (1) recidivism, said appellant having been convicted twice of robbery; (2) nocturnity, which facilitated the commission of the offense and rendered detection difficult; and (3) abuse of superior strength, considering his sex and the weapon he used in the act which overcame the victim and rendered her unable to defend herself from his savage aggression (United States vs. Consuelo, 13 Phil., 612). The attempted rape committed by this appellant on the same occasion may be penalized separately, but we think there is no need to do so, and we consider it only as a further aggravation of the offense. There is no mitigating circumstance.

Alejandro Carillo has proved himself to be a dangerous enemy of society. The latter must protect itself from such enemy by taking his life in retribution for his offense and as an example and warning to others. In these days of rampant criminality it should have a salutary effect upon the criminally minded to know that the courts do not shirk their disagreeable duty to impose the death penalty in cases where the law so requires.

Conformably to the recommendation of the Solicitor General, we modify the sentenced of the trial court as to the appellant Alejandro Carillo y Almadin by imposing, as we hereby impose upon him, the penalty of death, affirming the sentence in all other respects. This sentence shall be executed in accordance with the provisions of articles 81 and 82 of the Revised Penal Code on a date to be fixed by the trial court within thirty days after the return of the record of the case to said court. It is so ordered.

Moran, C.J., Ozaeta, Paras, Pablo, Bengzon, Padilla, Tuason, Montemayor, Reyes and Torres, JJ., concur.

SECOND DIVISION

[G.R. No. 111806. March 9, 2000]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. BENJAMIN GALANO y GLORIA, ELMER HONORIO y GAYO, BRIGIDO TRIPOLI y CABILOSA and ROMULO STA. IGLESIA y CUISON,accused. Jur-is

BENJAMIN GALANO y GLORIA, BRIGIDO TRIPOLI y CABILOSA and ROMULO STA. IGLESIA y CUISON, accused-appellants.

D E C I S I O N

QUISUMBING, J.:

This is an appeal from the decision of the Regional Trial Court of Manila, Branch 5,[1] convicting accused-appellants Benjamin Galano y Gloria, Brigido Tripoli y Cabilosa, and Romulo Sta. Iglesia y Cuison of the crime of murder under Article 248 (1) of the Revised Penal Code for the killing of Leonardo Torres, and imposing upon them the penalty ofreclusion perpetua. Their co-accused, Elmer Honorio y Gayo, was acquitted. Sc-juris

Benjamin was a 30 year-old laundryman; Brigido, a 24 year-old janitor; and Romulo, a 24 year-old baker, at the time of the alleged offense. They all resided in the Sampaloc area of Manila. Their alleged victims, Virgilio and Leonardo Torres, were total strangers to the appellants. Both were brothers who merely happened to be waiting for a ride and came to the succor of an alleged snatching victim when both were suddenly grabbed from behind by appellants Brigido and Romulo, and then stabbed by Benjamin. Leonardo succumbed to stab wounds but Virgilio survived to tell his story before the trial court.

The pertinent facts in this case are as follows:

On September 8, 1990, at around 8:30 in the evening, while Virgilio and his older brother, Leonardo, were standing at a street corner of España near Centro St., waiting for a ride, they heard somebody shout "snatcher". They approached and asked him what happened.[2] Suddenly, a fast-running jeepney going to Lepanto made a turn at Centro St. and parked on España. A man with a knife in his left hand (later identified as appellant Benjamin) alighted from the jeepney, and ran after the person who had shouted "snatcher". Upon seeing Benjamin, this person ran away[3] Virgilio then lost sight of both in the traffic. He and his brother Leonardo continued waiting for a ride. After a while, two men alighted from the jeepney.[4] To the surprise of Virgilio, the two men (whom he later identified as appellants Brigido and Romulo) suddenly held him and his brother.[5] Appellant Brigido embraced Virgilio from the back, while appellant Romulo similarly held the brother Leonardo.[6] Appellant Benjamin soon appeared and suddenly stabbed Virgilio on the right side of his stomach, then turned to Leonardo and likewise stabbed him in the stomach.[7] Thereafter, the three assailants ran towards the parked jeepney, which the driver first maneuvered backwards, then sped off towards Lepanto St.. As the two brothers tried to follow the jeepney, Leonardo turned to Virgilio to ask if he was also hit, and Virgilio replied "yes". After that, Leonardo fell on the pavement. In spite of the pain, Virgilio continued to run after the jeepney and took note of its plate number, CBR 522. Virgilio even managed to throw stones at the speeding jeepney.[8] Some bystanders joined him in running after the jeepney.[9] He shouted for help. Some people heard him and brought his brother and him to the UST Hospital. There, Leonardo was declared dead on arrival. Juri-ssc

Virgilio was more fortunate. His wounds only required surgery. Before he was operated on, he informed his father of the plate number of the jeepney that their assailants used.

Virgilio stayed in the hospital for more or less a month.[10] He only saw the assailants again when he identified them at the Western Police District headquarters from a police line-up of eight persons.[11] He positively identified appellants Brigido and Romulo as the ones who held him and his brother, respectively, and appellant Benjamin as the one who stabbed them.[12]

On October 16, 1990, the Assistant City Prosecutor of Manila filed an Information[13] for Murder against four (4) accused, as follows:

"The undersigned accuses Benjamin Galano y Gloria, Elmer Honorio y Gayo, Brigido Tripoli y Cabilosa and Romulo Sta. Iglesia y Cuison of the crime of Murder, committed as follows: M-isjuris

That on or about September 8, 1990 in the City of Manila, Philippines, the said accused conspiring and confederating together and helping one another, with intent to kill and with treachery and evident premeditation, attack, assault, and use personal violence upon one LEONARDO TORRES y BARTOLOME by then and there holding his two arms and thereafter stabbed him at the back of his body, thereby inflicting upon said Leonardo Torres y Bartolome mortal wounds which were the direct and immediate cause of his death thereafter."

On December 5, 1990, upon arraignment, all accused, duly assisted by counsel de oficio, entered a plea of not guilty. J-jlex

http://sc.judiciary.gov.ph/jurisprudence/2000/mar2000/111806.html#_ftn13













Trial ensued, with the prosecution presenting two witnesses, namely (1) Virgilio Torres, the brother of the deceased Leonardo Torres; and (2) Dr. Marcial Ceñido y Guevarra, a Medico-Legal Officer of the Western Police District who conducted the post-mortem examination on Leonardo Torres, and who testified that the latter died as a result of severe hemorrhage caused by the stab wound which pierced the internal organs of the victim.[14]

For the defense, appellants testified on their behalf and interposed the defense of alibi and denial. Accused Elmer Honorio waived his right to present evidence on his behalf.

Appellant Benjamin testified that on September 8, 1990, at around 7:00 o'clock in the evening, he left his place of work (Metrobank) where he is a janitor and proceeded to Raon to canvass certain appliances. On his way home from Quiapo, the passenger jeepney which he was riding was stoned. Some of the passengers jumped out of the vehicle but he remained inside the jeepney.[15] Thereafter, he saw a man being chased by two other persons. Still, the jeepney proceeded to Lepanto St. where he alighted and went home.[16]Newmiso

Appellants Romulo and Brigido, in their corroborating testimonies, claimed that on September 8, 1990, at around 7:00 o'clock in the evening, they were watching the movie Die Hard II in a moviehouse along Morayta St., and that they left the moviehouse late in the evening and took a ride home to Antipolo St. along España.[17] The jeepney they were riding was stoned but they remained inside while the other passengers jumped off the jeepney. Nevertheless, the jeepney continued on España up to Antipolo St., where they alighted and proceeded to the house of Romulo where they both spent the night.[18]

On August 20, 1993, the trial court rendered its decision, disposing as follows:

"WHEREFORE, premises considered, except for Elmer Honorio who had no participation in the crime charged, judgment is hereby rendered finding herein all the three (3) accused guilty beyond reasonable doubt of the crime of murder under Article 248 (1) of the Revised Penal Code and accordingly, the penalty of RECLUSION PERPETUA is imposed upon them."

Hence, the present appeal. In their consolidated brief,[19] appellants Benjamin, Romulo and Brigido assign the following errors: Acctmis

A.

THE LOWER COURT ERRED IN NOT FINDING THAT THE UNCORROBORATED TESTIMONY OF PROSECUTION'S WITNESS VIRGILIO TORRES IS UNRELIABLE AND INCREDIBLE. THEREFORE, INSUFFICIENT TO ESTABLISH THE IDENTITY OF THE ASSAILANTS.

B.

THE LOWER COURT ERRED IN NOT FINDING THAT ACCUSED BENJAMIN GALANO COULD NOT HAVE EXECUTED OR PETPETRATED (SIC) THE STABBING COMMITTED BY A "LEFT HANDED" ASSAILANT, WHO WAS THEN IN FRONT OF THE VICTIM, CONSIDERING THAT, AS BORNE BY THE RECORDS OF THIS CASE, SAID ACCUSED GALANO IS "RIGHT HANDED".

C.

THE LOWER COURT ERRED IN NOT FINDING THAT THE FAILURE OF THE PROSECUTION TO ESTABLISH THE MOTIVE ON THE PART OF THE ACCUSED IN COMMITTING THE MURDER IS A GROUND FOR THE ACQUITTAL OF THE ACCUSED, CONSIDERING THAT THE IDENTITY OF THE ASSAILANTS IS IN QUESTION OR DOUBTFUL AND HAS NOT BEEN ESTABLISHED BY EVIDENCE.Misact

D.

THE LOWER COURT ERRED IN NOT DISMISSING THE INFORMATION OR ACQUITTING THE ACCUSED CONSIDERING THAT THE GUILT OF THE ACCUSED HAS NOT BEEN PROVEN BEYOND REASONABLE DOUBT.

E.

THE LOWER COURT ERRED IN NOT RULING THAT TREACHERY HAS NOT ATTENDED THE KILLING OF VICTIM.

F.







THE LOWER COURT ERRED IN IMPOSING THE PENALTY OF RECLUSION PERPETUA, SINCE THE OFFENSE PROVED BY THE EVIDENCE IS HOMICIDE PUNISHABLE BY RECLUSION TEMPORAL.[20]

Considering the aforecited assignment of errors, we find that the main issues in this case concern the credibility of the principal witness, Virgilio Torres; the sufficiency of the evidence presented by the prosecution to convict the appellants of murder; and the propriety of the penalty imposed by the trial court. Sdjad

A. ON THE CREDIBILITY OF PROSECUTION WITNESS VIRGILIO TORRES

Appellants contend that Virgilio Torres was not a credible witness. He could not have possibly identified appellants inasmuch as he failed to state that the nearby lamp post shed enough light on the faces of the appellants at the time of the incident, and that coupled with the fast turn of events, no man would have the capacity to remember details of the alleged incident at the same time. Further, appellants argue that Benjamin could not have stabbed the victims with his left hand since he was "right-handed," as indicated in the Booking Sheet and Arrest Report. Sppedsc

We find appellants' contention unconvincing. In several cases, we have found that illumination from a lamp post is sufficient for purposes of identification,[21] particularly in this case where the victims had an opportunity to see the faces of the assailants before and after they were attacked and considering that the distance from the locus criminis to the parked jeepney were assailants fled was only about ten (10) armslengths.[22]

That Virgilio Torres could vividly recall the circumstances attending the killing of his brother is not at all surprising. It has been repeatedly ruled that people react differently under emotional stress and there is no standard form of behavior when one is confronted by a shocking incident.[23] In general, witnesses to a crime react in different ways.[24] Witnesses to startling occurrences react differently depending upon their situation and state of mind, and there is no standard form of human behavioral response when one is confronted with a strange, startling or frightful experience.[25] The sudden cold-blooded attack on the two brothers by total strangers must have heightened the memory of Virgilio, such that the images of the appellants must have been literally burned into his memory and thus enabled him to identify the appellants subsequently with absolute confidence. Ca-lrsc

Appellants assert that the testimony of Virgilio Torres was uncorroborated. For indeed, the lips of his brother, Leonardo, were sealed by death. But the sole testimony of an eyewitness, if found convincing and trustworthy by the court, is sufficient to support a finding of guilt beyond reasonable doubt.[26] The testimony of a lone eyewitness, if found positive and credible by the trial court, is sufficient to support a conviction especially when the testimony bears the earmarks of truth and sincerity and had been delivered spontaneously, naturally and in a straightforward manner.[27] Witnessses are to be weighed, not numbered. Hence, it is not at all uncommon to reach a conclusion of guilt on the basis of the testimony of a single witness. For although the number of witnesses may be considered a factor in the appreciation of evidence, preponderance is not necessarily with the greatest number and conviction can still be had on the basis of the credible and positive testimony of a single witness.[28] Corroborative evidence is deemed necessary "only when there are reasons to warrant the suspicion that the witness falsified the truth or that his observation had been inaccurate."[29] In this case, we find the testimony of Virgilio Torres convincing and trustworthy. The trial court correctly relied on his testimony. The defense failed to prove any ill-motive on his part to testify against appellants. In the absence of evidence or any indiciumthat the prosecution's main witness harbored ill motives against the accused, the presumption is that he was not so moved and that his testimony was untainted with bias.[30]Scc-alr

Lastly, we find no reason to disturb the factual findings of the trial court, particularly in regard to the fact that although Benjamin was right-handed, according to the Booking Sheet and Arrest Report, for nothing therein negates the fact that he was the one who stabbed the victims. Nothing on record shows that Benjamin's left hand could not be used in a lethal attack. Calrs-pped

B. ON THE ABSENCE OF MOTIVE AND THE DEFENSE OF ALIBI

Appellants claim they have no possible motive to attack the victims, who were total strangers to them. In the crime of murder, however, motive is not an element of the offense. Motive becomes material only when the evidence is circumstantial or inconclusive, and there is some doubt on whether a crime has been committed or whether the accused has committed it. Indeed, motive is totally irrelevant when ample direct evidence sustains the culpability of the accused beyond reasonable doubt.[31] Where a reliable eyewitness has fully and satisfactorily identified the accused as the perpetrator of the felony, motive becomes immaterial in the successful prosecution of a criminal case.[32] Hence, whether or not appellants had any motive in attacking the victims, their conviction may still follow from the positive and categorical identification made by witness Virgilio Torres. Sce-dp

Appellants profess innocence and invoke the defense of denial and alibi. For alibi to prosper, however, appellants must prove not only that they were not present at the scene of the crime but also that it was physically impossible for them to have been present there at the time the offense was committed.[33] Here, appellants not only admitted to being within the vicinity of the commission of the crime but also failed to prove the physical impossibility of their being present at the time and place it was committed. It is well-settled that "[p]ositive identification, where categorical and consistent and without any showing of ill motive on the part of the eyewitness testifying on the matter, prevails over alibi and denial which if not substantiated by clear and convincing evidence are negative and self-serving evidence undeserving weight in law."[34]

C. ON THE EXISTECE OF TREACHERY
















Appellants contend that no treachery attended the fatal attack on Leonardo, for though the victim's hands were held at the back, he could have used his lower extremities to repel the attack by kicking the assailant. We find, however, that the deceased was hardly in a position to defend himself. Ed-psc

There is treachery when the offender commits any of the crimes against persons employing means, methods or forms in the execution thereof, which tend directly and specially to insure its execution, without risk to himself arising from defense which the offended party might make.[35] For treachery to be considered a qualifying circumstance, two conditions must be satisfied: (a) the malefactor employed such means, method or manner of execution as to ensure his or her safety from the defensive or retaliatory acts of the victim; and (b) the said means, method or manner of execution was deliberately adopted.[36] The essence of treachery is that the attack is deliberate and without warning -- done in a swift and unexpected manner, affording the hapless, unarmed and unsuspecting victim no chance to resist or to escape.[37] In this case, the attack on the two brothers was unexpected and sudden, and neither of them could have resisted the knife attack by Benjamin even if they wanted to because of its suddenness. Moreover, the brothers were each held in the tight embrace of appellants Romulo and Brigido. At no time were the assailants open to retaliation. Also, they immediately fled from the scene of the crime by the use of a motor vehicle, a jeepney. Clearly, treachery qualified the killing to murder.

D. ON THE CHARACTERIZATION OF THE CRIME AND THE PROPRIETY OF THE PENALTY

Considering that treachery attended the commission of the offense, we agree with the trial court that the crime committed is murder, under Article 248, No. 1 of the Revised Penal Code. Ed-p

However, contrary to the allegation in the information that the killing was attended by evident premeditation, we cannot appreciate this aggravating circumstance since it was not proved with "clear and convincing evidence."[38] The prosecution ought to have shown the following: (1) the time when the accused determined to commit the crime, (2) an act manifestly indicating that the accused clung to his determination, and (3) a sufficient lapse of time between such a determination and its execution to allow him to reflect upon the consequences of his act.[39] The records do not show the presence of these three conditions, nor any attempt on the part of the prosecution to establish them. Mis-edp

In this case, the offense was committed prior to the passage of Republic Act No. 7659, commonly known as the death penalty law. The penalty for the crime of murder then was reclusion temporal in its maximum period to death. There being no aggravating or mitigating circumstances, the trial court correctly imposed on appellants the penalty of reclusion perpetua. In addition to said penalty, appellants ought also to jointly and severally pay civil indemnity to the heirs of the victim in the amount of fifty thousand pesos (P50,000.00), pursuant to prevailing case law.

WHEREFORE, the assailed Decision finding appellants guilty of murder beyond reasonable doubt and sentencing them to reclusion perpetua is hereby AFFIRMED. Appellants are also hereby ORDERED to indemnify jointly and severally the heirs of the victim, Leonardo Torres, in the amount of P50,000.00, in line with current jurisprudence. Costs against appellants.

SO ORDERED.

Bellosillo, (Chairman), Mendoza, Buena, and De Leon, Jr., JJ., concur. Mis-o







Manila

FIRST DIVISION

G.R. No. L-31683 January 31, 1983

ERNESTO M. DE GUZMAN, petitioner, vs.HON. ABELARDO SUBIDO, as Civil Service Commissioner, HON. NORBERTO AMORANTO, as Mayor of Quezon City, ET AL., respondents.

Juan T. David for petitioner.

Jose Torcuator for respondents.

GUTIERREZ, JR., J.:

All persons appointed to positions covered by the civil service law are required by regulation to accomplish an information sheet on the prescribed form. The information sheet provides in summary outline the personal date, eligibilities, education, experiences, and other qualifications of the appointee. Included in the information sheet is a query on any criminal records of the applicant, which in later versions of the prescribed form asks if he has ever been arrested, indicted, or convicted of any crime or accused in any administrative proceeding.

The issue in this petition for review is whether or not a person otherwise qualified but who admits having violated a city ordinance on jaywalking and another ordinance requiring a cochero to occupy only the seat intended for a cochero in a calesa is disqualified for appointment to the Quezon City Police Force.

Petitioner Ernesto M. de Guzman was appointed patrolman in the Quezon City Police Department by Mayor Norberto S. Amoranto on August 16, 1965. He was a civil service eligible having taken and passed the civil service patrolman's examination given on November 24, 1962. He had also passed the usual character investigation conducted before appointment. As a newly appointed patrolman, the petitioner went through and successfully completed the police training course.

On March 21, 1966, the petitioner's appointment was forwarded to the Commissioner of Civil Service. On August 18, 1966, or a year after the appointment and with no action on the appointment papers being taken by the respondent commissioner, the respondents city treasurer and city auditor stopped the payment of the petitioner's salaries.

On May 12, 1967, the respondent commissioner returned the Petitioner's appointment papers, without action thereon, to the respondent mayor on the ground that Mr. de Guzman was disqualified for appointment under Republic Act No. 4864, the Police Act of 1966, which provides:

(d) SEC. 9. General Qualifications of Appointment. —No person shall be appointed to a local police agency unless he possesses the following qualifications:

xxx xxx xxx

(5) He must have no criminal record.'(SEC. 9 (5), Police Act of 1966)

The above finding was based solely on the petitioner's own answer to question No. 15 in the information sheet:

15. Have you been accused, indicted, or tried for the violation of any law, ordinance, or regulation, before any court or tribunal?

The answer given by the petitioner was:

Yes. Jaywalking-paid fine P5.50; Municipal O.d. (Mla.) Sect. 1187 (cochero) paid fine of P5.00.

On September 7, 1967, the petitioner filed a petition for certiorari and mandamus with preliminary mandatory injunction with the Court of First Instance of Rizal, Branch V at Quezon city.

On May 29, 1969, the lower court rendered a decision dismissing the petition. According to the court, the requirement of "no criminal record" means without any criminal record and makes no distinction whether an act violates a state law or only a municipal or city ordinance.

The issue posed in this petition is presented by Mr. de Guzman, thus:

Whether or not violations and/or convictions of municipal ordinances, one, for 'Jaywalking' and the other, Manila Municipal Ordinance No. 1187, prohibiting the cochero from 'occupying any part of the vehicle except the seat reserved for him', constitute 'CRIMINAL RECORD' to disqualify the petitioner under the Police Act of 1966 (Rep. Act No. 4864) from appointment to the Quezon City Police Force.

We are constrained to grant the petition.

The former Civil Service Act, Republic Act No. 2260, as amended, stated in its Section 23 that opportunity for government employment shag be open to all qualified citizens and positive efforts shall be exerted to attract the best qualified to enter the service. The same policy is reiterated in the Civil Service Decree, Presidential Decree No. 807, at Section 19, which superseded Republic Act No. 2260.

The requirements for applicants to a policeman's position may be quite stringent but the basic policy of attracting the best qualified is not served by automatically excluding any person who in an absent minded mood or while hurrying to an urgent appointment may unwittingly have crossed a street or stepped down from the curb in violation of a jaywalking ordinance. The same thing is true of a person who may have worked his way through college as a cochero and, who, pitying his horse struggling up an incline or a bridge, leaves his seat to stand after and forward to balance the calesa load or who, alone on his way home, sits in the seat intended for passengers only to be fined for violating an obscure municipal ordinance.

The petitioner cites decisions of American courts in support of his arguments:

By weight of authority, the violation of a municipal ordinance, enacted by a city under legislative authority, as in the case of ordinances prohibiting and punishing gaming and the keeping of gaming houses, etc., is not a crime, in the proper sense of the term, for such ordinances are not public laws, and the punishment for their violation is imposed by the state.'(Withers v. State, 36 Ala. 252; City of Greely v. Hamman, 12 Cole., 94, 20 Pac. 1; Williams v. Augusta, 4 Ga. 509) as cited on p. 7, Francisco's Revised Penal Code, Book One, 3rd Edition.

xxx xxx xxx

The common-law definition of a 'crime' as given by Blackstone, is 'an act committed or omitted in violation of a public law,' ... giving the accused the right to be heard in all 'criminal prosecutions' relates exclusively to prosecution for violation of public laws of the state, and a city ordinance is not a public law of the state, but a local law of the particular corporation, made for its internal practice and good government. (Castillo [should be Costelo] v. Feagin, 50 South 134, 135, 162 Ala. 191)

There are other federal decisions which state that prosecutions to enforce penalties for violations of municipal ordinances are not criminal prosecutions and the offenses against these ordinances are not criminal cases. (City of Mobile v. McCown, Oil Co., 148 So. 402, 405; City of Mankato v. Arnold, 30 N.W. 305, 306; Village of Litchville v. Hanson, 124 N.W. 1119, 1120).

We do not go so far as to sustain the arguments that only violations of statutes enacted by the national legislature can give rise to "crimes" or "a criminal record" as these terms are used in our law on local governments or the law of public officers. However, we take cognizance of the distinction in the law of municipal corporations which distinguishes between acts not essentially criminal relating to municipal regulations for the promotion of peace, good order, health, safety, and comfort of residents and acts in, intrinsically punishable as public offenses. (See cases cited in Dillon, A Treatise On The Law of Municipal Corporations, Vol. II, 5th Edition, Sections 745, 746, and 749.) A penalty imposed for the breach of a municipal regulation is not necessarily an exercise of the sovereign authority, to define crimes and provide for their punishment, delegated to a local government. In many cases, the penalty is merely intended not to render the ordinance inoperative or useless.

The phrase "criminal record" governing qualifications for appointments could not have been intended by the legislature to automatically cover every violation of a municipal or city ordinance carrying a sanction of a nominal fine to enforce it. A violation of a municipal ordinance to qualify as a "crime" must involve at least a certain degree of evil doing, immoral conduct, corruption, malice, or want of principles reasonably related to the requirements of the public office.

Automatic and perpetual disqualification of a person who in one unguarded moment threw a cigarette butt on the street, spat in public, deposited house garbage in a market receptacle for garbage, exceeded the speed limit for vehicles. blew his car horn near a

school or hospital, or, as in this case, jaywalked, and who has paid the fine imposed by ordinance as commensurate deterrence for the act, would be unreasonable, if not oppressive.

Respondent Subido should have gone deeper into the nature of the petitioner's acts instead of taking every "Yes" answer in Question 15 of the information sheet as an automatic disqualification. Under Rule VI of the Civil Service Rules and Regulations, the respondent commissioner had 180 days from receipt of the appointment papers to act on them. Inaction means the appointment is approved as properly made. The papers were returned more than a year by the commissioner after he received them.1äwphï1.ñët The appointment, not having any defect of record except the matter in issue in this case, must be deemed complete and properly made after the 180 days period. The termination of the petitioner's services was, therefore, an illegal and invalid removal. The petitioner should be reinstated, assuming he meets the physical and other requirements of the Integrated National Police under the new legislation and procedures governing police forces. In addition to being paid any salaries for services actually rendered but not paid, the petitioner, following the formula in cases of illegal dismissals is entitled to five years backpay (Cristobal v. Melchor, 78 SCRA 175,187).

WHEREFORE, the decision of the court a quo is set aside. The Integrated National Police and the respondent officials are directed to reinstate the petitioner to the Quezon City Police Force provided he meets the age, physical, and other qualifications and eligibilities for patrolman under present legislation and rules. The city government of Quezon City and the incumbent Mayor, Treasurer, and Auditor of the city are ordered to pay the petitioner any unpaid services and allowances for services actually rendered and five years backpay from the date his services were actually terminates.

SO ORDERED.

Teehankee (Chairman), Melencio-Herrera, Plana, Vasquez, and Relova, JJ., concur.


SUPREME COURTManila

EN BANC

DECISION

November 3, 1924

G.R. No. L-22008

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,

vs.

JULIO POMAR, defendant-appellant.

Araneta and Zaragoza for appellant.

Attorney-General Villa-Real for appellee.

Johnson, J.:The only question presented by this appeal is whether or not the provisions of sections 13 and 15 of Act No. 3071 are a reasonable

and lawful exercise of the police power of the state.

It appears from the record that on the 26th day of October, 1923, the prosecuting attorney of the City of Manila presented a

complaint in the Court of First Instance, accusing the defendant of a violation of section 13 in connection with section 15 of Act No.

3071 of the Philippine Legislature. The complaint alleged:

That on or about the 27th day of August, 1923, and sometime prior thereto, in the City of Manila, Philippine Islands, the said

accused, being the manager and person in charge of La Flor de la Isabela, a tobacco factory pertaining to La Campania General de

Tabacos de Filipinas, a corporation duly authorized to transact business in said city, and having, during the year 1923, in his

employ and service as cigar-maker in said factory, a woman by the name of Macaria Fajardo, whom he granted vacation leave

which began on the 16th day of July, 1923, by reason of her pregnancy, did then and there willfully, unlawfully, and feloniously fail

and refuse to pay to said woman the sum of eighty pesos (P80), Philippine currency, to which she was entitled as her regular

wages corresponding to thirty days before and thirty days after her delivery and confinement which took place on the 12th day of

August, 1923, despite and over the demands made by her, the said Macaria Fajardo, upon said accused, to do so.

To said complaint, the defendant demurred, alleging that the facts therein contained did not constitute an offense. The demurrer

was overruled, whereupon the defendant answered and admitted at the trial all of the allegations contained in the complaint, and

contended that the provisions of said Act No. 3071, upon which the complaint was based were illegal, unconstitutional and void.

Upon a consideration of the facts charged in the complaint and admitted by the defendant, the Honorable C. A. Imperial, judge,

found the defendant guilty of the alleged offense described in the complaint, and sentenced him to pay a fine of P50, in accordance

with the provisions of section 15 of said Act, to suffer subsidiary imprisonment in case of insolvency, and to pay the costs.

From that sentence the defendant appealed, and now makes the following assignments of error: That the court erred in overruling

the demurrer; in convicting him of the crime charged in the information; and in not declaring section 13 of Act No. 3071,

unconstitutional:

Section 13 of Act No. 3071 is as follows:

Every person, firm or corporation owning or managing a factory, shop or place of labor of any description shall be obliged to grant

to any woman employed by it as laborer who may be pregnant, thirty days vacation with pay before and another thirty days after

confinement: Provided, That the employer shall not discharge such laborer without just cause, under the penalty of being required

to pay to her wages equivalent to the total of two months counted from the day of her discharge.

Section 15 of the same Act is as follows:

Any person, firm or corporation violating any of the provisions of this Act shall be punished by a fine of not less than fifty pesos nor

more than two hundred and fifty, or by imprisonment for not less than ten days nor more than six months, or both, in the discretion

of the court.

In the case of firms or corporations, the presidents, directors or managers thereof or, in their default, the persons acting in their

stead, shall be criminally responsible for each violation of the provisions of this Act.

Said section 13 was enacted by the Legislature of the Philippine Islands in the exercise of its supposed police power, with the

praiseworthy purpose of safeguarding the health of pregnant women laborers in “factory, shop or place of labor of any description,”

and of insuring to them, to a certain extent, reasonable support for one month before and one month after their delivery. The

question presented for decision by the appeal is whether said Act has been adopted in the reasonable and lawful exercise of the

police power of the state.

In determining whether a particular law promulgated under the police power of the state is, in fact, within said power, it becomes

necessary first, to determine what that power is, its limits and scope. Literally hundreds of decisions have been promulgated in

which definitions of the police power have been attempted. An examination of all of said decisions will show that the definitions are

generally limited to particular cases and examples, which are as varied as they are numerous.

By reason of the constant growth of public opinion in a developing civilization, the term “police power” has never been, and we do

not believe can be, clearly and definitely defined and circumscribed. One hundred years ago, for example, it is doubtful whether the

most eminent jurist, or court, or legislature would have for a moment thought that, by any possibility, a law providing for the

destruction of a building in which alcoholic liquors were sold, was within a reasonable and lawful exercise of the police power.

(Mugler vs. Kansas, 123 U. S., 623.) The development of civilization, the rapidly increasing population, the growth of public opinion,

with a desire on the part of the masses and of the government to look after and care for the interests of the individuals of the state,

have brought within the police power of the state many questions for regulation which formerly were not so considered. In a

republican form of government public sentiment wields a tremendous influence upon what the state may or may not do, for the

protection of the health and public morals of the people. Yet, neither public sentiment, nor a desire to ameliorate the public morals

of the people of the state will justify the promulgation of a law which contravenes the express provisions of the fundamental law of

the people – the constitutional of the state.

A definition of the police power of the state must depend upon the particular law and the particular facts to which it is to be applied.

The many definitions which have been given by the highest courts may be examined, however, for the purpose of giving us a

compass or guide to assist us in arriving at a correct conclusion in the particular case before us. Sir William Blackstone, one of the

greatest expounders of the common law, defines the police power as “the due regulation and domestic order of the kingdom,

whereby the inhabitants of a state, like members of a well-governed family, are bound to conform their general behavior to the rules

of propriety, good neighborhood, and good manners, and to be decent, industrious, and inoffensive in their respective stations.” (4

Blackstone’s Commentaries, 162.)

Mr. Jeremy Bentham, in his General View of Public Offenses, gives us the following definition: “Police is in general a system of

precaution, either for the prevention of crimes or of calamities. Its business may be distributed into eight distinct branches: (1)

Police for the prevention of offenses; (2) police for the prevention of calamities; (3) police for the prevention of endemic diseased;

(4) police of charity; (5) police of interior communications; (6) police of public amusements; (7) police for recent intelligence; (8)

police for registration.”

Mr. Justice Cooley, perhaps the greatest expounder of the American Constitution, says: “The police power is the power vested in

the legislature by the constitution to make, ordain, and establish all manner of wholesome and reasonable laws, statutes, and

ordinances, either with penalties or without, not repugnant to the constitution, as they shall judge to be for the good and welfare of

the commonwealth, and of the subject of the same. . . .” (Cooley’s Constitutional Limitations, p. 830.)

In the case of Commonwealth of Massachusetts vs. Alger (7 Cushing, 53), we find a very comprehensive definition of the police

power of the state. In that case it appears that the colony of Massachusetts in 1647 adopted an Act to preserve the harbor of

Boston and to prevent encroachments therein. The defendant unlawfully erected, built, and established in said harbor, and

extended beyond said lines and into and over the tide water of the Commonwealth a certain superstructure, obstruction and

encumbrance. Said Act provided a penalty for its violation of a fine of not less than $1,000 nor more than $5,000 for every offense,

and for the destruction of said buildings, or structures, or obstructions as a public nuisance. Alger was arrested and placed on trial

for violation of said Act. His defense was that the Act of 1647 was illegal and void, because if permitted the destruction of private

property without compensation. Mr. Justice Shaw, speaking for the court in that said, said: “We think it is a settled principle, growing

out of the nature of well-ordered civil society, that every holder of property, however absolute and unqualified may be his title, holds

it under the implied liability that his use of it may be so regulated, that it shall not be injurious to the equal environment of others

having an equal right to the enjoyment of their property nor injurious to the rights of the community. All property in this

commonwealth, as well that in the interior as that bordering on tide waters, is derived directly or indirectly from the government and

held subject to those general regulations, which are necessary to the common good and general welfare. Rights of property, like all

other social and conventional rights, are subject to such reasonable limitations in their enjoyment, as shall prevent them from being

injurious, and to such reasonable restraints and regulations established by law, as the legislature, under the governing and

controlling power vested in them by the constitution, may think necessary and expedient.” Mr. Justice Shaw further adds: “. . . The

power we allude to is rather the police power, the power vested in the legislature by the constitution, to make, ordain and establish

all manner of wholesome and reasonable laws, statutes and ordinances, either with penalties or without, not repugnant to the

constitution, as they shall judge to be for the good and welfare of the commonwealth, and of the subjects of the same.”

This court has, in the case of Case vs. Board of Health and Heiser (24 Phil., 250), in discussing the police power of the state, had

occasion to say: “. . . It is a well settled principle, growing out of the nature of well-ordered and civilized society, that every holder of

property, however absolute and unqualified may be his title, holds it under the implied liability that his use of it shall not be injurious

to the equal enjoyment of others having an equal right to the enjoyment of their property, nor injurious to the rights of the

community. All property in the state is held subject to its general regulations, which are necessary to the common good and general

welfare. Rights of property, like all other social and conventional rights, are subject to such reasonable limitations in their enjoyment

as shall prevent them from being injurious, and to such reasonable restraints and regulations, established by law, as the legislature,

under the governing and controlling power vested in them by the constitution, may think necessary and expedient. The state, under

the police power is possessed with plenary power to deal with all matters relating to the general health, morals, and safety of the

people, so long as it does not contravene any positive inhibition of the organic law and providing that such power is not exercised in

such a manner as to justify the interference of the courts to prevent positive wrong and oppression.”

Many other definitions have been given not only by the Supreme Court of the United States but by the Supreme Court of every

state of the Union. The foregoing definitions, however, cover the general field of all of the definitions, found in jurisprudence. From

all of the definitions we conclude that it is much easier to perceive and realize the existence and sources of the police power than to

exactly mark its boundaries, or prescribe limits to its exercise by the legislative department of the government.

The most recent definition which has been called to our attention is that found in the case of Adkins vs. Children’s Hospital of the

District of Columbia (261 U. S., 525). In that case the controversy arose in this way: A children’s hospital employed a number of

women at various rates of wages, which were entirely satisfactory to both the hospital and the employees. A hotel company

employed a woman as elevator operator at P35 per month and two meals a day under healthy and satisfactory conditions, and she

did not risk to lose her position as she could not earn so much anywhere else. Her wages were less than the minimum fixed by a

board created under a law for the purpose of fixing a minimum wage for women and children, with a penalty providing a punishment

for a failure or refusal to pay the minimum wage fixed. The wage paid by the hotel company of P35 per month and two meals a day

was less than the minimum wage fixed by said board. By reason of the order of said board, the hotel company, was about to

discharge her, as it was unwilling to pay her more and could not give her employment at that salary without risking the penalty of a

fine and imprisonment under the law. She brought action to enjoin the hotel company from discharging her upon the ground that the

enforcement of the “Minimum Wage Act” would deprive her of her employment and wages without due process of law, and that she

could not get as good a position anywhere else. The constitutionality of the Act was squarely presented to the Supreme Court of

the United States for decision.

The Supreme Court of the United States held that said Act was void on the ground that the right to contract about one’s own affairs

was a part of the liberty of the individual under the constitution, and that while there was no such thing as absolute freedom of

contract, and it was necessary subject to a great variety of restraints, yet none of the exceptional circumstances, which at times

justify a limitation upon one’s right to contract for his own services, applied in the particular case.

In the course of the decision in that case (Adkins vs. Children’s Hospital of the District of Columbia, 261 U. S., 525), Mr. Justice

Sutherland, after a statement of the fact and making reference to the particular law, said:

The statute now under consideration is attacked upon the ground that it authorizes an unconstitutional interference with the

freedom of contract including within the guarantees of the due process clause of the 5th Amendment. That the right to contract

about one’s affairs is a part of the liberty of the individual protected by this clause is settled by the decision of this court, and is no

longer open to question. Within this liberty are contracts of employment of labor. In making such contracts, generally speaking, the

parties have an equal right to obtain from each other the best terms they can as the result of private bargaining. (Allgeyer vs.

Louisiana, 165 U. S., 578; 591; Adair vs. United States, 208 U. S., 161; Muller vs. Oregon, 208 U. S., 412, 421.)

x x x x x x x x x

The law takes account of the necessities of only one party to the contract. It ignores the necessities of the employer by compelling

him to pay not less than a certain sum, not only whether the employee is capable of earning it, but irrespective of the ability of his

business to sustain the burden, generously leaving him, of course, the privilege of abandoning his business as an alternative for

going on at a loss. Within the limits of the minimum sum, he is precluded, under penalty of fine and imprisonment, from adjusting

compensation to the differing merits of his employees. It compels him to pay at least the sum fixed in any event, because the

employee needs it, but requires no service of equivalent value from the employee. It (the law) therefore undertakes to solve but

one-half of the problem. The other half is the establishment of a corresponding standard of efficiency; and this forms no part of the

policy of the legislation, although in practice the former half without the latter must lead to ultimate failure, in accordance with the

inexorable law that no one can continue indefinitely to take out more than he puts in without ultimately exhausting the supply. The

law . . . takes no account of periods of distress and business depression, or crippling losses, which may leave the employer himself

without adequate means of livelihood. To the extent that the sum fixed exceeds the fair value of the services rendered, it amounts

to a compulsory exaction from the employer for the support of a partially indigent person, for whose condition there rests upon him

no peculiar responsibility, and therefore, in effect, arbitrarily shifts to his shoulders a burden which, if it belongs to anybody, belongs

to society as a whole.

The failure of this state which, perhaps more than any other, puts upon it the stamp of invalidity is that it exacts from the employer

an arbitrary payment for a purpose and upon a basis having no casual connection with his business, or the contract, or the work the

employee engages to do. The declared basis, as already pointed out, is not the value of the service rendered, but the extraneous

circumstances that the employee needs to get a prescribed sum of money to insure her subsistence, health and morals. . . . The

necessities of the employee are alone considered, and these arise outside of the employment, are the same when there is no

employment, and as great in one occupation as in another. . . . In principle, there can be no difference between the case of selling

labor and the case of selling goods. If one goes to the butcher, the baker, or grocer to buy food, he is morally entitled to obtain the

worth of his money, but he is not entitle to more. If what he gets is worth what he pays, he is not justified in demanding more simply

because he needs more; and the shopkeeper, having dealt fairly and honestly in that transaction, is not concerned in any peculiar

sense with the question of his customer’s necessities. Should a statute undertake to vest in a commission power to determine the

quantity of food necessary for individual support, and require the shopkeeper, if he sell to the individual at all, to furnish that

quantity at not more than a fixed maximum, it would undoubtedly fall before the constitutional test. The fallacy of any argument in

support of the validity of such a statute would be quickly exposed. The argument in support of that now being considered is equally

fallacious, though the weakness of it may not be so plain. . . .

It has been said that the particular statute before us is required in the interest of social justice for whose end freedom of contract

may lawfully be subjected to restraint. The liberty of the individual to do as he pleases, even in innocent matters, is not absolute.

That liberty must frequently yield to the common good, and the line beyond which the power of interference may not be pressed is

neither definite nor unalterable, may be made to move, within limits not well defined, with changing needs and circumstances.

The late Mr. Justice Harlan, in the case of Adair vs. United States (208 U. S., 161, 174), said that the right of a person to sell his

labor upon such terms as he deems proper is, in its essence, the same as the right of the purchaser of labor to prescribe the

conditions upon which he will accept such labor from the person offering to sell. In all such particulars the employer and the

employee have equality of right, and any legislation that disturbs that equality is an arbitrary interference with the liberty of contract,

which no government can legally justify in a free land, under a constitution which provides that no person shall be deprived of his

liberty without due process of law.

Mr. Justice Pitney, in the case of Coppage vs. Kansas (235 U. S., 1, 14), speaking for the Supreme Court of the United States,

said: “. . . Included in the right of personal liberty and the right of private property – partaking of the nature of each – is the right to

make contracts for the acquisition of property. Chief among such contracts is that of personal employment, by which labor and

other services are exchange for money or other forms of property. If this right be struck down or arbitrarily interfered with, there is a

substantial impairment of liberty in the long established constitutional sense. The right is as essential to the laborer as to the

capitalist, to the poor as to the rich; for the vast majority of persons have no other honest way to begin to acquire property, save by

working for money.”

The right to liberty includes the right to enter into contracts and to terminate contracts. In the case of Gillespie vs. People (118 Ill.,

176, 183-185) it was held that a statute making it unlawful to discharge an employee because of his connection with any lawful

labor organization, and providing a penalty therefor, is void, since the right to terminate a contract, subject to liability to respond in a

civil action for an unwarranted termination, is within the protection of the state and Federal constitutions which guarantee that no

person shall be deprived of life, liberty or property without due process of law. The court said in part: “. . . One citizen cannot be

compelled to give employment to another citizen, nor can anyone be compelled to be employed against his will. The Act of 1893,

now under consideration, deprives the employer of the right to terminate his contract with his employee. The right to terminate such

a contract is guaranteed by the organic law of the state. The legislature is forbidden to deprive the employer or employee of the

exercise of that right. The legislature has no authority to pronounce the performance of an innocent act criminal when the public

health, safety, comfort or welfare is not interfered with. The statute in question says that, if a man exercises his constitutional right

to terminate a contract with his employee, he shall, without a hearing, be punished as for the commission of a crime.

x x x x x x x x x

Liberty includes not only the right to labor, but to refuse to labor, and, consequently, the right to contract to labor or for labor, and to

terminate such contracts, and to refuse to make such contracts. The legislature cannot prevent persons, who are sui juris, from

laboring, or from making such contracts as they may see fit to make relative to their own lawful labor; nor has it any power by penal

laws to prevent any person, with or without cause, from refusing to employ another or to terminate a contract with him, subject only

to the liability to respond in a civil action for an unwarranted refusal to do that which has been agreed upon. Hence, we are of the

opinion that this Act contravenes those provisions of the state and Federal constitutions, which guarantee that no person shall be

deprived of life, liberty or property without due process of law.

The statute in question is exactly analogous to the “Minimum Wage Act” referred to above. In section 13 it will be seen that no

person, firm, or corporation owning or managing a factory shop, or place of labor of any description, can make a contract with a

woman without incurring the obligation, whatever the contract of employment might be, unless he also promise to pay to such

woman employed as a laborer, who may become pregnant, her wages for thirty days before and thirty days after confinement. In

other words, said section creates a term or condition in every contract made by every person, firm, or corporation with any woman

who may, during the course of her employment, become pregnant, and a failure to include in said contract the terms fixed to a fine

and imprisonment. Clearly, therefore, the law has deprived, every person, firm, or corporation owning or managing a factory, shop

or place of labor of any description within the Philippine Islands, of his right to enter into contracts of employment upon such terms

as he and the employee may agree upon. The law creates a term in every such contract, without the consent of the parties. Such

persons are, therefore, deprived of their liberty to contract. The constitution of the Philippine Islands guarantees to every citizen his

liberty and one of his liberties is the liberty to contract.

It is believed and confidently asserted that no case can be found, in civilized society and well-organized governments, where

individuals have been deprived of their property, under the police power of the state, without compensation, except in cases where

the property in question was used for the purpose of violating some legally adopted, or constitutes a nuisance. Among such cases

may be mentioned: Apparatus used in counterfeiting the money of the state; firearms illegally possessed; opium possessed in

violation of law; apparatus used for gambling in violation of law; buildings and property used for the purpose of violating laws

prohibiting the manufacture and sale of intoxicating liquors; and all cases in which the property itself has become a nuisance and

dangerous and detrimental to the public health, morals and general welfare of the state. In all of such cases, and in many more

which might be cited, the destruction of the property is permitted in the exercise of the police power of the state. But it must first be

established that such property was used as the instrument for the violation of a valid existing law. (Mugler vs. Kansas, 123 U. S.,

623; Slaughter-House Cases, 16 Wall., [U. S.], 36; Butchers’ Union, etc., Co. vs. Crescent City, etc., Co., 111 U. S., 746 John

Stuart Mill – “On Liberty,” 28, 29.)

Without further attempting to define what are the peculiar subjects or limits of the police power, it may safely be affirmed, that every

law for the restraint and punishment of crimes, for the preservation of the public peace, health, and morals, must come within this

category. But the state, when providing by legislation for the protection of the public health, the public morals, or the public safety, is

subject to and is controlled by the paramount authority of the constitution of the state, and will not be permitted to violate rights

secured or guaranteed by that instrument or interfere with the execution of the powers and rights guaranteed to the people under

their law – the constitution. (Mugler vs. Kansas, 123 U. S., 623.)

The police power of the state is a growing and expanding power. As civilization develops and public conscience becomes

awakened, the police power may be extended, as has been demonstrated in the growth of public sentiment with reference to the

manufacture and sale of intoxicating liquors. But that power cannot grow faster than the fundamental law of the state, nor transcend

or violate the express inhibition of the people’s law – the constitution. If the people desire to have the police power extended and

applied to conditions and things prohibited by the organic law, they must first amend that law.

It will also be noted from an examination of said section 13, that it takes no account of contracts for the employment of women by

the day nor by the piece. The law is equally applicable to each case. It will hardly be contended that the person, firm or corporation

owning or managing a factory, shop or place of labor, who employs women by the day or by the piece, could be compelled under

the law to pay for sixty days during which no services were rendered.

It has been decided in a long line of decisions of the Supreme Court of the United States, that the right to contract about one’s

affairs is a part of the liberty of the individual, protected by the “due process of law” clause of the constitution. (Allgeyer vs.

Louisiana, 165 U. S., 578, 591; New York Life Ins. Co. vs. Dodge, 246 U. S., 357, 373, 374; Coppage vs. Kansas, 236 U. S., 1, 10,

14; Adair vs. United States, 208 U. S., 161; Lochner vs. New York, 198 U. S.; 45, 49; Muller vs. Oregon, 208 U. S., 412, 421.)

The rule in this jurisdiction is, that the contracting parties may establish any agreements, terms, and conditions they may deem

advisable, provided they are not contrary to law, morals or public policy. (Art. 1255, Civil Code.)

For all of the foregoing reasons, we are fully persuaded, under the facts and the law, that the provisions of section 13, of Act No.

3071 of the Philippine Legislature, are unconstitutional and void, in that they violate and are contrary to the provisions of the first

paragraph of section 3 of the Act of Congress of the United States of August 29, 1916. (Vol. 12, Public Laws, p. 238.)

Therefore, the sentence of the lower court is hereby revoked, the complaint is hereby dismissed, and the defendant is hereby

discharged from the custody of the law, with costs de oficio. So ordered.

Street, Malcolm, Avanceña, Villamor, Ostrand and Romualdez, JJ., concur.


SUPREME COURTManila

EN BANC

DECISION

October 17, 1916

G.R. No. L-11676

THE UNITED STATES, plaintiff-appellee,

vs.

ANDRES PABLO, defendant-appellant.

Alfonso E. Mendoza for appellant.

Attorney-General Avanceña for appellee.

Torres, J.:At about noon of the 21st of October, 1915, Andres Pablo, a policeman of the municipality of Balanga, went by order of his chief to

the barrio of Tuyo to raid a jueteng game which, according to the information lodged, was being conducted in that place; but before

the said officer arrived there the players, perhaps advised of his approach by a spy, left and ran away; however, on his arrival at a

vacant lot the defendant there found Francisco Dato and, at a short distance away, a low table. After a search of the premises he

also found thereon a tambiolo (receptacle) and 37 bolas (balls). Notwithstanding that the officer had seen the men Maximo Malicsi

and Antonio Rodrigo leave the said lot, yet, as at first he had seen no material proof that the game was being played, he refrained

from arresting them, and on leaving the place only arrested Francisco Daro, who had remained there.

In reporting to his chief what had occurred, the policeman presented a memorandum containing the following statement: “In the

barrio of Tuyo I raided a jueteng na bilat game, seized a tambiolo and bolas, and saw the cabecillas Maximo MAlicsi and Antonio

Rodrigo and the gambler Francisco Dato. I saw the two cabecillas escape.”

In consequence, chief of police Jose D. Reyes, on October 22, 1915, filed a complaint in the court of justice of the peace charging

the said Rodrigo, Malicsi, and Dato with having gambled at jueteng, in violation of municipal ordinance No. 5. As a result of this

complaint the accused were arrested, but were afterwards admitted to bail.

At the hearing of the case Francisco Dato pleaded guilty. The other two accused, Maximo Malicsi and Antonio Rodrigo, pleaded not

guilty; therefore, during the trial the chief of police presented the memorandum exhibited by the policeman Andres Pablo, who

testified under oath that on the date mentioned he and Tomas de Leon went to the said barrio to raid a jueteng game, but that

before they arrived there they saw from afar that some persons started to run toward the hills; that when witness and his

companion arrived at a vacant lot they saw Francisco Dato and a low table there, and the table caused them to suspect that a

jueteng game was being carried on; that in fact they did find on one side of the lot a tambiolo and 37 bolas, but that they did not see

the accused Rodrigo and Malicsi on the said lot, nor did they see them run; and that only afterwards did the witness learn that these

latter were the cabecillas or ringleaders in the jueteng game, from information given him by an unknown person. In view of this

testimony by the police officer who made the arrest and of the other evidence adduced at the trial the court acquitted the

defendants Antonio Rodrigo and Maximo Malicsi and sentenced only Francisco Dato, as a gambler.

Before the case came to trial in the justice of the peace court the policeman Andres Pablo had an interview and conference with the

accused Malicsi and ROdrigo in the house of Valentin Sioson. On this occasion he was instructed not to testify against Malicsi and

Rodrigo, and in fact received through Gregorio Ganzon the sum of P5.

By reason of the foregoing and after making a preliminary investigation the provincial fiscal, on December 1, 1915, filed an

information in the Court of First Instance of Bataan charging Andres Pablo with the crime of perjury, under the provisions of section

3 of Act No. 1697. The following is an extract from the complaint:

That on or about November 6, 1915, in the municipality of Balanga, Bataan, P.I., and within the jurisdiction of this court, the said

accused, Andres Pablo, during the hearing in the justice of the peace court of Balanga of the criminal cause No. 787, entitled the

United States vs. Antonio Rodrigo and Maximo Malicsi, for violation of Municipal Ordinance No. 5 of the municipality of Balanga,

did, willfully, unlawfully and feloniously affirm and swear in legal form before the justice of the peace court as follow: `We did not

there overtake the accused Antonio Rodrigo and Maximo Malicsi, nor did we even see them run,’ the said statement being utterly

false, as the accused well knew that it was, and material to the decision of the said criminal cause No. 787, United States vs.

Antonio Rodrigo and Maximo Malicsi. An act committed with violation of law.

The case came to trial and on December 28, 1915, the court rendered judgment therein sentencing the defendant to the penalty of

two years’ imprisonment, to pay a fine of P100 and, in case of insolvency, to the corresponding subsidiary imprisonment, and to

pay the costs. The defendant was also disqualified from thereafter holding any public office and from testifying in the courts of the

Philippine Islands until the said disqualification should be removed. From this judgment he appealed.

Francisco Dato, on testifying as a witness, said that when the policemen Andres Pablo and Tomas de Leon arrived at the place

where the jueteng was being played, they found the defendant gamblers, Malicsi and Rodrigo; that, prior to the hearing of the case

in the justice of the peace court, Malicsi and Rodrigo ordered him to call Andres Pablo, who, together with witness, went to the

house of Valentin Sioson, where they held a conference; that witness pleaded guilty in the justice of the peace court, in fulfillment of

his part of an agreement made between himself and his two coaccused, Malicsi and Rodrigo, who promised him that they would

support his family during the time he might be a prisoner in jail; that Andres Pablo did not know that they were gamblers, because

he did not find them in the place where the game was in progress, but that when witness was being taken to the municipal building

by the policemen he told them who the gamblers were who had run away and whom Andres Pablo could have seen.

Maximo Malicsi corroborated the foregoing testimony and further stated that, on the arrival of the policemen who made the arrest

and while they were looking for the tambiolo, he succeeded in escaping; that Andres Pablo had known him for a long time and

could have arrested him had he wished to do so; that prior to the hearing he and his codefendants, ROdrigo and Dato, did in fact

meet in the house of Valentin Sioson, on which occasion they agreed that they would give the policemen Andres Pablo P20,

provided witness and Rodrigo were excluded from the charge; and that only P15 was delivered to the said Pablo, through Gregorio

Ganzon. This statement was corroborated by the latter, though he said nothing about what amount of money he delivered to the

policeman Pablo.

The defendant Andres Pablo testified under oath that, on his being asked by the justice of the peace how he could have seen

Maximo Malicsi and Antonio Rodrigo, he replied that he did not see them at the place where the game was being conducted nor did

he see them run away from there, for he only found the table, the tambiolo, the bolas, and Francisco Dato; that he did not surprise

the game because the players ran away before he arrived on the lot where, after fifteen minutes’ search, he found only the tambiolo

and the bolas; that on arriving at the place where the game was played, they found only Francisco Dato and some women in the

Street, and as Dato had already gone away, witness’ companion, the policeman Tomas de Leon, got on his bicycle and went after

him; and that he found the tambiolo at a distance of about 6 meters from a low table standing on the lot.

From the facts above related, it is concluded that the defendant Andres Pablo, who pleaded not guilty, falsely testified under oath in

the justice of the peace court of Balanga, Bataan, in saying he had not seen the alleged gamblers Maximo Malicsi and Antonio

Rodrigo in the place where, according to the complaint filed, the game of jueteng was being played and where the defendant and

his companion, the policeman Tomas de Leon, had found a table, tambiolo and bolas, used in the game of jueteng, while it was

proved at the trial that he did not them and did overtake them while they were still in the place where the game was being played.

But notwithstanding his having seen them there, upon testifying in the cause prosecuted against these men and another for

gambling, he stated that he had not seen them there, knowing that he was not telling the truth and was false to the oath he had

taken, and he did so willfully and deliberately on account of his agreement with the men, Malicsi and Rodrigo, and in consideration

of a bribe of P15 which he had received in payment for his false testimony he afterwards gave.

Francisco Dato and Gregorio Ganzon corroborated the assertion that the policeman Andres Pablo undertook to exclude the

gamblers, Malicsi and Rodrigo, from the charge and from his testimony in consideration for P15 which he received through

Gregorio Ganzon.

Andres Pablo was charged with the crime of perjury and was afterwards convicted under Act No. 1697, which (according to the

principle laid down by this court in various decisions that are already well-settled rules of law) repealed the provisions contained in

articles 318 to 324 of the Penal Code relative to false testimony.

By the second paragraph of the final section of the last article of the Administrative Code, or Act No. 2657, there was repealed,

among the other statutes therein mentioned, the said Act No. 1697 relating to perjury, and the repealing clause of the said

Administrative Code does not say under what other penal law in force the crime of false testimony, at least, if not that of perjury,

shall be punished.

Under these circumstances, may the crime of perjury or of false testimony go unpunished, and is there no penal sanction whatever

in this country for this crime? May the truth be freely perverted in testimony given under oath and which, for the very reason that it

may save a guilty person from punishment, may also result in the conviction and punishment of an innocent person? If all this is not

possible and is not right before the law and good morals in a society of even mediocre culture, it must be acknowledged that it is

imperatively necessary to punish the crime of perjury or of false testimony – a crime which can produce incalculable and far-

reaching harm to society and cause infinite disturbance of social order.

The right of prosecution and punishment for a crime is one of the attributes that by a natural law belongs to the sovereign power

instinctively charged by the common will of the members of society to look after, guard and defend the interests of the community,

the individual and social rights and the liberties of every citizen and the guaranty of the exercise of his rights.

The power to punish evildoers has never been attacked or challenged, as the necessity for its existence has been recognized even

by the most backward peoples. At times the criticism has been made that certain penalties are cruel, barbarous, and atrocious; at

other, that they are light and inadequate to the nature and gravity of the offense, but the imposition of punishment is admitted to be

just by the whole human race, and even barbarians and savages themselves, who are ignorant of all civilization, are no exception.

Notwithstanding that the said Act No. 1697 (which, as interpreted by this court in its decisions, was deemed to have repealed the

aforementioned article of the Penal Code relating to false testimony, comprised within the term of perjury) did not expressly repeal

the said articles of the Penal Code; and as the said final article of the Administrative Code, in totally repealing Act No. 1697, does

not explicitly provide that the mentioned articles of the Penal Code are also repealed, the will of the legislation not being expressly

and clearly stated with respect to the complete or partial repeal of the said articles of the Penal Code, in the manner that it has

totally repealed the said Act No. 1697 relating its perjury; and, furthermore, as it is imperative that society punish those of its

members who are guilty of perjury or false testimony, and it cannot be conceived that these crimes should go unpunished or be

freely committed without punishment of any kind, it must be conceded that there must be in this country some prior, preexistent law

that punishes perjury or false testimony.

There certainly are laws which deal with perjury or false testimony, like Law 7 et seq. of Title 2, third Partida.

However, since the Penal Code went into force, the crime of false testimony has been punished under the said articles of the said

Code, which as we have already said, have not been specifically repealed by the said Act No. 1697, but since its enactment, have

not been applied, by the mere interpretation given to them by this court in its decisions; yet, from the moment that Act was repealed

by the Administrative Code, the needs of society have made it necessary that the said articles 318 to 324 should be deemed to be

in force, inasmuch as the Administrative Code, in repealing the said Act relating to perjury, has not explicitly provided that the said

articles of the Penal Code have likewise been repealed.

This manner of understanding and construing the statutes applicable to the crime of false testimony or perjury is in harmony with

the provision of Law 11, Title 2, Book 3, of the Novisima Recopilacion which says::

All the laws of the kingdom, not expressly repealed by other subsequent laws, must be literally obeyed and the excuse that they are

not in use cannot avail; for the Catholic kings and their successors so ordered in numerous laws, and so also have I ordered on

different occasions, and even though they were repealed, it is seen that they have been revived by the decree which I issued in

conformity with them although they were not expressly designated. The council will be informed thereof and will take account of the

importance of the matter.

It is, then, assumed that the said articles of the Penal Code are in force and are properly applicable to crimes of false testimony.

Therefore, in consideration of the fact that in the case at bar the evidence shows it to have been duly proven that the defendant,

Andres Pablo, in testifying in the cause prosecuted for gambling at jueteng, perverted the truth, for the purpose of favoring the

alleged gamblers, Maximo Malicsi and Antonio Rodrigo, with the aggravating circumstance of the crime being committed through

bribery, for it was also proved that the defendant Pablo received P15 in order that he should make no mention of the said two

gamblers in his sworn testimony, whereby he knowingly perverted the truth, we hold that, in the commission of the crime of false

testimony, there concurred the aggravating circumstance of price or reward, No. 3 of article 10 of the Code, with no mitigating

circumstance to offset the effects of the said aggravating one; wherefore the defendant has incurred the maximum period of the

penalty of arresto mayor in its maximum degree to prision correccional in its medium degree, and a fine.

For the foregoing reasons, we hereby reverse the judgment appealed from and sentence Andres Pablo to the penalty of two years

four months and one day of prision correccional, to pay a fine of 1,000 pesetas, and, in case of insolvency, to suffer the

corresponding subsidiary imprisonment, which shall not exceed one-third of the principal penalty. He shall also pay the costs of

both instances. So ordered.

Johnson, Carson, Trent and Araullo, JJ., concur.

Moreland, J., concurs in the result .


SUPREME COURTManila

EN BANC

DECISION

March 25, 1911

G.R. No. 5843

THE UNITED STATES, plaintiff-appellant,

vs.

CANUTO GUSTILO, defendant-appellee.

Office of the Solicitor-General Harvey for appellant.

No appearance for appellee.

MORELAND, J.:The question involved in this appeal is expressed by the court below in the following language:

The defendant arraigned upon the information in this case has appeared with his counsel and entered the plea of former jeopardy,

said plea being based upon the record in criminal case No. 1360 of this court, entitled “United States vs. Canuto Gustilo,” in which

case the information was filed on the 17th day of May, 1909, charging the defendant with the offense of illegal possession of

firearms. To that information the defendant pleaded guilty and was on the 10th day of July, 1909, sentenced to pay a fine and

costs.

It is a fact disclosed by the record and admitted by the fiscal that the firearm which the defendant is now charged with illegally

possessing was possessed by him during the same period and was seized at the same time and place as the arm for the

possession of which he was convicted in case No. 1360. The defense, therefore, contends that but one crime was committed by

the defendant and that by subjecting him to another prosecution the Government is violating the provisions of the Philippine Bill,

that no one shall be twice placed in jeopardy for the same offense. The position of the fiscal is that inasmuch as the law requires a

bond in the sum of two hundred pesos for each firearm possessed by any individual, the offense defined and penalized by section

25 of Act No. 1780 is committed as many times, as the accused has unlicensed firearms in his possession, in other words, that the

possession of each individual firearm constitutes a separate offense for which a prosecution will lie.

The brief of the prosecution raises the preliminary question that:

In pleading former jeopardy, it is not sufficient simply to establish that the party alleging it had been in jeopardy once, but he must

allege and prove in the most specific way that the offense of which he was formerly convicted or acquitted was identically the same

offense for which the courts were attempting to try him again. This throws the burden of proof upon the defendant to prove his plea

of former jeopardy. In the case at bar no witness was called to prove his plea of former jeopardy and the facts alleged in the plea

are an admission that the facts alleged in the complaint are true. The record in case No. 1360 and the record in case No. 1361

constitute records in absolutely separate and distinct criminal actions, and under the rule in the Gavieres case, above cited, it was

incumbent upon the trial court to require the defendant to prove the allegations of his former jeopardy in the most specific way.

It is true that it does not appear affirmatively from the record that any evidence was, technically speaking, offered by the accused to

prove his plea of former jeopardy. But sufficient appears in the record to establish the facts upon which the plea is founded. The

accused, in his plea, after quoting the information on criminal cause No. 1360, says:

That the witnesses Agustin Landato and Ambrosio Burso, witnesses for the prosecution, testified under oath in the preliminary

investigation in criminal cause No. 1360, and also in the preliminary investigation in the present cause, that the shotgun, with its

ammunition, which was the subject of the complaint in cause No. 1360, and the Colt’s revolver, with its ammunition, which is the

subject of the present complaint, were in the possession, custody and control of the accused and were owned by him together and

were located in the same house, in the same room, and both of said arms were taken by the public authorities by the same act, at

the same time, and in the same place.

The provincial fiscal made the following answer to the plea:

The undersigned fiscal, answering the plea of former jeopardy invoked by the defendant, alleges: That the accused has not been

placed in jeopardy for the reason that the facts detailed in prior cause No. 1360 against the accused, Canuto Gustilo, upon which

he was convicted, are not the same facts mentioned in the complaint in the present cause. In the former, as in the present case, the

body or bodies of the crime are different and distinct between themselves and for that reason the allegation of jeopardy alleged by

the defense fails of legal foundation.

Upon this plea and the answer thus made to it, the court heard the arguments of the parties and proceeded to a determination of

the case. While the record fails to disclose that any evidence substantiating the plea of former jeopardy was, technically speaking,

introduced, it appears, nevertheless, that everything necessary to present the facts upon which such plea was based was taken for

granted and as if it appeared in the case. Moreover, it is seen from the quotation above given of a part of the decision of the lower

court that it was expressly stated “that the record disclosed, and it was admitted as a fact by the fiscal, that the firearm which the

defendant is now charged with illegally possessing was possessed by him during the same period and was seized at the same time

and place as the arm for the possession of which he was convicted in case No. 1360.” From all the facts and circumstances which

appear of record in the appeal before us, and particularly in view of the fact that the plea as presented has not really been traversed

by the prosecution, we must presume conclusively that all of the facts which the defendant required to present fully the question of

former jeopardy were included in the record and before the court at the time of his decision.

After a thorough consideration of the case, the trial court found the plea of the defendant good and dismissed the cause. From the

judgment entered on that dismissal the prosecution appealed to this court.

That the portion of the statute under which the defendant stands charged which is material to the disposition of the present question

reads as follows:

SECTION 1. It shall be unlawful for any person, … to possess, or have the custody of any shotgun, revolver, pistol … or any other

deadly weapon from which a bullet, ball, shot, shell, or other missile … may be discharged by means of gunpowder or other

explosive, and it shall be unlawful for any person … to acquire, dispose of, or have custody of any ammunition or detached parts for

weapons, unless and until such person … shall secure a license … and otherwise comply with the requirements of this Act and the

rules and regulations issued … pursuant to the provisions of this Act. The word “firearm” as used herein shall be interpreted to

mean any and all of the weapons mentioned in this section.

SEC. 25. Any person having possession of any firearms in violation of any provision of this Act shall … be punished by a fine … or

by imprisonment . . . .

The question is squarely presented to us on this appeal whether or not, under the statute above quoted, the prosecuting officer

may, when he finds a person in possession of two or more firearms at the same time and in the same place, proceed against such

person in as many separate actions as there are different firearms in his possession.

We are confident that that portion of the Philippine Bill embodying the principle that no person shall be twice put in jeopardy of

punishment for the same offense should, in accordance with its letter and spirit, be made to cover as nearly as possible every result

which flows from a single criminal act impelled by a single criminal intent. The fact should not be lost sight of that it is the injury to

the public which a criminal action seeks to redress, and by such redress to prevent its repetition, and not the injury to individuals. In

so far as a single criminal act, impelled by a single criminal intent, in other words, one volition, is divided into separate crimes and

punished accordingly, just so far are the spirit of the Philippine Bill and the provisions of article 89 of the Penal Code violated.

In our judgment the possession of the two firearms under the conceded facts of this case constitutes but one criminal act, one

volition. Having been punished once for that act, he can not, under the provisions of the Philippine Bill and of article 89 of the Penal

Code, be punished again for the same act. (U.S. vs. Lim San, 17 Phil. 273; U.S. vs. Sauler, No. 6342 (not reported); State vs.

Benham, 7 Conn. 414; Rex vs. Johnson, 3 Mau. & Selw. 539, 548; Rex vs. Clark, 1 Brod. & Bing 473; Holland q. t. vs. Duffin,

Peake’s Ca. 58; State vs. Moore, 86 Minn. 422; State vs. Colgate, 31 Kan. 511; State vs. Egglesht, 41 Iowa 574; Regina vs. Brettel,

1 Carr. & Marsh 609; 1 Wharton’s Criminal Law, sec. 565, note x; Lorton vs. State, 7 Mo. 55; State vs. Nelson, 29 Me. 329; State

vs. Williams, 10 Humph. 101; State vs. Morphin, 37 Mo. 373; Jackson vs. State, 14 Ind 327; U.S. vs. Bereman, 5 Cranch (C.C.)

412; State vs. Thurston, 2 McMullan 382; The People vs. Van Kuren, 5 Parker C.R. 66; Regina vs. Erlington, 9 Cox C.C. 86;

People vs. Stephens, 79 Cal. 428; People vs. Willard, 92 Cal. 482; People vs. Ny Sam Chung, 94 Cal. 304; People vs. McDaniels,

137 Cal. 192; Bishop’s New Criminal Law, sec. 1,070; People vs. Allen, 1 Parker’s C.R. 445; State vs. Damon, 2 Tyler (Vt.) 387;

Clem vs. State, 42 Ind. 420; Ben vs. State, 22 Ala. 9; Womack vs. State, 7 Coldwell 508, 509; State vs. Hennessey, 23 Ohio State

339; Wilson vs. State, 45 Tex. 76; Hudson vs. State, 9 Tex. Ct. App. 151; Rex vs. Jones, 4 Car. 7 P. 217; Fisher vs.

Commonwealth, 1 Bush. 211; People vs. McGowan, 17 Wend. 386; Hinkle vs. Commonwealth, 4 Dana 518; Fiddler vs. State, 7

Humph. 508; Roberts vs. State, 14 Ga. 8; Copenhaven vs. State, 15 Ga. 264; State vs. Lewis, 2 Hawks (N.C.) 98; Woodford vs.

People, 62 N.Y. 117; Commonwealth vs. Squire, 42 Mass. 258; State vs. Cooper, 1 Green (N.J.L.) 361; Commonwealth vs. Wade,

34 Mass. 395; Hennessey vs. People, 21 How. Pr. 239; Holt vs. State, 38 Ga. 187; Jones vs. State, 55 Ga. 625, 626; Wilson vs.

State, 24 Conn. 57, 69; Hinkle vs. Commonwealth, 4 Davis 518; State vs. Chaffin, 2 Swan (Tenn.) 493; Laupher vs. State, 14 Ind.

327; State vs. McCormack, 8 Oregon 236; 1 Bishop’s Criminal Law, sec. 1,060; State vs. Augustine, 29 La. An. 119;

Commonwealth vs. Prescott, 153 Mass. 396; supreme court of Spain, decisions of 3rd May, 1871; 26th April, 1873; 4th December,

1871; 4th October, 1871; 30th December, 1885; 10th June, 1886.)

We have carefully examined the numerous authorities cited by the learned counsel for the people. In by far the most of them a

second (not strictly so) punishment was permitted because there were two distinct crimes, committed by separate and distinct acts

impelled by the corresponding criminal intents. With the others, in which a second punishment (strictly so) was allowed and

imposed, although both crimes resulted from a single volition of the accused, we can not agree for the reason that they are

opposed to the law of these Islands and are in conflict with what we believe to be the weight of authority.

The possession of the two firearms being, in our judgment, but one act, the present action against the accused can not be

maintained, he having been already punished for such act.

The judgment of the trial court is affirmed, costs de oficio.

Arellano, C.J., Mapa, Carson, and Trent, JJ., concur.


SUPREME COURTManila

EN BANC

DECISION

March 8, 1922

G.R. No. 17584

THE PEOPLE OF THE PHILIPPINES ISLANDS, plaintiff-appellee,

vs.

GREGORIO SANTIAGO, defendant-appellant.

L. Porter Hamilton for appellant.

Acting Attorney-General Tuason for appellee.

Romualdez, J.:Having caused the death of Porfirio Parondo, a boy 7 years old, by striking him with automobile that he was driving, the herein

appellant was prosecuted for the crime of homicide by reckless negligence and was sentenced to suffer one year and one day of

prision correccional, and to pay the costs of the trial.

Not agreeable with that sentence he now comes to this court alleging that the court below committed four errors, to wit:

1. The trial court erred in not taking judicial notice of the fact that the appellant was being prosecuted in conformity with Act No.

2886 of the Philippine Legislature and that the Act is unconstitutional and gave no jurisdiction in this case.

2. The lower court erred in not dismissing the complaint after the presentation of the evidence in the case, if not before, for the

reason that said Act No. 2886 is unconstitutional and the proceedings had in the case under the provisions of the Act constitute a

prosecution of appellant without due process of law.

3. The court a quo erred in not finding that it lacked jurisdiction over the person of the accused and over the subject- matter of the

complaint.

4. The trial court erred in finding the appellant guilty of the crime charged and in sentencing him to one year and one day of prison

correccional and to the payment of costs.

With regard to the questions of fact, we have to say that we have examined the record and find that the conclusions of the trial

judge, as contained in his well-written decision, are sufficiently sustained by the evidence submitted.

The accused was driving an automobile at the rate of 30 miles an hour on a highway 6 meter wide, notwithstanding the fact that he

had to pass a narrow space between a wagon standing on one side of the road and a heap of stones on the other side where the

were two young boys, the appellant did not take the precaution required by the circumstances by slowing his machine, and did not

proceed with the vigilant care that under the circumstances an ordinary prudent man would take in order to avoid possible

accidents that might occur, as unfortunately did occur, as his automobile ran over the boy Porfirio Parondo who was instantly killed

as the result of the accident.

These facts are so well established in the records that there cannot be a shade of doubt about them.

Coming now to the other assignments of error, it will be seen that they deal with the fundamental questions as to whether or not Act

No. 2886, under which the complaint in the present case was filed, is valid and constitutional.

This Act is attacked on account of the amendments that it introduces in General Orders No. 58, the defense arguing that the

Philippine Legislature was, and is, not authorized to amend General Orders No. 58, as it did by amending section 2 thereof

because its provisions have the character of constitutional law. Said section 2 provides as follows:

All prosecutions for public offenses shall be in the name of the United States against the persons charged with the offenses. (G. O.

No. 58, sec. 2 ).

Act No. 2886, which amends it, by virtue of which the People of the Philippine Island is made the plaintiff in this information,

contains the following provisions in section 1:

SECTION 1. Section two of General Orders, Numbered Fifty-eight, series of nineteen hundred, is hereby amended to read as

follows:

“SEC. 2. All prosecutions for public offenses shall be in the name of the People of the Philippine Islands against the persons

charged with the offense.”

Let us examine the question.

For practical reasons, the procedure in criminal matters is not incorporated in the Constitutions of the States, but is left in the hand

of the legislatures, so that it falls within the realm of public statutory law.

As has been said by Chief Justice Marshall:

A constitution, to contain an accurate detail of all the Subdivisions of which its great powers will admit, and of all the means by

which they may be carried into execution, would partake of a prolixity of a legal code, and could scarcely be embraced by the

human mind. It would probably never be understood by the public. (M’Culloch vs. Maryland [1819], 4 Wheat., 316, 407; 4 L. ed.,

579.)

That is why, in pursuance of the Constitution of the United States, each States, each State has the authority, under its police power,

to define and punish crimes and to lay down the rules of criminal procedure.

The states, as a part of their police power, have a large measure of discretion in creating and defining criminal offenses. . . .

A Statute relating to criminal procedure is void as a denial of the equal protection of the laws if it prescribes a different procedure in

the case of persons in like situation. Subject to this limitation, however, the legislature has large measure of discretion in

prescribing the modes of criminal procedure. . . . (12 C.J., 1185, 1186. See Collins vs. Johnston, 237 U.S., 502; 35 s. Ct. Rep. 649;

59 L. ed., 1071; Shevlin-Carpenter Co. vs. Minnesota, 218 U.S., 57; 30 S. Ct. Rep., 663; 54 L. ed., 930; Lynn vs. Flancders, 141

Ga., 500; 81 S.E., 205.)

This power of the States of the North American Union was also granted to its territories such as the Philippines:

The plenary legislative power which Congress possesses over the territories and possessions of the United States may be

exercised by that body itself, or, as is much more often the case, it may be delegated to a local agency, such as a legislature, the

organization of which proceeds upon much the same lines as in the several States or in Congress, which is often taken as a model,

and whose powers are limited by the Organic Act; but within the scope of such act is has complete authority to legislate, . . . and in

general, to legislate upon all subjects within the police power of the territory. (38 Cyc., 205-207.)

The powers of the territorial legislatures are derived from Congress. By act of Congress their power extends “to all rightful subjects

of legislation not inconsistent with the Constitution and laws of the United States;” and this includes the power to define and punish

crimes. (16 C. J., 62.)

And in the exercise of such powers the military government of the army of occupation, functioning as a territorial legislature, thought

it convenient to establish new rules of procedure in criminal matters, by the issuance of General Orders No. 58, the preamble of

which reads:

In the interests of justice, and to safeguard the civil liberties of the inhabitants of these Islands, the criminal code of procedure now

in force therein is hereby amended in certain of its important provisions, as indicated in the following enumerated sections.

(Emphasis ours.)

Its main purpose is, therefore, limited to criminal procedure and its intention is to give to its provisions the effect of law in criminal

matters. For that reason it provides in section 1 that:

The following provisions shall have the force and effect of law in criminal matters in the Philippine Islands from and after the 15th

day of May, 1900, but existing laws on the same subjects shall remain valid except in so far as hereinafter modified or repealed

expressly or by necessary implication.

From what has been said it clearly follows that the provisions of this General Order do not the nature of constitutional law either by

reason of its character or by reason of the authority that enacted it into law.

It cannot be said that it has acquired this character because this order was made its own by the Congress of the United States for,

as a mater of fact, this body never adopted it as a law of its own creation either before the promulgation of Act No. 2886, herein

discussed, or, to our knowledge, to this date.

Since the provisions of this General Order have the character of statutory law, the power of the Legislature to amend it is self-

evident, even if the question is considered only on principle. Our present Legislature, which has enacted Act No. 2886, the subject

of our inquiry, is the legal successor to the Military Government as a legislative body.

Since the advent of the American sovereignty in the Philippines the legislative branch of our government has undergone

transformations and has developed itself until it attained its present form. Firstly, it was the Military Government of the army of

occupation which, in accordance with international law and practice, was vested with legislative functions and in fact did legislate;

afterwards, complying with the instructions of President McKinley which later were ratified by Congress (sec. 1 of the Act of July 1,

1902) the legislative powers of the Military Government were transferred to the Philippine Commission; then, under the provisions

of section 7 of the Act of Congress of July 1, 1902, the Philippine Assembly was created and it functioned as a colegislative body

with the Philippine Commission. Finally, by virtue of the provisions of sections 12 of the Act of Congress of August 29, 1916, known

as the Jones Law, the Philippine Commission gave way to the Philippine Senate, the Philippine Assembly became the House of

Representatives, and thus was formed the present Legislature composed of two Houses which has enacted the aforesaid Act No.

2886.

As a matter of fact, Act No. 2886 is not the first law that amends General Orders No. 58. The Philippine Commission, at various

times, had amended it by the enactment of laws among which we may cite Act No. 194, regarding preliminary investigation, Act No.

440 relating to counsels de oficio and Act No. 590 about preliminary investigations by justices of the peace of provincial capitals.

Later on, and before the enactment of Act No. 2886, herein controverted, the Legislature had also amended this General Orders

No. 58 by the enactment of Act No. 2677 regarding appeals to the Supreme Court of causes originating in the justice of the peace

courts and by Act No. 2709 which deals with the exclusion of accused persons from the information in order to be utilized as state’s

witnesses.

These amendments repeatedly made by the Philippine Commission as well as by our present Legislature are perfectly within the

scope of the powers of the said legislative bodies as the successors of the Military Government that promulgated General Orders

No. 58.

No proof is required to demonstrate that the present Legislature had, and had, the power to enact and amend laws. (U.S. vs. Bull.

15 Phil., 7.) That it has the power to legislate on criminal matters is very evident from the wording of section 7 of the Jones Law

which says:

That the legislative authority herein provided shall have power, when not inconsistent with this Act, by due enactment to amend,

alter, modify, or repeal any law, civil or criminal, continued in force by this Act as it may from time to time see fit.

It is urged the right to prosecute and punish crimes is an attributed of sovereignty. This assertion is right; but it is also true that by

reason of the principle of territoriality as applied in the supression, of crimes, such power is delegated to subordinate government

subdivisions such as territories. As we have seen in the beginning, the territorial legislatures have the power to define and punish

crimes, a power also possessed by the Philippine Legislature by virtue of the provisions of sections 7, already quoted, of the Jones

Law. These territorial governments are local agencies of the Federal Government, wherein sovereignty resides; and when the

territorial government of the Philippines prosecutes and punishes public crimes it does so by virtue of the authority delegated to it

by the supreme power of the Nation.

This delegation may be made either expressly as in the case of the several States of the Union and incorporated territories like

Porto Rico and Hawaii, or tacitly as is the case with the Philippines, which is an organized territory though not incorporated with the

Union. (Malcolm, Philippine Constitutional Law, 181-205.)

This tacit delegation to our Government needs no demonstration. As a matter of fact, the crimes committed within our territory,

even before section 2 of General Orders No. 58 was amended, were prosecuted and punished in this jurisdiction as is done at

present; but then as now the repression of crimes was done, and is still done, under the sovereign authority of the United States,

whose name appears as the heading in all pleadings in criminal causes and in other judicial papers and notarial acts.

The use of such a heading is prescribed for civil cases in form 1 of section 784 of the Code of Civil Procedure; in criminal causes

the constant practice followed in this jurisdiction established its use; and in notarial matters its use is provided by section 127 of Act

No. 496. This long continued practice in criminal matters and the legal provision relating to civil cases and notarial acts have not

been amended by any law, much less by Act No. 2886, the subject of the present inquiry.

There is not a single constitutional provision applicable to the Philippines prescribing the name to be used as party plaintiff in

criminal cases.

The fact that the political status of this country is as yet undetermined and in a transitory stage, is, in our opinion, responsible for

the fact that there is no positive provision in our constitutional law regarding the use of the name of the People of the Philippine

Islands, as party plaintiff, in criminal prosecutions, as is otherwise the case in the respective constitutional charters of the States of

the Union and incorporated territories – a situation which must not be understood as depriving the Government of the Philippines of

its power, however delegated, to prosecute public crimes. The fact is undeniable that the present government of the Philippines,

created by the Congress of the United States, is autonomous.

This autonomy of the Government of the Philippines reaches all judicial actions, the case at bar being one of them; as an example

of such autonomy, this Government, the same as that of Hawaii and Porto Rico (People of Porto Rico vs. Rosaly y Castillo [1913],

227 U.S., 270; 57 L. ed., 507; 33 Sup. Ct. Rep., 352) cannot be sued without its consent. (Merritt vs. Government of the Philippine

Islands, 34 Phil., 311; L. S. Moon & Co. vs. Harrison, p. 27, ante.) The doctrine, laid down in these cases, acknowledges the

prerogative of personality in the Government of the Philippines, which, if it is sufficient to shield it from any responsibility in court in

its own name unless it consents thereto, it should be also, as sufficiently authoritative in law, to give that government the right to

prosecute in court in its own name whomsoever violates within its territory the penal laws in force therein.

However, limiting ourselves to the question relative to the form of the complaint in criminal matters, it is within the power of the

Legislature to prescribe the form of the criminal complaint as long as the constitutional provision of the accused to be informed of

the nature of the accusation is not violated.

Under the Constitution of the United States and by like provisions in the constitutions of the various states, the accused is entitled

to be informed of the nature and cause of the accusation against him . . .

It is within the power of the legislatures under such a constitutional provision to prescribe the form of the indictment or information,

and such form may omit averments regarded as necessary at common law. (22 Cyc., 285.)

All these considerations a priori are strengthened a posteriori by the important reason disclosed by the following fact – that the

Congress has tacitly approved Act No. 2886. Both the Act of Congress of July 1, 1902, section 86, and the Jones Law, last

paragraph of section 19, provide that all the laws enacted by the Government of the Philippines or its Legislature shall be forwarded

to the Congress of the United States, which body reserves the right and power to annul them. And presuming, as legally we must,

that the provisions of these laws have been complied with, it is undisputed that the Congress of the United States did not annul any

of those acts already adverted to – Nos. 194, 440, 490 (of the Philippine Commission), and 2677, 2709 and the one now in

question No. 2886 (of the present Legislature) – all of which were amendatory of General Orders No. 58. The Act now under

discussion (No. 2886) took effect on February 24, 1920, and the criminal complaint in this case was filed on May 10, 1920. The

silence of Congress regarding those laws amendatory of the said General Order must be considered as an act of approval.

If Congress fails to notice or take action on any territorial legislation the reasonable inference is that it approves such act. (26

R.C.L., 679; vide Clinton vs. Englebrcht, 13 Wall., 434; 20 [L. ed.] 659; Tiaco vs. Forbes, 228 U.S., 549; 33 S. Ct. Rep., 585; 57 [L.

ed.], 960; Nixon vs. Reid, 8 S.d., 507; 67 N.W., 57; 32 L.R.A., 315.)

Furthermore, supposing for the sake of argument, that the mention of the People of the Philippine Islands as plaintiff in the title of

the information constitutes a vice or defect, the same is not fatal when, as in the present case, it was not objected to in the court

below.

An indictment must, in many states under express statutory or constitutional provision, show by its title or by proper recitals in the

caption or elsewhere that the prosecution is in the name and by the authority of the state, the commonwealth, or the people of the

state, according to the practice in the particular jurisdictions; but omissions or defects in this respect may be supplied or cured by

other parts of the records, and the omissions of such a recital or defects therein, even when required by the constitution or by

statute, is a defect of form within a statute requiring exceptions for defect of form to be made before trial. (23 Cyc., 237, 238.)

We hold that the provisions of sections 2 of General Orders No. 58, as amended by Act No. 2886, do not partake of the same

character as the provisions of a constitution; that the said Act No. 2886 is valid and is not violative of any constitutional provisions

and that the court a quo did not commit any of the errors assigned.

The sentence appealed from is hereby affirmed, the appellant being furthermore sentenced to the accessory penalties prescribed in

article 61 of the Penal Code, and to indemnify the heirs of the deceased in the sum of P1,000 and to the payment of the costs of

both instances. So ordered.

Araullo, C.J., Street, Malcolm, Avanceña and Villamor, JJ., concur.

Ostrand and Johns, JJ., concur in the result.


SUPREME COURTManila

EN BANC

DECISION

June 13, 1938

G.R. No. L-45363

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellant,

vs.

CHONG HONG, ET AL., defendants-appellees.

Undersecretary of Justice Melencio for appellant.

Sisenando Paras for appellees.

Laurel, J.:The seven defendants in this case were convicted in the justice of the peace court of Davao, Davao, Davao, of violation of

ordinance No. 394 of said municipality. On appeal, the Court of First Instance of Davao ordered the dismissal of the case on the

ground that the ordinance aforementioned is null and void. The prosecution appeals from the challenges this order of dismissal of

the court below.

The ordinance in question reads as follows:

ORDINANCE No. 394

ORDINANCE PROHIBITING THE PLAYING OF “JUETENG”

By authority of law, the Municipal Council of Davao, Province of Davao, hereby decrees as follows:

SECTION 1. Any person who is any manner shall directly or indirectly take part in the game generally known as jueteng, or

knowingly and without lawful purpose has in his possession any lists, paper or other matter containing letters, figures or symbols

which pertain to, or are in any manner used in, the game of jueteng or any similar game which has taken place or is about to take

place, shall be punished as follows:

(1) Imprisonment of not less than one month nor more than two months, and a fine of not less than P50 nor more than P100, if a

PLAYER;

(2) Imprisonment of not less than two months nor more than four months, and a fine of not less than P75 nor more than P150, if a

COLLECTOR;

(3) Imprisonment of not less than three months nor more than six months, and a fine of not less than P100 nor more than P200, if a

MASTER or BANKER.

SEC. 2. For purposes of this ordinance, a player is any person who participates in the game by betting, wagering or staking money

or anything of value: collector is any person who collects money for betting on the game, prepares, carries, or in which possession

is found any list, paper, or any matter pertaining to, or in any manner used, in the game: master is any person who keeps,

maintains, has charge or possession, or controls the house where the game is played, or who knowingly permits any property,

owned by him, to be used for playing the game: banker is any person who directly makes the play, receives lists, papers or matters

pertaining to, or is in any manner used in, the game.

SEC. 3. All ordinances or parts thereof which are inconsistent with or repugnant to the provisions hereof are hereby repealed.

SEC. 4. This ordinance shall take effect on its approval.

Approved unanimously.

Davao, Davao, February 12, 1936.

The municipal council of Davao is empowered by law to enact the ordinance just quoted. By section 2625 (hh) of the Revised

Administrative Code, municipal councils are expressly authorized, by ordinance, “To prevent and suppress . . . gambling . . .” and

“to make and enforce all necessary police ordinances, with a view to the confinement and reformation of . . . gamblers . . . ” The

authority may also be made to rest on the general-welfare clause found in section 2625 (jj) of the Revised Administrative Code. The

suppression of gambling is within the police power of a municipal corporation and “ordinances aimed in a reasonable way at the

accomplishment of this purpose are undoubtedly valid.” (U.S. vs. Salaveria, 39 Phil. 102, 108.) The various penalties imposed for

the violation of the ordinance in question come within the limits of paragraph (ii) of the same section of the same Code.

It is admitted that jueteng is already prohibited and penalized in article 195 of the Revised Penal Code. But the fact that an act is

already prohibited and penalized by a general law does not preclude the enactment of a municipal ordinance covering the same

matter. The rule is well-settled that the same act may constitute an offense against both the state and a political subdivision thereof

and both jurisdictions may punish the act, without infringing any constitutional principle. (See U. S. vs. Pacis, 31 Phil. 524.) Indeed,

this principle is impliedly accepted in our Constitution by the limitation provided that “If an act is punished by a law and an

ordinance, conviction or acquittal under either shall constitute a bar to another prosecution for the same act.” (Art. III, sec. 1, par.

20.)

The court below, however, lays emphasis on the claim that the ordinance before us is in conflict with law. Conformity with law is

one of the essential requisites for the validity of a municipal ordinance. But fatal inconsistency is not disclosed by an examination of

the law and ordinance involved. Both article 195 of the Revised Penal code and municipal ordinance No. 394 prohibit and penalize

the playing of jueteng. The difference lies in the details and the penalties imposed. The ordinance distinguishes between a “player”,

a “collector” and a “master or banker” and prescribes a different penalty for each class. The saw, upon the other hand, prescribes a

penalty common to all classes. This distinction apparently was made necessary by the peculiar conditions of the locality. At any

rate, the enlargement upon the provision of a statute of the state, as by the imposition of additional penalties, doe not result in

inconsistency. “As a general rule, additional regulation to that of the state law does not constitute a conflict therewith. The fact that

an ordinance enlarges upon the provisions of a statute by requiring more than the statute requires creates no conflict therewith,

unless the statute limits the requirements for all cases to its own prescription.” (43 C.J., 219, 220. See Rossberg vs. State, 111 Md.,

394; and In re Hoffman, 155 Cal., 114.) The fact that the ordinance does not speak of recidivism, which the general law treats of

with more severity, is not indicative of inconsistency. There can be no inconsistency ‘if either is silent where the other speaks, . . .”

(43 C.J., 218, 219.)

We have not overlooked the observation of the lower court that if a recidivist jueteng gambler is prosecuted under the ordinance, he

could not be dealt with more severely as such recidivist as the ordinance fails to meet such a situation. This is true and, we may

add that under the aforementioned provision of our Constitution, his conviction or acquittal under the ordinance is a bar to a

subsequent prosecution under the Revised Penal code. The defect pointed out cannot, however, be corrected by judicial

interpretation.

As ordinance No. 394 of the municipality of Davao is valid, the court below erred in dismissing the case against the appellees

herein. the order appealed from is, therefore, reversed and the case should be, as it is hereby, remanded to the court of origin for

trial on the merits and decision in accordance with law. Costs against the appellees. So ordered.

Avanceña, C.J., Villa-Real, Abad Santos, Imperial, Diaz and Concepcion, JJ., concur.


SUPREME COURTManila

EN BANC

DECISION

March 28, 1914

G.R. No. L-9619

NGO YAO TIT, ET AL., and CHUA ENG CHENG, petitioners,

vs.

THE SHERIFF OF THE CITY OF MANILA, respondent.

Southworth, Hargis, Adams & Jordain for petitioners.

No appearance for respondent.

, J.:These are applications for writs of habeas corpus.

The petitioners herein are detained under a commitment issued upon a final judgment of the Court of First Instance of Manila

convicting them on a new trial, following an appeal from the municipal court of said city, of a violation of section 3 of Ordinance No.

152, and sentencing each one of them to pay P100 fine, with subsidiary imprisonment in case of nonpayment.

Section 3 of said ordinance reads as follows:

SEC. 3. Visiting places where opium is smoked or dealt in prohibited. ? No person shall visit or present at or in any place where

opium, or any of its derivatives or compounds, is smoked or otherwise used in or upon the human body, or unlawfully sold, given

away, or otherwise disposed of.

Petitioners allege that the judgments of conviction are null and void and state the reason therefore as follows:

(1) That there is no evidence to support said judgment.

(2) That the trial court in its findings as set out in the copy of the decision of said court hereunto attached and made a part hereof

and marked Exhibit A, finds that it was not shown that petitioners or any of them were guilty of a violation of said Ordinance No.

152.

The decision of the court referred to is as follows:

This action arise on an information presented against the accused for a violation of Ordinance No. 152, already tried and

determined in the municipal court, wherein the accused were found guilty as charged and sentenced, each one, to pay a fine of

P100, with subsidiary imprisonment in case of insolvency, in accordance with the law. The case is before this court for a new trial

upon an appeal from that judgment.

During the trial Sergeant Worrel and Patrolman Peñalosa testified as witnesses. From their testimony it appears that in a house

known as No. 363 Calle Ilang-Ilang in one of the living rooms thereof, there were found upon a bed certain utensils used in the

smoking of opium, namely, a pipe, a lamp and three small packages, two of them empty and one containing a quantity of opium.

They also testified that when they entered the room there was a strong odor of opium fumes and that the opium pipe found upon

the bed was still warm.

With respect to the evidence of the accused, their testimony establishes the entry of the house by the police and the arrest, but they

avoided answering questions relative to the utensils that were found in the room, as to who was the person who was smoking

opium there that night, as well as the designation of what person was occupying the room and bed on that night.

There is no proof whatever, on the other hand, that the house, which was a Chinese club, was a placed destined or habitually used

or the smoking of opium, for if it had been other utensils for the smoking of opium, of if it had been found; and there not having

been found more than those shown to the court, it may not be asserted that said house was destined or habitually used as a place

for the smoking of opium.

The defense in discussing the presence of the accused in the house maintained that they were not there as visitors but they lived

there. Four of the accused, China Eng Cheng, Chen Po, Uy Ching, and Ngo Tiao, were employees of the club, the first being the

clerk, the second the cashier, the third the collector, and the fourth the cook. The other, Sec Hong, was a transient who had arrived

from Tacloban three weeks before and was a guest at the club.

It is not necessary to discuss the relations which the accused before to the club on that night. The fact is sufficient that all of them

were caught on that occasion in said house and that in said house opium was being smoked at that time. This is sufficient to

establish a violation of Ordinance No. 152, article 3, if it is clear to the court that opium was being smoked there in that house at the

time and that the accused were there present.

Wherefore the court declares the said accused guilty of a violation of Ordinance No. 152, article 3, and affirms the judgment of the

municipal court sentencing each one of them to pay a fine of P100 and to suffer the corresponding subsidiary imprisonment in case

of nonpayment as provided by law.

The petitioners contend that, the Supreme Court having already held in the case of United States vs. Ten Yu (24 Phil. 1), that,

before a conviction can be had under section 3 of Ordinance No. 152, “the defendants may prove, if the fact exists, that they visited

the place described in the complaint lawfully and not in violation of the provisions or the spirit of said ordinance,” and that, in effect,

it must be shown, to sustain a conviction under said ordinance that the house visited was one generally used for the smoking of

opium, and it appearing by an affirmative statements in the decision of the Court of First Instance that the house in question was a

Chinese Club and was not destined or generally used for the smoking of opium, and there being no finding that the accused were

unlawfully there, the judgment of conviction has nothing to sustain it and is, therefore, absolutely void. That such being the case, a

writ of habeas corpus will lie, it is contended, as imprisonment under a judgment absolutely void is an illegal imprisonment. In

support of their contention petitioners cite numerous authorities holding in substance that, while a court may have authority to hear

and determine a cause, its determination or judgment must be within the law and such power does not authorize it, simply because

it has jurisdiction to render some judgment in the cause, to trample down the prisoners’ fundamental and constitutional rights by

pronouncing a sentence authorized by law. Or, to put the contention in another aspect, in addition to jurisdiction over the person

and the subject matter, the court must have jurisdiction to render the particular judgment. Authorities are cited to the further

proposition that habeas corpus will lie for the discharge of one imprisoned for an act which does not constitutes any offense known

to the law.

While the authorities cited sustain the propositions advanced, neither the one nor the other applies, in our judgment, to the case

before us. It is admitted that the court had jurisdiction over the person of the petitioners and that it had jurisdiction to try a person

accused of violating section 3 of Ordinance No. 152. There was, therefore, jurisdiction over the person and the subject matter. It is

equally undoubted that, if the acts of the petitioners constituted the crime defined in that ordinance, they were properly convicted. It

having been demonstrated by the evidence, as stated in the decision of the trial court, that the petitioners were found in the club

house in question and that opium was being smoked therein, it became the duty of the court to determine, by he exercise of its

judicial functions, whether such acts constituted the crime defined by the ordinance. This was a judicial determination admittedly

within the jurisdiction and authority of the court to make. That being so, the exercise of that jurisdiction would not result in void

judgment, provided the court kept within the limits thereof. In the determination of the case before it, it is clear that the court kept

fully within the limits of its jurisdiction and, exercising the authority which it had a right to exercise within that jurisdiction, determined

the question whether the acts developed by the evidence fell within the prohibition of the ordinance. This same question is one

which is passed upon by a court every time it tries a criminal cause. That is one of the necessary adjudications. If it is to be held

that a wrong determination of that question deprives the court of jurisdiction, then the correctness of a judgment of conviction in a

criminal case will nearly always be determined by a writ of habeas corpus. ( Ex parte Coy, 127 U.S. 731.) This, of course, is not the

function of that writ, and makers of legislation and constitutions which preserve the writ never intended that it should be used in that

manner and for that purpose.

The petitioners also cite authorities, among them cases of this court, which declare that a finding with nothing to sustain it is

arbitrary and useless and is a nullity. (Edwards vs. McCoy, 22 Phil. 598.) We may admit, for purposes of discussion, that the

authorities cited lay down the proposition as stated and still they fail to support the contention to which they are cited. It is to be

noted that these decisions say hat a finding with nothing to support it is a nullity. It should also be noted that in the cases in which

those decisions are found there is absolutely nothing upon which the mind of the court making the finding could act to arrive at the

conclusion reached. In other words, there was an entire absence of any fact whatever which by any possibility could support the

finding or which could even tend to support it. The finding was utterly without relation to any fact of record, was drawn from nothing

except imagination, was a pure invention, was not the result of the operation of the mind of the board upon a fact or circumstance,

was not the product of the exercise of the deliberative faculty, but was a creation from nothing, a fiction, an arbitrary thing. That is

not the case before us. Here we have evidence which supports the finding, although not sufficiently. There is evidence showing that

opium was smoked in a house and that the accused were present at the time the smoking was going on. To support properly the

judgment of conviction it would be necessary to have only two additional facts, namely, that the house was destined and generally

used for the smoking of opium and that the accused were there unlawfully. Those two facts, added to the other facts already

established, would have sustained a conviction.

Moreover, in considering these cases it must be remembered that they relate to the findings of boards of special inquiry and not to

the decisions of courts.

It is clear, therefore, that the case in hand is not one where there is an absolute failure of anything to support the conviction, where

the finding is a pure invention, a creature of the imagination only, an arbitrary thing. It is, rather, a case in which there is some

evidence to support the conviction, but not enough. The difference between a finding with absolutely nothing to support it and a

finding with something, although not sufficient, to support it, is very great. In fact, this difference is the determining feature of the

case before us.

While the judgment attacked in these proceedings was erroneous and the conviction unwarranted by the evidence as it stands

before us, it was not void. The record presents simply a cases where the conviction is not sustained by the evidence. While it may

be a case of improper conviction, the court had jurisdiction to convict and its determination, therefore, is not a nullity. It necessarily

follows that the petitioners are restrained of their liberty by reason of being “in custody of an officer under process issued . . . by

virtue of a judgment . . . of a court of record, and that the court . . . had jurisdiction to issue the process, render the judgment or

make the order, . . . .” (Code Civ. Proc., sec. 528.)

The applications for the writs are denied. Costs de officio.

Since writing the above decision an application has been made to amend the petition in this proceeding by inserting an allegation to

the effect that the action in which the petitioners were convicted was entitled, both in the municipal court and in the Court of First

Instance, “City of Manila vs. Ngo Yao Tit, Chen P, Uy Ching, Sec Hong, and Ngo Tiao” and “City of Manila vs. Chua Eng Cheng.”

It is urged that, in view of the decisions of this court in the case of the City of Manila vs. Rizal (p. 50,ante), the action should have

been in the name of the United States and not the city of Manila; and that, the action having been wrongly entitled, the court

acquired no jurisdiction of the person or the subject matter of the action and that its judgment of conviction was absolutely void.

This being the case, it is argued, habeas corpus will lie as the imprisonment is illegal.

We cannot agree with this contention. The bringing of the action in the name of the city of Manila instead of the United States is an

error merely and not a jurisdictional defect. It is not similar to the case where, as claimed by petitioners, an information is filed by a

person who is not authorized in law to file it. The fact that the city of Manila was the plaintiff in the action does not signify that said

city was the person who signed and filed the information. The accused where prosecuted by the same officials, before the same

court, and in the same manner as they would have been if the action had been brought in the name of the United States, and they

received the benefits of the same rights and the same privileges which they would have received if the action had been properly

entitled. They have been in no sense injured or prejudiced.

The defect is one which could have been cured at any stage of the trial by an amendment on the motion of the court itself or upon

the motion of any person interested in the prosecution. Defects of that character which are not taken advantage of in the court

below in the manner prescribed by law cannot be raised for the first time here, and especially in a petition for a writ of habeas

corpus.

The writ of habeas corpus was not intended and cannot be used to correct mere errors or defects in proceedings, and accordingly

does not lie in the present application.

The writ is denied.

Arellano, C.J. and Araullo, J., concur.

Carson and Trent, JJ., concur in the result.


Manila

FIRST DIVISION

G.R. No. 71989 July 7, 1986

AVELINA CONDE, petitioner, vs.HON. FELIX MAMENTA JR., as Presiding Judge of Branch LXX of the Regional Trial Court, Third Judicial Region (Zambales), and the PEOPLE PEOPLE OF THE PHILIPPINES, respondents.

R E S O L U T I O N

MELENCIO-HERRERA, J.:

The sole legal issue in this case certified to us by the Intermediate Appellate Court is whether or not petitioner, Avelina E. Conde, can be prosecuted criminally for her failure to pay the increased monthly rental of a market stall leased to her by a municipal (public) corporation,

Petitioner was one of the stall holders in the public market of Masinloc, Zambales, paying a monthly rental of P27.00. On June 28, 1980, the Sangguniang Bayan of Masinloc passed Municipal Ordinance No. 3-A, series of 1980, fixing the rates of monthly rentals of market stalls. The new rates increased petitioner's rental to P 140.02. The Municipal Treasurer tried to collect the new rental fees from petitioner but she refused to pay on the ground that the increased rate was excessive and she had questioned the increase before the Ministry of Local Government and Community Development.

On February 1, 1982, a criminal complaint was filed against petitioner by the Acting Station Commander of the INP, Masinloc, Zambales, before the 2nd Municipal Circuit Court of Masinloc and Palauig, Zambales, charging her with violation of Section 5 B.05, Article B, Chapter V, Revenue Code of Masinloc, Zambales, as amended, allegedly committed as follows:

That on or about October 1, 1980 up to December 31, 1981 at Public Market, Masinloc, Zambales and within the jurisdiction of this Honorable Court, the above-named accused with deliberate intent inspite of several demands from the Municipal Treasurer for her co pay did then and there willfully, unlawfully and feloniously refuse and ignore to pay the monthly dues of the stall she occupies/operates at a total amount of Two Thousand Six Hundred Forty and 37/100 Pesos (P 2,640.37) Philippine Currency, to include surcharge to the damage and prejudice of the Municipal Government of Masinloc, Zambales.

The Trial Court considered petitioner's refusal to pay the monthly stall rentals and to vacate the space as "tantamount to economic sabotage to the Municipal Government of Masinloc, Zambales" and "convicted" her in a Decision dated July 15, 1983, the dispositive portion of which reads:

WHEREFORE, prosecution having proven beyond reasonable doubt the violation by the accused of Section 5B.05, Article B, Chapter V, Revenue Code of Masinloc, Zambales and Municipal Ordinance No. 3-A, Series of 1980, accused Avelina Conde is hereby ordered to:

a. Immediately vacate the stalls and premises she is occupying within the Public Market of the Municipality of Masinloc, Zambales:

b. To pay to the Municipal Treasurer of the Municipality of Masinloc, Zambales the amount of Four Thousand Seven Hundred One Pesos and Sixty Four Centavos (P4,701.64) representing the monthly rental and surcharges of the stalls occupied by the accused from October 1, 1980 to December 31, 1982;

c. To pay a monthly rental and surcharges of P140.82 from January 1, 1983 up to the time she actually vacate the premises or stalls in the Public Market.

Without pronouncement as to cost.

Petitioner appealed to the Regional Trial Court of Zambales, which, on May 9, 1984, affirmed in toto the appealed Decision.

Further appealing to the Intermediate Appellate Court, the latter Court, in turn, evated the case to us as one within this Court's exclusive jurisdiction.

Was the criminal prosecution in order?

We rule in the negative.

Municipal Ordinance No. 3-A, Series of 1980, of the Municipality of Masinloc, Zambales, increasing the monthly rentals of market stalls, reads in full:

ORDINANCE NO. 3-A

Series of 1980

AN ORDINANCE AMENDING ARTICLE B (MARKET FEES) SECTION 5803 (IMPOSITION OF FEES) OF THE MASINLOC REVENUE CODE.

Be it ordained by the Sangguniang Bayan of Masinloc, Zambales that:

Section 1. All stalls and space occupants in the Masinloc Public Market shall pay to the duly authorized market collector of the municipality a monthly rental at a fixed rates as follows:

PUBLIC MARKET (NEW)

Front Side............................................................ P 80.00/month

South Side ..............................................................60.00/month

North Side............................................................... 80.00/month

INSIDE STALLS

6 sq. m. - standard size............................................ P 30.00/month

and P 3.00 for every sq. m.

in excess thereof.

OUTSIDE STALLS

6 sq. m. standard size .............................................P 22.00/month


in excess thereof.

Rice Dealers ...........................................................P 20.00/month

FOR OLD NEW MARKET

6 sq. m. standard size ..............................................P 30.00/month


in excess thereof.

Section 2. This Ordinance shall take effect on October 1, 1980.

On motion of Vice-mayor Porfirio F. Elamparo, duly seconded by A B Kagawad Aquilino O. Edaño Jr., the foregoing ordinance was unanimously approved.

While Section 5 B.05, Article B, Chapter V, Revenue Code of Masinloc, Zambales, specifically alleged in the criminal Complaint as having been violated, provides:

Section 5 B.05 — Surcharge for late or non-payment of fees.

a) The lessee of space,stall tienda or booth who fails to pay the monthly rental fee shall pay a surcharge of twenty-five percent (25%) of the total rent due. Failure to pay the rental fee for three (3) consecutive months shall cause automatic cancellation of the contract of lease of space or stall The space or stall shall then be declared vacant and subject to adjudication to any interested applicant.

b) Any person occupying or using space than what is duly leased to him shall pay twice the regular rate for the space so occupied

c) Any person occupying more space than what is duly leased to him shall pay twice the regular rate for such extra space. 1

It should be noted that neither one of the following enactments makes non-payment of fees an offense nor provides for punishment for violation. The judgment itself is bereft of any criminal sanction. The surcharge imposed by Section 5 B.05 for late or non-payment of monthly rentals is not a penalty under criminal law but an additional amount added to the usual charge. It is more of an administrative penalty, which should be recoverable only by civil action.

There being no offense defined nor punishment prescribed, a criminal action will not lie, and the Municipal Circuit Trial Court was without criminal jurisdiction over the matter. Criminal jurisdiction is the authority to hear and try a particular offense and impose the punishment provided by law. 2

ACCORDINGLY, the criminal complaint against petitioner is hereby ordered dismissed, without prejudice to the right of the Municipal Government of Masinloc, Zambales, to collect, in a civil action if need be, the unpaid rentals and surcharge due from petitioner.

SO ORDERED.

Abad Santos (Chairman), Yap, Narvasa and Cruz, JJ., concur.

Footnotes

1 Rollo, p. 53.

2 People vs. Mariano, 71 SCRA 600 (1976).

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