G. R. No.

935, December 05, 1903

THE UNITED STATES, COMPLAINANT AND APPELLEE, VS. MARCELO ALVAREZ, DEFENDANT AND APPELLANT. D ECIS ION
TORRES, J.: In the year 1901, Frank Clark, a sergeant of volunteers in the United States Army in these Islands, was taken prisoner by the insurgents in the town of San Jose, Province of Batangas, and subsequently sent to Calapan, the capital of the Province of Mindoro. Later, about the month of June of that year, he was taken to the town of Abra de Hog, in the same Province of Mindoro, in charge of the defendant, Marcelo Alvarez, who was at that time a commissary captain of the insurgent forces under Maj. Deogracias Leyco, commander of the military zone of Abra de Hog. The prisoner remained in Alvarez's house some three weeks. During this period several persons heard him complain of the illtreatment which he received. The witness Jose Ramos testified that Clark told him once that the defendant treated him like a servant and made him work as such. Clark also stated to another witness, Rosalio Miciano, at that time municipal president of Abra de Hog, that the defendant made him hull rice and cut wood for the kitchen. This circumstance, which, by the way, shows the ungenerous sentiment entertained by the defendant for the prisoner, Clark, appears wholly probable in view of the testimony of Deogracias Leyco to the effect that the accused, Alvarez, was a man of a somewhat inhuman and brutal character. After Marcelo Alvarez, a number of other persons successively had charge of Clark. The last one who had the custody of him was Saturnino Gandula, a resident of a place called Songson, Avithin the township of Abra de Hog. This was between October and November, 1901. Gandula testified that Clark was delivered to him by two insurgent soldiers whom he did not know, and who were acting under orders, according to their statement, of the defendant. Alvarez. It appears to be a fact, however, for Deogracias Leyco so testified, that it was the latter who gave the order and not Alvarez. Be this as it may, however, it is of no importance with respect to the cleeision of this case. It is a fact that after that time the prisoner, Clark, was very ill. One Enrique Ricter testified that he saw him in October, 1901, and that he was then very sick. Deogracias Leyco also testified that Clark's illness was one of the reasons which induced Mr to send the prisoner to Songson in charge of Saturnino Gandula. The latter and his wife, Norberta de la Coresta, testified that during the thirteen days they had Clark in their house not a day passed in which he was not attacked with fever and ague. Such was Clark's condition of health at the time he was killed. Saturnino Gandula related the circumstance of his killing. He stated that at about 4 o'clock on the afternoon of the thirteenth day of Clark's stay in the house he can not remember the date, but asserts that it was the day following that on which a fight had occurred between the Government forces and the insurgents at the town of Abra de Hog, which according to the evidence in the record, occurred on November 7, .1901 the defendant, Alvarez, came to his house, armed with a gun and accompanied by a servant of his, a Visayan named Eusebio. Without entering the house, the

defendant called to Clark, saying. "Come here, Frank." When Clark heard this, he left the house without saying anything and started to walk away with Alvarez, Clark walked along ahead leaning on Eusebio, on account of his weakness, as he had just suffered an attack of fever. Alvarez walked behind. They had covered scarcely 20 yards when the witness heard a shot and a few moments afterward Alvarez called him by name three times. The witness thereupon went to the place where Alvarez was and there found Clark's dead body stretched out face upward on the ground. The witness states that he had a bullet wound in the left side just below the stomach and that Alvarez was standing a very short distance from the body with his gun in his hand, as if he had just discharged it. The man Eusebio also stood near, at the right of Alvarez. The latter ordered the witness to dig a grave and bury Clark's body, which he did. After this they all went aAvay, leaving the witness there alone. The latter states that he then put a wooden cross over the grave and fenced it in with bamboo pickets to protect it from animals. Gandula"s wife, Norberta de la Coresta, corroborates the testimony of her husband in every particular. She saw the defendant arrive, armed with a gun and accompanied by Eusebio, and saw him stop in front of the house. She heard Alvarez call to Clark to come out and saw the latter leave the house and go with the defendant. A few minutes later she heard the discharge of a firearm and then the voice of the accused calling to her husband, and finally she saw the latter leave the house and go to answer Alvarez's summons. This witness adds that very shortly after her husband returned to the house to get a mat, saying that they had killed Clark and that Alvarez had told him to bury the body. On having returned to the house again some two hours afterwards, her husband told her that he had buried Clark, and on the following day, she saw the grave, her husband pointing it out to her. The defense draws attention to the fact that while Saturnino Gandula testified that when Clark left his house he went along ahead, leaning on Eusebio, and that Alvarez walked behind, this witness' wife, Norberta de la Coresta, testified that Eusebio followed Alvarez and that Clark walked along in front of both of them; and furthermore that, according to the latter, her husband returned to the house to get a mat before burying Clark, while Gandula testified that he returned to the house after having buried the deceased. These differences in the opinion of the attorney for the defense constitute such serious contradictions as to make the witnesses mentioned unworthy of credence. As a matter of fact, no such contradictions exist; but if there were such contradictions they are matters of mere detail and do not affect the essential facts testified to by these witnesses. Neither Gandula nor his wife testified that as they walked along the accused and his companions constantly maintained the same relative order as that expressed in their respective statements. Norberta de la Coresta refers to the time that they left her house. It is probable that, since Clark could not walk alone on account of his weakness, it became necessary for Eusebio to assist him. They doubtless subsequently continued to walk along in this way and it was probably then that Gandula saw them. At all events it does not appear that both witnesses refer to the same moment. With respect to the other objection, it is true that Gandula testified that after burying Clark he returned to his house, but he does not state that he did not return to the house before burying the body, as his wife testified he did. Far from this, he gives us to understand, on the contrary, that his wife's statement is true, because he says he wrapped Clark's body up in a mat before burying it. Of necessity lie must have returned to the house to get this mat, as lie did not take it with him when he went the first time.

The testimony of these witnesses with respect to the violent killing of Clark is corroborated by the evidence of Capt. J. B. Shaw and Lieut. W. Weeks, of the Thirtieth United States Infantry. These testified that they.witnessed the exhumation of the body of Frank Clark in March, 1902, and saw that the shirt which he wore had a hole in it on the left side toward the lower part of the abdomen, some 5 or 6 inches from the navel. They stated that the edges of the hole were black, as though they had been burned, and that the hole was of such a character that it appeared to have been caused by the discharge of a gun at a very short distance from the deceased. Captain Shaw further stated that the clothing on the body was stained with blood. The defense states that the testimony of these witnesses is improbable, because when stating that the shirt was punctured they said nothing about the trousers and undershirt, which, according to their testimony, were still on the body, as well as the shirt. "It is impossible to believe," the counsel for the defense says, "owing to the situation of the wound, that the trousers and the undershirt could have failed to be in the same condition as the shirt." This remark has more subtlety than solidity in it The witnesses said nothing about the trousers and the undershirt, because it was sufficient for the purpose of the investigation, so far as they were concerned, for them to testify as to the condition of the shirt. The interrogation addressed to Captain Shaw was as follows: "Did you observe whether or not the clothing showed any indication of having been pierced by a bullet?" The witness then testified to the circumstance which, in his judgment, constituted an indication of this fact that is, that there was a hole in the shirt, with the edges burned. This latter detail, and not the hole in itself, which could as well have been caused by a stabbing Aveapon or by any other cylindrical instrument capable of making a puncture like the hole observed, as by a bullet, was what indicated in the judgment of the witness that Clark had been shot and that the shot had been fired at short range. Otherwise there would not have been upon the clothing or body of the victim such marks as those left by shots fired point blank. It is possible and even probable that Clark's undershirt and trousers, although similarly punctured, did not show, at least in a manner so clear and noticeable to the witness, the indication of a powder burn. This would of course more directly affect the exterior than the under clothing. If this be so we have an explanation of the reason why neither this witness nor Lieutenant Weeks made any mention of these garments in answering the questions addressed to them. Furthermore, it may be that the witnesses thought that the mark found upon the shirt was sufficient proof of the matter concerning which the court was making inquiry, without referring to the other garments upon the body at the time it was exhumed. But however that may be, the reply given fully answered the question and is in our judgment entirely satisfactory. The defendant attempted to refute all this when testifying as a witness in the case. He denied that he had a gun on or about the date in question. He also denied that he had attached to him at that time any servant, and finally denied that he had been in Songson on the date mentioned. He alleged that he was sick with fever and ague and unable to leave his house, not only on the day on which Clark was supposed to have been killed but also for several days subsequent to and before that event. However, the witnesses mentioned by him in his testimony have flatly contradicted him on every point. Pilar Jove, his stepdaughter, one of these witnesses, testified that the accused did have a gun at that time and also two servants, one of whom was called Eusebio.This corroborates the testimony of Saturnino Gandula and his wife upon these matters. The

witness Doiia Jove also testified that the defendant was at that time in good health, and the same statement was made by the witness Deogracias Leyco, who was also referred to by the defendant in his testimony. Only two days after the engagement at Abra de Hog, which would of course be the day following that on which Clark was killed, Leyco found the defendant somewhat unwell, in consequence, he was informed by the latter's family, of having fallen off his horse. This, however, did not prevent the defendant from going with Leyco on the following day to a place called Calubia, several hours' journey from Balantoy, Avhere, according to the defendant's own testimony, he lived. The facts related fully prove the guilt of the defendant. In their testimony Saturnino Gandula and Norberta de la Coresta, who were eyewitnesses to the commission of the crime, gave precise and detailed information as. to its execution and designate the defendant as Clark's slayer. The marks found upon Clark's body by Officers Shaw and Weeks confirmthe statements of the two witnesses above referred to as to the nature of the attack and the wound which caused the death of the deceased. The testimony of Pilar Jove, the stepdaughter of the defendant and a witness called by him, in disproving the false denials of the defendant has corroborated the fact testified to by Gandula and la Coresta and denied by the accused, to the effect that he did have a servant called Eusebio who accompanied him, and a gun which he used to kill Clark. Considering in connection with this the evident falsity of the alibi set up by the defendant as his sole defense, based upon a supposititious illness the existence of which the defendant not only failed to prove but which on the contrary appears to have been fully disproven, the whole constitutes evidence of so complete and conclusive a character as to leave no room for doubt that Frank Clark was killed by violence and that the defendant, Alvarez, was his slayer. We must consider the presence of the circumstance of alevosia in the commission of the crime. At the time of the assault which cost him his life, Clark was in a condition of debility and prostration, the result of a long illness. His weakness must have been extreme, as, unaided he could not walk even the short distance of 20 vards, and was obliged to lean upon some other person for support. Furthermore, lie was absolutely unarmed and it Avas therefore impossible for him to defend himself against the attack made by the accused. This is especially true in view of the fact that he had no reason to expect or foresee such an attack, in the first place, because he had had no quarrel with the accused and no provocation had been given for such an attack, and in the second place because of the apparently friendly manner in which he was invited by the accused to leave the house and go with him. Under these circumstances the assailant could and did act with perfect safety to himself, absolutely free from any risk which might arise from an attempt at self-defense on the part of his victim, and this, in law, constitutes alevotia. Frank Clark, enfeebled as he was by his protracted ill health, was certainly unable to make any defense, more especially against an assault with a weapon such as that used by the defendant. The circumstance of alevosia qualifies the criminal act as murder under article 403 of the Penal Code, as the court below correctly held in the judgment nowT before us for review. In addition to the qualifying circumstance of alevosia the judgment of the court below also finds present the generic circumstances of evident premeditation, abuse of superiority, and the commission of the crime in an uninhabited place. We can not concur in this view with respect to the first of these circumstances. The record contains no evidence showing that the defendant had, prior to the moment of its execution, resolved to commit the crime, nor is there proof that this resolution was the result of meditation, calculation, reflection, and

persistence. Under the Penal Code these elements are necessary to constitute evident premeditation. With respect to the second generic circumstance, the presence of this can, not be considered because the abuse of superiority was precisely one of the factors which made alevosia possible in this particular form. This circumstance, therefore, must be regarded as merged in the other and can not be considei^ed separately. With the judge's finding as to the presence of the last of the three generic circumstances that is, the commission of the crime in an uninhabited place we can not concur because, although it is true that Saturnino Gandula apparently gives us to understand that the place where the crime was committed was a solitary and uninhabited spot, the contrary may be inferred from the testimony of Deogracias Leyco. The latter stated that Onofre Callos, Maria Callos, and Prudencia Magdumlan, also residents of Songson, knew about the delivery of Clark to Saturnino Gandula, which took place at that town, and that these people were, according to his information, neighbors of Gandula. Supposing that these persons were really neighbors of Saturnino G4ndula, and the testimony of Leyco gives ground for such a belief, the place could not, strictly speaking, be termed uninhabited. We know that at least Gandula's house and those of the other persons above mentioned were situated there. At all events, the evidence in the record is not so conclusive as to exclude doubt upon this point, and it is a rule of law that the defendant is entitled to the benefit of a reasonable doubt. Aggravating circumstances can be applied only when they are as fully proven as the crime itself. Without clear and evident proof of their presence the penalty fixed by the law for the punishment of the crime can not be increased. As the generic aggravating circumstances found present by the court below do not exist and as there are no other generic aggravating circumstances to apply, and, on the other hand, there being no mitigating circumstances to consider in favor of the accused, he, therefore, as author of the crime of murder, must suffer the medium degree of the penalty prescribed for this crime by article 403 of the Penal Code that is, life imprisonment ( cadena perpetua). The defense has asked for a new trial upon the ground of newly discovered evidence, and has presented affidavits of Norberta de la Coresta, Eusebio Hernandez, and Onofre Magdumlan, in which it is stated or such is the tendency and purpose of the new evidence offered that Frank Clark died a natural death as a result of fever and ague, from which he had been suffering for some time. These statements were refuted at the trial. The spots of blood and other indications of violence above mentioned, which were found on Clark's body when it was exhumed and to which credible witnesses have testified, constitute material and incontrovertible evidence that Clark met a violent death, as stated by the eyewitness Saturnino Gandula and as stated at the trial by the witness Norberta de la Coresta, whose testimony the defense now offers as newly discovered evidence. The evidence given at the trial can not be overcome by the affidavits mentioned, more especially when it is remembered that no testimony whatever is offered to show proof of the fact which the woman Coresta asserts to be the reason for her retraction that is, tHat one Lucas del Castillo threatened to kill her unless she would falsely testify in the trial against the defendant. There is a legal presumption that testimony given before a court is given freely and spontaneously, unless the contrary is proven. A careful study of the case leads us to the conclusion that the testimony of the new witnesses cited by the defendant would not affect the result. For these reasons, a new trial is denied, since section 42 of General Orders, No. 58, provides that in order to authorize a new trial on the ground of newly discovered evidence the evidence offered must be material to the defense. This is not so with respect to the evidence offered in

this case. We therefore convict the defendant, and condemn him to the penalty of life imprisonment ( cadena perpetua) and its accessories and to the payment of an indemnity of 1,000 Insular pesos to the heirs of the deceased, reversing the judgment reviewed in so far as it imposes the death penalty, with the costs of this instance to the defendant. Arellano, C. J., Torres, Cooper, Willard, McDonough, and Johnson, JJ., concur.

OSJurist.org

G. R. No. 1056, December 08, 1903

AGUEDA BENEDICTO, PLAINTIFF AND APPELLEES. ESTEBAN DE LA RAMA, DEFENDANT AND APPELLANT. D ECIS ION
WILLARD, J.: This is an action for divorce. The complaint, which was filed on October 29, 1901, alleged as the grounds therefor. abandonment and adultery. The answer charged the plaintiff with adultery, denied the adultery imputed to the defendant, and asked for a divorce. Judgment was rendered on July 5,1902, in favor of the plaintiff, granting her a divorce and 81,042.76 pesos as her share of the conjugal property. The defendant excepted to the judgment and moved for a new trial on the ground that the facts found were not justified by the evidence. This motion was denied, and the defendant excepted. The record before us contains all the evidence received at the trial. (1) The first question which we find it necessary to decide is whether or not the Courts of First Instance now have jurisdiction of divorce cases, and if they have, on what law it is based. The court below assumed that the provisions of the Civil Code relating to divorce, contained in title 4 of book 1, are still in force. In this we think there was error. By the royal decree of July 31, 1889, the Civil Code as it existed in the Peninsula was extended to the Philippines. The "cumplase" of the governor-general was affixed to this decree on September 12,1889. The Code was published in the Gaceta de Manila on November 17,1889, and took effect as a law on December 8, 1889. On December 31, 1889, the following order was published in the Gaceta de Manila : "GENERAL GOVERNMENT OF THE PHILIPPINES, "SECRETARY'S OFFICE, Bureau No. 2, " Manila, December 29,1889 . "By direction of Her Majesty's Government, until further order, titles 4 and 12 of the Civil Code, extended to these Islands by royal decree of July 31 last, published in the Gazette of this city of the 17th of November last, are suspended in this Archipelago. "The proper authorities will issue the necessary orders to the end that in lieu of the two titles so suspended the former law may continue in force. "This order will be communicated and published. "WEYLER." This order purports to have been issued by the governor-general by order of the Government at Madrid, and although it is stated in the Compilacion Legislativa de Ultramar (vol. 14, p. 2740) that no decree of this kind Avas ever published in the Gaceta de Madrid and that a copy thereof could not be obtained in any governmental office, yet we can not assume that none was ever issued.

Sanchez Roman says: "By reason of the lack of that preparation which was proper in a matter of such great importance, it seems, according to reports which merit a certain amount of credit (for no order has ever been published which reveals it), that the Government of the Philippines, after taking the opinion of the audiencia of Manila, consulted the colonial office concerning the suspension of titles 4 and 12 of book 1. This opinion was asked in respect to title 4 on account of certain class influences which were strongly opposed to the application of the formula of marriage which gave some slight intervention to the authorities of the State through the municipal judge or his substitute in the celebration of the canonical marriage. As to title 12, the opinion was asked by reason of the fact that there was no such officer as municipal judge who could take charge of the civil registry." (2 Derecho Civil, p. 64.) Moreover, the power of the governor-general, without such order to suspend the operation of the Code, was well settled. A royal order so stating was issued at Madrid on September 19, 1876, and with the cumplase of the governor-general published in the Gaceta de Manila on November 15, 1876. It was suggested at the argument that this order of suspension was inoperative because it did not mention the book of the Code in which the suspended titles 4 and 12 were to be found. The Civil Code contains four books. All of them except the third contain a title numbered 4, and the first and fourth contain a title numbered 12. Title 4 of book 2 deals with rights of property in water and mines and with intellectual property. Title 4 of book 4 relates to the contract of purchase and sale, and title 12 to insurance and other contracts of that class. There is no such intimate relation between these two titles of this book as between titles 4 and 12 of book 1, the one relating as it does to marriage and divorce and the other to the civil registry. The history of the Law of Civil Marriage of 1870 is well known. As a consequence of the religious liberty proclaimed in the constitution of 1869 the whole of the law was in force in the Peninsula. But that basis was wanting in these Islands, and prior to the promulgation of the Civil Code in 1889 no part of the law was in force here, except articles 44 to 78, which were promulgated in 1883. Of these articles those numbered 44 to 55 are found in title 4, but they relate merely to the rights and obligations of husband and wife and do not touch the forms of marriage nor the subject of divorce. If these provisions of the Civil Code on these subjects could be suspended by the certain class influences mentioned by Sanchez Roman, the only marriages in the Islands would be canonical and the only courts competent to declare a divorce would be ecclesiastical. There can be no doubt but that the order of suspension refers to titles 4 and 12 of book 1, and it has always been so understood. It follows that articles 42 to 107 of the Civil Code were not in force here as law on August 13, 1898, and therefore are not now. While General Orders, No. 68, promulgated by the Military Government on December 18,1899, treats of marriage and nullity of marriage, it says nothing about divorce. To find the law applicable to this subject resort must be had to the legislation relating thereto in force in the Islands prior to 1889. It seems necessary to ascertain in the first place what laws on the subject were in force in the Peninsula and afterwards if any 'of them had been extended to the Philippines. The canon law, which the ecclesiastical courts administered both in Spain and here, had not as such any binding force outside of the church. However, any part of the canon law which by proper action of the civil authorities had become a civil law stood upon the same footing as any other law of Spain. This happened in the case of the decree of the council of Trent. That those

decrees have in Spain the force of a civil laAv is well settled. "Tho decrees of the council of Trent have in Spain force of law" (1 Practica General Forense, Zuniga, 260). In the preface to the Law of Civil Marriage of 1870, its author, Montero Rios, says: "Philip II accepting as law of the State by royal cedula dated in Madrid the 12th of July, 1554, the decrees of the council of Trent," etc. This royal cedula of Philip II was brought forward into the Novisima Recopilacion and is now Law 13, title 1, book 1, thereof. The same thing is declared in article 75 of the present Civil Code, which is as follows: "The requisites, form, and solemnities for the celebration of canonical marriages shall be governed by the provisions of the Catholic Church and of the holy council of Trent, accepted as laws of the Kingdom." It may be doubted, notwithstanding, if these decrees, even if considered as extended to the Philippines and in force here, furnish any aid in the solution of the question. The canonists hold that they do declare adultery to be a ground for divorce (2 Procedimientos Eclesiasticos, Cadena, p. 211). This is, however, more by deduction than otherwise. The causes for divorce are nowhere distinctly stated therein. The seventh canon of the twenty-fourth session (November 11,1563), relied upon by the ecclesiastical writers, does not say that adultery is a ground for a separation; it simply says that it is not a ground for a divorce from the bond of matrimony. The eighth canon of the same session, while it declares that the church may direct the separation of the spouses for many causes, does not state what those causes are. The laws of the church which do state what these causes are have not the force of civil laws. The Decretal Law of December 6, 1868, abolishing in the Peninsula the special jurisdictions, was extended to the Philippines by a royal order of February 19, 1869, which was published in the Gaceta de Manila on June 2, 1869. That Decretal Law contained the following provision: "The ecclesiastical courts shall continue to take cognizance of matrimonial and eleemosynary causes and of ecclesiastical offenses in accordance with the provisions of the canon laws. They shall also have jurisdiction over causes of divorce and annulment of marriage as provided by the holy council of Trent; but incidents with respect to the deposit of a married woman, alimony, suit money, and other temporal affairs shall pertain to the ordinary courts." This did not have the effect of making the canons mentioned therein civil laws. It simply declared that the church might try the cases referred to according to its own laws in its own courts and that the State would enforce the decrees of the latter. It is not necessary, however, to decide this question as to the decrees of the council of Trent, for the partidas do contain provisions relating to the subject of divorce. Law 1, title 10, of the fourth partida, defines divorce as follows: " Divortium, in Latin, means, in common speech, separation ( departimiento ), and is the means by Avhich the wife is separated from the husband, and the husband from the wife, on account of some impediment existing between them, when it is properly proved in court. And whoever separates the parties in any other way, doing it by force, or contrary to law, will go against that which is said by Jesus Christ, in the Gospel: 'those whom God hath joined together, let no man put asunder.' But when the spouses are separated by law, it is not then considered that man separates them, but the written law, and the impediment existing between them. And divortio t akes its name from the separation of the wills of man and woman, which are in a contrary state when separated, to what they were when the parties were united." Law 2 of the same title is as follows:

"Properly speaking there are two forms of separation to which the name of divorce may be given and two reasons therefor; there are many reasons which bring about the separation of those who appear to be married but are not so by reason of some impediment between them. Of these two reasons, one is religion and the other the sin of fornication. Religion authorizes divorce on this ground: That if any persons there be lawfully married, there not existing between them any of the impediments upon which the marriage might be dissolved, if either of them after they have been carnally joined should desire to take holy orders and the other should grant permission, the one desiring to remain in the world promising to live a life of chastity and being so aged that none can suspect that such spouse will be guilty of the crime of fornication and the other enter into the order in this manner, a separation results which may properly be called divorce, but it must be made by order of the bishop or some other of the prelates of holy church who have authority therefor. Furthermore, if the wife offends her husband by the crime of fornication or adultery, this is another reason which we say may properly be a ground for divorce. The accusation is to be brought before the judge of the holy church and proof made of the fornication or adultery, as set forth in the preceding title. The same would result should one of the spouses commit spiritual fornication by becoming a heretic or a Moor or a Jew, if he or she should refuse to eschew this evil. And the reason why this separation which is authorized by reason of these two things, either religion or fornication, is properly called divorce, in distinction from separation which results from other impediments, is that, although it separates those who were married as stated in this law and the preceding one, the marriage nevertheless subsisjs, and thus it is that neither one of them can contract a second marriage at any time excepting in the case of a separation granted by reason of adultery, in which case the surviving spouse1 may remarry after the death of the other." It will be seen from these laws that the onlv ground for divorce now of importance here is adultery. Law 2, title 9, of the fourth partida, provides in part as follows: "Husband and wife may accuse each other, in another way than those mentioned in the preceding law; and that is for adultery. And if the accusation be made with a view to separating the parties from living together, or from having any commerce with each other, no other person but the spouses themselves can make an accusation for such a cause, and it ought to be made before the bishop or the ecclesiastical judge (official) either by the parties themselves or their attorneys. * * * And in all the various ways in which the husband can accuse the wife, mentioned in these two laws, the wife may in like manner, according to holy church, accuse him, if she choose; and she ought to be heard, as he is himself." While Law 2 of title 10 seems to speak only of the adultery of the wife, this clearly gives the wife the right to accuse the husband of adultery for the purpose of securing a separation. So does Law 13, title 9, partida 4. The divorce did not annul the marriage. Law 3, title 2, partida 4, says, among other things, the following: "Yet, with all this, they may separate, if one of them, commit the sin of adultery, or

join any religious order, with the consent of the other, after they have known each other carnally. And notwithstanding they separate for one of these causes, no longer to live together, yet the marriage is not dissolved on that account." Law 4, title 10, partida 4, is to the same effect. Law 7, title 2, partida 4, is in part as follows: "So great is the tie and force of marriage that when legally contracted it can not be dissolved, nothwithstanding one of the parties should turn heretic or Jew or Moor or should commit adultery. Nevertheless, for any of these causes they may be separated by a judgment of the church, so as to live no longer together, nor to have any carnal connection with one another, according to what is said in the title on the clergy, in the law which begins with the words 'otorgandose algunos.'" The partidas contain other provisions in regard to the form of the libel (Law 12, title 9, partida 4), and Law 7, title 10, partida 4, confers jurisdiction upon the church in cases of divorce. That either spouse has been guilty of adultery is a defense to his or her suit (Law 8, title 2, partida 4), so is the fact that he has pardoned her (Law 6, title 9, partida 4). And if, after a divorce has been granted to the husband, he commit adultery, there is a waiver of the judgment (Law 6, title 10, partida 4). Were these provisions of the partidas in force in the Islands prior to 1889? The general rule was that laws of the Peninsula did not rule in the colonies unless they were expressly extended to them. As to certain laws, this result was, however, accomplished in another way. An examination of the Laws of the Indies will show that they are almost without exception of an administrative character. They deal with the relations of the citizen to the church and to the Government and some of them to matters of procedure. The laws which treat of the rights of citizens between themselves are few This fact leads to the promulgation of the law which appears as Law 2, title 1, book 2, of the Recopilacion de las Leyes de Indias. The last part of Law 1 of that title and said Law 2 are as follows: "And as to all matters not provided for by the laws of this compilation, the laws of the compilations and the partidas of these Kingdoms of Castile shall be followed in the decision of causes in accordance with the following law." (Law 1.) "We order and command that in all causes, suits, and litigations in which the laws of this compilation do not provide for the manner of their decision, and no such provision is found in special enactments passed for the Indies and still unrepealed, or those which may hereafter be so enacted, that then the laws of this our Kingdom of Castile shall be followed, in conformity with the law of Toro, both with respect to the procedure to be followed in such cases, suits, and litigations, and with respect to the decision of the same on the merits." (Law 2.) This law of Toro; designating the order in which the different bodies of law should be applied, is now found in book 3, title 2, Law 4 of the Novisima Recopilacion. In the royal cedula of Carlos, dated May 18, 1680, declaring the force of this compilation, the commands of this Law 2 are practically repeated. By the operation of this law, first enacted in 1530, those laws of the partidas hereinbefore referred to relating to divorce, upon the discovery and settlement of the Philippines became at once effective therein. They have remained in force since as civil laws of the state as distinguished from the laws of the church.

It may be added also that upon them the ecclesiastical courts apparently in part relied in determining cases for divorce pending before them. They are cited as authorities by the writers upon ecclesiastical law. (3 Procedimientos Eclesiasticos, Salazar and La Fuente, p. 9; Practica Forense, Rodriguez, pp. 410, 413; 2 Practica General Forense, Zuiiiga, p. 90; 2 Procedimientos Eclesiasticos, Cadena, p. 210.) Being in force on August 13, 1898, they continued in force with other laws of a similar nature. (Am. Ins. Co. vs. Canter, 1 Pet., 511; proclamation of General Merritt, August 14, 1898). There is nothing in the case of Hallett vs. Collins (10 How., 175) which is inconsistent with this result. In fact that case assumes that the law of the partidas regarding matrimony was in force in Louisiana, this conclusion being reached, however, without taking into consideration the above-mentioned Law of the Indies and without making the proper exceptions. (Law 2, title 1, book 2.) The <B>partidas</B> recognized adultery as a ground for divorce. Therefore, according to the civil as well as the canonical law in force here on August 13, 1898, the commission of that offense gave the injured party the right to a divorce. That provision of the substantive civil law was not repealed by the change of sovereignty. The complete separation under the American Government of church and state, while it changed the tribunal in which this right should be enforced, could not affect the right itself. The fact that the ecclesiastical courts no longer exercise such power is not important. The jurisdiction formerly possessed by them is now vested in Courts of First Instance, by virtue of Act No. 136. Section 56, first and fifth paragraphs of that act, provides that "Courts of First Instance shall have original jurisdiction, first, in all civil actions in which the subject of litigation is not capable of pecuniary estimation; fifth, * * * and in all such special cases and proceedings as are not otherwise provided for." The result is (1) that Courts of First Instance have jurisdiction to entertain a suit for divorce; (2) that the only ground therefor is adultery; (3) that an action on that ground can be maintained by the husband against the wife, or by the wife against the husband; and (4) that the decree does not dissolve the marriage bond. The Court of First Instance of Iloilo, therefore, committed no error in assuming jurisdiction of this case. (2) A motion for a new trial having been made in the court below on the ground that the findings of fact contained in the decision were not justified by the evidence, it becomes necessary to examine that evidence. The adultery of the defendant was fully proved. The finding that the plaintiff had not committed adultery is, however, plainly and manifestly against the weight of the evidence. We arrive at this result from a consideration chiefly of the admitted facts in the case, the most important of which is the letter written by the plaintiff to the defendant on March 6, 1899, and found at pages 168 and 195. This is in itself practically conclusive against her. A portion of that letter is as follows: "E., I still feel ashamed for the past, although it is seven years since we separated. For this, then, Esteban, pardon me for pity's sake. Wipe out the past. Remember me for the love of God. Contemplate our unhappy fate. To you I look to assuage my sorrow. E., I have heard that you have had some misfortunes lately. I send my sympathy, although I am unworthy of your presence."

The significant words "I am unworthy of your presence" probably escaped the attention of the judge below, because he has not quoted them. The contention of the appellee is that the wrong for which the plaintiff sought pardon was that of having asked for an allowance. This contention can not for a moment be sustained. A woman does not ask her husband to blot out the past, to have compassion on her, and, most important of all, does not say that she is unworthy of his presence simply because she has asked him for an allowance, something to which, according to her own belief, she had at the time a perfect legal right. The letter is a confession of guilt. It is admitted that the plaintiff and defendant had lived happily together from the time of their marriage in July, 1891, to August, 1892. It is also admitted that then the defendant suddenly, without any previous warning, took. his wife to the 4ouse of her parents, left her there, and never lived with her afterwards. There must have been some reason for this sudden change. The court below says that it was because the defendant had tired of his wife. There is nothing in the evidence to support this theory. In her complaint the plaintiff charges the defendant with having committed adultery with Gregoria Bermejo in 1892. She produced no evidence to support this allegation as to the time. No one of the six witnesses for the plaintiff upon this charge fix any date prior to 1894. The other two charges relate to 1899 and 1901. There is no evidence in the case from which a judge would be justified in finding that from the separation in 1892 to some time in 1894 the defendant had been unfaithful to his marriage vow. And the judge below made no such finding. Two witnesses, Epifanio Lacson and Doroteo Garcia, who testified as to the charge in connection with Gregoria, speak of a woman brought by the defendant to Negros in 1892. But an examination of their evidence will show that it is entirely insufficient to prove any illicit relations between this woman and the defendant. In view of the evidence which the plaintiff did present in this case, we think it safe to say that if the conduct of the defendant during the years 1892 and 1893 had furnished any ground for suspicion the plaintiff would have been able to produce evidence thereof at the trial. She did not do so. The lack of this evidence destroys the theory of the court below and of the appellee that the defendant expelled the plaintiff from his house because he was tired of her and desired the company of other women. That theory is entirely inadequate to explain the sudden termination of their marital relations. The event is, however, to our minds, correctly explained by the testimony of the defendant. The separation and the letter written by the plaintiff from which we have quoted can only be explained on the supposition that this testimony of the defendant is true. He stated that on his return from an inspection of one of his estates his wife's maid gave him a letter in the handwriting of his wife and directed to her lover, a Spanish corporal of the civil guard, named Zabal. She admitted the genuineness of the letter, fell upon her knees, and implored him to pardon her. That same day he took her to the home of her parents, told what had occurred, and left her there. That the testimony in regard to this letter is not a fabrication of recent date is shown by the evidence of the plaintiff's mother, one of her chief witnesses. The mother testified that about a year after her daughter was returned to her she heard that the defendant believed that illicit relations existed between Zabal and the plaintiff on account of a certain letter. She heard Zabal's name mentioned by a sergeant of police in 1893 or 1894. This may have been the sergeant of the civil guard who, according to the testimony of Domingo Jardelesa, was the cause why the latter did not deliver to the plaintiff a letter intrusted to him for her by Zabal

after her separation from her husband. The evidence of the servants and others who testified to facts conclusively showing the adultery is severely criticised by the court below and the counsel for the plaintiff. That criticism relates in a large degree to the matter of time and dates. If this direct evidence were the only evidence in the case we should not, perhaps, disturb the finding of the court. But when it is in its essential points corroborated by the admitted facts which we have heretofore recited, there is left, in our opinion, no doubt whatever of the guilt of the plaintiff. It is said that if the plaintiff is guilty the defendant has condoned the offense. It is not necessary to determine upon this point where the truth lies for two reasons: (1) the court below made no finding of fact on the subject; (2) even if it had found that there was condonation this would not have entitled the plaintiff to a divorce. By Law 6, title 9, partida 4, the wTife can defeat the husband's suit for divorce by proving that he has pardoned her. But we have found no laws in the partidas which say that the effect of that pardon would be so far-reaching as to entitle her to a divorce against him in a case like the present one. On the contrary it is expressly provided in Law 8, title 2, partida 4, as follows: "For the sin of each one of them is of itself a bar to an accusation against the other." Our conclusion is that neither one of the parties is entitled to a divorce. The result makes it unnecessary to consider that part of the judgment which relates to the settlement of the conjugal partnership. Section 497 [1] authorizes us in cases of this kind "to make such findings upon the facts and render such final judgment as justice and equity require." The judgment below is reversed, and we find from the evidence the following facts: (1) The allegations of the complaint as to the marriage of the parties and as to the acts of adultery committed by the defendant are true as therein stated except as to the date of the adultery committed with Gregoria Bermejo. (2) The plaintiff, in the summer of 1892, at Talisay, in the Province of Occidental Negros, committed adultery with one Zabal, a corporal of the civil guard. As conclusions of law from the foregoing facts we hold that neither party is entitled to judgment of divorce against the other; that judgment be entered that the plaintiff take nothing by her action or the defendant by his cross demand, and that neither party recover of the other any costs either in this court or the Court of First Instance. Judgment will be entered accordingly forty days from the filing of this decision, and the case remanded to the court below for execution. So ordered. Arellano, C. J., Torres, and Mapa, JJ., concur. McDonough, J, , dissents. Johnson, J. , did not sit in this case.

[1 ] Code of Civil Procedure.

DISSENTING COOPER, J., It is immaterial whether a divorce a mensa et thoro is governed by the provisions contained in Title IV of book 1 of the Civil Code, by the canonical law, or by the laws of the Partidas. Under each the causes for divorce are substantially the same, one of which is for adultery. The conclusion reached by the majority of the court is that both plaintiff and defendant have been guilty of adultery, and that therefore neither is entitled to relief. In entering upon a review of the evidence and a discussion of this question it is proper to refer to our statute upon the subject of a review by this court, of evidence, and to determine in what cases it is allowed and the rules which govern where such review is permitted. It is provided in section 497 of the Code of Civil Procedure that the Supreme Court shall not review the evidence taken in the court below nor retry the questions of fact except "* * * 3. If the excepting party filed a motion in the Court of First Instance for a new trial upon the ground that the findings of fact were plainly and manifestly against the weight of evidence, and the court overruled said motion and due exception was taken to his overruling the same, the Supreme Court may review the evidence." The motion for a new trial filed in the court below was based upon the ground that the "findings of fact were contrary to the proofs presented on the trial." Is this a sufficient compliance with the provisions above cited, it not being stated in the motion "that the findings of fact were plainly and manifestly against the weight of evidence?" If this provision of the code stood alone, the failure to comply with this requirement might be regarded as simply a defect in the motion, but construed in connection with the other provisions the question becomes a different one. Under the provisions of section 145 of the Code of Civil Procedure the Court of First Instance may, at any time during the term at which an action has been tried, set aside the judgment and grant a new trial on the ground that the evidence was insufficient to justify the decision, or that it is against law; but it is expressly provided in this connection by section 146 that the overruling or granting of a motion for a new trial shall not be a ground of exception, "but shall be deemed to have been an act of discretion on the part of the judge." But even if the conclusion should be reached that the motion is sufficient to authorize a review of the evidence, still this court must be restricted in reviewing the evidence and in retrying the facts by the provisions contained in clause 3, section 499, and the judgment of the lower court should not be reversed unless the findings of the court were plainly and manifestly against the

weight of evidence. It is very clear from these provisions it was the intention of the legislative department that the findings of fact made by a judge of the Court of First Instance should be entitled to all the weight that a verdict of a jury has in those jurisdictions where jury trials prevail, and that the findings of fact, like the verdict of the jury, should not be disturbed where the evidence is merely conflicting. The reason for this is that the trial court, having tlie witnesses before it, is most competent to judge of the weight to be attached to their testimony, and that it is not sufficient that the appellate court, looking at their testimony as it is written down, would have come to a different conclusion. Where there is a direct and substantial conflict, and the determination of a question depends on the credibility and weight, to be given to the testimony of witnesses, the rule is the court will not set aside the findings even where they might have found the other way. That the question of credibility of witnesses is for the court below, and not for the appellate court, to determine is supported by decisions of many courts of the United States. It is on account of the superior means that a trial judge has by reason of the presence of the witnesses, and the observance of their demeanor while testifying, that such a rule exists. It appears from the decision of the trial judge that he placed no little stress upon the appearance and demeanor of the witnesses. With reference to the testimony of the woman Apolonia Aurelio, upon the credibility of whose testimony the case as to the adultery of the plaintiff largely rests, he says: "That the testimony of this woman Apolonia is too uncertain and too suspicious to justify any court in declaring the plaintiff guilty of adultery, especially when the worthlessness and the dubious character of the testimony of the other witnesses for the defendant on this subject increases the probability of the existence of something in the nature of a conspiracy to destroy the case of the plaintiff and support that of the defendant in the present case. "There are other considerations in the evidence, as well as in the atmosphere of the court room and the demeanor of the parties during the trial, which inclined the court to believe at that time that the true facts of this case were icith the plaintiff" Again, he says: "This court does not hesitate to say that the attitude of the plaintiff was such as to impress the court very favorably in her behalf. Not a particle of vindictiveness toward the man who, as she believes, has so unjustly treated her, was exhibited by her; her entire bearing was that of a modest, retiring, self-respecting, and conscientious woman." Again, speaking of the testimony of the woman Apolonia, he says: "The plaintiff and the plaintiff's mother both swore that this woman, Apolonia, never commenced to work for the plaintiff until after the year 1893, after the couple had separated, and that she was then sent by the husband to the wife as a servant. The wife also says that trouble arose between her and this woman, Apolonia, subsequent to 1893, by reason of the fact that Apolonia was about to

marry a man whom the wife disliked. This statement is not denied by any of the defendant's witnesses. It therefore shows that a motive exists on the part of this woman, Apolonia, to injure the wife. There is also evidence in the ease tending to show that this woman, Apolonia, received a large sum of money shortly before the trial of this case, which money came from the defendant or some of his agents. The court, however, does not regard this testimony as of great importance, because it is too vague, hut the other testimony is very important. The attitude of thv. woman,. Apolonia, on the witness stand was apparently hostile to the plaintiff." An examination of the evidence of the case not only shows that the findings of fact by the Court of First Instance are not plainly and manifestly against the weight of evidence, but the preponderance of evidence seems in favor of the plaintiff, especially upon the question of condonation. I shall not attempt to review the mass of testimony found in the record. In view of the many conflicts occurring in the statements of the witnesses, the many inconsistencies in the testimony of material witnesses, the suspicion cast upon some of the witnesses it is clear that this is a case in which the trial judge possessed advantages far superior to those of this court in passing upon the credibility of the witnesses who testified in the case, and gave due weight to such as were entitled to belief, and tUe rule applies with peculiar force that an appellate court will not disturb the finding of a trial court when these findings depend upon the credibility of witnesses. It is stated in the majority opinion that the conclusion that the plaintiff was guilty of adultery was arrived at from a consideration chiefly of the admitted facts in the case, the most important of which is a letter written by the plaintiff to defendant on March 6, 1899; that this letter is considered as practically conclusive against her. The entire letter, extracts of which are given in the majority opinion, is as follows: "MY RESPECTED AND UNFORGETTABLE ESTEBAN : Pardon that I disturb your tranquillity, E., that in the midst of a profound sentiment that afflicts me I find consolation for my profound grief in addressing the man who loved me in the time of my good fortune, and who led me to the altar before the eyes of the Being whom we most love, God. Remember me; let fall down a drop of compassion from your soul; look at me back again with your cheerful eyes at the woman who is watching for you. I know well that you are very disgusted with me, and for just reason for having claimed my pension. Be calm; quiet yourself; reflect for a moment my situation, which I will explain to you. "When you went to Europe mother went to see you to explain our situation to you, and you answered that it had nothing to do with you. She insulted you, Esteban; you had reason to be offended. "Now, regarding my having demanded my pension, you are also in the right, but pardon my impudence in stating what I have to say: "I swear to you, E., and call God to witness, that when you went to Spain my pain was unbearable, thinking of my misfortune. I had become completely desperate, and Orozco wrote and advised me to demand my pension in view of the fact that you were going to reside permanently in Spain; then I finally did commence

proceedings in view of my desperate situation, and nothing further came of the matter during your absence. "If the Lacsons, who wish me ill, have told you more they have.made a mistake, for the truth about my comportment is that it can not be complained of. You can secure information regarding my conduct during our separation here in Valladolid. "I keep yet on my face the shame of what has happened, notwithstanding that it has been already many years since we parted. Therefore, my husband, forgive me; erase what has happened; remember me for God's love; behold our dark fate; in you I trust my future. "E., I have heard that you have had some misfortunes. I. send my sympathy, although I am unworthy of your presence. I also learned from Modesto that you do not wish to have my pension sent. Do as you wish. Good bye, E.; take good care of yourself, and command, "Your faithful servant, Q, B. S. P., "AGUEDA BENEDICTO. "March 6, 1899. "P.S. - On the lltli of February papa died, and delivered his soul to God after a painful illness." This letter, upon which so much stress has been placed in the opinion of the majority, as showing the guilt of the plaintiff, rather indicates that the writer was in a morbid state of mind, in great distress and dejection of spirit, and, in her own language, "completely desperate." It shows a willingness to prostrate herself before her husband, to subject herself to his will, to confess any manner of misdoings which will appease his wrath, and regain his favor without regard to innocence or guilt. This is evident when she says: "I know that you are disgusted with me for having claimed my pension" when it is remembered that the wife is entitled to onehalf of all property acquired as gains during the marriage, as community property; that at the time this letter was written, the husband was not only in the enjoyment of a large estate in his separate right but was in the exclusive possession and enjoyment of all of the community property accumulated during eight years of marriage, one-half of which belonged to her, yet we find her confessing herself as guilty for claiming a small pittance of what belonged to her, and apologizing for having taken at some previous time steps to compel him to do that which good conscience should have dictated to him as just and right. It is hard to conceive that the letter was the result of remorse of conscience for sins committed against the husband when it appears from the record that the husband, after their .separation, during the space of ten years, maintained illicit relations with no less than four mistresses. three of whom bore him offspring; and that there had been a betrayal of the confidence of the wife, a near relative, when a girl less than 14 years of age, which fact a sense of shame did not restrain the defendant from disclosing in his testimony on the trial of the case. With reference to the question of condonation, it will be seen from the citation contained in the majority opinion that this doctrine is recognized by Law 6, title 9, partida 4. It exists in the

ecclesiastical law. and is recognized in the United States and England and in all countries where laws of divorce exist. But it is stated in the majority opinion that there is no law to be found in the partidas which says that the effect of pardon would be so far-reaching as to make it applicable to this case. By condonation the offending party is restored to the same position he or she occupied before the offense was committed, the only condition being that the offense must not be repeated. To say that the effect of pardon would not be so far-reaching as to entitle the plaintiff to divorce, in a case like the present one, is equivalent to saying that because the plaintiff has been once guilty she would forever lose her right to a divorce for offenses of a like character thereafter committed by the husband. This makes condonation conditioned, not only that the parties receiving it will not again commit the same offense, but it adds the further condition that the party granting it shall forever have the right to commit the same offense himself with impunity. This question has often been before the courts. The American authorities are uniform that a condoned offense, not being sufficient as a cause for divorce, is not a bar to divorce in favor of the plaintiff. (9 Am. and Eng Enc. of Law, 821.) In Masten vs. Masten (15 N. H.) it is said: "Where the statutes are silent upon this question the courts hold that as a condoned offense can not be a cause for divorce, therefore it can not be set up as a bar in recrimination." In Jones vs. Jones (18 N. J. Eq., 33) it is said: "It is better to hold that when the erring party is received back and forgiven the marriage contract is renewed and begins as res integer, and that it is for the party and not for the courts to forgive new offenses." In the case of Gumming vs. Cumming (135 Mass., 390) the court says: "To hold otherwise would operate to some extent as an encouragement or license to the condoning party to commit offenses against the marriage relation; and would also tend to give a constant sense of inequality between the parties with respect to their legal rights. All condonation is in a sense conditional - that is, there is an implied condition that the same offense shall not be repeated. It is not, however, attended with the further condition that the offender shall be disqualified from thereafter alleging any ground of complaint for subsequent misconduct against the condoning party. No such inequality should be established by an arbitrary rule of law applicable to all cases. Condonation restores equality before the law. If the injured party is willing to forgive the offense the law may well give full effect to that forgiveness and not extend to such party the temptation, the encouragement, the license to run through the whole calendar of matrimonial offenses, without redress at the hands of the other party. We have not overlooked the consideration that an original adultery by a libellant may have had the effect to weaken the sense of the obligation of the marriage contract on the part of the libelee, and that for this reason a divorce under such circumstances ought to be refused. This consideration is of weight, and would deserve especial attention if judicial discretion were to be exercised in determining a case, but it is not sufficient to overcome the controlling reasons in favor of the establishment of a general rule to the contrary." A finding of the lower court against condonation would have been plainly and manifestly

against the weight of evidence. It is shown by the evidence that the next day after the supposed adultery of the wife the defendant took his wife to the house of her parents, Andrea de la Rama, the mother of the plaintiff, testifies that when the defendant brought the plaintiff to her house she supposed it was on a visit; that they remained at her house about a week; that during their stay the plaintiff and defendant slept in the same room, and that there was only one bed in the room that they occupied. The plaintiff testified that on this occasion she and her husband remained together at the house of her parents from four to six days; that during this time they slept in the same bed and had matrimonial intercourse. The defendant de la Kama testified that he remained at the house of the plaintiff's parents one day and two nights; that he occupied the same room and slept in a different bed. On being asked by the court as to the length of time he remained with his wife, he stated that he remained there one day and two nights, more or less, and when asked if he slept in the same room but in a different bed he answered that he was not sure that there were two beds in the room. This court has not only reversed the judgment of the trial court but has entered a judgment against the plaintiff. It is true that the court may, in the exercise of its appellate jurisdiction, affirm, reverse, or modify any final judgment and may direct the proper judgment to be entered, but where there has been failure of the lower court to make a sufficient finding of fact, or where there are defects or omissions in the pleadings which may be remedied by amendment, or where there is a possibility of supplying defects in the proof, such practice should not be followed. It is stated in the opinion that it is unnecessary to pass upon the question of condonation for two reasons: (1) The court below made no findings of fact on the subject. (2) Even if the court had found that there was condonation, this would not have entitled the plaintiff to a divorce. I have before attempted to answer the last objection. As to the first objection that is, that the lower court made no findings on the subject if this be true the case should be reversed in order that a finding be made. To deprive the plaintiff of the judgment which she has obtained and make a final determination of the case here without giving her an opportunity of correcting this error, if such exists, is inequitable and unjust.

OSJurist.org

G. R. No. 1167, December 16, 1903

IN THE MATTER OF THE SUSPENSION FROM THE PRACTICE OF THE LAW OF R. S. MACDOUGALL. D ECIS ION
COOPER, J.: On December 24, 1902, the Court of First Instance of the Province of Isabela made and entered an order against Robert S. MacDougall, esq., by which he was suspended in the exercise of his profession as attorney at law in all the courts of the Philippine Islands, and it was directed that a certified copy of the order of suspension and a statement of the facts upon which the same was based should be transmitted to this court for investigation and for the making of such final order of suspension or removal as the facts should warrant. The suspension was for the alleged willful disobedience by the defendant of the order of the Court of First Instance made in a certain action of ejectment therein pending, in which the Compania General de Tabacos de Filipinas was the plaintiff and Miguel Tupeno and eighty-five others were defendants. By this order a preliminary injunction was granted in the case and the defendants were enjoined from committing certain acts on the property involved in the litigation. The particular clause of the order which it is claimed was violated was that in which the defendants in the suit were prohibited from destroying the fences on the haciendas of San Luis and La Concepcion. On the 17th day of March, 1902, this court appointed a commissioner to take proofs in the case. Additional testimony was taken and the same has been returned to this court. It is contended by the defendant (1) that to constitute a violation of an injunction, the act complained of must be such as is directed against the interest in the litigation for the protection of which the injunction was issued; and that none of the eighty-five defendants, parties to the original suit, claim any interest in the land upon which the fence cut was situated and therefore that there was no violation of the injunction; (2) that the cutting of the fence was necessary in order to open a public road which had been in use for thirty years and which was the only means of ingress and egress to the lands of one Lacaste, with whom the defendant had business relations, the entry of the defendant being for the purpose of visiting the house of Lacaste; (3) that if the conduct of the defendant in cutting the fence was in fact a violation of the injunction, still, the evidence indicates that the defendant's purpose was not a contumacious violation of the order of the court. The most important question in the case is, Was the fence at the place where the cutting occurred covered by the order of injunction; or, in other words, has there been, in fact, a violation of the injunction? The order restrained the defendants from doing certain enumerated acts on the haciendas San Luis and La Concepcion "and from destroying fences of the same." To determine the question it becomes necessary to consider the evidence with reference to the situation of the haciendas San Luis and La Concepcion, the situation of the land the subject of the litigation, and the situation of the fences for the cutting of which the suspension

proceedings were had. The testimony shows that the haciendas San Luis and La Concepcion, in their entirety, comprise a Jarge body of land lying oh the Cagayan River, containing about 4,000 hectares; that within the bounds of these haciendas were located the lands involved in the litigation in the principal suit, embracing about 446 hectares; that there were also other lands situated within these haciendas, claimed by different persons, whose ownership was not disputed by the company, among which was a tract of land belonging to the wife of Lacaste and around which was constructed the fence cut by the defendant; that besides this there were other tracts of land held by persons who claimed adversely to the company and who were not joined in the suit, one of whom was Teodoro Bulasan; that the tract of Lacaste so inclosed, and upon which the fence cut was situated, was of the shape of a trapezium and contained about 4 hectares of land, one side of which lay along the River Cagayan; that the said fence was constructed by the company around the land of Lacaste with the evident view of segregating the land of Lacaste from the land of the company, and was so constructed as to completely cut off from all ingress and egress the land of Lacaste, except such as was afforded by the Cagayan River on the north of his tract; that there formerly was a road running through this Lacaste tract, dividing it into two nearly equal portions; that this road had been the traveled route from the town of Ilagan, passing through Naguilian and crossing the Estero Cauayan, leading thence to Cauayan; that road passed through Lacaste's land from east to west. The defendant, MacDougall, accompanied by others, was, at the time of the cutting of the fence, traveling along this road, proceeding from the house of Lacaste toward Cauayan, and, on encountering the wire fence across the road, caused the strands of wire to be cut and removed so far as they obstructed the passage. The fence so cut was situated at the point at which this road entered the west line of the Lacaste tract, the Lacaste tract lying within the inclosure, and the tract on the west, or outside of the fence, either belonged to Lacaste, Teodoro Bulasan, or the plaintiff company. The testimony of the witness Lineau, as well as that of Lacaste, was to the effect that the land at the point where the fence was cut was owned on both sides of the fence by Lacaste; while the testimony of Bulasan Avas that lie owned the land on the .west side of the fence. The company also claims to own the land on the west side. The preponderance of evidence, we think, supports the view that the land on both sides of the fence cut belonged to Lacaste's wife. But it is immaterial whether the land on the exterior or west side of the fence was owned by Lacaste or by Bulasan or by the company, for it appears very clearly that it was not claimed by any one of the defendants in the original suit and that the fence cut was not on the tract of land in litigation. The metes and bounds of the haciendas San Luis and La Concepcion were not shown in the order granting the injunction, nor is it shown in any document contained in the record of the case. The order was "against the cutting of the fences of the same." It appears from the evidence that there was no exterior fence completely inclosing these haciendas; that there were separate and distinct portions of fences on what is claimed to be their exterior lines; that besides, there were separate and distinct fences inclosing some of the lands held adversely by the defendants. The question is, Are we to construe the order of injunction as prohibiting the cutting of any fence situated on the entire tract of 4,000 hectares, or did it refer to the fences on the tracts of land in litigation held by the defendants, containing only about 446 hectares?

The grounds upon which the application for the writ of injunction were based do not appear in the record; nor does it appear from the record or from the proofs in the case where the particular lands owned by the defendants were situated. This is left entirely to conjecture. We infer from the order that the injunction was granted to prevent waste on the land involved in the litigation and that the application and order was based upon clause 3 of section 164, Code of Civil Procedure, which provides that a preliminary injunction may be granted when it is established to the satisfaction of the judge granting it "that the defendant is doing, or threatens, or is about to do, or is procuring or suffering to be done, some act probably in violation of the plaintiff's rights respecting the subject of the action, and tending to render the judgment ineffectual." The subject-matter of the action was the particular tracts of land claimed adversely by the defendants in the original suit, amounting to about 446 hectares. The land at the point at which the fence was cut was not the subject of the action, and nothing done at this point could in any way tend to render any judgment which might be rendered in favor of the plaintiff ineffectual. As before stated, neither Lacaste nor Bulasan were parties to the suit The plaintiff did not claim the land within the inclosure, nor was the land on the exterior of the fence at the point where it was cut claimed or held by any one of the defendants who were made parties to the original suit. Our construction of the order granting the injunction is that the fences which the defendants were enjoined from destroying must be construed as being such fences as were situated on the land the subject of the action; otherwise the court in granting the injunction would have done that which it had no authority to do under the statute. This construction harmonizes with the spirit and purpose of the order, which was to protect the rights of the plaintiff in the subject of the action. It is not necessary to determine if order had specifically identified the fence at the point at which it was cut and had clearly embraced it,if the court acted in excess of its jurisdiction and the defendants could disregard the order, The proper prince in such cases would be to apply to the court for a modification of the injunction. Upon the question as to whether the conduct of the defendant in cutting the. fence was such a willful disobedience of the order of the court as to justify his suspension or disbarment, had the injunction embraced the fence which jtfas cut, we are clearly of the opinion that it was not. Robert Lineau, a witness for defendant, testifies that on the 23d day of November, 1902, in company with the defendant, MacDougall, he went from Ilagan on horseback, passing through Naguilian and following the public road which led from thence in the direction of Oauayan. On arriving at the barrio at the north of the Estero de Cauayan, a short distance from its mouth, near the residence of Lacaste, they took a banquilla in order to enter the premises of Lacaste, leaving their' horses on the outside of the inclosure in the hands of some natives, who carried them from thence to the house of Lacaste by swimming them outside of the wire fence, which entered several meters into the river. The defendant and the witness arrived at the house of Laeaste about 1 o'clock in the afternoon, and on the same evening, about 4 o'clock, the defendant, having finished his business with Laeaste, mounted his horse, and, accompanied by the witness and other persons whom defendant had met at Lacaste's house on business, went down the road, their destination being Cauayan. When they reached the point on the road which was obstructed by the fence, finding their passage obstructed, the

defendant, MncDougall, directed the wires to be cut. The fence was cut and the obstruction removed from the road. That there was no disturbance at this time and on this occasion is evident from the fact that none of the employees of the company were present at the time of the cutting of the fence. On the next day MacDougall and his party returned to where the fence was cut and found the employees of the company repairing the fence. The proof shows that a number of the party were armed with bolos, and the witness Ifcilfoas states that "their attitude at first was not very assuring but they committed no act of outrage against me or against my company." This seems ty have been the circumstance upon which the court based its order of disbarment and which, in the language of the decision of the judge, "almost constitutes the crime of sedition," but it is perfectly apparent that on this occasion the defendant's acts had no connection whatever with the cutting of the fence. After the exchange of some intemperate language the defendant and his party left, without in any manner interfering with the employees of the company engaged in the repairing of the fence. As to whether the road at the point where the fence had been cut the day before was a public road, it is not necessary to determine. The testimony of Laeaste and other witnesses show that it had been traveled as a public road for thirty years and had only recently been closed by the company. There is much evidence also contained in the record of acts of oppression upon the part of the plaintiff company, such as keeping an armed body of police, to the number of ten persons; as to unlawful arrests made by the employees of the company of the people living in the community; that on a certain occasion, a short time before, the sheriff, being instigated by the employees of the company, acting under a writ of restitution which did not embrace the property on which the house was situated, had torn down the residence of the wife of Lacaste, while she was in the house, on which occasion Lacaste and wife were despoiled of a large amount of money and valuables by unknown persons; and such acts as the fencing in of the land of Lacaste without his consent so that no ingress or egress was left to him except through the Cagayan River. Evidence was also introduced concerning the illegal detention of the wife of Lacaste and the quartering by the sheriff of himself and those accompanying him id the house of one Respecio, against his consent, which acts appear to have been the principal cause of the disturbance occurring at this time. If the defendant, MacDougall, or any of those persons attending him, or if the employees of the company were guilty of such conduct as would subject them to punishment under the criminal laws, the courts of the country should have been resorted to and criminal prosecutions instituted, instead of the attempt on the part of MacDougall to right the supposed grievances of the people of that community, or on the part of the company to protect itself against aggressions on the part of the defendant. AlacDougall, by disbarment proceedings. The evidence of such acts should not have encumbered the record in this case. The language of the clause for which the suspension or disbarment was ordered is "for the willful disobedience of any lawful order oi the Supreme Court or the Court of First Instance." From this language it is to be inferred that something more was contemplated than a mere disobedience, which means, in common acceptation, neglect or refusal to obey. The Avord "willful" has been superadded and conveys the idea of flagrant misconduct such as would indicate a disposition of the defendant so refractory in its nature as to affect his qualification for the further exercise of his office as attorney. The disbarment of an attorney is not intended as a punishment, but is rather intended to

protect the administration of justice by requiring that those who exercise this important function shall be competent, honorable, and reliable; men in whom courts and clients may repose confidence. This purpose should be borne in mind in the exercise of disbarment, and the power should be exercised with that caution which the serious consequences of the action involves. The profession bf an attorney is acquired after long and laborious study. It is a lifetime profession. By years of patience, zeal, and ability, the attorney may have acquired a fixed means of support for himself and family, of great pecuniary value, and the deprivation of which would result in irreparable injury. For dereliction of duty on the part of an attorney, articles 356 and 357 of the Penal Code provide a punishment. By article 350 the attorney or solicitor who, in malicious abuse of his profession, or who, through inexcusable negligence or ignorance, shall prejudice his clients or disclose their secrets, of which he had gained knowledge in the course of his professional duties, is punished with a fine of from G25 to C,250 pesetas, with disqualification for a certain period of time. An attorney may also be punished under the provisions of section 232 of the Code of Civil Procedure, as for contempt, for "disobedience or resistance to a lawful writ, process, order, judgment, or command of a court, or injunction granted by a, court or judge." And under section 236, one who is guilty of such contempt may be fined not exceeding 1,000 pesos or imprisonment not more than six months, or both. If the contempt consists in the violation of an injunction, he may, in addition, be compelled to make restitution to the party injured by such violation. The punishment provided in the Penal Code and in the articles above referred to for contempt would seem to be sufficient to prevent a mere obstruction in the administration of justice, except where the facts are of such a character as to affect the qualification of an attorney for the practice of his profession. The suspension of an attorney from practice, while it is correctional in its nature, should be directed with a due regard to the effect of such suspension upon the attorney as well as the client. As happened in this case, there was the interest of a large number of clients and important rights involved. The attorney was suspended before final judgment and before he had prepared the bill of exceptions for the revision of the case by this court on appeal, in the preparation of which his services could not well be supplied; besides, it has resulted in the interruption of his business as an attorney for nearly one year. It is further to be observed that the Court of First Instance did not proceed in the case of the suspension or disbarment of the defendant with that regard to the rights of the defendant which should characterize the action of a court of justice. Section 25 of the Code of Civil Procedure provides that "No lawyer shall be removed from the roll or be suspended from the performance of his profession until he has had full opportunity to answer the charges against him and to produce witnesses in his own behalf and to be heard by himself and counsel, if he so desires, upon reasonable notice." What is a reasonable notice is not stated in this section of the law, but in civil cases, ordinarily of no greater importance to the interest of a person than a disbarment proceeding to that of an attorney, and often not of a more complicated nature or presenting questions of fact and law more intricate, after the complaint is filed, a summons must be issued requiring the defendant to appear within twenty days, if the summons is served in the province in

which the action is brought; within forty days if served elsewhere. The rules of this court require that a defendant, after his appearance has been entered, shall serve and file his answer or demurrer to the complaint within ten days after he has entered his appearance. Besides, a party in an ordinary civil action, where he has exercised due diligence to produce his witnesses and at the day fixed for trial is unable to procure their attendance, is entitled to a postponement of the hearing until such time as he may be able to secure their attendance or take their depositions in a proper case. In this case it appears from the affidavit of the defendant, MacDougall, that on the 28th day of November, 1902, ho was cited to appear by the Court of First Instance and show cause why he should not be disbarred or suspended from tho practice of his profession' as an attorney, on the complaint of the plaintiff in the original suit, the Compania General de Tabacos de Filipinas; that on the said 28th day of November, 1902, he was served with the order if tbe court to appear at 3:30 o'clock p.m. of said day and make his defense to the charges preferred by said company; that ho appeared at the said hour and, after making formal denial of the charges alleged against him, asked for reasonable time within which to present his defense by means of witnesses to be produced by him; that the judge denied the defendant the privilege of so doing, then and there ruling that he must present his defense within the space of twenty-four hours; that he objected to this ruling as being unreasonable and contrary to the statute; and asked to be given further time to have the attendance of material witnesses, one of whom had left the town of Ilagan for the military post of Salomague, Province of Ilocos Sur, three days prior and that it would be an impossibility to have this witness return within less than a week, nor could he obtain his deposition within a less time ythat other witnesses in his behalf lived at the ranchos of Minanga and Mabantad, district of Cauayan, and that it would not be possible to have them appear and testify in the limited time of tyenty-four hours; that the judge peremptorily ruled that he would be given twenty-four hours and no longer Avithin which to present his defense to the charges preferred against him; that by such ruling he was denied An opportunity to answer the charges and to produce his witnesses; that on the 1st day of December the case was reonmed to take the testimony of the sheriff, a witness for the plaintiff; that after the direct examination of the sheriff by the judge this witness was turned over to the defendant for cross-examination; that all material questions asked by him were objected to and disallowed by the court to which ruling he exeepted; that the exceptions were not noted in the record; that notwithstanding the summary manner in which the defendant was forced to trial, the order of the judge suspending him from the practice of his profession was not made for twenty-six days and was rendered immediately after having decided the main case in favor of the plaintiff, in which case he was the only counsel for the defendants. The action of the court in thus summarily placing the defendant upon trial without a due opportunity of making his defense and procuring the attendance of his witnesses not only resulted in depriving him of the right to which every citizen is entitled, but it has necessitated the taking of the testimony of the defendant's witnesses in this court, and has occasioned great delay in the disposition of the case, all of which could have been avoided by giving the defendant proper time for the preparation of his defense. The judgment of the Court of First Instance suspending the defendant should be set aside and annulled, and it is so ordered. The costs of the prosecution are adjudged de oficio. Arellano, C. J., Torres, Mapa, and McDonough, JJ., concur.

Willard, J. : I concur in the result.

OSJurist.org

G. R. No. 1247, December 22, 1903

THE UNITED STATES, COMPLAINANT AND APPELLEE, VS. PABLO JAMINO ET AL., DEFENDANTS AND APX>ELLANTS. D ECIS ION
TORRES, J.: This case was tried in the Court of First Instance of Iloilo, upon the charge of murder.. It was brought to this court en consult a and on the appeal taken by counsel for three of the defendants from the judgment, dated February 2 of this year, by which Pablo Jamino, Emeterio Alcala, and Anselmo Toledo were condemned to the death penalty, to the payment, each of one-third part of the costs, and to the accessory penalties. Between 9 and 10 on the morning of September 29, 1902, Rufino de la Cara, a sanitary inspector, was making an inspection of the barrio of Baybay, of the township of Molo, district of Iloilo, on the loolrout for cholera cases. Pablo Jamino, a resident of that barrio, saw the inspector going along the street in front of his house and ordered two of the five laborers employed by him in the construction of fish corrals, by name Clemente Belarmino and Emeterio Alcala, to seize Inspector Cara. This they did and after having bound him elbow to elbow with a piece of rattan took him into the presence of the owner of the corral, Pablo Jamino. The latter asked the inspector for what, purpose he was in the barrio, to which Cara replied that he was there in the performance of his duty, and that he had come to look after any sick people who might, he found there, Jamino then told him that there were some sick people in a mangrove swamp near at hand and ordered his men to take the inspector to this plaee, sqme 400 yards distant. Upon arriving at the foot of a coc.oanut tree in the swamp, Jamino, who accompanied the party, ordered his men to kill Inspector Cara. Custodio N. and Anselnio Toledo tlien attacked the deceased, striking him several blows with their bolos on the head, neck, and face, as a result of which Cara fell to the ground and soon after expired. After Jamino had assured himself that the inspector was quite dead the men threw the body into a ditch, covering it with cocoanut and nipa-palm leaves. On the night, of the same day, the defendants, Custodio N. aud Antonio N. (who have not been arrested) returned to the place where the crime was committed, put the body into a rice sack, and, after having fastened to the foot of it another sack filled with sand, they cast the body into a small boat, carried it some little distance from the shore, and threw it into the sea. This was done in obedience to the orders, or at least with the knowledge, of Pablo Jamino, for the latter subsequently related to his codefendant, Toledo, the manner in which the body was disposed of. Early in the morning of October 1, 1902, the body of the deceased was found floating near the beach close to the light-house of the port of Iloilo. The fishermen who found it pushed it in toward the beach and reported the matter to the light-house keeper, who in turn notified the justice of the peace. "The justice accordingly went down to the beach, accompanied by his assistants and the president of the board of health, Don Cornelio Mapa. The result of the examination of the body showed that it was very much swollen: that there was a. wound on the forehead, another on the face, one on the left side of the head, and one on the left side of the neck; and that the arms were bound elbow to elbow. A sack covered the lower portion of

the body, to the feel of which was fastened another sack containing some sand. The physician was of the opinion that the deceased had died from drownina1. as his wounds were not. in themselves sufficient to cause death and might have healed if proper and timely assistance had been given. He stated further that he believed the body must have been in the water some two or three days. The body was recognized and identified by Graciano Amparo and Mr. George Bnuner. The first of these men was a friend of Inspector Oara and the owner of. the house.in which lie had lived. He stated that the deceased left his house on the morning of the 29th of September referred to, for the purpose of performing the duties incumbent upon him as sanitary inspector, and that he had never returned, and, up to the time hie body was shown the witness and Bauner near the cemetery, had not been seen by the witness. Furthermore, on the left sleeve of the shirt worn by the deceased was found a red cross, by which he was identified by Amadeo Malhabour, the chief of police. The latter also testified to the fact that when the body was found the elbows were bound together with a piece of rattan, of the kind used in constructing fish corrals. The facts above related, which are fully proven by the evidence in the case, constitute the crime of murder, defined and punished in article 403 of the Penal Code, since at the time of the assault Cara was bound elbow to elbow and wholly unable to defend' himself against his assailants. The latter, furthermore, acted with the assistance of their four companions, who were there ready to render any aid which might be necessary. Consequently it is unquestionable that for the purpose of killing the deceased the assailants availed themselves of means which directly and specially tended to insure the consummation of the crime without risk to themselves and their companions arising from an attempt at self-defense on the part of the victim. There can be no doubt that the sanitary inspector Rufino de la Cara, whose body, partly enveloped in a sack, was found floating in the sea near the Iloilo light-house, the arms bound elbow to elbow, and the feet tied to another sack filled with sand, was the victim of a murder, not only because of the serious wounds shown on the neck, face, and skull of the body, but also because, according to the result of the examination conducted by the doctor, the deceased must have died liy drowning, .for his wounds might perhaps have been cured if lie had received timely assistance. Hence it is unquestionable that the deceased died a violent death and that the corpse found was that of the sanitary inspector, Rufino de la Cara, as affirmed by witnesses who knew him in his lifetime, the identification having been made complete by the fact that the distinctive insignia of the Corps, was found on the person of the deceased. The four defendants, Pablo Jamino, Anselmo Toledo, Emeterio Aloala, and Clemente Belarmino, pleaded not guilty to the charge contained in the amended information filed on December 10, 1902 (p. 4). After the trial commenced the prosecuting attorney filed a nolle prosequi as to Clemente Belarmino, so that he might be used aw a witness for the prosecution, and this defendant was accordingly at once dischargee) (p. 89). This man in his sworn testimony corroborated the facts stated and added that the capture and killing of Rutfino de la Cara were in compliance with orders given by Pablo Jamino. The latter, Belarmino testified, told the other accused that the sanitary inspectors were going about poisoning the wells and that they, could kill such men with impunity. Upon returning to Jamino's house on a subsequent day, the witness heard from Custodio K. that on the night of the same day on which the assault was committed the body was thrown into the sea. When the

witness was arrested by the Constabulary officer, the latter, he states, only told him to tell the truth, aud did not illtreat or threaten him, although Mr. Cotton, the assistant prosecuting attorney, told him that if he would tell the truth he would ask to have him discharged, so that lie might testify as a witness for the Government. The witnesses Damian Madrono and Simplicio Minerva testified that when the former was arrested as the presumptive author of the death of Inspector Rufino, he told the officers that, he had had nothing to do with it, but pointed out Anselmo Toledo as one of the men who had done the killing. Constabulary Inspector Orwig and these two witnesses accordingly made search for Anselmo. Upon being found and interrogated upon the subject, he stated that he had done the killing with a bolo which he otjt frow his house and which he exhibited, and that this had been effected by him in company with Custodio N., Antonio N., Clemente Belarmino, and Emeterio Alcala in a mangrove swamp, to which they had lead the deceased in obedience to orders which they had received from Pablo Jamino. He stated further that Clemente and Emeterio were those who captured the sanitary inspector, Rufino de la Cara; that the latter two, having been arrested by the Constabulary and taken, together with Anselmo, to the place where the crime was committed, they all knelt down, including the officer, who thereupon urged them to tell the truth; that then Ansel]no, Clemente, and Emeterio confessed that they had killed the sanitary inspector at that place, by order of Pablo Janiino; and that this confession was made in the presence of the witnesses Damian Madrono and Simplicio Minerva, unaccompanied by any violence, intimidation, threat, or promise to the prisoners. The witness llmerva stated that he knew that ob the night of the day in question Antonio and Custodio put the body in a sack and threw it into the sea, and that on this occasion, Custodio said, Janiino had assured them that they need have no fear, as he would be responsible for their lives; that at about 10 o'clock on the morning of the 29th of September Sanitary Inspector Rufino passed in front of the witness's house, going toward the place where Janiino lived, and since that time he had not seen him. Notwithstanding Pablo Jamino's plea of not guilty and the fact that Emeterio Alcala. retracted the statements made in the presence of his captors and of several witnesses,, the evidence is nevertheless sufficient to authorize the conviction of the three defendants, Pablo Jamino, Emeterio Alcala, and Anselmo Toledo, as well as of Antonio N. and Custodio Is., who were not arrested. The extra judicial confession of Anselmo Toledo and Emeterio Alcala, repeated on different occasions in the presence of different persons and marie freely and spontaneously, without intimidation or coercion, shows unquestionably hie fact of the commission of the crime and the guilt of those who made the confession, notwithstanding Alcala's subsequent retraction. The confession of Anselmo Toledo, made in the presence of the persons who arrested, him, as well as of several other witnesses, and which gave the details of the crime and which is corroborated by the testimony of Clemente Belannino and Enieterio Alcala, constitutes conclusive proof of Toledo's guilt. With respect to Pablo Jamino, whom Clemente Belannino charges with having induced the. others to commit the murder, lie gave no testimony in his own behalf, but simply denied the charge. Nothing appears, however, in the evidence introduced from which it may be inferred that the charge is false or that it is due to revenge or any other reprehensible motive. The testimony of Clemente Belannino, Damian Madrono, and Simplicio Minerva is confirmed by that of Maj. H. B. Orwig, Inspector Charles B. Compton, and Policemen Fernando Dolindo and Pantaleon Valencia. Therefore, considering the; evidence for the prosecution as a whole, there can be no doubt as to the guilt of the three defendants as principals of the said murder as

stated in the confessions of Toledo and Alcala and in the testimony of the witness Belannino. The three defendants, Jamino, Toledo, and Alcala, are all coprincipals. Those who seized the victim and were subsequently present at the commission of the crime, as well as those who actually killed the deceased by order of Pablo Jamino, were participants in the crime, and all are criminally responsible therefor. All participated in the intent and purpose of killing Inspector Rufino de la Cara, and although it may be true that only two of them actually did the killing, it is none the less true that the others were present and remained until the crime was consummated. Consequently, each of the defendants herein prosecuted, including the absentees Antonio N. and Custodio N., is equally guilty. It is improper to regard as present the aggravating circumstances of premeditation, the commission of the crime in an uninhabited place, and abuse of superiority. Nothing appears in the record to show that the commission of the crime had been contemplated before the defendants saw Inspector Rufino de la Cam pass by; nor does it appear that there were no bouses near the mangrove swamp where the deceased was killed. As to the circumstance of abuse of superiority, this must be regarded as merged in the qualifying circumstance of alcvosia present in the perpetration of the crime. From the evidence introduced it appears that the motive which led to the commission of the crime was the erroneous belief, due to ignorance, that sanitary inspectors, of whom the deceased was one, were at the time of the occurrence engaged in poisoning wells. This being so, the present is q case in which "the special circumstance established in article 11 of the Penal Code may properly be applied in mitigation. The defendants must, .therefore, be sentenced to the minimum penalty assigned in article 403 of the Penal Code for the punishment, of the crime of murder. It. is our opinion, therefore, thai the judgmeni of the court below should be reversed and the defendants Pablo Jaiuino, Anselmo Toledo, aud Emeterio Alcala condemned each to the penalty of twenty years of cadena temporal with the accessories of civil interdiction aud subjection to the vigilance of the authorities during the period of their respective lives. . In case the principal penalty should be remitted, they should be condemned to suffer absolute perpetual disqualification and subjection to the vigilance of the authorities during the remainder of their lives, unless these accessory penalties should be remitted in the pardon of the principal penalty. They should also be condemned to pay pro rata or in solidum an indemnification of 1,000 Insular pesos to the heirs of. the deceased, as well as to the payment each of a third of the costs of both instances. The record will be duly returned to the court below with a certified copy of the decision and judgment to be entered thereon, for execution thereof. So ordered. Arellano, C. J., Cooper, Willard, Mapa, McDonough, and Johnson, JJ., concur.

OSJurist.org

G. R. No. 1303, December 12, 1903

THIS UNITED STATES, COMPLAINANT AND APPELLANT, VS. JOHN B. COLLEY, DEFENDANT AND APPELLEE. D ECIS ION
MCDONOUGH, J.: The defendant, John B. Colley, was a private in Company M, Twenty-sixth Infantry, United States Regular Army, and while in such service and on or about the 29th day of March, 1002, he killed one Frank Ignasiack, also a private in the same company, for which crime said Colley was arrested by the military authorities. A general court-martial was duly appointed by Brigadier-General Grant, commander, to meet at Catbalogan, Samar, May 24, 1902, or as soon thereafter as practicable. for the trial of such persons as were properly brought before it. On June 4, 1902, the said court met and proceeded to the trial of said Colley, who was personally present and represented by counsel, on the charge of murder, in violation of the fifty-eighth article of war, in that he did, in time of insurrection , willfully, unlawfully, feloniously, and with malice aforethought, murder said Frank Ignasiack by shooting him with a rifle, inflicting a wound of which said Iguasiack died then and there. This at Tarangnan, Samar, Philippine Islands, on or about the 29th day of March, 1902. The accused plead not guilty, and thereupon and thereafter many witnesses were sworn and gave testimony in the case, and the said court on June 6, 1902, after hearing all the evidence and after due deliberation, found the accused guilty of the charge of murder and also guilty of the specification. The court thereupon sentenced said accused to be "hanged by the neck until dead," at such time and place as the reviewing authority may direct, twothirds of the court concurring therein. The court then adjourned subject to meet at the call of the president. On July 11, pursuant to an order from Brigadier-General Grant, the courtmartial reconvened for the purpose of revising the record in this case, and made several verbal changes, not, however, affecting the jurisdiction, the finding, or sentence of the court. The record was then forwarded, July 23, 1902, by Brigadier-General Grant to the adjutantgeneral, Division of the Philippines, Manila, P. I., with this indorsement: "Under the terms of the fifty-eighth article of war, as construed in paragraph 91, Dig. Opin. J. A. G., 1901, any action on this case subsequent to July 4, 1902, seems to be illegal. Private Colley has not been released from confinement." Subsequently, and on the 12th day of August, 1902, the judge-advocate forwarded the same to the adjutant-general of the division, under indorsement 7, "recommending that, as the 58th A. W. is no longer operative since the proclamation of the President of July 4, 1902, an effort be made to have this man tried by the civil authorities for murder, and that his discharge without honor be requested from the Secretary of War under section 3, paragraph 167. A. R." On August 14, 1902, under indorsement 8, by order of Major-General Chaffee, it was returned, through headquarters Department of South Philippines, Cebu, Cebu, to the commanding officer, Catbalogan, Samar, for action as indicated in seventh indorsement, and was received

and its contents noted. The proclamation of the President of the United States amnesty proclamation, and recites that "the insurrection States (in the Philippine Archipelago) is now at an end, parts of the Archipelago, except the country inhabited by does not apply." issued July 4, 1902, is known as the against the sovereignty of the United and peace has been established in all the Moros, to which this proclamation

Section 1342 of the Revised Statutes of the United States prescribes the Rules and Articles of War. Article 64 of this section provides that - "The officers and soldiers of any troops, whether militia or others, mustered and in pay of the United States, shall, at all times and in all places, be governed by the Articles of War, and shall be subject to be tried by courts-martial." Article 58 of said section provides that - "In time of war, insurrection, or rebellion * * * murder * * * shall be punishable by sentence of a general court-martial when committed by persons in the military service of the United States; and the punishment in any such case shall not be less than the punishment provided for the like offense by the law of the State, Territory, or District in which such offense may have been committed." The accused was tried and convicted under this article 58, the crime charged having been committed by the soldier in time of insurrection, and it appears that when the President proclaimed the insurrection at an end July 4, 1002, the reviewing authority of the Army concluded that the military authorities were without power to carry into execution the sentence of the court. Article 105 of said section provides that - "No sentence of a court-martial inflicting the punishment of death shall be carried into execution until it shall have been confirmed by the President except in the cases of persons convicted, in time of war, as spies * * * or murderers * * *; and in such excepted cases the sentence of death may be carried into execution upon confirmation by the commanding general in the field or the commander of the department, as the case may be." It appears that after the insurrection ended, the reviewing authority not having approved or disapproved the sentence, and having reached the conclusion that under the military law no further steps could be taken by such authority toward enforcing the judgment and sentence of the court, nothing further was done by the military authorities except to dismiss the defendant dishonorably from the Army. Notwithstanding the fact, however, that the one hundred and second article of war provides that "no person shall be tried a second time for the same offense," the defendant was turned over to the civil authorities, and on the 8th day of January, 1903, the provincial fiscal of Samar filed an information in the Court of First Instance of that province duly charging the defendant with the murder of said Ignasiack, at the time and place and in the manner and with the intent mentioned in the complaint made to the court-martial.

On January 8,1903, the accused appeared in person and filed a motion that he be discharged from the accusation 'on the ground of former jeopardy, setting forth in this written plea the charges and specifications upon which he was tried by the court-martial, and also the judgment of that tribunal. On March 28, 1903, the prosecuting attorney filed a paper in which he admitted the facts set up by the defense as the proceedings had before the court-martial, and also the identity of the accused as the same person so tried, and that it referred to the same act, the killing of Frank Ignasiack, as that prosecuted in the present cause, but denied that the charge in each one of the said qauses is legally the same or that the said court-martial was a court of competent jurisdiction to try the said case, adding that by reason of the proclamation of July 4, 1902, the said court-martial has declined to continue the said cause or to execute the judgment entered therein. On the 31st of March, 1902, the case was heard on the plea of jeopardy before Hon. William H. Pope, judge of the Twelfth Judicial District of the Philippine Islands, and in support of the plea of jeopardy the defendant, by his attorney, introduced in evidence the transcript of the proceedings before the court-martial, which was admitted by the court without objection on the part of the prosecuting attorney. On April 2, 1903, Judge Pope, of the Court of First Instance, entered his decision, finding that the defendant had been placed in jeopardy for the same offense before a court of competent jurisdiction, and directing his discharge. Against this order the prosecuting attorney appealed. For the purposes of this appeal the facts are not denied or questioned: (1) That the general court-martial which tried Colley was lawfully organized, (2) that the crime charged was one forbidden by law, (3) that in time of insurrection a general court-martial has jurisdiction of the crime charged, (4) that insurrection existed at the time of the commission of the offense and until after the conviction and sentence of the accused, (5) that a trial of the accused took place before that court upon the charge and the defendant's plea of "not guilty," and (6) that upon the evidence in the case that court found the defendant, Colley, guilty of murder and sentenced him to be hanged by the neck until dead. It has frequently been held that, although courts-martial are the creatures of military orders and are transient and summary, their judgments, when rendered upon subjects within their limited jurisdiction, are as legal and valid as those of any other tribunals, and that their proceedings and judgments can not be reviewed or set aside by the civil courts. (Swain vs. United States, 165 U. S., 553; United States vs . Hirsch, 100 U. S., 33; Johnson vs. Sayre, 158 U. S., 109; United States vs. Ball, 163 U. S., 662; Wales vs . White, 114 U. S., 564.) "The judgments of courts-martial are conclusive, like those of any other courts, unless some defect in regard to their jurisdiction is shown." (Brown vs . Wadsworth et al., 15 Vt, 170.) Under the practice in force under military law, the defendant could not be tried again by court-martial. Where the accused has been once duly acquitted or convicted, he has been "tried" in the sense of the one hundred and second article of war and can not be tried again against his will,

though no action whatever be taken by the reviewing authority, or though the finding and sentence be wholly disapproved by such authority. "It is immaterial whether the former conviction or acquittal is approved or disapproved." (Davis's Military Law, 533, 2d ed.) The accused now claims that, inasmuch as he was put in jeopardy by his trial, conviction, and sentence by the court-martial, he can not, for the same offense, be put in jeopardy again. By Article V of the amendments to the Constitution of the United States it is provided: "* * * nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb." This article was made applicable to the Philippine Islands by section 5 of the act of Congress passed July 1, 1902, relating to these Islands, viz: "Sec. 5. * * * No person shall be held to answer for a criminal offense without due process of law; and no person for the same offense shall be twice put in jeopardy of punishment." What is meant by "jeopardy?" Bishop in his work on Criminal Law (vol. 1, sec. 979, 8th ed.) says: "One who in a judicial tribunal has been convicted, acquitted, or put in what the law terms jeopardy in respect to a real or supposed crime can not be further or again pursued for it except as by some step in proceeding he waived his right to rely on this immunity." Judge Story in his work on the Constitution (5th ed., sec. 1787) says that "the meaning of it is, that a party shall not be tried a second time for the same offense after ho. has once been convicted or acquitted of the offense charged in the verdict of the jury and judgment has passed thereon for or against him." Some authorities hold that jeopardy may take place in the proceeding of the trial before it ends; others that there is no jeopardy until the rendition of the verdict or judgment; but all agree that jeopardy exists when the trial resulted in a judgment of conviction or acquittal, especially if sentence follows the conviction, as in the case at bar. The doctrine that no one shall be twice put in jeopardy for the same offense is favored by the courts. It is fundamental. It is founded on reason and justice. It was a part of the civil law and of the common law, and is incorporated not only in the Constitution of the United States but also in the constitutions of almost all of the States. The defendant was duly convicted in a military court, having authority and jurisdiction to try the case, and he was convicted and sentenced. "If the tribunal has authority either concurrently with another or exclusive whether it is an inferior one, as a justice's court, a court-martial, or the court of a municipalcorporation, or is a superior one a conviction or acquittal in it will be a bar to a subsequent proceeding in whatever court undertaken." (1 Bishop's Cr. Law, sec. 1029; Commonwealth vs . Roby, 12 Pick. Mass., 496.) "The acquittal of the accused by a court-martial is a bar to subsequent indictments in courts of common law for the same offense, the tribunal acquitting being competent to acquit." (Wilkes vs. Dinsman, 7 How. U. S., 123.) There are, however, numerous decisions of Federal and State courts holding that by the same

act a person may commit two crimes, may offend at the same time two sovereignties that of the United States and that of the State in which the offense is committed. From this doctrine the conclusion was reached that therefore there could be two trials of the accused for the same act, one in the courts of the United States and the other in the State tribunal, and also, as a consequence, two punishments. This doctrine has been applied in such offenses as passing counterfeit money, harboring fugitives, illegal sale of liquor, etc. (State vs . Rankin, 4 Coldwell, Tenn., 145; Fox vs. Ohio, ,5 How. U. S., 410; Baron vs . Mayor of Baltimore, 7 Peters U. S., 243; Moore vs. People of Illinois, 14 How. U. 8., 13.) Conceding this to be an exception to the general rule that an offender shall not be tried twice for the same offense against his will, it is not applicable in this Colley case for the reason that there is no dual sovereignty in these Islands; there is only one to be offended the United States for which and in the name of which the Commissioners of the Philippine Islands as well as courts-martial act. At the time of the shooting in question the Commission enacted laws "by authority of the President of the United States." So here there is but one offense, that against the United States, and when that Government chooses the tribunal in which to try an offender, when the trial takes place in that tribunal, and when the accused is convicted and sentenced, he can not again be put in jeopardy in another court of the same sovereignty. It follows that the defendant having been once in jeopardy can not be tried again for the offense of which he was formerly convicted. The Supreme Court of the United States has gone a step further, and has held that in time of war, insurrection, or rebellion an officer or soldier of the United States Army can not be tried at all in a civil court for an offense committed in the State, Territory, or District where the war, insurrection, or rebellion exists. It held that such an offense comes within the provisions of the fifty-eighth article of war and that general courts-martial have exclusive jurisdiction in such cases. The case of Coleman vs. Tennessee (97 U. S., 509) is authority for this view of the law and it applies to the case at bar. In that case it appeared that Coleman was indicted in a criminal court of Tennessee, October 2, 1874, on a charge of murder, which it was alleged the defendant committed March 7,1865, while he was in the United States Army. To this indictment the defendant pleaded a former conviction, for the same offense, by a general court-martial regularly convened for his trial, at Knoxville, Tenn., March 27, 1865; the United States at that time and when the offense was committed occupying with their armies east Tennessee as a military district, and the defendant being a regular soldier of their military service; and that he was convicted by said court-martial of the crime of murder and sentenced to death for the killing of the same person mentioned in the indictment, and that such sentence was still standing as the judgment of the court-martial. It seems that, as in this Colley case, nothing was done to carry out the sentence of the court-martial owing to peace being declared soon after the conviction. The Tennessee courts, however, held the indictment good and the plea of jeopardy bad, inasmuch as there was also a violation of the State laws; and the defendant was tried, convicted, and sentenced to be executed.

Through a habeas corpus proceeding the case was taken to the Supreme Court of the United States: Objection was made that a plea of a former conviction for the same offense was not a proper one, for it admitted the jurisdiction of the criminal court to try the offense if it were not for the former conviction, but it was said that its inapplicability would not prevent the court from giving effect to the objection which the defendant attempted to raise, that the State court had no jurisdiction to try and punish him for the offense. The court discussed at great length the right to govern the territory of an enemy during military occupation, the character, form, and powers of the local civil government to be established, the relations of the military authorities to the people, the civil courts established, and their jurisdiction in civil and criminal cases. "But this doctrine," said Mr. Justice Field, who wrote the prevailing opinion, "does not affect the exclusive character of the jurisdiction of the military tribunals over the officers and soldiers of the Army of the United States during war, for they are not subject to the laws nor amenable to the tribunals of the hostile country." And so the court held that: "The judgment and conviction in this criminal court should have been set aside and the indictment quashed for want of jurisdiction. Their effect was to Oof out an act done under the authority of the United States by a tribunal of officers appointed under the law enacted for the government and regulations of the Army in time of war, and while that Army was in a hostile or conquered State. The judgment of that tribunal when rendered was beyond the control of the State of Tennessee. The authority of the United States was then sovereign and their jurisdiction exclusive." Coleman was, therefore, discharged from arrest. The same principles are laid down in the case of Dow vs. Johnson (100 U. S., 158). The facts in this Colley case are similar to those in the case of Ooleman in almost every respect, and, therefore, the holding of the Supreme Court that, upon such a state of facts, the court-martial had exclusive jurisdiction, established a precedent which this court should follow. Consequently, for the reason that the defendant was once in jeopardy, and also because the court-martial had exclusive jurisdiction to try the accused, the judgment of the Court of First Instance discharging the defendant from arrest is affirmed. Cooper and Johnson, JJ., concur.

CONCURRING TORRES, J.: I am of the opinion that the military trial is still pending. The case lmd been decided by a competent court, and on July 1, 1002, the only thing lacking was the approval of the President of the United States or the commanding general of the division, this approval being an indispensable requisite for the execution of a sentence of the military commission. Upon this view of the case, and notwithstanding the information filed by the provincial fiscal of Samar accusing John B. Colley of the crime of murder, it is unquestionable that the judge of that district was without jurisdiction to take cognizance of the prosecution, and, consequently, all

the proceedings of the judge of the. First Instance are null and void. There is no legal reason why there should be a new prosecution of a crime which has already been the object of a former proceeding, in which a final decision was rendered and which only lacks the final formality of the approval of the President or of the commanding general of the division. The amnesty proclamation of July 4, 1902, can not be regarded as producing the effect of a dismissal of the military" proceedings or as a ground for beginning a new criminal prosecution against the defendant for the same crime. The law does not authorize such a procedure, nor is authority therefor contained in the proclamation. Furthermore, no such decision appears to have been made by the court before which the case was tried. I am therefore of the opinion that the case prosecuted against John B. Colley should be declared null and void, with the costs de oficio, and that the judge should immediately discharge the accused and place his person at the disposal of the commanding general of the division.

CONCURRING WILLARD, J.: I concur in the judgment on the ground that the case falls either within section 28 or within section 26 of General Orders, No. 58. Section 28 is as follows: "A person can not be tried for an offense, nor for any attempt to commit the same or frustration thereof, for which he has been previously brought to trial in a court of competent jurisdiction, upon a valid complaint or information or other formal charge sufficient in form and substance to sustain a conviction, after issue properly joined, when the case is dismissed or otherwise terminated before judgment without the consent of the accused." The court-martial was a court competent to try the case when the defendant was brought before it and when it pronounced its judgment. If this did not end the case the subsequent action of the military authorities amounted to an abandonment of the proceedings. This was a termination of the case without the consent of the defendant. If it be said that the action of the court-martial amounted to a final judgment without the approbation of the convening authority, and so ended the case, then there was a former conviction, and, under section 26 of General Orders, No. 58, this proceeding could not be maintained. I do not think that the case of Coleman vs. Tennessee, so far as it holds the jurisdiction of the court-martial to be exclusive, is applicable here. The relation which the Province of Samar held to the Government of the United States when the crime was committed and the trial before the court-martial had was not the same as that between said Government and the State of Tennessee during the civil war.

OSJurist.org

G. R. No. 1312, December 21, 1903

THE UNITED STATES, COMPLAINANT AND APPELLEE, VS. IGNACIO BUNDAL ET AL., DEFENDANTS AND APPELLANTS. D ECIS ION
TORRES, J.: On October 11, 1902, the provincial fiscal of Antique filed a complaint in the Court of First Instance of the province, charging the twenty-seven accused of the crime of double assassination, punished in article 403 of the Penal Code, alleging that at 7 o'clock on the night of the 14th of April, 1902, with the pretext of going to buy some aniseed wine, Tomas Mamega and Ignacio Bundal entered the house of Marcos Buncag, municipal president of the pueblo of Cagayancillo, in said town, while fourteen of their companions remained outside, some in the street and others in hiding close to the staircase of the house; that Buncag, on being told of the object of the call of the two men first named, immediately went down into the bodega of the house, where the wine was kept, accompanied by Antonio Trinidad, who carried a lighted lamp; that as Buncag handed the bottle to Tomas Mamega the latter inquired the price of the wine, and when President Buncag replied that it cost 1 real, Tomas forthwith struck Buncag with a bolo which he carried, inflicting a serious wound on the left cheek and jaw; that thereupon Buncag, crying out, "I am done for," ran out into the street, and then Santiago Madiong pursued him and struck him another blow on the neck, which caused him to fall down in the middle of the street, and then the other defendants threw themselves on the victim and inflicted upon him innumerable wounds from head to foot; that after this the house of the deceased was watched by the assailants until the following day, when the body was removed to the municipal building; that the municipal secretary, Ciriaco Garrion, who lived in the same house, tried to escape, but Ignacio Bundal prevented him from doing so and inflicted on him a serious wound on the back of the neck, in consequence of which he died nine days later; that likewise the vice-president, Francisco Magbanua, was charged with being an accessory to the crime because he had written a false report of the affair to the provincial authorities, concealing the real facts which took place in the town on the night of April 14, 1902. The complaint having been filed, the trial was held and evidence was taken as to the facts charged as having been committed by the accused, and from the testimony of Antonio Trinidad, Apolonia Buncag, Domingo Buncag, and Maxima Buncag, witnesses who were present when the facts above charged were committed, and from the testimony of the principal defendant, Ignacio Bundal, it appeared that on the Thursday preceding Monday, April 14, when the crime was committed, Bundal called a meeting which was held in his storehouse located in the barrio of Jilaga within the limits of said town, at which meeting Dionisio Conde, Pedro Elijan, Santiago Madiong, and Domingo Cardeno were present, for the "purpose of considering the grievances which all of them had against the president, Marcos Buncag; that on the following Friday, in. the same place, Gregorio Conde, Raymundo Condesa, Gregorio Elijan, Gavino Condesa, Juan Cardeno, and Ramon Condesa met again with Bundal; on Saturday there was another meeting at which Procedio Bonales, Tomas Mamega, Modesto Bundac, Vicente Bombon, Jacinto Bongar, together with Bundal, were present, and that on Sunday Tomas Mamega, Dionisio Conde, Pedro Elijan, Domingo Cardeiio, and Bundal met again in the same place and agreed to kill President Buncag on Monday night, when Bundal and Tomas were to call on the deceased with the pretext of buying wine, it being agreed that Tomas was to strike

the first blow and was to be seconded by Santiago Madiong, Dionisio Conde, and the others if it became necessary; that in the meantime the other conspirators were to stay near the premises ready to fight in case the sons of the president or any other persons offered resistance. They bound themselves not to run away, and agreed that if anyone attempted to do so he was to be attacked by his companions; that once the president was killed they would expose his body to the people. At 6 o'clock p. m. on Monday the conspirators met and about 7 o'clock they went to the house of the president. Bundal, and Tomas entered and stated the object of their call. After the president, Marcos Buncag, was told of what they wanted he at once went down to where the wine was stored, being accompanied by Antonio Trinidad, who carried a lamp, and after he had drawn the wine, when Buncag was delivering the bottle to Mamega, after replying to his inquiry regarding the price, he suddenly received a severe blow with a bolo, inflicted by the latter on his cheek and left jaw, whereupon, saying, "I am done for," he instinctively ran toward the street. Tomas then shouted for Santiago Madiong, Dionisio Conde, and Pedro Elijan, who came out and attacked the deceased, who was felled to the ground covered with serious and mortal wounds. After this the other members of the party, named Procedio Bonales, Domingo Cardeno, Vicente Bombon, Gregorio Conde, Gregorio Elijan, Raymundo Cardeno, Gavino Condesa, Jacinto Bongar, Modesto Bundac, Ramon Condesa, and Juan Cardeno, came and flocked around the body of Buncag, crying out, "We have conquered." While this was taking place in the wine room and in the street, Ignacio Bundal, avIio had left the house, reentered it, and on seeing Ciriaco Garrion, who was trying to leave the house, doubtless with the intent of escaping, Bundal attacked him with the bolo which he had in his hand and inflicted upon him a wound on the left shoulder and neck, in consequence whereof Garrion died nine days afterwards. The testimony of the person who attended him, and the opinion of the physician called as an expert, show that the wound inflicted tipon Garrion was very severe. On this same night, a few moments after the murders were committed, the wife, sons, and other members of the family of the president fled from the house, and the premises were abandoned and left in the possession of the criminals, some of whom kept watch upon it for nine days, after which Gervasio Buncag (one of the sons of the deceased president) and his wife took charge of the house. On the following day the body of President Buncag was removed to the municipal building and exposed to the public. Several of the conspirators went about the streets of the town informing the people of the death of the president, defying all those who were inclined to resent it, and inviting all the men to go and see the corpse in the municipal building, where all comers were asked by the rioters whether they approved or did not approve of what had been done, and asked whose party they favored. On the same night, the 14th of April, after committing these crimes, the accused, Dionisio Conde, Santiago Madiong, and Pedro Elijan, went to the dwelling of Modesto Buncag, one of the sons of the deceased, in company with seven other persons, and looked for Modesto, who was then hidden up a cocoannt tree, but upon being informed by the father-in-law of Modesto that the latter was not in, they went away. These people were all armed, as well as those who were guarding his father's house, which Modesto was able to see from his hiding place.

At the time of the murder the other son of the president, Gervasio Buncag, was absent in an adjacent island called Dondonay. Ignacio Bundal sent word to him to return to the town of Cagayancillo, which, according to the messenger sent for him, had been attacked by bandits, and on receiving this message Gervasio returned with his family. As he was approaching the beach in the vessel which conveyed him he heard the bells tolling, and when the boat anchored several armed men, among them Dionisio Conde, Pedro Elijan, Santiago Madiong, and Ramon Condesa, appeared on the beach and the first named asked him whether he carried any arms, and upon his saying that he did not, they told him to lift up his shirt to see if he had any weapons hidden, because the rioters were in fear of reprisals or vengeance on the part of Gervasio for the killing of his father. They then asked him with which party he was going to side, and he said that he would go with them, whereupon they stated to him that they had killed his father, and took him to the municipal building where he was shown the corpse, wrapped in matting, covered with wounds and with the head and face split in two. It appears likewise from the record that on the morning of the 15th of April while the corpse of the president was exposed in the municipal building, a party commanded by Ignacio Bundal overpowered the townspeople and succeeded in inducing the people through fear to attend in large numbers a meeting convened in the municipal building, in which a session was held on that day, as well as on the following. In these meetings it was resolved that the vice-president should replace the deceased and should address a false report to the governor of the province, stating that the town had been attacked by a party of unknown bandits who had attacked the president's house and killed him and had robbed the municipal treasury, the record being signed by the vice-president, Francisco Magbanua, the councilors, and the son of the deceased, Gervasio Buncag. The report was signed by the vice-president, Magbanua, in obedience to the demand of Ignacio Bundal and his followers. It is to be noted that the person who prepared the minutes of the meeting and the false report was Ciriaco Garrion, who, on account of the seriousness of his wound, was taken to the municipal building in a hammock by order of Bundal and his associates. It does not appear that either in the house of the deceased or in the municipal building any robbery was committed, in spite of the fact that during nine days Ignacio Bundal and his fifteen armed companions controlled and did whatever they pleased in the town. On the contrary, it appears that they mounted a guard of armed members of the band over the house of the president, and upon making delivery of the premises and the furniture and other articles contained therein to the family of the deceased nothing was missing, nor was there any money missing from the funds of the municipal treasury, which were removed from the house of the president to the municipal building. Hatred and vengeance, due to outrages, abuses, and illegal exactions, and other grievances whereof Ignacio Bundal and his companions were alleged to be the victims, were the only motives which caused them to plan and execute the violent death of the president, Marcos Buncag, who, according to his son Gervasio Buncag, during twenty successive years, with but slight intervals, had held the offices of gobernadorcillo and municipal captain of the town of Cagayancillo under the Spanish regime, and during the present regime that of presidente municipal of said town. It appears that Ignacio Bundal and his followers were inhabitants of the northern part of the island, and were the enemies of those who resided in the southern part. The judge, in view of the result of the evidence, sentenced the accused Ignacio Bundal, Tomas Mamega, Santiago Madiong, and Dionisio Oonde to the death penalty, as principals of the offense charged, and the others, Pedro Elijan, Procedio Bonales, Domingo Cardeiio, Vicente

Bombon, Gregorio Conde, Gregorio Elijan, Raymundo" Cardeiio, Gavino Condesa, Jacinto Bongar, Modesto Bundac, Ramon Condesa, and Juan Cardeiio, to the penalty of seventeen years and four months of cadena temporal each one, and to the payment of an indemnity; Francisco Magbanua, as an accessory, was sentenced to four years and two months of presidio correccional . The court stated in its decision that Bundal should be sentenced to suffer the penalty of cadena perpetua for the murder of Ciriaco Garrion, and to the payment of an indemnity, but in accordance with the provisions of section 11 of General Orders, No. 58, the proceedings should be set aside as regards the assassination of Garrion, as this crime should be the object of another information and a separate trial. The ten remaining defendants were acquitted and discharged from custody. The violent death of President Marcos Buncag has been fully proven in this case and constitutes the crime of assassination, because prior to its execution it was concerted, meditated, and prepared by the authors, who to that end convened and held several meetings during the four days preceding that of the commission of the crime, and in said meetings they discussed the means and manner of executing it, as has been confessed by the principal authors of the offense. For this reason it is undoubted that in the commission x>f the crime the qualifying circumstance of evident premeditation, which characterizes murder according to article 403 of the Penal Code, existed. The violent death of the secretary, Ciriaeo Garrion, is likewise an assassination, since he was wounded in the back by treachery and by unexpected and sudden attack, the criminal using for that purpose means and actions which secured directly and especially the commission of the crime, without any risk to his person which might proceed from the defense of the deceased, although this crime is not at present the subject of this decision. The defendants Ignacio Bundal, Tomas Mamega, Santiago Madiong, and Dionisio Conde plead guilty to the murder of President Marcos Buncag, but Bundal did not plead guilty to the killing of Ciriaeo Garrion, alleging that he had wounded him involuntarily. Pedro Elijan, Procedio Bonales, Domingo Cardeno, Vicente Bombon, Gregorio Conde, Gregorio Elijan, Raymundo Cardeno, Gavino Condesa, Jacinto Bongar, Modesto Bundac, Ramon Condesa, and Juan Cardeiio did not plead guilty to the murders, although they acknowledged having been present in the place where they were committed. Vicente Conde, Laureano Cayao, Mariano Bundac, Sebastian Conde, Leonardo Fabila, Antonio Tindoc, Nicolas Cardefio, Crisanto Trinidad, Alberto Carcuera, Gregorio Namoco, and Francisco Magbanua plead not guilty. According to article 13 of the Penal Code principals are those who take a direct part in the execution of the crime, or who compel or induce others to execute it, as well as those who cooperate in the execution thereof by means of acts without which the crime could not have been committed. According to these provisions of the law, the participation of the defendants Ignacio Bundal, Tomas Mamega, Santiago Madiong, Dionisio Conde, and Pedro Elijan in the execution of the violent death of the late president of the pueblo of Cagayancillo, Marcos Buncag, is evident, since Bundal was the first to conceive the commission of the crime, and he invited and convened the codefendants to discuss the means of carrying it into effect, and he presided over several meetings held four days prior for the purpose of determining the manner and details of the execution of the offense in such a way that resolutions were passed as to what was to be done in case the relatives and friends of the victim should offer any resistance.

Finally, Bundal was the leader and was at the head of his codefendants, not only during the execution of the crime but likewise nine days subsequent thereto, during which period of time he and his companions overpowered the town and by their boldness and audacity controlled the situation and terrorized their fellow-townsmen with their threats. Therefore, although Bundal did not take any material part in the execution of the murder of President Buncag, it is nevertheless beyond doubt that Bundal, for the reason above stated, was the author bv direct inducement of the murder committed. Soon after preparing the commission of the crime he witnessed its execution and accompanied the material executors to the house of the victim, with the purpose, undoubtedly, of securing the consummation of the crime. The liability of the other defendants Tomas Mamega, Santiago Madiong, Dionisio Conde, Pedro Elijan, Procedio Bonales, Domingo Cardeilo, Vicente Bombon, Gregorio Conde, Gregorio Elijan, Raymundo Cardefio, Gavino Condesa, Jacinto Bongar, Modesto Bundae, Ramon Condesa, and Juan Cardeiio, is likewise established, since the three first named, as well as Bundal, have confessed and been convicted of having taken direct part in the murder of President Buncag, and the other twelve of them, although not pleading guilty, confine themselves to affirming having attended and been present during the commission of the crime, accompanying the first four named and stationing themselves around and underneath the staircase of the house, for which reason there is more than sufficient proof to fully convince the mind that these defendants are guilty. Several witnesses who narrated the details of the killing of Buncag by Mamega, Madiong, and Conde in the presence of Bundal, affirm that the other twelve defendants were present in the place where the crime was committed. Although it is axiomatic that no one is liable for acts other than his own, when the evidence shows as it does in this case that the accused, under the command of Ignacio Bundal, on the night of the murder placed themselves around the house of the deceased, it is evident, notwithstanding the fact that only two entered the house and only four actually attacked the victim, that all of the sixteen conspirators, impellecL by the same motive, were prepared to commit the crime or cooperate in its commission. It is impossible to graduate the separate liability of each without taking into consideration the close and inseparable relation of each of them with the criminal act, for the commission of which they all acted by common agreement, their common purpose being the murder of Marcos Buncag. The crime must, therefore, in view of the solidarity of act and intent which existed between the sixteen accused, be regarded as the act of the band or party created by them, and they are all equally responsible for the murder in question. The judgment of the supreme court of Spain of September 29,1883, establishes a doctrine on this subject similar to the American rule laid down by Bishop (New Criminal Law, vol. 1, par. 630, and vol. 2, par. 629, and cases there cited), and to the ruling of this court in the case of the United States vs. Pedro Teodoro.[1] There is to be considered in the execution of the said crime of murder the concurrence of the aggravating circumstances 8, 15, and 20, article 10 of the Penal Code, inasmuch as the accused undoubtedly took advantage of the darkness of night for the consummation of the crime, and made use of deceit, by means of a false pretext, in order to attack the deceased unawares and while unable to defend himself against the attack made on him in the lower story or bodega of his house. Nevertheless, these circumstances are compensated in their effects by the special circumstance established in article 11, which is considered in mitigation that is, the personal conditions of race and the ignorance of the accused. This was a murder committed by means of sedition or an uprising boldly carried out by the sixteen defendants, who were impelled thereto by the hatred and ill will which they bore toward the victim on

account of the abuses by him committed during a period of nearly twenty years, during which time he had been exercising the functions of the highest local authority in the town and island of Cagayancillo, a period which commenced from the previous sovereignty, and this induced the mutineers to believe that such abuses would probably continue indefinitely and that it would be difficult, if not impossible, to obtain any relief from the government of the province owing to the distance that separates this small island from that of Panay, wherein the Province of Antique is located. Therefore they sought relief by having recourse to violence and assassination. This was due to their ignorance and perhaps to the lack of Imeans .for obtaining justice. For all these reasons we arelof the opinion that great weight should be given to the circumstance established in article 11, to such an extent mat it should be considered as compensating in itself the three aggravating circumstances above enumerated. Therefore the sixteen defendants are to be condemned to the medium degree of the penalty prescribed in article 403 of the Penal Code. As a consequence of what has been stated, the court considers that the assault committed by the accused upon the president of the pueblo of Cagayancillo certainly affected public order and the principle of authority, and for this reason is of a political character in a general sense. But it is not a political offense of the class covered by the amnesty of July 4,1902, inasmuch as the defendants, when they resolved and carried into effect the death of Marcos Buncag, did so under the provocation of certain abusive acts committed by Buncag, but it does not appear that the residents of the town seconded the revolution against the Government of Spain or took part in the resistance against the sovereignty of the United States. Neither does it appear that the deceased or his aggressors took part in the insurrection. Nor has it been shown that this hatred and ill will arose from political motives or strife connected with the past revolution, and it is therefore undeniable that the murder of the said president, Buncag, did not have the particular political character contemplated by said amnestv, and that the case does not fall within the letter or spirit of the proclamation, especially paragraph 3 thereof. It would, therefore, be error to hold that the defendants are covered by the amnesty. No appeal has been taken as to that part of the decision of the lower court by which the trial, as regards the murder of Ciriaco Garrion by Ignacio Bundal, was set aside, and this court is therefore divested of any authority whereby to make any finding as regards the said murder, and as to the liability of the alleged author thereof, since the lower court decided that the same should be the object of another information and a separate trial, without any objection on the part of the prosecution. With respect to the charge against the late vice-president of Cagayancillo, Francisco Magbanua, accused as being an accessory to the offense, it appears that the latter, when signing the minutes and the report forwarded to the provincial government, wherein it Avas falsely stated that a band of brigands had invaded the pueblo and killed the president, Buncag, acted under the impulse of insuperable fear of a greater evil, which consisted in the threat and intimidations made by Bundal and his followers after the murder of President Buncag, which said intimidations and threats were of a serious and imminent character, in view of the, circumstances attending them, and caused the other townspeople to submit thereto as well as the very sons of the deceased. For this reason the defendant Magbanua is not criminally liable. The law does not consider this defendant guilty and consequently he should be acquitted. It is nevertheless to be noted that he allowed considerable time to pass without having rectified the false report by giving the provincial authorities the real facts which took place, and that he issued a passport to Bundal in order that lie might be, able to remove to

and land on other islands. These facts may be sufficient to warrant the prosecution of this defendant for other offenses, which however are not charged in the information in the present case. The other defendants, Vicente Conde, Laureano Cayao, Sebastian Oonde, Leonardo Fabila, Antonio Tindoc, Nicolas Cardeno, Crisanto Trinidad, Alberto Carcuera, Gregorio Namoco, and Modesto Bundac, have been acquitted, and no appeal having been taken against this decision the sentence is final and therefore the court has no power to take any action as regards these ten defendants. In view of the foregoing, in our opinion it is proper to sentence the accused, Ignacio Bundal, Tomas Mamega, Santiago Madiong, Dionisio Conde, Pedro Elijan, Procedio Bonales, Domingo Cardeno, Vicente Bombon, Gregorio Conde, Gregorio Elijan, Raymundo Cardeno, Gavino Condesa, Jacinto Bougar, Modesto Bundac, Ramon Condesa, and Juan Cardeno, each to the penalty of cadena perpetua, with the accessory penalties of civil interdiction, and being subject to the surveillance of the authorities during their lifetime, and even in case of being pardoned of the principal penalty they shall suffer the penalty of absolute perpetual disqualification, and to be subject to the surveillance of the authorities during their lifetime, unless these penalties are especially included in the pardon of the principal penalty. They are likewise sentenced to the payment jointly and severally of an indemnity of P1,000, Philippine currency, to the heirs of the deceased, and to the payment of one twenty-seventh part of the costs in both instances. It is held that the amnesty of the 4th of July, 1902, is not applicable to the sixteen defendants because they are not comprised within the terms of the same. The defendant Francisco Magbanua is acquitted, and one twenty-seventh part of the costs shall be paid dc oficio, the decision appealed from being reversed in so far as it conflicts with this decision. Let the record be returned with a certified copy of this decision for the execution of the judgment. So ordered. Arellano, C, J., Cooper, Willard, Mapa , and Johnson, JJ.. concur.

[1] Not published

DISSENTING MCDONOUGH, J., The object of the uprising and the killing of the president as shown in this case was of a political nature. He had been in office about twenty years, and held over after Spanish power had been swept away. The people of the town were divided into two parties, one apparently supporting the president and his policy, the other against him, claiming that he had oppressed and wronged the people. The motive of the accused was not robbery or personal

revenge, but rather to rid the people of what they deemed the tyranny of an obnoxious official for during several days after his death they guarded the treasure of the town and the house of the deceased, finally turning them over intact and without injury. In view of these facts, I am of the opinion that the petition of the defendants to be included among those to whom amnesty was given by the proclamation of the President, issued July 4,1902, should be granted. By this proclamation the President granted pardon, among others, for all offenses political in their character "* * * which resulted from internal political feuds or dissensions among the Filipinos themselves during either of said insurrections." This crime was committed during the period of the revolutions and grew out of such political feuds or dissensions among Filipinos, and therefore the defendants are entitled to the benefits of the proclamation.

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G. R. No. 1360, December 04, 1903

THE UNITED STATES, COMPLAINANT AND APPELLEE, VS. ADAM SMITH, DEFENDANT AND APPELLANT. D ECIS ION
JOHNSON, J.: The defendant was charged with the crime of robbery, as follows: "In the Court of First Instance of Albay Province, on the 9th day of March, 1903, the undersigned accuses Adam Smith of the crime of robbery, committed as follows: "That the accused, in the month of December last, in the house of the acting justice of the peace of the said town, Don Estcban Delgado, took money with violence and intimidation, of the value of $600, more or less, from Pedro Ralla and Josefa Garcia, citizens of that town, contrary to law." On the 27th day of April, 1903, the judge of the Court of First Instance of the Province of Albay, after hearing the evidence, found the defendant guilty of the crime of robbery, in the manner and form as charged in the complaint, and sentenced him to be imprisoned for the period of three jears and eight months of presidio correccional and to pay all costs. The evidence adduced at the trial showed that the defendant, on or about the 8th day of January, 1903, entered the house of one Esteban Delgado, acting justice of the peace, and then and there represented that he was a detective and that he was looking for certain persons called Josefa Garcia and Pedro Ralla. These said persons were called by the said defendant to the house of the said Delgado on the said day. When the said Josefa Garcia and Pedro Ralla arrived in the said house, the accused informed them that he had authority to arrest them, and that he had arrested one Isabelo Madera, and that he could release him. The defendant showed a letter to these persons, which he told them was his authority to arrest them. Later, on the same day, the accused ordered the said Josefa and Pedro to prepare their clothing in order to go to Manila, because he was going to take them as prisoners. He also ordered the said Delgado to prepare a vehicle to take the said so-called prisoners to a point where he could secure transportation to Manila. A vehicle could not be found. The said Josefa and Pedro prepared their clothing for the trip to Manila. During the conversation between the accused and the said Josefa and Pedro the former continually threatened them with arrest and with personal harm. After the said persons were so arrested by the accused, he informed them that they had a remedy. He gave them to understand that if they would give him $1,000, Mexican, he would release them. Finally a compromise was made on the amount, and Josefa and Pedro paid to the said accused the sum of $700, Mexican. The accused testified in his own behalf. He admitted that he had received the 700 pesos, but that it was given to him as a brilje by the said persons to secure the release of the said Isabelo Madera. At the time of the arrest, the accused admitted that he had used for his own purposes the sum of 206 pesos of this money. The accused stated that he had received the money in. order to use it as evidence against these persons in a complaint against them for attempting to bribe an official.

The complaint alleged that the offense was committed in the month of December, 1902. According to the proof, it was actually committed in the month of January, 1903. The complaint was filed the 9th day of March, 1903. It is argued by the attorney for the defendant that for this reason the accused should have been dismissed upon the theory that the evidence in criminal cases must correspond to the allegations in the complaint. It is true that the complaint must allege a specific time and place when and where the offense was committed. The proof, however, need not correspond to this allegation, unless the time and place is material and of the essence of the offense as a necessary ingredient in its description. The evidence is admissible and sufficient if it shows that the crime was committed at any time within the period of the statute of limitations and before or after the time stated in the complaint or indictment and before the action is commenced. (See State vs. Miller, 33 Miss., 356.) In this cited case the complaint alleged that the offense was committed on the 28th day of October. According to proof it was committed on the 6th day of November following. The court instructed the jury to find the defendant guilty if the crime was committed any time before the finding of the indictment, (See same case in 69 Am. Dec, 351; see also Cook vs. State, 56 Am. Dec, 410, and note on p. 418.) If the proof shows that the offense was committed after the complaint is actually filed or the prosecution is commenced it will be held bad. (Goddard vs. State, 14 Tex., Cr. Appeals, 566.) The following decisions support the rule, that when the "time" given in the complaint is not of the essence of the offense, it need not be proven as alleged and that the complaint will be sustained if the proof shows that the offense was committed at any time within the period of the statute of limitations and before the commencement of the action. (People vs . Jackson, 111 N. Y,, 362; Herchenbach vs. State, 34 Texas, C, R., 122; Commonwealth vs . Dacey, 107 Mass., 206; State vs. Bell, 49 Iowa, 440; State vs. Walters, 1G La. Ann., 400; People vs.. Bidleman, 104 Cal., 608; State vs . Patterson, 116 Ind., 45; State vs. Ingalls, 59 N. H., 89; Commonwealth vs. Bennett, 1 Pitts., Pa., 265; McCarty vs. State, 37 Miss., 411; Cook vs. State, 56 Am. Dec, 56, 410, and note on p. 418.) It was suggested that the defendant was guilty of estafa and not of robbery. On the 24th day of June, 1875, the supreme court of Spain decided the following question in the language following, defining the distinction between robbery and estafa, under the Penal Code in force in these Islands: "Will he, who presents himself at the houses of various persons and demands money on the pretext that it is for a band of malefactors who are in the mountains and that he has been commissioned to make such demands, and thereby collects various sums from different individuals, be guilty of the crime of robbery with intimidation, or will the offense be simply that of estafa? The Supreme Court has declared that the various demands made constitute as many distinct crimes of 'robbery with intimidation.' "Whereas,' it is said, 'the constitutive element of the crime of estafa consists in the ingenuity or cunning employed by the agent for the purpose of deceiving the one whom it is intended to victimize, and such astuteness and subtlety consequently excludes all idea of intimidation or the employment of other means of like nature tending to prevent or impede the exercise of the will, which remains free and independent, although influenced by the statements made, circumstances which are also present in the perpetration of the deceits mentioned in the Penal Code; and whereas whether the statement as to the band of malefactors Avas merely an invention for the purpose of obtaining the money, or whether the band actually existed, Pascual Mengual y Domenech, on

demanding the sums he appears to have received from different persons, attained his object by means of threats of injury which the robbers might inflict on the persons upon whom the demands were made, if these persons did not comply therewith; and whereas this intimidation was actually present, the acts committed can not legally be considered to constitute estafa or deceit.'" (Viada, vol. 3, p. 341.) The sentence of the court below is affirmed, with the cost in both instances. Arellano, C. J., Torres, Cooper, Willard, Mapa, and McDonough, JJ., concur.

OSJurist.org

G. R. No. 1365, December 29, 1903

THE UNITED STATES, COMPLAINANT AND APPELLEE, VS. GERVASIO SANTIAGO ET AL., DEFENDANTS AND APPELLANTS. D ECIS ION
MCDONOUGH, J.: The defendants, Gervasio Santiago, Narciso Paras, Sotero Abelino, and Espiridion Filipino, were convicted in the court below of the robbery and assassination of three American marines, viz, Leander W. Sundblad, Nicholas P. Johnston, and John P. Conde, at Olongapo, Province of Zambales, on the 21st of September, 1902, and Sotero Abelino was sentenced to life imprisonment, and on the four other defendants the penalty of death was imposed. The facts proved show that the three men who were assassinated employed the defendants, Sotero Abelino and Espiridion Filipino, on the evening of September 20, 1902, at the town of Olongapo, to act as guides. The marines had been journeying from Subic and were on their way to Manila. These two guides, on that same evening, met the other three defendants and entered into a conspiracy and plan with them to ambush these marines and to murder and rob them. On the morning of September 21, the guides and the three Americans started on their journey from the barrio of Binictican toward Dinalupijan, and, while crossing the river at the second ferry, where the other three defendants were awaiting them, the marines were attacked by all the defendants, with bolos, and were killed. The bodies were dragged to the woods on the shore and left unburied. All the money the deceased had, amounting to about 100 pesos, was taken by the defendants and divided among them. In January, 1903, word reached the officers of the Constabulary that this crime had been committed, and an investigation was begun, which resulted in the arrest of the defendants. They all freely and without force, threats, or promises confessed that they had committed the assassination and robbery in question. These confessions were made to Constabulary officers, to the justice of the peace at Subic, and to the auxiliary justice at Olongapo. These confessions were corroborated by the testimony of other witnesses and by the finding of the remains of the deceased at a place pointed out by the defendant Gervasio Santiago and within two and a half hours' walk from the presidencia of Olongapo. These remains consisted of three skulls and of bones of the legs, and the skulls showed distinct cuts or wounds in the backs of the heads and no cuts in front, except one, which had part of the jaw cut away. The three Americans were unarmed and were attacked in the rear. We have examined all the evidence in the case carefully, and have no doubt whatever of the guilt of the defendants. The judgment of the court below is therefore confirmed, except as to the defendant Sotero

Abelino, who at the time of the commission of the crime was only seventeen years of age, and who was sentenced to imprisonment for life. The extenuating circumstances of age must be considered with respect to this defendant, who is accordingly sentenced to twenty years of cadena temporal, with the corresponding accessories. The defendants herein are also condemned to the payment jointly and severally of an indemnification of 1,000 Mexican pesos to the heirs of each of the deceased, and each of the defendants is furthermore condemned to the payment of a third of the costs. The judgment, thus modi fled, is affirmed. Arellano, C. J., Torres, Cooper, Willard, Mapa, and Johnson, JJ., concur.

OSJurist.org

G. R. No. 1374, December 03, 1903

THE UNITED STATES, COMPLAINANT AND APPELLANT, VS. CRISTINO REYES, DEFENDANT AND APPELLEE. D ECIS ION
JOHNSON, J.: The defendant was charged in the Court of First Instance of the city of Manila with the crime of larceny, as follows: "Before me, the undersigned officer of the court, personally appeared the complainant, who, under oath, made a statement to which he affixed his signature, that he had reasonable grounds to belieye that Cristino Reyes, in the southern district of the Pasig River, on or about the 29th day of September, 1902, in the city of Manila, illegally took, stole, and carried away with him a check for $500, money of the United States, and specie in the sum of $110, money of the United States, amounting altogether to $610, money of the United States, the said check and specie being the property of Bud Wing, without the consent of the latter and with the intention of illegally depriving Bud Wing, its owner, of the value of the said property and of appropriating the same for his own and exclusive use." The defendant was brought to trial on the 28th day of October, 1902, and was dismissed for insufficient proof on the same day. The prosecuting attorney appealed to this court. Because the defendant has been unable to give bail, he has been imprisoned since that date. The defendant was a servant of one S. B. Kurtz, who was secretary of the Young Men's Christian Association of Manila, and had been such servant for several months prior to the time of the alleged commission of the said offense. The association mentioned occupied a house at No. 205 Calle Real, Intramuros, Manila. The defendant was a servant in this house, which was a sort of lodging house, containing several rooms, with numerous beds. On the night of the 28th of September, 1902, one Bud Wing went to this house at about 11 o'clock at night for the purpose of sleeping there. On retiring for the night, lie placed the money and check referred to in his bed. His brother, a small boy of 9 years, more or less, slept in the same; room during the same night. The next morning, at about 8 o'clock, he and his small brother arose and left the house. On the same morning, at about 9 o'clock, he discovered that he had forgotten his money and check. He then returned to the house and examined the bed in which lie had placed the property, but it could not then be found. The loss was reported to the secretary, Mr. Kurtz. There were two other servants in the said house. All of the servants were called together and closely questioned concerning what they knew of the alleged loss. They each denied having any knowledge or information concerning the same. The servants were ordered to search the rooms and to see if the money and check could be found. Later in the day the property in question was found on the floor in the room of the servants, where also the dirty linen was kept from time to time. The room in which the said Bud Wing slept on the night in question was connected with a hall and another large room by means of doors. Other persons occupied the large room. On the morning when the property in question was alleged to have been taken, all the

servants were in and about the house. It was the duty of the accused to clean this room in which Bud Wing slept. The evidence is not clear whether or not the linen on the bed in this room had been changed on the morning of the 29th of September. Neither does the evidence show that the said property was hid away in the room where the dirty linen was kept. It is possible that the property in question was removed at the same time with the dirty linen, and in that manner found its way into the room with the linen. The learned judge of the court below found that the evidence adduced on the trial was not sufficient to convince him beyond a reasonable doubt that the defendant was guilty of the crime charged. There was no direct proof adduced against the accused. The evidence was wholly circumstantial. It is true that the commission of crime may be proven by circumstantial evidence. In such cases, however, the circumstances must be just as convincing as when the proof is direct and positive. The circumstances must be such as to lead the mind of the judge irresistibly to but one conclusion, namely, the guilt of the person charged. So long as the acts of the accused and the circumstances can be explained upon any other reasonable hypothesis inconsistent with his guilt, he must be acquitted. If the judge, after hearing the proof, is not convinced beyond a reasonable doubt that the accused is guilty, he must dismiss him. A reasonable doubt in criminal cases must be resolved in favor of the accused. A reasonable doubt has been variously denned. It is most difficult to define. It has been said that a reasonable doubt was the doubt of a reasonable man under all the circumstances of the case. ' This statement is too general and includes too much. Neither does the rule that the judge (or jury) must be convinced beyond a reasonable doubt mean that he must be convinced to an absolute certainty. This construction would preclude a conviction based upon circumstantial evidence. Proof "beyond a reasonable doubt" does not mean, upon the other hand, proof beyond all "possible or imaginary" doubt. It means simply such proof, to the satisfaction of the court, keeping in mind the presumption of innocence, as precludes every reasonable hypothesis except that which it is given to support. It is not sufficient for the proof to establish a probability, even though strong, that the fact charged is more likely to be true than the contrary. It must establish the truth of the fact to a reasonable and moral certainty a certainty that convinces and satisfies the reason and conscience of those who are to act upon it. The judgment of the court below is affirmed. Arellano, C. J,, Torres, Cooper, Willard, Mapa , and McDonough, JJ., concur.

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G. R. No. 1415, December 02, 1903

THE UNITED STATES, COMPLAINANT AND APPELLEE, VS. ANASTASIO MANGUBAT ET AL., DEFENDANTS AND APPELLANTS. D ECIS ION
JOHNSON, J.: The defendants were charged with " robo en cuadrilla or bandolerismo" as follows: That the said accused, on the 9th of December, 1902, in San Pablo, of the Province of Laguna, conspired together and formed a band of ladrones and robbed various persons by means of force and violence, in an uninhabited place, and went upon the highways armed with deadly weapons. On the 10th of July, 1903, the judge of the Court of First Instance of the Province of Laguna found the accused guilty of the crime of bandolerismo and sentenced each of them to be imprisoned for a period of twenty years, to indemnify the persons robbed, and to pay the costs. The defendants demurred to the complaint filed in the said cause, alleging that it contained allegations of two distinct causes. The trial judge overruled the demurrer. The court held that the complaint contained but one cause, and that the allegation robo en cuadrilla or bandolerismo simply set out the same fact in different aspects. There was no error in overruling the demurrer. The proof taken in the trial of the said accused showed conclusively that they had joined in robbing, with violence, Aurelio Rivero, Alejo Punto, and Gregorio Ilao, of personal property belonging to them of the value of 13, 6, and 4 pesos, respectively. There was much conflict in the evidence relating to the question whether the accused were armed, as charged in the complaint. This proof was not sufficient to convict the said accused of bandolerismo under Act No. 518 of the Philippine Commission because it was not shown that the said accused were armed. It was sufficient to convict them of the crime of robbery. The said accused are therefore hereby foutid to be guilty of the crime of robbery with force and intimidation. The offense proven is punished under subsection 5 of article 503 of the Penal Code. There were neither aggravating nor extenuating circumstances proven. Therefore the medium degree of the penalty provided should be imposed. By applying the rule laid down in article 82 of the said code, the medium degree is found to be six years and ten months of prision mayor. The sentence of the court below is hereby modified, and the said accused Anastasio Mangubat, Antonio Bondad, Prudencio Celino, and Esteban Guevara, and each of them, are hereby sentenced to six years and ten months of prision mayor, to indemnify the said persons robbed in the sum of $23, Mexican, and to pay all costs. Arellano, C. J., Torres, Cooper, Willard, Mapa, and McDonough, JJ., concur.

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G. R. No. 1423, December 29, 1903

THE UNITED STATES, COMPLAINANT AND APPELLANT, VS. EDUARDO ABAROA, DEFENDANT AND APPELLEE. D ECIS ION
MCDONOUGH, J.: This is an appeal from the judgment of the Court of First Instance of the Province of La Union, acquitting the defendant on a charge of incendio (arson), alleged to have been committed by him on the night of March 1, 1903, in San Fernando de la Union. The camarin of one Lucino Almeida Chan Tanco, otherwise called Tana, was burned on that night. It was claimed that Eduardo Abaroa Chan-Em, the accused here, had set fire to the building, and he was arrested and put upon trial at San Fernando de la Union on June 3, 1903. After eleven witnesses had been sworn and had testified in behalf of the prosecution, and 47 pages of testimony taken, the court discharged the accused for the reason that the prosecution had not made out a case against him. It was proved satisfactorily that the building and its contents, a stock of goods, valued altogether at about 60,000 pesos, Mexican currency, were destroyed by fire, but the testimony adduced to show that the accused set the building on fire was not direct and positive, but rather of a circumstantial and contradictory nature, and which, apparently, was not strong enough to convince the learned judge who tried the case of the guilt of the accused. After carefully reading the evidence and considering its bearing and weight, we have concluded that the judgment of the Court of First Instance should be affirmed. We do not, however, approve of the practice adopted of dismissing the case, on motion of the attorney for the accused, when the fiscal announced that he had no more testimony to offer. Such practice should not be followed for the reasons (1) if this court should not agree with the conclusion reached by the court below it would be authorized to reverse the judgment and enter judgment convicting the accused upon the facts proved by the prosecution, and thus depriving the accused of making a defense below, if he had a defense, and (2) if this court, on disapproval of the judgment below, should order a new trial the result would be that the prosecution would be obliged to place the defendant on trial twice, when all the evidence could have been obtained in one trial; and the defendant would have the benefit of delay and the possible death or disappearance of witnesses for the prosecution. We are of opinion, therefore, that the better practice is to require the defendant to make his defense, if he desires to offer evidence in his own behalf, and not to dismiss the case, on motion, until both parties have presented all their evidence. The judgment below is affirmed with the costs of both instances de oficio. Arellano, C. J., Torres, Cooper, Willard, and Mapa, JJ., concur.

Johnson, J.: I concur in the result.

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G. R. No. 1430, August 12, 1903

PLACIDO BANAYO, PETITIONER AND APPELLANT, VS. THE MUNICIPAL PRESIDENT OF SAN PABLO, RESPONDENT AND APPELLEE. D ECIS ION
COOPER, J.: An application was made on the 24th day of June, 1903, to the judge of the Court of First Instance of the Sixth Judicial District, by Placido Banayo, for a writ of habeas corpus, the petitioner alleging that he was deprived of his liberty and imprisoned by Marcos Paulino, municipal president of San Pablo, Province of Laguna, in the public prison of the said municipality; that he was so placed in confinement about the 80th day of May, 1903, in the municipal prison, without then being informed of the cause of his detention; that two or three days afterwards he was given over to the justice of the peace on an accusation of estafa, which olfense, as alleged against him, consisted in the fact that he had refused to pay the wages of one of his servants; that the justice of the peace, as soon as he heard the facts of the case, discharged the petitioner from further prosecution; that notwithstanding this fact, the municipal president, Marcos Paulino, again caused him to be imprisoned in the municipal prison, where he is now hold without any order of competent authority; that there existed neither complaint nor information, or other formal allegations. The writ of habeas corpus was issued in accordance with the prayer of the petitioner. The respondent made return to the writ, and for cause of the detention presented a copy of a decision rendered by the municipal council of San Pablo on the Oth day of June, 1903, which sot forth that Placido Banayo bad been arrested for the crime of estafa on the complaint of Julian Arellano and by the teniente of the barrio of San Francisco, Don Mamerto Evangelista, as a disturber of the peace of the inhabitants; that, with respect to the first-named offense, it was admitted that the justice of the peace alone had jurisdiction to investigate the matter; that as to the second offense, that of disturbance of the public peace, such act is an administrative offense ( delito administrativo) ; that the investigation being had by way of administrative complaint, as a result it was proven that the disturbance of the public order was committed by the accused in the barrio mentioned, and that thereupon the president and municipal council, under their powers to correct acts which tend to the disturbance of the peace of the inhabitants, after declaring the acts to be dangerous to the tranquillity of the town, sentenced the accused, Placido Banayo, to the penalty of one hundred and sixty-eight days of imprisonment and a fine of $199. It will not be necessary here to consider the character of the acts upon which the complaint for disturbance of the peace is based. It is sufficient to say that they appear to have been quite frivolous, and consist in the accused having incited various persons who had been excluded from participation in the division of an estate to litigate concerning the opening of the estate of Juan Banayo, deceased, the grandfather of the defendant, and in which estate the defendant himself was interested ; and in the accused having cut the coeoanut trees on the estate. The cause was heard on the 22d day of July, 1903, by the Court of First Instance and the petitioner was remanded to the custody of the respondent; the costs of the proceeding were adjudged against the petitioner. From this judgment of the Court of First Instance the petitioner has appealed to this court.

The decision of the Court of First Instance is apparently based upon the construction given to section 528 of the Code of Civil Procedure of 1901, which provides that the writ of habeas corpus shall not be allowed when it appears that the person alleged to be deprived of his liberty is in the custody of an officer under process issued by a court or magistrate, or held by virtue of a judgment or order of a court of record having jurisdiction. It was the opinion of the judge of the Court of First Instance that the municipal council of San Pablo was acting within its jurisdiction, and that, the defendant being held by virtue of an order of the municipal council, the court could not inquire into the sufficiency of the complaint as to vices or defects of the proceedings, or as to whether the judgment or sentence was erroneous or not, the remedy of the defendant being by appeal. Under Act No. 82, which is a general act for the organization of municipal governments in the Philippine Islands, the powers vested in the municipal governments are subdivided, that part of an executive and judicial character being vested in the president, and that part of a legislative character being vested in the municipal council. The president is made the chief executive of the municipality, and, by section 18 (g), he is empowered to hold a court to hear and adjudge alleged violations of public ordinances, upon complaint filed by his direction or by a police officer, or a private citizen, and after due trial, in which the accused and his witnesses shall be heard, shall, upon conviction, impose such punishment, either by admonition or by fine and imprisonment, or both, in his discretion, as is provided for in section 39 ( dd ) of the act. To the municipal council is delegated legislative power alone. It possesses no powers whatever of a judicial character. Nor is there any such proceeding known in our present laws as . delito gubernativo. The power of the municipal council being dependent upon the municipal act, and, as stated, no judicial power having been delegated to the municipal council, the exercise of any such power by it is without authority, and it had no jurisdiction to render the judgment or make the order under which the petitioner is held. The proceeding before the municipal council was an absolute nullity, and the detention or imprisonment of the petitioner under these void proceedings was illegal and wrongful, and the Court of First Instance erred in not directing his discharge from custody. For the reasons above stated, the judgment of the Court of First Instance is reversed, and judgment is here rendered directing that the petitioner be discharged from custody, and that the costs of these proceedings be adjudged against the respondent, Marcos Paulino. Arellano, C. J., Torres, Willard, Mapa, and McDonough, JJ., concur.

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G. R. No. 1441, December 29, 1903

THE UNITED STATES, COMPLAINANT AND APPELLEE, VS. SEVERA BERGANTINO, DEFENDANT AND APPELLANT. D ECIS ION
COOPER, J.: The defendant, Severa Bergantino, is charged with the crime of homicide, committed as follows: "On the evening of the 26th day of February last, the deceased, Eugenia Bernales, being at the house of Dolores Abelarde for the purpose of collecting 7 reals and 8 cents, which the, latter owed to the former, the said Abelarde not having paid the same, a dispute arose, and,the said accused, Severa Bergantino, taking part in the dispute, inflicted two wounds upon the stomach of the deceased with a knife, which caused the death ot the said Eugenia Bernales on the 28th of the said month of February." The defendant was found guilty in the Court of First Instance and was adjudged to imprisonment of eight years and six months of prision mayor and to pay the costs of the proceedings, with the accessories, without adjudging indemnification for the damages, there being no claim for such by the heirs or relatives of the deceased. From the judgment the defendant appeals to this court. The testimony in the case and on which the decision is based discloses the following facts: In the pueblo of Asencia, in the Province of Iloilo, on the 26th day of November, 1902, the deceased, Eugenia Bernales, went to the house of Dolores Abelarde, the mother of the accused, for the purpose of collecting the sum of 7 reals which the deceased had won in a game on the morning of that day from Dolores. Dolores refused to pay the said sum; the deceased insisted, saying that she needed the money in order to buy supplies for the family; after some warm words had passed between the women the deceased stated that the accused was wanting in virtue and applied other offensive epithets to her. The accused was present, and up to this time had taken no part in the dispute between her mother and the deceased. Eugenia left the presence of Dolores and started down the steps, and when reaching the lower story, Severa having accompanied her, they came to blows. The accused at the time of the quarrel had a penknife in her hand with which she inflicted mortal wounds upon the deceased. While there is some conflict, the testimony is sufficient to sustain these views, and it is clear that the defendant is guilty of the offense of homicide. It is contended by the attorney for the defendant that the court failed to take into consideration all of the extenuating circumstances which existed in the case, and, in particular, that the penalty assessed by the court was placed in a grade too high in view of the testimony as to the age of the accused. Article 85 of the Penal Code provides that:

"Upon a person under 15 years or over 9 years of age, who is not exempt from liability by reason of the court having declared that he acted with the exercise of judgment, a discretionary penalty should be imposed, but always lower, two degrees at least, than that prescribed by law for the crime which he committed." Did the evidence in the case show that the accused was under 15 years of age? If so, the penalty should have been two degrees, at least, lower than that prescribed by law for the crime which was committed. The learned judge states in his decision that the accused is a married woman, apparently about 18 or 19 years of age; that while the proof presented on the part of the defendant tended to show that she was less than 15 years old at the time of the occurrence; that these declarations of the witnesses were all hearsay, as neither the accused nor her mother, who testified as to her age, knew her present age; that there was not presented during the trial the baptismal certificate nor any other document showing the date of the birth of the accused; that to judge by the appearance of the accused she had passed the age of 15 years; that it was impossible to determine with certainty this point; and the court reached the conclusion that the accused was more than 15 years of age. The testimony of the defendant, her mother, and her husband was to the effect that the accused had not reached the age of 15 at the time of the commission of the offense. The mother of the accused testified that her daughter was 14 years and 4 months old and states that the reason she knew her age was because the defendant was born about the time of the cholera epidemic of 1889, The accused testified that she was 14 years old when she was married, three months before the trial. The husband of the accused testified that she was 14 years old and that he knew this because when he was married they told him that the accused was only 14 years of age. The testimony of the mother was not hearsay, but was by one who had direct knowledge of the age of the accused. The testimony of the husband, though hearsay, is such evidence as is commonly received by the courts upon the subject of pedigree, which furnishes an exception to the rule with reference to the admissibility of hearsay evidence. (1 Greenl., sec. 114 C.) While the,evidence upon this point is not entirely satisfactory, yet it is sufficient to raise a reasonable doubt upon this material question in the case, to the benefit of which the defendant is entitled. The baptismal certificate or other evidence of this character would have been much more satisfactory to the court,and, if obtainable, should have been introduced. Neither the prosecution nor the defendant saw fit to introduce such evidence. This finding of the court as to the age, not being supported by evidence sufficient to satisfy this court beyond a reasonable doubt, will require a reversal of the judgment and a modification of the sentence by reducing the penalty in accordance with the requirements of article 85 of the Penal Code at least two degrees below that prescribed by law for the crime which was committed by the defendant, and the imposition of a discretionary penalty, which, in view of the extenuating circumstances we find as existing in the case, we now reverse the judgment

and sentence the defendant to the penalty of six months imprisonment, arresto mayor in its maximum degree, with costs of the proceedings adjudged against the defendant. So ordered. Arellano, C. J., Torres, Willard, Mapa, McDonough, and Johnson, JJ., concur.

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G. R. No. 1503, December 29, 1903

THE UNITED STATES, COMPLAINANT AND APPELLEE, VS. ALEJO RAVIDAS ET AL, DEFENDANTS AND APPELLANTS. D ECIS ION
The defendants Alejo Ravidas and Narciso Melliza, together with. several other defendants, were tried in the Court of First Instance of Misamis on a charge of insurrection. Both were convicted, and Ravidas was sentenced to imprisonment for a term of five years and Melliza to three years. Both appealed to the Supreme Court from the judgment of conviction. After the case was lodged in the Supreme Court the attorneys for the two defendants named made a motion that they be allowed bail pending appeal, no such motion having been made in the trial court. This motion was heard on November 16, 1903, and was opposed by the representative of the Attorney-General who appeared on behalf of the Government, On November 30, 1903, the court directed the entry of the following order on its minutes: "Acting upon the motion of Messrs. Palma, Gerona & Mercado, attorneys for Alejo Ravidas and Narciso Melliza, defendants in the case of the United States vs. Ravidas. et al., that the said defendants be granted bail during the pendency of the appeal in this case before the court, after deliberation: "Resolved, by a majority vote, That the motion to admit the said defendants to bail be denied. The Hon. C. S. Arellano, Chief Justice, and Justices Torres, Willard, and Johnson voted to deny the motion." From the order so entered and the refusal to grant bail Justices McDonough, Mapa, and Cooper dissented.

DISSENTING MCDONOUGH, J., with whom concur COOPER and MAPA, JJ., This is a motion to admit the defendants to bail pending the trial of their appeal in this court. Bail is usually favored. Before conviction, except in capital cases, it is allowed as a matter of right. After conviction, however, it is discretionary with the Court of First Instance and also with this court to grant or refuse bail in noncapital eases pending on appeal. (See sec. 53, G. O., 58.) In several of the States the courts have refused to exercise this discretion unless there exist special circumstances which call for the intervention of the court in behalf of the prisoner. In those States the question has often been raised as to what is a special circumstance which justifies the courts in letting to bail after conviction and pending an appeal. The answers have been numerous, various, and many of them vague.

1. In California it was said in the case of Ex parte Smallman et al. (54 Cal., 35), that it might be a special circumstance warranting the granting of bail when, for example, after a conviction for the crime of felonious homicide and appeal "the deceased" was produced alive. 2. The same court gave as another instance: Where the defendant had been convicted of stealing goods and it turned out afterwards that the goods of which he was convicted of stealing were at the time of the alleged theft in the hands of the owner. With all due respect to the learned judge who gave these instances, it may be remarked that these were special circumstances warranting speedy pardon rather than bail. 3. It was held in Nebraska (42 Neb., 48) that, after conviction and pending appeal, this discretion of the court may be exercised upon the showing of probable error calling for a reversal of the judgment. New York State follows this view and, pending appeal and an application for a stay and for bail, the court will look into the record for the purpose of ascertaining whether or not there is probable cause for reversal. In Indiana it has been held, on an appeal from the refusal of a judge to admit to bail, the supreme court will weigh the evidence and determine the facts, as if trying the case originally. (Ex-parte Heffernan, 27 Ind., 87; Ex-parte Kendall, 100 Ind., 599, and cases cited.) 4. In 3 American and English Encyclopedia of Law, 677, it is said that a special circumstance justifying bail, after conviction, is where the defendant voluntarily surrendered; or 5. Where he is a man of large means; or 6. Where he refused an opportunity to escape; or 7. When the defendant is seriously ill; or 8. When the hearing on the appeal has been unnecessarily delayed. Thus it appears that the exceptions are so numerous that they almost constitute the rule. The discretion to let to bail conferred on this court is to be exercised regardless of the action of the Court of First Instance. Even in California, where it frequently happened that the trial court refused to exercise the discretion vested in it to let to bail, the supreme court, in the case of Smith (89 Cal., 80), rebuked the court below for failure to act. "The fact," said the learned judge of the supreme court who wrote the opinion, "that the trial court adopted an inflexible rule not to admit a defendant to bail who has been convicted of a felony, can have no weight with us, however inconsistent such rule is with section 1272 of the Penal Code" (allowing the court to exercise discretion). "This court passes upon the merits of the petition presented to it regardless of any action or rule the trial court niwy have adopted" In the case of Hodge (48 Cal., 3) the chief justice of the supreme court allowed bail after it had been refused by the court below. There the defendant had been convicted of assault with a

deadly weapon with intent to do bodily injury. The punishment for that offense was a fine or imprisonment, and the defendant had been sentenced to serve a term of imprisonment of eighteen months in the State prison. On the argument, the attention of Chief Justice Wallace was called to the record, and he evidently examined the record and the rulings of the court below and the charge to the jury, for he said: "It is not proper that I should intimate an opinion as to the ultimate determination of the points which it is the purpose of this appeal to present for the judgment of the supreme court. "They are sufficient in my judgment to show that the appeal is bona fide and that the case made is not to be characterized as frivolous or unsubstantial. "I think that should I, under the circumstance, refuse to admit the prisoner to bail, it would be a misapplication of the discretion conferred by the statute. "The right to, appeal to the supreme court is guaranteed by the Constitution to the prisoner and is as secure as the right of trial by jury. It is one of the means the law has provided to determine the question of his guilt or innocence. Upon such an appeal the ultimate question is nearly always as to the validity of the judgment under which the prisoner is to suffer, and it is certainly not consonant to our ideas of justice, if it can be prevented by legal means, that, even while the question of guilt or innocence is yet being agitated in the form of an appeal, the prisoner should be undergoing the very punishment and suffering the very infamy which it was the lawful purpose of the appeal to avert. It would be somewhat akin to a practice of punishing the accused for his alleged offense while the jury was yet deliberating upon a verdict." These are sensible and weighty reasons for the exercise of the discretion of the court to let a prisoner out on bail pending his appeal, but weighty and just as they may be in California, there is much more reason for following them in these Islands, because here the accused is not finally tried until his case is heard, retried, and determined by this court, which, in case of conviction, sentences the accused for the full term prescribed by law; and he is obliged to serve the full term of imprisonment imposed upon him by this court, without being credited with the time served in prison, between the time of determining his guilt below and the time of conviction here, except where convicted of certain minor offenses in which the convict is credited with half the time served pending the appeal. So that this may result, especially if delay occurs in bringing the case to trial in this court, and in deciding the same, that an accused may have to serve a longer term in prison than is prescribed by the Code. Moreover, in the State courts, the accused is allowed bail as a matter of right before conviction by a jury in noncapital cases. The conviction, under our system, in a Court of First Instance, where an appeal has been taken, is very like an examination and a holding for trial by a committing magistrate in the States, if the holding of this court in the case of the United States vs . Kepner (1 Off. (Gaz., 353) be good law.[1] In the opinion of this court in that case, it is stated, under the Spanish rule in these Islands: "There never was any finality to the judgment of the trial court, in felony cases, until it had been ratified and confirmed by the court of last resort. Such a judgment was merely advisory to the appellate tribunal. * * * That was

the law of the land when the change of sovereignty took place, and it has only been modified since to the extent of making the judgment of the Court of First Instance, in felony cases (except capital offenses) final, unless an appeal lias been taken either by the Attorney-General or the accused. So then, so now." Inasmuch as there has been an appeal taken in the case at bar, the judgment below, therefore, is not final; it is not such a judgment as is entered in the States upon the verdict of a jury; it is in its nature "merely advisory," and, therefore, it, together with the double punishment mentioned above, constitutes a special circumstance entitling the defendants to the exercise of the discretion of the court in their favor. It seems to me that this court ought to follow the practice of the Federal courts and that of the Supreme Court of the United States, and not deny bail after conviction unless some special circumstance exists which appeals especially to the discretion of the court, but rather to allow bail, unless some great urgency exists which would make it manifestly improper to grant the petition. Thus in the case of McKnight (113 Fed. Rep., 451), decided by the circuit court of appeals of the sixth circuit, 1902, it was held that the United States Court of Appeals, pending a writ of error, had power, and that it was generally its duty to.admit to bail, after conviction of a crime not capital; that where the trial court refused to admit to bail pending a writ of error, in the absence of some great urgency, a further application should be made to the appellate court, and that the fact that the defendant had been three times convicted on the same indictment, for embezzling funds of a national bank, was not sufficient ground for denying bail pending a writ of error. In the case of Hudson vs. Parker (156 U. S., 277) it appeared that Hudson had been convicted in the United States district court for the western district of Arkansas, of assault with intent to kill, and was sentenced to imprisonment for a term of years. A writ of error was granted by one of the justices of the supreme court (not assigned to that circuit) and an order made for supersedeas and bail, in a sum named, pending the writ, the bond to be approved by Judge Parker, the district judge. He, however, refused to approve the bond, holding that the supreme court judge was without authority to let the prisoner to bail. In the opinion of the supreme court it was said that: "The statutes of the United States have been framed upon the theory that a person accused of a crime shall not, until he is finally adjudged guilty in the court of last resort, be absolutely compelled to undergo imprisonment or punishment, but may be admitted to bail not only after arrest and before trial, but after conviction and pending a writ of error," and so the court ordered a mandamus to be issued commanding Judge Parker to take action regarding the approval of the bond. For the foregoing reasons I am of opinion that the defendants should be let to bail pending the disposal of their appeal in this court.

[1] 1 Phil. Rep., 397.

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G. R. No. No. 1345, December 29, 1903

THE UNITED STATES, COMPLAINANT AND APPELLEE, VS. JOSE MONTANO, DEFENDANT AND APPELLANT. D ECIS ION
MCDONOUGH, J.: The defendant, Jose Montafio, was charged with being accessory to the crime of robbery in a gang, committed in the month of January, 1902, in the barrio of Napnapin, in the town of Tigbauan, by more than three armed men, who, in the nighttime, with force and arms committed a robbery and carried away as the proceeds thereof eight carabaos. There is evidence in the case to show that soon after the robbery four of these carabaos were found in the possession of the defendant at Alimodian; that the defendant was informed that these carabaos had been stolen; and that the credentials of Ownership were exhibited to him by the rightful owners; that the defendant stated that if he had known that the carabaos had been stolen he would not have bought them, and that he asked to be paid one-half of the price of the carabaos as a condition of delivering them to the owners. The owners testified that they then stated to the defendant that they had not the money with which to make this payment, but that they would go to their homes and return with the money. This they did the next day, but then the defendant stated that he had returned the carabaos to the men from whom he had bought them; and so the owners were not able to recover possession of their property by reason of the disposal of the same by the defendant after he had been informed that the carabaos had been taken from the owners through robbery. The defendant denied that he had had these carabaos in his possession; denied that he had promised to return them on payment of half the price which he had paid for the same, and denied that he had had any conversation with the owners about the same. He also produced witnesses whose testimony tended to prove an alibi, but this branch of the proof was weak, and the contradictory statements of the defendant had the effect of weakening his testimony also. The court below, evidently believing the evidence produced by the prosecution, found the defendant guilty and sentenced him to serve a term of four months of arresto mayor, together with the corresponding accessories and indemnification and to the payment of the costs. In order to convict the defendant of the crime of being accessory to the crime of robbery committed as shown by the evidence in this case, it was not necessary to show that he had participated therein. It was sufficient to show that he had knowledge of it, and the proof shows that lie acquired such knowledge when he was told by the owners that these carabaos had been taken away from the owners by robbery. After having obtained this knowledge he disposed of the property or concealed the same so that the owners were deprived of their property the body and effects of the crime. (See art. 15, Penal Code.) We are of opinion, however, that in sentencing the defendant an error was committed by the

court below. As the punishment provided for the crime of robo en cuadrilla is that designated in No. 5 of article 503 of the Penal Code in its maximum grade, the penalty corresponding to an accessory after the fact is not that of arresto mayor in its maximum grade the punishment fixed for an accomplice but a correctional fine. (Arts. 26, 67, and 68 of the Penal Code.) The judgment below is therefore reversed and judgment ordered as follows: That the said Jose" Montano be sentenced to pay a fine of 2,500 pesetas, and, if he fail to pay said fine, that he be imprisoned until the same shall be paid, but such imprisonment not to exceed one month. (Art. 92, Penal Code.) Arellano, C. J., Torres, Cooper, Willard, Mapa , and Johnson, JJ., concur.

OSJurist.org

G.R. No. 1017, March 21, 1903

THE UNITED STATES, COMPLAINANT AND APPELLEE, VS, GUILLERMO YILLANUEVA, DEFENDANT AND APPELLANT. D ECIS ION
TORRES, J.: On the night of July 9, 1902, while Juana Aguinaldo was going up the stairway of her house in the town of San Mateo, followed by her husband, Guillermo Villanueva, the latter, impelled by the passion of jealousy, fired at his wife with a revolver which he, in his capacity as a member of the police force, was carrying in his belt. The shot was fired at a distance of some three yards. The bullet struck the woman in the back and went through her body. The bullet entered between the sixth and seventh ribs on the right side, near the omoplate and the lung, ranging upward, the point of egress being near the nipple of the right breast. Notwithstanding the seriousness of the wound, which, according to the physician who examined her, might well have been mortal, the judgment appealed staled that on the 7th of August the woman was still alive, and that the wound received by her was healing. These facts, fully established by the evidence, constitute the crime of frustrated parricide, denned and punished in article 402 in connection with articles 3 and 407 of the Penal Code. The defendant, when aiming and discharging his revolver at his wife's back, performed all the acts which necessarily and ordinarily would produce the violent death of the victim. The fact that she did not die at once or a lew days after receiving the wound was due to causes independent of the defendant's will. Upon his part he doubtless fully intended to kill the victim. He made use of a deadly weapon, and in the commission of the offense availed himself of means which directly and specially tended 1o insure the consummation of the crime without any risk to himself which might arise from an attempt at defense on the part of his victim, who, as she looked back, attracted by the noise of the weapon, received the shot in her back. The accused, upon being arraigned on the complaint, staled that he hurt done the act charged, but that he did not regard himself as guilty of a crime. He stated in his defense that the suspicion that his wife was unfaithful to him had made him jealous and that on the night in question he had gone 1o look for her in the house of one Captain Lucas, knowing that his wife was there at that time. Upon his asking for his wife, Lucas's wife told him that she was not there, but a few moments afterwards the defendant, lying in wait near the house, saw her emerge from it. The answers she gave to his questions and her embarrassed manner led him to the conclusion, in connection with other information in his possession concerning her conduct, that his suspicion was not unfounded. He then took her home, and upon arriving there saw an old woman called Pilar Pineda, the one who had taken his wife to the house of Lucas, in the act of packing up some clothes, which he supposed belonged to his wife. At this, overcome by his jealousy, he fired at his wife with the revolver he was carrying. Until the contrary is proven the act of wounding his wife in the back must be regarded as voluntary, and therefore intentional, and so the accused himself testifies in his statements as a witness for the defense. The record does not disclose that the act was committed without intent to iiarm the complainant, who still lives notwithstanding the gravity of the wound received, and her recovery, if not lue to chance, must be attributed to the medical attention which she

received shortly after the wound. In other words, her recovery was due to causes independent of the will of the aggressor. The facts in the case fall within the definition of the crime of frustrated parricide, as above stated, owing to the relationship between the complainant and the defendant. This circumstance and the fact that the woman is still living and on the way to recovery make it necessary to classify the crime, not as frustrated homicide or murder, but as frustrated parricide inasmuch as it appears from the record to be fully proven that the defendant performed all the acts the natural tendency of which Avas to produce the death of his wife. The fact that he availed himself of a deadly weapon, that he discharged it at a distance of three yards, at which range such projectiles have a great penetrating and destructive force, that he aimed the shot at the part of his victim's body in which a wound was most likely to deprive her of life, and that he wounded her in the back without her having received the slightest intimation of the commencement of an aggression, are all details which demonstrate the most complete intention to kill, and if this purpose was not accomplished it was due to facts completely independent of the will of the accused, and wholly foreign to his criminal intent. In the commission of the crime the concurrence of the mitigating circumstances No. 7 of article 9 of the Code must be considered, to wit, the fact that the accused acted upon the impulse of the passion of jealousy, which doubtless at the time of the commission of the crime had deprived him of reason and judgment. This circumstance is offset in its favorable effect by the concurrence of the circumstance of treachery (alevosia), No. 2 of article 10 of the Code. This circumstance in the case of a frustrated parricide is not to be regarded as a specific qualifying circumstance, but only as an ordinary generic circumstance, as the crime in question is undoubtedly graver than that of frustrated murder. With respect to the adequate penalty, the court, in consideration of the circumstances of the case and of the fact that this crime was evidently due to passion, considers it proper to make use of the authority conferred by article 407 of the Penal Code, imposing upon the accused the penalty inferior by one degree to that of cadcna temporal, to wit, that of presidio mayor in its medium degree. We are therefore of the opinion that the judgment appealed should be reversed, and the defendant, Ouillermo Yillanueva, condemned to the penalty of eight years and one day of presidio mayor, with the accessories of absolute temporary disqualification and subjection to the vigilance of the authorities for a term equal to that of the principal penalty, to run from the expiration of the principal penalty, to the payment to the complainant, Juana Aguinaldo, of an indemnification of 600 Mexican pesos, without subsidiary imprisonment in case of insolvency (as provided by art. 51 of the Code), and to pay the costs of both instances. So ordered. Cooper, Willard, and Ladd, JJ., concur. Arellano, C. J., and Mapa, J., dissent.

OSJurist.org

G.R. No. 1086, April 07, 1903

THE UNITED STATES, COMPLAINANT AND APPELLEE, VS. VICENTE REGIS ET AL., DEFENDANTS AND APPELLANTS. D ECIS ION
WILLARD, J.: One morning in the month of January, 1899, as alleged in the complaint upon which this prosecution was instituted, Herm6genes Languido was attacked in the barrio of Tuyong, in the town of Carcar, by the accused, Vicente and Antero Regis, who inflicted five wounds upon him in various parts of the body with sharp weapons. In consequence of the wounds Languido died on February 2 following in the municipal building of said town, to which he was taken immediately after the attack. On the 13th of June, 1902, a complaint was filed by the widow of the deceased charging the accused with the crime of homicide. The widow of the deceased, Don Florencio Noel, the municipal president of Carcar, Adriano Enriquez, the officer of justice, and Doroteo Tanodtanod, Domingo Caballero, Macario Cantuanco, and Benito Bolocboloc were examined as witnesses. From their testimony it appears that Hermogenes Languido was wounded by the accused. No person was an eyewitness to the attack except Domingo Caballero, who affirms that, from a distance of some 10 hrazas, he saw the accused attack Hermogenes Languido with small swords, the latter being unarmed. The witness Tanodtanod, when he approached the window of his house, attracted by the cries of the wounded man, saw him already stretched wounded on the ground, and by his side the two armed aggressors. All testified that the wounds suffered by the deceased were severe and dangerous, and that in consequence thereof Languido died on the fifteenth day thereafter. Cantuanco testifies that, according to Antero Kegis, with whom he had some conversation, Languido was wounded because he had resisted, although he did not state who was the first to make the attack. Mariano Canaria, an herb doctor who attended the wounded man, testified that the five wounds received by I [ermogenes we're beginning to improve when, two days before his death, he Avas attacked by a diarrhea, accompanied by hemorrhages and mucous discharges, which resulted in his death. The witness added that the wounds were not necessarily mortal, and that no one of them could have caused death, as, had the wounds been mortal, the man would not have lived for fifteen days, but would have died immediately; that when he died the wounds were already beginning to heal, and that, had it not been for the diarrhea, he would have been well in a month or two; that upon his recovery he would have been able to use his arms, but would have shown scars on his face; and that, at the time of his death, blood and matter were exuding from the wounds on the calves of his legs. The violent death of Hermogenes Languido is a fact fully proven in this case, and constitutes the crime of homicide, as charged by the complaining witness and as defined in article 404 of the Penal Code. Even admitting that two days before the death of the wounded man he was attacked by diarrhea, the character and origin of this diarrhea not having been shown, it is reasonable to believe that it was incidental to the serious condition in which Hermogenes was at that time. He must undoubtedly have been very weak, by reason of the considerable loss of blood suffered as a result of his five wounds. Therefore, an attack of diarrhea, whatever may

have caused it, must necessarily have been fatal to the patient, in view of the serious condition of his wounds, which, together with the diarrhea, undoubtedly caused his death. His demise, therefore, is not due solely to this cause. This conclusion is supported by the testimony of the physicians who were examined upon this subject as witnesses. They testified that the diarrhea, not being the result.of cholera, might be said to have originated from the debility and prostrated condition of the patient, and could be regarded as a complication of the wounds inflicted upon him. It is to be observed, moreover, that Placida Labices, the wife of the deceased, testified that the latter had contracted no illness other than the wounds, and that he died from the result of the latter. The accused, Antero and Vicente Regis, pleaded not guilty to the crime with which they are charged. Vicente testified that one day in the month of January, 1899, he ordered Hermogenes Languido, his tenant, to go to work as a fireman at the sugarhouse; that when the witness reached his warehouse he found a considerable amount of juice uncooked, because, according to the statements made by the other laborers, the fireman Languido had not arrived. The witness immediately began to look for him, and finding him in the warehouse asked him why he had not gone to work. Hermogenes replied that he was not obliged to do so, whereupon the witness said he would lay the matter before the authorities; that thereupon Languido attempted to attack him with a bolo which he had in his hand, and the witness, warding off the blow, fought with his aggressor and succeeded in taking the weapon from him; that, as the struggle continued, fearing that Languido might again possess himself of the weapon, he struck the latter with the bolo which he had seized from him, and inflicted upon him several wounds, until he fell to the ground; and that at this time the father of the accused, Antero Kegis, arrived on the scene, he having been some 15 or 20 brazas away when this occurred. Antero Regis corroborates the testimony of his son Vicente, for whom he says he was looking, not having found him in the warehouse; that the laborers told him that his son Vicente had gone to look for Hermogenes Languido; that he shortly after heard what had occurred, and saw Languido stretched on the ground, wounded, and that he immediately went to the municipal tribunal to report to the authorities what had occurred. Two other witnesses, Hugo Lauas and Julio Naviches, the latter a brother-in-law of the deceased, testified that Languido endeavored to attack Regis, who, in view of the former's attitude, seized him by the hand, and that a struggle then ensued, Vicente Regis being at that time unarmed. There having been no eyewitnesses to the beginning of the struggle, and, accepting the confession and exculpative allegations of Vicente Kegis as true, upon the whole merits of the case we must regard him as the principal by direct participation in the homicide of Hermogenes Languido. This decision is not affected by the fact that the deceased did not die immediately after receiving the wounds, but on the fifteenth day afterwards, and in consequence of a complication of diarrhea, as testified to by the herb doctor who attended him, inasmuch as the accused is responsible before the law for the act committed and for all its consequences, if there be no evidenceand there is none in this casethat such consequences were due to an extraneous cause. Consequently Vicente Regis must be regarded as having committed the offense of homicide, and not that of lesiones . Nevertheless, we must consider, in favor of the accused, the special circumstance of complete exemption from criminal responsibility, in view of his testimony, uncontradicted by that of any witness for the complainant, and corroborated by the witnesses for the defense, inasmuch as there were both an unlawful aggression and lack of provocation on his part, two of the

requisites assigned by section 4, article 8, of the Code. The second point is, in our opinion, also proven. This case is very similar to two others just decided by this court. The United States vs. Bernardo Patala, December 14, 1901, and the United States vs. Juan Salandanan, November 13, 1902.[1] With respect to the other accused, Antero Regis, it not expressly appearing that the provincial fiscal or counsel for the complaining witness has appealed from the judgment of acquittal in his favor, this part of the judgment of the court below is regarded as final. In view of these considerations, we are of opinion that the judgment of the court below should be reversed, and the accused, Vicente Regis, is acquitted, with costs de oficio. So ordered. Arellano, C. J., Cooper, Mapa, and Ladd, JJ., concur.

DISSENTING TORRES, J.: Upon the statement of facts and conclusions of law relative to the actual commission of the crime of homicide, and the culpability of the accused, Vicente Regis, as expressed in the preceding opinion, and with respect to which the undersigned concurs, he nevertheless dissents from the opinion of the majority of the court with respect to the existence of the circumstance of complete exemption from criminal responsibility for the commission of the crime. The exemption from responsibility which should be considered in favor of the accused Vicente Regis is incomplete, judging from the merits of the case, because only two of the three requisites established by section 4, article 8, of the Penal Code are present; that is, illegal aggression and lack of provocation on the part of the accused. It can not, however, be said that in the alleged defense he employed a reasonable means of repelling or impeding the aggression, inasmuch as, in the opinion of the undersigned, Vicente ltegis exceeded the necessities of the defense. Once having possessed himself of the weapon with which the deceased was attacking him, there was no reasonable necessity for the infliction of five serious wounds in order to impede or repel an aggression no longer continued, or which, even if continued, could no longer be effective, inasmuch as Hermogenes Languido was already disarmed. From this point of view, and by reason of the absence of the second of the necessary elements, the act committed by Vicente Regis is not excusable, and in accordance with the provisions of article 86 of the Penal Code should be punished, in the opinion of the writer, by a penalty inferior by two degrees to that assigned by article 404 of the Code; that is, the medium grade of the penalty of correctional imprisonment. In view, then, of this consideration, it is the opinion of the writer that the judgment appealed should be reversed, and that it should be held (1) that the facts proved in this case constitute the crime of homicide; (2) that Vicente Regis is guilty of that crime, as principal, and that in his favor should be considered the existen.ee of the special circumstance of incomplete exemption referred to by article 8G of the Penal Code; (3) that the said accused should be punished by the infliction of the medium grade of the penalty two degrees inferior to that assigned for the offense by article 404 of the Penal Code that is, the penalty of correctional imprisonment and the accessories of article 61 and (4) that

he has also incurred a civil responsibility, and should suffer subsidiary imprisonment in case of insolvency, and should be taxed with the costs. Consequently the Writer is of the opinion that the accused, Vicente Regis, should be convicted and sentenced to four years' correctional imprisonment, the payment of 1,000 Mexican pesos to the widow and heirs of the deceased, Hermogenes Languido, and, in case of insolvency, should suffer the corresponding subsidiary imprisonment, the latter not to exceed one year, and to the payment of one-half of the costs of the Court of First Instance and all the costs of this instance.

[1] 1 Phil. Rep., 478.

OSJurist.org

G.R. No. 38, May 15, 1903

PASTELLS & REGORDOSA, PLAINTIFFS AND APPELLANTS, VS. HOLLMAN & CO., DEFENDANTS AND APPELLEES. D ECIS ION
LADD, J.: This action is brought to recover the purchase price of goods sold the defendants, who are a firm doing business in Manila, by the plaintiffs, who are manufacturers in Barcelona, Spain. The defense is that the goods were in fact sold not to the defendants but to one Ferrer, who acted for them as comisionista in Barcelona, and that Ferrer contracted for the goods in his own name and not in the name of the defendants. It is claimed by the plaintiffs that Ferrer's agency for the defendants was not that of an agent ( comisionista), but rather that of a special agent ( mandatario singular), under article 292 of the Code of Commerce. The article cited provides in part that "merchants may intrust to other persons besides factors the permanent management in their name and for their account of one or more of the branches of the business they are engaged in, by virtue of a written or verbal agreement; partnerships must incorporate such agreement in their by-laws, and individuals must make it known, by public notices or by means of circulars, to their correspondents." No evidence has been produced to show that any appointment of Ferrer to act as special agent of the defendants had been notified to the public in the manner prescribed in this article, and there is nothing in the case from which it can fairly be inferred that his relations with the defendants wen1 of that character. The nature of his agency is determined by article 244 of the Code of Commerce, which provides that "the agency which has for its object an act or operation of commerce, or where the principal or the agent is a merchant or a commercial broker, shall be considered a mercantile commission." Here the principal was a merchant, and the transactions were of a commercial character, and the rules of the Code as to mercantile commission must therefore govern. These rules, so far as they relate to the present ease, are as follows: "Article 245: The agent ( comisionista) may discharge the commission by contracting in his own name or in that of his principal." "Article 246: When the agent contracts in his own name, it shall not be necessary for him to state who is the principal, and he shall be directly liable, as if the business were for his own account, to the persons with whom he contracts, said persons not having any right of action against the principal, nor the latter against the former, without prejudice to rights of action of the principal and agent against each other." "Article 247: If the agent contracts in the name of the principal, he must state that fact, and if the contract is in writing he must state it therein or in the subscribing clause, giving the name, surname, and domicile of said principal.

"In the case indicated in the preceding paragraph, the contract and the actions arising therefrom shall be effective between the principal and the person or persons who may have contracted with the agent, but the latter shall be liable to the persons with whom he contracted, so long as he does not prove the commission, if the principal should deny it, without prejudice to the obligation and respective actions between the principal and agent." There is, we think, no sufficient evidence that the goods in question were ordered directly by the defendants. Accepting, then, the defendants' contention that the orders were given by Ferrer, the determinative question is whether in so doing he acted in his own name or in that of his principals. There is no direct evidence in the case as to what was said by Ferrer or by the plaintiffs when these particular goods were ordered, or what took place between them at the time. We must determine the nature of the contract, as a matter of inference, from such evidence as we have showing what the relations were between the parties prior and subsequent to the transactions in question, and how they regarded the transactions at the time; the burden is of course upon the plaintiff to overcome the presumption, which would control in the absence of evidence to the contrary, that the agent, being an agent, contracted in his own and not in his principal's name. The evidence bearing on this question consists almost entirely of correspondence between the plaintiffs and defendants, and between the plaintiffs and an agency or branch house of the defendants at St. Gall, Switzerland The goods in question were ordered November 27, 1897, and December 21 and 23, 1897. The correspondence between the plaintiffs and the defendants commences in March, 1807, and terminates in February, 1898; that between the plaintiffs and the St. Gall agency of the defendants commences in January, 1898, and terminates in February, 1899, some months before this action was brought. Objection has been made to the admission of the letters of the dated March 18 and 30, 1897, on the ground that these letters plaintiffs with the complaint in accordance with article 487 of the and are not comprehended within any of the exceptions established objection is well taken. defendants to the plaintiffs, were not presented by the old Code of Civil Procedure, in article 489. We think this

Excluding from consideration these letters, the material portions of the remainder of the correspondence are as follows: In a letter of November 28, 1897, from the defendants to the plaintiffs, they say: "Since our last of the 12th of October last, we are without direct intelligence from you; on the other hand, we have received through Senor Ferrer several invoices relating to our orders of 40,000 and 20,000 meters of rayadillo, quality Nos. 394 and 3.47, respectively." They then go on to complain that a larger amount was sent than the orders called for, and state that they "place the excess at the disposition of Senor Ferrer;" they say, "with your authorization and that of said Senor Ferrer we will try to find another purchaser and will sell the 7,900 meters," etc. In this letter they specify the invoices of the goods referred to as having been received by them, which are of various dates in May, July, August, and September, 1897, and which are to "H. & C. I. F."

In a letter of December 7, 1897, from the defendants to the plaintiffs they say: "We do not doubt that you give the 2 per cent for prompt payment on all invoices, and it was undoubtedly only through mistake that Senor Ferrer in some of them has not indicated said discount of 2 per cent, inasmuch as our house of St. Gall has always paid immediately upon receipt of the bills of lading." In a letter of December 31, 1897, from the plaintiffs to the defendants, authority is given to sell the excess of cloth, in accordance with the proposition in the defendants' letter of November 28, 1897. In this letter the plaintiffs also notify the defendants of the shipment by the steamer P. de Satrustegui of certain goods, which are identified in the letter by the numbers of the orders, and which appear to be the same for which recovery is sought in this action, "the shipment of which," they say, "D. Ignacio Ferrer has looked after, and therefore he also attends to the forwarding of the samples, and to this end will send seasonably and as you have stipulated, the vouchers and bills of lading with invoices, of which we have made six copies, five for Senor Ferrer, and one copy of each invoice we have delivered to D. A. G. Engler, whom we have had the pleasure of saluting as your representative." In a letter of January 12,1898, from the St. Gall agency of the defendants to the plaintiffs, the latter are requested to "note that all shipments of orders of our friends in Manila not already effected are to be made in accordance with the instructions of Senor D. Amadeo G. Engler, with whom please enter into correspondence." In a letter of February 16, 1898, from the plaintiffs to the St. Gall agency, receipt is acknowledged of a letter enclosing "check in our favor on Messrs. Vidal, Quadros & Co. for 14,748.50 pesetas, which we place to your credit with thanks." In a letter of March 5, 1898, from the St. Gall agency to the plaintiffs, a check is enclosed for 4,033.05 pesetas, to pay invoices per Leon XIII, the receipt of which is acknowledged by the plaintiffs in a letter of March 8, 1898, in which they state that "they have credited the same on account." In a letter of March 21, 1898, from the St. Gall agency to the plaintiffs, a check for 2,301.85 pesetas is inclosed, and in a letter of May 4,1898, another for 7,570.15 pesetas. August 6, 1898, the St. Gall agency notifies the plaintiffs that Engler has ceased to attend to their business in Spain, and they are asked to "direct themselves in the future to us or to our friends in Manila." The latter correspondence is without special significance. The conclusions which are to he drawn from these letters, and which are not affected by any other evidence in the case, are to our minds decisive in favor of the contention of the plaintiffs. The letter of November 28, 1897, from the defendants to the plaintiffs, clearly shows the existence of direct mercantile relations between the parties prior to the transactions in question. It is claimed that the fact that in this letter the defendants appear to regard the authorization of Ferrer, as well as that of the plaintiffs, as necessary in order that they may dispose of the excess of rayadillo above the order, shows that the sale in this instance must have been to Ferrer, for otherwise, it is said, he would have had no interest in the resale which would have required the defendants to obtain his consent thereto. We think the language used by the defendants is not inconsistent with the theory that the sale was to them, through Ferrer

as comisionista. In case the goods were resold at a loss, it might be that Ferrer's dealings with the vendors had been such that the loss would have to be borne by him. As between him and the vendors, it would depend upon circumstances upon which one the loss would fall. Therefore, both might he interested in the resale, and it might be expedient to obtain authority from both. The letter of December 7, 1897, from the defendants to the plaintiffs, shows that the course of dealing between the parties, prior to the transactions in question, was for the St. Gall agency to make payment for invoices on receipt of the bills of landing. The letter from the plaintiffs to the St. Gall agency of February 16, 1898, and those from the latter to the former, of March 5, 1898, March 21, 1898, and May 4, 1898, show that the direct relations between the parties continued subsequently to the transactions in question, remittances being made from the St. Gall agency to the defendants to pay for goods shipped to Mainla. The letter of December 31, 1897, from the plaintiffs to the defendants, is insignificant as being a direct communication with reference to the very goods in question, and as showing that the invoices of these goods were forwarded by the plaintiffs through Ferrer to the defendants. Had the defendants been unknown to the plaintiffs at the time the goods in question were purchased, it would require the clearest evidence that the agent contracted in their name, in order to bind them. But a very different case is presented. It is shown that the parties were known to each other and had had direct dealings immediately prior to the sale, and that immediately subsequent thereto they were also in direct relations, credit being extended to the defendants by the plaintiffs. Then there is the further fact that the plaintiffs communicated directly with the defendants with reference to the goods in question, which they might have done, but naturally would not have done if the sale had been to the agent and the credit had been extended exclusively to him. In the absence of any evidence pointing to. a different conclusion, we think these facts are sufficient to repel the presumption that the agent, in these particular transactions, acted in his own name, and that the plaintiffs are therefore entitled to judgment. In addition to the letters of the defendants to the plaintiffs of March 18 and 30, 1897, already mentioned, we have excluded from consideration the various notarial certifications offered in evidence by the plaintiffs, to the admission of which the defendants have objected. The defendants' claim to indemnification under article 545 of the old Code of Civil Procedure, by reason of the failure of the plaintiffs to take evidence within the extraordinary period therefor which had been granted them, is disallowed for the reasons stated in the judgment of the court below. The judgment of the court below is reversed, and judgment will be entered for the plaintiffs in the sum of 13,510.75 Spanish pesetas, with interest from February 16, 1898, and costs of first instance. So ordered. Torres, Cooper, Willard, and Mapa, JJ., concur. Arellano, C. J., and McDonough, J., did not sit in this case.

OSJurist.org

G.R. No. 39, May 19, 1903

TUASON & SAN PEDRO, PLAINTIFFS AND APPELLEES, VS. GAVINA ZAMORA & SONS, DEFENDANTS AND APPELLANTS. D ECIS ION
MAPA, J.: Don Mariano Tuason and Don Manuel Garcia San Pedro had entered into a mercantile partnership en comandita with Luis Vives, under the firm name of "Luis Vives & Co." By the death of Luis Vives the partnership was dissolved, and was then reorganized under the name of "Tuason & San Pedro" on the 31st of December, 1898, composed solely of the surviving partners. This partnership assumed the business of the former partnership as wood sawyers and building contractors, the liability of the firm being made retroactive to the 11th of July, 1897. In February, 1898, Don Mariano Tuason entered into the contract with Don Juan Feliciano upon which this case turns, the contract being for the construction of a house. He did not mention in the contract that it was made on behalf of the firm of Tuason & San Pedro. In the protest, dated tin; 23d day of June, 1898, it is seen that Don Manuel San Pedro makes this protest with respect to the delivery of the house, and makes it on behalf of the firm of "Tuason & San Pedro," the manager of which, Don Mariano Tuason, says Don Manuel San Pedro had contracted for the building. On the 25th of August, 1900, Tuason & San Pedro brought this action. Objection having been made to the right of the plaintiff partnership to sue, the question must be determined whether a partnership can maintain an action in its own behalf upon a contract entered into by one of the partners in his own name, thus binding the third person who contracted with this partner. The purpose of the complaint is the recovery of the price of the house built. The entire question is reduced to these terms; Should this payment be made to the partnership? The following facts had been made to appear of record before the exception was taken: (1) That the partnership claimed to be the owner of this credit by its protest against default. (2) That it was in the possession of the document evidentiary of the credit and others connected with it, such as the notarial record of demand for payment made by the partner Tuason, and the record made of the offer to deliver the keys of the house, prepared at the instance of Tuason. (3) That the attorney appearing for the partnership held a power of attorney from the partnership, executed by Tuason as managing partner. There can not, therefore, be any duality, any incompatibility, or repetition of action. Everything which Tuason might have done is being done by the partnership, and after what the partnership has done Tuason can do nothing. The action being a solidary one, therefore, the result is the same whether it has been brought by Tuason & San Pedro or by Tuason alone. "Payment should be made to the person in whose favor the obligation is constituted, or to some other person authorized to receive it in his name." (Art. 1162 of the Civil Code.) "The first of these cases," says Manresa, "the most natural and simple, refers not only to the person who may have been the creditor at the time the obligation was created but rather to the person who is the creditor at the time payment is due. * * * That the principle laid down by the code has this wide meaning1 is demonstrated by the fact .that it has no rules, as have other codes (for instance, the Argentine

code) which expressly authorized heirs, assignees, and subrogated creditors to demand payment, and the right of these persons being unquestionable they must be regarded as included in the first part of article 1162, because, although the obligation was not created in their favor, it has subsequently resulted that its constitution is to their benefit." (Manresa, Commentaries on the Civil Code, vol. 8, p. 252.) When process was served upon the defendant to answer the complaint, it could be seen that the plaintiff was not an heir, an assignee, or a subrogated creditor, physically distinct from the person who made the contract, but this verjr same person, also bringing with him into the case the responsibility of a general partnership, which, far from declining to entertain the exceptions, set-offs, and counter claims which might be available against the original creditor, undertakes to defend against them as the original, actual, and sole creditor. Hence it is that the defense of the defendant is by no means limited, nor will the effects of the payment be frustrated. Furthermore, it is evident that although Tuason may have operated in his own name, it certainly was not with his own private funds. Therefore it was that this contract was communicated to the partnership which became responsible therefor. (Art. 134, Code of Commerce.) In view of the understanding and agreement between Tuason and the partnership, shown by the facts stated, the responsibility of the partner Tuason being included in the responsibility of Tuason & San Pedro, the liability of the firm is not less than the personal liability of the partner, as the partnership was a general one. And the action brought by the firm being simply the action in favor of the partner assumed by the firm as the result of the assumption of the business and the filing of the complaint, the exception, practically speaking, is entirely unnecessary, although, from a theoretical point of view, it might perhaps be supported. We therefore decide that the action brought by the partnership will lie, and the payment which may be made to the partnership upon the circumstances stated will be perfectly legal. The legal grounds on which paragraph 8 of the conclusions of law of the appealed judgment was based, are hereby modified to conform to the preceding opinion, and so modified we accept the findings of fact and the conclusions of law of the court below,with the following amendment : That part of the first conclusion of law which reads, "the owner of the property, Don Juan Feliciano, and, by reason of his death, his heirs, now defendants, are bound to pay the entire price agreed upon with the contractor, as the work was terminated and delivered" being amended to read as follows: "The owner, Don Juan Feliciano, and, by his death, his heirs, now defendants, are bound to pay all the price agreed upon to the contractor, because the house burned after the work terminated, and after the defendants had become in default with respect to their obligation to receive it;" for although it is evident, as stated in the seventh conclusion of law, that the contractor has done everything incumbent upon him for the delivery of the house, it is none the less true, as a matter of fact, that no such delivery took place. We therefore affirm the judgment below, with costs in this instance to the appellant. So ordered. Arellano, C. J., Torres, Cooper, Willard, and Ladd, JJ., concur. McDonough, J., did not sit in this case.

OSJurist.org

G.R. No. 49, May 11, 1903

THE MUNICIPALITY OF ANTIPOLO, PLAINTIFF, VS. THE COMMUNITY OF CAINTA, DEFENDANT. D ECIS ION
ARELLANO, C.J.: Pablo de la Cruz, representing the community of the town of Cainta, then belonging to the district of Morong and now in the Province of Rizal, filed with the general direction of civil administration, under the former Spanish government, a petition dated the 22d of May, 1893, in which he commences by stating that his purpose is "to obtain the return of the use and enjoyment of ninety-two quinones of common lands belonging to the said town, which a long time ago were leased to the community of the town of Antipolo, of the same district of Morong." He then continued to give the history of this land, stating that under the original organization of the town of Cainta it was given to the ancestors of the inhabitants, together with other lands at a place called Balanti in the same township; that these lands were forfeited by the rebellion of the townspeople, but, they having been pardoned and having again submitted, the lands were restored to them by order of the superior government of the Islands, as commons, to the end that they might never be conveyed or encumbered; that subsequently, at a period he was unable to specify, the people of Cainta leased these lands to the people of Antipolo, in consideration of one real for each balita; that this canon was first paid to the township itself, and subsequently to the government of Morong, until in 1887, at which time the general government ordered that the common lands of Cainta should be exempt from the payment of any canon to the government, and the people of Antipolo ceased to pay the 115 pesos per annum, which, at the rate of one real per balita, they had been paying theretofore. They nevertheless continued to hold the lands, which, upon the cessation of the payment of the rent, should have been returned to the town of Cainta. The petition concludes with this prayer, addressed to the civil department of the government: "Therefore the petitioners pray for the return to our township of the use and enjoyment of our ninety-two quinones of common land still retained by the Antipolo people, and that in due time the political or military government of Morong be directed to effect the said return, after compliance with the necessary formalities." The hearing upon this petition by order of the central office of the civil administration consisted of an interrogatory addressed by the governor of Morong to the representatives of the two contending townships: "To the representatives of the town of Antipolo: State whether you have any written contract concerning the lease of ninety-two quinones of land belonging to the township of Cainta, or else state the conditions of the lease and the time of its duration." To this question the following answer was given: "That they have no contract whatsoever in writing concerning the lease of the lands in question, which they consider to be the property of the town of Antipolo, they having thus received them from their ancestors." Similar questions having been addressed to the representatives of the town of Cainta, they replied "that they have no written contract with respect to the lease of the lands in question, which the town of Antipolo has been enjoying for mnny years, paying into the government

treasury as a ground rent the sum of 115 pesos per annum, which should now be paid into the treasury of this town, the said lands being the property of the township of Cainta, and that they are unable to state the time of the duration of this lease, as they are unacquainted with the terms of the contract made by their ancestors with the people of Antipolo ." (Folio 74 of the record.) The consulting attorney of the department, having been called upon for an opinion, stated, on July 20, 1894, that the terms and conditions upon which the alleged lease was made were unknown to him, and in an opinion dated the 18th of September said: "The existence of the contract not being evidenced by any document, the term not having been fixed, and there being no custom prevailing at the place of the execution of the contract by which leases are terminated, and it appearing, on the other hand, that the people of Cainta are the owners of these lands, the beneficial title thereto should be returned to the said town, without any other limitation of time than that prescribed for country estates in article 1577 of the Civil Code." (Folio 80 of the record.) And the bureau in which the investigation was being made reported: "From this point of view the right of the people of the town of Cainta to recover the beneficial title to their lands, and to enjoy them, is unquestionable, because the township is the owner of the fee of these lands. * * * It follows, then, that the town of Cainta is entitled to recover the title to the said lands, subject to the provisions of article 1577 of the Civil Code, there being no contract or custom established in these towns which would serve as a guide in terminating this lease. Therefore the bureau is of the opinion that your excellency might properly resolve, should you see fit to do so, to suggest to His Excellency the Governor-General of these Islands that he declare the lease of the ninety-two quinones of land of which the town of Antipolo has been enjoying the usufruct to be terminated, and to return the same to the town of Cainta. * * * This decision should be communicated to the politico-military government of Morong, to the end that, after compliance with the necessary formalities, that officer deliver to the representatives of the town of Cainta said ninety-two quinones of common lands belonging to the said town." This opinion of the bureau, dated the 18th of February, 1896, was concurred in by the director-general of the civil administration on the 28th of the same month, and finally by the Governor-General of the Islands on the same date. Such is the administrative resolution of February 28, 1896, against which a contentious administrative complaint was filed by the municipality of Antipolo on the 3d of August following, and to which the government attorney for the contentious administrative court filed his answer April 22, 1898, the community of Cainta not having appeared to assist in the defense. The office of attorney of the contentious administrative court having been abolished, and this case having been transferred to the jurisdiction of this court before the evidence had been taken, the municipality of Cainta was admitted as a party to the proceedings, and both the plaintiff and the defendant introduced their evidence in the manner and time prescribed by the court. It is to be observed in this case: (1) That the community of Cainta has persistently demanded solely the return of the enjoyment of certain lands, while the government has ordered the return of the dominium utile to the end that upon its being consolidated with the dominium directum supposed to have been retained by the town, the lands may henceforth belong to the said town in plenum dominium. (2) That the cause of action relied upon by the township of Cainta was a contract of lease, and the order for the return of the dominium utile of these lands in no wise conforms to the nature of this contract, as it is evident that the object of the lease, as distinguished from usufruct, and emphyteusis, can be nothing more than the user of the estate. (3) That without evidence of the existence of the supposed contract of lease, or of any of the said real rights of usufruct or emphyteusis, certain lands have been delivered to the town of

Cainta in plenum dominium by means of a revindicatory action, and not by an action of unlawful detainer. This might result in a violation of the property rights of the state, of some township, or of a private individual, over which rights neither the administrative departments nor the contentious administrative courts have jurisdiction. It is a fact, and no one has contended the contrary, that this is not a case of a contract made by the administration for the lease of some administrative service or public work, but, if anything, is a contract between the towns of Cainta and Antipolo which goes back to a very remote periodabout the year 1600. But, however that may be, the only thing which appears from the record is that Antipolo has been exercising the right of the enjoyment of 92 quinones of land, subject to the payment of 1 real per balita, or the sum total of 115 pesos per annum. It is well settled, as a matter of administrative practice, that the jurisdiction conferred by the former law and by the law of September 13 (in the Philippines of November 23), 1888, upon contentious administrative courts, for the purpose of taking cognizance of questions concerning the fulfillment, interpretation, rescission, and effects of contracts entered into by the administration, is limited to contracts which have for their purpose a public service or other works of this class. (Judgment of the supreme court of Spain of December 12, 1890.) For this same reason, in another judgment of November 6, 1891, the contentious administrative court of Spain set aside the decision and all the proceedings, in a contentious suit brought concerning the lease of a building by the owner to the treasury department of the Philippines to be used by the supreme court of Manila, and held that it was settled by the decisions of the court that questions of jurisdiction are of public interest.and may be raised at any stage of the case, and that the fact that the complaint has been admitted in a contentious administrative court is not an obstacle, for to so regard the admission of a complaint would imply an extension of jurisdiction contrary to'the law and to the nature of the thing in litigation. Applying these principles to the questions in this case, the complaint filed in the contentious administrative court is authorized by the law cited, of November 23, 1888, in article 1, but the subject-matter of the litigation is not. Under the provisions of article 4, paragraph 2, the contentious administrative courts are without jurisdiction to try issues of a civil or criminal character which correspond to the ordinary jurisdiction, and cases resulting from the disregard of civil rights are regarded as of a civil character and as pertaining to the jurisdiction of the ordinary courts. The sixth paragraph of the complaint reads as follows: "In the gubernative proceedings, and doubtless by reason of a lamentable error, a question entirely foreign to its jurisdiction has been decided. The community of Cainta, claiming the ownership to the ninety-two quinones of land in question, has brought a revindicatory action against the present possessor of these lands, to wit, my client, the community of Antipolo. Counsel is unaware of any law whatever Avhich confers judicial authority upon the central office of the civil administration, and it is a matter which will warrant no discussion that the ordinany courts alone are invested with authority to take cognizance of complaints in which actions concerning ownership or possession are brought." To this allegation neither the fiscal of the contentious administrative court nor the attorney for the township of Cainta has made reply. This lack of jurisdiction can not have been unknown either to the central office of the civil administration or to the township of Cainta.

Pablo de la Cruz, himself the representative of the township of Cainta, on June 10, 1891, had presented to the central office of civil administration a petition praying for a grant of common lands, and on the 4th of November, 1892, that is to say, six months before the presentation of the petition upon which this proceeding was instituted, the first petition was decided by a decree of the Governor-General which in part reads as follows: "The rights which the petitioners claim to have to the lands alleged to have been leased in usufruct almost two hundred years ago to the inhabitants of Antipolo are based solely upon a simple copy of a deed - a document which can not be regarded as of any force whatever. Furthermore, even if this document were legal evidence, it would constitute a contract entered into between two towns, the performance of which can only be enforced by the ordinary courts, but under no circumstances by the administrative authorities." (Folio 33 of the printed record,) It is inexplicable that this department, which has been unable to grant common lands to the town of Cainta, including therein the 92 quinones enjoyed by the people of Antipolo, to the end that they might thus acquire the character of common lands, which they are supposed to have in the proceedings, should shortly after direct the delivery of these lands to the township of Cainta to the end that it might enjoy the same in plenum dominium. It follows, therefore, that the possession given the township of Cainta by virtue of the order of February 28, 1896, was wholly illegal, and that the ouster of the people of Antipolo from these lands, which they had been enjoying for a valuable consideration from time immemorial, was also illegal. By virtue thereof we declare the decision of February 28, 1896, to be void, together with all the proceedings leading up to the same, and also declare void the delivery of the lands made by the politico-military government of Morong on the 20th of March, 1896, without special condemnation as to costs. So ordered. Cooper, Willard, Mapa, and Ladd, JJ., concur. Torres and McDonough,JJ., did not sit in this case.

OSJurist.org

G.R. No. 413, February 02, 1903

JOSE FERNANDEZ, PLAINTIFF AND APPELLANT, VS. FRANCISCO DE LA ROSA, DEFENDANT AND APPELLEE. D ECIS ION
LADD, J.: The object of this action is to obtain from the court a declaration that a partnership exists between the parties, that the plaintiff has a Consequent interest in certain cascoes which are alleged to be partnership property, and that the defendant is bound to render an account of his administration of the cascoes and the business carried on with them. Judgment was rendered for the defendant in the court below and the plaintiff appealed. The respective claims of the parties as to the facts, so far as it is necessary to state them in order to indicate the point in dispute, may be briefly summarized. The plaintiff alleges that in January, 1900, he entered into a verbal agreement with the .defendant to form a partnership for the purchase of cascoes and the carrying on of the business of letting the same for hire in Manila, the defendant to buy the cascoes and each partner to furnish for that purpose such amount of money as he could, the profits to be divided proportionately; that in the same January the plaintiff furnished the defendant 300 pesos to purchase a casco designated as No. 1515, which the defendant did purchase for 500 pesos of Dona Isabel Vales, taking the title in his own name; that the plaintiff furnished further sums aggregating about 300 pesos for repairs on this casco; that on the fifth of the folloAving March he furnished the defendant 825 pesos to purchase another casco designated as No. 2089, which the defendant did purchase for 1,000 pesos of Luis R. Yangco, taking the title to this casco also in his own name; that in April the parties undertook to draw up articles of partnership for the purpose of embodying the same in an authentic document, but that the defendant having proposed a draft of such articles which differed materially from the terms of the earlier verbal agreement, and being unwilling to include casco No.2089 in the partnership, they were unable to come to any understanding and no written agreement was executed; that the defendant having in the meantime had the control and management of the two cascoes, the plaintiff made a demand for an accounting upon him, which the defendant refused to render, denying the existence of the partnership altogether. The defendant admits that the project of forming a partnership in the casco business in which he was already engaged to some extent individually was discussed between himself and the plaintiff in January, 1900, and earlier, one Marcos Angulo, who was a partner of the plaintiff in a bakery business, being also a party to the negotiations, but he denies that any agreement was ever consummated. He denies that the plaintiff furnished any money in January, 1900, for the purchase of casco No. 1515, or for repairs on the same, but claims that he borrowed 300 pesos on his individual account in January from the bakery firm, consisting of the plaintiff, Marcos Angulo, and Antonio Angulo. The 825 pesos, which he admits he received from the plaintiff March 5, he claims was for the purchase of casco No. 1515, which he alleged was bought March 12, and he alleges that he never received anything from the defendant toward the purchase of casco No. 2089. He claims to have paid, exclusive of repairs, 1,200 pesos for the first casco and 2,000 pesos for the second one. The case comes to this court under the old procedure, and it is therefore necessary for us the

review the evidence and pass upon the facts. Our general conclusions may be stated as follows: (1) Dona Isabel Vales, from whom the defendant bought casco No. 1515, testifies that the sale was made and the casco delivered in January, although the public document of sale was not executed till some time afterwards. This witness is apparently disinterested, and we think it is safe to rely upon the truth of her testimony, especially as the defendant, while asserting that the sale was in March, admits that he had the casco taken to the ways for repairs in January. It is true that the public document of sale was executed March 10, and that the vendor declares therein that she is the owner of the casco, but such declaration does not exclude proof as to the actual date of the sale, at least as against the the plaintiff, who was not a party to the instrument. (Civil Code, sec. 1218.) It often happens, of course, in such cases, that the actual sale precedes by a considerable time the execution of the formal instrument of transfer, and this is what we think occurred here. (2) The plaintiff presented in evidence the following receipt: "I have this day received from D. Jose Fernandez eight hundred and twenty-five pesos for the cost of a casco which we are to purchase in company. Manila, March 5, 1900. Francisco de la Rosa." The authenticity of this receipt is admitted by the defendant. If casco No. 1515 was bought, as we think it was, in January, the casco referred to in the receipt "which the parties "are to purchase in company" must be casco No. 2089, which was bought March 22. We find this to be the fact, and that the plaintiff furnished and the defendant received 825 pesos toward the purchase of this casco, with the understanding that it was to be purchased on joint account. (3) Antonio Fernandez testifies that in the early part of January, 1900, he saw Antonio Angulo give the defendant, in the name of the plaintiff, a sum of money, the amount of which he is unable to state, for the purchase of a casco to be used in the plaintiff's and defendant's business. Antonio Angulo also testified, but the defendant claims that the fact that Angulo was a partner of the plaintiff rendered him incompetent as a witness under the provisions of article 643 of the then Code of Civil Procedure, and without deciding whether this point is well taken, we have discarded his testimony altogether in considering the case. The defendant admits the receipt of 300 pesos from Antonio Angulo in January, claiming, as has been stated, that it was a loan from the firm. Yet he sets up the claim that the 825 pesos which he received from the plaintiff in March were furnished toward the purchase of casco No. 1515, thereby virtually admitting that that casco was purchased in company with the plaintiff. We discover nothing in the evidence to support the claim that the 300 pesos received in January was a loan, unless it may be the fact that the defendant had on previous occasions borrowed money from the bakery firm. We think all the probabilities of the case point to the truth of the evidence of Antonio Fernandez as to this transaction, and we find the fact to be that the sum in question was furnished by the plaintiff toward the purchase for joint ownership of casco No. 1515, and that the defendant received it with the understanding that it was to be used for this purpose. We also find that the plaintiff furnished some further sums of money for the repair of this casco. (4) The balance of the purchase price of each of the two cascoes over and above the amount contributed by the plaintiff was furnished by the defendant. (5) We are unable to find upon the evidence before us that there was any specific verbal agreement of partnership, except such as may be implied from the facts as to the purchase of the casco.

(6) Although the evidence is somewhat unsatisfactory upon this point, we think it more probable than otherwise that no attempt was made to agree upon articles of partnership till about the middle of the April following the purchase of the caseoes. (7) At some time subsequently to the failure of the attempt to agree upon partnership articles and after the defendant had been operating the cascoes for some time, the defendant returned to the plaintiff 1,125 pesos, in two different sums, one of 300 and one of 825 pesos. The only evidence in the record as to the circumstances under which the plaintiff received these sums is contained in his answers to the interrogatories proposed to him by the defendant, and the whole of his statement on this point may properly be considered in determining the fact as being in the nature of an indivisible admission. He states that both sums were received with an express reservation on his part of all his rights as a partner. We find this to be the fact. Two questions of law are raised by the foregoing facts: (1) Did a partnership exist between the parties? (2) If such partnership existed, was it terminated as a result of the act of the defendant in receiving back the 1,125 pesos? (1) "Partnership is a contract by which two or more persons bind themselves to contribute money, property, or industry to a common fund, with the intention of dividing the profits among themselves." (Civil Code, art. 1665.) The essential points upon which the minds of the parties must meet in a contract of partnership are, therefore, (1) mutual contribution to a common stock, and (2) a joint interest in the profits. If the contract contains these two elements the partnership relation results, and the law itaelf fteefc the incidents of this relation if the parties fail to do so. (Civil Code, sees. 1689, 1695.) We have found as a fact that money was furnished by the plaintiff and received by the defendant with the understanding that it was to be used for the purchase of the cascoes in question. This establishes the first element of the contract, namely, mutual contribution to a common stock. The second element, namely, the intention to share profits, appears to be an unavoidable deduction from the fact of the purchase of the cascoes in common, in the absence of any other explanation of the object of the parties in making the purchase in that form, and,. it may be added, in view of the admitted fact that prior to the purchase of the first casco the formation of a partnership had been a subject of negotiation between them. Under other circumstances the relation of joint ownership, a relation distinct though perhaps not essentially different in its practical consequence from that of partnership, might have been the result of the joint purchase. If, for instance, it were shown that the object of the parties in purchasing in company had been to make a more favorable bargain for the two cascoes than they could have done by purchasing them separately, and that they had no ulterior object except to effect a division of the common property when once they had acquired it, the affectio societatis would be lacking and the parties would have become joint tenants only; but, as nothing of this sort appears in the case, we must assume that the object of the purchase was active use and profit and not mere passive ownership in common. It is thus apparent that a complete and perfect contract of partnership was entered into by the parties. This contract, it is true, might have been subject to a suspensive condition, postponing its operation until an agreement was reached as to the respective participation of the partners

in the profits, the character of the partnership as collective or en comandita , and other details, but although it is asserted by counsel for the defendant that such was the case, there is little or nothing in the record to support this claim, and the fact that the defendant did actually go on and purchase the boats, as it would seem, before any attempt had been made to formulate partnership articles, strongly discountenances the theory. The execution of a written agreement was not necessary in order to give efficacy to the verbal contract of partnership as a civil contract, the contributions of the partners not having been in the form of immovables or rights in immovables. (Civil Code, art. 1667.) The special provision cited, requiring the execution of a public writing in the single case<mentioned and dispensing with all formal requirements in other cases, renders inapplicable to this specif of contract the general provisions of article 1280 of the Civil Code. (2) The remaining question is as to ihe legal effect of the acceptance by the plaintiff of the money returned to him by the defendant after the definitive failure of the attempt to agree upon partnership articles. The amount returned fell short, in our view of the facts, of that which the plaintiff had contributed to the capital of the partnership, since it did not include the sum which he had furnished for the repairs of casco No. 1515. Moreover, it is quite possible, as claimed by the plaintiff, that a profit may have been realized from the business during the period in which the defendant had been administering it prior to the return of the money, and if so he still retained that sum in his hands. For these reasons the acceptance of the money by the plaintiff did not have the effect of terminating the legal existence of the partnership by converting it into a societas leonina, as claimed by counsel for the defendant. Did the defendant waive his right to such interest as remained to him in the partnership property by receiving the money? Did he by so doing waive his right to an accounting of the profits already realized, if any, and a participation in them in proportion to the amount he had originally contributed to the common fund? Was the partnership dissolved by the "will or withdrawal of one of the partners" under article 1705 of the Civil Code? We think these questions must be answered in the negative. There was no intention on the part of the plaintiff in accepting the money to relinquish his rights as a partner, nor is there any evidence that by anything that he said or by anything that he omitted to say he gave the defendant any ground whatever to believe that he intended to relinquish them. On the contrary he notified the defendant that he waived none of his rights in the partnership. Nor was the acceptance of the money an act which was in itself inconsistent with the continuance of the partnership relation, as would have been the case had the plaintiff withdrawn his entire interest in the partnership. There is, therefore, nothing upon which a waiver, either express or implied, can be predicated. The defendant might have himself terminated the partnership relation at any time, if he had chosen to do so, by recognizing the plaintiff's right in the partnership property and in the profits. Having failed to do this he can not be permitted to force a dissolution upon his copartner upon terms which the latter is unwilling to accept. We see nothing in the case which can give the transaction in question any other aspect than that of the withdrawal by one partner with the consent of the other of a portion of the common capital. The result is that we hold and declare that a partnership was formed between the parties in January, 1900, the existence of which the defendant igrXfund to recognize; that cascoes Nos, 1515 and 2089^<Sonstitute partnership property, and that the plaintiffs entitled to an accounting of the defendant's administration of such property, and of the profits derived therefrom. This declaration does not involve an adjudication as to any disputed items of the partnership account.

The judgment of the court below will be reversed without costs, and the record returned for the execution of the judgment now rendered. So ordered. Arellano, C. J., Torres, Cooper and Mapa, JJ., concur. Willard, J., dissenting.

ON MOTION FOR A REHEARING MAPA, J.: This case has been decided on appeal in favor of the plaintiff, and the defendant has moved for a rehearing upon the following grounds: 1. Because that part of the decision which refers to the existence of the partnership which is the object of the complaint is not .based upon clear and decisive legal grounds; and 2. Because, upon the supposition of the existence of the partnership, the decision does not clearly determine whether the juridical relation between the partners suffered any modification in consequence of the withdrawal by the plaintiff of the sum of 1,125 pesos from the funds of the partnership, or if it continued as before, the parties being thereby deprived, he alleges, of one of the principal bases for determining with exactness the amount due to each. With respect to the first point, the appellant cites the fifth conclusion of the decision, which is as follows: "We are unable to find from the evidence before us that there was any specific verbal agreement of partnership, except such as may be implied from the facts as to the purchase of the cascoes." Discussing this part of the decision, the defendant says that, in the judgment of the court, if on the one hand there is no direct evidence of a contract, on the other its existence can only be inferred from certain facts, and the defendant adds that the possibility of an inference is not sufficient ground upon which to consider as existing what may be inferred to exist, and still less as sufficient ground for declaring its efficacy to produce legal effects. This reasoning rests upon a false basis. We have not taken into consideration the mere possibility of an inference, as the appellant gratuitously states, for the purpose of arriving at a conclusion that a contract of partnership was entered into between him and the plaintiff, but have considered the proof which is derived from the facts connected with the purchase of the cascoes. It is stated in the decision that with the exception of this evidence we find no other which shows the making of the contract. But this does not mean (for it says exactly the contrary) that this fact is not absolutely proven, as the defendant erroneously appears to think. From this data we infer a fact which to our mind is certain and positive, and not a mere possibility; we infer not that it is possible that the contract may have existed, but that it actually did exist. The proofs constituted by the facts referred to, although it is the only evidence, and in spite of the fact that it is not direct, we consider, however, sufficient to produce such a conviction, which may certainly be founded upon any of the various classes of

evidence which the law admits. There is all the more reason for its being so in this case, because a civil partnership may be constituted in any form, according to article 1667 of the Civil Code, unless real property or real rights are contributed to itthe only case of exception in which it is necessary that the agreement be recorded in a public instrument. It is of no importance that the parties have failed to reach an agreement with respect to the minor details of contract. These details pertain to the accidental and not to the essential part of the contract. We have already stated in the opinion what are the essential requisites of a contract of partnership, according to the definition of article 1665. Considering as a whole the probatory facts which appears from the record, we have reached the conclusion that the plaintiff and the defendant agreed to the essential parts of that contract, and did in fact constitute a partnership, with the funds of which were purchased the cascoes with which this litigation deals, although it is true that they did not take the precaution to precisely establish and determine from the beginning the conditions with respect to the participation of each partner in the profits or losses of the partnership. The disagreements subsequently arising between them, when endeavoring to fix these conditions, should not and can not produce the effect of destroying that which has been done, to the prejudice of one of the partners, nor could it divest his rights under the partnership which had accrued by the actual contribution of capital which followed the agreement to enter into a partnership, together with the transactions effected with partnership funds. The law has foreseen the possibility of the constitution of a partnership without an express stipulation by the partners upon those conditions, and has established rules which may serve as a basis for the distribution of profits and losses among the partners. (Art. 1689 of the Civil Code.) We consider that the partnership entered into by the plaintiff and the defendant falls within the provisions of this article. With respect to the second point, it is obvious that upon declaring the existence of a partnership and the right of the plaintiff to demand from the defendant an itemized accounting of his management thereof, it was impossible at the same time to determine the effects which might have been produced with respect to the interest of the partnership by the withdrawal by the plaintiff of the sum of 1,125 pesos. This could only be determined after a liquidation of the partnership. Then, and only then, can it be known if this sum is to be charged to the capital contributed by the plaintiff, or to his share of the profits, or to both. It might well be that the partnership has earned profits, and that the plaintiff's participation therein is equivalent to or exceeds the sum mentioned. In this case it is evident that, notwithstanding that payment, his interest in the partnership would still continue. This is one case. It would be easy to imagine many others, as the possible results of a liquidation are innumerable. The liquidation will finally determine the condition of the legal relations of the partners inter se at the time of the withdrawal of the sum mentioned. It was not, nor is it possible to determine this status a priori without prejudging the result, as yet unknown, of the litigation. Therefore it is that in the decision no direct statement has been made upon this point. It is for the same reason that it was expressly stated in the decision that it " does not involve an adjudication as to any disputed item of the partnership account." The contentions advanced by the moving party are so evidently unfounded that we can not see the necessity or convenience of granting the rehearing prayed for, and the motion is therefore denied. Arellano, C. J., Torres, Cooper, and Ladd, JJ., concur. Willard and McDonough, JJ., did not sit in this case.

OSJurist.org

G.R. No. 414, November 09, 1903

HONGKONG BANK, PLAINTIFFS AND APPELLANTS, VS. JURADO & CO., DEFENDANTS AND APPELLEES. D ECIS ION
WILLARD, J.: By the order of April 16, 1895, Don Ricardo ftegidor was sxpressly included in the bankruptcy as a general partner of Jurado & Co. No order setting aside this order has been called to the court's attention, except the order of December 12, 1898, dismissing the entire proceeding. The order of April 6, 1898, upon which Seiior Regidor relies, simpty decided that his motion, in which he claimed that he was not properly included in the bankruptcy, should come up for hearing in the ordinary way. It expressly stated that the merits of said motion were not passed upon. We have seen nothing in the progress of this suit to show that this order of April 16,1895, was not correct. On the contrary, it appears from the records of the court that, in the hearing on October 15,1903, Seflor Regidor as one of such partners, in open court, appointed an attorney to argue for the firm the motion then before this court. As a partner of Jurado & Co. he is represented by the firm and has no right to appear as an individual separate from the firm. If he has this right, then every partner would have the same right. We see.nothing in the case to indicate that his rights will not be protected by the lawyers whom the firm may see fit to employ. His motion to be made a codefendant is denied. Torres, Cooper, Mapa, McDonough, and Johnson, JJ., concur. Arellano, C. J., did not sit in this case. ON SUGGESTION OF DEATH OF LIQUIDATOR OF DEFENDANT FIRM. WILLARD, J.: In this case the plaintiff, in April, 1903, made a motion, that the court assign a day for the hearing of the case. This motion was resubmitted on the 15th day of October, 1903, and is now before us for decision. The firm of Jurado & Co. being in liquidation, Don Basilio Teodoro, said by the defendants to be the liquidator, died on July 12, 1903. This fact can not interfere with the progress of this suit. With the appointment of a new liquidator the court has nothing to do. The defendants are Jurado & Co. and not the liquidator. If they do not see fit to appoint a new liquidator, or to select attorneys in place of those who it is said were appointed only by the deceased liquidator, any notices required to be served upon the defendants by the plaintiff, or usually given by the clerk, can be served upon and given to any partner of Jurado & Co. who may be found in the Islands. The court, on March 8, 1902, made an order providing the procedure to be pursued in the case. If this order had been followed by the parties, it would have resulted in a trial of the case on its merits in August, 1902. It appears that the proofs, pleadings, and brief of the plaintiffs have been filed, but no proofs nor brief of the defendant have been presented. It is ordered that the defendants deliver to the plaintiffs on or before the 15th day of December, 1903, three copies

of their printed pleadings, proofs, and brief, and file ten copies thereof in the clerk's office on or before that date, and that this case be placed on the calendar of the January term, 1904, for hearing on its merits. Torres, Cooper, Mapa, McDonough, and Johnson, JJ., concur. Arellano, C. J., did not sit in this case.

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G.R. No. 448, April 17, 1903

THE UNITED STATES, COMPLAINANT AND APPELLEE, VS. PHILIP K. SWEET, DEFENDANT AND APPELLANT. D ECIS ION
LADD, J.: The defendant in July, 1901, was connected with the Police Department of the city of Manila, under the Provost-Marshal-General, his position being that of Chief of the Secret Service Bureau. One Marcelino San Pedro and certain other individuals had been arrested upon suspicion of being concerned in an insurrectionary conspiracy in Pasig, and it was supposed that San Pedro had in his possession or under his control arms, ammunition, money, and supplies which had been collected for the purposes of the movement. An investigation Avas accordingly instituted at the police station, and, in the course thereof, San Pedro having denied all knowledge as to the conspiracy, the defendant, for the purpose of compelling him to disclose the whereabouts of the arms, struck him several times with a whip, drawing blood, as we think the evidence shows, but not injuring him so severely as to incapacitate him from working or to necessitate medical attendance. Nothing was shown by the defense which can constitute a justification or excuse for the assault. The complaint was for lesiones menos graves under article 418 of the Code. The character of the injuries inflicted was not such as to bring the case within this article; it falls within article 588, No. 1, which punishes as a misdemeanor the infliction of injuries "which do not prevent the person injured from devoting himself to his customary labors, and do not require medical attendance." The defendant was convicted under article 588, No. 1, of the Penal Code. This was in accordance with General Orders, No. 58, section 29. In the application of penalties in cases of misdemeanor, the discretion of the court is not controlled by the rules of the Code as to aggravating and extenuating circumstances. (Art. 605). That discretion was, we think in the present case, properly exercised, the sentence being fifteen days of arresto and reprension, the maximum of the penalty fixed by the law for the offense. The judgment is affirmed with costs. Let the cause be returned to the court below for the execution of the judgment. Arellano, C J., Torres, Cooper, Willard, and Mapa, JJ., concur. McDonough, J., did not sit in this case.

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G.R. No. 453, March 12, 1903

ANTONIO VENTURA, PLAINTIFF AND APPELLANT, VS. PAUL A. MILLER, DEFENDANT AND APPELLEE. D ECIS ION
WILLARD, J.: On September 1, 1899, Dona Eumelia Eleizegui, widow of Revilla, leased the house in question to Dona Joseftna Reynoso, wife of Paul A. Miller, for two years from said date at the rent of 26. pesos a month, payable during the first six days of each month. No mention was made in the lease of any future sale of the property. It was never inscribed in the registry of property. On December 6, 1900, Dona Eumelia sold the property to the plaintiff. No mention of the lease was made in the deed and the grantor stated therein that the property was free from all incumbrance. On December 14, 1900, the plaintiff notified the tenant that he must vacate the house at the end of the month or pay 80 pesos a month thereafter. The tenant refused to either pay this increased rent or to vacate the premises and prior to January 11, 1901, deposited with a notary the rent for December and January at the rate of 26 pesos a month. The plaintiff took from the notary the rent for December under the protest contained in the receipt which she then gave, but refused to take the rent for January. On March 11, 1901, she commenced this action for unlawful detainer against Miller and his wife. It was defended by Dona Eumelia, the lessor. She claimed that there was a verbal agreement between her and the plaintiff at the time of the sale to the effect that the lease should be respected. The evidence in the case does not show this. She also claimed that by accepting the December rent the plaintiff recognized the validity of the lease. The sale was made on December 6. The matter of the rent for this month was the subject of a verbal contract between the seller and purchaser, and the seller agreed that the purchaser might collect it. Under all the circumstances in the case the acceptance of this rent by the plaintiff in January after the notices given by her in December did not bind her to respect the lease. She had the right to terminate it (art. 1571, Civil Code), and the judgment should have been in her favor. The judgment of the court below is reversed and judgment is ordered for the plaintiff directing the eviction asked by the plaintiff, with costs of the first instance against the defendants and without especial order as to the costs of this instance. Arellano, C. J., Cooper, Mapa, and Ladd, JJ., concur. Torres, J., did not sit in this case.

OSJurist.org

G.R. No. 506, February 16, 1903

THE UNITED STATES, COMPLAINANT AND APPELLANT, VS. THE MUNICIPAL COUNCIL OF SANTA CRUZ DE MALABON, DEFENDANT AND APPELLEE. D ECIS ION
ARELLANO, C.J.: The Philippine Sugar Estates Development Company, Limited, a corporation, domiciled in Manila, Calle Anloague No. 89, as stated by one of its representatives (record, p. 18), in a petition filed in a voluntary jurisdiction proceeding instituted with respect to judicial possession, by a supplementary prayer asked that the transcript of certain minutes be sent to the provincial fiscal in order that he might file the corresponding information. According to the statement contained in this supplementary prayer the attached copy of the minutes of a meeting of the municipal council of Santa Cruz, Cavite, "shows the resolution adopted by the said council to impose upon landholders on the hacienda a tax of three pesos on each cavan of seed produced by the lands cultivated by them, for the purpose of paying the expenses of the suit, and the appointment of a collector and treasurer of this tax." This supplementary petition and the attached copy of the minutes were made the basis of a separate proceeding in the nature of a preliminary investigation. The provincial fiscal did not think proper to file an information, as he did not regard the facts.set forth in the paper referred to as constituting the offense covered by the articles of the Penal Code cited by the representative of the corporation. The judge dismissed the complaint in the preliminary investigation. On the 23d of September, 1901, when the representative of the corporation appeared in court to file the formal complaint prepared by him, notice was served upon him of the order dismissing the proceeding. On the same day he appealed against this order, relying upon articles 43 and 44 of General Orders, No. 58. Under the American system the prosecution of public offenses is reserved to the representative of the Government to such an extent that the individual citizen can not bring an action for that purpose. He is protected by his right to bring a personal action for the damage which the commission of a crime may occasion him. As to him the crime is but the source of a civil obligation. General Orders, No. 58, series of 1900, which has established the principles and rules of criminal procedure peculiar to that system of legislation, as a concession to the period of transition from one system of legislation to another, has compromised only with the private penal action of the injured party, but with that of the latter alonenot with the action which under the former law on, the subject of criminal procedure might be brought by any citizen who might desire to aid the action of the Government. It was necessary to maintain the private penal action of the injured party himself, in consequence of the continued operation of the Penal Code, for two reasons: First, because, on principle, the declaration of the criminal liability carries with it the declaration of the resulting civil obligation; second, because there are crimes which can not be prosecuted other than at the formal instance.of the person injured. For this reason, under the heading "rights of the person injured by the offense," article 107 was drawn, according to which, "the privilege now secured by law to the person claiming to be injured by the commission of an offense to take pjirt in the prosecution of the offense and recover damages for the injury sustained by reason of the same shall not be abridged by the

provisions of this order." It is evident that the special and accentuated inclusion of the right of the person injured, not recognized in the general principles which form the basis of this procedural system, is the most express exclusion of any other right, such as that arising from the popular penal action, not recognized in the American system. Until it is made to appear that the complainant corporation, domiciled in Manila, forms part of the inhabitants of Santa Cruz, Cavite, upon whom might fall the burden of this so-called illegal exaction, it has not been shown that the corporation has been or might be injured by the commission of the act denounced as a crime; consequently it has no right to bring a prosecution for such an act, nor to appeal against the denial of such a right, or the refusal to regard as a crime an act which in its opinion constitutes such an offense. The appeal taken is therefore dismissed, with costs. So ordered. Torres, Cooper, Willard, Mapa, and Ladd, JJ., concur.

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G.R. No. 559, March 14, 1903

MANUEL BARRIOS Y BARREDO, PLAINTIFF AND APPELLANT, VS. MARIA PASCUALA DOLOR ET. AL., DEFENDANTS AND APPELLEES. D ECIS ION
MAPA, J.: The plaintiff has brought an action for the recovery from the defendants, heirs of the late Don Ciriaco Demonteverde, of one-half of a sugar estate and the stock thereon, which he claims to have purchased from the said Don Ciriaco Demonteverde. In support of his contention as to the law of the case he attached to the complaint a public instrument which appears to have been executed by himself and Demonteverde, February 3, 1883, in which, according to the plaintiff, a stipulation is made for a contract of partnership for the operation of the said estate, and, furthermore, a community of ownership is established with respect to the estate in favor of the two parties to this instrument. It does not appear that this instrument has been recorded in the registry of property. Service of the complaint having been had on the defendants, Dona Maria Pascuala Dolor raised an incidental issue as a previous question, praying that the instrument referred to be ruled out of evidence on the ground that it had not been recorded in the registry of property, and that it be returned to the plaintiff without leaving in the record any transcript or copy thereof or extract therefrom, resting this contention upon article 389 of the Mortgage Law. This motion was granted by the judge by order of the 24th of March, 1898, against which the plaintiff appeals. The article cited is literally as follows: "From the time this law goes into operation the ordinary and special courts and the Government offices will not admit any document or instrument by which rights subject to inscription according to this law are constituted, transmitted, acknowledged, modified, or extinguished, unless recorded in the register, if the object of the presentation of such document is to enforce, to the prejudice of a third person, a right which should have been recorded." In view of the latter part of this article, the question has been raised in this incidental issue whether the defendants, as heirs of Don Ciriaco Demonteverde, can and should be regarded as third persons for the purposes of the Mortgage Law, with respect to the contract executed by Demonteverde and evidenced by the instrument above mentioned. The Mortgage Law itself, in article 27, gives the definition of a third person, which is, "he who has not taken part in the act or contract recorded." According to this the parties to a contract are not third persons; consequently, Demonteverde was not a third person with respect to the contract entered into by him and evidenced by the instrument in question. He not being such a third person, neither can his heirs be so regarded, nor should they be so regarded with respect to the same contract, because they are only the juridical continuation of his personality, they having been surrogated, by virtue of the right of succession, to all his rights and obligations, in accordance with provisions of article 661 of the Civil Code.

This doctrine, which is a mere consequence of the general principles of law, has received express sanction in the decisions of the supreme court of Spain. In its judgment of the 27th of January, 1881, the latter held that acts, both in court and out, consented to by the person who lawfully took part therein, are effective with respect to the heirs or successors of such parties, who are not to be regarded as third persons for this purpose; and in its judgment of the 28th of January, 1892, it was decided by the same court that heirs are nothing more than the continuation of the legal personality of their decedent and can not be considered in any degree as third persons within the meaning of article 27 of the Mortgage Law. The defendants, therefore, are not third persons with respect, to the contract entered into by their decedent, Don Ciriaco Demonteverde, in the instrument of February 3, 1883, and they therefore can not avail themselves of the prohibition contained in article 389 of the Mortgage Law for the purpose of opposing the admission of this instrument as evidence in the case, because not recorded in the registry of property. This prohibition was established solely and exclusively in favor of those who, within the meaning of that law, are third persons. Were it otherwise, the position of the* defendants would be superior to that of the person from whom they derived their rights, because lie, not being a third person, could not set up such an exception. This would certainly be most illogical from a legal point of view, in view of the fact that the heir is, as above stated, a mere continuation of the civil personality of his decedent. The defendants not being third persons, it becomes unnecessary to decide whether the instrument referred to is or is not subject to inscription in accordance with article 2 of the Morignge Law, because, at all events, and however this may he, the mere failure to record the instrument in the registry of property can not be a bar to its admission as evidence in this case, as the action is not brought against a third person in the sense of this word as used in the law referred to. Consequently we reverse and annul the order of the court below, overruling the motion made on behalf of Dona Maria Pascuala Dolor, without special condemnation ,as to the costs of either instance. So ordered. Arellano, C. J., Cooper, Willard, and Ladd, JJ., concur. Torres, J., did not sit in this case.

OSJurist.org

G.R. No. 570, January 23, 1903

ROBERTO ROA Y ALBURO, PLAINTIFF AND APPELLEE, VS. NICASIO VELOSO, DEFENDANT AND APPELLANT. D ECIS ION
WILLARD, J.: In March, 1876, Don Antonio Roa presented to the Court of First Instance in Cebu a petition asking an extension of the time for the payment of his debts. A meeting of his creditors was accordingly called, the written proposition submitted to them by him was accepted by them, and approved by the court. The proceedings were taken in strict conformity with the provisions of articles 506 to 518 of the Ley de Enjuiciamiento Civil of 1855. Although that law was not in force in these Islands the court considered it as legal doctrine. The proposition accepted by the required majority of the creditors provided for an extension for five years; that Don Antonio Samson should guarantee the debts of Don Antonio Roa, and should have the administration of the latter's property during the five years, or such time as might be necessary for the payment of the debts. All of the property both of Roa and Samson was mortgaged to secure the performance of the obligations. The sixth clause of the proposition was as follows: "Don Antonio Samson may acquire for himself, for two-thirds of the estimated value expressed in the preceeding clause, the realty and all other property he may select, and as owner thereof he may convey or mortgage, but shall be a guarantor for the amount thereof and shall be liable to the creditors; whatever may be left over after the payment of all the credits which Samson may guarantee shall belong to Don Antonio Roa, and shall be devoted to the payment of his indebtedness to Dona Francisca Casa de Roa." The order of the court approving the action of the creditors directed the property to be delivered to Antonio Samson. Don Antonio Roa died in February, 1886. On May 19 of the same year Don Antonio Samson by a public writing conveyed the estate in question to the defendant. The purchase price was a debt of the defendant against Roa for $1,800, which amounted at the date of the conveyance, with interest, to $4,800. The estate belonged to Antonio Roa, was included in the inventory of his property which he filed with his petition for an extension, and was appraised therein at $24,809.64. In 1896 the plaintiff, a grandson and heir of Don Antonino Roa, commenced this action against the defendant, claiming that the conveyance of 1886 was insufficient to pass the title to the defendant, and asking that the estate be delivered to him for himself and his coheirs. Judgment was rendered in the court below annul ing that conveyance, canceling the inscription, and directing the estate to be delivered not to the plaintiff but to the creditors. From this judgment the defendant appealed. The determination of the appeal turns, in our opinion, upon the proper construction of clause 6, above quoted. We construe that clause as consisting of two distinct parts. By it Don Antonio Samson was given the right to buy for himself this ar any other property of Roa for two-thirds of the value placed upon it in the inventory. This provision is complete in itself, and it was intended to give Samson a right which otherwise he would not have, no administrator being

able to buy for himself the property which he administers, a prohibition now contained in article 1459 of the Civil Code. The remainder of this clause is also complete in itself. It gives to Samson the right to sell, as owner, any of the property, accounting to the creditors for the price received. The construction claimed for by the appellee can not be sustained. He contends that the second part of the clause is a continuation of the first, and that it is only those goods which he has elected to take for himself at two-thirds of their appraised value that he has the right to sell as owner. (1) Such a construction would render useless the second part of the clause. If he had acquired for himself this or any other estate at two-thirds of its value and had paid for it he would have had the right to dispose of it as owner, and no declaration to that effect was needed in the agreement, (2) The words " su importe " are inconsistent with such construction. If they mean the two-thirds of the appraised value they are unnecessary, for it was of course assumed that Samson must answer to the creditors for said purchase price if he elected to take any property upon those terms. If they refer to the price received in a sale by Samson to a third person they would render the right of purchase given in the first part of no value; for, if Samson took this estate at two-thirds of its value, that is, $16,000, and afterwards sold it for $20,000, he would have to account to the creditors for the whole $20,000. If he took if for $16,000 and sold it for $8,000 he still would have to account to the creditors for $16,000, for he had no right to take it for himself at all except on the payment of two-thirds of its value. The construction thus eliminates the words " para si " from the contract. (3) The clause requiring what remains to be returned to Roa also indicates that the property was not to be kept intact, but that Samson was to have the right to sell it to pay the debts. The language of the conveyance of 1886, delivered to the defendant, is entirely consistent with the view which we have taken of this clause. The grantor is therein described as follows: "The said Don Antonio Samson in bis said capacity as administrator, liquidator, and surety of the said Antonio Roa,and availing himself of the authority conferred upon him by the sixth clause of the said proposition * * *." There is nothing whatever in the record to show what the state of accounts is between Samson and Roa or how many of the creditors have been paid. It may be that the plaintiff or the creditors have the right to demand of the heirs of Samson a statement as to his administration of the goods of Roa. But whatever rights of that kind they may have, they can exercise none versus the defendant. Under our construction of clause 6 Samson as administrator had the right to dispose of this estate. The conveyance of 1886 was sufficient at that time to transfer the title to the defendant. He is, therefore, the owner of the property. The judgment is reversed and the action dismissed without costs. Arellano, C. J., Torres, Cooper, Mapa, and Ladd, JJ., concur.

OSJurist.org

G.R. No. 571, February 14, 1903

THE UNITED STATES, COMPLAINANT AND APPELLANT, VS. THOMAS E. KEPNER, DEFENDANT AND APPELLEE. D ECIS ION
ARELLANO, C.J.: Under Genera! Orders, No. 58, series 1900, which is the law of criminal procedure in force, the Government has the right of appeal from all judgments of acquittal rendered in criminal cases. The letter and spirit of the order itself are the most conclusive argument in support of this right on the part of the Government. Its letter, because this right is thus expressly declared in section 43. "From all final judgments," it says, "of the Courts of First Instance or courts of similar jurisdiction, and in all cases in which the law now provides for appeals * * * an appeal may be taken to the Supreme Court * * *." If an appeal can be taken against all final judgments, the judgment of acquittal being also final judgment, it is evident that an appeal lies against a judgment of acquittal. This law grants the right of appeal in all cases in which it was formerly allowed by the local "existing laws," declared in force by section 1 of said General Orders, No. 58. If prior to this law the right of appeal in cases of acquittal was allowed, as will be more explicitly shown hereafter, now as then, and after the publication of said order, the right of appeal from judgments of acquittal will continue to be granted. Moreover, section 64 is quite plain and reads as follows: "In case of appeal after judgment, the defendant may be admitted to bail pending action on the appeal: (1) As a matter of right if the appeal is from an acquittal * * *." Under the letter of the order, then, the Government has the right of appeal from an acquittal. In its spirit, General Orders, No. 58, undoubtedly contemplates the allowance of the right of appeal from judgment of acquittal. Such phrases as that contained in section 43, to wit: "* * * in all cases in which the law now provides for appeals * * *," and the provision contained in section 50 to the effect that cases in the Supreme Court "shall thereafter take the same course as is now provided by law," or as that contained in section 107, "the privileges now secured by law to the person claiming to be injured by the commission of the crime * * *," show that the purpose of the legislator in this respect was to bring into the new law some of the provisions previously in force on the subject, and to establish a criminal procedure not entirely new, as are the majority of the provisions of General Orders, No. 58, based on principles of American law, but mixed, preserving part of the local legislation which is the principle upon which sections 50 and 107 are based. Therefore the right of the Government to appeal from a. judgment of acquittal being well founded, the motion is overruled without costs. Torres, Cooper, Willard, Mapa, and Ladd, JJ., concur.

OSJurist.org

G.R. No. 573, April 21, 1903

LA JUNTA ADMINISTRADORA DE OBRAS PIAS, PLAINTIFF AND APPELLANT, VS. RICARDO REGIDOR AND THE HONGKONG AND SHANGHAI BANKING CORPORATION, BY SUBROGATION, DEFENDANTS AND APPELLEES. DECISION OF MOTION TO SUSPEND PROCEEDINGS
WILLARD, J.: The motion of the appellee, made on the 2d of April, 1903, and argued on the 13th of April, must be denied. The appellee asks that proceedings be suspended, because of the alleged admission by the criminal branch of the former Supreme Court of a complaint presented by him charging the falsification of the document dated April 30, 1898, executed by the judge and transferring, the houses in question to the Obras Pias. When the complaint was presented the court made an order passing it to the fiscal. This was not an admission of the complaint within the meaning of article 497 of the old Code of Civil Procedure. At the request of the fiscal the criminal branch requested the civil branch that the instrument charged to be false be remitted to it. This was not an admission of the complaint within the meaning of said article 497. We may add that, apart from the fact that as the appeal taken by Regidor against the order of February 9, 1895, was admitted in one effect, that is, not suspensively, it was no legal bar to the execution of the deed of sale, in consequence of the adjudication of the property to the board of directors of the Obras Pias on the 30th of April, 1898; neither could the appeal so taken and allowed in one effect from the order of February 9, 1895, and which was abandoned by the moving party himself before it was perfected, be considered as an obstacle having the effect of invalidating that deed. Torres, Cooper, Mapa, Ladd, and McDonough, JJ., concur. Arellano, C. J., disqualified.

DECISION ON THE MERITS WILLARD, J.: The board of directors of the Obras Pias was on May 20, 1885, the owner of two mortgages on two houses numbered 40 and 40, duplicate, in Calle Magallanes, Intramuros. These mortgages were made in 1879 and 1880 by ricardo Regidor, the then owner of the houses. On said May 20, there being due and unpaid on said mortgages $12,250 and interest, the Obras Pias filed a complaint in an executive action against Sr. Regidor for the purpose of foreclosing them. That action has been pending since then and is now before us for decision. A judgment of public auction sale having been affirmed in the Audencia on an appeal by the defendant, and the action being in the via do aprcmio, in December, 1894, the Hongkong and

Shanghai Banking Corporation applied to the court to be substituted as defendant in the place of Sr. Regidor, presenting a certificate from the register of property. This certificate contained a copy of a deed executed on June 2, 1883, by Regidor to the bank. The legal effect of this instrument was a sale of the property with an agreement of adicion in diem , which expired on June 2, 1886. On December 31, 1894, the court made an order substituting the bank in the place of Sr. Regidor. He sought a rehearing of this order. This was denied him on February 9, 1895, the court holding that the effect of the deed No. 328 was to make the bank the owner of the property, and Sr. Regidor was excluded from the case. His attempts to appeal from this order which are hereinafter described were without result. The case proceeded to a public auction of the houses on August 9, 1897, at which there were no bidders, and they were, on December 14, 1897, adjudicated to the Obras Pias and a deed executed by the judge on April 30,1898, which, as we infer, was at once recorded. The Obras Pias being in possession of the property, Regidor on April 2, 1900, interposed in this executory action a complaint in an incidente of nullity asking that the order of December 31, 1894, substituting the bank as defendant and that everything done since that time be declared null. He claimed among other things that when deed No. 328 was executed, the parties thereto executed another deed, No. 326, that the two were together intended to furnish to the bank security for a credit of $20,000, which it was to give Regidor, that the debt to the bank had been paid, and that the bank never became the owner. The bank and the Obras Pias were served with this complaint, and the latter undertook to appear and oppose it, but its application was rejected for insufficiency of the power of attorney to its lawyer. Judgment was rendered by default against both parties on May 28, 1900. This judgment, while it did not in terms declare the order of December 31, 1894, null, did declare null everything by which Regidor was put out of the possession of the houses. It is unnecessary to set out the steps which the bank and the Obras Pias took in order to appeal from this judgment, all of which was unavailing in the lower court, as the Supreme Court of Justice on March 9, 1901, in recurso de queja admitted appeals by each one of the said parties in both effects. While these proceedings relating to the appeals were going on, Regidor not only had been restored to possession, but the Obras Pias had been compelled to repay to him upward of 5,000 pesos rent collected by them after the houses had been adjudicated to them. The case is now before, us for decision on these appeals and various motions presented therein. 1. At the hearing on the appeals the appellee, Sr. Regidor, objected to the appearance of Sr. Ortigas as representing the bank. This objection is without foundation. On July 23, 1900, Sr. Ortigas presented to the predecessor of this court in the recurso de queja, a power of attorney in due form, by which he was authorized to appear for the bank. No objection has ever been made to the sufficiency of this power by the appellee. Moreover, by section 26 of the present Code of Civil Procedure, no written power of attorney is now required. This section is applicable to all actions, no matter when brought, and is not restricted in its operation by section 795 of the same Code. That Sr. Ortigas was in fact

authorized to act for the bank appears from the said power, presented on July 23, 1900. 2. In his motion presented on the 31st day of December, 1902, and argued on the 12th day of January, 1903, Sr. Regidor asks us to set aside the order of the Supreme Court, dated March 9, 1901, which admitted the appeals from the judgment of May 28, 1900. The grounds stated are (1) that that court had no jurisdiction to make the order, and (2) that the recurso de queja was repealed by Act No. 75 of the Commission, approved January 22, 1901. (1) That the Supreme Court of Justice was, from July, 1900, to June, 1901, the tribunal which had jurisdiction of those recursos de queja which were properly presented to it, is unquestioned. It is not claimed that any other tribunal had that jurisdiction during that time. Having jurisdiction of such recursos, when properly brought before it, who was to decide whether they were so properly brought or not? The appellee apparently claimed that the Court of First Instance should decide whether the Supreme Court could properly take jurisdiction of such a recurso , for he insisted, in his petition presented to the Court of Binondo on August 27, 1900, that that court should retain jurisdiction of the case for practically the same reasons as those presented in the motion of December 31, 1902. This claim is without foundation. The Supreme Court of Justice was then the court of last resort in the Islands. Having jurisdiction of the matter of recursos do queja , it must, of course, decide finally whether a particular case of that kind came properly before it. Whether the decision was right or wrong is of no importance, so far as its effect is concerned. It had jurisdiction to inake the decision, and there was no higher court in which it could be corrected if erroneous. (2) Act No. 75 of the Commission did not abolish the recurso de queja . There is no clause in that law expressly so stating, and there was no repeal by implication, for the two remedies are not inconsistent with each other. This court, since its organization, has entertained recursos de queja in civil cases until the adoption of the Code of Civil Procedure, and in criminal cases, until the present time. 3. The motion for a suspension of the decision in this case that the fiscal may examine the record for the purpose of instituting criminal prosecutions, must be denied. It is said that a crime was committed by the registrar of property in his certificate of December, 1894, relating to the title of the bank to the houses in question. We have not been able to find indications of any such crime. The document No. 328 was, in any event, properly annotated in the Anotaduria of the Ayuntamiento, because it contained a mortgage upon house No. 4 in Cabildo Street. This is admitted by the appellee. That document was in fact transferred to the modern registry prior to December 19, 1894. On that day the bank presented to the registrar of property a petition stating that such a transfer had been made and asking for a certificate which should contain that document and its inscription. Pursuant to such petition the registrar, on December 19, issued the certificate in question which is claimed to be false. It contains and purports to contain nothing more than literal copies of papers which appeared in his books., The appellee concedes that these documents actually appeared upon the books, and that the copies contained in the alleged false certificate are true copies. That disposes of his claim that the certificate was false. The registrar did not certify that the bank was the owner of the property and that Regidor was not. He did not certify that the bank was in possession of the property. He did only what was asked of him, namely, to furnish true copies of documents which in fact appeared on his books. Upon this point it matters not whether the keeper of the

Libro Becerro made a mistake or not in 1883 in copying the document No. 328 in full into his book, instead of making an extract of it, as it is now claimed by the appellee he should have done. It makes no difference Avhether the document was or was not properly transferred to the modern registry. It was in fact transferred, and when the registrar in December, 1894, gave a true copy of it, he committed no crime. This motion for a suspension might have been disposed of also on the ground that no criminal complaint had been admitted, and that the appellee had in other respects not brought himself within the former law relating to this matter. But we preferred to place it on the ground that the evidence showed conclusively that the crime charged had not been committed. 4. The judgment of May 28,1900, must be reversed. (1) The incidente of nullity which resulted in this judgment, was commenced on Api'il 2, 1900. More than two years before this date, namely, on December 14, 1897, the property had been finally adjudicated to the Obras Pias at two-thirds of its appraised value, and on April 30, 1898, E.deed therefor was executed to the Obras Pias by the court find recorded. In July, 1898, an order was delivered to the registrar of property to cancel the Tuason mortgages. No action whatever had been taken in the case for a year and three months, during which time the plaintiff had been in possession. Even conceding, for the sake of argument, that incidentes may be admitted in an executory action in the via de apremio, about which we express no opinion, it must be certain that when the execution proceedings are over and the property has been transferred to the judgment creditor, and he has been placed in possession, and his title papers placed on record and have there remained for nearly two years, the time has passed for the presentation of an incidente concerning the nullity of some particular proceeding in the case. The purposes of this executory action had been accomplished more than a year and nine months before the institution of the proceeding. It was practically terminated. Nothing more remained to be done. The complaint should never have been admitted. All the proceedings in connection therewith were irregular and the judgment invalid. Its invalidity having been properly attacked by appeal, it must be reversed and declared void. (2) The order of December 31, 1894, subrogating the bank in place of Regidor as defendant in the case, was consented to by the defendant, Regidor, in two ways. ( a ) Although he was allowed on February 27, 1895, an appeal in one effect from the order of February 9, denying reposicion of the order of December 31, 1894, he did not furnish the amount of stamped paper necessary for perfecting his appeal. The clerk, on April 30, 1895, reported this fact to the court and it, by the order of May 27, 1895, directed the petitioner to be notified of the condition of the record. The appeal rested in this case for more than three years, when Regidor undertook to renew it by pleadings of July 16, 1898. Against the order of the 15th of December, 1898, by which the court refused to take action upon the motion of Regidor's counsel with respect, among other things, to the issuance of a transcript formerly ordered; for the purpose of perfecting the appeal, taken and admitted in one effect, said counsel, by a petition dated the 23d of; the said month, asked for the reconsideration and vacation of the order, and moved the court to direct that the transcript be issued. The court, by order of the 24th day of the same month of December, refused to take action on this motion, and Regidor's counsel having given notice of appeal against the said order of

December 24, the judge, by an order of the 3rd of January, 1899, again refused to take action. No motion was ever made to vacate the latter order. No attempt was made to prepare the recurso de queja in accordance with articles 381 and 382 of the old Code of Civil Procedure. This remedy was never utilized, and consequently, under the provisions of article 391 of the same Code, the judge having held that the appeal had been abandoned, the appealed order became final and executory by consent. ( b) The order of December 31,1894, subrogated the bank as defendant in place of Regidor, holding that the former, and not the latter, was the owner of the property. On July 17, 1897, Regidor presented in this same action an intervention under claim of ownership ( terceria de dominio) against the Obras Pias and the bank. From the very nature of a terceria it must be true that this was a distinct recognition (1) of the bank as a party to the suit, and (2) of himself as a stranger to it. It was in effect a submission to the order of December 31, 1894. This disposes of these appeals and terminates the executory action. It is, therefore, not necessary to consider the other questions argued by counsel, which relate to the validity of the order of December 31,1894. 5. The motion presented by the Obras Pias for the vacation of the order putting into effect the sentence of May 28, 1900, is already disposed of by this decision. The judgment itself being void, the execution thereof must be set aside, and the Obras Pias have a right to be restored to the possession of the property and to the return by Regidor of all the rents received by him subsequently, or which might have been received by him, since the possession taken by him under the judgment of May 28, 1900. Sr. Regidor was not a possessor in good faith, because the judgment was not executory. 6. The appeal by Regidor from the order of September 21, 1900, which refused to pass the orders to the fiscal for the purposes of a criminal prosecution, is without merit. The order appealed from is affirmed with costs against the appellant, Regidor. 7. The judgment of December 2, 1896, from which Sr. Tuason appealed on December 9, 1896, is hereby affirmed without especial condemnation as to costs. 8. To the motion of Sr. Regidor dated December 31,1902, are attached what purport to be copies of certain letters. When they wore presented to the court at the hearing of the motion, they were objected to. With the exception of one, they can not be considered. They are in no way authenticated. If they were, they were not properly produced as evidence either in the first or second instance. The letter excepted was attached to the complaint presented on April 2, 1900. In connection with the charges of fraud so profusely used by Sr. Regidor in his motions and oral arguments, it may be noted that the Obras Pias, since 1880, has had against Sr. Regidor an admitted debt of more than 12,000 pesos which was the first lien on the houses in question. In 1885 they commenced this summary proceeding to foreclose the mortgages. Regidor never had any defense to this claim, and the Obras Pias ought to have obtained the possession of the property, or the payment of the debt, at least as earlv as 1886. Instead of such a result, the action is still pending. Regidor is still in possession, and is still receiving the rents, which in

1883 amounted to 375 pesos a month. It is ordered: (1) That the judgment of May 28,1900, be reversed and everything done in the incidente of nullity, commenced by the complaint of April 2, 1900, including such complaint, be vacated and annulled, without special condemnation as to costs of this instance. (2) That the plaintiff be restored to the possession of the property in question. (3) That the appellee Ricardo Regidor repay to the plaintiff all sums received by him from its representatives as rent of said property. (4) That the said Ricardo Regidor pay to the plaintiff all rents received, or which ought to have been received, from said property since he was put into possession thereof by the said judgment of May 28, 1900. (5) That the order of September 21, 1900, from which Sr. Regidor appealed on September 22, 1900, be affirmed with costs of this instance against the said appellant. (6) That the judgment of December 2, 1896, from which Sr. Tuason appealed on December 9, 1896, be affirmed without especial condemnation as to costs of this instance. Torres, Cooper, Mapa, and Ladd, JJ., concur. Arellano, C. J., and McDonough, J., did not sit in this case.

DECISION OP APPLICATION FOR WRIT OF ERROR WILLARD, J.: Passing the question as to whether or not an appeal would be the appropriate remedy in cases of this kind, the application for a writ of error will have to be denied on the ground that the value in controversy does not exceed 25,000 dollars. The petitioner has never questioned the validity of the mortgages sought to be foreclosed in this action, and in his tenth assignment of error filed with the present petition he recognized their validity. The amount due on these mortgages, on May 20, 1885, when this suit was brought, was more than 12,000 pesos. They bear interest at the rate of 6 per cent per annum. The amount now due thereon would exceed 25,000 pesos, which, reduced to United States currency at the present official rate, would be in excess of 10,000 dollars. We assume that the value of the property is just in excess of 25,000 dollars. The value actually in controversy is, then, not more than 15,000 pesos. It is true that section 10 of the Act of July 1,1902, contains the words "in which the title or possession of real estate exceeding in value the sum of 25,000 dollars * * * is involved or brought in question." But this must be construed to refer to cases in which the possession is sought, or retained, in connection Avith some claim to the title itself. Otherwise a case of forcible entry and detainer, involving only the right to the possession for a month of a house worth 25,000 dollars, might be taken to the Supreme Court, when the actual amount in controversy did not exceed 500 dollars.

So an action to determine the right to a life estate in property of the value of 25,000 dollars might be appealed though the value of the life estate, the only thing in controversy, did not exceed 5,000 dollars. The application for a writ of error is denied. Torres, Mapa, and McDonough, JJ., concur. Arellano, C. J., disqualified.

OSJurist.org

G.R. No. 579, July 24, 1903

THE UNITED STATES, COMPLAINANT AND APPELLEE, VS. TEODORO PACHECO ET. AL., DEFENDANTS AND APPELLANTS. D ECIS ION
TORRES, J.: One afternoon in the month of April, 1900, after the celebration of Holy Week, Guillermo.Balderrama and the lad Eusebio Flor Bago were walking along the road from the town of Dagupan to the barrio of Carael, Pangasinan. On reaching a bridge in the barrio referred to, several men, among whom were the petitioners, sprang out upon and stopped them. Baderrama was bound and immediately conducted to the interior of a nipa plantation, about 100 feet from the place of the assault, where he was put to death and buried. The lad Bago was conducted to the house of Andres de Guzman, from which, at 7 o'clock in the evening of the same day, he was carried to the bank of the Manat River. Here he also was seriously wounded, and was thrown into the river. It appears from the record that the two deceased had come from Zambales, and were going about in the town of Dagupan selling English dictionaries; that on the afternoon in question they had come from the house of Ynocencio Fernandez, situated in Dagupan; that, according to the testimony of several witnesses, the accused, who were then insurrectionists, Teodoro Pacheco being a recruiting captain, seized and killed the deceased because it was supposed,, since they sold books written in English, that they were spies of the Americans, this presumption or belief being also testified to by several witnesses. It does not appear from the record that the aggressors were impelled to kill the deceased by any motive other than that the latter were suspected of being spies and, therefore, traitors to the revolutionary party to which the defendants belonged. From the foregoing statement of facts, it may therefore be said that the two murders prosecuted herein were of a political character and the result of internal political hatreds between Filipinos, the defendants having been insurgents opposed to the constituted government. The case has to do with two crimes for which, under the penal law, the severest punishment has always been inflicted. However, considering the circumstances under which these crimes were committed and the fact that the sovereign power in these Islands, in view of the extraordinary and radical disturbance which, during the period following the year 1896, prevailed in and convulsed this country, and prompted by the dictates of humanity and public policy, has deemed it advisable to blot out even the shadow of a certain class of offenses, decreeing full pardon and amnesty to their authorsan act of elevated statesmanship and timely generosity, more political than judicial in its nature, intended to mitigate the severity of the lawit is uncumbent upon us, in deciding this case, to conform our judgment to the requirements and conditions of the decree so promulgated. In view of the foregoing considerations, we decide that the above-named accused, Felipe Abalos, Teodoro Pacheco, Cristobal Tenoliar, Esteban Pacheco, and Mariano Gonzalo, are included within the amnesty of July 4,1902. The judge below will be notified of this decision, and, as soon as the defendants shall have taken the oath prescribed in the amnesty proclamation, evidence of which will be submitted to this court, they will he set at liberty.

Arellano, C. J., Cooper, McDonough, and Mapa, JJ., concur. Willard, J.; I dissent from the foregoing opinion with respect to the defendant Pacheco, but concur as to the others. Defendants entitled to amnesty.

OSJurist.org

G.R. No. 847, February 12, 1903

EULALIO HERNAEZ, PLAINTIFF AND APPELLANT, VS. ROSENDO HERNAEZ, DEFENDANT AND APPELLEE. D ECIS ION
This action was brought in connection with the proceedings on the administration of the intestate estate of Pedro Hernaez, father of the plaintiff and of the defendant. The purpose of the action is This action was brought in connection with the proceedings on the administration of the intestate estate of Pedro Hernaez, father of the plaintiff and of the defendant. The purpose of the action is to obtain the inclusion in the estate by collation of the values of the Naga and Panaogao properties, owned by the defendant, that the same may be included in the inventory of the mass of the intestate succession. The facts set up in the complaint are the following: (1) That as Eosendo Hernaez was a poor man after his return from his student life in Manila, he was supported by his father. (2) That shortly afterwards he purchased the Naga estate, he at that time not being engaged in any profitable trade or industry. (3) That he was the administrator of the property of his parents. (4) That the money with which he purchased the Naga estate belonged to his father. (5) That the Panaogao estate was purchased by Rosendo after the death of his father. The legal principle upon which the plaintiff relies is that established by article 1035 of the Civil Code, in accordance1 with which a forced heir in certain cases is required to bring into the mass of the succession properties or moneys which he may have received gratuitously from the decedent during the lifetime of the latter. Therefore it is evident that of the facts set up in the complaint the only one relevant to the issue is the fourth, concerning the acquisition of the Naga estate. With respect to the fifth, as to the Panaogao estate, apart from the fact of its irrelevancy, it is not apparent what connection the simple statement that a forced heir acquired the said estate after the death of the causante can possibly have with the question of collation. But, whatever might be said about the facts alleged, none of them have been proven. In the replication an allegation was added to the effect that Rosendo Hernaez was never in partnership with Julian Hernaez, his brother, this fact having been set up in ihe answer of the defendant. Two witnesses, Miguel Solis and Severino Duran, testified that they had never seen any articles of copartnership recorded in a public or private instrument. Rosendo, however, in answering interrogatories, testified that he had been an industrial partner and that no written articles had been executed. Of the nine witnesses presented by the defendant, Domingo and Magdalena Hernaez and Peregrina Jarapa, the latter a nephew and the former brothers of both the contending parties, denied that Rosendo purchased the Naga estate with money belonging to his father, but testified that it was purchased with money acquired by his own labors. The Naga and Panaogao estates were acquired by the defendant, the first from his brother Julian on the 25th of November, 1881, and the second from Pedro Garganera on the 2d of November, 1898. There is not the slightest indication that the money with which these estates were purchased was or could be other than that of the purchaser himself. (Public instruments on pp. 350 and 401 of the record.)

It not having been proven that the property which it is sought to require one of the forced heirs, the defendant herein, to bring into collation was acquired gratuitously from the intestate, the action can not be maintained. We therefore dismiss the complaint, with the costs of both instances to the plaintiff. So ordered. Torres, Cooper, Willard, Mapa, and Ladd, JJ., concur.

OSJurist.org

G.R. No. 857, February 10, 1903

EULALIO HERNAEZ, PLAINTIFF AND APPELLANT, VS. ROSENDO HEBNAEZ; DEFENDANT AND APPELLEE. D ECIS ION
ARELLANO C.J.: The subject of this action is the will executed by Dofia Juana Espinosa, widow of Don Pedro Hernaez, on December 5, 1894, in Bacolod, Island of Negros, before a notary public, and three witnesses, and with the aid of an interpreter, the testatrix not understanding Spanish. In this will the principal dispositions are those relative to the legacy of the third part of the hereditary estate of free disposal, which the testatrix leaves to her eldest son, Rosendo, to the betterment of the other third made in favor of this same son, and the distribution of the remaining third in six equal parts among her five children, Rosendo, Domingo, Magdalena, Mateo, and Eulalio Hernaez y Espinosa, and her two granddaughters, Peregrina and Victorina Parapa y Hernaez, in representation of their deceased mother, Clara Hernaez y Espinosa. The plaintiff is one of the sons of the testatrix and the complaint has not been acquiesced in by Magdalena Hernaez y Espinosa nor Peregrina and Victorina Parapa y Hernaez, whose consent plaintiff sought to obtain. The action brought is for the annulment of the will upon the ground: (1) of the incapacity of the testatrix; (2) the incapacity of the notary, attesting witnesses, and the interpreter; and (3) a substantial formal defect in the will. The incapacity of the testatrix according to the complaint is alleged to consist in this: That on the 5th of December, 1894, she was over 80 years of age and was so ill that three days before she had received the sacraments and extreme unction, and that two days afterwards she died; and that prior thereto she walked in a stooping attitude, and gave contradictory orders, as a result of her senile debility. The incapacity of the notary in that he did not understand the Visayan dialect, the language of the testatrix. The incapacity of the attesting witnesses is supposed to consist in their not having a perfect knowledge of Spanish, and the incapacity of the interpreter in that he was an amanuensis of the notary and was the person who wrote out the will. The substantial formal defect of the will is supposed to consist in the fact that two physicians were not present to certify to the sanity of the testatrix at the time of its execution, and the absence of two interpreters to translate the will, because executed in a foreign language. These are briefly, the grounds upon which the action for the annulment of the will rests, and these were the issues raised at the trial. The evidence introduced bears upon the issues above stated to which alone the decision of the court must be limited. For the purpose of proving the mental incapacity of the testatrix the plaintiff introduced oral testimony and expert evidence; the oral testimony was for the purpose of proving the following facts: That the testatrix on the 5th day of December, 1894, was so ill that she could not speak; that by reason of her age she walked in a stooping position and gave contradictory orders. The priest who was with her during the last hours of her life was called to testify that on the 3d day of the same month and year he had administered the sacraments to her, and that the patient was at that time so seriously ill that he scarcely understood her when she spoke. The expert witnesses were called to testify upon the question propounded: "Could an octogenarian in the

pathological condition peculiar to that age possess sufficient mental faculties to permit her to dispose of her property causa mortis?" The result of the oral evidence is that the testimony of the four witnesses called has proven one fact, which is, that the testatrix toward the end of her life walked in a stooping position. The first witness, Isidora de la Torre, affirmed that three days before her death she was very ill but answered questions which were addressed her, and only one witness, Ambrosia Sotsing, testified that four days before the death of the testatrix she had been to see the latter and that she could not speak then because she was suffering from fainting fits, this witness being the only one who testified that the testatrix had given contrary orders. These four witnesses are, respectively, 78, 75, 60, and 57 years of age. The priest, D. Nicolas Alba, stated that he had administered the sacraments to the testatrix before the execution of the will but was unable to remember the day; that he understood her then when she spoke and that the testatrix frequently confessed even when not feeling seriously ill, and that when sick she was accustomed to confess in her house (this point is confirmed by the witness Sotsing who testified that she had been to see the testatrix three times and that on all three of these occasions the communion had been administered to her); that when he confessed her some days before the execution of the will he had also administered the extreme unction on account of her advanced age; that at that time she was in the enjoyment of her mental faculties but the Avitness could not state whether she preserved them up to the moment of her death, he not being present when this occurred. The expert evidence introduced by the testimony of Dr. Lope de la Rama gave the following result: That if the organs are intact the physiological functions are perfectly performed, and that consequently some men before reaching the age of decrepitude lose their mental faculties by the weakening of the brain, either as the result of illness or of abuses, while others preserve their understanding to a very advanced age. It is unnecessary to pass upon the oral evidence introduced by the defendant; the documentary evidence (record, p. 38) shows that the testatrix did not die two days after the execution of her will. The will was executed on the 5th and her death occurred on the 12th of December, 1894. It is sufficient to state that neither from the facts elicited by the interrogatories nor the documents presented with the complaint can the conclusion be reached that the testatrix was deprived of her mental faculties. The fact that an old woman gives contradictory orders, that she walks in a stooping position, that she has fainting fits, that she received the sacraments some days before making her will, are circumstances which even if fully demonstrated by proof could not lead the court to establish a conclusion contrary to the mental soundness of a person who is to be presumed to be in the full enjoyment of the mental faculties until the contrary is conclusively proven. The notary in compliance with the requirements of article 695 of the Civil Code certifies that in his judgment the testatrix had the necessary legal capacity and the use of the necessary mental faculties for the purposes of the execution of the will. "The Code might have adopted either one of two systems [with respect to the mental capacity of the testator that of establishing as a general rule the presumption of soundness of the mental faculties until the contrary be proven, or that of presuming mental weakness in the absence of proof that the act was performed while the mental faculties were in their normal condition. Under the first presumption a will made should be declared valid in all cases, in the absence of evidence to the contrary. Under the second it would have to be considered as void upon the presumption that it was executed by a person demented, unless the contrary is shown. The Code has adopted the first system as being the most rational, by accepting the principle that mental soundness is always to be presumed with respect to a person who has not been previously incapacitated until the contrary is demonstrated and proven by the proper person and the correctness of this choice is beyond doubt; in the meantime the intervention of the notary and the witnesses

constitutes a true guaranty of the capacity of the testator, by reason of their knowledge of the matter. (Manresa, Commentaries, vol. 5, p.344.) It has at no time been regarded as a ground for the annulment of a public instrument executed before a notary public by a native of these Islands, ignorant of Spanish, that the notary was not acquainted with the dialect of the party executing the same. If this officer, upon whom the law imposes the obligation of drawing the instrument in the official language, that is, Castilian, does not know the dialect he can avail himself of an interpreter in accordance with the provisions of the law itself; hence the fact that the notary who legalized the will in question did not know the Visayan dialect spoken by the testatrix is by no means an argument in favor of the nullity of this public instrument, nor has it been for the nullity of any one of the long series of instruments executed before Spanish notaries, and even Filipino notaries, unacquainted with the dialect or dialects of the locality in which they performed their duties or the special dialect of the party. With respect to the attesting witnesses it has been fully proven by the manner in which they testified at the trial, "without the necessity of an interpreter," as to those called as witnesses and by conclusive evidence as to the deceased attesting witness whose signature and competency have been completely established, that they knew the dialect of the testatrix in accordance with section 5, article 681, of the Civil Code, and also understood Spanish. As alleged, but not proven, their knowledge of the latter language may not have been perfect, but this does not make them incompetent, nor is it a ground for annulment. Finally, the prohibition of article 681, section 8, is not applicable to the interpreter, of whose services the notary availed himself for the execution, drafting, and legalization of the will, for the simple reason that it does not refer to the interpreter but the witnesses, and there is nothing to authorize the extensive interpretation attempted to be made of its precepts. The presence of two physicians, as required in the case covered by article 665, was not necessary. "This precept refers clearly and expressly to the conditions which, must be complied with in order that a demented person may make a will by availing himself of a lucid interval, and is entirely distinct from the cases governed by article 685 when the testator has not been declared demented." (Judgment of June 10, 1897.) Had anyone observed any incapacity in the testatrix some time before it would have been easy to have taken the proper steps to obtain a declaration of this status of incapacity in accordance with the provisions of the Civil Code, and then, after a legal declaration of this condition, she could not have executed a will unless two physicians had certified that at the time of her examination she was in the enjoyment of a lucid interval; but there was no necessity of waiting for a lucid interval when the constant condition was that of lucidity. Nor was it necessary that two interpreters be present as required by article 684 of the Civil Code. This is a requisite for the execution of a will in a foreign language, and neither by the letter nor by the purpose of this article could it be required with regard to the will in question. Not by the letter, because neither the testatrix nor the notary expressed themselves in a foreign language. Neither the Castilian spoken by the notary nor the Visayan spoken by the testatrix are foreign languages. Nor is the case within the purpose of the law. "The prior laws had not provided for the execution of a will by a foreigner in his own language. Such a case could not arise under the old law because the right to make a will being one inherent in citizenship they systematically denied to the foreigner the exercise of that right. The execution of a will being at the present time based upon natural right, the foreigner is entitled equally with the citizen to make a will. Although it is true that foreigners, under international law, can

make a will before the consuls of their nation, it is none the less true that they do not always make their wills in a town in which an accredited consul resides. For all these reasons it was necessary to provide by law for a special form for the will of the foreigner who might be ignorant of the Spanish language and yet have occasion to make a will. The form which the law has adopted satisfies the most exigent spirit, for the presence of two interpreters, the fact that the will is recorded in a public instrument in both languages, and that it is signed by all wjio take part in the act are the most efficacious guarantees against fraud and bad faith." (Falcon, 3 Civil Code, p. 94.) Text writers discuss the application of article 684 to a will executed in one of the local idioms of Spain, considering them to be on the same footing as a foreign language in a place in which Castilian is the tongue spoken or understood; but we have no occasion to enter into this discussion, the legal sense and constant practice observed in these Islands being sufficient. Upon these grounds we hold that judgment must be for the defendant, declaring the will executed by Dona Juana Espinosa on the 5th of. December, 1894, to be valid and efficacious, without special imposition of costs. So ordered. Torres, Cooper, Willard, and Ladd, JJ., concur. Mapa, J., disqualified.

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G.R. No. 858, February 05, 1903

FRANCISCO MARTINEZ, PLAINTIFF AND APPELLEE, VS. PEDRO MARTINEZ, DEFENDANT AND APPELLANT. D ECIS ION
WILLARD, J.: In this case the decision ordered that the judgment in favor of the plaintiff be reversed and the case remanded for a new trial with costs against the appellee. The appellee has presented a motion asking that the order in regard to costs be revised, claiming that when a judgment is1 reversed it is improper to compel the appellee to pay costs and citing provisions of law in force prior to the enactment of the present Code of Civil Procedure. Such provisions are inapplicable for they have been repealed by that Code whose articles 487495 now govern the matter of costs. When a case is brought here by a bill of exceptions and the judgment is reversed and a new trial granted the order of this court in regard to costs refers only to the costs of this court that is, those arising by reason of the appeal. It decides nothing as to the costs already accrued in the lower court or which may accrue therein after the case is remanded. These costs will remain as they are without any order in respect thereto until the final determination of the suit. The order in this case may be ambiguous in this respect. It is therefore ordered that the decision filed in this case on January 23, 1903, be amended by adding thereto after the words "the costs" in the last line thereof the words "of this second instance." Torres, Cooper, Mapa, and Ladd, JJ., concur. Arellano C. J., did not sit in this case.

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G.R. No. 858, January 23, 1903

FRANCISCO MARTINEZ, PLAINTIFF AND APPELLEE, VS. PEDRO MARTINEZ, DEFENDANT AND APPELLANT. D ECIS ION
WILLARD, J.: In the decision in this case it is found as a fact that the titles to the steamer Balayan and the coasting vessel Ogoo are registered in the name of the defendant. It must be assumed from this that the defendant has the legal title to the vessels, as without it they could not be so registered. These facts standing alone show that the defendant is the owner of the property. Two other facts, however, appear in the decision which the appellee claims warranted the court below in deciding that the defendant was not the owner. 1. That court found that the money with which the vessels were purchased was furnished by the plaintiff, the father of the defendant. Does this fact make him the owner of them, the title having been taken and registered in the son's name? The various ways in which the title to property may be acquired are stated in article 609 of the Civil Code. The plaintiff never acquired the title to these vessels in any one of the ways therein described. He did not acquire it by donation or succession. He did not acquire it by means of any contract. The court does not find that the father and son had between themselves any contract of any kind by virtue of which the son agreed to transfer the title to the father or to hold it for his benefit. There is an allegation in the complaint that the defendant acted as the agent of the plaintiff in the purchase. This is denied in the answer and there is no finding in the decision which supports this allegation of the complaint. There is only the bare fact that the price of property which was conveyed to the defendant by a third person was paid by the plaintiff. It can not be said that the law by reason of this fact transfers any title or interest in the thing itself to the plaintiff. Article 1090 of the Civil Code provides that "obligations derived from the law are not to be presumed. Only those expressly provided for in this Code or in special laws are enforceable." It is provided in article 161 of the same Code, relating to minors, that "the ownership or enjoyment of property acquired by a minor child with funds of his parents, pertain to the latter." This article does not apply to the present case, for the son was of age. This is the only provision which we have found anywhere in the laws now in force that declares the property to belong to the person who paid the money, Nor can such general doctrine be found in the former law. Law 49, title 5, partida 5, the effect of which is incorrectly stated in the brief of the appellee, expressly provided that property bought with another's money should not belong to the owner of the money except in certain enumerated cases of which this is not one. Law 48, title 5, partida 5, also expressly provided that where one bought with his own money property the title to which he procured to be transferred to a third" person, such third person had the right to keep it by reimbursing the other for his outlay. It may be true that the laws in some of the United States would in this case raise a resulting trust in favor of the plaintiff. But such laws are not in force here; and whatever other right the plaintiff may have against the defendant, either for the recovery of the money paid or for damages, it is clear that such payment gave him no title either legal or equitable to these vessels. If there were evidence in the case which would have justified the court below in finding that the defendant acted as the agent of the plaintiff or that there was some other contract between them, he should have incorporated such findings in his decision. Article 133 of the Code of Civil Procedure requires the court to file a written decision. If the facts stated in that decision together with those admitted in the pleadings are not sufficient as a matter of law to support the judgment, it must be reversed, if excepted to. The record, however, contains all the evidence and an examination of it shows that no such findings would have been warranted. As to the Balayato, it appears that the son had nothing whatever to do with its purchase. It was bought by the father with the money of the conjugal partnership, and the title by his direction placed in the son's name. As to the Ogoo, the father's intervention in the purchase nowhere appears. He simply testified that it was bought with his money. It is said that the court below found as a fact that the father was the owner of the vessels and that we can not disturb this finding because there was no motion for a new trial. This contention can not be sustained. The ultimate question in the whole case was: Who owned this property? The resolution of that question depended upon the application of legal principles to the facts connected with its acquisition and subsequent management. Those facts were that the father bought and paid for it, and that the titles to it were taken

and registered in the son's name. A statement that by reason of these facts the father is the owner is a statement of law and not a finding of fact. 2. It was found as a fact that the father had exercised acts of ownership over the vessel. That finding is entirely consistent with the legal ownership by the son. The exercise of such acts could not transfer such ownership from the son. 3. There is in the record a letter written by the defendant to the plaintiff in which the latter is asked if he desires to sell the Balayan. This letter is not incorporated into the findings and we have no right to consider it. But, if we had, it would not in our opinion change the result. Such a letter might well have been written by a son to a father, both of them recognizing the fact that the son was the owner of the property as to which the inquiry made. 4. In conclusion we may say that even on the supposition that a written and recorded title to vessels may be overcome by parol evidence, that offered in this case was insufficient to accomplish such a result. As to the Balayan, there is nothing whatever to show why the father placed the title in his son's name. It may have been either as a gift or a loan. As to the Ogoo, there is the simple declaration of the father that he paid for it. This may have been either a gift or a loan. The judgment is reversed and a new trial is granted with costs against the appellee. Torres, Mapa, and Ladd, JJ, concur. Arellano, C. J., did not sit in this case.

DISSENTING COOPER, J.: This action was brought by Don Francisco Martinez against Don Pedro Martinez, the appellant, for the recovery as owner of two certain vessels, the steamship Balayan, and the schooner Ogoo. The plaintiff brings the suit for himself and in representation of his deceased wife, alleging that the ships were bought with funds belonging to the community estate. The defendant in his answer claims that he is the exclusive owner of the ships, basing his right to such ownership upon their registration in his name in the office of the Captain of the Port, and further, that the ships were purchased with his individual money. The first assignment of error is that "the court erred in adjudging the ownership of the property of the ships Balayan and Ogoo to Don Francisco Martinez, the latter not having presented written documents of the acquisition of said ships nor certificates of inscription in the registry." I. This assignment of error raises the question of the sufficiency of the proof to sustain the judgment of the court below and requires an examination of the evidence taken in the court below and a trial of the questions of fact as to the ownership of the property. Section 497 of the Code of Civil Procedure provides that in the hearings upon bills of exceptions in civil actions and special proceedings, the Supreme Court shall not review the evidence taken in the court below nor retry the questions of fact except as in that section provided, which are in the following cases: (1) Where assessors have sat with the judge and both assessors are of the opinion that the findings of, fact and judgment are wrong and have certified their dissent. (2) Upon the ground of the discovery of new and material evidence. (3) Where the excepting party files a motion in the Court of First Instance for a new trial upon the grounds that the findings of fact are plainly and manifestly against the weight of evidence and the judge overrules the motion and due exception was taken to his overruling the same. There was no motion for a new trial in the Court of First Instance, nor is it contended that this case falls within either of the other exceptions. It is insisted that while this court will not review or retry questions of fact, yet if it appears from the findings of fact as contained in the decision of the lower court that the facts do not justify the judgment or conclusions of law the case will be reversed for a new trial. There was no exception taken to the judgment, the exception being only such as is inferred from the presentation and allowance of the bill of exceptions. This is not sufficient to justify this court in entertaining such objection; the rule is that where a judgment is entered not warranted by the findings the proper remedy is by application to the court in which it is entered to correct or vacate the judgment, and unless the action of the court has been thus invoked the petition will not be considered on appeal. (Scott vs . Minneapolis R. R. Co., 42 Minn.,

179.) But had the exception been properly taken an examination of the findings clearly shows that the judgment is sustained by them. The following findings of fact were made by the lower court and are contained in the judgment, to wit: "I am of the opinion that Bon Francisco Martinez, for himself and in representation of his wife, is the actual and true owner of said steamship and schooner and has exercised over them acts of ownership and dominion, and that these ships were bought with the funds by him furnished. With respect to the fact that the steamship and schooner may have been registered in the name of the defendant, Pedro Martinez, it is my opinion that this fact can not be considered as prejudicial to the true right of the plaintiff." An analysis of this finding will show that it consists of the finding of, first, an ultimate fact, that is, that the plaintiff D. Francisco Martinez is the actual and true owner of the steamship and schooner, the property in controversy; second, the probative fact that he has exercised over them acts of ownership and dominion and that these ships were bought with funds furnished by him, and, third, the probative fact that the ships were registered in the name of the defendant, Pedro Martinez. The majority of the court regard the first findingthat is, that the plaintiff is the actual and true owner of the property in controversy as a statement of law and not a finding of fact, and have rejected it as a finding of fact. In reversing the case for a new trial the decision is based upon the finding that the vessels are registered in the name of the defendant, and it is said that it must be assumed that the defendant has a title to the vessels as without it they could not be so registered. The conclusion I reach is the reverse of that reached by the court. The finding of the plaintiff's ownership of the vessel and schooner is not a conclusion of law, but is the finding of an ultimate fact in the case, and was the proper and the only finding that could have been made. As stated in the opinion, the ultimate question in the whole case was, Who owned this property? The supreme court of Minnesota has passed upon the precise question in the case of Common vs . Grace (36 Minn., 276). The finding of the lower court in that case was that "John Grace was, at the time of his death, the owner in fee simple of the real estate." The appellant made a request in the court below for additional findings. Upon the refusal of the lower court to make such additional findings it was assigned .as error on appeal. Mitchell, J., says: "The facts required to be found are the ultimate facts forming the issues presented by the pleadings and which constitute the foundation of a judgment and not those which are simply evidentiary of them. The court is not required to find merely evidentiary facts or to set forth and explain the means or processes by which it arrived at such findings. Neither evidence, argument, nor comment has any legitimate place in the findings of fact The test of the sufficiency of the findings of fact by a court, we apprehend, is, Would they answer if presented by a jury in the form of a special verdict, which is required to present the conclusions of fact as established by the evidence, and not the evidence to prove them, and to present those conclusions of fact so that nothing remains to the court but to draw from them conclusions of law? In the case at bar the finding of fact that John Grace was, at the time of his death, the owner in fee simple of the real estate in question was the ultimate fact upon which the decision of the case depended. It covered the only issue in the case, and was a sufficient foundation for a judgment in favor of defendants. It could only be arrived at upon the hypothesis that the deeds in dispute were duly executed, and the finding necessarily implied and included this," In the case of Daly vs . Socorro (80 Cal.,367) it is said: "The appellant further contends that the cause should be reversed because the court failed to find upon certain other issues presented. His right to maintain the action was based wholly upon his ownership and right of possession, and these being found against him it is immaterial to him whether the court found as to other facts or not, as the judgment must have been against him whatever the other finding might have been." The finding of the court that the ships were registered in the name of the defendant is the1 finding only of a probative of evidentiary fact, that is, it is the finding ply of evidence tending to prove the ultimate fact, to wit, the fact of ownership. The various means of proving this ultimate fact is the evidence. Thus, a bill of sale is evidence of ownership. The possession of property is prima fade evidence of ownership, and so perhaps is the registry of ships evidence of the ownership of the person in whose name it is made; but while it is evidence tending to prove ownership, there may be other evidence in the case totally destroying its value, such as a sale and conveyance of the ship by the owner or person in whose name it is registered made subsequent to the date of the registration; title by prescription as against the party in whose name the ship is registered; by proof that the party in whose name the ship is registered held the title simply as agent of the party claiming ownership. For this reason the finding that the vessels are registered in the name of the defendant is inconclusive and is entirely insufficient as a finding of fact. The finding of fact must be such as includes the entire issue or the ultimate fact to be proven, and in this case, as is stated in the opinion, the ultimate question in the whole case was who owned this property. The lower court has responded to this issue by saying that "while the ships are registered in the name of the defendant that this fact can not be considered as prejudicial to the direct ownership of the plaintiff. That D. Francisco Martinez, the plaintiff, for himself and in representation of his wife, is the actual and true owner of said ships and has exercised over them acts of ownership and dominion." There is no conflict in the findings, for, as stated by the lower court, the ship may be registered in the name of the defendant and still be owned by the plaintiff. But, if any such conflict exists, then the finding of the probative fact that the vessels are registered in the name of the defendant must give way to the .finding of the ultimate fact that the ownership is with the plaintiff. When the ultimate fact is found no finding of probative facts which may tend to establish that the ultimate fact was found against the evidence can overcome the finding of the ultimate fact. (Smith vs . Acker, 52 Cal., 217; Perry vs . Quackenbush, 105 Cal., 299; Smith vs . Jones, 131 Ind.)

Not only is the and subsidiary probative fact, purchased with

ultimate fact of ownership which is the paramount finding in the case allowed to be overthrown by the less important finding of the evidentiary fact of registration of the ship, but the opinion wholly ignores the other finding of the that is, that the plaintiff has exercised acts of ownership and dominion over the property and that the ships were funds furnished by him.

II. It is said in the opinion in referring to a letter written by the defendant to the plaintiff that this letter is not incorporated in the findings and we have no right to consider it, yet the court in its decision has gone into an examination of the evidence thus improperly brought here. This ambiguity in the opinion makes it necessary to refer briefly to the evidence. Such review will show that the evidence before the lower court was entirely sufficient to support the finding of ownership in the plaintiff. It consists of letters written to the plaintiff by his agents, Armstrong & Sloan, who acted for him in the purchase of the ship Balayan; the testimony of the plaintiff as to his purchase and payment of the price of the ship; proof of witnesses of the acts of ownership on the part of the plaintiff after the purchase of the ships by him; that the defendant resided with the plaintiff, who was his father, and that the defendant had no means with which to make such purchase; various acts of the defendant recognizing the plaintiff's ownership in the vessel; evidence introduced on the part of the plaintiff tending to show his ownership and tending to show that the defendant acted simply as plaintiff's agent in the control which he exercised over the ship. In one of the letters written by Armstrong & Sloan to the plaintiff dated August 22, 1892, they say: "We have credited to your account #18,843.65 which you left before your departure for the cost of the ship bought for you in Hongkong." Also the book entries in the mercantile office of Armstrong & Sloan, in which appear the following:

Cash, August, 1892. Aug. 24. Francisco Martinez, received from him account of cost of one launch in $18,843.65 Hongkong......................... Cash, September, 1892. 16,881.75 Sept. 13. Francisco Martinez to Chartered Bank, remittance to Hongkong account of steam launch, $18,300 at per cent discount ........................................................................................................................ Cost of 3.23 message................................................................................................................................. Total............................................................................................................................................... 16,884.98
Another letter is in evidence from the same parties to the plaintiff dated October 13, 1892, in which they say that they had telegraphed the day before to Hongkong for the ship to sail "and we have written that the name Balayan be given it." Several other letters were introduced written by the same parties to the plaintiff concerning the ship Balayan, in wljich they say the deal was closed and by which they make arrangements for incidental expenses in the equipment of ship, insurance upon it, and its sailing from Hongkong to Manila, A letter is also contained in the record written by the defendant to the plaintiff on the 27th of October, 1899, which is as follows: "Manila, October 27, 1899. Esteemed Father: With my kindest regards (beso a V. la mano). With respect to the steamship Balayan, Senor Sloan sends word to you that there is an American who wishes to purchase it for 24,000 pesos, and asks whether you desire to sell it or not that you reply because he awaits your answer * * *" It also appears in evidence that the ship Balayan had the initials of the plaintiff "F. M." on the smokestack, and that at som recent date the defendant had caused these initials to be erased and those of his own substituted. The defendant for a number of years managed the plaintiff's business under a general power of attorney, and was a member of his family, and such acts of ownership as he exercised over these ships may be properly referred to this authority. When the relationship of the partiesthat is, that of son and fatheris considered in connection with other proof in the case, the conclusion is irresistible that the ships are owned by the plaintiff and that there has been a most flagrant abuse on the part of the defendant of a father's confidence. For the reason above stated I dissent from the decision.

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G.R. No. 865, January 24, 1903

THE UNITED STATES, COMPLAINANT AND APPELLEE, VS. FELIX BALMORI, DEFENDANT AND APPELLANT. D ECIS ION
TORRES, J.: The present case, No. 81, from the Court of First Instance of the Province of Itizal is now before us on appeal by defendant from the judgment of February 5, 1902, whereby he was sentenced to imprisonment for one year four months and twenty-one days and 2,001 pesetas fine, or in default thereof to suffer the corresponding subsidiary imprisonment not to exceed one-third of the principal penalty, and costs of suit, for the falsification of a private document. Counsel for defendant claims that the accused is guilty of no offense, and certainly not of that of falsification with which he stands charged. The Solicitor-General, for the reasons advanced in his brief, prayed that the appealed judgment be reversed and the whole proceedings in the case declared null and void, costs of both instances to be borne by the Government. The criminal act which is the subject-matter of this prosecution as charged in the complaint filed by the prosecuting attorney on January 14, 1902, has the characteristics of the crime of estafa, defined and punished in article 534 and article 535, No. 1 of the Penal Code. It is a settled principle, established for the proper and correct application of the provisions of the Penal Code in regard, to the crimes of estafaand falsification of private documents, that the mere simulation or fiction of a receipt, letter, note, or any other private document, committed with fraudulent intent, should it appear that there was no attempt made to imitate the writing and signature of the supposed maker of the document does not constitute the offense of falsification of a private document, but that of estafa; and it is held that the note or document used was the means selected by the agent for the commission of the offense known as estafa since the deceit which, together with the injury caused, constitutes one of the principal elements of the above-mentioned offense against property, could not otherwise exist. This case involves the simulation of a note apparently signed by "J. Fernandez," but as it has not been shown that defendant attemped to counterfeit or imitate the true authentic signature of "Juan Fernandez," it is evident that there was no falsification of any private document. The accused availed himself of the bogus note in order to obtain from the aggrieved party, Simeon Bias, through false representations, the amount of 20 pesos receipted for by the accused under an assumed name and signature. Upon these facts a complaint was filed against the defendant, Felix Balmori, charging him with the crime of estafa, setting forth in detail the acts committed by the accused, while at the end of said complaint it is stated that the offense charged is that of falsification of a document. This double classification of the offense is inconsistent with the provisions of section 6, No. 2, and section 11 of General Orders, No. 58, because the act in question constitutes a single offense and it should be specifically designated in the complaint. At the opening of the trial the provincial fiscal agreed with counsel for defendant, with the consent of the judge, that the complaint be amended so as to charge defendant with the

falsification of a private document instead of estafa, and under these circumstances the court proceeded to hear the evidence. After hearing argument by the fiscal and by counsel for the accused, the court declared that the crime of falsification had been committed, found the accused guilty thereof, and rendered the judgment already mentioned. An examination of the record in this case will show not only a discrepancy between the complaint and the result of the evidence, but that an error was committed in charging the proper offense, even after it had been corrected or amended. This error was sustained in the appealed judgment, but as this court reviews the evidence of the offense of which the accused is charged we can not approve of the denomination given the offense in question, nor can we sentence the defendant for a crime which he has not really committed. A new trial should be had upon the filing of a new complaint for estafa. The former proceedings are wholly null and void in all parts subsequent to the complaint, wherefore, in view of the provisions of sections 21t and 37, General Orders, No. 58, the judgment of the court below is set aside and all proceedings subsequent to page 21 of the record are declared void; the cost of suit to be borne by the Government, The judge, upon the filing of a new complaint for estafa, shall proceed in accordance with law. It is so ordered and adjudged. Arellano, C. J., Cooper, Willard, and Ladd, JJ., concur.

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G.R. No. 866, March 11, 1903

THE UNITED STATES, COMPLAINANT AND APPELLEE, VS. APOLONIO SAMSON, DEFENDANT AND APPELLANT. D ECIS ION
MAPA, J.: The accused is charged with the formation of a secret society with political purposes, and his counsel has filed in tliis court a petition, concurred in by the AttorneyGeneral, requesting that the benefits of the amnesty proclamation of July 4, 1002, be extended tA defendant. The offense in question is supposed to have been committed in November, 1901, and, were the charges true, it would fall entirely under the sanction of section 9 of Act 292. This court, having declared that all offenses defined and punished under that Act are comprised in the amnesty proclamation (The United States vs. Maximo Abad, decided October 22,1902),: it is clear that the defendant is entitled to the benefits of said amnesty. Therefore we declare the accused, Apolonio Samson, within the amnesty, provided he files in this court the oath required by the proclamation. So ordered. Arellano, C. J., Cooper, Willard, and Ladd, JJ., concur. Torres, J., did not sit in this case.

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G.R. No. 869, January 16, 1903

THE UNITED STATES, COMPLAINANT AND APPELLEE, VS. BENIGNO PASCUA ET AL., DEFENDANTS AND APPELLANTS. D ECIS ION
COOPER, J.: The defendants, Benigno Pascua, Remigio Quimangan, Bernardino Gampona, Juan Baldivino, and Roman Agapay, are charged in the Court of First Instance of the Province of Ilocos Novte with crimes of lesiones graves, arson, and robbery, committed in the following manner: About 12 o'clock at night, on the 27th day of December, 1900, they went to the house of Sexto Rubio, claiming that they were policemen acting under the authority of the local president of the town of Aring, with orders to talse the complainant before the president, and upon the complainant replying that he could not go at that hour they wounded him by shooting him with a revolver in the left foot and afterwards by several blows with a bolo upon the head, and then set fire to the house of complainant, burning the same, and left, carrying off three goats belonging to the complainant The judge of the Court of First Instance dismissed the charges against the defendant for robbery and arson and placed them on trial for the offense of discharging firearms and lesiones graves. The defendant Prudencio Tasay not having been arrested, and it having been shown to the satisfaction of the court that Ildefonso Caifang and Policarpio Gamit had died, and that Melchor Mangobo had escaped, the trial was proceeded with as against Benigno Pascua, Remigio Quimangan, Bernardino Gampona, Juan Baldivino, and Roman Agapay, and the first four named were found guilty of the charges of lesiones graves and discharging firearms at the injured party, and sentenced to four years and two months prision correccional , with its accessories, and to pay to the injured party 67 pesos and 50 cents. The defendant Roman Agapay was acquitted of the charges. The conviction was under article 408 of the Penal Code, for discharging firearms at the injured party, and article 416 of the same Code for causing serious physical injury to the injured party, by which he was ill and disabled for his usual occupation for a period of more than ninety days. These two articles, in connection with article 89, present a case in which a. single act constitutes two or more crimes, and the penalty corresponding to the more serious crime is imposed in its maximum degree. But the complaint does not charge the offense of discharging firearms at the persons of another, and the judgment is erroneous in convicting the defendants of this offense. The defense of the defendants in the case was an alibi for each of them. While the proof as to the alibi is well supported by the testimony of witnesses, yet such proof can have little weight when the identity of the defendants as the persons who committed the offense has been fully established by eyewitnesses. The testimony of both the complainant Sexto Rubio and his wife is direct and positive, identifying the defendants as the persons who committed the acts. They testify that they had

known the defendants for a number of years; that the defendants lived in the same town, and they fully identify them as the persons who on the .night in question came to the house of Sexto Rubio and committed the offense. Sexto Rubio testifies that on the night in question the accused Benigno Pascua fired seven shots at him with a revolver, striking and wounding him on the left foot, which incapacitated him for nine months. The accused Juan Baldivino fired three shots at him from a Remington rifle, one shot striking him on the right foot, causing a slight wound which was cured in two days. The accused Remigio Quimangan gave him three blows on the head with a bolo, which caused three wounds, from which he recovered in nine months. The accused Melchor Mangobo also inflicted two wounds upon him by kicking him in the right side and on the shoulder, from the effects of which he recovered in fifteen days, and the accused Bernardino Gampona was the party who set fire to the house when Pascua and Baldivino were discharging their firearms. The defendants have made application for discharge under the provisions of the amnesty proclamation of the President of the 4th of July, 1902. While an examination of the record discloses that the defendants were members of the insurgent army, and there is apparently no motive shown for the commission of the offense, Sexto Rubio testifying that there was no ill feeling between him and the defendants, still there is an entire absence of proof to show that the acts were the result of political dissensions or disturbances. The defendants will still have opportunity of applying to the Civil Governor for pardon, and presenting such proofs as they may have in support of an application for discharge under the amnesty proclamation. In view of the fact that there were present in the commission of the crime the aggravating circumstances numbered 15 and 20 of article 10 of the Penal Code, inasmuch as the defendants entered the house of the complainant in the nighttime for that purpose, the judgment of the court below must be reversed as to the conviction of the accused for the offense of discharging firearms, and the defendants Remigio Quimangan, Benigno Pascua, Bernardino Gampona, and Juan Baldivino are convicted of the crime of lesiones graves, punishable under article 416,section 3, of the Code, for the wounds inflicted upon the complainant, and by which he was ill and disabled from his usual occupation for a period of more than ninety days; and we sentence each of them to the penalty of four years and two months of prision correccional in its maximum degree, with the corresponding accessory penalties, to pay to the injured party $67.50, Mexican, as indemnification, under a joint and several obligation, they to suffer a subsidiary imprisonment in case of insolvency, and to one-fourth part of the costs each. The motion for amnesty is denied. Arellano, C. J., Torres, Willard, Mapa, and Ladd, JJ., concur.

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G.R. No. 873, February 10, 1903

THE UNITED STATES, COMPLAINANT AND APPELLANT, VS. SECUNDINO MENDEZONA, DEFENDANT AND APPELLEE. D ECIS ION
TORRES, J.: On the 14th of January, 1902, counsel for the bank (Spanish-Philippine Bank) filed a complaint charging Don Secundino Mendezona with the crime of estafa upon the ground that he, as manager of the firm of Mendezona & Co., on the 5th day of January, 1900,, received from said Spanish-Philippine Bank the sum of $300,000, offering as security among other property the building known as the procuration house of the Franciscan Friars, this offer being contained in a letter addressed to the management of the bank; that on the 19th of February following, of the same year, Mendezona by another letter asked and obtained a further credit of $300,000 as an extension of the former credit, offering as security the same property; that demand having been made upon the accused for the execution of the corresponding mortgage deed which he had verbally undertaken to execute, he stated that the notary public, Mr. Barrera, had the title deeds or papers of the property, and thus fraudulently succeeded in putting off the execution of the mortgage deed up to the 6th day of August, 1902, on which date Mendezona as such manager sold the said procuration building for the sum of $400,000, subject to the right of redemption, to Messrs1. Juan Martinez Ybanez, Manuel Ybeas, Felipe Garcia, and Jorge Romanillos, the vendor having declared in the deed of sale that the property was free from all charges and incumbrances, these acts having been committed against the form of the statute made and provided and to the damage of the bank in the sum of at least $150,000. The complaint was admitted and the Court of First Instance conducted the corresponding preliminary investigation. The proof taken discloses that on the 22d of November, 1899, a verbal contract of sale was entered into between the representatives of the Franciscan Friars and Don Secundino Mendezona, manager of the firm of Mendezona & Co., concerning the said city property situated on Isla de Romero Street and known as the procuration building. The consideration was $190,000, which sum, as a result of a subsequent agreement, was to be left on deposit with the firm of Mendezona & Co., drawing interest at 8 per cent per annum, the purchaser being authorized to take immediate possession of the property and to make such alterations therein as he might deem necessary. This verbal contract appears to have been confirmed by letter. (Record, p. 12.) It also appears from the record of the preliminary investigation that toward the end of November, 1899, Don Secundino Mendezona took possession of the property sold, and commenced the work of making alterations in the same, and that on the 21st of July, 1900, the corresponding deed of conveyance of the said property was drawn. It also appears that this procuration building stands on the books of Mendezona & Co. as an asset valued at $250,000, and that the books show as a liability a debit of $190,000 in favor of the Franciscan Friars on the 1st of January, 1900. It also appears that several demands were made on the accused Mendezona after the month of March of that year for the execution by him of a public deed of mortgage but that this was not done, he simply replying that the papers or title deeds of the property were being prepared for

the purpose of delivering them to the notary, Barrera. The contract of sale agreed upon in November, 1899, was not formally executed before Sr. Barrera until the 21st of July, 1900. The notary testifies under oath that the documents connected with the procuration building were delivered to him by the father provincial of the Franciscan Friars on the second or third month before the date of the execution of the deed of sale of the said building, and that the father provincial also delivered to him the draft of the instrument which stipulated that the consideration for the sale of the procuration building to Mendezona & Co. was to remain in the possession of the firm as a deposit. From the text of the complaint upon which this preliminary investigation was commenced, and which was finally terminated by the appealed order, it is evident that the charge of estafa brought against Mendezona consists in the allegation that he, acting fraudulently and in bad faith, delayed the performance of the offer made by him to the Spanish-Philippine Bank to securing the two sums received by him from the latter as a loan on the 5th of January and the 19th February, 1900, by eluding the execution of the mortgage of the so-called procuration building of the Franciscans up to the 6th of August, 1900, on which day he sold the same to the Augustinian Fathers for the sum of $400,000, having declared in the instrument of conveyance executed to that effect that this property was free from all incumbrance or gravamen. So that the facts set forth in the complaint and alleged to constitute the crime of estafa are two: (1) That of having failed to perform the promise to give a mortgage on the said procuration building for the purpose of securing the payment of the |600,000 received from the bank, he availing himself of subterfuge and deceitful means to avoid the execution of the mortgage deed, and (2) that of having declared in the deed of sale to the Augustinian Fathers that the said building was free from all incumbrance or gravamen, when as a matter of fact it had been offered in mortgage, and that these facts constituted a violation of the Penal Law. The complaint uses the generic term of estafa as the classification of the crimes with which the accused is charged but without determining the species of fraud committed, or citing the article of the Penal Code violated, although this was subsequently done in the printed briefs filed by the complainant, asking that articles 535, section 1, and 537, and 541 of the Penal Code be applied. The first of these two facts charged in the complaint, if proven, would fall within article 541 as constituting an estafa not penalized by the preceding articles which define and punish such crimes. The second of the facts charged, if proven, would fall under the sanction of section 2 of article 537 of the Code, because in such case the accused would have disposed of the property, selling it as unencumbered, knowing at the time that it was subject to a gravamen. The mere fact of the nonperformance of the offer or (promise to give a mortgage as agreed upon between the contracting parties does not constitute the crime of estafa or any other crime, unless the party bound has acted fraudulently and in bad faith when contracting the principal obligation and when making the promise to give security. Can it be concluded from an examination of the preliminary investigation that when the two contracts of loan of $300,000 each were made between the manager of the bank, Seffor Balbas, and the accused Mendezona, that the latter acted deceitfully and with the malicious intent to defraud the bank, and with the intent to break his promise to give the said procuration building, among other property, as

security for the performance of the obligation? The result of an examination of the record is a negative answer. Article 1862 of the Civil Code provides that the promise to mortgage or pledge only produces a personal action between the contracting parties, without prejudice to the criminal liability incurred by him who defrauds another offering in pledge or mortgage, as unencumbered, things which lie knew to be encumbered or pretending to be the owners of things which do not belong to him. It is evident, therefore, that the promisor may be compelled by the proper personal action to perform his promise; but the mere breach of the contract or nonperformance of the promise does not result in a violation of the Penal Law. The article cited provides that criminal liability attaches to the defrauder in the cases expressed, none of which are applicable to the accused because he has not offered things which he knew to be encumbered, nor has he pretended to be the owner of property which did not belong to him. Mendezona had a perfect right to offer this building as security, inasmuch as it was not the property of another nor was it encumbered; and the subsequent disappearance of the promised security by the sale of the property to the Augustinian Friars does not constitute the commission of the crime of estafa because it does not appear that a deceitful intent existed at the time that the loan was made and the security was offered. The obligations contracted were merely personal, subject to all the eventualities which are common to those of its class, and which should be met by prudence and foresight on the part of creditors. The unusual facility with which the accused Mendezona obtained from the management of the bank two sums of $300,000 on two different occasions at an interval of forty-five days is a circumstance which should be explained not only by the person to whom the money was lent but also by the management of the bank. In order to form a judgment as to the action of Mendezona with respect to the offer to secure the money borrowed and in order to determine whether he delayed the execution of the mortgage deed fraudulently and in bad faith, it is necessary to hold in view that the deed of sale of the property was only executed by the vendors on the 21st of July, 1900, and it is selfevident that without the deed of sale it would have been impossible to have executed the mortgage or to have had it recorded in the Registry of Property. The record shows that the title deeds to the procuration building sold were in the possession of the Franciscan friars, the former owners, as it was the father superior of the latter who delivered them to the notary, Barrera. This was two or three months prior to the date of the deed of sale, July 21. Hence it is evident that the delay which occurred in the drafting and execution of the deed is not chargeable to the accused. This delay, not imputable to him, can not be made to constitute evidence of fraudulent acts committed by deceit on the part of the accused himself, who, according to his testimony in the record, had not even seen the title deeds to the property sold by him. The delay, if any, was doubtless on the part on the provincial of the Franciscan friars and the notary, Barrera, who took two or three months to draw the deed of sale of the property. The record contains no evidence whatsoever to controvert or overcome this result of the preliminary investigation, and as it does not appear that the Franciscan friars delivered the old title deeds of the building to the purchaser after the verbal sale stipulated in November, 1899, it is to be presumed that Mendezona's affirmation was true even, though it be a fact that demand was made on him for the execution of the deed by the agents of the bank, because in the ordinary course of events the vendor holds the title deeds of the property until the execution of the deed of conveyance, and no evidence to the contrary has been offered in this case to overcome the presumption. Sixteen days after the execution of the deed of sale of the

procuration building to the accused, the latter sold it in turn to the Augustinian friars for $400,000, subject to the right of redemption, and by this operation the accused put it absolutely out of his power to secure the credit of the Spanish-Philippine Bank by a mortgage on the said property. Was the crime of estafa committed by this proceeding, by selling the property which had been promised as security for the large amount loaned? We think not, because the accused when he offered the property as security for the loan was in possession thereof as owner, and therefore when he contracted the personal obligation he did not act in bad faith nor did he practice deceit. The mere nonperformance of this obligation does not constitute the crime of estafa. The deceit, in cases of fraud, nmst be antecedent to the obligation in which it originates, and be the cause of the latter and not supervenient thereto. This is the doctrine established by the supreme court of Spain in its judgments of the 7th of January, 14th of March, and 23d of June, 1888, and the 18th of December, 1889, which we think proper to cite in the interpretation and application of the precepts of the Penal Code of Spanish origin. With reference to the status of the property sold it is unquestionable that it was unencumbered on the 6th of August, 1900, and can not be regarded as having been encumbered or mortgaged merely by its having been offered or promised as security for the money loaned. The promise made by a borrower to give a mortgage upon his property does not result in the attachment of the mortgage offered. In order that a mortgage may be regarded as existing and productive of legal effects it is indispensable that the formalities prescribed by articles 1857 and 1874 et seq. of the Civil Code, and articles 105 et seq. of the Mortgage Law, applicable to the case, be complied with. The doctrine established by the Supreme Court of Spain with respect to the interpretation and proper application of article 550 of the Penal Code of Spain, which is the equivalent of article 537 of the Code now in force in these Islands, confirms the doctrine above laid down and is not overruled by any subsequent judgment. The judgment of October 29,1888, among other things holds that the simple promise to constitute a mortgage does not fall within any of the precepts of article 550 of the Spanish Codethe equivalent of article 537 of the Code.of the Philippinesbecause it is not the same thing to make a promise as to perform the act promised. The decisions of January 7, and March 14, 1888, above cited among other things established the doctrine that for the application of the provisions of the above-cited article of the Penal Code it is necessary that the gravamen imposed on the property be legally constituted by means of the essential formalities prescribed by the law, as otherwise the promise is productive of nothing more than a mere personal obligation. Consequently, unless real property is mortgaged by a public instrument recorded in the Property Register in accordance with the prevailing law the gravamen referred to by article 537 of the Penal Code for the purposes of the application of its precepts can not be considered as existant. (Arts. 1875 and 1880 of the Civil Code.) These rulings are directly applicable to the facts alleged by counsel for the Spanish-Philippine Bank. In order to bring the case within paragraph 1 of article 537, or paragraph 1 of article 535 of the Penal Code it must appear by the record (1) that Mendezona pretending to be owner of the property without being such owner had offered it as security for the credit of the bank and had subsequently sold it to the Augiistinian friars, or (2) that Mendezona defrauded the bank by pretending to be solvent in a higher degree and to own property which he did not have for the purpose of obtaining the loan of the $600,000. The preliminary investigation does not show that the accused when offering this property to the bank as security and when selling it to the Augustinian friars was not the owner thereof, or that he was without the right to dispose of it. On the contrary, it appears fully therefrom that Mendezona when he offered the procuration house of the Franciscans as security for the money

received from the bank, had purchased it more than a month before, was in possession of the premises, and the consideration paid therefor was in the hands of Mendezona & Co. as, a deposit, drawing interest at the rate of 8 per cent in favor of the vendor friars; and although the corresponding instrument was not drawn until six months afterwards it is nevertheless true that the accused was in possession of the house as owner by virtue of a perfectly valid verbal contract from which rights and obligations of unquestionable legality doubtless arose, and therefore the accused was in a position to transfer his right of ownership in the property to the Augustinian friars, who, on their part, have not made any complaint whatsoever. (Arts. 1450 and 1451 of the Civil Code and others applicable.) Nor does it appear from the record of the preliminary investigation that the second of the indicated acts has been committed so as to fall within the provisions of article 555, No. 1, of the Penal Codethat is to say, that Mendezona has defrauded the bank by pretending to be possessed of greater means than he really had at his disposal at the dates of the loans. Furthermore, it must not be forgotten that in a criminal prosecution the investigation and proof is limited to the facts alleged, that is, to the acts or omissions with which the accused is charged, as he is entitled to be informed of the nature and cause of the accusation. (Arts. 6 and 15, G. 0., 58.) The two facts falling within the scope of article 535, No. 1, and article 537, No. .1, of the Penal Code, and set up by the complainant in its brief are not alleged in the complaint, and although they are designated in the criminal law as constituting the crime of estafa they have not been properly charged, and the complaint has not been amended so as to include them. In view, therefore, of the negative result of the preliminary investigation we hold that the appealed order must be affirmed inasmuch as it does not appear from the record that the accused has committed the acts charged as constituting the crime of estafa. The ruling of the court below is sustained and in accordance with sections 13 and 14 of General Orders, No. 58, the appealed order is hereby affirmed with the costs of both instances de oficio. So ordered. Arellano, C. J., Cooper, Willard, and Mapa, JJ., concur. Ladd, J., disqualified.

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G.R. No. 878, January 02, 1903

EVARISTO ALVAREZ, PLAINTIFF AND APPELLEE, VS. LEON MONTINOLA ET AL., DEFENDANTS AND APPELLANTS. D ECIS ION
ARELLANO, C. J.: On the 25th of October, 1898, one of the defendants, Rufino Diamanan, by a private document sold to the plaintiff, Evaristo Alvarez, forty head of carabaos for the sum of $2,500, which amount was duly paid by the latter to the former, as appears from the instrument of sale itself. The purchaser agreed to reconvey the carabaos to the vendor at any time within three years from the date of sale on the repayment of the purchase pricethe sale to be absolute and the seller to execute the proper credenciales of transfer in case Diamanan failed to make repayment to Alvarez within the time limited, to wit, on or before October 25, 1901. From the time of the sale so made until the 21st of December, 1900, the property conveyed continued in the possession of the plaintiff. On the 21st of December, 1900, Leon Montinola, in an executive action prosecuted by him against Rufino Diamanan to recover certain sums of money alleged to be due to him, the said Montinola embargoed 23 head of these carabaos as the property of his debtor Diamanan. On the 12th of January, 1901, Alvarez commenced the present proceeding of intervention under claim of ownership, alleging that he and not Rufino Diamanan was the owner of the embargoed animals, and demanded that the embargo laid thereon be raised and the property returned to him as the rightful owner thereof. The court below adjudged that plaintiff's intervention as the owner of the property embargoed in the executive action prosecuted by Montinola against Diamanan was well founded, and raised the embargo. Montinola appealed. An examination of the record not having disclosed any error of fact or law the judgment is affirmed, each party to pay his own costs. So ordered. Torres, Cooper, Willard, Mapa, and Ladd, JJ., concur.

OSJurist.org

G.R. No. 889, November 28, 1903

THE UNITED STATES, COMPLAINANT AND APPELLEE, VS. TEODORO OLIGARES, DEFENDANT AND APPELLANT. D ECIS ION
COOPER, J.: Teodoro Oligares was charged with the crime of homicide in the killing of Guillermo Salvador, alleged to have been committed in the following manner: On the 11th day of October, 1901, in the barrio of Nancamaligan, town of Urdaneta, of the Province of Pangasinan, Teodoro Oligares inflicted two serious wounds with a bolo on Guillermo Salvador, from the result of which the latter died on the day following. The defendant was found guilty by the Court of First Instance and was sentenced to fourteen years eight months and one day of reclusion temporal, with the accessories, and to the payment of an indemnification of 500 pesos to Sinforosa Palangco, the widow of the deceased Guillermo Salvador, and to the payment of the costs of the proceedings. From this judgnient the defendant has appealed to this court. One of the errors assigned is that it was not proven that the accused was the author of the death of the deceased, Guillermo Salvador. There were five witnesses who testified for the prosecution, and while none of them witnessed the inflicting of the wounds by the accused upon the deceased, yet we think it has been established beyond a reasonable doubt that the killing of the deceased was done by the defendant. Luis Salvador, a witness for the prosecution, testified that he went to the place at which the deceased and the defendant were almost immediately after the occurrence; that the defendant, Teodoro Oligares, still had in his hand the bolo with which the wounds had been inflicted; that he found the deceased sitting down; that the defendant was then still in the presence of the deceased; that the deceased stated to the witness he had called him to come there because he had had a quarrel with the defendant concerning the boundaries of their land and had been wounded by the defendant; that the witness turned to the defendant and asked him if it was true and the latter said that it was; that the deceased was wounded in the neck and on the left shoulder and that the wounds were inflicted by one stroke of a bolo; that the bolo with which the Avounds were inflicted belonged to the deceased; that the deceased did not speak again after the conversation above stated and died the next day; and that at the time the witness arrived at the place of the killing the defendant was applying some remedies made of herbs to the wounds of the deceased. Sinforosa Palangco, the wife of the deceased, testified that, being informed of the quarrel between the deceased and the defendant, she went to the place and found there present the deceased, the defendant, and Luis Salvador; that her husband at that time was unable to speak; that the defendant was sitting at the side of Luis Salvador and had in his hand the bolo which belonged to the deceased; that the deceased was a nephew of the defendant's wife. The defendant testified in the case and stated that on Friday, while he was at home, a boy came to say to him that the deceased, Guillermo Salvador, was wounded and wished the

defendant to render him assistance; that at the time he arrived at the place where the deceased was he found him sitting down; that it was at a place within the boundaries of his (the defendant's) land; that when he reached the place where the deceased was he found the latter had been wounded and was bleeding freely; that the witness spoke to the deceased and asked him who had wounded him; that the only reply made by the deceased was that he came from the rice field ; that the witness did not ask him the second time, because the deceased requested him to go home for medicines to apply to his wounds; that he accordingly at once went off for medicines in order to save the life of the deceased, and, when he returned to apply them, Luis Salvador arrived; that up to this time the deceased was not able to speak; that Luis Salvador accused the witness of being the party who had wounded the deceased in a dispute about the boundaries between their lands; that he denies having made a statement to Luis Salvador to the effect that he (the witness) stabbed the deceased. The witness further stated that there was trouble between him and Luis Salvador on account of their land boundaries. Alipio Benito testified that on Friday evening the defendant had sent him to repair the fence around the defendant's land; that while he was there working he saw the deceased approaching the place, and that the latter asked him to call the defendant at once to treat his wounds; that the witness did not ask the deceased what was the matter with him, because he was told to call his master at once and immediately went off; that he did not see the wounds; that he went to the house of the defendant at. about 2 o'clock and found him there asleep; and that it was about 4 o'clock when the defendant left his house and said to the witness, "Wait a minute, I am going to speak first to these two men," referring to two men who were then present; that the witness supposes the defendant did not go to render the deceased assistance immediately because he wanted to have a conversation with these two men; that it was important for him to speak to them because he wanted to send them to plant sweet potatoes. On cross-examination, this witness stated that when he saw the deceased the latter was coming over the rice field, very muddy, and was wounded and told the witness to call his master, as he had been wounded and required treatment. Two other witnesses for the defendant Pedro Malde and Agapito Presto, testified that they were at the house of the defendant when Alipio Benito came and reported that the deceased had been wounded and wanted the defendant to come and treat his wounds. These witnesses testified that they were planting potatoes and that they continued their work and did not see the deceased. The statement of the witness Alipio Benito seems entirely improbable. That the defendant should have delayed going to the place where the deceased was lying for two hours after having been notified of the distressed condition of the deceased, for so trivial an excuse as was given, is not probable; nor is the statement made by this witness that when he first saw the deceased the latter was coming across the rice field, muddy and wounded, probable, in view of the serious nature of the wounds which had been inflicted on the deceased. It was a strange circumstance also that neither this witness nor the defendant, when they reached the place where the deceased was found wounded, remained long enough with the deceased to ascertain from him who had inflicted the wounds, the explanation of the witness Benito being that the reason why he did not ask the deceased what was the matter with him was because the deceased had requested him to call his master at once, and he immediately left; while the explanation of the defendant was that he asked the deceased what person had wounded him and, failing to receive a reply, did not ask the deceased a second time, because he immediately left for medicine to apply to the deceased's wounds.

The defendant's counsel further contends that,if the killing really was done by the defendant, it is probable that he and the deceased were engaged in strife, and, in a critical moment, the defendant seized the bolo of the deceased and wounded him and that the case falls within the provisions of No. 4, article 8, of the Penal Code, which exempts from criminal liability those who act in defense of their person. The fact that the bolo with which the deceased received his mortal injuries belonged to the deceased is a circumstance which might be considered under a different state of facts than exist in this case, but in view of the failure of the defendant to state in the admissions made by him to Luis Salvador that he had inflicted the wounds upon the deceased in a quarrel and in self-defense, and the failure of the defendant when testifying in his own behalf to justify himself as having acted in self-defense destroys the effect of the circumstance that the bolo with which the wounds were inflicted belonged to the deceased. We think the defendant should be given the benefit of article 11, Penal Code, as a mitigating circumstance. This will reduce the term of imprisonment to twelve years and one day of reclusion temporal, and, proceeding to correct the judgment of the Court of First Instance in this particular, we now adjudge the defendant, Teodoro Oligares, guilty of the offense of homicide as charged in the complaint and sentence him to imprisonment for a term of twelve years and one day of reclusion temporal. , with accessories, and to the payment of an indemnification of 500 pesos to Sinforosa Palangco, the wife of the deceased Guillermo Salvador, and to pay the costs of the proceedings. Arellano, C. J., Torres, Willard, Mapa, and McDonough, JJ., concur. Johnson, J., did not sit in this case.

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G.R. No. 893, March 18, 1903

I. O. CONCHEGULL; PLAINTIFF AND APPELLANT, VS. JOSEPH B. HYAMS, DEFENDANT AND APPELLEE. D ECIS ION
WILLARD, J.: The plaintiff, the owner of a horse, harness, and calesa, arranged a rattle for the purpose of disposing of them. He received for the tickets sold $210. On January 3,1902, he took the property to the place where the drawing was to be made. The tickets were placed in a box, and the last one drawn, which was the defendant's, was the winning one. Immediately after the drawing it was discovered that a ticket owned by Irwin had not been placed in the box. A discussion arose among the twenty or forty ticket holders present as to what should be done, some demanding that there should be another drawing. The defendant in the meantime settled with Irwin by giving him a half interest in the property, got into the calesa, remained there five minutes or more, and then drove away. It appears that the plaintiff did not, after the drawing, expressly give his consent to this act of the defendant. But. it is also proved to our satisfaction that the plaintiff was there at the time and made no objection to it. The defendant refused to return the property, and the plaintiff brought this action to recover it. He bases his right on the proposition that he was the owner of it, that the defendant took it from him against his will and has refused to return it. 1. The case turns, in our opinion, upon the question whether these effects were voluntarily delivered by the plaintiff or not. The plaintiff had received for them $210. The only purpose of the drawing was to determine which one of the ticket holders was the owner. The plaintiff brought the property to the drawing for the purpose of allowing the owner to take it away when that owner should have been designated. As the plaintiff himself says in his brief, it was "waiting" outside. After the winner was known no affirmative action on the part of the plaintiff was necessary in order to place him, the winner, in possession. The property was there for the express purpose of being taken away by him. The plaintiff saw it so taken away and made no objection. To our minds the case does not differ from one in which two persons playing a prohibited game place the stakes on the table. At the end of the game the winner takes up the money and goes away with it. It is true that after the game there is no actual delivery of the money by the loser to the winner, nor is there any express consent that the latter may take it away, but it can not in such a case be doubted that the loser has voluntarily paid what he has lost. He expressed his consent that the winner might take the money when he placed it on the table and agreed that it should abide the result of the game. We should have had a different question had the plaintiff not taken the property to the place for the drawing. So the case would have been different had the plaintiff after the drawing objected to its removal by the defendant. In our opinion the plaintiff voluntarily delivered the property to the defendant, and he can not, therefore, recover. It makes no difference whether the transaction was or was not illegal. If, as respects the plaintiff, the raffle was illegal because prohibited by the ordinance of the city of Manila of

December 5, 1901, and it can be said that he lost the property by a prohibited game of chance, then article 1798 of the Civil Code prevents him from recovering it, for he voluntarily paid what he lost. If, on the contrary, it should be said that, while the defendant won the horse by a prohibited game, yet the plaintiff, having been paid $210 for it, did not lose it by such a game, we have an ordinary sale of personal property, the payment of the price, and the delivery of the article to the purchaser. 2. The defendant, against the objection and exception of the plaintiff, was allowed to prove the facts connected with the raffle, 'this ruling was correct. When an action is brought to recover property it is competent for the defendant to show, if he can, that he won the property from the plaintiff by gambling, and that the plaintiff voluntarily delivered it to him. Such evidence defeats a recovery. (Art 1798, Civil Code.) The judgment is affirmed, with costs against the appellant Arellano, C J., Cooper, Mapa, and Ladd, JJ., concur.

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G.R. No. 900, February 14, 1903

THE UNITED STATES, COMPLAINANT AND APPELLEE, VS. PEDRO LARDIZABAL, DEFENDANT AND APPELLANT. D ECIS ION
ARELLANO, C.J.: It appears that the act with which the accused is charged is that he, while commanding officer of a column of the Filipino army operating in the Island of Marinduque, at a time when he had in his possession an American prisoner of war, having ordered a retreat on account of the immediate presence of the enemy, and considering that the prisoner owing to his weak condition could not keep up with the forced marches of the column, and that in case of his being left where he was he might indicate the direction taken by the column and thus expose it to the danger of falling into the hands of the enemy, directed that this prisoner be executed, an act which unquestionably constitutes a violation of the laws of war. The purpose of the proclamation of amnesty in favor of the "insurgents who have been until recently resisting the authority and sovereignty of the United States" is "to relieve them from the penalty to which they might have rendered themselves liable by reason of their participation in the insurrections mentioned and by reason of having committed during such insurrections acts in violation of the law." With regard to LardizabaFs participation in the insurrection it was not necessary for him to avail himself of the benefits of the amnesty inasmuch as he had voluntarily surrendered prior to the promulgation thereof. He was prosecuted on a criminal charge for an act done by him during the insurrection, but this was not an isolated act such as a "political offense committed during the insurrection pursuant to orders issued by the civil or military insurrectionary authorities," but was a measure which, whether necessary or not, was inherent in the military operations for the preservation of the troops commanded by him and of which he was the supreme officer on that island. It was an act which, while from the standpoint of military law might be regarded as one of cruelty, was at the same time one depending absolutely upon the discretion of an officer in charge of a command for securing the safety of the troops under his control and constitutes no other offense than that of sedition, within which term the war itself is included by the letter and spirit of the proclamation. Therefore as the principal offenses of treason and sedition, committed by those who, by reason of their participation in the insurrections mentioned, were undergoing prosecution at the time of the publication of the amnesty proclamation fall within its scope, and as the accused took part against the United States in the insurrection by placing himself at the head of an armed troop, which in his judgment could not be saved from falling into the hands of the enemy except by means of the removal of a prisoner of war who could have put upon the tracks of the retreating forces the army which was entering the island, he is in our opinion guilty of an act which, although a violation of the laws of war, is one which was inherent in his military operations, and in consequence must be considered as an act of sedition. Lardizabal is, therefore, entitled to the benefits of the amnesty proclamation. We therefore hold that he is entitled to the amnesty, upon condition of taking the oath prescribed by the proclamation, upon which the criminal case brought against him for murder shall be dismissed.

Torres and Cooper, JJ., concur. Ladd J., concurs in the results of this opinion. Willard, J., dissents.

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G.R. No. 905, February 12, 1903

ISABEL VELASCO Y RESURRECCION, PLAINTIFF AND APPELLEE, VS. FRANCISCO LOPEZ Y LOPEZ, DEFENDANT AND APPELLANT. D ECIS ION
LADD, J.: The plaintiff is one of the next of kin, and the defendant the testamentary heir, of Santiago Velasco, who died at Kamacpacan, in La Union, December 4, 1895. The plaintiff seeks a declaration that Velasco's will is void on several grounds, only one of which, in the view we have taken of the case, it will be necessary to consider. The will in question was an open one, executed before a notary and three witnesses. The date of the execution of the will is expressed therein in the following words, via: "In San Fernando, on the twenty-second of December, eighteen hundred and ninety-three." The hour is not stated. It is claimed that this omission invalidates the will. Book III, Title III, Chapter I, article 695, of the Civil Code, provides with reference to open wills as follows: "The testator shall express his last will to the notary and to the witnesses. After the testament has been drafted in accordance with the same, stating the place, year, month, day, and hour of its execution, it shall be read aloud," etc. Book III, Title III, Chapter I, article 687, provides that "Any will,, in the execution of which the formalities respectively established in this chapter have not been observed, shall be void." The word "formalities," in the connection in which it is here used, refers to the mode or form in which the juristic act of executing a will is to be performed. As respects each one of the several classes of wills established by the Code, certain directions are given as to the manner in which the intention of the testator must be expressed. Article 687, establishing a sanction to secure the observance of these rules, provides that if they are not followed, the will shall have no legal existence. The sanction of article 687 is general. No exceptions are recognized. Its language excludes the idea of a distinction between essential and nonessential formalities. All the formalities prescribed are equally essential, and in order that an expression of testamentary intention may operate as a will, producing legal results as such, it must be clothed with all these formalities, however insignificant they may be in themselves, or however meaningless they may be when considered in relation to the circumstances of the particular case. Such is obviously the effect of article 687 considered independently, and we find nothing in the other provisions of the Code on the subject of wills which directly modines the meaning of this article or inferentially indicates a different legislative intent. The place where and the time when a juristic act is performed are often material circumstances in determining its validity or consequences. Ordinarily the time relation of the act is sufficiently defined by fixing the year, month, and day. Article 695 provides that in an open will the time of execution must be fixed by expressing not only these details but also the hour. The law thus explicitly defines, as respects open wills., in what this particular formality shall consist. Nothing is left to inference, as would be the case, for example, if the provision were merely that the will

should be dated. There is no room for interpretation. Although a will has always been considered an essentially formal instrument, the expression of the date with the detail prescribed in article 695 is an unusual, and may perhaps be regarded as an unnecessary requirement. This provision, however, was not without precedent in foreign systems of legislation at the time of its enactment (see article 771 of the Civil Code of Guatemala of 1877), and it has since been followed in at least one foreign Code (see article 892 of the Civil Code of Honduras of 1899). Its purpose is easily perceived. It is to provide against such contingencies as that of two competing wills executed on the same day (Quintus Mucius Scaevola, Commentaries, Vol. 12, p. 425; Manresa id ., Vol. 5, p. 508), or of a testator becoming insane on the day on which the will was executed (Manresa, ubi supra ). We may assume that the framers of the Code regarded the requirement as a desirable one for these and perhaps for other reasons. No. 15 of the law establishing the bases in accordance with which the Code was to be framed provides, with reference to the subject of successions, that "the substance of the existing legislation respecting testaments in general, their form and solemnities shall be maintained * * * and the law now in force reduced to order and systematized, and supplemented with such provisions as may tend to secure authenticity and facility in the expression of wills." The framers of the Code doubtless understood that in requiring in open wills the expression not only of the year, month, and day of their execution but also of the hour, they* were following the precept of the law of bases by preserving the existing rule (Alcubilla, Dictionary of Spanish Administration, Vol. 9, p. 749) and providing an additional safeguard of authenticity. But we are not concerned with the expediency of the provision in question, nor is it necessary for us to satisfy ourselves as to the considerations which led to its adoption. The language of the law is too plain and unambiguous to justify us in entering upon such inquiries for the purpose of ascertaining the legislative intent. And to the argument that the requirement has no appreciable practical utility and is calculated in a great majority of the cases in which it may be invoked for the purpose of invalidating a will to work injustice and hardship, by defeating the purposes of the testator and disappointing the expectations of his intended beneficiaries, it is a sufficient answer to say that we must administer the law not as we think it ought to be but as we find it and without regard to consequences. We are not authorized to distinguish where the law has made no distinction. If we could hold in this case that the expression of the hour might be omitted in an open will, we might, with equal reason, in a case where the testator's testamentary capacity was unquestioned and no claim was made that the will had been revoked by a subsequent one, hold that the day, the month, or the year could be omitted; so we might hold that two witnesses instead of three were sufficient, and in short we might go on disregarding one formality after another, in order to subserve the justice of the particular case, until we had repealed the entire system established by the Code. We have discovered nothing in the jurisprudence of the supreme court of Spain which is in conflict with the views above expressed. In a decision of November 17, 1898, a holographic will dated January 2, 1895, but written on stamped paper of 1894, was held valid, although article 688 provides that in order that will's of this class may be valid they must be written "on stamped paper corresponding to the year of their execution." The decision is put upon the ground that the date of a holographic will is not absolutely determinative of the time of its execution; that the time of the execution of a holographic will, there being in that class of wills no legal requirement of unity of act,

comprehends the entire period required to complete the work of drafting the will, provided there is no voluntary suspension of the work by the testator; that such period may and commonly does extend over several days; and that in the case then under consideration the proximity of the date of the will to the termination of the preceding year afforded reasonable ground for supposing that its execution had been begun in 1894. It is clear from the reasoning of the court that in a case where it was shown that stamped paper of a different year from that of the execution of the will had been used, the failure to comply with the requirement of the law would be held to entail the nullity of the will an open will had been executed, certified in accordance with article 699 in the will that it had been read by him, but without using the precise language of article 695, which provides that the will shall be read "aloud." The court held that the statement of the notary sufficiently indicated that the formality of reading the will aloud as provided in article 695 had been followed. In this case also it is to be inferred that if it had not been impliedly stated by the notary that this formality had been complied with the omission to so state would have invalidated the will. In a decision of April 4, 1895, a number of erasures, corrections, and interlineations made by the testator in a holographic will, had not been noted under the signature of the testator, as provided by paragraph 3 of article 688. It was held that the will was not thereby invalidated as a whole, but at most only as respects the particular words erased, corrected, or interlined. But the requirement of paragraph 3 of article 688 is not in any true sense one of the formalities of the holographic will, which are all enumerated in paragraph 2 of that article; it is a formality the scope of which is limited upon a proper construction of the law to the particular parts of the instrument affected by it. It is upon this ground, among others, that the decision is rested by the court, and the casttis therefore no authority for the proposition that any of the formalities which in their nature affect the will as an entirety, applying equally to all parts of it, can be disregarded without rendering it invalid. On the other hand, although the exact question presented in .this case appears never to have been expressly decided, there are numerous cases in which wills have been declared void for nonobservance of formal requirements (judgments of February 16, 1893; May 31, 1893; May 5, 1897; July 14,1899; February 12,1901; June 1,1901)., and from the language used by the court in the judgments qf June 5, 1894, and June 18, 1896, it may be fairly inferred that the provision in question is understood to be of a like imperative character. Arellano, C. J., Torres, Cooper, and Willard, JJ., concur. Mapa, J., did not sit in this case.

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G.R. No. 910, February 10, 1903

PRAUTCH, SCHOLES & COV PLAINTIFFS AND APPELLEES, VS. DOLORES HERNANDEZ DE GOYENECHEA, DEFENDANT AND APPELLANT. D ECIS ION
WILLARD, J.: The plaintiff in this case is Prautch, Scholes & Co. This appears from the complaint and from the judgment. The fact stated in the, complaint that the recovery is for the use of A. W. Prautch does not make him the plaintiff. The court below having allowed Prautch, Seholes & Co. as a juridical entity to recover, the defendant objected to the judgment on this ground, and has assigned as error in this court such ruling. This partnership was engaged in the business of buying and selling cows, woods, bricks, and the products of the country. The proofs show that it never attempted to comply with any of the requirements of the Code of Commerce. If it had complied with that Code it would have been a juridical person. (Article 116.) Assuming, without deciding, that civil partnerships are also juridical persons, did Prautch and Scholes not having complied with the Code of Commerce nevertheless become a civil partnership and thus acquire a personality of its own? Article 35 of the Civil Code provides that the following are juridical persons: 1. The corporations, associations, and institutions of public interest recognized by law. Their personality begins from the very instant in Which, in accordance with law, they are validly established. 2. The associations of private interest, be they civil, commercial, or industrial, to which the law may grant proper personality, independent of each member thereof. Article 36 is a follows: "The associations referred to in No. 2 of the foregoing article, shall be governed by the provisions of their articles of associations, according to the nature of the latter." It becomes necessary to know what partnerships are civil and what ones are mercantile in order to know in a particular case by what provisions of law the partnership there in question is governed. Is a commercial partnership distinguished from a civil one by the object to which it is devoted or by the machinery with which it is organized? We think that the former distinction is the true one. The Code of Commerce of 1829 distinctly provided that those partnerships were mercantile which had for their object an operation of commerce. (Art. 264.) The present Code has not in our opinion made any radical change in this respect. Article 123 provides that mercantile partnerships may be of any class provided that their agreements are lawful and their object industry or commerce. Article 1, 2, declares that mercantile and industrial partnerships are merchants. It does not say that all partnerships are merchant even if organized under this Code. It is true that article 118 provides that the contract of partnership shall be mercantile whatever may be its class

provided it is organized in conformity with the requirements of the Code. Whatever this may mean it can not be construed as indicating that a partnership organized for a purpose not connected at all with industry or commerce shall be a mercantile partnership, thus rendering useless the whole of article 123, and unnecessary the words "mercantile and industrial" in article 1, 2. The present Code does not therefor allow partnerships not included in article 123 to organize under it. That permission is, however, given td'them by article 1670 of the Civil Code. This article 1670 is entirely inconsistent with the idea that civil and mercantile partnership are distinguished only by the methods of their organization. (1) Its language is: "Civil partnerships, on account of the objects to which they are devoted." (2) If article 116 of the Code of Commerce is to be so construed that all partnerships organized in conformity with that Code are mercantile no matter to what ends they are devoted then this article of the Civil Code is unnecessary and useless. If, however, the true distinction is found as we believe in the objects to which the partnerships are devoted, this article can have effect. The Code of Commerce declares the manner in which commercial partnerships can be organized. Such organization can be effected only in certain well-defined ways. The provisions of this Code were well known when the Civil Code was adopted. The author of that Code when writing article 1667, having in mind the provisions of the Code of Commerce, did not say that a partnership may be organized in any form, which would have repealed the said provisions of the Code of Commerce, but did say instead that a civil partnership may be organized in any form. If that section includes commercial partnerships then such a partnership can be organized under it selecting from the Code of Commerce such of its provisions as are favorable to the partners and rejecting such as are not, and even including in its articles of agreement the right to do things which by that Code are expressly prohibited. Such a construction would allow a commercial partnership to use or dispense with the Code of Commerce as best suited its own ends. For example a partnership is organized for commercial purposes. It fails to state its agreements in a public document. The managers are sued by a third person with whom the partnership has contracted, and it is claimed that each of such managers is liable for the whole debt, they having violated article 119 of the Code of Commerce. Their answer is that although they are organized for commercial purposes, they have intentionally omitted to comply with said article 119, and consequently they are a civil partnership, to the managers of which article 120 declaring such liability does not apply. Another case may be supposed. A partnership is organized for commercial purposes. It fails to comply with the requirements of article 119. A creditor sues the partnership for a debt contracted by it, claiming to hold the partners severally. They answer that their failure to comply with the Code of Commerce makes them a civil partnership and that they are in accordance with article 1698 of the Civil Code only liable jointly. To allow such liberty of action would be to permit the parties by a violation of the Code to escape a liability which the law has seen fit to impose upon persons who organized commercial partnerships; "Because it would be contrary to all legal principles that the nonperformance of a duty should redound to the benefit of the person in default either intentional or unintentional." (Mercantile Law, Eixala, fourth ed., p. 145.) Of the commentators writing since the promulgation of the Civil Code Blanco thus defines the

difference between a civil and a mercantile partnersip: "If we can define the contract of partnership in general by saying that it is one by virtue of which several persons bring their property or industry into a common fund for the attainment of a common purpose by common means, then a mercantile partnership will be one in which two or more persons put their property or industry in common or both, applying them to commercial transaction for the purpose of obtaining some profit to be divided among them." (2 Blanco, Mercantile Law, 332.) Estasen says: "Companies, in order to be regarded asd mercantile, must have for their object the realization of some mercantile act either as a means or an end." (7 Mercantile Law, 122.) Aramburo says: "Artificial persons of private interest: We shall have but little to say of these persons, because we have said enough in speaking of the laws by which they are governed. These same laws are those which govern their capacity, and thus civil partnerships will be governed by the provisions of the Civil Code (1) mercantile partnerships by the provisions of the Code of Commerce (2) and industrial partnerships, according to their nature, will be subject to the provisions relative to one or the other of the former classes of partnerships." (P. 457.) "In effect, we have observed that there are three classes of artificial persons of private interest; that the essential purpose of mercantile partnerships is the earning of a profit; that industrial partnerships may have the characteristics of mercantile or 'civil partnerships, according to whether they have been established in accordance with the requirements of the Code of Commerce or without regard to. the latter; and finally that the civil partnership is the result of the contract of this name entered into by persons who undertake to devote to a common purpose either money, property, or labor with the intention of dividing the profits between themselves." (Civil Capacity, 407-432.) Manresa's statement that if partnerships are. not organized under the Code of Commerce they become civil partnerships clearly refers to industrial partnerships as distinguished from mercantile, and his opinion thus agrees entirely with that of Aramburo above stated. (1 Manresa, Spanish Civil Code, 184.) It is not necessary in this case to attempt to define an indusfrial partnership or to distinguish between it and a civil partnership on one hand and a commercial partnership on the other. The partnership of Prautch, Scholes & Co. was a typical commercial partnership buying personal property with the purpose of reselling it in the same form at a profit. Article 1697 of the Italian Civil Code is substantially the same as article 1665 of our Civil Code. Supino in his commentaries on the Commercial Law of Italy, referring to article 1697, says: "This definition is in general applicable even to mercantile partnerships which are those which are established with the, view to effecting one or more commercial operations. (Art. 76.) It is therefore the purpose which determines the character of a partnership as civil or mercantile. The mercantile form assumed by a partnership whose purposes are of a civil nature is not sufficient to give it the character of a mercantile partnership ; it will be governed by the provisions of the Code of Commerce, except with respect to bankruptcy and jurisdiction. (Art. 229.) (Mercantile Law, p. 168)." We have found no opinion holding the contrary doctrine except a note (p. 44) by the translator of Supino's work, which is as follows: "(a) Our Code provides that inscription in the Mercantile Registry is obligatory upon companies and partnerships. (Art. 17.) Upon this inscription and the will of the partners clepend the character, civil or mercantile, as the Civil Code does not establish any essential difference (art. 1665) between the two classes, and authorizes civil

partnerships (art 1670) to organize with all the formalities prescribed by the Code of Commerce. (T. N.)" The following note also occurs in the work of Don Ramon Marti de Eixala (p. 259): "(b.) Text writers have discussed the question as to whether the division of the social capital into shares is peculiar to commercial associations. This is denied by Troplong (No. 143 of the Commentaries of the Contract of Partnership), who maintains that a company of partnership is to be classified as civil or mercantile according to its object and not according to its mechanism. But other writers support the contrary view." We hold then on principle and authority that the contract of partnership between Prautch and Scholes was in its nature commercial; that under article 36 of the Civil Code said partnership was governed by the provisions of the Code of Commerce; that its failure to comply with the requirements of that Code did not make it a civil partnership, and thus give it legal personality, which we have assumed such partnerships have. Having seen that the partnership in question is governed by the Code of Commerce, it remains to ascertain what are the consequences of the failure of the partners to comply with the requirements of the Code. Article 116 provides that the partnership shall have personality if it is organized in accordance with the Code. This impliedly denies to it personality unless it is so organized. The partners are required to state their agreements in a public writing, and to record them in the Mercantile Registry. (Art.119, 17.) Article 24 is as follows: "Articles constituting associations not recorded shall be binding between the members who execute the same but they shall not prejudice third persons, who, however, may make use thereof in so far as advantageous." That a commercial partnership which has not recorded its articles of agreement can not maintain an action in its firm name is well settled by the authorities. "We see, then, that with respect to both classes of artificial persons (civil and mercantile) certain formalities must be observed in order that their constitution result in legal effects." (1 Mucius Scaevola, Com. Civil Code, p. 317.) "It is also the fact that a mercantile partnership can not legally exist nor avail itself of the sanction of article 296 of the Code of Commerce (reference is made to the old Code) in enforcing its right against a third person until articles are recorded in the Provincial Registry." "It has also been declared that although under the provisions of article 284 of the Code of Commerce all contracts of commercial partnerships must be evidenced by public instrument executed with all the legal formalities, and although the failure to comply with this requirement results in the nullity of the contract and makes it unenforceable for the purposes of bringing action under the general provisions of article 236 of the same Code, nevertheless persons who, conjointly and under a firm name or without it, but without being organized with the formalities required, have entered into contracts with third persons they may in their individual capacity bring

suit upon actions resulting from such contracts." (3 Estasen, Mercantile Law, 36, 37.) The decisions of the Supreme Court deny legal personality to mercantile partnerships whose articles of agreement are not recorded. (Judgments of May 8, 1885; March 12, 1888; November 23, 1883.) It would be strange if this principle were not found in the positive law. When several persons unite for a common end and desire to transact their joint business in the name of a new artificial being which they create, they should notify the public who the persons are that are responsible for the acts of this new entity. That notice can be given in no better way than by requiring them to file their articles in the Mercantile Registry, a public record. The firm of Prautch, Wholes & Co. had no legal personality, and this action can not be maintained in its name. 2. No motion for a new trial was made in the court below, and it is therefore said that article 497 of the Code of Civil Procedure prevents us from examining the evidence. Except in the three cases therein specified this court can not examine or retry questions of fact. But it can examine and decide any question of law that is properly presented by the record. Whether there is any evidence in the case to support a finding of fact is always a question of law. And whenever it is claimed that there is no evidence to support a particular finding we have a right to examine the record, and if we find no evidence at all upon which as a matter of law such finding could be based it is our duty to so declare and to reverse the judgment for error of law. If, on the contrary, we should find some evidence to support it and a large amount of evidence against it we could not disturb it though we might be convinced that the court below had erred in estimating the weight of the testimony. In all cases it must appear either expressly by the certificate of the judge or impliedly from the bill of exceptions that it contains all of the evidence in the case having any bearing upon the point at issue. We must have before us all that the judge below had before him when he made the finding in question. If we do not we can not say that there was no evidence to support it. It sufficiently appears from the bill of exceptions in this case that it contains all of the evidence except the conr tract between the defendant and Poizart, a letter from Prautch to Poizart, and one from Poizart to Prautch. None of these could have any bearing at all upon this question of personality. 3. We have stated that the plaintiff is Prautch, Scholes & Co., but even on the assumption that the plaintiff is Prautch and not the firm of Prautch, Scholes & Co., the judgment can not be sustained. The court finds that Prautch succeeded to all the rights of the firm. There is no evidence to support this finding. The only testimony on this point is the following by Prautch: "Who succeeded to the firm name and signature? I." This statement is insufficient as a matter of law to show that Prautch had acquired by assignment the interest of Scholes in this contract of lease. It is entirely consistent with the idea that Scholes still retained his rights in the assets of the extinct partnership. On the supposition that Prautch might recover the whole of the claim for the benefit of the firm the judgment would have to be reversed, for it allows a recovery in the name of the firm for

the sole benefit of Prautch. 4. Of the points made by the plaintiff in its brief, Nos. 1, 2, and 8 refer to the question of personality. The proposition (1) that Prautch and Scholes brought with them from the United States the law there, in force relating to partnership and should be governed by it here does not meet with our assent. The claim (2) that the defendant is stopped from alleging this want of personality because she has dealt with the partnership is not borne out by the record. The only contract which she made with them was the lease. That was signed by them as individuals and not with any firm name. Prautch in his testimoy gives this as a reason for not notifying the defendant of the dissolution. The claim (8) that the decision in this case takes away from" Prautch and Scholes rights which they now have can not be sustained. We simply hold that they can not exercise such rights by an action in the name of Prautch, Scholes & Co. The judgment is reversed and a new trial granted with costs of the second instance against the appellee. So ordered. Arellano, C, J., Torres, and Ladd, JJ., concur. MAPA, J.: I concur with the result of this decision.

DISSENTING COOPER, J.: I dissent from the decision of the court in this case. By the express provisions of section 497 of the Code of Civil Procedure, 1901, in hearings of bills of exceptions in civil actions and special proceedings, it is provided that the Supreme Court shall not review the evidence taken in the court below, nor retry the questions of fact, except as in this section provided: These exceptions are: (1) When assessors sat with the judge in the hearing in the court below, and both the assessors were of the opinion that the findings of fact and judgment in the action are wrong and have certified in writing their dissent therefrom. (2) On the grounds of newly discovered evidence. (3) Where the excepting party filed a motion in the Court of First Instance for a new trial upon tlfe ground that the findings of fact were plainly and manifestly against the weight of evidence, and the judge overruled said motion and due exception was taken to his overruling the same. There was no motion for a new trial made in the court below, nor does the case fall within either of the other exceptions. The statute is mandatory and should be followed. The additional exception ingrafted upon the statute that where there is no evidence to sustain the findings of facts by the court that in such case it is a question of law, and that this court

will in such case review the evidence taken in the court below and retry the questions of fact, is in contravention both of the letter and of the spirit of the statute. The adoption of such a rule will necessitate the bringing up the evidence in a large number of cases to this court for a review and retrial of the facts, which was intended to be prevented by this section. It is true that in jury trials it is the practice in courts of the United States where there is no evidence to support an issue to direct the finding of a verdict against the party who has failed to make the necessary proof, or for the court to review the facts and set aside the verdict; there are no jury trials in our courts and such practice is inapplicable to our system of trials. At least, no such exception is contained in our statute. Besides, an examination of the evidence discloses that there was some proof that Prautch succeeded to all the rights of the firm of Prautch, Scholes & Co. Prautch in his testimony states that he succeeded the name and signature of the firm, which was equivalent to; saying that he had acquired the interest of Scholes in the contract of lease. There was no objection taken in the court below by demurrer or answer to the legal capacity of the plaintiff to sue, or that there was a defect or misjoinder of parties. By the provisions of section 93, if no objection is taken to the complaint either by demurrer or answer, the defendant shall be deemed to have waived the objection that plaintiff has not the legal capacity to sue, or that there was a defect or misjoinder of parties, plaintiff or defendant In taking this view of these questions it will be unnecessary to consider whether the partnership of Prautch, Scholes & Co. had juridical personality or not, and I express no opinion upon this question.

OSJurist.org

G.R. No. 911, March 12, 1903

MAXIMO CORTES, PLAINTIFF AND APPELLANT, VS. JOSE PALANCA YUTIBO, DEFENDANT AND APPELLEE. D ECIS ION
MAPA, J.: This suit was brought to obtain an injunction, in accordance with the provisions of sections 162 to 172 of the Code of Civil Procedure, for the purpose of restraining the continuation of certain buildings commenced by the defendant. The court below issued a preliminary injunction during the trial, but, upon rendering final judgment, dissolved the injunction, with the costs against the plaintiff. The latter excepted to this judgment and assigns error. In the trial the following facts were admitted without contradiction: (1) That house No. 65 Calle Rosario, this city, property of the wife of the plaintiff, has certain windows therein, through which it receives light and air, said windows opening on the adjacent house, No. 63 of the same street; (2) that these windows have been in existence since the year 1843, and (3) that the defendant, the tenant of the said house No. 63, has commenced certain work with the view to raising the roof of the house in such a manner that one-half of one of the windows in said house No. 65 has been covered, thus depriving the building of a large part of the air and light formerly received through the window. In its decision the court below practically finds the preceding facts, and further finds that the plaintiff has not proven that he has, by any formal act, prohibited the owner of house No. 63 from making improvements of any kind therein at any time prior to the complaint. The contention of the plaintiff is that by the constant ami uninterrupted use of the windows referred to above during a period of fifty-nine years he acquired by prescription an easement of light, in favor of the house No. 65, and as a. servitude upon house No. 63, and, consequently, has acquired the right to restrain the making of any improvements in the latter house which might in any manner be prejudicial to the enjoyment of the said easement. He contends that the easement of light is positive; and that Iherefore the period of possession for the purposes of the acquisition of a prescriptive title is to begin from the date on which ihe enjoyment of the same commenced, or, in other words, applying the doctrine to this case, from the time that said windows were opened with the knowledge of the owner of the house No. 63, and without opposition on his part. The defendant, on the contrary, contends that the easement is negative1, and that therefore the time for the prescriptive acquisition thereof must begin from the date on which the owner of the dominant estate may have prohibited, by a formal act, the owner of the servient estate from doing something which would be lawful but for the existence1 of the easement. The court below in its decision held that the easement of light is negative, and this ruling has been assigned by the plaintiff as error to be corrected by this court. A building may receive light in various manners in the enjoyment of an easement of light, because the openings through which the light penetrates may be made in one's own wall, in the wall of one's neighbor, or in a party wall. The legal doctrine applicable in either one of these cases is different, owing to the fact that, although anyone ir open windows in his own wall, no

one has a right to so in the wall of another without the consent of the owe and it is also necessary, in accordance with article 580 the Civil Cod*1, to obtain the consent of the other coow: when the opening is to be made in a party wall. This suit deals with the first case; that is, windows opened in a wall belonging to the wife of the plaintiff, and it is this phase of the easement which it is necessary to consider in this opinion. When a person opens windows in his own building he does nothing more than exercise an act of ownership inherent in the right of property, which, under article 348 of the Civil Code, empowers him to deal with his property as he may see fit, with no limitations other than those established by law. By reason of the fact that such an act is performed wholly on a thing which is wholly the property of the one opening the window, it does not in itself establish any easement, because the property is used by its owner in the exercise of dominion, and not as the exercise of an easement: "For a man," says law 13, title 31, third partida, " should not use that which belongs to him as if it iccre a service only, but as his own property" Coexistent with this right is the right of the owner of the adjacent property to cover up such windows by building on his own land or raising a Avail contiguously to the wall in which the windows are opened (art. 581 of the same Code), by virtue of the reciprocity of rights which should exist between abutting owners, and which would cease to exist if one could do what he pleased on his property and the other could not do the same on his. Hence it is that the use of the windows opened in a wall on one's own property, in the absence of some covenant or express Agreement to the contrary, is regarded as an act of mere tolerance on the part of the owner of the abutting property (judgments of the supreme court of Spain of the 17th of May, 1876; 10th of May, 1884; 30th of May, 1890), and does not create any right to maintain the windows to the prejudice of the latter (judgment of the supreme court of Spain of the 13th of June, 1877). The mere toleration of such an act does not imply on the part of the abutting owner a waiver of his right to freely build upon his land as high as he may see fit, nor does it avail the owner of the windows for the effects of possession according to article 1942 of the Civil Code, because it is a mere possession at will. From all this it follows that the easement of light with respect to the openings made in one's own edifice does not consist precisely in the fact of opening them or using them, inasmuch as they may be covered up at any time by the owner of the abutting property, and, as Manresa says in his commentaries on the Civil Code, "there is no true easement as long as the right to impede its use exists." The easement really consists in prohibit ing or restraining the adjacent owner from doing anything which may tend to cut off or interrupt the light; in short, it is limited to the obligation of not impeding the light ( ne luminibus officatur ). The latter coincides in its effects, from this point of view, with the obligation of refraining from increasing the height of a building ( altius non tollendi ), which, although it constitutes a special easement, has for its object, at times, the prevention of any interruption of the light enjoyed by the adjacent owner. It will be readily observed that the owner of. the servient estate subject to such an easement, is under no obligation whatsoever to allow anything to be done on his tenement, nor to do anything there himself, but is simply restrained from doing anything thereon which may tend to cut off the light from the dominant estate, which he would undoubtedly be entitled to do were it not for the existence of the easement. If, then, the first condition is that which is peculiar to positive easements., and the second condition? that which is peculiar to negative easements, according to the definition of article 533 of the Civil Code, it is our opinion that the easement of lights in the case of windows opened in one's own wall is of a negative character, and, as such, can not be acquired by prescription under article 538 of the Civil Code, except by counting the

time of possession from the date on which the owner of the dominant estate may, by a formal act, have prohibited the owner of the servient estate from doing something which it would be lawful for him to do were it not for the easement. The supreme court of Spain, in its decisions upon this subject, has established these principles by a long line of cases. In its judgment of May 14, 1861, the said court holds that "the prescription of the easement of lights does not take place unless there has been some act of opposition on the part of the person attempting to acquire such a right against the person attempting to obstruct its enjoyment." "The easements of light and view," says the judgment of March 6, 1875, "because they are of a negative character, can not be acquired by a prescriptive title, even if continuous, or although they may have been used for more than twenty-eight years, if the indispensable requisite for prescription is absent, which is the prohibition, on the one part, and the consent on the other, of the freedom of the tenement which it is sought to charge with the easement." In its judgment of June 13, 1877, it is also held that use does not confer the right to maintain lateral openings or windows in one's own wall to the prejudice of the owner of the adjacent tenement, who, being entitled to make use of the soil and of the space above it, may, without restriction, build on his line or increase the height of existing buildings, unless he has been "forbidden to increase the height of his buildings and to thus cut off the light," and such prohibition has been consented to and the. time fixed by law subsequently expired. The court also holds that it is error to give the mere existence or use of windows in a wall standing wholly on the land of one proprietor the creative force of a true easement, although they may have existed from time immemorial. Finally, the judgments of the 12th of November, 1889, and the 31st of May, 1890, hold that "as this supreme1 court has decided, openings made in walls standing wholly on the land of one proprietor and which overlook the land of another exist by mere tolerance in the absence of an agreement to the contrary, and can not be acquired by prescription, except by computing the time from the execution of some act of possession which tends to deprive the owner of the tenement affected of the right to build thereon." Various other judgments might be cited, but we consider that those above mentioned are sufficient to demonstrate the uniformity of the decisions upon this point. It is true that the supreme court of Spain, in its decisions of February 7 and May 5, 1896, has classified as positive easements of lights which were the object of the suits in which these decisions were rendered in cassation, and from these it might be believed at first glance that the former holdings of the supreme court upon this subject had been overruled. Hut this is not so, as a matter of fact, inasmuch as there is no conflict between these decisions and the former decisions above cited. In the first of the suits referred to, the question turned upon two houses which had formerly belonged to the same owner, who established a service of light on one of them for the benefit of the other. These properties were subsequently conveyed to two different persons, but at the time of the separation of the property nothing was said as to the discontinuance of the easement, nor were the windows which constituted the visible sign thereof removed. The new owner of the house subject to the easement endeavored to free it from the incumbrance, notwithstanding the fact that the easement had been in existence fov thirty-five years, and alleged that the owner of the dominant estate had not performed any act of opposition which might serve as a starting point for the acquisition of a prescriptive title. The supreme court, in deciding this case, on the 7th of February, 1896, held that the easement in this particular case was positive, because it con sisted in the active enjoyment of the light. This doctrine is doubtless based upon article 541. of the Code, which if of 1he. following tenor: "The existence of apparent sign of tin easement between two tenements, established bv tht. owner of both of

them, shall be considered, should one hi sold, as a title for the active and passive continuance oi Ihe easement, unless, at the time of the division of the ownership of both tenements, the contrary should be ex pressed in the deed of conveyance of either of them, or sueli sign is taken away before the execution of such deed." The word "active" used in the decision quoted in classify ing the particular enjoyment of light referred to therein^ presupposes on the part of the owner of the dominant estate1 a right to such enjoyment arising, in the particular case passed upon by that decision, from the voluntary art of the original owner of the two houses, by which he iniposed upon one of them an easement for the benefit of the other. It is well known that easements are established, among other cases, by the will of the owners. (Article 536 of the Code.) It was an act which was, in fact, respected and acquiesced in by the new owner of the servient estate, since he purchased it without making any stipulation against the easement existing thereon, but, on the contrary, acquiesced in the continuance1 of the apparent sign thereof. As is stated in the decision itself, illt is a principle of law that upon a division of a tenement among various personsin the absence of any mention in the contract of a mode of enjoyment different from that to which the former owner was accustomedsuch easements as may be necessary for the continuation of such enjoyment are understood to subsist." It will be seen, then, that the phrase "active enjoyment" involves an idea directly opposed to the enjoyment which is the result of a men? tolerance on the part of the adjacent owner, and which, as it is not based upon an absolute, enforceable right, may be considered as of a merely passive character. Therefore, the decision in question is not in conflict with the former rulings of the supreme court of Spain upon the subject, inasmuch as it deals with an easement of light established by the owner of the servient estate, and which continued in force after the estate was sold, in accordance vrith the special provisions of article 541 of the Civil Code. Nor is the other decision cited, of May 5, 1.890, in conflict with the doctrine above laid down, because i refers to windows opened in a party wall , and not in a wall the sole and exclusive property of the owner of the dominant tenement, as in the cases referred to by the other decisions, and as in the ease at bar. The reason for the difference of the doctrine in the one and the other case is that no part owner can, without the consent of the other, make in a party wall a window or opening of any kind, as provided by article 580 of the Civil Code. The very fact of making such openings in such a wall-might, therefore, be the basis for the acquisition of a prescriptive title without the necessity of any active opposition, because it always presupposes the express or implied consent of the other part owner of the Avail, which consent, in, turn, implies the voluntary waiver of the right of such part owner to oppose the making of such openings or windows in such a wall. With respect to the provisions of law 15, title 31, third partida, which the appellant largely relied upon in his oral .argument before the court, far from being contrary to it, is entirely in accord with the doctrine of the decisions above referred to. This law provides that "if anyone shall open a window in the wall of his neighbor, through which the light enters his house," by this sole fact he shall acquire a prescriptive? title to the easement of light, if the time fixed in the same law (ten years as to those in the country and twenty years as to absentees) expires without opposition on the part of the owner of the wall; but, with the exception of this case, that is to say, Avhen the windows are not opened in the wall of the neighbor the law referred to requires as a condition to the commencement of the running of the time for the prescriptive acquisition of the easement, that "the neighbor be prohibited from raising his house, and from thereby interrupting the light." That is to say, he must be prohibited from exercising his right

to build upon his land, and cover the window of the other. This prohibition, if consented to, serves as a starting point for the prescriptive acquisition of the easement. It is also an indispensable requisite, therefore, in accordance with the law of the partidas, above mentioned, that some act of opposition be performed, in order that an easement may be acquired with respect to openings made in one's own wall. For a proper understanding of this doctrine, it is well to hold in mind that the Code of the partidas, as well as the Roman law, clearly distinguishes two classes of easements with respect to the lights of houses, as may be seen in law 2 of title 31, of the third partida. One of them consists in "the right to pierce the wall of one's neighbor to open a window through which the light may enter one's house" (equivalent to the so-called easement of luminum of the Romans); the other is "the easement which one house enjoys over another, whereby the latter can not at any time be raised to a greater height than it had at the time the easement was established, to the end that the light be not interrupted." ( Ne luminibus officiatur .) For the prescriptive acquisition of the former the time must begin, as we have seen, from the opening of the window in the neighbor's wall. As to the second, the time commences from the date on which he was "prevented from raising his house." Some of the judgments which establish the doctrine above laid down were rendered by the supreme court of Spain interpreting and applying the above-cited law 15, title 31, partida 3, and therefore they can not in any sense be regarded as antagonistic to the law itself. The question as to whether the windows of the house of the plaintiff are, or are not, so-called regulation windows, we consider of but little importance in this case, both because the authority of the decisions of the law of the partidas, above cited, refers to all kinds of windows, and not to regulation windows solely, and because the record does not disclose, nor has the appellant even stated, the requirements as to such regulation windows under the law in operation prior to the Civil Code, which he asserts should be applied and on which he relies to demonstrate that he has acquired by prescription the easement in question. With respect to the watershed which, according to the plaintiff, exists over the window in question, the record does not disclose that the same has been destroyed by the defendant. He expressly denies it on page 7 of his brief, and affirms (p. 8) that the tenant of the appellant's property himself removed it, by reason of the notice served on him; on the other hand, the judgment of the court below contains no findings with respect to this fact, nor does it disclose the former existence of any such watershed. Furthermore, the opinion which we have formed with respect to this matter, in so far as we are able to understand the merits of the case, is that this shed was a mere accessory of the window, apparently having no other purpose than that of protecting it against the inclemency of the weather; this being so, we are of opinion that it should follow the condition of the window itself, in accordance with the legal maxim that the accessory always follows the principal. The appellant contends that the shed should be regarded as a projection within the provisions of article 582 of the Code; but it is sufficient to observe that this article speaks of windows with direct views, balconies, or similar projections, in order to conclude that the article does not refer to such watersheds, which have not the slightest degree of similarity to balconies, nor are they constructed for the purpose of obtaining the viewthis being the subject-matter which this article expressly purports to controlinasmuch as such sheds have rather the effect of limiting the scope of the view than of increasing it. The fact that the defendant did not cover the windows of the other house adjacent to No. G3 at the time he covered the windows of the appellant, a fact which the latter adduces as proof of the recognition on the part of the former of the prescriptive acquisition of the easement of the light in favor of that house, which, according to his statement, is under precisely the same

conditions as the house of the plaintiff, does not necessarily imply, in our opinion, any such recognition, as it might be the result of a mere tolerance on the part of the defendant. Certainly the fact of his tolerating the use by the owner of that house of such windows, supposing the facts to be as stated, does not carry with it as a result an obligation to exercise the same forbearance with respect to the plaintiff; but whatever may he the legal status of the windows in the house referred to with respect to the house No. 03, we can not pass upon the point, nor can we form suppositions concerning the matter for the purpose of drawing conclusions of any kind therefrom to support our opinion, for the simple reason that it is not a point at issue in this case, and more especially because the defendant not only denied the existence of the alleged easement of light in favor of the house referred to, but, on the contrary, he affirms that demand has been made that the windows in said house be closed, as may be seen on page 8 of his brief. The point discussed in this trial being whether the plaintiff has acquired the easement which he seeks to enforce over the house of which the defendant is tenant, it is evident that the provisions of article 585 of the Civil Code can not be invoked without taking for granted the very point at issue. This article refers to cases in which, under any title, the right has been acquired to have direct views, balconies, or belvederes over contiguous property. The existence of such a right being the very point at issue, the supposition upon which the article rests is lacking, and it is therefore nor. in point. As a result of the opinion above expressed, we hold : 1. That the easement of light which is the object of this litigation is of a negative character, and therefore pertains to the class which can not be acquired by prescription as provided by article 538 of the Civil Code, except by counting the time of possession from the date on which the owner of the dominant estate has, in a formal manner, forbidden the owner of the servient estate to do an act which would be lawful were it not for the easement. 2. That, in consequence thereof, the plaintiff, not having executed any formal act of opposition to the right of the owner of house No. 63 Calle Rosario (of which the defendant is tenant), to make therein improvements which might obstruct the light of house No. G5 of the same street, the property of the wife of the appellant, at any time prior to the complaint, as found by the court below in the judgment assigned as error, he has not acquired, nor could he acquire by prescription, such easement of light, no matter how long a time might have elapsed since the windows were opened in the wall of the said house No. 65, because the period which the law demands for such prescriptive acquisition could not have commenced to run, the act with which it must necessarily commence not having been performed. Therefore, we affirm the judgment of the court below and condemn the appellant to the payment of all damages caused to the plaintiff, and to the payment of the costs of this appeal. So ordered. Arellano, C. J., Cooper, Willard, and Ladd, JJ., concur. Torres, J., did not sit in this case.

ON MOTION FOR A REHEARING. The plaintiff asks for a rehearing of the decision of the court of March 12th last upon the ground that the same concontains error: First, because the decision holds that the window opened in the plaintiff's own wall and the watershed do not constitute the continuous and apparent easements of prospect, light, and ventilation, or jus projitiendi and jus spillitiendi, this ruling being in opposition to the provisions of laws 12, 14, and 15, title 31, third partida, and articles 530, 532, 533, 537, 538, 582, and 585 of the Civil Code. This allegation is entirely unfounded, inasmuch as the decision of the court contains no declaration as to whether the windows and watershed do or do not constitute continuous and apparent easements, or jus projitiendi and jus spillitiendi ,. These questions were not drawn into issue by the complaint, and therefore any decision thereon one way or the other would have been mere dicta. What the court did hold was that the easement of light, when it is sought to claim such benefit from a window opened in one's own wall, as does the appellant with respect to the tenement of the defendant, belongs to the class.of negative easements, and that on that account the time of possession for prescriptive acquisition of the title thereto must be counted, not from the time of the opening of the windows, but from the time at which the owner thereof has executed some act of opposition tending to deprive the owner of the servient tenement of his right, under the law, to build upon it to such height as he might see fit in the legitimate use of his rights of ownership. With respect to the watershed, the court held that the shed in question in the case is not included within the class of projections referred to in article 582 of the Civil Code, and certain it is that neither this article nor any of the other provisions of law cited by the appellant in his motion papers establish any doctrine contrary to that laid down in the decision, either with regard to the watershed or with respect to the windows. It is not necessary to say anything further upon this point. It is sufficient to read the text of the laws cited to reach the conclusion that the assertion made by the appellant in his motion papers is entirely gratuitous. Article 582 provides that windows with direct views, balconies, or other similar projections opening upon the tenement of one's neighbor are not permissible unless there are two meters distance between the wall in which such openings are constructed and the adjacent tenement. From this the appellant draws the conclusion that he who opens windows in his own wall without respecting the distance mentioned does not exercise an act of ownership, as stated in the decision, inasmuch as he violates an express provision of the law. The conclusion reached is evidently false. The appellant confounds the facts with the lawan act of ownership with the right of ownership. The owner of a thing does not cease to be such owner because in his manner of use or enjoyment thereof he violates some provision of law. The acts which he performs, in our opinion, even if abusive or contrary to law, are in a strict sense acts of ownership, acts in the exercise of dominion, because this character is not derived from a greater or less degree of compliance with the provisions of law, but from the existence of the status of owner on the part of the person who exercises such acts. In order that the act performed by the owner of a wall in opening windows therein be a true act of ownership it is a matter of indifference whether or not the distance prescribed by article 582 of the Code has been respected, although, considered from a legal point of view, it might be an illegal act, as not complying with the conditions imposed by law.

The doctrine laid down by law 13, title 31, partida 3, cited in the decision, to the effect that "a man should not use that which belongs to him as if it were a service only, but as his own property" is of general application, and does not' refer to the easements which a property owner may establish for the benefit of his heirs, as is erroneously believed by the appellant. The very same law provides that easements which "a man imposes upon his house must be for the benefit of the tenement or thing of another, and not that of his own tenement;" and this is because tilings are of service to their owner by reason of dominion, and not in the exercise of a right of easement, "Res sua" says a legal maxim, " nemini jure servitutis servit ." The provision of article 1942 of the Civil Code to the effect that acts which are merely tolerated produce no effect with respect to possession is applicable as much to the prescription of real rights as to the prescription of the fee, it being a glaring and self-evident error to affirm the contrary, as does the appellant in his motion papers. Possession is the fundamental basis of the prescription. Without it no kind of prescription is possible, not even the extraordinary. Consequently, if acts of mere tolerance produce no effect with respect to possession, as that article provides, in conformity with article 444 of the same Code, it is evident that they can produce no effect with respect to prescription, whether ordinary or extraordinary. This is true whether the prescriptive acquisition be of a fee or of real rights, for the same reason holds in one and the other case; that is, that there has been no true possession in the legal sense of the word. Hence, it is because the use of windows in one's own wall is the result of a mere tolerance that the supreme court of Spain, in its judgment of Juno 13, 1877, has held that such user lacks the creative force of a true easement, although continued from time immemorial. The citation of article 1959 of the Civil Code and of law 21, title 29, partida 3, made by the petitioner, is therefore not in point, because both of these provisions of law, which refer to the extraordinary period of prescription, presuppose possession as a necessary requisite, even if without either just title or good faith. The second error assigned is that in the decision the court holds that the gravamina constituted by the window and the projection are negative easements, against the provisions of article 533, which define them as positive, which definition, he adds, is supported by the judgments of the supreme court of Spain of February 7 and May 5, 189G, cited in paragraph 12 of the said decision, which judgments declare that the easement resulting from a window is positive. It is not true that article 533 of the Civil Code says that the easement of light is positive, because it does nothing more than give in general terms the definition of positive easements and negative easements, without attempting to specify whether the easement of lights pertains to the first or to the second class. We have declared that the easement is negative, having in mind this very definition of the Code and the doctrine established by the judgments of the supreme court of Spain which have been cited in our opinion. The interpretation which the appellant attempts to give the article of the Civil Code cited is evidently erroneous, and, consequently, the citation made by him in support of his contention is not in point. Our opinion of the true extent and meaning of the judgments of the supreme court of Spain of February 7 and May 5, 1896, has been already sufficiently explained, and it is therefore unnecessary to go into the subject again here. We refer to our decision with respect to what was said therein upon this subject. The decision of the court does not contain the declara tion, as gratuitously assumed by the appellant, that the easement resulting from a projection is of a negative character; nor, in fact, had we any occasion to make such a declaration, in view of the nature of the issues raised and

discussed during the trial. What we did, indeed, hold was that the watershed mentioned in the complaint, the purpose of which was simply to protect the window in question from sun and rain, was a mere accessory to that window, and that in no case could it be considered as a projection within the provisions of article 582 of the Civil Code, as so erroneously contended by the appellant at the trial. We find nothing in his motion papers which can in any way weaken this holding. The third error assigned is that the court holds that the easement of light, as negative, can not be acquired by prescription except by counting the period of possession from the time at which the owner of the servient tenement has been prohibited from making improvements which might interfere with said easement, contrary to the provisions of law 14, title 31, partida 3, and articles 538 and 585 of the Civil Code, which establish the contrary. This assertion is entirely destitute of foundation, inasmuch as neither in the law of the partidas nor in the articles of the Civil Code mentioned is to be found the doctrine which the appellant arbitrarily seeks to deduce from them. It is sufficient to read the text to reach the conclusion that the assertion is wholly gratuitous. The fourth error assigned is that the court holds that the watershed, as being an accessory of the window, can not in itself constitute an easement, this being contrary to the provisions of articles 582 and 585 of the Civil Code, and law 2, title 31, partida 3, which do not make any such distinction. Neither of the laws cited speaks expressly of watersheds. We have held that article 582 refers solely to windows, balconies, and other similarprojections, and that the watershed in question does not pertain to this class of projections, our holding being based upon the reasons given in our decision. The appellant advances no argument worthy of serious consideration, and therefore we continue to believe that our opinion in this matter is strictly in accordance with the law. The appellant has attached to his motion for a rehearing two judgments, one rendered by the Royal Audiencia of Manila September 6, 1877, and the other by the supreme court of Spain on the 22d of February, 1892, and we think it well to say a few words concerning them. In the opinion of the appellant these judgments support the theory contended for by him at the trial, that the easement of lights is positive and not negative. His error in so believing is evident, inasmuch as neither of the judgments referred to establishes any such doctrine. On the contrary, it appears clear, from the first of these judgments, that the easement referred to is negative in the opinion of the court which rendered it. This appears from the eighth conclusion of law therein, which is literally as follows: "From the evidence introduced by the defendant, and even from the testimony of witnesses of the plaintiff, it has been proven that since 1828 the house in question has suffered no change or alteration in its roof, which projects aver Cosio's lot, which constitutes the active opposition necessary in order to acquire by prescription the right to the light" It will be seen, then, that the latter part of the preceding transcript of the conclusion of law lays down precisely the same doctrine as that expressed in our decisionthat active opposition is a necessary condition for prescriptive acquisition of an easement of light. And this also demonstrates conclusively that the court which rendered the judgment referred to considered the easement to be negative, inasmuch as positive easements do not require any active opposition as a basis for their prescriptive acquisition, such an act being solely necessary to the prescription of negative easements.

It would appear, judging from his allegations as a whole, that the appellant confuses positive easements with continuous easements, and the judgment referred to, in fact, declares in its fourth conclusion of law that the easement of light is continuous. If this were really so the error of the appellant would be manifest, because continuity is not a quality exclusively peculiar to positive easements; there are negative easements which are also continuous. Hence it is that the Civil Code, after classifying easements, in article 532, as continuous and discontinuous, classifies them also as positive and negative (art. 533), thus giving to understand that this latter classification depends upon other characteristics entirely distinct from the continuity or discontinuity of easements. If all continuous easements were positive and all discontinuous easements were negative, then the express division of easements into positive and negative made by the Code, after establishing the division of the same as continuous or discontinuous, would be entirely unnecessary, as they would be entirely merged or included in the latter classification. It is sufficient to read the text of the Code to understand beyond the possibility of a doubt that a negative easement may be continuous, and that a positive easement may be discontinuous, according to the special nature of each one. With respect to the second judgmentthe judgment of the supreme court of Spain of February 22, 1892it is certainly difficult to understand how the appellant could have imagined that he had found therein the slightest ground for his contention, inasmuch as it lays down no doctrine which relates even by inference to the subject of casements, and simply holds, in the first of only two paragraphs in which its conclusions are contained, that "judgments should be clear, precise, and responsive to Ihe complaint and the issues properly raised at the trial;" and in the second, that "the judgment appealed was contradictory as to the questions it decides, because it makes curtain declarations favorable to some of the contentions in the plaintiff's complaint and then gives judgment for the defendant, without making any distinction." It was for this reason alone, and for no other, that the judgment appealed was reversed and annulled. In the judgment rendered by the same supremo court upon the merits of the case, as a result of this decision in cassation, no other doctrine is laid down than that "the judgment must be that the defendant comply with those claims advanced by the complaint to which he has consented, and that he must be discharged as to those allegations which have been denied by him and which have not been proved by the plaintiff." There is not one word in these judgments which says that the easement of lights is positive, nor that a watershed constitutes a true projection within the meaning attached to this word in article 582 of the Civil Code, as has been vainly contended by the appellant in the trial. Therefore the appellant's motion for a rehearing of the decision of March 12,1903, is denied. Arellano, C. J., Cooper, Willard, and Ladd, JJ., concur. Torres and McDonough, JJ., did not sit in this case.

ON MOTION FOR WRIT OF ERROR TO REMOVE THE CASE TO THE SUPREME COURT OF THE UNITED STATES. WILLARD, J.:

The application to this court for the allowance of a writ of error or appeal for the purpose of removing this case to the Supreme Court of the United States is denied. Section 10 of the act of Congress of July 1, 1902, is as follows: "SEC. 10. That the Supreme Court of the United States shall have jurisdiction to review, revise, reverse, modify, or affirm the final judgments and decrees of the Supreme Court of the Philippine Islands in all actions, cases, causes, and proceedings now pending therein or hereafter determined thereby in which the Constitution or any statute, treaty, title, right, or privilege of the United States is involved, or in causes in which the value in controversy exceeds twenty-five thousand dollars, or in which the title or possession of real estate exceeding in value the sum of twenty-five thousand dollars, to be ascertained by the oath of either party or of other competent witnesses, is involved or brought in question; and such final judgments or decrees may and can be reviewed, revised, reversed, modified, or affirmed by said Supreme Court of the United States on appeal or writ of error by the party aggrieved, in the same manner, under the same regulations, and by the same procedure, as far as applicable, as the final judgments and decrees of the circuit courts of the United States." There is no question in the case relating to the Constitution or any statute of the United States. The evidence submitted by the applicant shows that the value of his property over which this litigation turns is $11,867.70, money of the United States. The fact that the plaintiff owns other houses in different parts of the city as to which he claims an easement of light similar to the one claimed in this case, that the decision in this case destroys all of these claimed easements, and that the value of those other houses exceeds f 25,000, gold, is not important. The test is the value of the matter in controversy. The matter in controversy here was the easement of light and air over the property 'No. 63 Calle del Rosario and in favor of house No. 65. That easement could not be worth more than the house itself. The easements in favor of other houses of the plaintiff over other lots than No. 63 were not in controversy in this suit (Town of Elgin vs. Marshall, 106 U. S., 578.) So ordered. Arellano, C, J., Torres, Cooper, Mapa, and Ladd, JJ., concur. McDonough, J., did not sit in this case.

OSJurist.org

G.R. No. 923, January 16, 1903

DOMINGO GARCIA Y CASANOVA, PLAINTIFF AND APPELLEE, VS. EMETERIO RUIZ Y URBINA, DEFENDANT AND APPELLANT. D ECIS ION
TORRES, J.: On the 12th day of July, 1898 (record, p. 1), Don Domingo Garcia y Casanova filed a complaint in an action of lesser import praying that after the regular procedure judgment be rendered against the defendant, D. Emeterio Ruiz y Urbina, for the payment of the salary accruing in favor of the plaintiff from the 11th of June, 1898, until such time as the plaintiff could return to this city of Manila, together with his passage money, $60 damages, and the costs of the action. The plaintiff alleged that on the 22d of August of the preceding year, 1897, he took command as skipper of the merchant steamer Irene Urbina , under a verbal contract with its owner the defendant Ruiz entered into in this city of Manila, under which the plaintiff was to command the steamer in its voyages between the ports of Misamis and in service as a tug; that this contract did not stipulate the time it was to continue in force or during which the services were to be rendered; that on the 11th of June, 1898, upon the plaintiff's arrival with the steamer in the port of Lapinig, of the town of Talisayan de Misamis, the shipowner Kuiz wrote him a letter discharging him; that none of the causes which justify the dismissal of the captain or other member of the crew were present; that therefore the defendant Ruiz was under the obligation of paying him the salary of $100 per month which he had been receiving until such time as the plaintiff could return to Manila, together with his passage money, and $60 by way of indemnification for the damages suffered by his having been abandoned at a place where it was impossible for him to support himself by the exercise of his calling; that this claim having been made to the marine authorities the defendant Ruiz in reply denied the right of the plaintiff, and stated among other things that he would only accede to the demand in case the law compelled him to do so, and that the marine authorities had declared themselves to be incompetent to try the case. In support of his complaint, to which he attached two petitions presented to the marine authorities, and the reply of the defendant, the plaintiff cited several articles of the Code of Commerce, the Civil Code, and the law of civil procedure. On the 13th of July, 1898, the court ordered that service of the complaint be had on the defendant Ruiz. Upon being notified by the justice of the peace of the said town, whot delivered him a copy of the summons and of the complaint, the defendant refused to accept the copy of the complaint or to sign the notification. (Record, p. 25.) For this reason, on motion of the plaintiff, the defendant having failed to appear, the latter was declared in default and the complaint admitted as answered. The suit continued its course, and the decision was notified by reading in open court in accordance with the provisions of articles 265 and 266, in addition to the publication of the edicts prescribed by article 267 of the law of Civil Procedure. Upon the grounds set forth in the order of August 27 of the same year, made on motion of the plaintiff, the parties were cited to appear on the 31st of that month. At the time set no one appeared except the plaintiff and his attorney, who stated that in view of the allegations of law and fact set forth in his client's pleadings he believed that the question at issue was solely one of law, and that, therefore, in view of the tacit admission on the part of the defendant Ruiz of the facts alleged in the complaint nothing was to be done other than to determine the question

of law to be passed upon by the court in rendering judgment in accordance with Garcia's complaint. On motion of plaintiff an order was made for the attachment of the real and personal property of Ruiz in the sum of $700. No personalty having been found, a preventative annotation was by judicial mandate entered on the books of Recorder of Property showing the attachment of a house of substantial material with an iron roof, belonging to Don Emeterio Ruiz, situated in the square of the town of Tagoloan of the said district. (Record, pp. 54 and 55.) On motion of the plaintiff personal service of the judgment rendered in the action was had on the defendant Ruiz, who thereupon filed written notice of appeal (Record, p, 50) to the former Audiencia, which appeal was allowed by an order entered on folio 61. The original record was vsent up, both parties entered their appearance, and the abstract of the case was prepared. At this stage of the proceedings counsel for the appellant Ruiz raised an incidental issue in the appellate court by asking that all the proceedings in the action from and after the order of August 8, 1898, entered on page 21 of the record, be set aside, advancing such argument in support of this motion as seemed to him available. This petition was opposed by the appellee, whereupon after notice to the parties the incidental issue was decided by judgment of the 15th of November, 1900, denying the annulment solicited by the appellant, but without special judgment for costs. This action of lesser import was prosecuted against the defendant Ruiz in default, he not having appeared to answer the complaint, notwithstanding service upon him of the order, directing that a copy of the complaint and the summons be delivered to him, and after the expiration of the respective terms of eighteen and nine days which were successively granted him for that purpose. The order declaring him in default and the complaint admitted, as well as subsequent orders, were all notified by reading the same in open court, with the exception of the judgment, of which personal service was had, on motion of the plaintiff. (Articles 665, 668, and 752 of the old Code of Civil Procedure.) The documents attached as exhibits to the complaint show that the defendant Ruiz was fully aware of the terms of the complaint as also of the facts therein alleged, because the written claim filed by Garcia with the governor of the district as subdelegate of the marine authorities, which claim was subsequently reproduced in the complaint upon the same statement of facts, was replied to by the defendant Ruiz by a statement of the reasons for his conduct, and subsequently upon being cited and notified to appear in the court of Misamis to answer to it in due form he refused to accept a copy of the complaint or to sign an acknowledgment of services, thereby voluntarily becoming in default, inasmuch as he absolutely failed to appear and did not allege that he was prevented by force majcure from doing so. Upon this supposition, nothing having occurred to have prevented him from appearing in the action to defend himself against the facts alleged by the plaintiff, the silence of the defendant must be taken .as an admission to these facts. The question is therefore reduced to determining whether the plaintiff Garcia was entitled to receive his salary from the 11th of June, 1898, at the rate of $100 per month, until his return to the city of Manila, in which place the contract was entered into under which he was to command the steamer Irene Urbina as skipper, notwithstanding the fact that the defendant Ruiz as shipowner discharged him on the day mentioned in the month of June. The principle established by article 604 of the Code of Commerce is a legislative sanction and recognition of Garcia's right; nothing appearing in any way tending to deprive him of his unquestionable right to receive his salary until his return to

the port where his contract for an unlimited time was entered into, and consequently the propriety of his claim is unquestionable. (Article 636 of the Code of Commerce.) The judge of first instance in his decision limited the right of the plaintiff to receive his salary to the time of the notification of the judgment, which took place on the 12th of September, 1898, and it does not appear that Garcia has taken any exception to this decision. The defendant did nothing but appeal from the judgment rendered against him by default, and upon the record his counsel in the appellate court raised the incidental issue of the annulment of the proceedings (in the court below from page 21 of the record forward; but the former Audiencia denied appellant's motion to set aside the proceedings by its decision of November 15, 1900, upon the grounds expressed in said order. We are therefore precluded from discussing in this decision the formal defects or errors of procedure which have thus been passed upon by a final decision. On the other hand, no other error complained of appearing in the appealed judgment, we are of the opinion, on the foregoing grounds, that the same must be affirmed, with the costs against the appellant, and it is so ordered. Arellano, C. J., Cooper, Willard, Mapa, and Ladd, JJ., concur.

OSJurist.org

G.R. No. 929, October 08, 1903

THUNGA CHUI, PLAINTIFF AND APPELLEE, VS. QUE BENTEC, DEFENDANT AND APPELLANT. D ECIS ION
WILLARD, J.: This case was before this court in November, 1902. It was then decided that the only question open to the appellant was whether the findings of fact made by the trial judge in his decision supported the judgment. (Thunga Chui vs. Que Bentec, 1 Off. Gaz., p. 4.) [1] The appellant claims that the partnership contract was required to be in writing by article 119 of the Code of Commerce and, the amount of the capital being more than 1,500 pesetas, by article 1280 of the Civil Code and article 51 of the Code of Commerce. We think it fairly appears from the decision that the contract of partnership was not in writing. Whether this was a civil or a commercial partnership we consider immaterial, for in neither case do we think that the contention of the appellant can prevail. 1. Considered as a civil partnership, that part of article 1280 of the Civil ("ode applicable to the case is as follows: "All other contracts, on which the amount of the prestaciones of one or of the two contracting parties exceed 1,500 pesetas, must also be drawn in writing, even when they are private documents." Articles 1278 and 1279 of the same code are as follows: "ART. 1278. Contracts shall be binding, whatever the form may be in which they have been entered into, provided the essential conditions required for their validity are present. "ART. 1279. When the law exacts the execution of a deed or other special form for making effectual suitable obligations of a contract, the contracting parties may compel each other to comply with such forms, from the moment in which consent and the other requirements, necessary for their validity, have taken place." The plaintiff contributed to the partnership 1,000 pesos and the defendant 2,000, and it is therefore claimed by the latter that the case falls under article 1280, and that before the plaintiff can maintain any action on the verbal contract he must proceed under article 1279 to compel the defendant to reduce it to writing. Whatever may be said of earlier decisions of the supreme court of Spain upon the proper construction of these three articles, the later ones have, we think, settled the question involved against the claim of the appellant. In the judgment of May 3, 1897, the court said: "Article 1279 does not impose an obligation, but confers a privilege upon both contracting parties, and the fact that plaintiff has not made use of same does not bar his action."

In the judgment of October 19, 1901 (Alcubilla, Appendix, 1902, p. 139), it appeared that the plaintiff, Doiia Ana Laborda, agreed with the defendant, Don Nemesio Alamanzon, to leave the employment which she then had and to enter the defendant's service, and he agreed that if she left his service he would pay her during life an annuity equal to the salary which she was receiving in her former employment. This contract was verbal. Having been dismissed, she sued for several months' salary and the annuity. The judgment of the audienciu was in her favor, and the defendant removed the case to the Supreme Court, assigning as error that the court had infringed article 1280. The judgment was affirmed, the court saying : "Contracts are binding and therefore enforceable reciprocally by the contracting parties, whatever may be the form in which the contract has been entered into, provided that the essential conditions for their validity are present The observance of this general rule, expressly established by article 1278 of the Civil Code, is not in opposition to the provisions of the two following articles, as this Supreme Court has repeatedly held, and especially in its judgment of July 4, 1899. Article 1280 is limited to an enumeration of the acts and contracts which should be reduced to writing, in a public or private document. Article 1279, far from making the enforceability of the contract dependent upon any special extrinsic form, recognizes its enforceability by the mere act of granting to the contracting parties an adequate remedy whereby to compel the execution of a public writing, or any other special form, whenever such form is necessary in order that the contract may produce the effect which is desired, according to whatever may be its object. This, in substance, is equivalent to establishing as an implied condition of every contract that these formal requisites shall be complied with, notwithstanding the absence of any express agreement by the contracting parties to that effect, but does not subordinate the principal action for the enforcement of the agreement to the bringing of the secondary action concerning the form. Such subordination would be unnecessary, as the cause of action would be the same in both cases, i. e., the existence of a valid contract. Hence it follows that the court below in its judgment has not committed the error assigned as the sole ground for its reversal, even supposing that the contract upon which this case turns is one of the class which should be reduced to writing." The same doctrine was announced in the judgment of June 18, 1902 (Alcubilla, Appendix, 1902, p. 806), the court there saying: "As has been repeatedly held by this court, the enforceability of contracts does not depend upon their extrinsic form, but solely upon the presence of the conditions necessary for their validitywhich it is not denied are present in the contract in questionthat contracts are binding whatever may be the form of their celebration. The reduction to writing in a public or private document, required by the law with respect to certain contracts, is not an essential requisite of their existence, but is simply a coercive power granted to the contracting parties by which they can reciprocally compel the observance of these formal requisites. It follows, hence, that article 1280 of the Civil Code has not been violated as alleged in the first assignment of error because the contract was not reduced to writing, notwithstanding the fact that the amount involved exceeds 1,500 pesetas, even supposing this article to be applicable to a contract of a mercantile character such as that in question which is specially covered by the Code of Commerce,"

In the judgment of July 4, 1899, it was found by the Audieneia that the plaintiff had sold to the defendants by a verbal contract her rights in an inheritance. She, claiming that the case fell under article 1280 (4), appealed from the judgment against her, alleging that such rights could only be transferred by a public document. This contention was not sustained. In the judgment of April 17,1897, cited by the appellant, the judgment was annulled only in one particular, and the decision of the Supreme Court is capable of the construction that, in ordering judgment against the defendants for the price of certain lands sold by a private document, the Audieneia should have inserted a clause* requiring the plaintiff on receiving the amount to execute the proper public document. As so construed it is consistent with the decisions heretofore cited. We think that it can now be said that when the question arises between the immediate parties to the contract the constant doctrine of the Supreme Court is that stated in these decisions. The same result must be reached if we consider the question without reference to the authorities. If the requisites of article 1261 exist, the contract is valid between the parties. This is expressly stated in article 1278. Although a contract is by article 1280 required to be in writing, yet if it can be "made effective" without that writing, the plaintiff can maintain an action against the other contracting party at once on the verbal contract without resort to article 1279. That need be done only when by reason of the subject-matter of the contract, or for other causes, the plaintiff can not make the contract fully effective without the prescribed document. The cause of Elias Gueb vs. Trinidad Kuiz, decided by this court on November 7, 1901, was placed upon the ground that, in the assignment by the creditor to plaintiff of a, demand against the defendant, the latter was a third person, and that as against him the assignment could not be made effective without the writing mentioned in article 1280. 2. If the Civil Code is to govern this contract, what has been said disposes of the claim of the appellant based on article 1280. The appellant, however, assigns as error the infringement of articles 119 and 51 of the Code of Commerce. Article 117 of the Code of Commerce is as follows : "The contract of mercantile partnership entered into with the essential requisites of the law shall be valid and binding upon the parties thereto, Avhatever may be its form, or whatever lawful and fair conditions and combinations may enter into it, provided they are not expressly prohibited by this Code * * *." We hold that under this article a verbal contract of partnership is good as between the parties themselves. The phrase "essential requisites of the law" means those general requirements of the law which are of the essence of every contract, namely, parties who are capable of contracting, the meeting of the minds, the absence of fraud, and those enumerated in article 1261 of the Civil Code. If the intention was to require a compliance with article 119, it would have been more natural to have used the expression found in article 116, namely, "according to the provisions of this Code." The word "form" refers to the manner in which the contract is made, whether by parol or in writing, and not the class to which it may belong as general, limited, or corporate. In view of the fact that organization in one of these three forms is expressly prescribed in subsequent sections, it would be unusual to expect a statement in this section that the contract should be valid between the parties even if it was in one of these

forms. In article 1667 of the Civil Code, the word "form" is used in the sense which we have given to the word here. This article, 117, is expressly limited to partners, and as to them it is declared that a verbal contract is sufficient. But when third persons are involved, the Code has established a different rule. Articles 118 and 119 are as follows : "ART. 118. Contracts executed between commercial associations and any other persons capable of binding themselves shall be valid and binding, provided the same are legal and honest, and that the requisites mentioned in the following article are complied with. "ART. 119. Every commercial association, before beginning business, shall be obliged to record its establishment, agreements, and conditions in a public instrument, which shall be presented for record in the commercial registry, in accordance with the provisions of article 17. "Additional instruments which modify or alter in any manner whatsoever the original contracts of the association are subject to the same formalities, in accordance with the provisions of article 25. "Partners can not make private agreements, but all must appear in the articles of partnership." It is expressly provided in article 118 that contracts with third persons shall not be valid unless the provisions of article 119 are complied with. There is no such provision in article 117. It is not there said that the contract shall not be valid between the parties unless article 119 is complied with. The effect of a failure to comply with article 119 is the subject of several articles. This article requires the contract to be recorded in the Mercantile Registry. This is required also by article 17; yet article 24 says that even if it is not so recorded it shall be valid as between the partners, but not as to third persons. Article 120 declares that the managers of the partnership who fail to comply with article 119 shall be liable to third persons with whom they have dealt. But we can find nothing in the Code which declares that a failure to comply with the article in respect to the public writing shall have any effect upon the partners as between themselves. The last paragraph of article 119 is applicable only to third persons, for as between the partners themselves there could be no secret agreements in the contract. Article 285 of the Code of Commerce of 1829 plainly required a public instrument, even as between the partners. If the intention was to make no change in the law in this respect, that article would have been retained. But as it appears from the preface cited below, the intention was to change that provision. The most reliable commentary on this Code is the preface attached to the Code of the Peninsula of 1885. Therein is declared the meaning of the law, and upon the question here at issue are made the following statements: "The provisions of the projected Code with respect to the different manners and forms under which mercantile partnerships can be organized are based upon similar principles. These principles may be reduced to three, to wit: Absolute lack of

restriction on the part of associations to organize as they may see fit; complete absence of governmental intervention in the interior regime of these entities; publicity of such partnership matters as may be of interest to third persons. * * * In consequence of the third principle, i. e., the guaranty of the interest of third persons, it is provided that, although every contract of partnership is binding upon the associates in whatsoever manner it may appear the contract has been entered into, it is not so with respect to outsiders until such time as the contract is evidenced by a public writing recorded in the Mercantile Registry, in which office, furthermore, must be recorded all contracts introducing reforms into the original contract of partnership, the emission of shares and bonds payable to bearer, and the dissolution of partnership, * .* * Although the projected Code does not impose any penalty or establish any coercive measures in order to compel the associates to make public the organization of the partnership by means of the Mercantile Registry, it holds all persons directly in charge of the management of the company personally liable for all damages which a failure to comply with this requisite may cause to third persons, who in no case will be bound by the terms or conditions of the contract of partnership of the contents of which they are ignorant. But for this same reason the partners can not avail themselves of this lack of publicity, for they having full knowledge of the terms and conditions of the agreement by which the partnership is created, it is binding ,upon them from the very moment of its celebration. This is the doctrine of the projected Code, in this respect repealing the present Code, which establishes a contrary principle." In the case of Prautch, Scholes ,& Co. vs. Hernandez (1 Off. Gaz., 203 ) [1] we held that a commercial partnership which had not complied with article 119 could not maintain an action in its partnership name against a third person. That case is consistent with our present holding. There being no provision of the Code of Commerce which requires the contract of partnership to be in any particular form as between the partners, this case does not fall within the terms of article 52 of this Code, and that article is not applicable. Article 117, expressly authorizing, as we hold, a verbal contract of partnership as between the partners, such a contract is thereby excepted from the operations of article 51. The case at bar is covered by the former article and not the latter. Whether, therefore, this be a civil partnership and so governed by the Civil Code, or a commercial partnership and so governed by the Code of Commerce, in neither case can the objections made by the appellant be sustained. The judgment of the court below is affirmed, with the costs of this instance to the appellant. Arellano, C. J., Cooper, Mapa, and McDonough, JJ., concur. Torres and Johnson, JJ., did not sit in this case.

[1] 1 Phil. Rep., 356. [1] Phil. Rep., 705.

OSJurist.org

G.R. No. 930, January 10, 1903

THE UNITED STATES, COMPLAINANT AND APPELLEE, VS. BASILIO TAGLE, DEFENDANT AND APPELLANT. D ECIS ION
COOPER, J.: The defendant, Basilio Tagle, is charged with the crime of abduction, alleged in the following manner: That on the 19th day of February, 1902, in the city of Manila, the defendant willfully and illegally abducted Martina Baiia, a girl 13 years of age, against her will and with unchaste designs, punishable under the provisions of article 445 of the Penal Code. The Court of First Instance reached the conclusion from the testimony that the abduction was not against the will of the injured party, but found the defendant guilty, under the provisions of article 446, Penal Code, of the abduction of a virgin under 23 years of age and over 12, executed with her assent, and sentenced him to the punishment of one year of prision correccional and to the payment of costs of the proceedings. From this conviction the defendant appeals. The defendant having been charged with the abduction executed against the will and with unchaste designs, under the provisions of article 445 could not be convicted of the offense punishable under article 446 of the abduction of a virgin under 23 years of age and over 12, executed with her assent. The latter offense is a distinct and separate crime, and is not included in the former. Therefore, the judgment of the Court of First Instance must be reversed unless the proof is sufficient to sustain the conviction for the offense with which he is charged in the complaint. An examination of the testimony shows the following facts: On the 19th day of February, 1902, Martina Bana, who was then residing with her mother, was sent out to purchase coal oil; she was met by the defendant, who seized her by the hand and placed her in a carromata, and against her will was taken to the house of Valeriana Ponce and there remained about an hour. From there she went with the defendant to Tondo, and was placed at the house of a friend of the defendant Tagle, and there remained for three days. She was during this time in company with one Federico Roxas, and the evidence is sufficient to show that the relations between Martina Bana and Federico Roxas were illicit. She was afterwards taken to the house of one Benito Eusebio in Pasay, where she remained from the 21st of February to the 15th of March. She seems to have been detained there against her will. She was afterwards taken to the house of the defendant and there again had meetings of an illicit nature with Federico Roxas. The injured party was a near relative of Teodora Baffa, the querida of the defendant, and had

formerly lived two years with them as a member their family. We think the evidence is sufficient to show that the girl was carried off and detained by the defendant against her will, but the injured girl makes a direct and positive denial that the defendant ever said anything or did any act from the time of her abduction to indicate that he personally had any unchaste designs. The circumstances rather indicate that the girl was abducted and held by the defendant for the purpose of lending her to illicit intercourse with other men, and there being a want of this essential element in the case the evidence is insufficient to support the conviction under the provisions of article 445. For the same reason a conviction could not be sustained if the defendant had been charged with the offense defined and punishable under article 446. By a decision of the supreme court of Spain of November 16, 1874, article 446 has been construed, and while this article does not prescribe in express terms that the abduction should be with unchaste designs, nevertheless the unchaste designs are said to be inherent to the character of this crime, and it is necessary that they should occur in the act in order to constitute the crime of abduction punishable under this article. The proof in the case is entirely sufficient to support a conviction under article 444 of the Penal Code, which reads as follows: "Whosoever shall habitually, or, taking advantage of his authority or of another's trust, promote or facilitate the prostitution or corruption of minors to satisfy the lusts of another, shall be punished with the penalty of prision correccional in its minimum and medium degrees and absolute temporary disqualification if he were a public official." The defendant should have been prosecuted under this article of the Code. For the reasons above stated we reverse the judgment and remand the case to the Court of First Instance with direction that a complaint be presented against the defendant under the provisions of article 444, and that he be tried for the offense prescribed in this article. The costs of the proceedings are adjudged de oficio. Arellano, C. J., Torres, Mapa, and Ladd, JJ., concur. Willard, J., concurring in the result.

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G.R. No. 931, January 27, 1903

PEDRO REGALADO, PLAINTIFF AND APPELLANT, VS. FELIX DE LOS SANTOS ET AL., DEFENDANTS AND APPELLEES. D ECIS ION
COOPER, J.: On the 4th day of May, 1891, Don Jos6 Regalado Santa Ana on the one part and Don Felix de los Santos y Baviera, Don Gil Javier y Amancio, y Dofia Geronima Cabajug y Vito of the other part, entered into a contract of loan with a mortgage, in the city of Iloilo, before a notary public of the same place, by the terms of which tlje latter acknowledged themselves jointly and severally bound to pay to the former the sum of $5,259.33, to be paid within the term of one year from the date of the contract, with interest at the rate of 15 per cent per annum, and as security for the payment of the debt the said Don Felix de los Santos, Don Gil Javier, and Dona Geronima Cabujug mortgaged to the said Don Jos6 Regalado Santa Ana certain tracts of land situated in the Island of Negros, to wit, the hacienda called "San Pablo," the property of Don Felix de los Santos; and another called "Santa Cruz," the property of Dona Geronima Cabajug. The said Don Felix de los Santos also obligated himself to deliver to the said creditor the amount which he might recover from a mortgage credit constituted by a writing made and entered into on the same day, which he held against his father, Don Pedro de los Santos, for the sum of $4,326.78, with interest at 15 per cent per annum, payable in three years, secured by a mortgage of a certain hacienda called "San Roque," situated in the pueblo of Cadiz Nueva. On the 17th day of September, 1900, in the city of Iloilo, D. Jose Regalado Santa Ana, the holder of the mortgage, on the one part, and D. Pedro Regalado Montelibano on the other part, entered into a contract before a notary public, by which the said above-named mortgage with the interest due thereon from the 4th day of December, 1891, was transferred and assigned to Don Pedro Regalado Montelibano, and in this contract so entered into Don Jose Regalado Santa Ana acknowledged the receipt from Don Pedro Regalado of the amount of $5,259.33, as well as an amount corresponding to the interest of 15 per cent per annum due on the principal. On the 3d day of November, 1900, Don Pedro Regalado Montelibano by virtue of the right which he had acquired by the transfer and assignment above mentioned instituted against the defendant an executive action before the judge of the Court of First Instance of Iloilo. The suit having been admitted, the Court of First Instance proceeded to embargo the mortgaged property. The defendants entered their opposition to the proceedings in due time and form, which was based upon the following points: (1) That the mortgaged property being situated in the Island of Negros the court of Iloilo was without power to issue execution. (2) That the notice of the transfer or assignment of the debt was not given to the defendants as is required by law. (3) That it is not stated in the mortgage document that the parties expressly submitted themselves to the jurisdiction of the court of Iloilo.

(4) That the requisites of the law with reference to the inscription in the mortgage registry of property have not been complied with. (5) That it is not alleged in the complaint that there is any fixed amount due to the creditor. (6) That the appraisement of the mortgaged property was not made before the embargo as is required by law. (7) That by reason of the transfer or cession of the credit by Don Jose" Regalado Santa Ana to Don Pedro Regalado Montelibano the debt of the defendants was extinguished, and therefore Don Jose" Regalado had nothing to transfer. (8) That article 169 of Regulations for the Execution of the Mortgage Law was not complied with in that it is not stated in the complaint that the creditor is liable to indemnify any loss or damage caused the debtor or third persons interested by reason of the malice or negligence in the true statement of facts, and of the circumstances the judge must take into consideration to authorize the proceedings and to continue them. On the 10th day of February, 1902, the Court of First Instance of Iloilo rendered a judgment in which it found as a matter of fact that the mortgaged property was situated in the Island of Negros, and that no part was situated in the Province of Iloilo, and also finding that the value of the mortgaged property was not shown, nor had any appraisement of the same been made, and basing his judgment upon these facts declared that the Court of First Instance did not have the competency, and was without jurisdiction, to try the case, and dismissed the executive action; raised the preventative embargo, and ordered the property in question to be returned to the control of the defendants, and directed that Augustin Yulo, the administrator in whose custody the property had been placed, should render to the defendants an exact and true account of the rents, products, and profits of the mortgaged property, and condemning the plaintiff to the payment of costs, damages, and injuries which had been occasioned to the defendants by the proceedings. Against this judgment Don Pedro Regalado has interposed an appeal to this court. We will consider the question upon which the judgment of the Court of First Instance is based: The action being instituted both for the purpose of obtaining a personal judgment against the defendants and to obtain an order for the sale of real estate in satisfaction of the debt, is, in its nature, a mixed action. The addition of mortgage to a contract of loan produces hypothecary or mixed action. (Judgment of November 22, 1858, Supreme Court.) By paragraph 4, of article 46, Spanish Code of Civil Procedure, it is provided that in mixed actions jurisdiction is vested in the judge of the place where the property is situated or the residence of the defendant, at the election of the plaintiff. As the mortgaged property is situated in Negros, which is also the place of residence of all the defendants, in the absence of any stipulation to the contrary in the contract and in the absence of an express or tacit submission to the particular judge, the action should have been brought in Negros. It is claimed by the plaintiff that the competency of the Court of First Instance of Iloilo to try the case has been expressly conferred by a certain clause contained in the contract of debt and mortgage, which reads as follows:

"Payment to be made in current silver to the exclusion of other values in this city (Iloilo) at the house of the creditor, to whose domicile the contracting parties (debtors) expressly submit themselves, renouncing all other domicile." It is contended that this clause is sufficient to show an express submission by the defendant to the jurisdiction of the Court of First Instance of Iloilo under the provisions of articles 40 and 41 of the Spanish Code of Civil Procedure, which read as follows: "ART. 40. Any judge tacitly or expressly agreed upon by the litigant parties shall have jurisdiction over any action brought before and submitted to him," etc. "ART. 41. An express submission is made when the litigant parties clearly and in definite terms renounce the right to present the matter before the proper court and unequivocally designate the judge agreed upon to determine the question." Was the clause in question such an express submission to the jurisdiction of the court of Iloilo as is defined in article 41 of the Spanish Code of Civil Procedure? The clause in question not only made the debt payable in Iloilo but the debtors renounced their own domicile and expressly submitted themselves to the domicile of the plaintiff, at Iloilo. It is evident that the object of the latter part of the clause was not to make the debt payable at such domicile, because the parties had already stipulated in express terms that this should be the case. In order to give every part of the clause effect this part must be construed to mean that the parties intended to submit themselves to the jurisdiction of the court at Iloilo. By designation of the judge is meant the designation of the court. Manresa says: "It is not to be understood from this that it is necessary to designate the judge by name; on the contrary, we believe that this should not be done because it might give rise to doubts and questions. If the parties interested, waiving their own forum, should say that they submit to Mr. So and So, Judge of Alicante, for instance, if So and So should for any reason cease to hold this office, the question would immediately arise as to whether the submission was to be regarded as extended to his successor." The defendants also contend that by the provisions of article 170, General Regulations for the Execution of the Mortgage Law, the judge of competent jurisdiction must be the judge of the place in which the mortgaged property is situated, "no change of venue being admissible." A sufficient answer to this objection is, that the mortgage was executed in 1891, while the Mortgage Law was enacted in 1893, a date subsequent to the date of the mortgage. Under article 175 of this law creditors who had their right recorded before the law went into effect were given the option to select the summary procedure provided for in the act. But the plaintiff has not availed himself of this option. The suit brought by him is an executive action under Chapter XV of the Civil Code of Procedure, in force at the date of the mortgage. The judge in dismissing the case based his ruling also on the grounds that the value of the mortgaged property was not shown. Article 127 of the Mortgage Law requires that there must appear in the mortgage the value of the estate as appraised by the contracting parties; but for the same reason as before stated, the plaintiff has not elected to pursue the summary action, this provision must be held not to apply; and even in the summary action, where the creditor whose debt was contracted before the date of the Mortgage Law has elected to enforce his claim under the summary action, an appraisement may be made in accordance with the Code of .Civil Procedure. (General

Regulations Execution Mortgage Law, article 175.) An appraisement in the executive action under the Code of Civil Procedure is made after the order directing the sale of the property. This stage in the proceedings had not been reached when the case was dismissed. There are other questions presented in the record not passed upon by the Court of First Instance and unnecessary for us to consider in the decision of the case. For the error commited in dismissing .the case the judgment of the Court of First Instance is reversed, and it is ordered that the case be reinstated and its status as it existed at the date of the rendition of the judgment of dismissal be restored, and costs of this appeal is adjudged against the appellees. Arellano, C. J., Torres, Willard, and Ladd, JJ., concur. Mapa, J., did not sit in this case.

OSJurist.org

G.R. No. 948, March 09, 1903

THE UNITED STATES, COMPLAINANT AND APPELLEE, VS. MACARIO CALLOTES, DEFENDANT AND APPELLANT. D ECIS ION
LADD, J.: The evidence shows that on the evening of September 11, 1901, six armed men entered the convent of the pueblo of Bagoc, Bataan, intimidated the family of Calixto Tiangco, who was living in the convent at the time, and took and carried away a small sum of money, a revolver, some provisions, and other articles belonging to Tiangco, and a hat which belonged to Ildefonso Batol. The defendant admits that he was with the bandits when the convent was robbed, but claims that he had been sequestrated by them. Batol's hat was found in the possession of the defendant when he was arrested. He says he took it from one of the bandits when he separated from the band. He also admits that he had a revolver, which was given to him by Isidro Mendigoren, the leader of the band, and which he turned over to one Munti, from whom it appears to have been recovered by the inspectors. It does not appear whether or not this revolver was the one taken from the convent. The defense of sequestration is a familiar one in these cases, and is of such a character as not to be entitled to much consideration unless supported by strong evidence. Not only is there here no evidence that the defendant was an involuntary member of the band, except his own assertion to that effect, but the circumstance that the leader of the band allowed him to carry a revolver strongly discredits any such theory. We can entertain no doubt as to the defendant's guilt. There was no evidence as to how the bandits effected an entrance into the convent. The conviction under article 508 of the Code can not, therefore, be supported. The defendant is convicted of the crime defined in No. 5 of article 503 in connection with article 504, with the aggravating circumstance of article 10, No. 20, and the penalty fixed at ten years of presidio mayor, with costs. In other respects the judgment is affirmed, and the cause will be returned to the Court of First Instance for the execution thereof. So ordered. Arellano, C. J., Cooper, Willard, and Mapa, JJ., concur.

OSJurist.org

G.R. No. 949, February 06, 1903

THE UNITED STATES, COMPLAINANT AND APPELLEE, VS. EULOGIO DE SOSA, DEFENDANT AND APPELLANT D ECIS ION
WILLARD, J.: The information filed in this case was as follows: "On the night of the 16th of April Eulogio de Sosa in company with three other persons unknown entered the house of Zacarias Tiongson and forcibly carried away the latter and one Nicasio Rafael, who was also in the house, bound them, beat them, and carried them out of the town to the woods, where the persons so sequestered were separated, Zacarias having been beaten with a stick, and Nicasio cut with a bolo. The latter succeeded in regaining his liberty by the aid of a passerby who stopped near the tree where the kidnapers had left him tied, the fate of Nicasio being still unknown. This against the statute in the case made and provided. Balanga, October 16, 1901." It is difficult to say whether the intent of the Prosecuting Attorney was to charge the defendant with the illegal detention of Zacarias Tiongson under article 481 of the Penal Code or with the illegal detention of Nicasio Rafael under the last paragraph of article 483, which is as follows: "He who illegally detains another and does not give information as to his whereabouts or facts to prove that he set him free, shall suffer the penalty of cadena temporal in its maximum, degree to cadena perpetua." The defendant was convicted of this last offense and sentenced to eighteen years eight months and one day of cadena temporal. The conviction can not be sustained for two reasons. (1) The complaint does not charge that offense. There is no allegation that the defendant had not given information as to the whereabouts of Nicasio Rafael. (2) There was not sufficient evidence that the whereabouts of said Nicasio Rafael was not known. He was not a resident of the town in which he was seized, but was casually passing through there. It was proved that he had a wife living in Tondo. The only evidence that he had disappeared was the testimony of the three persons who were in the house when he was taken away, who said that they had not seen him since. The mere failure of the defendant to give notice of the whereabouts of the man seized is not sufficient to convict him. In addition to that fact the court must be satisfied that the man has really disappeared. The best evidence of this fact would be the testimony of the members of his family. The complaint is, however, with slight amendments, sufficient to charge the defendant with the illegal detention of Zacarias Tiongson. The judgment is reversed and the case remanded with instructions to amend the complaint by striking out all reference to Nicasio Rafael, and inserting statements as to the time and place, where and when the crime was committed, to call upon the defendant to plead to the amended complaint, and to try him thereon without prejudice to the right of the fiscal to proceed against the defendant in a separate complaint for the illegal detention of Nicasio Rafael under said article 483.

Arellano, C. J., Torres, Cooper, and Ladd, JJ., concur.

OSJurist.org

G.R. No. 950, January 23, 1903

THE UNITED STATES, COMPLAINANT AND APPELLEE, VS. EMIGDIO MENDIGOREN, DEFENDANT AND APPELLANT. D ECIS ION
LADD, J.: The evidence shows that the defendant was one of four men who, on the evening of a day which the witnesses are not able to fix, in the month of September, 1901, went to the house of Severino del Castillo, in the pueblo of Binalupijan, Province of Bataan, terrorized the dwellers in the house, and took and carried away a suit of clothes and 10 pesos in money. The defense set upa frequent one in this class of casesis that the defendant was not a voluntary member of the party, but had been captured by the others and forced to accompany them. It would require very convincing evidence in any case to establish a defense of this character, and in the present record we discover nothing which can fairly be said to have even a remote tendency in that direction. It appears that two and perhaps three of the robbers carried arms; as to the fourththe defendantthe evidence seems to indicate that he was not armed. The party, therefore, did not constitute a cuadrilla in the sense of the law (art. 505 of the Penal Code; judgment of the supreme court of Spain of May 22, 1871), and the judgment of the court below, basing the conviction upon the article cited, is so far erroneous. The defendant is guilty of the crime of robo as defined and punished in article 503, No. 5, of the Penal Code; the time and place of the commission of the crime constitute aggravating circumstances (art 10, Nos. 15 and 20); the defendant is accordingly sentenced to eight years of presidio mayor. The judgment of the court below will be modified in accordance with this opinion, and affirmed in other respects with costs. The cause will be remanded to the court below for the execution of the judgment. So ordered. Arellano, C. J., Torres, Cooper, and Willard, JJ., concur.

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G.R. No. 952, January 23, 1903

THE UNITED STATES, COMPLAINANT AND APPELLEE, VS. PRAXIDIO PENOSO, DEFENDANT AND APPELLANT. D ECIS ION
WILLARD, J.: In the Court of First Instance of Ambos Camarines on the 17th day of January, 1901, the defendant was convicted of the crime of sedition defined in article 8 of Act No. 292. He appealed. In his brief, filed in this court on November 29, 1902, he asked that he be acquitted, but if the court was of the opinion that this could not be done, then he asked that he be included in the amnesty of July 4, 1902. Afterwards, and on January 8, 1903, he joined with the Solicitor-General in a petition to the court that he be declared entitled to the benefit of said amnesty. We are justified, under these circumstances, in not passing upon the merits of the case. (The United States vs. Santillana, decided November 10, 1902.) The offense is clearly included in the amnesty proclamation of July 4, 1902. The acts charged were committed in the month of December, 1901. If proved, they constituted an offense under Act No. 292, section 8 of the Commission. All offenses included in that Act are covered by the amnesty. (The United States vs. Abad, decided October 22, 1902.) It is certainly clear that offenses included in section 8 of the Act are so covered. It is therefore declared that the defendant is. entitled to the benefits of the amnesty, and upon his filing in this court the required oath the case shall be dismissed and remanded to the court below with direction that defendant be discharged. So ordered. Arellano, C. J., Torres, Cooper, and Ladd, JJ., concur. Mapa, J., did not sit in this case.

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G.R. No. 955, March 07, 1903

RAMON CHAVES, PLAINTIFF AND APPELLEE, VS. RAMON NERY LINAN, DEFENDANT AND APPELLANT. D ECIS ION
TORRES, J.: The judgment impugned in the aforesaid bill of exceptions, presented by defendant, orders among other things the exclusion from the liquidations therein admitted of the sum of $18,712.08 representing the credits and property mentioned by plaintiff in the liquidation contained in his complaint. No legal reason is given for such an exclusion. The credits and property in question pertained to the extinguished partnership, hence the interest that each partner has therein is unquestionable. Therefore it is not possible to consider the liquidation as finally settled and ended or determine which of the partners is the true debtor according, thereto; consequently the judgment excepted to can not be sustained, as it does not definitely decide or determine the question pending as to the mere exclusion or omission of the sum referred to. This item, having been acknowledged by both parties, should necessarily be included in the final settlement of the affairs of the partnership, and must be taken.into account in the liquidation and determination of the suit pending between the parties. The profit and loss of the partnership must be divided in the manner stipulated, and if the agreement should only refer to the participation of each partner in the profits then their corresponding share of the losses shall be in the same ratio. In the absence of an agreement the share of each partner in the profits anil losses shall he in proportion to what he may have contributed. The partner who contributes his services only shall receive a share equal to the one who has contributed the least. If besides his services he should have contributed capital, he shall also receive the proportional share which may pertain to him for his capital. (Art. 1689) of the Civil Code.) The partition between the partners is governed as to the form and the obligations arising therefrom by the rules of succession. The industrial partner can not claim for himself any part of the property contributed; he can share only in the profits and benefits, in conformity with the provisions of article 1689, if the contrary should have not been expressly stipulated. The judgment rendered below and brought before us on exception should have1 decided the issues in accordance with these legal principles and the provisions contained in the Civil Code with respect to the division of estates among heirs. Without the inclusion of the amount referred to as having been final settlement of the business engaged in by the partnership there would be no legal means of fixing definitely in the final case the amount of profits and losses had by the partnership. appealed can not be sustained. omitted in the liquidation and existing between the parties, liquidation and decision of the For this reason the judgment

The Supreme Court in the exercise of its appellate jurisdiction can either affirm, reverse, or modify any final judgment, order, or decree and can direct that the proper judgment be entered, or that a new trial be had. The latter, in the opinion of this court, would be the proper

action in the case before us, so that after a complete liquidation is made final judgment may be rendered in the premises. Wherefore, in view of the provisions of article 496 of the Code of Civil Procedure and for the foregoing reasons, this court deems it proper that the final judgment excepted to by defendant, Nery Linan, be set aside and a new trial had upon the issues raised by the parties, the judge to proceed in accordance with law, with no special order as to the costs of this instance. It is so ordered. Arellano, C. J., Cooper, and Mapa, JJ., concur.

DISSENTING WILLARD, J., with whom LADD, J., concurs: I dissent. There is no certificate by the judge nor any statement in the bill of exceptions that it, the bill of exceptions, contains all the evidence produced and all the proceedings had at the trial in the court below. On the contrary it plainly appears from the contents thereof that it does not contain all the proceedings. The appellee made two motions in this court that the entire record be sent here in order that the imperfections in the bill of exceptions might be corrected. These motions were opposed by the appellant and denied by this court. Why the court below excluded this sum of $18,712.08&frac34; from the accounting does not appear. To the judgment which so excluded it the appellant took no exception. He moved for a new trial on the ground that the findings of fact Avere manifestly against the weight of the evidence, but said nothing about any error of law in excluding this sum from the accounting. It is more than probable that it consisted almost entirely of uncollectible accounts due the firm. That each party charged the other with the loss suffered by reason of the uncollectibility of these accounts does appear. The parties may have preferred to leave them out of the liquidation, each one retaining his interest in them and dividing between themselves later anything realized from them. It is not unlikely that, if we had the whole record before us it would appear that the appellant consented that this item might be left out. The appellant ought not to be allowed to bring here an incomplete record, to oppose all efforts to have it perfected, and to secure a reversal of the judgment, when if we had before us all that the court below had before it when the judgment was rendered such judgment might have to be affirmed.

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G.R. No. 957, April 25, 1903

THE UNITED STATES, COMPLAINANT AND APPELLEE, VS. FERNANDO VEGA ET AL., DEFENDANTS AND APPELLANTS. D ECIS ION
TORRES, J.: One morning in March, 1898, the four accused, provided with bolos and firearms, went to a granary belonging to Ponciano Alba, situated at the place called Tansa Norte, within the limits of the town of Capiz, Panay, and, under threats of death, compelled Basilio Difon, the person left in charge by the owner, to leave the house and to deliver the palay which was stored there under lock and key. This Difon did and made delivery of the palay by measure, this operation lasting two days. It appeared that there were 447 cavanes of palay, which were taken out and carried away on sleds, in the presence of witnesses, to the house of Fernando. They also carried away agricultural instruments, a caldron, 2 barotos, 43 boards, 5 beams, a milk cow, and 10 carabaos which were in the field. Difon was compelled to accompany the accused to help catch these animals. Three full days were occupied in the transportation of these goods, which the accused claimed belonged to them, and which were taken by them to their houses. Two of the carabaos were recovered by the complaining witness, having been found in the possession of Fernando Vega, who objected to returning them, claiming that they were his, and therefore a policeman named Barcenas, who accompanied Alba, was obliged to issue a receipt for the carabaos taken by him, and which were turned over to the authorities. The animals and the other property taken are worth $1,384.85. Some days afterwards, as appears in the cause, the accused also took possession of certain parcels of land belonging to the complaining witness Alba. The witnesses, Gualberto de la Cruz, Dionisio Bueno, Valentin Duro, Pablo Arroyo, Inocente Andrada, Toribio Lopez, and Tomas Aquijano, by their testimony corroborated the allegations of fact contained in the information, and those stated in detail by the complainant Alba and his agent, Basilio Difon. The accused, Fernando Vega, his son Benito Vega, and the brothers Gregorio Lara and Eduardo Lara, relatives, who were working for the Vega's, pleaded not guilty. Fernando testified that he lived in the barrio of Tansa, in which the complaining witness, Ponciano Alba, had no property whatever; that the two carabaos taken from him were his property, and that on this account the police agent who took them from him by order of the justice of the peace, gave him a receipt; but that they were not the same carabaos which were subsequently shown him, as the latter were old, unbranded animals, whereas his animals were young; that he so stated to the justice of the peace, but the latter paid no attention to him, the witness adding that he had been on bad terms with Ponciano Alba since 1891. Benito Vega testified that he lived with his father, and the brothers Gregorio and Eduardo Lara testified that in March, 1898-99, Ponciano Alba had no granary or any other property in the barrio of Tansa Norte, and that at that time nothing of particular note had occurred at that place. This was corroborated by the testimony of the witnesses Juan Balasa, Hilario Bigares, Valerio Anerismatmat, Vito Lara, Estanislao Sello, Victorio Ballena, Filomena Asulpado, and Ruperto Acejo. According to documents in the record introduced by the provincial fiscal, Dona Lucinda Barrios,

widow of the late Don Bernabe Lara, appeared before the clerk of the court and testified that her deceased brother-in-law, Ramon Lara, charged her, before his death, that the three pieces of land situated in Tansa, shown in the plat on pages 168 and 169, and which he had inherited from his deceased father, Don Francisco Lazaro, were to be delivered to Ramon's daughter, Dona Flora Lara, and that therefore, in compliance with this verbal charge, she delivered the said lands to the said Flora Lara and to her husband, Don Ponciano Alba, who received them with gratitude. The record also discloses a copy of the inscription of certain lands in the registry of property. (Folio 171.) The defense of the accused also exhibited the will of Don Francisco Lazaro, from the contents of which it appears that the said Bernabe, Ramon, and Flora Lara were his children, and that Scverina Lara, the wife of Fernando Vega, was a daughter of the testator by a second marriage, as stated by counsel for the defense, who also exhibited a document in which Ramon Lara appears to have stated that ho had pledged to his sister, for 50 pesos, a piece of land, planted in nipa palms, situated in the barrio of Tansa. The facts stated, and which appear to be proven in this case, and which are classified in the complaint as constituting the crime of robbery in a gang, constitute the crime of coercion, denned and punished by article 497 of the Penal Code, inasmuch as Fernando Vega, with his son Benito and two employees of theirs, exercised violence or force and intimidation on the person of Difon, obliging him to open the rice deposit belonging to Ponciano Alba, absent from the place, and which was under lock and key, and compelling him to deliver to them the rice and then to go away and leave the granary, of which he had been placed in charge by the complaining witness; and also to accompany them to get in from the pasture the cow and carabaos mentioned, exercising such coercion that he dared make no opposition whatever to the acts of spoliation of the said property committed by the four accused, or to their transportation, during a period of three days, to the house of Fernando Vega, by whom these acts, constituting the offense of coercion, were committed, without any right to do so. Notwithstanding the fact that Fernando Vega, who was the principal offender in this case, alleges that he was the owner of the property of which he took possession by means of this coercion of the person left in charge of it, it is not permissible to take the law into one's own hands, and to seize the property of a third person without being authorized to do so, and entirely disregarding the authorities whose duty it is to settle disagreements between private individuals and to give each one that which is his due, in accordance with the law. Fernando Vega, believing that he was entitled to the property of which Ponciano Alba, by means of his agent, was in possession, in the barrio of Tansa Norte of the town of Panay, seized it with the assistance of one of his sons and two employees, with intent to take the law into his own hands, but without animus furandi. Though in effecting this seizure he availed himself of the intimidation of the person so left in charge, the record does not disclose the existence of that specific wrongful intent which characterizes robbery. It must be understood, however, that this decision is without prejudice to the rights of the complaining witness, Ponciano Alba, the presumptive owner of the property taken, to recover the same by the proper civil action. In view, then, of the fact that in the complaint the offense charged is that of robbery in a gang, and that the facts proven do not constitute this offense, but constitute the offense pf coercion, it follows that, as the latter offense has not been prosecuted, no conviction of the accused can he had, and therefore the judgment below must be reversed and set aside, and, should a new

information be filed on the charge of coercion, a new trial should be had, in accordance with the law. The judgment, therefore, is set aside, and the judge, upon filing a new complaint, charging the said offense of coercion, will proceed to hold a new trial, in accordance with the law, without prejudice to the right of Ponciano Alba to bring the corresponding civil action to which he may be entitled. So ordered. Arellano, C. J., Cooper, Willard, Mapa, and Ladd, JJ., concur. McDonough, J., did not sit in this case.

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G.R. No. 958, April 03, 1903

THE UNITED STATES, COMPLAINANT AND APPELLEE, VS. JUAN BABASA, DEFENDANT AND APPELLANT. D ECIS ION
ARELLANO, C.J.: Juan Babasa, late on the night of January 27, 1899, went to the house of Maria Antolin and called to the latter's daughter, Fausta, telling her to come out. Fausta, Maria, and a little boy, the latter's son, came out to see who was calling. No sooner had Fausta, who went ahead, arrived at, the door of the house than she received a wound in the abdomen, from which she died on the following day. This is the statement of the mother and of the boy, Julio Bauan. The death was discovered by a police officer named Mamerto Gabot, He testified that, having asked the mother what had caused the death of the deceased, she replied that the girl had died of a stomach ache, but he, suspecting that it was the result of a crime, sent for a doctor to examine the body; that the doctor found the wound in the abdomen, and stated that the girl, who was some 16 years of age, had died from its effects. The mother, nevertheless, testified that some two days before Babasa had been making love to her daughter, who did not respond to his advances, as he was a married man, and that on the night in question the facts occurred as above stated. Maria Antolin, in her testimony, says: "Upon stepping outside, Fausta asked him, 'What do you want of me?' and Juan, without saying anything, stabbed my daughter." The girl then, feeling that she was wounded, sat down on the; second step of the stairway and from there was carried bv her mother into the house. The accused testified that he was drunk and did not know what he had done; that he had had no intention of doing anything of the kind, and that on this account the family had promised not to make any complaint about the occurrence, they being convinced that he. had not intended to inflict the wound, which was simply the unfortunate result of a movement of his hand. The entire defense has consisted in showing that the accused maintained amorous relations with the deceased, to which several witnesses have testified. The judge, considering present the aggravating circumstances of nocturnity, abuse of superiority, and the commission of the offense in the dwelling house of the deceased, and the specific circumstances of premeditation and treachery ( alevosia), condemned the accused to death. We can not consider that the specific circumstance of premeditation is present, because there is no evidence indicating reflection, which is required for this circumstance. We consider the specific circumstance of treachery ( alevosia) to be present, because1 of the means employed by the defendant in the commission of the crime, which was held to constitute alevoma by the supreme court of Spain in its judgment of July 14, 1870. This circumstance being present, it becomes unnecessary to consider the aggravating circumstance of abuse of superiority and nocturnity. Neither is there any necessity for considering the circumstance of the commission of the offense in a dwelling house, as this fact does not appear to be proven by the testimony of Maria Antolin. Therefore, there being no aggravating or mitigating circumstances, the specific crime of murder

must be punished by the medium degree of the penalty fixed by the law. By virtue thereof we decide that Juan Babasa must be condemned to life imprisonment ( cadena perpetua) with the legal accessories, to the payment of 1,000 Mex- ican pesos to the nearest relatives of the deceased, and to pay the costs of both instances. Torres, Cooper, Willard, Mapa, and Ladd, JJ., concur.

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G.R. No. 959, July 24, 1903

JUAN ISMAEL, PLAINTIFF AND APPELLEE, VS. MANUEL GUANZON, DEFENDANT AND APPELLANT. D ECIS ION
WILLARD, J.: These documents certify that certain persons appeared before the president, at the request of the appellant, and made the statements contained in the documents. These statements were declarations as to what the persons making them knew concerning the matters in controversy in this action. Section 381 of the Code of Civil Procedure provides as follows: "The testimony of all witnesses, except such as has been taken in writing in the form of depositions as otherwise provided by law, shall be given on oath in open court orally, and each witness may be orally crossexamined by the adverse party." The testimony contained in these documents was not taken in the manner provided for taking depositions in sections 353-376 of said Code. Neither were said documents official or public writings as that phrase is denned in section 299 of the same Code. Neither by the Municipal Code nor by any other law has a president of a municipality now any authority to receive declarations and make a record of them in the manner followed in this case. The documents were properly rejected by the court. 2. The appellant accepts the established doctrine of this court that the decision of the court below, with the admissions in the pleadings, must contain facts sufficient as a matter af law to support the judgment. (Thunga Chui vs . Que Bentec, 1 Off. Gaz., September 10, 1902; [1] Martinez vs Martinez, 1 Off. Gaz., 268 ; [2] Balatbat vs. Tanjutco, 1 Off. Gaz., 405.[3] ) As his other assignment of error he claims that under this doctrine the decision should have stated facts showing that the two other defendants, in whose favor judgment was rendered, were not liable to the plaintiff, the release of his codefendants being prejudical to the appellant, "When a judgment is rendered for the defendant, a simple finding, express or implied, that the complaint is not true, is sufficient. The court finds that the appellant cut and ground the cane. This is a finding that he alone appropriated it to his own use, and necessarily excludes the idea that the other defendants participated in the appropriation. It was a sufficient finding on which to base a judgment in their favor. But it is claimed that the court found, also, that the appellant did these acts under the direction of his codefendants and divided the property with them. This claim is not supported by the record. The decision states not that this was a fact, but that the appellant alleged it to be a fact. The judgment is affirmed, with costs of this instance against the appellant. Arellano, C. J., Torres, Mapa and McDonough, JJ., concur.

[1] 1 Phil. Rep., 356. [2] 1 Phil. Rep., 647. [3] Page 182, supra.

CONCURRING COPPER, J.: I concur in the decision affirming the judgment, but the statement contained in the judgment of the lower court, that the defendants "cut and ground the cane," is not, in my opinion, a sufficient finding of fact to support the judgment, and in this I disagree with the majority opinion. This statement appears to be but an accidental recital of evidence. The findings of fact must be of all the material facts at issue. The issues presented by the pleadings in this case wore the ownership of the property by the plaintiff, and the wrongful conversion of it by the defendants. These issues would not be included in the statement that "the cane was cut and ground by the defendants." This is but a probative or evidential fact. It would tend to prove the issue but would be insufficient as an ultimate finding of fact in that it does not appear that the taking of the cane was wrongful, which is one of the material issues in the case. I think the judgment is rather to be supported by the presumption which is indulged in favor of judgments of trial courts. Where no findings are made, the presumption is that all the facts were found in favor of the party for whom the judgment was rendered, otherwise the court would not have rendered such judgments; and where no express findings are made, and the evidence is omitted from the record, such findings will be presumed as are necessary to support the judgment. (2 Enc. of Pleading and Practice, 489, citing Clark vs. Willett, 35 Cal., 534.) It is quite plain from a perusal of the judgment that there was no attempt to make a finding of facts. The right of a party to have the court make separate conclusions of fact and of law, in accordance with section 133 of the Code of Civil Procedure, is a substantial right, and a judgment should be reversed for a refusal to grant such right; but where the record contains no findings, it will be presumed that they were waived, if nothing appears to the contrary. An objection based upon a mere omission to make a finding of fact can not be raised for the first time on appeal. If the party who complains desired such finding of fact he should have requested the court to make it, and if such request was refused he should have excepted to the ruling of the court. When a finding is made by the lower court and it does not cover all the material issues, it must be excepted to for that reason, and the exception should particularly specify the defect and point out the issue upon which the finding is desired. (8 Enc. of Pleading

and Practice, 276.) In this case there was no objection made to the judgment in the court below, except such as may be inferred from the simple fact of the notice of appeal and the perfecting of the bill of exceptions. The general rule is that exceptions which were not taken upon the trial, or in the course of the proceedings below, can not be urged upon appeal. It is but reasonable to require a party desiring to review a case in the appellate court to call the attention of the trial court to the proceedings complained of. The attention of the court below should be directed to the defects or omissions which have thus occurred, in order that the court may have an opportunity to correct such defects or omissions. This rule is necessary to the due administration of justice. To permit a party to remain silent at a time when the defect could be easily remedied, until it is too late to make the correction, is unjust both to the trial court and to the adverse party. In this case, if the objection had been made in the lower court that the finding was insufficient to support the judgment, the correction could easily have been made. It would be unjust to permit the objection to be raised for the first time in this court, and to reverse the judgment for this reason.

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G.R. No. 967, May 19, 1903

DARIO AND GAUDENCIO ELEIZEGUI, PLAINTIFFS AND APPELLEES, VS. THE MANILA LAWN TENNIS CLUB, DEFENDANT AND APPELLANT. D ECIS ION
ARELLANO, C.J.: This suit concerns the lease of a piece of land for n fixed consideration and to endure at the will of the lessee. By the contract of lease the1 lessee is expressly authorized to make improvements upon the land, by erecting buildings of both permanent and temporary character, by making fills, laying pipes, and making such other improvements as might be considered desirable for the comfort and amusement of the members. With respect to the term of the lease the present question has arisen. In its discussion three theories have been presented: One which makes the duration depend upon the will of the lessor, who, upon one month's notice given to the lessee, may terminate the lease so stipulated; another which, on the contrary, makes it dependent up0n the will of the lessee, as stipulated; and the third, in accordance with which the right is reserved to the courts to fix the duration of the term. The first theory is that which has1 prevailed in the judgment below, as appears from the language in which the basis of the decision is expressed: "The court is of the opinion that the contract of lease was terminated hy the notice given by the plaintiffs on August 28 of last year * * *" And such is the theory maintained by the plaintiffs, which expressly rests upon article 1581 of the Civil Code, the law which was in force at the time the contract was entered into (January 25,1890). The judge, in giving to this notice the effect of terminating the lease, undoubtedly considers that it is governed by the article relied upon by the plaintiffs, which is of the following tenor : "When the term has not been fixed for the lease, it is understood to be for years when an annual rental has been fixed, for months when the rent is monthly * * *." The second clause of the contract provides as follows: "The rent of the said land is fixed at 25 pesos per month ." (P. 11, Bill of Exceptions.) In accordance with such a theory, the plaintiffs might have terminated the lease the month following the making of the contractat any time after the first month, which, strictly speaking, would be the only month with respect to which they were expressly bound, they not being bound for each successive month except by a tacit renewal (art. 1566)an effect which they might prevent by giving the required notice. Although the relief asked for in the complaint, drawn in accordance with the new form of procedure established by the prevailing Code, is the restitution of the land to the plaintiffs (a formula common to various actions), nevertheless the action which is maintained can be no other than that of desahucio in accordance with the substantive law governing the contract. The lessorsays article 1509 of the Civil Codemay judicially dispossess the lessee upon the expiration of the conventional term or of the legal term; the conventional termthat is, the one agreed upon by the parties; the legal term, in defect of the conventional, fixed for leases 'by

articles 1577 and 1581. We have already seen what this legal term is with respect to urban properties, in accordance with article 1581. Hence, it follows that the judge has only to determine whether there is or is not a conventional term. If there be a conventional term, he can not apply the legal term fixed in subsidium to cover a ease in which the parties have made no agreement whatsoever with respect to the duration of the lease. In this ease the law interprets the presumptive intention of the parties, they having said nothing in the contract with respect to its duration. "Obligations arising from contracts have the force of law between the contracting parties and must be complied with according to the tenor of the contracts." (Art. 1001 of the Civil Code.) The obligations which, with the force of law, the lessors assumed by the contract entered into, so far as pertaining to the issues, are the following: "First. * * * They lease the above-described land to Mr. Williamson, who takes it on lease} * * * for all the time the members of the said club may desire to use it * * * Third. * * * the owners of the land undertake to maintain the club as tenant as long as the latter shall see fit, without altering in the slightest degree the conditions of this contract, even though the estate be sold." It is necessary, therefore, to answer the first question: Was there, or was there not, a conventional term, a duration, agreed upon in the contract in question ? If there was an agreed duration, a conventional term, then the legal termthe term fixed in article 1581has no application; the contract is the supreme law of the contracting parties. Over and above the general law is the special law, expressly imposed upon themselves by the contracting parties. Without these clauses 1 and S, the contract would contain no stipulation with respect to the duration of the lease, and then article 1581, in connection with article 1569, would necessarily be applicable. In view of these clauses, however, it can not be said that there is no stipulation with respect to the duration of the lease, or that, notwithstanding these clauses, article 1581, in connection Avith article 1569, can be applied. If this were so, it would be necessary to hold that the lessors spoke in vainthat their words are to be disregardeda claim which can not be advanced by the plaintiffs nor upheld by any court without citing the law which detracts all legal force from such words or despoils them of their literal sense. It having been demonstrated that the legal term can ot be applied, there being a conventional term, this destroys the assumption that the contract of lease was wholly terminated by the notice given by the plaintiffs, this notice being necessary only when it becomes necessary to have recourse to the legal term. Nor had the plaintiffs, under the contract, any right to give such notice. It is evident that they had no intention of stipulating that they reserved the right to give such notice. Clause 3 begins as follows: "Mr. Williamson, or whoever may succeed him as secretary of said club, may terminate this lease whenever desired without other formality than that of giving a month's notice. The owners of the land undertake to maintain the club as tenant as long as the latter shall see fit." The right of the one and the obligation of the others being thus placed in antithesis, there is something more, much more, than the inclussio unius, exclussio alterius . It is evident that the lessors did not intend to reserve to themselves the right to rescind that which they expressly conferred upon the lessee by establishing it exclusively in favor of the latter. It would be the greatest absurdity to conclude that in a contract by which the lessor has left the termination of the lease to the will of the lessee, such a lease can or should be terminated

at the will of the lessor. It would appear to follow, from the foregoing, that, if such is the force of the agreement, there can be no other mode of terminating the lease than by the will of the lessee, as stipulated in this case. Such is the conclusion maintained by the defendant in the demonstration of the first error of law in the judgment, as alleged by him. He goes so far, under this theory, as to maintain the possibility of a perpetual lease, either as such lease, if the name can be applied, or else as an innominate contract, or under any other denomination, in accordance with the agreement of the parties, which is, in fine, the law of the contract, superior to all other law, provided that there be no agreement against any prohibitive statute, morals, or public policy. It is unnecessary here to enter into a discussion of a perpetual lease in accordance with the law and doctrine prior to the Civil Code now in force, and which has been operative since 1889. Hence the judgment of the supreme court of Spain of January 2, 1891, with respect to a lease made in 1887, cited by the defendant, and a decision stated by him to have been rendered by the Audiencia of Pamplona in 1885 (it appears to be rather a decision by the head office of land registration of July 1, 1885), and any other decision which might be cited based upon the constitutions of Cataluna, according to which a lease of more than ten years is understood to create a life tenancy, or even a perpetual tenancy, are entirely out of point in this case, in which the subject-matter is a lease entered into under the provisions of the present Civil Code, in accordance with the principles of which alone can this doctrine be examined. It is not to be understood that we admit that the lease entered into was stipulated as a life tenancy, and still less as a perpetual lease. The terms of the contract express nothing to this effect. They do, however, imply this idea. If the lease could last during such time as the lessee might see fit, because it has been so stipulated by the lessor, it would last, first, as long as the will of the lesseethat is, all his life; second, during all the time that he may have succession, inasmuch as he who contracts does so for himself and his heirs. (Art. 1257 of the Civil Code.) The lease in question does not ,fall within any of the cases in which the rights and obligations arising from a contract can not be transmitted to heirs, either by its nature, by agreement, or by provision of law. Furthermore, the lessee is an English association. Usufruct is a right of superior degree to that which arises from a lease. It is a real right and includes all the jus utendi and jus fruendi . Nevertheless, the utmost period for which a usufruct can endure, if constituted in favor of a natural person, is the lifetime of the usufructuary (art, 513, sec. 1); and if in favor of a juridical person, it can not be created for more than thirty years. (Art. 515.) If the lease might be perpetual, in what would it be distinguished from an emphytensis? Why should the lessee have a greater right than the usufructuary, as great as that of an emphyteuta, with respect to the duration of the enjoyment of the property of another? Why did they not contract for a usufruct or an emphteusis? It was repeatedly stated in the document that it was a lease, and nothing but a lease, which was agreed upon: "Being in the full enjoyment of the necessary legal capacity to enter into this contract of lease * * * they have agreed upon the lease of said estate * * * They lease to Mr. Williamson, who receives it as such * * *. The rental is fixed at 25 pesos a month. * * * The owners bind themselves to maintain the club as tenant . * * * Upon the foregoing conditions they make the present contract of lease . * * *" (Pp. 9. 11, and 12, bill of exceptions.) If it is a lease, then it'must be for a determinate period . (Art. 1543.) By its very nature it must be temporary, just as by reason of its nature an emphyteusis must be perpetual, or for an unlimited period. (Art. 1608.) On the other hand, it can not be concluded that the termination of the contract is to be left

completely at the will of the lessee, because it has been stipulated that its duration is to be left to his will. The Civil Code has made provision for such a case in all kinds of obligations. In speaking in general of obligations with a term it has supplied the deficiency of the former law with respect to the "duration of the term when it has been left to the will of the debtor," and provides that in this case the term shall be fixed by the courts. (Art. 1128, sec. 2.) In every contract, as laid down by the authorities, there is always a creditor who is entitled to demand the performance, and a debtor upon whom rests the obligation to perform the undertaking. In bilateral contracts the contracting parties are mutually creditors and debtors. Thus, in this contract of lease, the lessee is the creditor with respect to the rights enumerated in article 1554, and is the debtor with respect to the obligations imposed by articles 1555 and 1561. The term within which performance of the latter obligation is due is what has been left to the will of the debtor. This term it is which must be fixed by the courts. The only action which can be maintained under the terms of the contract is that by which it is sought to obtain from the judge the determination of this period, and not the unlawful detainer action whicli Has oeeii broughtan action which presupposes the expiration of the term and makes it the duty of the judge to simply decree an eviction. To maintain the latter action it is sufficient to show the expiration of the term of the contract, whether conventional or legal; in order to decree the relief to be granted in the former action it is necessary for the judge to look into the character and conditions of the mutual undertakings with aview to supplying the lacking element of a time at which the lease is to expire. In the case of a loan of money or a commodatum of furniture, the payment or return to be made when the borrower "can conveniently do so" does not mean that he is to be allowed to enjoy the money or to make use of the thing indefinitely or perpetually. The courts will fix in each case, according to the circumstances, the time for the payment or return. This is the theory also maintained by the defendant in his demonstration of the fifth assignment of error. "Under article 1128 of the Civil Code," thus his proposition concludes, "contracts whose term is left to the will of one of the contracting parties must be fixed by the courts, * * * the condition as to the term of this lease has a direct legislative sanction," and he cites article 1128. "In place of the ruthless method of annihilating a solemn obligation, which the plaintiffs in this case have sought to pursue, the Code has provided a legitimate and easily available remedy. * * * The Code has provided for the proper disposition of those covenants, and a case can hardly arise more clearly demonstrating the usefulness of that provision than the case at bar." (Pp. 52 and 53 of appellant's brief.) The plaintiffs, with respect to this conclusion on the part of their opponents, only say that article 1128 "expressly refers to obligations in contracts in general, and that it is well known that a lease is included among special contracts." But they do not observe that if contracts, simply because special rules are provided for them, could be excepted from the provisions of the articles of the Code relative to obligations and contracts in general, such general provisions would be wholly without application. The system of the Code is that of establishing general rules applicable to all obligations and contracts, and then special provisions peculiar to each species of contract. In no part of Title VI of Book IV, which treats of the contract of lease, are there any special rules concerning pure or conditional obligations which may be stipulated in a lease, because, with respect to these matters, the provisions of section 1, chapter 3, Title I, on the subject of obligations, are wholly sufficient. With equal reason should we refer to section 2, which deals with obligations with a term, in the same chapter and title, if a question concerning

the term arises out of a contract of lease, as in the present case, and within this section we find article 1128, which decides the question. The judgment was entered below upon the theory of the expiration of a legal term which does not exist, as the case requires that a term be fixed by the courts under the provisions of article 1128 with respect to obligations which, as is the present, are terminable at the will of the obligee. It follows, therefore, that the judgment below is erroneous. The judgment is reversed and the case will be remanded to the court below with directions to enter a judgment of dismissal of the action in favor of the defendant, the Manila Lawn Tennis Club, without special allowance as to the recovery of costs. So ordered. Mapa and Ladd, JJ., concur. Torres, J., disqualified.

CONCURRING WILLARD, J.: I concur in the foregoing opinion so far as it holds that article 1581 has no application to the case and that the action can not be maintained. But as to the application of article 1128 I do not concur. That article is as follows: "Should the obligation not fix a periocj, but it can be inferred from its nature and circumstances that there was an intention to grant it to the debtor, the courts shall fix the duration of the same. "The court shall also fix the duration of the period when it may have been left to the will of the debtor." The court has applied the last paragraph of the article to the case of a lease. But, applying the first paragraph to leases, we have a direct conflict between this article and article 1581. Let us suppose the lease of a house for 50 pesos a month. Nothing is said about the number of months during which the lessee shall occupy it. If article 1581 is applicable to this case, the law fixes the duration of the term and the courts have no power to change it. If article 1128 is applied to it, the courts fix the duration of the lease without reference to article 1581. It will, I think, be agreed by everyone that article 1581 is the law applicable to the case, and that article 1128 has nothing to do with it. It seems clear that both parts of the article must refer to the same kind of obligations. The first paragraph relates to obligations In which the parties have named no period, the second to the same kind of obligations in which the period is left to the will of the debtor. If the first paragraph is not applicable tp leases, the second is not. The whole article was, I think, intended to apply generally to unilateral contractsto those in which the creditor had parted with something of value, leaving it to the debtor to say when it should be returned. In such cases the debtor might never return it, and the creditor might thus be deprived of his property and entirely defeated in his rights. It was to prevent such a wrong

that the article was adopted, But it has no application to this case. The plaintiff's are not deprived of their rights. They get every month the value which they themselves put upon the use of the property. The time for the payment of this rent has not boon left by the contract to the will of the debtor. It is expressly provided in the contract that it shall be paid "within the first five days after the expiration of each month." Article 1255 of the Civil Code is as follows: "The contracting parties niny make the agreement and establish the clauses and conditions which they may deem advisable, provided they are not in contravention of law, morals, or public order." That the parties to this contract distinctly agreed that the defendant should have this property so long as he was willing to pay 25 pesos a month for it, is undisputed. I find nothing in the Code to show that when a natural person is the tenant such an agreement would be contrary to law, morality, or public policy. In such a case the contract would terminate at the death of the tenant. Such is the doctrine of the French Cour de Cassation, (Houet vs. Lamarge, July 20, 1840.) The tenant is the only person who has been given the right to say how long the contract shall continue. That right is personal to him, and is not property in such a sense as to pass to his heirs. In this case the question is made more difficult by the fart that the tenant is said to be a juridical person, and it is said that the lease is therefore a perpetual one. Just what kind of a partnership or association the defendant is does not appear, and without knowing what kind of an entity it is we can not say that this contract is a perpetual lease. Even if the defendant has perpetual succession, the lease would not necessarily last forever. A breach of any one of the obligations imposed upon the lessee by article 1555 of the Civil Code would give the landlord the right to terminate it.

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G.R. No. 971, February 03, 1903

THE UNITED STATES ET AL., COMPLAINANTS AND APPELLEES, VS. PONCIANO VILORIA, DEFENDANT AND APPELLANT. D ECIS ION
TORRES, J.: On the 15th of June, 1900, Maria Mina, a citizen of Narvacan, Ilocos Sur, filed a complaint against Ponciano Viloria for the redemption of a piece of land sold by her to the latter for $120, subject to the right of redemption, alleging that the purchaser had refused to reconvey the same. The defendant declined to answer the complaint on the ground that the justice of the peace of Narvacan was without jurisdiction, inasmuch as the value of the property sold was $220 as shown by a private document exhibited at that time. This document, which appears in the record on page 88, was impugned by the private prosecutor as a.forgery, and she asked that a presecution be instituted for this crime. This petition was reproduced in a formal complaint dated on the 14th of August, 1900 (record, p. 1), in which she alleges that the accused presented the said false document animus lucrandi, and to the damage of the complainant. That she had not drawn, authorized, or signed the said document, inasmuch as she was absent from Narvacan at the date thereof, and that it was not true that she had agreed to limit the time within which to redeem the property, nor that she had received an increase of $100 over the $120, which was the consideration for the land covered by the original document (record, p. 87), and denied that in consideration of the increased price she had sold upon similar terms another piece of adjacent land lying to the east of the first tract, alleging that she was still in possession of the latter property and citing several witnesses to that effect. Upon this complaint and in view of the result of the preliminary investigation conducted at the instance of the complainant, the judge directed that the defendant be prosecuted for the crime of falsification of a private document. The accused appeared for arraignment and plead not guilty. In his subsequent testimony he stated (record, p. 128) that about five years ago Maria Mina had mortgaged to himr a piece of land belonging to her situated at a place called Tamdagan, at the town of Narvacan, for the sum of $120; that on the 8th of June, 1898, at the request of Maria Mina, who needed money to pay an indebtedness to one Bonifacio Azada, and in accordance with their agreement, the witness advanced her another $100 in consideration of another small piece of land adjacent to the land covered by the mortgage, which it was agreed was to be converted into a sale, with the reservation to the vendor of the right to redeem within one year; that in accordance with this agreement he directed Juan Martinez and Severino Cabaya, since deceased, on the afternoon of June 8,1898, to go to the house of the complaining witness and pay her the said sum of $100, and that the woman, Mina, herself made the final copy of the contract from the draft drawn, writing it at the foot of the old document, which, together with the draft of the agreement, had been taken to her by the bearers of the money; that the latter upon their return to the house after nightfall brought with them the said writing (original record, p. 88; traslation record, p. 211); that Basilia Ballejos, Bonifacio Azada, and the two messengers were eyewitnesses to the writing of the document by Maria Mina. The witness added that when the justice of the peace of Narvacan appointed Don Oregorio Navarro receiver to take possession of the two pieces of land as the result of the civil action brought by Maria Mina that the witness was in possession of the land, and that when the

receiver was discharged the land was returned to him. He who to the damage of another or with the intention to cause damage commits any one of the forgeries or falsifications designated in article 300 of the Penal Code in a private document, is subject to the penalty prescribed by article 304 thereof. The complaining witness charged the accused with having counterfeited, simulated, or feigned in the document on page 88 of the record her handwriting, signature, and scroll, and of having been guilty of falsehood by having expressed in this document contracts and stipulations which were not agreed upon between them, this with the intention of causing her damage as shown by the fact of his having introduced it in evidence in the civil case as a defense to her action. The complaining witness, Mina, having denied the authenticity of the document and of the signature and scroll, which it purports to bear, alleging that they are not her signature or scroll, and that she did not write the same, the burden of proof is on the accused who affirms the authenticity of the document and the veracity of its contents to show these facts, and her denial is sufficient for the document to be regarded as false unless these facts are properly proven. However, notwithstanding the denial of Maria Mina and her allegation of the falsity of this document, and notwithstanding the testimony of the witnesses presented by her at the trial for the purpose of proving that she was absent from Narvacan and was in Vigan on the date in which the document purports to have been written and signed, and therefore that she could not have written it. and that the land said to have been sold by this document to Viloria with the right of redemption had not been delivered to the latter but was still in her possession, and was under cultivation by Cornelio Cardona at her account, the record shows sufficient evidence to the contrary to prove that the sale actually took place, and that the document attacked as false is authentic. Upon an examination of the evidence introduced by the accused it appears that four witnesses were present when the complainant wrote and signed the document on the afternoon of June 8,1898. Only three of them testified to this fact, the fourth witness having died after the occurrence and prior to the trial, although it appears from the record of the preliminary investigation in the case and which was sent up with the trial record that this witness also testified in the same way. It can not therefore be believed that the complaining witness was absent on that afternoon from the town of Narvacan or that she was in Vigan, as testified to by four witnesses. This view is further supported by the fact that two of these witnesses testified only to statements made by one of the other two. The fifth witness, Anatalio Pichay, in whose house the complaining witness, Mina, alleges that she stopped while in Vigan does not remember the date or the year in which this occurred. Three witnesses, residents of the neighborhood, and owners of property adjacent to the land referred to in the deed, testified that the accused is the owner of the said land which was formerly the property of the complaining witness, Mina, and that Juan Martinez and Bibiana de la Cuadra have been successively cultivating it for the account of the accused since 1898. This is corroborated by the testimony of other witnesses who, however, state that the land was being cultivated in the name of Bonifacio Azada, to whom the accused conveyed the second piece of land. This statement was also made by the accused in his testimony. It is worthy of note that when the land was put in the hands of a receiver at the instance of Maria Mina on account of the civil action referred to, the receiver, Gregorio Nayarro, who took charge of the

land, upon being examined as a witness for the prosecution stated that he did not remember wno possessed the lands of which he had been receiver, nor did he remember to whom they were returned at the expiration of the receivership. Upon this examination of the merits of the case and of the evidence introduced, and in view of the result of the examination by experts of the handwriting,signature, and scroll of the complaining witness, the exercise of a sound discretion leads to a complete conviction that the contract expressed in the document referred to was actually entered into; that the document is authentic; that Ponciano Viloria purchased the said lands which were not possessed by or under the control, even of the complaining witness, who, for the purpose of recovering them, was obliged to invoke the aid of the courts, and therefore Viloria is not guilty of the crime of which he is charged. Upon these grounds justice requires that the appealed judgment should be reversed and the accused Ponciano Viloria acquitted for lack of evidence of the crime of which he is charged, with the costs of both instances de oficio. The court below is directed to make the necessary orders with respect to the property of the accused, which has been attached. So ordered. Arellano, C. J., Cooper, Willard, Mapa, and Ladd, JJ., concur.

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G.R. No. 975, January 29, 1903

THE UNITED STATES, COMPLAINANT AND APPELLEE, VS. IGNACIO DACOTAN ET AL., DEFENDANTS AND APPELLANTS. D ECIS ION
WILLARD, J.: It is true that there was only one witness who testified against the defendants. But in the present condition of the law a person can be convicted upon the testimony of one witness if the court is satisfied beyond a reasonable doubt that such testimony is true. The evidence in this case is in our opinion sufficient to sustain the conviction. The penalty imposed upon the defendants of 12 years and 1 day is, however, not in conformity with law. The offense falls within article 503, No. 5, of the Penal Code. The maximum penalty allowed by that article is ten years. The aggravating circumstance of abuse of confidence ought not to be considered. The complaining witness went into the house of the defendants at their invitation and his money was taken from him by force, in the middle of the day. This indicates an abuse of confidence no more than would an invitation by them that he should accompany them to a retired place where thev could rob him without interference. No aggravating nor attenuating circumstances appearing, the penalty should be imposed in the medium grade, and we fix it at three years eight months and one day of presidio correccional , with indemnification of 27 pesos, Mexican, restitution of the value of the two undershirts as may be fixed by experts if said underwear is not returned, and in case of insolvency defendant is sentenced to the corresponding subsidiary imprisonment and to the payment of costs of both instances. So ordered. Arellano, C., J., Torres, Cooper, and Ladd, JJ., concur. Mapa, J., did not sit in the case.

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G.R. No. 980, February 20, 1903

THE UNITED STATES, COMPLAINANT AND APPELLEE, VS. EUGENIO BARBOSA, DEFENDANT AND APPELLANT. D ECIS ION
TORRES, J.: The following facts were satisfactorily established by the evidence in the present case: That on the evening of the 13th of January, 1902, Eugenio Barbosa, a sergeant of Scouts, went to the house of Jose Baldosano in Bangued, head town of the district, where his wife, Ana Baldosano, the landlord's daughter, lived. That no sooner had he arrived at the house than he again recriminated his wife, thinking that she was not faithful to him. That his father-in-law, in order to put an end to the dispute, told them to go settle their grievances in court, whereupon the defendant, Barbosa, replied that he alone was enough to judge himself and his wife too. That some time after 10 o'clock that night both husband and wife had supper and then went to bed. That about 2 o'clock next morning defendant got up and invited his wife to go downstairs in order to bid good-bye to an aunt of his, which they did, because he intended to take his wife the next day to the town where the company to which defendant belonged was stationed. That two hours after they had left the house, apparently on good terms, the defendant returned alone to the house and told the family, all of whom were in the house at the time, and which consisted of the parents, Guillermo Baldosano and Arcadia Veloso; their children, Guillermo and Antonio; Antero Flores, Felipa Veloso, and several others who were then present, that his wife, Ana, Baldosano, had died and that they could go to get her body if they wished to; that the body was lying within a fenced piece of ground on the other side of the street near by and remarked to them that they would meet the same fate if they should attribute her death to any cause other than a disease of the stomach. His statements were heard by all the people in the house. That Guillermo Baldosano and Antero Flores immediately left the house and went in search of the body which they found at the place designated by the defendant, at the foot of a tree and about 20 or 30 yards from the house, to which the body was conveyed the same night. That when they were carrying the body away they noticed about the neck and throat indications that she had been choked, which led them to think that Barbosa had strangled his wife. That the body presented some dark spots about the throat caused by the pressure of his fingers. That the body was buried on the afternoon of the following day, the 14th of January, at the parish cemetery as per certificate (record, p. 52). The offense in question has been duly established by competent and conclusive circumstantial evidence sufficient to define the crime as parricide as denned and punished under article 402 of the Penal Code. Although the defendant pleaded not guilty to the crime with which he stands charged, the case, however, furnishes sufficient grounds upon which to base his conviction as the party responsible by direct participation for the death of his wife, Ana Baldosano. The record satisfactorily shows that earjy in the evening of the 13th of January, 1902, the defendant upon his arrival at the house where his wife lived had been recriminating her on account of his jealousy; that late that night and about 2 o'clock defendant invited his wife to go downstairs, which they did, upon the unexplained pretext of bidding good-bye to an aunt of

his; that two hours later defendant returned to the house alone and notified the parents of the girl as well as the rest of the people in the house that his wife had died, and told them to go to get the body if they wished to and which was to be found at the place designated by him; that instead of showing his grief and sorrow on account of the death of his wife, who he claimed had died of a disease of the stomach, he expressed himself unconcernedly and told those within his hearing that they were liable to be killed likewise should they attribute the death of his wife to any cause other than the said disease of the stomach. The finger marks found about the throat and neck of the victim also indicated that she had been choked. The foregoing facts were properly established by the testimony of competent witnesses and constitute as many circumstances which taken together with the other merits of the case, considered in accordance with the principles of a sound discretion, and combined with each other, convince us of the guilt of the accused as the convicted author of the crime in question. Apart from the fact that it has not been proved that the deceased, who, previous to her death and at the time she left the house accompanied by her husband, was in good health, was taken with a pain in the stomach shortly afterwards and when she had walked for about 20 or 30 yards, it is impossible to conceive, and we are not inclined to believe that the death was due to a disease of the stomach. If this was true it seems natural that defendant and his wife should have returned to the house or that the husband should have endeavored to carry his sick wife to the house of her parents, which was but a short distance away, or, if this was not possible, he could have called on the relatives to aid his wife, who could have been left alone while he did so. But the accused did nothing of the kind and has not been able to explain at the trial this strange conduct, not at ail consistent with the duties which a husband owes his wife. It does appear, however, that the defendant acted in such an unfeeling way toward the deceased that it may be safely inferred from the antecedents and other circumstances of the case that he was the murderer of his wife, having been actuated by the passion of jealousy and the hatred he felt toward his wife, whom he thought was untrue to him. It can not be said that the circumstantial evidence referred to has been contradicted at all by the witnesses to the alibi presented by the defense. The testimony of the witnesses who testified that defendant had been at the barracks all night is not worthy of credence since some of them were absent from the building dancing at a house from about 9 to 12 o'clock that night and others were asleep and therefore could not know positively whether the accused had been absent from his quarters or not. The barracks had three doors and there was a sentry at one of them only. It can not be held as having been established by the evidence that on the morning of the 14th of January he was notified that his wife had died of a disease of the stomach, because the brother of the victim denies having made such a report to him, and further because the true author of the crime and the one who informed and threatened the family of the deceased did not require such notice. It must be finally remarked that the contradictions which appear in the testimony of witnesses for the defendant discredit their own statements, which could not be properly accepted. The fact that a majority of the witnesses for the Government are near relatives of the deceased does not lessen in the least the weight of their testimony. The statements of these witnesses, far from evincing any falseness, corroborate facts which coincide with other undeniable ones, all of which are conclusive circumstantial evidence tending to show the existence of the crime and the criminal responsibility of its author. As respects the certificate of the burial of the body, it may be said that the probatory force of

this document is confined only to the fact of the death and burial of Ana Baldosano, and the information as to the cause of her death, given by the person or persons who carried the body, was mere hearsay. And if it is certain that against all truth and reality the brother of the deceased had told the priest and the parish sexton that she had died of a disease of the stomach, is it not also probable that the said brother acted under the influence of the threats made by defendant shortly after the commission of the crime? This is not improbable, nor is it likewise impossible that the accused, taking advantage of his rank as sergeant of Scouts, should have himself instructed the party how to draft the certificate of burial in the same manner as he secured and prepared the evidence of his alibi. From a careful examination of the record and from the statements of the parents and brothers of the deceased, as well as from the testimony of the accused, it appears that while the unfortunate family of the deceased was overcome with fear, the accused evinced unusual boldness and forwardness, trusting, as he had repeatedly said during the trial, that his superior officers would defend him, basing his statements also on certain unfounded privileges he claimed he had in the organization to which he belonged, he having been defended by the governor of the province, an unusual occurrence in a criminal case. In the commission of so grave a crime there should be appreciated the attendance of the aggravating circumstance of nocturnity, article 10, No. 5, of the Code, and that defined in article 11 of the same as mitigating, since it clearly appears that the accused took advantage of the darkness and stillness of the night, at a time when all the neighbors were in bed, in order to commit the crime; also that the defendant by reason of his personal circumstances of race and lack of education allowed himself to be influenced by the overpowering passion of jealousy which originated the crime. These two circumstances compensate each other in their effects, and for this reason the penalty applicable to the crime would be the less severe of the two indivisible ones prescribed in article 402 of the Penal Code. Beyond these we think that no other should be considered, not even those of premeditation and treachery, appreciated by the court below in its judgment, since the case does not furnish any evidence to the effect that Barbosa had formed the deliberate, premeditated intention to take the life of his wife, and there was no eyewitness as to the manner in which the deceased was strangled; consequently there is .no provision of law under which we can hold that the crime was committed with treachery, and it must be borne in mind that the qualifying circumstances of a crime in its commission, in order to be considered, must be established by competent evidence as well as the crime to which they relate. The other points made by the defense were that the testimony of the witnesses for the Government was elicited by leading questions, and that the investigation at the trial was not directed in the first place to determining whether or not a crime had been committed. In this behalf it must be observed that the witnesses in their replies to these questions gave an explanation of the facts and occurrences to which they testified, and that the same facts and occurrences were also affirmed in the two preliminary investigations held. These matters were affirmed without contradiction at the trial, in which both the commission of the crime and the identity of the criminal were proven. The law of criminal procedure does not require that the investigation be conducted in the order which counsel for the accused considers to have been committed in this case. It is true that the existence of a crime is a condition precedent to that of the liability of the supposed criminal, but it is also unquestionably true that the investigation can not be limited to the fact of the crime in the abstract without regard to the guilty agent, inasmuch as the proof of the crime necessarily involves the personality of the agent to such a

degree that it is not possible to separate them. The concept of the crime is always subjective and not objective, and it is not possible to conceive the existence of a punishable act or omission without that of the guilty agent: Such has been the procedure in this case in which the investigation of the cause of the decease of Ana Baldosano has resulted in the proof showing that she met a vio- lent death willfully caused by her own husband. For the foregoing reasons this court finds: (1) That the offense as established by the evidence constitutes the crime of parricide in the commission of which there must be appreciated the attendance of the aggravating circumstance of nocturnity and the mitigating circumstance defined in article 11 of the Penal Code. (2) That the defendant Eugenio Barbosa as convicted is the only party responsible therefor by direct participation. (3) That he has incurred the lower of the two indivisible penalties prescribed in article 402 of the Code and the accessory penalties Nos. 2 and 3 of article 54. (4) That he has likewise incurred civil liability without subsidiary personal responsibility, with costs. Wherefore in our opinion the judgment consulted and appealed from should be reversed and the defendant, Eugenio Barbosa, sentenced to life imprisonment with the accessory penalties of civil interdiction, being subject to the vigilance of the authorities during the period of his life; and should the principal penalty be remitted he shall in any event suffer the accessory penalties of perpetual absolute disqualification and sh&U further be subject to the surveillance of the authorities during the term of his natural life if the same should have not been rem&ted together' with the principal penalty; and we further sentence him to pay an indemnification in the sum of $1,000, Mexican, to the heirs of the deceased, with.costs of both instances. The judge shall proceed in accordance with law in regard to the embargoed property of the defendant. It is so ordered and adjudged. Arellano, C. J., Cooper, and Mapa, JJ., concur.

DISSENTING WILLARD, J.: It was plainly proven at the trial that Guillermo Baldosano, the most intelligent of the witnesses for the Government, on the morning after the death of his sister notified the parish sexton that she had died of a disease of the stomach. Nothing was said by any of the family to the contrary, and no complaint was made to the public authorities until the 26th day of January. It is said that this action of Guillermo and this silence of the family were due to the threats alleged to have been made by the defendant on the night of the 13th. There would be some force to this claim were it. not for the facts which lead up to the complaint made on January 26. It appears from this complaint that on this day the defendant went to the house of his father-in-law and asked for his trunk; that he was told that it had been pawned to pay the expenses of his wife's funeral; that he then threatened to kill the family if it was not delivered to him in two hours. It appears that the trunk was worth 4 pesos. In this complaint the killing of the woman is only incidentally mentioned. The petition is that the defendant be prevented from carrying out his threats in regard to the trunk. The threats of the defendant seem to have been efficacious when the matter involved was his

prosecution for the murder of his wife, but to have lost their effects when the matter involved was the payment by the family of 4 pesos. Four witnesses for the defendant testified that as the company was about to march away on the morning of the 14th a person, whom the defendant then told them was his brother-in-law, Guillerno Baldosano, came to the barracks and notified the defendant of the death of his wife. If this testimony is true, it is impossible to believe that the occurrence testified to by the witnesses of the Government ever took place. It is also strange that the five witnesses for the Government should all have been awake at 2 o'clock in the morning, when they say that the defendant and his wife left the house. It is, of course, possible that this testimony is true, but I have such serious doubts as to whether the defendant was at the house at all after 7 o'clock that evening that I can not agree to a judgment of conviction. LADD, J.: I concur with the dissenting opinion.

OSJurist.org

G.R. No. 981, October 08, 1903

THE UNITED STATES, COMPLAINANT AND APPELLEE, VS. EMILIANO CAJAYON ET AL., DEFENDANTS AND APPELLANTS. D ECIS ION
TORRES, J.: Between 11 and 12 o'clock at night on the 21st of March, 1901, twelve men, armed with guns and bolos, assaulted the house of Dona Ana Muriel in the tOAvn of Lubang, Cavite Province, and stole jewelry, clothing, documents, and some $120 in cash. After having bound Tranquilino Torres, who lived in that house, the assailants took him with them to the barrio of Maliig, near the house of Pedro Villaflores, where they killed him and buried him in a hole dug for that purpose. About five or six days afterwards notices were posted in different parts of the town and on the door of the house which had been assaulted, stating that in the barrio mentioned the body of Tranquilino Torres could be found, disinterred and devoured by the dogs. Upon this notice, the municipal president, Toribio Aguilar, accompanied by his assistants and some of the townspeople, including Manuel Torres, the son of the dead man, went to the place designated. A skull, a number of bones, and other human remains were found scattered about near a grave, together Avith some clothing, a hat, and a piece of rope about 3 yards in length. The son of the deceased and Gumersindo Abeleda and Mariano Tularino, inhabitants of the town, identified the clothing and hat as those worn by the deceased in his lifetime. His son furthermore stated that his father had lost a tooth from the upper jaw, and a similar defect was observed in the skull found. The conclusion was reached by all that these human remains were those of Tranquilino Torres. The violent killing of a human being with the presence of any of the live qualifying circumstances enumerated in article 403 of the Penal Code constitutes the crime of murder, punishable by penalties ranging from cadena temporal in its maximum grade to death. The facts above related with respect to the killing of Tranquilino Torres in the barrio of Maliig, town of Lubang, on the night of the 21st of March, 1901, which are fully established by the testimony of eyewitnesses and by circumstantial evidence, constitute the crime of murder because of the presence, in its commission, of the qualifying circumstance of alevosia. The deceased was bound elbow to elbow and was carried away by some twelve malefactors, and, while unarmed and in such a situation that it was imx>ossible for him to defend himself against his assailants, was killed by them. This being so, the latter in committing the crime availed themselves of means which unquestionably directly and specially tended to insure its consummation without any risk to themselves arising from an attempt at defense on the part of the deceased. Although the information charges the defendants with only the crime of murder, the evidence adduced at the trial also shows that before the perpetration of this crime, the defendants had committed the crime of robbery in the house from which the deceased was taken. The facts shown by the evidence might therefore have been classified as constituting the double crime of robbery in a band and murder. However, limiting ourselves to the latter, which is all the complaint charges, we reach the conclusion that the evidence is such as to establish beyond doubt the guilt of the defendants Emiliano Cajayon, Felix Aguilar, Domingo Castillo, Quintin de

Lemos, Tomas Ramirez, Pioquinto Cajayon, Gregorio Tria, Candido Aguilar, and Mariano Aguilar, as principals, together with other persons unknown, of the crime of murder. The complaining witness, Ana Muriel, designated Felix Aguilar, Emiliano Cajayon, Quintin de Lemos, Tomas Ramirez, and Candido Aguilar as the malefactors who, with two other persons unknown, entered her house on the night in question, stole jewelry and money therefrom, and carried off with them Tranquilino Torres. She stated that she had known these five men designated by her before the night in question, and that she recognized them when they struck a light. At the same time she observed that three of them had guns and that the others carried revolvers. The witnesses Gumersindo Abeleda, Antonio Orayani, Mariano Tularino, Tomas Sanchez, and Cornelio Tamayosa, inhabitants of the town, some of whom lived in houses close to the one in which the robbery was committed, corroborated this statement, saying that there was a disturbance in the town because of the assault on the house of Ana Muriel. The witness Abeleda added that as he was at that time justice of the peace, he went with the president to the house where the occurrence had taken place and was there informed that Emiliano Cajayon, Quintin de Lemos, Gregorio Tria, Pioquinto Cajayon, and Tomas Ramirez were among the assailants. This witness also states that he was present when the remains and clothing of Tranquilino Torres were found, and that he believes the woman Muriel had some jewelry and money. The witness Antonio Orayani also stated that he knew Gandido Aguilar, Emiliano Cajayon, Domingo Castillo, and one Pantenople were with the robbers. Simeon Villaluz, another neighbor, testified that he saw the malefactors from the window of his house and that among them he recognized Emiliano Cajayon, Quintin de Lemos, and Candido Aguilar. He stated that these, accompanied by some others, entered the house in question, which was about 8 yards distant from that of the witness, and that the others, whom he did not recognize, stationed themselves around the outside of the building. Mariano Tularino, who lived in another house about 25 yards distant from the one assaulted, states that among the 10 or 12 malefactors he also recognized Emiliano Cajayon, Gregorio Tria, and Pioquinto Cajayon. Tomas Sanchez, another neighbor who witnessed the assault from his house, testified to having recognized among the malefactors Emiliano Cajayon, Candido Aguilar, Domingo Castillo, Felix Aguilar, Pioquinto Cajayon, Juan Sales, and one Pantenople, and that they, upon leaving the house with other persons unknown to him, carried with them Tranquilino Torres, who was bound at the time. The witness Cornelio Tamayosa states that on the night of the occurrence while he was returning to the town of Lubang from the barrio of Vigo he met a number of armed malefactors on the road in the barrio of Maliig. He says that they were carrying with them Tranquilino Torres, who was bound, and testifies that among these malefactors he recognized Mariano Aguilar, Emiliano Cajayon, Felix Aguilar, Tomas Ramirez, Juan Sales, and the men called Andres Teodoro and Pantenople. The witness said that he subsequently heard about the robbery and the recovery of the remains of Tranquilino Torres. Pedro Villaflores, an inhabitant of Maliig, near whose honse the remains were found, said that one night he saw in the vicinity of his honse Emiliano Oajayon, Felix Aguilar, Quintin de Lemos, Gandido Aguilar, and Tomas Ramirez and some other men, armed with rifles and bolos. Manuel Torres, the son ofy the deceased, states that he was in the house of Nazaria Villagracia when he heard the voice of his father calling to him from the street through which he was passing, conducted by several armed men, but that he did not leave the house, as he was afraid. He testified that this was the last time he saw his parent, and that about five days afterwards human remains were found together with clothing and a hat which he recognized as being his father's, and that he was able to identify the skull because one of the teeth was missing. He stated further that Pedro Malabanan, Pedro Torredisa,

Juan Villamar, and Tomas Sanchez had told him that his father had been kidnaped by the malefactors. It appears, therefore, that the evidence in the record fully establishes the fact that on the night of March 21, 1901, Tranquilino Torres was taken from the house in which he lived in the town of Lubang by a band of ten or twelve armed malefactors; that they tied him elbow to elbow and carried him away, several credible witnesses having seen him carried from the house in this condition and through the streets of the town toward the barrio of Maliig, where thiey were also seen by the witness Tamayosa, who was at that time returning to the town; that at the expiration of five or six days it was learned from placards which had been posted at various places in the town, including the house where the witness had lived, that in the barrio of Maliig a disinterred body, devoured by the dogs, might be found; that a number of the inhabitants who had known Torres in his lifetime, and also his son, Manuel Torres, recognized the clothing and the hat found, together with a piece of rope, near the hole in which the body had been buried, as having belonged to the deceased; that his son was also able to identify the remains as his father's, owing to the fact that one tooth was missing from the upper jaw of the skull found, and that since that time the said Tranquilino Torres has not returned to the house of Ana Muriel and has not since been seen in the town of Lubang. Upon this evidence we reach the conclusion that Tranquilino Torres was murdered on the night of March 21, 1901, when he was kidnaped by the nine defendants above named, in the house of Ana Muriel; and that they, notwithstanding their denial, together with other persons still at large, were unquestionably guilty of the murder, because five or six days after they had kidnaped the deceased his remains were found in the barrio where he had been seen in their custody. Another fact which indicates the guilt of the defendants is that Candido Aguilar, Domingo Castillo, Mariano Aguilar, Quintin de Lemos, Gregorio Tria, and Emiliano Cajayon lived in the barrio of Tilig, which was about four hours' walk from the town of Lubang and far beyond the barrio of Maliig, through which the road from Lubang to Tilig passes, and that, nevertheless, between 3 and 4 o'clock in the morning of the day following the occurrence, these defendants, according to the statements of Candido Aguilar and Domingo Castillo, were aroused by the excitement among the people of the barrio caused by the robbery in question and the kidnaping of the deceased. These defendants state that when they left their house they met Quintin de Lemos, Gregorio Tria, Emiliano Cajayon, Mariano Aguilar, and several others in the street discussing the occurrence. It is incredible that in the ordinary course of events this news should have been known so soon in the barrio, and it is inexplicable how it could have spread so rapidly to that distant barrio unless we infer that the defendants, who gathered together in the street for the purpose of talking, as they say, about the crime, had just arrived in the barrio from Maliig where Tranquilino Torres had been murdered by them. It is unquestionable that they all took part in the capture of the deceased and in his conveyance to the barrio of Maliig and to the place where the murder was committed. Although it does not appear which of the defendants actually killed the deceased, until the contrary shall be made to appear it must be held that each and every one of them performed acts tending to bring about the consummation of the crime; that is, in the absence of evidence showing that one or more of them did not aid in the commission of the crime, it must be presumed that all were implicated in its execution, as it was for this purpose that Torres was kidnaped; and his captors therefore all contributed and conspired to effect their common object, the deatli of the deceased. It does not appear from the record that the defendants made any attempt to prove their innocence or to impugn the veracity of the witnesses for the prosecution. These witnesses

testified in the presence of the defendants and identified them at the trial without any protest on the part of the latter. The provisions of article 244 of the Penal Code were erroneously applied by the court below in this case. The rebellion of the inhabitants of the Island of Lubang against the Spanish Government resulted in the expulsion of the Spanish officials from the island and the establishment by the inhabitants of a local government therein, and although the nine defendants were in fact at the time members of the insurrectionary forces, it is, nevertheless, certain that at the time of the murder the island was governed by insurrectionary authorities. Although the accused, therefore, were revolutionists, Emilio Cajayon with the rank of captain, some of the others with that of lieutenant, and the others being merely soldiers, the fact remains that they committed the crime, not on the occasion of any act of rebellion or sedition but independently. On the night in question they performed no act of a political character, and therefore article 244 of the Penal Code can not be applied. In the commission of this crime we must consider present I the aggravating circumstance of nocturnity, established by paragraph 15, article 10, of the Penal Code, the defendants having availed themselves of the darkness of night for the consummation of the crime. This circumstance is, i however, offset as to its effects by the special mitigating J circumstance established in article 11 of the Code. In consideration of the character of the crime and the personal status of the deceased and of his assailants, and more especially in consideration of tne abnormal conditions then prevailing in the town of Lubang, there being no lawfully constituted authorities there at that time, the penalty prescribed in article 403 of the Code should be imposed upon the nine convicted defendants in its medium grade. This decision will not affect the two defendants who were acquitted by the court below, no appeal having been taken against the judgment of acquittal. In the information upon which the prosecution is based some deficiency is to be observed in the statement of the facts constituting the crime of murder with which the defendants were charged, and on this account the Solicitor-General asks that the proceedings be set aside, that the judgment be reversed, and that the court direct the filing of a new information for the crime of murder, the commission of which is disclosed by the evidence. No objection was made to the information by the defendants or by their attorney, either in the court below or in this court. They failed to register any exception or protest on the ground of the nullity of the information or of the trial, nor has any application been made for a new trial because of such deficiency. For this reason, in view of the result of the proceedings, and in view of the fact that the offense charged has been properly defined and designated in the information in question, the petition of the Solicitor-General must be denied. With respect to the motion of eight of the defendants that they be given the benefits of the amnesty proclamation of July 4 last, inasmuch as it does not appear from the record that the murder herein prosecuted is of a political character, or that it was committed for political motives or in consequence of feuds or hatred of a political character between the deceased and the accused, we are of the opinion that there is no ground upon which the defendants can be given the benefits of the proclamation referred to. For the reasons stated we are, therefore, of the opinion that the judgment of the court below dated July 12, 1902, must be reversed in so far as the defendants Felix Aguilar, Domingo Castillo, Quintin de Lemos, Pioquinto Cajayon,Tomas Ramirez, Gregorio Tria, Candido Aguilar,

and Mariano Aguilar are condemned to twelve years of cadena temporal, reserving to the family of the deceased their action against the defendants for damages. The motion of the SolicitorGeneral is denied, as is also that of the defendants, that they be given the benefit of the amnesty proclamation of July 4, 1902. We accordingly condemn eacli of the eight defendants named, as well as Emiliano Cajayon, to the penalty of life imprisonment, Avith the accessories of civil interdiction and subjection to the vigilance of the authorities during the period of their respective lives. In case of the pardon of the principal penalty, they shall suffer absolute, perpetual disqualification and subjection to the vigilance 'of the authorities during the remainder of their lives, unless these accessory penalties shall be specially remitted in the pardon of the principal penalty. The defendants are also condemned to the payment, pro rata or in solidum, of 1,000 Insular pesos to the heirs of the deceased, and each to the payment of one-thirteenth part of the costs of both instances. The case will be remanded to the court below, with a copy of this decision, for its execution. Arellano, C. J., Willard and Mapa, JJ., concur.

DISSENTING COOPER, J.: The Solicitor-General, in his briet requests the annulment of the judgment of the Court of First Instance and asks that the case be remanded to the lower court, with instructions that the court direct the presentation of a new complaint for the crime of asesinato or murder. He is of opinion that the complaint upon Avhich the defendants have been convicted is insufficient to sustain a conviction for this offense. In this view I concur. The complaint reads as follows: "The undersigned charges Emiliano Cajayon, Candido Aguilar, Felix Aguilar, Mariano Aguilar, Domingo Castillo, Pioquinto Cajayon, Quintm de Lemos, Tomas Ramirez, and Gregorio Tria, of the town of Salinas, and Pantenople, of the Province of Batangas. of the crime of murder, committed as follows: "That the said Emiliano Cajayon and his companions above named, armed with guns, on the night of the 21st of March, 1901, in the toAvn of Lubang, of this province, entered the house of Doiia Ana Muriel, seized Tranquilino Torres, and, after having tied his hands, carried him toward the beach; four days later the remains of the body of Tranquilino Torres were found on the said beach; this against the statute in the case made and provided." The complaint does not comply with the requirements of section 6 of General Orders, No. 58. In defining the requisites of a complaint or information, it is provided in paragraph 3 that "the complaint should show the acts or omissions complained of as constituting the crime or public offense in ordinary and concise language." It does not appear from the complaint that the defendants did anything more than to seize and carry off the deceased, and that his body was afterwards found. This would not constitute the

offense of murder. While there may be a strong inference, from the circumstances set forth in the indictment, that the defendants did actually kill the deceased, yet the complaint wholly fails to state this most important element. It is to be further observed that the complaint does not state that the offense was committed with alevosia or with premeditation. These are qualifying circumstances of the offense of murder and have the effect of raising ordinary homicide to that of murder. Had it been directly alleged in the complaint that the defendants killed the deceased, this would not constitute murder in the absence of the qualifying circumstance either of alevosia or premeditation. Article 404, Penal Code, provides that he who shall kill another without the attendance of these circumstances is guilty of homicide and is punishable with the penalty of reclusion temporal, under which the highest penalty that can be assessed is twenty years of reclusion temporal. The court in its decision has not only held the complaint sufficient to show a killing by inference, but entirely ignores the omission to state that the killing was with premeditation or alevosia. The defendants have been found guilty not only of the killing of the deceased but of its having been done with alevosia, and the penalty of life imprisonment has been assessed the penalty fixed by article 403 for the crime of murder. It is immaterial in my opinion whether there was an objection or demurrer made to the complaint in the lower court or whether objections have been made in this court. The complaint is fatally defective. It must be further taken into consideration that the court has imposed a different and a higher penalty upon all of the defendants except Emiliano Cajayon than that imposed by the sentence of the Court of First Instance. The sentence of the lower court upon all of the defendants, except Cajayon, was for a period of twelve years, while under the decision now made these defendants are sentenced to imprisonment for life. At least to the extent of the additional penalty which has been imposed by this sentence beyond that imposed by the judgment of the lower court, the defendants have had no opportunity to make objection to the complaint. For the reasons above stated the judgment should be reversed. MCDONOUGH, J., dissenting: I dissent. I think that the judgment of the court below should be affirmed.

OSJurist.org

G.R. No. 994, August 31, 1903

THE UNITED STATES, COMPLAINANT AND APPELLEE, VS. R. W. DOUGLASS, DEFENDANT AND APPELLANT. D ECIS ION
MCDONOUGH, J.: The defendant was convicted in the Court of First Instance of Cebu of having, on the 16th day of February, 1902, misappropriated and embezzled public funds amounting to $1,114.85, Mexican currency, taken by him, or by others with his consent, from the public treasury of Cebu. He was sentenced to serve a term of three years and eight months' presidio correccional, and has been in'prison since his arrest, in February, 1902. The complaint alleged, in substance, that the defendant took this money or consented to the taking of it by others; and he filed a demurrer to the complaint, on the ground that it was bad for uncertainty, because the word "or" was used instead of the word "and." The demurrer was overruled by the court below, and we are of opinion that the court did not err in doing so. It is true, as contended bv the counsel for the defendant, that there are many cases and authorities which hold that a charge that the defendant "murdered or caused to be murdered," or that he "murdered or wounded," or "forged or caused to be forged," "passed or attempted to pass," etc., is bad for uncertainty as to which one of two things is meant In this case, however, the defendant is not charged with committing one of two offenses. Article 390 of the Penal Code provides that "the public official who by reason of his duties has in his charge public funds or property, and who should take, or consent that others should take, the same shall be punished," etc. There is in this article but one offense, which may be committed by the official in two ways, either by himself taking the money or by consenting to the taking of it by others. It is not objectionable, when a single offense may be committed by the use of different means, to charge, in the alternative, the various means by which the crime may have been committed. (United States vs. Potter, 21 Fed. Cases, 604; Bishop's New Criminal Procedure, sec. 434.) The evidence upon which the defendant was convicted is wholly circumstantial, and the question to be determined is whether these circumstances, which are strong enough to cast suspicion upon the defendant, are sufficiently strong to overcome the presumption of innocence, and to exclude every hypothesis except that of the guilt of the defendant The defendant was chief clerk and deputy treasurer of the Province of Cebu from May 1, 1901, to February 28, 1902, and as such official he had charge of receiving and depositing the public moneys. These moneys were kept in a small field safe in the office of the treasurer, situated in the Government building in the city of Cebu, and the safe was usually locked with two brass padlocks, such as were used in the Army. The treasurer's office consisted of three rooms in a

direct line, with doors between, and with three outside doors, which were locked with ordinary door locks, and which were not barred. The governor and his family and servants resided in this building, and it also contained the post-office and telegraph office. It is claimed that the crime was committed some time Sunday evening or Sunday night, February 16, 1902. The treasurer, Mr. S. Young, formerly a second lieutenant in the Seventeenth Infantry, testified that he was in the office on Sunday, February 16, from 9 o'clock in the morning until noon, and from 2 o'clock until 5 o'clock in the afternoon; that when he went away the back doors were locked; that he locked the front door when he went out; and that he did not particularly observe the safe. On the morning of February 17, when he went into the office, he found that the safe had been opened; that on the floor near the safe he observed a small steel box, a japanned tin box, a cigar box containing a revenue stamp and a $10 bill, Mexican currency; an empty sack, a broken lock, a piece of a candle partly burned, a burnt match, and some receipts for revenue stamps; and in the safe itself there were an empty sack and one of the locks usually used to lock the safe. The broken lock was the other safe lock. These two brass locks had been issued to the treasurer, when he was in the Army, by the quartermaster. When he first received them there were two keys for each lock, but his muchacho, who subsequently moved to Iloilo, lost a key of each lock before Lieutenant Young had become treasurer. The defendant at first used only one of these locks upon the safe, and the matter of using one or two was left entirely to him, but he usually used both locks. The lock which was found on the floor had been filed and the hasp broken; the other lock was intact. The treasurer that Monday morning, with others, examined the windows and found them in the usual condition, and also examined the condition of the grounds outside the windows for tracks or footprints, but found none. He did, however, find a large crooked door key lying on a hat rack outside the door, Which key he tried on one of the locks, but without being able to unlock it. This key had before been lying on one of the desks in the office. There were employed in the office of the treasurer, his deputy, Mr. Uppington; the defendant; Marcelino Regna, clerk; Aviola, a clerk; Catalino Ignacio, a clerk; Antonio Medalle, a clerk, and Andres Acular, a clerk, Six persons had keys to the treasurer's office, viz, the treasurer, his deputy, the defendant, Aviola, Mr. Holcombe, supervisor of the province, and a Mr. Burke, and all the keys opened every door except one, upon which there was a padlock. Of the money taken from the safe, $122 belonged to the liizal monument fund and $132 was a special fund received from the deputy treasurer of El Pardo. The defendant was directed by the treasurer not to deposit these special funds in bank. It was shown by the books that the defendant had made deposits prior to the 16th of February as follows: February 1, 4, 6, 7, 10, and 12. The treasurer testified that after the robbery he asked the defendant why he had four days' receipts in the safe, and that the defendant said it was in order to accumulate money enough to meet the payment of a check of $170, gold, sent to Manila, that the bank's charge would be 2.40 instead of 2.10, and the object was to avoid this extra payment by accumulating gold to meet that check. The treasurer spoke to the defendant February 17 about the amount of American money he had accumulated in the safe, but did not recall the answer, except that he said never mind about

that as he had some American money at his house which he had been saving to pay his way home. It seems that he had sent in his resignation in January, but was requested to continue in his place until some other arrangements could be made. The defendant that morning busied himself examining the books to ascertain the amount of the loss and in preparing a statement for the Auditor. On the 17th day of February, 1902, the treasurer had a conversation with the defendant about the burglary, during which conversation the defendant stated that he entered the office to get some writing paper on Sunday afternoon, about half past 5 o'clock, as stated by the treasurer on direct examination; but on cross-examination he stated that perhaps the defendant said 6 or half past 6 o'clock. A number of witnesses testified for the Government that the candle which was found had been burned evenly; that no candle grease or drippings had run down its side; and that there was no candle grease on the floor. The prosecution evidently considered this point of importance, as showing that the candle was not burned there at all in connection with the filing of the lock, for Mr. Jacobs, the traveling examiner of the Insular Treasury, testified as follows: "When a candle is burnt in a candlestick the tallow does not drop on the outside. It is perfectly smooth all the way up. If it is not burnt in a candlestick, the tallow will run down the side of the candle." The prosecution had four witnesses sworn as experts (three of whom were scarcely qualified) who testified that the lock could not have been filed, as it was filed, while locked on the safe, and that, therefore, they concluded that it was not on the safe when it was filed. On the other hand, to offset this testimony, the defendant had four men sworn whose qualification to testify as experts could not be questioned, and each one of these witnesses swore that the lock could be filed as it was filed while it was locked and on the safe. Witnesses for the prosecution testified that no filings were found on the floor near the safe or, in, fact, anywhere else, except Mr. Boss, the Constabulary inspector, and he stated that he found filings on that part of the lock which covered the keyhole. The defendant's experts gave various reasons for the absence of filings. One of the Constabulary men who were assigned to guard. the entrance gate to the treasurer's office stated that, while on duty there February 16, 1902, he saw the defendant pass into the office after 5 o'clock in the afternoon, and that he remained in the office about forty minutes; that he saw defendant when he came out and spoke to the defendant, who asked him to have a cigar; that defendant had in his hand, when he came out, some plain white paper and nothing else, and that he had no package. This witness stated that it was not very dark when defendant came out of the office. There was light enough to see letters without distinguishing them. The witness had no watch, and only guessed at the time. He also stated that he heard no noise while the defendant was in the office, but when he went in the witness heard the noise of opening the entrance door, but not of closing it. He also testified that the back gate was closed and locked. The other officer who was assigned

to duty at the gate, testified that he had been at supper; that he did not get back until the vesper bells rang; that he did not see the defendant there at all nor did he see anyone enter or leave the building that night; nor did he know who was in the building. Both officers testified that the back gate was locked, one of them stating that it was locked with a padlock, although it appears from other testimony that this padlock was not placed on the gate until about the end of February, and that up to that time this gate had not been locked at all. Mr. Uppington, who was a deputy treasurer in the office, testified that there were usually two locks kept on the safe, but that, two days before the burglary, defendant used only one lock, saying that "one lock was as good as two;" that sometimes the witness carried the keys to the safe, but that defendant generally carried them; that defendant seemed surprised when he arrived at the office that morning (other government witnesses testified that he did not appear to be surprised); that the first room in the office was occupied by the treasurer and the witness, the second room by the defendant, and the third room was used as a local collecting room and by clerks; and that defendant's salary was $1,200, gold, a year. He stated that he and the defendant were out driving together Sunday afternoon, February 16, from about half past 3 until 4 or 5 o'clock, and that on their return defendant went to his hotel to get his dinner. Mr, Holcombe, the supervisor of the province, stated that about the end of January, 1902, defendant asked him if he knew anybody who had money to loan, saying that he was in a transaction which required a good deal of money, and that he was hard pressed. He stated that a certain woman was calling on him for a great deal of money and that it was costing him more than he bargained for, and also stated that the defendant when he entered the office February 17 said,"Well, it had to come," and that he did not seem surprised. This witness, on crossexamination, stated that he knew defendant well; that he frequently borrowed small sums of money from the defendant; and that he had borrowed $25 from defendant December 24, 1901. A merchant of Cebu testified that he called at the treasurer's office in the afternoon of February 14, asked defendant to cash a check for him amounting to $343, so that he could pay his license amounting to $128; and that defendant declined to cash the check, saying that he had not the money. This witness called next day to pay his license fee and defendant complained of business being dull, saying that the collections amounted the dajr before to only $30, $35, or $38, the witness did not recall which; it was in that neighborhood he said. Mr. Jacobs, an examiner for the Insular Treasurer, testified, that the collections of the office were as follows : February 12, $252.18; February 13, $222.84; February 14, $341.40; and February 15, $42.43, This witness also testified that the steel box of Mr. Holcombe had not been tampered with, and that there was no instrument there by which the clasp of the lock could have been twisted, except possibly the old, bent key. This witness also testified that the treasurer, Mr. Young, on February 17 told him that "it was customary to deposit the next morning money collected the previous day, but that the money had been allowed to accumulate for four days as he was endeavoring to get some United States currency for some purpose, and that this accounted for his not having deposited the money as usual;'7 he further stated that the defendant knew this witness was in the city; that on the 12th of February he desired to examine the accounts of the treasurer, but that Mr. Young said he was not ready yet for the examination, as he had not been able to go into the province and

settle his accounts with his deputies. Mr., Holcombe was recalled, and testified as to the location and measurement of doors and walls and his instructions to keep the gates locked. He said the rear gate was kept locked about the end of February, when the lock then in use was put on. The key of this lock was kept hanging in his office. On cross-examination he was asked this question: "Now, Mr. Holcombe, don't you know that that gate [the back'gate] was open on the 16th? Didn't you tell me in your office that that gate was open on the 16th ?" His reply was: "I heard that; I didn't examine the gate. I didn't go there and examine it, and I told you also who told me." The foregoing is in substance the case made out by the prosecution. The defendant, in his own behalf, testified that he was 26 years of age; that before becoming deputy and chief clerk in the office of the treasurer he had been a first sergeant in Company B, Forty-fourth Infantry, United States Volunteers; that when in the United States he had been a bookkeeper in a grocery house and a clerk in a bank; that he took the position in the treasury at the request of Lieutenant Young, and was discharged from the Army to enable him to take the office. Asked to account for his whereabouts on Sunday, February 16, he stated that he remained in his room, on Oalie Manso, during the forenoon; that about half past 4 in the afternoon he started for the treasurer's office to get some letter paper when he overtook Mr. Uppington on the street, and they decided to take a drive. They ordered a carriage from Seflor Cabrera and went into a saloon, and drank some beer; that about 5 o'clock the carriage came along and they drove out toward Ouadalupe, 3 miles from Cebu. On the way back one of the wheels flew off the carriage, and they had to walk home. When opposite the French Restaurant, where defendant boarded, he went in to get his dinner. After dinner he met some friends in front of the restaurant and then went to the treasurer's office, got some typewriter paper, went out, and closed the door. He spoke to the guard at the gate, and asked him if the telegraph office was open, and, being told that it was, he went upstairs to see the bulletin. He asked for it and was told that Mr. Holcombe had it. Defendant asked Holcombe if he had it and the reply was that he had, but he did not succeed in finding it. Defendant then went to his house, arriving there about a quarter to 7 o'clock, and wrote a letter to his brother. At about that time Marcos Alo, the owner of the house, who had been out to a funeral, walked in. Defendant said he did not go out again that night, nor until he started for the office next morning. He found quite a crowd at the office when he arrived, and he immediately began to figure up from the books the amount of the loss. Defendant stated that he may have spoken to Mr. Holcombe about a loan, but he made no such remark as he testified to regarding the need of money. Holcombe, he said, was frequently a borrower from him, and defendant knew that Holcombe had no money, and he could not expect to borrow from him. Asked to explain why there was only one lock on the safe February 16, defendant stated that at times there were two locks on the safe. He always put two locks

on when he had exceptionally large sums of money in the safe, and he frequently had $2,000. There was, he said, no established rule about depositing money. He frequently deposited every day, and sometimes waited two and three days before doing so, depending on his opportunity. On the morning of the burglary the safe was locked on the left-hand side, facing the safe. When unlocked, and the locks were left on the safe, often, when the cover was raised, the right-hand lock would fall down into the safe, and on this particular night, mentioned by Mr. Uppington, he, Uppington, came into the office and said, "Let us go; it is after closing time." Defendant closed the left-hand lock, and then discovered, when about to clasp the righthand lock, that it had dropped inside the safe. He then made the remark that it did not matter. He stated that after closing the office on Sunday he did not go there again until Sunday evening, when he went for the paper. Defendant was cross-examined at great length, but nothing of a damaging nature was discovered, unless it be said that, his transactions with the woman mentioned before may be considered as such. Defendant stated that he could not have made the request to borrow money from Mr. Holeombe, because he never had occasion to use the money for the purpose stated. Question: Do you say that under oath? Answer: Yes, sir. I lent her money when I was boarding at her house. I lent her 100 pesos and was paying her 60 pesos a month for board. I did not pay her my bill that month, and I advanced this money knowing that my board bill was not paid for this month. It was customary for all the boarders to pay her personally. Question: Who was boarding there at that time? Answer: Mr. Holcombe and some inspectors of Constabulary, I believe. Question: Was she living with her husband at that time? Answer: I believe so. The defendant boarded with this woman from October or November until January and then went to board at Hotel Frances. While he was at this hotel, he stated that he did not directly or indirectly pay her any money. Defendant was asked if he knew whom she was living with and whether or not he paid house rent for the house in which she lived, but declined to answer these questions for the reason that his answers might involve him in another case, and the court decided that he need not answer them. He testified that he was not at the treasurer's office longer than about five minutes on Sunday evening, and that it was just dusk when he was there. He stated that he usually refused to cash checks, even when he had the money in the safe. He had funds when Mr. Hubbel called with the check. The treasurer had arranged with the bank to cash checks, and the custom was to tell the people to go to the bank to get checks cashed. He did not remember whether or not he had the two locks on the safe February 15. The lock was often found beside the safe, as it would fall from the hasp when the lid of the safe was raised.

He said he had enough money at home to meet the gold check, because he had been saving from his salary to have enough to go home. Diego Cabrera testified that on the 16th of February he let a carriage to the defendant, from 5 to 6 o'clock p.m. He showed in his book the entries made when the carriage went out and when it came back. Marcos Alo testified that on his return to his house with his wife from a funeral on February 16, shortly before 7 o'clock p. m., he saw the defendant there writing at a table. The defendant was at that time living at the house of the witness. Fabiana Mendoza, wife of Marcos Alo, testified that she saw the defendant writing at a table in her house on February 16 before 7 o'clock in the evening. William J. Platka testified that he was a clerk in Mr. Holcombe's office, and that he, with seven soldiers, whom he named, were in the Government building Sunday evening, February 16, from about 7 o'clock until about half past 8; that they entered through the back gate and passed out the same way; and that the gate was wide open. They were there to rehearse a couple of pieces for the stage. He testified that there was no lock on the gate, and it was not locked before that time, as he went through that gate every morning going to work. This witness testified that he was instructed by Mr. Holcombe to procure a lock for the gate, and he put the lock on himself next day after the robbery. He also testified that he saw defendant Sunday evening, about 6 o'clock, coming from the French Restaurant, about ten minutes' walking distance from the treasurer's office. John S. Ladd, the postmaster, testified that the post-office is located in the Government building; that during the military time the back gate was kept locked, but it was not kept locked in January and February, up to February 17. It was locked the day after the robbery. Another witness testified that on the 8th day of February he borrowed $8,. gold, from the defendant. From the foregoing testimony the prosecution.drew the inference that the defendant must be guilty, for the following reasons: 1. He was the last person who entered the office that night. 2. The doors, windows, and gates were so well protected and guarded that there were no indications that anyone else entered or could have entered. 3. The lock was not filed in the office while on the safe, because witnesses for the prosecution were of opinion that it could not have been filed while on the safe in the way in which it had been filed; and that, as the defendant was the only person who had access to the lock, he alone could have cut it that way. It is true that one of the Constabulary men who were stationed at the front gate testified that the defendant was the last person he saw enter the building on the night of the 16th of February, and another testified that no one else entered that night; but there is proof positive that six persons had keys to the doorstwo of these not employees of the treasurerand that eight persons entered the building that night after the defendant left it.

It is also true that the doors and gates were not so well secured as to exclude others, for even Mr. Holcombe had to admit that the rear gate was not locked that night; the postmaster testified it had not been locked for two months prior to that time, and a clerk in Mr. Holcombe's office testified that he entered the building through that gate that night with seven others; that the gate was wide open; and that there was no lock on it until he put one on afterwards by direction of Mr. Holcombe, the custodian of the building. Any one of the half dozen or more persons having keys could have entered just as easily as did these persons. The next point urged is that the lock was not filed while locked on the safe and that the burglary was not real, but was put up by the defendant to enable him to take the money without being suspected. To support this theory the prosecution produced testimony like that of Mr. Jacobs, to the effect that the candle could not have been used on that occasion because no candle grease or dripping Avas found on its side, for if it had been burnt in a candlestick it would not show drippings, but when burnt without a candlestick it must necessarily shown drippings. This is pretty light evidenceevidence which is contrary to the everyday experience of all of us who use candles. The prosecution also called in three so-called experts and one real expert to show that in their opinion the lock could not have been filed as it was filed while locked on the safe; and while one of these witnesses testified that he found filings on the lock, others stated that they found no filings. The defense met this testimony with the testimony of four practical and experienced metal workers, real experts in their line, all of whom swore that in their opinion the lock could be filed as it was while locked on the safe. There was some evidence about the defendant desiring to borrow money, at a time, too, when he was lending money to the witness who gave the testimony; and some effort was made to connect the defendant with a woman scandal, but the learned Solicitor-General does not give this proof much consideration. If we are expected to infer that because men may want to borrow money and expend it on fast women they are therefore thieves, we may soon expect a large increase in our prison population. At most, the proof in this case casts suspicion on the defendant. We may simply guess that he is guilty; but if we do that, what becomes of the presumption of innocence until guilt is proved? What are we to do with section 57 of General Orders, No. 58, which provides that "a defendant in a criminal action shall be presumed to be innocent until the contrary is proved, and in case of a reasonable doubt that his guilt is satisfactorily shown he shall be entitled to an acquittal?" The burden of proof of guilt was upon the prosecution (sec. 59, G. O., No. 58), and it remained with the prosecution throughout the trial. It will not do to say that, because the defendant had an opportunity to commit the crime, therefore he did commit it. Others had opportunities as well as the defendant. No one thought of charging the treasurer himself with the offense; and yet from the testimony in this case one could infer or guess his guilt and support the guess with as strong circumstances as those adduced against the defendant. The treasurer at times had access to the safe; so had his deputy, Mr. Uppington, and so had Mr. Holcombe, to take money out of his steel box; the treasurer was in the office all Sunday morning and Sunday afternoon up to 5 o'clock; the treasurer told the examiners February 12 that he was not ready to have his accounts examined; and the treasurer instructed the defendant to accumulate the receipts so as to be able to meet the gold check. Surely it could not be inferred from such proof as this, standing alone, that he

committed the offense. To justify a conviction upon circumstantial evidence, not only must the facts proved be consistent with and point to the defendant's guilt beyond a reasonable doubt but they must be inconsistent with his innocence. (Marple vs. People, 4 Hun. (N. Y.), 102.) A reasonable doubt is not a mere guess that defendant may or may not be guilty. It is such a doubt as a reasonable man might entertain after a fair review and consideration of the evidence. It has been held by the appellate division of the supreme court of New York that a judgment of conviction will be reversed where the circumstances, though suspicious, do not exclude every hypothesis except that of the guilt of the defendant. (People vs. Maxwell, 67 State Reporter, 541.) It follows that the judgment of conviction should be reversed and the defendant should be acquitted. And having reached this conclusion, it is not necessary to pass upon the motion for a new trial made on the ground of newly discovered evidence, based on the confession of one Baker, now in prison in Cebu, who made affidavit that lie and another soldier who was a professional burglar passed through the rear gate, entered the treasury by means of a skeleton key, filed the lock of the safe, and stole the money. Arellano, C. J., Cooper and Mapa, JJ., concur. Willard, J., dissents.

DISSENTING TORRES, J.: Since the accused, Douglass, has alleged that the real author of the robbery is one Baker, according to statements made by the latter in an authentic document, the case at bar should not now be finally decided. The judgment appealed should be reversed and the cause remanded to the court below for a new trial, for the purpose of ascertaining whether or not the statement that Baker was the author of the criminal act is true. The mere allegation of Douglass and the extrajudicial statement which Baker is alleged to have made are not conclusive. Aside from these allegations of Douglass, based on the statement of Baker referred to, it is possible that the merits of the case would not justify a jud'gment of conviction. This allegation, however, was made by Douglass after the proceeding had been concluded and judgment rendered. According to well-known principles of procedural law, we are permitted to render absolutely no judgment whatever in the matter at the present time. Such a judgment would have a tendency to prejudge the innocence or guilt of the accused Douglass, as well as that of the man Baker, who since the trial has extrajudicially confessed, as above stated, that he was the real author of the robbery. The evidence taken at a retrial of the case might establish in a decisive manner the innocence of Douglass and the responsibility of Baker, made a codefendant therein, for the crime in question. But can it be asserted that it would be impossible for the contrary to happenthat the alleged

confession of Baker should turn out to be false arid that Douglass's allegation should prove to be no more than a mere subterfuge for freeing himself from the charge made against him? Is it not possible that in the course of a retrial of the case there may be produced additional evidence showing Douglass's guilt, just as it may happen that there will be introduced stronger proof of his innocence, which, to say the least, at the present time appears very doubtful? Established modes of procedure and the most ordinary prudence dictated by the principles of justice and the law counsel that, without now passing upon the guilt or innocense of Douglass, a new trial should be orderedthat a further investigation of the crime should be made and its real author definitely ascertained. Suppose an action shall be brought against the new accused, Baker, after Douglass shall have been acquitted. May it not happen that it will then be shown by the most complete evidence better, perhaps, than that which has been produced in the proceedings heretofore hadthat Baker is innocent of the crime charged, and that Douglass is after all the guilty one. And if this be possible, the proper proceeding to be followed in this case is to reverse the judgment appealed and grant a new trial, to the end of avoiding a travesty of the law and a possible miscarriage of justice. I dissent, therefore, from the opinion of the majority of the court, and am of the opinion that judgment should be rendered as above indicated.

OSJurist.org

G.R. No. 997, May 19, 1903

MARIA UBALDO, PLAINTIFF AND APPELLANT, VS. LAO-JIANQUIAO, DEFENDANT AND APPELLEE. ACTION FOR EVICTION FOR BREACH OF CONDITIONS STIPULATED IN CONTRACT.
ARELLANO, C.J.: The lessee signed two contracts with the lessor, one on the 15th of September as to two houses, and one on the 17th of October, 1900, as to another. The plaintiff, Ubaldo, who is the lessor, complains that the defendant, Lao-Jianquiao, who is the lessee, has failed to pay for cleaning the water-closets, and has stored in the building several cases of coal oil. The two grounds for eviction having been disputed and the acts imputed to the lessee denied, the judgment below discusses the question as to whether these acts constitute a breach of the contract and concludes that they do not, and that it can not have been the intention of a lessee, who has advanced 3,000 pesos on account of rental, to break the conditions of a contract, exposing himself to be dispossessed of the building in which he has invested so considerable a sum and which he is to recover from time to time as the rent becomes due. The court has no occasion to enter into an examination of the facts or the evidence. The storing of cases of coal oil is stated to be a breach of clause 5 of both contracts. The fifth clause of the first contract reads as follows: "Lao-Jianquiao, under the most strict responsibility, contracts to refrain from storing in the premises to be occupied by him any considerable quantity of combustible articles or goods which tend to imperil the building and the neighborhood; and if the competent authorities should demand the removal of such things, he undertakes to comply with this demand immediately and to suffer the consequences." In the second contract, however, the lease uses the following language: "Under his personal strict responsibility the tenant undertakes not to store * * * etc.; that he will immediately remove such materials should the authorities so direct, and will submit to whatever the said authorities may direct on this account." It is easy to see what is the sanction of this condition that of being responsible to the proper authorities (that is, the administrative authorities) for any breach of the municipal ordinances as to the storage of inflammable substances, and to be subrogated in the place of the proprietor with respect to all consequences arising therefrom. When a contract, in the same manner as a law, prescribes a penalty for infraction of its terms and conditions, this penalty so established is the effect of the breach of the condition or agreement. The penalty stipulated in both contracts is not eviction by the courts but an administrative eviction, if the competent authorities so demand, should so directnot if the lessor so demands. Now, with respect to the failure to keep the premises clean. Clause 4 in both contracts is as follows: "During the period of the occupation of the tenement (second contract) the cleaning, lighting, etc., thereof shall be at his expense and under his responsibility." Neither in the general vocabulary, nor in any special, technical vocabulary of city sanitation does the word "cleaning" have the meaning which the lessor contends that it implies, nothing of this kind having been expressed, agreed upon, or clearly and precisely established in the contract, it being1 a burdensome obligation which generally falls upon the lessor.

The judgment below is affirmed, with the costs to the appellant. So ordered. Torres, Cooper, Willard, Ladd, and Mapa, JJ., concur.

OSJurist.org

G.R. No. 999, February 10, 1903

THE UNITED STATES, COMPLAINANT AND APPELLEE, VS. CARLOS SANTIAGO ET AL., DEFENDANTS AND APPELLANTS. D ECIS ION
TORRES, J.: On the afternoon of the 29th of September, 1901, the three accused and four others armed with bolos and guns, seized two carabaos belonging to D. Teodoro Sandico. One of these carabaos was being ridden by a boy called Abdon Somera and the other by Modesto Palasigui, 9 and 15 years of age, respectively. The robbery occurred at a place called Sacumvaca of the town of Talavera. At the same time eight other carabaos belonging to Don Casimiro Tinio were taken, the total value being $580. The three accused were subsequently arrested on October 17,1901, at a place called Pinambatan of the town of San Miguel de Mayumo. Part of the stolen carabaos were found in their possession, as well as Abdon Somera, one of the boys kidnaped. The other lad, Palasigui, succeeded in escaping after being in the hands of the robbers for four days. The crime of kidnaping is being prosecuted in a separate case. The fact that seven of the armed robbers seized these ten carabaos on two of which the boy Somera and the lad Palasigui were riding and who were carried by the defendants is fully shown in this case by the testimony of Modesto Palasigui, an eyewitness of the robbery; by the testimony of Rosalio Somera, the father of the boy Abdon, who, upon arriving at the place where the boys had been, noted their disappearance and was unable to find them; and also by the testimony of the three policemen who captured the accused, and found in their possession some of the stolen carabaos, as to the possession of which the accused were unable to give a satisfactory account. The policemen also found the boy Abdon Somera in their hands. This fact constitutes the crime of robbery in a band, punishable under article 502, 503, paragraph 5, and 504 of the Penal Code, the robbery having been committed by intimidation by the seven robbers, the majority of whomif not allwere armed with guns and bolos and the robbery being committed, in an uninhabited place. The guilt of the accused is evident notwithstanding their plea of not guilty of the offense with which they are charged. This is shown by the testimony of witnesses, and by the conclusive circumstantial evidence found in the record. This evidence indicates that the seven men who committed this robbery were brigands engaged in assaulting and robbing travelers and stealing carabaos from the fields. The fact that the record does not show that any force or threats were used with respect to the two boys who were riding the two carabaos makes no difference, the fact that seven men armed with firearms and bolos seized these two boys and took the carabaos and carried them off being sufficient to raise the presumption that this was against the will of these boys and that the intimidation which characterized the robbery was present, it not appearing that the boys voluntarily accompanied the robbers or that they voluntarily delivered to them the carabaos. In the commission of this crime of robbery no generic mitigating or aggravating circumstances are present, the circumstances of the robbery having been committed by a gang and in an

uninhabited place being inherent in the specific offense. They are therefore subject to the penalty prescribed by section 5 of article 503 in the medium period of the maximum grade in accordance with the provisions of article 504 of the Penal Code. The judgment of the court below must therefore be reversed as to the personal penalty imposed upon the accused. Carlos Santiago and Jacinto Alfonso are condemned to suffer the penalty of eight years of presidio mayor with the accessory penalties of absolute temporal inhabilitation in its full extent and subjection to the vigilance of the authorities for a period equal to the duration of the principal penalty, the same to be counted from the time of the expiration of the latter, and to the payment by each one of one-third part of the costs of both instances. The judgment of the court below is otherwise amrmed with the other third part of the costs de oficio. Arellano, C. J., Cooper, Willard, Mapa, and Ladd, JJ., concur.

OSJurist.org

G.R. No. 1000, March 06, 1903

THE UNITED STATES, COMPLAINANT AND APPELLEE, VS. CARLOS SANTIAGO ET AL., DEFENDANTS AND APPELLANTS. D ECIS ION
COOPER, J.: Santiago Solitario, Carlos Santiago, and Jacinto Alfonso were charged with the crime of illegal detention stated as committed in the following manner: On the 29th day of September, 1901, in the barrio of Sacumbaca, pueblo of Talavera, Province of Nueva Ecija, said defendants, armed with guns and bolos, sequestrated two youths called Abdon Somera and Modesto Balasigue, depriving them of their liberty, the first named for the period of twenty-nine days and the last named for the period of four days. The defendants and four other individuals constituted an armed band by whom the act was committed. After the arraignment and after the trial was commenced Santiago Solitario died. The defendants Carlos Santiago and Jacinto Alfonso were tried and found guilty and were condemned to the penalty of six years and one day of prision mayor and accessories, and each to pay their part of the costs of the suit. Prom this judgment the defendants Carlos Santiago and Jacinto Alfonso appeal. It is contended that the proof was insufficient to sustain the conviction, that such acts as were proven do not constitute illegal detention. After a careful examination of the record we reach the conclusion that the evidence contained therein is sufficient to support the conviction. Modesto Balasigue, one of the youths detained, testifies that on the 24th day of September of last year he and Abdon Somera were hunting wild hogs at the place called Sacumbaca, and that they were sequestrated by several individuals; that there were six persons in the band, all armed, some carrying guns and others bolos; that the defendants Carlos Santiago and Jacinto Alfonso carried bolos; that witness was detained by the defendants four days, when he escaped from their custody. At the time he escaped Abdon Somera was still held by them. That he is able to identify the defendants as being the persons who had him in custody, since he was in their company during the time he was held by them. Three municipal police testified as to the capture of the defendants and as to finding in their possession the boy Abdon Somera and three stolen carabaos. Meliton Carlos, president of the municipality of San Miguel de Mayumo, testified that these defendants were captured by the police; that he was in company with the police when they captured them, and that the defendants had in their possession Abdon Somera and some carabaos. This witness testifies that upon capturing the defendants they admitted that they had carried off Abdon Somera to San Miguel de Mayumo. The testimony of this witness and that of the police as to the confession made by the defendants is not entirely consistent. The first affirms that the defendants said they carried off Abdon Somera to San Miguel de Mayumo, while the police indicate in their testimony that what was said about the carrying off of Abdon Somera was related by Abdon Somera himself. However, it appears very, clear from the

statements of these witnesses that Abdon Somera and the carabaos were found in the possession of the defendants. The testimony of Modesto Balasigue is sufficient to support the conviction independent of any confessions that may have been made by the defendants when captured. He clearly identifies the defendants as the parties who carried him and Abdon Somera off, and he states that after four days of detention he made his escape while grazing the carabaos. No explanation is made why the boy Abdon Somera was not adduced as a witness at the trial. But, as stated, the case is fully proven by Modesto Balasigue. The judge of the Court of First Instance gave the defendants the benefit of article 11 of the Penal Code as an extenuating circumstance and failed to take into consideration the aggravating circumstance of the offense hav- ing been committed by an armed band in cuadrilla . We can see no just, reason for giving these defendants the benefit of article 11, nor can we see any cause for not taking into consideration the aggravating circumstance of the act having been committed in cuadrilla . For this reason we will set aside the judgment of the lower court and enter the proper judgment, which is, that the defendants Carlos Santiago and Jacinto Alfonso are guilty of the offense of unlawful detention defined and punishable under article 481 of the Penal Code, and we condemn them to the punishment of ten years and one day of prision mayor in its maximum degree and accessories, and to the costs of the proceedings. Arellano, C. J., Torres, Willard, Mapa, and Ladd, JJ., concur.

OSJurist.org

G.R. No. 1001, February 21, 1903

THE UNITED STATES, COMPLAINANT AND APPELLEE, VS. GERONIMO TORRENTE, DEFENDANT AND APPELLANT. D ECIS ION
COOPER, J.: Geronimo Torrente is accused of the crime of lesiones graves committed in the following manner: That the defendant on the afternoon of March 15, 1902, in the city of Manila, maltreated his niece, Jacinta de Leon, a maiden of 17 years of age, by striking her, kicking her, and burning her with carbolic acid for not having acceded to his lustful desires. The defendant pleaded not guilty. The trial resulted in a conviction of the defendant by the lower court of the offense of lesiones menos graves as defined in article 418 of the Penal Code, and he was sentenced to five months and a day of arresto mayor. He appeals from this judgment. The trial of the case having been fixed for the first of May, 1902, on account of the alleged unavoidable absence of the defendant's attorney from the city of Manila, he asked for a suspension of the trial, which was denied him. The refusal of the trial court to grant the continuance is assigned as error. This assignment of error is not borne out by the record. From it, it appears that the case having been called for trial the defendant produced a telegram from his attorney to the effect that he could not come "on account of accident to boiler." The judge thereupon required the defendant to employ other counsel, and, the defendant having stated that he was unable to do so, the court appointed Senor Monroy de oficio as his attorney. No objection was made by the defendant to proceeding to trial after the assignment of Senor Monroy as counsel; he acquiesced in the action of the court and proceeded to trial without further objection. The case appears to have been tried in a proper and skillful manner and no essential right of the accused has been prejudiced. Besides, no reason is given why the defendant's counsel should have been absent. The case had been continued once before, and the circumstances of the absence of his attorney were not shown, except that he was delayed by an accident. Another objection to the judgment is that it is contrary to the law and the evidence, in that it does not appear beyond a. reasonable doubt that the intention of the accused was to commit the crime of which he was convicted, nor does it appear that the injured party was incapacitated for a period of eight days or more on account of the injuries received. This objection requires a review of the evidence. The testimony of Jacinta de Leon, the injured girl, shows that she was 16 years old, and on the 15th day of March lived with her aunt, the defendant's wife; that while she was lying on the bed on the 15th of March, taking a siesta, she was approached by the defendant, who made an improper proposal to her; that he kissed her, whereupon she arose from the bed and went into the presence of her aunt; that the defendant put on his shoes and went off; after a time she

saw that he was coming toward her and she sat down, whereupon he struck her; that she said nothing because she did not know what wrong she had done. He again struck her and gave her a kick and said that she must leave the house; that she dressed herself and went off in order that his rage might pass away, and being about to go out the defendant followed her, having in his hand a bottle of acid which he threw in her face; that raising her hand the hand of the defendant was struck and, a part of the contents was spilled; that she entered the hospital for treatment of the burns, and was two weeks being cured. The defendant gives quite a different version of the occurrence. He testifies that he was leaving the house on the evening of the day in question to disinfect a water-closet, and had in his hand a bottle of carbolic acid; that the noise he made awoke his wife who asked him where he was going, and upon his replying she said that he could not go out and seized him by the shoulder; that being unable by her strength to prevent him from leaving the house, she called to her niece and commanded her to assist her; that in his effort to disengage himself from his wife and the niece, and not recollecting that the bottle had no stopper, the acid was spilled upon the girl, a part of it falling on himself. In this statement the defendant is corroborated by the testimony of his wife. We are disposed to take the version of the injured girl as true and to discard entirely the statements of the husband and wife. The girl's statement shows not only a gross violation of confidence resulting from the relationship existing between her and the defendant, but discloses a case of most brutal and cruel conduct to an unoffending person. There is no conceivable reason why such a charge should have been falsely made by the injured girl; on the contrary, it appears that from some influence exercised upon her she very unwillingly appeared in court to testify. She failed to appear at the time fixed for the trial and it was only through the process of the court that her testimony was secured. There were strong motives on the part of the defendant to exculpate himself, and there was the natural desire upon the part of the wife to relieve him of his embarrassment. It is also assigned as error that the court erred in overruling the defendant's motion for a new trial based upon the ground of newly discovered evidence. Attached to the application is the affidavit of Damos de Leon, the father of the injured girl, in which he states that Jacinta was not incapacitated from following her ordinary pursuits and that she recovered within six days from the time she entered the hospital. Also the affidavit of Doctor Juan Miciano, the attending physician of the hospital of San Juan de Dios, where the injured girl Avas treated, who states that Jacinta de Leon entered the hospital on account of burns caused by carbolic acid in the face and on the right arm, and that she was cured in nine days from her entrance in the hospital without any deformity or permanent physical disability being occasioned, there only remaining white spots as the result of the burns. This last affidavit sustains the charge that the injuries were more than eight days in curing, and the testimony of this witness would strengthen the case of the prosecution. There is no reason shown why the testimony of Damos de Leon was not known before the trial, and the witness produced at the trial. The difficulty has not been so much in reaching a conclusion in view of the conflict in the evidence as in discovering adequate punishment under the present laws for the defendant. The offense was of a most brutal character, and the punishment which we affix we regard as

wholly inadequate to the case. Article 418 of the Penal Code provides that injuries which shall render the injured person unable to work for eight days or more, or winch shall require the care of a physician for a similar period, shall be punished with arresto mayor or banishment and a fine of from 325 to 3,250 pesetas, in the discretion of the court, and when such injuries shall be inflicted with manifest intent of outrage, or under humiliating circumstances, in addition to arresto mayor a fine of from 325 to 3,250 pesetas may be imposed. The evidence shows manifest intent of outrage, and in addition to this there were other circumstances which should have been taken into consideration. The offense was committed with alevosia, and also with abuse of confidence; both of which are circumstances which aggravate criminal liability. (Paragraphs 2 and 10, article 10, Penal Code.) The judgment of the lower court will be reversed, and judgment is now here entered convicting the defendant of lesioncs menos graves inflicted with the manifest intent of outrage, and with the attending aggravating circumstances defined in paragraphs 2 and 10 of article 10 of the Penal Code; and he is sentenced to imprisonment of arresto mayor for the period of six months, and to pay a fine of 3,250 pesetas, and in the event of insolvency on the part of the defendant he is sentenced to subsidiary imprisonment at the rate of one day for every 12 1/2 pesetas of the fine, such subsidiary imprisonment not to exceed two months. Costs of suit are also adjudged against the defendant. So ordered. Arellano, C. J., Torres, Mapa, and Ladd, JJ., concur. Willard, J., concurs in the result.

OSJurist.org

G.R. No. 1002, July 25, 1903

THE UNITED STATES, COMPLAINANT AND APPELLANT, VS. SEGUNDINO MENDEZONA Y MENDEZONA DEFENDANT AND APPELLEE. D ECIS ION
TORRES, J.: On May 12, 1902, the Attorney-General filed the complaint appearing on page 1 of the record, and amended as shown on page 50, charging Don Secundino Mendezona y Mendezona with the crime of estafa, committed as follows: That on September 10,1900, in the city of Manila, capital of the Philippines, Mendezona, sole manager of the partnership of Mendezona & Co., willfully and knowingly made and executed before Don Enrique Barrera y Caldes, a duly authorized notary public, a certain contract of pledge in favor of the Compania General de Tabacos de Filipinas, by means of public document No. 724, in which the accused sets forth and agrees to the following: As security for the sums already advanced by the Compania General de Tabacos de Filipinas, as well as for those which may hereafter be advanced up to the sum of $300,000, Mendezona & Co., represented by Don Secundino Mendezona, pledge, in favor of their said creditor, 20,000 bales of Sorsogon, Legaspi, Tabaco, and Lagonoy hemp, stored in their warehouses located at No. 48 Isla de Romero Street, solemnly affirming that the said 20,000 bales have been neither assigned, transferred, nor encumbered, and, in token of the delivery of the possession thereof, the said Mendezona thereupon surrendered to the representative of the said Compania General de Tabacos the keys of the said warehouses in which were stored the 20,000 bales of hemp pledged. That on the said 10th day of September, 1900, the said Mendezona delivered, in the city of Manila, to the Compania General de Tabacos the possession of all the hemp that day contained in the warehouses situated at No. 48 Isla de Romero Street, by surrendering to the said company the keys thereof, in accordance with the terms of the said document No. 724. That the facts thus set forth and affirmed by the said Mendezona in the said document were false and untrue in this particular, to wit: That the warehouses mentioned in the said document did not contain, at the time of the making and execution of the contract of pledge, 20,000 bales of hemp, but, on the contrary, their contents did not exceed 12,000 bales, as the said Mendezona well knew at the time. That a considerable number of the bales specifically enumerated by marks and figures in the document referred to had no existence, but, as a matter of fact, such bales, purporting to be designated by marks and figures, were entirely imaginary, and that this was well known to the accused, Mendezona. That at the time of the execution of the said document and the pledging of the hemp, the said bales of hemp contained in the Avarehouses at No. 48 Isla de Romero Street were not free from incumbrance, but, on the contrary, a large part of the same was pledged to the SpanishFilipino Bank as security for the payment of a loan of 200,000 Mexican pesos, the said loan having been made on the 18th day of April, 1900, of which the said Secundino Mendezona was well aware.

That a part of the said bales of hemp was pledged to the Chartered Bank of India, Australia, and China as security for another loan of 250,000 Mexican pesos, made the 24th day of August, 1900, which was also well known to the said Secundino Mendezona. That at the time of the execution of the said document No. 724, and the making of the said contract of pledge by the said Mendezona, the bales of hemp contained in the said Avarehouses were not all the properly of Mendezona & Co., but, on the contrary, a part of the same was stored in the said, warehouses subject to the disposal of Don Angel Ortiz, Don Francisco Reyes, and the widow of the Chinaman Tan-Auco, the owners thereof, all of which was well known to the said Don Secundino Mendezona y Mendezona. And that, by virtue and by means of the said false and fraudulent representations made by the said Secundino Mendezona y Mendezona, the latter fraudulently obtained for the partnership of Mendezona & Co., from the said Compania General de Tabacos, in consideration of the pledge falsely and fraudulently made, a credit of 300,000 pesos, of which amount there was delivered the sum of 207,814.01 pesos; that by this operation, thus fraudulently consummated, he defrauded the Compania General de Tabacos, inasmuch as the latter, instead of having been able to recover, long before the date of the complaint, the entire sum advanced to Mendezona & Co., together with the interest stipulated (as would have been the case if the security given had been real and bona fide), owing to the falsity and consequent insufficiency of such security, the said Compania General has been compelled to forego the recovery of the stipulated interest which has accrued, and up to the date of the complaint was unable to recover the total amount actually delivered to Mendezona & Co., there still lacking for this purpose 50 per cent of such amount; this against the statute in the case made and provided. Upon filing the preceding complaint a preliminary investigation was had, and, notwithstanding the exception entered by the accused, the action was commenced, the latter's demurrer being overruled by an order of June 6, 1902, and the accused being commanded to answer the charge on the day fixed. From the documentary and oral evidence introduced in this cause it appears that during the last days of August, 1900, Don Becundino Mendezona, in the name of the partnership of Mendezona & Co., induced the general manager of the Compania General de Tabacos de Filipinas to open an account-current with his firm, with credit up to the sum of 300,000 pesos, and that Don Secundino Mendezona commenced to make use of the credit granted on the 27th of the said month of August, drawing considerable sums in money and goods up to the 5th of September following, at which time his drafts from the vaults and storehouses of the Compania General amounted to the important sum of $171,506.52. (Pp. 162-165, recorddocumentary evidence.) About September 7, 1900, at the request of the head manager of the Compania General, it was agreed between the said company and the accused Mendezona that the latter should execute, as security for the said credit, a contract of pledge on the 20,000 bales of hemp stored in the warehouses at No. 48 Isla de Romero Street, and the documenr No. 724 was accordingly executed on September 10, 1900, before the notary public Senor Barrera, signed on the one hand in the name of the firm of Mendezona & Co., by Don Secundino Mendezona y Mendezona, the manager thereof, and on the other by Don Antonio Correa y Pomar, as general manager of the Conipania General de Tabacos de Filipinas, there appearing in the said document, among others, the following stipulations: That Mendezona & Co., represented by Don Secundino Mendezona, bound themselves to the payment, to the Compania General de Tabacos, of interest at the rate of 8 per cent per annum on the outstanding balance of the account-current opened with them, the said interest to begin from the date of the first draft made, the debtors

affirming that they had already received from the Campania General, on account of the'credit allowed them, the sum of $171,500.52. The date for the termination of the contract was fixed at December 31, 1900, when the account opened with the said Mendezona & Co, would be wholly liquidated, the said Mendezona & Co. binding themselves to return to the Compania General, on the date referred to, any balance that might exist in favor of the latter; and that, as security for the sums already advanced by the said Compania General, as well as for any that might thereafter be advanced up to the said $300,000, Don Secundino Mendezona, in the name of Mendezona & Co., pledged, in favor of their said creditor, 20,000 bales of Sorsogon, Legaspi, Tabaco, and Lagonoy hemp, then stored in their warehouses at No. 48 Ma de Romero Street, declaring that the said 20,000 bales had not been assigned, transferred, or in any way encumbered. In token of the delivery of the possession thereof, the said Mendezona thereupon delivered to the representative of the Compania General the keys of the warehouses in which were stored the 20,000 bales of hemp pledged, the marks and classes of which are fully enumerated in the said instrument or document (record, documentary evidence, pp. 50-62), it being admitted between the parties (record, p. 387) that the delivery of the said keys was actually accomplished, as set forth in the instrument referred to. Some days after the execution of the above-mentioned document No. 724, dated September 10, 1900, owing to a It is to be noted that after the execution of the contract of pledge, by the instrument dated September 10, the firm of Mendezona & Co. continued to draw goods and money from the 11th to the 20th of the said month of September, the value of the goods and money thus received reaching the sum of $1,24,704.89, as appears from the running account (pp. 162, 163), which sum, added to those drawn at various times between the 31st of August and .the 5th of September, makes a total of $296,211.41, without reckoning accrued interest. In the said instrument of September 26, 1900, No. 779, it was agreed between the parties thereto, Don Secundino Mendezona, as manager of the firm of Mendezona & Co., and Don Antonio Correa y Pomar, as manager of the Compania Tabacalera, among other things, to exchange for the 20,000 bales of hemp pledged in the instrument No. 724 another 20,000 bales, the classes and marks of which were to be recorded in detail as the said bales should be counted, and that, once the recount should be confirmed and the classes and marks of the said 20,000 bales determined, the said 20,000 bales should immediately become subject to pledge in favor of the Compania General de Tabacos. as security for the credit mentioned in the said instrument of September 10 of that year, in place of the 20,000 bales previously pledged; that, in order that the correctness of the said inventory might be unquestionable, they agreed that the said notary public should bo installed in the warehouse in which were stored the said bales of hemp, and should record, in notarial acts, the number, classes, and marks of the bales delivered, and that the said notarial acts, as well as the said instrument, were to be considered as additional to the document No. 724, and dated September 10, 1900; and that the said notary public thus installed in the warehouses of Mendezona & Co., located at No. 48 Isla de Romero Street, accordingly proceeded, in the presence of the parties interested, to recount the said bales of hemp delivered by Mendezona to the Compania fa General de Tabacos, duly recording in the instru- ment the classes and marks of each bale; and it furthermore appears that the said notary also recounted a certain lot of bales of hemp stored in the warehouses of the Compania General de Tabacos, which had been delivered to the latter by Mendezona, recording the classes and marks of the said bales in the instrument shown on pages 128 to 139 of the record of documentary evidence. The notarial act No. 782, executed September 27, 1900, by the said notary Barrera, gives the

result of the continuation of the inventory of the said bales pledged by Men- dezona & Co. in favor of the Compaiiia General de Tabacos, as stipulated in the instrument executed the day before by the accused, Mendezona, and the general manager of the said Companfa General. Both Mendezona and the said general manager of the Compaiiia General were present, as above stated, at the counting of the bales of hemp whose classes and marks are recorded in the said notarial act. It also appears from the latter that an inventory was made of the bales contained on the lighters and boats mentioned in the said act (pp. 140-150). The record discloses the fact that some time between the 19th and 21st of September, 1900, some ten or eleven days after the execution of the instrument of the 10th above referred to, and the pledge of the 20,000 bales of hemp, upon an examination being made of the warehouse in which the hemp was deposited, and after a careful calculation made by the engineer and two of the company's warehousemen, it was found that there were only 10,900 bales of hemp there, more or less. This result appears to be confirmed by the books showing the receipt and discharge of hemp in Mendezona & Co.'s warehouse on Isla de Romero Street. It is also confirmed by the testimony of Don Ramon Caro, Mendezona's warehouseman, who examined the books and who, in view of the result, drew up the statement of the stock of hemp which the firm of Mendezona & Co. at that time had, which statement forms part of the record. Furthermore, Sefior Garriz, one of the members of the firm, testified in the case that on the 10th of September, .1900 (p. 101), there were not 20,000 bales of hemp in the Isla de Romero Street warehouse, and that on this account Mr. Correa, being alarmed at the insufficiency of the security, and the defendant Mendezona having been informed thereof, the latter undertook to complete the 20,000 bales pledged. It is also worthy of note that when Fradua, the warehouseman, was required by Fernandez, one of the clerks of the Tabacalera Company, to show the warehouse books for the purpose of the recount which they were about to make, the former replied that he had no book. It also appears that a part of the hemp contained in the Isla de Romero Street warehouse that is, 2,238 bales of the hemp - was not the property of Mendezona & Co., but that 700 bales belonged to Don Angel Ortiz, 1,081 bales to Don Francisco Reyes, and 457 to the widow of the Chinaman Tan-Auco, this hemp having been stored in this warehouse subject to the disposal of the owners. This fact is fully established in the record by authentic documents which show the amount of hemp received at the warehouse and also by tire receipts given for the hemp belonging to the persons who had stored it there, as well as by the testimony of the accused, Mendezona, that of Don Angel Ortiz, and that of the representatives of Don Francisco Reyes and the widow of Tan-Auco. The same fact is established by the testimony of Don Ramon Caro, who at that time was a clerk of Mendezona & Co. He identified the warehouse receipts given for the hemp stored in the Isla de Romero Street warehouse, and which was on hand therein on September 10, 1900. The same fact is shown by the entries in the books showing the receipts at and shipments of hemp from the warehouse. The letters, one dated on the 7th and the other on the 19th of December, 1900 (pp. 10-12), written by Mendezona to the general manager of the Tabacalera Company, asking for authority to withdraw from the warehouse certain bales of hemp belonging to the widow of Tan-Auco and to Messrs. Ortiz and Reyes, also clearly established this fact, the letter dated the 7th stating that the 32 bales which had been pledged to the company and which should be delivered to Don Francisco Reyes vould be replaced by 32 other bales. It is to be observed that the hemp belonging to Francisco Reyes and Angel Ortiz and to the widow of Tan-Auco was included in the recount of the bales recorded in the instruments of the

26th and 27th of September. If, on the 27th of September, the hemp belonging to these persons was in the Isla de Romero Street warehouse, and after a careful recount, effected between September 26 and October 2, 1900, all the hemp in the Isla de Romero Street warehouse and at other places was turned over to the Tabacalera Company and the authority of the company was required for the return of this hemp to its owners, it is unquestionable that these bales were included in the instruments found on pages 128 and 140 of the documentary evidence and were also included in the subsequent recount made up to the 2d of October, in the course of which up to 20,414 bales of hemp were counted, which number was not recorded in these public instruments, which show only 18,413 counted during the 26th and 27th of September, all of which appears from the testimony of Don Baldomero Fernandez (p. 107). It is also a fact fully proven that Don Secundino Mendezona, by a private document dated the 18th of April, 1900, for the purpose of securing a loan of $200,000, pledged to the SpanishFilipino Bank 10,000 bales of hemp which' he asserted were stored at his warehouses on Isla de Romero and Anloague Streets, binding himself to hold this hemp as a deposit. This fact appears from a document shown on page (59 of the record, the authenticity of which has been admitted by the defendant (p. 325). It is also corroborated by the testimony of Don Ramon Caro, who states that there were 2,255 bales of hemp in the Isla de Romero Street warehouse which formed part of the 10,000 bales pledged to the Spanish-Filipino Bank, this fact appearing from the books which he had examined. It is also a fact, proven by the evidence, that, for the purpose of securing a loan of f250,000 the defendant Mendezona, by a public instrument of August 24, 1900, pledged to the Chartered Bank 10,002 bales of hemp, which he asserted were on deposit at the warehouse located at No. 48 Isla de Romero Street, He delivered to the agent of the bank the keys of this warehouse, and placed the hemp so pledged at the disposal of the creditor, in conformity with the fourth clause of the contract, appearing on page (53 of the record, the authenticity of which has also been admitted by Mendezona (p. 324). The fact that the keys were actually delivered is also confirmed by the testimony of Don Baldomero Fernandez, who stated that on the morning of the 25th of September, 1900, while engaged in recounting the hemp at the Isla de Romero Street warehouse, an Englishman came and asked the warehouseman, Fradua, which was the lock corresponding to the key he had with him, and tried this key on the new padlocks, and, not having succeeded in opening them, went away; that between 5 and 6 in the afternoon of that day another Englishman came in and demanded the delivery of the keys of the warehouse, to which demand the witness refused to accede; that he reported the matter to Mr. Correa, the general manager of the Tabacalera Company, who sent his son, who spoke English, to make inquiry; that after some conversation between Correa's son and the Englishman the latter went away, the witness adding that he subsequently learned that this man was one of the managers of the Chartered Bank. The witness Ramon Caro, the clerk of Mendezona & Co., testified (record, pp. 130, 219) that on the 10th of September, 1900, according to the books of the warehouse located at No. 48 Isla de Romero Street, there were at the warehouse 4,251 bales which were part of the 10,002 pledged to the Chartered Bank. It is also a proven fact that on August 24, 1900, Don Secundino Mendezona, as manager of Mendezona & Co., pledged to the Hongkong-Shanghai Banking Corporation, by a public instrument, 16,699 bales of hemp, which he stated were on deposit in the warehouses of Dona Cornelia Laochangco at Tanduay. This pledge was to secure a loan of $400,000, and the keys of the Tanduay warehouse were accordingly delivered to Mr. Jones, the agent of the bank, and the hemp pledged placed at his disposal, in accordance with clause 4 of the contract^ which appears on page 70 of the documentary evidence. The defendant Mendezona and the witness Venancio de Jesus

corroborated this statement as to the delivery of the keys to the agent of the bank. Notwithstanding the context of this instrument of September 26, the record contains sufficient evidence to show unquestionably that there was no substitution or exchange of the 20,000 bales of hemp for 20,000 other bales which were formerly stored in the Isla de Romero Street warehouse. What was done in the presence of the notary Bar- rera, in accordance with the agreement between Mendezona, the defendant herein, and Senior Correa, the general manager of the Tabacalera Company, was to have a recount made of the hemp in Mendezona & Co.'s warehouses, for the purpose' of dissipating the doubt or belief on the part of the creditor corporation that the warehouses did not contain the 20,000 bales of hemp pledged by the contract of September 10; and to complete the 20,000 bales so given as security, according to the statement of Don Florencio Garriz, a member of the firm of Mendezona & Co. (record, p. 81), in the course of making the inventory several thousand bales of hemp, part of which arrived by the steamer San Nicolas, and part being taken from the Tanduay, Anloague, and Barraca warehouses, were taken to the Isla de Romero warehouse, apart from the 1,700 bales which arrived on the steamer Union, and the 21 bales which Avere taken from a casco. All these bales of hemp, added to the 10,900, which, according to the calculation made and according to the books of the firm, were the total amount in the warehouse September 10, 1900, the date of the pledge, made a total of 20,414 bales, after making the recount. The fact that the hemp was taken into the Isla de Romero warehouse is shown by entries in the books corresponding to the Tanduay, Anloague, and Barraca warehouses, and by other documents in the record, some of which have been identified by Venancio de Jesus, a clerk of Mendezona & Co. The fact that the hemp was so taken into the warehouse was also shown by the testimony of Don Baldomero Fernandez, a representative of the Tabacalera Company, who took charge of the warehouses after September 10, and also by the witness Don Ramon Caro, a clerk of Mendezona & Co. According to the documents dated the 23d of July and the 30th of June, 1900 (record, pp. 76, 84), Mendezona & Co., to secure two loans, one of. $250,000 and another of $425,000, from the Chartered Bank, pledged a warehouse receipt issued by Messrs. Stevenson & Co, for 505 bales of hemp, and several warehouse receipts issued by Mr. J. Sloan for 22,311 bales stored in the Tanduay warehouses. On September 20, 1900, Mendezona & Co. indorsed to the Chartered Bank several warehouse receipts signed by Mr. Sloan, representing 2,745 bales of hemp, as security for a loan of $200,000. On April 18, 1900, Mendezona & Co. pledged to the Spanish-Filipino Bank, as security for a loan of $200,000, 10,000 bales of hemp stored in the Anloague and Isla de Romero warehouses; and on June 21 of the same year they pledged another 10,000 bales of hemp stored in the Tanduay warehouses, as security for another loan of $200,000. These facts are shown by documentary evidence in the record (pp. 69, 92, 93). From the testimony of the defendant Don Secundino Mendezona and that of his partner, Don Florencio Garriz, it appears that on account of the heavy fall in the price of hemp in the market of this city and of heavy losses suffered the firm of Mendezona & Co. found itself heavily indebted and unable to meet its obligations, for which reason the manager of the company, Don Secundino Mendezona, the defendant herein, after having consulted his partners concerning the situation, on September 28,1900, found himself compelled to suspend payments, and went to Senor Barrera, a notary public, and informed the latter of this situation,

asking him to make out the necessary statement required by the Code of Commerce. But the notary Barrera, instead of doing so, told the defendant that he would undertake to see the managers of the banks and try to make arrangements to enable the firm to continue, and that Barrera, in view of the defendant's determination to suspend payments, assured him that he could arrange matters. As a result of the conferences held between the principal creditors and some of the members of the firm of Mendezona & Co., an agreement was entered into, which was recorded in a public instrument dated October 7, 1900, in which it was stated that, in consideration of the heavy losses which had been suffered by the firm and other special circumstances which had compelled it to suspend payments, the principal creditors, among them the Tabacalera Company, represented by Don Antonio Correa, had decided to give their support in order that the firm of Mendezona & Co. might be able to meet its obligations, and among other things it was determined to modify the firm of Mendezona & Co., Messrs. Juan Ormaechea and Florencio Garriz entering the firm as partners and becoming the managers of the new firm, which was to be organized for a period of three years, to run from the 1st day of October, 1900; that these managers were to be subject to the resolutions of a board of inspection, composed of the managers of the Chartered Bank, the Hongkong-Shanghai Banking Corporation, and the Spanish-Filipino Bank, the general manager of the Tabacalera Company, some person to be appointed by the Community of Augustinian Fathers, and Don Isidro Arizaleta or Don Fabian Artadi, whenever the latter should be in this city, the conditions under which the business was to be carried on being expressed in the contract. The three banks, the Tabacalera Company, and the Community of Augustinian Fathers opened with the firm of Mendezona & Co. a credit in account-current up to the sum of $250,000, which was subsequently extended to $800,000 at 6 per cent per amnmi, this amount to be paid back in equal proportions (p. 185). Eighty per cent of the indebtedness of the firm to the Chartered Bank, the Hongkong-Shanghai Banking Corporation, the Spanish-Filipino Bank, the Tabacalera Company, and the Community of Augustinian Fathers was to be paid oif, these creditors then to share with the other creditors as to the remaining 20 per cent of their claims. By virtue of the preference granted in favor of the three banks, the Tabacalera Company, and the Community of Augustinian Fathers, the representatives of these creditor corporations solemnly bound themselves not to make use of the special securities held by each one of them, provided that the agreements established in this (tontract were enforceable and were carried out, but, on the contrary, if for any reason the agreements were not carried out, then the preferred creditors were entitled to avail themselves of their securities, and the waiver established in this el an se of the contract was to be rescinded. Mendezona & Co., in turn, undertook to give new security to the five preferred creditors as to 80 per cent of their claims by executing in their favor a mortgage upon all their real property, vessels, etc., the same to be regularly recorded in the property register, and also by pledging to their'said creditors all the hemp belonging to the firm in Manila and the provinces, by means of the necessary instruments. By an instrument dated December 12, 1&00, the managing partners of the firm of Mendezona & Co., Don Juaii Ormaechea and Don Florencio Oarriz, acting in accordance with the authority conferred upon them by the instrument of October 1.3 of that year, and the creditors of the said firm, among them the Tabacalera Company, represented by its general manager, Don Antonio Correa y Pomar, declared that, owing to heavy losses suffered by the firm of Mendezona & Co., of which Don Secundino Mendezona was the sole managing partner, the firm was unable to meet its obligations at their respective maturities, and that ; therefore the said creditors, among them the representative of the Tabacalera Company, had agreed upon the

conditions subject to which the firm might continue its business, which conditions were expressed in a notarial act of October 7, 1900, which was made a part of the contract now referred to; that the conditions stipulated in that act having been complied with, the agreement was to be carried into effect, and that therefore the representative of the Tabacalera Company canceled and annulled the security given by Mendezona & Co. in favor of the Tabacalera Company, by a pledge of 20,000 bales of hemp, as security for a credit in account-current for $300,000, in accordance with the instrument of September 10, 1900, and modified by another instrument of the 26th of the same month, in which, as well as in the notarial act of the following date, appeared a statement of the bales pledged; that the managers Ormaechea and Garriz acknowledged to have received from the five principal creditors, among them the Tabacalera Company, the sum of f 800,000, and to secure this sum, as well as 80 per cent of the indebtedness of the firm to tin; said five principal creditors, which said 80 per cent amounted to the sum of $3,109,344.28, they pledged to the said five creditors the bales of hemp described in the contract by marks and classes, as also the vessels of the firm, and executed a special mortgage upon the real property described therein, as well as an interest in the business and other property therein mentioned. By a notarial act of the 1st of April, 1901, the managers and the several creditors of Mendezona & Co, agreed, among other things, to declare the firm of Mendezona & Co. dissolved, and their business was thrown into liquidation, the terms upon which the liquidation was to be conducted being expressed in the contract; that the liquidators were to be one or three; and in case the latter number should be decided upon, then two of them should be appointed by the creditors representing two-thirds of the capital, and one by the other creditors; that on and after that date no credit should draw interest,with the exception of the account-current of the SpanishFilipino Bank, and it was unanimously resolved to release Messrs. Florencio Oarriss, Juan Ormaechea, Secundino Mendezona, Roman Echevarria, and Antonio Elizalde from all liability as managers and as partners. In view of the facts established at the trial, as shown in the preceding statement thereof, can it be said that the crime of estafa, denned and punished by article 534, paragraph 3, and article 535, paragraph 1, of the Penal Code, has been committed, as charged in the information, and as alleged in the brief of the Solicitor-General? Our answer is in the affirmative. Notwithstanding the fact that the defendant Secundino Mendezona plead not guilty to the charge of estafa brought against him, the record contains evidence of the existence of this crime, and more than sufficient proof to fully convince the mind of the guilt of the defendant of the estafa of a large sum of money, because, when the demand was made upon the defendant, by the general manager of the Tabacalera Company to give security for the return or payment of the credit of $300,000, upon which he had already drawn $171,506.52, he executed public instrument No. 724, dated September 10, 1900, by which he pledged to the creditor company 20,000 bales of hemp which he pretended to have in his warehouse at No. 48 Isla de Romero Street, the fact being that there were only 10,900 bales there, as shown by an expert calculation and by the stock books of this warehouse, which number of bales has been confirmed by the testimony of the witness Don Ramon Caro, a clerk at that time of Mendezona & Co., who carefully examined these books; and this apart from the fact that there were in the warehouse at that time on storage 2,238 bales of hemp, 700 of which were the property of Don Angel Ortiz, 1,081 of Don Francisco Reyes, and 457 of the widow of Tan-Auco, which said bales so stored should have been deducted from the 10,900 bales of hemp which alone were in the warehouse at that time.

The existence of the crime is furthermore established by the proven facts that, on September 10, 1900, there were in the warehouse at No. 48 Isla de Romero Street, some 2,255 bales which Avere part of the 10,000 bales pledged to the Spanish-Filipino Bank as security for a loan evidenced by an authentic document adduced in evidence (record, p. 69); 4,251 bales, which were part of the 10,002 bales of hemp pledged to the Chartered Bank, as security for a loan evidenced by a public instrument produced in evidence, in which instrument it appears that the keys of the said warehouse were delivered over as a symbol of the possession of the bales pledged; and that some 5,213 bales of said hemp had been pledged to the Chartered Bank as security for another loan, evidenced by the document shown on page 126 of the record, the authenticity of which has been admitted by the defendant. It is therefore unquestionable that there were at least 13,957 bales of hemp .in that warehouse pledged to other creditors or belonging to other persons, as this fact is fully established by authentic documents, of which the first two documents of pledge indicate a greater number of bales pledged, the sum total of which show, first, the truth of the statement of the witness Don Ramon Caro after an examination of the books of the firm, to the effect that of the 10,000 bales of hemp in stock September 10, 1900, in the warehouse at No. 48 Isla de Romero Street, only 505 bales corresponded to the marks and countermarks of the bales pledged in the instrument of that date; and, second, that of the bales pledged to the two banks, the greater part of the hemp supposed to be in stock at the Isla de Romero warehouse was not there as stipulated, as there should have been at least 13,957 bales, the fact being that there were only 10,900, as stated. It is sufficient for us to say that we neither affirm nor deny the validity and legal sufficiency of the pledges made on the 18th of April and the 20th of September, 1900, to the Spanish-Filipino Bank and the Chartered Bank. We have referred to them solely for the purpose of showing the fraudulent conduct of the accused when pledging 20,000 bales of hemp as security for indebtedness to the Tabacalera Company, there not being, as shown at the trial, any such number of bales of hemp in the Isla de Romero warehouse. For the purpose of defining the crime and weighing the evidence taken, it is a matter of indifference that in December, 1900, the firm of Mendezona & Co. had 73,722 bales of hemp, because, as against these figures, we find others representing a larger amount of indebtedness and pledges, as security for the considerable sums borrowed. The question in issue is whether, on September 10, 1900, there were or were not 20,000 bales of hemp in the warehouse at No. 48 Isla de Romero Street. The defendant has not proved that this amount was there, but, on the contrary, it has been demonstrated that there were scarcely 10,900 bales on hand, the greater part of which were either the property of third persons or had already been pledged to other creditors. It is true that, a suspicion having arisen as to whether there were or were not 20,000 bales of hemp in that warehouse, they proceeded to make a recount, according to an agreement between the parties, and that the result of this operation showed that there were some 20,414 bales there, but it is also true that during the making of this recount thousands of bales of hemp were taken into this warehouse which had been brought from the Tanduay, Anloague, and Barraca warehouses and included in this recount, as well as several thousand other bales of hemp which had arrived on the steamers Union and San Nicolas , and that other bales were included in the recount which were lying alongside in cascoes and lighters, these facts being evidenced by the books of the firm, authentic documents, and the testimony of credible witnesses. The total amount of hemp included in the recount was 20,414 bales, including the bales deposited and those pledged to other creditors. So that it is beyond question that on

September 10,1900; the 20,000 bales of hemp pledged to the Compania General de Tabacos as free from all incumbrance were not in the warehouse at No. 48 Isla de Romero Street, and that consequently Avhen Mendezona so stated in the instrument of September 10, 1900, he made a false assertion, and pretended the. existence of 20,000 bales, thereby deceiving the creditor corporation, and, by this abuse of the con- fidence reposed in him, defrauding the said corporation. If the manager, Senor Correa, had demanded recount of the bales at the time of the pledge of the 20,000 bales of hemp so agreed upon by the instrument of September 10, before the delivery of the keys, and it had been discovered that there was no such number of bales in the Isla de Romero warehouse, but much less, and that part of the hemp stored there was the property of others, and that the greater part was pledged to two banks as security for large loans advanced, he would have been within his rights in demanding the completion of the number of bales agreed upon, or to suspend the delivery of the rest of the agreed credit to the debtor, which amounted to the considerable sum of $124,704.89. The manager of the Tabacalera Company, trusting to the security agreed upon in the instrument of September 10, and the apparent good faith of the accused, continued to advance the latter money and goods from the 11th to the 20th of that month on account of the credit of 300,000 pesos, up to the sum of $296,211.41. Therefore the amount obtained by the estafa must be at least the sum mentioned of $124,704.89, the sum total of the cash and goods delivered to Mendezona in consideration of the false security fraudulently offered by means of the instrument referred to, admitting that more than one-half of the credit, to wit, the sum of $171,506.52, had been advanced up to the 5th of September without security, and before the agreement to pledge the 20,000 bales of hemp referred to. The best evidence that the accused has committed the crime of estafa is the demonstration of the concurrence in the consummation of the crime of the deceit by which he proposed to commit the fraud and the damage suffered by the defrauded corporation. These two elements are indispensable for the existence of the crime of estafa, and in support of our assertion we refer to the doctrine established by the decisions of the supreme court of Spain, which are controlling, as they refer to the interpretation and application of the Code now in force, which is of Spanish origin. The judgment of January 8, 1884, rendered in cassation, lays down the doctrine that the estafa denned in section 1 of article 548 of the Penal Code (535 of the Philippine Code) is composed of two essential elements, to wit, deceit and damage, or the intent to cause it, the former being employed for the purpose of producing the latter as a result. In another decision of November 17, 1886, the court says in effect: The essential elements of the crime of estafa, as this court has repeatedly held, are the deceit employed for the purpose of defrauding and the damage thereby occasioned, both of which are requisites essential to the existence of any of the cheats denned and punished in the various articles of section 2, chapter 4, title 13, of book 2 of the Penal Code (equivalent to the same section, title, and book, without the chapter, of the Philippine Code). This same doctrine is established in many other judgments of the highest court of Spain. The deceit, the first element of estafa, is manifest. Mendezona, when executing the instrument of pledge of September 10, in bad faith and with criminal intent, induced the manager of the company, Senor Correa, to believe that he was in the possession, as owner, of the 20,000 bales of hemp, free from all incumbrance, and that in this capacity he pledged them to the

creditor as security for the credit of $300,000, it having been discovered some days afterwards that there were only 10,900 bales of hemp in the warehouse at No. 48 Isla de Romero Street, and as warehouse receipts showed that this amount included 2,238 bales belonging to third persons, and other authentic documents show that there should have been in that warehouse at least 11,719 bales of hemp pledged to the Spanish-Filipino Bank and the Chartered Bank. It can be asserted conclusively that of the 10,900 bales of hempen the warehouse, part were not the property of Mendezona & Co., and the greater part were already pledged as security for the large claims of the two banks mentioned. Therefore, the existence of the 20,000 bales of hemp pledged to the Tabacalera Company, being imaginary and fictitious, there was undoubtedly deceit in the execution of the instrument and the giving of the pledge. Did the accused majte any attempt to prove, in the course of the trial, that he had 20,000 bales of hemp free from incumbrance in his warehouse in Isla de Romero Street on the 10th of September, 1900? No; he did nothing more than to affirm this. Mendezona must have known that the burden was upon him to prove that he actually did have this number of bales of unencumbered hemp, as asserted in a public instrument. The mere assertion of the accused, unsupported by sufficient evidence, is not enough in law to overcome the overwhelming proof made by the prosecution. The result of the recount stipulated in the instrument of September 26, 1900, although it shows 20,414 bales - a much greater number than that pledged by the instrument of the 10th - is, nevertheless, no evidence that there were 20,000 bales of hemp there on the date of the pledge. The proof does not show that 20,000 bales were substituted for others of equal number, but does show that during the entire operation of the recount of the bales in the warehouses, from the 26th of September to the 2d of October, inclusive, thousands of bales of hemp were taken into the warehouse, and that there were included in that recount several thousand bales more which had been on board two steamers and several other smaller vessels. All this shows that at that time the warehouses did not contain the 20,000 bales pledged, and that Mendezona, when so affirming in the public instrument executed by him, acted in bad faith and knowingly deceived his creditor. The instrument of September 26 and the notarial act of the 27th, with the recount of the hemp, have not served to exculpate Mendezona and demonstrate his innocence, but to show clearly his guilt. The other element of estafa, the damage, was present because the manager, Senor Correa, being deceived by the concession of an apparent security, permitted Mendezona to continue to draw in money and goods upon the credit opened to him up to the amount of $124,704.89, in addition to the considerable amount already received by him. This would not have occurred if the accused Mendezona had not executed the instrument of September 10, 1900, pretending to be the owner of 20,000 bales of unencumbered hemp, and pledging this amount by the delivery of the keys of the warehouses, notwithstanding the fact that no such amount of hemp was actually in stock. If the accused had not succeeded in deceiving the manager of the Tabacalera Company and the latter had discovered that Men- dezona & Co. did not have 20,000 bales of hemp in the Isla de Romero warehouse1 on the date mentioned, and was therefore unable to give security for the credit of 300,000 pesos, he would have at once suspended the payments of money and the deliveries of goods effected from the 11th to the 20th of that month, and which amounted to the sum total of $124,704.89, in which amount the capital of the Tabacalera Company was diminished, and the debt of Mendezona's firm would have been limited to $171,506.50. It appears, then, that the damage suffered by the Tabacalera Company by reason of the

fraudulent conduct of Mendezona is demonstrated by the irrefutable logic of numbers. Had it not been for the pledge of the 20,000 bales of hemp which the accused pretended to have in his warehouse, he would not have succeeded in fraudulently obtaining money and goods to the amount of $124,704.89, which sum was not really secured, as believed by the de- frauded creditor at the time the pledge was made. Irrefutable proof having demonstrated the existence of the crime of estafa, committed by fraudulent means, and to the prejudice of the Compania General de Tabacos, in the large sum mentioned above, the conclusion follows, from the evidence of the prosecution above related, that the accused, Secundino Mendezona, manager of the firm of Mendezona & Co., is guilty as principal, by direct participation, of the crime charged. Notwithstanding his denial and exculpative allegations, the record contains conclusive evidence that when demand was made upon him by the manager of the Tabacalera Company for security for the large credit granted him, and in order that he might continue to draw money and goods from the coffers and storehouses of the company, he pretended to have 20,000 bales of unencumbered hemp in his warehouse at No. 48 Isla de Romero Street, and pledged said bales by public writing in legal form under date of September 10, 1900, thus succeeding in obtaining the large sum of $124,704.89, in addition to the considerable amount already received by him. The defendant, Secundino Mendezona, in his capacity of manager of Mendezona & Co., directed the business of the firm, and he alone made all contracts concerning the purchase and sale of hemp, and its receipt and discharge from the warehouses; he alone it was who borrowed large sums from several creditors, and stipulated all the pledges made in the name of the firm in favor of the various creditors. This fact appears of record. Therefore, he must have known that in his warehouse at No. 48 Isla de Romero Street there were 2,238 bales of hemp which belonged to others, and some 11,719 bales which he had already pledged to two banks, because all this appears from documents signed by him and duly acknowledged. He also it was who sought Seilor Correa's authority for the return to their owners of the bales of hemp stored in those warehouses. The record shows that on September 10 those warehouses contained much less than 13,957 bales (only some 10,900), and consequently there could not have been 20,000 there, and the defendant certainly has not proved that there were. The allegations of the defense with respect to the informality in the manner of keeping the books of the warehouses of the firm in question can not be considered, because if there were any errors in the bookkeeping Mendezona would certainly be chargeable therewith. But the fact is that with the aid of these books they succeeded in drawing a general statement of Mendezona & Co.'s stock of hemp; and the defense during the trial did not proye in what the errors complained of consisted, or what were the defects in the books. Article 48, section 1, of the Code of Commerce in force provides that the books of merchants are conclusive evidence against their owners, and that no evidence contradictory thereof will be admitted. The agreements entered into subsequent to the instrument of September 10, 1900, dated September 28, October 7, and December 12, ,1900, the waiver made by the representative of the Tabacalera Company, among others, of his rights to the pledge of the 20,000 bales of hemp, the cancellation of the first two instruments of September 10 and 28, 1900, in no way affect or eliminate the characteristic elements of the crime of estafa committed at the time of the fraudulent pledge recorded in the original instrument of September 10. The contracts or compromises entered into between the parties for the purpose of determining civil liabilities, produce no effect within the domain of the criminal law, and can not blot out a consummated

crime. Moreover, estafa is a public offense, to be prosecuted and punished by the Government on its own motion, even though complete reparation should have been made for the damage suffered by the party injured. Criminality is not affected by compromise or novation of contract. Such stipulations produce effect only with respect to the civil rights of the parties. Such is the constant doctrine of the supreme court of Spain as laid down by its judgments of June 12, 1882, February 19, 1879, February 15, 1884, and February 9, 1885, and many others which it is not necessary to cite. Furthermore, article 1813 of the Civil Code provides that a civil action arising from a crime may be compro-mised, but the public action for the imposition of the legal penalty shall not be extinguished thereby; and article 897 of the Code of Commerce establishes that the fact that a bankruptcy has been declared by a final judgment to be fortuitous is not a bar to a criminal prosecution, when, from the actions pending concerning agreements between creditors, the acknowledgment of credits or any other incident indicia appear of the commission of acts falling within the sphere of the Penal Code, which acts, at the instance of the department of public prosecution, will be submitted to the decision of a competent court. With the exception of crimes of a private character, the repression and punishment of public offenses such as estafa is a matter of interest to society and one of public policy. For this reason, in the case in question the agreements and compromises entered into by the instruments of October 7 and December 12, 1900, between the defendant and his creditors, among them the representative of the Tabacalera Company, can not change or affect the essence or character of the crime committed, or the penal action for enforcing the penalty; nor is the penal action extinguished by the waiver of the party injured, and although he may expressly waive his right to an indemnification, nevertheless the department of public prosecution will prosecute the case and maintain the public penal action for the punishment of the delinquent. (Arts. 17, 23, and 133 of the Penal Code; 234, 239, 240 et seq. of the Reformed Compilation of 1880, and 100, 106, 107, 108 et seq. of the Law of Crim- inal Procedure of 1882.) The latter two procedural laws are cited as legal doctrines not opposed to the present law of criminal procedure in force. The representative of the Compania General de Tabacos was obliged to enter into the agreements recorded in the instruments of October 7 and December 12, 1900, together with other creditors, with the accused because he became convinced that the pledge or security given him by Mendezona was illusory and worthless, a recount of the bales of hemp having showed that part of them were not the property of the debtor firm, and that the greater part were already encumbered or pledged in favor of other creditors. In consequence of the agreements before referred to, this court can not enter any judgment with respect to the indemnification of the amount obtained by the estafa in favor of the injured party, because, although there has been no waiver of the right to demand a restitution of the $124,704.89 fraudulently obtained, from the context of the instruments executed in October and December it is to be inferred that the manager of the company reserves his right to enforce his claim upon the terms therein stipulated. This decision, therefore, is limited to the imposition of the adequate penalty prescribed by section 3 of article 534, and in the medium grade, no generic mitigating or aggravating circumstances having concurred in the commission of the crime, as abuse of confidence is inherent in the crime of estafa.

Upon these grounds, therefore, we hold (1) that the act which is the object of this prosecution constitutes the crime of estafa in an amount superior to 6,250 pesetas, defined and punished by articles 534, paragraph 3, and 535, paragraph 1, of the Penal Code, without the concurrence of any mitigating or aggravating circumstances; (2) that the defendant Mendezona is the sole guilty principal by direct participation; (3) that the defendant is liable to the penalty of presidio correccional in its minimum and medium degrees, and to the accessories prescribed by article 58 of the Code, without right to any reduction of the penalty, he not having been a detention prisoner; and (4) that the court will not make any declaration concerning the indemnification of. the amount obtained by the estafa in favor of the Tabacalera Company, by reason of the agreements entered into between the latter and other creditors and the accused. The defendant is, however, condemned to the payment of costs. Therefore the judgment appealed is reversed and Don Secundino Mendezona y Mendezona is convicted and condemned to two years eleven months and ten days of presidio correccional, with suspension from all public office, profession, trade, or right of suffrage, and to the payment of the costs of both instances. Arellano, C. J., Cooper and Mapa, JJ., concur. McDonough, J., did not sit in this case.

CONCURRING WILLARD, J.: I base my concurrence in the judgment of conviction upon the following considerations: 1. That there were in the warehouse No. 48 on September 10, 1900, no more than 12,000 bales of hemp was proved. 2. That 20,000 bales were not in this warehouse on the 27th day of September was also proved. The total number of bales counted by the notary on September 26 and 27 was 18,413. But of this number 2,006 were in cascoes and lorchas. The claim of the defendant that warehouse No. 48 Isla de Romero was so extended as to include cascoes and lorchas lying at the dock can not be sustained. Prom the said 18,413 must be subtracted the said 2,006 bales which were not in the warehouse and upon which no valid lien was created by the agreement of September 26. 3. It was also proved that of the hemp in the warehouse on September 10 and September 27, 2,238 bales did not belong to Mendezona & Co., but did belong to Don Angel Ortiz, Don Francisco Reyes, and the widow of Tan-Auco.. These bales were afterwards, on demand of said owners, delivered to them by the Tobacco Company. 4. Taking from 18,413 bales the said two sums of 2,006 and 2,238, there remain 14,169 bales. Upon this amount, and upon no greater amount, did the Tobacco Company in any event secure a valid lien by the agreement of September 26. It therefore appears that there is no foundation in fact for the claim of the defendant that, even if the warehouse

did not contain 20,000 bales on September 10, it did on September 27; that said 20,000 bales then became subject to a valid lien in favor of the Tobacco Company, and consequently it has not been damaged. 5. The facts that the Tobacco Company by the contract of October 7, 1900, agreed upon certain conditions to release the lien which it held, and that by the agreement of December 12, 1900, it did in fact release this lien, are not important. It agreed to release and did release only the lien which it in fact had - that is, a lien, at most, on 15,000 bales. As to the property thus released it can make no claim. But that release does not debar it from pursuing its remedies against Mendezona because he did not give it, as he agreed to, a lien on 5,000 bales more. If the warehouse No. 48 had on September 10, 1900, contained 20,000 bales, the property of Mendezona & Co., the Tobacco Company would have secured a valid lien on property more than sufficient to have paid its claim of 300,000 pesos. It appears that it at once took possession of the warehouse and changed the locks on the doors. If it had been in this situation with its claim fully protected on September 28, when Mendezona announced that he must suspend, it is doubtful if it would have gone into the arrangement of October 7. ON MOTION FOR REHEARING. TORRES, J.: The attorneys for the accused, Secundino Mendezona, ask for a rehearing of the cause in which he was charged with and found guilty of the crime of estafa, on the ground that, under the laws in force in these Islands, neither the United States nor a private prosecutor has in any case the right to interpose an appeal against a judgment of acquittal rendered by a judge of the Court of First Instance. It is contended that such an appeal would be in violation of the organic act of the Archipelago, which declares that no person shall twice be placed in jeopardy for the same offense; and it is further alleged that the appeal in question denies to the accused the equal protection of the laws guaranteed him by the Constitution of the United States. Apart from the question as to whether or not an appeal can be taken against a judgment of acquittal rendered by a judge of the Court of First Instancethis question not having been raised or argued either in the first instance or in this court during the perfection of the appeal allowed the Attorney-General from the judgment of acquittal rendered by Judge Rohdethe contention of the accused, together with the principles on which that contention rests, has already been finally passed upon in the case of the United States vs. Kepner (1 Off. Gaz., 353[1] ), in which a petition similar to that in the present case and based upon identically the same principles was presented. The motion is denied, with costs. Arellano, C. J., Cooper, Willard, Mapa, and McDonough, JJ., concur.

[1] 1 Phil. Rep., 397.

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G.R. No. 1006, March 30, 1903

THE UNITED STATES, COMPLAINANT AND APPELLEE, VS. NAZARIO ALHAMBRA ET AL., DEFENDANTS AND APPELLANTS. D ECIS ION
MAPA, J.: Counsel for the defendants has petitioned the court to grant the defendants the benefit of the amnesty. This raises a question which, if decided in the affirmative, will make it unnecessary to decide the principal issue in the case. The defendant Alhambra on the date in question was the commanding officer of the revolutionary forces of the zone in which was included the town of Puncan, in the Province of Nueva Ecija, in whose jurisdiction the crime prosecuted was committed. In obedience to an order given by him to his codefendants, who were his soldiers, the latter, one day in the month of February, 1900, captured and killed Leopoldo Palacios and his family. These facts are, in our opinion, fully proven in the case. Among the evidence introduced by the prosecution are included certain sworn statements made by some of the defendants in November, 1901, before Lieutenant Taylor, of the United States Army, of which the originals were attached to the record at the request of counsel for the Government. It may be said that to a certain extent these statements constituted the sole direct proof of the killing of Palacios and his family, if we exclude the testimony of the defendants themselves in the preliminary investigation held before the provincial fiscal, which they withdrew at the trial. In their statements made before Lieutenant Taylor two of the deponents, Maximo del Castillo and Anacleto Olengco, affirm that Alhambra ordered the capture and killing of Palacios and his family because he suspected that they were secret police or spies of the Americans. Ciriaco Reyes, a witness for the prosecution, substantially corroborates this statement. He says that the motive which led Alhambra to give the order was that Leopoldo intended to surrender to the Americans. The complaining witness, Crisanto Sanchez, brother-in-law of Leopoldo Palacios, also testifies, on page 60, that Alhambra wanted to kill him too, because he believed that the witness was a member of the secret police. This statement is corroborated by that of the witness Ciriaco Reyes, just mentioned. We have no reason to doubt the sincerity of the testimony given by the accused before Lieutenant Taylor, not only because their statements were not controverted in the course? of the trial, they, on the contrary, having been used as proof by the prosecution, but also because it can not be presumed that they gave this testimony with the self-serving purpose of availing themselves of the benefit of the amnesty, for the simple reason that the amnesty proclamation was not promulgated until eight months later, that is, on the 4th of July, 1902. The sincerity of these statements is still more (dearly shown by the fact that they have been corroborated with respect to the motive which led the defendants to commit the crime prosecuted by the very satisfactory testimony of the witnesses for the prosecution. In view of the character of the motives referred to, and which were due to the belief on the part of the defendants that Leopohlo Palacios and his family were spies of the American Army, and therefore their political enemies, we hold that the crime in question, in its complex character of murder with robbery, was a result of internal political hatred or dissensions of a

political nature between Filipinos, manifested in this case by reprisals, not only on the person but also on the property of those whom they considered open enemies of the cause which they supported and defended; that the defendants committed said crime while insurgents and during the insurrection against the United States; and that they are therefore entitled to the benefits of the amnesty .proclamation of July 4, 1902. We therefore declare that the said defendants are pardoned, subject to taking the oath prescribed by the amnesty proclamation. So ordered. Arellano, C.J., Cooper, and Ladd, JJ., concur. WILLARD, J.: I agree with the result. TORRES, J.: I am of the opinion that the accused should be pardoned as to the crime of murder, but convicted of the crime of robbery in a band.

OSJurist.org

G.R. No. 1007, May 10, 1903

PAULINO REYES, PETITIONER, M. HON. FEUX M. ROXAS, JUDGE OF FIRST INSTANCE OF RIZAL, RESPONDENT. D ECIS ION
MAPA, J.: In the case of the United States vs. The Municipality of Santa Cruz de Malabon, decided February 16, 1903,[1] we have enunciated the doctrine that in accordance with section 107 of General Orders, No. 58, no private individual, other than the person injured may maintain a criminal action for the prosecution of a crime. The petitioners are not the persons injured in the present case. The mere circumstance that they are inhabitants of the municipality of Pasig does not confer upon them this character in the sense in which the words person injured are used in that section, with respect to the embezzlement of the public funds of which the accused, as president of the town, may have been guilty. It can not be said, properly speaking, that such funds were the property of the complainants. The person offended in such a case would be the municipality, and not the petitioners. The petitioners, therefore, have no right to bring any penal action for the purpose of prosecuting and punishing the said crime. Not having this right, they have in consequence no right to appeal against the order of dismissal entered by the judge in the preliminary investigation. Such a right would be merely consequential to the right to maintain the penal action which, as above stated, they are not entitled to bring in this case. For this reason, and not upon the grounds stated by fhe judge below, in his order, the recurso de queja brought by the petitioners is denied. So ordered. Arellano, C. J., Willard and Ladd, JJ., concur.

[1] Phil. Rep., 731.

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G.R. No. 1010, March 19, 1903

THE UNITED STATES, COMPLAINANT AND APPELLEE, VS. JUAN FERIA ET AL., DEFENDANTS AND APPELLANTS. D ECIS ION
TORRES, J.: About midday on the 12th of November, 1901, Evaristo Perez, a member of the municipal police of San Isidro, accompanied by Valentin Ramos, a young man 15 or 16 years of age, was going through Cabalantian, of the town of Jaen, with an official letter which he was taking from San Isidro to Jaen. They were met at this point of the road by two men, who subsequently proved to be Juan Feria and Dionisio Velasquez. Feria suddenly seized the policeman, Perez, while the other endeavored to seize the boy, Ramos. The latter immediately fled, and although pursued by Velasquez was not overtaken by him. Velasquez then returned to the place where his companion, Feria, was holding Perez, and attacked the latter with a long bolo, inflicting upon him a wound in the neck and two in the back. As a result of these wounds Perez fell senseless to the ground, mortally wounded, and thereupon the defendants, Feria and Velasquez, possessed themselves of the Colt revolver carried by Perez, together with the sheath and belt. The lad, Ramos, after making his escape from Velasquez, at once proceeded to the municipal presidencia of San Isidro; where he reported the occurrence. Several of the municipal officers immediately went to the place in question, and found the policeman, Evaristo Perez, in so serious a condition that he expired on the road before arriving at the town. From an examination of the body of Perez made by the municipal physician it was found that he had received a severe wound on the upper left side of the neck, and that two of the larger arteries had been severed. Another penetrating wound was found on the left side, which pierced the thorax and wounded the lung. The third wound had penetrated the back on the right side. The first wound was inflicted with a bolo and the latter two with a dagger. The burial certificate of the deceased is in the record (p. 15). The facts stated, charged in the complaint as murder, constitute this crime as defined and punished by article 403 of the Penal Code. When the policeman, Evaristo Perez, was attacked by one of the defendants, he was being held by the other, who prevented him from defending himself or making his escape, and therefore the deceased was killed treacherously, the defendants having availed themselves of a method which directly and specially tended to insure the consummation of their common criminal purpose without risk to themselves arising from any defense which their victim might have made. One of the defendants succeeded in inflicting upon the deceased three wounds, all of them mortal, without danger to himself, as his companion was preventing any act of defense on the part of the victim, or even his flight. The two defendants, Feria and Velasquez, pleaded not guilty to the charge. In their testimony at the trial they stated that by orders of three men whom they met at the place where the murder occurred they seized the policeman, Evaristo Perez; that then these three men, called Apolonio, Eustaquio, and Anacleto, attacked and killed the deceased. These assertions, however, are unsupported by evidence and contradict former statements made by the accused before the justice of the peace of Jaen, who conducted the preliminary investigation. In this investigation, and in the presence of seven witnesses, bdth the accused confessed to their respective participation in the crime, although Feria alleged that he had simply held Perez and that it was

Velasquez who wounded him, while Velasquez on the other hand asserted that the contrary was the case. The testimony of the witnesses for the prosecution is corroborated by the testimony of the principal witness, Valentin Ramos. Ramos was an eyewitness to the beginning of the aggression, and both in the preliminary investigation and at the trial unhesitatingly identified Feria as the man who seized and held the deceased and Velasquez as the man who had pursued him. This witness had given the description of each one of the defendants before their arrest. It is therefore to be believed that the statements made by the defendants in the presence of the witnesses of the prosecution were true as alleged by these witnesses. Their subsequent statements can not prevail to overcome their former confession. The statement made by Feria that they testified under coercion can not be believed, as there is no evidence in support of it. Furthermore, bo proof exists as to the truth of the subsequent statement that Perez was killed by three other men unknown. The guilt of the defendants Feria and Velasquez as the authors, by direct participation, of the murder of Evaristo Perez is unquestionable. Apart from their confession in the justice's court of Jaen, which concurs with the testimony of the eyewitness, Valentin Ramos, the testimony of the accused themselves at the trial plainly demonstrates their-direct participation in the violent and treacherous killing of the policeman, Perez. The record discloses not the slightest evidence that any other persons participated in the commission of the crime. Another fact to be con- sidered is that the Colt revolver which the deceased was carrying was subsequently found in the possession of the defendant Francisco Donato, who received it from Velasquez, by whom this weapon was taken. In the commission of the crime no generic extenuating or aggravating circumstance is present. It was not sufficiently proven at the trial that the place where Perez was attacked was unpopulated, or that it was purposely selected for the execution of the crime. Neither does it appear that the long bolo taken from one of the defendants was a prohibited weapon, or that this bolo was really the instrument by which the crime was committed. Consequently the only circumstance which can be considered is the qualifying circumstance of treachery ( alevosia), which determines the classification and legal character of the crime committed. The fact that the deceased was at that time provided with a revolver is not an obstacle to the consideration of the concurrence of the circumstance of treachery ( alevosia), as it does not appear from the record that he was able to make use of this weapon, or that he defended himself with it, but on the contrary, it was fully demonstrated that by reason of the suddenness of the attack the deceased was from the beginning absolutely prevented from defending himself or from making an escape. The taking of the revolver which the deceased was carrying in his belt possibly constitutes the crime of theft, as it was effected at a time when its possessor was unconscious and in a dying condition. But this has not been made the subject of the information and therefore can not be passed upon in this decision. Nor can we determine the question of the guilt or innocence of the defendant Francisco Donato, acquitted by a judgment which, as to him, has become final. By virtue, therefore, of the reasons above stated, the penalty prescribed by article 403 of the Penal Code should be inflicted in its medium degree, and we are of the opinion that the judgment below should be reversed and that each one of the defendants, Juan Feria and Dionisio Velasquez, should be condemned to the penalty of life imprisonment ( cadena perpetua) with the accessories of civil interdiction and subjection to the vigilance of the authorities during their lifetime. Should they be pardoned as to the principal penalty they shall continue to suffer the penalties of perpetual disqualification and subjection to the vigilance of the authorities

during their respective lives, unless these accessories shall have been expressly remitted in the pardon of the principal penalty. They are also condemned to pay jointly and severally, an indemnity of 2,000 Mexican pesos to the heirs of the deceased, Perez, and to the payment each of one-half of the costs of this instance. All other rulings of the judgment appealed, with respect to the accused, the costs of the first instance, and the confiscation and disposal of the weapons, are affirmed. So ordered. Arellano, C.J., Hooper, Wlllard, Mapa, and Ladd, JJ., concur.

OSJurist.org

G.R. No. 1011, May 13, 1903

JOSE MACHUCA, PLAINTIFF AND APPELLEE, VS. CHUIDIAN, BUENAVENTURA & CO., DEFENDANTS AND APPELLANTS. D ECIS ION
LADD, J.: Most of the allegations of the complaint were admitted by the defendant at the hearing, and the judgment of the court below is based on the state of facts appearing from such admissions, no evidence having been taken. The defendants are a regular general partnership, organized in Manila, December 29, 1882, as a continuation of a prior partnership of the same name. The original partners constituting the partnership of 1882 were D. Telesforo Chuidian, Dona Raymunda Chuidian, Dona Candelaria Chuidian, and D. Mariano Buenaventura. The capital was fixed in the partnership agreement at 160,000 pesos, of which the first three partners named contributed 50,000 pesos each, and the last named 10,000 pesos, and it was stipulated that the liability of the partners should be "limited to the amounts brought in by them to form the partnership stock." In addition to the amounts contributed by the partners to the capital, it appears from the partnership agreement that each one of them had advanced money to the preexisting partnership, which advances were assumed as liabilities by the new partnership. These advances or accounts-current aggregated something over 665,000 pesos, of which sum about 569,000 pesos represented the advances from the Cluidians and the balance that from D. Mariano Buenaventura. Dona Raymunda Chuidian retired from the partnership November 4, 1885. On January 1, 1888, the partnership went into liquidation, and it does not appear that the liquidation had been terminated when this action was brought. Down to the time the partnership went into liquidation the accounts-current of D. Telesforo Chuidian and Dona Candeiaria Chuidian had been diminished in an amount aggregating about 288,000 pesos, while that of D. Mariano Buenaventura had been increased about 51,000 pesos. During the period from the commencement of the liquidation down to January 1, 1890, the account-current of each of the Chuidians had been still further decreased, while that of D. Mariano Buenaventura had been still further in creased. On January 1, 1894, D. Mariano Buenaventura died, his estate passing by will to his children, among whom was D. Vicente Buenaventura. Upon the partition of the estate the amount of the interest of D. Vicente Buenaventura in his father's account-current and in the capital was ascertained and recorded in the books of the firm. On December 15, 1898, D. Vicente Buenaventura executed a public instrument in which for a valuable consideration he "assigns to D. Jose Gervasio Garcia * * * a 25 per cent share in all that may be obtained'by whatever right or in whatever form from the liquidation of the partnership of Chuidian, Buenaventura & Co., in the part pertaining to him in said partnership, * * * the assignee, being expressly empowered to do in his own name, and as a part owner, by virtue of this assignment in the assets of the partnership, whatever things may be necessary

for the purpose of accelerating the liquidation, and of obtaining judicially or extrajudicially the payment of the deposits on account-current pertaining to the assignor, it being understood that D. Jose Gervasio Garcia is to receive the 25 per cent assigned to him, in the same form in which it may be obtained from said partnership, whether in cash, credits, goods, movables or immovables, and on the date when Messrs. Chuidian, Buenaventura & Co., in liquidation, shall have effected the operations necessary in order to satisfy the credits and the share in the partnership capital hereinbefore mentioned." The plaintiff claims under Garcia by virtue of a subsequent assignment, which has been notified to the liquidator of the partnership. The liquidator of the partnership having declined to record in the books of the partnership the plaintiff's claim under the assignment as a credit due from the concern to him this action is brought to compel such record to be made, and the plaintiff further asks that he be adjudicated to be a creditor of the partnership in an amount equal to 25 per cent of D. Vicente Buenaventura's share in his father's account-current, as ascertained when the record was made in the books of the partnership upon tlie partition of the latter's estate, with interest, less the liability to which the plaintiff is subject by reason of his share in the capital; that the necessary liquidation being first had, the partnership pay to the plaintiff the balance which may be found to be due him; and that if the partnership has no funds with which to discharge this obligation an adjudication of bankruptcy be made. He also asks to recover the damages caused by reason of the failure of the liquidator to record his credit in the books of the partnership. The judgment of the court below goes beyond the relief asked by the plaintiff in the complaint, the plaintiff being held entitled not only to have the credit assigned him recorded in the books of the partnership but also to receive forthwith 25 per cent of an amount representing the share of D. Vicente Buenaventura in the account-current at the time of the partition of his father's estate, with interest, the payment of the 25 per cent of Buenaventura's share in the capital to be postponed till the termination of the liquidation. This point has not, however, been taken by counsel, and Ave have therefore considered the case upon its merits. The underlying question in the case relates to the construction of clause 1$ of the partnership agreement, by which it was stipulated that "upon the dissolution of the company, the pending obligations in favor of outside1 parties should be satisfied, the funds of the minors Jose and Francisco Chuidian [it does not appear what their interest in the partnership was or when or how it was acquired] should be taken out, and afterwards the resulting balance of the accountcurrent of each one of those who had put in money (imponentes) should be paid." Our construction of this clause is that it establishes a basis for the final adjustment of the affairs of the partnership; that that basis is that the liabilities to nonpartners are to be first discharged; that the claims of the Chuidian minors are to be next satisfied; and that what is due to the respective partners on account of their advances to the firm is to be paid last of all, leaving the ultimate residue, of course, if there be any, to be distributed among the partners in the proportions in which they may be entitled thereto. Although in a sense the partners, being at the same time creditors, were "outside parties," it is clear that a distinction is made in this clause between creditors who were partners and creditors who were not partners, and that the expression "outside parties" refers to the latter class. And the words "pending obligations," we think, clearly comprehend outstanding obligations of every kind in favor of such outside parties, and do not refer merely, as claimed

by counsel for the plaintiff, to the completion of mercantile operations unfinished at the time of the dissolution of the partnership, such as consignments of goods and the,like. As respects the claims of the Chuidian minors, the suggestion of counsel is that the clause in question means that their accounts are to be adjusted before those of the partners but not paid first. Such a provision would have been of no practical utility, and the language usedthat the funds should be "taken out"(se dedujeran ) does not admit of such a construction. Such being the basis upon which by agreement of the partners the assets of the partnership are to be applied to the discharge of the various classes of the firm's liabilities, it follows that D. Vicente Buenaventura, whose rights are those of his father, is in no case entitled to receive any part of the assets until the creditors who are nonpartners and the Chuidian minors are paid. Whatever rights he had either as creditor or partner, he could only transfer subject to this condition. And it is clear, from the language of the instrument under which the plaintiff claims, that this conditional interest was all that D. Vicente Buenaventura ever intended to transfer. By that instrument lie undertakes to assign to Garcia not a present interest in the assets of the partnership but an interest in whatever "may be obtained from the liquidation of the partnership," which Garcia is to receive "in the same form in which it may be obtained from said partnership," and "on the date when Messrs. Chuidian, Buenaventura & Co., in liquidation, shall have effected the operations necessary in order to satisfy" the claims of D. Vicente Buenaventura.. Upon this interpretation of the assignment, it becomes unnecessary to inquire whether article 143 of the Code of Commerce, prohibiting a partner from transferring his interest in the partnership without tin; consent of the other partners, applies to partnerships in liquidation, as contended by the defendant. The assignment by its terms is not to take effect until all the liabilities of the partnership have been discharged and nothing remains to be done except to distribute the assets, if there should be any, among the partners. Meanwhile the assignor, Buenaventura, is to continue in the enjoyment of the rights and is to remain subject to the liabilities of a partner as though no assignment had been made. In other words, the assignment does not purport to transfer an interest in the partnership, but only a future contingent right to 25 per cent of such portion of the ultimate residue of the partnership property as the assignor may become entitled to receive by virtue of his proportionate interest in the capital. There is nothing in the case to show either that the non-partner creditors of the partnership have been paid or that the claims of the Chuidian minors have been satisfied. Such rights as the plaintiff has acquired against the partnership under the assignment still remain, therefore, subject to the condition which attached to them in their origin, a condition wholly uncertain of realization, since it may be that the entire assets of the partnership will be exhausted in the payment of the creditors entitled to preference under the partnership agreement, thus extinguishing the plaintiff's right to receive anything from the liquidation. It is contended by the plaintiff that, as the partnership was without authority to enter upon new mercantile operations after the liquidation commenced, the increase in D. Mariano Buenaventura's account-current during that period was the result of a void transaction, and that therefore the plaintiff is entitled to withdraw at once the proportion of such increase to which he is entitled under the assignment. With reference to this contention, it is sufficient to say that it nowhere appears in the case that the increase in D. Mariano Buenaventura's account-current during the period of liquidation was the result of new advances to the firm, and the figures would appear to indicate that it resulted from the accumulation of interest.

Counsel for the plaintiff have discussed at length in their brief the meaning of the clause in the partnership agreement limiting the liability of the partners to the amounts respectively brought into the partnership by them, and the effect of this stipulation upon their rights as creditors of the firm. These are questions which relate to the final adjustment of the affairs of the firm, the distribution of the assets remaining after all liabilities have been discharged, or, on the other hand, the apportionment of the losses if the assets should not be sufficient to meet the liabilities. They are in no way involved in the determination of the present case. The plaintiff having acquired no rights under the assignment which are now enforceable against the defendant, this action can not be maintained. The liquidator of the defendant having been notified of the assignment, the plaintiff will be entitled to receive from the assets of the partnership, if any remain, at the termination of the liquidation, 25 per cent of D. Vicente's resulting interest, both as partner and creditor. The judgment in this case should not affect the plaintiff's right to bring another action against the partnership when the affairs of the same are finally wound np. The proper judgment will be that the action be dismissed. The judgment of the court below is reversed and the case is remanded to that court with directions to enter a judgment of dismissal. So ordered. Arellano, C, J., Torres, Cooper, Willard, and Mapa, JJ., concur. McDonough, J., did not sit in this case.

OSJurist.org

G.R. No. 1012, February 19, 1903

THE UNITED STATES, COMPLAINANT AND APPELLEE, VS. ISABELO DINSING ET AL., DEFENDANTS AND APPELLANTS. D ECIS ION
WILLARD, J.: We find from evidence that the defendants Isabelo Dinsing and Vicente Chaves killed Juan Oyoa in the manner described in the complaint. In our opinion they are both principals in the crime. Where several men take part directly in the execution of the act they are all principals under article 13 of the Penal Code, although they may have acted under the direction of one of their number as leader. he amended complaint complying with article 6, 2 of General Orders, No. 58, designates the offense as homicide and complying with 3 of the same article states facts which show it to be murder. Under such a complaint we have held that the defendant can not be convicted of the latter offense. That the act was committed at night is to be taken into consideration as an aggravating circumstance and the penalty must be imposed in its maximum degree. The judgment of the court faelow is modified and we find the defendants Isabelo Dinsing and Vicente Chaves guilty as principals of the crime of homicidio with an aggravating circumstance and sentence them to punishment of twenty years of reclusion temporal with accessories and indemnity of 1,000 pesos to the heirs of the deceased and to pay the costs of this appeal and two-thirds of the costs of the first instance. So ordered. Arellano C. J., Torres, Cooper, Mapa, and Ladd, JJ., concur.

OSJurist.org

G.R. No. 1013, April 08, 1903

THE UNITED STATES, COMPLAINANT AND APPELLEE, VS. SIMPLICIO SENSANO, DEFENDANT AND APPELLANT. D ECIS ION
COOPER, J.: The defendant, Simplicio Sensano, is charged with the embezzlement of public funds, alleged to have been committed in the following manner: That the defendant, being the municipal treasurer of the town of Rosales, Province of Pangasinan, in the month Df February, 1902, withdrew, with intent to appropriate to his own use, from the municipal safe then in his charge $320, which constitutes the offense of embezzlement of public funds denned and punished under article 390, No. 2, of the Penal Code. He was tried and found guilty of the embezzlement of $320, and sentenced by the court of Pangasinan to imprisonment at hard labor for the period of three years and two months. From this judgment he appeals. John Douglas, a witness for the prosecution, testified that he was deputy treasurer of the Province of Pangasinan, and as such was sent to check up the cash and the accounts of the defendant as treasurer of Rosales. That he arrived at Ro^iles about 5 o'clock in the afternoon and immediately proceeded to make an examination of the municipal safe then in charge of the defendant; that he started to count the cash and before he had finished the defendant stopped him, saying, "Wait a minute; I gave my brother a check for $166.66 to have it cashed in Lingayen, but he has not returned the check or its equivalent in cash;" that in the presence of the defendant he proceeded to finish counting the cash and found $1,155.01; that he did not open any of the packages which were marked as containing certain amounts because it was getting dark, and he arranged with the defendant that the count should be made the next morning at the presidencia, at which time the defendant promised to produce the cashbook pertaining to his office; that on leaving the presidencia that evening he locked and sealed the cash box after placing the money back in the box; that the cash box was not again opened until the 4th of February, when he opened it for the purpose of cashing a school-teacher's check of $174.90; that he took this amount from the safe and replaced the money with this check; that he then locked and sealed up the safe and did not open it again until the 10th day of February. That the defendant left Rosales the next morning after his arrival about 7 o'clock, and never appeared, as promised, to make the count of the money contained in the safe or to produce his books. That on the 10th day of February the witness recounted the money in the presence of other parties, the defendant not being present. That on this counting of the money the witness found $1,033 contained in the safe. That he opened the packages which were said to contain $40, and found some half pesos mixed in with the pesos in such a way that many of the packages had the appearance of containing $40 each, when in fact they contained less; that the discrepancy between the count made on the 1st day of February of $1,155.01 and that made at this date, to wit, $1,033, was due to the fact that the packages did not contain the full amount represented. That at this time he actually counted the money, peso by peso, and knows that this counting was correctly done. Previous to making the last count of the money he had examined the books of the defendant and found that there should have been $1,303 in the cash

box; that two native teachers presented themselves to him, while he was in charge of the office, requesting payment of $30 and $20, respectively, which appeared from the books of the treasurer as having been paid, but which, as stated by them, was never received. The difference between the amount shown to be due on the books of the treasurer, to wit, the sum of $1,303.40 and the amount of $1,033, as found in cash in the safe, is a difference of $270.40; that adding the $50 shown on the books of the treasurer as paid to the two native teachers, but which was paid by the witness, brought the difference up to $320.40. The witness Douglas also testified that between the 10th of February, the date on which he made the last count of the money, and the 23d day of February, the date on which he again locked and sealed the safe and turned the key over to the provincial treasurer of Pangasinan, he was in possession of the safe and made various collections due the office of the municipal treasurer of Rosales amounting to the sum of $64. This sum, together with the amount of $1,033, Avas the amount in the safe on the 23d day of February, when he sealed and locked it, and turned the key over to the provincial treasurer. This was substantially the proof of the Government. The defendant introduced evidence to show that between the 1st day of February and the date of Douglas's leaving Rosales, to wit, the 23d day of February, he requested Douglas several times, through other parties, to make a recount of the money and to give him an inventory of the property received from him. This, according to the testimony of defendant's Avitnesses, Douglas refused to do. There were discrepancies on many immaterial points in the case and some proof offered tending to show that the safe was not sealed and locked for the entire time between the 1st of February and the 10th of February, the respective dates on which the witness Douglas made a count of the money. The case was tried and the defendant was sentenced on the 28th day of May, 1902. On the 27th day of August, 1902, the case then being on appeal in this court, the defendant moved this court for a new trial on the ground of newly discovered evidence. This motion is supported by notarial act of date the 9th day of June, 1902, in which act it is stated that the treasurer who was appointed as successor to defendant took possession of the safe on the 9th day of June and in the presence of several persons then counted the money, and that the amount found in the safe on this counting was the sum of $1,348.23, which exceeded by $6.55 the amount shown to be due from the defendant to the municipality by the books of the treasurer, after deducting the $64 placed in the safe by Douglas; that at the time of opening the safe the seal appeared to be unbroken. The motion does not state that the safe was not in charge of the defendant after the 1st day of February, the date on which he was removed from the office and possession was taken by the witness Douglas, nor was there any proof tending to show that the defendant had access to the safe, nor that any other person had such access other than the witness Douglas or the provincial treasurer who was in possession of the keys. In view of the fact that the defendant did not have the power to make the examination after the safe left his possession up to the date of his trial, we think it just and proper that he should have an opportunity of presenting the proof as to what the safe contained when delivered on the 9th of June to his successor.

The Government will also have the opportunity of showing, if it can he done, that the seal of the safe had been broken, or such circumstances as will prove that the safe was accessible to the defendant or to other persons from the 23d day of February up to the date of the opening of the safe on the 9th day of June. The judgment of the court below is set aside and a new trial awarded in the Court of First Instance. The testimony in the case to the effect that the defendant's books contained an entry showing that the sums of $20 and $30, respectively, had been paid to the two native teachers, when in fact no such payments had been made, if substantiated, would show the defendant to be guilty of a greater offense than that charged in the complaint, to wit, that of the falsification of an official document, defined and punished under article 301 in connection with article 300 of the Penal Code. The judgment is reversed and a new trial ordered, with costs de oficio. Arellano, C. J., Torres and Mapa, JJ., concur.

CONCURRING IN THE RESULTS OF THIS OPINION WILLARD AND LADD, JJ.: It was plainly proved in this case by the testimony of Douglas that he went to Kosales for the purpose of removing the defendant from his office of municipal treasurer. He carried with him an order from the provincial treasurer for such removal, delivered it to the defendant as soon as he arrived at Rosales, and demanded and then received from the defendant the key to the safe. The defendant was not removed because of any irregularity in his accounts, but, as Douglas testified, because he had kept the municipal safe in a place other than the presidencia. Douglas testified also that he had examined the accounts on the 7th of January preceding, and found them correct. Douglas took possession of the safe, not for the purpose of examin- ing the accounts but because the treasurer had been removed. Four witnesses for the defendant testified that they were present when Douglas removed the defendant from office and received the key, and that the defendant then demanded that Douglas count the cash and make an inventory of the property then turned over to him, and that Douglas refused to do it. Miller, an American school-teacher, a witness for the Government, testified that the defendant on the day that he was removed from office came to him and begged him to get Douglas to recount the money. The witness asked Douglas to do this and the latter refused. The justice of the peace testified that five or six days after his (the defendant's) removal from officevthe defendant came to him and asked him to intercede with the commander of the American troops, there stationed in order to get Douglas to recount the money and make an inventory. It is proved that Douglas never made an inventory of the property turned over to him by the defendant, and never gave the defendant any kind,of a receipt for anything which he received

from him. Douglas admitted that he iiever even informed the defendant of the exact amount of the deficit claimed by him, and when he, first saw the defendant after its alleged discovery he never mentioned it. The circumstances relating to the charge of falsification in connection with the payment of the two school-teachers rests entirely upon the testimony of Douglas, and even his testimony does not indicate that the defendant personally made any false entries in his books. I do not think the evidence of Douglas sufficient to warrant any prosecution against the defendant for falsification. I agree that a new trial should be granted.

OSJurist.org

G.R. No. 1014, May 09, 1903

THE UNITED STATES, COMPLAINANT AND APPELLEE, VS. MANUEL REPOLLO ET AL., DEFENDANTS AND APPELLANTS. D ECIS ION
COOPER, J.: The defendants, Manuel Repollo, Candido Repollo, Bruno Dolor, and Florencio Nicolas, are charged with the murder of Basilio Limon, committed in the month of November, 1899. They were convicted by the Court of First Instance of the Province of Pangasinan on the 24th day of May, 1902, and each sentenced to the penalty of death. From this sentence they have appealed. On the 23d day of December, 1902, after the cause had been transferred to this court, the defendants presented a motion for a new trial, alleging that they were entitled to the benefits of the amnesty proclamation issued by the President of the United States on the 4th day of July, 1902, and in support of their application presented certain affidavits made by each of them. The affidavit of Manuel Repollo states that on the date of the killing of the deceased he belonged to the Katipunan government and was a member of the town council of the barrio of San Juan; that the defendants Candido Bepollo (bis brother), Florencio Nicolas, and Bruno Dolor also belonged to the Katipunan government; that affiant has been sentenced to death for participating in the murder of Basilio Limon; that the death of the said Basilio Limon occurred in the following manner: On a night in the month of November, 1899, on the arrival of the American soldiers at his town, one Francisco Cabe and Insiong Prado, who belonged to the insurrecto army, came to his house and said to him: "Do you know there is a spy in the barrio?" He answered, "No." They said that the spy lived near affiant's house, and that affiant should call his companions to seize him; that it was an order of his superior and for that reason he went to call the assistance of the defendants Candido Repollo, Bruno Dolor, and Florencio Nicolas; that Francisco Cabe and Insiong Prado remained at the house of affiant while they went to the house of the deceased Basilio Limon; that when they reached the house they caused the deceased to come downstairs and then manacled him and carried him off to where the said Francisco Cabe and Insiong Prado were awaiting them; that Francisco Cabe and Insiong Prado said, "Let us go behind your house;" that they went there, leading the deceased; that Francisco Cabe and Insiong Prado then commanded them to retire to their houses and notified them to be careful not to relate to anybody what had taken place; that Cabe and Prado then killed Basilio Limon; that there were four soldiers armed with guns and fifteen men armed with bolos who accompanied affiant to the house of Basilio Limon, the deceased, when he went to seize him; that the reason for the killing of Basilio Limon, as stated by Insiong Prado and Francisco Cabe, was because he was a spy of the Americans and was going tc inform the Americans of the place where the insurrectos were stationed; that Insiong Prado was afterwards captured and hung by the Americans; that Francisco Cabe is also dead, he having died by the garrote vil. The affidavits of the defendants Candido Repollo, Florencio Nicolas, and Bruno Dolor are

substantially to the same effect, each of them stating that he was a member of the Katipunan society, and admitting their connection with the murder of the deceased and relating the circumstances of the killing of the deceased for the cause and in the manner mentioned by Manuel Repollo. It was shown at the trial below that the defendants went to the house of the deceased, commanded him to come downstairs, and manacled and carried him off. The decapitated body of the deceased was found a short distance from ids house, his head being about 300 feet from where his body lay. The defendants were neighbors of the deceased; had known him for a number of years, and no ill feeling was known to exist between them, nor does any motive appear for the killing of the deceased unless it can be inferred from the fact that after the killing the deceased's wife went to the house of the defendant Manuel Kepollo and there lived with him until the complaint was filed against them. Two of the defendants, Candido Repollo and Floreucio Nicolas, were godfathers of the children of the deceased. An investigation of the record in the case indicates a strong probability that the motive for the killing was of a political character, and resulted from internal political feuds or dissensions among the Filipinos during the insurrection. If so, the otfense comes within the provisions of the amnesty proclamation. By the provisions of section 42 of General Orders, No. 58, the defendant may move, either in the court in which the trial was had or in this court, after the appeal here, for a reopening of the case upon the ground of newly discovered evidence material to his defense. While this motion is not based strictly on newly discovered evidence, yet it is based upon the existence of testimony which was not material at the time of the trial in the court below, but which has become of vital importance to the defendants by reason of the amnesty proclamation of the President. The proof, such as is contained in the affidavits, if made on the trial below, would have been no defense in the case. But if the trial had occurred subsequent to the issuance of the proclamation, the same proof, if believed, would have entitled the defendants to an acquittal. Unless a new trial is granted, no opportunity will be given defendants to avail themselves of this defense, and the judgment must consequently be affirmed, notwithstanding they may have a valid defense if an opportunity is afforded them to make it. We think that the application comes within the spirit of the provisions of section 42 of General Orders, No. 58, and that justice requires that a new trial should be granted. The judgment will be set aside, and the* cause remanded to the Court of First Instance for a new trial. Costs of this instance is adjudged de oficio. It is so ordered and directed. Torres, Mapa, and Ladd, JJ., concur. McDonough, J., did not wit in this case.

DISSENTING WILLARD, J., with whom concurs ARELLANO, C.J.: I dissent. The motion for a new trial was made under section 42 of General Orders, No. 58, and solely on the ground of newly discovered evidence. Unless the evidence set out in the affidavits is newly discovered we have no power to grant a new trial. At the trial below the defendants testified us witnesses, denied all participation in the act charged, and attempted to prove an alibi. In the affidavits now presented they say that they did take part in the act under the orders of their superiors. When they testified at the trial they must have known what the facts were. The present change1 in their testimony can not possibly be newly discovered evidence.

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G.R. No. 1015, May 14, 1903

THE UNITED STATES, COMPLAINANT AND APPELLEE, VS. CANDIDO REPOLLO ET AL., DEFENDANTS AND APPELLANTS. D ECIS ION
COOPER, J.: The defendants, Candido Repollo, Manuel Repollo, Julian Repollo, and Bruno Dolor, are charged with the murder of Proceso Vallesteros, committed on the night of the 16th of May, 1902, and each has been sentenced to the penalty of death. From this sentence they have appealed. On the 23d day of December, 1902, after the cause had been transferred to this court, the defendants presented a motion for a new trial, alleging that they were entitled to the benefits of the amnesty proclamation issued by the President of the United States on the 4th day of July, 1902, and in support of their application presented this covirt certain affidavits made by each of them. The affidavits of Manuel Repollo states that on the date of the killing of the deceased lie was a member of the Katipunan, and also one of the councilors of the barrio of Han Manuel; that the defendants Candido Repollo, Julian Repollo, and Bruno Dolor also accompanied him on the night in question, as well as several individuals and soldiers armed with bolos under the command of one Agustin Alejo. That on the night of the 17th of December, upon the arrival of the American troops, Agustin Alejo, captain of insurrectos, came to his house and told him to call the soldiers together for the purpose of seizing Proceso Vallesteros; that in view of Alejo's rank in the insurgent forces he was obliged to obey his orders. That the captain said, "Let us go," and he followed with his soldiers and eight individuals armed with bolos, going to the house of Proceso Vallesteros; that when they arrived at the foot of the staircase of the house of the deceased, the captain, who remained outside of the lot, commanded them to order Proceso Vallesteros to come down stairs; that he came down, and the captain then ordered him to take Vallesteros outside, but that the deceased refused to follow. That they informed the captain, and he said, "Kill him," and the three1 soldiers and the eight individuals armed with bolos killed him. That they killed the deceased because the captain (Alejo) said he was a spy of the Americans, and was the party who had indicated the place of the barrio where the insurrectos were located. That by order of Captain Alejo the body was dragged out into the street, and that the captain then said, "Now you can go, but take care that nobody hears of what's happened, because if it reaches my knowledge that I'm prosecuted for having killed this individual I'll kill you also." The affidavits of the defendants Candido Repollo and Bruno Dolor are substantially to the same effect, each of them stating that he was a member of the Katipunan Society and admitting their connection with the murder of the deceased and stating the killing as mentioned by Manuel Repollo. Candido Repollo stated that he is a brother of Manuel Repollo, and Bruno Dolor declared that Agustin Alejo, the captain, was executed by the Americans in the pueblo of Binalonan, It was shown at the trial below that the defendants came to the house of the deceased and commanded him to come down stairs, and that upon doing so they stabbed him with their bolos

at the foot of the ladder, after which they dragged the body into the street where they left it. It does not appear from the record that any ill feeling was known to exist between them, nor is there any motive for the killing of the deceased other than the fact that it is stated he was a spy of the Americans. There is a strong probability of the killing being of a political character, resulting from internal political feuds or dissensions among the Filipinos during the insurrection. While this motion for a new trial is not based upon strictly newly discovered evidence, yet it is based upon testimony which was not material at the time of the trial in the court below, but has become of vital importance to the defendants by reason of the amnesty proclamation of the President. This case is very similar to the case of the United States vs. Manuel Repollo, Candido Repollo, Bruno Dolor, and Florencio Nicolas,[1 ] in which we have decided that the defendants, under the provisions of section 42 of General Orders, No. 58, should be granted a new trial, and for the reasons stated'in the opinion in that case we set aside the judgment, grant a new trial to the defendants, and remand the case to the Court of First Instance for a new trial, with costs de oficio. Torres, Mapa, and Ladd, JJ., concur.

[1] Page 195, supra .

DISSENTING WILLARD, J., with whom concurs ARELLANO, C. J.: For the reasons stated in the case of The United States vs. Manuel Repollo I dissent. McDonough, J., did not sit in this case.

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G.R. No. 1016, January 16, 1903

THE UNITED STATES, COMPLAINANT AND APPELLEE, VS. CATALINO VERGARA, DEFENDANT AND APPELLANT. D ECIS ION
LADD, J.: The appellant has been convicted of asesinato in the Court of First Instance of Pangasinan, and sentenced to death. He now asks that he be declared entitled to the benefit of the amnesty offered by the President's proclamation of July 4 last, and the Solicitor-General is conformable to the granting of the petition. For the purpose of passing upon the petition we assume that the guilt of the petitioner has been sufficiently proved. The case presented will then be as follows: The petitioner in March, 1900, was understood to be the president of the pueblo of Mangatarem, in the Province of Pangasinan, under the Filipino revolutionary government. Some time in that month he either himself killed or caused to be killed, under circumstances which are not disclosed by the evidence, two unknown persons, who were suspected of being spies of the Americans. Though there is no direct evidence to that effect, we think it may be fairly inferred that these persons were native Filipinos. We regard it as a conclusion which may be legitimately drawn from such facts as appear in the case that they were put to death solely because they favored the Americans or had rendered services to the American Army. There is no evidence tending to show that the petitioner, in putting these persons to death, acted under the orders of any superior authority. The President's proclamation grants an amnesty "for the offenses of treason and sedition, and for all offenses political in their character committed in the course of such insurrections [that against the Kingdom of Spain and that against the Government of the United States]pursuant to orders issued by the civil or military insurrectionary authorities, or which grew out of internal political feuds or dissensions between Filipinos and Spaniards or the Spanish authorities, or which resulted from internal political feuds or dissensions among the Filipinos themselves during either of said insurrections." The amnesty covers, then, three classes of offenses, namely, (1) purely political crimes, compendiously described in the proclamation as "treason and sedition," (2) common crimes "political in their character" that is, committed in furtherance of the interest of the insurrection, if committed pursuant to orders from superior authority, and (3) crimes which are shown to have had their origin in the two classes of "internal political feuds or dissensions" named, without reference to whether they are in their nature political or common crimes, or common crimes of a political character, and without reference to whether they were committed under orders of a superior authority or not. The present case clearly falls outside of both the first and second of these categories. The question to be decided is whether it is embraced within the third. The phrase "internal political feuds or dissensions among the Filipinos themselves" is somewhat

vague and indeterminate, and hence not free from obscurity. It is necessary to attach some meaning to it, and that meaning must not be a narrow and restricted one, repugnant to the nature of the proclamation, which as an act of grace should, where the language admits of doubt, be construed in accordance with the rule favorabilia sunt amplianda. The most wide-reaching and significant of the internal political dissensions by which the Filipinos were divided among themselves during the recent insurrection was that which separated those who resisted from those who supported the Government of the United States. It is well known that many of the latter class were murdered by their fellow-countrymen on account of their political sympathies. We see no sufficient ground upon which to hold that the author of the proclamation intended to exclude these and similar crimes from the scope of the amnesty, while including crimes which had their origin in minor feuds or dissensions between opposing factions of insurgents or between those Filipinos who favored forcible resistance to the United States Government and those who advocated the attainment of independence by peaceable agitation. In the case of United States vs. Isidro Guzman, and others, decided October 10, 1902, the petitioners, Isidro and Joso Guzman, had been convicted of the murder of Piera, a Spanish lieutenant, held by the insurgents as a prisoner of war, the motive of the crime having been purely one of personal hatred engendered by the action which Piera had taken about a year previously as juez instructor in a military prosecution of a political character against the petitioner's father. We held in that case that the crime was one which grew out of "internal political feuds or dissensions between Filipinos and Spaniards or the Spanish authorities" within the meaning of the proclamation. We are not disposed to enlarge the meaning of the phrase in question where the feud or dissension is between Filipinos and Spaniards and limit it where only Filipinos are concerned. In United States vs. Catalino Ortiz and others, decided November 4, 1902, a Filipino charged with being a spy of the Americans was put to death by the petitioners, who were members of an insurgent force. In that case it appeared that the petitioners were acting under orders of superior authority, and our holding that they were entitled to the benefit of the amnesty might well have been rested exclusively upon that ground, but in the opinion of the court by Torres, J., it is said that the "murder in question has a political character, and was the result of political hatred or of dissensions of that nature among Filipinos." In United States vs. Marcelo de Guzman, decided November 11, 1902, the petitioner, a captain in the insurgent army caused Pelagio Bonifacio to be put to death as a spy of the Spaniards. The petitioner testified that he had received direct orders from his superior in command to put Bonifacio to death. In the opinion of the majority of the court by Cooper, J., it is said: "This statement as to the defendant having received direct orders from Vicente Prado for the execution of the deceased is not borne out by the testimony of the witnesses,who state that no sooner had the deceased been brought in the presence of the defendant than the deceased was struck by the defendant and ordered to be taken off and shot." "However, it appears beyond doubt that the commission of the offense was done by the defendant as an officer in the insurgent army, and that it grew out of internal political feuds and dissensions between Filipinos and Spaniards, or out of the political feuds and dissensions among the Filipinos themselves during the Spanish insurrection," and the decision granting the amnesty would appear to be placed on that ground. It is true that there was evidence in that case that Prado had directed the petitioner "to look out for a spy in the pueblo of Binmaley, and when

found to have him executed," and the minority of the court were of opinion that, relying upon this evidence, the case should be regarded as that of a crime of a political character committed pursuant to orders of a superior authority. Although neither the Ortiz case nor the Marcelo de Guzman case can perhaps be regarded as a direct authority for the granting of the present petition, we are not inclined to recede from the views expressed in those cases, which we think are in accord with a sound interpretation of the proclamation. The petitioner is accordingly declared to be entitled to the benefit of the amnesty, and will be discharged upon filing the required oath, with,costs de oficio. Arellano, C. J., Torres, Cooper, and Mapa, JJ., concur. Willard, J., dissenting.

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G.R. No. 1018, February 17, 1903

THE UNITED STATES, COMPLAINANT AND APPELLEE, VS. IGNACIO CRUZ, DEFENDANT AND APPELLANT. D ECIS ION
TORRES, J.: The evidence shows that the defendant and two other members of the Insular Police entered the house where Antonia Evangelista, a girl of 17 years of age, lived with her grandmother, Carmen Tayag, at about 7 o'clock in the evening of the 30th of March, 1902, in search of the girl's father, who was at that time in Manila. The defendant and his companions took Carmen downstairs and tied her to a "chico" tree, went upstairs where the girl Antonia had been left alone, and the three assailants then ravished her in succession, having stretched her upon the floor and stuffed a handkerchief into her mouth so as to prevent her from calling for help. The foregoing facts were corroborated by the witness Carmen Tayag and by Nicolasa Cruz, a neighbor of the injured party, who, from the window of her house, saw the girl Antonia in the hands of two men inside of the house where the occurrence took place, and shortly after heard the voice of the girl who was crying for help. Her cries were also heard by Paula Cruz, a relative of the victim, who lived near by. She came out of her house and unsuccessfully attempted to prevent the assailants from taking the girl Antonia away. The latter was carried to the barrio of Sucat and there, according to the testimony of the accused, who pleaded not guilty, she was again ravished by three other policemen. These facts, as established by the testimony of creditable witnesses and the damaging evidence furnished by the statements of the defendant, constitute the crime of rape defined and punished under article 438 of the Penal Code, inasmuch as the accused, in order to outrage the girl, used violence and intimidation, having been further aided by two others who, like himself, were armed with guns, they being members of the Insular Police. The defendant heard the evidence of the complaining witness, who stated in her testimony that she knew the accused because he was a resident of the same town and gave a full account of the occurrence, and asked the girl if she was not mistaken in what she had stated to the court, to which she replied that all that she had testified to was true. The accused then testified that he did not rape the girl at all, but that the two constables, Catiple and Luis, did. He also stated that she was not raped at her house, but at the barrio of Sucat, where she was ravished by the two policemen already mentioned, one Batunbacal and Corporal Tagayum. These statements, in connection with those of the witnesses who either saw or heard of the occurrence and who also heard the noise caused by the struggle between the assailants and the victim, as well as the cries of the latter, prove conclusively the guilt of the accused, who was unable to present any exculpative evidence or adduce any in his defense. In the commission of the offense in question there must be appreciated the attendance of the aggravating circumstance No. 20 of article 10 of the Penal Code, there being no mitigating circumstances to be considered, as the offense was committed in the dwelling of the injured party, and without provocation. The adequate penalty must therefore be imposed in the minimum grade of the maximum degree. For the reasons stated the judgment should, in our opinion, be reversed and the defendant

sentenced to seven-teen years four months and one day of imprisonment, and to suffer the corresponding accessory penalty of temporary absolute disqualification, being subject to the surveillance of the authorities during his term of confinement and for a like period after the expiration thereof. Defendant shall pay to the injured party an indemnification in the amount of 300 Mexican pesos, being further obliged to recognize the issue that may be born, if its origin should not be a bar thereto, to support the same, and to pay the costs of this appeal. The judge, upon the filing of the necessary information for the five other crimes of rape enumerated on page 28 of the record, shall proceed in each case according to law. So ordered, Arellano, C. J., Cooper, Willard, Mapa, and Ladd, JJ., concur.

OSJurist.org

G.R. No. 1021, March 14, 1903

THE UNITED STATES, COMPLAINANT AND APPELLEE, VS. FRANCISCO LESCANO, DEFENDANT AND APPELLANT. D ECIS ION
COOPER, J.: Francisco Leseano is charged with the offense of theft committed in the following manner: That Don Ramon Panlilio left in his carromata upon quitting it at the porch of his house a case of surgical instruments valued at 1200 pesos, and that the defendant, who was his cochero, appropriated them to his own use, and also carried off a pair of lamps from the vehicle of the value of 60 pesos. The defendant was found guilty of the charge and convicted by the Court of First Instance of Pampanga of the theft of an amount exceeding 250 pesetas, and was sentenced to the punishment of four years and three months of presidio correccional with accessories, and to the restitution to Don Ramon Panlilio of the stolen articles or to the payment of 210 pesos, the value of the same, and in case of his insolvency to subsidiary imprisonment as provided by article 50 of the Penal Code. He appeals from this judgment. The circumstance that the defendant was a domestic at the time of the commission of the offense was applied in raising the penalty to the next higher degree than that prescribed in articles 517 and 518 of the Penal Code. The evidence shows that Don Ramon Panlilio was at the time of the commission of the offense living with his aunt, Dona Maria Santos, as one of the family, the defendant then being in the employ of Sefiora Santos. It appears from the testimony of Don Ramon Panlilio that in the month of August of last year he made a professional call and was driven by the defendant in a carromata to attend it. That on returning home he forgot the case of instruments, leaving it upon the seat of the carromata; that about an hour afterwards he remembered he had left the case of instruments in the carromata and called to the cochero to bring it to him; that the cochero had gone off and that the case of instruments had disappeared. The case of instruments was worth 200 pesos. He also noticed that the lamps were missing from the carromata, which were of the value of 60 pesos. The defendant left Bacolor for Manila and did not return for several months. Amado Gutierrez, a witness for the prosecution, testified that, he was acquainted with the defendant, having known him as an employee of Dona Maria Santos and in the employ of his sister, Dona Maria Rodriguez; that some time about midday on a day in August the defendant passed in front of witness's house carrying a case of instruments which he recognized as belonging to D. Ramon Panlilio; that he paid no further attention to it because he knew that the defendant was the cochero of Panlilio. That the street in which the defendant was seen by the witness was the road which leads to Guagua where the steamer is taken; that the defendant carried the case of instruments in his right hand; that the defendant was traveling on foot and alone, Andres Panlilio testified that while in a drug store he saw the defendant pass carrying two

lamps in his hand and a case of surgical instruments. He heard a few days afterwards of the loss of the instruments by Senor Panlilio, and then he told that he had seen the cochero pass carrying the lamps and the case. The prosecution introduced other testimony in the case tending to show the loss of the case of instruments and the disappearance of the defendant at the time. The evidence in support of the defense was confined to the proof of an alibi. There can be no doubt that the defendant, Lescano, was at the date of the loss of the articles mentioned in the employ of Dona Maria Santos, and that he disappeared at the time the articles were missing. It will he unnecessary therefore to consider further the character of the testimony in support of the alibi. Objections are made by the attorney for the defense to the answers of certain witnesses in the case to the effect that they supposed that the defendant was guilty of the crime, and to other statements made by them of a hearsay character considered by the court below. The testimony of the witnesses Ramon Panlilio, Amado Gutierrez, and Andres Panlilio is sufficient to establish the guilt of the defendant without regard to the evidence to which objection is made. The admission of this evidence was harmless error. The judgment of the Court of First Instance is affirmed, and the costs of appeal is adjudged against the defendant. Arellano, C. J., Willard, Mapa, and Ladd, JJ., concur. Torres, J., did not sit in this case

OSJurist.org

G.R. No. 1024, April 03, 1903

THE UNITED STATES, COMPLAINANT AND APPELLEE, VS. TIMOTEO CANDELARIA ET AL., DEFENDANTS AND APPELLANTS. D ECIS ION
ARELLANO, C.J.: Five members of the Constabulary and three members of the municipal police of the town of Santa Rosa, in Nueva Ecija, having set out to look for Jacinto de Jesus, named by Antonio Mendoza as one of several men who had assaulted his house, located the said Jacinto in the vicinity of the town of Jaen, in the same province. Sergt. Alejandro de los Reyes, of the Constabulary, says that he found Jacinto de Jesus tied to a tree and in a very bad condition, as a result of a beating inflicted upon him by the three defendants, Salunday, of the municipal police of Santa Rosa, and the Constabulary men, Candelaria and Carandang. Three hours after he was untied Jacinto de Jesus died. A physician certified that he was covered with bruises from head to foot. The doctor stated that blows on the thorax probably caused the death. The testimony for the prosecution is convincing, and is supported even by the statements of the accused themselves. According to Alejandro Reyes (but testifying as to what he had heard the accused say), it appears that Jacinto de Jesus had tried to resist with one of the bolos which he was carrying, having made the motion of putting his hand to his belt or sheath. The witness says, however, that the deceased was carrying this bolo because he was cutting cane, and that the other bolo he had with him was a short une, about a span in length. Another member of the Constabulary there present testifies that Jacinto de Jesus threw himself into an attitude of resistance, as though about to draw his bolo, but the same witness affirms that Espiridion Salunday had ordered them to hang up Jacinto, and that after he was suspended he confessed that he had been kidnaped by some malefactors. So that either because he attempted to resist or for the purpose of forcing him to make some statement, the accused Avere guilty of the ill treatment which caused the death of Jacinto de Jesus. The court below condemned Espiridion Salunday and Timoteo Candelaria, as principals, to the death penalty, and Dionisio Carandang, as accessory, to fourteen years and nine months of cadena temporal. Dionisio Carandang was not a mere accessory. He also illtreated Jacinto de Jesus, as appears from the testimony of several witnesses. Although his participation was nothing more than that of having tied Jacinto de Jesus to the tree, such participation in the act would be that of a coprincipal. In tying Jacinto to a tree the three defendants acted treacherously ( alevosamente). Whether it was to prevent him from making resistance, whether it was to torture him for the purpose of making him give information, or whether it was for the purpose of inflicting further punishment, the fact is that by this means the defendants secured themselves against any risk which might have arisen from an attempt at self-defense on the part of the victim. We are of opinion that they had no intention to cause so great an evil as that which resulted, but this does not neutralize that, other qualifying circumstance of the resulting death, because if there was no aleviosa for the purpose of killing there1 was aleviosa for the purpose of ill-treating. The means employed were not made use of for the precise purpose of making certain the death of Jacinto de Jesus, but as a sate means of ill treating him without risk to the persons who were doing so.

If by this means the ill treatment was aggravated, it follows that it is a qualifying circumstance in the death which resulted. It was not a condition of the purpose, but it was a condition of the criminal act itself, in whatever sense this be taken. What we can not consider is the circumstance of extreme cruelty. The death of Jacinto de Jesus was not produced by any special, precise act done for the purpose of producing that result, as the violence and ill treatment, doubtless excessive, wen1 principally directed to extorting a confession or to the repression of an attempt at resistance, and it was only by these acts as a whole that the homicide resulted. Therefore in this case there is no starting point which permits us to determine which were the evils necessarily included in the commission of the crime, and which were only the result of a deliberate intent to increase the sufferings of the victim. (Decision of the supreme court of Spain of June 16, 1897.) Dionisio Carandang did not appeal from the judgment, by which he was condemned to fourteen years and nine months of cadena temporal, with the accessories of absolute temporary disqualification to the full extent, and to subjection to the vigilance of the authorities during the period of the penalty and for an equal period after the expiration thereof, and to pay, jointly and severally with the two other accused, the sum of 1,000 Mexican pesos to the heirs of the deceased, with a third part of the costs. This part of the judgment is final. With respect to the other accused, Espiridion Salunday and Timoteo Candelaria, this court applies as a mitigating circumstance the fact that they did not have, when inflicting this ill treatment, an intent to cause so great an evil as that which resultedthat is, the death of Jacinto de Jesus. This having been committed with alevosia the aleviosa with which the deceased was illtreated), the killing must be classified as murder. Notwithstanding the presence of alevosia, as the aggravating circumstance of extreme cruelty did not concur, the accused can not be condemned to death. We therefore condemn Espiridion Salunday and Timoteo Candelaria to seventeen years four months and one day of cadena temporal, with the accessories of absolute temporary disqualification in its full extent, and subjection to the vigilance of the authorities during the period of the principal penalty and for an equal period thereafter, beginning from the time of the expiration thereof, and to pay, jointly and severally, to the heirs of the deceased the sum of 2,000 pesos, and to pay one-third part of the costs each, the judgment of the court below being reversed in so far as it may be in conflict herewith, and being otherwise confirmed. So ordered. Torres, Cooper, Willard, Mapa, and Ladd, JJ., concur.

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G.R. No. 1025, March 06, 1903

THE UNITED STATES, COMPLAINANT AND APPELLEE, VS. BONIFACIO PLANA ET AL., DEFENDANTS AND APPELLANTS. D ECIS ION
LADD, J.: The appellants, Bonifacio Plana, Emigdio Yadao, and Romualdo Ines, have been convicted by the Court of First Instance of Ilocos Norte of robbery en cuadrilla. The private prosecutor is one Francisca Guerrero, a resident of Laoag, in Ilocos Norte. She testifies that on the evening of November 21, 1901, as she was traveling along the highway in a cart a little north of Sinait, in Ilocos Sur, accompanied by Monica Calong and Pedro Juan, the latter the driver of the cart, the party were overtaken in an uninhabited place called Santa Cruz in the pueblo of Badoc, in Ilocos Norte, by three men, armed with talibones, who compelled them to turn round and go back; that they had gone but a short distance in that direction when some thirty more men, armed with talibones and clasp knives, emerging from the bushes on both sides of the road, ordered them to get out of the part and compelled the witness by threats of death to disclose the fact that she had some money in a basket in the cart, which they thereupon opened and from which they took 200 pesos in Mexican silver, some pieces of cloth, and other articles. Monica Calong and Pedro Juan in substance give the same account of the occurrence, except that the latter says he was taken into the woods by the robbers, where he was kept under guard for about an hoi and so did not witness the actual rifling of the basket. There appears to be no sufficient reason to question the fact of the robbery as related by these witnesses, but as the participation of the appellants in the crime we are unable to free our minds from grave doubt. The private prosecutor says it was a clear, moonlig night, and that she recognized the appellants, all of whom she had known previously. It appears that she had be in Santa Catalina in Ilocos Sur just previously to be robbery, and was on her way to her home in Laoag when the robbery took place. She says she was sick for a week at Santa Catalina, and that during that time the appellant Plana made several visits at the house where she was stopping and that she bought a carriage and two hor from him for 120 pesos, of which she paid 100 pesos down; that the carriage was in Vigan, and that she went there and got it, and started out with it for Laoag, and to Plana followed her as far as Bantay; that she then proceeded on to San Ildefonso where she stayed overnight that that night Plana was arrested in front of the house where she was stopping, for what reason she does not know; that the next afternoon he was released and she let him take the carriage so. that he could go back to Santa Catalina; that the next morning at 2 o'clock the carriage was returned to her by a little boy; that these things greatly surprised the witness and that she made up her mind that Plana was not a good man, and told the boy to take the carriage back to Plana, as she withdrew from the bargain, and that Plana must return her the money, which, however, he did not do; and that somebody told her afterwards that Plana promised to revenge himself upon her for what she had done. As respects the other two appellants she says she became acquainted with them at Sinait, where she stopped on the journey from Laoag to Santa Catalina, the occasion being a musical

entertainment which they and Gaspar Ines, who she says was another one of the bandits, gave at the house where she was stopping. Monica Calong's evidence as respects the identity of the appellants is the same as that of the private prosecutor, and she says she made their acquaintance at the same time as the latter in Santa Catalina and Sinait respectively. She also testifies to the same effect as respects the sale of the carriage and horses by Plana to the private prosecutor, and there is another witness who confirms the testimony of the private prosecutor as to this transaction to some extent. Pedro Juan, the driver of the cart, is much less positive in his identification of Plana, merely saying that "to judge by the appearance and figure of the accused Bonifacio Plana," he was one of the robbers. He says that he did not recognize the other two appellants. The defense was an alibi supported by numerous witnesses. Our doubts as to the identity of the appellants arise not bo much from the strength of the alibi as from the somewhat suspicious character of the evidence of the private prosecutor and from the inherent probabilities of the case. So far as the transaction respecting the sale of the carriage and horses is concerned, there Avould appear to be more reason to suppose that the private prosecutor might desire to take revenge upon Plana for not returning the money by preferring a false accusation against him than that Plana should desire to take revenge upon her for rescinding the bargain by robbing her. The same consideration applies to some extent to the testimony of Monica Calong, who seems to have been closely associated with the private prosecutor. Moreover, it seems somewhat improbable that Plana, who appears to have been a man of some property and position, should, on a clear, moonlight night, and without having disguised himself, attack and rob on the public highway persons with whom he had had business dealings just previously and who would be almost certain to recognize him. To these considerations is to be added the significant fact that the driver of the cart fails to satisfactorily identify Plana, and does not undertake to identify the other two appellants. In a case like the present, the determination of which depends upon the credit which is to be accorded to the direct testimony of a few witnesses, uncorroborated by circumstances, and deprived as we are of the aid which would be afforded by an opportunity to see the witnesses and hear them testify, we can not avoid giving to such considerations as those to which we have adverted a weight to which they would not perhaps have been found to be entitled if the trial had been before us in the first instance, or if the case had been more fully developed below. We are hid, for these and other reasons which need not be stated, to the conclusion that the judgment of conviction must be reversed and the appellants acquitted, with costs de oficio. Let the cause be returned to the court below for proceedings in conformity with this opinion. Arellano, C. J., Torres, Cooper, Willard, and Mapa, JJ., concur.

OSJurist.org

G.R. No. 1026, December 21, 1903

THE UNITED STATES, COMPLAINANT AND APPELLEE, VS. VICTORINO CORREA ET AL., DEFENDANTS AND APPELLANTS. D ECIS ION
COOPER, J.: Victorino Correa, Alejo Correa, Martin Lagursay, Tito Correa, Anastasio Mufios, Leandro Monte, Marcos Tagaca, Miguel Aguinaldo, Nicolas Reyes, and Eulalio Camayon are charged with the crime of the murder of Pablo Jangat on the 1st day of July, 1902, committed with alevosia. The Court of First Instance found the defendants Victorino Correa, Alejo Correa, Martin Lagursay, and Leandro Monte guilty as principals, and Romualdo Monte as an accomplice, and Marcos Tagaca as an encubridor, condemning the first-named defendants as principals to the penalty of life imprisonment ( cadena perpetua), the defendant Romualdo Monte to twelve years and one day of imprisonment ( cadena temporal), and the defendant Marcos Tagaca to six years and one day imprisonment ( prision mayor), with their respective accessories, and acquitting the other defendants of the accusation. After the cause was removed to this court the appellants made application for amnesty under the proclamation of the President of the United States of date the 4th day of July, 1902. The application was heard by this court on the 15th day of December, 1902, and was overruled. (See lOff. Gaz., 77.[1] ) The judgment of the Court of First Instance is fully sustained by the evidence contained in the record. Apolinario Castro, a witness for the prosecution, testified that in the month of January, 1902, he was invited by the defendant Victorino Correa to join him in the barbecue of a pig; that he was also told by the defendant to invite Pablo Jangat; that the witness accepted the invitation and sent word to Jangat, and went to Victorino's house; that, shortly after, Pablo Jangat arrived, and was immediately seized by Leandro Monte, aided by Alejo Correa and Martin Lagursay; at the same time Romualdo Monte seized the witness and took him a short distance away from the place, and from this point he was able to see what occurred through the openings between the trees; that he was detained in this place for about half an hour, and that at the expiration of that time was allowed to return; that he did not see Jangat there, but saw some of the accused; that he did not ask where Jangat was because he was afraid; that about half an hour afterwards Martin Lagursay, Leandro Monte, Alejo Correa, and Victorino Correa returned; that Jangat did not come with them; that they then proceeded to carve the pig, and after eating it each one went home. The witness stated that he observed a wound on Jangat's head at the time he was seized, but did not know which one of the accused inflicted it; that while he was in the brush detained by Romualdo Monte he heard one of the men present say in a loud voice, "Anyone who goes about telling of this occurrence will be killed, with all his family;" that the time of the occurrence was between 7 and 10 o'clock a. m.; that he did not report the facts to the authorities because he was afraid of Victorino Correa who told the witness that if he said anything about the matter he would kill him; that when Pablo Jangat was seized by these men there were no other persons present, except Victorino Correa, Alejo Correa, Leandro Monte, and Martin Lagursay, but added that when the pig was carved several

other men came around, and among them were Marcos Tagaca and Nicolas Reyes. Leon Bumaro testified that on Friday in the month of January, 1902, he had been requested by the accused, Victorino Correa, to come to his house for the purpose of joining him in a barbecue of a pig; that the witness accepted the invitation and went to Correa's house, where he met Pablo Jangat, the deceased, Apolinario Castro, Alejo Correa, Leandro Monte, Martin Lagursay, Marcos Tagaca, and Nicolas Reyes; that after a few moments he saw Leandro Monte approach Pablo Jangat and seize him; that at the same time Alejo Correa approached and struck Jangat on the head with a stick, which caused a large wound from which a great deal of blood flowed; that immediately after Martin Lagursay approached and also seized Jangat, and then the three proceeded to tie his arms behind his back and to tie his feet together; that after Jangat was so tied he implored Alejo Correa to pardon him; that Correa thereupon asked him where he had put the ring he had taken, to which Jangat replied that he knew nothing about it he had not taken any such ring; that upon this Monte seized a piece of cane and thrust it between Jangat's legs, assisted by Martin Lagursay, and that they then tied Jangat's body to the cane with the rope so that lie might be carried; that after this was done Victorino Correa, who was the man that ordered that Jangat be seized, directed all the other persons present to carry Jangat a short distance into the woods, and to bury him there, Jangat at this time being in a dying condition; Thereupon Leandro Monte and Martin Lagursay each placed on his shoulder an end of tbe cane, which had been passed through the legs of the deceased, and from which he was suspended, and carried him into a neighboring wood; that these men we're followed by Yictorino Correa, Alejo Correa, .Marcos Tagaca, and the witness; that the latter two followed because they were afraid of Victorino Correa ; that Tagaca had a crowbar with him, and after reaching a point in the woods some distance to the southwest, of Yictorino Correa's house Victorino Correa ordered a grave to be dug in which to bury Pablo Jangat, who was then dead; that the grave was dug by Alejo Correa, Martin Lagursay, Marcos Tagaca, and Victorino Correa himself; they put Jangat's body in it and covered it with earth; this having been done they returned to Victorino's house. After they returned to the house of Yictorino they found that the hog had already been carved and that some other men Tito Correa, Romualdo Monte, Miguel Aguinaldo, Nicolas Reyes, Eulalio Gamayon, and Apolinario Castro had arrived and were engaged in distributing the meat; that the deceased Jangat was seized in the yard in front of Correa's house; that the body was buried about half an hour after he was seized and wounded; that Yictorino Coirea not only ordered Jangat. to be seized but ordered him to be carried away and buried; that he heard Alejo Correa say that the ring concerning which he had interrogated Jangat after striking him on the head was the property of Correa's sister, who said that it had been taken from her the night before, and the witness supposed that this was the motive for the killing of Jangat. The witness testified further that Marcos Tagaca did not voluntarily assist the other accused above named in digging the grave; but the witness added that he did not know where Tagaca got the crowbar or whether he had been instructed to get it, or whether, on the contrary, he provided himself with it of his own free will. Isidro Mariano testified that one day in the month of January, 1902, while he was plowing a field, the deceased, Pablo Jangat, approached him and invited him to go with some others who were to meet at Victorino Correa's house for the purpose of barbecuing a pig; that the witness told Jangat to go ahead and that lie would come later, which he did; that the witness, after taking breakfast, started for the place, but before arriving there went over to Alejo Correa's house; that just at this time Martin Lagursay arrived and told the witness that by order of

Victorino Correa he was to go immediately to the latter's house; that the witness obeyed, and, upon arriving at Victorino's house saw Pablo Jangat's body stretched on the ground, dead, his arms tied elbow to elbow, with a wound on the left side of his head; that a short time after Victorino Correa ordered Leandro Monte and Martin Lagursay to carry Jangat's body away from that place; that they did so, followed by Victorino Correa, Alejo Correa, and Tito Correa ; that the witness did not know what they did with the body, as he remained at the house with Miguel Aguinaldo, Nicolas Reyes, and Romualdo Monte for the purpose of killing and carving the pig, as they were ordered to do by Victorino Correa. The witness further testified that upon his arrival at the house he found the men he mentioned as being present engaged in conversation around the body of Pablo Jangat, who apparently had just died; that Victorino had a bolo and that Alejo Correa, Tito Correa, and Miguel Aguinaldo had clubs, which were spotted with fresh blood; that there was another bloody stick lying on the ground; that the witness arrived at the house about 10 o'clock in the morning, and that a short time afterwards they carried the body away, but that the witness did not know where they buried it. The witness further stated that the reason why he did not leave at once was because Victorino Correa had prohibited him from doing so, and that he, being afraid, had obeyed him. The witness was then asked if he knew what was the motive for killing Pablo Jan gat, to which he replied that he did not know why Jangat was killed, nor could he testify, of his own direct knowledge, as to whether the defendants present at the trial were the ones who killed Jangat, although he strongly suspected that they were all implicated in the killing in question, from the fact that he found them all sitting around near the body, and especially with respect to Victorino Correa, on account of the warnings and threats of the latter, who told the witness not to reveal to anyone what he had seen, under the penalty of death. The witness testified to having seen the witnesses Apolinario Castro and Leon Bumaro at the place in question; that Leandro Monte, Martin Lagursay, Victorino Correa, Alejo Correa, and Tito Correa all went together and in the same direction with the body of the deceased; that Victorino Correa compelled the others to carry the body. The defendant Victorino Correa testified in his own behalf and stated that he did not invite the party to come to his house to barbecue the pig. He denied ever having had any acquaintance with the deceased. Alejo Correa, another one of the defendants, testified, stating that he was not present at the time of the killing of the deceased; that he was at another barrio on this very day from sunrise until 7 o'clock at night; that he never knew the deceased and did not know whether or not he was dead; that it was not true that the deceased had stolen a ring from his sister. The defendant Martin Lagursay testified that on the day in question he was away frt>m his house planting tobacco from sunrise to sunset; that he never knew the deceased and had never heard of his death. Leandro Monte testified that on the day in question he was busy grinding sugar cane at his house, some distance away from the place in question; that the first time the witness heard anything about the death of Pablo Jangat was in the justice's court at Dingras, after this case was commenced. Romualdo Monte testified that he knew nothing about the killing of which he was accused, Martin Lagursay testified that on Friday, in January, 1902, he was busy planting tobacco until about 10 o'clock in the morning; that after having rested until after 12 o'clock he went to Tito Correa's house for the purpose of getting some tobacco seed; that while there Tito told him that Victorino Correa had killed a pig; that he went to Victorino's house; that he saw no other

persons except Victorino and the latter's wife, and that he had observed nothing worthy of attention. It is contended by the counsel for the defendants that the qualifying circumstance of alevosia has not been shown in the case. Alevosia, as defined in article 10 of the Penal Code, exists when the culprit commits the crime by employing means, methods, or forms in the execution thereof which tend to directly and specially insure it without risk to the person of the criminal, arising from any defense the injured party might make. The proof is entirely sufficient to show the existence of alevosia as defined by the statute. The deceased was treacherously invited to the home of the defendant Victorino Correa to enjoy his hospitality, accepted the invitation, and when he arrived there he was seized by Leandro Monte. While held by Monte the defendant Alejo Correa gave him a stroke on the head and at the same time Martin Lagursay approached and seized him. While thus firmly within the grasp of the defendants he received mortal wounds at their hands. He was then bound hand and foot, and, notwithstanding his supplications for pardon, a cane was thrust through the ropes thus binding him, and he was then, at the direction of Victorino Correa, carried off in a dying condition and buried. The methods thus employed tended directly and specially to insure the accomplishment of the crime without any risk to the person of those executing it. While the motive for the commission of the offense is not entirely clear the testimony not disclosing anything upon this point further than that after the deceased was struck and hound he was asked where he had put the ring he had taken yet it is evident from the facts contained in the record that there was a conspiracy on the part of the accused persons, led by Victorino Correa, to murder the deceased. The alibi proof contained in the record, if tin; testimony were credible, might be entitled to some consideration; but we place but little confidence in this character of testimony when the connection of the parties with the commission of the offense has been proven by eyewitnesses, who not only testified to the acts committed but dearly identified the parties who engaged in their commission. The counsel for the defense contends that the evidence shows that, Tagaca assisted in the burial of the body of the deceased against his will, acting under fear on account of threats made by Victorino Correa. Tagaca had a crowbar with him with which the grave was dug, and no explanation was made as to whether he had provided himself with it of his own free will, or whether it was furnished by Vietovino Correa when the parties set out for the burial of the deceased. Tagaca himself has not set up this defense. On the contrary, he has attempted to prove an alibi and to show his entire ignorance of the matter. It seems probable from the evidence that Victorino Correa was the leader of a lawless band, and, for some cause not very evident, had assembled the members at his house for the purpose of killing the deceased. Whether this band was engaged in the insurrection, and the offense committed by them was of a political character, we are unable. to say, there being nothing in the record to show the purposes of the organization, if such organization existed. The judgment of the Court of First Instance should be affirmed, which is accordingly done. Arellano, C,J., Torres, Willard, Mapa, and McDonough, JJ., concur. Johnson, J ., did not sit in this case.

[1] Phil. Reps., 549.

OSJurist.org

G.R. No. 1027, May 19, 1903

RAMON DEL ROSAHIO, PLAINTIFF AND APPELLEE, VS. CLEMENTE DEL ROSARIO, DEFENDANT AND APPELLANT. D ECIS ION
WILLARD, J.: I. Don Nicolas del Rosario died in this city on July 14, 1897, leaving a last will, the eighth, ninth, eleventh, and eighteenth clauses of which are as follows: "Eighth. The testator declares that the 5,000 pesos which he brought to his marriage he hereby bequeathes to his nephews Enrique Gloria y Rosario and Ramon del Rosario, natural children of his brother Clemente del Rosario, notwithstanding the fact that they purport to be the issue of the marriage of Escolastico Gloria and Rosendo del Rosario, successively. "Ninth. The testator declares that the said sum of 5,000 pesos is to be divided, 3,000 pesos for the first named and 2,000 pesos for the second named, the delivery of the said sums to be effected by the wife of the testator, provided that these young men behave themselves as they have done up to the present time, and do not cease to study until taking the degree of bachelor of arts, and then take a business course, if their health will permit, their support to be paid out of the testamentary estate and they to live in the house of the widow. "Eleventh. The testator declares that in case the said young men should be still engaged in study at the time of the death of the testator's wife, they shall continue to be mipported at the expense of the testamentary estate., without deducting such expenses from their legacies, if they should desire to continue the same studies. "Eighteenth. The testator further states that although his wife is at the present time fifty-five years of age, and consequently is not likely to marry again, as she herself says, nevertheless it is possible that the opposite of what she asserts might occur, and, if so, then it is to be regarded as sufficient reason to authorize the young men Ramon and Enrique, so often referred to, to separate from their aunt, in which event they are to be supported by the testamentary estate on a small allowance of twenty-five pesos per month, provided that they continue their studies or should be in poor health, this without in any respect reducing the amount of their shares." Don Ramon del Rosario, one of the persons mentioned in these clauses, brought this action in 1902 against Don Olemente del Rosario, the then executor, asking, among other things, that the said executor pay him an allowance from the death of the widow of the testator at the rate of 75 pesos a month, and that the executor allow him to live in the house in which the widow was living at that time. The widow of the testator, Dona Honorata Valdez, died on July 7,1900. The court below ordered judgment in respect to this allowance, and the right to live in the house as prayed for by the plaintiff. In this we think that the court erred.

While by the eighth clause the support of the plaintiff and of Don Enrique Gloria is charged against the estate, yet the eleventh clause makes it plain that this unconditional right was to last only during the lifetime of the widow. After her death the right to this allowance is made to depend on the continuance of their studies. That this is the correct construction of the will is made more plain by the eighteenth clause above quoted. In the case of their separation from their aunt by her remarriage, they were entitled to the specified allowance of 25 pesos a month only on condition that they were pursuing their studies or were in poor health. The court did not find that the plaintiff was still pursuing his studies. On the contrary, he found that the plaintiff had fulfilled the condition by obtaining the degree of bachelor of arts in 1898. The right to live in the house of the widow terminated at her death. II. The seventh clause of the will of Don Nicolas is as follows: "Seventh. The testator states that in the present condition of his affairs he has acquired, during his married life, some tens of thousands of dollars, of which onehalf belongs to his wife as her share of the profits of the conjugal partnership, and the other half belongs to him as his share of such profits; but, in view of the agreement entered into between the two spouses,, the property will not be partitioned, and upon the death of the testator all the said property will pass to his wife, in order that she may enjoy the revenue therefrom during her lifetime, but without authority to convoy any of such property, inasmuch as she, being grateful for the benefit resulting to her, binds herself in turn to deliver said property at her death to the testator's brothers, Don Clemente del Rosario and Don Rosendo del Rosario, and his sister, Dona Luisa del Rosario, who shall enjoy the revenue from the said property during their respective lives, and shall then, in turn, transmit the same to their male children, both those born in wedlock and natural children who may be known." This was later modified by a codicil, as follows: "That in the seventh clause of said testament he desires and wills that in the distribution of his property and that of his Avife among the male children of his brothers, Clemente and Rosendo del Rosario, and those of his sister, Luisa del Rosario, in such distribution his nephews Enrique Gloria and Ramon del Rosario must be understood to be included, in addition to the legacies mentioned in his said testament." The thirteenth-clause of his will was as follows: "The testator declares that in case Doiia Luisa del Rosario. should die before or after the wife of the testator, then the legacy due her by virtue of this will shall not pass in its entirety to her male children, except as to the sum of 1,000 pesos, the remainder to pass to Don Enrique Gloria Rosario and Don Ramon del Rosario, natural sons of Don Clemente del Rosario, as already stated." This was modified by the codicil as follows: "That in the thirteenth clause the testator provided that upon the death of his sister, Luisa del Rosario, her male children were to inherit from her up to the sum of 1,000

pesos, and this he rectifies, for better understanding, to the effect that it is his will that the remainder of all her portion should be divided into equal parts, one-third to go to his brother Don Clemente del Rosario and the other two-thirds to be divided equally among his said nephews, Enrique Gloria and Ramon del Rosario." Dona Honorata Valdez made her will three days after that of her husband. The seventh clause is as follows: "The testatrix declares that she institutes her beloved husband, Don Nicolas del Rosario y Alejo, as her heir to all the property which she may have at her death, and in the unexpected case of the death of her said husband then she institutes as heirs her brothers-in-law, Don Rosendo and Don Clemen te del Rosario y Alejo, and her sister-in-law, Dona Luisa del Rosario, who shall enjoy the usufruct during their lifetime of all the revenue of the said property. Upon the death of any of them, then the property shall pass to the male children of her said brothers-in-law and sisterin-law, the issue of lawful marriage or natural children who may be known; but upon the death of her sister-in-law, Dona Luisa, then her share shall not pass in its entirety to her male children, except the sum of 1,000 pesos, and the remainder shall be paid to her nephews, Don Enrique Gloria and Don Ramon del Rosario, natural children of her brother-in-law Don Clemen te del Rosario." Dona Luisa died one year after Don Nicolas and two years before the death of Dona Honorata, which, as has been said, occurred on July 7, 1900. Don Enrique Gloria died on July 6, 1900. Don Ramon del Rosario claims in this action that he is now entitled, by virtue of both wills, to a certain part of the share of the estates left to said Doiia Luisa during her life, and he asks that the defendant be directed to render accounts and to proceed to the partition of the said estates. The controversy between the parties upon this branch of the case is as follows: The defendant claims that the plaintiff is entitled to nothing under the wills, because the gift to him was conditional, the condition being that he should be the natural son of Don Ciemente, recognized by the latter as such in one of the ways pointed out by the Civil Code; that he can not prove such recognition, the parol evidence presented at the trial being prohibited by said Code, and that he has therefore not complied with the condition. The plaintiff claims that such evidence was proper, that both wills state that Don Ramon del Rosario is the natural son of Don Clemente, and that in any event the bequests are made to the plaintiff by name. The court below, holding the parol evidence immaterial, ordered judgment for the plaintiff as prayed for. (1) So far as the disposition of that part of the inheritance left in the aunt's will to Dona Luisa for life is concerned, the question is free from doubt. It is distinctly declared that Ramon del Rosario and Enrique Gloria shall take certain parts of it after 1,000 pesos have been deducted. They are pointed out by name as the legatees. It is true that they are called the natural sons of Don Clemente. But this is merely a further description of persons already well identified, and, if false, can be rejected in accordance with the provision of article 773 of the Civil Code, whirl) by article 789 is applicable to legatees.

(2) The ninth clause of the will of Dona Honorata is as follows: "The testatrix bequeaths the sum of 3,000 pesos to her nephews Enrique Gloria and Ramon del Rosario in equal partsthat is, 1,500 pesos each." The plaintiff was entitled to one-half of this legacy in his own right. This has been paid to him. Don Enrique Gloria died before the testatrix. By the provisions of articles 982 and 983 of the Civil Code the right of accretion exists as to the other half in favor of the plaintiff and he is entitled to have it paid to him. (3) The will of Dona Honorata plainly declares that, on the death of any one of the life tenants, the male children of such tenant shall inherit, and in respect to Dona Luisa it is expressly declared that this shall take place whether she dies before or after the testatrix. The derecho de acrecer did not therefore exist in favor of the other two life tenants, Don Clemente and Don Rosendo. "En la sucesion testa da es ley preferente la voluntad del testador, de modo que este prohibiendo expresamente el derecho de acrecer, nombrando sustitutos, o marcando el destino especial de cada porcion vacante, excluye la aplicacion de los articulos que vamos a examinar." (7 Manresa, Comentarios al Codigo Civil, p. 276.) This right does, however, exist in the share of Dona Luisa in favor of the plaintiff, for the reasons stated in connection with the legacy of 3,000 pesos. (4) We have passed upon the rights of the plaintiff to the share of Dona Luisa under the will of Dona Honorata, because the interest is expressly left to him (en concepto de legado) as a legacy. This is controlling. (5 Manresa, 315.) These or equivalent words are wanting in the will of Don Nicolas. Applying article 668 of the Civil Code, we must hold that any interest which the plaintiff may have taken in the share of Doiia Luisa under the will of Don Nicolas he took as an heir and not as a legatee. The distinction between the two is constantly maintained throughout the Code, and their rights and obligations differ materially. (Arts. 660, 668, 768, 790, 858, 891, 1003.) (5) The legatee can demand his legacy from the heir or from the executor, when the latter is authorized to give it. (Art. 885.) The powers given to the executors by the will of Dona Honorata are contained in the fourteenth clause, which is as follows: "The testatrix appoints as the executors of her will, in the first place, her beloved husband, Nicolas del Rosario y Alejo, in the second place her brother-in-law Clemente del Rosario, in the third place her brother-in-law Rosendo del Rosario, in the fourth place Don Ramon del Rosario when he shall attain his majority, all of them without bond and free from the obligation of terminating the administration within the legal term. At her death they shall take possession of all such goods and things as may be her property, and are hereby authorized fully and as required by law to prepare an inventory of said property, and to effect the division and partition of the estate among her heirs. She also authorizes them to execute and sign deeds of partition, sales with a resolutory condition, cancellations, receipts, acquittances, and such other documents as may be necessary." The twenty-first clause of the will of Don Nicolas is substantially the same. Each will prohibited any judicial intervention in the settlement of the estates.

The clause in the will of Dona Honorata which is a copy of that in the will of Don Nicolas is as follows: "The testatrix declares that she expressly prohibits any judicial intervention in this her will, although minors, absentees, or persons under disability be interested therein, as it is her wish and will that all the proceedings be conducted extraiudieiallv, and in case a family council should be necessary, she designates the persons who, in accordance with the provisions of the Civil Code now in force, should form such council, or else leaves their appointment to the discretion of her executors." If the executor was not authorized to pay these legacies, the heirs must pay them. The life tenants and the heirs who take the remainder under these wills are numerous. If they did uot pay the legacies and did not agree upon an administrator, judicial intervention would be necessary, the very thing which the testators had expressly prohibited. The important power of making the partition was attempted to be given to the. executors. In view of these considerations and a study of the whole will, we hold that the executors are given power to pay the legacies. The action, therefore, was properly directed against the executor so far as it related to the allowance and the legacy of 3,000 pesos. As to these legacies, the action may be supported also under article 902, 2, which allows executors to pay money legacies. It was also properly directed against him, so far as it related to the share to which the plaintiff is entitled under the will of Dona Honorata in the portion left, to Dona Luisa for life. The provisions of articles 1025-1027 are no obstacle to this suit. That an inventory is being formed, or that the creditors have not been paid, is a matter of defense which should have been set up in the answer. It was not properly directed against him in so far as it related to the similar share left to him bv the will of Don Nicolas. He took that as heir and not aw legatee, and the heir can maintain no such action against the executor. The fact that the plaintiff under the will of Dona Honorata is a legatee of an aliquot part of the estate, having become entitled to receive one-third of it on the death of Dona Luisa, does not prevent him from maintaining this action against the executor. Though such a legatee closely resembles an heir, yet, like all other legatees, he must seek his share from the heir or executor. ( 6 Manresa, 561.) (6) While in this action he has a right to have his interest as legatee declared, yet it can not be delivered to him without a partition of the estate. It remains to be considered whether the executor has power to make the partition. Such power is expressly given by the will. This provision is, however, void under the terms of article 1057 of the Civil Code, which is as follows: "The testator may, by.an act inter civos or causa mortis, intrust the mere power of making the division after his death to any person who is not one of the coheirs. "The provisions of this and the foregoing articles shall be observed even should there be a minor or a person subject to guardianship among the coheirs; but the

trustee must in such case make an inventory of the property of the inheritance, citing the coheirs, the creditors, and the legatees." Don Clemente, the executor, against whom the action was directed, was not only an heir as a life tenant but also in fee after the death of Don Rosendo if the latter died without issue. Upon the death of the widow, Dona Luisa then being dead, it became his duty to divide the estate into three parts, or at least to set off the third, which was to pass to the plaintiff by the death of the widow and Dona Luisa. In this partition he was directly interested, for, with his brother Don Rosendo, he had a life interest in the part of the estate not set off to the plaintiff. Article 1057 prohibited an heir from being contador for this very reason, namely, that the partition should be made impartially. Although the executor has no power to make the partition, the heirs can do so. (Arts. 10581060, Civil Code.) The plaintiff is not bound to remain a coowner with the other heirs. Being a legatee of an aliquot part, he has the same right to seek a partition that an heir has. (7 Manresa, 578; art. 1051, Codigo Civil.) But in so seeking it he must make parties to his suit all persons interested in the estate (7 Manresa, 577). This he has not done in this suit, and he consequently is not entitled to the partition ordered by the court below. (7) We have held that the only thing that can be decided in this case is the rights of the plaintiff as legatee. The court below ordered the executor to render accounts of his administration of both estates. As to the estate of Don Nicolas, the only thing here in question is the right to the allowance. As we hold that the plaintiff is not entitled to it, he is not entitled to any statement of accounts as such pretended legatee. As to the estate of Dona Honorata, he is entitled to be paid a legacy of 1,500 pesos. Article 907 requires the executor to render accounts to the heir, not to the legatee; and although by article 789 all of the provisions of Chapter II (in which both articles are found) relating to heirs are made applicable to legatees, we can not hold that this requires an executor to submit his accounts to one who has no interest in the estate except to a money legacy when there is no suggestion that it will not be paid when the right to it is established. In respect to the share of Dona Luisa, there is reason for saying that a legatee of an aliquot part is entitled to an accounting. But, inasmuch as in this case there can be no final determination of the rights of the parties interested in the estate, because they are not all parties to this suit, the executor should not in this suit be ordered to submit his accounts. (8) The plaintiff in his complaint has limited himself to claiming the allowance, his rights to the share of Dona Luisa, and the legacies left to him. The question as to whether he would be entitled to any part of the share of Don Clemente upon the latter's death, under the seventh clause of the two wills, was not presented by the complaint nor passed upon by the court and is not before us for decision. (9) The result of the foregoing considerations is: 1. The plaintiff is not entitled to any allowance under either will.

2. He is not entitled to live in the house No. 128 Calle Clavel. 3. He is entitled to be paid, under the ninth clause of the will of Dona Honorata, the sum of 1,500 pesos, in addition to the 1,500 pesos already received under that clause. 4. He is entitled to the share of the estate left by the will of Dona Honorata to Dona Luisa during her life, after deducting 1,000 pesos. 5. This share can not be set off to him in this suit, but only in a proceeding to which all persons interested in the estate are parties. 6. His interest in the share left to Dona Luisa during her life by the will of Don Nicojas can not be determined in this suit. 7. The executor can not be required to render in this suit his accounts as such executor. 8. The plaintiff's rights under the seventh clause of the two Avills, to the share left to Don Clemente for life are not before us for decision. III. After judgment had been rendered in the court below and a bill of exceptions allowed, but before the record had been sent to this court, Don Clemente del Rosario, the defendant, died. After his death Don Kosendo del Rosario, who was named in both wills to succeed to the executorship on the death of Don Clemente, appeared in the court below and withdrew the appeal and bill of exceptions. Thereupon the widow of Don Clemente, for herself and in representation of the minor son of her late husband, asked and was granted leave to prosecute the appeal. This ruling was correct. According to the Spanish authorities, anyone legally affected by the judgment might appeal. According to the American authorities, if a trustee refuses to appeal, the beneficiary may do so in his name. That the son of Don Clemente has a direct interest in the question of the allowance of 75 pesos a month to the plaintiff is plain. We have held that in respect to this allowance the executor represents the estate and the judgment against him binds it. It would be manifestly unjust to allow an executor, with perhaps only a slight personal interest in an estate, by withdrawing an appeal, to fasten upon the estate a claim which, as we hold, it should not bear. IV. At the argument of this case on the merits, after the appellant had closed, the respondent made the point for the first time that the appellant's brief contained no assignment of errors. This is true. But a full assignment of errors is found in the bill of exceptions at pages 14 and 15. The appellee answered the brief of the appellant without making any suggestion of this mistake. He has been in no way prejudiced by it, and we can not affirm the judgment on this ground. The judgment of the court below is reversed and the case remanded with directions to the court below to enter judgment in accordance with this opinion. The costs of this instance will be equally divided between the parties. So ordered. Arellano, C. J., Cooper, Mapa, and Ladd, JJ., concur.

Torres, J., did not sit in this case.

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G.R. No. 1030, March 11, 1903

THE UNITED STATES, COMPLAINANT AND APPELLANT, VS. NICOLAS TIQUIO ET AL; DEFENDANTS AND APPELLEES. D ECIS ION
MAPA, J.: The acts with which the defendants are charged, and their guilt as principals, are fully proven in the record. The judge below rightly classified the acts committed as robbery, but he held that the case was covered by paragraph 5 of article 503 of the Penal Code, inflicting upon the defendants the penalty of eight years of presidio mayor. The prosecuting attorney appealed against this decision, believing that the crime should be punished in accordance with article 508 of the Code, this being the only question which has been raised on this appeal. The evidence shows that the malefactors were armed with guns and bolos; that the robbery of the clothes was committed in an inhabited house and the robery of the carabaos in buildings connected with inhabited houses; that the value of the carabaos stolen (the value of the clothing not having been properly ascertained) exceeded 1,250 pesetas; and finally that the malefactors entered the place where the robbery was committed by scaling a fence which protected it and which was of quite a considerable height. If any of these circumstances had been lacking the case should have been tried under article 503, paragraph 5, as the judge held. But the concurrence of all these circumstances evidently brings the case Avithin the scope of article 508, and the penalty prescribed therein should be imposed in the maximum degree, in accordance with the provisions of article 509. The robbery was committed by a band, over thirty armed men taking part in it, (Art. 505.) We therefore impose upon the defendants the penalty of fourteen years and eight months of cadena temporal. The judgment below, thus modified, is otherwise affirmed, with the costs to the defendants. So ordered. Arellano, C. J., Cooper, Willard, and Ladd, JJ., concur. Torres, J., did not sit in this case.

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G.R. No. 1032, February 19, 1903

THE UNITED STATES, COMPLAINANT AND APPELLEE, VS. AGUSTIN ABLAZA, DEFENDANT AND APPELLANT. D ECIS ION
WILLARD, J.: The fact that defendant confessed his guilt can not be considered as an extenuating circumstance within the meaning of article 9 of the Penal Code. The case shows that the extenuating circumstance defined in article 9, 5, should be taken into account. The application for the benefits of the amnesty of July 4,1902, must be denied, without considering other grounds, for the reason that it does not appear that the defendant took part against the United States or Spain in the insurrection mentioned in the amnesty. (United States vs. Manuel Garcia, August 16, 1902.) In cases not covered by the terms of the proclamation the special application therein permitted must be made to the executive and not to the judicial authorities, as has been done in this case. The judgment is modified by changing the penalty from fourteen years eight months and one day to twelve years and one day. In all other respects it is affirmed. The appellant must pay the cost of this instance. So ordered. Arellano, C. J., Torres, Cooper, and Ladd, JJ., concur.

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G.R. No. 1034, March 31, 1903

DOMINGO HERNAEZ Y SALINAS, ADMINISTRATOR OF THE INTESTATE ESTATE OF PEDRO HERNAEZ, PETITIONER, VS. W. F. NORRIS, JUDGE OF THE SPECIAL COURT OF NEGROS, RESPONDENT. D ECIS ION
LADD, J.: This is a petition by the legal administrator of the intestate estate of D. Pedro Hernaez for a mandamus, to be directed to the judge, of the Special Court of Negros, requiring him to admit an appeal which the petitioner claims was duly taken by him from an order settling the account of D. Pelabio Hernaez as judicial administrator of the estate. It is stated in the petition that the order was made June 7, 1902; that the parties were notified of the order June 11; that on June 12 the petitioner filed a notice of appeal therefrom; that no order was made by the court upon notice of appeal or fixing the amount of the bond required; and that the petitioner thereupon filed a bond for 500 pesos in accordance with the verbal indication of the judge. It is not stated in the petition when this bend was filed, but it is stated that it was returned to the petitioner, and that on July 20 an order was made by the court disallowing the appeal as not having been duly taken. The answer of the judge states that the appeal was disallowed for the reason that the appellant did not file the bond within twenty-one days from the entry of the order appealed from. Taking the facts stated in the petition and answer to be true the question is presented whether in an appeal under section 778 of tin1 new Code of Civil Procedure from the settlement of an administrator's account, where the appellant has filed a notice of appeal within twenty-one days and no order has been made by the judge limiting the time for filing an appeal bond, the appeal is lost by failure to file such bond before the expiration of the period of twenty-one days. Section 779 of the Code provides as follows: "The person thus appealing [under section 778] shall perfect his appeal within twenty-one days after the entry of the order, decree, or judgment by the Court of First Instance, by filing with the clerk of that court a statement in writing that he appeals to the Supreme Court from such order, decree, or judgment. The clerk shall thereupon transmit to the Supreme Court a certified transcript of the account embraced in the order, decree, or judgment, and of the order, decree, or judgment appealed from, and of the appeal." Section 780 is as follows: "Before an appeal is allowed the person appealing under the two preceding sections shall give a satisfactory bond to the court, conditioned that he will prosecute the appeal to effect and pay the intervening damages and costs occasioned by such appeal." The language of these sections, read together, admits of the construction that the right to the appeal is conditionally secured by the filing of the notice of appeal within the prescribed period, subject to be defeated if the party fails to file a satisfactory bond within such period as may in each case be specially fixed by the judge. We hold this to be the meaning of the law. No inconvenience that we can perceive would result from a practice in accordance with this construction, and, on the other hand, great inconvenience and hardship, arising from the

difficulties in communication which exist in many parts of the Archipelago, would inevitably result from requiring the filing of a bond satisfactory to the judge in all cases indiscriminately within a nonextendible period of twenty-one days. Where the provisions of the Code are open to more than one construction we are bound to prefer that one which, under the very exceptional conditions in which it must necessarily be administrated in these Islands, will most effectually "promote its object and assist the parties in obtaining speedy justice." (Sec. 2.) A mandamus will not be issued to the defendant as judge of the Special Court of Negros, that court having ceased to exist under the provisions of the law by which it was created. (Act of the Commission, No. 166, sec. 6.) Upon the filing of a bond within twenty-one days from the service of this order upon the petitioner satisfactory to the judge of the Court of First Instance of the Province of Negros to which the record in the proceeding in which the appeal was taken has been transferred, it will be the duty of the clerk of such court to transmit to this court a certified transcript of the account embraced in the order appealed from and of the appeal. In case the clerk fails so to do the petitioner may apply for an amendment making him a party to this petition and asking for such order as may be necessary in the premises. Arellano, C. J., Torres, Willard, and Mapa, JJ., concur.

DISSENTING COOPER, J.: I am unable to concur in the opinion of the majority of the court. The application for mandamus should be denied for the reason that the time for filing the appeal bond had expired before the appeal bond was presented to the judge of the Court of First Instance for his approval. The method for perfecting such an appeal is regulated by sections 779 and 780, Code of Civil Procedure, 1901. Section 779 reads as follows: "The person thus appealing' shall perfect his appeal within twenty-one days after the entry of the order, decree, or judgment by the Court of First Instance, by filing with the clerk of that court a statement in writing that he appeals to the Supreme Court from such order, decree, or judgment. The clerk shall thereupon transmit to the Supreme Court a certified transcript of the account embraced in the order, decree, or judgment, and of the order, decree, or judgment appealed from, and of the appeal." Section 780 reads as follows: " Bond for appeal .Before an appeal is allowed the person appealing under the two preceding sections shall give a satisfactory bond to the court, conditioned that he will prosecute the appeal to effect and pay the intervening damages and costs occasioned by such appeal."

The judgment of the Court of First Instance was rendered on the 7th day of June, 1902. The appeal bond was not presented to the judge for his approval until the 20th day of July, more than forty days having elapsed after rendition of judgment. The statute requires that the appeal must be perfected within twenty-one days, and, hy the express language of section 780, before an appeal is allowed the bond must be given. To perfect the appeal two requisites must concur, to wit, the notice of appeal, and the filing of the appeal bond. It is said that section 780 does not fix the time within which the appeal bond must be filed. But if the appeal must be perfected within twenty-one days after the rendition of the judgment, and if it can not be perfected until the appeal bond has been filed, then the inevitable conclusion is that the appeal bond must be filed within twenty-one days. The two sections taken together seem so plain as not to justify a resort to the rules of construction. Any doubt that might arise can be settled by the common rule of construction applying to adopted and reenacted statutes. "Where a statute of a foreign jurisdiction, which had there received a settled judicial construction, is adopted, wholly or in part, and enacted as a law of the State adopting it, it is presumed that the construction previously put upon it is adopted with it, and it should be interpreted according to such construction." (Black on Interpretation of Laws, p. 159.) This section of our Code was taken from the Vermont statutes. By a comparison of section 780 with section 2589 of the Vermont statutes, it will be seen that section 780 is a literal copy of section 2589, which was a reenactment of section 2273, B. L. Vt. Prior to the adoption of our statutes, in 1884 the supreme court of Vermont in the case of Lambert, administrator, vs . Merrill's Estate (56 Vt. Rep.p. 464), held that the bond must be filed within twenty days from the date of the decision appealed from, and where the bond has not been filed within twenty days the appeal will be dismissed. This decision is affirmed by the same court at the January term, 1894, in the case re Bod well, 66 Vt. Rep., p. 231. This construction of section 780 harmonizes our statutes with those existing generally throughout the United States. Where the law requires that a bond shall be filed in order to perfect an appeal, under these statutes it is the rule that there is no effective appeal until the bond is filed and that the bond must be filed within the time prescribed by law. All the requirements of the statute for taking and perfecting an appeal are deemed juridictional and must be strictly complied with. (2 Enc. PI. and Pr., 16; Elliott's App. Pro., 208.) The court does not indicate in its decision within what time the appeal bond should be filed. This leaves the practice in a state of uncertainty. There are no compensating benefits for, this uncertainty in procedure. Neither convenience nor justice requires it. On the contrary, it is inequitable to delay indefinitely a party in the enforcement, of his judgment by the defendant simply filing a notice of his intention to appeal. Section 2 of the Code of Civil Procedure is cited in support of the decision, The section reads as follows: " Construction of Code .The provisions of this Code, and the proceedings under it, shall be liberally construed, in order to promote its object and assist the parties in obtaining speedy justice."

This provision of the Code might be cited with the same or with still greater force in support of the opposite contention. The object of section 780 is to protect by prompt means a party in whose favor the judgment has been rendered from the damages resulting from the delay in its enforcement. The statute should be liberally construed to promote this object. This will not be done if the provision is so construed as to permit the defendant to delay indefinitely the enforcement of the judgment without security. The clause in question should not be used to undo legislative' intent nor to confer upon the court a general dispensing power as to the requirements of the law. The method required by the legislative authority in appeals is exclusive. It can not be disregarded and the court's own rules substituted therefor.

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G.R. No. 1036, January 21, 1903

THE UNITED STATES, COMPLAINANT AND APPELLEE, VS. REGINO VALENCIA ET AL., DEFENDANTS AND APPELLANTS. D ECIS ION
WILLARD, J.: The evidence in this case was closed August 9, 1902, and the court ordered the fiscal and the counsel for the defendants to present their arguments. In compliance with this order the fiscal presented a written argument, stating therein that he did not think the evidence sufficient to warrant a conviction, and asked that the case be dismissed. The written argument of the counsel for the defendant merely expressed his agreement with the opinion of the fiscal. The court rendered a decision acquitting two of the defendants and convicting two. One of the latter, Santiago Regino, having appealed, now moves this court that the judgment be reversed and the cause dismissed because the fiscal in the court below withdrew the complaint and that without a complaint no judgment could be lawfully rendered. The motion will have to be denied for two reasons: (1) The action of the fiscal was not a withdrawal of the complaint. It was simply his opinion upon the merits of the case which the court required him to present. (2) Even if it had been an attempted withdrawal, it would have been ineffectual. After the complaint has been presented, and certainly after the trial has been commenced, the court and not the fiscal has full control of it. The complaint can not be withdrawn by the fiscal without the consent of the court Arellano, C. J. Torres, Cooper, Mapa, and Ladd, JJ., concur.

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G.R. No. 1041, April 02, 1903

THE UNITED STATES, COMPLAINANT AND APPELLEE, VS. RICARDO LUCIANO, DEFENDANT AND APPELLANT. D ECIS ION
TORRES, J.: At about 1 o'clock in the afternoon of the 6th of March, 1902, Ricardo Luciano went to a warehouse in which was stored sugar belonging to his brother, Jose Luciano, situated in the barrio of Talimundoc, in the town of Magalang, Pampanga. He found among several empty sugar pots a piece of bojo cane full of molasses. Upon inquiring from the laborers which of them had hidden it there, Francisco Dunca replied that he was the person who had done so, after having asked Don Antonio Luciano to give it to him. The accused, annoyed by this conduct on the part of Dunca, prejudicial to the interests of his brother, picked up the piece of bojo cane full of molassesabout half a yard in lengthand struck Dunca two blows. These caused slight bruises, a slanting one in the middle of the right thigh, and another in the left lumbar region, between the ninth and twelfth ribs, the blow falling longitudinally to the body. After this Dunca left the warehouse, walking in the direction of a cane field. At a distance of about 250 yards he fell to the ground. Felipe de los Santos, seeing this, went to assist him. Finding him in a bad condition, he called some other laborers, and among them they picked Dunca up and carried him to a shed at the side of the warehouse. Here he died a few hours afterwards. The record discloses the fact that the deceased was in a sickly condition, and had been suffering from fever before this occurred. An autopsy of the body of Francisco Dunca was held by two physicians. From statements made by them it appears that they found on the exterior of the body the two bruises which have already been mentioned. In the interior cavity of the body the spleen was found to be enormously hypertrophied, it being three times its usual size. In the lower portion was found a large cavity with a rupture; and the tissues were found to be exceedingly weak and friable. Hematoma was noted in the interior of the cavitv, and between the intestines were clots of blood. It was observed, also, that the stomach was dilated with food. The two physicians agreed that the death of Dunca was due to the hemorrhage resulting from the rupture of the spleen, which, owing to the abnormal condition of that organ hypertrophied and triplicated in size, might have been occasioned by a fall, a simple emotion or moral impression, a physical effort, or by overeating. Dr. Mesina affirmed, however, that the rupture of the spleen could not be attributed to the blow received, because the bruise found on the back of the body was not in the region of the spleen, but in the region of the kidneys, which were not affected; that if the patient had staggered after receiving the blow, by reason of the abundance of hemorrhage, then the rupture might be attributed to the blow, but that if this were not so, then the rupture of the spleen must be due to some other cause; and that, in view of the antecedents of the deceased and the state of his spleen, his death could not bo attributed to violence. Dr. Liongson averred that if the spleen as it was found at the time of the autopsy had been ruptured in consequence of a. blow received near the region in which that organ is situated the patient would have fallen mortally wounded in less than two minutes after receiving the blow?

and that therefore he did not believe that the said blow had occasioned the rupture of the spleen, the pathological condition of which was due to the malaria with which Dunca had suffered during the preceding months. The doctor expressed the opinion that Dunca's death was in consequence of the rupture of the hypertrophied spleen, caused by some one of the causes previously enumerated, because Dunca, after receiving the blow, walked without difficulty about the warehouse, and through the field for a distance of some 250 yards, and the fall which he suffered might have been either the cause of the rupture of the spleen or the consequence of this accident. The accused, having been arraigned on the charge of homicide, pleaded not guilty. His counsel introduced witnesses who, among other things, testified that Dunca, after having been struck by the accused, but not heavily, with a piece of bojo cane, left the warehouse, going toward his house, and at a. distance of some 250 yards fell to the ground, and, having been picked up, died shortly after near the warehouse. They added that the deceased was a chronic sufferer from fever and chills. From the facts related it appears that the crime of homicide, defined and punished by article 404 of the Penal Code, has been committed. The death of Francisco Dunca took place in consequence of a rupture of the spleen, producing a. copious internal hemorrhage, as shown by the autopsy and post-mortem examination made by the two physicians, which rupture must have4 been occasioned, among other efficient causes, in view of the pathological condition of the deceased, by the blows which he received on the body some minutes before falling to the ground. If, as the physicians affirmed, such a rupture of the spleen might have been the effect of a moral impression, a physical effort, or overeating, it is unquestionable that the violent acts of which Dunca was the victim, if they were not the direct cause of the rupture of that important organ, at least produced a strong physical and a considerable moral shock. The complication produced thereby, owing to his feeble condition, resulted in his death, an event which the blows possibly would not have caused had he been a strong and healthy man. The blows given Dunca were illicit, and acts contrary to law, whatever may have been the motive which led up to them. In order to determine the character, extent, and consequences of the punishable act and to define and classify the offense, it is necessary to take into consideration its results and the effect produced on the deceased. It is true that, in consequence of former ill health, Dunca's spleen was in a hypertrophied condition and was three times its natural size; but it is also true that the rupture of the spleen and the consequent hemorrhage occurred a few minutes after the blows were received. Therefore, even in case the lesion of the organ was due to a supervenient accident to the deceased, already seriously ill, it is unquestionable that the ill treatment given him provoked this fatal result and hastened the death of a man who a few moments before had been working in the warehouse and able to move about freely. The person guilty of the ill treatment referred to is the sole responsible author of the crime committed. He who executes an illicit act, in violation of law, is responsible for all the consequences which such an act may produce. He can not free himself from responsibility by reason of the circumstance that he did not intend to kill the man he injured. The defendant willfully struck Dunca two blows with a bojo cane, with the wrongful intent of punishing him. This was an unauthorized act, and constituted a breach of the penal law. Being illicit, the accused is presumed to have acted with malice and is criminally responsible. (Article 1 of the Code and judgments of March 10, 1871, and June 26, 1880.)

The act committed by Luciano having been a perfectly voluntary and intentional onean act entirely illegal, and reproved by the penal lawand the injured man having fallen to the ground after having walked a distance of some 250 yards, an a consequence of the rupture of his spleen, it is unquestionable, notwithstanding the fact that the two physicians who held the post-mortem examination could not affirm with certainty what was the direct cause of the rupture, that the violence with which the deceased was treated more or less directly caused his death; or, at least, it was a concomitant cause which largely contributed to and hastened his death. Consequently the aggressor is certainly responsible for all the consequences of his criminal action, even if his intention was not that of causing death. Ricardo Luciano, therefore, must be adjudged the responsible author of the crime of homicide. This lack of intention, however, decreases his responsibility, and must be taken into consideration, together with the other mitigating circumstancethat is, that the accused acted on the impulse of passion, produced in his mind by the conduct of the deceased. The trifling value of the sugar or molasses stolen is a matter of indifference in this case. The theft committed by Dunca might have been imitated by the other laborers, and if each were to have taken an equal quantity of molasses, and were to do it frequently and repeatedly, the loss would in a short time become considerable. It will be readily seen, therefore, how and why the knowledge of the theft of the small amount of sugar stolen might have produced this burst of anger. In the commission of the crime defined no aggravating circumstance was present, and therefore, there being two strongly marked mitigating circumstances, to wit, Kos. 3 and 7 of article 9 of the Code, the accused should, in accordance with the precept of paragraph 5 of article 81 of the Code, be convicted, the penalty imposed to be that immediately inferior in degree to that assigned for the crime by article 404that is prision mayor in its minimum degree. With respect to the allegation of the defense as to the withdrawal of the complaint by the provincial fiscal, we hold that under the accusatory system the Government may abandon the criminal action and withdraw the information, if unable to obtain evidence, before the trial has commenced; but after the trial has begun and after the evidence is taken and the defense has been made, the accusation can not be so withdrawn. The judge, in the performance of his duty, may continue the proceeding and render such judgment as he may deem proper under the law, as was done in this case. Upon the foregoing considerations, therefore, the judgment below must be affirmed, with the costs of this instance to the defendant, the indemnity to the widow and heirs of the deceased being fixed, however, in the sum of 1,000 Mexican pesos. This decision is strictly in accord with the rigorous precept of the penal law; but a consideration of the circumstances under which the act resulting in the homicide was committed, the cause which induced Ricardo Luciano to strike Francisco Dunca, and the pathological condition of the latter, leads Judges Torres and Ladd to consider excessive the penalty assigned by the law and which has been imposed. This is not a case in which an abandoned criminal, armed with a deadly weapon, attacked the deceased with the intention of killing him, but that of the unfortunate victim of an accident which has brought him under the operation of the penal law. It can not be said, furthermore, that he was guilty of great cruelty in the punishment he intended to inflict upon Dunca. Consequently the judges mentioned are of the opinion that it

would be equitable to refer this case to the Chief Executive, in order that he may exercise clemency, should he see fit to do so, by granting a partial pardon and thereby mitigating the marked severity of the penalty imposed upon the accused, this action being authorized by article 2, paragraph 2, of the Penal Code. So ordered. Arellano, C. J., Cooper, Willard, Mapa, and Ladd, JJ., concur.

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G.R. No. 1042, March 09, 1903

THE UNITED STATES, COMPLAINANT AND APPELLEE, VS. EXEQUIEL CASTILLO ET AL., DEFENDANTS AND APPELLANTS. D ECIS ION
COOPER, J.: The defendants Exequiel Castillo and Catalino Circa were charged in the Court of First Instance of the Province of Nueva Ecija with the crime of robbery and murder, committed as follows: That on a night in the month of January, 1900, in the pueblo of Carranglan, Province of Nueva Ecija, Dona Joaquina de Castro, being asleep in her house, where the defendant, (her nephew) Exequiel Castillo lived with her, the defendant, moved by the iniquitous desire of approprinting the property of the deceased, struck her a blow on the head with a piece of wood, which caused her instantaneous death; that he requested Catalino Circa to proceed to the burial of the body, and the latter dug a grave near the house of the deceased and buried her. The defendant Exequiel Castillo paid Catalino Circa the sum of $10 for lending his assistance. The defendant Exequiel Castillo was convicted and sentenced to the penalty of death as the author of the crime, and the defendant Catalino Circa was sentenced to ten years of presidio mayor as an accessory after the fact. The defendant Exequiel Castillo has appealed to this court. Catalino Circa does not appeal from the judgment. The proof offered by the Government at the trial against Exequiel Castillo consists of confessions made by Catalino Circa to various persons, and of the latter's statements made on the preliminary investigation before the provincial fiscal. It will be unnecessary to review this testimony. On the trial of the case the defendant Catalino Circa testified in behalf of defendants and contradicted the truth of these statements, claiming that he was induced to make them by Agustin Castro, a brother of the deceased, and denying all knowledge whatever of the commission of the offense. The judge of the Court of First Instance took into consideration these confessions and the testimony given on the preliminary investigation, and found the defendants guilty under this proof. Section 15 of General Orders, No. 58, provides that in all criminal prosecutions the defendant shall be entitled to be confronted at the trial by and to cross-examine the witnesses against him. This right has been denied the defendant Exequiei Castillo. Neither the confessions of Catalino Circa nor his testimony given on the preliminary hearing, can be received against Exequiei Castillo, and the Court of First Instance erred in admitting them.

"Where the testimony of a witness for the prosecution has previously been taken down by question and answer in the presence of the accused or his counsel, the defense having had an opportunity to cross-examine the witness, the deposition of the latter may be read, upon satisfactory proof to the court that he is dead or insane, or can not with due diligence be found in the Islands." (Sec. 15, General Orders, No. 58.) In no other cases than those specified in this section can the testimony introduced at the preliminary examination be received at the trial. We have heretofore decided, and have directed the attention of judges of the Courts of First Instance to the fact, that the testimony taken on a preliminary investigation can not be received at the trial of the cause unless falling within one of these exceptions. The preliminary proof has no place in the record sent to this court. The proof stands upon a different ground with reference to Catalino Circa. His confessions made to witnesses may be admissible against him. But they are not admissible against his codefendant. It is unnecessary to consider the sufficiency of these confessions as against Catalino Circa. He has not appealed from the judgment. The judgment of the Court of First Instance convicting and sentencing the defendant Exequiei Castillo to the death penalty is reversed and defendant Castillo is acquitted and directed to be discharged, without prejudice to that part of the judgment convicting "and sentencing the defendant Catalino Circa to the penalty in which lie is condemned. It is so ordered. Arellano, C. J., Willard, Mapa, and Ladd, JJ., concur. Torres, J., did not sit in this case.

OSJurist.org

G.R. No. 1043, February 17, 1903

THE UNITED STATES, COMPLAINANT AND APPELLANT, VS. JULIAN ATIENZA, DEFENDANT AND APPELLEE. D ECIS ION
LADD, J.: This is a motion to dismiss the appeal of the United States taken from a judgment rendered August 15, 1902, by the Court of First Instance of Batangas, acquitting the appellee,of the crime of robbery. The question presented by the motion, namely, whether the Government is entitled, under the laws now in force in the Philippine Islands, to an appeal to this court in criminal cases from a judgment of acquittal of a Court of First Instance has been already passed upon in the case of the The United States vs. Kepner in a decision rendered October 11, 1902. In an earlier decision in the same case (February 6, 1902) we had held that under the law as it stood prior to the enactment by Congress of the Philippines Bill, the Government was entitled to an appeal in the class of cases in question, and in the decision of October 11, 1902, we held that such right of appeal of the Government remained unaffected by the provisions of that act. Both these decisions were made after full argument and consideration, and we adhere to them, without deeming it necessary at this time to review the grounds upon which they were based. One point made by counsel for the appellee upon the argument of this motion may, however, be briefly noticed, as it has perhaps not been heretofore suggested. Counsel contends, if we correctly apprehend his position, that the jurisdiction of this court, as defined in the law by which the court was created (Act No. 136. of the. Commission) is of such a nature as necessarily to exclude the idea that the court can, like its predecessor, the Spanish Audiencia, review the whole case upon appeal; that the "appellate jurisdiction" conferred upon it ,by Act No. 136 is ex vi termini a jurisdiction to correct errors of law merely. This contention is, we think, founded on a misconception. By section 18 of Act No. 136 it is provided that "The Supreme Court shall have appellate jurisdiction of all actions and special proceedings properly brought to it from Courts of First Instance, and from other tribunals from whose judgment the law shall specially provide an appeal to the Supreme Court." The term "appellate jurisdiction" is here used in a general sense, meaning simply a jurisdiction to review the judgment of the inferior court. Whether the jurisdiction is to reexamine the facts, or the law, or both, and With what limitations and under what conditions, is left undetermined by section 18, except as it is provided that it is to be exercised in "all actions and special proceedings properly brought to it" from the tribunals described. To ascertain what cases may be properly brought to the Supreme Court for review and what matters may be reviewed in such cases, reference must be had to other provisions of law. By section 39 of the same Act "the existing Audiencia or supreme court" was "abolished" and this court "substituted in place thereof." Being substituted in place of the1 existing Audiencia, clearly its jurisdiction was the same as that tribunal possessed unless and until otherwise provided. Nowhere in Act No. 136 is its appellate jurisdiction defined as respects either civil or criminal cases. It was thus left exactly as it stood prior to the passage of that Act. In civil cases it remained that of the Audiencia until the change effected by the Code of Civil Procedure. In criminal cases the

Commission has not seen fit tip to the present time to modify it, and it therefore still remains identical with that exercised by the Audiencia. If any doubt could be entertained that the intention of the Commission in the enactment of Act No. 186 was to preserve unaltered in this court the appellate jurisdiction of the Audiencia in criminal cases, it would be removed by Act No. 194, section 4, amending General Orders, No. 58, with reference to consultas in such cases, in the enactment of which the Commission must be presumed to have had in contemplation all its prior legislation on the same general subject, and in which the right of appeal of both the defendant and the Government is distinctly recognized. The motion is denied. Arellano, C. J., Torres, Cooper, Willard, and Mapa, JJ., concur.

OSJurist.org

G.R. No. 1043, May 15, 1903

THE UNITED STATES, COMPLAINANT AND APPELLANT, VS. JULIAN ATIENZA, DEFENDANT AND APPELLEE. D ECIS ION
MAPA, J.: The accused was acquitted in the First Instance of the charge of robbery, upon which he wras prosecuted. The complaining witness and the provincial fiscal appealed against the judgment of acquittal. The evidence in the record shows: (1) That the accused, who was employed as a secret-service agent by the military authorities, received orders from Lieut. J. B. Hennesy to seize all the money in the possession of Father Angel Ilagan, the complaining witness, it being believed, upon information-received by the said lieutenant, that the money referred to was the property of a revolutionary officer; (2) that in obedience to the said order the accused, together with three sergeants of scouts, whom the lieutenant had put under his orders to assist him in the execution of the command, proceeded to the dwelling house of Father Ilagan and that of Sixto Rojas, to which Father Ilagan's family had removed, and seized a certain amount of money; (3) that the accused appropriated part of this money before delivering to Lieutenant Hennesy the funds seized, turning over to him a sum less than that which was really found by him in the house of Father Ilagan and that of his family. The record does not disclose the exact amount of money converted by the accused. The information charges that it amounted to 1,381 pesos and 15 cents. This may have been the fact, but we do not consider the evidence conclusive upon this point. In the document appearing on pages 138 and 139 of the record, signed by the accused, and which, according to the testimony of Cecilio Rosal and Marciano Arguelles, contains a statement made by the accused before the provost judge of Lipa, Mr. Johnson, he acknowledges and confesses that he did appropriate the sum of 300 pesos. The authenticity of this document has not been denied by the accused at the trial, and the witnesses Rosal and Argtielles affirm that they were present and heard the statement made by the accused before the provost judge, as recorded in the said document. Consequently, it may be regarded as proven that the accused converted at least the sum mentioned, 300 pesos. Nevertheless, this act does not constitute the crime of robbery, with which the accused is charged in the complaint. The seizure of the money in Father Ilagan's house and that of his family was not in itself unlawful, because it was done in obedience to a lawful order given for that purpose by competent authority. The unlawful and punishable appropriation took place subsequently to this act, when the money appropriated was lawfully in the possession of the accused. The order given to him by his commanding officer was for the precise purpose of the seizure of this money, and consequently the seizure in itself does not constitute an act of unlawful taking, a necessary element for the existence of the crime of robbery, as well under the different cases covered by article 502 and the other articles included in the chapter of the Penal Code, which deals specifically with robberies, as in the special case Covered by article 206 of the said Code. The subsequent conversion by the accused, after getting the money into his possession, by

keeping part of it instead of turning it all over to the officer who had directed the seizure, may perhaps constitute the crime of malversation of public funds or that of estafa, according to whether the accused may or may not be regarded as having been in the discharge of the duties of a public officer when committing the deed, and that the money converted came into his possession by reason of his office. Upon this point we can not at this time express an opinion, as that would be to prejudge a question which is not presented to us for our decision. The prosecuting attorney is at liberty to file such information as he may see fit upon these facts. For the reasons stated, and upon the sole ground that the facts proven in the case do not constitute the crime of robbery charged in the information, and without prejudice to the presentation by the prosecuting attorney of the corresponding information upon the facts, the judgment appealed is affirmed, with the costs of this instance de oficio. Arellano, C. J., Cooper, Willard, and Ladd, JJ., concur.

DISSENTING TORRES, J.: Upon the facts proven in the case, and especially the fact that Julian Atienza, in obedience to orders from Lieut. J. B. Hennesy, proceeded to search the dwelling house in which lived Father Angel Ilagan, parish priest of Lipa, Batangas, looking for money, which, according to the statements of Atienza, was the property of a revolutionary officer, in the possession of the said priest; that Atienza, as a member of the secret police, accompanied by three sergeants of scouts, seized all the money found in the dwelling house of Father Ilagan and that of Sixto Rojas, to which the priest's family had removed, having us6d intimidation in so doing and having made threats, revolver in hand, against the relatives of Father Ilagan in case they should hide or fail to point out the latter's money; and that, without having counted the money at the time of the seizure, or at the time it was returned by Lieutenant Hennesy to its owner, the evidence in the record sufficiently shows that the accused appropriated at least the sum of 300 pesos out of the total amount seized. By the testimony of the two witnesses who were present and heard the statements of the accused, and upon the Avritten statement, made and signed by the accused before the provost judge, Mr. Johnson, and which appears on pages 138 and 139 of the record, it is unquestionably proven that the accused converted and appropriated the said sum of 300 pesos, part of the money belonging to Father Ilagan, which was seized. The authenticity of this statement has not been denied or impugned during the trial, and it was proven at the trial that the said priest had a considerable sum of money in cash which was seized during.his absence. This appropriation constitutes the crime of robbery with personal violence, defined and punished in paragraph 2 of article 206, in connection with article 502 and paragraph 5 of article 503, of the Penal Code. Atienza, while engaged in the public service as a detective of the military authorities, and therefore acting as a public officer, and on the occasion of the search for and seizure in the house of the complaining witness of the sum of money belonging to the latter, appropriated and converted to his own use part of this money lucri causa and to the prejudice of its owner. This crime is specially defined by the law in article 206 as robbery with personal

violence, in consideration of the character and special circumstances of the criminal act. The search for and seizure of the money was made without compliance with the formalities prescribed by the law. The money was not counted in the presence of the owner or his nearest relatives, or of two neighbors, and therefore, notwithstanding the fact that the seizure of the money was effected by virtue of a lawful order given by competent authorities, the seizure was not carried out in the manner prescribed by the law. For this reason it can not be held that the punishable conversion took place subsequently to the seizure of the money by virtue of an order from competent authorities, inasmuch as the failure to comply with the requisites prescribed by the law, and the fact that the money seized was not counted, and that the accused was the person who had denounced the existence of this money, raise a strong presumption that Atienza, when carrying out the orders of seizure, went there with the criminal intent to steal and appropriate to his own use part of the money denounced by him. He availed himself of the occasion to proceed to search Father I lagan's house, and seized a considerable sum of money belonging to the latter in order to appropriate ( lucri causa ) the sum of 300 pesos. Although the punishable act and unlawful conversion may not be regarded as simultaneous, the malicious intent to keep part of the money found is made manifest by the mere fact that the search was conducted with unnecessary harshness and intimidation, and that all the money found in the two houses was seized without the same having been counted in the presence of the parties in interest, this being an indispensable requisite to the legality of the act. The nature and character of the crime committed by the accused are such that the offense does not fall within the conditions of the law with respect to the crimes of estafa and malversation. Persons guiity of estafa or malversation lawfully come into the possession of the money which they (subsequently convert or embezzle. The deceit, the fraud, and the abuse of confidence are supervenient to the original lawful act. The policeman, Julian Atienza, did not receive from anyone Father Ilagan's money, but, by virtue of a lawful order, seized this money himself without'compliance with the legal requisites, and on the occasion of his irregular compliance with this order, took and appropriated the sum of 300 pesos, separating it from the total amount seized. The facts may not, perhaps,, disclose all the characteristics of a crime of robbery. Nevertheless the fact remains that the criminal law so defines these facts in article 206, and attributes to a public officer who so unworthily abuses his official position a higher degree of criminality and malice. For these reasons, no mitigating or aggravating circumstances having concurred in the commission of the crime, the writer is of the opinion that the information upon which this trial was commenced should be sustained, the judgment of acquittal reversed, and Julian Atienza convicted as principal in the crime of robbery with personal violence, and condemned to four years of presidio correccional , with the accessories of suspension from all public office, profession, trade, or right of suffrage, and to the restitution of the 300 pesos to Father Ilagan, and, in case of insolvency, to suffer the corresponding subsidiary imprisonment, and to pay the costs of both instances. McDonough, J., did not sit in this case.

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G.R. No. 1044, May 15, 1903

PEDRO JULIA, COMPLAINANT AND APPELLEE, VS. VICENTE SOTTO, DEFENDANT FIND APPELLANT. D ECIS ION
MAPA, J.: The accused is charged with the offense of libel, committed, according to the complaint, by means of a publication on the 12th of September, 1901, in issue No. 209 of "El Pueblo," a newspaper edited and published in the city of Cebu, and of which the defendant was editor and proprietor, of an article entitled "Miracles of Father Julia; the bitter truth," in which article are contained libelous phrases tending to dishonor and discredit the complaining witness and to bring him into contempt. In the complaint those parts of the article which are necessary for the purposes of the accusation are copied literally, hence it is not necessary to transcribe them here. The case having been prosecuted to a termination, the defendant was convicted in the court below and sentenced to four years' banishment at a distance of 50 kilometers from the town lines of the municipality of Cebu, and to the payment of a fine of 625 pesetas and to the costs of the suit. From this judgment he appeals to this court. One of the errors assigned by the appellant in this appeal is the infraction of the provisions of section 23 of General Orders, No. 58, which he alleges was committed by the court below in the prosecution of this case against him. This allegation affects the validity of the trial, and is, therefore, by reason of its importance, worthy of a careful consideration. Upon being arraigned on the charge the accused set up the plea of jeopardy, and asked that the complaint be dismissed. This plea was overruled by the court. Thereupon the application for the allowance of an appeal against the order disposing of the plea of jeopardy having been denied, the plea of jeopardy was again advanced at the time the accused pleaded not guilty. It is alleged that the prosecuting witness, on the 16th of September, 1901, filed against the defendant a complaint, amended on the 4th of November following, charging him with the same offense of which he is accused in the present trialthat is, the publication of libelous matter in the issue of the 12th of September, 1901, of the newspaper "El Pueblo," of which the defendant was editor; that the court sustained a demurrer to this complaint; that in sustaining the demurrer the court did not base its ruling upon a lack of jurisdiction, nor did it order the filing of a new complaint or information. In support of his contention the appellant cites section 23 of General Orders, No. 58, which he alleges prohibits a second trial for the same offense in such cases. The court below in overruling the said exception of jeopardy did not do so on the ground of the inaccuracy of the facts alleged by the accused as the ground of his motion, but upon the ground that they are not, in his opinion, sufficient to constitute jeopardy, or any other defense. On his part the complaining witness in a written argument on page 27 of the record admits the truth of the allegations; that a complaint, amended on the 4th of November, 1901, was presented against the accused, and that this complaint was dismissed by the court. He alleges that the ruling is based upon the following grounds:

(1) Because the said complaint was not drawn in the form required by General Orders, No. 58; (2) Because in the said complaint no allegation was made as to the time or place of the commission of the alleged offense; (3) Because the alleged libelous words had not been copied therein, but merely the conclusions drawn by the complainant therefrom. This does not disprove nor is it in conflict with the allegation of the accused that the court below, when dismissing the complaint of November 4, did not order the filing of a new complaint or information, and consequently the truth of this assertion is impliedly admitted. Among the grounds upon which, according to the complaining witness himself, the judge dismissed said complaint, we do not find included a finding that the court was without jurisdiction over the offense charged. The fact that the place in which the offense was committed was not stated in the complaint does not support the deduction which the complainant apparently seeks to drawthat the court dismissed the complaint by reason of lack of jurisdictionbecause the only effect produced by such omission is to make the complaint insufficient or defective, but by no means does it deprive the court of the jurisdiction which the law confers upon it, and which it might have exercised had the complaint been properly drawn. The proof of this is that the complainant subsequently presented the complaint upon which this trial is based, correcting the defects in the complaint of the 4th of November, and presented this new complaint to the same court which had dismissed the preceding one. Upon the comparison of one complaint with the other, it will readily be seen that the accused is charged therein with the same offense, inasmuch as both refer to the alleged libelous matter published'in the article entitled "Miracles of Father Julia" in the issue of "El Pueblo," of which the defendant was editor, corresponding to the 12th of September, 1901. It is true that in the complaint of November 4 the words contained in the article are not transcribed verbatim, but this circumstance is merely accidental, and by no means necessary for the identification of the offense. It is sufficiently identified by the citation of the article upon which the complaint is based, its heading, the name of the paper in which it was published, the date of its publication, and by the offense which the complainant considers to have been committed by its publication. These are the circumstances which identify the offense with precision and exactness, making it impossible to confound it with any other; and it appears that in both complaints the same offense is referred to. All this, in connection with the statements alleged in the complaint of the 4th of November to be libelous, all of which are taken from the article referred to and are actually found therein and which, by the way, are the most libelous ones it contained, leaves no ground for the slightest doubt that in the said complaint the accused was charged with the publication against the complainant of the libelous matter contained in the article referred to. This libelous matter is precisely the same as that upon which the complaint in this case is based, and therefore the offense charged in both complaints is one and the same, notwithstanding the fact that the complaint of November 4 was dismissed, because in the opinion of the court below it lacked the elements necessary under the laAv to the existence of a valid complaint. The allegation made by the private prosecutor, that the complaint of the 4th of November did not charge the accused with any offense, inasmuch as the judge considered that this allegation was insufficient to charge the offense of libel because it did not contain verbatim the alleged libelous matter, but only conclusions of the complaining witness himself, is wholly, without foundation and can not merit our approval. Jit is sufficient to read the complaint in order to see

that the charge of libel was clearly and distinctly made, and that the libel was alleged to consist precisely in the article already mentioned. The dismissal of the complaint by reason of its formal defects could not in any degree affect or alter the reality of this fact, whether the conclusions of law of the court below in its order dismissing it are correct or not, nor can it be at present considered, because of the plaintiff's admission. Furthermore, the libelous matter, the publication of which is denounced in the complaint, is defamatory in so high a degree that it would be difficult for us to imagine a publication which could possibly be more injurious in the eyes of the public. We consider, therefore that the record discloses sufficiently (1) That the defendant had been accused by the complaining witness in his complaint of November 4, 1901, of the same offense with which he is charged in the present case; (2) That the said complaint was dismissed by an order .sustaining the demurrer of the accused, based, among other grounds, upon the failure to draw the said complaint with the essential requisites prescribed by the law; (3) That in sustaining the demurrer and dismissing the complaint the court did not find that it was without jurisdiction to try the offense charged, nor did it order the presentation of a new complaint or information. This being so, the case falls fully within the provisions of section 23 of G.0., No. 58, which is literally as follows: "If the demurrer is sustained, the judgment shall be final on the complaint or information demurred to, and it shall be a bar to another prosecution for the same offense, unless the court delivering judgment was without jurisdiction, or unless the court, being of opinion that the objection may be avoided, directs a new complaint or information to be tiled. If the court does not direct that the accused be remanded to a court of proper jurisdiction for trial or that a new information be filed, the defendant must be discharged or his bail be exonerated." The grounds upon which the demurrer referred to in this section may be made are enumerated in section 21, of which section 23 is the complement, and among them is included (No. 2) the objection to the complaint by reason of its failure to conform to the essential requisites prescribed by the law, which was one of the objections advanced by the accused and sustained by the court in dismissing the complaint of November 4, 1901. The court, then, not having declared itself to be without jurisdiction and not having ordered the presentation of a new complaint or information, the order sustaining the plea is a bar to further prosecution of the accused for the same offense charged in the first complaint, in accordance with the provisions of section 23. The principle established by this section is clear and explicit. If a demurrer by the accused is sustained, in order that he may be prosecuted again for the same offense, it is necessary that the ruling on the demurrer rests upon the ground of lack of jurisdiction, or the court must have expressly directed the presentation of a new complaint or information. Outside of these two excepted cases, it would be unlawful and unjust to submit the accused to a subsequent prosecution, and to do so would be error. Andythis is certainly a logical result, in view of the principles of a system of procedure both just and equitable, and neither the spirit nor the law of section 23 are susceptible of any other interpretation.

Without the safeguard this article establishes in favor of the accused, his fortune, safety, and peace of mind would be entirely at the mercy of the complaining witness, who might repeat his accusation as often as dismissed by the court and whenever he might see fit, subject to no other limitation or restriction than his own Avill and pleasure. The accused would never be free from the cruel and constant menace of a never-ending charge, which the malice of the complaining witness might hold indefinitely suspended over his head, were it not that the judiciary is exclusively empowered to authorize, by an express order to that effect, the repetition of a complaint or information once dismissed in the cases in which the law requires that this be done. Such is, in our opinion, the fundamental reason of the article of the law to which Ave refer. Thanks to this article, the accused, after being notified of the order dismissing the complaint may, as the case may be, either rest assured that he will not be further molested, or prepare himself for the presentation of a new complaint. In either case, the order gives him full information as to what he may hope or fear, and prevents his reasonable hopes from being dissipated as the result of an equivocal and indefinite legal situation. To this much, at least, one who has been molested, possibly unjustly, by a prosecution on a criminal charge, is entitled. The objection sustained by the judge in this case solely affected the form of the complaint, and without self-contradiction he might well have ordered the filing of a new complaint or information. Even more, we believe it was his duty to have done so. Our understanding of the spirit of section 23 is that it makes it the duty of the judge to enter such an order whenever he considers that the defect may he cured i. e., whenever the nature of the defect is such as not to be incompatible with the filing of a new complaint or information. The judge not having done this, the private prosecutor should have appealed if he desired to preserve his right to file a new complaint for the same offense. Far from doing so, he consented to the order by which the demurrer was sustained, without reservation or restriction of any kind, and he must suffer the legal consequence of his own negligence. The accused calls the defense or exception of which he avails himself under section 23, jeopardy. We are of the opinion that this is a misnomer. Jeopardy can only result after arraignment upon a complaint sufficient bpth in form and substance. (Section 28). In the present case the complaint of November 4 was dismissed precisely because it lacked the essential requisites necessary to its validity and sufficiency as a matter of law. For the very reason that the complaint was dismissed upon the demurrer of the accused there was no arraignment, as this would only have taken place had the demurrer been overruled (section 24). It is therefore evident that this is not a case of jeopardy, notwithstanding the exception or defense set up by the accused is complete and is sufficient to offset the accusation brought by the complaining witness in this case. Section 23 establishes a special defense which, without constituting jeopardy, produces, nevertheless, the same effect a a matter of law, inasmuch as it is a bar to further prosecution for the same offense. But the judge violated the legal principle contained in this section, and therefore committed an error of law in overruling the plea and in directing the continuance of the prosecution of the cause against the accused. For these reasons we set aside the judgment of the court below, together with all the proceedings in the trial, with the costs of both instances de oficio. So ordered. Arellano, C J., Cooper, Willard, and Ladd, JJ., concur. Torres and McDonough, JJ., did not sit in this case.

OSJurist.org

G.R. No. 1046, March 21, 1903

THE UNITED STATES, COMPLAINANT AND APPELLEE VS. FELIX MANALANG,DEFENDANT APPELLANT. D ECIS ION
TORRES, J.: It is a fact, fully proven in the present case, that on the afternoon of July 11, 1902, Felix Manalang, a member of the Constabulary forces stationed in the Province of Pampanga, went with two companions to the house of Tomas Lacsamana, situated in Bacolor, in search of a revolver. Lacsamana denied that he had such a weapon in his possession. He was thereupon seized and stretched on the ground and tortured by being compelled to swallow water, which was forced into him through a piece of cane placed in his mouth. In the course of the proceedings his assailants broke one of his teeth. He was then taken to one of the stations in the town of Santa Rita, where he was kept until the night of the 12th following. On this date the defendant obtained from Ines Garcia, the wife of Lacsamana, the delivery of the sum of 15 pesos, which Eugenio Tayo, by order of the accused, demanded from Lacsamana's wife as a condition of his liberation. She was told that if she did not pay the sum of money it would go hard with her husband. This sum, which Felipe Garcia loaned Lacsamana's wife, having been received by the accused, one of his companions, Felix Alejo, Avent to the station and told Lacsamana that he might go, which he did. The delivery of the money to Manalang, on the night of July 12, 1902, was witnessed by the wife of the complainant, by Eugenio Tayo, and by Catalino Lacsamana. Pedro de Jesus, member of the municipal council for the barrio of Potrero, reported these facts to the municipal president of the town, who, in turn, reported them to the provincial fiscal, and the latter thereupon filed the information upon which this case is prosecuted. These facts, which are fully proven by the evidence, constitute the offense defined and punished by section 19 of Act No. 175, passed July 18, 1901. The defendant, a inember of the Constabulary, by means of the persecution, ill treatment, and arrest of Tomas Lacsamana obtained the sum of 15 pesos, which the said accused converted to his own use, holding tin; complainant in his custody until this sum was paid, thereby committing the crime defined and punished by the said law. The accused pleaded not guilty to the charge, but, notwithstanding his denial and exculpative allegations, which are entirely unsupported by evidence, the record sufficiently discloses his guilt. The fact that the complainant was ill treated and tortured by being compelled to swallow a considerable quantity of water through a bamboo thrust into his mouth, and in which proceeding one of his teeth was broken; that Tomas Lacsamana was unlawfully imprisoned for more than twenty-four hours in a barrio police station without having been taken before any proper authority; that the defendant demanded the sum of 15 pesotf from the wife of the complainant as a condition to his release and did not liberate him until the money was paid, are facts which are fully established by the evidence in the case1. It follows, consequently, that the defendant, Felix Manalang, is the author, by direct participation, of the crime prosecuted, and that he has incurred the penalty prescribed by section 19 of Act No. 175, above referred to. The counsel for the defendant contends that the information was defective by reason of its

failure to state that the accused at the time of the commission of the offense was an officer or member of the Constabulary forces, this being essential for the existence of the crime prosecuted. This objection is unavailing, as no exception was taken to this defect by counsel for the defendant in the court below, in which it might have been successfully raised by demurrer. Furthermore, the objection is not well taken, because the defendant was arrested, appeared before the judge, and was present throughout the trial, and even testified in his own behalf as a member of the Constabulary, without having denied his character as such, or making any objection to being so considered and prosecuted. Therefore such a defect does not vitiate the proceedings, nor has it prejudiced any essential right of the defendant. For those reasons this objection, raised in the appellate court, does not constitute sufficient ground for the annulment of the proceedings below or the reversal of the judgment. The offense punished in section 19 of Act No. 175 is complex and consists of various acts specified by the law, all of which are included in the punishable act to which the law refers. For this reason it is not strange that an information charging the offense punished by the law should contain a statement of the various acts which constitute an integral part of the crime in question. For these reasons, therefore, and considering that the commission of the crime prosecuted and the guilt of the defendant are fully established by the record, the judgment appealed should be affirmed, with the penalty therein imposed upon the defendant, and with the costs of this instance against him. So ordered. Arellano, C. J., Cooper, Willard, Mapa, and Ladd, JJ., concur.

OSJurist.org

G.R. No. 1047, March 24, 1903

THE UNITED STATES, COMPLAINANT AND APPELLEE, VS. JUAN DE CASTRO, DEFENDANT AND APPELLANT. D ECIS ION
MAPA, J.: This case leaves no room for doubt as to the guilt of the defendant. Both the witnesses for the prosecution and those for the defense agree that the defendant was the slayer of Juan Palileo, whose death has given rise to this prosecution. There is not, however, the same unanimity of testimony with respect to the manner and circumstances under which the crime was committed. Witnesses for the prosecution testified that the accused inflicted upon Palileo two stabs which caused his immediate death, because Palileo had attempted to separate him from Luceno Silleno, with whom he was quarreling at that time. According to their statements the deceased was completely unarmed, and did nothing more than to attempt to separate the other two. According to the testimony of the witnesses for the defense the deceased arrived at the scene of the occurrence armed with a piece of bamboo, and without saying a word struck the defendant on the head with it from behind, and that the defendant thereupon turned around and inflicted the stab which left the deceased stretched on the ground. These witnesses state that there had been no provocation on the part of the defendant for the attack made upon him by the deceased. The many and serious contradictions between the statements of the witnesses for the prosecution lead us to seriously doubt the truth of their testimony. Among other serious conflicts we have noted, for example, the following: (1) Petra Manalo, the widow of the deceased, testifies that she was with the latter at the time of the occurrence of the crime, and that she was an eyewitness, and gives details of the crime in her testimony; on the other hand, Ysidro Palileo, a" brother of the deceased, who also says that he was an eyewitness, testifies that the woman Manalo arrived at the place after his brother was dead, and that he does not know how it was that she heard that the deceased had been killed. This same witness, Ysidro Palileo, testifies that he did not see any woman at the place in question, or in its vicinity, at the time of the occurrence of the crime. Nevertheless Adriana Ramos testifies that she was there and saw the defendant stab the deceased in the back. (2) From the testimony of Petra Manalo it clearly appears that the killing in question occurred suddenly and instantaneously in the middle of a field at a place some hundred meters away from the nearest house. According to her statement, when her husband, who happened to be going by, drew near for the purpose of separating the accused and his adversary, Luceno Silleno, the accused suddenly turned upon him and inflicted two stabs which stretched him on the ground, and then immediately turned and fled. If this be true, the other witnesses for the prosecution, Adriana Ramos, Jose Rivera, Ysidro Palileo, and Hermongena Bonifacio, who, according to their own testimony, were in a house, would certainly not have had time to see the beginning of the occurrence, leave the house (supposing it to be the house nearest to the place), traverse the distance t)f 100 meters, and arrive at the scene of the affray in time to find the defendant in the act of stabbing the deceased. Nevertheless this is what these witnesses in effect swore to in their respective testimony. We find the testimony of these witnesses incompatible with the sudden and instantaneous manner in which the crime was committed, as described by the widow of the deceased. (3) The witness Jose Rivera is absolutely self-contradictory in his testimony. In one

place, in reply to a question as to whether he was present at the quarrel between the defendant and the deceased, he says that all he knows about it he knows by hearsay. In another part of his testimony he says that he went to the place of the affray and saw the occurrence at a distance of some fifteen yards, and gives prolix details of the occurrence, as though he were actually present at the time. Of course we do not take into consideration the statement made by this same witness and by Adriana Ramos in the documents on folios 3 and 4 attached to the complaint (p.1), in which both of them state that they saw the occurrence from their respective houses, and according to the statement of the former, at a considerable distance. We do not take these statements into consideration because these documents were not introduced as testimony in the course of the trial. If it were allowable to consider the contents of these documents it might also be said that they are in open contradiction with the testimony of these same witnesses as given at the trial, in which they stated that they went to the place of the affray and that they were there present when the crime was committed. In view of these contradictions, in connection with the emphatic statement made by the witnesses for the defense that the witnesses Ysidro Palileo, Petra Manalo, and Hermogena Bonifacio were not present when the occurrence took place, we can not give credence to the testimony of the witnesses for the prosecution. Considering the testimony of the witnesses for the defense to be true, we must apply in favor of the defendant the mitigating circumstance of incomplete self-defense, comprised in paragraph 1 of article 9 of the Penal Code, inasmuch as there was an unlawful aggression on the part of the deceased in the attack made upon the defendant from behind with a cane, with which he struck him a blow on the head, the defendant, on the other hand, having not in the slightest degree provoked this attack. We can not, however, consider the defendant to be wholly exempt from criminal liability, because it is evident that he exceeded the limits of the necessity of the defense in using the dagger which he carried, and with it inflicting a mortal wound upon the deceased. Such means were not reasonably required or necessary to repel the attack, in view of the fact that it was made with nothing more than a piece of bamboo, a weapon insufficient to put the life of the person attacked in imminent peril, more especially in consideration of the insignificance of the attack itself, for, according to the witnesses the blow struck by the deceased did not even bruise the accused. It follows that there is absent in this case one of the three requisites of section 4 of article 8 of the Codethat is, the reasonable necessity of the means employed to repel the attackin order that the necessity for self-defense may be a complete exemption from criminal liability. In view of the character of the extenuating circumstances referred to, the penalty to be inflicted upon the defendant is that inferior by one or two degrees to that assigned by law for the crime of homicide, of which he is convicted in accordance with the provisions of article 86 of the Code. We therefore condemn the defendant to suffer the penalty of six years and one day of prision mayor and to pay the sum of 500 Mexican pesos to the heirs of the deceased. The judgment appealed, so modified, is hereby affirmed, with the costs of this instance to the defendant. So ordered. Arellano, C. J., Torres, Cooper, Willard, and Ladd, JJ., concur.

OSJurist.org

G.R. No. 1049, May 16, 1903

THE UNITED STATES, COMPLAINANT AND APPELLEE, VS. FRED L. DORR ET AL., DEFENDANTS AND APPELLANTS. D ECIS ION
COOPER, J.: On May 23, 1902, a complaint was filed in the Court of First Instance of the city of Manila against Fred L. Dorr and Edward F. O'Brien, charging them with the publication of a false and malicious libel against Senor Benito Legarda, one of the United States Philippine Commissioners, by placing certain headlines or caption above an article published in the "Manila Freedom," a newspaper in the city of Manila, of which the defendant Fred L. Dorr was the proprietor and the defendant Edward F. O'Brien was the editor. The following are the headlines or caption upon which the prosecution is based: "Traitor, seducer and perjurer. Sensational allegations against Commissioner Legarda. Made of record and read in English. Spanish reading waived. Wife would have killed him. Legarda pale and nervous." The article over and above which the headlines were placed was a report of certain judicial proceedings had in the Court of First Instance of the city of Manila, in the criminal case of the United States vs . Valdez for the offense of libel,[1] and the report was a copy taken from a document prepared by the attorney for Valdez, in which the offer was made, as a defense, to prove the truth of the material allegations contained in and Avhich were the basis of the complaint against Valdez. The facts offered to be proven were published in the "Miau," a newspaper of which Valdez was editor, and related to Senor Legarda, the prosecuting witness in the Valdez case as well as in this case. At that time, under the libel law, the truth of the libelous matter was inadmissible as evidence. The judge of the Court of First Instance excluded the proof tendered in the document, but permitted it to be filed in the case, and the copy was taken from it by one Vogel, the city reporter of the "Manila Freedom." The report was handed by the reporter to the defendant O'Brien, the editor of the paper, and the headlines were written by O'Brien, and the report with the headlines thus prepared was published in the "Manila Freedom" of date April 16, 1902. The report seems to have been regarded by the prosecuting attorney as privileged matter under section 7 of the Libel Act, and, as before stated, the prosecution is based upon the matter contained in the headlines. On August 25,1902, the defendants were tried and found guilty of the offense charged in the complaint, and each was sentenced to six months' imprisonment at hard labor and a fine of $1,000, United States currency. From this judgment the defendants have appealed to this court, A demurrer was filed to the complaint, based upon the ground that the facts charged in the complaint did not constitute a public offense. This demurrer was overruled by the trial court, and an exception to the ruling taken by the defendants.

During the course of the proceedings a motion was made by the defend ants asking that they be granted a trial by jury, as provided for in Article III, section 2, of the Constitution of the United States, and Tinder the sixth amendment to the Constitution, which.motion was denied by the court, and an exception was also taken to this ruling. Before entering into a discussion of the case upon its merits, it will be necessary to consider the questions of a preliminary nature which have been raised in the assignment of errors and brief of counsel for the appellants. The questions submitted may be embraced within the following propositions: (1) That by the treaty of peace between the United States and Spain, ratified on the 11th day of April, 1899, the Philippine Islands became a part of the United States; (2) And being a part thereof, they are subject to the provisions of section 2, Article III, of the Constitution, and to the provisions contained in the sixth amendment to the Constitution, by which in all criminal cases a trial by jury is guaranteed; (3) That Congress can exercise no power over the person or property of a citizen beyond what the Constitution confers, nor deny any right guaranteed to them by the Constitution. Stated in its simple form, the proposition made is that the provisions of the Constitution of the United States relating to jury trials are in force in the Philippine Islands. The determination of this question involves the consideration of the political status of these Islands, the power of Congress under the. Constitution, and the nature of the constitutional provisions relating to jury trials. The political status of the Philippine Islands has been defined to a large extent by the decision of the Supreme Court of the United States in the case of Downes vs. Bidwell (182 U.S., 244), in which case the status of Puerto Kico was directly involved. The question in that case was whether merchandise brought into the port of New York from Puerto Rico, after the ratification of the treaty of peace with Spain and since the passage of the Foraker Act, is exempt from duty, and involved the question whether the revenue clauses of the . Constitution extend of their own force to the newly acquired territories from Spain, and whether the act is in contravention of the uniformity clause of the Constitution. The conclusion was reached that the act in question was not unconstitutional. In the consideration of the case an exhaustive review was made of the powers of Congress to govern the territories belonging to the United States, under the power to acquire territory by treaty and the incidental right to govern such territory, and under the clause of section 3, Article IV, of the Constitution, which vests Congress with the power to dispose of and make all needful rules and regulations respecting the territory or other property of the United States. This review was made in the light of the opinion of contemporaries, the practical construction placed upon the Constitution by Congress, and the decisions of the Supreme Court of the United States upon questions arising thereunder. Distinctions were found to exist in the application of the Constitution depending upon the relation which was borne to the National Government whether by a State or by the territories which belonged to certain States at the time of the adoption of the Constitution, and which were situated within the acknowledged limits of the United States, and such territory as might be acquired by the establishment of a disputed line; or by those

which were acquired by cession from foreign powers and to which the Constitution was extended by the treaty under which they were ceded, sanctioned by Congress, or to which the Constitution was expressly extended by Congressional act; or by those territories acquired from a foreign power by treaty, which have not been incorporated as a part of the United States nor to which has been extended the Constitution by act of Congress. The following conclusions are deducible from the decision in that case: 1. That Puerto Rico (to which the Philippines is equally situated) did not by the act of cession from Spain to the United States become incorporated in the United States as a part of it, but became territory pertaining to and belonging to the United States. 2. That as to such territory Congress may establish a temporary government, and in so doing it is not subject to all the restrictions of the Constitution. 3. That the determination of what these restrictions are and what particular provisions of the Constitution are applicable to such territories involves an inquiry into the situation of the territory and its relation to the United States. 4. That the uniformity provided for in the revenue clause of the Constitution is not one of those restrictions upon Congress in its government of the territory of Puerto Rico. What is the character of these restrictions and how are they to be ascertained and determined? And to what extent is the Constitution in force and effect in these Islands? Both Mr. Justice Brown, in delivering the majority opinion, and Mr. Justice White, in delivering the concurring opinion, refer to these constitutional restrictions. In formulating certain propositions as his conclusions, Justice White uses the following language: "Whilst, therefore, there is no express or implied limitation on Congress, in exercising its power to create local governments for any and all of the territories, by which that body is restrained from the widest latitude of discretion, it does not follow that there may not be inherent, although unexpressed, principles which are the basis of all free government which can not be with impunity transcended. But this does not suggest that every express limitation of the Constitution Avhich is applicable has not force, but only signifies that even in cases where there is no direct command of the Constitution which applies, there may nevertheless be restrictions of so fundamental a nature that they can not be transgressed, although not expressed in so many words in the Constitution," [1] He also says: "Undoubtedly, there are general prohibitions in the Constitution in favor of the liberty and property of the citizen which are not mere regulations as to the form and manner in which a conceded power may be exercised, but which are an absolute denial of all authority under any circumstances or conditions to do particular acts. In the nature of things, limitations of this character can not be under any circumstances transcended, because of the complete absence of power.

"The distinction which exists between the two characters of restrictions, those which regulate a granted power and those which withdraw all authority on a particular subject, has in effect been always conceded, even by those who most strenuously insisted on the erroneous principle that the Constitution did not apply to Congress in legislating for the territories, and was not operative in such districts of country." Mr. Justice Brown in this connection quotes the following language used by Mr. Justice Bradley in the case of the Mormon Church vs. United States (136 U. S., 1) : "Doubtless Congress, in legislating for the Territories, would be subject to those fundamental limitations in favor of personal rights which are formulated in the Constitution and its amendments; but those limitations would exist rather by inference and the general spirit of the Constitution from which Congress derives all its powers than by any express and direct application of its provisions."[1] Again he says: "There are certain principles of natural justice inherent in the Anglo-Saxon character which need no expression in constitutions or statutes to give them effect, or to secure dependencies against legislation manifestly hostile to their real interest." [2] The case of the American Insurance Company vs. Canter (1 Pet., 511) is a very interesting and instructive case which well illustrates the difference in the application of constitutional provisions to territories which are a part and within the United States, and to those acquired from a foreign power by cession which have not been incorporated into the United States, nor have had by act of Congress the Constitution extended to them. Florida was ceded by Spain to the United States, as was also the Philippines. The status of the Philippines at the present time is very similar to that of Florida at the date of the act passed by the legislative council of Florida, the constitutionality of which was considered in the case of the American Insurance Company vs. Canter. The statement of the case and the decision is taken from the opinion of Justice Brown in the case of Downes vs. Bidwell, and is as follows: "This case originated in the district court of South Carolina for the possession of 356 bales of cotton, which had been wrecked on the coast of Florida, abandoned to the insurance companies, and subsequently brought to Charleston. Canter claimed the cotton as bona fide purchaser at a marshal's sale at Key West by virtue of a decree of a territorial court consisting of a notary and five jurors, proceeding under an act of the governor and legislative council of Florida. The case turned upon the question whether the sale bv that court was effectual to divest the interest of the underwriters. The district judge pronounced the proceedings a nullity, and rendered a decree from which both parties appealed to the circuit court. The circuit court reversed the decree of the district court upon the ground that the proceedings of the court at Key West were legal, and transferred the property to Canter, the alleged purchaser. "The opinion of the circuit court was delivered by Mr. Justice Johnson of the Supreme Court, and is published in full in a note in Peter's Reports. It was argued that the Constitution vested the admiralty jurisdiction exclusively in the General

Government; that the legislature of Florida had exercised an illegal power in organizing this court, and that its decrees were void. On the other hand, it was insisted that this was a court of separate and distinct jurisdiction from the courts of the United States, and as such its acts were not to be reviewed in a foreign tribunal, such as was the court of South Carolina; 'that the district of Florida was not part of the United States, but only an acquisition or dependency, and as such the Constitution per se had no binding effect in or over it.' 'It becomes,' said the court, 'indispensable to the solution of these difficulties, that we should conceive a just idea of the relation in which Florida stands to the United States. * * * And, first, it is obvious that there is a material distinction between the territory now under consideration and that which is acquired from the aborigines (whether by purchase or conquest) within the acknowledged limits of the United States, as also that which is acquired by the establishment of a disputed line. As to both these, there can be no question that the sovereignty of the State or territory Avithin which it lies, and of the United States, immediately attach, producing a complete subjection to all the laws and institutions of the two governments, local and general, unless modified by treaty. The question now to be considered relates to territories previously subject to the acknowledged jurisdiction of another sovereign, such as was Florida to the crown of Spain. And on this subject we have the most explicit proof that the understanding of our public functionaries is that the gavernment and laws of the United States do not extend to such territory by the mere act of cession. For, in the act of Congress of March 30, 1822, section 9, we have an enumeration of the acts of Congress which are to be held in force in the territory; and in the tenth section an enumeration, in the nature of a bill of rights, of privileges and immunities, which could not be denied to the inhabitants of the territory if they came under the Constitution by the mere act of cession. * * * These States, this territory, and future States to be admitted into the Union are the sole objects of the Constitution; there is no1 express provision whatever made in the Constitution for the acquisition or government of territories beyond those limits.' He further held that the right of acquiring territory was altogether incidental to the treaty-making power; that their government was left to Congress; that the territory of Florida did 'not stand in the relation of a State to the United States;' that the acts establishing a territorial government were the constitution of Florida; that while under these acts the territorial legislature could enact nothing inconsistent with what Congress had made inherent and permanent in the territorial government, it had not done so in organizing the court at Key West." [1] Justice Brown further cites from the opinion of Chief Justice Marshall in this case, in which the latter held "that the judicial clause of the Constitution, above quoted, did not apply to Florida; that the judges of the superior courts of Florida held their office for four years; that 'these courts are not constitutional courts in which the judicial power conferred by the Constitution on the General Government can be deposited;' that 'they are legislative courts, created in virtue of the general right of sovereignty which exists in the government,' or in virtue of the territorial clause of the Constitution; that the jurisdiction with which they are invested is not a part of judicial power of the Constitution, but is conferred by Congress, in the exercise of those general powers which that body possesses over the territories of the United States; and that in legislating for them Congress exercises the combined powers of the general and of State governments. The act of the territorial legislature, creating the court in question, was held not

to be 'inconsistent with the laws and Constitution of the United States,' and the decree of the circuit court was affirmed," [2] Remarking upon this case, Justice Brown says: "As the only judicial power vested in Congress is to create courts whose judges shall hold their offices during good behavior it necessarily follows that, if Congress authorizes the creation of courts and the appointment of judges for a limited time, it must act independently of the Constitution, and upon territory which is not part of the United States within the meaning of the Constitution." [3] The act of Congress of July 1, 1902, entitled administration of the affairs of civil government purposes," in section 5 extends to the Philippine Constitution known as the Bill of Rights. But there Constitution relating to jury trials contained in amendment. "An Act temporarily to provide for the in the Philippine Islands, and for other Islands nearly all of the provisions of the was excepted from it the provisions of the section 2, Article III, and in the sixth

It becomes necessary for us to determine whether these provisions of the Constitution of the United States relating to trials by jury are in force in the Philippine Islands. It is difficult to determine from the general statements contained in these decisions what are "those fundamental limitations in favor of personal rights which are formulated in the Constitution and its amendments and which exist by inference." It seems fairly deducible from all that has been said upon this subject that such provisions are negative in character rather than of a direct positive or affirmative nature, denying to Congress the power to pass laws in contravention with such principles of the Constitution. If this is their nature and this be the true distinction, it can not be said that either Congress or the Philippine Commission have passed any laws which would come within the inhibition of the Constitution, or which tend to impair the right to trial by jury in these Islands. All that can be said is that, in extending the various provisions of the Bill of Rights here, Congress has failed to extend those provisions guaranteeing the right to trial by jury. We will now turn to the consideration of the question as to whether a violation of the right to a jury trial falls within the inhibition arising from the existence of those fundamental limitations in favor of personal rights mentioned in the decisions. There are a number of cases cited in Downes vs. Bidwell establishing the right to trial by jury in territories of the United States, but these decisions have all arisen in cases relating to territories which were a part of the United States and had been incorporated, as a part thereof and to which Congress had expressly extended the Constitution. In Webster vs. Reid (11 How., 437) it was held that the law of the Territory of Iowa which prohibited the trial by jury of certain actions at law, founded on contract to recover payment for services, was void; but, as it is said, this case is of little value as bearing upon the question of the extension of the Constitution to that Territory, inasmuch as the organic law of the Territory of Iowa enacted by Congress by its express provision extended to Iowa the laws of the United States, including the ordinance of 1787 (which provided expressly for jury trials), so far as they were applicable; and the case was put upon this ground.

In Callem vs. Wilson (127 U. S., 540) the defendant had been convicted without jury trial, in the District of Columbia, but the District of Columbia was not only within and a part of the United States but had formed a part of the original States of Virginia and Maryland. In the case of Springville vs. Thomas (l66 U. S., 707) it was held that a verdict returned by less than the whole number of jurors was invalid, because in contravention of the seventh amendment to the Constitution and the act of Congress of April 7, 1874, which provide that no party shall be deprived of the right of trial by jury in cases cognizable at common law. This is, as stated by Mr. Justice Brown, "obviously true with respect to Utah, since the organic act of that Territory had expressly extended to it the Constitution and laws of the United States." [1] The other decisions cited by counsel for the appellants can all be traced to the same principle; that is, that where Congress has extended the laws and the Constitution to the territories, then Congress would be inhibited by the Constitution from enacting a law depriving persons living in such territories from the right to trial by jury. The only case which we have been able to discover arising under an act of Congress, and which deprived a party of the right to a trial by jury at a place where the Constitution had not been extended by express provision, is the case of In re Ross (140 U. S., 453). This was a case in which the American consular tribunal in Japan, created by act of Congress under treaty with, the Government of Japan and vested with jurisdiction, to be exercised and enforced in accordance with the laws of the United States, to try Americans, had, in the exercise of this jurisdiction, convicted the defendant of the crime of murder, and he was sentenced by that court to the penalty of death. It was held that "the guaranties it (the Constitution) affords against accusation of capital or infamous crimes, except by indictment or presentment by a grand jury, and for an impartial trial by a jury when thus accused, apply only to citizens and others within the United States, or who are brought there for trial for alleged offenses committed elsewhere, and not to residents and temporary sojourners abroad." [1] It seems from this decision that the powers of Congress to enact a law which would deprive a person of the right to a trial by jury is expressly recognized, and that such legislation does not come within the fundamental limitations in favor of personal rights, for this act of Congress which operated upon citizens of the United States abroad is recognized as a valid act of Congress. The act is saved from the constitutional inhibition by reason that in such country the Constitution of the United States does not extend, and is not in force there, but the decision in this case nevertheless establishes the doctrine that there is not upon Congress an absolute and total inhibition under any and all circumstances to enact a law in which a person is deprived of the right to a trial by jury. It may be further observed that if it should be held that the constitutional provision guaranteeing the right to trial by jury has been introduced here by the simple act of cession, there is no law in existence to give such provision effect. Trial by jury was unknown to the law in force in these Islands prior to the date of cession, nor has the Philippine Commission passed any law which would give it effect. Such provisions of a constitution as those relating to trial by jury can hardly be regarded as self-executing. It is

necessary that there should be some legislation carrying them into affect, such as laws prescribing the qualifications of persons for jury duty, for the organization of juries and provisions of a like character. Suppose the Constitution has been extended here by force of the cession of territory and that it should be held that there could be no legal conviction for crime in the Philippines on account of the absence of the law prescribing the qualifications of jurors or for the organization of juries, and Congress, in the exercise of its sound judgment, after a careful examination of the conditions prevailing in such territory and in the exercise of its undoubted right to govern the territory, should reach the conclusion that an efficient territorial government could not be conducted in which convictions for crime are dependent upon the verdict of juries, by reason of the hostility of the inhabitants of such country to the constituted authorities, or the lack of the qualification of the people of the country or an extensive portion of it to perform jury service, and should refuse to enact any law for jury trials, the criminal laws in such event must remain unenforced and a state of anarchy would be the result. In such case the question assumes very much the nature of a political question, and the judicial department might well hesitate to interfere indirectly with Congress in the exercise of its judgment, and in the exercise of its broad discretion in the government of a territory so situated. It is contended, also, by counsel for the defendants, that Congress could not lawfully authorize the Philippine Commission to enact the libel law passed by it on October 24, 1901, under which the defendants have been convicted. The objection to the law is based upon the theory of the division of the Federal Government into three branches, executive, legislative, and judicial, and that the powers of legislation vested in Congress to make laws can not be delegated by that department to the judgment, wisdom, or patriotism of any other body or authority. While the authorities cited in support of the general proposition maintain the doctrine, there are well-known exceptions to the general rule not referred to in these decisions, for the reason that the decision of the case did not require their consideration. A well-known exception is that of municipal corporations, upon which the powers of legislation are commonly bestowed. The case in question forms an exception to this general rule equally well established. Congress, in the exercise of its power to make rules and regulations for the government of the territories, has often delegated the power of legislation to the territorial government. The case of American Insurance Company vs. Canter (1 Pet, 511), before cited, originated under an act of the governor and legislative council of Florida, organizing a court and vesting in it admiralty jurisdiction, and in which the jurisdiction of the court was sustained by the Supreme Court of the United States. Speaking of the power of Congress in creating territorial governments, it is said in the case of De Lima vs. Bidwell (182 U. S., 1) that "the power to establish territorial government has been too long exercised by Congress and acquiesced in by the Supreme Court to be deemed an unsettled question." We reach the conclusion in this case: 1. That while the Philippine Islands constitute territory which Has been acquired by and belongs to the United States, there is a difference between such territory and the territories which are a part of the United States with reference to the Constitution of the United States.

2. That the Constitution was not extended here by the terms of the treaty of Paris, under which the Philippine Islands were acquired from Spain. By the treaty the status of the ceded territory was to be determined by Congress. 3. That the mere act of cession of the Philippines to the United States did not extend the Constitution here, except such parts as fall within the general principles of fundamental limitations in favor of personal rights formulated in the Constitution and its amendments, and which exist rather by inference and the general spirit of the Constitution, and except those express provisions of the Constitution which prohibit Congress from passing laws in their contravention under any circumstances; that the provisions contained in the Constitution relating to jury trials do not fall within either of these exceptions, and, consequently, the right to trial by jury has not been extended hero, by the mere act of the cession of the territory. 4. That Congress has passed no law extending here the provision of the Constitution relating to jury trials, nor were any laws in existence in the Philippine Islands, at the date of their cession, for trials by jury, and consequently there is no law in the Philippine Islands entitling the defendants in this case to such trial; that the Court of First Instance committed no error in overruling their application for a trial by jury. We also reach the conclusion that the Philippine Commission is a body expressly recognized and sanctioned by act of Congress, having the power to pass laws, and has the power to pass the libel law under which the defendants were convicted. We will now pass to the third assignment of error, which is that the headlines or caption of the article charged to be libelons were legitimate deductions from a previous report of a public judicial proceeding and were insufficient to constitute the offense of libel. The testimony shows that the defendant Fred L. Dorr was the proprietor, and that the defendant Edward F. O'Brien was the editor, of the "Manila Freedom;" that the article upon which the complaint is founded was published in the issue of that paper on the 16th of April, 1902; that the privileged statements or report of the judicial proceedings, the headlines of which are the basis of the prosecution, arose on the trial of the case of the United States vs. Valdez, in the Court of First Instance in the city of Manila, in which case Valdez was charged with the offense of libel, the complaining witness in that case being Seiior Legarda, who was also the complaining witness in this case; that counsel for the defendant Valdez prepared a written statement of certain facts and offered to prove the truth of these statements if permitted by the court. A copy of this statement was made by the reporter of the "Manila Freedom"one Vogelwhich, having been presented to the defendant O'Brien, the editor, the latter prepared the headlines or caption set forth in the complaint. The attorney for the defendants, under his assignment of errors, makes the proposition that the headlines or caption was a legitimate deduction from the privileged report of the judicial proceedings, and as such was itself a privileged publication. This proposition is succinctly made and is easily understood; no material facts are in dispute; our law of libel is contained in the few sections in which the law upon this subject is concisely and clearly stated, and renders it unnecessary to refer to text-books or decisions of the courts of other jurisdictions. Thus the

labors of the court have been simplified in the determination of the case. Section 1 of Act No. 277, Philippine Commission, gives the following definition of libel : "A libel is a malicious defamation, expressed either in writing, printing, or by signs or pictures, or the like, or public theatrical exhibitions, tending to blacken the memory of one who is dead, or to impeach the honesty, virtue, or reputation, or publish the alleged or natural defects of one who is alive and thereby expose him to public hatred, contempt, or ridicule." Did the matter contained in these headlines or caption have a tendency to impeach the honesty, virtue, and reputation of the injured party? We need not stop to discuss this question. Was it a malicious defamation? This appears equally. plain, for section 3 is as follows: "An injurious publication is presumed to have been malicious if no justifiable motive for making it is shown." No attempt has been made by the defendants to show a justifiable motive, and the established presumption of law that the publication was malicious must prevail. Nor has there been any attempt made to show the truth of the matter contained in the headlines. But it is attempted to bring the headlines or caption within the exception of privileged matter. Section 7 of the act defines this character of privileged matter as follows: "No reporter, editor, or proprietor of any newspaper is liable to any prosecution for a fair and true report of any judicial, legislative, or other public official proceedings, or of any statement, speech, argument, or debate in the course of the same, except upon proof of malice in making such report, which shall not be implied from the mere fact of publication." Section 8 reads as follows: "Libelous remarks or comments connected with matter privileged by the last section receive no privilege by reason of being so connected." It follows, therefore, that the matter is libelous; that it was a malicious publication as denned by law. The only question that remains to be considered is, Were those headlines or caption "remarks" or "comments" on the privileged matter? The word "comment" is defined by Webster as a "remark, observation, or criticism; gossip, discourse, talk; a note or ohservation intended to explain., illustrate or criticise the meaning of a writing , book, etc. Explanation, annotation, exposition." The word "remark" is denned by him as "an expression in speech or writing of something remarked or noticed. The mention of that which in worthy of attention or notice. A casual observation, comment, or statement." The headlines or caption comes within the definition of "remarks" as given by Webster, in that it is "the mention of that which is worthy of attention or notice," and they also fall within the definition of the word "comment" defined as "a note or observation intended to explain."

The defendants' counsel denominates the character of the headlines or caption as a "legitimate deduction from the privileged report." The word "deduction" is defined by Webster as "that which is deduced, or drawn from premises by a process of reason; inference; acquisition." It seems from these definitions that the word "deduction" conveys about the same meaning as the words "comment" and " remark"; at least it would be as objectionable to make injurious deductions as to make injurious comments or remarks. To say that the headlines or caption is not a remark or comment but an "epitome" or "index" of what is contained in the privileged article is simply a play upon words, and it is useless to follow this line of argument further. The intention of the statute, as shown in sections 7 and 8, is that the privileged matter should be a fair and true report, and must stand alone as such. If headlines or captions are used, the matter contained in them must not be remarks or comments of a libelous nature. If by any process additional significance is added, either by display letters or by the arrangement of catchwords, under whatever name they may be designated, it comes within the denunciation of the statute. That the headlines were not a part of the report prepared by Vogel, the reporter who was present in the court and Avho made a copy of the report, is shown in the testimony. The defendant O'Brien, who, so far as the testimony shows, knew nothing about the matter contained in the report except that acquired by the reading of it after it was delivered to liim, made the headlines or caption. It is said that it is the common practice in the United States to make such headlines in display letters to render the necessary assistance to the reader in determining whether he cares to read the article. It is immaterial what the real intention of those who write such headlines may be; if such caption and headlines are libelous, the writer must bear the consequences. The law declares the motive of the writer, in the absence of proof of justifiable motive and the truth of the matter, to be malicious. The decisions of some of the courts of the United States have held that an index of words contained in the privileged matter, when fairly and truly made, will partake of the nature of the article indexed; but, as we have shown, our law does not permit this. Nor is it possible to reach the conclusion that the words contained in the headlines are a fair index. No idea can be gathered from these headlines of the real nature of what is contained in the published article. The privileged report was a written statement prepared by the attorney in the Valdez case, in which an offer was made to prove the truth of certain statements regarded as material in the defense of the case and which was by the court excluded. This was the general nature of the matter contained in the report. Can anyone, by reading the headlines or caption, form any conception as to. the real nature of the document to which the headlines have been prefixed? It is also said that the headlines in this case are not worse than the matter contained in the

report. This may be admitted as true, but in the eyes of the law there is a. distinction. The injurious matter contained in the report is regarded by the law as protected by a privilege which should be extended to the report of judicial proceedings, but here the privilege ends. It is unnecessary to inquire why this distinction should be made. It is sufficient that the law so makes it. It is stated that there is not a word contained in the headlines or caption which is not found in the privileged report. We have attempted to show that this is immaterial. But this statement is in fact incorrect. The sentences "sensational allegations against Commissioner Legarda, made of record and read in English; Spanish reading waived; wife would have killed him; Legarda pale and nervous," are not found in the report. Nor can the sentence "Legarda pale and nervous" even be deduced from anything contained in the report, nor does it appear from the testimony to have been in fact true. When the statement in writing was offered and read before the court, according to the testimony in the case, Senor Legarda was not at that time present in court. We will notice briefly the character of the caption and headlines, the effect of which can well be imagined. The copy of the "Manila Freedom" containing the article is attached to the record. An examination of it shows that the words "traitor, seducer, and perjurer" were printed in large display letters, and were of a size sufficient in the use of these words to cover a space equal to that of three columns across the paper. They were placed at the top of the first page of the paper. The other words were in smaller type, but much larger than the ordinary type. It is hard to conceive language stronger than that contained in the three words "traitor, seducer, and perjurer." No more effectual means could be adopted to destroy the good name and fame of a person. More significant words can not be found in the English language to impeach the honesty, reputation, and virtue. By skillful selection the sting of the entire document has been placed in the caption and headlines in such a manner that in a literal sense "he who runs may read." We conclude that the publication of the caption and headlines in the "Manila Freedom," upon which the information is based, constituted the offense of libel; that the judgment is sustained by the evidence; that the defendants, Fred L. Dorr and Edward F. O'Brien, are guilty of the offense charged in the information; that no error was committed in the trial of the case prejudicial to the rights of the defendants, and that the judgment of the Court of First Instance should be affirmed, with costs against the defendants. It is so ordered. Arellano, C. J., Torres and Mapa, JJ., concur.

[1] Legarda vs . Valdez, 1 Phil. Rep., 562. [1] 182 U.S., 290. [1] 182 U. S., 268. [2] 182 U.S., 280. [1] 182 U.S., 263.

[2] 182 U.S., 266. [3] 182 U.S., 266. [1] 182 U.S., 270. [1] 140 U.S., 464.

DISSENTING WILLARD, J., with whom concurs LADD, J.: The case presents two questions: (1) Were the headlines privileged, and (2) if they were, was there express malice in publishing them? 1. 1. The important part of the article in question, and the only part which contained any libelous matter, was the offer to prove contained therein. This offer was actually made a part of the record of the case on trial in the Court of First Instance. Under section 7 of the libel law, the defendants had the right to publish it if they did so without malice. The Government recognized this right when it limited the charge in the complaint to the headlines of the article, and it is not and can not be claimed that the defendants are guilty of libel for publishing the article itself. Nothing could be worse or more libelous than the statements contained in this offer. I do not wish to give them currency by copying them here, but it is necessary to say that it was distinctly charged in this offer, in so many words, that the complaining witness in the ease "seduced" a girl living in his house. It was also distinctly charged therein that he had added to his other crimes those of treason and perjury. For the publication of these most grave and unfounded charges the defendants are not prosecuted. They are, however, prosecuted for placing over the article certain headlines. That headlines to a privileged article may be used can not be doubted. The public must be able to get some idea of what a newspaper article contains without reading it entirely through. And it is not claimed that the defendants had not a right to put a proper heading to this report. The question is, Was the one actually used proper? If the heading is a fair index, and nothing more, of the article, it is as much privileged as the article itself. If it expresses the opinion of the editor on the statements in the article, it is not privileged as to such expressions. Such expressions of opinion are called in our law comments and remarks. The rule is well illustrated in this case. The words "Spanish reading waived" is a mere statement of what the article contains. It expresses no opinion of the editor upon any part of it. On the contrary, the word " sensational" in connection with the word "allegations" is a comment or remark and is not privileged. It says that in the opinion of the editor the allegations made in the offer are sensational. It is not an index of any statement of fact made in the article, but is an expression of opinion upon such facts. The headline "Legarda pale and nervous" can perhaps be considered as an expression of

opinion, although in this respect there is a statement of fact to this effect. But this is unimportant, for these words, even if not privileged, are not libelous. Neither is the word "sensational" libelous. It is claimed that the words "Traitor, seducer, perjurer" are not an index of the article, but are an expression of the opinion of the editor that the complaining witness was a traitor, seducer, and perjurer. In order to determine this question it is necessary to consider the whole of the headline and to consider it with reference to the article itself. The mechanical necessities of newspaper composition generally forbid the employment of complete grammatical sentences in headlines. They must of necessity be elliptical. The reader does not expect to find the whole thought contained in the first two or three isolated words. It is necessary to look at the whole of the headlines to ascertain this. The case at bar illustrates this proposition. The first line consisting of these three words of itself means nothing. The words are not spoken of any person. In order to find out to whom they refer it is necessary to go to the line below, in which, while it is learned that they refer to Senor Legarda, it is also seen at the same time that they were allegations made against him. The necessity of reading the whole of the headlines in order to get the meaning of the isolated words is illustrated by the other half of this same page. On the first line are the words "Situation in Hongkong." On the next line are the words "Health authorities fighting the Asiatic cholera epidemic." The first line does not show what feature of the situation in Hongkong is treated of in the article. The second lines does not show where the health authorities are taking action. It is only by reading them together that one learns what the article is about. Fairly construed, the headlines in question say that sensational allegations of being a traitor, seducer, and perjurer have been made against Commissioner Legarda. A person knowing nothing about the case or the parties to it, reading the whole of the headlines, could get no other idea from it. Omitting the word "sensational" which has already been considered, this statement is a fair index of the offer to prove which, as has been said before, was the principal part of the article and the only libelous part. That these crimes were plainly and distinctly, and in those very 'words, alleged against him is shown by a reading of the offer to prove. It is difficult to see how anyone could make a fair index of that offer without using those words. That was all there was of it. The result upon this branch of the ease is that the headlines are nothing more than a fair index of the article and are therefore privileged with exception of the words "sensational" and "Legarda pale and nervous," which are not libelous. 2. What has been said already leaves out of consideration the question of malice. By the express terms of section 7, if the defendants published this judicial record with express malice, they are guilty. The Government claims that there was express malice. It is not apparent why, with such a claim, the Government did not prosecute the defendants for publishing the article itself, for, as we have said, it is infinitely worse in its details than the headlines. The article with the headlines being privileged, the burden of proving express malice was on the Government.

It relied upon two kinds of evidence. It claimed that the size of type and the arrangement of the headlines proved malice. There would be some force to this claim were it not for the fact that the other headlines on the same page, to which we have referred, are in the same size of type and the arrangement of the subheads is identical with the one in question. Each one takes up one-half of the page. Any presumption of malice in the use of large type for the words "Traitor, etc.," is to my mind conclusively rebutted by the use of the same size in printing the words "Situation in Hongkong." An examination of other numbers of this paper, offered in evidence during the trial, shows that this size of type was in frequent use for headlines of the most indifferent character. The only other evidence introduced consisted of articles in other numbers of the same paper relating to the same matter. These stated the gravity of the charges made; the condition of the law in regard to the presentation of the truth as a defense, and urged that an investigation be had for the purpose of showing whether the charges were true or not. There Avas no other proof of express malice. It was proved at the trial that neither of the defendants knew Commissioner Legarda even by sight. There was no evidence that they had ever had dealings of any kind with him. The newspaper articles do not show any express malice, and any inference of that kind which could be drawn from them is, to my mind, overcome by the proof that the defendants did not know the person whom they are charged with having maliciously libeled. In conclusion it may be said that, while the defendants are not guilty, the person who made this offer in court is, for the reasons stated in my concurring opinion in the case of the United States vs. Lerma, [1] and if prosecuted for this libel could, as far as appears from the record in this case, have been convicted. The judgment should be reversed and the defendants acquitted.

[1] Page 254, supra.

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G.R. No. 1051, May 19, 1903

THE UNITED STATES, COMPLAINANT AND APPELLEE, VS. FRED L. DORR ET AL., DEFENDANTS AND APPELLANTS. D ECIS ION
LADD, J.: The defendants have been convicted upon a complaint charging them with the offense of writing, publishing, and circulating a scurrilous libel against the Government of the United States and the Insular Government of the Philippine Islands. The complaint is based upon section 8 of Act No. 292 of the Commission, which is as follows: "Every person who shall utter seditious words or speeches, write, publish, or circulate scurrilous libels against the Government of the United States or the Insular Government of the Philippine Islands, or which tend to disturb or obstruct any lawful officer in executing his office, or which tend to instigate others to cabal or meet together for unlawful purposes, or which suggest or incite rebellious conspiracies or riots, or which tend to stir up the people against the lawful authorities, or to disturb the peace of the community, the safety and order of the Government, or who shall knowingly conceal such evil practices, slall be punished by a fine not exceeding two thousand dollars or by imprisonment not exceeding two years, or both, in the discretion of the court." The alleged libel was published as an editorial in the issue of the "Manila Freedom" of April 6, 1002, under the caption of "A few hard facts." The Attorney-General in his brief indicates the following passages of the article as those upon which he relies to sustain the conviction: "Sidney Adamson, in a late letter in 'Leslie's Weekly," has the following to say of the action of the Civil Commission in appointing rascally natives to important Government positions: " 'It is a strong thing to say, but nevertheless true, that the Civil Commission, through its ex-insurgent office holders, and by its continual disregard for the records of natives obtained during the military rule of the Islands, has, in its distribution of offices, constituted a protectorate over a set of men who should be in jail or deported. * * * [Reference is then made to the appointment of one Tecson as justice of the peace.] This is the kind of foolish work that the Commission is doing all over the Islands, reinstating insurgents and rogues and turning down the men who have during the struggle, at the risk of their lives, aided the Americans.' ******* "There is no doubt but that the Filipino office holders of the Islands are in a good many instances rascals. *******

"The Commission has exalted to the highest positions in the islands Filipinos who are alleged to be notoriously corrupt and rascally, and men of no personal character. ******* "Editor Valdez, of 'Miau,' made serious charges against two of the native Commissionerscharges against Trinidad H. Pardo de Tavern, which, if true, would brand the man as a coward and a rascal, and with what result? * * * [Reference is then made to the prosecution and conviction of Valdez for libel 'under a law which specifies that the greater the truth the greater the libel.'] Is it the desire of the people of the United States that the natives against whom these charges have been made (which, if true, absolutely vilify their personal characters) be permitted to retain their seats on the Civil Commission, the executive body of the Philippine Government, without an investigation? "It is a notorious fact that many branches of the Government organized by the Civil Commission are rotten and corrupt. The fiscal system, upon which life, liberty, and justice depends, is admitted by the Attorney-General himself to be most unsatisfactory. It is a fact that the Philippine judiciary is far from being what it should. Neither fiscals nor judges can be persuaded to convict insurgents when they wish to protect them. ******* Now,we hear all sorts of reports as to rottenness existing in the province [of Tayabas], and especially the northern end of it; it is said that it is impossible to secure the conviction of la>vbreakers and outlaws by the native justices, or a prosecution by the native fiscals. ******* "The long and short of it is that Americans will not stand for an arbitrary government, especially when evidences of carpetbagging and rumors of graft are too thick to be pleasant." We do not understand that it is claimed that the defendants succeeded in establishing at the trial the trutli of any of the foregoing statements. The only question which we have considered is whether their publication constitutes an offense under section 8 of Act No. 292, above cited. Several allied offenses or modes of committing the same offense are defined in that section, viz: (1) The uttering of seditious words or speeches; (2) the writing, publishing, or circulating of scurrilous libels against the Government of the United States or the Insular Government of the Philippine Islands; (3) the writing, publishing, or circulating of libels which tend to disturb or obstruct any lawful officer in executing his office; (4) or which tend to instigate others to cabal or meet together for unlawful purposes; (5) or which suggest or incite rebellious conspiracies or riots; (6) or which tend to stir up the people against the lawful authorities or to disturb the peace of the community, the safety and order of the Government; (7) knowingly concealing such evil practices. The complaint appears to be framed upon the theory that a writing, in order to be punishable as a libel under thin section, must be of a scurrilous nature and directed against the

Government of the United States or the Insular Government of the Philippine Islands, and must, in addition, tend to some one of the results enumerated in the section. The article in question is described in the complaint as "a scurrilous libel against the Government of the United States and the Insular Government of the Philippine Islands, which tends to obstruct the lawful officers of the United States and the Insular Government of the Philippine Islands in the execution of their offices, and which tends to instigate others to cabal and meet together for unlawful purposes, and which suggests and incites rebellious conspiracies, and which tends to stir up the people against the lawful authorities, and which disturbs the safety and order of the Government of the United States and the Insular Government of the Philippine Islands." But it is "a well-settled rule in considering indictments that where an offense may be committed in any of several different modes, and the offense, in any particular instance, is alleged to have been committed in two or more modes specified, it is sufficient to prove the offense committed in any one of them, provided that it be such as to constitute the substantive offense" (Com. vs. Kneeland, 20 Pick., Mass., 206, 215), and the defendants may, therefore, be convicted if any one of the substantive charges into which the complaint may be separated has been made out. We are all, however, agreed upon the proposition that the article in question has no appreciable tendency to "disturb or obstruct any lawful officer in executing his office," or to "instigate"' any person or class of persons "to cabal or meet together for unlawful purposes," or to "suggest or incite rebellious conspiracies or riots," or to "stir up the people against the lawful authorities or to disturb the peace of the community, the safety and order of the Government." All these various tendencies, which are described in section 8 of Act No. 292, each one of which is made an element of a certain form of libel, may be characterized in general terms as seditious tendencies. This is recognized in the description of the offenses punished by this section, which is found in the title of the act, where they are defined as the crimes of "seditious utterances, whether written or spoken." Excluding from consideration the offense of publishing "scurrilous libels against the Government of the United States or the Insular Government of the Philippine Islands," which may conceivably stand on a somewhat different footing, the offenses punished by this section all consist in inciting, orally or in writing, to acts of disloyalty or disobedience to the lawfully constituted authorities in these Islands. And while the article in question, which is, in the main, a virulent attack against the policy of the Civil Commission in appointing natives to office, may have had the effect of exciting among certain classes dissatisfaction with the Commission and its measures, we are unable to discover anything in it which can be regarded as having a tendency to produce anything like what may be called disaffection, or, in other words, a state of feeling incompatible with a disposition to remain loyal to the Government and obedient to the laws. There can be no conviction, therefore, for any of the offenses described in the section on which the complaint is based, unless it is for the offense of publishing a scurrilous libel against the Government of the United States or the Insular Government of the Philippine Islands. Can the article be regarded as embraced within the description of "scurrilous libels against the Government of the United States or the Insular Government of the Philippine Islands?" In the determination of this question we have encountered great difficulty, by reason of the almost entire lack of. American precedents which might serve as a guide in the construction of the law. There are, indeed, numerous English decisions, most of them of the eighteenth century, on the subject of libelous attacks upon the "Government, the constitution, or the law generally," attacks upon the Houses of Parliament, the Cabinet, the Established Church, and other governmental organisms, but these decisions are not now accessible to us, and, if they were, they were made under such different conditions from those which prevail at the present day,

and are founded upon theories of government so foreign to those which have inspired the legislation of whicli the enactment in question forms a part, that they would probably afford but little light in the present inquiry. In England, in the latter part of the eighteenth century, any "written censure upon public men for their conduct as such," as well as any written censure "upon the laws or upon the institutions of the country," would probably have been regarded as a libel upon the Government, (2 Stephen, History of the Criminal Law of England, 348.) This has ceased to be the law in England, and it is doubtful whether it was ever the common law of any American State. "It is true that there are ancient dicta to the effect that any publication tending to 'possess the people with an ill opinion of the Government' is a seditious libel (per Holt, C. J., in R. vs. Tuchin, 1704, 5 St. Tr., 532, and Ellenborough, C. J., in R. vs. Cobbett, 1804, 29 How. St. Tr., 49), but no one would accept that doctrine now. Unless the words used directly tend to foment riot or rebellion or otherwise to disturb the peace and tranquillity of the Kingdom, the utmost latitude is allowed in the discussion of all public affairs." (11 Enc. of the Laws of England, 450.) Judge Cooler says (Const. Lim., 528) : "The English common-law rule Avhich made libels on the constitution or the government indictable, as it was administered by the courts, seems to us unsuited to the condition and circumstances of the people of America, and therefore" never to have been adopted in the several States." We find no decisions construing the Tennessee statute (Code, sec. 6663), which is apparently the only existing American statute of a similar character to that in question, and from which much of the phraseology of the latter appears to have been taken, though with some essential modifications. The important question is to determine what is meant in section 8 of Act No. 292 by the expression "the Insular Government of the Philippine Islands." Does it mean in a general and abstract sense the existing laws and institutions of the Islands, or does it mean the aggregate of the individuals by whom the Government of the Islands is, for the time being, administered? Either sense would doubtless be admissible. "We understand, in modern political science, * * * by the term government, that institution or aggregate of institutions by which an independent society makes and carries out those rules of action which are necessary to enable men to live in a social state, or which are imposed upon the people forming that society by those who possess the power or authority of prescribing them. Government is the aggregate of authorities which rule a society. By administration , again, we understand in modern times, and especially in more or less free countries, the aggregate of those persons in whose hands the reins of government are for the time being (the chief ministers or heads of departments)." (Bouvier, Law Dictionary, 891.) But the writer adds that the terms "government" and "administration" are not always used in their strictness, and that "government" is often used for "administration." In the act of Congress of July 14, J798, commonly known as the "Sedition Act," it is made an offense to "write, print, utter, or publish," or "cause to procure to be written, printed, uttered, or published," or to "knowingly and willingly, assist or aid in writing, printing, uttering, or publishing any false, scandalous, and malicious writing or writings against the Government of the United States, or either House of the Congress of the United States, or the President of the United States, with intent to defame the said Government, or either House of the said Congress, or the said President, or to bring them, or either of them, into contempt or disrepute, or to excite against them or either or any of them the hatred of the good people of the United

States," etc. The term "government" would appear to be used here in the abstract sense of the existing political system, as distinguished from the concrete organisms of the Governmentthe Houses of Congress and the Executivewhich are also specially mentioned. Upon the whole, we are of the opinion that this is the sense in which the term is used in the enactment under consideration. It may be said that there can be no such thing as a scurrilous libel, or any sort of a libel, upon an abstraction like the Government in the sense of the laws and institutions of a country, but we think an answer to this suggestion is that the expression "scurrilous libel" is not used in section 8 of Act No. 292 in the sense in which it is used in the general libel law (Act No. 277) that is, in the sense of written defamation of individualsbut in the wider sense, in which it is applied in the common law to blasphemous, obscene, or seditious publications in which there may be no element of defamation whatever. "The word 'libel' as popularly used, seems to mean only defamatory words; but words written, if obscene, blasphemous, or seditious, are technically called libels, and the publication of them is, by the law of England, an indictable offense." (Bradlaugh vs . The Queen, 3 Q. B. D., 607, 627, per Bramwell, L. J. See Com. vs . Kneeland, 20 Pick., 206, 211.) While libels upon forms of government, unconnected with defamation of individuals, must in the nature of things be of uncommon occurrence, the offense is by no means an imaginary one. An instance of a prosecution for an offense essentially of this natue is Respublica vs. Dennie, 4 Yeates (Pa.), 267, where the defendant was indicted "as a factious and seditious person of a wicked mind and unquiet and turbulent disposition and conversation, seditiously, maliciously, and willfully intending, as much as in him lay, to bring into contempt and hatred the independence of the United States, the constitution of this Commonwealth and of the United States, to excite popular discontent and dissatisfaction against the scheme of polity instituted, and upon trial in the said United States and in the said Commonwealth, to molest, disturb, and destroy the peace and tranquillity of the said United States and of the said Commonwealth, to condemn the principles of the Revolution, and revile, depreciate, and scandalize the characters of the Revolutionary patriots and statesmen, to endanger, subvert, and totally destroy the republican constitutions and free governments of the said United States and this Commonwealth, to involve the said United States and this Commonwealth in civil war, desolation, and anarchy, and to procure by art and force a radical change and alteration in the principles and forms of the said constitutions and governments, without the free will, wish, and concurrence of the people of the said United States and this Commonwealth, respectively," the charge being that "to fulfill, perfect, and bring to effect his wicked, seditious, and detestable intentions aforesaid he . * * * falsely, maliciously, factiously, and seditiously did make, compose, write, and publish the following libel, to wit: 'A democracy is scarcely tolerable at any period of national history. Its omens are always sinister and its powers are unpropitious. With all the lights of experience blazing before our eyes, it is impossible not to discover the futility of this form of government. It was weak and wicked at Athens, it was bad in Sparta, and worse in Rome. It has been tried in France and terminated in despotism. It was tried in England and rejected with the utmost loathing and abhorrence. It is on its trial here and its issue will be civil war, desolation, and anarchy. No wise man but discerns its imperfections; no good man but shudders at its miseries; no honest man but proclaims its fraud, and no brave man but draws his sword against its force. The institution of a scheme of polity so radically contemptible and vicious is a memorable example of what the villainy of some men can devise, the folly of others receive, and both establish, in despite of reason, reflection, and sensation.'"

An attack upon'the lawfully established system of civil government in the Philippine Islands, like that which Dennie was accused of making upon the republican form of government lawfully established in the United States and in the State of Pennsylvania would, we think, if couched in scandalous language, constitute the precise offense described in section 8 of Act No. 292 as a scurrilous libel against the Insular Government of the Philippine Islands. Defamation of individuals, whether holding official positions or not, and whether directed to their public conduct or to their private life, may always be adequately punished under the general libel law. Defamation of the Civil Commission as an aggregation, it being "a body of persons definite and small enough for its individual members to be recognized as such" (Stephen, Digest of the Criminal Law, art. 277), as well as defamation of any of the individual members of the Commission or of the Civil Governor, either in his public capacity or as a private individual, may be so punished. The general libel law enacted by the Commission was in force when Act No. 292 was passed. There was no occasion for any further legislation on the subject of libels against the individuals by whom the Insular Government is administered against the Insular Government in the sense of the aggregate of such individuals. There was occasion for stringent legislation against seditious words or libels, and that is the main if not the sole purpose of the section under consideration. It is not unreasonable to suppose that the Commission, in enacting this section, may have conceived of .attacks of a malignant or scurrilous nature upon the existing political system of the United States, or the political system established in these Islands by the authority of the United States, as necessarily of a seditious tendency, but it is not so reasonable to suppose that they conceived of attacks upon the personnel of the government as necessarily tending to sedition. Had this been their view it seems probable that they would, like the framers of the Sedition Act of 1798, have expressly and specifically mentioned the various public officials and collegiate governmental bodies defamation of which they meant to punish as sedition. The article in question contains no attack upon the governmental system of the United States, and it is quite apparent that, though grossly abusive as respects both the Commission as a body and some of its individual members, it contains no attack upon the governmental system by which the authority of the United States is enforced in these Islands. The form of government by a Civil Commission and a Civil Governor is not assailed. It is the character of the men who are intrusted with the administration of the government that the writer is seeking to bring into disrepute by impugning the purity of their motives, their public integrity, and their private morals, and the wisdom of their policy. The publication of the article, therefore, no seditious tendency being apparent, constitutes no offense under Act No. 292, section 8. The judgment of conviction is reversed and the defendants are acquitted, with costs de oficio. Arellano, C. J., Torres, Willard, and Mapa, JJ., concur.

OSJurist.org

G.R. No. 1053, May 07, 1903

THE UNITED STATES, COMPLAINANT AND APPELLEE, VS. MAMERTO VARGAS ET. AL., DEFENDANTS AND APPELLANTS. D ECIS ION
WILLARD, J.: Simeon Alberto on May 20, 11)02, was attacked and severely wounded. To the persons who went to his assistance he stated that the defendants had assaulted him. He said nothing of the motive. He died the next day. There was no other evidence for the Government. Manalastas was acquitted by the court below. The defendant Vargas testified that, on returning to his house on the day in question, he found Alberto lying with his (the defendant's) wife; that he drew his bolo; Alberto escaped through the window; that he, the defendant, pursued him, overtook him, and killed him. There was evidence that the relations existing between Alberto and the wife of the defendant had been the subject of common talk in the barrio. The judge below apparently believed the testimony of the defendant, but, being of the opinion that article 423 of the Penal Code was not applicable, sentenced the defendant to eight years of prision mayor. We agree with the court as to the facts, but not as to the application of said article 423. This article fixes the penalty of destierro when the husband kills the offender "in the act." In this case the discovery, the escape, the pursuit, and the killing were all parts of one continuous act. The judgment of the court below is reversed, and the defendant Vargas is condemned to the penalty of destierro for the term of two years four months and one day, to pay the heirs of the deceased 1,000 pesos, and in case of insolvency to subsidiary destierro for a term which can not exceed one-third of the above penalty, he being prohibited from entering in a radius of 25 kilometers from the barrio of Santa Monica, in the pueblo of Floridablanca, in the Province of Pampanga, during the term aforesaid, with costs to the appellant. Arellano, C. J., Torres, Cooper, Mapa, and Ladd, JJ., concur. McDonough, J., did not sit in this case.

OSJurist.org

G.R. No. 1055, May 13, 1903

JOSE ACUNA, PLAINTIFF AND APPELLEE, VS. MUNICIPALITY OR THE CITY OF ILOILO, DEFENDANT AND APPELLANT. D ECIS ION
COOPER, J.: On the 16th of March, 1901, the appellee, Jose Acuna, made a contract with Fermin del Rosario, the then municipal attorney of the city of Iloilo, as representative of the municipality, by which Seiior Acuiia undertook from the 18th day of March until the 31st day of December, 1901, the performance of the service of cleaning and watering the streets comprehended within a certain zone in the city of Iloilo, for which he was to receive the sum of 450 pesos monthly, to be paid at the end of each month. About four months after the celebration of the contract the provincial governor of Iloilo, by letter written to the president of the municipality, ordered the municipal council to rescind all contracts then existing between that municipality and persons contracting with it. In compliance with this direction the municipal council, on the 29th day of June, 1901, declared as rescinded the contract above referred to. Senor Acuna instituted this action in the Court of First Instance of Iloilo to recover from the municipality indemnification for liis damages, by reason of the failure of the city to comply with the terms of the contract, alleging the amount to be 2,220 pesos. The city of Iloilo answered the complaint, justifying its Action on the grounds that the rescission had been made in obedience to the order of the provincial governor, and further that the municipal attorney had no authority to execute the contract, and that the contract was invalid. To this a.llegation the plaintiff replied that, if the contract was not valid at the date of its inception, it was subsequently ratified by the municipal council. The Court of First Instance rendered judgment in favor of Senor Acuna for the sum of 700 pesos, with interest at the rate of 6 per cent per annum from the 1st day of January, 1902, and costs of suit. The case is appealed by the city of Iloilo by bill of exception. A number of errors have been assigned by the appellant. It will be necessary to consider only that assignment which relates to the power of the municipal attorney to enter into the contract in behalf of the city, and the assignment which relates to the sufficiency of the proof to show a subsequent ratification of the contract by the municipality. Under the provisions of article 53 of General Orders, No. 40, of the United States Military Governor, by and under which municipalities Avere created and governed, of dute the 29th day of March, 1900, it is provided that the governor of the province shall be ex officio president of all ihe municipal councils within the province and shall have general supervisory charge of the municipal affairs of tin1 several towns and cities organized under the order. While it is true that this provision of law was in force at the date of the entering into the

contract, yet, at the time the provincial governor directed the cancellation of: the contract the Municipal Act, as contained in General Orders, No. 40, had been repealed by act of the Philippine Commission, No. 82, for the organization of municipal governments in the Philippine Islands. In this act the provisions referred to as contained in article 53, General Orders, No. 40, were omitted, and at the date of the order of the provincial governor directing the cancellation of the contract he had no control over municipal affairs. By clause 6 of article 33 of General Orders, No. 40, which was in force at the date of the making of the contract, the municipal council was empowered to provide for lighting and sprinkling the streets. Article 20 of said order created the office of municipal attorney and denned his duties and powers. It imposed upon him the duty to attend to all suits and matters and things in which the town was legally interested; to give his advice or opinion in writing whenever required by the alcalde or municipal council; to act as censor of the minutes of the sessions of the municipal council and all other documents decreed or provided for by the municipality; to attend all sessions of the council and to do and perform all such things touching his office as may be required by ordinance or by the council. The contract in question purports to have been entered into by and between Seiior Acuiia on the one part, and by Beiior Fermin del Rosario, as municipal attorney, in representation of the municipality. It was signed in the name of Fermin del Kosario and was approved by Senor Jose M. Gay, alcalde of Iloilo. It is very clear from the provisions of General Orders, No. 40, which has been cited, that the municipal attorney had no authority to enter into such a contract, and that the power to make such contract was vested in the municipal council alone. By article 39 of said General Orders, No. 40, it is provided that the ayes and noes of the council shall be taken upon the passage of all ordinances and propositions to create any liability against the town, and shall be entered upon the journal, and that the concurrence of the majority of the members shall be necessary to the passage of any ordinance or of any proposition creating indebtedness. The contract between Acuna and the municipal council was a contract creating an indebtedness under the provisions of this article, and it was necessary to the making of a valid contract that a concurrence of the majority of the members of the municipal council should be had. It is not. claimed that any ordinance was passed by the municipal council under which the contract between Acuna and the municipal council was made. All that was shown upon this subject at the trial was a resolution passed by the city council on the 7th day of March, 1901, which reads as follows: "The secretary having read the opinion of the municipal attorney, Soil or Fermin del llosario, upon the communication received from the contractor for the cleaning and watering of the streets of this city, wherein he asks an increase of l50 pesos per month over the stipulated sum therefor or a rescission of the contract, the members of the council resolved that said contract be rescinded with the forfeiture of fhe bond, at the same time tendering a vote of confidence to the Heiior Alcalde and that he take such action as he may deem expedient in order that this service be not interrupted."

If the terms of the contract with Acuna had been duly agreed upon by Acuiia and the municipal council, then the authority might have been conferred upon the alcalde to execute the contract in the name and in behalf of the city, but no such contract has been shown. It is clear that this resolution does not evidence any contract between Acuiia. and the municipal council; on the contrary, it shows very clearly that the contract had not at that time been entered into and that the proposition made by Acuna to the citv had been withdrawn. ' The subsequent ratification relied upon by the plaintiff arises solely from the fact that he had cleaned and sprinkled the streets in accordance with the contract made with the municipal attorney, and had received his compensation for such work up to the time of the cancellation and rescission of the contract. It does not appear from whom he received the compensation, or whether there was an allowance voted by the municipal council or otherwise, nor whether a majority of the city council participated at any subsequent meeting which may have occurred. A ratification, whatever its form may be, must be made by the principal or the party having originally the authority to act. If a contract is not made in accordance with the law, and is invalid by reason of the failure to comply with its provisions, its ratification by the corporation requires the observance of the same formalities necessary for the making of a valid contract in the first instance. The power to ratify necessarily presupposes the power to make the contract. In order that there should have been a valid ratification of the contract with Actifia the concurrence of a majority of the members of the municipal council was necessary, for this was the requirement of the law in order that the municipal council may have legally entered into the contract in the first instance. If the express provisions of the statute, in which the mode and manner of contracting by the municipal council is prescribed, can be dispensed with by subsequent ratification in a less formal way than that originally required, or by officers who are not shown to have the authority to make such contract, this would result in virtually repealing the statute. It appears from the record that Acuila has collected the full amount for the work which he performed and for which the city received the benefits. It is, therefore, unnecessary to determine whether he could have maintained an action on an implied contract, or quantum merit it, for the work and services actually performed. For the reasons herein indicated, the judgment of the lower court must be reversed and the cause remanded, and the costs of this appeal is adjudged against the appellee, Jose Acuna. It is so ordered and directed. Torres and Ladd, JJ.: We concur in the opinion, but think that direction should be given that the case be remanded to the court below with instructions to enter judgment for the defendant. Arellano, C. J., and Willard, J., concur in the results of this opinion. Mapa and McDonough, JJ., did not sit in this case.

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G.R. No. 1056, May 16, 1903

AGUEDA BENEDICTO, PLAINTIFF AND APPELLEE, VS. ESTEBAN DE LA RAMA, DEFENDANT AND APPELLANT. D ECIS ION
LADD, J.: Under section 144 of the Code of Civil Procedure the filing of a bill of exceptions operates as a stay of execution. In this ease, therefore, the order made by the trial court in the judgment for the payment of alimony for the period from the institution of the action to the date of such judgment was suspended by the filing of the defendant's bill of exceptions. The trial court might undoubtedly, under section 144, have provided that execution should not be stayed as to the order for the payment of alimony, but it did not do so. The whole matter rested in the discretion of the trial court, We have no jurisdiction to take any action in the premises. Nor have we any jurisdiction to grant alimony pending the appeal. The trial court might have made an order in such terms as to coyer the entire period till final judgment, but did not do so. We can not revise its action, except as far as it is brought before us for revision in the ordinary manner, by bill of exceptions. The right of a wife to the payment of alimony from her husband stands upon no different footing from any other right created by the law or arising from contract or otherwise, and is to be enforced by appropriate proceedings commenced in the court having original jurisdiction. Our jurisdiction in such cases is appellate merely. (See Rieilly vs . Reilly, 60 Cal., 624.) The motion must be denied. Arellano, C. J., Torres, Willard, Mapa, and McDonough, JJ., concur.

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G.R. No. 1060, March 26, 1903

THE UNITED STATES, COMPLAINANT AND APPELLEE, VS. GUILLERMO LAUREAGA ET AL., DEFENDANTS AND APPELLANTS. D ECIS ION
TORRES, J.: About 8 o'clock p. m. on the 16th of June, 1902, the defendants, Guillermo Laureaga, Damaso Jose, Domingo Paseual, Andres Pascual, Marcos Peralta, and Eulalio de Ocampo, of whom the latter died subsequently of cholera, one of them armed with a gun and the others with bolos, went to the barrio of Quinamatayan-Cabayo, in the town of San Miguel de Mayumo, and proceeded to kidnap from their respective houses Luis Ramos, Francisco Ramos, Elias de los Santos, Clemente Beltran, Meliton Mallari, Inocencio David, Mauricio Ventura, Felix de los Santos, Agustin Maniquis, and Aniceto de los Santos. These people were taken by the accused to the town of Gapang, of the Province of Nueva Ecija. The persons kidnaped were not informed of the cause of their detention. Their aggressors were not officers or agents of the authorities. On the road, in the course of an hour, the greater part of the persons kidnaped were released, only three of them, named Agnstin Maniquto, Luis Kamos, and Aniceto de los Santos continuing to he deprived of their liberty. The sequestration of these continued until 8 o'clock at night on the following day, at which time they were found in the barrio of Sania Cruz in the town of Bulacan, by Constabulary Inspector Jose Reyes, who set them at liberty, and captured the gun which was in possession of one of the accused. The five defendants upon being arraigned pleaded not guilty. Two of them, Domingo Pascual and Guillermo Laureaga, who were recognized by four of the persons kidnaped, alleged that they knew nothing about the facts alleged against them. Notwithstanding the denial of the defendants, and especially that of the two last referred to, four eyewitnesses testified that Laureaga was one of the kidnapers, and two witnesses also testified that the other defendants, Diimiiso Jose, Domingo Pascual, Andres Pascual, Marcos Peralta, and Eulalio Ocampo accompanied Laureaga. The commission of the crime of illegally detaining ten persons is therefore an unquestionable fact. The purpose which the defendants had in committing this offense against personal liberty does not appear. The detention of those who were longest held by the prisoners exceeded twenty-four hours. Therefore the offense which the record shows to have been committed falls within the last paragraph of article 481 of the Penal Code. The five defendants here present, together with the deceased, Ocampo, are the proven authors by direct participation of this crime. The aggravating circumstances of noctivrnity being present, and no mitigating circumstance concurring, the defendants should be sentenced to the maximum period of the penalty of jmsion correctional in its minimum and medium degrees. The judgment appealed should therefore be affirmed. With respect to the defects which, according to the counsel for the defendants, exist in the information filed against them by the provincial fiscal, these defects are not of substance, nor do they affect any of the essential rights of the accused, but are merely defects of form. Therefore the information is sufficient, and no error exists for which the judgment should be annulled, The information is sufficiently explicit to enable one to immediately understand that

the crime was committed within the jurisdiction of the Court of First Instance of Bulacan, within whose territory lies the town of San Miguel de Mayumo; that the offense charged in the information is the crime of illegally detaining the ten persons mentioned, committed at one time, in the same place, and by the six accused, who committed this crime jointly by common agreement, and perhaps with some purpose common to all of them, but which, however, has not been made to appear. Furthermore this objection was not raised in the court below by the defendants. It further appears from the information that the crime was commenced and consummated in the Province of Bulacan, and continued in Nueva Ecija, to which province three of the prisoners were taken and there subsequently released by an officer, the other seven persons having been previously released on the road. The character of the crime, complex by the number of the aggressors and of the persons injured, is not affected by the fact that its commission was continued in a different district. This is an offense which requires a successive and continued execution duping a more or less lengthy period of time. As the information charges that the persons guilty of the offense in question were not officers, the burden was upon the defendants to prove that they were invested with authority to arrest the complainants. In view of sections 5, 6, and 10 of General Orders, No. 58, dated April 23, 1900, and for the reasons stated, we are of the opinion that the judgment appealed should be affirmed, with the costs in equal parts against each of the surviving defendants. So ordered. Arellano, C. J., Cooper, Willard, Mapa, and Ladd, JJ., concur.

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G.R. No. 1068, August 05, 1903

LUISA ASIS, PLAINTIFF AND APPELLANT, VS. JORGE PARPO, DEFENDANT AND APPELLEE. D ECIS ION
WILLARD, J.: On the 26th of August, 1898, in the capital of the Province of Capiz, Dona Luisa Asis y Diangco and Don Jorge Pardo y Acevedo, by a public document entered into a contract, the principal features of which were: (1) That Dona Luisa Asis received from Don Jorge Pardo, as a loan, without interest, the sum of 2,300 pesos. (2) That as security for this loan Dona Luisa executed a mortgage, in favor of Don Jorge Pardo, on seven parcels of real estate. (3) That Dona Luisa Asis bound herself to pay the sum loaned within five years from the date of the contract, and to apply each year toward the extinction of the indebtedness the total amount of the rents and profits received from the mortgaged property. (4) That Jorge Pardo was to have the management of the mortgaged property, and that its enjoyment should not revert to Dona Luisa Asis until the entire sum loaned should be repaid. (5) That the mortgage of the property referred to was to include all manufactories, buildings, receptacles, apparatus, and everything else thereon necessary for the distillation of nipa alcohol. On the 22d of February, 1902, Luisa Asis filed a complaint against Jorge Pardo in which she asked that he be ordered to give an account of his management of the property referred to, and that all profits which might have accrued therefrom be applied toward the extinction of the indebtedness. Luisa Asis based her complaint on the contract of loan above referred to. The court below made the above-mentioned contract a part of its decision, and further found that after its date the appellant, the plaintiff below, borrowed from the appellee $470, which was to be added to the original loan; that the distillery on the place was operated by the appellee, but that some time after the making of the original contract the appellant assumed the management of the nipa lands; that her tenants carried the tuba to the distillery, and she received credit from the appellee for the amount due to her for each delivery. The only question in this case is thus stated by the appellant: Has the defendant the usufruct of the distillery, or ought the revenue derived from the distillery to he also applied toward the extinction of the debt? If we had to decide the case upon the contract of August 26 alone, it might be difficult to sustain the judgment; but the court has found that this contract was afterwards changed by the parties. The management of the nipa lands was taken from the defendant and given to the appellant. The court also found that the parties had two settlementsone on June 12, 1900, and the other on January 1, 1902. The written receipts delivered on the settlements stated that "on this day we have made a settlement of the products of the nipa lands and distillery." The court also finds : "In the said settlements nothing was said concerning the use of the distillery or its apparatus, nor was the plaintiff given any credit therefor. The plaintiff fully

understood the method employed in rendering accounts, as well as the contents of the documents executed, and at the time of the execution of these documents no opposition was made, nor were the profits claimed, or the rendering of accounts demanded, with respect to the use of the distillery and apparatus." This practical construction put upon the contract by the parties themselves is almost conclusive that the appellant, at the time the settlements were made, had no right to the profits of the distillery. If she had had such right, she certainly would have claimed it. The contract between the parties consisted not only of the document of August 26 but also of its subsequent modifications. The article of chapter 4, title 2, book 4, 1283, cited by the appellant as infringed present Code of Civil Procedure contains 286-294), they are not inconsistent with remains in force. of the Civil Code applicable to the case is not article by the judgment below, but article 1282. While the several rules for the construction of contracts (sees. the provisions of this article, 1282, >vhich therefore

The appellant is concluded by the settlements already made, and as to the years prior to 1902 we hold that she is not entitled to any credit for the rent of the distillery for such years. As to 1902, the time for a settlement had not arrived when this action was commenced, and we decide nothing as to the appellant's rights for that and subsequent years. The judgment is affirmed, with the costs of this instance against the appellant. Arellano, C. J., Torres, Cooper, and McDonough, JJ., concur. Mapa, J., did not sit in this case.

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G.R. No. 1070, February 28, 1903

THE UNITED STATES, COMPLAINANT AND APPELLEE, VS. PABLO JUDIT, DEFENDANT AND APPELLANT. D ECIS ION
LADD, J.: The evidence shows that the defendant and his brother were fighting and making a disturbance in their house, that the complaining witness, Apinan, an elderly man, reproved them, whereupon the defendant, incensed by the rebuke, bit off a part of one of Apinan's ears. The loss of a portion of an ear constitutes a deformity within the meaning of article 416, No. 3, of the Code. (Judgment in cassation of October 28, 1887.) The conviction was right; the penalty, in the absence of either extenuating or aggravating circumstances, was properly applied in the medium grade, the indemnification was fixed at an appropriate sum, and the judgment is therefore affirmed in all respects. Let the cause be returned to the court below for the execution of the judgment. Arellano, C. J., Cooper, Willard, and Mapa, JJ., concur. Torres, J., did not sit in this case.

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G.R. No. 1070, May 09, 1903

THE UNITED STATES, COMPLAINANT AND APPELLEE, VS. JACINTO MARTINEZ ET AL., DEFENDANTS AND APPELLANTS. D ECIS ION
TORRES, J.: On June 7, 1902, Domingo Uson and Victor Pano were arrested at the place called Dalagud, of the town of Zaragoza, Nueva Ecija, by Jacinto Martinez, an officer or secret agent of the Constabulary forces stationed in that province. He was accompanied by the policemen Sebastian Garcia and Daniel Layug, and by Victoriano Nucum, a private citizen. Uson and Pano were suspected of being guilty of the theft of certain carabaos, the majority of which were the property of Mariano Baun. The two suspects, with the carabaos found in their possession, were taken to a place called Atiuc, in the barrio of San Miguel, in the town of Murcia, where they were tied elbow to elbow and cruelly ill treated by the defendant Martinez, who beat them with the butt of his revolver and submerged them in an estero near that place. Afterwards, while they were completely drenched, he took them to the police station of the barrio, where he again beat them to such an extent that Victoriano Pano died on the morning of June 9 in the station, and Domingo Uson three days later in the municipal presidency of Tarlac. An examination of the body of Pano made in the justice's court of Murcia, by Prudencio Rodriguez, a medical student, on June 9, disclosed signs of blows on the breast, the left side, the back, and the neck. One rib was broken and the back of the neck was beaten into a jelly, showing that the deceased had met his death in consequence of the injuries caused by the blows inflicted upon him. The body of Domingo Uson was examined by Dr. Jose Espinosa, who has certified that it showed a contusion on the right wall of the thorax, another in the right lumbar region, and several in the abdominal region. From the autopsy held it appeared that the right lung and the pleura were adhering to the anterior wall of the thorax; that the fourth right rib was broken, and that the left lobes of the liver and of the spleen were congested, and that therefore it was his opinion that the death of the deceased was caused by the blows inflicted upon him. Prosecutions have not been instituted for each one of the two murders committed. At the instance of the counsel for the defendants the provincial fiscal, who had filed a separate information for each offense, consolidated the two cases, and filed an amended information. (Folio 32.) The judge thereupon directed the consolidation of the two cases, and the prosecution of the two charges of murder in one action. (Folio 34.) The facts related constitute two crimes of murder, committed on the persons of Victoriano Pano and Domingo Uson, denned and punished by article 403 of the Penal Code. These two men met a violent death from blows inflicted upon them by Jacinto Martinez, while they were tied elbow to elbow, and in such a condition that it was impossible for them to defend themselves or to impede the blows by which they received injuries which resulted in their death. It follows, therefore, that the accused availed himself of means for the execution of his purpose which directly assured its accomplishment without risk to himself arising from an attempt at selfdefense on the part of the victims, and consequently it is unquestionable that the circumstance of treachery ( alevosia) concurs.

The defendant Jacinto Martinez plead not guilty. Notwithstanding his denial and exculpative allegations, the record nevertheless discloses evidence sufficient to convince the mind that he was .the sole author of the blows and ill treatment inflicted upon the two deceased. This was affirmed by four witnesses to the ill treatment, who also stated that Martinez fired his revolver at Domingo Uson, and that the bullet passed so close to his face that it left a black mark; that after the deceased were submerged, with their hands tied, in the Atiuc estero, the defendant took them to the police station of the barrio, where Victoriano Pano was again beaten with the butt of a revolver, and that he fell to the ground, never again to rise. They added that the two deceased were at that time completely drenched and complained of pains in the chest. The testimony of these four witnesses, Domingo Tejero, Pedro Mendoza, Potenciano Mendoza, and Agaton Baun, is further corroborated by the testimony of two other witnesses, Guido Mendoza and Eleno Mallari. The witnesses presented by counsel for the defendant, Gavina de los Santos, his wife, Proceso Aguilar, and Juan Cantos, testified that Jacinto Martinez, after having turned the prisoners over at the police station of San Miguel on the afternoon of June 8, returned to his home and there remained, according to his wife's statement, Aguilar and Canlas testified that the accused did not ill treat the deceased. This was also affirmed by the other three accused, Sebastian Garcia, Daniel Layug, and Victoriano Nucum, acquitted below, who further stated that the deceased were not illtreated on the road, and that they did not complain of any pains. This testimony is evidently insufficient to overcome the evidence of the. prosecution, and is wholly insufficient to show the innocence of Jacinto Martinez. It was demonstrated in the course of the trial that he alone inflicted the blows received by the deceased. In the commission of the double crime of murderand as such this homicide must be classed, by reason of the concurrence of the circumstance of treachery ( aleviosa)mitigating circumstance No. 3 of article 9 of the Penal Code must be applied, as also the special mitigating circumstance established by article 11 of the Code, in view of the nativity and illiteracy of the accused. The latter when beating the deceased, abusing his authority and in an excess of zeal, doubtless had no intention of killing them, but simply to inflict upon them the punishment which, in his opinion, they deserved. Consequently, he could'have had no intention to cause them so serious an injury as that which resulted. These two circumstances are regarded as strongly marked, and there being no aggravating circumstance present, we should apply the provisions of paragraph 5 of article 81 of the Code, in accordance with which the accused should be condemned for each one of these two murders to the penalty immediately inferior to that prescribed by article 403, to wit, the penalty of presidio mayor in its maximum degree to cadrma temporal in its minimum and medium degrees, applied in the medium degree. We are of the opinion that in the commission of the two murders referred to the aggravating circumstances Nos. 6, 7, and 11 of article 10 of the Code should not be applied. The condition of the defendants, tied elbow to elbow, was such that Martinez had no occasion to avail himself of his capacity as a secret-service agent of the Constabulary forces in order to illtreat the deceased with impunity, he having undertaken to punish them without authority to do so and without a just cause. It is not possible to determine which of the several blows received caused the mortal wounds, and which of them occasioned unnecessary suffering, as it is to be

presumed that this ill treatment as a whole resulted in the wounds received, and the consequent death. Neither can we consider that there was premeditation or reflexive intention to kill them, because if, as we have stated, it does not appear in the record that the accused had any intention to kill them, still less can it be said that he had reflexive and premeditated intention to take their lives. The judgment appealed has been impugned by the defense in this second instance upon the ground that the defendant has been tried on one information for two separate offenses, against the provisions of section 11 of General Orders, No. 58. Apart from the fact that the two murders prosecuted are intimately connected and were committed by the same person, Martinez, at the same time and place, it must be remembered that at the instance of counsel for Jacinto Martinez the two cases were consolidated, and the provincial fiscal amended his former informations and substituted one information for them, and upon this agreement the judge below tried the defendants in the one prosecution upon the double charge of murder. This has not caused any substantial violation of the rights of the defendant. For the reason stated, therefore, and considering the two attenuating circumstances above mentioned, we are of the opinion that the judgment below should be reversed with respect to Jacinto Martinez, and that he should be condemned for each one of the murders to the penalty of fourteen years of cadena temporal, with the accessories of civil interdiction during his imprisonment, and to absolute, perpetual disqualification and subjection to the vigilance of the authorities during his lifetime, to pay 1,000 Mexican pesos to the widow and heirs of each one of the two deceased, and to pay one-fourth of the costs of the first instance and all the costs of this second instance. So ordered. Arellano, C. J., Willard, Mapa, and Ladd, JJ., concur. Cooper, J., dissents. McDonough, J., did not sit in this case.

OSJurist.org

G.R. No. 1072, May 08, 1903

MANUEL ABELLO, PLAINTIFF AND APPELLANT, VS. SENORA PAZ KOCK DE MONASTERIO, DEFENDANT AND APPELLEE. D ECIS ION
LADD, J.: August 8,1902, the Court of First Instance of Occidental Negros made, an order disallowing the will of Senora Josefa Montilla y Ianson, which had been presented to it for probate by the person named therein as executor. August 12,1902, an application for an appeal was duly filed in that court under section 781 of the Code of Civil Procedure. August 16,1902, the appeal was admitted by the court, and it was ordered that a certified copy of the record should be transmitted to this court, which was done November 1, 1902. In the order admitting the appeal and directing the transmission of the copy of the record to this court, nothing was said with reference to the filing of an appeal bond by the appellant, and none has been filed. The appellee moves that the appeal be dismissed for failure to file such bond. We have held that a person appealing from the settlement of an administrator's account under section 778 does not lose his right to prosecute the appeal by failure to file a bond within twenty-one days from the entry of the order, no time, for the filing of the bond having been fixed by the court from which the appeal was taken. (Hernaez vs. Norris, decided March 31, 1903.[1] In that case the court below had refused to admit the appeal by reason of the failure to file the bond within twenty-one days, and upon a petition for a mandamus to the judge directing him to admit the appeal, we made an order fixing a period within which the party might file the bond and thus perfect the appeal. The present case is governed by identical considerations, and justice will be done all parties interested by a similar disposition. It is ordered that the appellant, within forty days from notification of this decision, file in the court below a bond conditioned as provided in sections 780 and 781 of the Code of Civil Procedure, in an amount and with sureties to the satisfaction of said court. Upon failure to comply with this order the appeal aviII be dismissed. So ordered. Torres, Cooper, Willard, Mapa, and McDonough, JJ.,concur. Arellano, C. J., did not sit in this case.

[1] Page 83, supra .

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G.R. No. 1079, July 19, 1903

THE UNITED STATES, COMPLAINANT AND APPELLEE, VS. EUSTAQUIO DALIGDIG, DEFENDANT AND APPELLANT. D ECIS ION
TORRES, J.: This case was brought up in consultation of the judgment of August 26, 1902. While it was pending in this court Mr. Smith, attorney for the defendant, filed a motion asking that his client, Eustaquio Daligdig, be included in the amnesty of July 4, 1902, upon the ground that the crime of double murder was committed while the defendant was a captain in the revolutionary army, and occurred prior to the 1st of May of said year. The Solicitor-General concurs in this motion, upon the ground that the record discloses that the murders in question were committed by the defendant in the course of the insurrection against the government of the United States established in these Islands, and that they were the result of internal political feuds between the accused and the deceased. The record of this ease shows that one day in the month of February, 1901, the defendant, Daligdig, who was at that time a captain in the revolutionary forces, and two men under his command, arrested two persons, unknown, in the barrio of Manilla, of the town of Langaran, Misamis, and conducted them toward the outskirts of the town; that on the road the defendant ordered his two soldiers to kill the prisoners, which order was carried out, the prisoners being stabbed to death. On the body of each one of the deceased a placard was placed reading, "Traitor to the country." The corpses were left unburied for three days. Several witnesses testified that these men were arrested and killed because they were suspected of being traitors to the revolutionary cause. Upon the supposition that the belief that these men were traitors was the sole motive which led to the commission of the double crime of murder for which the defendant was condemned to deaththe record containing no evidence whatever indicating that any other motive impelled the defendant to direct the killing of the deceasedit is unquestionable that the murders, perpetrated are of a political character and the result of internal hatreds existing between the two murdered Filipinos and the accused, who was a captain in the revolutionary army, in arms against the government established in the Province of Misamis. In a normal condition of society the severest punishment is meted out for the odius crime which was committed by order of the defendant. However, considering the circumstances under which these crimes were committed, and the fact that the sovereign power in these Islands, in view of the extraordinary and radical disturbance which, during the period following the year 1896, prevailed in and convulsed this country, and prompted by the dictates of humanity and public policy, has deemed it advisable to blot out even the shadow of a certain class of offenses, decreeing full pardon and amnesty to their authorsan act of elevated statesmanship and timely generosity, more political than judicial in its nature, intended to mitigate the severity of the lawit is incumbent upon us, in deciding this case, to conform our judgment to the requirements and conditions of the decree so promulgated. In view of the foregoing considerations, we decide that Eustaquio Daligdig is included within the

amnesty of July 4, 1902. The judge below Avill be notified of "this decision, and, as soon as the defendant, Eustaquio Daligdig, shall have taken the oath prescribed in the. amnesty proclamation, evidence of which Avill be submitted to this court, he will be set at liberty. Arellano, C. J., Cooper, McDonough, and Mapa, JJ., concur. Willard, J., dissents.

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G.R. No. 1084, November 13, 1903

FRED SPARREVOHN, PLAINTIFF AND APPELLEE, VS. JOHN FISHER, DEFENDANT AND APPELLANT. D ECIS ION
MCDONOUGH, J.: This action was brought to recover possession of certain premises situated in the city of Manila, which are fully described in the complaint, and for damages for the retention by the defendant. The Court of First Instance of Manila, on the 15th of July, 1902, handed down a decision holding that the lease under which the defendant claimed had been annulled, and awarding possession to the plaintiff and assessing his damages at the sum of 5,250 pesos, Mexican currency, and judgment was accordingly entered against the defendant. The defendant moved for a new trial July 23, 1902, on the ground of newly discovered evidence, and because the damages awarded were excessive. On July 28 the defendant presented his bill of exceptions, the motion for a new trial having been denied, in which exceptions it was alleged that the findings of fact by the court were not sufficient to sustain a money judgment against the defendant; that there was no evidence as to the amount of damages; that there was no evidence to sustain the judgment, other than for the possession of the premises in question; and that the damages were not computed according to law. The judge of the Court of First Instance having refused to sign the bill of exceptions, certain proceedings were taken in the Supreme Court for the purpose of requiring him to sign the same, but the parties to the suit finally agreed upon the bill of exceptions which is before us. The defendant now objects to it on the ground that the exceptions were not taken in time and also for the reason that the writing filed by the defendant July 28, 1903, does not disclose what particular ruling, order, or judgment is intended to be excepted to. We are of opinion that these objections on the part of the defendant are not well taken. Inasmuch as the defendant moved for a new trial within ten days after the rendition of the judgment and his motion was denied, and within three days after making this motion (the record does not disclose when the motion was decided) the defendant presented his exceptions, we hold that they were made in due time, and that they raise the question as to whether or not the facts found by the court below warrant the money judgment of 5,250 pesos. As there seems to be no assignment of error in the bill of exceptions applicable to that part of the judgment awarding possession of the premises to the plaintiff, we are not called upon to pass upon that part of the judgment and to apply the doctrine laid down by this court in the case of Donaldson, Sims & Co. vs. Smith, Bell & Co., [1] decided April 23, 1902, in which case we held that the plaintiffs "not having entered into possession under their lease1, they had acquired no rights in the leased property in the nature of a right in rem, and which third persons warn therefore hound not to infringe," and therefore, on that account, the plaintiffs in that action "could not recover damages for the wrongful occupancy of the premises in question.

The only question, therefore, to be considered is whether or not the proper rule of damages has been applied in this case and whether or not the evidence warranted that part of the judgment rendered for damages. The learned judge who heard the case below stated in his decision that the testimony upon the question of damages sustained by the plaintiff by reason of the unlawful possession of the defendant "is very meager and unsatisfactory," and this is certainly true, for it is vague, speculative, and not confined to the property in question. It seems that the plaintiff occupied as a saloon a part of the building, that part thereof being known as Nos. 62 and 64 Calle San Fernando; and that the defendant occupied Nos. 56, 58, and 60 of the same building and all the upper story of the same, and carried on a saloon business, restaurant, and lodging house. Much of the testimony as to damages or profits claimed by the plaintiff went to show, not what the actual profits were, but rather what the plaintiff might expect them to be had lie possession of the whole property. Thus Ramon Pazos, the lessor, testified that the plaintiff might expect, if he had been in entire possession of the property, 800 or 900 pesos, Mexican, per month, and that he based this opinion on the fact that it brought in that profit in 1898 and 1899, long before this suit was begun. The plaintiff himself testified that he might reasonably have expected to realize from the possession of the entire building $500, gold, per month "taking into consideration the injury to his business caused by the opening of another establishment next door to his." Another witness testified that he knew where the building Nos. 56, 58, 60, 62, and 64 Calle San Fernando was situated, and that the profit which might reasonably be expected from the possession of "that building" ought to be "not less than 1,000 pesos per month." The last witness who testified on the question of profit stated that he occupied, under the defendant, the restaurant; that for the first four months he made about $200, gold, above expenses; that for the last two months he was hardly able to clear expenses, and that latterly he had been obliged to draw on some money he had in order to defray expenses. If the plaintiff sought to make such proof as would riiiitle him to a money judgment for damages, under the provisions of article 455 of the Civil Code providing that a possessor in bad faith shall pay for fruits collected and for those which the possessor could have received, he should have confined his proof to that part of the building occupied by the defendant and to the legal measure of damages, not to what profits he "might expect" or what they "ought to be." Such proof as this is too indefinite and uncertain to enable a proper conclusion to be reached regarding the amount of damages. In the case of McMahon (114 Mass., 140) the plaintiff sought to show the rental value of a strip of land if used in connection with adjacent property, and with that purpose in view asked a witness: "What would be a fair annual rental of this passageway to be used in connection with the estate to which it belongs, situate as this estate is?" The question was objected to and excluded, on the ground that the question to be determined was the value of the strip of land, without reference to any particular or specific use to which it may or may not be put, and, in excluding it, the court stated that "the annual value is not what it is worth either to the tenant or the plaintiff. It has no tendency to prove the market value, nor is it material that it may be especially valuable to either by reason of any special or particular use to which it has been or may be applied. The annual value is what it is fairly and reasonably worth under all the surrounding circumstances, in the market for any purpose, considering all its present and future capabilities for use."

The provisions of the Louisiana Civil Code are somewhat similar to those of our Code relative to damages for wrongfully retaining possession of land, viz: "He who knowingly keeps possession of another's estate is compelled to account for all profits, together with the land." Under these requirements, the Supreme Court of the United States held, in the case of New Orleans vs. Gaines (15 Wallace, 624), that the damages for withholding possession from the rightful owner was the rental value, and cited with approval the case of Vandevoort vs. Gould (36 N. Y., 639), in which case it was decided that "mesne profits are what the premises are worth annually, with interest to the time of the trial." This, too, seems to he the view of the learned counsel for the appellee, for on page 24 of his brief we find the following: "In the case of Wallace, Executor, vs. Berdell et al., the Court of Appeals of New York (3 N. E. Rep., 770), discussing the terms "mesne profits" and "rental value," says: " 'It would be manifestly unjust to confine the owner of the property withheld from him to the rents actually received by the party required to make restitution. The owner should have either those rents, or the rental value, as may be just under the circumstances. * * * The mesne profits consist of the net rents after deducting all necessary repairs and taxes, or the net rental value, or the value of the use and occupation. That is all of which the party from whom possession has been withheld has been deprived.'" It is stated in volume 10 of the Encyclopedia of Law, page 540, that the universal rule is that the measure of damages is the fair rental value of the property withheld, and numerous cases are cited to sustain this proposition. The general principle on which damages are allowed is, that the plaintiff is entitled to recover damages fairly resulting from his having been wrongfully kept out of possession. Compensation is the measure of damages. Hence, on principle, the amount of recovery for mesne profits is the annual value of the premises wrongfully withheld from the time plaintiff's title accrued. (Nash vs. Sullivan, 32 Minn., 189; Cutter vs. Waddingham, 33 Mo., 269.) Section 84 of the Code of Civil Procedure requires judgment to be rendered for the plaintiff, if the court finds the complaint to be true, ^f or restitution of the premises and costs of suit and for all arrears of rent or a reasonable compensation for the use and occupation of the premises." This compensation is the rental value of the premises, and such value could doubtless have been easily ascertained; but, instead of adopting this rule of ascertaining the damages suffered by the plaintiff, the court permitted witnesses to guess at the profits which were "expected" or which "ought to be" received, and ordered a money judgment upon such testimony, reaching the amount named "without any testimony," as was said "to guide the court." In arriving at this conclusion the judge below stated: "I have come to the conclusion that the witnesses intended to convey the idea that the use of the property, together with the time, skill, and capital of a man competent to operate the same for the purposes for which it has been operated, and the reasonable profits derived therefrom, would aggregate $1,000, Mexican, per month, and, without any testimony to guide me, I have determined that the time,

skill, and capital would be worth the half of this sum, thus leaving 500 pesos per month of profit," and judgment was rendered accordingly. In view of the decisions of the courts cited above, and of the language of section 84 of the Code of Civil Procedure, providing that the damages, in a case of this kind, shall be a reasonable compensation for the use and occupation of the premises, we are of opinion that the court below adopted an erroneous rule in ascertaining the amount of damages in this case, and that the proof was not sufficient to justify the conclusion of the court or the judgment entered for damages. Tlie judgment is therefore reversed and a new trial ordered, with the costs to the appellee. The clerk will enter judgment accordingly an& remand the cast for further proceedings, in conformity with this opinion, twenty days from this date. Arellano, C. J., Torres, Cooper, Willard, Mapa, and Johnson, JJ., concur.

[1] Published at the end of this volume.

OSJurist.org

G.R. No. 1085, May 16, 1903

RUDOLPH WAHL, JR., AND DR. KURT WAHL, PARTNERS IN THE BUSINESS FIRM OF RUDOLPH WAHL & CO., PLAINTIFFS AND APPELLANTS, VS. DONALDSON, SIMS & CO., DEFENDANTS AND APPELLEES. D ECIS ION
COOPER, .: This is an action brought by Rudolph Wahl & Co. vs. Donaldson, Sims & Co., based upon a contract by which the plaintiffs leased to the defendants a certain ship called Petrarch for the term of six months, under which contract the plaintiffs claimed that the defendants were indebted to them a balance of $25,484.38, with interest from the 30th day of July, 1901. Suit was instituted on the. 4th day of March, 1902, and service of citation was had upon the defendants on the same day. The defendants failed to answer the complaint, and on the ISth day of April, 1902, judgment was rendered by default against, the defendants in favor of the plaintiffs for the sum of $17,892.81. Afterwards, on the 10th day of June, 1902, the defendants made an application to the Court of First Instance for a new trial, under section 11.3 of the Code of Civil Procedure, 1901. This motion for a new trial was granted by the Court of First Instance, and the judgment by default against the defendants was set aside on the 20th day of June, 1902. After the granting of the motion for a new trial a demurrer was made by the defendants to the complaint which presented the question of the competency of the Court of First Instance to try the case. The objection was based upon the grounds that there was a provision contained in the contract to the following effect: "If there should,arise any difference of opinion between the parties to this contract, whether it may be with reference to the principal matter or in any detail, this difference shall be referred for arbitration to two competent persons in Hongkong, one of which shall be selected by each of the contracting parties, with the power to call in a third party in the event of a disagreement; the majority of the opinions will be final and obligatory to the end of compelling any payment. This award may be made a rule of the court," The question presented for our determination is whether a provision of this character is invalid as being against public policy. Agreements to refer matters in dispute to arbitration have been regarded generally as attempts to oust the juridiction of the court, and are not enforced. The rule is thus stated in Clark on Contracts, page 432: "A condition in a contract that disputes arising out of it shall be referred to arbitration is good where the amount of damages sustained by a breach of the contract is to be ascertained by specified arbitration before any right of action arises, but that it is illegal where all the matters in dispute of whatever sort may be referred to arbitrators and to them alone. In the first case a condition precedent to

the accrual of a right of action is imposed, while in the second it is attempted to prevent any right of action accruing at all, and this can not be permitted." This seems to be the general rule in the United States, and we understand that in the civil law it is also the rule that, where there is a stipulation that all matters in dispute are to be referred to arbitrators and to them alone, such stipulation is contrary to public policy. We reach the conclusion that the Court of First Instance should have entertained jurisdiction in this case, notwithstanding the clause providing for arbitration above referred to. With regard to the sufficiency of the motion to set aside the judgment by default and the order of the court in granting the same, the majority of this court are of the opinion that there was no error in the action of the court. In this the writer does not concur. The application of the defendants, upon which the judgment was set aside, appears to be defective and not sufficient to have justified the setting aside of the judgment by default. There was no excuse whatever shown why the defendants failed to answer within the time prescribed by law. The citation was served upon the defendants on the 4th day of March, and the judgment by default was not taken until the 18th day of April, 1902. The application was based upon section 113 of the Code of Civil Procedure, 1901, which reads as follows : "Upon such terms as .may be just the court may relieve a party or his legal representative from a judgment, order, or other proceeding taken against him through his mistake, inadvertence, surprise, or excusable neglect: Provided, That application therefor be made within a reasonable time, but in no case exceeding six months after such judgment, order, or proceeding was taken." This seems to be a literal copy of section 473 of the Civil Code of Procedure of California, and, according to the well-known rule of construction, the decisions of the court of California, made prior to the.adoption of the statute here, should have the same weight that such decisions would have in California. Under the construction by the supreme court of California of the section in question, it is stated that the application should show merits, and that this should he done with some degree of certainty and not left to surmise. In the case of Taylor vs . Randall (5 Cal., 80) an affidavit had Itwm made to the effect that an instrument had been materially altered without showing in any manner in what the alteration consisted. It was held that this furnished no grounds on which to base a motion to set aside the judgment. It is said in the case of Bailey vs. Tatte (20 Cal., 422) that the better practice is to prepare and exhibit to the court the defendant's answer at the hearing of the motion. It is also held in the case of Reidy vs . Scott (53 Cal., 73) that where the affidavit shows that the defense rests upon matters which would be deemed to be waived except for the interposition of a demurrer, the defense is merely of a technical character and the affidavit is insufficient. The affidavit in this case states in a general way that the defendants have a counterclaim against the plaintiffs for |125,000, based upon the failure on the .part of the plaintiffs to

perform the contract with regard to the Petrarch. This statement is too vague and uncertain to show merits in the defense. After the application to set aside the judgment had been granted, instead of presenting this defense, a demurrer is presented to the petition, based upon the purely technical grounds that under the contract the parties had agreed to settle the matters in dispute by arbitration at Hongkong. If the answer had been prepared by the defendants and presented to the Court of First Instance at the time of the granting of the order, the Court of First Instance must have concluded that the defense was based upon a technicality and the application must have been overruled. But, as stated before, this view is not concurred in by the majority of the court. The judgment of the court in sustaining the demurrer to the complaint and in holding that the Court of First Instance did not have jurisdiction on account of the clause with reference to arbitration, was erroneous, and it will be set aside and a new trial had. The costs of this appeal is adjudged against the appellees, the defendants. It is so ordered and adjudged. Torres and Mapa JJ., concur. Arellano, C. J., and McDonougal, J., did not sit in this case. Willard, J., concurring, with whom concurs Ladd, J .: I agree with the result.

OSJurist.org

G.R. No. 1093, March 31, 1903

THE UNITED STATES, COMPLAINANT AND APPELLEE, VS. SANTIAGO MERIN, DEFENDANT AND APPELLANT. D ECIS ION
LADD, J.: The complaint designates the crime with which the defendant is charged as "quintuple asesinato and robo" . It sets forth the facts constituting the crime as follows: "In the early hours of the night of April 22, 1902, the said Santiago Merin went to the house of Diego Misa, in the municipality of Santa Cruz, Province of Zambales, the proprietor of the house being at the time in Masinloc. He allowed himself the same freedom and familiarity which Diego Misa and his wife had been for a long time accustomed to allow him, lying down at once on a lancape which was there. The woman, with her two children of tender age, Juan and Felicidad by name, and another child a few years older, named Pedro Muya, Was in the house. Santiago Merin remained on the lancape, and a few moments after he saw Engracia Monsalud go to bed he approached her and attacked her with a large-sized clasp knife, causing several injuries in different parts of her body and leaving her dead, besides destroying the foetus which she had in her womb. Not content with this, he took possession of the money and jewelry belonging to the proprietors of the house, the taking of which was undoubtedly the principal motive of these murders." The complaint is unskfllfully drawn, but it is sufficient to charge the commission of the complex crime of robo with homicidio , denned and punished in article 503, No. 1, in connection with article 502 of the Code. Upon being arraigned upon this complaint the defendant stated "that he dfd murder Engracia Monsalud and her two children, Juan and Felicidad, and another child by the name of Pedro Muya, in the manner and form charged in the said complaint, but that he did not commit the robbery with which he is charged in the said complaint." The prosecution then introduced the testimony of two witnesses, Francisco Sanchez and Diego Misa. The evidence of Sanchez is not important and does not require notice. Diego Misa testified in substance that while in Masinloc he heard that his son Juan had been killed by ladrones; that he returned home, arriving there at 11 o'clock on the morning of April 22 and found the dead bodies of his wife, his two children, Juan and Felicidad, and his nephew, Pedro Muya, lying side by side, with their throats cut, on the floor of his house; that he heard the defendant confess to Patricio Lesaca that he had killed the family of the witness, saying that he was drunk at the time. The witness identified a knife shown to him as one that had belonged to his wife, and stated that he found it near the bodies in the house on his return home. He further testified that when he returned to Ids house lie found a large number of articles of jewelry and 50 pesos in money missing, and that he had since received most of the articles of jewelry from Patricio Lesaca, "who had received them from the defendant, Santiago Merin," and that "Santiago Merin had told Patricio Lesaca that he had hidden the things in a big tree in the pueblo of Infanta, and that he, Patricio, had gone there to get them." He also stated that he had recovered the money. The defendant was then called to the stand by the court, and was shown a knife, presumably the one identified by Misa, and stated that that was the knife he had "used in killing Engracia

Monsalud and the others," and that it did not belong to him. There was no further evidence. The court found as facts that the defendant "did on the night of the 22d day of April, 1002, in the pueblo of Santa Oruz, in the Province of Zambales, and in the house of one Diego Misa, in the said pueblo, with evident premeditation, kill and assassinate Engracia Monsalud, the wife of Diego Misa, Juan Misa and Felicidad Misa, children of Engracia Monsalud, and another child named Pedro Muya," and "that the said Santiago Merin did at the same time and place take possession of the sum of 50 pesos, Mexican, and several pieces of gold jewelry, the property of the said Diego Misa, with the intent then and there to appropriate the said money and gold jewelry to his own use, and with the intent to deprive the owner of the property therein," and by virtue of the confession of the defendant that he was guilty of the crime charged in the complaint presented in said cause, and by virtue of the foregoing findings of fact from the testimony given in said cause, it sentenced the defendant to the penalty of death, to be executed by hanging, "at a time and in a public place and by a person to be hereafter designated by the court, in accordance with the existing laws and the laws hereafter enacted." The case comes to this court en consulta . As respects the killing of Engracia Monsalud no question can arise in view of the defendant's confessions before and at the trial. As he denies that he committed the robbery it is necessary to determine whether there is sufficient evidence in the record to warrant us in finding that this element of the complex crime with which he is charged has been established. There is the testimony of Misa as to Lesaca's having received the jewelry from the defendant, and as to what the defendant told Lesaca concerning its hiding place, and although this is apparently hearsay, it was received without objection, and we may properly attach to it such probative force as we think it possesses, which under the circumstances of the case is considerable. There is, moreover, the testimony of Misa that when he arrived home a few hours after all his family had been killed in his house by the defendant he found the money and jewelry missing. To this latter testimony we attach decisive weight. In the absence of any other known motive for the crime it would be, in our judgment, to reject the universal teaching of experience to refuse, to draw the inference that the same person who killed the occupants of the house also committed the robbery. We can not, therefore, bring ourselves to doubt, taking the record as it stands, that both the homicide and the robbery wTere committed by the defendant, although we are constrained to say that the failure of the fiscal to utilize at the trial the very complete evidence of the defendant's guilt as respects the robbery, which the record of the preliminary investigation shows was available, indicates a misconception as to the nature and degree of proof required for conviction, which might under some circumstances easily lead to a serious miscarriage of justice. The fact that the crime was committed in the house of the victim is to be appreciated as an aggravating circumstance. (Code, art. 10, No. 20.) The extenuating circumstance is suggested that the defendant was drunk when he committed the crime, but there is no sufficient proof of this. The penalty prescribed for the crime of robo with homicidio is cadena perpetua to death, and under the rule for the application of a penalty composed of two indivisible penalties, where there is an aggravating circumstance and no extenuating circumstance, as in the present case (Code, art. 80, rule 1.), it is to be applied in its maximum degree. Although we are of opinion that the crime of robo with homicidio was committed by the

defendant, and although our judgment is based upon that view of the facts, we are not to be understood as holding that a conviction could not also be had for asesinato , on the theory that that crime is sufficiently charged in the complaint, inasmuch as the facts set out therein may be regarded as showing alevosia, and that the defendant pleaded guilty of murdering Engracia Monsalud "in the manner and form charged in the said complaint." We find the defendant guilty of having committed the crime of robo, on account or on occasion of which homicide has resulted, as said crime is defined in article 503, No. 1, of the Penal Code, in connection with article 502 of the same, with the aggravating circumstance above stated and with no extenuating circumstance, and we sentence him to the penalty of death, and to the payment of an indemnity in the sum of 1,000 pesos to Diego Misa, the husband of Engracia Monsalud, and to the restitution of such of the articles stolen as have not been recovered, and, in case this j)enalty is not executed by reason of the defendant's being pardoned, to the accessory penalties of perpetual, absolute disqualification and subjection to the vigilance of the authorities for the term of his natural life, unless said accessory penalties shall have been expressly remitted in the pardon. As the crime was committed and the prosecution for the same was pending prior to September 2, 1902, the date of the enactment of the Commission abolishing the use of the garrote in executions of criminals, the sentence will be executed in accordance with the provisions of the preexisting law relating to executions. (Act No. 451 of the Commission, sec. 3.) The judgment of the court below will be modified in conformity with this opinion, and affirmed in other respects, and the cause will be returned to that court for the execution thereof. So ordered. Arellano, C.J., Torres, Cooper, and Willard, JJ., concur. Mapa, J., dissents.

OSJurist.org

G.R. No. 1096, May 03, 1903

MARTIN BALATBAT, PLAINTIFF AND APPELLEE VS. VALENTIN TANJUTCO, DEFENDANT AND APPELLANT. D ECIS ION
WILLARD, J.: Section 133 of the Code of Civil Procedure requires the judges of the Court of First Instance to file decisions in writing, in which shall be stated the facts found by them to be true. We have held that if these facts stated in the decision, and those admitted by the pleadings, are not, as a matter of law, sufficient to support the judgment, it must be reversed. (Thunga Chui vs. Que Bentec, September 5, 1902;[1] Martinez vs. Martinez, Janauary 23, 1903)[2] The complaint, as amended, alleged that the plaintiff and the contenants in 1898 or 1899 sold the land in questionto the defendant, with an agreement that they might redeem it, and asked that they be allowed to redeem it by paying 400 pesos. The defendant denied all the allegations of the complaint. The only facts found by the court are: 1. That the defendant paid Dona Inocencia Soco, as a coowner with the plaintiff of the land in controversy, 10 pesos. Giving to the custom of the province referred to in judgment, and relied upon by the plaintiff in his brief in this court, all possible force, this evidence has no tendency to show that 400 pesos was the price at which the land could be redeemed by the terms of the alleged agreement. 2. That Dona Simona Espinosa formerly was the owner of the land; that she had sold it, with an agreement of repurchase, to Prudencio Tanjutco, a brother of the defendant; that she and her coowners, the plaintiff and others, had redeemed it and had been in possession of it for four years. This in no way tends to prove that after such redemption they again sold it to the defendant with a right to repurchase it for 400 pesos; 3. That the defendant had been called upon to produce the writing which contained the agreement relied upon, and had refused to produce it. The facts hereinbefore set out, being the only ones found by the court, do not tend to prove that any such writing ever existed. A failure to comply with this request could not take the place of a finding that such a contract existed, nor a finding as to its contents. For these reasons a new trial will have to be granted. In view thereof, we will add that the claim of res adjudicata made by the defendant can not be supported. Pass- ing the question of identity of parties and other questions, the identity of subject-matter between the former case and the present one was not established. In the complaint in the first case the only description of the land was that it was in the barrio of San Agustin. That the defendant's suggestion in that case as to the proper description was not

accepted by the plaintiff is proved by the judgment, in which it is said that the plaintiff neither in his complaint nor during the trial had described the land which he claimed the right to redeem. The judgment of the court below is reversed and a new trial granted, with costs of this instance against the appellee. Arellano, C. J., Cooper, Mapa, and Ladd, JJ., concur. Torres and McDonough, JJ., did not sit in this case.

[1] Phil. Rep., 356. [2] Phil. Rep., 647.

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G.R. No. 1098, April 06, 1903

THE UNITED STATES, COMPLAINANT AND APPELLEE, VS. LICERIO MENDOZA, DEFENDANT AND APPELLANT. D ECIS ION
WILLARD, J.: That the deceased, Rufino Dizon, was creating a disturbance in front of the store of Alejandro Guevara, and that the defendant, a policeman, attempted to arrest him and take him to the presidencia and that he declined to go, was clearly proved. We think that it was also proved that the deceased did not content himself with a passive resistance, but carried it to the extent of attacking the defendant. The defendant himself so testifies, and his testimony is corroborated by that of said Alejandro Guevara. The latter says that he intervened hot ween the two men in order to separate Ihem and that the defendant's revolver was discharged almost in his face. If the resistance of Dizon had heen passive, Guevara would hardly have intervened, for fear that he himself might he arrested for interfering with an officer in the performance of his duty. His intervention can he explained only on the theory that the deceased was making an attack on the defendant. We accordingly hold that the proof shows an unlawful aggression on the part of the former. It. was also shown that there was no provocation moving from the defendant. The complete defense of article 8, No. 4, of the Penal Code, is, however, not made out because the second requirement, thereof was not proved. When the defendant fired his revolver and killed Dizon the latter, according to the defendant's own testimony, had already struck twice at him with a calicut . The character of this weapon is such that in our opinion the defendant could not then have reasonably helieved that it was necessary to kill his assailant in order to repel the attack. The incomplete defense is, however, made out, and, applying article 86 of the Penal Code, we revoke the judgment of the court helow in respect jo the penalty and fix the same at six years and one day of prision mayor. In other respects the judgment, so far as it is not inconsistent with this opinion, is hereby confirmed, with costs of this instance de oficio. Arellano, C.J., Torres, Cooper, Mapa, and Ladd, JJ., concur.

OSJurist.org

G.R. No. 1099, March 10, 1903

THE UNITED STATES, COMPLAINANT AND APPELLEE, VS. MANUEL NAVARRO ET AL., DEFENDANTS AND APPELLANTS. D ECIS ION
LADD, J.: The defendants, Manuel Navarro, Julio Alarcon, and Adriano Labrador, were convicted in the Court of First Instance of Bataan, of robo, under No. 5 of article 503 of the Code, and have appealed. The case of prosecution rests principally upon the testimony of two witnesses, Narcisa Pangalinan, who is the wife of Tomas Bautista, and their son, Francisco Bautista, 10 years of age. Narcisa Pangalinan testifies, in substance, that one Sunday evening in July, 1902, the defendants Navarro and Labrador entered her house in the pueblo of Orion, Bataan, maltreated and intimidated her husband and herself, and compelled her to open a trunk where she had in a tampipe 150 pesos in silver, the accumulated savings of six years, which Navarro seized and carried oft'. She further testifies that the defendant Alarcon was with Navarro and Labrador, though he did not enter the house, but stayed outside while the other tAvo committed the robbery. She states that the defendants took her husband with them when they left the house, but that he returned the same night accompanied by a policeman. Francisco says that on the night in question he came home from fishing and found Labrador and Alarcon on the stairs; that they prevented him from going into the house, and that Labrador searched his pockets and took from him half a real. He also states that he saw Navarro going off with the tampipe. And in other important details he confirms the testimony of his mother. Tomas Bautista was unable to be present at the trial on account of sickness, and did not testify. One rather singular circumstance was developed by the evidence for the defense, namely, that when Tomas Bautista and some others went to the concejal of the barrio, apparently on the very night of the robbery, to report what had occurred, the defendant Navarro went writh them. This fact, however, standing by itself, falls far short of raising a reasonable doubt in our minds as to Navarro's guilt. He may have had an idea that by being among the first to denounce the crime he could in some manner exonerate himself from responsibility for his share in it. There is no other evidence tending to exculpate either Navarro or the other defendants, except some very slight proof of an alibi as to Labrador. We believe the evidence of the witnesses for the prosecution, and are of opinion that the defendants were properly convicted. No aggravating or extenuating circumstances were appreciated by the court below, but the penalty was nevertheless applied in the maximum grade. We appreciate as an aggravating circumstance the fact that the crime was committed at night, (Art. 10, No. 15.) The penalty may therefore stand as fixed by the court below. With the modification indicated the judgment is confirmed with costs, and the cause will be remanded to the court below for the execution thereof. Arellano, C. J., Cooper and Willard, JJ., concur. Mapa, J., dissents.

Torres, J., did not sit in this case.

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G.R. No. 1101, March 16, 1903

THE UNITED STATES, COMPLAINANT AND APPELLEE, VS. ISAAC BAILOSES,DEFENDANT AND APPELLANT. D ECIS ION
LADD, J.: The offense of which the defendant has been convicted is that termed abusos deshonestos , defined in article 439 of the Code. There appears to be no dispute as to the facts. The prosecuting witness, Saturnina Emiterio, owed the defendant, who was the president of the pueblo, a peso. The defendant sent several policemen to her house to arrest her. They brought her to the defendant's house, where, after beating her with a stick, the defendant compelled her to take off all her clothes and dance before himself and many oilier persons. Further details of what occurred are related by the witnesses, but it is not necessary to state them. It is claimed by counsel for the defendant that these facts do not show the commission of the offense of abusos deshonestos , because the defendant was actuated in what he did not by libidinous motives but by the desire to punish the prosecuting witness for not returning the peso. We need not determine the abstract question whether in a cast; where the sole motive of acts such as those under consideration appeared to be anger, curiosity, or the like, this particular crime of abusos deshonestos could be said to be committed. We can not so interpret the facts of the present case. It appears to have been assumed by the court below in its judgment that the defendant's purpose was to take revenge upon the prosecuting witness for her failure to pay him, and that may doubtless have been one motive, and it may even be admitted that it was the dominating motive of his conduct. Still we can not believe that there was no admixture of lasciviousness in the thoughts and purposes of a man avIio could devise such a method as this defendant did to exact satisfaction from a woman for the nonpayment of a debt. And we are therefore of opinion that, even if the facts are to be viewed from a subjective as well as an objective standpoint, the offense of abusos deshonestos may properly be predicated upon them. It is further claimed by counsel for the defendant that the fact that the complaint was not sworn to by the prosecuting witness vitiates all the proceedings. Without considering what might be the consequences of such a defect in the complaint if neither cured nor waived, it is sufficient to say that here the defect was both cured and waivedwaived because no objection was taken at the trial, and cured because the complaint, having been adopted by the provincial fiscal in a writing signed by him and filed in court, may be regarded for all material purposes as an information under General Orders, No. 58, section 6. The judgment is affirmed with costs, and the cause will be returned to the court below for the execution of such judgment. So ordered. Arellano, C. J., Cooper, Willard, and Mapa, JJ., concur. Torres, J., did not sit in this case.

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G.R. No. 1102, May 06, 1903

THE UNITED STATES, COMPLAINANT AND APPELLEE, VS. JOSE TENGCO, DEFENDANT AND APPELLANT. D ECIS ION
TORRES, J.: On the morning of August 7, 1902, the municipal policemen Antonio Mariano, Guillermo Cabrera, Agapito Lara, and Jose Tengco were returning to Arayat from the town of Conception, Tarlac. They had with them Toribio Macapinlac, whom they had arrested in Concepcion on the charge of stealing a carabao belonging to Vicente Mangune. In crossing the estero at Talabangca the policeman Jose Tengco struck Macapinlac, who was at that time tied elbow to elbow, two blows with the butt of his gun for having refused to confess that he was guilty of the theft. The blows were received on the abdomen and on the back, and as a result thereof, in less than half an hour, Toribio Macapinlac fell to the ground, and shortly after died in consequence of internal hemorrhages and the rupture of the spleen, as appeared in the examination held by a physician who watt a member of the board of health of Arayat, The facts stated constitute the crime of murder, defined and punished in article 403 of the Penal Code. The deceased was struck with the butt of a gun, and, in consequence of the blow so received, he died in less than half an hour, owing to injuries received by the spleen or some other vital organ. At the time the blow was struck the deceased was unable to defend himself or ward off the attack, and, although he was not tied for the purpose of killing him, but because he was being conveyed as a prisoner charged witli theft, it is unquestionable that his aggressor acted with safety to himself, employing means which were conducive to the accomplishment of his purpose without any risk arising from an attempt at self-defense. Therefore the attack must be regarded as a treacherous one ( alevosia), which circumstance converts the violent death of the deceased into murder and demands a heavier penalty. The defendant, Jose Tengco, pleaded not guilty and testified as a witness in his own behalf. He stated that he had struck the deceased, Toribio Macapinlac, two blows with the butt of the gun he was carrying because Macapinlac had lied, although he alleged that he had struck the deceased by order of Corpl. Antonio Mariano. This allegation, denied by the corporal, and which was. apparently made by the defense in the belief that it exempted the defendant from responsibility, has not been proven in the trial. Even if it had been; in order that the person who actually performs the act may be exempt from criminal liability it is indispensable that the order be lawful, and the act done or ordered to be done must also be lawful. Under these conditions obedience is due. Without these conditions that, is, when the order is unlawful or the act ordered to be done is unlawfulno obedience is due, for over and above the superior who orders the execution of such an unlawful act is the law itself, which prohibits the commission of any act contrary to its precepts. Therefore before the penal law the accused can not be regarded as exempt from liability. Apart from his explicit confession, the record contains sufficient oral evidence to fully convince the mind of the guilt of the defendant, who attacked the deceased in the presence of witnesses whose testimony supports the charge.

In the commission of the crime we must consider and apply mitigating circumstance No. 3 of article 9, and also the mitigating circumstance of article 11 of the Penal Code, inasmuch as the accused, owing to his nativity and ignorance, erroneously believed that he had a right to punish the deceased for lying. In so doing it is unquestionable that he had no intention of killing him, but simply of punishing him by beating him with a gunan unlawful act The aggravating circumstance No. 11 of article 10 of the Penal Code can not be applied, as it was not necessary for the accused, Tengco, to have availed himself of his capacity as a member of the municipal police in order to ill treat the deceased, Toribio Macapinlac. Upon these considerations, and finding the existence in a marked degree of the two mitigating circumstances referred to, without the concurrence of any aggravating circumstance, we must apply the provisions of article 81, paragraph 5, of the Penal Code, imposing upon the defendant the penalty immediately inferior to that corresponding to the crime of murder, as designated in article 403, in its inedium grade, to wit, the penalty of presidio mayor in its maximum degree to cadena temporal in its minimum and medium degrees. With respect to the motion for a new trial, made and overruled in the court below and again brought forward in the appellate court, we regard it as unsustainable, as it does not fall within section 42 of General Orders, No. 58, it not having been alleged that it was impossible to introduce the evidence1 now offered on account of some sufficient reason, or that a favorable result of the evidence would be of notorious influence upon the defense of the accused. Furthermore, the motion is not supported by the affidavits of the witnesses by whose testimony it is proposed to introduce new evidence of the defendant's innocence. We consider, therefore, that the decision of the court below overruling the said motion for a new trial was correct, upon the grounds therein stated. As we have already said, even if it were proven that the accused ill treated the deceased by order of a third person, it can not be considered that, he acted in accordance with the obedience due to a superior, because the act was unlawful; nor could the accused allege that he had acted in the performance of a duty or in the. lawful exercise of a right, inasmuch as he had no right to beat Toribio Macapinlac with the butt of his gun without reason, and upon a futile pretext, to such an extent as to deprive him of life. For the reasons stated we are of the opinion that the judgment appealed must be reversed and the accused, Jose Tengco, condemned to the penalty of fourteen years of cadena temporal, the medium period of the penalty immediately inferior to that prescribed by article 403, together with the accessory penalties of civil interdiction during the period of the penalty and absolute, perpetual disqualification, and subjection to the vigilance of the authorities through his life, and to the payment of 1,000 Mexican pesos to the heirs of the deceased, Toribio Macapinlac, and to the payment of the costs of both instances. So ordered. Arellano, C. J., Cooper, Willard, Mapa, and Ladd, JJ., concur. McDonough, J., did not sit in this case.

OSJurist.org

G.R. No. 1103, August 19, 1903

THE UNITED STATES AND MARIANO BENIFAYO, COMPLAINANTS AND APPELLEES, VS, EUSTAQUIO RABADILLAS, DEFENDANT AND APPELLANT. D ECIS ION
ARELLANO, C.J.: The defendant is charged with having obtained from Mariano Benifayo, by means of intimidation, 50 of the 100 pesos which he had demanded of him. The accused, who was a sergeant in the Constabulary, took Benifayo from his house by means of two armed soldiers, and, pretending that Benifayo had been sent for by the Court of First Instance, told him that he would bind him and send him there if he did not sign a promissory note for 100 pesos. The court below, upon proof of the crime, condemned the defendant to eight years and one day of presidio mayor, with the costs, considering as aggravating circumstances that the accused availed himself of his official position, and also the abuse of authority, and the commission of the crime with the aid of armed men, citing paragraphs 9, 11, and 14 of article 10 of the Penal Code. None of these circumstances should be considered in aggravation of the offense, as in this particular case they are all but part of the intimidation which gives the quality of robbery to the taking of the property of another, and the, last two circumstances mentioned are identical with respect to the purpose of the crime. The penalty is therefore excessive. But this case should not be decided in accordance with the Penal Code. On the 8th of March, 1902, the date on which the crime was committed, Act No. 175, by which the Insular police was organized, was in force, that act having been passed June 18, 1901. The crime committed by the sergeant in his official capacity being punished by section 19 of the act by imprisonment from one to ten years, the case should be decided in accordance with that law. We therefore condemn Eustaquio Rabadillas to four years' imprisonment and to the payment of the costs. Torres, Cooper, Willard, Mapa, and McDonough, JJ., concur.

OSJurist.org

G.R. No. 1106, April 15, 1903

THE UNITED STATES, COMPLAINANT AND APPELLEE, VS. AGUEDO DEL ROSARIO ET AL., DEFENDANTS AND APPELLANTS. D ECIS ION
LADD, J.: The defendants have been convicted of rebellion, under section 3 of Act No. 292 of the Commission. The information is very loosely drawn, but we think it sufficiently charges the crime of insurrection or rebellion. It so designates the crime charged, and it contains language which may fairly be construed as an allegation that the defendants incited and set on foot a rebellion against the authority of the United States in the Philippine Islands, which is the definition of the crime given by the statute. If the information could be regarded as defective in not stating facts which constitute the crime of rebellion, yet, as it specifically designates that crime as the one charged, and as we think the evidence shows the commission of that crime, and as no objection was taken to the information either in the court below or in this court, we are of opinion that the conviction should be sustained. Taking the admissions made by the defendants at the trial in connection with the documentary evidence introduced by the prosecution, it is clearly shown that on July 5, 1902, the day of the defendants' arrest, they were members of the society known as the Katipunan, as reconstituted by them and others in December, 1901; that this society had for its object the forcible overthrow of the Government of the United States in the Philippine Islands; that it had established what purported to be a Tagalog government of the Archipelago, of which government the defendants were high officials; that it had organized what purported to be an army; and that during a period extending from December, 1901, down to a date subsequent to May 1, 1902, its leaders, including the defendants, were actively engaged in plotting and organizing insurrectionary movements. These facts are sufficient to support the conviction. The appellants claimed at the trial that they could not be convicted of the crime of rebellion, because they had never recognized the Government of the United States in these Islands, or taken the oath of allegiance thereto. Their counsel in this court has not insisted upon this defense, and it is so palpably unfoundedbeing nothing less than a negation of the right of the Government to maintain its existence and authority against a certain class of the population that we do not think it necessary to discuss it. The only question raised by counsel in this court is as to the sentence. The crime is punishable by imprisonment for not more than ten years and a fine of not more than $10,000. (Act No. 292, sec. 3.) The court imposed a fine of $5,000 and the maximum of the penalty of imprisonment, without, however, finding the existence of any aggravating circumstance. It is claimed that the penalty of imprisonment fixed for the crime must be divided into grades, and,.in the absence of either aggravating or extenuating circumstances, should be applied in the present case in the medium grade, in accordance with the rules of the Spanish Penal Code. We are of opinion that the rules of the Penal Code with reference to the circumstances which aggravate and extenuate guilt, and with reference to the application of penalties as affected by the existence or nonexistence of such circumstances, are not applicable to the penal legislation of the Commission. Those rules form a part of a complicated and carefully adjusted system of

penalties, and can not be conveniently applied, and in many cases can not be applied at all, except in relation with other parts of such system. They are entirely foreign to the spirit of American criminal legislation, which allows wide discretion to the judge in the fixing of penalties. In the absence of anything in Act No. 292 to indicate that the Commission intended that the penalties therein prescribed should be applied by the courts in accordance with the rules of the Penal Code, we can not presume that such was their intention. The discretion possessed by the judge as to the penalty was, we think, in the present case, properly exercised. Application was made by the defendants in the court below for the benefits of the amnesty proclamation of July 4, 1902. Counsel in this court has not renewed this application. The defendants are not within the terms of the amnesty proclamation, because the crime of which they have been convicted was committed subsequent to May 1, 1902. The judgment of the court below is affirmed, and the cause will be returned to that court for the execution of such judgment. Arellano, C. J., Torres, Cooper, Willard, and Mapa, JJ., concur.

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G.R. No. 1109, May 15, 1903

THE UNITED STATES, COMPLAINANT AND APPELLEE, VS. JOSE M. LERMA, DEFENDANT AND APPELLANT. D ECIS ION
LADD, J.: The defendant has been convicted in the trial court of publishing a libel upon J. H. Goldman. The supposed libel is contained in a writing in the form of a petition, signed by the defendant and addressed to the justice of the peace of the pueblo of Pilar, Bataan. This writing was sent by the defendant, inclosed in a sealed envelope, to the justice of the peace. Several criminal prosecutions were at this time pending against the defendant before the justice, and when the petition was delivered the preliminary investigation was being held in one of these cases. The petition states that it is rumored that a plan has been formed to prosecute the petitioner for the purpose of discrediting his candidacy for the governorship of the province, and in general to injure his reputation. Then follows this language, the italicized words being those which are alleged to constitute the libel: "The hatred and animosity, Mr. Justice, of certain provincial officials totcard me, and especially of the governor, Mr. Goldman, the defeated [candidate in the recent elections, and of the provincial fiscal, Senor Soriano, who has been and is my open enemy, are notorious not only in this province but in Manila, the evident purpose, the outgroicth of previous resentment, being to ruin my political career. The accusations which have been fabricated against me are premeditated and false, the result of passions engendered by political contests, and for this reason the worthy authorities at Manila, in the exercise of their sound judgment, rejected them when they were presented to them. The governor, Mr. Goldman, availing himself of the office which he holds as a provincial authority, has extorted affidavits from certain persons whom he has caused to sign incorrect documents. " The petition goes on to suggest that the fiscal ought to withdraw from the prosecutions, being attorney for the parties claiming to be aggrieved, and, after exhorting the justice to act with the deliberation which the gravity of the situation demands, concludes with a prayer that, before any judgment unfavorable to the petitioner is rendered, he be given an opportunity to be heard and to testify in his own behalf, and that the petition be filed in the cause, if there is one pending. While it was not, perhaps, shown at the trial that Mr. Goldman had been instrumental in securing any statements which were ever actually laid before the justice of the peace, it did appear that he had been instrumental in securing statements charging the defendant with various acts of wrongdoing, some of which acts were the subject of .certain of the prosecutions pending before the justice at the time of the filing of the petition. Whether the evidence shows that these statements, or any of them, had been secured by Mr. Goldman in such a manner as to warrant the charge that they were "extorted" from the parties who made them, and whether the statements were true or not, are questions which we do not think it necessary to determine. There was some evidence tending to establish the affirmation of both these propositions. Assuming that the statements in the petition relating to Mr. Goldman are defamatory, were they made under such circumstances and for such a purpose as to relieve the defendant from criminal responsibility for them?

Section 3 of Act No. 277 provides that "an injurious publication is presumed to have been malicious if no justifiable motive for making it is shown." The effect of this provision is to make the existence of justifiable motives a complete defense to a prosecution for libel. If the publication is shown to have been made with justifiable motives the malicious intent, which is an essential ingredient in the definition of the offense (sees. 1 and 2), and which is presumed from the mere fact of the publication of defamatory matter, is negatived. In other words, the existence of justifiable motives implies the absence of malice. Whether the defendant can, by merely showing that the supposed libel was published upon what is known in the common law as a "privileged occasion," shift to the Government the burden of going forward with evidence to show actual malice, need not now be considered. When the evidence is nil in, if the defendant has shown the existence of justifiable motives, he is entitled to an acquittal; otherwise the publication is considered malicious and he must be convicted. It has been suggested that section 4 is inconsistent with section 3, giving to the latter section the construction which we have placed upon it. It may be difficult to harmonize these sections if the language of section 4 is to be taken in its literal significance, but we think there is no inconsistency if we look to the real purpose of the two sections. Section 4 is as follows: "In all criminal prosecutions for libel the truth may be given in evidence to the court, and if it appears to the court that the matter charged as libelous is true and was published with good motives and for justifiable ends, the party shall be acquitted; otherwise he shall be convicted; but to establish this defense, not only must the truth of the matter so charged be proven but also that it was published with good motives and for justifiable ends." The effect of this section appears to be to make the fact that the defamatory matter was true, evidence to show the existence of justifiable motives, but as justifiable motives may be lacking even Avhere the defamatory matter is truethe common-law maxim indeed being that the greater the truth the greater the libelthe law says that it is not enough merely to establish the truth of the words alleged to be libelous, but that the court must be satisfied upon the whole case, giving to the fact that the words are true such importance as it may deserve as the basis of an inference as to the true character of the party's conduct, that the motives of the publication were good and the ends justifiable. If the purpose of the section is to make it in general incumbent upon the defendant, in order to establish a defense to a prosecution for libel, to prove both truth and justifiable motives, the words "the truth may be given in evidence to the court" are superfluous; so also is the clause "but to establish this defense, not only must the truth of the matter so charged be proven but also that it was published with good motives and for justifiable ends." The whole structure of the section indicates that it is not intended as a qualification of the general rule of responsibility laid down in section 3, but that its purpose is, as we have said, merely to render admissible evidence of truth in order to show the character of the defendant's motives. We take it that the words "good motives" and "justifiable ends" of section 4 are of equivalent import with the expression "justifiable motive" in section 3. Act No. 277, down to section 11, is almost identical with sections 248-257 of the California Penal Code. The California statute is itself framed on the lines of other recent English and American legislation, by which the common-law doctrine whereby a defendant was not permitted in a criminal prosecution for libel to prove that his words were true, has been modified to the extent of permitting such evidence "when the further fact appears that the

publication was made with good motives and for justifiable ends" (2 Bishop's New Criminal Law, sec. 920); or "that it was for the public benefit" that the words should have been published. (4 Enc. of Laws of England, 189.) Section 9 of Act No, 277 provides that "a private communication made by any person to another, in good faith, in the performance of any duty, whether legal, moral, or social, solely with the fair and reasonable purpose of protecting the interests of the person making the communication or the interests of the person to whom the communication is made, is a privileged communication, and the person making the same shall not be guilty of libel nor be within the provisions of this act" What constitutes a justifiable motive is thus defined with reference to private communications, and it is to be noticed that it is not necessary, in order to establish the defense in such cases, that the truth of the words should be proved. If the construction which we have placed upon section 3 is not correct, but it is necessary with reference to written statements not embraced within section 9 to show both justifiable motives and the truth of the statements, in order to establish a defense, then it follows that private written communications are placed upon a more favorable footing than written statements made by a judge, counsel, witness, or, as in the present case, by a party, in the course of judicial proceedings, and, in general, more favorable than any written statements made in the discharge of public duties of any character. We do not think this result could have been,contemplated by the framers of the act. If the effect of section 3 is, as has been suggested, merely to fix the burden of proof and not to make the existence of justifiable motives a defense, it will still be necessary in every case, in order to decide whether the presumption of malice is rebutted, to determine what are to be considered justifiable motives. The difficulty which it is supposed would result from the construction of section 3, which we have adopted, that there would be "absolutely no guide or compass to direct the court in the determination of what are justifiable motives," exists, therefore, if it exists at all, equally upon the other construction. The ultimate question is, then, as we construe Act No. 277, whether the words alleged to constitute the libel were published with justifiable motives. The matter contained in the petition presented to the justice by the defendant all related to the supposed prosecutions against the latter, and we think the circumstances of the case show quite conclusively that the sole motive of the defendant in presenting the petition was to defend himself against those charges. It was not an attempt to make use of judicial proceedings as a vehicle for the utterance of slander. It was merely an exercise of the natural right which a person accused of crime possesses, and which it is for the public interest that he should enjoy unhampered so long as he exercises it in good faith and in a proper manner, to bring to the notice of the tribunal which is to pass upon his guilt all such considerations as he thinks may influence its judgment in his behalf, even though he may in so doing "incidentally disparage private character." In the sense of the law we think, therefore, that the defendant's motives must be regarded as justifiable. We do not undertake to lay down any general rule as to what is to be regarded as a "justifiable motive" in criminal prosecutions for libel under Act No. 277. Other cases, involving different conditions of fact, will be determined as they arise. The publication in the present case must, we think, be regarded as having been made with justifiable motives, upon any rational view which can be taken of the meaning of that expression. This result seems a mere corollary from principles of natural right as well as of public policy too obvious to require any express

recognition in the written law, and though in accord Avith the American and Knglish doctrine as to the privilege accorded parties, witnesses, and counsel in judicial proceedings, has been reached independently of that doctrine. The judgment is reversed, with costs de oficio. Let the case be returned to tin? court below for proceedings in conformity with this opinion, acquitting the defendant. Arellano, C. J., Torres and Mapa, JJ., concur.

CONCURRING WILLARD, J.: By sections 1 and 2 of Act No. 277 no one can be punished for publishing a libel unless it appears that the publication was malicious. Section 3 is as follows: "An injurious publication is presumed to have been malicious if no justifiable motive for making it is shown," The purpose of this section, in my opinion, was to do away with the necessity of proving malice in certain cases. Its purpose was simply to place the burden of proof. According to the opinion of the court, however, it has a much broader meaning. It is an independent and substantive provision which treats not of presumptions but of defenses, and declares that it shall be a complete defense if the defendant shows that the publication was made with justifiable motives. According to this opinion, it is not necessary to look into other parts of the law in order to find what motives are justifiable. The court can judge for itself in each case whether, in its opinion, the defendant, under all the circumstances of that case, was justified in publishing the libel. There i>s absolutely no guide or compass to direct the court in this determination. It is at perfect liberty to decide each case, without reference to any rules whatever which declare what are or what are not justifiable motives. Should a court below decide that there were justifiable motives, how is the Supreme Court to determine, as a matter of law, that the judge below was wrong, if there is no rule to which his decision is to be referred in order to know whether it was right or wrong? How is a party to know whether he has a right to publish a certain article? He knows that if he publishes it with justifiable motives he can not be punished. But where is he going to learn in advance what motives are justifiable? There would be absolutely nothing to which he could resort to obtain this information. He could not take the opinion of the judges in advance, and that opinion, with nothing to guide it, Avould determine his guilt or innocence. It is true that in the progress of time a body of decisions would grow up which might furnish him some light, it the doctrine of stare decisis should be adhered to. lint in the meantime he would be without relief. It seems to me that this construction makes unnecessary all of the law after section 3. Having defined a libel, the law says that the accused shall be punished for it if the judges of the Supreme Court see fit to do so. But such absolute discretion has not, as far as I know, been given to the judges by any other body of laws. The Spanish law required a conviction on proof of publication in cases of calumnia, unless the defendant proved the truth of the charge; and in cases of injuria it required a conviction regardless of the truth of the charge, except in cases of public servants. The American and English authorities define now with much precision the cases in which

communications are privileged, either absolutely or prima facie. They leave nothing to the discretion of the court. In order to determine what are justifiable motives, we must look into other parts of the law itself for a definition of this term. This section does not create a substantive defense independent of other provisions of the act. The inconsistency between section 3, as construed by the court, and section 4 is, I think, apparent. A person prosecuted for libel, let us suppose, undertakes to prove the truth of the article, and also that he published it with good motives and for justifiable ends. He does not prove that the article is true, but he does prove that he published it with good motives and for justifiable ends. If section 3 is to be applied to his case he must be acquitted. If section 4 is to be applied he must be convicted. The error in the construction placed upon section 3 by the court appears also from section 9. This section undoubtedly declares that a private communication, if published under certain circumstances, is made with justifiable motives. If section 3 gives the court a power to declare what are justifiable motives, unlimited by other provisions of the act, it could declare in one case that the motives set out in section 9 did not justify the publication, and in another case that facts which failed entirely to bring the case within section 9 would, notwithstanding, constitute justifiable motives and entitle the defendant to an acquittal. The difficulty which the court has encountered in this case arises in this way. The act has declared that certain publications are privileged. By section 9 a private communication, made in the performance of some duty, is privileged. By section 7 a newspaper is authorized to publish, if it does so without malice or comment, reports of judicial proceedings. But the act has not expressly declared that a libelous document presented in a judicial proceeding is privileged. The case at bar is such a case. It is not covered, in my opinion, by section 7. There is a marked difference between the publication by a newspaper, without malice or comment, of a document which is actually a part of the records of the court, and the presentation to the court of such a document. In the latter case, the question as to whether the document was or was not material to the case would be a proper subject of inquiry, while in the former case it could not be required of a newspaper that, before publishing an official record, it consult a lawyer for the purpose of determining whether or not the record which it proposes to publish was material to the controversy then before the court. To publish a record of the court is one thing; to make that record is an altogether different thing. The case not being covered by section 7, it seems plain that it is not included in section 9. There are no other provisions of the act applicable, and the result is that there has been a failure to provide in this law for what are known in some of the American text-books as absolutely privileged communications. Can we resort to any other body of law to supply this defect? That we can not resort to the common law of England or America seems clear. That body of law has never been in force in these Islands. While, for the purpose of construing acts placed in force here by the Commission, we may resort to the construction placed upon similar laws existing in the United States, yet we can not supply actual omissions in such acts by adding to them provisions on the same subject which may exist in the American laws. The difficulty of so doing is illustrated by this case. In some of the States of the Union utterances in court are absolutely privileged, whether material or not. In others they are not, unless they have some connection with the

matter in litigation. Are we to supply the defect in our law by taking from the former States or from the latter? The body of penal law in force in these Islands at the time Act No, 277 was passed was the Penal Code. This act was simply an amendment of that Code. It repealed only such parts of that Code as were in conflict with it. Article 467 is in part as follows: "No one can maintain an action for libel or slander committed in judcial proceedings without first obtaining permission therefor from the trial court. This was the law in force in regard to the libelous statements made in court when Act No. 277 was passed. That act says nothing about this subject. The provision of the Code is not inconsistent with anything in the act. It is, I think, styill in force, and is applicable law of the case. I concur in the judgment, on the ground that the prosecution was commenced without the previous permission of the court to which the libelous document was presented.

CONCURRING COOPER, J.: The statement upon which the charge of libel is issued was contained in a letter signed by the defendant and addressed to the justice of the peace of the pueblo of Pilar, Bataan. Assuming that the statement upon which the prosecution is based is Hbelous in its nature, still the defendant can not be convicted under the provisions of the Libel Act, inasmuch as the statement was contained in a private communication and is a privileged writing within the provisions of section 9 of the act, which reads as follows : "SEC. 9. A private communication made by any person to another, in good faith, in the performance of any duty, whether legal, moral, or social, solely with the fair and reasonable purpose of protecting the interests of the person making the communication or the interests of the person to whom the communication is made, is a privileged communication, and the person making the same shall not be guilty of libel nor be within the provisions of this act." That the document was a private communication clearly appears from the testimony. The statement was contained in a letter signed by the defendant, inclosed in a sealed envelope and addressed to the justice of the peace. That the communication was made in good faith and solely with the fair and reasonable purpose of protecting the interests of the writer appears equally plain. It was done for the purpose of exculpating himself before the justice of the peace then about to enter upon the trial of certain criminal cases that were pending against the defendant. There is nothing to show that he could possibly have had in view any other purpose. As said in the majority opinion, it was not an attempt to make use of it as a vehicle for the utterance of slander. This is sufficient to bring the case within the provisions of section 9, without the necessity of making proof of the truth of the matter, or proof of other justifiable motives. Such other proof is not required by the provisions of this section to constitute the defense. I do not concur in the construction placed upon section 3 of the Libel Act as given in the

majority opinion, and upon which the decision of the court rests. The section reads as follows : "SEC. 3. An injurious publication is presumed to have been malicious if no justifiable motive for making it is shown." The majority opinion of the court states that the effect of this provision is "to make the existence of justifiable motive a complete defense for a prosecution for libel." Such a construction is in conflict with the express provisions of section 4 of the act, and has the effect of repealing it. This section reads as follows: "SEC. 4. In all criminal prosecutions for libel the truth may be given in evidence to the court, and if it appears to the court that the matter charged as libelous is true and was published with good motives and for justifiable ends, the party shall be acquitted; otherwise he shall be convicted; but to establish this defense, not only must the truth of the matter so charged be proven but also that it teas published with good motives and for justifiable ends." The proper construction of section 3 is, that it is intended simply to operate as a rule of evidence, establishing a presumption of malice from the fact of an injurious publication. It is not intended to confer a substantive defense. The provision of section 4, on the other hand, is not made for the purpose of regulating the evidence, but is intended to establish a defense. At the common law, the truth of the matter charged to be libelous was not of itself a defense to a criminal action for libel, nor was it under the civil law. By article 460 of the Spanish Penal Code it is expressly provided that persons charged with libel shall not be allowed to furnish evidence tending to prove the truth of the imputations. The purpose of section 4 was to change the law in this particular. It does not appear from the evidence that the written communication to the justice of the peace was ever filed in the case, or was intended as other than a private communication. It therefore becomes unnecessary to consider the state of the present libel law with reference to judicial proceedings. The protection in such cases will likely be found to rest upon the public policy, to promote justice, by removing the restraint imposed by fear of civil or criminal responsibility, exempting from liability for torts or criminal prosecutions all persons connected as essential parties in a judicial proceeding, such as the officers of the court, the parties to the suit, and the witnesses who testify. (I Jaggard on Torts, 127.) My concurrence in the decision of the case is based upon the reasons above stated. McDonough, J., did not sit in this case.

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G.R. No. 1110, November 02, 1903

TELESFORO DE DIOS CHUA SOCO, PLAINTIFF AND APPELLANT, VS. MARIANO VELOSO, DEFENDANT AND APPELLEE. D ECIS ION
WILLARD, J.: In the summer of 1897 the plaintiff and Don Buenaventura Veloso made a verbal contract, by the terms of which the plaintiff agreed to construct the roof of the warehouse which Don Buenaventura Veloso was erecting in Cebu, for $5.50 a square meter. The plaintiff was to furnish all the material and labor. He commenced the work on November 4,1897, and continued it until April, 1898, when it was interrupted by the insurrection. He left Cebu for Manila on April 18, 1898, and returned thereto in May, 1899. Don Buenaventura Veloso died in June, 1897. His brother, the defendant, eventually succeeded to his rights in this building, and about two or three days before the plaintiff's return in 1899, had renewed the work, employing one Pau as a contractor for that purpose. He refused to allow the plaintiff any intervention therein. In January, 1902, the plaintiff brought this action to recover 9,000 pesos. This sum was made up of the cost of the galvanized iron, timber, and other material which the plaintiff had bought for the work, the value of the labor furnished by him, and 1,372 pesos as profit. The judgment of the court below allowed the plaintiff 2,655 pesos. Both parties excepted to the judgment. The plaintiff moved for a new trial, which was denied. Both parties united in preparing a bill of exceptions. 1. Among other items the plaintiff sought to recover 2,408.55 pesos, the cost of the galvanized iron bought by him for the work. This item was disallowed.by the court. When the plaintiff suspended work, none of this iron had been placed in position in the building. He testified that on its arrival in the fall of 1897 he placed it in a certain warehouse of Buenaventura Veloso of which he had the key and which key he retained and exhibited at the trial. He testified further that when he returned in 1899 the iron was not in this warehouse; that his agent, who had had possession of the key in the meantime, then told him that it had been taken from that bodega to the new building. The counsel for the plaintiff in this court relies upon the statement made by his client in the court below to the effect that the defendant broke the lock and took the galvanized iron from said bodega and used it in the building. It is apparent, however, that the plaintiff could have known nothing concerning this matter, because, according to his own testimony, the iron disappeared before his return to Cebu. With the exception of this statement made by the plaintiff himself, and which we have seen is not entitled to any weight, there was no other evidence in the case to show that the defendant had made use of this material. The defendant produced a number of witnesses to prove the contrary. Lope Cabras testified that he unloaded galvanized iron bought by Buenaventura^ Veloso when it arrived in Cebu and placed it in the bodega near the house of Gotiaoco; no other iron was placed there; and that he took the iron from that bodega, using the key for that purpose. The witness Ciriaco Abella testified that the iron was taken from the bodega of Buenaventura Veloso. The defendant, who was a witness in his own behalf, testified that the iron which was used in the building belonged in part to Buenaventura Veloso and in part to the contractor, Pau. It is apparent that no iron was placed upon the roof until after the plaintiff's arrival in Cebu. The fact that he made no objection when, as he claims, the

defendant was using his (the plaintiff's) property, in the construction of the building, is very significant. We agree with the court below that the evidence does not show that the iron was used by the defendant, and that in all probability it was lost by reason of the insurrection. 2. The court found, as a fact, that none of the timber which belonged to the plaintiff, and which was left by him in the building in April, 1898, was used by the defendant when .the work was renewed in May, 1899. This finding is sustained by the evidence. The evidence on the part of the plaintiff showed that, when he abandoned the work, there was some of his timber in the warehouse still unused. The testimony of the witnesses for the defendant, Marcelo Quilatan, Lope Cabras, Catalino Rodriguez, and Ciriaco Abella, is to the effect that when the work was recommenced there was no timber whatever in the building; that it had all disappeared. The witness Marcelo Quilatan testified that he went to the building a short time after the insurrection to get his tools and that everything had then disappeared. There is also much evidence in the case to show that Buenaventura Veloso had on hand, at the time when he commenced the construction of the warehouse, a large amount of timber and that a part of this timber was used by the defendant when he completed the building. 3. The court in its decision rejected the item of profits claimed by plaintiff. In this there was no error. There was no evidence whatever in the case to show what the profits were upon the work actually performed by the plaintiff. The only evidence in the case at all upon the subject of profits is a statement by the plaintiff that if he had finished the work according to the contract he would have made from 1,500 to 1,800 pesos. 4. The court also refused to allow the plaintiff for other materials (exclusive of the iron and the timber), the value of such materials being placed by the court at $735.74. In this there was no error. The plaintiff proved that he had bought materials, exclusive of iron and timber, for the work, which amounted to about that sum, but there was no evidence whatever in the case to show what part of this material lie had used in the work at the time of the suspension or that any of it was used by the defendant. 5. We think, however, that the court erred in the matter of two items of $50 and $37.50, which appear in the document numbered "3" attached to the complaint. These two items are included in the item of $702, which appears in the document numbered "7," and this item of $702 is one of the items included in the $735.74 rejected by the court. The result, therefore, is that the court has deducted twice these two amounts of $50 and $37.50. 6. The effect of the decision of the court was to allow the plaintiff for the work and labor which he furnished in the building, and for half of the cost of the timber which he had supplied for the work. 7. The plaintiff to his brief has attached no assignment of errors, and it is difficult to ascertain what exceptions taken at the trial he relies upon in this court. Apparently only two are mentioned in his brief. In appears from page 60 of the bill of exceptions that, after the defendant had testified that in the inventory of his brother's estate appeared an item of galvanized iron, the lawyers for the plaintiff moved to strike out this answer on the ground that the record of the court was the best evidence of this fact. This motion

came too late. The defendant should have objected to the question before the answer was given. Moreover, in no event could the plaintiff have been prejudiced by the answer, because without this statement there was abundance of evidence to show that the said Buenaventura Veloso had during his lifetime this galvanized iron. 8. In the deposition of the witness Singson, he was allowed to state that he had heard Buenaventura Veloso say that the erection of this building was using up his stock of timber. The plaintiff objected and excepted to this statement on the ground that the plaintiff was not present at this conversation. This exception can be disposed of on the ground mentioned in the last exception. The statement could not possibly prejudice the plaintiff, because with it left out there still remains an abundance of evidence to show that in fact Buenaventura Veloso had accumulated a stock of timber with which to construct this building. This disposes of the appeal of the plaintiff and the result is that the judgment must be affirmed as to him, with the addition of the amount of $87.50, 9. The first assignment of error made by the defendant is based upon section 383 of the Code of Civil Procedure. The defendant says that the plaintiff should not have been allowed to have testified to any conversation between himself and Buenaventura Veloso, the latter having died prior to the trial. This assignment of error can not be sustained for the reason that such evidence was not objected to in the court below and no exception was taken to its admission. 10. The defendant's second assignment of error based upon article 1280 of the Civil Code is disposed of by the case of Thunga Chui vs. Que Bentec, decided October 8, 1903.[1] 11. The evidence is sufficient to show that 200 pieces of the defendant's timber were used in the work. 12. The assignment of error, based upon article 442 of the Civil Code, is unimportant in view of our holding that the defendant did not, as a matter of fact, use any timber or galvanized iron left by the plaintiff. The defendant's appeal can not be sustained. The judgment of the court below is .modified by adding to the amount allowed the plaintiff, to wit, 2,655 pesos, the amount of 87.50 pesos. As so modified it is affirmed. Neither party is allowed to recover any costs of the other party. Judgment will be entered accordingly twenty days after the filing of this decision. Arellano, C. J., Torres, Cooper, Mapa, and McDonough, JJ., concur. Johnson, J., did not sit in this case.

[1] Page 561, supra.

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G.R. No. 1111, May 16, 1903

FELICIDAD GARCIA DE LARA, PLAINTIFF AND APPELLANT, VS. JOSE GONZALEZ DE LARA ET AL., DEFENDANTS AND APPELLEES. D ECIS ION
COOPER, J.: This is an appeal by the plaintiff from a judgment of the Court of First Instance, brought here by bill of exceptions which purports to have been prepared under section 143 of the Code of Civil Procedure of 1901, but which in reality bears a very small resemblance to a bill of exceptions properly prepared under the Code. It contains arguments of counsel, unintelligible statements, and sets forth much that is irrelevant, The real nature of the suit, the rulings of the court from which the appeal has been taken, and tire character of the judgment rendered, after a careful reading of the bill of exceptions, are left in doubt and largely to conjecture. The Code of Civil Procedure is based upon American practice and has superseded the Spanish Code of Procedure, and since the practice now in force is in a large measure different from that under the Spanish practice, many difficulties present themselves to those not familiar with the American practice. As a general rule, exceptions which are not presented in the course of the proceedings in the Court of First Instance can not be presented and urged on appeal to this court. The purpose of the rule is to require a party desiring to review in the appellate court the action of the trial court to call the attention of the trial court by timely objections to the proceedings complained of. This rule serves the interest of litigants and conduces to produce the orderly administration of justice in the courts. An exception has been defined as an objection taken to the decision of the trial court upon a matter of law, and is a notice that the party taking it preserves for the consideration of the appellate court a ruling deemed erroneous. (8 Am. Enc. P. and P., 157.) An objection alone is not sufficient to preserve the question for review on appeal. To save the objection an exception is necessary. We will indicate briefly when and how objections are made and exceptions taken. This will depend upon the character of the question. They are taken sometimes by demurrer, sometimes by answer, or by some objection raised during the progress of the trial, or by objections to the judgment after its rendition. The defendant may demur to the complaint when it appears upon the face thereof, either 1. That the court has no jurisdiction of the person of the defendant, or the subject of the action; or 2. That the plaintiff has no legal capacity to sue; or 3. That there is another action pending between the same parties for the same cause; or 4. That there is a defect or misjoinder of parties, plaintiff or defendant; or

5. That the complaint does not state facts sufficient to constitute a cause of action, or 6. That the complaint is ambiguous, unintelligible, or uncertain. The demurrer must distinctly specify the grounds upon which any of the objections to the complaint are taken. (Sec. 91, Code of Civil Procedure.) When any of the matters enumerated in this section do not appear upon the face of the complaint, the objection to the complaint can only be taken by answer. (Sec. 92.) If no objection be taken to the complaint, either by demurrer or answer, the defendant shall be deemed to have waived all the above-named objections, excepting only the objection to the jurisdiction of the court over the subject-matter, and that the complaint does not state facts sufficient to constitute a cause of action. (Sec. 93, Code of Civil Procedure.) If the ruling of the court upon a demurrer be adverse to the party making the same, he should except to the ruling of the court, and, in order that the court may determine the force of the objection, it will be necessary to incorporate in the bill of exceptions the complaint demurred to, the demurrer, and the judgment or ruling of the court upon the demurrer. If the objection is raised by the answer, the exception must necessarily come after the proofs which are made in support of it. The sufficiency and the validity of the objection thus raised must be determined by the sufficiency of the evidence which has been offered in support of the allegation contained in the answer. This requires a review or retrial of the questions of fact and can only be made in the cases which are provided for in section 497 of the Code of Civil Procedure. The manner of making objections and taking exceptions to rulings, such as rulings upon admissibility or exclusion of evidence and other questions arising during the course of the trial, is provided for in section 142, which reads as follows: "The party excepting to the ruling, order, or judgment shall forthwith inform the court that he excepts to the ruling, order, or judgment, and the judge shall thereupon minute the fact that the party has so excepted; but the trial shall not be delayed thereby. The exception shall also be recorded by the stenographer, if one is officially connected with the court." The Code has not made any specific provisions as to the manner and time of taking exceptions to the final judgment which has been rendered in a case. It would seem that the objection should be taken at the time of the rendition of the final judgment, or as soon thereafter as may be practicable, and before the ending of the term of court at which the final judgment is rendered. With reference to the character of objections which may be taken to a judgment of the court, the American rule is stated as follows: "Errors in a judgment or decree will not be noticed on appeal in the absence of objections and exceptions taken below, and they should be sufficiently specific to direct the attention of the court to the alleged defects." (8 Enc. PI. and Pr., 289.) If objection to the judgment arises upon the insufficiency of the proof to support the judgment

or the findings of fact made by the judge, it will also be necessary to bring flu; ease within the first or third clause of section 497 of the Code of Civil Procedure, and if under the latter clause, the excepting party should file a motion in the Court of First Instance for a new trial based upon the ground that the findings of fact are plainly and manifestly against the weight of evidence. The manner of perfecting a bill of exceptions is governed by section 143 of the Code and need not be here repeated. In preparing and presenting a bill of exceptions under this section it is necessary that counsel should carefully read and follow the plain directions of the statute. These directions are sufficiently explicit to enable those who will carefully consider the section to comply with them. In preparing a case for this court, counsel should also carefully consider the rules of the Supreme Court for sending up the bill of exceptions and for the making of briefs and assignments of errors. By reason of the failure of the appellants in this case to comply with the plain statutory provisions with reference to bills of exceptions, it is largely a matter of conjecture to determine the nature of the suit, the rulings of the court complained of, or the character of the judgment which has been rendered. For this failure we might well refuse to consider the case. It seems probable that the suit was an action for the partition of a tract of land, being the undivided half of the hacienda de Angono, situated in the Province of Rizal, and which the plaintiff and defendants in the suit had inherited from their deceased father, Don Eugenio Gonzales de Lara; that Eugenio Gonzales de Lara had acquired this undivided half interest by purchase from Dona Dominga Santa Ana; that the court refused to partition the land because the tract sought to be partitioned was itself an undivided interest, the other half being owned l>y parties the names of whom are not disclosed in the record; that the court declined to make the partition on the ground that the demarcation and boundaries of the land sought to be partitioned had not been set forth in the partition, and by reason of the interest which is sought to be partitioned being an undivided interest. If this was the character of the suit, the Court of First Instance did not err in so holding. Partition proceedings are now governed, and were at the time of the institution of this suit, by the Code of Civil Procedure, 1901, and must be determined by the provisions of this Code. Section 183 requires that the complaint in an action for partition shall set forth the nature and extent of the plaintiff's title, and shall contain an adequate description of the real estate of which partition is demanded, and name each tenant in common, coparcener, or other person interested therein as defendants. This provision requires that all persons interested in the land sought to be partitioned must be made a party to the suit. If the land sought to be partitioned was an undivided interest held by the father of the plaintiffs and defendants, in order to comply with the requirements of the statute those who were interested in the other half interest should have been made parties to the suit. This is not only according to the requirements of the Code, but the very nature of a partition suit renders it necessary; otherwise the proceedings in the suit may become wholly ineffectual. This proceeds from the general principle of law that a litigation can never result in an

adjudication which will be binding upon others than the parties to the suit and their privies in blood or in estate. The other owners were persons who not only had an interest in the controversy but an interest of such a nature that a final decree could not be made without affecting that interest. The decree, therefore, would not bind such parties, and upon another suit for partition brought by them the very half that had been partitioned in this case might be assigned as the portion belonging to such other joint owners. The Code provides that if, upon trial in a partition suit, the court finds that the plaintiff has a legal right to any part of such estate, it shall order partition thereof in favor of the plaintiff, among all parties in interest, and if the parties to tin1 unit are not able to agree amongst themselves to the making of partition, the court shall appoint three commissioners to make the partition and set off to the plaintiff and each party in interest such part and proportion of the estate as the court shall order. When it is made to appear to the commissioners that the estate, or a portion thereof, can not be divided without great inconvenience to the parties interested, the court may order it assigned to one of the parties, provided he pays to the other party such sum of money as the commissioners judge equitable. But if no one of the parties interested will take such assignment and pay such sum, the court shall order the commissioners to sell such estate at public or private sale. Where the estate can not be divided, the court may direct the sale of the property at public or private sale. At this public or private sale third parties may become the purchasers. A suit brought by the persons interested who were not made parties to the suit, and who are not bound bv the partition proceedings, would deprive such purchaser of the title to the land acquired at public sale under the judgment of a court. Roth the purchaser at such sale and the heirs who had received their specific portion by metes and bounds, or the heirs who had compensated the other heirs by the payment of the value of the land, by reason of land not being divisible, would be deprived of the rights which they had acquired under the proceedings. This would not only create confusion and inconvenience but the time of the court would have been uselessly consumed in the proceedings thus rendered ineffectual, at the suit of the persons who were not made parties to the action. Such result is avoided by the provision of the statute which requires each tenant in common, coparcener, or other person interested in the land to be made a party to the suit. The judgment will be affirmed with costs of both instances against appellants. This affirmance, however, will be without prejudice to the rights of the plaintiff should he desire to institute a partition proceeding against all parties at interest and effect a partition of the lands. By the provisions of section 181 of the Code of Civil Procedure, a person having or holding real estate with others, in any form of joint tenancy or tenancy in common, may compel partition thereof. The judgment is affirmed. Torres, J,, concurs. Willard, J., concurring, with whom concur Arellano, C. J., Mapa and Ladd, JJ.: I agree with the result in this case, but I dissent from all that is said about exceptions to judgments. We have repeatedly passed upon cases in which the exception simply states that the party excepted to the judgment without pointing out any specific defects therein, and have impliedly held that such an exception is sufficient to remove the case to this court.

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G.R. No. 1113, April 15, 1903

THE UNITED STATES, COMPLAINANT AND APPELLEE, VS. PEDRO ABUAN ET AL., DEFENDANTS AND APPELLANTS. D ECIS ION
WILLARD, J.: The judgment of the court below imposed a fine of 25 pesos upon the defendants. As the law does not authorize a fine in this class of crimes, we assume that it was intended as indemnity to the party injured and we so make it With this modification the judgment below is affirmed with costs of this instance against the defendants. Arellano, C. J., Cooper, Mapa, and Ladd, JJ., concur. Torres and McDonough, JJ., did not sit in this case.

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G.R. No. 1114, March 31, 1903

THE UNITED STATES, COMPLAINANT AND APPELLEE, VS. BARTOLOME OSTREA ET AL., DEFENDANTS AND APPELLANTS. D ECIS ION
MAPA, J.: It sufficiently appears from the record that the defendants, at the time in question, went to the house of Juan Rodriguez, alleged to have been broken into, with the intent of making an entrance there at all cost, even against the will of the said Juan Rodriguez. It does not, however, appear to be certain that they did in fact succeed in entering, as the record is not very explicit upon this point. Jt is evident that they succeeded in entering the first door of the house, either violently by breaking it open, as alleged by the complainant, or because they found it already open, as testified by the defendant Bartolome Ostrea. It does not appear, however, whether this door formed an integral part of the house or whether, on the contrary, it was an outer door, separate and independent from the body of the house. We are inclined to believe that the latter is the fact, in view of the testimony in the case. The complainant calls this first door the front door, and adds tliat upon seeing it had been broken by the accused he immediately closed the. second door and did not allow them to enter his house. In another part of his testimony he states that when they (the accused) saw that they could not enter the house they went away. The other witness for the prosecution, Benigno Sebastian, testifies that Bartolome Ostrea called to his wife, who was in the house, but that he could not get in, because the doors were closed. Bni'tolome Ostrea, on his part, in his testimony at the trial says that the first door was open, and that the following door at the entrance to the house was closed. From this statement it would appear that the second door was that at the entrance to the house in question. In view of the terms in which these witnesses expressed themselves and the, luck of other more precise data in the record it may be concluded that, notwithstanding the fact that the defendants entered the first door, they did not succeed in entering the house. It is possible that this conclusion is not in conformity with the facts as they really occurred, but it is the legal conclusion from the data disclosed by the record and upon which alone we must rely for our decision. In consequence, the defendants are only responsible for the crime of an attempted forcible entry into the dwelling, and not for a consummated entry, as considered by the court below in the judgment appealed. It has been proven that in the execution of tins act the defendants employed violence and intimidation, and for nearly half an hour tried to push open the door at the entrance to the house, and that Bartolome Ostrea fired several shots from his revolver upon seeing that Rodriguez refused to open the door. The latter says that Ostrea fired three or four shots. The other witnesses for the prosecution only heard one. It is a matter of indifference, however, whether one or more shots were fired for the purposes of considering the circumstance of intimidation, more especially in view of the fact that Bartolome himself admits that he discharged the revolver which he carried, although he adds that he only fired in the air. The concurrence of this circumstance brings the act in question within the sanction of paragraph 2 of article 491 of the Penal Code. In favor of the accused we must consider the mitigating

circumstance of drunkenness (No, 6 of art. 9 of the Penal Code), as it appears from the testimony of the complainant himself and that of Benigno Sebastian that they were drunk at the time in question, and that they are not habitual drunkards. In the present case we must also consider as mitigating the circumstance that the complainant, Juan Rodriguez, is the father-inlaw of Bartolome Ostrea, by virtue of the provisions of paragraph 1 of article 10, for, in view of this close relationship, it is not considered that the defendant would regard himself as a stranger in the home of the complainant, to which it is to be presumed he ordinarily had free access as a member of the Rodriguez family. The fact, sufficiently proven in the case, that he believed his wife, the daughter of the said Rodriguez, was in the house at the time in question, may also have contributed to lead him to believe, although erroneously, that he had a right to enter the house. Upon the grounds set forth, and in view of the provisions of articles 66 and 75, paragraphs of article 91, and article 92 of the Penal Code, we condemn each of the defendants to a fine of 325 pesetas, or to subsidiary imprisonnient, in case of nonpayment, at the rate of one day for each 12 1/2 pesetas. The judgment appealed, thus modified, is affirmed, with the costs of this instance to the defendants. So ordered. Arellano, C. J., Torres, Cooper, Willard, and Ladd, JJ., concur.

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G.R. No. 1118, August 06, 1903

VICENTE GONZALEZ, PLAINTIFF AND APPELLEE, VS. TELESFORO CRISANTO, DEFENDANT AND APPELLANT. D ECIS ION
TORRES, J.: The bill of exceptions contains a transcript of a contract dated April 4, 1891, by which the house, No. 28 old enumeration and 278 modern enumeration, Calle San Sebastian, Quiapo, was leased for the purpose of establishing a bakery and bread shop therein. The rental agreed upon was 50 pesos per month. The term was three years, prorogable for an equal period after the expiration of the first term. The lease was to take effect May 1, 1891. Under this contract the tenant, Telesforo Crisanto, bound himself to pay the rent during the first ten days of each month, and it was stipulated that the proprietor or lessor was under no circumstances to evict the tenant, provided the payment of the rent agreed upon was promptly made, and in case of the breach of this stipulation the lessor bound himself to the payment of damages to the tenant, who, in turn, undertook not to vacate the premises without just cause, and in case of his doing so then to pay damages to the owner or lessor. The document was signed by the contracting parties, Jose Flores, receiver, Ramon Valenzuela, guardian of the minor children of the late Severo Crisanto, and Mauricia Asico, and by the tenant, Telesforo Crisanto. The contract was also countersigned by the procurator of the Augustinian friars in token of his consent. February 7, 1902, at the instance of Gonzalez Maninang, a notary public, Genaro Heredia, formally notified Telesforo Crisanto that if he desired to continue the lease of the premises in question he might do so upon the condition, among others, of paying the sum of $150, gold, per month, or its equivalent in Mexican silver, from March 1, 1902, this rent to be paid monthly in advance, within the first two days of each month. The tenant was notified that a failure to comply with this condition would be regarded as a breach of the contract, and that the tenant, Crisanto, would thereupon be expected to vacate the leased premises and to replace on the lower story the railings and other things which had been removed from the building, and to restore the building to its original condition. The tenant was further notified to vacate the premises and to place them at the disposal of Gonzalez Maninang before March 1, 1902, in case he did not see fit to accept the conditions imposed. The tenant, Telesforo Crisanto, upon being notified by the notary of the conditions of the new lease, replied that he would expect Gonzalez Maninang to comply with the terms of the lease of the premises in question, as the same appeared of record in the Court of First Instance. On March 4, 1902, an action was brought in the justice's court of this city by Gonzalez Maninang for the purpose of obtaining a judgment of eviction of the tenant, Crisanto, from the premises in question and a restoration of the possession thereof to the plaintiff, and for judgment against the defendant for rent at the rate of $150, gold, per month, and damages and costs. The plaintiff also prayed for any other just and proper relief, in view of the fact that Crisanto had refused to pay the rent on and after March 1, 1902, or to restore the possession of the premises to the plaintiff. The defendant replied to this demand that, when he informed the plaintiff that he expected him

to respect the contract of lease, this did not signify that the tenant opposed the notice to quit, or that he had accepted or rejected the increased rental, in view of the subsistence of the original contract; that it was not true that Crisanto had refused to pay the rent of $150, gold, or to vacate the premises, because1 the rent for the month of March had not been collected, nor had the legal period for the payment of the rent fixed by the latter part of section 80 of the Code of Civil Procedure yet expired; that the expiration of this period was a condition precedent to an action for the recovery of possession of the house in question; that therefore the plaintiff had no right of action against the defendant; that there was another similar action pending concerning the unlawful detainer, which action the plaintiff had not abandoned, the said action being at that time pending in the justice court of the south district; that this was a bar to the action under paragraph 3 of section 91 of the said Code; that the complaint did not state facts sufficient to constitute a cause of action, and therefore defendant prayed for judgment against the plaintiff for a specific performance of the contract of lease, with costs. The trial was prosecuted to a termination in the justice's court, and on March 12, 1902, the justice of the peace rendered judgment against the defendant in favor of the plaintiff for the recovery of the possession of the house No. 278 San Sebastian Street, and for the payment of $150, gold, jier month rent corresponding to that month, and the payment of the costs. Against this judgment the defendant appealed to the Court of First Instance. In the action in the Court of First Instance the defendant and appellant alleged, as a bar to the continuation of the case at second instance, that he had himself instituted in the same court an action for the enforcement of the contract of lease, and insisted that an action of unlawful detainer could only be brought after a decision in favor of the plaintiff in the action for the enforcement of a contract It was further contended that because the original term of the contract of lease was for three years, with an agreement to renew for three years more, it had been tacitly renewed for a like period of three years from time to time by the mere fact that the tenant had remained in possession and had continued to pay the rent stipulated. The appellee, on the contrary, contended that the term of the contract of lease had expired; that the tenant had been given notice to quit in case of a refusal to pay the $150, gold, per month rent, and that without consenting to pay this amount he had continued in possession of the premises, thereby preventing the lessor from collecting this amount, and that the tenant was still in possession of the premises. The judge, in view of the result of the proceedings, entered judgment July 24, 1902, affirming the judgment appealed and condemning the defendant4appellant to vacate the premises in question and to pay the monthly rental of $150, gold, per month from March 1, 1902, until such time as the lessor should be restored to the possession of the premises, and to the payment of costs. March 31, 1902, Telesforo Crisanto brought an action against the attorney of the procurator of the Augustinian friars praying for judgment against the Augustinians for the specific performance of the contract of April 4, 1891, or the alternative of payment of the amounts claimed as damages, and of the costs. The complaint alleged that the plaintiff, Crisanto, had not only strictly complied, up to the time of bringing his action, with his obligation to pay the monthly rental agreed upon, but, in accordance with the terms of the contract, he had expended money for the purpose of adapting the premises to the carrying on of a bakery business, and had furthermore borne the expense of the repair and preservation of the property, as shown by receipts exhibited with the complaint; that in the fourth clause of the contract it was agreed that the lessee, Crisanto,was not to be evicted upon any pretext, provided he continued to pay the rental agreed upon, the lessor binding himself to the payment

of damages in case of a breach of this stipulation; that an action had been brought against the plaintiff, Crisanto, for the purpose of requiring him to abandon the premises in case of his refusal to pay an exorbitant rent, other than that agreed upon; and that therefore he, not being in arrears in the payment of the rent stipulated, was entitled to the recovery of damages from the Augustinian friars, which said damages amounted to $1,589.68, Mexican, together with the profits which the plaintiff would thereby fail to realize, and which amounted to 2,800 pesos per annum, more or less. He alleged, as a ground for his contention, that the will of the parties is the law of the contract, however entered into. On May 16, 1902, the plaintiff filed a paper stating that his former complaint for the enforcement of the contract had been filed in a separate action because it could not properly be consolidated with the action of unlawful detainer, and that although in the two actions referred to the subject-matter was the same and the action was between the same parties, the two complaints could not be consolidated because the relief sought in each was different, as well as the procedure, to be followed; that therefore, even admitting that there was another action pending between the plaintiff and the defendant in the action of unlawful detainer, this circumstance is not a bar to the action brought by Telesforo Crisanto for the enforcement of a contract or the recovery of damages for the loss of the possession of the premisesthus reiterating his first complaint with this addition or amendment, he prays that a judgment be rendered against the defendant in the manner requested. July 24, 1902, the Court of First Instance entered judgment for the defendant, Gonzalez Maninang; in the action for the enforcement of the contract of lease, with the costs to the plaintiff. Against the two judgments referred to a bill of exceptions was presented to the court, after the denial of a motion for a new trial of the unlawful detainer case. September 24 of the same year the excepting party asked the court to order a consolidation of the two bills of exceptions presented against the judgments rendered in the two cases mentioned, for the reasons therein expressed. The two bills of exceptions appear to have been, in fact, brought up here together, although we find no order of the court directing a consolidation of the two cases. Article 1565 of the Civil Code provides that if a lease is for a definite period the tenancy expires with the term, without the necessity of notice to quit. Applying this provision of law to the contract of lease of the house No. 28 old enumeration and 278 modern enumeration, situated in San Sebastian Street, we must conclude that the lease expired May 1, 1897that is, at the end of the term of three years and the extension of three years more. If the term of the lease and its extension expressly stipulated between the' two contracting parties has expired, there is no legal ground upon which any claim can be based on this contract. It is true that the tenant, Crisanto, continued to occupy the premises notwithstanding the fact that the term of the lease had expired; but this tenancy was the result of successive implied renewals from month to month since May, 1897, inasmuch as the rental agreed upon has been paid from month to month since that time. Article 1566 of the Civil Code provides that if, at the expiration of the contract, the tenant, with the acquiescence of the landlord, holds over after the expiration of the term, a tacit renewal of the lease is implied for the periods established by articles 1577 and 1581, unless notice to quit has been given.

Article 1577 of the Code is not applicable, as it refers to the lease of rural estates. The article in point is 1.581, which provides that when a term has not been fixed for the lease it is understood to he for years when an annual rent has been fixed, for months when the rent is monthly, and for davs when it is daily. The tenant, Crisato, has been in possession of the premises in question by successive tacit renewals from May, 1897, to January, 1902, in accordance with the provisions of the law above cited. On February 7 following, the tenant was given notice to quit the premises in case of his unwillingness to accept the new conditions imposed and to pay the increased rental. The lease of April 4, 1891, was entered into after the promulgation of the present Civil Code; consequently the successive tacit renewals under which the tenant, Crisanto, has been occupying the premises in question must be regarded as running from month to month since May, 1897, in accordance with the, provisions of article 1581, in connection with article 1566,, of the Civil Code. It is unavailing for the tenant to seek to rely upon the provisions of the old laws with respect to the duration of the term, among them the act of April 9, 1842, and it can not be admitted that this tacit renewal was for a period equal to the term fixed in the original agreement, which had ceased to be of effect because it was extinguished. Again we have occasion to cite judgments of the supreme court of Spain, which are authoritative, as the matter concerns the application and interpretation of a lawthe Civil Code of Spanish origin. In the judgment of cassation of September 29, 1890, the court says that when the term of a lease has expired and the tenancy has been continued by a tacit renewal, article 15f)(> clearly provides that the term of this renewal is not to be equal to that of the original contract, but is to be for the periods respectively established in articles 1577 and 1581; that is, for an agricultural year with respect to rural estates, and for a year, a month, or a day with respect to urban estates, according to whether the payment of the rental is yearly, monthly, or daily. The same doctrine is repeated in the judgments of November 16, 1899, and October 12, 1900, in the latter of which it is expressly laid down, in accordance with former rulings of the same court, that the tacit renewal of a lease is not for a period equal to that stipulated in the original contract, but for the periods respectively established by articles 1577 and 1581 of the Code, the provisions of which imply the expiration of the covenants contained in the express contract, with respect to the duration of the tenancy. . If an action of unlawful detainer, after the expiration of the conventional term, such as that brought by the representative of the Augustinian friars, presupposes the extinction of the contract of lease, it is evident that after it has been declared by a final judgment that the plaintiff was entitled to recover possession of the premises it is legally impossible to discuss the question of whether the lessor should or should not be compelled to perform the extinguished contract, as this very point is one which has necessarily been the object of the litigation, and the rendition of judgment for the restitution of the premises implies of necessity the nonexistence of the contract of lease. The tenant, Crisanto, has not proven nor in any way indicated that there was an express renewal of the contract of April 4, 1891. What the tenant alleged was a tacit renewal after the six years, and such renewal, under article 1581 of the Code, must be regarded as merely from month to month, because the rent was paid monthly, and this renewal was finally concluded in January, 1902, by virtue of the notice to quit given on February 7 following.

The provisions of articles 1071, 1278, 1281, and 1286 of the Code refer to subsisting and enforeeable contracts, and therefore it is useless to cite them with respect to a contract which has expired and upon which no right or obligation can be predicated. We make no decision with respect to the consolidation of the two bills of exceptions, notwithstanding the objection made thereto by the appellee at the hearing in this court, inasmuch as this decision is in favor of the objecting party and therefore1 such formal defect does not affect the merits of the case. For the reasons stated we are of the opinion that the judgments appealed, dated July 24, 1902, should be affirmed, with tht: costs to the appellant, Orisanto, and it is so ordered. Arrellano, C. J., Cooper, Willard, Mapa, and McDonough, JJ., concur.

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G.R. No. 1118, January 10, 1903

VICENTE GONZALEZ, PLAINTIFF AND APPELLEE, VS. TELESFORO CRISANTO, DEFENDANT AND APPELLANT. D ECIS ION
WILLARD, J.: This is a motion to dismiss a bill of exceptions The appellee's claim is that the bill of exceptions was signed by the judge and filed in the court below on the 1st day of October; that the certified copy was not filed here until December 3, more than sixty days thereafter, and consequently that it should be dismissed under rule 14. 1. This rule does not make the term of sixty days an improrogable one. On the contrary it says that the court may, for cause shown, extend the time. The appellant's claim is that he was not notified of the filing of this bill until October 25, and that, therefore, the time should run from that date. He also claims that article 143 of the Code of Civil Procedure makes it the duty of the clerk to transmit the copies, and he had a right to rely upon this being done by that official. We think that the appellant is wrong in both of these claims. He is not entitled to any notice of the filing of the signed bill of exceptions. It is his duty to follow the proceedings in the case and to find out for himself when the bill of exceptions is signed and filed. It is true that article 143 makes it the duty of the clerk to transmit to this court the certified copy of the bill of exceptions, but he is entitled to receive payment of his fees for making the copies before such transmission is made. By refusing to make such payment an appellant might delay a case indefinitely. To prevent this, rule 14 was . adapted. But notwithstanding the fact that these were mistakes of law on the part of the appellant, we think that under the circumstances they furnish sufficient cause for us to refuse to dismiss the bill. It is a rule of court that we are considering and not a statute. Such a one as this is generally considered as giving the court wide discretionary powers in its application to particular cases. 2. Article 500 of said Code says that a bill of exceptions may be dismissed "for unreasonable failure to prosecute or perfect the bill of exceptions." But such dismissal shall not "be made as a penalty upon lawyer or client for non-compliance with any rule or rules of the court where there has been a substantial compliance with the law prescribing the method of bringing actions into the Supreme Court" In this case the sixty days mentioned in the rule expired on November 30. The copies were not filed until December 3. This delay of three days does not constitute an "unreasonable failure to prosecute the bill of exceptions." There was, moreover, the substantial compliance with the rule of which article 500 speaks. The delay in question did not prejudice the appellee. To grant his motion would be to impose a

penalty upon the appellant for his misconstruction of the rule and certain sections of the Code, a thing which article 500 prohibits us from doing. The motion is denied. Arellano, C. J., Torres, Goaper, Mapa, and Ladd, JJ., concur.

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G.R. No. 1125, August 24, 1903

LUCIANO CORDOBA Y PASCUAL, PLAINTIFF AND APPELLANT, VS. ANGEL CONDB Y MORENO, DEFENDANT AND APPELLEE. D ECIS ION
WILLARD, J.: On February 20, 1901, the plaintiff and the defendant formed a mercantile partnership, the seventh clause of the contract being as follows: "7. In all matters not provided for in the said contract, the partners will be bound by the provisions of the Spanish Code of Commerce, it being agreed that all doubts, disputes, or disagreements which may arise between the partners during the existence of the partnership, as well as during the period of its dissolution and liquidation, will be decided by friendly adjusters." Certain differences having arisen between the parties, the plaintiff brought this action for the dissolution of the partnership. There is no allegation in the complaint that before the commencement of the action any attempt had been made by the plaintiff to settle the said differences in accordance with the seventh clause above quoted. The court below, in view of that clause, held that it had no jurisdiction to try the case. The plaintiff appealed. As said by the counsel for the appellee in the argument, litigation by means of friendly adjusters ( juicio de amigables componedores) was thoroughly well known at the time this contract was made, and it was the method which the parties intended to follow in the settlement of their differences. The procedure in this kind of litigation was minutely described in the former Ley de Enjuiciamiento Civil . Twenty-one; articles, including those incorporated by reference, are devoted to it. (Arts. 810-822.) The adjusters had to be men who could read and write. The number hart to be odd, and could not exceed five. A third perwm could not be given the power to name them. Unless the agreement of submission was executed before a notary, it, was void. It was also void if it did not contain five specified particulars. An adjuster could be challenged if he had an interest in the subject-matter of the suit or was manifestly antagonistic to either party, provided the cause for challenge arose or came to the knowledge of the party after the appointment. If the adjuster challenged refused to withdraw, the matter had to be tried in the Court of First Instance where the adjuster resided. The decision of i)w. dispute by the adjusters was void if not made before a notary. Against this decision the party aggrieved could, witinn sixty days, prosecute a writ of error in the supreme court of Spain, on the grounds that the judgment was rendered outside1 of the time limited therefor, or that it decided questions .not submitted, (Art. 1670, par. 3; sec. 1073, par. 3; art. 1756.) If no writ of error was sued out, or if it was dismissed, the judgment of the adjusters was to be executed by the Court of First Instance of the district where the decision was made in the same manner as other judgments. This was the procedure to which the plaintiff gave his consent when the said seventh clause was made a part of the contract. He has never consented that the differences between the parties should be settled in any other way. He has never agreed that lie would arbitrate all differences, leaving the method to be afterwards agreed upon. He has agreed to arbitrate only in a certain well-defined and well-known way.

He has never, for instance, consented to an adjustment under which lie would not have the right to appeal against an adverse decision on the two grounds named, or an adjustment under which the decision might be made by means of a private document, or under which a judgment in his favor would not be subject immediately to execution as soon as the time for appeal had passed. All of these provisions relating to the suit of friendly adjusters disappeared with the repeal of the Ley de Enjuiciamiento Civil , and it is not claimed by the appellee that there can now be any settlement in the manner pointed out by that law. There is nothing in the new code that is in any respect like it. The provision for the appointment of referees (sees. 135-140) is entirely dissimilar. It simply allows the parties, in a suit already pending in court, to submit their evidence and argue the case before a third person instead of doing it before the judge himself. The referee reports the result to the judge, who takes such action as he sees fit. It is merely a method of determining what the facts are in a pending case. It being impossible, therefore, to carry out the provisions of the seventh clause, becau.se the only method there agreed upon has been abolished, the plaintiff was at liberty to resort to the court. The court below was of the opinion that, although the provisions of the procedural law had been repealed, the contract could have effect under the provisions of the Civil Code. (Arts. 1820, 1821.) The power, however, given by article 1820 is expressly limited by article 1821, which declares that not only the form of procedure but also the effect of these agreements shall be controlled by the Ley de Enjuiciamiento Civil . When that was repealed the Civil Code was left without any declaration as to what the effect of such an agreement would be. These articles, 1820 and 1821, have therefore been repealed. What would be the rights of the parties if the former procedural law were in force, and whether this case could then be distinguished from the case of Wahl vs. Donaldson, Sims & Co. (1 Off. Gaz., 441 ), [1] are questions not necessary to be decided. For the reasons above stated, the order or judgment appealed from is reversed, and the case remanded for further proceeding's, with the costs of this instance against the appellee. Judgment will accordingly be entered twenty days after the filing of this decision. Arellano, C.J., Torres, Cooper, Mapa, and McDonough, JJ., concur.

[1] Page 301, supra.

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G.R. No. 1126, April 28, 1903

THE UNITED STATES, COMPLAINANT AND APPELLEE, VS. HERMOGENES MUYOT, DEFENDANT AND APPELLANT. D ECIS ION
WILLARD, J.: The defendant was employed in August or September, 1901, by Don Gertmimo Jose as collector. His duty was to collect the accounts connected with the launch D. Vicente. He was discharged the last of July or the first of August, 1902, and a criminal complaint was filed against him for estafa. It charged that he had collected ninety-four different accounts, amounting to 1,043 pesos, from the debtors of Don Geronimo Jose and had not paid over the money. These accounts ran from July 16, 1901, to July 22, 1002. 1. That these accounts were delivered to the defendant to collect and that he had not paid the amount thereof to his employer, may be considered as proved. But, with the exception of one item of 40 pesos, there is no evidence that the debtors of Don Geronimo Jose had ever paid these bills. The testimony of Don Geronimo Jose and of Don Francisco Gonzales, to the effect that they had made investigations and found that the defendant was a defaulter, is not sufficient to establish the essential fact that the defendant had actually received this money from the said debtors. It is claimed by the Solicitor-General that the failure of the defendant to return the accounts ov the money, or to explain this failure, is sufficient to convict hint. As the defendant is not required to testify against himself, his fiiihire to explain why he had not returned either the accounts or the money, and his silence on this point when charged with the crime, are not sufficient evidence to show that the debtors had actually paid the money to him. This should have been proved by the debtors themselves. There is no presumption that, when an account has been delivered for collection, it is paid to the person sent to collect it. After it had been claimed by Don Geronimo Jose that the defendant was a defaulter to the amount of 1,043 pesos, his mother attempted to settle the matter. An instrument was drawn up by a clerk of Don Geronimo to be signed by the defendant. It acknowledged that he had embezzled the above sum. It was read in the presence of the defendant and his mother. The defendant said nothing during the interview. The document was never signed, the mother and Don Geronimo not being able to agree upon its terms. It is said that the silence of the defendant on this occasion was a confession of his guilt. We can not so hold. By General Orders, No. 58, section 15, paragraph 3, the refusal or neglect, of a defendant to testify can not in any manner prejudice him. A person charged with a crime is not called upon to make any explanation or denial, except to plead guilty or not guilty. He can remain silent as well before the trial as during it, and his silence can not be considered as a confession of guilt. Any other rule would lead to the result that, every time anything was said in the presence of a prisoner indicating his guilt, he would be trailed upon to deny it, whether it was said by the prosecuting attorney, newspaper reporters, police officers, or others. 2. As to the 40 pesos mentioned above, there was sufficient evidence to convict the

defendant. This was a claim against Timoteo Sevilla. The receipted bill delivered to the defendant was found in the possession of this debtor and was produced at the trial. The defendant admitted to Francisco Gonzales, and, as we understand the evidence, to Don Geronimo Jose, that Hie had collected this amount. 3. To the first complaint presented the defendant demurred. The fiscal having admitted that the demurrer was well taken, the court on October 18 directed the complaint to be amended. The defendant moved to dismiss the amended complaint on the ground that the demurrer had put an end to the proceeding. This motion was denied. The claim of the defendant is that he demurred to the complaint on the fourth ground mentioned in section 21 of General Orders, No. 58, namely, that the facts stated did not constitute a public offense and that this is a defect which can not be avoided by an amendment, as provided in section 23. This claim can not be sustained. A complaint as drawn may fail to charge an offense by reason of the omission of some material fact which exists, but which the fiscal by oversight has neglected to insert in the complaint. With this fact inserted the complaint would charge an offense. Such a mistake is one that can be avoided by an amendment and the court is by said section 23 authorized to so direct. The judgment is modified by changing the penalty from six months to two months and one day, and the indemnity from 1,043 pesos to 40 pesos. In all other respects it is affirmed with costs of this instance de oficio. Arellano, C. J., Torres, Cooper, Mapa, and Ladd, JJ., concur. McDonough, J., did not sit in this case.

OSJurist.org

G.R. No. 1127, April 28, 1903

THE UNITED STATES, COMPLAINANT AND APPELLEE, VS. BIAN JENG, DEFENDANT AND APPELLANT. D ECIS ION
LADD, J.: Bian Jeng was convicted of cohecho in the municipal court for the north district of Manila. He appealed to the Court of First Instance, and was again convicted. He then appealed to this court. The Government now moves that the appeal he dismissed, on the ground that no appeal lies from a judgment of the Court of First Instance of Manila rendered in an appeal from a municipal court, except in cases involving the validity or constitutionality of a statute, and that the present is not one of the excepted cases. An examination of the record shows that no question is raised in this case as to the constitutionality or validity of anv statute. It is not claimed that the article of the Code under which the conviction was had is invalid or unconstitutional, hut. only that the evidence fails to show the commission of the offense punished by that article. The appellate jurisdiction conferred upon this court by Act No. 136 of the Commission is identical, as respects criminal cases, with that possessed under General Orders, No. 58, by the preexisting Supreme Court. General Orders, No. 58, section 43, provides generally that "from all final judgments of the Courts of First Instance, or courts of similar jurisdiction, and in all cases in which the law now provides for appeals from said courts, an appeal may be taken to the Supreme Court as hereinafter prescribed." It then goes on to except from this general provision judgments rendered in appeals taken "from the final judgments of justices of the peace in criminal cases to the courts of the next superior grade," and it then excepts from this exception "cases involving the validity or constitutionality of a statute, wherein appeal may be made to the Supreme Court." The courts of justices of the peace in the city of Manila, which by section 69 of Act No. 136 had been continued as theretofore organized, were abolished by Act No. 183 (sec. 44), and by the same Act (sec. 40) provision was made for the organization of municipal courts for the city of Manila, and they were given jurisdiction over offenses where "the maximum punishment is by imprisonment for not more than six months, or a fine of not more than one hundred dollars, or both," which was the same as that previously possessed, by the courts of justices of the peace. (G. O., 58, s. 108; Act No. 136, sec. 56, par. 6.) There is some force in the argument that, as the courts of justices of the peace of Manila have been abolished, and as the municipal courts were not expressly substituted in their place, and as the subject of appeals from municipal courts was expressly regulated in the Act creating those courts (Act No. 183, sec. 42), all that part of General Orders, No. 58, section 43, which relates to appeals from justices of the peace to Courts of First Instance must be regarded as having been repealed so far as respects the city of Manila, leaving the general provision of that section giving the right of appeal "from all final judgments of the Courts of First Instance," in force, and without limitations or exceptions. We are, however, on the whole, of opinion, having regard to the fact that the jurisdiction

conferred upon the municipal courts of Manila was the same as that of the justice courts in criminal cases, that the intention of the Commission was to preserve the limitation upon the right of appeal in cases originating in the municipal courts which had previously existed as respects the same class of cases originating in the justice courts. This limitation would continue to exist with reference to justices' courts outside of Manila, and it is not probable that it was the legislative intention to establish a difference in this respect between cases appealed from the inferior criminal tribunals of that city and those appealed from tribunals of the same grade in other parts of the Archipelago. The appeal is dismissed, with costs. Arellano, C. J., Torres, Cooper, Willard, and Mapa, JJ., concur. McDonough, J., did not sit in this case.

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G.R. No. 1128, April 29, 1903

CHIYE MAGATINGE, PETITIONER, VS. LA ELECTRICISTA, RESPONDENT. D ECIS ION

LADD, J.: The defendant demurred to the complaint, and while the demurrer was still pending filed an answer. These two pleadings can not stand together. The effect of the filing of the answer was to supersede the demurrer. The motion to strike out the demurrer should be granted. So ordered. Arellano, C. J,, Torres, Cooper, Willard, and Mapa, JJ., concur. McDonough, J., did not sit in this case.

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G.R. No. 1129, April 06, 1903

THE UNITED STATUS, COMPLAINANT AND APPELLEE, VS. RAFAEL ARCIAGA, ET AL., DEFENDANTS AND APPELLANTS. D ECIS ION
MAPA, J.: The conclusion reached by the court below with respect to the sufficiency of the evidence as to the commission of the act charged, and the guilt of the defendants as principals, is in conformity with th,e law. The offense has been properly classified in the judgment as that of robbery with homicide, denned and punished in section 1 of article 503 of the Penal Code. The judge has imposed upon the defendants the penalty of death, considering the concurrence, in the commission of the crime, of the aggravating circumstances of aleviosa, premeditation, and the perpetration of the offense in an uninhabited place. We can not concur in this conclusion. No witness was present at the commission of the crime, and therefore no one can testify from his own knowledge as to the manner and form in which the crime was committed. These data being absent, there is no foundation upon which to rest the circumstance of alevosia, which is, in its essential characteristics, a modifying condition in the commission of the crime. It can not even be presumed that the defendants tied the hands of the deceasedand this is apparently the fact upon which the judge relied for the purpose of considering that this circumstance was presentbecause the vague indications which appear in the record to have been made upon this point as a mere matter of hearsay are overcome by the certain and unquestionable fact that the deceased crawled on his hands and knees some 300 meters from the place where the crime was committed to the police station, where he Avas found wounded by the people of the barrio in which the crime occurred. This proves positively that his hands were free and not tied. This conclusion is corroborated by the circumstance that none of the various witnesses.who saw him in the station could testify to the contrary at the trial. With respect to premeditation, there are no data whatever to show when the idea of killing and robbing the deceased first arose in the minds of the accused. This idea might well have occurred to them at the very moment they met him in the place where the crime was committed. This mooting, in accordance with all conjectures possible upon the record of the case, was casual, and therefore it can not be affirmed, because of the lack of any evidence, that the commission of the crime was preceded by a reflexive and premeditated purpose or intent, this being precisely what constitutes premeditation. In consequence, we hold that this circumstance did not exist in this case. With respect to the circumstance of the commission of the crime in an uninhabited place, we do not find this circumstance sufficiently proven in the case, in consideration of the fact that a short distance from the place where the crime was committed there was a station, the precise purpose of which was to serve as a shelter for the peace officers of the town. On the other hand, it does not appear that when the offense in the case at bar was committed there wore no watchmen at the station; therefore it can not be said, strictly speaking, that the place in question was an uninhabited, solitary place, and that its isolation made it easy to commit the crime with impunity. This is the very el onion t upon which rests the increased responsibility for crimes committed in uninhabited places.

There being no aggravating circumstance which can be considered to have concurred in the commission of the crime, the accused should be convicted, in accordance with the provisions of paragraph 2 of article 80 of the Penal Code, to suffer the lesser of the two indivisible penalties prescribed by paragraph 1 of article 503, which, as we have already stated, is the one applicable to the case. We therefore condemn the accused to the penalty of life imprisonment ( cadena perpetua) and to the payment of the sum of 500 Mexican pesos to the heirs of the deceased. The judgment of the court below, so modified, is affirmed, Avith the costs of this instance to the defendants. So ordered. Arellano, C. J., Torres, Cooper, Willard, and Ladd, JJ., concur.

OSJurist.org

G.R. No. 1131, April 23, 1903

THE UNITED STATES, COMPLAINANT AND APPELLEE, VS. NICASIO SEVILLA, DEFENDANT AND APPELLANT. D ECIS ION
TORRES, J.: On the 20th of April, 1902, Charles E. Manison, inspector of Constabulary, together with Pablo del Rosario, Pablo Reyes, and Cayetano Bacleon, Constabulary soldiers, together with a spy, went to a place called Caignin, near the town of Caloocan, to a house in which a man called Andres was living, for the purpose of arresting the latter. This was at about 7 o'clock in the morning. They did not succeed in arresting Andres because the latter, who, at the time of their approach, was eating, jumped up, and, seizing a revolver, ran away, jumping to the ground from the porch of the house. They were unable to overtake him, although he was followed. They returned to the house and arrested all whom they found there and proceeded to conduct them to this city. On the road, however, at a place called Matalahip, they were attacked at a street corner which they were passing by several men, among whom they recognized Andre's, the accused, Nicasio Sevilla, and Marcelo Magsalin, who fired at them several times, the result of the shooting being the death of Cayetano Bacleon. The facts constituted the crime of homicide, defined in article 404. together with an armed attack upon agents of the authorities in the exercise of the duties of their office, defined and punished in articles 249 and 250 of the Penal Code, although the latter offense does not appear to be charged in the information filed by the provincial fiscal. The offense was committed by several men, who, armed with carbines or guns, intercepted five members of the Constabulary who were returning to this city from the place where they had attempted to arrest one Andres, who succeeded in making his escape and attacked them by repeatedly firing upon the officers, the result of the attack being the death of Cayetano Bacleon by a gunshot wound received in the head. The record discloses the fact that Andres, immediately after having succeeded in escaping from the police who were attempting to arrest him, undertook to attack the latter, in company with the other aggressors, among them the accused, Nieasio Sevilla, with the purpose of preventing his companions, who had been arrested in the house, from being taken to this city or to revenge himself for his own attempted arrest. This was upon an express agreement, even if entered into upon the spur of the moment, all of them having united for the exclusive purpose of attacking the police. To that end they stationed themselves at the corner of the street, through which the police were passing and attacked them, each assisting and cooperating with the others, with the express intent to commit the said crimes of attack upon the authorities and homicide, the latter being the only one which is now the subject of this prosecution. Therefore, there was no confused and tumultuous quarrel or affray, nor was there a reciprocal aggression between both parties, inasmuch as the police simply defended themselves from the simultaneous and uniform attack upon them by the aggressors, each one of whom, therefore, became responsible for the homicide in question, as all of them, with malicious intent to do harm, took part in the aggression upon the said policemen, one of whom was killed. Consequently this was not homicide in a confused and tumultuous affray, as the court below

regarded the crime charged. The violent killing of the policeman, Cayetano Bacleon, constitutes the offense of homicide, of which the accused, Nicasio Sevilla, is one of the persons responsible, as he, in company with Andres and Marcelo Magsalin, took direct part in the attack which they together, and by means of firearms, made upon the said police. In the commission of the offense we must consider the aggravating circumstance of the use of prohibited arms, which private parties are not allowed to have in their possession. There are no mitigating circumstances, and therefore the proper penalty should be imposed in the maximum degree. On these grounds we are therefore of the opinion that the judgment below should be reversed and that Nicasio Sevilla, as guilty of the offense of homicide, should be convicted and sentenced to seventeen years four months and one day of reclusion temporal, together with the accessories designated in article 50 of the Code, to the payment of one thousand Mexican pesos to the widow and heirs of the deceased, and to the payment of the costs in both instances. Arellano. C. J., Cooper, Willard, Mapa, and Ladd, JJ., concur. McDonough, J., did not sit in this case.

OSJurist.org

G.R. No. 1136, October 28, 1903

THE UNITED STATES, COMPLAINANT AND APPELLEE, VS. LINO DE CASTRO, DEFENDANT AND APPELLANT. D ECIS ION
COOPER, J.: The defendant, Lino de Castro, was convicted of the offense of bribery by the Court of First Instance of Tayabas, and was, on the 10th day of November, 1902, sentenced to the penalty of four months of arresto mayor, to the payment of an indemnification of 1,000 pesos, and the costs of the proceedings. From this judgment he appeals to this court. The complaint upon which the defendant was tried and convicted reads as follows : "IN THE COURT OF FIRST INSTANCE OF LUCENA, TAYABAS, OF THE SIXTH JUDICIAL DISTRICT. "United States vs. The Municipal President of Pagbilao, Lino de Castro. "The provincial fiscal who signs accuses the defendant of the offense of bribery, committed as follows : "That as municipal president of the town, in consideration of gifts of money, he permitted opium joints and gambling houses. This contrary to the law. (Signed) "SOFIO ALANDY, "Provincial Fiscal of Tayabas. "LUCENA, TAYABAS, September 8,1902." The defendant demurred to the complaint on the grounds (1) that the acts charged in the complaint did not constitute a public offense; (2) that the complaint did not state the date on which the offense was committed nor the name of the person or persons from whom the accused received the bribe; (3) that the complaint did not show that the offense charged was committed within the jurisdiction of the court; (4) that the complaint charged more than one offense. The demurrer was overruled, and among errors assigned by counsel for defendant is the overruling of the demurrer. By section 6 of General Orders, No. 58, certain facts are required to be stated in a complaint, among which are: (3) That the acts or omissions complained of as constituting the crime or public offense must be stated in ordinary and concise language, not necessarily in the words of the statute, but in such form as to enable a person of common understanding to know what is intended, and the court to pronounce judgment according to right; and (4) that the offense was committed within the jurisdiction of the court and is triable therein. Section 7 of General Orders, No. 58, provides that, except when time is a material ingredient of the offense, the precise time of the commission of the offense need not be stated in the

complaint, but the act may be alleged to have been committed at any time before the filing of the complaint. Section 11 provides that a complaint or information must charge but one offense, except only in those cases where existing laws prescribe a single punishment for various allied offenses. The complaint is based upon article 383, in connection with article 381, of the Penal Code. Under these articles the crime of bribery is defined as the act of a public official who shall receive directly or through an intermediary a gift or present, or who shall accept offers or promises, when the purpose of the gift received or promised is that the public official shall abstain from performing an act which he should perform in the exercise of the duties of his office. It is not stated in the complaint what act the municipal president should have performed in the exercise of his office with reference to the keeping of houses for the smoking of opium and the keeping of houses for prohibited games. Section 18 of the Municipal Code makes the president the chief executive of the municipality, and among the duties prescribed in this section are: ( a ) That he shall cause the ordinances of the municipality to be executed, and shall supervise the discharge of official duties by all subordinates; and ( g) that he shall hold court to hear and adjudge alleged violations of public ordinances upon complaint filed by his direction, or by a police officer or private citizen. Section 39 of the same act, among other things, provides that the municipal council shall ( u) provide against the evils of gambling, gambling houses, and disorderly houses of whatsoever sort; and ( v ) provide for the closing of opium joints and prohibit and punish the keeping and visiting of any place where opium is smoked or sold for the purpose of smoking. 1. In order that the charge contained in the complaint should sufficiently show that the defendant abstained from performing an act which he should have performed in the exercise of the duties of his office, it should have been alleged that the municipal council of the pueblo of Pagbilao had, under the provisions of section 39 of the Municipal Code above cited, enacted an ordinance against gambling and gambling houses and an ordinance against the keeping of opium joints, and it should have been charged that the defendant as a municipal president and chief executive of the municipality, in consideration of gifts of money or other things, had abstained from performing some act which he should have performed in the exercise of the duties of his office, such as either failing to cause these ordinances of the municipality to be executed, or that as such president and chief executive of the municipality he had failed to hear and adjudge alleged violations of these ordinances upon complaints filed by his direction, or by a police officer or a private citizen, or that, after trial, had wrongfully acquitted the accused persons in the municipal court over which he presided. The complaint fails to make these necessary allegations. It is not even charged in the complaint in direct terms that the defendant was president of the municipality of Fagbilao; this only appears in the heading of the complaint, where, in giving the title of the cause, the complaint contains this heading: "United States vs. The Municipal President of Pagbilao, Lino de Castro." 2. The complaint is also defective in not showing that the offense was committed within the jurisdiction of the court. It should have been alleged that the money was received in Pagbilao, or at some place within the Province of Tayabas.

3. The complaint is also defective in not stating the time at which the offense occurred. While it is not necessary, unless time is a material ingredient of the offense, that the precise time of the commission of the offense should be stated, still the act should be alleged to have been committed at some time before the filing of the complaint. 4. The complaint is also defective in not giving the names of the persons who made the gift as a bribe to the defendant, and in not stating the kind or amount of such gift. These facts are necessary to be stated, in order to identify the act for which the defendant is to be tried, and to enable him to understand what is intended to be charged against him. 5. Two distinct offenses have been charged in the complaint, i. e.j the keeping of a house for the smoking of opium and the keeping of a house for the playing of prohibited games. The provisions of sections 6 and 7, and the form of complaint as provided in section 8 of General Orders, No. 58, should be sufficient, if properly observed, to enable provincial fiscals to draw complaints substantially in compliance with the law. Section 21 of General Orders, No. 58, provides that the defendant may demur to the complaint or information, among other causes, (1) when it appears on the face of the complaint that the offense charged is not within the jurisdiction of the court; (2) that it does not conform substantially to prescribed form; (3) that more than one offense is charged, except only in such cases in which the existing laws prescribe a single punishment for various allied offenses; and (4) that the facts charged do not constitute a public offense. The demurrer was well taken as to each of these causes, and should have been sustained by the Court of First Instance. We do not mean to be understood as holding that advantage can be taken of all these defects in a complaint after the defendant has plead to the complaint or after the case has been removed to this court; but where the defendant has interposed a demurrer to the complaint in due time, and it appears that the complaint is subject to demurrer for any of the causes mentioned in section 21, it is the duty of the court to sustain the demurrer and either require the amendment of the complaint or direct a new complaint or information to be filed. By the provisions of section 9 of General Orders, No. 58, the information or complaint may be amended in substance or form without leave of the court at any time before the defendant pleads, and, by the provisions of section 23, if the demurrer is sustained the court mav direct the accused to be remanded and that a new information be filed. We wish to direct the attention of the trial courts to these provisions of law. When there is any doubt about the sufficiency of the complaint, the court should direct its amendment or that a new information be filed, and save the necessity of appealing the case to this court on technical grounds when the complaint might have been easily amended. In this case, after sustaining the demurrer, if the objections made to the complaint could not have been avoided, by amendment or by the filing of a new complaint, e. g., if the municipal council had never enacted any ordinance prohibiting opium joints and gaming houses, in accordance with the provisions of section 39 of the Municipal Code, and there was no duty in this respect which the defendant abstained from performing as such presidente, the judgment

sustaining the demurrer should have been made final, and the defendant discharged from further prosecution. But if the complaint was susceptible of amendment, i. e. , if there were such ordinances in the pueblo, and the defendant had received a gift of money in consideration of his abstaining, as the chief executive of the municipality, from enforcing such ordinances, or from hearing and adjudging alleged violations of the same, or in consideration for rendering a wrongful judgment of acquittal in a complaint filed against such persons, then the court should have directed that the information be amended or that a new information be filed, complying with the requisites of sections 6, 7, 8, and 11 of General Orders, No. 58. In view of the fact that we have decided the case upon questions of law, it will not be necessary to review the evidence taken on the trial in the Court of First Instance. The judgment of the Court of First Instance will be reversed and the case remanded, with directions that the court sustain the demurrer presented by the defendant against the complaint, and make such further order as to the amendment or the filing of a new complaint as will be proper in view of what has been stated in this opinion, with the costs of this instance de oficio. So ordered. Arellano, C J., Torres, Mapa, and McDouough, JJ., concur. WILLARD, J., concurring: I base my concurrence in the foregoing solely on the fourth clause of the decision. Johnson, J., did not sit in this case.

OSJurist.org

G.R. No. 1138, April 20, 1903

THE UNITED STATES, COMPLAINANT AND APPELLEE, VS. DAMIAN DE LA CRUZ ET AL., DEFENDANTS AND APPELLANTS. D ECIS ION
COOPER, J.: The defendants, Damian de la Cruz, Francisco Baltimosada, Alvaro Mendoza, and Francisco Rafael, were charged in the Court of First Instance of the Province of Nueva Ecija with the crime of robbery en cuadrilla. Damian de la Cruz and Alvaro Mendoza were acquitted, and Francisco Rafael and Francisco Baltimosada were convicted and sentenced to the punishment of two years of presidio correccional with accessories. The two last-named defendants appeal from the judgment. On the preliminary examination these defendants confessed to having committed various robberies in the barrio of Tambo and other adjacent barrios, including one on the road to Aliaga, which seems to be the robbery upon which the complaint is founded. They also confessed to being members of a band of robbers going about committing robberies and other depredations. When the trial of the case came on in the Court of First Instance, they plead not guilty and each of them denied having any knowledge whatever of the robberies to which they confessed. They state, as a reason for having made the confessions in the preliminary investigation, that they were made through fear of ill treatment on the part of the police who had captured them. Francisco Rafael stated that he had been illtreated by the lieutenant in whose charge he was, and that he was threatened by the lieutenant at the time he testified that he would again be illtreated in the same manner if he did not again confess before the justice of the peace. Francisco Baltimosada also denied in his testimony in the Court of First Instance that he had anything to do with the robberies committed and to which he had confessed, and further stated that he had been terrorized into making the confessions before the justice of the peace by threats made by the lieutenant, who had extorted a confession from him through ill treatment, and that he believed that by making the confessions he would be released from further prosecution. The lieutenant by whom the defendants claim to have been ill treated and forced to make these admissions denied having used any force whatever upon the defendants or any undue persuasions or threats, and states that the confessions were made voluntarily. The justice of the peace before whom the preliminary examination was held also testified that there were no undue influences used upon the defendants at the preliminary hearing. We are not entirely satisfied as to the admissibility of the confessions made by the defendants while under arrest. A confession in order to be admissible must be voluntary. An involuntary confession is so uncertain with regard to its truthfulness that it is unsafe as evidence to sustain a conviction.

There is no proof whatever offered by the Government of the corpus delicti except the confessions of the defendants. Outside of these confessions there is no proof of any robberies having been committed at the times and places at which the defendants are charged to have committed them. It is the general rule that the corpus delicti must be proven by evidence independent of confessions. It is true that tliis evidence may be circumstantial, but there should be some evidence corroborating the confessions. There is a vagueness both in the confessions and in the complaint. The names of the persons against whom the offense; was committed are not stated in either, nor were they produced as witnesses at the trial. The case was easily susceptible, so far as we can see, of proof, at least as to the corpus delicti ; perhaps circumstances as to the identity of the defendants might have been shown connecting them with the commission of the offense, but it seems that the prosecution in the case relied exclusively upon the confessions and apparently made no effort to adduce1 other testimony. The case has not been made out to our satisfaction against the defendants, and we must reverse the judgment of the court below and acquit the defendants on account of the insufficiency of the evidence, which is accordingly done. Costs are adjudged de oficio. Arellano, C. J., Torres, Mapa, and Ladd, JJ., concur. Willard, J., concurs in the result. <I>McDonough, J., did not sit in this case.

OSJurist.org

G.R. No. 1139, April 08, 1903

THE UNITED STATES, COMPLAINANT AND APPELLEE, VS. LEANDRO DIAZ ET AL., DEFENDANTS AND APPELLANTS. D ECIS ION
TORRES, J.: The provincial fiscal in his complaint, dated the 29th of November, 1902, charges the defendants with being brigands, because Diaz knowingly accepted the office of vice-president, Pioson the office of captain, and Leongsong that of lieutenant, under appointments made by the brigands, whom they were doubtless assisting, without the, knowledge of the authorities and against the provisions of Act No. 518. The defendants plead,not guilty. As evidence against Diaz the prosecution introduced a statement made by him before Mr. Ira Keithley, inspector of Constabulary, and other witnesses. This statement is written in Tagalog and appears on page 5 of the record. It is dated the 27th of November, 1902, and signed by Leandro Diaz. Translated it is as follows: "Leandro Diaz, domiciled in the town of Tambolong, states that he is the vicepresident of the new K. K. K. and accepted the said office a little less than one month ago on account of his fear of the ladrones, adding that the person who acts as president is one Gregorio Suarez, and that since they received the official appointment they have not held any meetings." Both Major Keithley and Inspector McIlvaine, and the policemen Vicente Domingo and Francisco Martinez, testified that they heard the statements made by Leandro Diaz, which do not show that the accused was a member of any band of brigands, or what was the true purpose of the K.K. K. association of which he was vice-president. It may be said, judging from the result of other cases referred to by the prosecuting attorney, that this society had for its purpose the preparation of a new revolution against the Government of the United States in these Islands. Act No. 518 was passed on November 12, 1902. As this act is not retroactive it can not be applied to those engaged in brigandage prior to that date, and if, as Diaz confessed on November 27, 1902, he accepted the office of vice-president a little less than a month before, and regarding this statement, the only evidence against him, as true, it follows that his appointment was prior in date to the law referred to, and the crime committed was therefore subject at that time to the provisions of the Penal Code. The record contains no evidence to show that Leandro Diaz was a member of a band of brigands engaged or about to engage in acts prohibited and punished by said Act No. 518. He can not, therefore, be found guilty of the crime of brigandage, and, in our judgment, must be acquitted, as were the other defendants, Pioson and Leongsong. Therefore, for the reasons stated, we are of the opinion that the judgment of the court below with respect to the appellant Leandro Diaz should be reversed and the latter acquitted, with the costs of both instances de oficio. Upon the filing of an information for the crime of insurrection, sedition, and conspiracy, defined and punished by Act No. 292, the judge will take action against the three defendants in accordance with the law. So ordered.

Arellano, C.J., Cooper, Willard, Mapa, and Ladd, JJ., concur.

OSJurist.org

G.R. No. 1141, April 04, 1903

THE UNITED STATES, COMPLAINANT AND APPELLEE, VS. ELENO LIUANAG ET AL., DEFENDANTS AND APPELLANTS. D ECIS ION
LADD, J.: The appellants, Liuanag, Quinto, Sinambal, and Joaquin, have been convicted by the Court of First Instance of Rizal of robo en cuadrilla , under No. 5 of article 503 of the Code, in connection with article 504, and sentenced to six years ten months and one day of presidio mayor. They were tried jointly with Fulgencio Magpayo, who was acquitted. The Government did not appeal from the acquittal of Magpayo. The evidence against the appellants was as follows: Lorenzo Ramos, a Constabulary inspector, testified that lie captured Quinto, Sinambal, and Joaquin in a banca in the Atlag River in the pueblo of Malolos, Bulacan, one night in September, 1902; that he found two sewing machines, some money, and two bolos in the banca in their possession; that they admitted they had stolen the sewing machines and the money; that Quinto gave information which led to the apprehension the same night of the other appellant, Liuanag; that they found in Liuanag's possession a large amount of jewelry, some money, and a gun and 150 cartridges; that Liuanag confessed that a part of the jewelry had fallen to him as his share of the proceeds of robberies committed in the barrio of Dampalit, pueblo of Malabon, Rizal, and that he had bought part of it for a small sum from the other robbers. Leon de la Rosa, also an officer of the Constabulary, who was with Ramos when the arrests were made, confirms in all substantial respects the testimony of the latter. The sewing machines and a part of the jewelry were brought into court and identified by their owners, who stated that they were taken from their respective houses in the barrio of Dampalit, pueblo of Malabon, by robbers, the witnesses being in their houses at the time of the robberies. Candida Garcia, the owner of some of the jewelry and one of the sewing machines, testified that the robbers who attacked her house on the occasion when this property was taken were five in number, all armed. None of these witnesses give the date of these robberies, but they all state that they were committed in the nighttime. No witnesses were introduced by the defense. The evidence leaves no room for doubt that the appellants belonged to an armed band of outlaws, who committed various robberies in the barrio of Dampalit, pueblo of Malabon, Rizal, on a night just previous to the time of their arrest in September, 1902. The evidence of Candida Garcia shows that the band numbered at least five. All the elements of the crime of robo en cuadrilla are established, and the conviction was right. The court below should, however, have appreciated the aggravating circumstances of Nos. 15 arid 20 of article 10 of the Code, and should consequently have applied the penalty in the maximum degree. We fix the penalty at ten years of presidio mayor modifying the judgment in this respect and affirming it in all other respects, and the cause will be returned to the court below for the execution of the same. So ordered.

Arellano, C. J., Torres, Cooper, Willard, and Mapa, JJ.,concur.

OSJurist.org

G.R. No. 1143, April 23, 1903

UNITED STATES, COMPLAINANT ARID APPELLEE, VS. MARIANO BALBOA ET AL., DEFENDANTS AND APPELLANTS. D ECIS ION
TORRES, J.: It appears from the statements in the information filed by the provincial fiscal of Pangasinan on the 22d of October, 1902, that the two accused and five other persons were in the office of the municipal treasurer of the town of Bautista; that lucri causa they committed the crime of theft, by taking several checks, American bank notes, and two warrants against the provincial treasurer of Pangasinan, of the total value of $3,477.16 3/8 , Mexican, and which were in two envelopes in the pocket of the coat of Graciano Bautista, deputy provincial treasurer, which coat, as appeared subsequently in the course of the trial, its owner had taken off on account of the heat and had left it hanging on the edge of the writing table where Ramon Reynado, the municipal treasurer of said town, was working; that between 6 and 7 o'clock at night on the said date, after they had finished the work of collecting the taxes, deputy Graciano Bautista noticed that the envelopes containing the said valuable documents had disappeared from his pocket, and that he, in consequence, immediately reported the loss to the local authorities. Although the charge was first brought against the two accused and Honorato Carungay, Hilario Caneja, Norberto Alviar, Jose Santos, and Simeon de Guzman, because the latter were in the same office at the time in which the taking of these documents must have occurred, nevertheless, during the course of the trial, the court, in view of the result of the proceedings, and acting in accordance with tin1 opinion of the prosecuting attorney, directed an acquittal of the last five accused, to the end that they might be called as witnesses against the first two, Balboa and Reynado. The fact related, if proven, would constitute the crime of theft, defined and punished by articles 517 and 518 of the Penal Code, inasmuch as the valuable papers were taken lucri causa from the pocket of the coat of the deputy, Graciano Bautista, without violence or intimidation of the person, or the employment of force. Some of these papers were bank notes of the value of $157, all having been obtained from taxes collected in the said town of Bautista. The two accused plead not guilty to the crime with which they were charged. The only evidence against them disclosed by the record of the case is the testimony of the deputy, Graciano Bautista. He testifies that on the afternoon of the 22d of August, 1902, he was in the office of the municipal treasurer, engaged in collecting taxes; that the two accused, Balboa and Reynado, were there, as also Honorato Carungay, Norberto Alviar, Jose Santos, Hilario Caneja, and Simeon de Guzman, who remained there all that afternoon; that the said Balboa and Reynado knew that the checks, warrants, and bank notes in two envelopes were in the pocket of his coat, which he had left hanging on the edge of the desk where Reynado was working; that shortly after Graciano Bautista saw Balboa and Reynado get up and take seats near the place where his coat was hanging; that a few moments before he noticed the disappearance of the said documents the two accused left the omce, while the others remained there, and therefore the witness presumes that they were the persons who committed the offense. The record also disclosed the fact that, when Graciano Bautista gave the alarm upon the

disappearance of the money, the accused, Balboa and Reynado, returned to the office; that when it was suggested that all present be searched, Graciano Bautista objected to this operation; that in the course of the afternoon Balboa picked up some papers which had fallen near or under the writing table where the coat was hanging, and that Balboa was nervous that afternoon. Although the record disclosed the source of the checks, warrants, and bank notes concerning the theft of: which this case deals, the record does not disclose sufficient evidence that these papers were actually placed in the pocket of the coat, there being no witness who saw them placed there, and, therefore, in view of the fact that no search was made of the persons present in the room, as suggested by Deputy Bautista, some doubt arises, as to whether or not the crime charged in this information lias been committed. The evidence for the prosecution is not satisfactory or conclusive, or of such weight and character as to remove all reasonable doubt of the guilt of the accused. The mere fact that they were in the office on the afternoon of the occurrence is not sufficient proof of their guilt, any more than it was of that of the five men who were acquitted, but who were also present at the place at the time at which the theft was supposed to be committed. Even in case the innocence of the accused should appear doubtful, it not being possible to determine from the evidence which of the two is the one guilty of the theft, the presumption of innocence exists in favor of each of them. Their guilt not having been satisfactorily proven, we are of the opinion that they are entitled to acquittal. (Sec. 57, G. O., 58.) Therefore the judgment below must be reversed. The accused, Mariano Balboa and Ramon Reynado, are acquitted, with the costs of both instances de oficio. So ordered. Arellano, C. J., Cooper, Willard, Mapa, and Ladd, JJ., concur. McDonough, J., did not sit in this case.

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G.R. No. 1147, September 24, 1903

ESCOLASTICO DUTERTE Y ROSALES, PLAINTIFF AND APPELLANT, RS. FLORENTINO RALLOS, DEFENDANT AND APPELLEE. D ECIS ION
WILLARD, J.: The plaintiff and appellant claimed that he, the defendant, and one Castro were partners in the management of a cockpit. The defendant denied this. The court found that no such partnership existed and ordered judgment for the defendant. The plaintiff moved for a new trial, which was denied. To this order and the judgment he excepted and has brought here the evidence on which the court below based its finding. We have examined the evidence and are of the opinion that said finding, so far as the existence of the copartnership to September 1, 1901, is concerned, is plainly and manifestly against the evidence. We reach this conclusion chiefly from the documents written by the defendant and sent to the plaintiff. It is not contradicted that the plaintiff demanded by letter of the defendant a settlement of their accounts. These demands the defendant answered with the folloAving letter: "MY DEAR BOY: I am working at these accounts. Perhaps I will have them ready tomorrow morning. But I have no money, unless Mr. Spitz comes on 6ne of these boats, when we will have funds. "Yours, "FLORENTINO RALLOS. "April 13,1902." On May 7 the defendant wrote another letter to the plaintiff which is in part as follows: "CEBU, May 7,1902. "Senor DON ESCOLASTICO DUTERTE. "DEAR BOY: In your letter which I received this afternoon, you designate me as a little less than embezzler. I have in my possession the money of no one but myself. If I have not called you an embezzler or something worse on account of all that you have done and are doing with me, reflect whether you have reason to write me in the manner you do. I have done you a favor in admitting you into the cockpit partnership, as the only manner in which I might collect what you owe me. I think you have made a mistake, and I will frankly refresh your memory. You are indebted to me nearly one thousand pesos, advanced for vour former market contract," In the preceding year, the defendant sent to the plaintiff statements of the business for the months of June, July, and August. They are in legal effect the same. The one for July is as follows: "Receipts of the cockpit of this city during the ..........................................................................$520,622 "Expenses entire month of July

"Cuotas......................................................................................

$300.00

"Rent, 6 days............................................................................... "Present to Biloy............................................................................ "Onethird...................................................................................... "Ticoy owes for seats........................................................................ "Ticoy's net share............................................................................
Ticoy stands for the plaintiff.

60. 00 20.00 ________ 380.000 _______ 140. 622 ======= 46.873 31. 200 ________ 15. 673 30. 000 45. 673"

That the plaintiff rendered services in the management of the cockpit, and that the defendant paid him money on account of the cockpit, is undisputed. The defendant, after denying that the plaintiff was his partner, testified, among other things, as follows: "The profits were divided. A portion was given to two friends, Senores Duterte and Castro, but not as partners. A portion was given to Senor Duterte solely because he was a friend who aided and encouraged the cockpit. I did not have an agreement Avith them. As a private individual, he had no duty to perform, except when he had to preside at the cockpit. I am not aware that they, or either of them, rendered other services. I did not tell them the reason Avhy I gave them a share. I paid them for my pleasure, as friends. Duterte had no legal interest. "Senor Duterte had no authority to employ any person in the cockpit; this function was exercised solely by Benor Isabelo Alburo, since I gave Seiior Duterte a portion only as a friend." Castro, the other supposed partner, and a witness for the defendant, denied that he was such partner, but his testimony is in part as follows: "I do not remember what the profit was, but, as I have said, Senor Rallos sent me $20 or $30. I did not keep any account. I did not receive money monthly, but on Mondays Senor Rallos would send me some money. Senor Rallos began to send me money from February, 1901. I am sure it was about that time. It may have been a little later. I did not receive any money before that time. It is true that the amount was from 20 to 30 pesos, and this money was what was obtained on the preceding Sunday in the cockpit. I think Senor Rallos sent it to me as a present for the reason that he could not be present at the cockpit. I am not a servant or employee of the cockpit. I have not had any conversation with Senor Rallos with reference to the business. When Senor Rallos sent me the monev he sent me no letter. He sent it to me by a messenger. I think that Senor Rallos sent me that money because I

went to the cockpit and helped the president on account of the former. Senor Rallos asked me to go to the cockpit. Yes, I have had a conversation with Senor Rallos. In this conversation Senor Hallos said nothing to me about money. Senor Rallos asked me to go to the cockpit to aid the president. It is not true, as I went to the cockpit only to do him a favor." We have, then, ,the testimony of the plaintiff that he made a verbal contract of partnership with the defendant for this business, uncontradicted evidence that he performed services in connection with it; that the defendant paid him money on account thereof and sent him accounts for three months showing his interest to be one-third of the profits, in addition to the $5 each day, and wrote him a letter in. which he said that he admitted the plaintiff into the partnership in order to collect what the plaintiff owed him on another transaction. The reason which the defendant gives for paying the plaintiff money is not credible. We see no way of explaining the accounts submitted by the defendant to plaintiff on any theory other than that there was a partnership between them up to September 1, 1901, at least. The letter of the defendant, in which he says that he admitted the plaintiff into the partnership, can be explained on no other theory. That there was an agreement to share the profits is clearly proved by the accounts submitted. The plaintiff testified that the profits and losses were to be shared equally. But even omitting this testimony, the case is covered by article 1689 of the Civil Code, which provides that, in the absence of agreement as to the losses, they shall be shared as the gains are. Article 1668 of the Civil Code is not applicable to the case. No real estate was contributed by any member. The partnership did not. become the owner of the cockpit. It is undisputed that this was owned by the defendant and that the partnership paid him ten dollars a day for the use of it. Neither can the judgment be sustained on the ground stated by the court in its decision and relied upon by counsel for the appellee here, namely, that Castro should have been joined as a party to the suit. One of the grounds for demurrer mentioned in section 91 of the Code of Civil Procedure is "that there is a defect or misjoinder of parties plaintiff or defendants." No demurrer was interposed on this or any other ground, and by the terms of section 93 of the same Code, by omitting to demur on this ground the defendant waived the objection which he now makes. The finding of fact by the court below, that there was no partnership, at least to September 1, 1901, was plainly and manifestly against the evidence, and for that reason a new trial of this case must be had. In this new trial, if the evidence is the same as upon the first trial, the plaintiff will be entitled to an accounting, at least to September 1, 1901, and for such further term as the proof upon the new trial shows, in the opinion of the court below, that the partnership existed; that accounting can be had in this suit and a final judgment rendered for the plaintiff if any balance appears in his favor. No second or other suit will be necessary. The judgment of the court below is reversed and the case remanded for a new trial, with the costs of this instance against the appellee, and after the expiration of twenty days, reckoned from the date of this decision, judgment shall be rendered accordingly, and the case is returned to the court below for compliance therewith. Arellano, C. J,, Torres, Cooper, Mapa, and McDonough, JJ., concur.

OSJurist.org

G.R. No. 1149, August 03, 1903

THE UNITED STATES, COMPLAINANT AND APPELLEE, VS. GREGORIO MABILANGAN, DEFENDANT AND APPELLANT. D ECIS ION
TORRES, J.: This was an appeal by the defendant, Gregorio Mabilangan, from a judgment of December 5, 1902, entered in a case [No. 204] prosecuted against him in the Court of First Instance of Batangas upon the charge of homicide, and by which he was condemned to fourteen years' imprisonment, with the accessory penalties, and to the payment of the costs. One night in the month of January, 1900the precise date does not appearthe defendant and Victor Medalla were in the house of Lucia Manso, situated in the barrio of San Joaquin, of the town of Santo Tomas, Batangas. On account of a misunderstanding which arose between them concerning a song they were singing together, a dispute ensued, in the course of which many hard words were said. For this reason the owner of the house ordered them to leave, which they did. When Victor was about 20 brazas from the house he was pursued by the defendant, Gregorio, and, although he endeavored to escape, was overtaken by the latter, who immediately plunged a dagger into his left breast, leaving him dead on the spot. These facts were observed by six witnesses and by the mistress of the house, and their testimony substantially bears out the facts charged in the information. They all testified to having seen the body of the deceased with this wound, after the pursuit and attack upon the deceased by the defendant. These facts constitute the crime of homicide, defined and punished by article 404 of the Penal Code. None of the circumstances enumerated in article 403, which defines the crime of murder and imposes a heavier penalty, con curred in the violent killing of Victor Medalla. The defendant plead not guilty to the charge, and alleged in his sworn testimony that, as an insurgent, he had been instructed by his captain, Mauricio Sanchez, to arrest Medalla and to kill him if he resisted, because the latter was a thief and a spy; that when he met the deceased on the night in question he told him politely to go with him, in order that the defendant might turn him over to his captain, but that Medalla resisted and attacked the defendant with a bolo; that the defendant endeavored to avoid his blows, but received a wound on the calf of the leg; that he was therefore obliged to defend himself, and unintentionally inflicted upon the aggressor, Medalla, with his dagger, a wound in the left breast, from which the hitter died a few hours afterwards. The counsel for the defendant asked that a description of the scar on the body of the defendant be made to appear in the record. The provincial fiscal consented to this, upon the condition that it be proved that this wound was received in the course of the defendant's quarrel with the deceased. The defense also asked that the defendant be included in the amnesty, upon the ground that the latter was, at the time, an insurgent, and had committed the offense by order of his superior officer in the revolutionary armyapart from the fact that he was attacked by the deceased and wounded the latter in self-defense with the dagger he was carrying. Notwithstanding these exculpative allegations and the testimonv of the two witnesses who

affirmed that the defendant was an insurgent in 1900, and the testimony of the witness Simon Cueva, who, although he in part corroborated the statement of the defendant, did not bear him out in the important detail as to the witness having been the person who conveyed Captain Sanchez's message to the defendant, the record contains sufficient evidence to show that the defendant is guilty as principal of the killing of Victor Medalla. The record clearly shows that there was no attack upon the defendant by the deceased, as affirmed by the former, even admitting that the deceased was at that time provided with a large bolo. The facts established are that when Medalla left Lucia Manso's house he was pursued by the defendant, Gregorio, who overtook him and inflicted upon him the wound which caused his immediate death, all this taking place in the presence of several eyewitnesses. The defendant has failed to prove that his scar, which was not on the calf of his leg but on the left ankle, was the result of a wound inflicted upon him by the deceased at the time in question. For this reason we can not admit in his favor the plea of self-defense, as there is an entire absence of the principal of the three requisites established by paragraph 4, article 8, of the Penal Codethat is, an unlawful aggressionnotwithstanding the dispute and quarrel which occurred between them. The crime of homicide, of which the accused is guilty, not being of a political character, he is not entitled to be included in the amnesty. Even if it be regarded as proven that the defendant was an insurgent at that time, the record does not contain sufficient evidence to show that he had received any orders from his superior to arrest the deceased, nor does it appear that he went to the house of Lucia Manso for that purpose. What does clearly appear is that the two had a dispute concerning a song which they were singing, and that when they were expelled from the house for the purpose of avoiding what subsequently occurred, the defendant pursued the deceased and stabbed him to death. Consequently the unsupported, statements of the accused are insufficient to overcome the conclusive evidence of the commission of the crime and the guilt of the defendant. In the commission of this homicide no generic aggravating circumstance is present, hut the accused will be given the benefit of the special circumstance established by article 11 of the Penal Code, and which was applied by the court below, in consideration of the character of the crime and the personal conditions of the deceased and of the defendant. The penalty should therefore be imposed in its minimum grade, and we are accordingly of the opinion that the judgment appealed should he affirmed, with the addition that the defendant is condemned to the payment of 1,000 Mexican pesos to the heirs of the deceased and to pay the costs of this instance. Arellano, C. J., Cooper, Willard, Mapa, and McDonough, JJ., concur.

OSJurist.org

G.R. No. 1150, April 18, 1903

THE UNITED STATES, COMPLAINANT AND APPELLEE, VS. ANGEL DE VILLA ET AL., DEFENDANTS AND APPELLANTS. D E C I S I ON
TORRES, J.: At 7 a. m. one Saturday in the month of September, 1902the precise date can not be ascertainedEpifanio Laserna and Pedro Artista were walking along near the dividing line between the barrio of San Fernando, of the town of Santo Tomas, Batangas, and that of San Yldefonso, of the town of Alaminos, La Laguna, but still in the Province of Batangas, on their way home from San Pablo to Taal, of which town they were residents. At this point they were met by some seven men, who came out of the neighboring forest, one of them armed with a rifle, another with a revolver, and the others with long bolos. These men, by violence and intimidation, seized the five horses, which were loaded with wine, oil, saddles, hats, handkerchiefs, and other goods, and also a ten-dollar bill which Laserna had with him. Laserna was taken by the robbers into the forest and tied to a tree, and then abandoned by them in this condition. He remained there until the return of his companion, Pedro Artista, who had succeeded in escaping from the thieves, and who then released Laserna. Laserna's three horses were worth $210, and Artista's two horses $180. The facts related constitute the crime of robbery in a band defined and punished by article 502, paragraph 5 of article 503, and article 504 of the Penal Code. Seven armed men deprived the complaining witnesses by violence and intimidation of the live horses and the ten-dollar bank note and of the goods they were carrying. This circumstance qualifies the robbery, as the nmnber of thieves was sufficient to constitute a band. The crime was committed in an unpopulated place in the barrio of San Yldefonso, in the Province of Batangas, in the neighborhood of a forest. It does not appear that the complaining witnesses were wounded. The five defendants plead not guilty. Although they denied that they participated in the commission of the crime charged against them in the information, the record contains evidence which is conclusive as to their guilt, when considered as a whole in accordance with the rules of a. sound discretion, and fully convinces the mind of the guilt of each one of the five defendants. The record discloses the fact that the accused were identified by the two complaining witnesses among several other prisoners. The complainants in their testimony state that they remember the appearance of the malefactors who robbed them. The complaining witnesses also identified the gun which was taken by the officers from the defendants after their arrest, and which was found at a place designated by some of them. It also appears from the record that late on the night of September 30 a search was made in the house of Agapito Millar by order of thek officer Avho was investigating the crime. Agapito was asked if any persons lived with him in the house, to which he replied that he lived there alone. However, the chief of police, Manuel Villa nueva, saw indications that there were more people in the house, proceeded to search it, and found the other accused, Angel de Villa, hidden under the stove. Agapito Millar and Angel de Villa were arrested, taken from the house, and held in the street while the search continued. While there they confessed to the two policemen, Benito Carpio and Urbano Marvive, who were watching them and who had

questioned them about the robbery, that they were the persons who had committed the crime. Agapito and Angel also designated the other accused persons, Teodorico Millar and Ambrosio Malijan, as their companions in the commission of the crime, and upon this accusation they were arrested. Later Ambrosio Malijan also designated Guillermo Maza as another of his companions, and upon this information Maza was arrested, but Mariano Malijan and Aniceto Carpio, also accused by Ambrosio, could not be found. Agapito, Angel, and Teodorico pointed out where the gun was hidden in the San Isidro forest, which gun, according to the testimony of the complainants, was the one carried by a man they identified and who turned out to be Guillermo Maza. The five horses were also recovered by the police, who found them hidden in the interior of the forest of the said barrio near the house of Agapito, the latter and Angel having stated where.the horses were to be found. All these facts, fully proven, constitute conclusive evidence of the guilt of the five defendants. This evidence for the prosecution has not been weakened or overcome by the alibi testimony introduced by the defense, inasmuch as the date of the commission of the crime and that on which the accused said they remained home have not been proven, and more especially in view of the relative proximity of the residences of the accused to the place of the robbery. The record does not disclose the slightest proof that the confession made by a majority of the accused to the policemen, and to the justice of the peace, was extorted by violence and coercion. On the other hand, the finding of the goods, the horses, and the other property stolen was due to the admissions and statements of some of the defendantsthe very ones who pointed out their codelinquents. Therefore, they having been identified by the complaining witnesses, as well as the gun carried by Massa, it is unquestionable that the five accused, together with the two absentees who have not been arrested, were the authors by direct participation of the crime of robbery in a band as herein prosecuted. In the perpetration of the crime no generic circumstance, mitigating or aggravating, can be regarded as present, and therefore the penalty prescribed by article 504, by reason of the existence of the qualifying circumstance of the commission of the offense in a band, should be imposed in the medium period of the maximum degree, under paragraph 5 of article 503, as to all the defendants, inasmuch as it does not appear which one of them was the leader. With respect to the defects which the defense alleges are to be found in the information, the proceedings at the trial, and the judgment appealed, some of them are already refuted by the preceding statements, and, with respect to the others, the information only charges one crime, committed in the territory of the Province of Batangas. The jurisdiction of that court is unquestionable. The court, by its deputy, received the complaint with respect to the crime, and subsequently took cognizance thereof, in accordance with the law. An officer who has taken an oath of office, as has the clerk of the court who acted as interpreter in this case, need not repeat the oath nor be sworn as an interpreter every time he acts as such in the discharge of his duties. Furthermore, these objections were not made in the court below in the course of the trial, and the failure to do so must be regarded as another reason for overruling them in the appellate court. For the reasons stated we are of the opinion, therefore, that the judgment appealed must be affirmed in so far as the five defendants, Angel de Villa, Agapito Millar, Teodorico Millar, Ambrosio Malijan, and Guillermo Maza, are thereby convicted and condemned to eight years

and one day of presidio mayor, and in addition to suffer the accessories of absolute temporary disqualification to the full extent and subjection to the vigilance of the authorities for a period equal to the principal penalty, to be counted from the time of the expiration of the same, and each to pay one-fifth part of the costs of both instances, to restore the bank note and goods not recovered or to pay the value of the same, without subsidiary imprisonment in case of insolvency, by reason of the character of the principal penalty imposed. So ordered. Arellano, C. J., Cooper, Willard, Mapa and Ladd, JJ., concur. McDonough, J., did not sit in this case.

OSJurist.org

G.R. No. 1156, January 05, 1903

ISABELO DE LOS REYES, PETITIONER, VS. FELIX M. ROXAS, JUDGE OF THE COURT OF FIRST INSTANCE OF RIZAL, RESPONDENT. D ECIS ION
WILLARD, J.: The complaint in this case does not allege that the court which convicted the petitioner had no jurisdiction to try the case. Neither does it allege that in the prosecution of the case there has been any affirmative action by the judge outside of his jurisdiction. It simply alleges that he has failed to take action; that he has refused to hear the witnesses for the defendant. This, if true, would constitute error, but it would be error committed by the judge in the exercise of a jurisdiction which he possessed. The remedy by certioraH does not apply to this case. The petition is denied. Arellano, C. J., Torres, Cooper, Mapa, and Ladd, JJ., concur.

OSJurist.org

G.R. No. 1163, October 27, 1903

THE UNITED STATES, COMPLAINANT AND APPELLEE, VS. BARTOLOME MAGTIBAY ET AL.., DEFENDANTS AND APPELLANTS. D ECIS ION
TORRES, J.: On November 24, 1902, the provincial fiscal of Batangas filed an information charging partolome Magtibay, Gregorio Bauan, and Juan de Dios with the crime of homicide. It was alleged that on the night in question the first two named, municipal policemen of the capital of the province, armed with loaded guns, left their barracks at the instigation of the third defendant, a corporal of police, and upon meeting an American named Sebastian Armitage on the road from the capital to the barrio of Santa Clara, discharged their guns at him, inflicting four gunshot wounds which caused his instantaneous death. The information also stated that while the body of Armitage was at the police barracks, the defendant Juan de Dios kicked it and addressed it with insulting and abusive language. An amended information was filed and allowed, and the trial proceeded. From the evidence taken it appears that, at about 10 o'clock on the night of November 3, the municipal policemen Crisanto Amposta and Simeon Dalauin left their barracks for the purpose of doing patrol duty in the town. They had reached a place near the house of Felix Aguirre, which stands on a street running toward the beach, when they were startled by hearing the report of a gun, quickly followed by another. The two took to flight and while running heard another shot. They did not, however, discover who fired the shots. About half an hour later, while on their way to the cockpit, they heard the sound of several more shots coming from the direction of the beach. On the same night of November 3, shortly after 10 o'clock, the defendants Bartolome Magtibay and Gregorio Bauan, municipal policemen, also left the barracks for the purpose of doing patrol duty in the barrio of Sambat. While on the road they heard several shots and accordingly proceeded to the market place, where some of the watchmen informed the defendants that these shots had apparently been fired in the western part of the barrio of Santa Clara, toward the beach, and that the policemen Amposta and Dalauin had gone that way some time before. Upon receiving this information, Magtibay and Bauan started toward the place indicated in search of their comrades. Before arriving at the bridge on the road leading to the beach the two defendants according to the statement made by them, were hailed by some one who asked them if they were policemen. Upon Magtibay's replying in the affirmative, they were fired upon, the flash of the revolver appearing at a distance of some 10 brazas . Bauan answered the shot by discharging his shotgun, his example being followed immediately by Magtibay. The stranger, who, it subsequently transpired, was an American named Armitage, fired his revolver again and Bauan returned the shot with another from his gun. The two policemen then returned to the town to report the occurrence. The body of the deceased, with the revolver containing five empty shells, in his right hand, was subsequently found at the place mentioned, by the police officers who went there. The result of the autopsy held upon the body of the deceased showed that four wounds had been inflicted upon himthree in the vicinity of the right nipple and one under the armpit, which fractured a rib and pierced the spleen, lungs, and important arteries. The scar of an old

wound was also found on the left hand. The wounds first referred to were gunshot wounds and, owing to the hemorrhage induced thereby, were the cause of the death of the deceased. The facts stated, fully established by expert testimony, constitute the crime of homicide, covered by article 404 of the Penal Code, as the death of the deceased Sebastian Armitage was caused by the four gunshot wounds in the breast, and none of the qualifying circumstances of the crime of murder having been present in the commission of the offense. The defendants Bartolome Magtibay and Gregorio Bauan admit having on the night in question discharged the guns with which, as municipal policemen of the town of Batangas, they were provided at a man who turned out to be the deceased Armitage, and who in turn fired his revolver at the defendants. It follows, therefore, that they are, by their own confession, the principals by direct participation in the homicide upon which this prosecution is based. The defendants Magtibay and Bauan pleaded not guilty and stated, in justification, that they discharged their guns at the deceased in self-defense and for the purpose of repelling the attack made upon them, at a distance of some 10 brazas , with a revolver. In their testimony they stated that the encounter occurred at the place where the deceased was killed and where his body was subsequently found. For the purpose of determining whether in the commission of the crime in question the exempting circumstance of self-defense exists, it is necessary to determine, from the evidence adduced, by whom the assault was commencedwhether by the deceased, Armitage, or by the defendants: As there were no eyewitnesses to the occurrence, and as the only surviving participants in the affray are the two who killed the deceased, in addition to weighing the admissions and exculpatory statements made by them, it is necessary for us to examine also the circumstantial evidence presented at the trial. The witnesses William Kelly, Jasper D. Curtis, J. J. Hugges, and Fred. Crosgrone testified that on the night referred to they heard three reports from a shotgun, followed immediately by three revolver shots, and that a few minutes afterwards they heard another report from a shotgun; and two of them testified that immediately thereafter they heard someone shouting, apparently calling for help. Vicente Dilay testified that shortly after 10 on the night in question he heard five or six shots, and about a quarter or half an hour afterwards heard several other shots, the number of which he was unable to state precisely. He stated that he could not tell whether the reports he heard were gunshots or revolver shots. Petronilo Marcial said that, after he had seen the defendants Magtibay and Bauan on the night in question, he heard shots similar to the four or five which he heard before he saw the accused, but fainter. These were followed by two heavy reports, and then by two others of less volume and that finally there was another loud report. Daniel Vanvorrhis stated that at 10.25 that night, while at the house of General Bell, he heard three shots, later followed by another, but that he could not say from what kind of weapon they had come. He testified that some fifteen minutes later he heard five more shots, apparently from a revolver, as they were discharged in rapid succession. Dr. Jose Lozada testified that about 10 o'clock on the night in question, he heard six or seven shots, and twenty minutes or half an hour later five others, but that he was unable to say from what class of weapons these shots were fired. This witness added that in his opinion it would have been impossible for the deceased to discharge his revolver after receiving the wounds which wore

inflicted upon him. Jose Villanueva, the municipal president, testified that some days before the occurrence the deceased made complaint to him because the policemen were bothering his wife about cleaning up the yard of their house, and stated that he would take it upon himself to punish them. The witness advised him to present a formal complaint against the policemen if he had any difficulty with them, and, in order to avoid trouble, to refrain from making resistance to them. The witness stated that the deceased had a dispute with Corpl. Joaquin Lopez of the police on the 30th of October preceding, owing to the latter's having compelled the driver of Armitage's carronmta, which had been stopped in the middle of the street, to pull over to one side. On this occasion, the witness stated, Armitage struck the policeman, who reported the case to his superior officer. This witness further testified that an American interpreter named McCoy, who was employed by Captain Bough ton, and who had been present at this quarrel, told him that the corporal of police who had been assaulted by Armitage was in the right. The evidence discloses beyond a doubt that the deceased was armed with a revolver on the night in question; and that when he and the policemen Bartolome' Magtibay and Gregorio Bauan met they discharged their respective weapons. As to the defendants, this fact has been admitted, and it has been shown that when Armitage's body was found he was holding in his right hand a revolyer containing five empty shells. At about 10 o'clock at night on the 3d of November, 1902, shots were heard on two occasions within an interval of about half an hour, according to the testimony of a number of witnesses. On the first occasion, patrolmen Amposta and Dalauin were attacked. These men did not defend themselves but preferred to flee from their assailant, whom they did not recognize. On the second occasion an assault was made upon the other policemen, the defendants herein, by the deceased Armitage. After considering all the evidence in the case, we reach the conclusion that the deceased, Armitage, was the assailant, and that he was the one who fired the first shot in the encounter between himself and the defendants. If it were true that the first three shots were discharged from a rifle or a shotgun, as some of the witnesses testified, OAving to the peculiar sound of the reports, and owing to the number of wounds in the breast, which caused the death of Armitage, it is to be believed that after receiving those wounds he would have been unable to discharge four or five shots from his revolver, and this is the opinion of the doctor who held the autopsy. Therefore, there being no evidence to the contrary, we find that Armitage was the assailant, as stated by the defendants in their testimony, which must be considered in the case as part of the evidence for and against them. Upon this supposition, and it not appearing from the record that sufficient provocation was given by the policemen so assailed, it follows that the three essential requisites prescribed by paragraph 4, article 8, of the Penal Code, must be considered in their favorthat is, an unlawful assault, a reasonable necessity for the employment of the means used to repel or impede the attack, and lack of provocation on the part of those assaulted. It is not necessary, in order that the circumstance of unlawful assault may be considered present, that the defendants should have been wounded by the shots fired at them. The accused gave the deceased no provocation to justify his firing at them, and they defended themselves with weapons similar to that used by the assailant, considering the distance, and we therefore concur in the opinion of the Solicitor-General that the defendants should be acquitted

on the ground that the homicide was committed in self-defense. After reaching this conclusion, it becomes unnecessary for us to pass upon the evidence concerning the holes in the hats the defendants wore on that night, or as to whether these holes were made by a bullet or by some sharp instrument, as stated by some of the witnesses who examined the hats. The other defendant, Juan de Dios, was acquitted by the court below, and as his acquittal has become final we have nothing to do with the judgment with respect to him. The court below, however, convicted the appellants, condemning them to two years and four months of prision correccional , with the accessory penalties, and each of them to the payment of one-third part of the costs of the prosecution. For the reasons stated above, we are of the opinion that the judgment appealed should be reversed and the defendants Bartolome Magtibay and Gregorio Bauan acquitted, with the costs of both instances de oficio. So ordered. Arellano, C. J., Cooper, Willard, Mapa, and McDonough, JJ., concur. Johnson, J., did not sit in this case.

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G.R. No. 1164, September 17, 1903

MANUEL ALDEGUER ET AL., PLAINTIFFS AND APPELLEES, VS. HENRY HOSKYN, DEFENDANT AND APPELLANT. D ECIS ION
WILLARD, J.: The only exception in this case was to the judgment, and the only question before us on the bill of exceptions is whether that judgment is supported by the findings of fact stated in the decision. It appears from the decision that Doiia Petrona Inarda bought the land in question in 1855 from Don Pablo Garcia. Dona Petrona lived on the land until her death, in 1876, when Don Manuel Aldeguer, their grandfather, was appointed guardian of Dofia Petrona's four childern, the present plaintiffs. In 1884 Don Manuel sold the land to one Martinez, who sold it to the defendant, Henry Hoskyn, in 1887. In the deed to Martinez, Don Manuel stated that he acquired the property by purchase from Don Pablo Garcia twenty-four years before. The court finds that this declaration was the only evidence in the case that Don Manuel had any title to the land. 1. The appellant defendant below assigns as error that the court found from parol evidence alone the existence of the contract of sale between Don Pablo and Doiia Petrona. It is true the court says that no documentary evidence was received on this point, but it is also stated that the existence of a Avritten contract was proved, as also its record in the registry of property, its attachment to a complaint filed in court by the plaintiffs in 1892, its subsequent destruction with other papers in the case, and the contents thereof. After such preliminary proof had been made, parol evidence of the contents of the document was properly received (Code of Civil Procedure, sec. 284). Such a ruling does not infringe section 795, par. 6, of said Code, which provides "that nothing in this act contained shall be so construed an to divest or injuriously affect any property right that lias already become vested under existing law," even if under article 1221 or other provisions of the Civil Code, after the destruction of the instrument, such parol evidence of its contents could not have been given. The general rule is that there is no vested right of property in rules of evidence. 2. The recital in the document of sale by Don Manuel to Martinez proves nothing against the plaintiffs, either according to the. former law (Civil Code, art. 1218) or according to the new Code (sees. 277 et seq.), and the claim of the appellant to the contrary can not be sustained. 3. It is claimed by the appellant that he has acquired title by prescription, but 4he defense of the statute of limitations, to have been available to the defendant in this case, should have been set up in his answer. This was not done. The court, therefore, made no finding thereon. 4. The appellant has moved for a new trial in this court under section 497, par. 2, of the Code of Civil Procedure, on the ground of newly discovered evidence. This evidence is to

the effect that one Bonifacio Garcia was never the owner of the land in question and never sold it to the mother of the plaintiffs. Waiving all questions as to the sufficiency of the showing of due diligence by the defendant, and as to the failure to procure the affidavits of the proffered witnesses, the motion must be denied on the ground that such evidence is not "of such a character as to probably change the result." The court finds that the mother of the plaintiffs bought the land from Don Pablo Garcia. Evidence that Bonifacio did not own it would be immaterial. Such evidence would merely.strengthen the decision of the court. It would not overthrow it. But the appellant says that the plaintiffs in their complaint alleged that the mother bought the property of Don Bonifacio. What took place during the trial we do not know, but it is certain that evidence was introduced showing that the purchase was made from Don Pablo, because the court has so found. We must presume that this was done without objection on the part of the defendant, for no exceptions relating to the matter appear in the record. If such objections had been made, the court had power to allow the plaintiffs to amend their complaint by striking out the name of Bonifacio and inserting that of Pablo. The motion for a new trial is denied and the judgment of the court below affirmed, with costs of this instance against the appellant, and after the expiration of twenty days, reckoned from the date of this decision, judgment shall be rendered accordingly, and the case is returned to the court below for compliance therewith. Arellano, C. J., Torres, Cooper, Mapa, and McDonough,JJ., concur.

OSJurist.org

G.R. No. 1166, September 29, 1903

THE UNITED STATES, COMPLAINANT AND APPELLEE, VS. FREELAND MCCRAY, DEFENDANT AND APPELLANT. D ECIS ION
TORRES, J.: On December 18, 1902, an information was filed by the provincial fiscal in the Court of First Instance of Batangas, charging Freeland McCray with the crime of homicide, in that, at about 10 o'clock at night on the 17th of December, 1902, in the course of a quarrel with one John King in the house of a man named Harvey, located in the town of Batangas, capital of the province of the same name, he fired several shots at King with a revolver, inflicting upon him three wounds, two of which were mortal, causing his death within a few minutes. The testimony of the Army physician who held the autopsy on the body is to the effect that the deceased received one bullet in the left side, the ball penetrating the left lung, and another in the back, near the liver, perforating the stomach, and that he sustained a third superficial wound on the left forearm. The physician stated that in consequence of the first two wounds, which were necessarily fatal, King expired shortly afterwards in the hospital to which he was taken. The facts stated constitute the crime of homicide, John King having died as a result of the wounds inflicted upon him with a revolver in the course of the quarrel with the defendant, Freeland McCray. The evidence does not disclose the existence of any qualifying circumstances which would justify the classification of the crime as murder and the imposition of the corresponding penalty, as the wound in the back of the deceased was due not to the first shot fired by the aggressor but to a subsequent shot fired in consequence of a similar assault on the part of the deceased. The defendant, McCray, pleaded not guilty and alleged that he killed the deceased in selfdefense. However, notwithstanding this exculpatory statement, two eyewitnesses affirm that while the accused, McCray, was in Harvey's house, John King arrived there, and that after an altercation between them McCray went out into the yard, challenging King to come out and engage in a fist fight with him. King remained in the house, held back by the witness Holland, and did not answer. McCray then re-entered the house, whereupon one Purple seized him by the arms and pushed him toward the kitchen, in order to prevent his approaching King. The latter thereupon drew his revolver and fired at McCray. He then endeavored to leave the house; but McCray, who had been wounded in the right side of the neck, as shown by the testimony of the physician who examined him, in turn drew his revolver and shot at King. The latter managed to make his way into the yard of the house, the two continuing to fire at each other until King, who had gone into the street, fell to the ground. The witness William Scott, who was also present at the occurrence, testified to the same effect, although he said that the first shot which he heard was fired while he was standing with his back toward the combatants. He states, however, that it was fired at King, and be therefore believes that the accused, McCray, was the aggressor. This statement of Scott is contradicted by the testimony of the two other witnesses who were present at the occurrence.

The accused in his sworn testimony stated that he and the deceased were friends and lived in the same house, but that in consequence of some trouble between them concerning a woman he had gone to live in another house, as he knew that whenever King made his mind up to do a thing he always endeavored to carry it out; that it is true he had an altercation with King in the house in question and that he challenged the deceased to a fist fight, which ' challenge King did not accept; that upon returning to the house and while he was prevented by Purple from approaching King, the latter, with the remark that he was going to kill him, fired two shots at him, and that on this account he in turn fired at King. The evidence in the record is contradictorv. Two witnesses testify that they heard King say in the hospital, before dying, that he had fired three times and that he was the one Avho fired the first shot. Two other witnesses, however, testify that they heard King say, shortly before expiring, that the defendant, McCray, was the one who fired the first shot. The judge below, on January 3 of the current year, convicted the defendant and condemned him to ten years of prision mayor, with the accessory penalties, and to the payment of costs. The crime of homicide having been proven and the defendant, McCray, having admitted that he was the one who caused the violent death of John King, it only remains for ,us to decide whether in the commission of the crime there was in effect a complete exemption from criminal responsibility on the ground of self-defense, or merely an incomplete exemption. Of the three requisites prescribed by article 8, section 4, of the Penal Code, it is evident in this case that there was an unlawful aggression on the part of the deceased, John King, who fired two shots at the defendant, McCray, one of which wounded him in the neck. It can not be questioned that this aggression was entirely unlawful, as there was no motive or reason which could possibly justify it. The witness Scott, when testifying that he believed the attack was commenced by the defendant, McCray, and not by King, gave as a reason for his belief the fact that he heard a firearm discharged behind him and at King. John L. Woodruffe and B. Harviner, two other witnesses, testify that they heard King say, shortly before his death, that it was McCray who fired the first shot; but against the testimony of these witnesses we have that of the witnesses Chapell and Haywood to the contrary; that is, they testify that they heard King say it was he who fired the first shot, and this statement is corroborated by the testimony of two eyewitnesses to the affray; and it must therefore be considered as proven that the assault was commenced by King. Upon this supposition it is undeniable that the accused had a right to defend himself against the unlawful attack upon him, and which put his life in imminent peril, particularly when it is considered that he had already been wounded by one of the two shots fired at him by the deceased; and hence it follows that there was a reasonable necessity for the employment of a weapon similar to that used by the assailant, for the purpose of impeding or repelling the attack of the latter. With respect to the third requisite of lack of provocation on the part of the person assaulted, the evidence discloses that this circumstance in favor of the defendant does not exist. It is a fact fully proven in the record that McCray had repeatedly challenged the deceased to fight and that, the challenge not having been accepted, he again entered the house in an aggressive attitude and endeavored to approach King, but was prevented from doing so by the witness Holland, who seized him by the arms and pushed him toward the kitchen. It is evident,

therefore, that provocation was given by the accused. Consequently, there being present only two of the three requisites established by the criminal law for complete exemption of criminal responsibility, the accused can avail himself of only the incomplete exemption granted by section 86 of the Penal Code. The penalty to be imposed upon the accused is therefore that immediately inferior to the one prescribed for the crime of homicide, and should be imposed in its medium grade. For the reasons stated we are of the opinion that the judgment appealed should be affirmed, with a reduction of the penalty, however, to eight years and one day of prision mayor and the accessories of suspension from all public office and the right of suffrage during the period covered by the penalty, to the payment of 1,000 Insular pesos to the heirs of the deceased, and to the costs of both instances. Arellano, C. J., Cooper, Willard, Mapa, and McDonough, JJ., concur.

OSJurist.org

G.R. No. 1170, September 17, 1903

VICENTE CRUZ ET AL., PLAINTIFFS AND APPELLANTS, VS. MAXIMO JOAQUIN, DEFENDANT AND APPELLEE. D ECIS ION
WILLARD, J.: In this case the plaintiffs rented in November, 1898, two fisheries to the defendant for three years; upon the expiration of that term they brought this action in the court of a justice of the peace to recover possession. The decision of that court and of the Court of First Instance, to which the case was appealed by the plaintiff, were favorable to the defendant. The plaintiff has brought this case here by bill of exceptions. There was no motion for a new trial below, and the only question before us is whether the findings of fact made by the judge support the judgment. In the month of November, 1901, the plaintiff Vicente de la Cruz with his son and coowner, Don Juan Mendoza, and the defendant executed a public instrument, by which the former assigned and transferred to the latter the right of redemption and all other rights, actions, and obligations which they had or could have in the said estates. The purchase price was f 10,000, $5,500 of which was paid by the defendant to the plaintiff Don Vicente and his son Don Juan, and the balance of $4,500 was to be retained by the defendant with which to repurchase the lands from Dona Josefa. It is claimed by the defendant that this deed gave him full legal title to all the land in controversy, and that, being now the owner thereof, he can not be evicted by his landlords, who have transferred their title to him. It is true that the deed from the plaintiff Vicente to the defendant speaks of a repurchase of the "lands from Dona Josefa, but the only evidence to show that she had any right whatever in this property is found in the contract of partnership between her and her coplaintiff entered into December 6, 1897, and referred to in the decision of the court. It appears therefrom that the plaintiffs had agreed to form a partnership for the operation of the two fisheries owned by Don Vicente, but it was a condition of this agreement that the partnership should not be formed, until Dona Josefa had advanced to Don Vicente as a simple loan $4,500. This having been advanced, the partnership contract was made. The sixth, seventh, and eighth clauses of the contract are as follows: "Sixth. The title deeds of the property will remain in possession of Dona Josefa, and, although Don Vicente may dispose of or encumber the same, the latter is bound, notwithstanding, to acquaint Dona Josefa therewith. She shall have preference upon conforming to the conditions of said sale or incumbrance; and if she shall not agree thereto, she may demand the profits for the balance of the period of the duration of the partnership upon a basis of what may have been earned in the preceding year, and the partnership shall in consequence be dissolved.

"Seventh. For the purposes of the preceding condition, Dona Josefa binds herself to deliver to Don Vicente the title deeds at all times and whenever he may need them to effect the sale or incumbrance of whatever nature. "Eight. Subject to the agreement set forth in the sixth condition, the partnership shall continue eight years from this date, and upon the dissolution thereof Don Vicente shall repay the sum of four thousand five hundred pesos, receipt whereof he acknowledges in this instrument, and the term of the partnership shall in no case be extended." We do not think that these clauses show a sale with right to repurchase defined in article 1507 of the Civil Code. (1) The transaction by which the money was advanced is called a simple loan. (2) There are no words in the contract showing a transfer of the title to Dona Josef a; the mere delivery of the title deeds did not accomplish this. (3) During the partnership, Don Vicente had the right to sell or encumber the property, which he would not have in an ordinary contract of " retracto ." The condition that, when the partnership was dissolved, Don Vicente should repay the sum lent can not be considered as providing that, if he it id not thus repay it, he should immediately lose all interest in the land, an inevitable result under article 1509, if such a contract of sale and repurchase existed. The contract between the parties was nothing more than one of partnership, and it gave the plaintiff Dona Josefa no right of any kind in the lands themselves, so that when in February, 1900, Vicente de la Cruz and his son sold to the defendant all their interest in the land, he acquired the full ownership thereof. Whatever claims Dona Josefa had or lias against the coplaintiff for the recovery of the loan of $4,500, or for damages for breach of the term of the contract, are purely personal in their character and can not affect the land in controversy. Any right which Dona Josefa or Vicente de la Cruz may have to recover from the defendant the $4,500 retained by him out of the purchase price, is also purely personal in its character and can not affect the said lands or be affected by the result of this suit. It is claimed by appellant that the deed of February 15, 1900, from Vicente de la Cruz to the defendant is not a conveyance of the lands themselves, but an assignment of a right to redeem. The clause in question is as follows: "That they assign and transfer in a strictly legal and valid manner the right of redemption and all other rights, actions, and obligations which they now have or might have in the lands," etc. This is a conveyance of all their title or interest in the property. The claim of the appellant that the lands sued for are not the lands bought by the defendant from the plaintiff can not be sustained. (1) The appeal by the plaintiff from the judgment of the justice of the peace vacated that judgment, and the case stood for trial in the Court of First Instance as if it had never been tried before. (Secs. 75, 88, Code of Civil Procedure.) The ocular inspection of the premises by the justice of the peace became, therefore, without effect. The justice's certificate as to the result of the inspection was not competent evidence in the trial before the Court of First Instance.

The justice should have been called as a witness. (Ismael vs. Ganzon, 1 Off. Gaz., 591.) [1] (2) The court found in its decision that the fisheries rented by the plaintiff to defendant were the ones which he had bought from the plaintiff Vicente de la Cruz. He says that the defendant claimed that "he had acquired full and absolute ownership of the said lands" and finds that this allegation is true. There is no motion for a new trial, and the only question is whether the judgment is supported by the findings of fact. We can not, therefore, consider whether this finding of fact was supported by the evidence or not. The judgment of the court below is affirmed, with costs of this instance against appellants, and, after the expiration of twenty days, reckoned from the date of this decision, judgment shall be rendered accordingly, and the case is returned to the court below for compliance therewith. Arellano, C. J., Torres, Cooper, Mapa, and McDonough, JJ., concur.

[1] Page 347, supra .

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G.R. No. 1171, September 09, 1903

ROBERTO AND JOSE T. FIGUERAS, PLAINTIFFS AND APPELLEES, VS. MANUEL VY-TIEPCO, DEFENDANT AND APPELLANT. D ECIS ION
TORRES, J.: On the 9th of May, 1902, Roberto Figueras and Jose T. Figueras brought an action in the Court of First Instance of Iloilo against a Chinaman named Manuel Vy-Tiepco, for the recovery of the sum of $1,544 and costs. The facts set forth in the complaint were that on January 29, 1900, it was agreed between the parties that the defendant should build a house on Rosario Street, Iloilo, in accordance with plans drawn for that purpose, and that the construction of the house should be completed within four months in strict conformity with the terms and conditions of the contract signed by the defendant Vy-Tiepco and the plaintiff Jose Figueras; that the defendant did not build the house in accordance with the agreement, but left many parts thereof uncompleted, whereby the value of the work performed was diminished in the sum of f> 1,544, as shown by the statement of the items of uncompleted work attached to the complaint; that, a demand having been made upon the defendant by the plaintiffs for the performance of the contract in the manner agreed upon, the defendant refused to do so, thereby causing the plaintiffs damages in the sum expressed. The defendant presented a demurrer to the complaint and, after argument thereon, it was agreed between the parties litigant that the defendant should withdraw the demurrer and that the plaintiffs would present the original plan in accordance with which the house was to have been constructed and of which the attorney for the plaintiffs at that time exhibited a copy. The defendant on July 24, 1902, filed his answer to the complaint. In it he denied the facts alleged in paragraphs 2 and 3 of the complaint, and stated that while it was true that in 1900 he had agreed to build the house on Rosario Street, Iloilo, for the plaintiffs, upon the condition that it was to be terminated within four months, it was to be constructed in accordance with the detailed plans prepared for that purpose, and that this agreement had been reduced to writing in a contract signed January 29, 1900; that he had fully performed the contract within the term fixed, with the exception of two arches between the dining room and the sitting room in the lower story, and that these arches were omitted by order of the plaintiff Roberto Figueras, who, in the absence of Jose T. Figueras, had charge of the inspection of the work; that the omission of the arches in question had been directed because of the intention of the plaintiffs to use that part of the premises as a storeroom, which they did in fact do after the work was completed and the building delivered to the owners; that the latter paid the defendant $1,000, the balance due, in accordance with the agreement, without making any claim whatever; that for other work performed by the defendant, not provided for in the agreement, the plaintiffs, when the building was finally turned over to them, paid the defendant the additional sum of $600; and that the plans presented by the plaintiff were not the plans to which the contract referred and in accordance with which the house was built. The answer terminated by asking for judgment in favor of the defendant, with costs to the plaintiffs. The defendant excepted to the judgment rendered and prepared a bill of exceptions. This bill was allowed by the trial judge, and the case was brought to this court for determination solely

of the questions of law raised therein. We can not review the evidence or make findings upon the controverted facts, as no motion for a new trial was made in compliance, with the provisions of section 497 of the Code of Civil Procedure. The decision of this court below was rendered in accordance with the prayer of the plaintiffs, upon the supposition that the defendant had failed to complete at least eleven items of the work of construction of the house which he had by contract undertaken to build. The court based this conclusion upon the copy of the plan presented in evidence by the plaintiffs, notwithstanding the fact that the defendant objected to its admission upon the ground that it was not the original plan to which the contract referred. It does not appear to have been shown that the plan offered in evidence was the original plan which formed part of the contract. On the contrary, the plan produced shows details and deficiencies which demonstrate conclusively that it was not the one which was to be followed in the construction of the house the defendant agreed to build for the plaintiffsthat the original plan was not produced in evidence and that the plan presented had been drawn subsequently. Without the original plan, it is impossible to hold that there has been any broach of the contract; that the contractor failed to perform the work specified in the statement presented (p. 1.3) or that the plaintiffs, as owners of the house1, are entitled to recover from the defendant the amount claimed as the value of the work alleged to have been omitted. The court below accordingly erred in rendering judgment in favor of the plaintiffs, upon the ground that the construction of the house was not completed in accordance with the plan exhibited by the plaintiffs. The trial judge has taken as the basis of his decision a document which was not the one agreed upon and which was properly objected to by the defendant, since it was not shown that it was the original plan referred to in the written contract entered into by the parties thereto. For the reasons stated, avc are of the opinion that the judgment below must be set aside, and, after the expiration of twenty days from the date of the registry of this decision, judgment will be entered accordingly. The case will be returned to the court below for anew trial, at the instance of the plaintiffs, with the costs of this instance to the latter. So ordered. Arellano, C. J., Cooper, Willard, Mapa, and McDonough, JJ., concur.

OSJurist.org

G.R. No. 1174, August 03, 1903

THE UNITED STATES, COMPLAINANT AND APPELLEE, VS. LEON ANGELES ET AL., DEFENDANTS AND APPELLANTS. D ECIS ION
WILLARD, J.: It is claimed by the attorney for the defendants in this case that they were convicted without being heard in the court below. This claim is based upon the fact that the record does not show affirmatively that, after the Government rested its case, the defendants were informed that they could present witnesses in their own behalf. The record does show, however, that on January 8 the defendants were asked if they desired to defend themselves or to have counsel assigned for them. They answered that they would reserve their decision, and on January 12 stated that they elected to defend themselves. On January 8 they were asked if they desired to have witnesses summoned in their behalf. They answered that their families would bring them. At the trial they were notified by the judge of their right to cross-examine the witnesses against them, and each one of said witnesses was cross-examined by one or more of the defendants. In view of these facts, we can not reverse this judgment for the reason suggested by the counsel for the defendants. Upon the merits of the case the evidence is sufficient to justify the judgment, which is affirmed, with costs of this instance against the defendants. Arellano, C. J., Torres, Cooper, Mapa, and McDonough, JJ., concur.

OSJurist.org

G.R. No. 1175, August 27, 1903

THE UNITED STATES, COMPLAINANT AND APPELLEE, VS. TOMAS HINTO SANTOS ET AL., DEFENDANTS AND APPELLANTS. D ECIS ION
WlLLARD, J.: On June 1, 1902, a band composed of some twenty-five men (it does not appear clearly whether they were insurgents or brigands, but that is a matter of indifference for the purpose of this decision), armed with guns, revolvers, and bolos, had an encounter, between the towns of Cardona and Binangonan, Rizal Province, with some American cavalry soldiers stationed at Tanay. They succeeded in capturing five of these soldiers and subsequently took them to a place called Mount Aduas. On the road the same band captured Agapito Nicolas and Deogracias Paynon, whom they also carried to Mount Aduas, where the former was held for twenty-four hours and the latter for a week. Both these men testified to having seen the accused, who was known to them before the occurrence, as one of the band which captured them, and testified that he was armed with a revolver. At the time of their capture they also saw the five Americans in the hands of this band. When the witness Nicolas regained his liberty, he observed that the Americans were still held as prisoners by the band. The witness Paynon says that he saw the Americans every day during the week of his detention, and that during the last night he passed as a prisoner with his captors he saw five of the band, among them the accused, armed with revolvers and guns, take the Americans from the house in which they were all living and lead them away. About daybreak the next morning the captors returned alone, without the Americans, who were not again seen alive by the witness. He testifies that on that day Eusebio de la Cruz and another member of the band called Marcelo de la Cruz, told him that the Americans had been killed by the two mentioned in the presence of the accused and the other three men in the band. The witness was liberated by his captors on the night of that same day, and testifies that he subsequently saw the bodies of the five Americans at Mount Aduas when he went there in company with some members of the Constabulary. Another witness, Rafael Manguna, states that he was present in the justice court at Antipolo when the accused testified in the preliminary examination, and that at that time the accused testified that he was taken from his house and carried away, together with the five American soldiers, to Mount Aduas, where these Americans were killed, while bound, by Guillermo Hinto Santos, Eusebio Cagayan, and Marcelo de la Cruz. The accused did not put any witnesses on the stand in his defense, but stated in the course of the trial that everything the witnesses for the Government had said was true, and added under oath that when he was informed that Eusebio Cagayan had decided to kill the five Americans he objected, saying that in his opinion this should not be done because it was against the law; that the best thing to do would be to propose to the president of the town the exchange of the Americans for any prisoners belonging to his band whom the president might have, and that Eusebio, striking him, replied that if they allowed the Americans to live they would increase the number of their enemies. If the testimony of the witnesses for the prosecution is true, as admitted by the accused himself, it must also be true that he was a member of the band which captured the Americans.

It is also true that he, armed with a revolver, was present at the time the Americans were killed, as a member of that band, and it is also true, finally, that the victims were killed while bound and therefore unable to defend themselves. It is of no importance that the accused first opposed the proposition to kill themsupposing that this be truefor he finally assented to it and sanctioned the act with his presence; nor is it of any importance that lie did not himself strike the blow or blows by which the prisoners were killed. It is sufficient that he was present at the act, augmenting with his arms and presence the power of the band, thus aiding the common act of all, for him to be considered as a principal, by direct participation, in the crime prosecuted. The fact that the prisoners were bound when they were killed proves the existence of the qualifying circumstance of alevosia. The evidence shows that the defendant and his companions, after keeping their prisoners for a week or more, took them one night about midnight from the house where they were kept, carried them some distance into the woods, and there killed them, returning after two hours or more. These facts show the existence of the aggravating circumstance of known premeditation. It can not be doubted that their captors had formed the intention of killing their prisoners when they took them from the house. The time elapsing between that event and the actual killing was sufficient to constitute that period of reflection which must be present in order that this circumstance may exist. (United States vs. Ricafort, decided Mar. 19, 1902.) [1] The judgment of the court below imposing the penalty of death is hereby confirmed, and it will be carried into execution by the said court in accordance with the provisions of the Penal Code relating to that subject. Arellano, C. J., Torres, Cooper, and McDonough, JJ., concur.

[1] 1 Phil. Rep., 173.

DISSENTING MAPA, J.: I concur in the classification of the crime and in the judgment that the accused is guilty, but am of the opinion that the aggravating circumstance of deliberate premeditation does not exist in this case, and that the proper penalty is that of life imprisonment ( cadena perpetua).

OSJurist.org

G.R. No. 1178, August 27, 1903

THE UNITED STATES, COMPLAINANT AND APPELLEE, VS. BONIFACIO FULGENCIO, DEFENDANT AND APPELLANT. D ECIS ION
WILLARD, J.: Eulogio La Orinario and Gregorio Eivera both testified that the defendant, a Manila policeman, demanded of Eulogio 20 pesos. The testimony of these witnesses, as it appears in the record, is somewhat confused, but in view of the fact that the defendant presented no evidence, and that the statements of these two witnesses are therefore uncontradicted, we consider them sufficient to establish the fact of this demand. Eulogio, telling the defendant and matter to the authorities, and by which he in the afternoon of the almost in the act, with the marked his companions that he would get the money, reported the them was furnished with two marked bills of 5 pesos each, same day gave to the defendant. The latter was arrested bills in his pocket.

Eulogio and his companions had overturned a barrel from a carreton and scattered its contents in the street. The defendant and his companions had, on this account, either arrested the witness or threatened to do so unless money was paid to them. The offense falls within article 383 of the Penal Code. The court below, without appreciating any aggravating circumstances, sentenced the defendant in the maximum degree. This was error. We fix the penalty at the maximum of the medium degree. Before the trial commenced the case was dismissed as to the defendants Medina and Pinon. Why this was done does not appear. But, whatever the reason may have been, such dismissal can not be alleged by the defendant, as a ground for acquitting him of an offense of which he has been proven guilty. The judgment below is reversed, and the defendant sentenced to four months and twenty days of arresto mayor, and a fine of 30 pesos, with the costs of both instances against him. Arellano, C. J., Torres, Cooper, Mapa, and McDonough, JJ., concur.

OSJurist.org

G.R. No. 1178, November 17, 1903

CARMEN OLIVARES Y TELLO, PLAINTIFF AND APPELLEE, VS. HOSKYN & CO. ET AL., DEFENDANTS AND APPELLANTS. D ECIS ION
WILLARD, J.: Don Eduardo Olivares on March 30, 1897, was the recorded owner of the real estate in question. On January 31, 1900, he transferred it to one Fleming, who, on March 8, 1900, reconveyed it to Olivares, reserving a mortgage Hen thereon for 6,500 pesos. This deed was recorded on October 22,1900. Qn March 31,1900, Olivares executed to the plaintiff a public instrument, which the court below held to be a mortgage on the property in favor of the plaintiff for 6,000 pesos. This instrument was never recorded. On November 22,1900, the defendants commenced an executive action against Eduardo Olivares to recover 2,958.52 pesos, the amount due on a promissory note. In this action the real estate in question was seized, but the writ of execution was never recorded in the office of the register of property. The defendants having, on February 15, 1901, obtained a judgment of remate, were proceeding to the sale of he property when the plaintiff presented a complaint in intervention, claiming a better right than the defendants to the proceeds of the sale. The court below so held and postponed the payment of the defendants' debt to that of the plaintiff. The defendants excepted to the judgment and have brought the case here for review. The first, third, and fourth assignments of error are based upon the proposition that the document of March 31, 1900, in favor of the plaintiff, was not a mortgage, because it had never been recorded and that it should never have been received in evidence, the appellant citing as infringed articles 23 and 389 of the Mortgage Law and article 1875 of the Civil Code. For the purposes of this appeal, we may assume that this document did not constitute a mortgage. It, however, properly construed, did evidence, we think, a debt in favor of the plaintiff and against Don Eduardo for 6,000 pesos. It is somewhat contradictory in its terms, but it recites that he had received from the plaintiff 6,000 pesos to manage or handle; that he had invested it in this building, and that he had executed a private document in which he declared that the property belonged to the plaintiff. He then creates this mortgage to secure the rights stated in the former obligation. It is added that this estate shall respond for the payment of this mortgage and interest thereon, and it creates an additional mortgage of 600 pesos as security for costs. He had received this money to administer. He had taken the title to the property in his own hands and had created an incumbrance thereon of 6,500 pesos, which was prior to the claim of the plaintiff. According to the findings of the court, which in this respect are contrary to the recitals of the instrument, the money of the plaintiff was used only to aid in the construction of buildings on the lot which was bought with his own money, he thereby apparently becoming a debtor for the amount so used. In view of these and other facts, we think that his intention by this instrument was to acknowledge a personal liability for 6,000 pesos and to secure it by a mortgage on the land. Neither of the parties had any recorded title to or interest in the land in question. Their respective rights, therefore, are not determined by articles 1923 and 1927 of the Civil Code, but

by articles 1924 and 1929 of the same Code. The debt of the plaintiff was evidenced by a public document dated March 31, 1900. The debt of the defendants was evidenced by final judgment dated February 15,1901. By the terms of article 1924, paragraph 3, the plaintiff is entitled to a preference over the defendants. Had the conflicting claims of these parties been presented in a proceeding in bankruptcy, there is no question but that the above result would have been reached. It is said, however, that article 1924 is applicable only to such cases and to the settlement of the estates of deceased persons, and can not be applied to a suit like this between two persons as to their rights of preference in the distribution of the proceeds of the sale of a specific piece of real estate. There is nothing in the Spanish law of civil procedure, under which this proceeding was commenced, to indicate that the intervention by a creditor could not be made, whether he had any lien on the property in question or not. A general creditor who claimed that in the distribution of any of the property of the common debtor he had a better right than the plaintiff in the executive action could intervene therein. And the supreme court of Spain, in allowing such intervention, has applied, for the purpose of determining the priorities, the provisions of article 1924 and the provisions of the Partidas, which were substantially the same. (Judgment of October 6, 1886, and judgment of January 4,1894.) In the case of Martinez vs. Holliday, Wise & Co. (1 Off. Gaz., 526 ) [1] we adopted the rule thus laid down and applied the provisions of article 1924 in a case which can not be distinguished from this one. We have said that the levy in question was not provisionally inscribed in the registry of property. We construe the findings of the court as so stating. If, however, that construction is wrong the result would be the same. (Martinez vs. Holliday, Wise & Co., supra .) The decision states that this intervention was one of ownership. In the same decision, however, it considered it is an intervention of preference in payment. The second assignment of error can not, therefore, be sustained, as the judge below' did not receive the document of March 31, 1900, to prove ownership, but only to prove such preference. The judgment of the court below is affirmed with the costs of this instance against the appellant, and, upon the expiration of forty days, reckoned from the date of this decision, judgment shall be rendered accordingly and the case is returned to the court below for execution. Arellano, C. J., Torres, Cooper, Mapa, and McDonough,JJ., concur. Johnson, J., did not sit in this case.

[1] 1 Phil. Rep., 194.

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G.R. No. 1179, August 18, 1903

THE UNITED STATES, COMPLAINANT AND APPELLEE, VS. ARTHUR FITZGERALD, DEFENDANT AND APPELLANT. D ECIS ION
TORRES, J.: Between 11 and 12 o'clock on the night of November 15, 1902, for some reason which does not appear, hard words passed between the defendant, Arthur Fitzgerald, and the deceased, Charles Marsh, followed by a heated dispute. This took place in the distillery situated near the government building in the city of Iloilo. On this account another American, Samuel Brown, ordered the two to leave the premises, stating that he would not allow such conduct there. Marsh then stepped into the interior patio but Fitzgerald refused to go out. Brown then seized him and pushed him toward the door, and told him to go to the ice plant near by. The accused, however, refused to go, and, remaining in the distillery, continued to insult Marsh, who thereupon returned, and, approaching the accused, struck him a blow which knocked him down. Fitzgerald, however, immediately arose, and saying, "I will show you sons of bs," ran toward the ice plant in search of a revolver which he had, and immediately returned, shouting, "Who's the boss now?" Just at this time Marsh stepped out of the distillery. He had scarcely walked 15 feet when, hearing the accused utter these words, he turned to look at him. Just at this moment the accused fired at him with the revolver. The bullet took effect in the left side, just below the nipple. The wound received was necessarily of a mortal character, and Marsh died in less than two hours. The bullet had pierced the diaphragm and traversed the left kidney, and remained embedded in the left lumbar region next to the vertebral column, according to the statement of the physician who held the post-mortem examination. After this attack the accused turned toward two other Americans who were in the distillery, named Walter W. Dun and Enloy B. Withers, and fired another shot at them, but without effect Then shouting, "Where is the other son of a b," he commenced to search for some one, apparently for Brown. He happened to run across the fireman and aimed his revolver at him, but the fireman seized him by the arm, and another workman there who came running up on hearing the noise succeeded in taking the revolver from the accused, who then returned to his house, where he was later arrested. The facts stated, fully proven by the testimony of several eyewitnesses and of several other witnesses who learned the facts and who saw the body of the deceased, constitute the crime of homicide, defined and punished by article 404 of the Penal Code, there not having occurred in the commission of the crime any qualifying circumstance to elevate it to a higher category. The defendant plead not guilty, and alleged that after he had been knocked down and beaten by Marsh he got up and tried to escape, believing that he was followed by Marsh and by other men in the distillery, and for that reason, upon stepping out of the ice plant, he fired in the air with a revolver which he had found in a drawer there, until he was seized by two Filipinos, who took the weapon from him, and that just at this moment the reyolver went off again; that he did not aim at the deceased and had no intention to do him any harm; that when he stepped out of the ice plant he saw something under the porch of the government building, and then it was that he raised his hand with the revolver to fire in the air, but does not know which way

the bullet went. The judge below found the accused guilty and condemned him to sixteen years of reclusion temporal in Bilibid Prison, Manila, or in any other prison designated by law, with the corresponding accessories, and to the costs of the trial. Against this judgment the accused appealed. Notwithstanding the denial and exculpatory allegations of the accused, his guilt as principal by direct participation of the violent death of Charles Marsh is unquestionable, for this fact is proven in the record by the testimony of several witnesses who saw what occurred, and even heard the threatening words uttered by the accused. The record does not contain sufficient evidence to indicate that the accused was a habitual drunkard. On the contrary, several witnesses affirmed that he was not in the habit of getting drunk, and therefore, apart from the legal presumption in his favor, we are of the opinion that we should consider in his behalf the mitigating circumstance No. 6 of article 9 of the Code, there being no evidence that the vice of drunkenness was habitual with the accused. We can not, however, consider the other mitigating circumstance of lack of intention to cause so great an evil to the deceased, because one who attacks another with so deadly a weapon as a revolver must know that the most probable result of such an aggression is the death of the person attacked. We can not consider the presence of the other mitigating circumstance set up by the defense that is, that there was provocation or threats on the part of the deceased. It has not been proven that this circumstance was present, for it has been impossible to determine the origin of the affray; nor can we consider the circumstance of passion and obfuscation, because, although it is true that the accused was knocked down, this was the.result of the quarrel and fight between the two. When men quarrel and come to blows we can not say that one of them, with respect to the other, acted under the impulse of passion and the loss of self-control, as this circumstance must be the result of powerful motives which impel the defendant to commit the act. Finally, we can not consider tJiat in the commission of the crime there were present any of the circumstances which exempt the defendant from criminal responsibility, in view of the heated dispute and the insults which were bandied between the defendant and the deceased. Furthermore, the law does not consider drunkenness as a complete defense, but merely as a mitigating circumstance, because one under the influence of liquor can not be regarded as entirely bereft of sense and reason. For the reason stated, and considering the concurrence of one mitigating circumstance only, without any aggravating circumstance to offset its effects, we are of the opinion that the judgment appealed should be reversed, and that the defendant should be condemned to twelve years and one day of rcclumon temporal, with the accessories of absolute, temporal disqualification during its full extent, and subjection to the vigilance of the authorities during the period of the penalty and for an equal period there-after, to count from the time of the termination thereof, and to the payment of 1,000 pesos to the heirs of the deceased and to the costs of both instances. So ordered. Arellano, C, J., Cooper, Willard, Mapa, and McDonough, JJ., concur.

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G.R. No. 1185, April 04, 1903

THE UNITED STATES, COMPLAINANT AND APPELLEE, VS. VENTURA BETIONG, DEFENDANT AND APPELLANT D ECIS ION
LADD, J.: The complaint charges the defendant with the offense in aiding and abetting a band of brigands by supplying them with food. (Act No, 158, sec. 4) Upon being arraigned in the Court of First Instance, the defendant, who had no cousel, having electedto defend himself, stated that the facts charged in the complaint were true, by that he supplied the brigands with food through fear that if he did not do so they would kill him. Without hearing any evidence, the court thereupon found the defendant guilty, and sentenced him to ten years' imprisonment What the defendant stated when arraigned amounted to a denial of criminal responsibility, based on facts which, he conceived, constituted a lawful excuse for his conduct. It was virtually a plea of not guilty. (See United States vs. Padilla, decided November 18, 1902.) It is quite apparent that the court regarded it as a plea of guilty, and for this error the cause must be sent back for a new trial. The place where the alleged crime was committed is not stated in the complaint. This defect should be supplied by amendment. The judgment of the court below will be reversed and the cause returned to that court for proceedings in conformity with this opinion. So ordered. Arellano, C. J., Torres, Cooper, Willard, and Mapa, JJ., concur. McDonough, J., did not sit in this case.

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G.R. No. 1186, November 18, 1903

THE UNITED STATES, COMPLAINANT AND APPELLEE, VS. PEDRO CONSTANTINO ET AL., DEFENDANTS AND APPELLANTS. D ECIS ION
MAPA, J.: The defendants are charged with the crime of insurrection. According to the complaint, "early in the morning of May 30, 1902, the defendants, together with several other persons armed with rifles, revolvers, and bolos, entered the town of Binangonan, Province of Rizal, and incited its inhabitants to rebel against the authority of the United States in these Islands." From the evidence introduced at the trial it appears that on the morning of May 30, 1902, an armed band composed of some fifteen men, according to some of the witnesses, and of over forty, according to others, entered the town of Binangonan and kidnaped Don Jos6 Suares, the municipal president; Don Jose" Tupas, provincial secretary, who happened to be in the town; Don Sixto Angeles, president of the board of health; Don Lazaro Gergaray, and an American whose name does not appear. These people were led along the road toward the town of Carmona; but when the party had covered about half the distance to the town three American soldiers were encountered. In the course of the fight which ensued, and as a result of the confusion thereby produced, the prisoners succeeded in escaping from their captors. These are the only facts shown in the record. It does not even appear what motive led the defendants to kidnap the persons mentioned. This act of simple kidnaping, without evidence as to previous or attendant circumstances, without data of any kind, in short, to indicate the motive or purpose for which the act was committed, is the one bare fact which we find established in the record. As to promoting or inciting to rebellion, with which the defendants are specifically charged in the information, not only does the record contain no proof of their guilt of this crime but absolutely no attempt has been made to prove it. It follows, therefore, that the accusation fails in its most essential pointthat is, with respect to the act complained of, and which alone could make the defendants guilty of the crime of insurrection with which they are charged. The kidnaping of the persons above mentioned, upon the supposition that there is nothing which would authorize us to attribute to it any special or determinate character, may have been committed with purposes entirely different from those which, under Act No. 292 of the Civil Commission, characterize the crime of rebellion. It may have been done simply for the purpose of obtaining money, by holding the prisoners for ransom, or for the purpose of executing upon them acts of personal revenge. There is no evidence that the kidnapers had any other purpose in view. Still less does it appear that they had the specific intent of thereby inciting anyone to rebellion, or of promoting a rebellion, as alleged in the information. This act of kidnaping, as it appears in the record, might perhaps constitute the crime of illegal detention or some offense of a similar character, but it can not by any possibility constitute the crime of insurrection, with which the defendants are specifically charged. The evidence adduced at the trial does not prove the commission of the offense complained of. This being the case, it is unnecessary for us to make any examination into the participation which the defendants may have had in the execution of the kidnaping referred to. Even if the

evidence shows the commission of such an act, we can not convict them for that offense in the present action, because that would be equivalent to imposing upon them a conviction for a crime with which they have not been chargeda proceeding in violation of right and justice. For the reasons stated, we reverse the judgment below and acquit the defendants, without prejudice to an action expressly reserved to the prosecuting, attorney, brought upon a new information based on the facts established in this case. The costs of both instances are declared de oficio. Arellano, C. J., Cooper, McDonough, and Johnson, JJ., concur. Torres and Willard, JJ., dissenting : We are of the opinion that the defendants should be convicted of the crime of insurrection charged in the information, under section 3 of Act No. 292, passed November 4, 1901, as the acts committed by the defendants are properly classed as constituting the offense of insurrection.

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G.R. No. 1188, January 31, 1903

GABRIEL FUSTER, PETITIONER, VS. E. F. JOHNSON, JUDGE OF FIRST INSTANCE OF MANILA, RESPONDENT. D ECIS ION
ARELLANO, C.J.: The plaintiff has appealed against an order overruling a demurrer in a criminal case and asks that an injunction be issued restraining the judge below from continuing the proceedings until this court passes upon the action of mandamus brought against him. The order in question not being appealable under section 24 of the General Orders, No. 58, series of 1900, there is nothing which can prevent the continuation of the case. The application for an injunction is therefore denied, with costs. Torres, Cooper, Willard, Mapa, and Ladd, JJ., concur.

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G.R. No. 1189, May 14, 1903

ALEJANDRO BAUTISTA, PETITIONER, VS. HON. ELIAS F. JOHNSON, JUDGE OF THE COURT OF FIRST INSTANCE OF MANILA, RESPONDENT. D ECIS ION
LADD, J.: This is a petition for a mandamus to a judge of the Court of First Instance of Manila. The petitioner asks that the judge bo required to allow him to withdraw an appeal taken by him from a judgment of one of the municipal courts of Manila, convicting him of an offense and imposing the penalty of imprisonment. At the time of the filing of the petition the appeal had been perfected; the action had been entered in the Court of First Instance; the petitioner had applied to the judge for leave to withdraw the appeal; this application had been denied; and the case has been tried in the Court of First Instance and the petitioner convicted and sentenced to a longer term of imprisonment than that imposed by the municipal court. Section 42 of the Act to incorporate the city of .Manila (No. 183), as amended by section 11 of Act No. 267, provides with reference to appeals from municipal courts .that "a perfected appeal shall operate to vacate the judgment of the municipal court, and the action, when duly entered in the Court of First Instance, shall stand for the trial de nova upon its merits in accordance with the regular procedure in that court, as though the same had never been tried and had been originally there commenced." The word " vacate " as applied to judgments means " to annul" "to render void." (Bouvier, Law Dictionary, subvoce .) No stronger word could have been employed by the Commission in the law in question to signify the absolute extinction of the judgment as such. Used as it is there used, without any qualifying expressions, it can not be construed in the form of to suspend, or to set aside temporarily. If, then, the right to withdraw the appeal in the Court of First Instance exists, as claimed by the petitioner, it must follow that a defendant could in every case altogether escape the effect of a conviction in a municipal court by taking an appeal and then withdrawing it; for upon the withdrawal of the appeal there would be no existing judgment or proceeding against him in either court. This, of course, can not be the law. Clearly the defendant appealing from the municipal court to the Court of First Instance lias no more control over the prosecution in the latter court than he would have had if it had been originally commenced there. The petition is therefore denied. Willard and Mapa, JJ., concur.

CONCURRING COOPER, J.: I concur in the decision of the majority of the court, but base my conclusions upon the grounds

that this is not a proper case for the issuance of writ of mandamus. The question of whether by perfecting the appeal from the municipal court to the Court of First Instance would have the effect,, in the event of the dismissal of the suit after appeal, of leaving no judgment, was a question calling for the exercise of judgment and discretion in its determination by the Court of First Instance, and being such this court will not compel it by mandamus to decide the question in any particular way.

DISSENTING TORRES, J.: Is the right to withdraw an appeal taken against a decision of the municipal judge denied by Acts Nos. 183 and 267? I think not, The right to withdraw from or waive an appeal from a judgment of a municipal judge is on the same footing as the right of appeal by a party interested in the suit, and more especially the defendant in a criminal case. It is an inalienable right, inherent in the person of the defendant, and is of the same order as his right to plead guilty to the crime or misdemeanor. (Sees. 15 and 25 of General Orders, No.58.) A person prosecuted for misdemeanor should not be at a disadvantage as compared with a person prosecuted for a crime. The latter, according to the laws in force which coexist with General Orders, No. 58, and Act No. 194, may withdraw an appeal against a judgment of conviction rendered in a prosecution for a crime, and .may tacitly consent to the judgment, whether imposing life imprisonment or the minimum degree of imprisonment. This court on more than one occasion has allowed a convicted criminal to withdraw his appeal, and the judgment of the court below, by virtue of such withdrawal, immediately became final and could be executed. Furthermore, there is no law or legal principle which prohibits the appellant from waiving his right and declining to sustain the appeal taken by him. I am of the opinion that before the trial has commenced, or a hearing has been had before the judge of First Instance having jurisdiction over the appeal, the right of the appellant remains intact to withdraw the appeal, should he deem it more beneficial to his interest to do so. The judgment of the municipal judge is vacated by the appeal taken against it, if the trial has commenced and hearing has been had on the appeal before the judge of First Instance. When the proceeding has readied this stage, I am of the opinion that a withdrawal could no longer be made, nor could there be a waiver of the right after submission of the case to the judge of First Instance. Under these circumstances the judgment of the municipal court would be considered vacated, because the charge is to be tried de novo and decided upon the pleadings and proofs presented, without taking into consideration the pleadings and proofs in the first instancethat is, in the municipal court. But, before the trial or the hearing, the writer is of the opinion that the appellant is entitled to waive or withdraw the appeal taken by him, and in such a case, then, the judgment appealed and which, by reason of such withdrawal or waiver, becomes final

should be executed. Such a withdrawal implies the consent of the party in interest, who, while the appeal is still within his control, has waived his right to trial de novo . This, in the opinion of the writer, is the meaning which should be given to section 42 of Act No. 183 and to section 11 of Act No. 267. In the case at bar, Alejandro Bautista withdrew his appeal before trial or hearing before the judge of First Instance, the Honorable Mr. Johnson. While the proceedings are in this stage it is believed that the appeal has not yet produced the effect of vacating the judgment of the municipal court. No hearing has yet been had nor has trial commenced before the judge of First Instance, circumstances which terminate the option, and, therefore, the appeal having been withdrawn or its prosecution waived, the judgment of the municipal court subsists and should be executed. The writer is, therefore, of the opinion that the petition of Alejandro Bautista should be granted. McDonoughy J., did not sit in this case.

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G.R. No. 1190, September 24, 1903

THE UNITED STATES, COMPLAINANT AND APPELLEE, VS. HONORIO DE JESUS ET AL., DEFENDANTS AND APPELLANTS. D ECIS ION
TORRES, J.: On July 11, 1902, shortly after 8 o'clock in the evening, while Ramon Osete was in his dining room taking supper with his family, three men suddenly entered the house. One of them remained on the stairway near the dining room. The other two, who were armed with bolos, after warning the people in the room nt to move or cry out under pain of death, immediately attacked Osete. Several slashes were given him with the bolos which they carried, causing some fifteen more or less serious wounds on the head, face, arms, and other parts of Osete's body, as a result of which he died on the 20th of August following. After Osete had been thus wounded and was stretched out on the floor, one of his assailants entered the room, apparently looking for someone else, while the other seized the deceased's daughter, Maria Osete, by the throat. As a result of the cries for help set up by Osete's wife and his children, Vicente and Ramon, and of the disturbance occasioned among the neighbors thereby, the two assailants decamped, followed by the man who had remained on the stairAvay. In the course of their flight one of the malefactors, who proved to be Jose Consuelo, was apprehended by the police and Osete's neighbors. Consuelo, when arrested, had spots of blood on his hands and was identified by the deceased's Avidow as one of the two men who had entered the room and inflicted the wounds upon her husband. Honorio de Jesus was also identified as the other of these two. On the 21st of August, the day following Ramon Osete's decease, an autopsy was held upon his body. From this autopsy it appeared that he was a man of about 55 years of age. Six wounds Avere found, apparently healed, in the head. His lungs were in normal condition. On the right side of the heart a clot of blood Avas found, although that organ presented no evidence of disease. One of the wounds on the left side of the head had produced an irregular fracture of the skull, splinters of bone having been found in the Avound, this constituting a lesion grave. The physician who made the examination, Avhieh Avas carried on in the presence of other physicians, Avas of the opinion that the man's death had been caused by the clot of blood which, as a result of blows given by an instrument and of his consequent weakened condition, had formed on his heart. The examining physician stated that such frightful wounds as those which appear from the drawing of the skull, exhibited in the record, might be expected to produce fatal consequences, or to bring about intestinal disease. Dr. Browns, who held the autopsy, in his testimony stated further that the wounds received by the deceased must have been inflicted with a cutting weapon; that although the deceased had no organic disease of the heart, nevertheless his death was due to a dyspnoea and to the clot of blood, referred to, caused by the debility and anaemia resulting from the great loss of blood which he had suffered, and that the intestinal trouble was merely a symptom. Drs. H. W. Yemans and Augusto Anguita, the latter of whom was one of those present at the autopsy, corroborated the testimony of Dr. Browns. They stated that the wounds of the deceased had caused anaemia, due to great loss of blood, and that in consequence thereof the circulation had become sluggish. They testified that to this sluggishness of circulation was due the formation of

the clot of blood on the heart, which, by bringing on cardiac paralysis, was the immediate cause of Osete's death. Dr. Isidro Santos, who attended the wounded man from the night of the occurrence, and visited him at intervals down to the day of his death, testified that the wounds of the deceased had healed over and that on the 8d of August he removed the bandages. He stated that although Senor Osete only complained of weakness, on the 7th of August intestinal catarrh due to defective digestion set in. His feet commenced to swell, and a feiv days afterwards dyspncea set in, and then Dr. Santos says he observed the heart trouble. He states that notwithstanding the efforts of himself and Dr. Anguita, it was impossible to save the patient, who died on the 20th. This witness added that in his opinion the most serious wounds were those inflicted on the frontal bone, those on the body being merely superficial. He says that the patient continued to enjoy his mental faculties until his death, which, he testifies, was produced by the heart trouble! He also states that the anremia was due to the great loss of blood which the deceased had sustained. Sixta Santos, the wife of the deceased, and his children Vicente and Ramon Osete having been called as witnesses, they testified to the occurrence substantially as above related, adding that the man who later proved to be Honorio de Jesus, and who lived near the house, was the one who, when the assailants entered, ordered the family not to move or speak if they did not wish to die. These witnesses stated that after the deceased was seriously wounded, one of the assailants, the said Honorio, who had on a sinamay shirt, entered an interior room in search of some one. They testified that at the same time the other man seized the girl Maria by the throat, but quickly released her and ran for the stairway. This man, who wore a white shirt, turned out to be Jose Consuelo. During the assault Osete's wife and children screamed for help and thereby aroused the neighbors. These witnesses identified the bolos Nos. 1 and 2, the first as the one used by Honorio and the second as the one used by Consuelo. They testified further that the two assailants of the deceased attacked him from the front and that he defended himself against the assault with a chair; that the boy Ramon, by his mother's direction, jumped out of the window to seek assistance and, upon reaching the ground, observed five men running from the doorwray of the house; that two of them in their flight dropped their shirts, but that he could not see whether or not they were carrying arms; that the two boys were quite well acquainted with Honorio de Jesus, he having been in the yard of the house playing with Ramon some days before; that they did not see Estanislao de los Reyes in the upper story of the house and can not say whether he was below with the others or not. Maria Osete testified to the same effect, saying that after she was released by the man who had seized her by the throat she, while the other was attacking her father, hid away in the bathroom and therefore was unable to give further testimony concerning the occurrence and does not remember the appearance of the two men who entered the house. The defendant Jose Consuelo, who testified in the case as a witness for the prosecution and against whom a separate case is being prosecuted for the same crime, stated that he was acquainted with the defendants Honorio de Jesus, Estanislao de los Reyes, Juan Nicodemus, and Tomas Espiridion; that at 6 o'clock in the afternoon of the 11th of July, 1902, these men came to his house in San Lazaro in a quilez looking for him and that Estanislao, the only one who entered the house, invited him to accompany them for the purpose of abducting a woman; that upon the witness's replying that his mother would not permit him to do so, Reyes spoke to the latter and told her that they were going to a wake and that thereupon his mother consented; that the defendant accordingly followed Reyes and entered the quilez, which was driven to Tondo; that upon arriving at Angustias Street the quilez stopped and his companions pointed out the house where the woman lived"; which was situated near by on Lemery Street; that they

then told him that Estanislao de los Reyes, Honorio de Jesus, and the witness were to enter the house; that he did not observe that his companions were armed; that upon entering the house Honorio and Estanisiao commenced to make a noise and that therefore the witness, who had remained below on the staircase, advanced three steps higher to see what was going on and observed that his two companions, Jesus and Reyes, were attacking the owner of the house with bolos, while the other members of the family were crying and shrieking; that thereupon he fled without having observed what had become of Juan Nicodemus and Tomas Espiridion who remained in the street standing by the quilez, although he observed that Tomas had a bolo; that on account of the excitement and disturbance among the people, the witness was arrested in his flight by a policeman; that he was not acquainted with Osete or his family; that on entering the house they found the street door merely latched; that Estanislao at that time was wearing a white shirt and white trousers and a hat, but no shoes; that the bolo designated "No. 1," which was shown him at the trial, appeared to be the one used by Estanislao de los Reyes, and the one marked "No. 2" the weapon carried by Honorio de Jesus, but that while in the quilez he did not observe that his four companions were armed; that after they had all been arrested his companions were very angry with him for having made this accusation against themso much so that Honorio wanted to beat him; and that while in prison his codefendants threatened him and told him that he had better deny the occurrence so they might all be acquitted. The defendants Estanislao de los Reyes, Honorio de Jesus, Juan Nicodemus, and Toinas Espiridionpleaded not guilty to the charge. All of them protested their innocence with respect to the crime attributed to them, alleging that they knew nothing of the occurrence in Osete's house, which they had not entered, and that they had not been to the house of Jose Consuelo in a quilez on the afternoon of July 11, 1902, and that they did not know where his house was. Reyes stated further that on the night of the occurrence he was at his home in Timbugan, barrio of San Lazaro, Santa Cruz; that his father was sick with cholera at the time and the witness was nursing him, and that he did not leave the house that night; and that some time after his arrest, which occurred on Friday night, his mother informed him that his father had died on the following Monday; that the bloody shirt which they made him try on in the barracks did not fit him, and because he would not confess that it was his he was beaten; that the bolos designated Nos. 1 and 2, and which were found in the kitchen of his house, were used for domestic purposes; that he did not see Jose Consuelo on that night and that he was not identified by the widow of the deceased. He further denied that he had any quarrel in prison with Consuelo. Honorio de Jesus testified that early in the evening of the 11th he had supper with his family and that, as he was very tired after his day's work, did not again leave the house; that after supper, while in conversation with his companions in the house, he heard people shouting, "Stop him!" "Stop him!;" that he therefore approached the window and from there saw two men running down Angustias Street; that one of the men was caught by the crowd and taken to a place in the street in front of the witness's house where there was a light; that some hours after wards, while he was asleep, Captain Cranie came to his house to arrest him and took him to the house where the crime had been committed, but that the widow of the deceased could say nothing concerning him, although while he was in the barracks in the presence of Jose Consuelo they accused him of having been one of the men who entered the house and assaulted the owner; that he did not know Consuelo and had never seen him before; that he had not been in the yard of the house of the deceased a few days before the occurrence; that he did not know Estanislao de los Reyes nor Juan Nicodemus, but was acquainted with only

Tomas Espiridion, and that he quarreled with Consuelo in the Postigo prison on account of the resentment he felt against him. Juan Nicodemus testified that on the night of the occurrence he was at home sick; that he did not leave his house and was asleep when the policeman who took him in the carretela to the barracks came to arrest him. He said that as to the fact of his being ill at the time,; Dr. Valdez, who attended him, could testify; that he had not left his house, which was situated in Mendoza Street, Quiapo, and that he knew nothing about the occurrence. Tomas Espiridion testified that on the 11th of July he spent the entire evening in his house; that after supper he went to sleep, and that it was late that night when the police arrested him; that before supper he borrowed a bolo from a neighbor called Mauricia, to split some wood, and afterwards returned it; that shortly after 8 o'clock that night he heard the people shouting "Stop him!" "Stop him!," and went out on the porch of his house to see what was going on, from which he observed an unknown man running down the street; that he did not then recognize this man as his neighbor, Honorio de Jesus. The witnesses called by the defendants corroborated their statements with respect to the alibi. Upon the evidence adduced at the trial (which does not include any testimony by the deceased, the latter, according to Captain Orame's statement, having been unable because of his debilitated condition to give satisfactory answers when interrogated on the day following the assault, and he having died several days before the case was commenced), the judge on the 26th of November, 1902, condemned Honorio de Jestis to death, Estanislao de los Reyes to life imprisonment ( cadena perpetua), and each of the other accused, Juan Nicodemus and Tomas Espiridion, to the penalty of twenty years each of cadena temporal and to the payment by each of a quarter of the costs. The Solicitor-General asks that the judgment appealed be so modified as to condemn the defendants Honorio de Jesus and Estanislao de los Reyes to death, Jfico demus and Espiridion each to seventeen years and four months of reclusion temporal with the accessory penalties, and to the payment in solidwn to the heirs of the deceased of an indemnification of 1,000 pesos; and to the payment in solidum of the costs. In the absence of any of the qualifying circumstances enumerated by article 403 of the Penal Code, the violent killing of a human being constitutes only the crime of homicide, punishable under article 404. This classification must be given to the killing of Ramon Osete, brought about by mortal wounds inflicted upon him in his own house in Tondo on the night of July 11. It is fully established in the record by expert testimony and evidence as to the result of the autopsy held upon the body of the deceased Osete, that he died forty days after having been seriously wounded, his death resulting from cardiac paralysis, dyspnoea and intestinal catarrh produced by his debilitated condition, and the extreme anaemia brought about by the serious loss of blood suffered by reason of the wounds which had been inflicted upon him. It is therefore unquestionable that he was the victim of a homicide, as without the wounds there would have been no hemorrhage and its consequent anaemia; nor would the clot of blood have formed on the heart or the dyspnoea, the cardiac paralysis, or the intestinal catarrh been suffered. All these were effects more or less pi'oduced by the wounds inflicted, which were at least the immediate cause of his death. In order to define the nature of the crime, it is necessary to consider the effects of the criminal act and the extent and consequences of the damage caused. Notwithstanding the allegations of the complaint or the arguments advanced in the brief of the

Solicitor-General, we can not find that premeditation or alevosia was present in the commission of the crime, because the agreement entered into between the defendants and the invitation by Estanisluo de los Reyes to Jose Consuelo, who was taken from his house in a quilez by the other four, had for its purpose the abduction of Maria Osete, a daughter of the deceased; that is, that the agreement was for the purpose of the commission of the crime of abduction, which had been planned by Reyes. Qualifying circumstances such as premeditation must be proven by competent evidence, the same as the principal facts constituting the crime, because these circumstances determine the classification of the offense and the penalty to be inflicted. It is not sufficient that a suspicion exist. The proof must he clear and positive and must establish the existence of the circumstances beyond a reasonable doubt. That is, the evidence must disclose that the commission of the crime was preceded by such a degree of reflection and meditation as to indicate that the guilty agent had previously formed a plan for carrying it into effect. There is no evidence, not even circumstantial, to indicate that the assailants of Ramon Osete had, with evident premeditation or reflection, conceived the idea of killing him, for the evidence in the case does not show that they had any intention to inflict wounds upon him or to cause his death until the very moment in which the assault was made. With respect to the alevosia, the evidence disclosed beyond a doubt that when two of the accused entered the house and climbed the staircase, one of them ordered the inhabitants not to move or cry out under pain of death; and that, when one of them or both together attacked the owner of the. house, they attacked him from the front and did not select means tending to secure the consummation of the crime without risk to themselves arising from any defense the deceased might have attempted to make; in fact, he did attempt to defend himself, in a way> with the chair upon which he was sitting; and although in the course of the struggle he was overcome and seriously wounded, it was because he was unarmed and succumbed to the superior number of his assailants, of whom there were two and who were provided with large bolos. There was indeed an abuse of superi6rity on the part of the assailants, but this does not constitute the qualifying circumstance of alevosia, because it does not appear that Osete was wounded by his assailants treacherously and without any peril to themselves. The circumstance of alevosia, as well as all other qualifying circumstances which raise the classification of the crime and augment the penalty, can not be inferred or presumed in any given case, but must be established by evidence of proved facts; that is, it must be clearly demonstrated beyond all possibility of doubt, and the evidence must disclose that the accused in committing the crime did so by means or methods wrhich can legally be regarded as alevosia, this does not appear in the present case. The defendants Honorio de Jesus and Estanislao de los Reyes, together with another man who is being prosecuted in a separate case, are guilty as principals of this crime of homicide. Notwithstanding their plea of not guilty and the exculpatory allegations, the record contains evidence which, when considered as a whole and according to the precepts of common sense, is sufficient to fully convince the mind of the guilt of these two defendants as the assailants of the deceased Ramon Osete. The charge against Honorio de Jesus is substantiated by the testimony of the widow and two children of the deceased, who recognized him at the time of the occurrence, and subsequently identified him in the presence of the police as one of the men who entered the house and

assaulted the owner, Ramon Osete, with bolos. According to their testimony, Honorio wras the one who, after Osete had been wounded, entered one of the interior rooms of the house looking for some one. The guilt of de Jesus is also shown by the testimony of Jose Consuelo, one of the three men who entered the house of the deceased and who was called as a witness. He gave a detailed statement of the assault committed by Honorio and Estanislao on the owner of the house, both to the police and at the trial. Furthermore, the denial on the part of Honorio denial of having been in the yard of the house in question on the day before the crime watching the Osete children playmay be regarded as circumstantial evidence of his guilt, as the fact of his presence there has been proven by the testimony of persons who had known him intimately for a long time. The evidence of the prosecution can not be regarded as overcome by the testimony of the wife and mother of the defendant Jesus, owing to the natural interest which they had in saving him, and even if it be true that Honorio was seen in his house very shortly after the occurrence, it must be remembered that his dwelling was very close to that of the deceased. With respect to Estanislao de los Reyes, we have in the record as proof of the guilt of this defendant the testimony of Jose Oonsuelo, who says that lieyes was one of the men who assaulted and wounded Ramon Osete, and that Reyes was the one who came to the witness's house and invited him to go and take part in the abduction, and by deceit obtained his mother's consent to his accompanying Reyes and his companions in a quilez to the house of the deceased. Furthermore, we have the circumstance that a white shirt spotted with blood, which was found in a canal near Angnstias Street on the night of the crime, fitted the defendant Reyes, and the evidence discloses that one of the assailants had on a white shirt at the time of the occurrence. In addition to this we must consider the statements made by the defendant Reyes to the police captain, Jose Crame, and to another policeman, to the effect that he had gone with others to the house of Ramon Osete and had wounded the latter, although he added at the time that his purpose was to abduct the girl Maria, which statements were made by him after his denial, at the commencement of the investigation, that he had in any way participated in the perpetration of the crime. Then again, the evidence shows that the police who went to his house to arrest him found him hiding under a mat, covered by the skirts of his sister, in one of the interior rooms of his house. This fact indicates that he had some occasion to conceal himself, for he certainly would not have acted in this manner if he had been innocent and had known nothing of the occurrence. Furthermore, beneath the same mat under which Reyes Avas hiding were found the two bolos Nos. 1 and 2. These were identified by the children of the deceased who were eyewitnesses to the assault. Captain Crame testified to the facts above stated that Reyes was surprised upon being confronted in the police station with Jose Consuelo, who charged him with participation in the crime; and when the defendants were taken to the house where the crime was committed, the. wife of the deceased and Osete's youngest child identified all three, Estanislao de los Reyes, Honorio de Jesus, and Jos6 Consuelo, as the men who entered the house, the first two being those who made the assault upon the deceased. Sergeant Jose Fernandez in his testimony corroborated the statement of Captain Crame. It is worthy of note that the testimony of Jose Consuelo is not overcome or contradicted, but rather in part corroborated by the testimony of the family of the deceased and by that of Captain Crame. The latter said that, although at the beginning he doubted the truth of the statements of Consuelo, he became convinced, by the evidence subsequently brought forward, that what he had said was true. Again, two witnesses, Manuela de Jestis and Gregorio de la Cruz, testified that Estanislao de los Reyes, notwithstanding his denial, had in fact been at the house of Jose Consuelo to get the latter, on the evening of the occurrence, and that they left

together in the quilez, in company with some other persons unknown. The witness Manuela stated that she had taken no special notice of this man, and the witness Gregorio testified that he had been unable to see him because he was on the porch of the house. These facts, established by the testimony of the witnesses for the prosecution, constitute conclusive and indubitable evidence of the guilt of the defendant Estanislao de los Reyes, notwithstanding the alibi testimony given by his relatives and fellow-lodgers. The testimony of these witnesses, all of whom were interested in favoring him, was not sufficient to overcome the incontestable proof of his guilt presented by the prosecution. The discrepancy to be observed between the testimony given in court by the widow and children of the deceased, and the statements made by them to the police, with respect to Estanislao de los Reyes, as to whether he was or was not one of the assailants of the deceased, and as to Jose Consuelo, whether he took part in the assault or remained outside on the stairway, it must be presumed that tliis discrepancy was due to the fact that these witnesses did not fix their attention upon the appearance of tin1 assailants, or that they were confused or mistaken by reason of the terror inspired in them by the assault committed by the defendants. It may also perhaps have been due to deficiencies in the interrogations addressed to them in court when they were confronted with the three accused. With respect to the other defendants, Tomas Espiridion and Juan Nicodemus, the evidence is sufficient to establish the guilt of these defendants as accessories who aided and abetted the principals in the crime. They remained in the street in front of the house, standing by the quilez which had brought them there, while the other defendants committed the crime in the upper story of the house. Although it is true that the agreement entered into was for the purpose of abducting the girl Maria Osete, it is none the less true that it was proposed to effect this crime by the use of force, and with this end in view two of the men who entered the house carried weapons, as well as the defendant Espiridion, who remained in the street. Consequently it, is to be presumed that they were ready to overcome any obstacle or opposition which they might meet, as in fact they did, and for this reason the two accessories who remained in the street in front of the house have incurred the criminal responsibility of those who, although not principals, nevertheless performed acts before or at the time of the commission of the crime and necessarily related thereto. The alibi evidence which each of them set up is insufficient to overcome the evidence introduced against them by the prosecution. It is worthy of note that, notwithstanding the fact that they heard repeated accusations made against them by Jose Consuelo in the presence of the police, and subsequently before the judge below, to the effect that they were parties to the crime herein prosecuted, as accomplices, it does not appear that they have alleged any facts demonstrating their innocence, or that they showed in any way that they considered themselves innocent and falsely charged. In the commission of the crime we must consider the existence of aggravating circumstances Nos. 9, 15, and 20 of article 10 of the Penal Code, with no mitigating circumstances to offset their effects, because the facts established by the evidence show that the assailants availed themselves of the darkness of night for the purpose of committing the crime with impunity. They moreover attacked the deceased in his own house, assaulting him without any provocation, and, by availing themselves of the fact that they were two in number, both armed with bolos, were guilty of abuse of superiority. The deceased was unarmed and unable to do more than to attempt to defend himself with a chair, and was overcome in the struggle. For

these reasons, the proper penalty should be imposed upon the two principals in the maximum grade. The information charges the defendants with the crime of murder, but as the crime of homicide is necessarily included therein, under section 29 of General Orders, No. 58, the defendants can be found guilty of homicide and the penalty prescribed by article 404 of the Penal Code inflicted upon them. For the reasons stated, we are of the opinion that the judgment below should be reversed. The crime of which the accused are guilty should be classified as homicide, and the defendants Honorio de Jesus and Estanislao de los Reyes should each be condemned to the penalty of twenty years of reclusion temporal, with the accessory penalties of absolute temporal disqualification to its full extent and subjugation to the vigilance of the authorities during the period of the penalty and for an equal period thereafter. The other two defendants, Juan Nicodemus and Tomas Espiridion, should be condemned, as accessories, each to the penalty of ten years and one day of prision mayor, together with suspension from all public office and of the right of suffrage during the period of the penalty. The first two defendants should also be condemned to the payment, pro rata or in solidum, to the heirs and widow of the deceased of an indemnification of 1,000 Insular pesos, and in case of the insolvency of the said two defendants, the two defendants last named shall, as accessories, be subsidiarily responsible in the same manner for the payment of the indemnification, and each of the defendants herein to the payment of one-fourth part of the costs of both instances. The bolos seized will be confiscated. The case will be remanded to the court below for execution of judgment. So ordered. Arellano, C. J., Cooper, Mapa, and McDonough, JJ., concur. WILLARD, J., dissenting: I am of the opinion that the defendants Juan Nicodemus and Tomas Espiridion should be convicted as coprincipals, and I therefore dissent from the decision with respect to them, but concur with respect to the others.

OSJurist.org

G.R. No. 1195, February 20, 1903

TRANQUILINA ALMADIN, PETITIONER, VS. CELESTINO ALMADIN, RESPONDENT. D ECIS ION

COOPER, J.: This is an application to set aside a judgment of the Court of First Instance of Laguna rendered on the 1st day of October, 1902. It is made under section 513 of the Code of Civil Procedure, 1901, relating to procedure in cases of defaults caused by fraud, accident, or mistake. The application shows that on the 6th day of October the defendant made a motion in the Court of First Instance for a new trial, supported by affidavit which presented excuse for his failure to attend on the day fixed for the trial of the case, the day on which the judgment was rendered. This motion was filed in this court on the 2d day of February, 1903. The section under which the application is made requires that the petition to the Supreme Court shall be made "within sixty days after the complainant first learns of the rendition of such judgment and not thereafter." It will be unnecessary to consider the case presented on its merits, as it clearly appears that the application has not been made within sixty days after the defendant first was informed of the rendition of the judgment against him. It is stated in the application that on the 31st day of January following, after the adjournment of the term of court at which the judgment was rendered, the Court of First Instance entered an order overruling the motion for a new trial. The petitioner contends that the sixty days should be calculated from the date of the rendition of the judgment of the Court of First Instance overruling his motion for a new trial, but the language of the statute is explicit upon this point. The knowledge of the defendant of the rendition of the judgment by default must be attributed to him as of the date on which he filed his motion for a new trial in the Court of First Instance, to wit, the 6th day of October, 1902, and the sixty days for the filing of the application consequently expired on the 6th day of December, 1902. The application to set aside the judgment comes too late, and the same must be overruled, which is accordingly done, with costs of proceedings against, the petitioner. Arellano, C.J., Torres, Willard, Mapa, and Ladd, JJ., concur.

OSJurist.org

G.R. No. 1198, August 21, 1903

THE UNITED STATES, COMPLAINANT AND APPELLEE, VS. INOCENCIO MENDOZA ET AL., DEFENDANTS AND APPELLANTS. D ECIS ION
MCDONOUGH, J.: The defendants were convicted of abduction, in that on the 10th day of November, 1902, at Manaoag, they had abducted, with unchaste designs, Augustina Tamayo, a girl 14 years of age. The defendant Pedro Meiuloza went to the home of Augustina Monday morning, November 10, 1902, in the absence of her parents in the rice fields, and while no one was present but a younger sister, and required her to go with him to Dagupan, where the other defendant, the son of Pedro, resided. The girl testified that Pedro threatened to kill her if she refused to go with him, and consequently she accompanied him. They walked the full distance and were several days on the road. The girl testified that while on the way this defendant forcibly assaulted her, and that, when they arrived where the other defendant was employed, Pedro left her with the defendant Inocencio, with whom she remained a day or so, and who also, she testified, had carnal intercourse with her. The defendant Pedro denied using force or threats to compel the girl to accompany him, and also denied assaulting her. lie testified that she went with him voluntarilyin fact, asking him to take her to his son, and that he did take her with a view of having them married. Inocencio denied having forcible intercourse with Augustina. When asked why the marriage ceremony was not performed, both defendants said it was because they had not money enough to pay the expenses. The court below found the defendants guilty, and sentenced Pedro, as the principal offender, to imprisonment for twelve years and one day, pursuant to the provisions of article 438 of the Penal Code, and, inasmuch as the other defendant, Inocencio, was under 18 years of age, and article 85 of the Code applied to him, he was sentenced to a term of imprisonment of six years and one day. After considering the complaint and the evidence in this case1, we are of the opinion that the defendants are guilty of abduction under article 446 of the Penal Code. The court concludes from the evidence that Augustina consented to the abduction, with a view to matrimony, she being a virgin 14 years of age, and that the accused abducted her for lewd purposes. As to the defendant Pedro Mendoza, there are no circumstances, either aggravating or mitigating, to modify the punishment, and the corresponding penalty must be imposed in the medium grade. With respect to Inocencio Mendoza, who is between the age of 15 and 18 years, we must apply the second special mitigating circumstance established in article 9 of the Penal Code. We therefore direct judgment that the defendant Pedro Mendoza be imprisoned for a term of two years eleven months and ten days of prision correccional , and that the defendant Inocencio Mendoza be imprisoned for a term of four months of arresto mayor, with costs of both instances to the defendants.

Arellano, C. J., Cooper, Torres, Willard, and Mapa,. JJ., concur.

OSJurist.org

G.R. No. 1201, October 19, 1903

THE UNITED STATES, COMPLAINANT AND APPELLEE, VS. JUAN MELCHOR, DEFENDANT AND APPELLANT. D ECIS ION
MCDONOUGH, J.: This is an appeal from a judgment of the Court of First Instance convicting the appellant of homicide, and sentencing him to imprisonment for twelve years and one day, and to pay the widow of the deceased 500 pesos. The killing of Gregorio Raymundo took place January 1, 1903, in the pueblo of Binmaley, Pangasinan, under such circumstances as to make it homicide, unless the testimony of the defendant be believed. He swore that on returning from the nipa plantation, in the afternoon of that day, he noticed something wrong in his house, and that on hurrying into it he discovered Raymundo in the act of adultery with the wife of the defendant; that he took a club with which to hit Raymundo, who then tried to stab defendant with a bolo; that they fought, and after a while the defendant got the bolo, chased Raymundo and killed him with it. The proof on behalf of the prosecution shows that no previous ill will existed between defendant and the deceased; that they lived near each other, and that their wives were sisters. No attempt was made on the part of the Government to contradict the testimony of the defendant or to impeach his veracity. Unless the defendant's statement be discredited there would seem to be no motive for the crime, and, if we credit his statement, the conviction must be reversed. The first witness called by the public prosecutor was the wife of the defendant, and, after asking her the usual preliminary questions, her further testimony was objected to by counsel for the defendant, and she was excused by the court from testifying under section 58 of General Orders, No. 58, on the ground that this objection made her incompetent as a witness. This section reads as follows: "Except with the consent of both, or except in case of crime committed by one against the other, neither husband nor wife shall be a competent witness for or against the other in a criminal action or proceeding to which one or both shall be parties." But in this decision the learned judge who tried the case laid stress on the fact that as the defendant had objected to the testimony of his wife this action on his part was to be considered as an unfavorable circumstance against him. The learned Solicitor-General also takes this view of the effect of the objection of the defendant to his wife as a witness, and cites as an authority to sustain this construction the case of Toomey vs. Lyman (15 N. Y. Sup. Ct., 883). An examination of that case shows that it is not an authority in this case because the absentee was qualified to testify. It was a civil action brought to set aside a transfer of property made in fraud of creditors, and the husband of one of the parties, although he was a competent witness, was not called by the wife. Neither the Code of Civil Procedure nor the Penal Code of New York disqualifies a husband or wife from being a witness for or against each other, except as to confidential communications.

(N. Y. Code of Civ. Proe, sec. 828; N. Y. Penal Code, sec. 715.) The policy of the common law, excluding a husband or wife from being a witness against the other, was founded on the identity of their legal rights and interests, as well as of public policy. It was considered essential to the happiness of social life that the confidence subsisting between husband and wife should be protected and cherished in its most unlimited extent, and to break down or impair the great principles which protect the sanctities of the relation would be to destroy the best solace of human existence. (1 Greenleaf on Ev., sec. 335.) This policy of the common law was followed in General Orders, No. 58. The defendant simply exercised his legal right in objecting to the testimony of his wife, and a hostile presumption should not be drawn from such action on his part. In the case of Graves vs. The United States (150 U. S., 118) during the summing up before the jury the district attorney commented on the failure of the defendant, who was charged with murder, to have his wife in court, so that she could be pointed out to the witnesses for the prosecution for the purpose of identifying her as being present with the defendant at the place where the murder was committed. The defendant was convicted, and on appeal to the Supreme Court of the United States one of the errors alleged was the permitting of the district attorney to make those comments, and the court reversed the conviction for this error alone, though many others were alleged. Mr. Justice Brown, in delivering the prevailing opinion of the court, said: "In this case the wife was not a competent witness, either in behalf of or against her husband. If he had brought her into court neither he nor the Government could have put her on the stand, and he was under no obligation to produce her for the purposes assigned by the district attorney. * * * Permission to make this comment was equivalent to saying to the jury that it was a circumstance against the accused that he had failed to produce his wife for identification, when, knowing she could not be a witness, he was under no obligation to do so." The wife of the defendant, Melchor, in this case became disqualified to testify for the prosecution on the objection of the defendant in the exercise of his legal right. It was said by Mr. Justice Brewer, in a dissenting opinion in the Graves case, supra , that "if it be developed that a witness exists, presumably under the control of the defendant, who can thrqw light upon a vital matter, and he is not produced, may not the jury fairly consider that fact?" We can not say, as a matter of fact, or even presume, in this case that the wife of the defendant, Melchor, was under his control. She was doubtless interested in shielding herself from the shame as well as from the crime of adultery. She might have been alienated from him, and, therefore, a hostile witness interested in protecting her own reputation and that of her paramour. We can not, therefore, infer guilt from a failure on the part of the defendant to permit the prosecution to examine this disqualified witness. If a defendant should try to prove his defense by other witnesses, and should not testify in his

own behalf, and the court below should say: "You should not take advantage of your privilege not to testify; if you were innocent you would have testified; you did not do so; therefore I take that as a circumstance against you and find you guilty," would not the defendant's privilege not to testify be detrimental to him instead of beneficial? And so the privilege given to a husband or wife would be of no advantage if the Government could call either of them as a witness against the other, and, objection being made by the defendant, draw from such objection an inference of guilt. We are of opinion, therefore, that the judgment convicting the defendant of homicide should be reversed, and that the defendant should be convicted under the provisions of article 423 of the Penal Code and punished with the penalty of banishment, following the precedent of this court in the ease of The United States vs. Vargas et al. (1 Off. Gaz., 434). [1] The judgment of the court below is reversed and the defendant is condemned to the penalty of destierro for the term of two years four months and one day, and to pay to Luisa Zamora, the widow of the deceased, 500 pesos, and, in case of insolvency, to subsidiary destierro for a term which can not exceed one-third of the above penalty, lie being prohibited from entering within a radius of 25 kilometers from the pueblo of Binmaley, in the Province of Pangasimm, during the term aforesaid, with costs to the appellant. Arellano, C. J.. Torres, Cooper, Willard, and Mapa, JJ., concur. Johnson, J., did not sit in this case.

[1] Page 194, supra .

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G.R. No. 1203, May 15, 1903

IN THE MATTER OF THE SUSPENSION OF HOWARD D. TERRELL FROM THE PRACTICE OF LAW. D ECIS ION
PER CURIAM: Howard D. Terrell, an attorney-at-law, was ordered to show cause in the Court of First Instance, in the city of Manila, on the 5th day of February, 1903, why he should not be suspended as a member of the bar of the city of Manila for the reasons: First, that he had assisted in the organization of the "Centro Bellas Artes" Club, after he had been notified that the said organization was made for the purpose of evading the law then in force in said city; and, Secondly, for acting as attorney for said "Centro Bellas Artes" during the time of and after its organization, which organization was known to him to be created for the purpose of evading the law. The accused appeared on the return day, and by his counsel, W. A. Kincaid, made answer to these charges, denying the same, and filed affidavits in answer thereto. After reading testimony given by said Howard D. Terrell, in the case of the United States vs. H. D. Terrell, [1] wherein he was charged with estafa, and after reading the said affidavits in his behalf, and hearing his counsel, the court below found, and decided as a fact, that the charges aforesaid made against Howard D. Terrell were true, and thereupon made an order suspending him from his office as a lawyer in the Philippine Islands, and directed the clerk of the court to transmit to this court a certified copy of the order of suspension, as well as a full statement of the facts upon which the same was based. We have carefully considered these facts, and have reached the conclusion that they were such as to justify the court below in arriving at the conclusion that the knowledge and acts of the accused in connection with the organization of the "Centro Bellas Artes" Club were of such a nature and character as to warrant his suspension from practice. The promoting of organizations, with knowledge of their objects, for the purpose of violating or evading the laws against crime constitutes such misconduct on the part of an attorney, an officer of the court, as amounts to malpractice or gross misconduct in his office, and for which he may be removed or suspended. (Code of Civil Procedure, sec. 21.) The assisting of a client in a scheme which the attorney knows to be dishonest, or the conniving at a violation of law, are acts which justify disbarment. In this case, however, inasmuch as the defendant in the case of United States vs. Terrell was acquitted on the charge of estafa, and has not, therefore, been convicted of crime, and as the acts with which he is charged in this proceeding, while unprofessional and hence to be condemned, are not criminal in their nature, we are of opinion that the ends of justice will be served by the suspension of said Howard D. Terrell from the practice of law in the Philippine Islands for the term of one year from the 7th day of February, 1903.

It is therefore directed that the said Howard D. Terrell be suspended from the practice of law for a term of one year from February 7, 1903. It is so ordered.

[1] Page 222, supra .

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G.R. No. 1205, April 18, 1903

EVARISTO PAYNAGA, PETITIONER AND APPELLEE, VS. GEORGE N. WOLFE, WARDEN OF BILIBID PRISON, RESPONDENT AND APPELLANT. D ECIS ION
COOPER, J.: The petitioner, Evaristo Paynaga, applied to the Hon. B. S Ambler, judge of the Court of First Instance, for a writ of habeas corpus, and states in his application that he is unlawfully detained and imprisoned by George N. Wolfe, Warden of Bilibid Prison, in the city of Manila. On the 5th day of January, 1898, the petitioner was convicted and sentenced by the Spanish authorities to two years' imprisonment for the crime of desertion from the Spanish army, He made his escape on the 18th day of October, 1898, and was rearrested on the 20th day of January, 1903. The answer to the petition and the commitment show that the prisoner had been sentenced by ordinary court-martial to two years' prision correccional militar and that lie should commence to serve his sentence on January 5, 1898. The petitioner claims that he comes within the provisions of the proclamation of amnesty and pardon issued by the President of the United States on the 4th day of July, 1902, and prays for his discharge under the same. The judge of the Court of First Instance, after hearing the case, decided that the petitioner came within the amnesty proclamation, and directed that, upon taking the oath of allegiance required by the proclamation, he be discharged from custody. An appeal has been taken by the Government from this decision. It is contended by counsel for the petitioner that Act No. 654, providing for appeals in habeas corpus proceedings, is in the nature of an ex post facto </I> law, and that having been enacted subsequent to petitioner's right to petition for habeas corpus, this appeal should not be entertained. In the decision of this court in the case of Frank Mekin vs. George N. Wolfe, rendered on the 27th day of March, 1903,1 this question was passed upon by this court, and it was there held that habeas corpus is a civil proceeding brought to enforce a civil right, and is entirely distinct from the criminal proceedings under which the prisoner has been tried and convicted, and that the doctrine of ex post facto law can not be applied to the case. The Amnesty Proclamation grants a full and complete pardon and amnesty to all persons in the Philippine Archipelago Avho have participated in the insurrection against the authority and sovereignty of the Kingdom of Spain at divers times from August, 1890, until the cession of the Archipelago by that Kingdom to the United States, and those engaged in the insurrection against the authority and sovereignty of the United States, or who have given aid and comfort to persons participating in said insurrection, "for the offenses of treason or sedition, and for all offenses political in their character committed in the course of such insurrection pursuant to orders issued by the civil, military, or insurrectionary authorities or which grew out of internal

political feuds or dissensions between Filipinos and Spaniards or the Spanish authorities or which resulted from internal political feuds or dissensions among the Filipinos themselves during either of said insurrections." There is no claim whatever that the defendant participated in either of these insurrections, nor that the character of the offense for which he was convicted was of the nature embraced in the proclamation. He was convicted of desertion, a violation of the laws pertaining to the military establishment of Spain. The defendant clearly is not entitled to the benefits of the Amnesty Proclamation. It is not a case of this Government trying and convicting a person charged with desertion from the Spanish army. The defendant was convicted during the Spanish sovereignty of the offense of desertion, and is simply serving out his sentence for that offense. Article XII of the Treaty of Peace between the United States and Spain provides that judgments rendered in criminal matters before the date of the treaty "shall be deemed to be final, and shall be executed in due form by competent authority in the territory within which such judgments should be carried out." Under this clause of the treaty, it is incumbent upon this Government to execute the judgment in this case. The judgment of the Court of First Instance directing the discharge of the prisoner from custody is reversed and the petitioner is remanded to the custody of the respondent, to be kept in his charge until the expiration of the term for which the petitioner has been sentenced. The costs of proceedings is adjudged against the petitioner. Arellano, C. J., Torres, Willard, Mapa, and Ladd, JJ., concur. McDonough, J., did not sit in this case.

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G.R. No. 1208, August 06, 1903

THE UNITED STATES, COMPLAINANT AND APPELLEE, VS. JOSE QUEVENGCO, DEFENDANT AND APPELLANT. D ECIS ION
WILLARD, J.: Sotera Jico was in the house of the defendant for three days. During that time she was employed as a servant therein, had the freedom of the house, and left it at times to visit her mother, who lived upon the same estate. At those times she was accompanied only by a small child. These facts do not show the commission of the crime of detencion ilegal. She was, by the servants of the defendant and a soldier of the Constabulary, compelled, against her will, to leave her house and go with them, in company with her aunt, to the defendant's house. These facts prove the commission of the crime of coaccion, punished by article 497 of the Penal Code. The offense charged in the complaint is detencion ilegal. That crime can not be committed without committing that form of coaccion which consists in compelling one to do what he does not wish to do. The latter is therefore necessarily included in the former, and under this complaint for detencion ilegal the defendant can be convicted of this form of coaccion. (G. O., No. 58, sec. 29.) The aggravating circumstance of sex, mentioned in No. 20 of article 10 of the Penal Code, should be taken into consideration. The judgment below is reversed and the defendant is found guilty of the crime of coaccion, and is sentenced to six months of arresto mayor, to a fine of 325 pesetas, and the payment of 25 pesos as indemnity to said Sotera Jico, and to the payment of costs. Arellano, C. J., Torres, Cooper, Mapa, and McDonough, JJ., concur.

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G.R. No. 1225, August 21, 1903

THE UNITED STATES, COMPLAINANT AND APPELLEE, RS. SATURNINO DE LA CRUZ ET AL., DEFENDANTS AND APPELLANTS. D ECIS ION
WILLARD, J.: The Solicitor-General asks that the judgment in this case be reversed and that the defendants be acquitted of the charge of brigandage. We concur in the following statement taken from his brief: "With respect to the crime of brigandage, the evidence for the prosecution ought to have shown, in such a manner as to leave no room for doubt, that there existed a band of ladrones such as is described in Act No. 518; that the aim and purpose of this band were no other than to commit robbery, by means of force and violence, and that the accused had joined the band as members of the same. "There is evidence in the case which shows the existence of an armed band commanded by Saturnino de la Cruz, and that his codefendants were members thereof; but there is absolutely nothing tending to show the aim and purpose of the band. "The sequestration of the Chinaman Barretto, for the purpose of compelling him to form part of the Bulacan branch of the Katipunan Society, of. which branch the accused Saturnino de la Cruz is colonel and his coaccused soldiers; the fact of the Chinaman's having recovered his liberty as soon as he had written his signature in the Katipunan book, and without having lost any of his personal property, are facts which, far from showing that the purpose of the band of Saturnirio de la Cruz and his codefendants was to commit robbery, indicate the contrary. * * * "In accordance with the above-mentioned Act No. 518, proof that the aim of an armed band is to commit robbery is necessary in order that the members of such band may be considered guilty and convicted of brigandage. And as the prosecution has not offered such proof the conviction of the accused is not justified." From that statement there should be excepted, however, the defendant Basilio Reyes. There is no evidence that he was a member of the party which assaulted the house of the Chinaman Barretto. The only evidence in the case to convict him either of brigandage or any other crime, is the statement by one of the police that a dagger was found in the house where he was arrested. The judgment against all of the defendants-appellants is reversed, and they are acquitted of the charge of brigandage, with costs de oficio. As to all except Basilio Reyes, there is evidence in the record Avhich requires that they should be prosecuted for rebellion or insurrection under section 3 of Act No. 292, as suggested by the Solicitor-General, and perhaps also for murder. Arellano, C. J., Torres, Cooper, Mapa, and McDonough, JJ., concur.

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G.R. No. 1226, September 04, 1903

THE UNITED STATES, COMPLAINANT AND APPELLEE, VS. DOROTEO SABIO, DEFENDANT AND APPELLANT. D ECIS ION
MCDONOUGH, J.: The defendant was charged with the crime of frustrated murder, committed in the city of Manila November 2, 1902, in that he did then and there willfully, feloniously, and with deliberate premeditation assault Aniceto Reyes by attempting to shoot him. The defendant was placed upon trial in the Court of First Instance of Manila December 17, 1902, and was convicted and sentenced to imprisonment for a term of eight years, and to pay the costs of the prosecution. The defendant and Aniceto Reyes were members of the Constabulary, and, on November 2, 1902, they were engaged in gambling in their quarters. During the game a dispute arose between Reyes and the defendant regarding a debt of 30 cents, which the defendant claimed Reyes owed him. The defendant demanded payment of this sum, and Reyes asked for a little time to make payment, not desiring to then open his box in which he had money and upon which they were sitting during the game. Thereupon this witness and the defendant got into a fight, using their fists and uttering obscene language. The defendant withdrew from this quarrel, went to the gun rack near by, took down a gun, loaded' it, and aimed it at the witness, who testified that the defendant insisted on trying to shoot at the feet of the witness, and during a struggle between the two for the gun it was discharged by the defendant, the bullet striking the floor about 5 inches from the feet of the witness. In the quarrel, before the discharge of the gun, each party claimed that the other struck the first blow. Reyes testified that when he saw the defendant coming toward him with the gun, he was about 3 yards away. He had the gun in his hand, and said to the witness, "Are you going to pay me or not?" Reyes answered, "Yes, I will pay you. "Wait a minute. I have my money in the box;" and then the defendant pushed Reyes with the gun, and Reyes grabbed it. Francisco Gaspar, a member of the Constabulary, testified that he was present on the occasion in question; that the defendant was losing money in the game, and, needing more, he was trying to collect from tteyes 30 cents. Reyes said, "Wait a minute; I won't pay you," Defendant then stood up and said, "Won't you pay me?" and they started to fight. Defendant was smaller than the other man, and when he could fight no longer he ran away and got a gun, and when the other saw him coming with the gun he jumped at once, and went to meet him, took hold of the gun, and told him to let go of it. He would not give up the gun, and discharged it. The defendant and Reyes had bunks within a few feet of each another in tho barracks. The carbines were kept in a rack, and defendant took the carbine from the rack, about 3 brassas from where they were gambling. Witness testified that he saw defendant load the gun. Reyes struck the first blow. He stood up and said lie would not pay defendant and then struck him, and defendant stood up and struck

Reyes when he said he would not pay him. Defendant was sworn in his own behalf and testified substantially as did the other witnesses regarding the gambling, the debt of 30 cents, the demand for it, the refusal, and the fight. He said he ran and grabbed the gun with the intention of hitting Reyes with the butt of it. Reyes caught hold of the gun and tried to take it away, and during the struggle the shot was fired. In order to convict the defendant in this case of the crime of frustrated murder, it was necessary to prove that the defendant with deliberate premeditation intended to kill Reyes. The crime of frustrated murder is committed when the guilty person performs all the acts of execution which should produce the crime as their consequence, but nevertheless do not constitute it by reason of causes independent of the will of the perpetrator. Evidently the defendant had not the intent to kill. He did not aim to kill. He did not threaten to kill. Nor can it be inferred, as it was in the court below, that an intent to kill was proved when the defendant testified that he intended to hit Reyes with the butt end of his gun. Such a blow might do bodily harm and might not, depending on its force and the part of the body struck; it might even result in death, but the conclusion does not follow that the defendant with deliberate premeditation tried to kill Reyes, The defendant, however, violated article 408 of the Penal Code in that he discharged a firearm at Reyes. He is therefore convicted of the crime of discharging a firearm at a person, and is sentenced to imprisonment for one year and one month provisional correccional with costs de oficio. Arellano, C, J., Torres, Cooper, Willard, and Mapa, JJ., concur.

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G.R. No. 1227, May 13, 1903

THE UNITED STATUS, COMPLAINANT AND APPELLEE, VS. HOWARD D. TERRELL, DEFENDANT AND APPELLANT. D ECIS ION
MCDONOUGH, J.: The defendant and appellant, Howard D. Terrell, was convicted, in the Court of First Instance, city of Manila, of estafa, under article 535 of the Penal Code, on the charge of having on the 1st day of December, 1902, in the city of Manila, received and obtained of William Turtherly a valuable consideration, to wit, the dissolution of the partnership of Terrell & Tutherly, consisting of Howard D. Terrell and William Tutherly, by selling and transferring to said William Tutherly a certain law library, then in the office of said Terrell, together with other property, and by willfully, knowingly, falsely, and fraudulently representing to said William Tutherly that the said law library wan then the unencumbered property of the said partnership of Terrell & Tutherly, and that the interest of said Terrell therein was unencumbered; and by willfully, knowingly, falsely, and fraudulently concealing the fact that he, the said Terrell, had heretofore, to wit, on the 28th day of December, 1901, sold said library, together with other personal property, to Jacinto Lim Jap; and the fact that said Terrell had, on the 16th day of April, 1902, sold and transferred the said law library, with other property, to A. S. Stevens, contrary to the statute in such case made and provided. The proof does not show that any testimony was taken regarding the alleged sale to A. S. Stevens, and that part of the complaint seems to have been abandoned. The fact was established that the defendant, desiring to borrow from Jacinto Lim Jap 1,000 pesos in .Mexican currency, wrote a letter to him on the 28th of December, 1901, asking for a loan of that amount, for thirty days, and with the letter inclosed the promissory note of the defendant for that sum and also a bill of sale, absolute in form, of his law library, carriage and team of horses, and book accounts, stating in the letter that the bill of sale was sent as security for the loan. On the 29th day of December, 1901, Jacinto Lim Jap delivered to the defendant the 1,000 pesos, and retained the note and bill of sale; but he did not take possession of the law library or other personal property at that time, or at any subsequent time; nor did he demand possession of the same, or take any legal steps at any time to obtain possession or control of this property. The law library remained in the possession of the defendant; and on the 14th of August, 1902, on the formation of a partnership with William Tutherly for the practice of law, the defendant sold to William Tutherly a half interest in the law library; and on the 1st day of December, 1902, on a dissolution of said partnership, he sold his remaining half interest in said library to William Tutherly. There is no charge in the complaint that the defendant, by these sales, defrauded Jacinto Lim Jap. There is, however, a charge that he defrauded William Tutherly by falsely and fraudulently representing to him that the property was unencumbered, and by fraudulently concealing from him the fact that the property had been sold to Jacinto Lim Jap.

In order to sustain a criminal charge of fraud or cheating, it is necessary to specify the person defrauded, and to prove that the design was successfully accomplished, at least so far as to expose the person to danger of loss. At the time of the sale of the books to William Tutherly they were not encumbered, because Jacinto Lim Jap had not complied with the requirements of the law to make his security good. Mr. Tutherly, therefore, acquired a good title to the library, and was not, therefore, wronged, deceived, or defrauded; hence the prosecution failed to make proof of the offense charged in the complaint. The learned judge before whom the cause was heard reached the conclusion, however, that although the proof showed that no fraud had been committed on Mr. Tutherly, it did show that the defendant practiced a fraud upon Jacinto Lim Jap in actually reselling and delivering the books to Mr. Tutherly, because Lim Jap "had a right to assume that the defendant would stand ready upon demand to comply with the terms of said contract," and by the reselling of the property Lim Jap "lost his right to recover the said property or enforce his lien, if lien it may be called, against the described property." It may be that Lim Jap had a right to "assume" that the defendant would comply with the terms of his contract, that he would pay the debt when due and deliver the personal property if demanded, but it does not follow that a failure on the; part of the defendant to fulfill his promises, express or implied, constitutes a crimethe crime of estafa. Fraud is not to be presumed or assumed; it is to be proved; and it might as well be said that a failure to pay the 1,000 pesos, when due, constituted a fraud on Lim Jap, as to say that a failure to hold the library for him amounted to fraud. While the bill of sale delivered by the defendant to Lim Jap appears on its face to be an absolute sale of the books, etc., the letter of the defendant accompanying it states in effect that it was a transfer of the. property as security for the loan, and both parties treated it, throughout the trial, as security or an offer to pledge the property for the payment of the debt, It has been frequently held that an instrument in the form of a bill of sale may be construed as a pledge. (Denis on Contract of Pledge, 93.) If it should be assumed that lim Jap had a valid lien; on these books, even then the defendant had ownership in them, which he had a right to sell. On the question of pledges the civil law and the common law are alike; and at common law it has been held that a pledgor is still the general owner of the property, and may transfer it upon good consideration and by proper contract, subject to the rights of the pledgee. (Whitaker vs. Summer, 20 Pickering, Mass., 405.) Hut the answer to the finding of the court below that Jacinto Lim Jap, because of the sale of the books to Mr. Tutherly, lost his right to enforce his lien against the property, is simply this: He never had a lien upon the books; he never took steps to acquire a lien; he never complied with the requirements of the law. Under the Civil Code (art. 1863) it is necessary, in order to constitute the contract of pledge, that the pledge should be placed in possession of the creditor, or of a third person, bv com in on consent. This is also the rule at common law. "It is of the essence of the contract," says Judge Story in his work on bailments, [1] "that there should be an actual delivery of the thing to the pledgee. Until the delivery of the thing, the whole rests in an executory contract, however strong may be the engagement to deliver it; and the pledgee acquires no right of property in

the thing." The creditor acquires no right in or to the property until he takes it into his possession, because a pledge is merely a lien, and possession is indispensable to the right of a lien. Jacinto Lhn Jap, through his failure or neglect to take this property into his possession, must be presumed to have waived the right given him by the contract to make good his lien, if he saw fit to do so. It has been held that an abandonment of the custody of the articles over which the right extends necessarily frustrates any power to retain them, and operates as an absolute waiver of the lien. The holder, in such a case, is deemed to yield up the security he has upon the goods, and trusts to the responsibility of the owner. (Walker us. Staples, 5 Allen, Mass., 34) It follows that the element of possession failing, there can be no pawn or pledge, and that the possession of the defendant, with the consent of Jacinto Lim Jap, was absolute and unqualified, and not special or subordinate, and that lie committed no crime in selling the property. In two cases decided by this Court the principles of law involved in this case were passed upon, and in both cases it was hold that no crime had been committed. In the case of the United States vs. Mendezona, decided February 10, 1903,[1] where the defendant sought and obtained a loan, and, in consideration of the loan, promised to secure1 the creditor by giving a mortgage on certain real property, but failed to execute and deliver the mortgage, and, in fact, sold the property to another party, it was held that the defendant did not by these acts commit the crime of estafa, because at the time the loan was made he possessed the title to the property and was the owner, and therefore in contracting the debt in his personal capacity he did not act in bad faith, nor did he employ deceit, since the mere failure to comply with the contract or obligation does not constitute the crime of estafa. The other case is that of the United States vs. Apilo, decided October 9, 1900. In that case the defendant obtained a loan, pledging as security therefor horses, carriages, and other vehicles. In the document of pledge it was expressly stated that the debtor would not sell or encumber the pledged property, which was left in his possession. Notwithstanding this express promise not to sell the property, the defendant, in that case, shortly after obtaining the loan, sold the property and thereupon the creditor caused him to be prosecuted for estafa. The facts in that case were more favorable to the prosecution than are the facts in this Terrell case, because of the express covenant on the part of Apilo not to sell the property. Terrell made no promise whatever to hold the library for his creditor, and yet this court held that Apilo, in disposing of the property, did not defraud his creditor, and that his acts did not constitute the crime of estafa. The court stated in the Apilo case that the contract of pledge was not legally consummated because "the objects of which the pledge was to consist were not placed in possession of the creditor, nor of a third person, but remained in the possession of the debtor, who, having the free disposition over those objects as if they were his own, committed no infraction of the penal law by transferring them." In view of these decisions and of the authorities cited above, the court below erred in convicting the defendant of the crime of estafa. The judgment of the court below is reversed, and the defendant is acquitted, with the costs of both instances de oficio.

Arellano, C. J., Torres, Cooper, Willard, Mapa, and Ladd, JJ., concur.

[1] Story on Bailments, 297. [1] 1 Phil. Rep. 696.

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G.R. No. 1228, March 10, 1903

JUAN ARANETA, PETITIONER, VS. THE HEIRS OF TRANQUILINO GUSTILO, RESPONDENTS. D ECIS ION
LADD, J.: This is a petition for a writ of certiorari to review the action of the Court of First Instance of Occidental Negros in requiring a supersedeas bond under section 144 of the Code of Civil Procedure. It does not appear from the petition what the amount involved in the litigation is, nor in what sum the bond was fixed by the court, but it is alleged that the bond is excessive. The court below had jurisdiction to require the bond as a condition of a stay of execution, and to fix its amount. Assuming that the bond was excessive, yet nothing is alleged in the petition which shows that the court exceeded its jurisdiction in the premises or committed any irregularity in its proceedings in exercise thereof. The writ must therefore be denied. (Code of Civil Procedure, sections 514, 217, 220.) So ordered. Arellano, C. J., Torres, Cooper, Willard, and Mapa, JJ., concur.

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G.R. No. 1229, August 19, 1903

FRANCISCO GALI, COMPLAINANT AND APPELLANT, VS. FAUSTINO SAHAGUN ET AL., DEFENDANTS AND APPELLEES. D ECIS ION
ARELLANO, C.J.: We find the accused guilty. There is not sufficient legal proof of the consent of the husband, for the mere fact that seven months passed without his having filed a complaint for the crime of adultery can not be regarded as such. It was error, therefore, to acquit the defendants, as did the court below in the judgment appealed, which appeal we consider solely in so far as it is presented by the injured husband, the only person entitled to institute proceedings for a crime of this class. We disregard the appeal taken by the fiscal. Therefore, taking into consideration the mitigating circumstance of article 11, and the minority of the woman (her age was 10), under article 9, paragraph 2, we condemn Faustino Salmgun to two years and four months of prision correcional, and Jacoba Agcanas to four months and one day of arresto mayor, and to the payment of costs. Torres, Copper, Wiliard, Mapa, and McDonough, JJ., concur.

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G.R. No. 1231, August 29, 1903

THE UNITED STATES, COMPLAINANT AND APPELLEE, VS. ISIDORO PASCUAL ET AL., DEFENDANTS AND APPELLANTS. D ECIS ION
WILLARD, J.: Upon the evidence in the case, the defendants can be convicted of the crime of brigandage only by taking into consideration certain confessions made by them to officers and soldiers of the Constabulary. Act No. 619, section 4, provides as follows: "SEC. 4. No confession of any person charged with crime shall be received as evidence against him by any court of justice unless it be first shown to the satisfaction of the court that it was freely and voluntarily made and not the result of violence, intimidation, threat,.menace, or of promises or offers of reward or leniency." There was no showing made in the court below as to whether the confessions were voluntarily made or not. The judge should not, therefore, have considered them. It is suggested that the defendants, not having objected to their admission, tacitly waived compliance with these statutory provisions. There Is force in this suggestion. But, whatever may be said of acquiescence by failure to object in other cases, in this special case the dispositions of the positive law are so strongly stated that we can not hold that they ran be ignored on account of the simple silence of the defendants. The result is that a new trial must be ordered, at which the fiscal will have an opportunity of complying with this law. The Solicitor-General has asked that the defendants be acquitted of the charge of brigandage and prosecuted for rebellion or insurrection. If the said confessions were voluntarily made, we think that there is sufficient evidence in the case to convict the defendants of brigandage. However, after the case is remanded it will be in the power of the fiscal, with the consent of the court, to dismiss the present complaint and present another one for the crime suggested by the Solicitor-General. We feel constrained to add that, in many cases coming from this province for the crime of brigandage, it seems to have been the opinion of the prosecuting officer that he made out a case by simply showing that the defendants belonged to a band that carried arms, without showing to what purposes the band was devoted. This is not sufficient. (United States vs. Saturnino de la Cruz, decided Aug. 21, 1903). [1] The judgment is set aside, and the case is remanded to the court below for a new trial, with costs of this instance de oficio. Arellano, C. J., Torres, Cooper, Mapa, and McDonough, JJ., concur.

[1] Page 431, supra.

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G.R. No. 1233, November 07, 1903

VICENTE MIRANDA, PLAINTIFF AND APPELLEE, VS. MUNICIPALITY OF NAVOTAS, DEFENDANT AND APPELLANT. D ECIS ION
WILLARD, J.: The trial of this case in the court below was fixed for November 25. The lawyer for the defendant was notified thereof on November 11. On the 24th of November he filed a motion for a postponement of the trial on the ground that he would be engaged in a criminal case in Manila on that day. The judge denied the motion. The case was tried on the 25th in the absence of the defendant, proof presented by the plaintiff, and a decision in his favor rendered by the court. The defendant assigns as error the refusal of the court to continue the case, and its trial in his absence. The decision of this court in Veloso vs. Ang Seng Teng, decided October 29, 1903,[1] fully covers this case and is conclusive against the defendant upon this point. It may be added, moreover, that the reasons stated by the judge below in his decision and in his order denying the motion for a new trial fully justified him. in refusing the postponement. The third, fourth, and fifth assignments of error can not be sustained. The defendant moved for a new trial on the ground of accident, but not on the ground that the evidence was not sufficient to justify the judgment. The bill of exceptions contains none of the evidence. By the terms of section 497 of the Code of Civil Procedure we could not review it even if it were here. The findings of fact stated in the decision are sufficient to support the judgment. The only exception in the record is to the judgment; questions as to the admissibility of evidence presented by the plaintiff are not open to us. The judgment is affirmed with costs of this instance against the appellant, and, upon the expiration of twenty days, reckoned from the date of this decision, judgment shall be rendered and the case returned to the court below for execution accordingly. Arellano, C. J., Torres, Cooper, Mapa, and McDonough, JJ., concur. Johnson, J., did not sit in this case.

[1] Page 622, supra .

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G.R. No. 1234, May 06, 1903

THE UNITED STATES, COMPLAINANT AND APPELLEE, VS. E. S. LEWIS, DEFENDANT AND APPELLANT. D ECIS ION
LADD, J.: The appellant was convicted October 24, 1902, by the Court of First Instance of Manila, of larceny, and sentenced to eight months of presidio correccional . He appealed, and November 4, 1902, he furnished a bond and wa^s admitted to bail by the trial court. The appeal has not yet come on for hearing in this court. Two motions have been presented, one by the Government asking that a period be fixed within which the sureties on the bail bond be required to bring the accused before this court, and that upon their failure so to do the bond be declared forfeited; the other by Mr. Tutherly, counsel for the appellant, who makes affidavit to the effect that his client has left Manila for parts unknown, and is probably beyond the jurisdiction of the court, and asks that all proceedings in the case be suspended during his absence. The presence of the appellant in this court is not necessary in order that the appeal may be heard and judgment rendered, nor do the sureties on the bail bond given by him undertake that he will be present in this court either before the hearing or at the hearing; their undertaking is "that lie will pay such fine as the appellate court may direct, or will surrender himself in execution of such judgment as the appellate court may render, or tluit, in case the cause is remanded for a new trial, lie will appear in the court to which it may he remanded and submit himself to the orders and processes thereof" (G.O., No. 58, sec. 65). The sureties may of course prevent the accused from leaving the jurisdiction, if they think it is unsafe to allow him to do so (G. O., No. 58, sec. 75) ; the court may increase the amount of the. bond if it is insufficient (G. O., No. 58, sec. 72), hut the Government can not enforce a forfeiture of the bond until a breach of the condition has occurred, which can not be before the rendition of judgment by this court. For the reasons stated, both motions are denied. Arellano, C.J.,Cooper. Willard, Mapa and McDonough, JJ., concur. Torres, J., did not sit in this case.

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G.R. No. 1236, November 30, 1903

THE UNITED STATES, COMPLAINANT AND APPELLEE, VS. PEDRO MAANO ET AL., DEFENDANTS AND APPELLANTS. D ECIS ION
WILLARD, J.: Juan Bermudez and his wife Francisca fully identified the defendants at the trial as two of the persons who entered their house on the night in question. The defendants say in their brief that both of these witnesses testified, at the preliminary investigation, that they did not know who their assailants were. This statement, so far as the husband is concerned, is not borne out by the record. There is nothing therein to show that he did not, upon the question of identity, testify before the justice in the same way that he did in the Court of First Instance. His wife explains her testimony before the justice by saying that she had never before been in a court and that she was so overawed by the judicial presence that she was not fully herself. That the naming of these defendants was not an afterthought, suggested subsequent to the examination in the justice court, is conclusively shown by the testimony of the sergeant of police who went to the house on December 26, two days after the robbery, for the purpose of investigating it. He says that the wife, Francisca, there told him that it was committed by the two defendants and others. The same day the sergeant presented the complaint to the justice of the peace, charging these defendants and one Ricardo with the crime. This was of course prior to any hearing before the justice. The failure of the complaining witnesses to mention, on the first examination before the justice, the taking of the money is not important. They did testify to the taking of a razor, a bolo, and two pocketknives. The taking of the money did not add anything to the offense; it did not make the crime different or its punishment greater. The evidence in regard to the alibi is not sufficient to overcome the positive testimony of identification by two witnesses who had known the defendants for a long time. The failure of the servant, Leon Sabal, to recognize the defendants is not strange. They remained in the sala, and the two unknown men came into the kitchen, where the servant was, bound him, blindfolded him, and left him there. He had no opportunity at all to see the defendants. The defense has made a motion in this court for a new trial on the ground of newly discovered evidence. Of the five affidavits presented, four of them relate to alleged attempts of Juan Bermudez to induce witnesses by bribery and threats to testify against the defendants. The trial was concluded on February 13, and the judgment was pronounced on February 14, yet one of these affidavits states that on February 16 Bermudez summoned him as a witness and promised him 100 pesos if he would testify against the defendants. The affidavit of Juan Evangelista, as to the alibi of the defendant Pedro, tends to weaken it rather than to strengthen it, by reason of the contradiction between his statement and those of the other witnesses for the defendants. Moreover, no reason is given why his testimony could not have been procured for the trial.

The showing is not sufficient to justify us in granting a new trial, and the motion is denied. We hold that the crime committed was that of bandolerismo under Act No. 518. The evidence is sufficient to support the judgment, and it is affirmed, Avith the costs of this instance against the appellants. Arellano, C. J., Torres and Johnson, JJ., concur.

DISSENTING MCDONOUGH, J., with whom concurs COOPER, J.: The information filed by the fiscal against the defendants is as followS: "The undersigned accuses Pedro Maano, Jacinto Maano, and other persons unknown, of the crime of brigandage, committed as follows: "At midnight on the 23d of December last, together with other persons unknown, the accused, armed with Remington rifles and war bolos, assaulted the house of Juan Bermudez, situate in the barrio of Pandacaque, of the municipality of Tayabas, taking from the owners of the said house, Juan Bermudez and Francisco Abracia, whom they beat and intimidated, the sum of f90.86 in money, and $4 in goods. This within the jurisdiction of this Court of First Instance of Tayabas, of the Seventh Judicial District of the Philippine Islands, and against the provisions of section 1 of Act No. 518." Upon this charge the defendants above named were placed upon trial, and the prosecution proved that, about 10.30 o'clock on the night of December 23, 1902, several men called to the occupants of the house to open it; that three voices were heard to call, and the call was repeated three times; that the inmates were afraid and did not approach the window; that then they heard an order given by two persons to discharge the guns, which was done; that shortly after they heard another voice saying, "Aim," and then two shots were fired and the bullets went through the walls of the house; that they saw the two defendants light a match for the purpose of setting fire to the roof near the stairway; and that the wife of Juan Bermudez then opened the door to them. Four men entered, "the first two and another being these defendants here present, armed with rifles." After entering, Pedro Maano again lit a match and wont toward the altar, where the lamp was, and lit it; then these two defendants asked for money, and the wife; gave them the money. As soon as Maano got the $86, Mexican, he said, "Do you know us?" To which the husband and wife replied, "No." All this occurred after they were bound and stretched out on the ground. These two defendants struck the husband with the butt end of the gun, and the defendant Pedro Maano demanded the rest of the money, and the reply was that there was no more, whereupon the two defendants struck the husband and wife with the butt end of the gun. Those who had the guns were Pedro and Jacinto Maano and one Ricardo, Four men with guns entered the house, and about five remained outside, armed with long bolos. In addition to the money there was taken other property consisting of bolos, penknives, and bowie knives. The husband and wife were illtreated, the former requiring five days in which to

recover from the effects. The foregoing is substantially all the testimony taken at the trial bearing on the crime committed and its character. No other testimonj' was received relating to the charge of conspiracy under section 1 of Act No. 518. Upon this state of facts the court below found the defendants Pedro Maafio and Jacinto Maano guilty of the crime of brigandage, committed in violation of section 1 of Act No. 518, which reads as follows: "Section 1. Whenever three or more persons, conspiring together, shall form a band of robbers for the purpose of stealing carabaos or other personal property, by means of force and violence, and shall go out upon the highway or roam over the country armed with deadly weapons for this purpose, they shall be deemed highway robbers or brigands, and every person engaged in the organization of the band, or joining it thereafter, shall, upon conviction thereof, be punished by death or imprisonment for not less than twenty years, in the discretion of the court." It will be noticed that in order to convict under this section it is not necessary to prove that the defendants actually stole carabaos or other personal property or committed larceny or robbery; in fact, section 2 of the act expressly provides tliat it shall not be necessary to adduce evidence of robberv or theft. All the proof that is required in order to establish the offense is (1) that three or more persons conspired together; (2) that they formed a band of robbers; (3) that such band was formed for the purpose of stealing carabaos or other personal property by means of force and violence; (4) that they went out upon the highway or roamed over the country armed with deadly weapons for this purpose; and (5t that the defendant or defendants engaged in the organization of the band or joined it after it was organized. And this proof need not be direct; it may be indirect or circumstantial. Nor did the majority of this court hold in the Decusin case (1 Off. Gaz., 730), [1] as is stated in the dissenting opinion, that the above-mentioned elements of the crime "must be proved by the evidence of witnesses who were present at the organization of the band and who can testify as to its purposes; and that the proof of the actual commission of the robbery is not sufficient." On the contrary, it is stated in the majority opinion that "the evidence in proof of conspiracy will generally, from the nature of the case, be circumstantial;" and that, as stated in Greenleaf on Evidence, 92-95, and in Kelly vs. People (55 N. Y., 565), "if it be proved that the defendants pursued by their acts the same object, often by the same means, one performing one part and another another part, so as to complete it with a view to the same object, the conclusion may be inferred that they engaged in a conspiracy to effect that object" The authorities cited to support this doctrine are worthy of consideration, and, as no authority has been adduced to the contrary, we may safely follow them. The question to be determined in this case, and which was decided in the Decusin case, is not whether the defendants are guilty of robbery for the evidence shows them to be guilty of that crime beyond a reasonable doubt, but it is whether or not the evidence is sufficient to convict them of the crime of conspiracy under section 1 of Act No. 518. It is stated in the dissenting opinion in the Decusin case that Act No. 518 does not create a new

crime. We think it does. That is not an act to punish the crime of robbery or larceny, for upon proof of the acts of the defendants mentioned in the law, they may be convicted, without proof, on the commission of robbery or larceny; and, if the conspirators or brigands go further, and not only violate the terms of Act No. 518, by conspiring for the purposes mentioned, by forming their armed band, and by going out upon the highway or roaming over the country, acts which complete the conspiracy and the crime, but, in addition to this, if they commit robbery or larceny, they may be convicted in another trial, on the charge of robbery or larceny, as the case may be. The offense committed under Act No. 518 is a felony, highly penal, and it does not merge in the felony of robbery or larceny committed by the same band; nor does the robbery or larceny merge in the conspiracy. Hence, Act No. 518 and the provisions of the Penal Code relating to robbery and larceny are not in conflict, and the former does not expressly or impliedly repeal or modify the latter, for they do not relate to the same crimes. It has been held that, where the defendant was acquitted of larceny and subsequently indicted for obtaining the same goods under false pretenses, there was no merger and that the defendant was lawfully convicted of the latter crime. (1 Bishop's Criminal Law, section 1053, subdiv. 4; 34 Texas, 667.) Bishop also states, in the same section, that after acquittal for larceny the defendant may be convicted of obtaining the same chattels through a conspiracy with third persons. At common law, where a person by the same act committed two crimes, one a felony and the other a misdemeanor, the latter merged in the former, but if the crimes were both of the same degree, both felonies or both misdemeanors, there was no merger. (Clark's Criminal Law, 35; 1 Bishop's Criminal Law, sections 787, 788, 804, etc.) Under Act No. 518, the two offenses, brigandage and robbery, all felonies, can not be committed by the same act, for the act or acts that complete the crime of brigandage precede, and must necessarily precede, the robbery; or, in other words, the conspiracy is complete before the robbery begins, and they are, therefore, separate and distinct offenses. If three or more persons were tried and convicted under Act No. 518, and subsequently if the same persons were put upon trial for robbery, committed while members of the band, they could not set up a former conviction in bar and plead their constitutional right not to be put in jeopardy twice for the same offense, because the acts differ, the proofs differ, and the crimes differ. (4 Bl. Com., 336; Commonwealth vs. Roby, 12 Pick., Mass., 496; People vs. Majors, 65 Cal., 138.) The very definition of a conspiracy makes this point clear. "It is a combination of two or more persons, by some concerted action, to accomplish some criminal or unlawful purpose, or to accomplish some purpose not in itself criminal or unlawful, by criminal or unlawful means." (Pettibone vs. United States, 148 U. S., 197.) It is not necessary, therefore, that the object for which the criminal purpose entered into should be accomplished in order to complete the crime; and this is especially true of the crime of conspiracy mentioned in Act No. 518, for the act itself says that it shall not be necessary to prove the robbery or theft. It therefore follows that this act does create a new crime; and that it is not in conflict with the provisions of the Penal Code relating to robbery or larceny. The proof in this case clearly shows robbery, under article 502 of the Penal Code; and from this proof of robbery, and this proof alone, must Ave infer or conclude, in the language of the act, "beyond reasonable doubt that the accused wrere members of such an armed band?"

In the Decnsin case, on a similar state of facts, a majority of the court held that such inference or conclusion was not warranted by the evidence in that case; and that it was necessary to prove directly, or by circumstantial evidence, something more than the bare fact of robbery committed by three or more armed men, in order to justify the conclusion that those men conspired together and formed a band of robbers for the purpose of stealing personal property and went out on the highway or roamed over the country armed with deadly weapons for this purpose. A brigand is defined in Webster's International Dictionary as a "lawless fellow who lives by plunder; one of a band of robbers, especially one of a gang living in mountain retreats; a highwayman; a freebooter." In the same book a robber is defined as "one who feloniously takes goods or money from the person of another by violence, or by putting him in fear." From these definitions, it may be reasonably concluded that, while every brigand is a robber, every robber is not a brigand, and so this court held that the proof which was sufficient to convict the accused of robbery was not sufficient to convict them of brigandage under Act No. 518. It may be asked, how can the crime of conspiracy, mentioned in the act in question, be proved other than by showing robbery by an armed band of three or more persons? Here is the answer of Judge Speer in the case of the United States vs. Lancaster (44 Fed. Rep., 896) : "What is the nature of the proof necessary to support a charge of conspiracy? The first cardinal rule of existence is this: After evidence showing the existence of the conspiracy is submitted to the jury the acts of the conspirators may, in all cases, be given in evidence against each other, if these acts were done in pursuance of the common illegal object. * * * "It is not required that the conspiracy or the act of conspiring be proved by direct testimony. It is indeed competent to show the conspiracy by showing disconnected overt acts, where the proof also shows that the conspirators were thrown together, or acted through a common medium, and had a common interest in promoting the object of the conspiracy. "A common design is the essence of the charge of conspiracy, and this is made to appear when the parties steadily pursue the same object, when acting separately or together, by common or different means, all tending to the same unlawful result." Judge Dyer, in the case of the United States vs. Goldberg (25 Fed. Cases, 1342), tried in the circuit court of Wisconsin, in discussing this question, said: "The understanding, combination, or agreement between the parties, to effect the unlawful purpose charged, must be proved, because without the corrupt agreement or understanding there is no conspiracy, but circumstantial evidence may be resorted to to show the agreement or conspiracy. "The acts of the parties, the nature of the acts, their declarations and statements, whether verbal or in writing, and the character of the transactions, with the accompanying circumstances as the evidence may disclose them, should be investigated and considered as sources from which evidence may be derived of the existence or nonexistence of the agreement which may be expressed or implied to

do the alleged unlawful act. "The burden of proof is on the Government to prove what it affirms, by legal and competent evidence." The evidence in the case at bar falls far short of the proof pointed out by Judges Speer and Dyer. It does not show the very essence of the crime charged, viz, a "common design," the "understanding, combination, or agreement," on the part of those engaged in the robbery, to form an armed band of robbers for the purpose of stealing carabaos or other personal property, and that for that purpose they went out on the highway or roamed over the country. In other words, it does not show that they formed a band of brigands and went out as brigands, which is the crime charged; nor can such essence of the crime be fairly inferred beyond a reasonable doubt, from the facts proved. In the case of the United States vs. Newton (52 Fed. Rep., 275) it was laid down as law, in a case of conspiracy to defraud the United States, that the evidence must show (1) that the conspiracy charged existed; (2) that the overt act charged was committed; and (3) that the defendant was one of the conspirators. In the case before us the overt act alleged, the robbery, has been proved, and the fact that the defendants took part in its execution, but we have no direct proof relative to the conspiracy. It is said, however, that we may infer it from the fact that the accused took part in the overt act alleged, which, by the way, is not the overt act required to be shown by Act No. 518. In order to justify the inference of legal guilt from circumstantial evidence, the existence of the inculpatory facts must be absolutely incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of guilt. (Burrell on Criminal Evidence, sec. 737.) The inculpatory facts in the case at bar are not incompatible with innocence of the crime of conspiracy, nor incapable of explanation upon any other reasonable hypothesis than that of being guilty of conspiracy; they may be explained on the reasonable hypothesis that the defendants intended to commit the robbery in questionan entirely different crime. It was said in the case of Pogue vs. State (12 Tex. Ap., 283-294) that if the inculpatory facts and circumstances are capable of two or more explanations, one of which is consistent with the innocence of the accused (of the crime charged, of course), and the other consistent with his guilt, then the evidence does not fill the test of moral certainty, and is insufficient to support the conviction. In the celebrated Webster case (5 Cush., Mass., 312-313) Chief Justice Shaw, in discussing this subject, stated: "In case of circumstantial evidence, where no witness can testify directly to the fact to be proved, it is arrived at by a series of other facts, which by experience have been found so associated with the fact in question that in the relation of cause and effect they lead to a satisfactory and certain conclusion; as when footprints are discovered after a recent snow, it is certain that some animated being has passed over the snow since it fell, and, from the form and number of footprints, it can be determined with equal certainty whether they are those of a man, a bird, or a quadruped.

"Circumstantial evidence, therefore, is founded on experience and observed facts and coincidents establishing a connection between the known and proved facts and the fact sought to be proved. "The advantages are that, as the evidence commonly comes from several witnesses and different sources, a chain of circumstances is less likely to be falsely prepared and arranged, and falsehood and perjury are more likely to be detected and fail of their purpose. * * * "It is manifest that great care and caution ought to be used in drawing inferences from proved facts. * * * "The inference to be drawn from the facts must be a natural one, and to a moral certainty, a certain one. It is not sufficient that it is probable only; it must be reasonably and morally certain." The reasonable and natural inference in this Maano case does not lead us to a moral certainty that the defendants were not only guilty of the robbery but were also guilty of conspiracy for the purposes mentioned in section 1 of Act No. 518. Otherwise we should have to reach the conclusion, in every case where the evidence showed robbery committed by three or more men armed with dangerous weapons and showed nothing further, that the perpetrators were brigands as defined by law and that they must be convicted of brigandage instead of robbery. Suppose three servants employed in a hotel ascertain that a guest has in his room a sum of money, and these servants arm themselves with bolos or revolvers, go to the room, intimidate the guest, and take forcible possession of his money. On such a state of facts there could be no doubt about characterizing this crime as robbery, but could it be inferred, beyond a reasonable doubt, that they would be guilty also of conspiring together to form an armed band of brigands for the purpose of stealing carabaos or other personal property and that they actually went out on the highway or roamed over the country for that purpose? Such an inference would not be "a reasonable or natural one and to a moral certainty a certain one." It would not be even probable; it would be wholly illogical. Many examples of this kind might be suggested where it would not follow as a lawful conclusion, or deduction from the bare proof of robbery, that the criminal acts mentioned in Act No. 51S wove committed. Something more than the fact of robbery must be shown. Thus in the case of Newel vs. Jenkins (26 Penn. St. Kept., 159) in an action against a prosecutor, a magistrate, and a constable for conspiring together to arrest and imprison a person without probable cause, it was held that evidence that each one acted illegally or maliciously would not support the action without proof that the defendants combined and conspired together to do such acts. For similar reasons it must be slrown here that the defendants conspired together to do, and did do, the acts made criminal under the act in question. If we are to jump at conclusions, if we are to draw inferences and deductions not warranted by the facts or the law, why could we not just as well convict the defendants in this case of sedition as of conspiracy?

The facts show that nine men, four armed with rifles and five with bolos, and in a tumultuous manner, took part in tliis robbery, and despoiled Juan Bermudez and Francisca Abracia of their property. To despoil is to take by violence, or clandestine means, the property of another. (Senol vs. Hepburn, 1 Cal., 268.) Section 5 of Act No. 292 of the Philippine Commission provides that all persons who rise publicly and tumultuously, in order to attain by force or outside legal methods any of the following objects, are guilty of sedition; and one of these objects is (subdiv. 5) "to despoil, with political or social object, any class of persons, natural or artificial, a municipality, a province, or the Insular Government," etc. It surely could not be reasonably inferred that, because the defendants here took part in despoiling natural persons, therefore they violated this sedition law. It may be observed at a glance that, to convict under that act, it would be necessary not only to prove a violation of the terms of section 5 of the act but also the act of despoliation under subdivision 5 with a political or social object . and surely this object or purpose could not be reasonably or logically inferred from the mere act of despoliation. For like reasons we can not infer the existence of the crime of conspiracy or brigandage from the naked fact of robbery and without any proof whatever of the intention of the defendants to organize and go out in violation of Act No. 518. We should not lose sight of the words of Justice Shaw, "that it is manifest that great care and caution ought to be used in drawing inferences from proved facts." We know from the evidence before us that the defendants intended to commit robbery; we can not safely guess that they also intended to form such a conspiracy as is defined by Act No. 518. It has been suggested that this case may be distinguished from that of Decusin, because there the accused were armed with bolos, whereas here four were armed with rifles. In Act No. 518 the words "armed with deadly weapons" are used. This court has repeatedly passed upon cases in which the term of imprisonment depended upon whether the accused were armed or not, and it has invariably been held that when the offenders had bolos at the time of the commission of the offense they were " armed," and this holding seems reasonable and proper, because it is a matter of common knowledge in these Islands that a blow or a stab administered with a bolo may be as dangerous and deadly as a wound made by a rifle ball. A deadly weapon is not exclusively one designed to take life or inflict bodily injury. (Blige vs. State, 20 Fla., 742; 51 Am. Rept, 628.) It follows that the defendants are guilty of robbery, and not of conspiracy or brigandage under Act No. 518.

[1] Page 536, supra .

DISSENTING

MAPA, J.: I do not concur in the opinion of the majority of the court. In my opinion the facts proved constitute the crime of robbery, and not that of brigandage, defined and punished by Act No. 518 of the Commission.

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G.R. No. 1237, September 30, 1903

THE UNITED STATES, COMPLAINANT AND APPELLEE, VS. LEONARDO GUINACARAN ET AL., DEFENDANTS AND APPELLANTS. D ECIS ION
TORRES, J.: On January 30, 1903, the provincial fiscal of Tayabas Province filed a complaint in the Court of First Instance charging the defendants Avith having, under the guise of insurgents, committed the crime of brigandage. The defendants were Leonardo Guinacaran, a so-called colonel of the organization; Juan Par, Gregorio Palmero, and Bonifacio Andalis, denominated majors; Lucio Santamina, Catalino Verdan, Roque Principe, Estanislao Padines, Eufemio Principe, Julio Benito, Egmidio Sarmiento, Abdon Andalis, and Dionisio Andalis, captains; Sergio Andalis, Vicente Parafina, Candido Machete, Pedro Garin, and Carlos Principe, first lieutenants; Sinforoso Principe, Oornelio Urlanda, Crisanto Sol, Nicolas Principe, and Carlos Principe, second lieutenants of the organization, and Pablo Par and Patricio Verdan, sergeants. The organization was known as "The Liberating Army of the Philippines." The complaint also included one Feliciano Andalis. The defendants were charged with having committed the crime of brigandage in the following manner: Late on the night of December 27, 1902, they entered the house of Pantaloon Losing, situated in the barrio of Calutan, town of Unisan, Tayabas Province, in the Seventh Judicial District, and stole therefrom money and such other personal property as they thought they could make use of, consisting of a boiler of the value of $3.50, five gantas of rice worth $2.50, twelve plates worth $3.60, four suits of clothes worth $24, a pair of shoes valued at $2.50, a hat wortli $5, two undershirts'worth $1.50, two pairs of drawers valued at $1.50, nine shirts valued at $35, a ship's lamp of the value of $50, eight chemises worth $28, three aprons worth $7.70, a pair of earrings worth $10, a comb set with pearls valued at $7, a stick pin set with pearls valued at $6, a gold ring set with pearls worth $6, and certain documents of credit, the total value of the property stolen being equivalent to $180, Mexican currency. Not content with having committed this theft, they kidnaped the owner of the house, Pantaleon Losing, and his wife, Cirila Ubal. They bound Pantaleon and carried him and his wife to the place called Puting Lupa, where they had what was called "The encampment of the Liberating Army of the Philippines." The prisoners were there each tied to a tree, and Pantaleon Losing, after having been beaten with a club, was taken before the so-called "lieutenant-commander of the army," one Esteban Deseo, who, after holding a council of Avar, condemned both the prisoners to the penalty of death; all this in violation of the provisions of section 1 of Act No. 518. The information also included Lucas Pureza, Martin Principe, Cornelio TJrlanda, Nicolas Principe, Pablo Par, Maria Aguilar, Apolonia Alba, Prisca Principe, Teofila Aguilar, Vicenta Aguilar, Primitiva Aguilar, Policarpia Mulata, Benita Causapin, Eufina Principe, Fausta Uri, and Filomena Estrada, upon the charge that before, during, and after the commission of the crime prosecuted herein they gave aid and comfort to the band of brigands of which the accused above named constituted a part, by furnishing them and other members of the band with information

concerning the movements of the police, receiving stolen property from them, providing them with food, clothes, and ammunition, and otherwise aiding and abetting them, in violation of section 4 of Act No. 518. The trial having been commenced, the complaining witness, Pantaleon Losing, was examined. He testified that he knew all the accused, some of them being residents of his barrio, and others living in barrios near by; that late on the night of December 27, 1902, while asleep with his wife and other persons in his house in the barrio of Calutan, he was aroused by the presence therein of Juan Par, Juan Magnay, and Candido Machete, who were looking for the witness and his wife, Cirila; that Par and Machete seized and bound the witness, while Magnay did the same to Manuel Alba, who, with the brothers Julio and Brigido Benito, composed the three other persons mentioned who were passing the night there; that the four were then taken out of the house and that after leaving it Hilario Pureza struck the witness a blow on the right arm with a club; that Pureza ordered that the witness's wife, Cirila, be brought out of the house, and that the prisoners were then conducted to the so-called encampment of the malefactors, situated at Puting Lupa or Mabugabuga; that they arrived at this place at about 10 o'clock the following morning and were there held in confinement, the witness with his feet in stocks; that upon being brought before the second in command of the organization, Esteban Deseo, the latter condemned them to death for having, as he said, informed the Constabulary of the departure of the chief of the band, Felipe Verastegni, for the Island of Marinduque, on which occasion Verastegui was surprised and killed by Inspector Julio Herrera and his soldiers; that the witness begged Deseo and the other chief officers, Gabriel Banal and Hilario Pureza, to delay the execution of this sentence in order that he might prepare himself for death, which request was granted; that on the day following, which was the (ith of January, the day devoted to the celebration of the festival of the Three Kings and on which he was to be put to death, the encampment was attacked by the Constabulary and volunteers and that the malefactors thereupon fled, but that owing to the distance of the place of confinement of the witness from the encampment the Constabulary failed to discover him at that time; and that as he was unable to free himself from the stocks he remained imprisoned until the following Sunday, when the Constabulary returned to the place and found him; that on the night of the assault the malefactors stole from his house clothing, a sail, and other goods, including jewelry and documents of credit, to the value of 180 Mexican pesos; that while at the encampment he recognized among other persons there Leonardo Guinacaran, Egmidio Sarmiento, Bonifacio Andalis, Abdon Andalis, Sergio Andalis, Pablo Par, Pedro Garin, Juan Par, Eufemio Principe, Nicolas Principe, Carlos Principe, Roque Principe, Sinforoso Principe, Carlos Principe, jr., Candido Machete, Jacinto Sol, Lucas Pureza, Martin Principe, Catalino Verdan, Patricio Verdan, Lucio Santamina, Dionisio Andalis, Gregorio Palmero, Estanislao Pardines, and Cornelio Orlanda, and others whom he could not remember; that the men who stayed in this encampment lived on food which was stolen from day to day in the neighboring barrios, and that they were armed with rifles, shotguns, revolvers, lances, large bolos, and daggers. Cirila Ubal, wife of the complaining witness, and Manuel Alba, Brigido Benito, and Julio Benito corroborated the testimony of Pantaleon Losing, the woman, Cirila, adding that as she and her husband were led off by some of the malefactors a number of their companions entered the house to search it; that while she and her husband were held as prisoners they were courtmartialed on a charge of having given information to the Constabulary of the whereabouts of Felipe Verastegui, a so-called general, who was surprised and killed by the Constabulary, and that on this account the generals, Esteban Deseo, Gabriel Banal, and Hilario Pureza, accompanied by Egmidio Sarmiento, notified them on the 5th day of January that they must

prepare for death, as she and her husband were to be shot on the following day, the 6th; that at noon on the day designated for their execution the encampment was surprised by the Constabulary and volunteers, and that the malefactors having fled she was rescued by Lieutenant Herrera and taken to the town. Manuel Alba further stated that he succeeded in escaping on the night of the assault, owing to the darkness and confusion and hid in the neighboring forest; that early on the morning of the day following he presented himself before the municipal authorities for the purpose of reporting all that had taken place; that lie believed those who assaulted Losing's house were engaged in robbery and stole from the townspeople, as he had heard a number of people complaining of being robbed by brigands who formed a part of this band. Julio Benito stated that he had recognized many of the defendants among those who committed the robbery in the house of Pantaleon Losing, and that this was the only band in existence near that place; that the malefactors who formed the band commanded by Esteban Deseo and Hilario Pureza were the same ones who, on August 30 of that year, entered the town of Unisan, burned official documents and robbed a number of houses. Brigido Benito testified that, when the same malefactors departed from the scene of the occurrence taking with them the complaining Avitness and Manuel Alba, they also obliged him to accompany them, and that although he did not go to the encampment of the malefactors he believes they wrere all members of the same band. Anacleta Amparo, Losing's servant, corroborated the testimony of these witnesses. She testified that, after her master and mistress were led away, several of the malefactors entered the house, compelled her to lie down and then commenced to search the house, and that they carried off a number of articles which they had found. Julio Herrera, lieutenant of the Constabulary forces, testifies that on January 6, 1903, he surprised the encampment of the malefactors at a place called Puting Lupa or Mabugabuga, and after a short resistance on the part of the bandits, who were commanded by Hilario Pureza, among others, they fled; that the witness and his subordinates succeeded in capturing arms, clothing, documents, and other goods, as well as Estanisiao Pardines and a number of women, and at the same time rescued Cirila Ubal; that he burned some twenty houses in which he found uniforms of the thieves, by some of whom several shots were fired from the neighboring forest; that on the day following he continued his search through the woods, and, notAvithstanding some resistance, succeeded in capturing four of the robbers, named Leonardo Guinacaran, Juan Par, Lucas Pureza, and Martin Principe, and also some women and children; that according to the documents seized by him, the gang was organized with political purposes inimical to the constituted government, and that these malefactors called themselves enemies of all employees and officers of the Government, the organization being styled "The National Liberating Army of the Philippines." According to the witness's information the principal officer was one Reus. He stated he understood that, for the purpose of concealing its real object, the organization had been established under the guise of a religious association; that, although their motto was "Independence," their acts showed that their real object was brigandage and that they had given their organization political appearance merely as a ruse to conceal the fact that they were a band of brigands living upon food stolen by them in the neighboring towns; that he had captured a number of the defendants and a number of women, and the witness gave the names of many other persons who had not been apprehended. The witness further stated that a number of these persons had taken part in the assault upon the toAvn of Unisan on August 30, 1902, in the course of which they maltreated the municipal authorities, burned official documents, and robbed a number of houses, the band having at that time been commanded by Felipe Verastegui, who was.subsequently killed; that the same band, in the following September, assaulted and robbed the town of Laguimanoc; that the documents and commissions which were captured at the time of the surprise showed that the defendants, and

other persons not arrested, formed a part of the band; that in the encampment they found certain goods which were identified by the complaining witness and his wife, and that some of the malefactors had already surrendered on account of the vigorous campaign conducted against them. Guillermo Claveria, Juan Vera, Gregorio Vera Cruz, Ambrosio Alerano, Juan Brillon, and Aguedo Cataqui, residents of the toAvn of Unisan; Aloises Uralesa, a member of the municipal police; Benito Isaac, a volunteer, and Subinspector Herrera stated that the defendants were members of the band which assaulted a number of houses in the town of Unisan on August 30, 1902, burned a lot of the official documents in the municipal and justice's court, and robbed and illtreated the inhabitants; that the same gang, on the 3d of September following, assaulted a number of houses in Laguimanoc and stole property belonging to the inhabitants; that on the 27th of December of the same year malefactors to the number of some forty or more, and belonging to the same band, entered and robbed the house of Pantaleon Losing, carried him and his wife away to the encampment of the robbers and there held them as prisoners. These witnesses stated that the robbers lived upon property stolen by them in the neighboring barrios. The witness Isaac further testified that on August 30 the malefactors compelled him to open the municipal safe, of which he had possession as treasurer, but that they found no money in the safe, as his wife had taken the precaution to hide the money that had been in it. The Avitness Brillon testified that when attempting to escape from the malefactors on August 30, in the town of Unisan, he received a gunshot wound which took twenty-five days to heal. The prosecuting attorney asked the court to dismiss the complaint against the defendants Oornelio Urlanda and Pablo Par, 12 and 14 years of age, respectively, and Martin Principe and Lucas Pureza, respectively 66 and 73 years of age, so that they might be called as witnesses for the prosecution. This request was granted, and upon being examined the four persons mentioned testified that their codefendants and other persons not under arrest lived at a place called Mabugabuga, known as "The Encampment;" that they were all armed and that they lived on what they succeeded in stealing from the neighboring barrios; that the leaders of the band were Esteban Deseo, Gabriel Banal, and Hilario Pureza, and that the wives and other relatives of the malefactors were accustomed to pass the day praying and counting their beads. These witnesses also testified to having seen Pantaleon Losing and his wife among the women who lived in the encampment. The prosecuting attorney then moved the court to admit this testimony as evidence for the prosecution, as well as certain documents taken from the defendants, consisting of sundry commissions and personal cedulas. The witnesses were called upon to state whether they objected to the admission of their testimony and the documents referred to as evidence in the case; they made no objection thereto, saying that their statements had been made freely and voluntarily. The attorney for the defense having also failed to object to the introduction of this evidence, it was admitted by the court. The defendants plead not guilty. Although they admitted that they were all members of the party commanded by Generals Banal, Deseo, and Pureza, at a place called Mabugabuga, where the encampment occupied by them as insurgents was located, they denied having robbed and kidnaped Pantaleon Losing and his wife and alleged that they did not take part in the assault upon Losing's house on December 27, 1902. Candido Machete, on the other hand, testified that his companions did commit the robbery in the house of Pantaleon Losing, although he insisted that he himself took no part in the assault.

The judge below, on Eebruary 5,1903, entered judgment, imposing upon the defendants Leonardo Guinacaran, Juan Par, Bonifacio Andalis, and Egmidio Sarmiento the penalty of life imprisonment (prision perpetua) ; upon Gregorio Palmero, Catalino Verdan, Roque Principe, Estanislao Pardines, Abdon Andalis, Dionisio Andalis, Eufemio Principe, and Lucio Santamina the penalty of twenty-five years' imprisonment; upon Sergio Andalis, Vicente Parafina, Pedro Garm, Carlos Principe, Jr., Carlos Principe, sr., Sinforoso Principe, and Candido Machete the penalty of twenty years' imprisonment; and upon each one of the defendants the payment of one-thirtyninth part of the costs of the prosecution, With subsidiary imprisonment in case of insolvency. The judgment acquitted the defend- ants Patricio Verdan, Feliciano Andalis, Jacinto Sol, Nicolas Principe, Maria Aguilar, Apolonia Alba, Prisca Prin- cipe, Teoiila Aguilar, Vicenta Aguilar, Primitiva Aguilar, Policarpia Mulata, Benita Causapin, Bufina Principe, Fausta Uri, Maria Uri, and Filomena Estrada, and remitted the costs corresponding to them. Against this judgment the nineteen defendants who were convicted entered an appeal. The case having been brought before us on this appeal, the counsel for the defendants asked that the judgment be modified and the penalty reduced to twenty years' imprisonment for each defendant, for the reasons stated in his brief. The Solicitor-General in his brief urges that the judgment be affirmed without modification, with the costs of this second instance to the defendants. Act No. 518, enacted and published on the 12th of November, 1902, by the Civil Commission of these Islands, provides, in paragraph 1, that all persons who conspire together and form a band for the purpose of committing robbery by means of force and violence, and who with this object shall go out upon the highway or roam over the country armed with deadly weapons, and every person thereafter joining such band shall be deemed highway robbers or brigands, and upon conviction thereof shall be punished by death or imprisonment for not less than twenty years, in the discretion of the court. The facts established by the evidence in this case show that the eighteen appellants, together with Dionisio Andalis, who died in the public prison of this city April 15, 1903, and other persons still at large formed part of a large band of malefactors operating under the guise of a politicomilitary organization; that the sole purpose of the band was robbery and kindred crimes; that its members lived in the interior of the forest and preyed on the peaceful inhabitants of the towns near Mabugabuga or Puting Lupa, who were the victims of their depredations long before Act No. 518 was passed, and that these malefactors habitually followed the life of brigands. Late on the night of December 27, 1902, they assaulted the house of Pantaleon Losing, in the barrio of Unisan, and robbed him of jewelry, clothing, and other articles of the total value of ISO pesos, Mexican currency, and that, after having beaten the complaining witness and his wife, they kidnaped both and illegally detained them at Mabugabuga, where they were held for eleven days under sentence of death by shooting, which was to have been carried out on the evening of the day on which the encampment was surprised and the prisoners released. Section 2 of the act cited provides that, for the purpose of proving the crime of brigandage, it is not necessary to adduce evidence that any member of the band has in fact committed robbery or theft, but that the fact that the defendant was a member of such an armed party shall be sufficient to justify conviction. It is fully proven in the record that the appellants and other persons were members of a band organized ostensibly for political purposes, but whose real object was brigandage. This fact is established by the testimony of the defendants, and, although the assault on the town of Unisan on August 30, 1902, by the armed band of which these defendants were members, during which official documents were burned and a number of inhabitants of the town robbed,

and the robbery of a number of the residents of the town of Laguimanoc on September 3 following, occurred before the passage of the brigandage act of November 12, 1902, the assault on the night of December 27, 1902, upon the house of Pantaleon Losing, when he was robbed and kidnaped as above stated, took place after the enactment of that law. Furthermore, the robbery herein prosecuted is not only proven by the evidence of several witnesses who testified as to Losing's previous possession of the property stolen and who were present at the time of the assault but also by the fact that some of the stolen articles were recovered by the Constabulary officers and were subsequentlv identified by the owner. The offense was committed by a numerous band of armed malefactors who, availing' themselves of the darkness of night, entered an inhabited house, committed the crime of robbery and then kidnaped two of the inmates. It follows that the crime has been committed by brigands, members of a band expressly organized for the purposes of brigandage, and under such circumstances as to indicate a high degree of criminality on the part of the defendants, there having been present no mitigating circumstances. For this reason, and for the reasons given by the judge of the court below, we are' of the opinion that the judgment appealed should be affirmed. As to the defendants who were acquitted since no appeal was taken against the judgment of the court below with respect to these defendants, the judgment is final as far as they are concerned; and as to the deceased, Dionisio Andalis, the case must be dismissed. For the reasons above set forth, we are of the opinion that with respect to the other eighteen defendants the judgment appealed should be affirmed. One-nineteenth part of the costs of this instance will be borne by each of the appellants, but in case of insolvency no subsidiary imprisonment will be imposed. The case will be dismissed as to the deceased, Dionisio Andalis, with the remaining one-nineteenth part of the costs of this instance de oficio. The case will be remanded to the court below, accompanied by a copy of this decision, for execution of judgment. So ordered. Arellano, C. J., Cooper, Willard, Mapa, and McDonough, JJ., concur.

OSJurist.org

G.R. No. 1238, October 09, 1903

THE UNITED STATES AND MANUEL PARDO, COMPLAINANTS AND APPELLANTS, VS. MARCELO DOMINGUEZ, DEFENDANT AND APPELLEE. D ECIS ION
WILLARD, J.: We find it necessary to pass upon only one of the questions presented by the record. The appellant makes the following statement in his brief, in this court : "There is no doubt that the defendant has the character of a receiver, consequently it is his duty to return what he has received in trust. This being the case, the punishable act involved in a refusal to so return implies a damage to the depositor or his assignee, inasmuch as the latter is illegally deprived of something which belongs to him; and this refusal and damage is covered by the fifth clause nf article 535 of the Penal Code." This is not the law. The paragraph cited from the Penal Code says that the depositary shall be guilty of estafa, not if he refuses to return the thing deposited but if he denies that he ever received it. In this ease the defendant has never denied that he received the rice as a deposit; on the contrary, when the demand was made upon him by the private prosecutor on December 7, 1901, he said that he had delivered it to Alejandro Cornejo a few days before the death of Borras, the bailor, by the written order of the latter. The defendant never having denied that he received the deposit, he can not be convicted unless it is proved that he has appropriated or diverted it. The mere refusal to return the article is not in itself sufficient to prove this. In addition to this refusal, there must be evidence in the case from which the court can see that the depositary has appropriated it to his own use or to that of another. There is no such evidence. On the contrary, it is entirely probable that, after the departure of the defendant from Libmanan on September 20,1898, two days after the uprising of the civil guard in Nueva Caceres, the rice was seized by the revolutionists and appropriated to their own uses. The brief of the appellant is devoted almost exclusively to establishing the civil liability of the defendant. With such liability we have nothing to do in this case. Whatever may be the fact in regard thereto, it is plain that no criminal liability has been proved. The judgment is affirmed, with the costs of this instance against the private prosecutor, the appellant. Arellano, C. J., Torres, Cooper, Mapa, and McDonough, JJ., concur. Johnson, J., did not sit in this case.

OSJurist.org

G.R. No. 1240, April 18, 1903

FRANCISCO ENRIQUEZ, PETITIONER, VS. BYRON S. AMBLER, JUDGE OF THE COURT OF FIRST INSTANCE OF MANILA, RESPONDENT. D ECIS ION
COOPER, J.: This case is one in which the court exercises original jurisdiction conferred by section 17 of the Organic Act. The respondent has moved to dissolve the injunction issued in the case by one of the judges of this court in support of the, prohibition proceedings, and has also presented a demurrer to the petition. The petition for prohibition, in so far as material to this inquiry, contains the following allegations: That petitioner between the years 1883 and 1897 was the executor and testamentary administrator of D. Antonio Enriquez y Sequera, and that in the year 1897 D. Rafael Enriquez was substituted in his stead as such administrator. That on the 31st day of December, 1902, the Hon. Arthur F Odlin, one of the judges of the Court of First Instance, entered an order in the administration proceedings directing petitioner to render an account of his administration. That on the 20th day of February, 1903, the judge of the Court of First Instance made an order reciting that the petitioner had refused to obey the order of the court of the 31st of December, 1902, and the petitioner was cited to appear before the court to show cause why he should not be punished for contempt in disobeying the order; that on the 2d day of March, 1903, the contempt proceedings coming on to be heard, the Court of First Instance entered an order finding the petitioner guilty of contempt and directing him to be imprisoned in Bilibid for the period of six months or until he should produce the account in question, or until the further orders of this court. That immediately after the announcement of this judgment the plaintiff appealed against the same and executed a bond to the satisfaction of the court for the sum of $5,000, conditioned as required by law. That after the filing of said appeal bond the petitioner was again cited to appear on the 3d day of March, 1903, for further proceedings with reference to the enforcement of the order for contempt. That the petitioner believes and alleges that it is the purpose of the judge of the Court of First Instance to carry into execution the said sentence notwithstanding the appeal interposed and the execution of the appeal bond; that by reason of the execution of the appeal bond the Court of First Instance lost its jurisdiction, and the petitioner prays this court that the judge of the Court of First Instance be prohibited from taking further proceedings in the matter until the decision of the appeal and the further order of the Supreme Court. Section 240 of the Code of Civil Procedure, 1901, upon the construction of which depends the decision of this case, reads as follows: "The judgment and orders of a Court of First Instance, made in cases of contempt, except in cases arising under section 231, may be reviewed by the Supreme; Court;

but execution of the judgment and orders shall not be suspended until there is filed by the person in contempt, in the court rendering the judgment or making the order, an obligation with sureties to the acceptance of the judge, in an amount to be by him fixed, and conditioned that if judgment be against him, he will abide and perform the order of judgment. But such review shall be had only after final judgment in the action in the Court of First Instance, and when the cause has regularly passed to the Supreme Court by bill of exceptions, as in this act provided." This being a demurrer to the petition, all of the allegations must be taken as true. From these allegations it appears that, after the entry of judgment for contempt by the Court of First Instance, the petitioner took an appeal to this court, and that he has executed a bond, with sureties, conditioned as required by law, which has been accepted by the judge. It is contended by the respondent that by the terms of the statute an appeal can be taken only after final judgment in the Court of First Instance, and when the cause has been regularly passed to the Supreme Court by bill of exceptions; that the order of the Cdurt of First Instance directing the appellant, Francisco Enriquez, to render an account, being in favor of the heirs of the estate, they have no cause to appeal the case; that as no final judgment can be entered in the administration proceedings, the provisions of section 240 regulating the appeal is not applicable to this character of case, and that the execution of the judgment for contempt should not be suspended. The section unquestionably confers the right of appeal upon a party against whom a judgment for contempt of court has been rendered. The appeal has been taken and a bond has been executed in strict compliance with the requirements of the statute. The right to an appeal can not be construed away, by holding that the party is not entitled to appeal until final judgment in the principal action, and that where no final judgment is contemplated an appeal from a contempt proceeding can not be allowed. If it is a case where no final judgment is to be made, then the party against whom the judgment is rendered in the contempt proceedings must be entitled to perfect his appeal without awaiting further proceedings. The intention of the statute in requiring that the appeal from the contempt proceedings should await final judgment in the principal case was to prevent different appeals from the two judgments in the same proceedings, and its purpose was to postpone the appeal in the contempt case until the principal case came up on a final judgment. If the proceedings were such that there was to be no final judgment entered in the case, then there would be no reason why the appeal from the contempt proceedings should not be perfected and brought up at once. The phrase in question is perhaps susceptible to still another construction. In ordinary actions the case is appealed to this court by bill of exceptions, while in special proceedings cases are brought here by the distinctive method of appeal. In a case brought here by bill of exceptions no appeal can be taken until a final judgment has been rendered; while in special proceedings appeals may be taken at various stages of the proceedings. Appeals are allowed to any person legally interested in any order, decree, or judgment of the Court of First Instance in the exercise of its jurisdiction in special proceedings, in the settlement of estates of deceased persons, when such order, decree, or judgment constitutes a final determination of

the rights of the parties so appealing. However this may be, the party against whom the judgment in contempt proceedings has been entered is undoubtedly entitled to an appeal and review of the judgment. By filing the appeal bond the judgment must be suspended. The statute expressly declares that this shall be the effect of filing the appeal bond. It is unimportant whether the jurisdiction of this court lias attached or not. The Court of First Instance has been deprived of its power to take further action on the judgment for contempt. In the event that the appeal is regarded as perfected to this court, the lower court would be acting without jurisdiction. Should this not be the case and the Court of First Instance still retains the jurisdiction of the principal suit, the attempt to enforce the judgment for contempt after the filing of the bond would be to proceed in excess of jurisdiction. For these reasons the demurrer to the petition must be overruled. In support of the motion to dissolve the injunction it is contended by the respondent in the case, that an injunction will not lie against a judge of a court; that it is a writ which can be used only against the parties to the proceedings. This court in construing section 222 relating to mandamus, and section 220 relating to prohibition, lias held that suits of this character are to be regarded as ordinary suits; that the complaint must be filed and the ordinary citation issue thereon as in ordinary suits; that the parties, in case of emergency, can avail themselves of section 230, which relates to expediting such proceedings, and also to the provisions of section 229, which relates to preliminary injunctions in certiorari, mandate, and prohibition proceedings. The writer did not concur in these decisions, but regarded mandamus and prohibition as suits of a summary character and requiring such speedy action upon the part of the court as to avoid the necessity for resorting to the provisions of sections 229 and 230. The decisions in these cases have settled the practice in favor of regarding the mandamus and prohibition as ordinary actions to be aided by the provisions of sections 229 and 230. Under this construction, whether the preliminary injunction provided for in this section may be strictly in accordance with the idea of an injunction in other jurisdictions, it must be regarded here as an aid or adjunct to the remedy of prohibition by which further proceedings by an inferior court will be suspended. The demurrer to the petition and the motion to dissolve the injunction must both be overruled, and it is so ordered and adjudged. Arellano, C. J., Torres, Willard, Mapa, and Ladd, JJ., concur. McDonough, J., did not sit in this case.

OSJurist.org

G.R. No. 1244, April 18, 1903

LA COMPAA GENERAL DE TABACOS, PLAINTIFF AND APPELLEE, VS. MIGUEL TUPINO ET AL., DEFENDANTS AND APPELLANTS. D ECIS ION
WILLARD, J.: The motion of the appellee that the bond presented by the defendants for the purpose of staying the execution of the judgment be "completed," must be denied. This bond as originally presented by the defendants was approved by the court below. There is no evidence before us showing any change in reference to the bond or the persons who signed it, except a written statement addressed by one of the signers to the clerk of the court below, in which he said that he withdrew from the bond. This writing did not in any way affect the bond and did not release this surety from liability thereon. Arellano, C. J., Torres, Cooper, Mapa, and Ladd, JJ., concur. WILLARD, J.: The order of the court allowing the bill of exceptions is as follows: "The attached bill of exceptions is allowed, and the clerk is directed to file it Avith the record, and, in accordance with section 143 of the Code of Civil Procedure, to immediately certify to said bill and all documents therein mentioned as integral parts thereof, as well as such matters as the adverse party may desire to add thereto, and to transmit the whole to the Supreme Court" Pursuant to this order the appellee has caused to be sent here, with the bill of exceptions, a mass of loose papers certified by the clerk. The appellant now moves this court that all of these papers be stricken from the bill of exceptions. 1. Among the papers transmitted at the request of the appellee is a bill of exceptions and accompanying documents which relate exclusively to the granting of, and the denial of, a motion to dissolve a preliminary injunction. This bill of exceptions was prepared by the defendants, the present appellants. They have not seen fit to prosecute it, and have in fact abandoned it. We hold that it can not be considered as a part of the other bill of exceptions, which the defendants do see fit to prosecute, for the purpose of reversing the final judgment in the case. None of these papers should therefore be printed. 2. The eighty defendants in the case answered separately. These answers are all alike. The appellants have attached a copy of one of them to the bill of exceptions and this bill will be printed. The appellee has caused copies of the seventy-nine other answers to be sent here and asks that they be printed. It may perhaps be said that they should be considered as a part of the bill of exceptions, for the purpose of showing that these defendants in fact appeared and answered. But it is not necessary to print them. They may remain as a part of the bill of exceptions iidded by the appellee, under the order of

the court above quoted, but the clerk is hereby ordered not to print any of them. 3. The bond given by the defendants to stay the execution and the motion and affidavits relating thereto are no part of the bill of exceptions, and will not be printed. 4. The other papers in the case will be printed as a part of the bill of exceptions, without now passing upon their materiality. This we can not do in advance of a hearing of the case. 5. We have decided this motion without reference to the form in which the papers have been prepared and remitted to this court, which has been very irregular. (1) It is irregular for the judge to sign a bill of exceptions with a statement that the appellee may add thereto such papers as lie desires. A judge should not sign a bill of exceptions until it appears to him that the adverse party has been duly notified of the presentation of the bill. If the adverse party" appears, the judge should not sign the bill of exceptions until such party has suggested specifically the amendments and additions which he desires made, and until the judge has decided whether they shall be granted or denied, and until he has stated specifically in the bill of exceptions what amendments and additions are allowed. (2) The clerk should not have sent here, as he did, a mass of loose papers. The bill of exceptions transmitted by the clerk should consist of a single document, which he certifies to be the bill of exceptions in the case, with the papers referred to therein. So ordered. Arellano, C. J., Torres and Ladd, JJ., concur.

DISSENTING COOPER, J.: A mass of loose papers certified to by the clerk of the Court of First Instance has been sent to this court as a part of the bill of exceptions, under a clause of the order of the court allowing the bill of exceptions which directs the clerk "to certify to said bill and all documents therein mentioned as integral parts thereof, as well as such matters as the adverse party may desire to add thereto, and to transmit the whole to the Supreme Court." Under this order seventy-nine answers of defendants in the court below have been certified and sent here. The appellant moves that they be not printed, and that these papers be stricken from the bill of exceptions. The order of this court directs that these papers shall not be printed as a part of the bill of exceptions, but permits them to remain as a part of it. While it is stated that it is irregular for the judge to sign the bill of exceptions with the statement that the appellee may add thereto such papers as he desires, still this court permits them to remain as part of the bill of exceptions. Such practice is not only irregular, as stated

by the court, but the documents under this part of the order form no part of the bill of exceptions and should be stricken out on motion, or, if no such motion is made, they should be disregarded at the hearing of the case. I concur in the opinion so far as the motion not to print these papers is sustained, but dissent from that part of the order which permits them to remain as part of the bill of exceptions.

OSJurist.org

G.R. No. 1250, October 23, 1903

VICENTE W. PASTOR, PLAINTIFF AND APPELLANT, VS. MANUEL GASPAR ET AL., DEFENDANTS AND APPELLEES. D ECIS ION
WILLARD, J.: There was no motion for a new trial in this case. From the facts admitted by the pleadings and those found by the court, it appears that in November, 1900, there existed in Manila a partnership composed of Macario Nicasio and the defendant Gaspar under the name "Nicasio & Gaspar." It owned the steam lauch Luisa , and its only business was that relating to this launch. Desiring to increase this business, on the 24th day of November, 1900, a contract was made between the firm of Nicasio & Gcaspar on the one side, and on the other side the plaintiff, the defendants Eguia, Iboleon, and Monserrat, and one Hermoso. This contract recites that Nicasio & Gaspar, by a writing of the same date, have enlarged the business of their partnership; have bought six lorchas, which are named, and that, needing money with which to pay for the lorchas and the necessary repairs thereon, the parties of the second part have furnished them 28,000 pesos as a loan, the amount furnished by each being named. The firm of Nicasio & Gaspar then acknowledges the receipt of these amounts. The fifth clause of the contract is as follows: "Fifth. The partnership of Nicasio & Gaspar undertakes to return to the said Eguia, Monserrat, Ibole6n, Pastor, and Hermoso the said total sum of 28,000 pesos within the period of ten years from the date of this instrument, and to guarantee the fulfillment of said payment they pledge to said parties the said lorchas Pepay, Lola, Consuelo, India, Niceta, and Castellana, in the sums respectively which said parties have furnished for the purchase and repair of said vessels, as before stated, ceding and assigning to said parties, in like proportions, the profits and gains which may be realized from the exploitation of said vessels; the said vessels to be the property of said Eguia, Monserrat, Ibole6n, Pastor, and Hermoso, and of the parties of the first part, proportionate with the sums which the said parties have invested in said vessels; the management of said vessels during the time in which said debt remains unpaid to remain with the partnership of Nicasio & Gaspar, with the understanding that whatever may be the result of the business of said vessels, neither the said partnership nor the parties of the first part shall become responsible for the payment of said debt, except in so far as the said vessels shall respond therefor, and in no event shall they respond therefor with any other property; injuries to and all losses of said lorchas to be shared by all the parties hereto, as well as crews' expenses and other outlays necessary for the preservation of said vessels, in the proportion which corresponds to each party hereto according to his investment; the"parties of the first part binding themselves not to encumber or pledge said vessels while said debt remains unsatisfied to the parties of the second part." It was provided in the seventh clause that the launch Luisa was not included in this contract.

It is alleged in the complaint, and not denied by the answer, that the contract thus entered into on November 24, 1900, was in July, 1901, dissolved and termimated. and the lorchas sold by mutual consent, , The cause of action set forth in the complaint is that there was actually a partnership between the parties to the contract of November 24, and that the consent of the agent of the plaintiff to its dissolution and the sale of the lorchas was obtained by fraud of the defendants. The prayer of the complaint is that this dissolution of the partnership and the sale of the lorchas be declared null, and that the plaintiff be restored to his rights therein; and if this can not be done that he recover of the defendants damages in the sum of 42,500 pesos. 1. The plaintiff, who was defeated in the court below and who has appealed, claims that the contract of November 24, 1900, created a partnership between the parties to it. While all of the court are of the opinion that the judgment should be affirmed, we are not agreed as to the proper construction to be put upon this document. The opinion of the writer is that held by the court below, viz, that upon the face of the contract the plaintiff was a creditor and not a partner. The contract is not clearly drawn, but the following seem to indicate that the transaction was rather a loan than a contract of partnership: (1) In the beginning it is twice stated positively that Nieasio & Gaspar are the only partners and the only persons interested in the partnership of Nicasio & Gaspar. These statements the plaintiff assented to when he signed the document. (2) In the second paragraph, and again in the fourth, it is stated, also, distinctly and positively, that the money has been furnished as a loan. (3) In the fifth paragraph, hereinbefore quoted, Nicasio & Gaspar bind themselves to repay the amount, something that they would not be bound to do were the contract one of partnership. (4) In the same paragraph Nicasio & Gaspar create in favor of the plaintiff and his associates a right of pledge over the lorchas, a thing inconsistent with the idea of partnership. This paragraph should not be construed as transferring the ownership of the lorchas themselves to the second parties. Although the words "las cuales" would grammatically refer to the preceding word "embarcaciones," yet such a construction would be inconsistent with what has been before stated in the same paragraph as to the pledge. (5) By the same paragraph Nicasio & Gaspar are to be considered consignees only as long as they do not pay the debt. This indicates that they had a right to pay it. (6) By the last clause of this paragraph they bind themselves not to alienate the lorchas until they had paid the debt, indicating clearly that by paying the debt they could do so, a thing inconsistent with the idea of a partnership. (7) By the seventh paragraph of this contract it is stated that the launch Luisa is not included in the contract. The claim of the plaintiff that by this document he became a partner in the firm of Nicasio & Gaspar can not in any event be sustained. That firm was engaged in business with the launch Luisa . With this the plaintiff and his associates had nothing to do. It appears, also, from this contract that when Nicasio & Gaspar enlarged their business they could devote themselves not only to the launch Luisa and the six lorchas in question but also to other craft. With such other business the plaintiff would have nothing to do. The most that he can claim is not that he was a partner in the firm of Nicasio & Gaspar, but that he and his associates, in connection with that firm, had formed another partnership to manage these lorchas. The fact that the plaintiff was to share in the profits and losses of the business and that Nicasio & Gaspar should answer for the payment of the debt only with the lorchas, and not with their own property, indicates that the plaintiff was a partner. But these provisions are not conclusive. This is a suit between the parties to the contract. The rights of third persons are not

concerned. Whether the plaintiff would be a partner as to such third persons is not to be determined. As between themselves the parties could make any contract that pleased them, provided that it was not illegal (art. 1255, Civil Code). They could, in making this contract, if they chose, take some provision from the law of partnership and others from the law of loans. Loans with a right to receive a part of the profits in lieu of interest are not uncommon. As between the parties, such a contract is not one of partnership. The question on this branch of the case is whether the contract on its face creates a partnership or not. The court finds that the plaintiff believe that he could not be a partner because he was a Spanish subject. There can therefore be no doubt as to his intention in signing this contract. He did not believe that on its face it made him a partner. If he had so believed, he would not have signed it. If he was willing to sign a contract which on its face made him a partner, he and his associates would have joined with Nicasio & Gaspar in the amended articles of partnership which they signed on this very day, and this second document would have been entirely unnecessary. The inference from these facts is so strong that it can not be overcome by the fact that in subsequent dealings the parties called themselves partners. The plaintiff undoubtedly wished to secure, as far as he could, the rights of a partner without making himself one. The contract, in the opinion of the writer, was that NicV sio & Gaspar should take the money of the other parties to the contract, manage the business as they saw fit, pay the investors their share of the profits as long as the business continued, and not to sell the lorchas until they had been so repaid. Anything more than this would have made the impostors partners according to the instrument itself, the one thing which they were seeking to avoid. It may be added that, in a similar contract which the plaintiff made with Nicasio in April, 1900, he in 1902 considered himself a creditor and made a demand on Nicasio for the payment of the debt. It is claimed by the plaintiff that even if the transaction was a loan, it could not be terminated without his consent until the expiration of the period of ten years. Article 1127 of the Civil Code does not say that the period allowed for the performance of an obligation is for the benefit of the creditor as well as the debtor. It says that it shall be so presumed unless the contrary appears. In this case the contrary does appear in the two clauses hereinbefore cited under (5) and (6). Upon paying the loan at the end of ten years, they would have had the undoubted right to mortgage or sell the lorchas, and then by the mere act of payment would have ceased to be consignees thereof. No declaration of that kind in the contract was at all necessary. These rights would result as a matter of law. The insertion of these clauses can only be explained on the theory that the period was for the benefit of the debtors alone, and that they would be at liberty at any time, even before the expiration of ten years, to sell the property, provided they repaid the loan. 2. It is further claimed by the plaintiff that, even if the contract itself did not make them partners, there was a verbal agreement that they should be partners. The court refused to allow him to ansAver certain questions relating to this matter. His exception is stated as follows in the bill of exceptions: "The plaintiff in his first testimony attempted to set forth the verbal agreements by virtue of which he was in reality a partner in the firm of Nicasio & Gaspar. The court ruled this evidence out for the reason that the name of the plaintiff does not appear in the articles of partnership of Nicasio & Gaspar. The plaintiff excepted to the ruling."

There are several reasons why the court was correct in its ruling. (1) Although the offer was to show that he was a partner in the firm of Nicasio & Gaspar something not claimed in the complaint it is probable that the purpose was to show a contract of partnership between Nicasio and Gaspar on the one hand and the plaintiff and his associates on the other. The statements at the trial indicate this. The bill of exceptions does not show what verbal agreements the plaintiff .would have testified to if he had been allowed to do so. But in his brief in this court he says: "(b) That the firm was organized verbally on said date for a period of ten years; (c) that the rights and obligations of the partners were set forth in document No. 945 of the said date, although it may be stated in said document that the contract in reference was a contract of pledge." If, as thus appears, all the rights and obligations which were verbally agreed to were aftewards embodied in a written instrument which was offered in evidence, the plaintiff has not been prejudiced by not being allowed to testify that these agreements were first made verbally. All of them having been included in the written document, he could testify to nothing more. If all the agreements as to the rights and obligations of the parties were embodied in the written contract, the additional verbal agreement that they should be partners would be but their opinion as to the nature of the said written contract and would add nothing to it. (2) The parties made a verbal agreement which they afterwards reduced to writing. Section 285 of the Code of Civil Procedure prohibits any parol evidence as to other terms not contained in the writing. Under this section, even if there had been agreements other than those contained in the instrument and inconsistent therewith, the plaintiff could not testify to them. The plaintiff claims that this section does not prohibit evidence as to the surrounding circumstances. This is true, and the plaintiff was at the trial allowed to testify that he bought the lorchas himself in Iloilo; that he was paid $500 for so doing; that $20,000 was borrowed from the Banco Espanol-Filipino for the purpose of paying for them; and as to other details. There was no intrinsic ambiguity in the contract which required explanation. VWhen a written contract is vague and indefinite, it can be explained by showing what the surrounding circumstances were (sec. 289), but not by showing by parol what the prior agreement in fact was. 3. The court refused to receive in evidence a letter written by Hermoso to the plaintiff, and the latter excepted. There was no error in this ruling. The plaintiff could not prove the facts stated in this letter in this way. He should have called Hermoso or other persons as witnesses to do so, and given the defendants the right to cross-examine them. (Sec. 381, Code of Civil Procedure.) 4. The following exception appears in the record: "During the examination of Lino Eguia, he was asked by the plaintiff to state, either by means of the document or the answer to the complaint, who was intrusted with the purchase of the lorchas. The court ruled out the question and the plaintiff excepted." This ruling was correct for two reasons: (1) The documents themselves showed the facts. (2) The plaintiff had already testified without objection that he bought the lorchas in Iloilo by

direction of Nicasio & Gaspar. The refusal to allow this witness to testify, on a matter as to which there was no dispute, could not have prejudiced the plaintiff. 5. Nicasio was asked if the capital in Nicasio & Gaspar which stood in his name was all his own. This question was ruled out and the plaintiff excepted. If the question referred to the original contract of partnership, and the plaintiff desired to show that he had contributed money thereto, he could not have been prejudiced by the ruling because the witness had already testified that it was contributed in fact by the plaintiff. This fact also appeared during the trial from the document No. 325 of April 26, 1900, between the witness and the plaintiff. If he wished to show that a part of the capital standing in the name of Nicasio, in the amended articles of partnership, was furnished by the plaintiff and others, he was not prejudiced by the ruling, for this all appeared from the contract of November 24, 1900, so many times referred to. If he desired to show that Mcasio had borrowed a part of his capital from some person not connected with this suit, the question was immaterial and was properly excluded. In such a case it would be no concern of the plaintiff whose money this was. 6. The following exception appears in the record: "During the examination of the witness Joaquin Salvador, he was asked on crossexamination by plaintiff to state if he, as attorney in fact of the partner Hermoso in the meetings of the partners preliminary to the sale of the lorchas, would have consented to the dissolution of the partnership had he known that the partnership would be immediately reorganized with the same lorchas and the same partners with the exception of Nicasio, Hermoso, and Pastor. The court ruled the question out and the plaintiff excepted." This ruling was correct What Salvador would have done was of no importance. The plaintiff's agent was allowed to testify that he would not have given the plaintiff's consent if he had known that the defendants intended to continue the business. 7. The assignment of error as to the bills of Warner, Barnes and Co. is not sustained by the bill of exceptions. It is stated therein (fol. 25) that these documents were admitted. 8. The question as to whether the power of attorney given by the plaintiff to Nicasio was sufficient to authorize the latter to consent for the plaintiff to the cancellation of the contract was not raised by any exception at the trial and is not the subject of any assignment of error in this court. 9. The claim of the plaintiff, as has been said before, was (1) that he was a partner, and (2) that the cancellation of the agreement of partnership had been procured by fraud. The judge made a finding upon the first claim, but not upon the second; although the finding that he made was sufficient to determine the case before him, yet he should have found upon all the issues presented by the pleadings. But this omission does not require a reversal of the judgment. If the court below was right in the construction of the document, it of course does not, for the decision would then contain facts sufficient to justify the judgment. But even if it were not, the same thing would result. It is a fact clearly admitted by the pleadings, and therefore not required to be stated in the decision, that this contract of November 24, 1900, was canceled and the arrangement, whatever it was, dissolved. To this dissolution the plaintiff through his agent consented. This is alleged

in the complaint, although it is there stated that such consent was obtained by fraud. The facts admitted in the pleadings and stated in the decision showing, therefore, that the plaintiff had surrendered his rights, and there being no finding that such surrender was obtained by fraud, the defendants are, on such admissions and findings, entitled to judgment. We reach this conclusion the more Avillingly because a majority of the court is of the opinion that the evidence in the case was not sufficient to show any fraud on the part of the defendants. The judgment is affirmed, with the costs of this instance against the appellant. Judgment will be entered accordingly twenty days after the filing of this decision. Arellano, C. J., Torres, Mapa, and McDonough, JJ., concur.

CONCURRING COOPER, J.: The cause of action set forth in the complaint is that there was a partnership between the plaintiff and the defendants, which was, in July, 1901, dissolved and terminated between the parties thereto, the plaintiff acting through his agent in said dissolution; that the consent of the agent to the dissolution was obtained by the fraud of the defendants, and the prayer of the complaint is that this dissolution of the partnership and the sale of the lorchas be declared null and that the plaintiff be restored to his rights therein; and he prays in the alternative that, if this can not be done, he recover of defendants damages in the sum of 42,500 pesos. The issues thus made were determined against the plaintiff by the judgment of the Court of First Instance. It is asked that we review the evidence taken in the court below and retry the questions of fact involved in the decision of the casethat is, whether the dissolution was obtained by the fraud of the defendants. It is expressly provided by section 497, Code of Civil Procedure, that in hearings upon bills of exceptions the Supreme Court shall not review the evidence taken in the court below, nor retry the questions of fact except in certain cases, one of which is: "If the excepting party filed a motion in the Court of First Instance for a new trial, upon the grounds that the findings of fact were plainly and manifestly against the weight of evidence, and the judge overruled said motion and due exception was taken to his overruling same, the Supreme Court may review the evidence and make such finding upon the facts and render such final judgment as justice and equity require." There was no motion of this character, for a new trial in the Court of First Instance, nor upon the other grounds mentioned in section 497; consequently we can not review the evidence contained in the bill of exceptions. Upon this ground I concur in the decision. I am of the opinion that the fifth clause of the agreement entered into on the 24th day of November, 1900, set forth in the majority opinion, is sufficient to show that a partnership existed between Nicasio & Gaspar, Eguia, Monserrat, Iboleon, Pastor, and Hermoso. A partnership is defined in article 1665 of the Civil Code as "a contract by which two or more persons bind themselves to place money, property, or industry in common with the intention of dividing the profits among themselves."

The fact that the plaintiff was to share in the profits and losses of the business indicates that the plaintiff was a partner in the business. It was expressly provided in this clause of the contract that the parties thereto should be entitled "in like proportion to the profits and gains which may be realized from the exploitation of said vessels" and that "the injuries to and all losses of said lorchas to be shared by all the parties hereto, as well as the crew's expense and other outlays necessary for the preservation of said vessels, in the proportion which corresponds to each party, according to his investment." The fact that the lorchas were to remain the property of Nicasio & Gaspar, and that these lorchas were pledged for the return of the 28,000 pesos denominated as a loan, would not have the effect of changing the nature of the agreement. The stipulations contained in the contract were such as might be lawfully made between the parties themselves, though they may not have been binding with respect to third persons.

OSJurist.org

G.R. No. 1251, March 27, 1903

FRANK MEKIN, PETITIONER AND APPELLEE, VS. GEORGE N. WOLFE, WARDEN OF BILIBID PRISON, RESPONDENT AND APPELLANT. D ECIS ION
COOPER, J.: On the 11th day of February, 1903, application was made by Frank Mekin to the Hob. B. S. Ambler, judge of the Court of First Instance, for a writ of habeas corpus against George N. Wolfe, Warden of Bilibid Prison, for the illegal imprisonment, detention, and confinement of petitioner by the respondent as warden of said prison, arid setting forth in substance the following facts: That petitioner was a member of the Thirty-seventh Infantry, United States Volunteers, up to the date of his discharge, which occurred on theday of February, 1901; that after his discharge, to wit, the 13th day of July, 1901, the petitioner was tried by a military commission composed of officers of the United States Eegular Army on the charge of entering the service of the enemy in violation of the laws of war and was found guilty and sentenced by said military commission to twenty years of hard labor in the Presidio of Manila, where he is at present confined. That the military commission acted without jurisdiction in so trying and sentencing the petitioner for the reason that it had neither jurisdiction of the person of the petitioner nor jurisdiction of the crime for which he was tried and sentenced; that at the time of the trial the petitioner was a civilian, and is therefore entitled to the benefit of the amnesty proclamation issued by the President of the United States on the 4th day of July, 1902. The writ of habeas corpus was issued and was served upon the respondent, George N. Wolfe, who made return: That he, as Warden of Bilibid, held said Frank Mekin imprisoned under authority of the United States of America through the lawful orders of the commanding general, Division of the Philippines, issued by virtue of a lawful sentence of a duly convened military commission, for an offense in violation of the laws of war and against the United States of America, which conviction and sentence was duly approved by the convening authority on September 23,1901, and which sentence was lawfully commuted to imprisonment at hard labor for the term of tAventy years by the said commanding general of the Division of the Philippines, the record of which conviction and sentence and the approval thereof and of the said commuted sentence and order of confinementin the Presidio of Manilawas set forth in General Orders, No. 362, dated headquarters Division of the Philippines, Manila, P. I., November 30, 1901, copies of which said record and said order were attached to the return, and the respondent also attached to his return the certificate of George W. Davis, major-general, United States Army, commanding the Division of the Philippines, and made it a part of his return. The respondent prayed for the dismissal of the writ of habeas corpus, assigning as a cause that the court was without jurisdiction to issue the writ of habeas corpus for the reason that the said Frank Mekin was held as a prisoner by virtue of the sentence of the said military commission, awarded prior to October 1, 1901, and that the issuance of said writ was in contravention of the statute of the Philippine Commission, Act No. 272, entitled "An act amending chapter 20, relating to proceedings in habeas corpus." The certificate of George W. Davis, major-general, United States Army, commanding in the

Philippines, referred to in the return, is as follows: "Headquarters Division of the Philippines, Manila, P. I., February 18, 1903. To the Hon. B. S. Ambler, judge of the Court of .First Instance, Manila, P. I. Sir: I hereby certify that Frank Mekin is held by me as commanding general, Division of the Philippines, in the Presidio of Manila, and at the expense of the United States, by virtue of a sentence of a military commission, published in General Orders, No. 362, dated headquarters Division of the Philippines, Manila, P. I., November 20, 1901 (a copy of which order is herewith submitted), as a prisoner duly sentenced prior 1o October 1, 1901, by said commission and duly approved by the reviewing authority prior to said date, and which said sentence was dulv commuted bv the commanding general, Division of the Philippines, which commutation was duly published in said order, and that the said Frank Mekin is a prisoner who was arrested and held for trial before October 15, 1901, for a violation of the laws of war committed before that date, and is now held by George N. Wolfe, as Warden of Bilibid Prison, as my agent. Very respectfully, (signed) Geo. W. Davis, General, United States Army, commanding." On February 18, 1903, a hearing of the habeas corpus proceedings was hart, the Government being represented by the Prosecuting Attorney and by the Judge-Advocate-General, Division of the Philippines, and on the 9th day of March, 1903, the judge of the Court of First Instance rendered his decision, in which it was determined that the approval and commutation of the sentence under which the prisoner is now serving was promulgated on the 20th day of November, 1.1)01 ; that the trial before the military commission not being disclosed by the evidence, the sentence of the military commission had no other effect than to hold the prisoner awaiting the approval of the commanding general; that the commanding general having seen fit to commute the sentence to twenty years' imprisonment the conviction or sentence under which the petitioner is serving must be regarded as of date November 20, 1901, and that the case does not come under the provisions of Act No. 272 of the Philippine Commission. After reviewing the questions as to the jurisdiction of the military commission, and apparently reaching the conclusion that the military commission had no jurisdiction to try the petitioner, the judge found that the petitioner came within the general amnesty proclamation and was entitled to its benefits, and directed that he be discharged from custody upon his taking and subscribing the oath of allegiance provided for in the amnesty proclamation. An appeal was taken by the Government from this decision. Subsequent to the date of the filing of the application for habeas corpus but prior to the date of the trial and of the judgment in the case, the Philippine Commission promulgated Act No. 654, dated March 4, 1903, by the provisions of which an appeal in habeas corpus proceedings may be taken from the judgment of the Court of First Instance to this court, the decision of this court having previously been that no appeal would lie in such a case in the absence of a statute authorizing it. It is contended by counsel for this petitioner that Act No. 654 is in the nature of an ep post facto law, and having been enacted subsequent to petitioner's right to the writ of habeas corpus this appeal should not be entertained. This contention is unsupported by either precedent or principle. It is difficult to conceive any reason for such a conclusion. An ex post facto law has been defined as one (a) Which makes an action done before the passing of the law and which was innocent when

done criminal, and punishes such action; or (b) Which aggravates a crime or makes it greater than it was when committed; or (c) Which changes the punishment and inflicts a greater punishment than the law annexed to the crime when it was committed; or (d) Which alters the legal rules of evidence and receives less or different testimony than the law required at the time of the commission of the offense in order to convict the defendant. (Black, Constitutional Law, 595.) The case clearly does not come within this definition, nor can it. be seen in what way the act in question alters the situation of petitioner to his disadvantage. It gives him, as well as the Government, the benefit of the appeal, and is intended as furnishing the means for the correction of errors. The possibility that the judge of the Court of First Instance maycommit error in his favor and wrongfully discharge him appears to be the only foundation for the claim. A person can have no vested right in such a possibility. It would be a sufficient answer to the contention of the petitioner that Act No. 654, allowing an appeal, relates to a habeas corpus proceeding. This character of proceeding is entirely distinct from the criminal proceedings under which the prisoner has been tried and convicted. It is a new suit brought by petitioner to enforce a civil right which he claims as against those who are holding him in custody under tin; criminal process. The proceeding is one instituted by himself for his liberty and not by the Government to punish him for his crime. ( Ex parte Tom Tong, 108 U.S.556.) It is distinctly a civil proceeding, and as such is provided for and regulated in the Code of Civil Procedure. The doctrine of ex post facto laws refers only to the criminal law. This case must be determined under the provisions of Act No. 272, "An act amending chapter 26, relating to proceedings of habeas corpus, enacted by the Philippine Commission on the 21st day of October, 1901. The history of the legislation embodied in this act is too recent to require a review of the circumstances and conditions under which it was enacted. Its purpose was to prevent a conflict of jurisdiction between the civil and military branches of the Government. By the provisions of this act, when <the commanding general or any general officer in command of the department or district certifies in answer to a writ of habeas corpus directed against a military officer or soldier that the prisoner is held by him either (1) As a prisoner of war; or (2) As a member of the Army, a civil employee thereof, or a camp follower subject to its, discipline; or (3) As a prisoner committed by a military court or commission prior to October 1, 1901; or (4) As a prisoner arrested and held for trial before a military court or commission, before October 15, 1901, for a violation of the laws of war committed before the same date; or (5) As a person guilty of the violation of the laws of war committed in certain unpacifled provinces and territories named

such certificate shall be a conclusive answer to a writ of habeas corpus against a military officer or soldier, and a sufficient excuse for not producing the prisoner. It is not disputed that the respondent holds the petitioner by and through the orders of the commanding general, Division of the Philippines, and that he is in the custody of the United States Government through the respondent, the Warden of Bilibid, as the agent and representative of the military, such agency appears in the certificate of the commanding general and also in the return of the respondent. It is equally clear that the certificate of General Davis of date the 18th day of February, 1903, is in compliance with Act No. 272, from which it appears distinctly that the petitioner is a prisoner committed by a military commission prior to October 1, 1901; and further that he is a prisoner arrested and held for trial before October 15, 1901, for a violation of the laws of war committed before the same date. We think the certificate of the commanding general is in strict compliance with the provisions of the law, and was a conclusive return to the writ of habeas corpus. The power of the court to either, issue the writ or discharge the prisoner is ended when such return has been made and the proceedings must there end. While the power conceded to the commanding general is of vital importance and an abuse of it would be attended with great evil, still, the high position of those to whom it has been confided was doubtless believed to be a sufficient guaranty that it would not be exercised except after careful investigation and with a due appreciation of the delicate nature of the power reposed in the commanding general by the legislative authority. In view of the disposition which the law requires us to make of the case it is unnecessary to discuss other interesting questions raised by counsel for the petitioner. The order and decision of the judge of the Court of First Instance of Manila ordering that the prisoner be discharged from custody of the respondent must be reversed, the proceedings dismissed, and the prisoner remanded to the custody of the respondent. It is so ordered and directed. Costs of proceedings will be adjudged against the petitioner. Torres, Willard, Mapa, and Ladd, JJ., concur. Arellano, C. J., did not sit in this case.

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G.R. No. 1255, August 17, 1903

THE UNITED STATES, COMPLAINANT AND APPELLEE, VS. FELIPE ABAIGAR, DEFENDANT AND APPELLANT. D ECIS ION
MAPA, J.: The testimony of the witnesses and the confession of the accused himself show unquestionably that the latter stabbed Constantino Nabaonag to death while he was bound, and therefore unable to defend himself against the aggression. This circumstance constitutes alevosia, and the offense is therefore properly classified as murder, defined and punished by article 403 of the Penal Code. It follows, therefore, that the judgment of the court below now before us in consultation is correct, in so far as it finds the defendant guilty of the crime of murder. This judgment condemns the accused to the penalty of death, the court considering that the crime was committed with the aggravating circumstances of deliberate premeditation, the employment of means tending to add ignominy to the necessary effects of the act, and the commission of the crime with the assistance of armed men. The opinion of the court in this regard does not meet with our approval. There was no premeditation, because an examination of the record shows that the purpose of killing Constantino arose suddenly in the mind of the defendant, and was instantaneously carried into effect, upon information that the deceased had spoken ill of the defendant. The accused says: "As soon as I heard of this I became furiously enraged; I seized my dagger and killed him at once." This part of the defendant's testimony was not disproven in the course of the trial. The determination to kill was, then, followed immediately by the execution of the crime; and consequently between the determination to commit the act and its actual commission there was no opportunity for the cold, meditative, and persistent reflection which constitutes premeditation, which is essentially different from a simple determination of the will, winch is always presumed in the commission of every offense. , The circumstance of ignominy was not present because ; no means were employed nor did any circumstances surround the act tending to make the effects of the crime more humiliating. Ignominy is a circumstance pertaining to the moral order, which adds disgrace and obloquy to the material injury caused by the crime. The fact that the deceased was killed in the presence of his wife certainly could not have such a signification, and this is the circumstance which the court below had in view when declaring that this circumstance had concurred. Furthermore, the evidence shows that the crime was not committed with the assistance of armed men. The testimony of the accused, corroborated by that of the witness for the prosecution, Francisco Abadiano, is that the crime was committed by the defendant alone, without assistance froni any one. It is true that in the house near the place where the crime was committed there were ten men armed with daggers, according to the statements of the witness referred to, and live without arms, according to the accused, but as these men took no part, directly or indirectly, in the commission of the crime, and it does not appear that they heard the conversation which caused the sudden determination on the part of the accused to kill the deceased, and still less that they had in any way participated in this determination, we

can not, within the law, find that this circumstance concurred in the commission of the crime prosecuted for the purpose of augmenting the criminal responsibility of the accused. The mere casual presence of armed men, more or less numerous, near the place of the occurrence does not constitute an aggravating circumstance when it appears that the defendant did not avail himself in any way of their aid, and did not knowingly count upon their assistance in the commission of the crime. In the present case, there being no circumstance tending to modify the guilt of the defendant, the penalty is that prescribed by article 403 of the Penal Code in its medium grade, to wit, the penalty of life imprisonment, and not the penalty of death imposed by the court. For the reasons stated we reverse the judgment in so far as it condemns the defendant to death, and impose upon the latter the penalty of life imprisonment, and condemn him to the payment of an indemnification of 1,000 Mexican pesos to the heirs of the deceased, together with the costs of this instance. Arellano, C. J., Torres, Cooper, Wiliard, and McDonough, JJ., concur.

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G.R. No. 1257, October 31, 1903

JOSE ESCALANTE, PLAINTIFF AND APPELLANT, VS. VENANCIO FRANZ FRANCISCO, DEFENDANT AND APPELLEE. D ECIS ION
WILLARD, J.: This action was brought upon a note for 1,000 pesos to recover 900 pesos, the balance due thereon. The answer was a general denial. The court in its decision found that the defendant signed the note, but found also that it was given for money lost by the defendant to the plaintiff in a game of monte. Upon these findings judgment was ordered for the defendant. The plaintiff made no motion for a new trial, and, by the terms of section 497, we have no power to examine the evidence for the purpose of seeing if these findings of fact are supported by the evidence. The only question which we can determine is whether these findings of fact support the judgment ordered. This doctrine we have repeatedly announced. This court held in the case of Palma vs. Canizares (1 Off. Uaz., 516) [1] that there could be no recovery on a note given for money won at gambling. That case is decisive of this one. The judgment is affirmed, with the costs of this instance against the appellant. Judgment will be entered accordingly twenty days after the filing of this decision, and the cause will be returned to the court below for the execution thereof. Torres, Cooper, and McDonough, JJ., concur. Arellano, C. J., and Mapa, J., dissent. Johnson, J., did not sit in this case.

[1] 1 Phil. Rep., 602.

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G.R. No. 1259, July 24, 1903

THE UNITED STATES, COMPLAINANT AND APPELLEE, VS. DOMINGO BERRY, DEFENDANT AND APPELLANT. D ECIS ION
WILLARD, J.: The Solicitor-General and the attorney for the defendant have joined in a petition that the defendant be included in the amnesty of July 4,1902. There is evidence in the case that the defendant was participating against the United States in the insurrection in December, 1900, when the crime was committed; that he had been ordered by his chief to kill all spies of the Americans; that he believed that the deceased was such a spy and that the defendant killed him for that reason. If this evidence can be believed the petition should be granted. Although the evidence is conflicting and is not entirely satisfactory, we have decided that it is more probable than otherwise that the story of the defendant is substantially true. The petition is accordingly granted and, on filing in this court the oath required by the proclamation, an order will be entered dismissing the case. It is so ordered. Arellano, C. J., Torres, Cooper, Mapa, and McDonough, JJ., concur.

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G.R. No. 1260, December 31, 1903

THE UNITED STATES, COMPLAINANT AND APPELLEE, VS. FRANCISCO DAVID ET AL., DEFENDANTS AND APPELLANTS. D ECIS ION
WILLARD, J.: The appellant, David, has been convicted of the crime of assassination and sentenced to life imprisonment. The court below held that he was not entitled to the benefits of the amnesty of July 4, 1902. In this we think that there was error. The evidence in the case as to the circumstances connected with the commission of the offense is very conflicting. Mamerto Anteojo, a defendant who was acquitted in the court below, testified twice during the trial. His two statements were inconsistent with each other, but it is probable that his second one is more nearly the truth than the statement of any other of the persons who claim to have been eyewitnesses. He said that when he and one Cofu were returning from the forests they met French. He was looking for another American who had been arrested by the revolutionists and taken to the commander of those forces, Daniel T. Sisson. They immediately seized French and were taking him to the same chief, when, on passing by the house of Eusebio Cenarro, they saw there Francisco Villabrille and other revolutionists. Villabrille gave French something to eat and soon departed, leaving him in the charge of David and directing the latter to take the prisoner to Sisson. At nightfall they started, and on the way David killed French with a bolo. The offense was committed in Surigao some time in 1900. No complaint was presented until February, 1903. 1. The appellant at the time in question was participating against the United States in the insurrection. The witnesses all agree that he and his companions were revolutionary soldiers. The appellant wore the uniform of a revolutionist. 2. It sufficiently appears that the crime was political in its character. The only reason for seizing French was that he was an American belonging to the country against which they were then fighting. The fact that they were taking him to the leader of the revolutionary forces shows almost conclusively that the detention was for causes connected with the insurrection. While a political prisoner and on his way to headquarters he was killed. There can be no doubt that the killing was due to the same cause as the arrest, namely, that he was an American and an enemy. 3. We think also that the evidence is sufficient to show that the appellant committed the act pursuant to orders of his superiors. Mamerto testified that David told him in the very act that he was ordered by Villabrille to kill the deceased. This testimony is something more than hearsay. It is a declaration made in the act itself and is a part of it, Mamerto also testified that when Villabrille charged David with the custody of the prisoner he said something more to him which the witness could not hear. The fact that French was not killed by his captors when they first seized him but only after the conference with Villabrille is also entitled to weight. The first declaration of the appellant appears in the record as follows:

"The defendants having been examined in the presence of their defender, Don Daniel Toribio Sisson, Francisco David, 29 years of age, resident of Maynit, stated: 'That he knows nothing of the crime of which he is accused and of which he received notice when in Maynit; that he had orders from his superiors not to kill any Americans, but to seize them and take them to their presence.' " The statement as to the killing of prisoners was entirely irrelevant to the rest of the statement, and in view of the fact that it was given before his counsel, Avho was the superior officer mentioned in the testimony, we think it is not entitled to weight. The rank which Villabrille had in the revolutionary army does not appear. But that it was superior to that of David is evident. They reported to him the capture. He assumed control of French while they were together and gave orders as to his disposition when he departed. The appellant is entitled to the benefit of the amnesty above mentioned, and, on filing in this court the oath required by the proclamation, an order will be entered dismissing the case. Arellano, C. J., Torres, Cooper, Mapa, and McDonough, JJ., concur.

DISSENTING: JOHNSON, J., Amnesty should not be granted to the defendant in proof does not show that he is included among the the proclamation of amnesty of July 4,1902, of the does the proof show that the crime with which mentioned, in the same proclamation. the above cause for the reason that the class of persons named or mentioned in President of the United States. Neither he is charged is included among those

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G.R. No. 1262, September 02, 1903

THE UNITED STATES, COMPLAINANT AND APPELLEE, VS. QUIRICO OLAGUER, DEFENDANT AND APPELLANT. D ECIS ION
WILLARD, J.: It is claimed by the counsel for the defendant in his brief that the defendant did not deceive Baldomero Belleza, the complaining witness, but that Belleza deceived himself, thinking that the defendant had powers which he did not possess. This claim is answered by the testimony of Belleza, wherein he says, in answer to a question by the court, that the defendant promised to secure the liberty of his brother, and his other statement that Belleza must pay the defendant $100 to secure this liberty. This was a representation on the part of the defendant that he possessed the power necessary to secure such liberty. Upon the questions of fact as to whether the defendant made such promise, and whether he received 50 pesos from Belleza, the evidence is sufficient to sustain the conviction. It will be noticed from an examination of the defendant's testimony that, while he says that he is not guilty, he makes no specific denials as to conversations with Belleza or the receipt of the money. It would seem from the witnesses whom he presented that he claimed that the money had been paid for losses at gambling in his house. We agree with the defendant's counsel that the eleventh aggravating circumstance of article 10 of the Penal Code ought not to have been taken into consideration by the court below. That circumstance is as follows: "To take advantage of any public office held by the accused." Flaviano Belleza was a military prisoner. The fact that the defendant was a copyist in the office of the provincial fiscal, a civil officer, even assuming that such a copyist would be a public officer, could have had nothing to do with the liberation of this prisoner, over whom the civil authorities had no control. It was also shown that the defendant acted as interpreter for Lieutenant Silliman, the officer who arrested Flaviano and others. This employment was casual and temporary. It does not appear that there was any such office as that of interpreter to this lieutenant. The discharge of this service could not make of the defendant a public officer. Even if he were such an officer, that circumstance could not be used to increase the penalty to the maximum degree, but would be, under article 399, a circumstance inherent in the crime, and punished by inhabilitacion especial temporal. (United States vs, Estanislao de la Rama, decided Aug. 27, 1903.) [1] The judgment is reversed and the defendant is convicted of the crime of estafa in the sum of 50 pesos, and is sentenced to three months of arresto mayor, the restitution of the sum of 50 pesos, and the payment of the costs of both instances. Arellano, C. J., Torres, Cooper, Mapa, and McDonough, JJ., concur.

[1] Not published.

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G.R. No. 1269, November 06, 1903

THE UNITED STATES, COMPLAINANT AND APPELLEE, VS. MATEO BUMATAY, DEFENDANT AND APPELLANT. D ECIS ION
TORRES, J.: On January 28, 1903, the provincial fiscal of Ilocos Sur filed an information charging Mateo Bumatay, municipal treasurer of the town of Salcedo, with the crime of malversation of public funds, defined and penalized in article 390 of the Penal Code. It was alleged that the defendant in October, 1902, received from one Lino de Abaya, deputy provincial treasurer, the sum of $75 and some odd cents for deposit in the municipal treasury, but that the defendant, instead of so depositing it, appropriated the money to his own use and that he failed to make any entry of the amount in the proper account book of the municipality. Page 46 of the record contains a document acknowledging receipt of $65.47, Mexican currency, signed September 20, 1902, by Mateo Bumatay. From the certified copies of the account book of the treasurer of the municipality shown in the record, it appears that at the beginning of September, 1902, there was a balance on hand of $240.47 On October 1 following the balance on hand was $283.29, and on November 1 of the same year there was only $132.64. The witness Lino de Abaya in his testimony stated that he had not delivered any money to the defendant, but that the deputy treasurer, Mr. Archibald McFarland, while in Candon acting as deputy of the defendant, received from the witness the sum of $65.47, Mexican, and, immediately afterwards, in the presence of the witness, turned this money over to the defendant, Bumatay. This statement was corroborated by the testimony of Deputy McParland, who stated that the delivery of the sum mentioned took place on the 1st or 2d of October, and that the defendant, Bumatay, gave him a proper receipt therefor. The defendant pleaded not guilty. After acknowledging the authenticity of his signature in the account books and in the receipt on page 46, he stated that on the 27th of November of last year, while he was in bed, very ill, the vice-president and several members of the municipal council, together with the man who relieved him, entered his house and informed him that he had been removed from the office of municipal treasurer, and that they thereupon seized the cash box he had in Ms house, with all the money which it contained, as well as the treasury books, but that they diet not prepare any inventory or count the money of which they had taken possession, stating that this would be done in the office of the president of the municipality, as they themselves did not know how to count the American dollars and bank notes; that they promised him that they would send him the inventory and receipt that afternoon, but that they failed to do so; that on the following day the defendant's wife, by his direction, went to obtain the inventory and receipt, but that they gave her evasive answers; and that, notwithstanding various demands made for the documents mentioned, he did not. succeed in obtaining either of them. The witness added that the money which was so taken by the persons mentioned amounted to 347 Mexican pesos, of which 161 pesos belonged to the municipal treasurer and the remainder to himself; that the persons mentioned informed him at that time that the accounts as found agreed with the treasury books, but that five or six days

later they demanded $37 of him to cover an alleged shortage, which sum the defendant's wife paid, without, however, succeeding in obtaining a receipt therefor. The defendant further testified that he had received from McFarland the sum of $65.47, referred to, and that he got the president to enter the amount for him in his account books; that he was accustomed to avail himself of the assistance of the president for this purpose, as he, the defendant, made many mistakes; and that the book in which the entry was made was among those taken from him by the persons mentioned. Upon being shown the monthly account books for September and October, he said that he could not find an entry for the sum in question, but that such an entry had originally been made. The defendant's wife and two other witnesses testified to the facts related by the defendant, to which they Avere eyewitnesses. They also affirmed that the councilors took aAvay the account books and the money without having made any inventory thereof, and without giving any receipt for the money so taken. The municipal president, Dionisio Biloaon, testified that the defendant, Bumatay, Avhen removed from his office of treasurer, was found to have failed to enter in his books certain sums of money received by him. This witness also testified that the accounts, after being, balanced, showed a shortage; that the defendant, when asked to state what had become of the money lacking, replied that it had been expended for the benefit of the municipality, that the witness did not remember how much money had been delivered by the defendant to the persons who went to take the money from his house, but that this appears from the papers of the municipality. The witness further testified that as soon as the shortage was discovered, the defendant was made to pay over the amount lacking and that the witness was assured by the councilors that they had made up the accounts in the presence of the defendant. The witness stated that he and the municipal secretary assisted the accused in keeping the treasu^ account books and that, at the request of the defendant himself, he had frequently made entries therein. This witness states it was true that, at the time the defendant, Bumatay, was removed from his office no inventory Avas made, but that the new treasurer made out a receipt Avhich showed the; condition of the accounts. It is a fact admitted by the defendant himself that he received from Deputy McFarland the sum of $65.47, Mexican currency, evidenced by a receipt signed by him. This, however, is not sufficient to justify the conclusion that this amount was embezzled by him, because, when the defendant was removed from his office of treasurer (while very ill and in bed, and apparently on this account alone, for no other reason has been given, nor has it been shown by what authority the removal was made), the persons who effected this irregular removal and took charge of or seized the cash box and its contents, as well as the books of the treasury, failed to observe the formalities prescribed by law. They did not count the money which they received or seized, did not examine the books, and made no inventory in the presence of the accused, thus omitting all the precautions which the most ordinary prudence and common sense would dictate. This unlawful proceeding was carried out in the presence of the defendant and of three other persons, whose unimpeached testimony avc have before us. The defendant states that the sum of 347 Mexican pesos was taken from his house, and that of this sum 161 pesos belonged to the municipality, the remainder being his own property. It is believed from this that the sum of $65.47, Mexican currency, alleged to have been embezzled by him was included in this remainder, and he can not be considered guilty of a crime which could not have existed, notwithstanding the fact that this money alleged to have been embezzled does not appear in the account or receipt books. Owing to the informal manner in which the vice-president and the members of the municipal council proceeded when taking

charge of the books and of the money in the cash box, we can not, in justice, hold that there was any misappropriation by the defendant of funds belonging to the municipality, since it appears that he had belonging to himself in the cash box, which was taken from him, a larger sum of money than that alleged to have been misappropriated. The municipal president himself testifies that the accused, owing to his ignorance or unfamiliarity with bookkeeping methods, was accustomed to avail himself of the president's assistance when entering his receipts in his cash book, and from this it may well be inferred that if the sum of money supposed to have been embezzled does not appear on the book, this omission is chargeable to the municipal president. In the absence of evidence to the contrary, we must give credence to the statement of the defendant that he had in the municipal cash box money of his own exceeding the amount alleged to have been embezzled. A sum of money, uncounted, was taken from his house, and the amount of this money is unknown at the present time. The record does not disclose what sum was seized by the vice-president and the members of the municipal council who removed the defendant from office. We therefore can not regard the accused as guilty of appropriating a sum of money much inferior in amount to the funds in his hands at the time he ceased to hold office. For these reasons we are of the opinion that the judgment below should be reversed and the defendant acquitted, with the costs de oficio. So ordered. Arellano, C. J., Cooper, Willard, and Mapa, JJ., concur. MCDONOUGH, J., dissenting : I dissent. I think that the facts found are sufficient to justify the conviction and that the judgment below should be affirmed.

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G.R. No. 1271, December 04, 1903

THE UNITED STATES, COMPLAINANT AND APPELLEE, VS. TELESFORO DASAL ET AL., DEFENDANTS AND APPELLANTS. D ECIS ION
TORRES, J.: On September 11, 1902, an information was filed in the Court of First Instance by the assistant prosecuting attorney of the city of Manila, charging the thirty-five persons mentioned in the record with the crime of murder. The information alleged that on or about the 13th day of August, 1902, while the defendants were on board the Dos Hermanos , an American steamer duly registered in the Philippine Islands, said steamer being at that time within the navigable waters pf this Archipelago and at a distance of less than 1 mile from the beach of the town of Virac, Catanduanes Islands, Albay, they willfully, feloniously, treacherously, and with deliberate premeditation, assaulted, killed, and murdered one Antonio Agudo, striking and wounding him with daggers, iron bars, and other deadly weapons; and that afterwards, to wit, on or about the 2d of September of the same year, the said steamer Dos Hermanos entered the port of Manila. The information above mentioned refers to a crime committed on board a merchant steamer, registered as a coasting vessel in these Islands and at anchor in a port of one of the islands, therefore, under the provisions of section 1 of Act No. 400, passed by the Civil Commission on May 16, 1902, by which the organic law of the courts, Act No. 136, passed June 11, 1901, was modified and extended. The steamer Dos Hermanos having, after the commission of the crime, put into this city, it is incontrovertible that the Court of First Instance thereof has sole jurisdiction, to the exclusion of all other courts of the Archipelago, for the trial of the case. The information having been admitted and the defendants arraigned, the plea of not guilty was entered. Before the trial commenced Isidro del Valle and Tiburcio Soriano died; and with respect to the defendants Damaso Sopgang and Carlos Septimo the case was dismissed, the prosecuting attorney having entered a nolle prosequi . From the evidence introduced at the trial, and especially from the testimony of Miguel Morales, captain of the steamer Don Hcrmanos, together with that of First Mate Juan Zabala, Second Engineer Fabian Rendon, and the other witnesses examined, the following facts were established : Shortly after 8 o'clock on the evening of August 13, 1902, the steamer Dos Hcrmanos, a vessel bearing license No. 72, dated January 11, 1900, authorizing her employment in the coastwise trade, was lying at anchor in the harbor of Virac, Catanduanes Islands, at a distance of some 40 yards from the beach, with the bow toward the shore and the stern seaward. The bow anchor was dropped and the stern made fast to the beach with a cable. Supper was just over, and Captain Morales, Zabala, the first mate, and five passengers, three of whom were men and two women, together with Don Joaquin Romero, a guest on the vessel, were sitting around the big table on the poop deck engaged in conversation. The first and second engineers were amidships on the port side, engaged in conversation just outside the officers' staterooms. Suddenly the sound of the voices of many men rushing from the bow of the ship was heard. Upon this Captain Morales and the mate, Zabala, jumped up and went down

toward the place where the tumult was in progress. Just at this moment the first engineer's voice was heard shouting, "Quartermaster," and at the same moment they saw the second engineer, Rendon, coming toward them on the run, pursued by the quartermaster, Pantaleon Cajilig, and several members of the crew, armed with knives, daggers, and iron bars. One of them attacked Rendon and wounded him in the back with a dagger or a knife, while the quartermaster, in turn, attacked Captain Morales, inflicting upon him a stab in the groin. Morales tried to get into the pantry. Some ten or fourteen men endeavored to prevent him and one of them, in the course of the struggle, cut him on the head with a knife. In the meantime First Mate Zabala, believing that the noise was due to a fight forward, went down the other side toward the scene of the disturbance. Upon seeing a number of the crew, armed and evidently in mutiny, approaching him, he retreated. He was, however, overtaken and Calker Elpidio Andrade attacked him with a knife. In the struggle another member of the crew approached him and endeavored to throw him into the sea, and immediately after another seaman, Rufino de Jesus, struck him on the head with an iron bar. Zabala, however, finally succeeded in shaking off his assailants and made his escape into the pantry, where the captain and the second engineer, Rendon, had taken refuge. They closed the door and five.of the mutineers, who unsuccessfully endeavored to force an entrance, locked it with a key from the outside and remained on guard there. Some of them endeavored to stab the inmates of the stateroom with daggers and knives through the portholes. About the same time one of the passengers, Faustino Tremoya, was wounded on the arm, and, upon retreating, was pursued until he also took refuge in the pantry. He was unable tc recognize his assailant. Chief Engineer Antonio Agudo was the officer first attacked when the mutiny broke out. He was assailed by several of the mutineers and was wounded in ten places with different weapons. The body of this officer was subsequently found in his stateroom. The steward, Vicente Amellategui, was also attacked, and, upon being struck with an iron hook, jumped overboard and disappeared. His body was never recovered. The Chinese carpenter, Tan Chuen, also disappeared and was not seen again after that night. While the attack was in progress the mutineers lowered the side awnings, which up to the time of the commencement of the mutiny had been pulled up, the lights on the steamer were extinguished, three of the boats wThich had been in the water were1 raised, the cable by which the stern of the vessel was fastened to the shore was cut, the accommodation ladder was hauled up, the anchor raised with the donkey engine, the ship's engines were started, and the steamer was put in motion, unquestionably with the intention of leaving the port of Virac for parts unknown, and thereby escaping the legal consequences of their acts. The record does not disclose the motive which led to the commission of the crime. First Lieutenant Fletcher, of the Constabulary, who was on shore that night in the barracks near the beach, heard the shouting on board the steamer, and, believing a fight was in progress, got into a boat with two of his soldiers and headed for the steamer. This was at about 8.30 on the night in question. After covering half the distance to the steamer he found a man swimming. The latter was picked up, and, being barely able to breathe, could gasp only the word "fight." This man proved to be Damaso Sopgang. In the meantime the anchor was raised and the steamer commenced to move. The boat containing the Constabulary officers ran along the port side of the ship, and Fletcher shouted to the men on board to drop the anchor, whereupon a man on the bridge threw a lump of coal at him. Fletcher replied by firing at the man, who fell from the starboard side of the bridge. Lieutenant Fletcher then commenced firing at several men who were running the donkey engine near the anchor and ran his boat around to the starboard accommodation ladder, but found this raised. However, finding a hanging stage at the stern, he managed to climb on board the ship, which was at that time in motion. When

he got on deck the captain, who was near his stateroom, shouted to him to hurry. Lieutenant Fletcher ran to the engine room and fired a couple of shots into it from his revolver, ordering the men below to stop the engine, which order was immediately obeyed. He then ran down to the stern and fired several shots at some men he saw there, all of whom fled excepting three, who we're captured. Three or four others jumped into the water. A sailor shot and wounded one of the Constabulary men and was, in turn, fired at by Lieutenant Fletcher. During all this confusion the steamer ran aground near the mouth of the harbor, about 150 yards from the place where it had been anchored when the mutiny broke out. The first mate, Zabala, and the second engineer, Rendon, jumped overboard and swam ashore. The first engineer was found in his stateroom, dead, and covered with wounds. On the following morning, after the Constabulary had the situation under control, there were found scattered about the deck daggers, knives, hatchets, and iron bars, some of them spattered with blood, several piles of coal prepared for use as missiles, the captain's swordstick, and later, hidden in a grease box in the engine room, one of his revolvers. Vicente Gallardo, Ciriaco Silva, Gregorio Almondia, Pedro Rodriguez, Mamerto Avelilla, Rufino do Jesus, Marcelo Bertos, Pio Tionson, Felipe Almendras, Emilio Lebiga, Manuel Raon, Juan Briguela, Mariano Gunao, Antonio Villagracia, Pablo Conception, Dionisio de la Cruz, Luis Dialao, Estanislao de Castro, Damian Oseson, Macario Arevalo, Eugenio Olores, Severino Damagat, Cipriano Rizado, Luis Taunson, Exequiel Perez, and Antonio Villamor were arrested and taken ashore. Benigno Parra was apprehended on shore the next day, and several days later Telesforo Dasal, one of the men who escaped, was captured. Lieutenant Fletcher in his testimony stated that he could not remember where Victorino Villacarlos and Tranquilino Aga were apprehended; nor could he state whether the men arrested on board the ship and those who were identified by him took part in the mutiny and the assault up.on the officers. He stated it was his belief that the purpose of the uprising was to steal the money on board the vessel and to carry off the vessel itself. He further testified that Pablo Conception and Benigno Parra were wounded, the former in the hand and the latter in the side, by shots fired by the Constabulary men. He stated that Telesforo Dasal was wounded in the leg by a policeman at the time of his arrest on shore, and that the quartermaster, Cajilig, who was seen with Dasal several days after the occurrence, managed to make his escape. With respect to the defendant Juan Briguela, Lieutenant Fletcher testified that after Briguela was told that unless he obeyed every order given him he would be killed he was asked why he had started the engines during the mutiny, and he thereupon replied that at about 7 o'clock on the night of the occurrence the quartermaster, revolver in hand, came to the engine room and told him he was to start the engines whenever the signal was given and that if he did not do so he would he killed. Other member of the crew who were interrogated concerning the occurrence replied evasively and said that they had not done anything. The calker, Andrade, and the seaman who attacked the mate Zabala and tried to throw him into the sea were killed by the Constabulary in the course of the mutiny. From the facts stated, it clearly appears that a number of men belonging to the crew of the steamer Dos Hermanos conspired together to overcome the rest of the crew and kill the captain and officers of the steamer, with the intention of seizing the vessel and its contents and with it leaving for parts unknown. This outbreak resulted in the death of the first engineer, Antonio Agudo, the steward, Vicente Ameliategui, and the Chinese carpenter, Tan Chuen, and in the wounding of Captain Morales, First Mate Zabala, Second Engineer Kendon, and the passenger Faustino Tremoya. The killing of the first engineer, Antonio Agudo, must be classified as murder, lie was put to

death by several of the mutineers on the night of August 13, 1902, they acting with evident premeditation and after reflection concerning the perpetration of the crime, which they had conspired together to commit. This circumstance determines the nature of the crime and brings it within the provisions of article 403 of the Penal Code. The circumstance of evident premeditation is present in a marked degree, for, without careful planning beforehand, the crime above related would not have been committed. The court below, in its judgment of February 11, 1903, condemned ltufino de Jesus, Juan Briguela, and Telesforo Dasal to the penalty of death and the other defendants to the penalty of life imprisonment at hard labor, as authors of the crime of murder. Although we agree with the judge below as to the classification of the crime and as to tjie guilt of some of the defendants, we can not agree with him as to that of others. With respect to some of the accused, the record contains no evidence whatever that they took part in the crime herein prosecuted. It is unquestionable that a portion of the crew of the steamer Dos Hermanos participated in the mutiny and in the attack upon the captain and other officers, and more especially upon the first engineer, whose body was subsequently found wounded in ten places. The presumption that some 10 or 14 men took part in that attack is based upon the fact that in order to effect in so short a time the various acts performed, many men must have acted together, although not necessarily the 41 who composed the crew. It can not be denied that a large portion of the crew did not take any part in the mutiny and had nothing to do with the crime committed by the mutineers. Consequently it was error to hold that all of, the members of the steamer's crew should be regarded as co-principals of the crime in question. The record does not disclose evidence of the guilt of all of the defendants, but only of some of them, and the degree of guilt of these varies. Carlos Septimo, Damaso Sopgang, and Jorge Orlano were also members of the crew of the steamer, but nevertheless took no part in the commission of the crime. The evidence also shows that there were several otheiMiien who unquestionably were not implicated in the mutiny, but who had not sufficient courage to follow Sopgang's example and jump overboard. These simply concealed themselves on board the steamer and waited for the termination of the mutiny, without attempting to escape, as did the ringleaders, the quartermaster, Pantaleon Cajilig, who has not been apprehended, and the helmsman, Telesforo Dasal, who was arrested on shore several days after the occurrence. Although Telesforo Dasal, Rufino de Jesus, Pablo Concepcion, Gregorio Almondia, Emilio Lebiga, Benigno Parra, and Pedro Rodriguez pleaded not guilty, the evidence as to the guilt of these seven defendants, the first as co-principal with the quartermaster, Cajilig, and the two men who were killed by the Constabulary, and the other defendants as accomplices, is convincing. Carlos Septimo testified that while he was going ashore in a boat on the afternoon of the day the crime was committed, accompanied by Andrade, the quartermaster, Cajilig, and the helmsman^ Telesforo Dasal, he saw these three men conversing together and heard Cajilig say to the other two in Spanish, "Where shall we kill him?" although without stating who was to be killed. This conversation shows that the mutiny and the killing of the engineer Agudo and the other crimes committed had been planned beforehand by these three men, one of whom was the defendant Dasal, and that they were the ringleaders of the mutiny. While the mutiny was in progress, Dasal, armed with a knife, aided the other mutineers in the attack on the first engineer, Agudo, and also assisted the party led by the quartermaster and the calker in their attack upon the second engineer, Kendon. This is the testimony of the latter and of the

witness Jorge Orlano. Furthermore, he was one of the men who pulled up the accommodation ladder, directed that one of the boats be raised, and accompanied the quartermaster to the engine room to order Juan Briguela to get up steam. Consequently, it is unquestionable that he is guilty as principal by direct participation in the murder committed. This evidence given by the first officer, Juan Zabala, witness for the prosecution, and by the defendants Benigno Parra, Juan Briguela, Pablo Conception, and Emilio Lebiga has not been overcome by the assertion of the defendant Dasal, who denies that he had anything to do with the mutiny or the murder of Agudo. The cooperation in the commission of a crime which results in fixing upon the guilty agent the responsibility of an accomplice requires acts either prior to or simultaneous with the commission of the crime which constitute an aid and protection to the person or persons guilty of the actual commission of the crime; that is, perpetration of acts of moral or physical aid given mediately by indirect means in such a way as to make it clearly appear that the principal and the accomplices acted upon a common agreement for the purpose of effecting some criminal act, although the means employed by each may have been distinct and separate. (Penal Code, art. 14; judgments of the supreme court of Spain of April 25, 1877, January 22, 1884, April 2, 1886, and June 7, 1886.) The case contains sufficient circumstantial evidence to warrant the conviction of the other defendants Rufino de Jesus, Benigno Parra, Pablo Concepcion, Gregorio Almondia, Pedro Rodriguez, and Emilio Lebiga as accomplices in said murder. These six defendants were seen moving about the deck of the ship during the mutiny, which they would not have done had they not been implicated in the conspiracy. Some of them, as Lebiga, Rodriguez, and Parra, were seen hauling up a boat and the accommodation ladder, thereby making it impossible for Fletcher to board the ship by means of the latter. These facts are shown by the testimony of the witness Jorge Orlano. The acts referred to were performed in obedience to orders given by the quartermaster, Cajilig. Rufino de Jesus was one of the assailants of First Mate Zabala, although the assault upon him was not the object of this prosecution. The evidence during the prosecution does not show that Rufino de Jesus took a direct part in themurder; nevertheless, the acts committed by him during the mutiny must be regarded as acts of complicity or of aid or protection to the murderers of First Engineer Agudo. It is worthy of note that both Captain Morales and First Mate Zabala testified that the mutineers were from ten to fourteen in number, and to their number must be added as presumably guiltythe quartermaster, Cajilig, who was not arrested, the two men killed on board, and Isidro del Valle and Exequiel Perez, who died after the trial commenced. The defendant Parra was likewise ordered by the captain, who saw him go by the front of the stateroom where he had taken refuge with the other officers, to fetch him his revolver from his stateroom. Parra, although he obtained the revolver, did not deliver it as commanded, and it was subsequently found in his possession by one of the Constabulary. The witness Concepcion testified that he was on watch at the stern of the vessel when the mutiny broke out; that he saw the quartermaster, the calker, and the helmsman, Dasal, and one of the seamen run after the first engineer, and that thereupon the witness immediately concealed himself in one of the boats at the bow. This statement was incompatible with the proven fact that during the mutiny Conception was seen walking about the deck in front of the stateroom in which the captain and officers had taken refuge.

Apart from the testimony of First Officer Zabala to the effect that he saw Gregorio Almondia with the mutineers, Captain Morales affirms that on leaving the pantry he found on the deck near the bow a black hat, which turned out to be the property of the said Almondia. The latter, also, according to the statement of Mamerto Avelilla, was the one who woke him up when the mutiny broke out, he having been asleep in the forecastle at the time. These six men took no direct part in the murder of the first engineer, nor did they induce the commission of the crime or cooperate in its commission by acts without which the crime could not have been perpetrated. Consequently, under article 13 of the Penal Code, they can not be regarded as principals. They did indeed perform acts of aid and assistance mediately and indirectly tending to the realization of the crime and in conformity with the intention and purpose of the principals; and therefore the responsibility of these six defendants with respect to the murder is that of accomplices, under the provisions of article 14 of the Penal Code. The details of the attack upon the first engineer, Agudo, were not determined at the trial, and the evidence does not disclose how the attack commenced or what the position of the deceased was at the time. If he was sitting with the second engineer, Rendon, by the side of the table at which they had eaten, he mnst have noticed the approach of the assailants, as did Rendon, who was able to seize a bar of iron to defend himself. Consequently, as it does not appear that the deceased Avas attacked treacherously and under circumstances which gave him no opportunity to make a defense, it is improper to consider the qualifying circumstance of alevosia present. The facts constituting this circumstance must be proven with the same degree of certainty as the crime itself and can not be inferred or presumed. Mutiny on board a vessel is, of itself, a crime severely punished by special maritime laws of the former sovereignty. However, this crime, as well as other punishable acts, such as that of piracy, which the record shows to have been committed, have not been the object of the prosecution, and this decision must be limited solely to the crime of the murder of Antonio Agudo. In the commission of this crime it is proper to consider present the aggravating circumstances of abuse of superior power, nocturnity, and, with respect to the defendant Telesforo Dasal, abuse of confidence. As to the first of these, owing to the great number of wounds inflicted on the deceased, Agudo, it is to be presumed that he was simultaneously attacked by several persons, and that the number of his assailants prevented him from making a defense. With respect to the circumstance of nocturnity, there can be no doubt that the mutineers availed themselves of the darkness of the night, at a time when the officers and the rest of the creAv were off their guard, for the purpose of committing the crime above related, and, with reference to Dasal, it is unquestionable that, as he held the position of helmsman on board the vessel, in placing himself, in company with the quartermaster, at the head of the mutineers, and thereby using the influence he possessed'over the seamen and other members of the crew as a result of his position, he abused the confidence reposed in him by the captain and officers of the ship and committed an act of treachery with respect to them. On the other hand, no mitigating circumstances were present, and consequently the adequate penalty must be imposed in the maximum grade. Against the other defendants, Estanislao de Castro, Ciriaco Silva, Mamerto Avelilla, Manuel Raon, Luis Taunson, Mariano Gunao, Vicente Gallardo, Marcelo Bertos, Severino Damagat, Pio Tionson, Victorino Villacarlos, Antonio Villamor, Dionisio de la Cruz, Cipriano Rizado, Francisco Mendoza, Felipe Almendras, Macario Arevalo, Luis Dialao, Eugenio Olores, Damian

Oseson, Antonio Villagracia, and Tranquilino Aga, the record contains no evidence, not even circumstantial, that they took any part whatever in the mutiny or in the crimes committed on the night of August 13, 1902, and more especially in the murder of Antonio Agudo. Consequently they must be acquitted. The majority of the court are of the opinion that the same is true with respect to the assistant engineer, Juan Briguela, who they think should also be acquitted of the charge. It is believed that he started the engine under compulsion, the quartermaster having, revolver in hand, ordered him to do so, and having threatened him with death if he failed to obey, and, on the other hand, there is no evidence that he took part in the murder of the first engineer. I do not concur in the opinion of the majority in this particular. I believe that, as the exculpatory allegation of the defendant Briguela has not been proved, and in consideration of the evidence against him, it having been proved that he performed acts of aid and protection to the principals of the crime both prior to and simultaneous with its commission, he should be convicted as an accomplice. For tire reasons stated, we are of the opinion that the judgment of the court below should be reversed. Telesforo Dasal should be convicted as coprincipal of the crime of murder and condemned to the penalty of death, to be executed in the interior of the prison and in the manner prescribed by article 101 of the Penal Code, the crime having been committed prior to the passage of Act No, 451 of the Civil Commission. In case said defendant Dasal should be pardoned, he should be condemned to the accessory penalties of absolute perpetual disqualification,and subjection to the vigilance of the authorities during his lifetime, unless these accessory penalties should be remitted in the pardon of the principal penalty. The other defendants found guilty as accomplices, Benigno Parra, Pablo Concepcion, Gregorio Ahnondia, Pedro Rodriguez, Emilio Lebiga, and Rufino de Jesus, should each be condemned to the penalty of seventeen years of cadena temporal, to the accessories of civil interdiction during the period of the principal penalty and to absolute perpetual disqualification and subjection to the vigilance of the authorities during their respective lives. The said defendants, including the said Dasal, are further condemned to the payment, pro rata or in solidum, of 1,000 Insular pesos to the heirs of the deceased, Antonio Agudo, without subsidiary imprisonment in case of insolvency, owing to the gravity of the principal penalty, and to the payment each of one thirty-fifth part of the costs of both instances. The defendants Ciriaco Silva, Mamerto Avelilla, Manuel Kaon, Luis Taunson, Mariano Gunao, Vicente Gallardo, Marcelo Bertos, Severino Damagat, Pio Tionson, Victorino Villacarlos, Antonio Villamor, Dionisio de la Cruz, Cipriano Rizado, Francisco Mendoza, Felipe Almendras, Estanislao de Castro, Macario Arevalo, Luis Dialao, Eugenio Olores, Damian Oseson, Antonio Villagracia, Tranquilino Aga, and Juan Briguela are acquitted. The case is finally dismissed with respect to Isidro del Valle, Tiburcio Soriano, and Exequiel Perez, deceased, with the remaining costs of both instances do oficio, including the share thereof pertaining to Carlos Septimo and Damaso Sopgang, as to whom the case was dismissed during the trial. At the expiration of the usual period the cause will be remanded to the court below, accompanied by a certified copy of this decision for the execution of the judgment. So ordered. Arellano, C. J., Mapa and McDonough, JJ., concur. Johnson, J. , did not sit in this case,

CONCURRING WILLARD, J., I concur with respect to the defendants acquitted and as to the defendant Telesforo Dasal, but do not agree with respect to the penalty imposed upon the others, because, in my opinion, the other defendants convicted in this case are not accomplices, but coprincipals.

OSJurist.org

G.R. No. 1274, September 25, 1903

THE UNITED STATES, COMPLAINANT AND APPELLEE, VS. TOMAS GUEVARA ET AL., DEFENDANTS AND APPELLANTS. D ECIS ION
ARELLANO, C.J.: On February 6, 1903, an information was filed charging Tomas Guevara, Lucas Feliciano, and Tomas Bernardo, members of the Constabulary stationed at San Miguel de Mayumo, Province of Bulacan, with the crime of homicide. The information alleges that at about 8 o'clock on the night of September 16, 1902, information having been secretly received from Segundo Carpio that one Veronico de Leon had a Remington rifle in his possession, the three defendants, with other soldiers of the corps, all commanded by the defendant Guevara, a corporal, went with Carpio to the house of the suspect, located in the barrio of Salangan in said town. Veronico de Leon was there arrested, and after being conducted to a secluded place about 20 brazas from the house was beaten with the butt of a gun, receiving injuries from which he shortly after died. The three defendants pleaded not guilty to the charge of homicide brought against them, and in the course of the trial in the court below the defendant Tomas Bernardo was acquitted. Dr. Ramon Lopez, who, by order of the justice of the peace, held an autopsy on the body the day after the occurrence, stated that it was due to an internal hemorrhage induced by a rupture of the spleen, caused either by heavy blows, the marks of which were observable on the exterior part of the epigastric region, or by some other more violent pressure which left no exterior marks. After careful examination both of the interior and exterior of the body the physician was able to give no other explanation of the death. The facts above related constitute the crime of homicide, defined and punished in article 404 of the Penal Code. It does not appear from the record that in the commission of the crime any qualifying or generic circumstance was present which would require a different classification of the offense or the imposition of a heavier penalty. The court below convicted Lucas Feliciano and Tomas Guevara and condemned each to fourteen years eight months and one day of reclusion temporal. With respect to Lucas Feliciano, there is sufficient evidence to show that after arresting Veronico de Leon he beat him with the butt of his gun, and that Leon shortly after died. With regard to Tomas Guevara, Tomas Bernardo says that the former turned Veronico de Leon over to the soldier Feliciano, telling the latter not to illtreat him. Segundo Carpio explicitly says that it was Feliciano who struck Veronico de Leon with the gun and that while Feliciano was beating the prisoner Guevara did nothing, but, the witness states, merely formed a group with Feliciano and Veronico de Leon. The witness adds that he was standing near by at the time and heard no conversation whatever between them. Tomas Guevara testified that he was ordered to take Veronico de Leon to the barracks, owing to a report that he was in possession of a gun; that he threw his men out into a skirmish line a short way from the house of Veronico de Leon; that he made the latter come out of his house and turned him over to the soldier Feliciano; and

that he was then engaged in getting his men together, which took him about half an hour. The same statement is made by Tomas Bernardo, the latter adding that the party then started for the barracks. Upon being asked how it was that he consumed half an hour in getting his men together, he said he called them together as a matter of precaution, because he had been informed that there were a great many people in that vicinity who had guns. Upon being interrogated by the judge as to how long Veronico de Leon had been out of the control of this defendant, after the latter turned him over to Feliciano, he said it was about half an hour. "Were you half an hour in getting your soldiers together?" asked the judge. "Yes," said the accused, "because they were stationed some distance away." Finally having been asked if he could not have assembled them by whistling, he said that he had no whistle. The court below regarded this allegation that the defendant had been engaged for half an hour in getting his soldiers together as puerile, and also considered unsatisfactory his statement that he had no whistle, such officers being required by the rules of the corps to carry them. The court below accordingly found this defendant guilty as coprincipal. From the facts above related (and the record contains nothing further upon this point) it does not appear that there was any direct act of inducement, command, advice, or suggestion on the part of the defendant Corporal Guevara from which it might be inferred that he had any direct participation, even morally, in the ill treatment of Veronico de Leon by the soldier Lucas Feliciano. Can he be held as an accomplice by reason of his having been present, and because he was the one who arrested Veronico de Leon and turned him over to the other defendant, Lucas Felieiano? In a similar case, in which an ensign had arrested a man and turned him over to some soldiers who, after the column started, remained behind at the starting point and there murdered the prisoner, the supreme court of Spain, deciding the writ of error sued out by the ensign who had been convicted as an accomplice, laid down the following rules: (1) That the indirect and mediate participation in the commission of a crime by an accomplice always presupposes that the principal and accomplice acted in conjunction and directed their elf orts to the same end, even though the cooperation and actual commission of the crime were distinct from each other; (2) that as the only cooperation in the commission, of the crime attributed to the ensign, and upon which he was convicted as an accomplice, is the fact that he arrested the deceased, there being no evidence to show that between the ensign and the principals there was an agreement or understanding, it follows that the arrest and the murder must be regarded as wholly independent facts and that no responsibility for the crime can rest upon one who merely took part in the arrest of the deceased. (Judgment of the supreme court of Spain of June 7, 1886.) Such an agreement or understanding can not be presumed from the mere fact that Corporal Guevara was present when the soldier Feliciano beat Veronico de Leon, even upon the hypothesis that the testimony of the witness Carpio to this effect, which is contradicted hj that of Guevara and Bernardo, is true. Mere presence does not of itself constitute a simultaneous act of cooperation sufficient to make one an accomplice. This was so held by the supreme court of Spain, in a criminal case in which a father had been convicted as an accomplice simply because he had been present at the commission of a homicide by his sons. (Judgment of June 25, 1886.) In a case against Juan Gomez and Jose Martinez in the Audiencia de Albacete , in which the former was convicted as

principal of the crime of murder, because, according to the complaint and the evidence presented, it was he who had inflicted blows upon the victim; and the latter as accomplice, because he had been in the room in which the crime was committed, having entered it with the other defendant through a window, late at night, the supreme court of Spain in an opinion written by Mr. Justice Martinez del Campo, said that "the responsibility of the accomplice is to be determined by acts of aid and assistance, either prior to or simultaneous with the commission of the crime, rendered knowingly for the principal therein, and not by the mere fact of having been present at its execution, unless the trial court finds that the object of such presence ftras to encourage the delinquent or to apparently or really increase the odds against the victim, and in the absence of such an intent specifically shown, concurring with some overt act, which together form the basis of the responsibility of the indirect author of the crime, such a conclusion is erroneous and constitutes an infraction of article 15 of the Penal Code." (Judgment of June 25, 1886.) We therefore affirm the judgment appealed with respect to the conviction of Lucas Feliciano and reverse it with respect to Tomas Guevara, whom we acquit, with one-half of the costs de oficio. Cooper, Willard, Mapa, and McDonough, JJ., concur.

DISSENTING TORRES, J.: I accept the statement of facts and conclusions of law of the majority opinion with respect to the defendant Lucas Feliciano, and concur as to the penalty imposed upon him as proven author of the homicide committed on the person of Veronico de Leon. I dissent, however, from the opinion of the majority of the court with respect to the acquittal of the other defendant, Tomas Guevara, as he, in my opinion, should be punished as an accomplice in the commission of the crime. It is true that the record contains no evidence, even of a circumstantial character, to show that Guevara was a coprincipal even by induction, in the violent killing of the deceased, but the merits of the case, especially the important testimony of the witness Segundo Carpio, are convincing as to Guevara's guilt as an accomplice. From the testimony of this witness, corroborated by other evidence in the record, we have such information with respect to the criminal act as to authorize us to find Lucas Feliciano guilty as author thereof, notwithstanding bis denial and the unsupported statements of Guevara and Tomas Bernardo. There is no legal reason why this testimony should not be regarded as also proving that Corporal Guevara was present at the time the deceased, Leon, was illtreated by Lucas Feliciano. The presence of Corporal Tomas Guevara at the time of the commission of this crime is unquestionable and has been as fully proven as the crime itself. Not the slightest doubt upon this point can arise by reason of the improbable allegations of Guevara or the testimony of the other policeman, Tomas Bernardo. The testimony of the only eye-witness, Segundo Carpio, which has not been attacked, should be accepted as a whole, there being no reason in law why it should be accepted in part and rejected in part, inasmuch as the general trend of the evidence tends to establish his veracity.

Upon this supposition, the silence of Corporal Tomas Guevara, the officer in command of the squad of seven policemen who arrested Veronico de Leon, denotes an implied authorization and tacit consent to the illtreatment of the prisoner by the policeman Feliciano, since, if the latter were not true, he would have opposed this illegal and unjust assault. Corporal Guevara was not a private individual or another policeman of the same rank as the assailant, who by accident or chance happened to be present at the time these injuries were inflicted by a police officer. Guevara was in command of this officer, and it would be impossible to justify his passive and indifferent attitude while the prisoner Leon was in his presence repeatedly beaten by the policeman Feliciano, until he screamed with pain and threw himself on the ground. Moreover, Corporal Guevara himself went into the prisoner's house and got clothing for him and made him change his muddy garments before taking him to the barracks. When the officer in command of the squad of policemen consented to this illegal procedure on the part of one of his subordinatesconduct permitted in no civilized countrywithout preventing or opposing it, he by his silence showed a tacit approval of the assault. This, in connection with the arrest of Veronico de Leon by Corporal Guevara and the delivery of the former to the policeman Feliciano, who immediately took him to a secluded spot and in a cruel and inhuman manner maltreated him in the presence of Guevara, shows the commission of such prior and simultaneous acts as make Guevara an accomplice in the crime. Corporal Guevara, who was the commanding officer of the arresting party, by his presence at the time these fatal injuries were inflicted, and by his silence during the commission of the assault, gave moral aid and protection to the guilty agent, and such approval as to encourage the commission of the crime. Consequently it is undeniable that he is guilty, at least as an accomplice, of the homicide in question. If the prisoner had made opposition and attempted to defend himself against the assault, unquestionably Corporal Guevara would have interfered on behalf of the policeman who committed the assault, from which it may be believed that his silence and passive attitude was an encouraging consent as well as a moral aid and protection to the assailant. The criminal law punishes not only unlawful acts but omissions or failures to perform duties. It was the duty of the corporal in command of the squad of policemen to prevent such an outrage from being committed. He, on the contrary, remained silent and did nothing to prevent the execution of the crime, and therefore incurred criminal liability. It is not competent for him to allege that he was under no obligation to prohibit these acts or to oppose such illegal procedure, because it was his strict duty, as commanding officer of the party, to enforce the law and the regulations of his corps. Since February 6, 1903, on which date Act No. 619 was passed, any discussion as to the responsibility of an officer present at the commission of such acts has become unnecessary. I refrain from examining the facts in the cases, in which the judgments cited in the majority opinion were rendered, because a mere perusal of them is sufficient to show that they are not analogous or similar to the facts in this case. For the reasons stated, I am of the opinion that the judgment of the court below should be reversed and that the defendant Tomas Guevara should be declared guilty as an accomplice in the commission of the crime and condemned to eight years and one day of prision mayor, with the accessories of article 61 of the Code, and with the subsidiary obligation to pay

indemnification to the heirs of the deceased, in case of th.e insolvency of the principal offender, and to the payment of one-half of the costs of this instance. Judgment affirmed as to the defendant Feliciano; Guevara acquitted.

OSJurist.org

G.R. No. 1278, August 01, 1903

EUGENIO BONAPLATA, PETITIONER, VS. BYRON S. AMBLER, JUDGE OF THE COURT OF FIRST INSTANCE OF MANILA, AND J. MOMIOKING, CLERK OF THE COURT OF FIRST INSTANCE OF MANILA, RESPONDENTS. D ECIS ION
MCDONOUGH, J.: This was a motion for judgment on the pleadings in a proceeding in which the plaintiff prays that a peremptory order be issued by this court against Judge Ambler, commanding him, as judge of the Court of First Instance of Manila, to immediately cause to be issued and subscribed a writ of execution for the enforcement of plaintiff's judgment against Fulgencio Tan Tonco for the sum of 1,541 pesos, Mexican currency, which judgment was recovered January 13,1903, and against the defendant J. McMicking, as clerk of the said Court of First Instance of Manila, commanding him to issue and subscribe a writ of execution, sealed with the seal of the Court of First Instance of Manila, for the enforcement of plaintiff's said judgment. The facts upon which this application is based are undisputed. The plaintiff, on January 13, 1903, recovered a judgment in the Court of First Instance of Manila, in an action for debt against Fulgencio Tan Tonco, amounting to 1,541 pesos, Mexican currency. No exceptions were taken or filed against said judgment, nor was a motion for a new trial made; and the judgment is now in full force and effect. After the rendition and entry of said judgment the plaintiff repeatedly requested the defendants above named to duly issue a writ of execution to satisfy the judgment of the plaintiff against said Fulgencio Tan Tonco, which request was refused. The defendants, by their attorney, state, as their reason for such refusal, that on the 18th day of December, 1902, one Sergia Reyes instituted a suit against said Fulgencio Tan Tonco, in the Court of First Instance of Manila, for an indebtedness amounting to the sum of $1,500, Mexican currency, and in the complaint alleged that the said defendant was insolvent; that several creditors had sued him; that the assets of his business consisted of real estate, contracts for buildings (many partly completed), equities in real estate, and other property of the value of about $200,000, Mexican currency; that said property was in good condition and that it was in the interest of creditors to retain the actual status of the business; that under proper management the business could be conducted at a good and satisfactory profit, and pay a greater portion of said defendant's creditors, if not all; that the management of the said business was in the hands of the defendant, who was unable to give it necessary care and attention; that for various causes the business had been losing money; that the debts of said defendant amounted to $250,000, Mexican currency; that the assets of the business were then more than enough to pay the indebtedness, but if said business were managed by the said defendant it will be dissipated and wasted, and therefore the plaintiff in that action prayed for the appointment of a receiver to take charge of the said business and conduct the same subject to the orders of the court. The said Fulgencio Tan Tonco, personally and by his attorney, appeared in court, on the said 18th day of December, 1902? and accepted service of the complaint in said cause, and thereafter and on the 19th day of December, 1902, Antonio Torres was appointed receiver of

the business, property, rights, and credits of said Tan Tonco; and thereafter, having given a sufficient bond and taken the prescribed oath, the said receiver took possession of all the property of said Tan Tonco, and under the direction of and pursuant to an order of said Byron S. Ambler, as judge of the Court of First Instance of Manila, undertook to care for, run, manage, and operate said business the same as theretofore run and operated by said defendant, and to employ such persons and make such payments and disbursements as needed. It was further ordered that the said defendant and other persons be restrained and enjoined from interfering with said property; and the said Tan Tonco was and still continued to be enjoined from taking possession of or in any way interfering with said property, and said J. McMicking, as such clerk, was and is restrained from issuing an execution upon the said judgment of Tan Tonco. As a general rule the appointment of a receiver is an equitable remedy, and before1 such remedy is resorted to, except in certain prescribed cases hereinafter mentioned, the legal remedy must be exhausted. Courts of equity do not encourage proceedings or actions which are not in conformity with the usual practice, which are unnecessary, and at the same time are calculated to swell costs and expenses. (Hart vs. Times, 3 Edwards, Chancery, 226; Congden vs. Lee, 3 Edwards, Chancery, 304.) In the Congden case the plaintiff sought equitable relief in an action for debt after an execution had been returned unsatisfied; but the plaintiff and the sheriff knew that the debtor had real estate which was subject to levy and sale. The court held that it was the duty of the plaintiff to exhaust his legal remedy by selling the real estate on the execution, and it not appearing that there would be a deficiency on the sale, the court had no jurisdiction *to appoint a receiver of the rents. It may be that very special circumstances may exist, in a given case, involving great danger of loss, such as may be caused by a debtor's nonresidence, which will justify the appointment of a receiver, but the case at bar is not one of that character; the claim of the plaintiff, Sergia Reyes, amounted to only $1.500, Mexican currency, whereas the property of Tan Tonco was valued at $200,000, Mexican currency, and it does not appear that there were any judgments against him having priority to that of said plaintiff, or that the plaintiff's judgment could not be collected in full. Under these conditions, the allegation in the complaint that the defendant, Tan Tonco, could not give his business "necessary rare and attention," that he was "losing money," and that if the business was to be continued under his management it would be "dissipated and wasted," might be cause for applying for an appointment of a committee, but it certainly is not good cause for turning over to a receiver $200,000.worth of property in an action to recover a debt of $1,500. What was undertaken, in this action, amounts practically to a bankruptcy proceedingthe placing by the court of the property of the defendant in the hands of a receiver for the purpose, after paying costs, fees, and expenses, of distributing that property among creditors. Bankruptcy proceedings, however, are forbidden until a law shall be enacted for these Islands. (Sec. 524 of the Code of Civil Procedure.) The learned counsel for the defendants in this mandamus proceeding claims that section 174 of this Code makes provision for the appointment of a receiver in this case. That section authorizes the appointment of a receiver (1) in certain corporation cases; (2) where the plaintiff has an interest in the property or fund which is the subject of the action, etc.; (3) in an action to foreclose a mortgage; (4) and, finally, whenever in other cases it shall appear to the court

that the appointment of a receiver is the most feasible means of preserving and administering the property which is the subject of the litigation during the pendency of the action. The subject of the action of the plaintiff Sergia Reyes was an indebtedness of $1,500 due to her by the defendant. and the legitimate object was the collection of that debt. Until after judgment and execution, which was not issued, the plaintiff could not have had any interest in any property or fund of the defendant; nor until after the return of the execution unsatisfied could she have had any interest in the preservation of the defendant's propertyproperty which was not the subject of the litigation. The plaintiff in this mandamus proceeding was not a party to the action of Reyes vs. Tan Tonco, and he is not, therefore, bound by the order appointing a receiver made therein. It is not necessary in this proceeding to determine the further effect of that order, or to decide what its effect may be on all those creditors who consented to the appointment of the receiver, who acquiesced in his control, management, and disposition of the defendant's property, or on other persons who dealt with him as such receiver. This court simply decides that the plaintiff, Eugenio Bonaplata, is entitled to have an execution issue on his said judgment. The motion for judgment on the pleadings is granted, and judgment for the plaintiff will be entered accordingly, with costs against the respondents. Arellano, C. J., Torres, Cooper, Willard, and Mapa, JJ., concur.

OSJurist.org

G.R. No. 1281, August 19, 1903

THE UNITED STATES, COMPLAINANT AND APPELLEE, VS. ISIDORO MADLANGBAYAN ET AL., DEFENDANTS AND APPELLANTS. D ECIS ION
WILLARD, J.: The complaint alleges that one Cusi was killed by the defendant Blas Panaligan, and that the other defendant, Isidoro Madlangbayan, ordered him to do so. The defendant Bias admitted the killing, but denied that it was done by order of his codefendant. He testified that at the time (August 5, 1900) he was an insurgent, and that he was ordered hy his captain, Juan Tosing, to seize Cusi as a spy and to kill him if he resisted. This captain was a witness at the trial, and testified that he gave such orders, and that on the following day the defendant Bias reported to him what he had done. Notwithstanding the criticism by the private prosecutors in their brief of the testimony of the defense, we think that the evidence is overwhelming that Bias was at the time in question a soldier in the company of Juan Tosing. The defendant Isidoro testified that he had nothing to do with the murder. The only evidence in the case which in any way indicates that the defendant Isidoro ordered the defendant Blas to commit the murder is the testimony of Benito Cusi, a cousin of the deceased, and also of the defendant Isidoro He says that the day after the event the two defendants were in his camp, and Isidoro told him that the Americans Avere pursuing him on account of personal resentment, and that he ordered Blas to kill Cusi. The testimony of Jacinto Dimaculangan proves nothing against the defendant Isidoro. That witness simply says that the defendant told him that the Americans considered him, Isidoro, morally responsible for the death of Ousi. This falls far short of a confession by the defendant that he Avas in fact so responsible. The testimony of Donato Aranas, that Blas told him that he had killed Cusi at the order of Isidoro, might be evidence against Bias, but it can not be evidence against Isidoro. After the evidence Avas in and written arguments had been presented by the fiscal, the private prosecutor, and the defendants, the court, on March 17, made an order that the parties might present more witnesses on the next day, and he especially called upon the Government to furnish proof as to the bad feeling existing between the deceased and Isidoro. Notwithstanding this order, and the fact that early in March subpoenas for witnesses were taken out, returnable on March 17, no other evidence was introduced, and the decision of the court was made on March 19. The evidence, in our judgment, requires the acquittal of the defendant Isidoro. We can not allow the testimony of Benito Cusi as to the alleged confession to outweigh the denial of both defendants, and the positive testimony of other witnesses, that the murder was committed by order of the defendant's superior officer. As to the defendant Bias, the judgment giving him the benefit of the amnesty of July 4, 1902, should be affirmed. The evidence that he killed the deceased by order of his captain, to our mind far outweighs the evidence as to the two alleged confessions, one made to Benito Cusi in his presence, and the other to the witness Donato Aranas.

The evidence shows that Cusi was killed because he was believed to be a spy of the Americans. This gives a political character to the offense, and, as the defendant acted under orders of his superior officer, he comes directly within that part' of the proclamation which pardons insurrectionists "for all offenses political in their character committed in the course of such insurrections pursuant to orders." (United States vs. Miguel Monton, 1 Off. Gaz., No. 2.) [1] Considerable evidence was introduced at the trial by the defense to show that Cusi was a spy. It was not necessary to prove that he was in fact such. It was sufficient to show that the defendant believed him to be so. There was a political motive for the crime if the defendant supposed that he was advancing the cause of the insurrection by committing it. That he was wrong in this belief is not important, if the belief was sincere. The court below in its decision held that both defendants were entitled to the benefits of the amnesty, but allowed an indemnity of 2,000 pesos against each of them for the benefit of the heirs of the deceased. The case having been dismissed, no judgment for indemnity was proper in this proceeding. But the dismissal Qf this criminal action did not extinguish the civil responsibility. (Compilacion de Disposiciones sobre el Enjuiciamiento Criminal en Filipinas, art. 248.) The idea that amnesty wipes out the crime can not be carried to the extent of saying, for the purpose of depriving a person of a legal civil right to which he was entitled, that the criminal act never existed. The judgment of the court below is reversed, and the defendant Isidoro Madlangbayan is acquitted, with costs de oficio. The defendant Bias Panaligan is declared to be entitled to the benefits of the amnesty of July 4, 1902, and upon filing in this court the oath required thereby, an order will be entered dismissing the case, with costs de oficio. The dismissal of the case will be.without prejudice to the right of the widow and heirs of the deceased to enforce the civil responsibility of Blas Panaligan. Arellano, C J., Torres, Cooper, Mapa, and McDonough, JJ., concur.

[1] 1 Phil. Rep., 363.

OSJurist.org

G.R. No. 1282, September 10, 1903

THE UNITED STATES, COMPLAINANT AND APPELLEE, VS. SIMEON FIGUERAS ET AL., DEFENDANTS AND APPELLANTS. D ECIS ION
MAPA, J.: The judgment of the Court of First Instance from which the defendants appealed finds them guilty of the crime of conspiracy under section 4 of Act No. 292, and imposes upon them the penalty of two years' imprisonment and a fine of $2,000, and four years' imprisonment and a fine of $5,000, respectively. The merits of the case did not justify this conviction; therefore the judgment must be reversed. Of the three witnesses presented on behalf of the prosecution, namely, Paulino Legaspi, Laureano Martinez, and Petronilo Portugal, we must disregard the testimony of the latter, as it proves absolutely nothing against the defendants. He testifies that he was invited by Paulino Legaspi to rebel against the Government, and that he was given to understand by Legaspi that there were many persons who intended to conspire, but the witness did not know whether the accused were implicated in this conspiracy. Paulino Legaspi testifies that various persons, some forty more or less in number, were conspiring to overthrow the constituted Government, and states that he knows that the defendants were engaged in this conspiracy because he heard them say so in their conversations. Called upon to repeat the words which he heard them say, he stated the following: "What a life this is, so full of misery, constantly increasing. When will our wretchedness end? When will the authorities remedy it? What shall we do?" He does not state that he heard anything beyond this, and it appears that he relies solely upon these words, used by the defendants, as a basis for his assertion that they were conspiring. This, being so, his assertion appears clearly to be the result of an arbitrary and gratuitous conclusion, because, although these words reveal discontent on account of the evils, real or fictitious, to which they refer, they are not alone sufficient to prove the existence of a conspiracy to rebel, much less with the aid of force, against the constituted Government. The reason which the witness gives us for his belief is not, therefore, convincing, and consequently we consider that his evidence must be rejected as to this part of his testimony. As to other matters this witness testifies solely from hearsay. "They say" (these are his own words) "that these" (the accused) "are the principal conspirators." "According to my information," he adds further on, "this agreement has existed" (referring to the agreement to rebel against the Government, which in the opinion of the witness constitutes the conspiracy), "not only between these Uyo but also between them and others." Again, when answering a question put to him in general terms, as to whether his testimony was the result of his own knowledge, he stated that he knew these things only by hearsay and that he was unable to state from whom he received his information. Other than the testimony referred to, this witness testifies to no concrete fact relative to the conspiracy herein prosecuted, and does not even know if the accused have formed any determination evidencing their intention to conspire, nor does he know if they have collected contributions or attempted to obtain possession of arms for the purposes of the conspiracy.

The testimony of Laureano Martinez would doubtless be more important than that of the preceding witnesses were it not highly improbable from several points of view. In the first place, it is improbable that the defendants should select the house of this witness, Martinez, for the purpose of meeting together to conspire, to read and comment upon correspondence relating to the conspiracy, and to consider the matter of contributions and arms collected for the purposes thereof, as this Avitness testifies, doing all this in his presence, without the slightest caution or care, when it appears from the testimony of the witness himself that not only was he not a party to the conspiracy but that he had not even been requested to join it. From this it follows necessarily that the conspirators could not know whether they could count upon his consent and adhesion or not, and it is incredible that the defendants should discuss so grave and delicate a matter with such an absolute disregard of the most rudimentary precautionsprecautions which the most ordinary prudence would counsel in such casesas would appear to be the case from the testimony of the witness Martinez. This would be equivalent to supposing that the defendants and their companions were entirely devoid of the instinct of self-preservation. In ,the second place, and from another point of view, it is also improbable that Martinez, who had no interest in the conspiracy, he being, according to his own testimony, an entire outsider, would have permitted such criminal meetings to be held in his house, thus exposing himself to disagreeable consequences. The letter which this witness states he abstracted from the pocket of the defendant Bermudes, and which has been attached to the record as evidence for the prosecution, might perhaps have some value as evidence if it were shown: (1) That the words and phrases used in the letter have a conventional meaning; and if so, then the ordinary meaning of the words and phrases employed; (2) the authenticity of this letter. Nothing in this connection has been proven, nor was any attempt made to introduce such evidence at the trial, and in the absence of such important data the value of this letter as evidence must depend exclusively upon the testimony of Laureano Martinez, whose credibility, as we have already stated, appears exceedingly doubtful. The terms of the letter itself are such that, given their natural and ordinary meaning, they do not even remotely show the existence of any conspiracy. Furthermore, it is at least strange that Martinez, although he succeeded in getting possession of the letter on the night of Monday,, March 9, did not deliver it to the governor of the province until the night of Wednesday, the 11th, if, as he testifies, his sole purpose in stealing it was to discover and denounce the conspiracy. There is nothing in the case, supposing that such was his purpose, to satisfactorily explain such a delay, and it is even more strange that it should not have occurred to the witness to rend the letter. He had it in his possession for a considerable length of time, and it would have been natural for him to he interested in reading it, either for the purpose of assuring himself that it was the same letter he proposed to purloin and not some other, or else for the purpose of determining, by acquainting himself with its contents, of which he had no knowledge, whether or not it was sufficient to support the very grave charge which he proposed to lodge with the Government authorities of the province. Above all, the fact that the other witness for the prosecution, Paulino Legaspi, Avho, according to the testimony of Martinez, is the one who delivered this letter to the defendant Bermudes, not only fails to say a single word about it but testifies in such a way that it may reasonably be inferred from his testimony as a Avhole that he was wholly ignorant of the existence of the letter, his statements thus being an implicit denial of the assertions of Martinez in tliis regard. The representative of the Government in this instance attempts to explain what he terms the vacillation of the witnesses for the prosecution by the fear which, in his opinion, they naturally

would have of incriminating themselves or of being held to some responsibility. This argument rests upon the assumption that these witnesses have had direct relations with the defendants with respect to the facts concerning which they testified, and that it may even be inferred that they were involved in the conspiracy. We can not admit this assumption, particularly in view of the fact that the witnesses themselves declare that they had not even been spoken to about taking part in the conspiracy. Apart from this, no matter how much stress may be laid upon the fear to which the Solicitor-General refers, we can not see how the words of the witnesses can be interpreted to mean something entirely opposed to their natural and proper meaning. The law does not require a witness to incriminate himself, but it does impose upon him the obligation of being truthful in his testimony. Upon no other assumption than that of the witness's veracity can his testimony be considered at all. The prosecution has endeavored to prove that on the night preceding the day on which the information in this case was filed the witness Martinez was pursued by the defendants, accompanied by some other persons, in order that they might revenge themselves upon him for having denounced them to the governor of the province. The merits of the case do not appear to us to conclusively establish this fact; but even if it were true, it would not necessarily establish the guilt of the defendants. They might feel resentment and a desire for revenge1; against the informer, even though they were completely innocent of the offense charged; it may even be said that the more false and defamatory the charge laid against them, the more natural and the more profound would be their resentment. In view of the insufficiency of the evidence for the prosecution it is unnecessary to consider the weight to be attributed to the testimony of the witnesses for the defense, which, however, tends to demonstrate the innocence of the defendants. Their guilt not having been established by the evidence, they are entitled to an acquittal. We therefore reverse the judgment appealed and acquit the defendants, with the costs of both instances de oficio. Arellano, C. J., Torres, Cooper, Willard, and McDonough, JJ., concur.

OSJurist.org

G.R. No. 1285, August 31, 1903

THE UNITED STATES, COMPLAINANT AND APPELLEE, VS. PEDRO LARION, DEFENDANT AND APPELLANT. D ECIS ION
TORRES, J.: On the 23d of January, 1903, the provincial fiscal filed an information charging Pedro Larion and Lopez Tabuac with the crime of murder, alleging that on the 8th day of August, 1902, the accused and other persons, over thirty in number, armed with deadly weapons, entered the barrio of Manunca, in the town of Santa Rita, and with criminal intent, alevosia, and premeditation, willfully killed Santiago Angel, Rafael Espino, Bautista Cajida, Maria Somallo, Eugenio Luna, Lucia Luna, and Leines Ubis. Abdon Luna testified under oath that, on the morning of the said 8th day of August, upon discovering that there were some malefactors in the fields near the barrio, he sent word by Rufino Lacambra to the municipal president of the town of Santa Rita; that shortly after, at about 8 o'clock in the morning, these malefactors, known as pulajanes , entered the barrio of Manunca, in which the witness lived, led by Augusto Ygvia and Antonio Caling; that there were over thirty armed men in the party, and. that Pedro Larion was one of them; that upon their entry a number of the inhabitants of the barrio fled from the invaders, as did the witness, his wife Maria Somallo, and his children Eugenio Luna, 16 years of age, Lucia Luna, 8 years of age, and another child of his 4 years of age, who, together with Rufino Lacambra, got into a boat loaded with hemp which belonged to the latter, the boat in question being at anchor in the river some 10 brazas from the witness's house; that their intention was to escape from the pulajanes , but that they had no time to do so because four of them, Pedro Larion, Augusto Ygvia, and two others unknown, attacked the boat on which they had taken refuge; that Larion stabbed the witness's wife in the back with a lance while she was sitting on one of the outriggers of the boat, while Ygvia wounded her in the breast with a bolo; that in consequence of these wounds Maria Somallo fell dead into the water; that the witness was informed that her body was subsequently found, but that he did not see it himself; that at the same time the two unknown men attacked and killed with lances and daggers the witness's children Eugenio and Lucia, and then attacked the witness, who defended himself with an oar, but was obliged to jump into the water in order to avoid the aggression, as Rufino Lacambra had already done, and swimming ashore, succeeded in escaping from his aggressors; that while the attack on the boat was in progress, the other malefactors robbed several houses in the barrio and killed Santiago Angel, Leines Ubis, Rafael Espino, and Bautista Cajida, and that in the fire which consumed almost all the houses in the barrio the body of Leines was completely and that of Rafael Espino partially consumed; that while going toward the town of Santa Rita, after he got out of the water, the witness met several Americans, accompanied by some police, who were going to the barrio of Manunca, and that he joined this party; that before his arrival at the barrio the band of thieves had decamped, as some seven hours had elapsed. The witness stated that the assault on the boat, and the attack made upon himself and his companions by the malefactors, was almost instantaneous, the whole occurrence not consuming more than two minutes. Upon his return, accompanied by the police, a woman called Benita delivered to him his little boy of 4 years, who Avas found unharmed in the boat.

The statements made by Abdon Luna are corroborated by the testimony of five witnesses, inhabitants of the place, who saw the attack made by the malefactors, whom they called " pulajanes ." Although it is true that Perfecto Rebutazo, one of these witnesses, did not see the attack upon Abdon Luna and his family, because he fled when the attack was first commenced and hid away in the swamp, it is also true that upon his return he saw the four bodies of Santiago Angel, Rafael Espino, Bautista Cajida, and Leines Ubis, as well as what was left of the burned houses. When he went to the town of Santa Rita some days after he also saw in the town square the bodies of Maria Somallo and her daughter Lucia. However, Doroteo Lacambra, Saturnina Oagabcab, Alejo Amante, and Saturnino Cajida corroborated the testimony of Abdon Luna, saying that they saw Augusto Ygvia, Pedro Larion, and two others attack Maria Somallo, her children, and her husband, Abdon Luna, while they were on board a boat which was anchored in the river of the barrio of Manunca, near Abdon's house. Lacambra, Cagabcab, and Amante saw Larion stab thev woman Somallo in the back with a lance while she was sitting on the edge near the prow of the vessel, and saw Ygvia stab her in the breast with a bolo. All the witnesses testify that the malefactors who invaded the barrio committed robberies in several of the houses and killed a number of the inhabitants; that they were armed with lances and bolos, and that they were more than thirty in number. Lacambra testified that they were led by Augusto Ygvia and Antonio Oaling, and that these men knew Pedro Larion. The witness Cajida stated further that, when he saw some of the malefactors kill Leines Ubis in front of Abdon Luna's house, he commenced to run toward the town. Doroteo Lacambra stated further that he was captured by the malefactors, and that Ygvia made him pay 22 pesos as a condition to setting him at liberty; and further stated that he saw one of Abdon's children thrown out of the boat into the river, this being the same child subsequently recovered by the woman Benita. The facts related constitute seven crimes of murder, committed by a band of armed malefactors, who also committed robberies in some of the houses of the barrio of Manunca and then set lire to them, almost the whole of the town being destroyed. The crime is murder because Maria Somallo and her two children were killed by means constituting alevosia, the mother having been wounded in the back Avith a lance and at the same time stabbed in the breast with a bolo, the attack with the lance being made in such a manner as to directly and specially insure the commission of the crime, without any personal risk to the aggressors which might result from an attempt at self-defense on behalf of his victim, who at that same moment was attacked by another man with a bolo. With respect to her two minor children Eugenio and Lucia, they being terrorized by the spectacle which they had witnessed, and being incapable of defending themselves owing to their tender years, it is unquestionable that their well-armed aggressors acted without danger to themselves, and when attacking these children ran no risk whatever of personal danger from their unarmed and defenseless victims. Although the record does not contain evidence showing the details of the killing of the other four men, Santiago Angel, Kafael Espino, Bautista Oajida, and Leines Ubis, whose bodies were found in the barrio after the malefactors left, still there is no difficulty in classifying these crimes as murder, by reason of the circumstance of premeditation, which, at all events, occurred in their perpetration. It is unquestionable that the invasion of the barrio of Manunca by fire and sword, effected by more than thirty armed malefactors, required a previous meeting and agreement on their part. They must have made preparations and adopted a preconcerted plan concerning the manner and details of the commission of these crimes against life and property, which were subsequently carried out. Furthermore, that there was such agreement and preparation is shown by the fact that they gathered together in the fields on the outskirts of the barrio before making the attack, and that Abdon Luna, upon discovering their presence,

reported the facts to the municipal president of Santa Rita. It is to be observed that the malefactors, who are known as pulajanes in the Island of Samar, upon entering the barrio did not commence by plundering or burning, but sought out and killed certain inhabitants of the barrio, especially the Luna family and such persons as happened to be in Luna's house, and this notwithstanding the fact that there was no opposition or resistance on the part of the inhabitants in general, nor upon the part of the deceased, which circumstance indicates beyond a doubt that these malefactors acted with premeditation in the cold-blooded perpetration of these shocking crimes. The two accused, Pedro Larion and Lopez Tabuac, pleaded not guilty. The latter was discharged in the course of the trial, on motion of the prosecuting attorney. Notwithstanding the exculpative allegations of Larion, against whom alone the case was continued, and his attempt to prove an alibi, the fact is that the record contains sufficient evidence to fully convince the mind of the guilt of Larion as the author, by direct participation, of the murder of Maria Somallo, as well as of the murder of Leines Ubis. The testimony of the witnesses Clemente Tabuac, Lopez Tabuac, Telesforo Raj in, and Concepcion Bajin, who supported the alibi, does not overcome the probative force of the testimony of the witnesses for the prosecution, who were eyewitnesses to the occurrence. Therefore we may reject this defense of alibi on the ground of the untruthfulness of the witnesses or the improbability of their statements (it appears that several of these witnesses conversed with the accused before the trial) or in consideration of the fact that the witnesses are all relatives of Larion. The accused is the husband of the witness Concepcion, and the witness Telesforo is his brother-in-law. Furthermore, another witness, Tolentino Vinas, absolutely denies that Pedro Larion was stopping at his house in the barrio of Agsam, or that the witness ever took Larion in his banca from Agsam to the village of San Antonio in the month of August, 1902. Therefore, the alibi of the accused having been destroyed, we must believe the charge of the prosecution that he is guilty of the murder of Maria Somallo, and that the judgment appealed is fully supported by the evidence. In connection with the commission of this crime, we must consider the concurrence of the aggravating circumstances Nos. 7 and 35 of article 10 of the Penal Code, the crime having been committed en cuadrilla and with deliberate premeditation, there being no mitigating circumstances. We find that there was premeditation with respect to the murder of the woman Somallo as a generic aggravating circumstance. Its existence in the perpetration of the crime was demonstrated above as a qualifying circumstance of the other four murders. It is unnecessary to repeat the reasons there given, although it may be added that there is still further evidence of premeditation to be found in the fact that Pedro Larion, accompanied by Augusto Ygvia, Antonio Caling, and another person unknown, upon entering the barrio went direct with these men in search of the family of Abdon Luna, and was the first one to attack the latter's wife by stabbing her in the back, Ygvia aiding him in the attack, while Oaling and the other man killed Abdon's two children and then attacked him. This act is explained by the resentment felt by Larion against Luna, because the latter had refused to allow the accused to violate some order concerning the quarantine. These horrible crimes of murder, robbery, and arson, committed in the barrio in question, were effected by a band of over thirty armed men, whose very presence terrorized the inhabitants and prevented or made impossible all resistance or attempt at defense. Therefore, in addition to the circumstance of premeditation, we may very properly take into consideration the existence of a cuadrilla. The circumstance of abuse by superior force is included in the circumstance of alevosia as to tiie death of Maria Somallo. We

do not consider it proper to apply article 11 of the Code in mitigation, nor No. 14 of article 10, inasmuch as the criminal acts were committed by a large band of armed malefactors, and as to such crimes these circumstances do not apply. Even supposing that the testimony of Abdon Luna, the principal witness for the prosecution, Avho lost his wife and two children in the course of a few minutes and himself barely escaped being murdered, were not acceptable, nevertheless, from the statements made by him, which in our judgment should be considered as satisfactory, in view of the state of mind in which he must have been when he testified, a few days after the occurrence, before the justice of the peace in that town, and while he was still under the impression of the bloody spectacle which had been enacted before him, in which the victims were members of his own familyit is not strange that he should have remembered the name of Pedro Larion in mentioning the aggressors. But even excluding the testimony of Abdon Luna, the record still contains more than sufficient evidence to unquestionably show the guilt of Larion as one of the principals in the crime of murder prosecuted, the penalty for which must be imposed in the maximum degree, by reason of the concurrence of two aggravating circumstances without any mitigating circumstance. For the reasons stated, therefore, we are of the opinion that the judgment below, by which Pedro Larion was condemned to death, should be affirmed. The judgment will be executed in the manner prescribed by articles 101 and 102 of the Penal Code; the defendant being also condemned to pay the sum of 1,000 Insular pesos to the widower and heirs of the deceased Maria Somallo, and to the payment of the costs of both instances. So ordered. Arellano, C. J., Cooper, Willard, Mapa, and McDonough, JJ., concur.

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G.R. No. 1288, September 17, 1903

THE UNITED STATES, COMPLAINANT AND APPELLEE, VS. LEON LIZARDO, DEFENDANT AND APPELLANT. D ECIS ION
ARELLANO, C.J.: The Court of First Instance of Abra convicted Leon Lizardo, municipal treasurer of the town of San Jose, upon the charge of malversation of public funds, and condemned him to six months of arresto mayor and the payment of costs. The article of the Penal Code applied is not cited, but from the nature of the penalty imposed it can be no other than article 390, paragraph 1. The Solicitor-General, considering that the evidence does not show that the malversation of the funds in question has caused any damage or prejudice to the public service, asks that the judgment be reversed and that the appellant, Leon Lizardo, be condemned to two years of suspension from office and the payment of a fine of 10 per cent of the funds misapplied, with the accessories and the costs of this instance. Doubtless the article which the Solicitor- General has in mind is No. 392, paragraph 3that is to say, he considers that the crime herein prosecuted is one merely consisting of the temporary diversion and not the unqualified embezzlement of public funds. But in order that the crime be regarded as a mere temporary diversion, it is absolutely necessary that the funds should be restored, otherwise the money misapplied must be regarded as having been embezzled, and the crime then falls within the provisions of article 390. If the money has been returned, on the other hand, then the crime can only be regarded as a temporary misuse of public funds, but not as an embezzlement of the money. It is only when the money has been restored that it becomes necessary to determine whether, up to the time of the restoration, any damage or detriment. was or was not caused the public service by the application of the public funds to improper uses, as a preliminary to determining under which paragraph of article 392 the case falls. The proper article to be applied, therefore, is No. 390, but as the principal penalty prescribed by paragraph 1 of the article is arresto mayor in its maximum grade to presidio correccional in its minimum grade, together with special temporary disqualification in its maximum grade, to perpetual absolute disqualification as an accessory penalty established by the second paragraph of the same article, it follows that the decision of the court below is incorrect with respect to the application of the penalty, as in this case, there being no aggravating or mitigating circumstances to consider, the penalty should be imposed in its medium grade. For these reasons we condemn the defendant, Leon Lizardo, to one year and one day of presidio correccional , and furthermore to eleven years and one day of special temporary disqualification, and to the payment of the costs of both instances, thus affirming the decision appealed. Torres, Cooper, Mapa, and McDonough, JJ., concur.

OSJurist.org

G.R. No. 1292, May 05, 1903

MARCELINO DE LA CRUZ, PETITIONER AND APPELLEE, VS. GEO. N. WOLFE, WARDEN OF BILIBID PRISON, RESPONDENT AND APPELLANT. D ECIS ION
MCDONOUGH, J.: The petitioner, Marcelino de la Cruz, alleges that he is deprived of his liberty and illegally detained in Bilibid Prison. It appears from the petition in this proceeding, the return of the.warden of the prison, the undisputed statement of facts at the hearing, and the records of this court, that on or about February 14, 1900, a band of ladrones landed on the north beach of San Roque, Province of Cavite, and were joined by one other at that place, and that the petitioner, Marcelino de la Cruz, was one of the party. They proceeded with force and arms to rob the houses of several persons, and while engaged in the commission of these crimes four boys, the oldest 16 years, who were returning from fishing, passed the gang, and, recognizing one of them, one of the boys asked what they were doing. The answer was a blow which felled the boy to the ground almost senseless. Subsequently, seeing that they were recognized the ladrones caught three of the boys and bound their arms; they also seized and bound one Pedro Valerio, and then marched their four prisoners to the beach, and, placing them in a banca, all embarked save two of the ladrones, one of whom was the petitioner, Marcelino de la Cruz (also called Maximo de la Cruz), and the banca was pulled out into the bay. When at a point seemingly half way between Manila and Cavite, the ladrones threw their prisoners overboard and the three boys were drowned, Pedro Valerio saving himself by swimming, having succeeded in working his arms out of the rattan that bound them. On the 27th of February, the commanding officer of the district reported that he had arrested Maximo de la Cruz (the petitioner herein), one of the supposed authors of the crime, whereupon it was ordered by the adjutant-general of the department of the Pacific and Eighth Army Corps that the matter be referred to the Court of First Instance of Cavite, with delivery of the prisoner, in order that he might be criminally prosecuted, the military authorities in the meantime to guard the prisoner. The Court of First Instance of Cavite took cognizance of the case March 13,1900, and on the 16th of March, after declaring the accused, in conformity with the old procedure, charged with the crime of robbery and triple murder, ordered, on the same date, that he he remanded and notified of the charges against him. The cause being continued, on the 18th of May, 1900, judgment was rendered adjudging the accused, Marcelino de la Cruz, guilty of gang robbery and triple murder, and he was sentenced to imprisonment for life, and notified of such sentence on June 2, 1900. As there was no suitable and safe place of imprisonment in Cavite, authority was given by Major-General Bates, commander of the department, to send the prisoner to Bilibid Prison for the imprisonment for which he was sentenced by the court, and the prisoner, Marcelino de la Cruz, was confined in said prison July 24, 1900, pursuant to said judgment of conviction and said order, and has ever since remained in said prison. The case was taken to the Supreme Court en consulta , and on the hearing the fiscal asked that the sentence of the court below be declared void for reason of the insufficiency of proof, and

requested that the case be sent back to the Court of First Instance. The criminal department of the Supreme Court, on the 27th of June, 1900, entered a decree declaring the sentence of the lower court of no effect and directing that a certified copy of the order, together with the opinion of the ministerio fiscal, be returned to the lower court in order that the judge should comply with the views of the fiscal, and proceed in conformity, as much as possible, with the new law of procedure, section 110,, General Orders, No.'58. In compliance with the directions of the Supreme Court, the case was again taken up by the lower court, and two complaints were made against the prisoner, one for the crime of robbery and the other for the crime of triple murder, in accordance with the requirements of section 110, General Orders, No. 58, but without the accused being informed of said complaints. In March, 1901, the Court of First Instance of Cavite decided that it had no jurisdiction to hear and determine the charges made in the said complaints, holding that they came within the jurisdiction of the military authorities, and ordered that the entire proceedings be sent to the commanding general of the district, after previously notifying the secretary of the criminal department of the Supreme Court of such action. The commander of the Department of Luzon having received the complaints, etc., forwarded the same to the secretary to the military governor of the Islands, in order that he should give his opinion as to the most expeditious manner of proceeding therein. The secretary in turn, by indorsement of May 8, 1901, forwarded the causes to the President of the Supreme Court for such action as should be deemed best, calling his attention to the fact that although there was no doubt of the incompetency of the Court of First Instance in the charges of robbery, with respect to the charge of murder pending against the prisoner, it should be prosecuted in said court as there was no law prohibiting it from exercising jurisdiction in such a case. The original papers are in the records of the Supreme Court, but doubtless due to the reorganization of the court, no action was taken on the question submitted by the secretary to the military governor, and the petitioner remains in Bilibid Prison, freed from the judgment of imprisonment for life, but still under the two charges of robbery and murder, and is properly held in custody to answer to said charges, the prosecution or disposal of which should be made without further delay. In view of these facts the judgment of the lower court should be reversed and the petitioner, Marcelino de la Cruz, remanded to the custody of the Warden of Bilibid. Judgment will be entered accordingly. Torres, Cooper, Willard, Mapa, and Ladd, JJ., concur, Arellano, C. J., did not sit in this case.

OSJurist.org

G.R. No. 1294, October 31, 1903

THE PHILIPPINE SUGAR ESTATES DEVELOPMENT COMPANY, LIMITED, PLAINTIFF AND APPELLANT, VS. VICTORIANO DEL ROSARIO, DEFENDANT AND APPELLEE. D ECIS ION
WILLARD, J.: This is an action to recover 555 pesos as rent for the years 1897, 1898, 1899, 1900, and 1901 of certain fields devoted to the cultivation of rice, and certain village lots, all within the hacienda of Santa Cruz de Malabon. The answer was a general denial. The following is the judgment in the case: "In this action the plaintiff company seeks to recover from the defendant rent for the use of certain lands situated in the Province of Cavite. The prayer of the complaint is based on the allegation that the property in question is occupied by virtue of a contract of lease, entered into between the defendant and the Dominican corporation, the former owner of the property. "The rent claimed is for three different periods: (1) For the period during which the Dominican corporation was the owner of the land; (2) for the period during which the estate belonged to Mr. Richard H. Andrews; and (3) for the period during which the title to the property was held by the plaintiff company. "The evidence taken at the trial does not prove the existence of an express contract of lease between the defendant and the Dominican corporation. "Granting that the plaintiff company is the owner of the property in question, and that it was cultivated by the defendant during the period alleged in the complaint, as it has not been proved what the profits of the land should have been during the period referred to, no money judgment can be rendered against the defendant. In the absence of an express contract such proof is essential, in view of the fact that during the period in question the Province of Cavite was devastated by the ravages of war. "The action against the defendant, Victoriano del Rosario, is therefore dismissed, with the costs to the plaintiff company." The plaintiff at the trial below introduced a large amount of testimony to show that there had existed a written contract of lease signed by the defendant, and that the book in which it was contained was destroyed during the insurrection. This evidence has all been embodied in the bill of exceptions and is before us in the printed record. There was no motion for a new trial and the only exception taken was to the judgment In the condition in which this case is found, it is impossible for us, in view of the provisions of section 497 of the Code of Civil Procedure, to pass upon any questions of fact decided by the trial court. We can not, for example, retry the question of fact as to whether or not the evidence showed a written contract between the plaintiff's grantor and the defendant. The lower court decided that there was no such contract, and that finding is conclusive on the appellant

so far as this appeal is concerned. The only question open is whether the findings of fact in the decision support the judgment for the defendant. This doctrine had been repeatedly announced by this court before the bill of exceptions in this case was prepared. We will accept, for the purposes of this appeal, the view of the appellant that the judgment must be considered as finding as a fact that the plaintiff was the owner of the lands and that the defendant had cultivated them during the time mentioned in the complaint. Even upon this basis the judgment was correct. It is stated therein that it was not proved at the trial what the lands ought to have produced during the time in question. This finding stands upon the same basis as the finding in regard to the written contract. There having been no motion for a new trial, we can not examine the evidence to see if the judge should have found from it what the value of the use of the lands was, or if he should have taken as a basis, as claimed by the appellant, the amount received by the owner in the years prior to 1897. An examination of the evidence for that purpose is not open to us. The only question presented for decision is this: Where the defendant has been in the possession of and cultivating the lands of the plaintiff for four years and there is no express contract which fixes the rent to be paid, and where there is no evidence of the existence of any implied contract which determines the rent, and where there is no evidence as to what the value of the use of the land was during this period and no evidence as to what it produced, can judgment be rendered against the defendant for any sum whatever? We agree with the court below that this question must be answered in the negative. It was the duty of the plaintiff to prove either an express or implied contract which fixed the rent, or what the value of the use of the lands was, or what they in fact produced. He did no one of these things. On the findings of the court below a judgment for any particular sum would have been unwarranted, for that court could not know from these findings whether the plaintiff should have 100 pesos, 1,000 pesos, or any other definite sum. The appellant criticises the statement of the court to the effect that Cavite was devastated by war during this period. We agree with the appellee that no significance is to.be attached to this statement. The decision is complete without it. The judgment for the defendant rests upon the two propositions: (1) That no express contract had been proved, and (2) that the value of the use of the land had not been proved. The statement in regard to the war was rather a reason given why, in this case, the rule that such proof was necessary was particularly applicable. The judgment is affirmed with the costs of this instance against the appellant. Judgment will be entered accordingly twenty days after the filing of this decision, and the cause will be returned to the court below for the execution thereof. Arellano, C. J., Torres, Cooper, and McDonough, JJ., concur. Mapa and Johnson, JJ., did not sit in this case.

OSJurist.org

G.R. No. 1299, November 10, 1903

VICENTE PEREZ, PLAINTIFF AND APPELLEE, VS. EUGENIO POMAR, AGENT OF THE COMPANIA GENERAL DE TABACOS, DEFENDANT AND APPELLANT. D ECIS ION
TORRES, J.: In a decision dated February 9, 1903, the judge of the Sixth Judicial District, deciding a case brought by the plaintiff against the defendant for the recovery of wages due and unpaid, gave judgment against the latter for the sum of $600 and the costs of suit, less the sum of $50, Mexican. On August 27,11)02, Don Vicente Perez filed in the Court of First Instance of Laguna a complaint, which was amended on the 17th of January of this year, asking that the court determine the amount due the plaintiff, at the customary rate of compensation for interpreting in these Islands, for services rendered the Tabacalera Company, and that, in view of the circumstances of the case, judgment be rendered in his favor for such sum. The complaint also asked that the defendant be condemned to the payment of damages in the sum of $3,200, gold, together with the costs of suit. In this complaint it was alleged that Don Eugenio Pomar, as general agent of the Compana General de Tabacos in the said province1, verbally requested the plaintiff on the 8th of December, 1901, to act as interpreter between himself and the military authorities; that after the date mentioned the plaintiff continued to render such services up to and including Hay 31, 1002; that he had accompanied the defendant, Pomar, during that time at conferences between the latter and the colonel commanding the local garrison, and with various officers and doctors residing in the capital, and at conferences with Captain Lemen in the town of Pilar, and with the. major in command at the town of Pagsanjan,. concerning the shipment of goods from Manila, and with respect to goods shipped from the towns of Santa Cruz, Pilar, and Pagsanjan to this city; that the plaintiff during this period of time was at the disposal of the defendant, Pomar, and held himself in readiness to render services whenever required; that on this account his private business, and especially a soap factory established in the capital, was entirely abandoned; that to the end that such services might be punctually rendered, the agent, Pomar, assured him that the Tabacalera Company ahvays generously repaid services rendered it, and that he therefore did not trouble himself about his inability to devote the necessary amount of time to his business, the defendant going so far as to make him flattering promises of employment with the company, which he did not accept; that these statements were made in the absence of witnesses and that therefore his only proof as to the same was Mr. Pomar's word as a gentleman; that the employees of the company did not understand English, and by reason of the plaintiff's mediation between the agent and the military authorities large profits were obtained, as would appear from the account and letterpress books of the agency corresponding to those dates. In the amended complaint it was added that the defendant, on behalf of the company, offered to remunerate the plaintiff for the services rendered in the most advantageous manner in which such services are compensated, in view of the circumstances under which they were requested; and that the plaintiff, by rendering the company such services, was obliged to abandon his own business, the manufacture of soap, and thereby suffered damages in the sum of $3,200, United States currency.

The defendant, on the 25th of September, 1902, filed an answer asking for the dismissal of the complaint, with costs to the plaintiff. In his answer the defendant denied the allegation in the first paragraph of the complaint, stating that it was wholly untrue that the company, and the1 defendant as its agent, had solicited the services of thv, plaintiff as interpreter before the military authorities for the period stated, or for any other period, or that the plaintiff had accompanied Pomar at the conferences mentioned, concerning shipments from Manila and exports from some of the towns of the province to this capital. He stated that he; especially denied paragraph 2 of the complaint, as it was absolutely untrue that the plaintiff had been at the disposal of the defendant for the purpose of rendering such services; that he therefore had not been obliged to abandon his occupation or his soap factory, and that the statement that an offer of employment with the company had been made to him was false. The defendant also denied that through the mediation of the plaintiff the company and himself had obtained large profits. The statements in paragraphs 6, 7, 8, and 9 of the complaint were also denied. The defendant stated that, on account of the friendly relations which sprang up between the plaintiff and himself, the former borrowed from him from time to time money amounting to $175 for the purposes of his business, and that he had also delivered to the plaintiff 36 arrobas of oil worth $106, and three packages of resin for use in coloring his soap; that the plaintiff accompanied the defendant to Pagsanjan, Pilar, and other towns when the latter made business trips to them for the purpose of extending his business and mercantile relations therein; that on these excursions, as well as on private and official visits which he had to make, the plaintiff occasionally accompanied him through motives of friendship, and especially because of the free transportation given him, and not on behalf of the company of which he was never interpreter and for which he rendered no services ; that the plaintiff in these conferences acted as interpreter of his own free will, without being requested to do so by the defendant and without any offer of payment or compensation; that therefore there existed no legal relation whatever between the company and the plaintiff, and that the defendant, when accepting the spontaneous, voluntary, and officious services of the plaintiff, did so in his private capacity and not as agent of the company, and that it was for this reason that he refused to enter into negotiations with the plaintiff, he being in no way indebted to the latter. The defendant concluded by saying that he answered in his individual capacity. A complaint having been filed against the Compania General de Tabacos and Don Eugenio Pomar, its agent in the Province of Laguna, the latter, having been duly summoned, replied to the complaint, which was subsequently amended, and stated that he made such reply in his individual capacity and not as agent of the company, with which the plaintiff had had no legal relations. The suit was instituted between the plaintiff and Pomar, who, as such, accepted the issue and entered into the controversy without objection, opposed the claim of the plaintiff, and concluded by asking that the complaint be dismissed, with the costs to the plaintiff. Under these circumstances and construing the statutes liberally, we think it proper to decide the case pending between both parties in accord- ance with law and the strict principles of justice. From the oral testimony introduced at the trial, it appears that the plaintiff, Perez, did on various occasions render Don Eugenio Pomar services as interpreter of English; and that he obtained passes and accompanied the defendant upon his journeys to some of the towns in the Province of Laguna. It does not appear from the evidence, however, that the plaintiff was constantly at the disposal of the defendant during the period of six months, or that he rendered services as such interpreter continuously and daily during that period of time. It does not appear that any written contract was entered into between the parties for the

employment of the plaintiff as interpreter, or that any other innominate contract was entered into; but whether the plaintiff's services were solicited or whether they were offered to the defendant for his assistance, inasmuch as these services were accepted and made use of by the latter, we must consider that there was a tacit and mutual consent as to the rendition of the services. Tin's gives rise to the obligation upon the person benefited by the services to make compensation therefor, since the bilateral obligation to render service as interpreter, on the one hand, and on the other to pay for the services rendered, is thereby incurred. (Arts. 1088, 1089, and 1262 of the Civil Code). The supreme court of Spain in its decision of February 12, 1889, holds, among other things, "that not only is there an express and tacit consent which produces real contracts but there is also a presumptive consent which is the basis of quasi contracts, this giving rise to the multiple juridical relations which result in obligations for the delivery of a thing or the rendition of a service." Notwithstanding the denial of the defendant, it is unquestionable that it Avas with his consent that the plaintiff rendered him services as interpreter, thus aiding him at a time when, owing to the existence of an insurrection in the province1, the most disturbed conditions prevailed. It follows, hence, that there was consent on the part of both in the rendition of such services as interpreter. Such service1 not being contrary to law or to good custom, it was a perfectly licit object of contract, and such a contract must necessarily have existed between the parties, as alleged by the plaintiff. (Art. 1271, Civil Code.) The consideration for the contract is also evident, it being clear that a mutual benefit was derived in consequence of the service rendered. It is to be supposed that the defendant accepted these services and that the plaintiff in turn rendered them with the expectation that the benefit would be reciprocal. This shows the concurrence of the three elements necessary under article 1261 of the Civil Code to constitute a contract of lease of service, or other innominate contract, from which an obligation has arisen and whose fulfillment is now demanded. Article 1254 of the Civil Code provides that a contract exists the moment that one or more persons consent to be bound, with respect to another or others, to deliver some thing or to render some service. Article 1255 provides that the contracting parties may establish such covenants, terms, and conditions as they deem convenient, provided they are not contrary to law, morals, or public policy. Whether the service was solicited or offered, the fact remains that Perez rendered to Pomar services as interpreter. As it does not appear that he did this gratuitously, the duty is imposed upon the defendant, he having accepted the benefit of the sendee, to pay a just compensation therefor, by virtue of the innominate contract of facio ut dex implicitly established. The obligations arising from this contract are reciprocal, and, apart from the general provisions with respect to contracts and obligations, the special provisions concerning contracts for lease of services are applicable by analogy. In this special contract, as determined by article 1544 of the Civil Code, one of the parties undertakes to render the other a service for a price certain. The tacit agreement and consent of both parties with respect to the service rendered by the plaintiff, and the reciprocal benefits accruing to each, are the best evidence of the fact that there was an implied contract sufficient to create a legal bond, from which arose enforceable rights and obligations of a bilateral character.

In contracts the will of the contracting parties is law, this being a legal doctrine based upon the provisions of articles 1254, 1258, 1262, 1278, 1281, 1282, and 1289 of the Civil Code. If it is a fact sufficiently proven that the defendant, Pomar, on various occasions consented to accept an interpreter's services, rendered in his behalf and not gratuitously, it is but just that he should pay a reasonable remuneration therefor, because it is a well-known principle of law that no one should be permitted to enrich himself to the damage of another. With respect to the value of the services rendered on different occasions, the most important of which was the first, as it does not appear that any salary was fixed upon by the parties at the time the services were accepted, it devolves upon the court to determine, upon the evidence presented, the value of such services, taking into consideration the few occasions on which they were rendered. The fact that no fixed or determined consideration for the rendition of the services was agreed upon does not necessarily involve a violation of the provisions of article 1544 of the Civil Code, because at the time of the agreement this consideration was capable of being made certain. The discretionary power of the court, conferred upon it by the law, in also supported by the decisions of the supreme court of Spain, among which may be cited that of October 18, 1899, which holds as follows: "That as stated in the article of the Code cited, which follows the provisions of law 1, title 8, of the fifth partida, the contract for lease of services is one in which one of the parties undertakes to make some thing or to render some service to the other for a certain price, the existence of such a price being understood, as this court has held not only when the price has been expressly agreed upon but also when it may be determined by the custom and frequent use of the place in which such services were rendered." No exception was taken to the judgment below by the plaintiff on account of the rejection of his claim for damages. The decision upon this point is, furthermore, correct. Upon the supposition that the recovery of the plaintiff should not exceed 200 Mexican pesos, owing to the inconsiderable number of times he acted as interpreter, it is evident that the contract thus implicitly entered into was not required to be in writing and that therefore it does not fall within article 1280 of the Civil Code; nor is it included Within the provisions of section 335 of the Code of Civil Procedure, as this innominate contract is not covered by that section. The contract of lease of services is not included in any of the. cases expressly designated by that section of the procedural law, as affirmed by the appellant. The interpretation of the other articles of the Code alleged to have been infringed has also been stated fully in this opinion. For the reasons stated, we are of the opinion that judgment should be rendered against Don Eugenio Pomar for the payment to the plaintiff of the sum of 200 Mexican pesos, from which will be deducted the sum of 50 pesos due the defendant by the plaintiff. No special declaration is made as to the costs of this instance. The judgment below is accordingly affirmed in so far as it agrees with this opinion, and reversed in so far as it may be in conflict therewith. Judgment will be entered accordingly twenty days after this decision is filed. Arellano, C. J., Willard and Mapa, JJ., concur. MCDONOUGH, J., with whom concurs COOPER, J., dissenting: I dissent from the opinion of the majority. In my opinion there is no legal evidence in the case from which the court may conclude that the recovery should be 200 Mexican pesos. I am therefore in favor of affirming the judgment. Johnson, J., did not sit in this case.

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G.R. No. 1302, August 21, 1903

THE UNITED STATES, COMPLAINANT AND APPELLEE, VS. NARCISO CALIGAGAN, DEFENDANT AND APPELLANT. D ECIS ION
WILLARD, J.: It is claimed by the counsel for the defendant in this court that the statements made in the preliminary investigation were improperly considered by the court below, citing in support of his claim decisions of this court. Testimony given in the preliminary hearing can never be considered by the Court of First Instance when the accused is there on trial unless it is reproduced in that courtthat is, unless there is proof in that court of what was the testimony before the justice of the peace. When there is such proof, the effect to be given to the testimony before the justice of the peace depends upon the person who gave it. If such person was the defendant, his statement has, at least, the effect of any extrajudicial confession made hv him and ,is evidence proper to be taken into consideration against him, although he may have in the Court of First Instance retracted his confession. On the other hand, if the person were not the defendant, his testimony before the justice can never be used to convict tlie defendant If such a iierson testified before the justice thai he saw the defendant commit the act, and in the Court of First Instance testifies that he did not, his first statement can not avail the Government. If, however, he testified before the justice that he did not see the defendant commit the act, and in the Court of First Instance testifies that he did, the defendant can there prove what his testimony was before the justice, for the purpose of impeaching his credibility as a witness. In the case at bar the Government proved at the trial in the Court of First. Instance that the defendant made certain statements before the justice in the preliminary investigation. Those'statements the Court of First Instance had a right to consider in deciding upon the guilt or innocence of the accused. On the other hand, the witness Pangan before the justice testified that the deceased Capulong, before he died, told him that the defendant had wounded him. But at the trial in the Court of First Instance he testified that the deceased said nothing to him at the time. His first statement can not be used as evidence against the defendant. Upon all the evidence that is proper to be considered, we think that the guilt of the defendant is proved but that he is entitled to the benefit of the attenuating circumstance of drunkenness. The judgment is affirmed, with costs of this instance against the appellant. Arellano, C. J., Torres, Cooper, Mapa, and McDonough, JJ., concur.

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G.R. No. 1307, August 21, 1903

THE UNITED STATES, COMPLAINANT AND APPELLEE, VS. JOSE RAMOS ET AL., DEFENDANTS AND APPELLANTS. D ECIS ION
WILLARD, J.: Anacleta, the daughter of Jose Ramos, having defied Pascual Rodriguez to come out of his house, the latter left it and upon tin? stairway met Jose and his three sons. Mariano and Rufino were in front and Joso and Andres behind them. Pascual was attacked by Mariano with a bolo and by Rufino with a club. He lost his left hand by a blow from the bolo, and was knocked senseless to the ground by a blow from the club given by Rufino. The court below acquitted Jose and Andres, and the case is not before us as to them. Mariano was sentenced to four years nine months and eleven days' imprisonment because his blow deprived the complaining witness of his hand; and Rufino was sentenced to four months' imprisonment because his blow only caused a contusion on the head. In thus discriminating between the two we think that the court erred. The two defendants attacked Pascual at the same time; they were joint participants in the aggression and each is responsible for the result, (Art. 13, Penal Code.) The aggravating circumstance of noeturnity should not be taken into consideration, for it is evident from the case that the defendants did not select the hour of 8 p. m. for the commission of the offense because it was then dark. There being neither aggravating nor extenuating circumstances, the penalty should be inflicted in the medium grade. The judgment is and punished in nine months and Philippine pesos, reversed and each of the defendants is converted of lesiones graves, defined article 416, 2, of the Penal Code, and sentenced to the penalty of four years ten days of prision correccional , to pay Pasenal Kodrignez an indemnity of 500 and to half of the costs of the first instance and the costs of this instance.

Arellano, C. J., Torres, Cooper, Mapa, and McDonough, JJ., concur.

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G.R. No. 1316, August 29, 1903

THE UNITED STATES, COMPLAINANT AND APPELLEE, VS. LI-DAO, DEFENDANT AND APPELLANT. D ECIS ION
WILLARD, J.: The defendant has made a motion to reverse the judgment in this case and remand the case for a new trial because there is no complaint in the record. The following document, evidently filed under section 4 of General Orders, No. 58, though improperly called an information, appears on folio 5 : "Information. Bontoc, subprovince of Bontoc, Lepanto-Bontoc, P. I. Inspector Elmer Eckman, P. C, being first sworn, on oath does say that on the eighth (8) day of December, 1902, three (S) Igorrotes, namely, Li-Dao and Dag-Sin and Lu-Don, all residents of the pueblo of Tulubin, subprovince of Bontoc, Province of LepantoBontoc, P. I., to the best of my knowledge and information one or all did at or near the place called Sugit, subprov. Bontoc, Prov. Lepanto-Bontoc, P. I., inflict wounds on the person of an Igorrote named Al-i-co, a resident of the pueblo of Samaqui, subprovince of Bontoc, Province of Lepanto-Bontoc, P. I., from the effects of which he died. (Signed) Elmer A. Eckman, 2nd class inspector, Philippine Constabulary. "Subscribed and sworn to before me this twenty-fourth (24) day of December, 1902, in Bontoc, subprovince of Bontoc, Province of Lepanto-Bontoc, P. I. (Signed) T. K. Hunt, It. gov. and justice of the peace, ex otficio." This can not be a complaint for parricide, because it does not allege facts constituting that offense; it does not allege any relationship between the deceased and the defendant. For the same reason it can not be a complaint for asesinato , for it does not allege facts which elevate the act of killing to that crime, nor does it call the crime asesinato , The only other crime which can result from the killing of a human being, namely homicidio , is sufficiently described in this complaint. That crime is, by article 404 of the Penal Code, defined to be any killing of a person which is not parricide or asesinato . It is true that this complaint does not comply with No. 2 of section 6 of General Orders, No. 58, in that it does not give a name to the crime which the facts alleged show to have been committed. This noncomplianee must be disregarded for two reasons: (1) It was a defect in form which did not tend to prejudice any substantial right of the defendant on the merits. Under section 10 of said General Orders the judgment can not be set aside for such reason; (2) the defendant made no objection to the complaint by demurrer or otherwise, but went to trial on the merits. The objection now urged was raised for the first time in this court By failing to present it in the trial court, the defendant waived it. The court below convicted the defendant of asesinato . It is said by the Solicitor-General in his brief that there is no evidence in the record on which a conviction for that crime can be sustained. Whether that appears or not is immaterial, for we hold that under this complaint the most that, he can be convicted of is homicidio . The motion of the defendant is denied. We have determined this motion on its merits, but we call the attention of counsel to the fact that the

practice pursued by him is irregular. All objections to the judgment both of form and substance should be included in one brief, and should be presented and argued together when the case is heard on its merits. The practice followed here has produced the necessity for two hearings of this case. The defendant is allowed twenty days from the date of this order in which to file a brief on the merits, and the case is set down for hearing on the 25th day of September, 1903. Arellano, C. J., Torres, Cooper, Mapa, and McDonough, JJ., concur.

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G.R. No. 1316, November 12, 1903

THE UNITED STATES, COMPLAINANT AND APPELLEE, VS. LI-DAO, DEFENDANT AND APPELLANT. D ECIS ION
WILLARD, J.: This case was before us in August, upon a motion to dismiss because the complaint was insufficient. We then held that the complaint was sufficient to support a conviction for homicide, but not for assassination. The evidence shows beyond doubt that the defendant is guilty of the former crime, but not of the latter. There is no evidence that would justify the court in saying that the qualifying circumstance of "evident premeditation" existed. We take into consideration, as a mitigating circumstance, the provisions of article 11 of the Penal Code. The judgment is therefore reversed and the defendant is convicted of the crime of homicide with the mitigating circumstance of article 11 of the Penal Code, and is sentenced to twelve years and one day of reclusion temporal, with the costs of the first instance and of this instance against the appellant. Arellano, C, J., Torres, Mapa, and McDonough, JJ., concur.

DISSENTING COOPER, J.: The defendant, Li-dao, was convicted, by the Court of First Instance of the Province of LepantoBontoc, of the crime of murder, and was sentenced to the death penalty. The complaint upon which the conviction was based is as follows: "Information: Bontoc, subprovince of Bon toe, Province of Lepanto-Bontoc, P. I. Inspector Elmer Eckman, P. C, being first sworn, on oath does say that, on the 8th day of December, 1902, three Igorrotes, namely, Li-dao, Dag-sin, and Lu-don, all residents of the pueblo of Tulubin, subprovince of Bontoc, Province of Lepanto-Bontoc, P. I., to the best of my knowledge and information, one or all, did, at or near a place called Sugit, subprovince of Bontoc, Province of Lepanto-Bontoc, P. L, inflict wounds on the person of an Igorrote named Al-i-co, a resident of the pueblo of Samaqui, subprovince of Bontoc, Province of Lepanto-Bontoc, P. L, from the effects of which he died. "ELMER A. ECKMAN, "Second-Class Inspector, Philippines Constabulary. "Subscribed and sworn before me this 24th day of December, 1902, in Bontoc, subprovince of Bontoc, Province of Lepanto-Bontoc, P. I. "TRUEMAN K. HUNT, " Lieutenant-Governor and ''Justice of the Peace, ex officio."

The complaint fails to charge that the offense was committed with alevosia or premeditation, and fails to charge any other of the qualifying circumstances mentioned in articles 402 and 403 of the Penal Code. There can be no conviction under it for murder. The complaint is also insufficient as charging homicide. It is an elementary rule of criminal pleading that the offense must be stated positively and every essential fact and circumstance must be alleged directly and distinctly. It is not stated positively and distinctly that the defendant Li-dao inflicted wounds on the person of the deceased from the effects of which he died. The allegation is "to the best of my knoAvledge and information;" nor does it charge directly and positively that the defendant Li-dao Avas the person who inflicted the Avounds on the deceased, the language of the complaint being that "one or all" of the defendants inflicted the wounds on the deceased. This loose manner of pleading should not be tolerated by the courts. It is in violation of the express provisions of General Orders, No. 58. Objections to a complaint which fail to charge any offense, or which fail to charge a circumstance necessary to qualify the offense, may be made either on appeal or by demurrer in the Court of First Instance or may be raised by either court on its own motion. For the reasons above stated I can not concur in the decision of the majority of the court. Johnson, J., did not sit in this case.

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G.R. No. 1317, November 23, 1903

THE UNITED STATES, COMPLAINANT AND APPELLEE, VS. SIMEON MAGTIBAY, DEFENDANT AND APPELLANT. D ECIS ION
WILLARD, J.: The defendant has been convicted of the crime of treason as defined in Act No. 292, section 1, and sentenced to death. It was proved that he was a soldier in the Constabulary stationed at Imus, in the Province of Cavite; that on October 13,1902, he deserted and was captured on October 27,1902. When he was captured he stated to the inspector, according to the latter's testimony, that he had given the arms which he took with him to his general, Montalon. Upon his person was found a commission, making him a second lieutenant, signed by Montalon and dated October 14. The only witness to the finding of this commission was the inspector. There was evidence that, in October, Montalon was in armed rebellion against the Government and that there had been engagements in that month between his troops and the forces of the Constabulary. Section 9 of the act of Congress of March 8, 1902, is as follows: "SEC. 9. That no person in the Philippine Islands shall, under the authority of the United States, be convicted of treason by any tribunal, civil or military, unless on the testimony of two witnesses to the same overt act, or on confession in open court." Passing for the present the testimony of the defendant at the trial, there was no other evidence in the case to show that he had ever joined the forces of Montalon, except the testimony of the inspector as to the confession made when he was captured and the commission as second lieutenant found upon his person. Under the act of Congress there can be no conviction, unless two witnesses testify to the same overt act of treason. There is no such testimony in this case. The evidence of the Government related exclusively to the desertion of the defendant and his capture. The act of Congress provides that there may be a conviction upon a confession in open court. The defendant testified as a witness in his own behalf at the trial. He denied that he had deserted, but claimed that he had been carried off by force by soldiers of Montalon and taken to the latter's camp. He promised to serve them, and they made him a lieutenant and gave him a revolver. He remained with them two weeks, but he says that it was against his will and that he had no opportunity to escape, except the time when he was captured. This was not a confession within the meaning of the said section 9. The confession there mentioned means a confession of guilt. The section can not be extended so as to include admissions of facts made by him in giving his testimony after a plea of not guilty, from which admissions his guilt can be inferred. The evidence required by the act of Congress does not appear in this case. It is unnecessary to consider the point made by the defendant's counsel that, in view of the official proclamations, there existed no state of insurrection or war in Cavite in October, 1902, The judgment is reversed and the defendant acquitted only of the crime charged in this

complaint, with the costs de oficio, and without prejudice to the presentation of complaints for the other crimes of which the evidence in this case indicates that the defendant may be guilty. Arellano, C. J., Torres, Cooper, Mapa, McDonough, and Johnson, JJ., concur.

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G.R. No. 1319, October 09, 1903

THE UNITED STATES, COMPLAINANT AND APPELLEE, VS. TOMAS ZAMOUA, DEFENDANT AND APPELLANT. D ECIS ION
COOPER, J.: The information in this case charges the defendant, Tomas Zamora, with the crime of estafa, committed in the following manner: On the 9th day of November, 1901, in the city of Manila, there came into the possession, care, and custody of the defendant, as a deposit on commission, for administration, and to sell for the account of Dona Gregoria Covarrubias, certain personal property consisting of jewelry of the value of $1,772.50, the defendant being under the obligation to return or account for the same; that the defendant, between the said 9th day of November, 1901, and the 14th day of October, 1902, wrongfully, illegally, and without the consent of the owner, converted said property to his own use, to the prejudice of the said Gregoria Covarrubias. The defendant plead not guilty, and was, on the 5th day of December, 1902, tried in the Court of First Instance of the city of Manila, found guilty as charged, and sentenced to imprisonment for two years of presidio correccional . An appeal was taken to this court. The evidence in the case shows that on the 10th day of July, 1901, the defendant received from the complaining witness the jewelry mentioned in the complaint, for sale on commission, and though repeatedly requested by the owner to return the same, failed so to do. These facts are proven by the complaining witness and Juliana Espinosa. It is contended for the defense that no time was fixed within which the defendant was to make sale of or return the property. It was proven that it is the custom, when jewelry is taken out for sale, that if taken in the morning it is to be returned in the evening; or at least within two or three days. Independent of any such custom, and in the absence of any time fixed for its return, it was the duty of the party so receiving it to return it upon the demand of the owner. The complaining witness testified that upon several occasions she demanded of the defendant the return of the jewelry; that the defendant failed to comply, on each occasion asking for two or three days longer, and up to the date of the trial, which was over one year from the date of the delivery of the property, he had failed to make a return of the jewelry or to give any account thereof. We think the evidence in this respect entirely sufficient to show the conversion of the property by the defendant to his own use. It is also contended that a certain receipt bearing date November 11, 1901, in which the defendant acknowledged to have received from the complaining witness $1,772.50, "value received in various jewels," was a novation of the contract, and had the effect of converting the transaction into compraventa. We do not think the receipt can be construed as having any such effect. It is signed by the defendant and specifies the particular pieces of jewelry delivered. It does not indicate in any

way a sale of the property or novation of the original contract. While it was taken four months after the delivery of the property, this is explained by the complaining witness, who states that, after having made repeated demands upon the defendant for the return of the property, or its price, she, distrusting defendant, took the receipt as evidence of the original delivery of the property, having at the time of the delivery given over the same to defendant without taking a receipt. On the 9th day of September, 1903, after the submission of this case, the defendant filed in this court, under the provisions of section 42 of General Orders, No. 58, a motion for a new trial, supported by the affidavits of Daniel Nonato and Gregoria Covarrubias. There was attached to the motion a receipt dated on the 5th day of November, 1901, signed by Daniel Nonato, in which is set forth the list of the jewelry, and in which it is recited that the defendant, Tomas Zamora, on that day delivered to Daniel Nonato the property for sale on commission. This receipt comprises the same articles shown on the trial to have been intrusted by the complaining witness, Gregoria Covarrubias, to the defendant for sale. It is alleged in the motion for a new trial that it was the understanding of the defendant that the complaining witness, Gregoria Covarrubias, had conferred upon him the power to sell on time the jewelry which she had delivered to him, and that in turn he delivered to Daniel Nonato the same articles of jewelry for sale on the same terms, taking from the latter the receipt above mentioned; that upon the filing of the information upon which the prosecution is based defendant sought many times for this receipt, all of his searches proving unsuccessful; that he did not make this defense at the time of the trial because he had nothing to prove the existence of such contract with Nonato, nor did he at the time know of the whereabouts of Nonato; that after the submission of the case to this court, Nonato had paid over the entire amount of the price for which the jewelry was sold to the defendant, and the latter paid it over to Gregoria Oovarrubias, as shown in her attached affidavit; that the receipt from Nona to to the defendant came into the possession of Nonato in the following manner: That on the 6th day of November, 1901, Nonato paid defendant on account a certain sum, and defendant took out. the document for the purpose of making and signing the corresponding entry of the receipt of this sum, afterwards delivering the document to Nonato as evidence of the payment, instead of issuing a receipt on account; that in the course of time he forgot completely what had occurred, and on searching for the document and not finding it he supposed it was lost. The affidavit of Daniel Nonato states that some time in November of the year 1901 the defendant, Zamora, intrusted to him certain articles of jewelry for sale on commission, a list of which is attached to the affidavit; that he sold said jewelry in the provinces, but on account of the scarcity of money there he was unable to make the collection of the price until a few days ago, and that it was only on yesterday, September 8, 1903, that he paid to defendant the amount of $1,772, which he owed the defendant for said property. The affidavit of Gregoria Covarrubias states that she, on the 9th day of September, 1903, received from the defendant, Zamora, the sum of $1,772.50, which Zamora was indebted to her for the jewelry, the same being in full satisfaction of the account. A motion for a new trial under the provisions of General Orders, No. 58, should show both the materiality of the testimony and the exercise of due diligence on the part of the defendant to obtain the newly discovered testimony. We think the application is defective in both these particulars. The trial must have resulted in the conviction of the defendant, even if the proof alleged to be newly discovered and mentioned in the motion had been introduced at the trial.

The conversion of the property by the defendant was shown to have occurred before the 5th day of November, 1901, the date on which the defendant claims that he turned over to Nona to the property received from Gregoria Oovarrubias. It was shown on the trial that where there is a delivery of such property under like circumstances, according to the customs of the place, it should bo accounted for within two or three days' time after its delivery. As before stated, independent of any such custom, and in the absence of any time fixed for its return, it was the duty of the defendant to return the property upon demand of the owner. The complaining twitness testified that several times prior to taking the receipt of November 9, 1901, she had made demand upon tlie defendant for the return of the property, and that the defendant had under one excuse and another failed to comply with the request. The testimony of Juliana Espinosa was that she had gone to the house of the defendant on many occasions between the date of the delivery of the jewelry to the defendant on the 10th day of July, 1901, and the date of the taking of the receipt by witness from defendant on November 9, 1901, and that the defendant always met her. with many excuses, and on one occasion said that he would go in person and deliver the jewelry to Gregoria Covarrubias, or give her the money; that on account of these various pretexts and promises unfulfilled, Senora Covarrubias distrusted the defendant, and, finally, on the 9th day of November, 1901, took the receipt from him which contained a list of the jewelry. There is no proof in the case to sustain the contention of defendant to the effect that the jewelry was consigned to him to sell on time. In view of the fact that the demand made upon defendant by the complaining" witness for the return of the jewelry was sufficient to put him in default and to require him to return the property to plaintiff, on his failure to do so he became guilty of the conversion. Subsequent accounting to the complaining witness and payment to her of the money could not have the effect of absolving him from the crime which had already been committed. The application is insufficient in not showing the use of diligence in procuring the testimony. It is stated that the defendant had made many searches for the receipt of November 5, 1901, taken from Nonato upon the delivery of the jewelry by him to Nonato. If after due search made for the document it could not be found, parol evidence of its contents would have been admissible. It is not stated in the application for a new trial that this proof could not have been made. It seems from the affidavit that Nonato Avas a resident of this city. The defendant should have applied for process to issue to procure the attendance of this witness, and, if upon return of the process it was shown that Nonato was absent and could not be found, he should have made application for the continuance of the case, based upon such facts. The court would doubtless have extended to him a postponement until such time as he could have procured the attendance of the witness. It is a strange circumstance, and seems entirely improbable, that the defendant should have delivered over to Nonato the receipt, the only evidence he had against Nonato of the delivery to the latter of the property in question, simply because he had indorsed thereon a receipt for the payment of 100 pesos, instead of executing to Nonato a separate receipt for this sum on account. For the reasons stated the application for a new trial should be overruled, which is accordingly

done. The Court of First Instance properly found the defendant guilty of estafa under clause 5 of article 535 of the Penal Code, and has properly assessed the penalty for the offense. The judgment of the Court of First Instance is affirmed, and the costs of this appeal are adjudged against the defendant. Arellano, C. J., Torres, Willard, Mapa, and McDonough, JJ., concur. Johnson, J., did not sit in this case.

OSJurist.org

G.R. No. 1320, September 14, 1903

THE UNITED STATES, COMPLAINANT AND APPELLEE, VS. FLORENTINO LOZADA, DEFENDANT AND APPELLANT. D ECIS ION
TORRES, J.: On January 15, 1903, the provincial fiscal filed an information in the Court of First Instance of Capiz, charging Florentino Lozada with usurpation. The information alleged that while Doiia Damiana Bajada was undergoing exile in the Island of Mindanao, by order of the Spanish Government, from 1898 to the month of March, 1901, the defendant, Lozada, an inhabitant of the town of Panay, forcibly took possession of a certain piece of land situated in the barrio of Lisub, of said town, this land having been acquired from the defendant, Lozada, by the late husband of the complaining Avitness by purchase, subject to the right of redemption. The usurpation was effected by intimidating the daughters of Damiana Bajada, named Arsenia, Fulceda, and Bonifacia, In the course of the trial these three sisters, by their sworn testimony, supported the allegations of the information. They further testified that the accused forcibly took from them, during the absence of their parents in the Island of Mindanao, to which they had been deported, the said land situated at Lisub on the bank of the Nipa Estero; and with this end in view the defendant went there one day with a revolver and with it intimidated the witnesses. Several witnesses corroborated the testimony of the complainant's three daughters, stating that they were present at the time of this act of intimidation. However, two of these witnesses made contradictory statements, each of them affirming that, at the time of the intimidation, he was the only person in the house besides the three daughters of the complainant. The witness Domingo Balgos testified that on a certain occasion the defendant, Lozada, admitted to him that he had taken forcible possession of the land in question, believing that the owners thereof, who had been deported, had been thrown overboard and would not return. It is to be observed that the defendant, Florentino Lozada, was prosecuted before the justice of the peace at Pa nay for the same act of usurpation of this land, and that the justice, after trial, convicted Lozada and condemned him to pay a fine of $137.50, to return 110 cavans of rice, or to pay therefor $275 at the rate of $2.50 a cavan, and to pay one Melecio Vasquez $25 as damages, with the costs. The accused plead not guilty, and as a witness in his own behalf testified that he had sold the land in question to Pio Buenvenida for 113 cavans of rice, subject to the right of redemption, but that he had redeemed it in 1898 by paying 100 cavans to Ramon Barrios in satisfaction of an equal amount of rice which Buenvenida owed the latter, the remaining 13 cavans having, according to agreement, been applied as rent for the land for the year 1898, and during which the vendee, Buenvenida, had a crop on it. The witness stated that the necessary deed of reconveyance had been executed by Buenvenida in the presence of three witnesses, and introduced this document in evidence. He stated further that after the crop was gathered a man by the name of Gil, who was in charge of it, turned the land over to him by order of Simeon Vidal, who looked after the property of the complainant and her husband during their absence. The witness denied having taken forcible possession of this land during its occupation by the daughters of Damiana Bajada, as well as the allegation that lie had been in

their house in May, 1899, for the purpose of intimidating them. He stated that at that time he was recovering from an illness and was absent on a sea voyage. The witness further stated that Domingo Balgos was an enemy of his, and that the woman Bajada on one occasion had asked him to make a slight increase in the price of the land he had redeemed, which he had refused to do. Telesforo Villoso, one of the attesting witnesses who signed the deed of reconveyance (p. 29), identified his signature as appearing therein, and affirmed that the statements contained in the document were true and that the signature appearing therein purporting to be that of Pio Buenvenida was his genuine signature, the witness having been present when the said Buenvenida signed the document. He testified further that Jose Besana had drawn up the instrument. The other attesting witnesses, Gil Bereso and Bartolome Becares, did not testify in the case, the former being absent and his whereabouts unknown, and the latter having died. The witness Besana corroborated the statements of the defendant, and testified to having seen Buenvenida and the three attesting witnesses sign the document. Ramon Barrios also corroborated the testimony of the defendant. He testified that by agreement with Pio Buenvenida, who owed him 100 cavans of rice, the accused, Lozada, on an indorsement to him of a promissory note, delivered to witness the said 100 cavans of rice, making this delivery as a consideration for the redemption of a pieces of land at Nipa belonging to him, and which was in the possession of Buenvenida. The witnesses Justo Balgos, Cornelia Bacas, and Pedro Bersabal testified that the daughters of Buenvenida had never lived in the latter's house at Calitan, and that it had been occupied only by Gil Bereso, a son-in-law of the owner of the house, up to the time Balgos went and lived there under authority from Simeon Vidal. The witnesses testified that they knew these facts because they lived in neighboring houses. The document introduced in evidence by the defendant was attacked by the prosecution as a forgery, and several expert witnesses were put on the stand. These witnesses made an examination of the handwriting and signature of Pio Buenvenida, comparing them with the writing on other authentic documents presented by the prosecution. Two of these witnesses testified that the handwriting and signatures were different and that they believed the signature of Buenvenida appearing on the deed of reconveyance in question to be a forgery. On the other hand, several graduates of the Normal School testified that both signatures were written by the same hand and that the differences to be observed therein were due to the fact that some of the writing was done by the writer while somewhat nervous and in an uncomfortable position, and that the characters in other documents, although written with a coarser pen and in a heavier hand, had the same form and inclination. Another expert testified that he did not believe the writing in these documents was done by the same person, unless on different occasions and with a considerable interval of time between each. The court below, after trial, declared that the proceedings before the justice of the peace at Panay were null and void, and entered judgment against the defendant, ordering him to restore the land in litigation to the complaining witness and to pay her as damages 200 cavans of rice. In case of his failure to do so, the defendant was condemned to the payment of the sum of 500 Mexican pesos, with the costs of the suit. Against this decision the defendant appealed. In order to sustain a conviction for the crime of usurpation, the evidence must show that the realty usurped belongs not to the occupant or usurper but to some third person, and that the possession of the usurper was obtained by means of intimidation or violence done to the person

ousted from the possession of the property. (Art. 521, Penal Code.) Analyzing the three essential requisites for the existence of this crime, and after a consideration of the evidence introduced by both parties, Ave reach the conclusion that there has been no such act of violence and intimidation as charged to have been committed upon the persons of the three daughters of the complainant Damiana Bajada for the purpose of committing the crime of usurpation. The testimony of the witnesses who stated that this act of violence occurred is contradictory, and is furthermore overcome by the statements of other witnesses to the effect that the women alleged to have been intimidated never lived in the house in which the act, according to the information, occurred. In the second place, the evidence introduced for the purpose of showing that the document of reconveyance was a forgery is not sufficient to prove that it is not authentic, or to enable us to pronounce it a forgery, for in opposition to the evidence of these witnesses there is independent evidence that as a matter of fact the reconveyance took place and that a consideration was paid. Again, taking it for granted that the land was repurchased, it follows that the purchaser became its lawful owner, and therefore he can not be regarded as a mere usurper of the property of another. For the reasons stated above, taking into consideration that a person charged with a crime is to be presumed innocent until the contrary is proven, and is entitled to acquittal in case of reasonable doubt, or when his guilt is not satisfactorily demonstrated, under section 57 of General Orders, No. 58, we are of the opinion that the judgment below should be reversed and FJorentino Lozada acquitted, with the costs de oficio without prejudice, however, to any civil action which the complainant may be entitled to maintain with respect to the land in question. So ordered. Arellano, C. J., Cooper, Willard, Mapa, and McDonough,JJ., concur.

OSJurist.org

G.R. No. 1328, September 29, 1903

THE UNITED STATES, COMPLAINANT AND APPELLEE, VS. ANDRES SALVADOR, DEFENDANT AND APPELLANT. D ECIS ION
COOPER, J.: Andres Salvador is charged with the offense of an attempt to commit rape upon Eulalia Medina on the morning of the 27th day of May, 1902. On the 21st day of April, 1903, he was convicted and sentenced by the Court of First Instance of Pampanga to the punishment of eight months' prision correctional, with accessories, from which sentence he has taken an appeal to this court. It is contended by the attorney for defendant that the evidence is insufficient to show an attempt to commit the crime, or to show that the intention of the defendant was to abuse the honor of the complaining witness. The complaining witness, Eulalia Medina, testified that on the morning of the 27th day of May, about 8 o'clock, she was in the Rio Grande River washing clothes, and while there saw the accused and became frightened; that she immediately left the river and started for home, but on arriving on the bank of the river she was met by the accused, who pursued her. That she threw the tul> she was carrying at the defendant and began to run; that in running she fell face downward; that the defendant seized her and placed himself upon her and prevented her from getting up; that she cried out for aid, and her mother came and attempted to separate the defendant from her; that the defendant wounded witness's mother in the right hand with a knife; that lie was prevented from accomplishing his purpose by the arrival of witness's mother and aunt; that while they were lying on the ground the defendant had one arm around her, and had a knife in the other hand. The witness supposed he intended to abuse her honor from the fact that lie would not permit her to get up. Vicenta Solas, the mother of the complaining witness, testified that upon hearing the latter's cry she hastened to her daughter's presence and attempted to separate the defendant from the girl, and that the defendant caused a wound on witness's hand with a knife; that the witness then railed for aid, that several persons responded, and the defendant was arrested and taken to prison. We think this evidence shows, beyond a reasonable doubt, that the defendant intended to abuse the honor of Eulalia Medina, and that he is guilty of the offense of attempted rape denned and punished under article 438 in connection with paragraph 3 of article 3 of the Penal Code. It was also urged by counsel for the defendant that the Court of First Instance erred in not continuing the case on the application of the defendant, in order to enable the defendant to procure the attendance of certain witnesses. The defendant had previously asked for a suspension some time during the trial, which was commenced on February 26, 1908, in order that he might procure the attendance of those witnesses, and the trial was not completed until the 21st day of April, 1903.

No diligence is shown upon the part of the defendant by request for the issuance of process to compel the attendance of the witnesses, nor is it shown that any effort was made to procure their attendance. This was sufficient cause for the denial by the Court of First Instance of further postponement of the trial. Under article 93 of the Provisional Law for the application of the Penal Code in the Philippine Islands, the defendant will be entitled to the benefit of one-half of the time during which he may have remained in prison awaiting the final results of the case, which must be given him in the execution of the sentence. It is ordered that the judgment of the lower court be affirmed, and that the costs of this appeal be adjudged against the defendant. Arellano, C. J., Torres, Willard, Mapa, and McDonough, JJ., concur.

OSJurist.org

G.R. No. 1331, August 25, 1903

THE UNITED STATES, COMPLAINANT AND APPELLEE, VS. MELECIO MACALINTAL ET AL., DEFENDANTS AND APPELLANTS. D ECIS ION
TORRES, J.: On the 10th of March of the present year an information was iiled by the provincial fiscal in the Court of First Instance of Bulacan, charging Isidoro Palad and Melecio Macalintal with the crime of murder, in this: That on the night of the 12th of September, 1902, Maria Estevan, the mother of Isidoro, having fallen sick, he suspected that she was bewitched, and therefore struck her several blows, asking her who the witch was; that his mother then replied that the witch's name was Saturnina, whereupon her son, the accused Palad, searched for Saturnina Austria in Sibul, in the town of San Miguel, and, having found her, forcibly dragged her from her house and took her to Batong-Uling, where, with criminal intent and deliberate cruelty, the two accused cut off her two ears and threw her into the water, deliberately and inhumanly augmenting the sufferings of the victim; and then, after kicking her on the head, produced her death by causing her head to strike a rock, in all of which Palad was aided by the accused Macalintal. The prosecution having commenced, Antonio Crespillo, the medical inspector of the town of San Miguel de Mayumo, by order of the justice of the peace of that town, made an examination of the body of the deceased, Saturnina Austria, after it had been buried, for three days in a hole under a tree at Batong-Uling. This officer testified that he observed on the body a bruise on the frontal region extending to the temple, apparently produced by a violent blow with a heavy weapon, as the skull was fractured; also that several bruises were found on the right cheek, and that both ears had been cut off. He added that at the time of the examination of the body decomposition had set in. The witnesses Andres Castro, Margarita Gumabun, and Julia de Jesus stated that one morning, when they happened to be going by the place known as Batong-Uling, they saw the two accused plunging Saturnina Austria into the water of the river, and entirely submerging her, and that the deceased finally sank. The woman Gumabun added that the motive was that the deceased had bewitched the mother of Isidoro Palad. The violent death of Saturnina Austria, a woman between 50 and 55 years of age, constitutes only the crime of homicide, because her aggressors, in illtreating and wounding lior as above described, had no intention of killing her; nor did they deliberately and inhumanly propose to augment hop pain and suffering; but, acting under the false and erroneous belief that the illness of Palad.'s mother, who was also the mother-in-law of the other defendant, was due to the malignant designs of the deceased, and that the woman Saturnina willfully refused to cure her, inflicted upon her the il'l treatment .which unfortunately produced her death, for the purpose of compelling her to cure the sick woman and to break the spell of her witchcraft. For these reasons we can not apply the specific qualifying circumstance of cruelty. The accused plead not guilty of the crime with which they were charged, and alleged that when Palad's mother fell sick she sent for him, he being in the forest at the time, and that upon his arrival he heard his mother groaning and saying that Saturnina Austria was squeezing her

throat, and that upon this Tsidoro told his brother-in-law, Macalintal, to send for Saturnina. Upon her arrival they implored her to cure the patient, who was suffering under the spell of her witchcraft. This petition was denied by Saturnina, and therefore, in order to compel her to cure the sick woman, Macalintal seized one of her ears in a pair of shears and told her to cure the patient, and as Saturnina appeared to be indifferent and happened to move, her left ear was accidentally cut. Upon this Palad conducted her to Hatong-Uling Kiver, on the banks of which he again besought her to cure his mother, and that thereupon Saturnina told him to go home and that he would find his mother well. But Palad, on returning home, found his mother was not only still sick but was worse, and he therefore returned to the place when he had left Saturnina, and, seizing her by the shoulder, flung her into the water, and when the two accused pulled her out they saw that she had a wound on her head, produced by striking it against some stones in the river, and that she was breathing with difficulty; that thereupon Macalintal returned to the house and was followed shortly after by Palad, who stated that Saturnina. was dead. On the testimony of the accused, which in substance corroborates the statements of the eyewitnesses, the guilt of the two accused as coprincipals by direct participation in the homicide in question is fully proved. In the commission of the crime we must consider the concurrence of the mitigating circumstance No. 7 of article 9, and of the special circumstance established in article 11 of the Penal Code, also in mitigation; also the aggravating circumstance of abuse of superiority. The facts established show clearly that the accused acted on the impulse of passion and obfuscation, caused by the false belief that the illness of this sick woman was due to the witchcraft and incantations of the deceased Saturnina Austria, because the sick woman, groaning with pain, said that Saturnina was squeezing her throat. We must consider that the accused in fact believed in good faith that these ailments were due to witchcraft, in view of their ignorance and the vulgar belief which unfortunately still exists in such matters in many parts of the provinces. One of these two mitigating circumstances is, however, offset by the aggravating circumstance of abuse of superiority, of which the accused undoubtedly availed themselves in inflicting the ill treatment upon the victim. Consequently the proper punishment will be the .minimum grade of the penalty prescribed by article 404 of the Penal Code. Although the information charges the accused with the crime of murder, and the court below in its judgment passed sentence upon them for this crime, nevertheless as the crime of homicide is necessarily included in that of murderas the killing of a human' being is defined as homicide or as murder according to whether or not some qualifying circumstance which constitutes the higher crime concurredthe provisions of section 29 of General Orders, No. 58, are applicable, and the judgment of the court below'should be reversed and the accused convicted of the crime of homicide, as such action does not affect their rights, but, on the contrary, is favorable to them. Therefore, tinder the provisions of article 404 and others of general application of the Penal Code, for the reasons stated the judgment of the court below is reversed and the defendants Isidoro Palad and Melecio Macalintal are condemned to the penalty of thirteen years each of reclusion temporal to the accessories of absolute temporal disqualification to the full extent, and subjection to the vigilance of the authorities during the period of the penalty and for an equal period thereafter, to pay, pro rata or in soliduni, the sum of 1,000 Insular pesos to the heirs of the deceased, and to pay each one-half of the costs of both instances. The record will be returned to the court below for the execution of this judgment. So ordered.

Arellano, C. J., Cooper, Willard, Mapa, and McDonough, JJ., concur.

OSJurist.org

G.R. No. 1332, July 31, 1903

THE UNITED STATES, COMPLAINANT AND APPELLEE, VS. GERONIMO LUZON, DEFENDANT AND APPELLANT. D ECIS ION
WILLARD, J.: The motion that the defendant be included in the amnesty of July 4,1902, must be denied. To entitle a person to the benefits of this proclamation two things, at least, must concur: (1) He must have participated in the insurrections against Spain or the United States. (2) The crime with which he is charged must be political in its nature. Common crimes, such as murder and robbery, are not included within the amnesty unless they were committed under circumstances which clothe them with a political character. This court has constantly adhered to this doctrine. In the present case, while it appears that the offense was committed by insurrectionary soldiers, there is no evidence that it was of a political nature. (United States vs. Villamor, 1 Off. Gaz., Dec. 31, 1902.[1] ) The charge is illegal detention. The defendant and an armed band of six persons, of which he was the leader, presented themselves at the house of Gregorio Mistica, compelled him and his wife, Caledonia Santos, to leave it, robbed it, and then carried the man and wife into a neighboring barrio. The husband was separated from the wife, who was guarded by the defendant. The rest of the band carried the husband into the woods and soon returned with the statement that he had been killed. The wife was kept by the defendant and his companions for nine days, when she escaped, her guards having been frightened by the approach of some American soldiers. The woman testified that the persons. attacking the house were soldiers of Morales. The customary evidence that the person killed was believed by the defendants to be a spy of the Americans is entirely wanting in this case. There is nothing in it to indicate that he was not as friendly to the Filipinos as to the Americans. But it is said that, the offense having been committed by soldiers, it must be presumed, in the absence of any evidence as to motive, that it was to further the purposes of the insurrection, and therefore political in its nature. The event took place in November, 1900, in the Province of Bulacan. Malolos had been captured by the Americans more than a year and a half before, and for a long time this province had been garrisoned by the forces of that Government. While at the'time here in question there may have existed in this locality small bands of former insurrectionary soldiers, like the one led by this defendant, there was nothing that could in any sense be called an organized, disciplined, fighting forcenothing that could in any respect be called an army. It is to be noted that in this case there was evidence to prove the crime of robbery, and that of probable murder, punished by article 483 of the Penal Code. To apply the presumption suggested would be to release in large numbers the members of those bands of outlaws who, up to May 1, 1902, committed so many murders and robberies throughout the provinces. If it appeared that they had been soldiers in the insurrection, and the motive for the crime did not appear, they would have to be discharged. The Government could avoid this result only by proving affirmatively that the motive for the crime was not political. A construction that leads to such results ought not to be given to the proclamation. Whatever may have been the motive in this case, whether robbery or the abduction of the woman, or something else, its political character has not been made to appear. Tlte motion is

therefore denied. Arellano, C. J., Torres and Mapa, JJ., concur.

[1] 1 Phil. Rep., 345.

DISSENTING MCDONOUGH J., with whom concurs COOPER, J..: The defendants are charged with the crime of illegal detention in that, in November, 1900, in the town of Marilao, Province of Bulacan, they broke into the house of one Gregorio Mistica, robbed him, and took him and his wife prisoners. The band who committed this crime consisted of eight persons, all of whom were soldiers except one. After plundering the house they took Mistica and his wife, in a banca, to Tagalag, and while there the husband was taken awav bv six of the soldiers, the wife remaining in the custody of the defendant Luzon; and soon after the departure of the husband these soldiers returned, saying that the husband was dead. The wife, after being in the custody of said defendant about nine days, made her escape, taking advantage of the fact that two soldiers who guarded her had relaxed their vigilance because of the approach of the Americans. She testified that she knew Luzon, that he was a friend of her husband, and had been at her house twice before this occurrence. One of the witnesses testified that he himself had been taken prisoner by this band of soldiers on the night in question and placed under the house of Mistica, from which place he escaped while the men were upstairs. It was shown by another witness that Luzon was one of Morales's soldiers. The defendant Luzon at the trial attempted to prove an alibi, but did not succeed in doing so to the satisfaction of the court below. He was found guilty and sentenced to imprisonment for a term of seventeen years four months and one day. He now makes application for leave to take the oath and for his discharge, under the amnesty proclamation of the President of the United States issued July 4, 1902. This proclamation recites the fact of the existence of insurrection in these Islands against Spanish sovereignty, and of the resistance to the authority and sovereignty of the United States, since the cession of the Archipelago, and that during the course of said insurrection persons engaged therein, or in sympathy with and abetting them, committed many acts in violation of the lawrs of civilized warfare; and recites the further fact that it is deemed to be wise and humane and conducive to peace, order, and loyalty among them that the doers of such acts shall not he held criminally responsible, but shall be relieved from punishment for participation in these insurrections and for unlawful acts committed during the course thereof. Therefore, upon their taking a prescribed oath, the President granted a full and complete

pardon and amnesty : (1) To all persons in the Philippine Archipelago who have participated in the insurrections aforesaid; or (2) Who have given aid and comfort to persons participating in said insurrections, for the offenses of treason or sedition, and for all offenses, political in their character , committed in the course of such insuirections, pursuant to orders issued by the civil or military insurrectionary authorities; or (3) Which grew out of internal political feuds or dissensions between Filipinos and Spaniards; or (4) Which resulted from internal political feuds or dissensions among the Filipinos themselves during either of said insurrections. Persons committing such crimes since May 1,1902, when the civil government was established, and persons theretofore finally convicted of the crimes of murder, rape, arson, or robbery by a military or civil tribunal organized under the authority of Spain or the United States, were excluded from the benefits of the amnesty. The application of Luzon is resisted on the ground that the offense of which he was convicted is not included in the amnesty proclamation, in that it is not of a political character and was not committed pursuant to orders of the civil or military authorities. This court held in the Abad case (1 Off. Gaz., 357) [1] that in construing an executive act of the character of this proclamation, as in construing a remedial statute, a court is justified in applying a more liberal rule of construction in order to effectuate, if possible, the beneficial purposes intended. This rule of construction seems to have been strictly followed in the many cases passed upon by this court since the proclamation was issued, and by which the punishment for many horrible crimes and crueltiesacts contrary to the rules of civilized warfarewas remitted. A reference to some of these cases may throw light on the present question. In the case of United States vs. Manuel Repollo et al. (1 Off. Gaz., 291 ) [1] the defendant was charged with murder under the following circumstances: He was a member of the Katipunan Society, and one of the town council of the barrio of San Juan. In November, 1899, two insurgent soldiers told him there was a spy in the barrio, and that he was ordered by his superiors to seize this man, named Limon, who, it was alleged, informed the Americans where the insurrectos Avere stationed. Thereupon the defendant, accompanied by four soldiers with guns and fifteen men with bolos, seized Limon and carried him to the two insurrectos, who, without waiting for judge, council, or verdict, immediately decapitated the prisoner, throwing his head on the roadway 300 feet away from his body. This defendant claimed, and the court decided, that his case came within the provisions of the proclamation, his crime being of a political character and committed, as was alleged, pursuant to orders. Stress was laid upon the fact that the defendant and the murdered man were neighbors who knew each other many years and between whom no ill feeling existed, and hence the strong probability that the motive for the killing was political. In the case of Maximo Abad (1 Off. Gaz., 357 ) [2] the defendant had been convicted of a

violation of his oath of loyalty to the United States, in that he denied to an officer of the Army the existence of certain rifles which had been concealed by his orders when he surrendered, he well knowing the place of concealment. It was held in this case that the violation of his oath by the defendant was included in the words "treason and sedition," as used in the amnesty proclamation, and that the defendant was entitled to the benefits of the proclamation, although it does not appear in the report of the case that in violating his oath he acted pursuant to orders issued by civil or military insurrectionary authorities. In United States vs. Santillana et al. (1 Off. Gaz., 379) [1] it appeared that the defendant, Santillana, acted as judge-advocate of a so-called council of war held in the Province of Occidental Negros in September, 1899, by which council it was ordered that one Juan Carballo be brought before that body for trial, on a charge of being an American spy and guide, and in case he resisted it was ordered that he should be killed. The defendant delivered this order to those charged with its execution. There was no attempt made to arrest and try Juan. He was killed on his own hacienda by a band of riflemen and bolomen; his head was cut off, wrapped in a sack, and suspended from a bridge in the pueblo of Silay, and on it was inscribed "Juan Carballo, hombre pernicioso a la revolucion." It was held that the defendant was pardoned by virtue of the proclamation. In the Guzman case (1 Off. Gaz., 380) [2] the conviction was for murdering one Bonifacio, who was suspected of being a spy of the Spaniards. He was apprehended and taken before Guzman, who interrogated him, brutally assaulted him, and then directed that he be taken to a near-by cemetery, where he was killed. Guzman claimed lie acted under orders of his superior in command. He received the benefits of the proclamation and was set at liberty. In the case of Candido Repollo (1 Off. Gaz., 435), [3] who killed one Vallesteros with bolos and dragged his body along the highway because one of the insurgents said he was a spy of the Americans and had indicated the barrios where the insurrectos were located, defendant was convicted and applied for pardon. In favoring the application for discharge, under the provisions of the proclamation, the learned judge who wrote the opinion stated that "there is a strong probability of the killing being of a political character, resulting from internal political feuds or dissensions among the Filipinos during the insurrection," and for this reason the application was granted. The Lardizabal case (1 Off. Gaz., 183)1 shows an extraordinary case of cold-blooded murder and a total disregard of the laws of war. The defendant in that case, while in command of Filipino forces operating in the Island of Marinduque, being hard pressed by the United States soldiers, ordered a retreat of his men. He held an American soldier prisoner, who was sick and weak and unable to keep up with the insurgents in their retreat. Lardizabal, fearing that if the soldier were left behind he would give information of the whereabouts of the retreating forces, caused this unfortunate prisoner to be murdered. It was held that, inasmuch as this crime was committed during the insurrection and was a measure, whether necessary or not, inherent in the military operations for the preservation of the troops commanded by him, the applicant was entitled to the benefits of the amnesty proclamation. In the case of Samson (1 Off. Gaz., 184) [2] the defendant was charged with a violation of section 9 of Act No. 292, in that he was concerned in prohibited secret meetings, and it was

held that he was entitled to amnesty, as all violations of the whole of that act were covered by the proclamation. In the Monton case (1 Off. Gaz., No. 2, p. 2) [3] a Filipino named Afable was taken by insurrectos to the mountains and an order was issued that he be killed, as he was said to be a spy of the Americans. Six soldiers, including the defendant, after giving their victim time to pray, decapitated the prisoner, cut open his stomach, cut out his heart and placed it in his stomach, and cut out and burned his tongue. The defendant was adjudged to be entitled to the benefit of the amnesty proclamation. An extraordinary case, showing savagery, hate, and revenge, was that of Guzman et al. (1 Off. Gaz., No. 15, p. 4.) [4] Lieut. Salvador Piera, of the Spanish army, was captured and held by the revolutionary forces. While a prisoner he was sent from one post to another, from Aparri to llagan, by order of Simeon Villa, a major in the revolutionary army, who stated that he desired the presence of the lieutenant in order to have him make a deposition. This transfer was made at the instigation of the defendant, Guzman, in order that he might take revenge on the lieutenant, who was a judge in a military prosecution against Guzman in 1897. On the arrival of the lieutenant the defendants attacked him with guns, tied his arms behind his back, hung him from the roof of the parochial residence, and from time to time let him fall to the ground until death came to his relief. Held , defendants were entitled to be set at liberty, pursuant to the provisions of the amnesty proclamation. In the Carmona case (1 Off. Gaz., No. 17, p. 3) [1] the defendant was charged with assassination. As a captain in the insurrecto forces he issued an order to four soldiers to lie in wait for a tailor named Bias, in the district of Malate, Manila, and to arrest him, as he was said to be a spy of the Americans. These soldiers waited at a designated place until Bias, accompanied by his wife and another person, passed by, when they accosted him, telling him that their superior officer, the defendant, wanted to have his measure taken for a suit of clothes. Bias said it was too late and refused to go, whereupon two of the soldiers threw themselves upon him, stabbed him to death, and left his body in the roadway. The court held that this crime was covered by the proclamation. In the Villamor case (1 Off. Gaz., No. 17, p. 5) [2] the defendant acted as secretary to a council of insurrectos which determined that one Dumasal, having bought cows for the Americans, was therefore a traitor to his country. He was seized and executed. It was held that this execution was an offense of a political character and that the defendant was entitled to the benefits of the pardon. In the case of Ortiz et al. (1 Off. Gaz., 451 ) [3] the defendants were charged with the murder of one Mariano de Maza. The victim was tied to a telegraph pole and could not defend himself, while he was slashed with knives on the head, chin, and side until he died. The defendants claimed amnesty, and received it, on the ground that they acted under orders of Major Reus, of the insurgent troops. Inasmuch as it did not appear that the crime was due to any personal resentment, but simply to the belief that Maza was a spy of the Americans and an

enemy of the revolution, it was held that the defendants were entitled to the benefits of the amnesty proclamation. In the case of Colocar et al. (1 Off. Gaz., 453) [1] 1 the defendant, Colocar, was an officer in the insurrectionary movement in Mindoro. He killed one Finohermoso, who was regarded as a spy of the Americans. The defendant claimed that he received orders from Major Cayton, of the insurgent forces, directing him to execute Finohermoso. The court, considering the offense a political one, it appearing that there could have been no other motive for the killing, held that the defendant's case came within the rules of the amnesty proclamation. In the case of Berry, decided by this court July 24, 1903,[2] the Solicitor-General and the Attorney-General joined in a petition asking that the defendant be included in the amnesty. The defendant was participating against the United States in the insurrection in December, 1900, and claimed that he had been ordered by his chief to kill all spies of the Americans. The defendant and the deceased met on the highway and got into an altercation which resulted in the drawing of knives and in the killing in question. The defendant contended that he killed this man because he considered him a spy of the Americans. This court held that, although the evidence was conflicting and not entirely satisfactory, the story of the defendant was probably true, and accordingly granted the prayer of the petitioner. In the case of Pacheco et al., decided July 24, 1903,[3] it appeared that an old man and a boy left their home to go to Dagupan in April, 1900, to sell books from which the natives could learn English. On the way they were attacked by ten men, including the defendant Pacheco, who ordered the old man to be taken into a wood, where he was killed. On the return of the band Pacheco ordered the boy to be stabbed, and this was done and his body was thrown into a river. It appears that while in the river the boy showed signs of life and he was again stabbed until he died. Two of the defendants were convicted of murder and asked for amnesty under the proclamation. At the trial they denied their guilt and that they were insurgents. Now they introduce evidence to show that they were insurgents, and that the man and boy were killed because they were spies of the Americans. Held , entitled to amnesty under the proclamation. An examination of all these cases, and of the decisions of this court, leads to the conclusion that the amnesty proclamation has been and should be liberally construed with a view of bringing about peace, order, and good will. It is to be borne in mind that during the trying and turbulent times when the revolution was on against Spanish power, later when the soldiers of the United States and armed Filipinos united to overthrow Spanish arms, and finally when the insurrectos defied and attempted to overthrow the lawful authority of the United States in these Islands, and when mandates of courts could not be enforced, many crimes of a heinous nature were committedcrimes that were revolting in the eyes of a law-abiding peopleand the criminals could not be apprehended or punished because " inter arma silent leges " The crime with which the defendant in the case at bar is charged was committed by a band of soldiers. The defendant himself was on good terms with the husband of the woman for the imprisonment of whom he was convicted and had no ill feeling against her. Evidently this body of soldiers was out plundering and gathering in objectionable prisonersa not uncommon

occurrence in revolutionary times. One of the witnesses in this case was a prisoner of the same armed body and at the same time. Nor were such crimes unusual in the struggles in these Islands. In a proclamation which General MacArthur issued in December, 1900, protesting against the frequent violation of the laws of war by the insurrectos, and threatening severe punishment for the same, he enumerated, among such violations, the kidnaping and assassinating of residents of occupied towns, and stated that mandates had been issued by the insurgent officers directing that such violations should be carried on. It may be said that the offense charged here is not an offense of a political character, but rather one having for its object private plunder. A crime of a political character has been defined to be one which "is incidental to and forms a part of political disturbances." In view of the fact that for many years political disturbances were quite prevalent and quite violent in these Islands; that in furtherance of the views of one party or the other organized and unorganized bands roved about killing and plundering and confiscating (for when such men needed meat or drink or clothing or money they took, as is usual in such cases, what was nearest to hand or most easily obtained), and did all this as an incident to and part of the insurrection. The facts and circumstances of this case justify the reasonable presumption that the band of armed, men in question, including the defendant, acted under orders, especially when the statement of General MacArthur that such orders were issued is given consideration. Actual, legal proof that the offenses were political in their character has not been required in other cases. It has been held sufficient if the defendants claimed that their motives were political. For instance, in the numerous cases where men were killed because they were supposed to be spies, there was in no one of these cases actual and legal proof that the victim was a spy of the Americans. The mere say-so of some one was held to be sufficient when followed by an order to kill. As an example let us take the Berry case above. The excuse given by the defendant was that he was ordered to kill all spies, that he considered his victim a spy and therefore he killed him, and claimed amnesty and received it. Under this same order to kill all spies he might have killed every man, woman, and child he met on the highway and claimed immunity on the ground that he heard they were spies and he killed them for that reason. Under such a liberal construction it would seem that in the case at bar the defendant Luzon, who is not charged with murder, but with illegal detention and robbery, should have the benefit of the proclamation.

[1] 1 Phil. Rep., 437. [1] Page 195, supra . [2] 1 Phil. Rep., 437. [1] 1 Phil. Rep., 473. [2] 1 Phil. Rep,.,475. [3] Page 227, supra . [1] 1 Phil. Rep., 729. [2] Page 20, supra .

[3] 1 Phil. Rep., 303. [4] 1 Phil. Rep., 385. [1] 1 Phil. Rep., 326, [2] 1 Phil. Rep., 345. [3] 1 Phil. Rep., 466. [1] 1 Phil. Rep., 516. [2] Page 352, supra . [3] Page 345, supra .

OSJurist.org

G.R. No. 1336, May 14, 1903

GABRIELA ALINO ET AL., PETITIONERS, VS. HON. IGNAOIO VILLAMOR, JUDGE OF FIRST INSTANCE OF CAVITE, RESPONDENT. D ECIS ION
LADD, J.: This a petition for a mandamus to a judge of First Instance, requiring him to certify a bill of exceptions containing, among other things, the argument of counsel for the opposite party at the trial of the main action, and the evidence taken at the trial. It appears from the petition that the only exception taken was to the judgment. (1) The judge very properly refused to embody the argument of counsel in the hill of exceptions. The object of a bill of exceptions is simply to present in an intelligible form the facts necessary to enable the appellate court to review the rulings, orders, or judgments excepted to, and to this purpose, what was said by counsel at the trial by way of argument is obviously wholly foreign and irrelevant, (Gonzaga vs. Norris, decided December 3,1902.[1] ) (2) If an exception to a judgment is based on the ground that there is no evidence whatever to support the findings of fact made by the court, the evidence necessarily forms a part of the bill of exceptions. (Prautch, Scholes & Co. vs. Dolores Hernandez, decided February 10, 1902.[2] ) But if no such claim is made, the evidence is not properly included in the bill of exceptions. (Thunga Chui vs. Que Bentec, decided September 5, 1902.[3] ) There is nothing in this petition from which we can infer that it is claimed that there is no evidence to support the judgment, and it does not appear, therefore, on the petitioner's own showing, that the judge ought to have included the evidence in the bill of exceptions. For these reasons the petition is denied. Arellano, C. J., Cooper, Willard, and Mapa, JJ., concur. Torres, J., did not vote. McDonough, J., did not sit in this case.

[1] 1 Phil. Rep., 529. [2] 1 Phil. Kep,3 705. [3] 1 Phil. Rep., 356.

OSJurist.org

G.R. No. 1338, November 07, 1903

THE UNITED STATES, COMPLAINANT AND APPELLEE, VS. JULIAN SANTOS ET AL., DEFENDANTS AND APPELLANTS. D ECIS ION
WILLARD, J.: The evidence shows that in October, 1902, the defendant Santos was in the command of a band of so-called Katipunan soldiers who were operating in the Provinces of Rizal and Bulacan. His soldiers had captured Toinas Testa, the president of the pueblo of Meycauayan, and his brother Francisco Testa. They were kept in confinement for three days, then taken from the cuartel , carried to a place called Caingin, and there executed by the defendants Alejo Oeneta. and Santiago Juan, in the presence of Santos and by his orders, he handing to Santiago Juan the dagger with which the latter killed Tomas. There is no doubt as to the guilt of the two defendants. The deceased were bound at the time they were killed. This shows the existence of the qualifying circumstances of alevosia and raises the offense to the crime of asesinato . As to Julian Santos, there existed also the aggravating circumstance of known premeditation. The case as to this circumstance, with reference to Santos, is fully covered by the case of the United States vs. Ricafor, decided March 19, 1902.[1] The same can not, however, be said as to the other de- fendant. Article 79 of the Penal Code is as follows: "Aggravating or extenuating circumstances which consist in the moral disposition of the delinquent, or in his particular relations with the injured person, or any other personal cause, shall serve to increase or mitigate the responsibility solely of such principals or accessories as to whom these conditions exist. "Those which consist in the material execution of the act or in the means employed for its commission shall serve to augment or mitigate the responsibility solely of those who had knowledge of such circumstances at the moment of the act or of their cooperation in the commission of the crime." The circumstance of "known premeditation" falls within the first paragraph.of this article. The evidence shows that this organization of Santos was of a military character. It appears that he was a general, one Vicente was his captain, and one Esteban was his lieutenant. Santiago Juan was, according to the defendant Santos himself, either a sergeant or a lieutenant. The witness Amando was a private soldier. Over 100 soldiers attended the execution. Under these circumstances, it can not be said that the defendant Alejo premeditated the death of the brothers Testa. He had no control over their fate. Being only a private soldier, subject to the orders of his general, he could not have known whether they were to be killed or pardoned until the moment of committing the act. As to him, the circumstance of known premeditation did not exist. The judgment condemning Julian Santos to death is confirmed. The judgment as to Alejo Ceneta is reversed and he is convicted of the crime of asesinato, without any circumstances extenuating or aggravating, and sentenced to life imprisonment, with the costs of this instance

against the appellants. Arellano, C. J., Torres, Gooper, Mapa, McDonough, and Johnson, JJ., concur.

[1] Phil. Rep., 173

OSJurist.org

G.R. No. 1339, November 28, 1903

THE UNITED STATES, COMPLAINANT AND APPELLEE, VS. PEDRO MAGSINO, DEFENDANT AND APPELLANT. D ECIS ION
COOPER, J.: The defendant, Pedro Magsino, is charged with the offense of robbery committed in the following manner: "Mariano Dy-Seng, a Chinaman, loaded at the railway station in the town of Angeles, on August 27, 1902, 70 pilones of sugar to be shipped to Manila. As soon as the merchandise was invoiced, it was shipped with the knowledge and intervention of the station master Geronimo Manalo, on car K, No. 300, on the 29th of the same month. When the car arrived at Manila it contained only 36 pilones of sugar, 34 pilones of the amount shipped by Dy-Seng being lacking; that the accused, Pedro Magsino, agent at the said station, abstracted by force by unnailing the strips of cloth used to seal up the door of the car which contained the said sugar, and that, after the abstraction, again fastened the door of the car." The defendant was convicted on October 1, 1902, and was sentenced to the penalty of one year and ten months of presidio correccional , with the accessories of article 58 of the Penal Code, and was adjudged to make restitution to Mariano Dy-Seng of 34 .pilones of sugar, or to pay to the latter the sum of $246.50, its value, and, in case of insolvency, to the corresponding subsidiary punishment at the rate of one day for each 12 pesetas, and to the payment of costs. The defendant appeals from this judgment. It is contended by counsel for the defendant: (1) That the court erred in permitting Geronimo Manalo, station master of the railway company, to prosecute the case, the party injured being the Chinaman Dy-Seng; (2) that the proof is insufficient to show that the defendant had any participation in the abstraction of the sugar, either as author, accomplice, or encubridor ; and (3) that the court erred in qualifying the offense as robbery, the facts charged in the complaint consisting in the act of uimailing and renailing the strip of cloth placed over the door as a seal, this act being not included, within the provisions of article 512 of the Penal Code. I. As to the first objectionthat is, that the injured party was the Chinaman, Dy-Seng, and that Geronimo Manalo, the station master, should not have been permitted to prosecute the caseit is sufficient to say that the information was signed by the provincial fiscal and the prosecution was conducted by him in the court below. The case cited by counsel, the United States vs. The Municipality of Santa Cruz, [1] is not applicable here. In the case cited the prosecution was not carried on by the provincial fiscal, but it was instituted and carried on by the municipality of Santa Cruz, which municipality had no direct interest and was not entitled under the provisions of section 107 of General Orders, No. 58, as the person injured, to take part in the prosecution of the offense and to recover damages for injuries sustained by reason of the same. The judgment was rendered in favor of Dy-Seng for the damages resulting from the taking of the 34 pilones of sugar, and no judgment has been rendered in favor of Geronimo Manalo.

Where the complaint is signed by the provincial fiscal and the prosecution is carried on by the Government, it is sufficient authority for the prosecution; that others, who were not entitled to recover damages or carry on the prosecution, intervened in the case, is not such error as tends to prejudice the right of the defendant upon the merits, no judgment having been rendered in favor of such intervening party. II. The next assignment of errorthat is, that the evidence is insufficient to show the participation of the defendant in the taking of the sugarwill require a review of the evidence. It appears that the defendant, Magsino, was an employee and agent of the railway company at the station of Angeles; that the Chinaman Mariano Dy-Seng, on August 28, 1902, carried to the station 70 pilones of sugar, which was loaded under the direction of the defendant as such agent, in a freight car, for shipment to Manila. Mariano Dy-Seng, as the shipper, sealed the car after it Avas loaded by placing upon the door a strip of cloth, the customary way of sealing a freight-car door, the defendant at the time being near by. The defendant, as agent of the company, then issued a certificate to Dy-Seng to the effect that the car contained 70 pilones of sugar of the weight of 7,000 kilos. The sugar was shipped and invoiced to Chua-Koko in Manila, When the car reached San Fernando, Pampanga, en route to Manila, it was again weighed and was found to contain but 3,110 kilos, about 36 pilones of the sugar. When it reached Manila, it was examined by Chua-Koko, the consignee, and was found to contain only 36 pilones of sugar. Dy-Seng examined the car at Manila and found that the strip of cloth nailed over the door as a seal had been broken. It appears that on August 27 one Bspiridion Basilio was making some shipments of sugar to Malolos, having shipped two cars of 70 pilones each to that station; that he accompanied these shipments to Malolos, and, while at Malolos on August 29, 1902, one Pedro Sondiango arrived there, having in his charge an invoice of 34 pilones of sugar which had been shipped from Angeles to Malolos. This invoice was sent by the defendant, Magsino, to Basilio, with the request that the latter should assist the former in making the sale of the sugar mentioned in the invoice. Basilio answered saying he did not have time to attend to the sale of the sugar for the defendant, on account of his having to leave for Manila, and turned over the invoice to a Chinaman, Tomas Iniguez, leaving the sugar with him. Basilio, after his return to Angeles, in a conversation with the defendant, asked defendant where the sugar came from. The defendant replied that it came from his father, to whom it had been delivered as rent by Tomas Dison. After the return of Basilio to Angeles, at the request of the defendant, Basilio sent one Hilaria de la Cruz from Angeles to Malolos to look after the sugar, she bearing a letter to the Chinaman Tomas Iniguez. Upon the presentation of this letter to Tomas Iniguez at Malolos, lie delivered to Hilaria 200 pesos as a payment on account of the sugar which had been left in his charge by Basilio. Hilaria testified that she returned with the money to Angeles and there turned it over to the defendant. The defendant testified in his own behalf and made the following statement with reference to the shipment of the 34 pilones of sugar from Angeles to Malolos: He stated that in the course of his duties as agent at the station, whenever the station master was absent and merchandise was sent to the station for loading, he attended to supplying the car; that between 6 and 7 o'clock of the morning of August 28, 1902, Espiridion Basilio requested a car for the loading of some sugar; that at this hour the station master, Manalo, had not arrived; that about 7 o'clock in the morning he gave an order for the loading of the sugar, and that the car was loaded between 9 and 10 o'clock; that on the same day after the sugar had been loaded, Basilio entered the office and asked him to invoice the sugar, and to this the defendant replied that the

train was then in sight and that he would send the invoice to Basilio at Malolos; that Basilio, after leaving $7.06, the amount of freight charges on the car to Malolos, took the train for Malolos; that on the following day the defendant, seeing Pedro Sondiango in the station, and learning that Sondiango was going to Malolos, requested him to take the invoice to Basilio. The defendant on cross-examination denied that the 34 pilones of sugar shipped from Angeles to Malolos was his property, or that he ever made any claim to it. He also denied the statement of Hilaria de la Cruz, to the effect that she turned over to him the 200 pesos, which she testified to having received from the Chinaman Tomas Iiiiguez at Malolos. There is attached to the brief of defendant's counsel an affidavit of Hilaria de la Cruz in which she states that her testimony on the trial was given at the request of her brother-in-law, Espiridion Basilio; that she had also been threatened with death by Geronimo Manalo, the station master at Angeles, if she did not testify in the manner in which she did on the trial of the case; that she wished now to retract all she said at the trial of the case and states that it was not true that she delivered any money to the defendant, Magsino, at any time on account of the sale of the sugar. This declaration on oath can not be considered in the decision of this case, as it was not delivered at the trial and is not contained in the record, nor would it be entitled to any weight if considered. Her testimony given in the trial was consistent and has the appearance of being true. The following facts in the case seem to be uncontroverted: That 34 pilones of the 70 pilones of sugar belonging to Dy-Seng, and loaded on the car at Angeles, were taken out of the car before it reached Manila. This was shown by the testimony of Dy-Seng, who examined the car after it reached Manila, and by the testimony that the car was short this amount when re weighed en route at San Fernando, Pampanga; that the exact amount of this shortage was about the same time shipped from Angeles to Malolos; that this shipment to Malolos was not made through accident or mistake is shown by the testimony of the defendant, who states that he shipped 34 pilones of sugar from Angeles to Malolos, consigned to Basilio, the invoice for which he sent to Basilio at Malolos by Pedro Sondiango, and by the testimony of Basilio, who states that he received from the hands of Pedro Sondiango the invoice of the shipinentj and by the testimony of Sondiango that the defendant gave him the invoice at Angeles, which he delivered to Basilio at Malolos; that the 34 pilones of sugar were surreptitiously taken may be inferred from the fact that it was placed in the hands of the Chinaman Tomas Ifiiguez for sale, and that both the defendant, who loaded it, and the consignee, Basilio, who received it at Malolos, deny any claim to it. The opportunity of the defendant for abstracting the sugar from the car of Dy-Seng and reshipping it to Malolos was superior to that of Basilio. In the performance of his duties as agent at Angeles the loading of cars was intrusted to the defendant, thus affording him, without suspicion, the opportunity of handling the sugar in the car loaded for Dy-Seng and reloading it on the car sent to Malolos; while, on the other hand, it is entirely improbable that Basilio could have performed this act at the station undiscovered by the employees of the railway company. These circumstances tend strongly to corroborate the testimony of the witnesses who testified against the defendant. The testimony of Basilio plainly made out the case against the defendant. His testimony is direct and positive that he was in Malolos at the time the invoice

was sent him, and that it was sent by the defendant with the request that the sugar be sold for his account. The testimony of Hilaria de la Cruz was also direct and positive, to the effect that she went to Malolos to make the collection from the Chinaman Tomas Iniguez, and collected from him $200 on account of the sale of the sugar, and delivered this amount to the defendant. It seems entirely probable that the defendant availed himself of the confusion which might occur by the shipment at the same time of a like quantity of sugar belonging to Dy-Seng and belonging to Basilio, and, taking advantage of this, abstracted from the car of Dy-Seng the 34 pilones of sugar belonging to him and shipped it to Malolos as a part of the shipment of Basilio, in the hope, perhaps, of securing the cooperation of Basilio in the theft. The testimony is entirely sufficient to fix upon the de- fendant the crime of abstracting the 34 pilones of sugar belonging to Dy-Seng. III. The only question that remains to be determined is whether the offense committed is that of robbery as defined and punished by article 512 of the Penal Code or is that of estafa. This article reads as follows: "ART. 512. Robbery committed in an uninhabited place or in a building which is not one of those mentioned in the first paragraph of article 508, if the value of the objects robbed should exceed 1,250 pesetas, shall be punished with the punishment of presidio correccional in its medium and maximum degree, providing that any of the following circumstances be attendant, among them: Wrongful entry; breaking of walls, roofs, or floors; the forcing of doors, wardrobes, etc., coffers, or any other kind of furniture or locked or sealed objects." We think that the car in which the sugar belonging to Dy-Seng was loaded came within the meaning of this section of the Penal Code. The word "building" mentioned in article 512 was evidently intended to embrace any kind of structure, not mentioned in the first paragraph of article 508, used for the storage or safe-keeping of personal property. That there was a breaking by force we think is also shown by the evidence. The car, after being loaded, was by the owner of the cargo, Dy-Seng, closed by nailing a strip of cloth over the door so as to seal it, the customary manner of sealing a freight car. Dy-Seng testified that, upon the examination of the car at Manila, the strip of cloth had been unnailed and again nailed over the door. This was a breaking by force within the meaning of the statute. IV. We think the court also properly applied the aggravating circumstance mentioned in No. 10 of article 10 of the Penal Code - that is, that it was an act committed with abuse of confidence. It was the dutv of the defend- ant to superintend the loading of cars, and he availed hi in- self of the opportunity which this office afforded him for abstracting the sugar. There was no error committed by the Court of First Instance in the conviction of and in the sentence imposed upon the defendant. The judgment is therefore affirmed, and the costs of this appeal adjudged against defendant. Arellano, C. J., Torres, Willard, Mapa, and McDonough, JJ., concur. Johnson, J., did not sit in this case.

[1] 1 Phil. Rep., 731.

OSJurist.org

G.R. No. 1347, October 29, 1903

NICASIO VELOSO, PLAINTIFF AND APPELLEE, VS. ANG SENG TENG, DEFENDANT AND APPELLANT. D ECIS ION
WILLARD, J.: This is an action to recover possession of real estate brought under section 80 of the Code of Civil Procedure, before a justice of the peace of Manila on November 5, 1902. From a judgment against him in that court, the defendant appealed to the Court of First Instance. Judgment was there rendered against him and he has brought the case here. 1. The first assignment of error relates to the defendant's plea of former adjudication. On February 8, 1902, the plaintiff commenced against the defendant, before a justice of the peace of Manila, an action similar to the present one, for the recovery of the possession of the same real estate. In that action the justice, on April 19, 1902, rendered judgment against the plaintiff. The plaintiff appealed from the judgment, and after the case had been tried in the Court of First Instance, but before judgment had been rendered therein, the court, at the request of the plaintiff, on June 19, 1902, dismissed the action without prejudice to the right of the plaintiff to commence another action for the same cause. The court below held that these proceedings were no bar to the present suit. In this there was no error. The decision of June 19 terminated that case. It was the final judgment from which an appeal could have been taken. It expressly reserved to the plaintiff the right to commence the action again. The court had jurisdiction of the parties and the subjectmatter of that suit. It had the power to make the order. Whether right or wrong, it can not be attacked in this case, the defendant not having appealed therefrom. 2. The second assignment of error finds no support in the record. Not only does it not appear that any exception was taken to the order of the court allowing the plaintiff to amend his complaint, but it affirmatively appears that such amendment was' made by agreement of the parties. (Bill of exceptions, p. 13.) 3. The claim of the appellant that the court should have granted his motion for a continuance made on February 2, 1903, can not be sustained. Section 141 of the Code of Civil Procedure is, in part, as follows: "Rulings of the court upon minor matters such as adjournments, postponements of trials, the extension of time for filing pleadings and motions and other matters addressed to the discretion of the court in the performance of its duties, shall not be subject to exception." This section would ordinarily be a sufficient answer to the exception which the defendant took to the order of the court refusing the continuance. It is claimed, however, by the defendant that there was an abuse of discretion and that an exception lies in such cases. Admitting, without deciding, that this can be done, yet we see no abuse of discretion in the order. After the trial had commenced on December 27, 1902, the defendant went to China, not to return until May 1, 1903. After his departure, the case was set for hearing on January 2, and five continuances were afterwards obtained by < the defendant, without any suggestion that the presence of the defendant at the trial was necessary. For example; On January 27 Seiior Rodriguez, one of the attorneys for the defendant, filed a motion asking that the

case be not taken up that day, because he could not attend and that it be set for hearing any day the next week. He then said nothing about the necessity of having the defendant present as a witness. The continuance was asked also on the ground that two of the defendant's attorneys were parties to a proceeding in another court, then being heard, and that the third could not try the case alone. The defendant had already obtained five continuances. The last were granted on the understanding that the defendant would ask for no more. There was no abuse of discretion for refusing to continue the case on this ground. The parties at the beginning of the trial had agreed that the case should be tried in the English language. The failure of the defendant's attorneys to be present in court during parts of the trial did not nullify this stipulation. 4. The signing by the judge of findings and of a decision prepared by the attorney of the plaintiff was not error of law. 5. The third finding of fact, to wit, that the reasonable value of the rent of the premises during the time in question was 1,000 pesos a month, is fully sustained by competent evidence. 6. The fourth finding of fact is as follows: "Fourth. That during the defendant's occupation from the 9th day of January, 1902, he has misused the houses, and has caused damage to them in the sum of $4,000, money of the United States." This finding is plainly and manifestly against the evidence. In fact, there was no evidence in the case from which the court could say that any of these damages were caused after January 9, 1902. The property had been occupied by the defendant as a cigar factory since 1899. Neither one of the two architects who at the request of the plaintiff's agent examined the property stated when the damage was done. The plaintiff's agent testified as to the condition of the property in 1899, when the plaintiff acquired title, as compared with its condition at the time of the trial. But no witness testified to its condition on January 9, 1902, as compared to its present condition. The testimony of the witness Sim Kee Lim only came down to January, 1900. Considering the nature of the damages, it is more than probable that they were largely caused prior to January 9, 1902. They consisted principally of injuries done to the building by its use as a cigar factory. But, in the view which we take of the case, it is immaterial whether these damages were caused before or after the said 9th day of January. This summary action of forcible entry and detainer is defined in section 80 of the Code of Civil Procedure. By the first part of the section, a landlord, as against a tenant whose right to the possession has terminated is entitled to recover the possession and damages. Under the last part of the section which relates only to a tenant who has failed to pay the rent for thirty days after notice, the landlord can recover the possession, rent due, and damages; The case at bar falls under the first part and not under the second, and the plaintiff in addition to the possession is entitled to recover "damages." What is meant by the word "damages?" It certainly can not refer to damages caused to the property while the tenant was in the lawful possession of it. For such damages the landlord may have a right of action. But such right of action must be exercised in an ordinary suit. It can not be made the subject of a summary proceeding before a justice of the peace, under said section 80.

Damages caused to the property, after the possession has become unlawful, stand upon a different footing. But even as to such damages we think that there can be no recovery in this proceeding, in view of the provisions of our Law. While section 80, if it stood alone, might give rise to some doubt, this is removed when section 84 is considered. This distinctly says that the judgment shall be for "all arrears of rent or a reasonable compensation for the use and occupation of the premises." This last clause is a definition of the word "damages" found in section 80, and indicates that they are only those damages which are caused by loss of the use and occupation of the property. This action has to do only with the right to the possession. The ownership of the property is not necessarily involved. We should therefore not expect to find any provision allowing a recovery of damages for substantial injuries to buildings of which the plaintiff might not be the owner. 7. It is suggested by the appellant that the finding by the court below, that a certain document presented at the trial by the defendant was a forgery, was error because the document was never offered in evidence. It is not claimed that the finding itself was contrary to the evidence." This error, if it existed, could not possibly have prejudiced the defendant. We find no error in the record except as to the allowance of damages. By section 496 of the Code of Civil Procedure, we are authorized to modify the judgment of the court below There is, therefore, no necessity for a new trial. The judgment of the court below is modified by striking therefrom the finding of fact above quoted as to the damages and that part thereof which requires the defendant to pay the plaintiff $4,000, in money of the United States. As so modified it is affirmed. This affirmance is without prejudice to the right of the plaintiff to maintain an ordinary action in a court of competent jurisdiction to recover such damages as he may show himself entitled to. Neither party is entitled to recover of the other any costs in this court. Judgment will be entered accordingly twenty days after the filing of this decision. Arellano, C. J., Torres, Cooper, Mapa, and McDonough, JJ., concur. Johnson, J., did not sit in this case. DECISION OF MOTION FOR REHEARING. WILLARD, J.: The appellant has moved for a reargument, on the ground that the tenant of the building was the cigar factory or its owner, and not the defendant; and that the factory or its owner, and not the defendant, is liable in this suit. No such point as this was made in the court below nor in the brief of the appellant in this court; nor is it covered by any assignment of error. The assignments of error 9 and 10 are too general to present this question. This would be a sufficient reason for denying the motion. It may be added, however, that the following facts appear: The title which the appellant has seen fit to give to the case in his motion, now nowhere appears in any papers in the suit. The amended complaint names Ang Seng Teng as defendant. The answer is entitled "Ang Seng Teng, Gerente de la Fabrica Cataluna, defendant," and admits that the defendant is in possession, and has been in possession for three years, by virtue of a

contract of lease executed by plaintiff to Palanca and duly assigned to the defendant because he was the successor of Palanca in the management of the factory. The judgment and decision follows this answer and judgment is entered against "Ang Seng Teng, Gerente de la Fabrica Cataluna." Arellano, C J., Cooper, Mapa, McDonough, and Johnson, JJ., concur.

OSJurist.org

G.R. No. 1351, September 25, 1903

THE UNITED STATES, COMPLAINANT AND APPELLEE, VS. FRANCISCO DECUSIN ET AL., DEFENDANTS AND APPELLANTS. D ECIS ION
MCDONOUGH, J.: The defendants were convicted under the provisions of Act No. 518 of the Philippine Commission, passed November 12, 1902, of having on the 3d day of January, 1903, assaulted the house of one Anacleto Salvatera in San Fernando de la Union, and, by means of force and violence, of having robbed the house of said Salvatera, and of having taken from him by force, threats, and intimidation the sum of 800 pesos and a quantity of jewelry. This robbery took place between 8 and 9 o'clock at night. All of the defendants except two were armed with bolos, and one of the latter had a club. A question relating to the identity of the defendants arose at the trial in the court below, all of them attempting to prove an alibi by witnesses who testified that the defendants were elsewhere on that night. The proof, however, of the identity of defendants and that they were the persons who committed the robbery was sufficient, and the attempt to show that on the evening in question, when the crime was committed, they or several of them were attending a wedding at a house about half a mile away from that of Salvatera is not at all satisfactory. As the wedding party started for the office of the justice of the peace about 5 o'clock p. m., for the purpose of having the marriage performed, and did not get back to their house until about 9 o'clock p. m., and as the festivities of the occasion did not cease until about 12 o'clock at night, the defendants might well have attended the wedding party before or after this crime and yet have committed the robbery in question. On conviction the Court of First Instance sentenced the defendants Francisco Decusin and Vicente Decusin to imprisonment for a term of twenty-two years, and the other three defendants to imprisonment for a term of twenty years each. The crime with which the defendants were charged and of which they were convicted is an aggravated robbery by a band of highwaymen or brigands. The Penal Code, article 502, provides that those who, with intent of profiting thereby, shall take possession of the personal property of another, with violence or intimidation of the person, or by employing force upon some inanimate thing, are guilty of the crime of robbery. Under this article the crime of robbery may be committed by a single person or by several acting in concert, their purpose and intent being simply the commission of this crime; and in the absence of violence done to the person, the highest penalty that can be imposed is imprisonment for a term of ten years. Evidently this article did not suffice to meet conditions and provide adequately for robberies or thefts committed by roving bands of highway robbers or brigands, and therefore the Commission enacted a law for the punishment of such bands, making the penalty more severe for the aggravation of forming or joining such band.

Section 1 of this act (No. 518) provides that "whenever three or more persons, conspiring together, shall form a band of robbers for the purpose of stealing carabaos or other personal property, by means of force and violence, and shall go out upon the highway, or roam over the country armed with deadly weapons for this purpose, they shall be deemed highway robbers or brigands, and every person engaged in the organization of the band or joining it thereafter, shall, upon conviction thereof, be punished by death or imprisonment for not less than twenty years, in the discretion of the court." Section 2 provides that "to prove the crime described in the previous section, it shall not be necessary to adduce evidence that any member of the band has in fact committed robbery or theft, but it shall be sufficient to justify conviction thereunder if from the circumstances it can be inferred beyond reasonable doubt that the accused was a member of such an armed band as that described in said section." It will be seen at a glance that the main object in enacting this law was to prevent the formation of such bands; in fact the heart of the offense consists in the formation by three or more persons conspiring together for the purpose of theft or robbery, and such formation is sufficient to constitute a violation of this act. It would not be necessary to show, in a prosecution under it, that a member or members of the band actually committed theft or highway robbery in order to convict him. or them; for the crime is proved when the organization and purpose of the band is shown to be such as is prohibited by the statute. In the case before us the charge is made that the robbery was committed by the defendants as members of such a band; but we do not find in the record a particle of proof to show that the defendants, formed a conspiracy for the purpose of stealing personal property by means of force and violence, and that they went upon the highway or that they roamed over the country armed with deadly weapons for that purpose. May we presume or infer from the mere fact of the commission of a robbery, by three or more men acting together, that therefore they must necessarily belong to a band of brigands, or must the prosecution prove by competent evidence every allegation which had to be averred in order to properly charge the offense? The rule of law seems to be well settled that there is necessarily imposed upon the Government the burden of showing affirmatively the existence of every material fact or ingredient which the law requires in order to constitute the offense. (Commonwealth vs. McKie, 1 Gray [Mass.], 61.) The element of conspiracy enters into the crime here as well as the purpose of the conspirators. In a prosecution for a crime to be proved by conspiracy, general evidence of the conspiracy may in the first instance be received as a preliminary to the proof that the defendants were guilty of participation in the conspiracy. The evidence in proof of conspiracy will generally, from the nature of the case, be circumstantial. Though the common design is the essence of the charge, it is not necessary that the defendants come together and actually agree in terms to have that design and to pursue it by common means. If it be proved that the defendants pursued by their acts the same object, often by the same means, one performing one part and another another part, so as to complete it with a view to that same object, the conclusion may be inferred that they engaged in a conspiracy to effect that object. (Greenleaf on Ev., sees. 92-95; [1] Kelley vs. People, 55 K Y., 565.)

From the fact that the defendants committed the robbery in question, it may reasonably and lawfully be inferred that they conspired and combined for the very purpose of robbing the house of Salvatera; but may it, in addition, be inferred from this fact that, beyond a reasonable doubt, they also conspired to form a band of brigands for the purpose of going out upon the highway or roving over the country with a view of stealing carabaos or other personal property? The proof in the case does not warrant such inference or conclusion. In the case of Black (1 Tex. App., 391) the rule relating to the scope and weight of circumstantial evidence is stated thus: "It is not sufficient in case of circumstantial evidence that the circumstances proved coincide with, account for, and, therefore, render probable the hypothesis sought to be, established by the prosecution; but they must exclude to a moral certainty every other hypothesis but the single one of guilt, or the jury must find the defendant not guilty. And each fact in a chain of facts from which the main fact in issue is to be inferred must be proved by competent evidence and by the same weight and force of evidence as if each one were the main fact in issue, and all the facts proved must be consistent with each other and with the main fact sought to be proved." The charge here is "robbery in a gang by brigandage," but no proof whatever, direct or indirect, has been adduced to show the character of the band, the nature and scope of the conspiracy, whether or not as a band they were ever on a highway or roamed about the country with the intent mentioned in the statute. In the present case may we not reasonably say that the hypothesis indulged in by the prosecution, that because of the commission of this robbery the defendants must have been a band of highway robbers, does not exclude to a moral certainty the other hypothesis which arises from the fact of the crime, and from the fact that the criminals were all neighbors of the party robbed a^nd doubtless knew that lie had in his house a large sum of money, and the conclusion that they therefore conspired to commit this single robbery and no other? In the case of the United States vs. Saturnino de la Cruz et al., recently decided by this court, a judgment of conviction, under Act No. 518, was reversed for lack of proof that the defendants were bandits. Mr. Justice Wiflard wrote the opinion of the court, in which he stated: "The Solicitor-General asks that the judgment in this case be reversed and that the defendant be acquitted of brigandage. We concur in the following statement taken from his brief: " 'With respect to the crime of brigandage, the evidence for the prosecution ought to have shown in such manner as to leave no room for doubt that there existed a band of ladrones such as is described in Act No. 5.18; that the aim and purpose of this band were no other than to commit robbery by means of force and violence, and that the accused had joined the band as members of the same. " 'There is evidence to show the existence of an armed band commanded by Saturnino de la Cruz, and that his codef endants .were members thereof, but there is absolutely nothing tending to show the aim mid purpose of the band." [1]

This opinion conforms to the views expressed in decisions of courts and in text-books, to the effect that in a trial for criminal conspiracy the object or intent of the conspiracy must be proved as alleged in the indictment; that, in fact, every material averment must be proved. (Commonwealth vs. Webster, 5 Cush. [Mass.], 295; Commonwealth vs. Manley, 12 Pick. [Mass.], 173.) In statutory robbery the terms of the statute must be duly followed. And where it is aggravated, as by being in a highway or by defendants being armed with dangerous weapons or the like, such added facts must be proved [averred]. (2 Bish. New Cr. Proc., sec. 1002.) It follows that the conviction of the defendants, under Act No. 518, can not be sustained. The complaint, however, in this case, charging the defendants with robbery, and the proofs are ample to permit a conviction under article 502 of the Penal Code. The judgment is reversed and the defendants are convicted of the crime of robbery with violence or intimidation, and are sentenced to the penalty of ten years of presidio mayor, to return to Anacleto Salvatera the money and property taken, or its value, which is fixed at $1,021, Mexican currency, and to pay the costs of both instances. Arellano, C. J., Cooper and Mapa, JJ., concur.

[1] Vol. 3. [1] Page 431, supra.

DISSENTING WILLARD, J., with whom concurs TORRES, J.: In the band that attacked the house of Salvatera there were at least three persons armed with deadly weapons. By means of force and violence they robbed the house of upward of 800 pesos in cash and jewels to the value of 200 pesos. In committing the robbery they acted in unison, four entering the house and one remaining outside as watch. That they acted pursuant to an agreement previously formed to rob the house is self-evident. Whenever a band of armed men attacks a house as the defendants did, there must necessarily have existed a previous arrangement or conspiracy to carry the attack and robbery into effect. But the majority of the court say that the evidence in two respects was insufficient to convict the defendants of the crime of brigandage. (1) The defendants did not live in Salvatera's house. There is no positive evidence as to how they reached it, and it is therefore said that there is no proof that the band went out on the highway to commit this robbery. But no one reading the evidence can have any doubt at all that they approached the house by the street. I can not agree to acquit the defendants of this crime on the ground that they casually happened to be in the yard together by no preconcerted arrangement, and then for the first time formed the plan of robbing the house, or that they all lived in such relation to the house that they could have reached it without going into any street. What no one can have any doubt of is that, having agreed to commit the robbery, they went in the night to the house by the public streets,

(2) It is also said by the court that there was no proof in this case of the purposes of the organization, and that therefore there can be no conviction under Act No. 518. What is necessary for a conviction under that article is stated in the case of the United States vs. Saturnino de la Cruz (1 Off. Gaz., p 664), [1] cited in the majority opinion. It seems to be the view of the majority that the particulars therein mentioned must be proven by the evidence of witnesses who were present at the organization of the band, who can testify as to its purposes, and that the proof of the actual commission of the robbery is not sufficient. I can not agree with this view. On the contrary, I know of no better wray of proving what a band was organized for than by proving what it has done. When men are charged with conspiring for the purpose of overthrowing a government by force, I know of no better way of proving the conspiracy than by showing that these men were captured with arms in their hands, fighting against the forces of that government. When it has been proven that armed men entered a town and by force and violence carried from the houses therein personal property of others, it has been by those very facts plainly proven that they met on that day and, before they entered the town, agreed to the commission of the robbery. The evidence that they committed the act in this way proves that they organized the band on that day, at least, for the purpose of committing robbery. The reasoning of the court leads necessarily to the conclusion that a band such as is described in article 1 can not be convicted if it is organized only for the purpose of committing one robbery. There is nothing in the section to show that it was to be so limited. The result of such a holding would be to practically nullify the law. For a band of robbers might be apprehended in the very act of sacking a town, and yet they could not be convicted of a violation of this law unless evidence were produced that they had sacked some other town, or, unless some one were found who could testify as to what the purposes of the band were when it was organized; and even his evidence would not suffice unless there was proof that they intended to do more than commit this one robbery. The law is divided into two parts. (1) When an act of robbery can be proved, that is sufficient for conviction. (2) But even if it can not be proved that an act of robbery has been committed by the defendant, he, nevertheless, can be convicted under section 2 of the act if the evidence which we have just referred to can be produced, namely, evidence of witnesses who know that the band to which the defendant belonged was organized for the purpose of committing robbery. The case of Baturnino de la Cruz supra illustrates this difference. There the defendant and his followers entered the house where the complaining witness was and took him from it by force to another building, in which they compelled him to sign his name in a book of the Katipunan Society. They then released him. The determining point in that case lay in the fact that the defendants took nothing whatever from the house where the witness was. No act of robbery was committed by them. We held, therefore, that there could be no conviction under Act No. 518, unless there was some evidence that the band was organized for the purpose of robbery. Had there been such evidence the defendant could have been convicted. And such evidence would have been furnished had it been proved that the defendants robbed the house in question instead of making the witness sign his name in the Katipunan book. The acts of the defendants showed the purpose of the organization to be political, just as the acts of the defendants in this case show the purpose of the organization to have been robbery. Act No. 518 has created no new crime. Its purpose was to make, and it has made, two changes in the existing law: (1) The crime of robbery in a band was recognized by the Penal Code and

the maximum punishment in a case of this kind where no serious injury to the person results was ten years. This, by section 1, has been raised to a minimum of twenty years. (2) By section 2 one can now be convicted of robbery in a band by proof that he belonged to a band organized for such purpose, without any proof that any robbery has been committed. This could not be done under the Penal Code. I think that the judgment should be affirmed.

[1] Page 431, supra.

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G.R. No. 1358, October 23, 1903

THE UNITED STATES, COMPLAINANT AND APPELLEE, VS. LORENZO DUUAN, DEFENDANT AND APPELLANT. D ECIS ION
ARELLANO, C.J.: The conclusions reached by the judge below are supported by the evidence. The court has properly decided that the defendant is guilty of malversation, and not of estafa or any other crime. His guilt consists in his misuse of public funds placed in his possession, as municipal president, for safe-keeping. The municipal treasurer testified that there was no safe in the municipality of Polangui, and the deputy provincial treasurer stated that he had been informed by the municipal treasurer that the money had been placed in the custody of the municipal president because he had the police at his disposal, and because it was dangerous to send specie to the provincial capital. The deputy also testified that it was the custom of the municipal treasurer to remit funds to the provincial treasury in care of the municipal president, and that it was a custom prevailing in the province for the presidents to take charge of money to be sent to the provincial treasury. It is a legal doctrine, based upon the provisions of section 2, article 392, of the Penal Code, that the use by an officer for private purposes, of funds in his custody, is converted into or becomes equivalent to an embezzlement if the money so misapplied is not restored. Hence it follows that when, as in this case, the money has been restored, the offense committed is that of misapplication under article 392 and not the offense of embezzlement under article 390. The whole question is reduced to determining whether the misapplication did or did not cause an injury to the public service. The judge below reaches an affirmative conclusion upon this point, but it is well settled that "the contents and mutual relation of the paragraphs of article 392 (407 of the Spanish Code) in addition to the express terms of the first paragraph, require for the infliction of the penalties prescribed therein, evidence of the existence of the characteristic circumstance, which must be fully proven and can not be presumed, that the service has suffered some irregularity by reason of the malversationnot the malversation itself, but some other detriment derived therefrom or some irregularity which is distinctly prejudicial to the good order, policy, and regular course of the public administration. As the judgment appealed in the case cited had drawn the conclusion of the existence of this circumstance without proof of facts upon this point, it was held that the court below had erred in misapplying section 3, paragraph 3, of the article cited." (Judgment of the supreme court of Spain of March 20, 1884.) Consequently, as the record contains no evidence tending to show that any injury of this kind has been suffered, we consider that the offense properly falls within article 392, but that paragraph 3 and not paragraph 1 of this article should be applied. The defendant, Lorenzo Duran, is therefore condemned to the penalty of two years and one day of suspension from office and to the payment of a fine of 301 pesos. Thus modified^ the judgment below is affirmed, with the costs of this instance to the defendant. Torres, Cooper, Willard, Mapa, and McDonough, JJ., concur.

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G.R. No. 1366, November 18, 1903

THE UNITED STATES, COMPLAINANT AND APPELLEE, VS. GABRIEL FUSTER, DEFENDANT AND APPELLANT. D ECIS ION
MAPA, J.: The defendant was convicted in the court below of the crime of usurpation and condemned to pay a fine of 2,500 pesetas. Article 521 of the Penal Code, which punishes this crime, provides as follows: "He who, by the use of violence or intimidation, shall take possession of any real property or usurp a real right belonging to another, shall, in addition to the penalties which he may incur because of the use of violence, pay a fine equal to from 50 to 100 per cent of the profits which he may have thereby received, but in no case less than 325 pesetas. If the profit should be such that it is impossible to determine the amount, then the penalty shall be a fine of from 325 to 3,250 pesetas." Under this article, among other requisites which are essential for the existence of the offense of usurpation, it is necessary that the real property or the real right, which is supposed to be the object of this crime, be the property of another. In the absence of proof of this fact, no conviction can be had upon an information for this offense. In the present case the evidence for the prosecution deals solely and exclusively with the possession and not the ownership of the land alleged to have been usurped by the defendant. All the testimony for the prosecution tends to show the fact, and nothing more than the fact, that the land in question was in possession of Dofia Carolina Gomez de la Serna and others at the time of the defendant's forcible entry therein. Furthermore, it appears that the possessors did not make any claim to the ownership of the said land, but only to its possession. Dofia Carolina herself says that this land "does not belong to anybody," and that, although she is occupying it, it is only because she is in possession of it. There is, therefore, no evidence that the land is the property of those alleged to have been injured by the offense charged. On the other hand, the defendant offered to prove, by authentic documents, that he was the lawful owner of the land in question. This evidence was rejected in the court below. In this the court erred, for it unquestionably is an error to exclude proof of the ownership of property in litigation when, as in the case of usurpation, this ownership constitutes a necessary and indispensable element for the determination of the defendant's guilt or innocence. If the defendant herein had shown that he was the owner of the land in question, there would have been no ground on which he could have been convicted of the offense charged, because no one can, in a legal sense, be guilty of the usurpation of his own property. The law requires that the real property or the real right seized be the property of another, in order that the crime of usurpation may exist. The error of law into which the court fell in refusing to admit the evidence of ownership offered by the defendant, and against which ruling the defendant duly excepted, would be a sufficient ground for remanding the case for a new trial. We do not, however, consider it necessary to do

this, in view of the fact that the prosecution has not proven that the land alleged to have been usurped was not the property of the defendant. The burden lay with the prosecution to prove this fact, and, having failed to do so, we must acquit the defendant, even in the absence of any evidence in his behalf, because of the presumption of innocence to which every defendant is entitled until proven guilty. We therefore reverse the judgment appealed and acquit the defendant, with the costs of both instances de oficio. So ordered. Arellano, C. J., Torres, Cooper, Willard, and McDonough, JJ., concur. Johnson, J., did not sit in this case.

OSJurist.org

G.R. No. 1384, October 29, 1903

THE CALIFORNIA-MANILA LUMBER COMMERCIAL COMPANY, PLAINTIFF AND APPELLEE, VS, JOSE GARCHITORENA, DEFENDANT AND APPELLANT. D ECIS ION
WILLARD, J.: This is an action to recover 1,192 pesos for lumber furnished to the defendant. The answer was a general denial. Upon the day assigned for the trial, April 6,1903, the defendant did not appear. A trial was had, proofs submitted by the plaintiff, and on the same day a decision was filed and judgment ordered against the defendant for the amount claimed. On April 14 the defendant moved the court to set aside the judgment on the grounds (1) that by the neglect of one of the lawyers for the defendant, the lawyer making the motion was not notified of the day set for the trial, and (2) that he had an agreement with the lawyer for the plaintiff that the case should be settled out of court. The plaintiff's lawyer filed an affidavit denying the existence of any agreement that the case should be settled out of court. The motion Avas denied on April 21 and the judgment of April 6 confirmed; the defendant then excepted to the judgment. The record contains no other exceptions. The first two assignments of error made by the appellant in this court relate to the sufficiency of the evidence. None of the evidence received at the trial is contained in the bill of exceptions. There was no motion for a new trial on the ground that the decision was not justified by the evidence. Under the provision of section 497 of the Code of Civil Procedure, we are prohibited from deciding the questions presented by these two assignments. The other assignment of error relates to the order of the judge below refusing to set aside the judgment, the appellant citing as infringed sections 145, No. 1, and 146 of the Code of Civil Procedure. It does not clearly appear from the bill of exceptions that the appellant excepted to this order. We will assume, however, that he did. Section 146 provides that an order granting or denying such a motion can not be made the subject of an exception. The appellant in his brief seems to claim that there vas an abuse of discretion in this case which the court can review. Assuming> without deciding, that we have such power, yet we see no abuse of discretion in the order made. The judgment is affirmed, Avith the costs of this instance against the appellant. Judgment will be entered accordingly twenty days after the filing of this decision. Arellano, C. J., Torres, Cooper, Mapa, and McDonough, JJ., concur. Johnson, J., did not sit in this case.

OSJurist.org

G.R. No. 1403, December 29, 1903

JOSE E. ALEMANY ET AL., PETITIONERS, VS. JOHN C, SWEENEY, JUDGE OF THE COURT OF FIRST INSTANCE OF MANILA, RESPONDENT. D ECIS ION
WILLARD, J.: This is an original action in this court in which a demurrer to the complaint having been overruled (1 Off. Gaz., p. 857 ), [1] the defendant has answered. The plaintiff now moves to strike this answer out on the ground that it neither admits nor denies the facts seUout in the complaint, nor does it allege any new facts. An examination of the answer shows that it is open to the objections contained in the motion. It states some of the facts in the complaint, denies none of them, and is devoted principally to a discussion of the legal questions involved in the case. Section.94 of the Code of Civil Procedure contains the following provision : "* * * A material allegation of the complaint which is neither generally nor specificalty denied in the answer shall be deemed to have been admitted." The answer in view of this provision must be construed as tacitly admitting all of the allegations of the complaint. Such a tacit admission is the legal equivalent of an express admission. An answer which contains an express admission of all the allegations of a complaint can not be stricken out as irrelevant under section 107 of the same code. Nothing could be more relevant to a suit than an admission of the facts stated in a pleading. This is a motion to strike out the whole answer and not a part of it. It is not necessary to consider, therefore, whether that portion which contains the legal argument is subject to attack under said section 107. The plaintiff might have demurred to this answer under section 99. But in this case, and generally in all cases when the answer states no defense, the most expeditious method would be to have the case placed on the calendar for trial on its merits. On such trial the only question for determination would be whether on tlie facts stated in the complaint the plaintiff was or was not entitled to judgment. The motion is denied. Arellano, C. J., Torres, Cooper, Mapa, McDonough, and Johnson, JJ., concur.

[1] 2 Phil. Rep., 654:

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G.R. No. 1403, October 31, 1903

JOSE K. ALEMANY ET AL., PETITIONERS, VS. HON. JOHN C. SWEENEY, RESPONDENT. D ECIS ION
WILLARD, J.: This is an original action brought in this court, under the provisions of section 515 of the Code of Civil Procedure, against one of the judges of the Court of First Instance of Manila. The case is now before us on a demurrer to the complaint. It appears therefrom that prior to the 2d day of April, 1903, Dona Juana Moreno de Rastrollo had been guardian of the minors Leandro Gruet and Paz Gruet. On the 2d day of April the plaintiffs presented a petition to the Court of First Instance of Manila, asking that the guardian be removed and that the plaintiff Dona Andrea Atayde be appointed guardian of the persons, and the plaintiff D. Jose E. Alemany administrator of the property, of the minors. On April 7 the court granted the prayer of the petition and made the appointments as requested. The plaintiff Alemany gave a bond in 25,000 pesos. On the same day the former guardian, Dona Juana Moreno, died. On the 17th of April the court annulled the appointments of the plaintiffs and appointed Don Carlos Rastrollo in their place until the will of Dona Juana had been proved. The seventh and eighth allegations of the complaint are as follows: "7. On the 22d of April the deponents filed notice of appeal, accompanied by the necessary bond, against the decision referred to, in so far as it unjustly removed them from their offices, reserving the right of appeal against the appointment of Senor Rastrollo when such appointment should be made final. "8. The court took no cognizance of the said notice of appeal, but instead, in accordance with the motion of the attorney, Sefior Herrero, no copy of which motion was served on the respondents, said judge rendered judgment ratifying the annullment of the appointments of the deponents and confirming Don Carlos Rastrollo's appointment as guardian and giving in the decision his reasons therefor." The date of this last order does not appear. The plaintiffs allege that they heard of it during the first days of June, and on June 10 appealed from it so far as it made the appointment of Don Carlos final. The appeals presented on April 22 and on June 10 were denied by the defendant. The prayer of the complaint is that a mandamus be issued to the defendant directing him to allow the appeals. It will be necessary to consider only the appeal of April 22, for if that was improperly denied by the defendant the demurrer will have to be overruled, whatever might be said of the appeal of June 10. The plaintiffs having been appointed guardians of the minors on April 7, on April 17 this appointment was annulled and another person was appointed in place of them. This order

annulling the appointment of the plaintiffs must be considered as an order removing them from the office. As an order removing them, the plaintiffs had a right to appeal from it under section 783 of the Code of Civil Procedure, which is as follows: "SEC. 783. Appeals allowed in other cases affecting settlement of estates.Any person legally interested in any other order, decree, or judgment of a Court of First Instance in the exercise of its jurisdiction in special proceedings in the settlement of the estates of deceased persons, or the administration of guardians and trustees, may appeal to the Supreme Court from such order, decree, or judgment, when such order, decree, or judgment constitutes a final determination of the rights of the parties so appealing, and the appeal shall be effected in the manner provided in the two preceding sections: Provided, That no appeal shall be allowed from the appointment of a special administrator." This order was a final order because it terminated the right of the plaintiffs to the possession of the office. By section 781 of the Code of Civil Procedure the party aggrieved is required to file an application for an appeal within twenty days after the entry of the order. This the plaintiffs have done. The appellants are also required to execute a bond conditioned as provided in section 780. The plaintiffs allege that they have tendered the required bond. It was not suggested at the argument that the complaint was insufficient in not alleging more fully that the bond was a sufficient one; neither is this one of the grounds stated in the written demurrer. We of course have no power to control the judgment of the court below in passing upon the sufficiency of the bond, but the record in this case justifies us in saying that the appeal was denied entirely on' other grounds. We think that the complaint shows that.the plaintiffs did all the law required of them to perfect their appeal. While it is not stated in any one of the sections 779, 781, and 782 that the court must allow the appeal, yet section 780 says that "before an appeal is allowed" a bond shall be given. However this may be, it is in any event the duty of the court to approve the bond. That duty in this case was purely a ministerial one, holding as we do that the plaintiffs presented a bond sufficient as to sureties and amount. When such a bond is presented, it is the duty of the judge to approve it, and his refusal to do so brings the case within section 515 above cited. The claim of the defendant that the complaint is defective in not specifying the section of the Code which he has infringed can not be sustained. The Code requires (sec. 90) that the complaint contain "a brief statement of the facts constituting the cause of action." It is not necessary to state in the complaint the law applicable to the case. The case is not covered by section 700 of said Code cited by the defendants. The original proceeding for the removal of Dona Juana Moreno was not an "action commenced against her for money, debt, or damages." Her death can have no effect upon the case. It took place on the same day that the plaintiffs were appointed. If it preceded that appointment the question of her remove 1 disappeared, the guardianship became vacant, and the court had a right to fill it. If it followed the appointment, she had a right to appeal from the order removing her. But this right terminated with her death. The demurrer is overruled, and the defendant is given ten days from the date of this order in which to file his answer to the complaint. Arellano, C. J,, Torres, Cooper, Mapa, and McDonough, JJ., concur.

Johnson, J., did not sit in this case.

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G.R. No. 1448, August 22, 1903

SIMEON VILLA, PETITIONER, VS. HENRY T. ALLEN, CHIEF PHILIPPINES CONSTABULARY, RESPONDENT. D ECIS ION
COOPER, J.: On the 8th day of August, 1903, an application was made by Jos6 Alejandrino for the vssuance of a writ of habeas corpus in behalf of Simeon Villa directed to Gen. Henry T. Allen, Chief of the Philippines Constabulary. The application was granted by one of the members of this court. The writ was issued on the same day and made returnable on the 11th day of August. The case is now on hearing before this court in the exercise of its original jurisdiction. It was alleged in the application that Simeon Villa is illegally detained by the Chief of the Philippines Constabulary, under an order issued by the Court of First Instance of the Province of Isabela, on a charge of murder of one Piera, a lieutenant of the Spanish civil guard; that in the same case were accused Dimas Guzman, Isidro Guzman, Ventura Guzman, Jose Guzman, and Cayetano Perez; that said case was tried in said Court of First Instance on January 6, 1902, resulting in the acquittal of Dimas Guzman and Ventura Guzman, and condemning to life imprisonment Jose Guzman and Isidro Guzman; that the said case was appealed to the Supreme Court by the said Jose Guzman and Isidro Guzman, and that this court on the appeal conceded to them the benefits of the amnesty proclamation; that all the facts which related to the applicant and connecting him with the offense were contained in the said case in the Supreme Court, and that the same show that the commission of the act was due to internal political feuds or dissensions between Spaniards and Filipinos; that the applicant was an officer of the revolutionary army, and that Piera was an officer of the Spanish army, and was at the time of his death a prisoner of war within the power of the Filipinos; that there existed no other motive for the act than the political feuds and dissensions referred to, as was determined in the decision of the Supreme Court in said case of the United States against said Jose and Isidro Guzman; by reason of which he said Simeon Villa is entitled to the benefits of the amnesty proclamation, and has been pardoned, and that there no longer exists any crime for which lie can be proceeded against, and prays for a writ of habeas corpus, and that the applicant be set at liberty. The respondent made return to the writ of habeas corpus, stating that he held Simeon Villa in his custody by virtue of an order issued from the Court of First Instance of Isabela Province, P. I., by the Hon. J. H. Blount, judge of said court, a true copy of which warrant is attached to and made a part of the return j that said Simeon Villa was apprehended and arrested in obedience to said warrant or order of arrest, in the city of Manila, on August 6, 1903, and that he is held in custody awaiting opportunity for transportation to llagan, Isabela Province, for trial in compliance, with the requirements of said order; that the applicant has not yet been tried upon such charge. It was admitted at the hearing, by the Solicitor-General, that the appeal of Jose and Isidro Guzman to the Supreme Court was in a case in which the prisoner was jointly charged with Dimas Guzman, Isidro Guzman, Ventura Guzman, Jose Guzman, and Cayetano Perez, who are the same parties mentioned in the order of arrest, and that the Supreme Court, on the appeal

of the case by Jose and Isidro Guzman, granted appellants the benefits of the amnesty proclamation and acquitted them. It was further agreed that the evidence contained in the record on said appeal might be considered by the court at the hearing of the habeas corpus proceedings. There is no dispute that the prisoner, Simeon Villa, is held by process issued by the Court of First Instance of Isabela Province, nor that the court had jurisdiction to make the order and issue the process. Under the provisions of section 528 of the Code of Civil Procedure of 1901 the writ must be disallowed and the prisoner remanded to the custody of the relator, unless an exception is to be made in cases arising under the amnesty proclamation. The provisions of said section read as follows: "If it appears that the person alleged to be restrained of his liberty is in custody of an officer under process issued by a court or magistrate, or by virtue of a judgment or order of a court of record, and that the court or magistrate had jurisdiction to issue the process, render the judgment, or make the order, the writ shall not be allowed; or if the jurisdiction appear after the writ is allowed, the person shall not be discharged by reason of any informality or defect in the process, judgment, or order." It is contended by counsel for the petitioner that the amnesty proclamation completely obliterates the offense, and that there can be no trial after such proclamation; that it has the same effect on the case as if the general law punishing the offense had been repealed or annulled; and that the defendant should be discharged on habeas corpus without the formality of a regular trial under the information. The inquiry arises as to the effect and operation of the amnesty proclamation. This must be determined by a consideration of the terms of the proclamation itself, and the principles of the common law applicable to amnesty and pardon. The proclamation is, by its express terms, both one of pardon and amnesty. It extends to the offenses of treason or sedition, and all offenses political in their character, or which grew out of internal political feuds or dissensions between Filipinos and Spaniards or the Spanish authorities, or which resulted from internal political feuds or dissensions among the Filipinos themselves during either of the insurrections referred to in the proclamation. Amnesty commonly denotes the "general pardon to rebels for their treason and other high political offenses, or the forgiveness which one sovereign grants to the subjects of another, who have offended by some breach of the law of nations." (1 Bish. Cr. L., sec. 898.) The term "amnesty" belongs to international law, and is applied to rebellions which by their magnitude are properly within international law, but has no technical meaning in the common law. It is a synonym of oblivion, which in the English law is the synonym of pardon. (Bouvier, "Amnesty.") In so far as the proclamation extends to the offenses of treason and sedition, it may be regarded as an amnesty. But as to those4 offenses which have arisen out of internal political feuds and dissensions among the Filipinos themselves, such as the ordinary crimes of murder, robbery, arson, etc., the proclamation must be regarded in the nature of a pardon.

A pardon may be general, applying to all persons falling within a certain category, or it may be conceded to a single individual for an ordinary crime, in which latter case it is a special pardon, and is evidenced by a writing, the acceptance of which is necessary in order that it may become effectual. Where the pardoning power is vested in the legislature and is exercised by legislative grant, and is in the nature of a general amnesty for strictly political offenses, it has been considered in the nature of a public law, thus having the same effect on the case as if the general law punishing the offense had been repealed or annulled. (United States vs. Wilson, 7 Peters, 163.) It will not be necessary in this case to determine whether the defendant could be discharged on habeas corpus had he been charged in the information with treason or sedition. It is true that the proclamation as a public act would be judicially noticed by the court; but the information charges the petitioner with murder, and it can not be contended that the court can take judicial notice that the murder charged against the defendant grew out of political feuds and dissensions between Filipinos and Spaniards, or between Filipinos themselves. Where it becomes necessary to make such inquiry, the benefits of the proclamation must be obtained through the agency of the courts, in the regular course of the judicial proceeding by the ordinary method of trial. At the English common law, where the pardon is obtained before issue joined, it must be pleaded as other matters in confession and avoidance, under the particular jurisdiction. If after the issue joined, the pardon should be brought to the attention of the court in some manner suitable to the advanced stage of the proceedings. After conviction and before sentence, it was generally made in response to the question whether the accused had anything to say why sentence should not be pronounced; and when the case is on appeal, the pardon may be properly called to the attention of the appellate court either by the suggestion of the State's attorney that the defendant has been pardoned or by application of the person pardoned. (15 Enc. P. and P., 449.) At the ancient common law, pardon after conviction and sentence made it necessary to plead the pardon by suing out a writ of habeas corpus before a discharge could be secured. In America the practice is for the warden or keeper of the prison to discharge the prisoner upon presentation of a pardon. It would not be proper for the warden of the prison to attempt to determine the question as to whether the prisoner was entitled to discharge under the proclamation in question. Nor would it be proper for a court on habeas corpus to discharge him. For it is expressly provided in the proclamation that the pardon does not include such persons as have been heretofore finally convicted of the crimes of murder, rape, arson, or robbery, "but special application may be made to the proper authority for pardon of any person belonging to the exempted classes, and such clemency as is consistent with humanity and justice will be liberally extended." (Proclamation of the President, July 4, 1902.) If the defendant wishes to avail himself of the benefits of the amnesty proclamation, it will be necessary for him to plead this defense, and the evidence must disclose in this particular case that he is entitled to its benefits. It will not be sufficient to rely upon the decision of this court in the case of Jose and Isidro Guzman, in which the benefits of the amnesty proclamation were conceded to appellants. The defendant Villa did not participate in that trial and was not bound

by the proceedings of the Court of First Instance therein], nor would the Government be bound by the judgment in that case. As to him the case must be tried de novo . We think it is perfectly clear, from what has been said, that such trial should not take place before this court on a writ of habeas corpus. The prisoner must be remanded to the custody of the relator and transported, at the earliest opportunity, to Ilagan, Isabela Province, in compliance with the requirements of the, order of arrest issued by the Court of First Instance, and there held for trial upon the charge against him for the murder of Piera. It is so ordered and directed. The costs of this proceeding are adjudged against Jose Alejandrino, the applicant for the writ of habeas corpus. Arellano, C. J., Mapa and McDonough, JJ., concur. Willard, J., concurs in the result.

DISSENTING TORRES, J.: The attorney for the; petitioner Simeon Villa has asked that an order of habeas corpus issue for the purpose of obtaining Villa's liberty, upon the ground that he is at present confined by the police by virtue of a warrant issued by the, Court of First Instance of Isabela de Cagayan, upon an information tiled against the petitioner and others for murder. The records of ihis court, now on file in the clerk's office, show that by order of Villa, at that time a major commanding the revolutionary forces occupying the district of Isabela, the Peninsular Spaniard, Salvador Piera, a lieutenant in the Spanish army, was in 1898 taken from Aparri, where hi1 was held as a prisoner, to Ilagan, the capital of that district, and, according to the complaint, at the instigation of Dimas Guzman, owing to the hatred and resentment entertained by him and certain members of Iiis family against. Piera, the latter was illtreated and hung up and allowed to fall to the ground several times, until he finally died, his body being subsequently buried. The case was prosecuted in the absence of Simeon Villa, and at the instance of the other defendants, Isidoro and Jose Guzman, they were declared4 to be included in the amnesty of July 4, 1902, and, after taking the oath prescribed in the, amnesty proclamation, they were set at liberty and the case dismissed by an order of this court dated December 31 of the same year. It appears that the warrant of arrest upon which the police held the petitioner Villa was issued on October 10, 1901, at the time the said cause for murder was instituted. It also appears that upon this warrant the Guzmans, the other defendants, were arrested long ago. They having been found entitled to the benefits of the amnesty proclamation and the case having been dismissed, in accordance with the ordinary principles of procedure, the warrant of arrest should

be regarded as having lapsed, it having been issued a year before the amnesty and the dismissal of the cause. On this account it may be logically held that, by virtue of the amnesty proclamation and the decision of this court declaring the two defendants convicted in the court below to be entitled to its benefits, the said crime of murder no longer exists, and in consequence the former information can not now be in existence or presented again by the prosecuting attorney, nor, consequently, can the case be continued against Simeon Villa, who was at that time absent. The amnesty proclamation operates objectively with respect to the crime, and by virtue thereof the latter should be regarded as wiped out, pardoned, and forgotten. It is in this that an amnesty is distinguished from an ordinary pardon, which is more of a subjective character and solely affects the person pardoned, and is granted upon the supposition of the actual existence of the crime. A pardon is very different in its character and effect from an amnesty, which is much more favorable in every respect to those benefited thereby. The effects and legal consequences of an amnesty are entirely distinct from and can not be legally confused with those of a pardon. From the foregoing it necessarily follows that there is no legal ground for the detention of Villa, inasmuch as he is at the present time deprived of his liberty upon a warrant issued for a crime which, by means of the amnesty, the sovereign power lias seen fit to declare blotted out, pardoned, and forgotten; and therefore the warrant is no longer of effect, nor can it be executed as an incident to a prosecution which can no longer be continued or revived, as would ordinarily be the case with respect to crimes not included within the amnesty, or with respect to absent criminals rearrested. It can not be held that the Court of First Instance of Isabela has jurisdiction to determine the right of Major Villa to release, because when there is no crime in existence, as in the present case, no question of jurisdiction can be raised. Such a question can only be presented when there is a crime in existence susceptible of prosecution and punishment. Without the actual existence of some punishable act it is impossible to conceive of the existence of a criminal prosecution. Upon these grounds it is self-evident that the petitioner should be released on the writ of habeas corpus, without the necessity of remanding him to the Court of First Instance. In my opinion this court has ample authority to grant the relief prayed for, and there is no legal reason why the petitioner should be obliged to set up the defense of the amnesty in the extinguished action, the record of which is now in the Court of First Instance and which, for the reasons already stated, can not be revived either by the court on its own motion or by the prosecuting attorney. For the reasons set forth and upon the ground that the crime with which Simeon Villa is charged is included in tin1 amnesty proclamation, as held by this court in its decision of October 10, 1902, in the case of the United States vs. Isidro Guzman et al., I am of the opinion that, after taking the oath required by the amnesty proclamation, the petitioner, Simeon Villa, should be set at liberty and that this decision should be communicated to the judge of First Instance of Isabela, and to the Attorney-General, to the end that an entry of the result of this proceeding be made in the record of the case referred to.

OSJurist.org

G.R. No. 1449, November 30, 1903

VICENTE GOMEZ GARCIA ET. AL., PLAINTIFFS AND APPELLANTS, VS. JACINTA HIPOLITO ET AL., DEFENDANTS AND APPELLEES. D ECIS ION
WILLARD, J.: This is a motion to dismiss the bill of exceptions. Judgment was rendered for the defendants, on May 1, 1903. The plaintiffs were notified thereof on May 21. On May 28 they excepted to the judgment and presented a motion for a new trial. This motion was denied on July 23. On July 28 the plaintiffs presented their proposed bill of exceptions which, on August 5, was allowed and signed by the court. The term of the court at which the case was tried expired on May 30. 1. The first ground of the motion is, that the bill of exceptions was allowed after the time therefor had expired. Section 143 of the Code of Civil Procedure provides that the defeated party shall notify the judge before the ending of the term that lie "desires to prosecute a bill of exceptions." It is alleged by the appellees that such notice was not given in this case. No evidence was presented, however, at the hearing to prove this allegation. In the absence of such evidence, we can not presume that it was not done. The presumption would rather be to tmf contrary. And, in this case, it is strengthened by the fact that, when the appellees were notified of the presentation of the bill of exceptions on July 28, they made no objection to it on this ground, and by the further fact that the court allowed it on August 5 without suggesting that such allowance was improper for the reason stated. Within ten days after the notification above mentioned said section 143 requires the appellant to present to the judge his proposed bill of exceptions. There is nothing in the section which requires that this should be done during the term at which the case was tried. If the ten days should expire after the expiration of the term, the appellant would nevertheless have the undoubted right to present his proposed bill on the tenth day. It appears, however, that in this case the bill of exceptions "was not presented for more than six weeks after the term ended and, therefore, long after the expiration of ten days from the notification, assuming that such notice was given during the term. It is said that this term of ten days is not an extendible one, and that a bill of exceptions must in all cases be presented within that period. It' appears that, while the motion for a new trial was made on May 23, it was not decided until July 21, and the appellant claims that, as he must necessarily insert in his bill of exceptions his exception to the order denying the motion for a new trial, the ten days did not commence to run until such order was made. There is force in this suggestion, but we do not find it necessary to decide the question. The part of the section in question is as follows: "The party desiring to prosecute the bill of exceptions shall so inform the court at the time of the rendition of final judgment, or as soon thereafter as may be practicable and before the ending of the term of the court at which final judgment is rendered, and the judge shall enter a memorandum to that effect upon his minutes and order a like memorandum to be made by the clerk upon the docket of the court, among the other entries relating to the action. Within ten days after the entry of the

memorandum aforesaid, the excepting party shall cause to be presented to the judge a brief statement of the facts of the case sufficient to show the bearing of the rulings, orders, or judgments excepted to, and a specific statement of each ruling, order, or judgment that has been excepted to, for allowance by the judge. The judge shall thereupon, after reasonable notice to both parties and within five days from the presentation of the bill of exceptions to him, restate the facts if need be. * * *" The question is one of construction. Did the Commission intend to say that the parties might consent to or the judge order an extension of this period of ten days, or did they intend to have it read is if there had been inserted after the words "allowance by the judge" the following clause: "And the judge shall have no power for any cause whatever to extend this period of ten days, and any agreement of the parties to that effect shall be void?" It will be noticed that this period of ten days, as well as the subsequent period of five days, has to do with what may be called the mechanical part of the appeal, the preparation of the papers for transmission to, the Supreme Court. The rights of the parties as to the removal itself have already been fixed by the notice of the intention to prepare a bill of exceptions, which notice must be entered of record in the clerk's office. If the period for the performance of that act corresponds to the time for appeal, or for suing out a writ of error found in most other laws of American origin, it of course can not be extended by order of court or consent of parties. But that period is entirely distinct from this period of ten days allowed for preparing the papers, after the right to remove the case has been secured. It can not, therefore, be said that an extension of this time is an extension of the time to appeal. When we take into consideration the condition of things in the Archipelago at the time this law was adopted, it seems impossible to believe that the Commission intended to deprive the court and the parties of the power to extend this term. They must have known that in many cases it would be a physical impossibility to comply with it. In a case tried in Zambales, it might easily happen that the judge would close his term of court and depart for the Province of Union or Benguet during the running of the ten days, where it would be impossible for the appellant to reach him within that period. In fact, in view of the lack of means of easy and frequent communication between different parts of the Islands, a departure of a judge from one province to another, almost anywhere in the Archipelago except upon the line of railroad between Manila and Dagupan, would make it impossible for the appellant to reach him within ten days. In addition to this, even in Manila, it would probably happen, in a majority of cases, that the stenographer would not be able to furnish the appellant a transcript of his notes within ten days, or that the appellant would be unable to prepare the bill within that time. And, besides all this, there is no apparent reason why the parties should not have a right to agree that these papers might be presented in twenty days instead of ten. No one is interested except themselves, and no question of public policy is involved. We hold, therefore, that this period of ten days is not nonextendible and that it can be extended by the order of the court or the consent of the parties. In this case the judge did not, by an order made before the expiration of the ten days, extend the time. But statutes frequently confer upon courts the power to permit certain acts to be done after the time prescribed therefor has expired. There is the same reason for holding in this case that such power has been conferred as for holding that the statute gives the court power to enlarge the time. There would, in many cases, exist the same physical impossibility of securing such an order from the judge as in presenting to him the bill of exceptions. The judge,

by signing the bill of exceptions, on August 5, consented that the time should be extended. It moreover was stated in the written document presented by the appellant at the hearing, and not denied by the appellee, that the proposed bill of exceptions was served upon the appellee on July 28, and that he made no objection to its being allowed. This was a waiver by him of the objection that it had been presented too late. Authorities holding that orders of this kind must be made within the term have no bearing on this case, because, (1) as we have seen, this act of presenting the bill of exceptions need not be done within the term, and (2) the theory of the common law of England, that the court could only act within a term, has been entirely abolished by the provisions of section 53 of Act No. 136, which provides that "Courts of First Instance shall be always open, legal holidays and nonjudicial days excepted." At the common law, nothing can be done outside of the term unless the statute authorizes it. Under our law anything can be done outside of the term unless the statute prohibits it. 2. The appellees asked, also, that the bill of exceptions be dismissed because it did not contain all the evidence received at the trial. This allegation they proved by a certificate from the clerk of the court below. It appears, however, that the plaintiffs excepted to the judgment. This, under the repeated rulings of this court, enabled them to argue here the question as to whether the findings of fact stated by the judge in his decision, with the facts admitted by the pleadings, support the judgment which has been ordered. For the purposes of such exception, it was neither necessary nor proper to incorporate the evidence into the bill of exceptions. There being enough in the record to present this question, the appeal can not be dismissed on this ground. It appears, however, that the question whirl) the appellants chiefly desire to present is whether or not the findings of fact are supported by the evidence. As said by counsel for appellees in his argument here, this court can not determine this question unless it has before it. what the court below had before it when the decision was rendered. It must appear from the bill of exceptions, in some way, that it contains all the evidence bearing upon the point in dispute. The appellants say that when they prepared the bill of exceptions they included therein all the evidence then in the record, and, by a certificate of the clerk of the court below, they proved that the testimony of the witnesses, claimed by the appellees to be wanting, was delivered to said clerk on the 25th day of September by one of the lawyers for the appellees. We can not agree with counsel for the appellant in his claim that it was the duty of the appellees to have objected, on this ground, to the bill of exceptions before it was signed. Such would have been their duty had there been in the proposed bill a statement that it contained all the evidence. In the absence of such a statement, they were not bound to presume that the appellants proposed to pursue both their exception to the judgment and also their exception to the order denying their motion for a new trial. At the argument of this motion the appellant's lawyer did state that such was his intention. To enable this to be done it will be necessary to correct the record. Our power to do this is ample. Section 500 of the Code of Civil Procedure provides: "But no such dismissal shaH be made for purely formal defects not affecting the rights of the parties, nor for any defect which can be removed, and the Supreme Court shall give such reasonable time as may be necessary to remove such defect, if it can be removed. * * * Nor shall such dismissal be granted where, by an amendment to the bill of exceptions, which is hereby declared to be lawful and allowable,

and imperfections or omissions of necessary and proper allegations could be corrected from the record in the case." Section 501 is as follows: " Incomplete record, how corrected.If at any time when a case is called for trial, or during the trial, or afterwards, while the Supreme Court may have the same under consideration, it is discovered that the record is so incomplete that justice requires the case to be postponed until the record can be made complete, the court shall postpone the further consideration of the same and make such order as may be proper and necessary to complete the record, in the interests of justice. But the court may dismiss a bill of exceptions for failure of the excepting party within a reasonable time to comply with the orders made for the perfection of the bill of exceptions." Under these sections, the appellants have the right to complete the record by having incorporated into the bill of exceptions that part of the evidence which has been omitted. The motion of the appellees to dismiss the bill of exceptions is denied. The appellants are hereby allowed thirty days, from the date of this order, in which to file in this court a certified copy of all the evidence received at the trial of said cause which is not already embodied in the bill of exceptions, with a certificate from the judge of the court below that said additional evidence, together with the evidence already contained in the bill of exceptions, is all the evidence received at the trial of said cause. Upon the receipt of said copies, the clerk shall cause them to be printed at the expense of the appellants, distributed to the parties, and attached to the printed record. The time for tlie presentation of the appellant's brief shall comiiiwive to run from the term of such distribution. Arellano, C. J., Mapa and McDonough, JJ., concur.

DISSENTING JOHNSON, J., with whom concurs COOPER, J.: In this case judgment was rendered on the 1st day of May, 1903. The appellant was given notice of the judgment on the 21st day of May. On the 23d day of May the appellant moved for a new trial. The term of the court expired on the 5th day of June. The judge denied the motion for a new trial on the 23d day of July. On the 28th day of July the appellant presented his bill of exceptions. On the 5th day of August the judge signed said bill of exceptions. On the 30th day of September, 1903, the appellee made a motion in this court asking that the said bill of exceptions be dismissed, among others, for the following reasons, to wit: 1. That the appellant had not informed the court, before the ending of the term at which final judgment was rendered, "of his desire to prosecute a bill of exceptions." 2. That the bill of exceptions was presented to and allowed by the trial judge after the time fixed by the statute had elapsed.

Section 143 of the new Code of Civil Procedure provides how a bill of exceptions may be perfected. It provides the only method of perfecting an appeal in ordinary civil actions. Its provisions are as follows : "The party desiring to prosecute a bill of exceptions shall so inform the court at the time of the rendition of final judgment, or as soon thereafter as may be practicable and before the ending of the term of court at which final judgment is rendered. The judge shall enter a memorandum to that effect upon his minutes and order a like memorandum to be made upon the docket of the court among the other entries relating to the action. Within ten days after the entry of the memorandum aforesaid, the excepting party shall cause to be presented to the judge a brief statement of the facts of the case sufficient to show the bearing of the rulings, orders of judgment excepted to, and a specific statement of each ruling, order, or judgment that has been excepted to, for allowance by the judge. The judge shall thereupon, after reasonable notice to both parties and within five days from the presentation of the bill of exceptions to him, restate the facts if need be and the exceptions, so that the questions of law therein involved and their relevancy shall all be made clear, and when the bill of exceptions has been perfected and allowed by the judge, he shall certify that it has been so allowed and the bill of exceptions shall be filed with the other papers in the action and the same shall thereupon be transferred to the Supreme Court for determination of the questions of law involved." The preceding four conditions constitute the method of perfecting an appeal from the judgment of the Court of First Instance to the Supreme Court in ordinary civil actions. Each of these steps or provisions must be complied with in order to perfect the appeal. The bill of exceptions, when completed, must show on its face that this statute has been complied with. No presumption can import a fact not therein made expressly to appear. There is no statement or suggestion in the bill of exceptions presented in the above cause that the appellant at any time gave the court notice of his desire to prosecute a bill of exceptions. It is argued that no evidence was presented at the hearing to prove this allegation, and that in the absence of such proof we can not presume that it was not done. It is not the duty of this court to presume either that it was or was not done. The record must answer the question. The record fails to show that this notice was given. Nothing can be presumed which the record does not show. This failure on the part of the appellant to give this notice, unless he brings himself under some extraordinary circumstance, is fatal. No attempt is made here to explain or justify this failure. Section 143 of the New Code of Civil Procedure provides the method by which the Supreme Court obtains jurisdiction of ordinary civil causes. No other method is provided for by the code. The Supreme Court acquires no jurisdiction unless these provisions are complied with. They are jurisdictional requirements and therefore must appear of record. None of them can be presumed. The statute is mandatory in its terms, and the Supreme Court ought not to take jurisdiction of a cause unless there has been a compliance therewith. Its provisions are plain and easily complied with. The rule is well settled both under the decisions of the courts of the United States and of Spain, that when the time within which a notice of an appeal or an appeal shall be perfected is fixed by statute, it can not be extended by the court, and the appellate court obtains no jurisdiction of the cause if these conditions are complied with beyond the statutory period. The time within

which an appeal must be taken is fixed bv section 143 of the new Code of Civil Procedure, and the appeal must be taken within the time so designated. The Courts of First Instance have no authority to enlarge the time, nor can the parties extend it by agreement. If the appellant has failed to perfect his appeal within the time fixed by law, it is necessary for him to file a transcript in the appellate court with a verified petition showing the facts upon which he relies as excusing his failure to perfect his appeal within the statutory period. Upon proper notice to the adverse party the superior court may, under its general equitable powers, grant such relief as it may deem wise and proper under all the circumstances. The practice in such cases varies in different jurisdictions. These statutes limiting the time to appeal from the decision of courts below are mandatory and jurisdictional. (Dooling vs. Moore, 20 Cal., 141.) Unless an appeal (or notice of an appeal) is taken within the statutory period, the court has no jurisdiction and the appeal is void for all purposes and will be dismissed on motion of appellee. The courts can not waive nor extend these statutory provisions, except where the statute so expressly authorizes. (Gardner vs. Ingraham, 82 Ala., 339; Caillot vs. Deetken, 113 U. S., 215; Fitzgerald vs. Brandt, 36 Nebr., 683.) If the time to perfect an appeal, as fixed by the law, is found, under the conditions existing in this Archipelago, to be too short, then it is the duty of the legislature to amend the law. The courts have no authority to amend the laws. The only reason why the parties can not extend time is because the law fixes the time within which the appeal must be perfected. An extension of the time without authority would be void, and the appeal would be without effect. (Smith vs. Smith, 48 Mo. App., 618.) This was the rule under the Spanish Code of Civil Procedure. Article 365 of that code provided that the appeal must be taken in five days. The courts have repeatedly held, under that article, that this provision was mandatory or improrogable. Don Jose Maria Manresa, in his commentaries on the Code of Civil Procedure (yol. 2, pp. 164-172), says: "The terms of this article are nonextcndible, and the time runs from the day following the notification." Inasmuch as section 143 of the new Code of Civil Procedure provides the only method of perfecting an appeal in ordinary civil actions in the Philippines, the decisions of the courts in the United States on that question are germane. In the case of Muller vs. Ehlers (91 U. 8., 249), Waite, Chief Justice, said: "It does not appear that the bill of exceptions was filed, tendered for signature, or even prepared, before the adjournment of the court for the term at which the judgment was rendered. No notice teas given to the plaintiff of any intention on the part of the defendant to ash for the hill of exceptions either during the term or after. Upon the adjournment of the term, the parties were out of court and the litigation there was at an end. The order of the (trial) court, therefore, made at the next term, directing that the bill of exceptions be filed in the cause as of April 28, 1873 (the date of the judgment), was a nullity. For this reason the bill of exceptions, though returned here, can not be considered as a part of the record." Fuller, Chief Justice, in the cause of Hume vs. Bowie (148 U. S., 246), said, in discussing this same question: "The rule is unquestionably correctly laid down in Muller vs. Ehlers." Chief Justice Fuller, in the cause of the United States vs. Jones (149 U. S., 263), again said: "Judgment was rendered in this cause July 18, the writ of error mied out and allowed Juty 23, and the court adjourned for the term July 80. So far as is disclosed by the record, the bill of exceptions was not tendered to the judge or signed by him until October 7, and no order was entered extending the time for its presentation. The bill of exceptions was, therefore,

improvidcntly allowed," citing again Muller vs. Ehlers. (Note: The rules of the court in this case permitted the court to extend the time within which an appeal might be perfected.) Chief Justice Fuller again, in the cause of Morse vs. Anderson (1.50 U. S., 156), said: "The judgment is affirmed for want of a bill of exceptions seasonably allowed, upon the authority of Muller vs. Ehlers, Hume vs. Bowie, and other cases cited." Mr. Justice Shiras, in the case of Ward vs. Cochran (150 U. S., 597), said: "In the case of Muller vs. Ehlers this court held that, because the bill of exceptions had not been signed at or during the term at which the judgment was rendered, it could not be considered. The power to reduce exceptions taken at the trial to form and to have them signed and filed was, under ordinary circumstances, confined to a time not later than the term at which judgment was rendered. This, we think, is the true rule, and one to which there should be no exceptions, without an express order of the court during the term, or consent of the parties, save under very extraordinary circumstances. In the present case we find no order of the court, no consent of the parties, and no such circumstances as will justify a departure from this rule." (See, also, Eagle vs. Draper, 14 Blatchford, 334, Federal case No. 4234; Waldron vs. Waldron, 150 U. S., 361.) This is also the case in Tennessee. In the case of Stagg vs. State (13 Humphrey, Tenn., 372), Justice Green said in substance: "The supreme court can not notice as a part of the record a bill of exceptions taken and sealed by the court at a term subsequent to that at which the cause was tried, even if it be a special term, for the law authorizing special terms constitutes them distinct terms." To the same effect are the following Tennessee cases: Davis vs. Jones (3 Head, 603); Hill vs. Bowers (4 Heiskell, 272) ; Steel vs. Davis (5 Heiskell, 75); Garrett vs. Kogers (1 Heiskell, 321). In Sims vs. State (4 Lea, 357), Justice Cooper, said: "The settled rule in this State is that the bill of exceptions must be reduced to writing and signed during the term, nor can it be signed afterwards, although the signature was omitted by an inadvertence on the part of the judge." In Vermont the statute (sec. 1626, compiled laws of 1894) provides that "exceptions to the opinion of the court shall be signed by the presiding judge and filed with the clerk within thirty days after the rising of the court." In commenting upon this statutory provision, Redfield, Chief Justice, said: "If exceptions taken in the county court are not filed in the clerk's office within thirty days from the rising of the court, as required by the statute, they can not be entertained or considered in the supreme court. If they are not actually filed within the thirty days, and if there is no fraud, misconduct, or agreement of the opposite party respecting them, they can not be thereafter filed nunc pro tunc , as of the date within thirty days." (Nixon vs. Phelps, 29 Vt., 196; Higbee vs. Sutton, 14 Vt., 555.) The code of Mississippi (edition of Thompson, Dillard & Campbell, 1892, sec. 735) provides that: "Bills of exception to any ruling of the court must be tendered and signed during the trial or during the term of the court." Justice Chalmers, in the case of Allen vs. Levy (59 Miss., 613), said: "Section 1718 of the Code of 1880 requires that such bills of exception must be made out and presented to the judge during the term or within ten days after adjournment, and the court has no power of its own motion to grant a longer time." In Massachusetts there is a similar statute, and the rule there is that it must be strictly complied with. In the case of Doeherty vs. Lincoln (114 Mass., 362), Gray, Chief Justice (later a member of the Supreme Court of the United States), said: "The provisions of this statute

requiring the exceptions to be filed with the clerk as well as presented to the court within the time prescribed are intended for the benefit of the adverse party; and he is entitled to insist upon due proof of a strict compliance with them , unless lie has done something to waive it. In the present case therv. is no evidence of such waiver, and the bill of exceptions does not appear by the docket or tiles of the court below to have been filed with the clerk or presented to the judge within the time prescribed. It must, therefore, be dismissed." (See, also, Pease vs. Whitney, 4 Mass., 507; Conway vs. Callahan, 121 Mass., 165.) In California there is a similar statute, with the same decisions by the courts. Section 1365 the statutes of Texas provides that: "It shall be the duty of the party taking any bill of exceptions to reduce the same to writing and present the same to the judge for his allowance and signaturiB during the term and within ten days after the conclusion of the trial." The courts of that State have repeatedly held that the terms of this statute must be strictly complied with. (Farrar vs. Bates, 55 Tex., 193; Blum vs. Schram, 58 Tex., 524; Tex., etc., Ky. Co. vs. McAllister, 59 Tex., 349.) The rule laid down in the above cases of Muller vs. Elders, Michigan Bank vs. Eldred, and Hume vs. Bowie is quoted and approved in the case of New York, etc., Co. vs. Hyde (56 Federal Reporter, 188). See, also, Reliable Incubator Company vs. Stahl (102 Federal Rep., 590.) This rule prevails also in Minnesota. Gilfillan, Chief Justice, in the case of Burns vs. Phinney (53 Minn., 431), said: "After the time to appeal has expired, there is no authority in the district court nor in this court to give a party a right to appeal after the right given him by the statute has elapsed by his failure to exercise it." The same rule is enforced in Kentucky. See Johnson vs. Stevens (95 Ky., 128). The same rule prevails in Ohio, Illinois, Iowa, Colorado, and Indiana. (Hicks vs. Person, 19 Ohio, 426; Kinsey vs. Satterthwaite, 88 Indiana, 344; Wabash, etc., Ry. Co. vs. People, 106 111., 152; 43 Pacific Rep., Colo., 903.) The bill of exceptions under this section constitutes the pleaamgs or statement of facts through which the issue is presented in the Supreme Court, The Supreme Court must rely upon the bill of exceptions for the statement of facts upon which to base its decision. The pleadings must show on their face that the court has jurisdiction. It is urged that appellees waived their right to object to this bill of exceptions on the grounds urged here, because they did not make them when they were notified of the presentation of the bill of exceptions on July 28. They had a right to assume, for all purposes at that time, that the bill of exceptions was presented within the requirements of the law. Their mistake in that respect, however, did not alter the fact that during the term at which judgment was rendered no notice teas given to the judge or to the opposite parties by the appellants of their desire to present a bill of exceptions or to prosecute an appeal. The failure of the appellees to interpose an objection on that ground, at that time, did not place the appellant in a worse position. There is nothing here which shows or tends to show, even remotely, on the part of the appellee a purpose to waive his objection to the bill of exceptions. The lower courts have no authority bv statute, or otherwise, to waive the provisions of section 143 of the Code of Civil Procedure. Neither has this court the right to waive1 the provisions of the said section. This court may, however, under very extraordinary circumstances, grant relief. These extraordinary circumstances must be made expressly to appear to the satisfaction of this

court. These extraordinary circumstances must all be conditions over which the appellant has no control, and, even then, he must have done all within his power to comply with the provisions of the law before the court will grant him relief. When the legislature provides by a plain statute that a particular thing shall be done in a particular way, it hardly seems necessary to ask the question whether or not they did not intend to say also that it might be done or might not be done in some other way, if some other way happened to suit the whim or convenience of some person or class of persons. It is hardly necessary in a statute so plain as section 143 of the new Code of Civil Procedure to read into it a provision which does not there exist. Judge Elliot in his work on Appellate Procedure states "that the bill of exceptions must be filed within the time limited; the time can not be extended (sees. 128, 295, and 800). If a party may omit one step or delay one step until after the expiration of the time, he may omit or delay another, and another. To establish a rule which would tolerate such a practice would destroy all certainty and uniformity and build up a deformed and distorted system of mere arbitrary instances. A worse system than that or one more directly opposed to sound principle can scarcely be imagined." A strict compliance with section 143 of the Code of Civil Procedure is necessary to give this court jurisdiction. Neither this court nor the Court of First Instance has authority to extend the provisions of this statute. It may be said this rule is technical. Be it so. The legislative branch of the Government has authority over that subject. The judicial branch of the Government has no right or authority to treat as technical, and therefore disregard it, a plain statutory provision. It has been suggested that the legislature in enacting section 143 of the Code of Civil Procedure "must have known tbat in many cases it would be a physical impossibility to comply with its terms." The legislative branch of the Government in these Islands lias considered the conditions here and has legislated subsequently upon the same subject. Act No. 867 of the United States Philippine Commission of September 5, 1903, provides as follows: "SEC. 14. Time within which notice of appeal must be filed in cases under previous section.In every case in which judgment is entered in the Court of First Instance of a province by direction of a judge not in the province at the time, under the provisions of section 13 hereof, it shall be the duty of the clerk of the court at once to notify the parties to the suit, or their counsel, of the nature of the judgment, by personal notice in writing or registered mail, and in such cases the time within which the parties shall be required to except to the said judgment, and to file notice of their desire to prosecute their bill of exceptions to the judgment, shall be extended to twenty days from the day of receipt of the notice from the clerk." Section 13 of the said act, to which reference is made above, provides that "whenever a judge of the Court of First Instance or a justice of the Supreme Court shall hold a session, special or regular, of the Court of First Instance of any province and shall thereafter leave the province in which the court was held without having entered judgment in all the cases which were heard at such session, it shall be lawful for him if the case was heard and duly argued, or an opportunity given for an argument to the parties and their counsel, in the proper province, to prepare his

judgment after he lias left the province and send the same back, properly signed, to the clerk of the court, to be entered in the court as of the day when the same was received by the clerk in the same manner as if the judge had been present in court to direct the entry of the judgment." Had the legislative branch of the Government considered that the time mentioned in section 143 was extendible, then why was it necessary for it to enact the provisions found in said section 14? If, as it has been contended, the time mentioned in section 143 is extendible by the courts, then certainly it was unnecessary for the legislative branch to enact further legislation upon that question. From the foregoing provisions it appears that if there are impossible conditions existing here, the legislative branch of this Government will in due time take notice of the same and will enact such legislation as will be necessary to correct the evil. The judicial branch of the Government is governed by the laws enacted. There is also another very serious objection to the proceedings in this case, and that is, the fact that the judge decided the motion for a new trial after the close of the term in which the judgment was made final. This is not authorized by the law. Motions for a new trial must be decided during the term in which the judgments become final. (See sec. 143 of Code of Civil Procedure.) If this practice is to be permitted, vexatious delays will be worked on parties in courts below. These rules are made in order that successful parties may not be defeated by mere delay. If this court may extend the time one day or a month, it may extend it indefinitely. Such a doctrine would have the effect, finally, of forever defeating the final settlement of causesthe very object of the law. If this court may extend the terms of the statutes, the Court of First Instance may, and then instead of having a uniform rule we would have a distorted practice1 where each case depended upon the particular notion of the particular judge a practice of mere instances. It is argued that the Courts of First Instance are always open. If that is so, then what did the Commission mean in providing different terms of the court? What is meant by the phrase in section 143 "and before the ending of the term of the court," etc.? If the courts are always open and terms never close, then it would be safe for the defeated party to wait "forever and a day" before taking steps to appeal. We think that provision of the organic law has a very different signification. There is another objection to that part of the order or decision of this court, by which certain papers are directed to be sent up to this court to be incorporated as a part of the bill of exceptions. A bill of exceptions can not be amended except in accordance with the provisions of section 500 of the Code of Civil Procedure. This section provides that a dismissal shall not be granted "whereby an amendment to the bill of exceptions which is hereby declared to be lawful and allowable, any imperfections or omissions of necessary and proper allegations could be corrected from the record in the case." This section is a literal copy of the provisions contained in section 5567 of the Code of Georgia. It has been held by the supreme court of that State in construing this provision that "record in the case" means record as contained in transcript sent up and duly certified by the clerk (79 Ga., 210). But even if the word "record" is construed to mean the record of the case in the Court of First Instance, and it is held that the papers which have been directed to be sent up to this court are, in fact, a part of the record of the Court of First Instance, still it is not contended that these papers were made a part of the bill of exceptions by the trial judge who approved it.

It is necessary that action should be taken in the Court of First Instance, by motion, to amend the bill of exceptions and this application must be made to the judge of the Court of First Instance who tried the case and whose province it is to make up the bill of exceptions aiid approve the same. (Elliot's App. Pro., 825.) Nor can the provisions of section 501 of the Code of Civil Procedure be invoked as authorizing the amendment of the bill of exceptions by this court. This section provides the mode for correcting an "incomplete" record and is to the effect that if it is discovered that the record is so incomplete that justice requires the case to be postponed until the record can be made complete, the court shall postpone the further consideration of the same and make such order as may be proper and necessary to complete the record in the interests of justice. We do not understand by this provision of the law that it is contemplated that this court, when it finds that the bill of exceptions as prepared in the Court of First Instance is defective, shall postpone the further consideration of the case and make the amendment here, because all amendments to the record in the lower court must be made by that court. The higher court can not make an original entry for the trial court, nor perform an act which it is the right and duty of the trial court to perform. (Elliot's App. Pro., 205.) This section 501 refers to the case where the record upon which the case is being tried in the Supreme Court is "incomplete," by reason of the fact that the bill of exceptions as signed and approved by the Court of First Instance is different and other than that of the record on which the case is being tried in the Supreme Court, and whenever this appears to be the case the court will, within the language of the statute, "complete the record." The remedy here provided for is known in American practice as the suggestion of diminution of the record and prevails in the practice of these courts. The section is taken almost literally from section 5575 of the Code of Georgia; and the citations of the decisions of the courts of that State, which are contained in the notes to this section, show that such was the purpose of the section. For instance, it has been held by the courts of that State, in construing this section, that where there is "no judgment appearing in the record, the case will be delayed until the same is sent up." (65 Ga., 600.) And where a motion for a new trial is material, and is referred to in the bill of exceptions not sent up, a dismissal follows if no time is asked to perfect the bill of exceptions. (74 Ga., 36.) The motion to dismiss the bill of exceptions should be granted. Torres, J., did not sit in this case.

OSJurist.org

G.R. No. 1455, October 29, 1903

IN THE MATTER OF THE APPLICATION OF BANK STANLEY ALLEN FOR A WRIT OF HABEAS CORPUS. D ECIS ION
MCDONOUGH, J.: The petitioner, Frank Stanley Allen, who is an alien, claims that he is unlawfully detained and restrained of his liberty in Manila, P. I., by W. Morgan Shuster, as Collector of Customs for the Philippine Archipelago, who threatens to deport the petitioner from the Islands for the reason that said Collector claims that the petitioner is a prohibited alien contract laborer whose importation is forbidden by the act of Congress approved March 3, 1903, entitled "An act to regulate the immigration of aliens into the United States." The question as to whether the petitioner is or is not within the class of persons excluded by that act is not raised in this stage of the proceedings, and so the only question to be determined is this: Has the Collector of Customs for the Philippine Archipelago lawful authority to execute, or cause to be executed, so much of said act of Congress as provides for the detention and deportation of prohibited aliens? The petitioner insists that, inasmuch as by said act of Congress it is provided that for the "purpose of this act the words 'United States' as used in the title as well as in the various sections of this act," shall be construed to mean the United States and any waters, territory, or other place now subject to the jurisdiction thereof; and that, as by section 22 of the act the Commissioner-General of Immigration, under the supervision and direction of the Secretary of the Treasury of the United States, is charged with the administration of all laws relating to the immigration of aliens into the United States, and is required to establish rules and regulations relating thereto, the .said Collector of Customs is without jurisdiction to act in the premises, as he has not been authorized to execute the provisions of the law by the Secretary of the Treasury, or by the Commissioner-General of Immigration, or by act of Congress. Attention is also called by the petitioner to section 24 of said act of Congress, which provides for the appointment of immigration inspectors by the Secretary of the Treasury upon the recommendation of the Commissioner-General of Immigration, in accordance with the civilservice rules and regulations in the act of June 16, 1883. There is very little that is new legislation in this act of Congress, approved March 3, 1903. In fact, almost all the provisions contained in it were in force prior to that date, not only in the United States but also in these Islands. The principal changes made in the law by this act consist of an enlargement of the prohibited classes so as to add to the former list persons who have been insane within five years, those who had two or more attacks of insanity, anarchists, and those who believe in or advocate the overthrow by force or violence of the Government of the United States, or of all government, or all forms of law, or in the assassination of public officials. In fact, with few exceptions, this act is a compilation and reenactment of the immigration laws passed by Congress from the year 1875 down to the date of the passage of the act.

And so, to properly determine the intention of Congress, and to interpret the effect of the application of the section of this law extending its provisions to these Islands, it is necessary to look into the laws, rules, and regulations in force here before the approval of this law, and to ascertain by what authorities these were administered in the Philippine Islands. It may be well, however, first to state that the authority of the President of the United States, as Commander in Chief of the Army and Navy, to govern conquered territory, was limited only by the law and usages of war until Congress took action. It was said in the case of New Orleans vs. New York Mail Steamship Company (20 Wall., 387-394) that "the conquering power has the right to displace the preexisting authority and to assume to such extent as may seem proper the exercise by itself of all the powers and functions of government. It may appoint all the necessary officers and clothe them with designated powers, larger or smaller, according to its pleasure. It may do anything necessary to strengthen itself and weaken the enemy." This right to administer the government, from the necessities of the case, continued in the military commander, after the ratification of the treaty of peace with Spain and until Congress shall provide otherwise. (Dooly vs. United States, 182 U. S., 222.) By that treaty these Islands became territory appurtenant to the United States, but not an integral part of the United States. The mere annexation has not the effect of incorporating the Islands into the United States. So the civil government of the United States can not extend immediately, and of its own force, over territory acquired by war, even when possession is confirmed by treaty, but such territory must necessarily, in the first instance, be governed by the military power under the control of the President as Commander in Chief, until civil government is put in operation by the appropriate political department, at such time and in such degree as the department may determine. (Downes vs. Bidwell, 182 U. S., 244.) The President speaks and acts through the heads of the Departments in reference to the business committed to them. (Wilcox vs. Jackson, 13 Pet., U. S., 498.) Pursuant to this authority, on the 14th day of April, 1899, the War Department issued what is known as circular 'No. 13, signed by the Acting Secretary of War, in which it was stated that "the law and regulations governing immigration to the United States are hereby declared to be in effect in the territory under government of the military forces of the United States, and collectors of customs are directed to enforce said laws and regulations until the establishment of immigration stations in the said territory. * * *" On the 6th day of June, 1899, the Acting Secretary of War issued an order in which he stated that, in accordance with the provisions of circular No. 13, he proclaimed, published, and applied to the Philippine Islands immigration regulations for the information and guidance of all concerned. These regulations briefly required the enforcement of all the acts of Congress relating to immigration, passed prior to June 6, 1899, and the collectors of customs of the Islands were charged with the execution of the immigration and labor laws; with the removal and examination of immigrants; with the keeping of a record of the prohibited classes; provision was made for private examinations and for the presence of counsel; for appeals from the decisions of inspectors or collectors of customs to the Collector of Customs for the Archipelago; for the expense of keeping prohibited persons; for the deportation of rejected immigrants; for

the listing of immigrants by ship's masters, and for penalties for failure to deliver lists to the Collector. Article III of these regulations is as follows: "Collectors of customs are charged, within their respective districts, with the execution of the laws pertaining to immigration, and all importation of laborers under contract or agreement to perform labor in the Philippine Islands. They will employ all customs, immigration, and other officers assigned to them for duty in the enforcement of the immigration acts; and all such officers are hereby designated and authorized to act as immigration officers ." Pursuant to the requirements of these regulations and the authority vested in him by them, ,and by circular No. 13, the Collector of Customs for the Philippine Archipelago, on December 31, 1902, issued circular No. 74, by which he notified all customs collectors that those regulations were to be enforced, as well as the acts of Congress relating to immigration, copies of- which were sent out with the instructions of the Insular Collector of Customs. Among the laws enumerated and sent by him, which were to be enforced in these Islands by the collectors of customs, he specified the following: The acts approved March 3, 1875; August 3, 1882; June 26, 1884; February 26, 1885; chapter 551 of Laws of 1891; chapters 114 and 206, Laws of 1893; and the act approved June 30, 1896, which changed the title of the Superintendent of Immigration to that of Commissioner-General of Immigration, and vested in him, under the Secretary of the Treasury, the administration of the alien contract-labor laws, and the Chinese exclusion act approved June 6, 1900. So that, at the very time Congress passed the immigration law, on March 3, 1903, all these existing laws were enforced here, not under the supervision and direction of the Secretary of the Treasury and the Commissioner-General of Immigration, but by the collectors of customs, their inspectors and immigration officers, with the right of appeal to the Insular Collector, under the supervision and direction of the Secretary of War and the Commissioners of the Philippine Islands. The Chinese exclusion act was also administered and enforced by the collectors of customs of the Islands and their immigration officers, and it continues to be so enforced by them, although by the act of Congress approved June 6, 1900, the Commissioner-General of Immigration is charged with the enforcement of that law, under the supervision of the Secretary of the Treasury, and although by the provisions of the act of Congress approved April 29, 1902, the Chinese exclusion law is made applicable to the Philippine Islands; and yet the Secretary of the Treasury and the Commissioner-General of Immigration seem to have acquiesced in such administration of that law by the collectors of customs of the Islands and their officials, for no other immigration inspectors have been appointed by them, or either of them, to serve in the Philippines. In addition to the power and authority conferred on collectors of customs by the Secretary of War, to administer the immigration laws, the Philippine Commission, in the Customs Administrative Act, passed February 6, 1902, by section 3, subdivision 9, of chapter 1, made it the duty of the customs service to execute the laws relating to immigration; and by section 19, subdivision 1, of chapter 2 of said act, made it the duty of the Insular Collector to make and promulgate general rules and regulations not inconsistent with the law, and subject to the

approval of the Secretary of Finance and Justice, directing the manner of executing the customs law and laws relating to commerce and immigration. The Commission also, by section 16 of Act No. 367, made provision for the appointment of one chief of division of class 5, "who shall be in charge of the immigration division , for which the following employees are authorized: One clerk of class 7; one immigration inspector of class 8; two immigration inspectors of class 9; one Chinese interpreter of Class D." From the time the United States forces first took possession of these Islands down to the present time, the President of the United States appears to have exercised such powers as he possessed and as it was found necessary to exercise, as Commander in Chief of the Army and Navy, in the Islands, through the War Department and through the Secretary of War, and not through the Secretary of the Treasury. In the instructions of the President to the Philippine Commission (see Off. Gaz. Jan. 1, 1903, p. 29) [1] transmitted by the Secretary of War April 7, 1900, he stated that "the transfer of authority from the military commanders to the civil officers will be gradual and will occupy a considerable time. * * * The Commission will, therefore, report to the Secretary of War, and all their acts will be subject to his approval and control.""The authority to exercise," he said, "subject to my approval, through tne Secretary of War, that part of the power of government in the Philippine Islands which is of a legislative nature, is to be transferred from the Military Governor of the Islands to this Commission to be thereafter exercised' by them * * * until the establishment of the civil central government for the Islands. * * *" By the act of Congress approved July 1, 1902, the action of the President in creating the Philippine Commission to exercise the powers of government to the extent and in the manner and form and subject to the regulation and control set forth in the instructions of the President to the Commission, and the action of the Commission, on September 6, 1901, in organizing the Departments of Finance and Justice (including a Bureau of Immigration), of the Interior, of Commerce and Police, and of Education, was approved, ratified, and confirmed, and it was enacted that "until otherwise provided by law, the said Islands shall continue to be governed as thereby and herein provided." Section 2 of said act of Congress ratified and confirmed the action of the President theretofore taken by virtue of the authority vested in him as Commander in Chief of the Army and Navy, as set forth in his order of July 12, 1898, whereby a tariff of duties and taxes, as set forth by said order, was levied and collected at all ports in the Philippine Islands, together with subsequent amendments of said order; and also the action of the authorities of the Philippine Islands, taken in accordance with the provisions of said order. Section 3 of said act authorized the President during such time as and whenever the sovereignty and authority of the United States encountered armed resistance in the Philippine Islands, until otherwise provided by Congress, to continue to regulate and control commercial intercourse with said Islands by such rules and Regulations as he in his discretion deemed most conducive to the public interest and the general welfare. By section 86 of said act it is provided that all laws passed by the Government of the Philippine Islands shall be reported to Congress, which reserved the power to annul the same; and the Commission is directed to make annual report of all its receipts and expenditures to the Secretary of War.

By section 87 of said act it is provided that the Division of Ins-ular Affairs of the War Department, organized by the Secretary of War, is continued until otherwise provided. The business assigned to said Bureau embraced all matters pertaining to civil government in the insular possessions of the United States, subject to the jurisdiction of the War Department, and the Secretary of War is authorized to detail an officer of the Army whom he may consider specially well qualified to act under the authority of the Secretary of War as Chief of said Bureau. Much weight is also to be given to what is known as the Spooner amendment of March 2, 1901, providing that "all military, civil, and judicial powers necessary to govern the Philippine Islands * * * shall, until otherwise provided by Congress, be vested in such person and persons and shall be exercised in such manner as the President of the United States shall direct, for the establishment of civil government and for maintaining and protecting the inhabitants of said Islands in the free enjoyment of their liberty, property, and religion." It thus appeals that Congress expressly authorized the President to control the commercial intercourse with the Islands by such rules as he might deem most conducive to the public interests; that that body ratified his action in creating the Commission, authorizing it to exercise powers of government to the extent and in the manner and form and subject to the control set forth in his instructions, which instructions made all their acts subject to the approval of the Secretary of War; that Congress ratified the acts of the Commission in organizing all of its departments of government, including the Immigration Bureau; that Congress also required the Commission to make report annually of all" its receipts and expenditures, not to the Secretary of the Treasury but to the Secretary of War; and finally made provision for the establishment of a Bureau of Insular Affairs in the War Department, the business of which embraces all matters pertaining to civil government in the insular possessions of the United States, subject to the jurisdiction of the War Department; the Chief of which Bureau was to be appointed by the Secretary of War and under his authority. It is difficult, if not impossible, to consider the foregoing action taken by the President and the Secretary of War, to read the acts of Congress and the acts of the Philippine Commission referred to above, as well as the orders, rules, regulations, and circulars relating to immigration, without reaching the conclusion that the whole administration of affairs in these Islands, vested in the Executive, had been exercised down to March 3, 1903, by the President personally or through the War Department and the Secretary of War, or the Commission. Congress was, of course, aware of this exercise of power and authority when the immigration laws were revised on that date, and was aware that these immigration laws had been executed in the Islands under the authority and supervision of the Secretary of War, the Philippine Commission, and that immigration inspectors had been appointed pursuant to such authority. Did Congress, then, by reenacting the former provisions of law providing for the enforcement of these immigration laws in the United States by the Commissioner-General of Immigration, under the supervision of the Secretary of the Treasury, by providing how immigration inspectors should be thereafter appointed and by making the act applicable to these Islands, intend, ipso facto, and at that very instant, to transfer the control and supervision of immigration to the Treasury Department and authorize said Commissioner-General to also appoint immigration inspectors for the Philippines, and to immediately annul all the authority of the existing collectors of customs of the Islands and their immigration inspectors to execute the immigration laws? In promulgating this act of Congress in these Islands, Governor Taft stated that it had been decided by the legal adviser of the Secretary of War that while this law, in its restrictions upon

the admission of aliens into the United States, applies to the Philippines, the provisions therein made for the enforcement of the law by the Secretary of the Treasury Department of the United States and the Commissioner-General of Immigration do not apply here, and that the new immigration law should be enforced in the same manner in these Islands as the previous law on the same subject was enforced - that is, through the Collector of Customs and his subordinate officers. The Secretary of the Treasury must also have given a similar construction of this law, otherwise he would, without doubt, have appointed immigration inspectors and established immigration stations in the Islands long ago - in fact, as far back as April 29, 1902, when the Chinese exclusion act was made applicable to the Philippines, he being then charged with its enforcement. It follows that these two Departments of the Government, the two Departments concerned in the enforcement of the immigration and exclusion laws, have held that the duty of administering these laws in the Philippines was to be continued in the customs department of the Islands, and by its immigration inspectors. Much weight is always given by courts to the contemporaneous exposition of statutes, and the construction of the departments affected by an act may be resorted to in determining the meaning, scope, and intent of the statute. (Matter of Breslin, 45 Hun., N. Y., 210.) "The principle that the contemporaneous construction of a statute by the executive officers of the government, whose duty it is to execute it, is entitled to great respect, and should ordinarily control the construction, of the statute by the courts, is so firmly embedded in our jurisprudence that no authorities need be cited to support it." (Pennoyer vs. McConnaughy, 140 U. S. Sup. Ct. Rep., 363.) It is objected, however, by the petitioner to this view that a departmental construction of a statute will not be followed by the courts when it is clearly erroneous, and that it is only in cases of doubt that the construction given to an act by the Department becomes material. The answer to that statement is that the construction given to the act under consideration by the Departments is not clearly erroneous. On the contrary, to give it the con- struction contended for by the petitioner would be to disregard the expressed authority of the President of the United States, other acts of Congress, the rules, orders, and regulations of the War Department, and. the acts of the Commission. In fact, it would amount to holding that every prohibited Chinaman turned back since April 29, 1902, was turned back unlawfully; and that every contract laborer, insane person, person afflicted with loathsome or contagious disease, convict, prostitute, pauper, polygamist, anarchist, and nihilist excluded from the Islands after March 3, 1903, was excluded wrongfully and without authority on the part of collectors of customs. Such a construction would lead to the conclusion that there is now no one in the Islands having authority to enforce the immigration laws or the Chinese exclusion law, and would lead to making null and void the very object of the act itself - the exclusion of certain objectionable persons. Such a strict construction, a construction which would result in great injustice to the Government, should not be given to the law, and such a construction is not favored by courts. In the case of the United States vs. Kirby (7 Wall., 482) it was said by the Supreme Court of the United States that "all laws should receive a sensible construction. General terms should be so limited in their application as not to lead to injustice, oppression, or an absurd.consequence.

It will always, therefore, be presumed that the legislature intended exceptions to its language which would avoid results of this character. The reason of the law should prevail in such cases over the letter." On its face this act of Congress, approved March 3,1903, bears evidence that every line and every section of it were not intended to apply to these Islands. In fact, the application of the act to the Islands seems to have been an afterthought on the part of Congress, as was section 39, prohibiting the sale of intoxicating liquors in the Capitol building of the United States. The very title of the act is "An act to regulate the immigration of aliens into the United States." Every section of it down to section 33 shows plainly that it was originally drafted for application and enforcement in the United States only, but when that section was inserted it evidently became the purpose to apply the prohibitive sections and remedial provisions of the act to the Philippines, leaving the administration of the law in the Islands as it was before; for it is plain that the Commissioner-General' of Immigration is not charged with the administration of all of this act. The provision of section 22 of the law to the effect that the Commissioner-General shall have charge of the administration of laws relating to the immigration of aliens into the United States evidently does not confer upon him authority to collect $2 for each alien, which is to be paid to collectors of customs under section 1; nor to control district attorneys in prosecuting suits under section 5; nor to direct circuit and district judges of the United States under section 29; nor interfere Avith the naturalization of aliens under section 39; and in fact that part of the act relating t0 naturalization can not be applied here at all; nor to enforce the liquor law in the Capitol under section 34. So that even if the petitioner's allegations come within the letter of the statute, they are not within the statute unless they are within the intention of the makers. Congress surely could not have intended to require this law to be enforced in the Philippines and at the same time make no provision for its enforcement here, even for a single day; and yet if the petitioner's contention be correct, that it could not have been enforced here until immigration inspectors had been appointed by the Secretary of the Treasury to administer the law, the conclusion is inevitable that from twenty-five to thirty or. forty days must have expired after the passage of the act before such inspectors could have arrived in the Islands from the United States, and that during the interim the law could not be enforced here. But it may be answered that the Secretary of the Treasury could appoint men here by a cable notification. Waiving the question of the legality of such an appointment, the reply is that the Secretary has no authority to make appointments other than in accordance with the civil-service laws and rules, not of the Philippines but of the United States. It is provided by section 24 of this act that "immigration inspectors and other immigration officers, clerks, and employees shall hereafter be appointed and their compensation fixed and raised or decreased, from time to time, by the Secretary of the Treasury, upon the recommendation of the Commissioner-General of Immigration, and in accordance tvith the provisions of the civil-service act of January 16,1883." This civil-service law makes provision for open, competitive examinations for testing th6 fitness of applicants for the public service, and for their classification. It also provides that all the offices, places, and employments so arranged in classes shall be

filled by selection, according to the grade, from among those graded highest as the result of such competitive examination. So that immigration inspectors would have to be selected in the United States and sent out here under the provisions of this act. It follows, then, that to give this act a literal construction, such as the court is asked to give it, is to hold that Congress meant to leave the ports of these Islands open and free of access to all the objectionable and prohibited classes mentioned in the act for a period of at least a month, and for such further period as the Secretary of the Treasury might see fit to remain inactive. Injustice may be done to a government as well as to individuals, and it is the duty of courts in interpreting statutes to so construe them, if possible, as to do no one injustice. In the case of Haydenfeldt vs. Daney Gold Mining Company (93 U. S., 634-638) it was said: "If a literal interpretation of any part of it [a statute] would operate unjustly or lead to absurd results, or be contrary to the evident meaning of the act taken as a whole, it should be rejected." A noted case decided by the Supreme Court of the United States June 1, 1903 (The Territory of Hawaii vs. Osaki Mankichi), seems to be in point. The petitioner in that case was tried on an information by the Attorney-General instead of an indictment by a grand jury. The bill was found May 14, 1899. The Hawaiian Islands were by resolution of Congress annexed to the United States July 7, 1898, and formally transferred August 12, 1898. All laws of the Islands not inconsistent with that resolution, nor contrary to the Constitution of the United States, were to remain in force until Congress otherwise determined. The criminal procedure followed in this case was in accordance with the penal laws of the Islands before annexation. It was contended that, as the information was found after annexation and was contrary to the provision of the Constitution of the United States which stipulates that "no person shall be held to answer for a capital or other infamous crime unless upon a presentment or indictment of a grand jury," a literal construction of the Congressional resolution would lead clearly to the conclusion that the defendant, as he was not indicted by a grand jury, could not be laAvfully convicted, but the Supreme Court held that such a construction should not be given to it; that it was the intention of Congress to give a reasonable and proper time to those Islands to provide by legal means for the new methods of procedure. "Congress," the court said, "could not have intended that every provision of the Constitution should be imposed upon the Islands for which no previous preparation had been made, and that to hold otherwise would be to hold that every criminal convicted in the Islands between August 12, 1898, and June 14, 1900, when by act of Congress the Islands were formally incorporated as the 'Territory of Hawaii,' must be set at large. Such a result could not have been within the contemplation of Congress." I am of the opinion, therefore, that Congress did not intend to disturb the system of administration of the immigration laws in these Islands as that system existed prior to March 3, 1903, and that the Collector of Customs, who was authorized under the rules relating to the enforcement of the immigration laws issued by the Secretary of War April 14,1899, to act as immigration officer and continued by the acts of the Commission, had jurisdiction to determine whether or not the petitioner comes within the class of aliens who are prohibited from coming into the Philippine Islands, and has lawful right to detain said petitioner for that purpose.

The same conclusion is reached by another process of reasoning. Even if it were the intention of Congress to have immigration officers appointed for these Islands by the Secretary of the Treasury, to take the places of those appointed under what may be termed the war power of the President, for the purpose of executing the immigration laws, the act of Congress providing for such appointments is not mandatory, but directory. There is no time fixed within which he is required to make the appointments, and it has been held that even when the law specifies a time within which an act is to be done by a public officer, unless the nature of the act or language used shows that time was intended as a limitation of his power, the act has been held merely directory, and subsequent appointments made by the officer were held to be valid. (People vs. Murray, 15 Cal., 221; Saunders vs. Grand Bapids, 46 Mich., 467; People vs. Allen, 15 Wendell, N. Y., 486; Metcalf vs. Mayor, 17 N. Y. State Repts., 97.) And until such time as immigration inspectors shall be appointed by the Secretary of the Treasury and the Commissioner-General of Immigration, or as expressed in Circular No. 13, supra , "until the establishment of immigration stations in said territory" (the Philippines), the collectors of customs and their immigration inspectors must continue to enforce the immigration laws. The question as to whether or not an official appointed by military authority in time of war in a conquered territory had authority to continue to execute the laws until his successor qualified, pursuant to an act of Congress, was determined in the affirmative in the case of Cross vs. Harrison (16 How., U. S., 164). It appears that in that case, after the conquest of California by the United States forces in 1847, the President, as Commander in Chief of the Army and Navy, authorized the military authority to form a civil government for the conquered territory, with power to impose and collect duties at the port of San Francisco. Col. R. B. Mason became acting governor before the treaty of peace with Mexico, and he appointed the defendant, Harrison, a civilian, collector of the port. Harrison administered the duties of that office before the date of the treaty, February 3, 1848, and after the treaty was ratified. In March, 1849, by act of Congress, San Francisco was made a collection district of the United States, and from that date the defendant, as such collector, appointed under the war power of the President, continued to collect duties until the collector appointed by the Secretary of the Treasury qualified November 13, 1849. So that Harrison continued to collect duties for a period of about eight months after the Secretary of the Treasury was authorized to appoint his successor. The plaintiff sought to recover duties paid to defendant while acting as collector at different periods, including the latter one from March to November, 1849, claiming, that when Congress acted and made San Francisco a collection district and placed it within the jurisdiction of the Secretary of the Treasury in March, 1849, and authorized the Secretary to appoint a collector, the defendant ceased to be the lawful collector, and had no right to exact duties. The court held that the defendant had lawful authority for his own acts, even down to the time his successor qualified and entered upon the performance of his duties.

In speaking of the government established by the author1 ities the court said: "It had its origin in the lawful exercise of a belligerent right over a conquered territory. It had been instituted during the war by command of the President of the United States. It was the government when the territory was ceded as a conquest, and it did not cease as a matter of course or as a necessary consequence of the restoration of peace. "The President might have dissolved it, but he did not do so. Congress could have put an end to it, but that was not done. The right inference from the inaction of both is that it was meant to continue until it had been legislatively changed. No presumption of a contrary intention can be made. Whatever may have been the cause of delay, it must be presumed that the delay was consistent witli the true policy of the Government." Whatever may be the cause of the delay on the part of the Secretary of the Treasury in establishing immigration stations in these Islands, assuming that he has authority to do so, it must be presumed that such delay is consistent with the policy of the Government, and we should not, because of such delay, hold that the immigration laws are not to be enforced here. It follows that until such time as the Secretary of the Treasury appoints others to execute the immigration laws the administration remains, as was held in the Harrison case, supra , in the hands of those appointed by the President through the Secretary of War, and that, therefore, the Collector of Customs for the Archipelago has authority to enforce that law. The motion for the discharge of the petitioner is, therefore, denied, but permission is given to him to be heard in this proceeding on the other two questions presented in his petition, viz, (1) whether or not the defendant is a member of a learned profession, and (2) whether "accountants of like kind unemployed can or can not be found in this country;" the hearing to take place at such time as may be agreed upon. Arellano, C. J., Torres, Cooper, and Mapa, JJ., concur. Johnson, J., did not sit in this case.

[1] Public Laws, Vol. I, p. LXIII.

CONCURRING WILLARD, J.: I base my concurrence in the order on the last ground stated in the opinion. I see nothing in the act of March 3, 1903, which indicates that the law, so far as it relates to alien contract labor, was not to be administered in Porto Rico and Hawaii by the Treasury Department through the Commissioner-General of Immigration. Nor do I see anything therein which indicates that it was not to be so administered in these Islands. If the Commissioner-General of Immigration

had, immediately after the passage of the act, established immigration stations here and appointed officers to enforce this law therein, I doubt if the Collector of Customs or anyone else would have questioned the authority of such officers. The act of June (>, 1900 (2 Sup., U. S, Rev. Stat, 1434), was passed at a time when the Philippines were being administered through the War Department. That act is in part as follows: "And hereafter the Commissioner-General of Immigration, in addition to his other duties, shall have charge of the administration of the Chinese-exclusion law and of the various acts regulating immigration into the United States, its territories and the District of Columbia, under the supervision and direction of the Secretary of the Treasury." Section 22 of the act of March 3, 1903, is in part as follows: "That the Commissioner-General of Immigration, in addition to such other duties as may by law be assigned to him, shall, under the direction of the Secretary of the Treasury, have charge of the administration of all laws relating to the immigration of aliens into the United States, and shall have the control, direction, and supervision of all officers, clerks, and employees appointed here-under,]." Congress in this act of June 6, 1900, apparently intentionally excluded the Philippines, Porto Rico, and Hawaii from the jurisdiction of the Commissioner-General. It has been said that this act of March 3, 1903, is a mere reenaetment of existing laws, with changes only in the classes of persons who could be admitted, If Congress had intended to still exclude the CommissionerGeneral from the Philippines, nothing would have been more natural than to have retained the phraseology of the act of June 6, 1900, which they had evidently used for that purpose. This change was evidently made to make this section of the law conform to section 33, which expressly declares that the term "United States" shall include these Islands. If there is any inconsistency between the act of July 1, 1902, providing for the administration of the Philippines through the War Department, and the act of March 3, 1903, the latter law must prevail. The law being in force here, there still remains the question as to who should administer it until the new officials should be appointed. The case of Cross vs. Harrison, supra, is authority for the proposition that the old officers can administer the law until the new ones arrive. Prior to March 3, 1903, it was the duty of the Collector of Customs to administer such immigration laws as might be in force in the Islands. He, therefore, under the said case of Cross vs. Harrison, had the right to administer this law after March 3 and until some one was appointed by proper authority to act in his place. To the claim of the petitioner that the Commissioner-General of Immigration has had more than sufficient time in which to make such appointment, it may be answered that a court would be engaged in a very delicate matter, especially in this case, if it should undertake to say how much time an administrative officer should use in making appointments for new offices. In the case of Cross vs. Harrison more than nine months elapsed. This claim can not be sustained. While it is alleged that the board of inquiry which passed upon the petitioner's case .was improperly constituted, it has not been proved that it was not convened in substantial compliance with the new law. It was selected by the person lawfully exercising the authority of

a commissioner of immigration at the port of Manila, and might have been composed of immigration officials. The petitioner was, in my opinion, entitled to appeal from the finding of this board and its confirmation by the Collector, to the Secretary of the Treasury through the CommissionerGeneral of Immigration. He did not, however, exercise this right. Even if he had, or if the board of inquiry had been improperly constituted, these facts would not give the petitioner the right to land.

OSJurist.org

G.R. No. 1471, November 21, 1903

J. V. KNIGHT, PETITIONER, VS. J. MCMICKING, CLERK OF THE COURT OF FIRST INSTANCE OF MANILA, RESPONDENT. D ECIS ION
JOHNSON, J.: This cause was submitted to the court for judgment upon the pleadings. On March 31,1903, a judgment was rendered in the court of the justice of the peace of the city of Manila, in the cause of J. V. Knight vs. B. O. Eide, in favor of the plaintiff. On the 4th day of April following the defendant appealed from said judgment to the Court of First Instance of the city of Manila and gave a bond payable to the appellee conditioned for the payment of all such costs as may be awarded against him. Later, the justice of the peace duly forwarded the record of the said cause to the clerk of the said Court of First Instance. The said clerk refused and still refuses to place the said cause of J. V. Knight vs. Eide upon the docket of said Court of First Instance, for the reason that the fees provided for in section 788 of the new Code of Civil Procedure have not been paid. The plaintiff and appellee now petition this court to grant the writ of mandamus directed to the said clerk, commanding him to docket the said cause without first receiving his fees. The question submitted is, What construction shall be given to the statute regulating the collection of fees by officers of the court? The appellee claims that section 78 of the Code of Civil Procedure makes it necessary for the clerk of the Court of First Instance to docket every appeal from the courts of justices of the peace, whenever the transcripts from said courts are duly filed with him. The appellee also claims that the bond, which the appellant is required to give in order to perfect his appeal, covers the fees of the clerk, who for this reason can not demand his fees in advance, but must rely upon the said bond for the collection of the same. It is also argued by appellee that unless the clerk is required to docket the said cause, the cause can never be heard on appeal and that the appeal has the effect to defeat the judgment of the court below, for the reason that when an appeal is taken and perfected, from the judgment of the justice of the peace, the judgment of the justice is thereby vacated. Section 78 of the new Code provides: " Papers to be delivered to clerk of Court of First Instance .The justice of the peace from whose decision an appeal shall be taken shall, on or before the first day of the next term of the Court of First Instance for the province in which the same is returnable, transmit to the clerk of that court a certified copy of the record of proceedings, with all the original papers and process in the case, and the original appeal bond given by the appellant, and the clerk shall docket the same in the Court of First Instance, and shall be entitled to the same fees, upon such appeals, as for similar services in suits originating in said court. The justice shall at all times be allowed, and, in the interest of justice, may be required, by the Court of First Instance, to amend his return according to the facts." The appellee claims that the phrase "and the clerk shall docket the same in the Court of First Instance" is mandatory. But it will be observed that the very next phrase states "and shall be

entitled to the same fees, upon such appeals, as for similar services," etc. Section 788 of the same Code provides what fees shall be collected in other cases. Section 60 of Act No. 136 of the Philippine Commission provides that "all fees charged by them (the clerks) shall belong to the Government." Section 76 of the Code of Civil Procedure provides: " Appeals, how perfected .Within five days after the rendition of a judgment by a justice of the peace, the party desiring to appeal may file with the justice a written statement that he appeals to the Court of First Instance, and shall, within said period of five days, give a bond with sufficient surety to be approved by said justice, payable to the opposite party, in the penal sum of |100, conditioned for the payment of all such costs in the action as finally may be awarded against him. The filing of such statement and giving of such bond shall perfect the appeal." The appellee argues that the bond required by this section covers all fees and costs and that therefore the clerk must rely upon it for his fees. To this argument there are two objections: (1) The bond is given for the benefit of the opposite party and (2) it is conditioned to pay costs simply. A distinction must be made between costs and fees. The former includes the expenses incurred by a party in the prosecution of a suit; the latter are the compensation paid to an officer for services rendered in the progress of the cause. Every officer in civil causes is entitled to have his fees paid to him in advance, except in the case mentioned in section 550 of the Code of Civil Procedure in habeas corpus proceedings. When the fees have been paid, in the settlement of costs, they may then be regarded as costs, and a judgment may be rendered accordingly. The bond required is to cover costs. (O'Neil vs. Kansas City, etc., 31 Fed. Rep., 663.) Mandamus is an extraordinary remedy and is never granted when the party has another adequate legal remedy. In this case the appellee has another adequate remedy. He may pay the required fee and have his case docketed. The bond protects him. The clerk can not be required to docket civil cases until he has been paid the fee required by law. The application for mandamus is denied. Arellano, C. J., Torres, Willard, Mapa, and McDonough, JJ., concur.

DISSENTING COOPER, J.: The question presented for decision is whether the clerk of the Court of First Instance may require the payment of his fees in advance before docketing an appeal from the justice court While there is a difference between costs and fees, identity exists in the mode of collection. "Originally, fees were in strictness demandable at the instant at which the service was rendered, but an uninterrupted course of indulgence at length ripened into a custom, which has received the sanction of judicial decision, that the party for whose benefit they were rendered shall not be called on until after the determination of the case, when, to avoid the vexation of

an original suit for a trifling demand, it became the practice to include them in the execution as if they were a part of the successful party's cost. (Musser vs. Good, 11 S. and R., Pa., 247.) Ordinarily, the payment of costs may not be enforced until final judgment has been rendered and costs have been taxed and inserted therein. (5 Enc. PI. and Pr., 254.) Costs are usually paid to the clerk of the court or collected by the sheriff for the benefit of those entitled to them. "The costs, being accessory to the judgment, may be enforced like it by execution, which is by far the most common remedy for their collection." (5 Enc. Pl. and Pr., 256.) The ordinary rule that the payment of costs may not be enforced until final judgment has been rendered has been expressly changed by section 787 of the Code of Civil Procedure with reference to the fees of the clerk of the Supreme Court. It is provided in this section that "if the fees are not paid, the court may refuse to proceed with the action until they are paid and may dismiss the bill of exceptions or appeal for failure to prosecute if the fees are not paid within a reasonable time and after reasonable notice." This provision has been omitted from the next section (788), which relates to the fees of the clerk of the Court of First Instance. It is to be inferred that, in the absence of the provision requiring the payment of the fees in advance to the clerk of the Supreme Court, the clerk of the Supreme Court would not have had the right to demand their payment; otherwise this provision would be unnecessary, and the failure to enact such a provision in the succeeding section furnishes a strong inference that it was not intended that the clerk of the Court of First Instance should have the right to demand the payment of his fees in advance. By the provisions of section 76 of the Code of Civil Procedure the party desiring to appeal from a decision of the justice of the peace is required to file a written statement with the justice that he appeals to the Court of First Instance, and shall within the period of five days give a bond with sufficient surety, to be approved by the said justice, payable to the opposite party, in the penal sum of $100, "conditioned for the payment of all such costs in the action as finally may be awarded against him; the filing of such a statement, and giving of such bond shall perfect the appeal." By the provisions of section 75, a perfected appeal operates to vacate the judgment of the justice of the peace. By section 78 "the justice of the peace from whose decision an appeal shall be taken shall, on or before the first day of the next term of the Court of First Instance for the province in which the same is returnable, transmit to the clerk of that court a certified copy of the record of proceedings, with all the original papers and process in the case and the original appeal bond given by the appellant and the clerk shall docket the same in the Court of First Instance." It results from these provisions of the Code of Civil Procedure that the filing of the written statement and the appeal bond perfects the appeal, and that a perfected appeal operates to vacate the judgment of the justice of the peace. The parties appealing have no duty to perform further than giving the notice of appeal and filing the appeal bond, and then the duty devolves upon the justice of the peace to transmit the

record to the clerk, who shall docket the same in the Court of First Instance. This requirement is unconditional and mandatory, and the clerk must perform it, and if he refuses to do so, may be compelled by mandamus. For the reasons above stated, I dissent from the majority decision.

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G.R. No.979, February 12, 1903

THE UNITED STATES, COMPLAINANT AND APPELLEE, VS, EUSEBIO SANTA CRUZ, DEFENDANT AND APPELLANT. D ECIS ION
LADD, J.: The defendant was convicted in the court below of robbery with violence to the person, and has appealed. The case of the prosecution rests mainly upon the testimony of the person alleged to have been robbedone Ri-Jhorumal, who is a young Hindoo boy employed in a shop on the Escolta in Manila. He testifiedand to this extent his evidence is corroborated by his employer that he was sent by the later to the Tondo market to buy thread and given ten pesos in silver for the purpose. He states that he was robbed of this money in a street near the market by two men, one of whom held his hand over his mouth while the other took money out of his pocket and ran away. He identifies the defendant as the man who held his hand over his mouth. He says that one Claudio Subit saw the occurence, but Subit, having been called as a witness for the prosecution, denies this. On the part of the defense there was evidence from several witnesses which if believed establishes an alibi. It is somewhat improbable that such an occurrence as that related by Ri-Jhorumal should have taken place in broad daylight in a central portion of a large city without attracting some one's attention, and in view of this improbability, and in the absence of corroborating circumstances, we can not say that the evidence wholly excludes a reasonable doubt as to the guilt of the accused. The judgment of the court below is reversed with costs de oficio, the case to be returned to that court for proceedings in conformity with this opinion. So ordered. Arellano, C. J., Torres, Cooper, Willard, and Mapa, JJ., concur.

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