EN BANC
[G.R. No. 18536. September 11, 1922. ]
THE PEOPLE OF THE PHILIPPINE ISLANDS, Plaintiff-Appellee, v. VENANCIO CONCEPCION, Defendant-Appellant.
Hartigan & Welch and Recaredo Ma. Calvo for Appellant.
Attorney-General Villa-Real for Appellee.
SYLLABUS
1. CONVICTION CANNOT BE WHEN OBJECTION ARE PROMPTLY MADE. — Where in a criminal action throughout the taking of the testimony for the Government, the defendant is prosecuted and defended upon the theory that the information charges but one specific crime, and where after all of the testimony for the prosecution is taken, the prosecution for the first time contends that the information charges three different crimes, and the court acquits the defendant of two of the alleged crimes, one of which includes the crime for which he was prosecuted and defended, and convicts him of the third other and different offense, and where it appears from a fair and reasonable construction of the information that it was intended to charge one crime of which the defendant was acquitted by the trial court, his conviction of the third other and different crime cannot be sustained, where the defendant promptly objected and excepted to the rulings of the court, holding that three distinct crimes were charged, even though no demurrer was filed to the information.
2. OVER HIS OBJECTION DEFENDANT CANNOT BE PROSECUTED FOR ONE CRIME AND CONVICTED OF ANOTHER DISTINCT CRIME. — Where prompt and timely objections are made and exceptions are duly taken, a defendant cannot be prosecuted for one crime and convicted of another and distinct crime on the same information. (U.S. v. Nubla, 4 Phil., 456 followed and approved.)
3. WHERE DEFENDANT IS ACQUITTED OF A CRIME UPON WHICH HE WAS PROSECUTED AND DEFENDED AND CONVICTED ANOTHER CRIME NOT EMBRACED IN THE CHARGE, THE LATTER CONVICTION CANNOT BE SUSTAINED. — Where it is apparent that the information against the defendant was drawn upon the theory that, as president of a bank, he had entered into a corrupt agreement with another to furnish the money of the bank for an illegal purpose upon which charge he was acquitted by the trial court for want of evidence, but was convicted of another and different crime on the same information to which procedure objections were promptly made and exceptions duly taken, the conviction on the latter cannot be sustained.
4. WHERE THE DIRECTORS OF A BANK ARE GROSSLY NEGLIGENT, THEY ARE ESTOPPED TO CLAIM OR ASSERT THAT A LOAN WAS MADE WITHOUT THEIR KNOWLEDGE OR APPROVAL. — Where the evidence shows that the directors of the bank were grossly negligent in the performance of their duties, and that they were a dummy rubber stamp board, and that they knew or should have known that the defendant was violating paragraph 2 section 17 of Act No. 2747, they are estopped to claim or assert that the loan was made without their knowledge or approval.
5. THE INFORMATION CHARGES A VIOLATION OF SECTION 35 OF ACT NO. 2747, AND UNDER THE FACTS SHOWN IT IS NOT BROAD ENOUGH TO SUSTAIN A CONVICTION FOR A VIOLATION OF PARAGRAPH 2 OF SECTION 17 OF ACT NO. 2747. — When analyzed the information in this case charges but one crime, that of making a corrupt agreement for an illegal loan of the funds of the bank in violation of section 35 of Act. No. 2747, and upon that charge the defendant was acquitted by the trial court, hence, his conviction under the same information of a violation of paragraph 2 of section 17 of Act No. 2747 cannot be sustained.
2. OVER HIS OBJECTION DEFENDANT CANNOT BE PROSECUTED FOR ONE CRIME AND CONVICTED OF ANOTHER DISTINCT CRIME. — Where prompt and timely objections are made and exceptions are duly taken, a defendant cannot be prosecuted for one crime and convicted of another and distinct crime on the same information. (U.S. v. Nubla, 4 Phil., 456 followed and approved.)
3. WHERE DEFENDANT IS ACQUITTED OF A CRIME UPON WHICH HE WAS PROSECUTED AND DEFENDED AND CONVICTED ANOTHER CRIME NOT EMBRACED IN THE CHARGE, THE LATTER CONVICTION CANNOT BE SUSTAINED. — Where it is apparent that the information against the defendant was drawn upon the theory that, as president of a bank, he had entered into a corrupt agreement with another to furnish the money of the bank for an illegal purpose upon which charge he was acquitted by the trial court for want of evidence, but was convicted of another and different crime on the same information to which procedure objections were promptly made and exceptions duly taken, the conviction on the latter cannot be sustained.
4. WHERE THE DIRECTORS OF A BANK ARE GROSSLY NEGLIGENT, THEY ARE ESTOPPED TO CLAIM OR ASSERT THAT A LOAN WAS MADE WITHOUT THEIR KNOWLEDGE OR APPROVAL. — Where the evidence shows that the directors of the bank were grossly negligent in the performance of their duties, and that they were a dummy rubber stamp board, and that they knew or should have known that the defendant was violating paragraph 2 section 17 of Act No. 2747, they are estopped to claim or assert that the loan was made without their knowledge or approval.
5. THE INFORMATION CHARGES A VIOLATION OF SECTION 35 OF ACT NO. 2747, AND UNDER THE FACTS SHOWN IT IS NOT BROAD ENOUGH TO SUSTAIN A CONVICTION FOR A VIOLATION OF PARAGRAPH 2 OF SECTION 17 OF ACT NO. 2747. — When analyzed the information in this case charges but one crime, that of making a corrupt agreement for an illegal loan of the funds of the bank in violation of section 35 of Act. No. 2747, and upon that charge the defendant was acquitted by the trial court, hence, his conviction under the same information of a violation of paragraph 2 of section 17 of Act No. 2747 cannot be sustained.
D E C I S I O N
STATEMENT
The following information was filed against the defendant by the city fiscal of the City of Manila:jgc:chanrobles.com.ph
"The undersigned accuses Venancio Concepcion of a violation of the provisions of Act No. 2747, of the Philippine Legislature, committed as follows:jgc:chanrobles.com.ph
"The at all time herein mentioned, in the City of Manila, Philippine Islands, the said accused was the president of the Philippine National Bank, a corporation created by Act No. 2612 of the Philippine Legislature, and was a member of the board of directors of said bank; that the Philippine Vegetable Oil Company is a Philippine corporation, engaged in business in the city of Manila; that at the time of the declaration of war by the United States against the Empire of Germany and its allies, in the year 1917, it was found that six thousand (6,000) shares of the stock of the said Philippine Vegetable Oil Company were the property of alien enemies of the United States, which said shares were thereafter by the Alien Property Custodian, pursuant to the authority vested in him by the Act of Congress of October 6, 1917, entitled: ’Trading with the Enemy Act;’ that thereafter the Alien Property Custodian advertised the said six thousand (6,000) shares of the stock of the said Philippine Vegetable Oil Company for sale at public auction to be held at Manila, in the Philippine Islands, on or about the month of April, 1919; that one Phil. C. Whitaker, at that time president of the said Philippine Vegetable Oil Company, informed the said accused, Venancio Conception, that it was the intention of the said Whitaker to bid at the auction sale of said six thousand(6,000) shares of the stock of the said Philippine Vegetable Oil Company for the purchase of the same for and on behalf of the said Philippine Vegetable Oil Company; that the said accused then informed the said Whitaker that he, the said accused, also intended to bid at the auction sale for the said shares; that thereupon it was agreed between the said Whitaker and the said accused that to avoid competitive bidding at the said auction, the said accused would refrain from bidding, and that he would cause a loan to be made to the said Philippine Vegetable Oil Company from the funds of the Philippine National Bank of a sum sufficient to pay for the said shares if bid in at said auction sale by the said Whitaker, and the said Whitaker agreed, in consideration of the undertaking of the accused, that if he succeeded in bidding in the said shares for the Philippine Vegetable Oil Company, he would cause the said Philippine Vegetable Oil Company to sell two hundred (200) of said shares to the accused at cost and lend him the money with which to pay for the same; that pursuant to said agreement the said accused refrained from bidding at the said auction sale, and five thousand eight hundred (5,800) of the said six thousand (6,000) shares of the stock of the said Philippine Vegetable Oil Company were, at the said auction sale held in Manila, Philippine Islands, in the said month of April, 1919, sold by the Alien Property Custodian to the said Philippine Vegetable Oil Company; that the said accused in the city of Manila, Philippine Islands, caused a loan to be made to the said Philippine Vegetable Oil Company in the sum of seven hundred and twenty-five thousand pesos (P725,000) Philippine currency, to enable it to pay for the said shares, and the said Whitaker, as president of said Philippine Vegetable Oil Company, in consideration of the said loan and of the abstention of the accused from bidding at the said auction sale, caused two hundred (200) of said shares to be issued to the said accused, Venancio Concepcion, and accepted the note of the said accused for the sum of twenty-fife thousand pesos (P25,000) and payable on demand to the Philippine Vegetable Oil Company in consideration thereof; that the said two hundred(200) shares were thereupon duly registered in the book of the Philippine Vegetable Oil Company as the property of the accused; that on the 15th day of July, 1919, he was paid the sum of two thousand pesos (P2,000) as his dividend on such shares; that thereafter, to wit, on or about the 2d day of September, 1919, at Manila, in the Philippine Islands, the accused informed the said Whitaker that he desired to sell the said two hundred (200) shares of the stock of the Philippine Vegetable Oil Company, whereupon the said Whitaker, on behalf of the said Philippine Vegetable Oil Company, agreed with the accused to purchase the said shares at an advance of fifteen thousand pesos (P15,000) over the price at which they bought by the accused; that on or about the 2d day of September, 1919, in Manila, Philippine Islands, pursuant to said agreement, the said shares were transferred by the accused to the Philippine Vegetable Oil Company, and his said note for twenty-five thousand pesos (P25,000) was cancelled and returned to him; that on the 2d day of September, 1919, the Philippine Vegetable Oil Company issued and delivered to the accused its check on the bank of the Philippine Islands, to the order of the said accused, for the sum of fifteen thousand pesos (P15,000) Philippine currency, which said check was cashed by the said accused and the full amount thereof received by him in payment of the difference between his said note and the increased price at which the said two hundred (200) shares were sold by him to the Philippine Vegetable Oil Company.
"Contrary to law."cralaw virtua1aw library
Upon the charge, he was tried and convicted of a violation of the provisions of section 17 of Act No. 2747 of the Philippine Legislature, and sentenced to pay a fine of P5,000 and costs, or to suffer a subsidiary imprisonment for a period not to exceed six months.
The opinion of the trial court is exhaustive and contains a complete and careful analysis of all the facts shown at the trial. Among other things the court in its opinion says:jgc:chanrobles.com.ph
"It will be observed from the testimony quoted, that the witness Whitaker did not make any agreement with the accused, except the latter could get number of shares that he may desire at cost price. Absolutely no conversation was had with respect to the money with which the price of the shares that would be sold at auction should be paid; neither was there anything said in that conversation with reference to any loan, and it appears from the testimony of the said witness that he had no knowledge of the manner of acquiring the funds with which to play the 5800 shares.
"From said declarations it can clearly be seen that between the accused and Phil. C. Whitaker there was no stipulation or agreement regarding the loan of P725,000, and there is not the slightest indication that in said conversation it was stipulated, as alleged in the complaint, that said loan was granted by the accused in consideration of the previous understanding between him and Whitaker that the Philippine Vegetable Oil Company would transfer to him at cost price all the shares he may desire.
"Aside from the fact that the theory of the prosecution regarding this point does not agree with the testimony of the witness Whitaker, the only one who could be in a position to declare something the essential allegations contained in the complaint, the other proof of the prosecution indicates that there did not exist any contractual relation between the loan obtained from the Philippine National Bank and the alleged agreement had between the accused and Phil. C. Whitaker.
"It having been demonstrated, as it was, that the evidence of the prosecution has not established the essential allegation contained in the complaint that the accused had taken any part of the shares sold by the Alien Property Custodian, in consideration of the loan of seven hundred and twenty-five thousand pesos by him granted the Philippine Vegetable Oil Company nor of the previous understanding which existed between said accused and Phil. C. Whitaker that the former would abstain from taking part in the sale at public auction of the shares, and that he would grant said loan in exchange of the two hundred of said shares to be given to him, it necessarily follows that the accused cannot be found guilty of having obtained by indirect means a loan from the Philippine National Bank, of which he was president, contrary to section 35 of Act No. 2747.
"We will examine the other contention of the prosecuting officer that the facts established constitute likewise a violation of paragraph 2 and subsection (b) of section 17 of the same Act.
"In examining this other aspect of the case, the first question that presents itself is whether or not the complaint herein filed contains allegations upon which the court may find the accused guilty of said violation, in case such finding is borne out by the evidence. The defense insists that the accused cannot be convicted of said violation because there is not in the complaint any allegation to the effect that the accused granted the loan without authorization of the board of directors of the National Bank, and has, consequently, exceeded or overstepped the powers conferred on him by the aforesaid Act.
"The conclusion must, therefore, be that there being categorical and sufficient allegations in the complaint, to the effect that the accused, being president of the Philippine National Bank, granted the Philippine Vegetable Oil company a loan of seven hundred and twenty-five thousand pesos, which constitutes an overstepping of his only powers defined in paragraph 2 of section 17 of Act No. 2747, the accused can be convicted of said violation, if it is established by the evidence.
"From the facts just related, it is inferred that the accused, and not Vicente Gaskell, as is claimed by the defense, granted the loan of seven hundred and twenty-five thousand pesos to the Philippine Vegetable Oil Company, and that said act constitutes a flagrant violation of paragraph 2 of section 17 of Act No. 2747, which empowers the president of the Philippine National Bank to grant loans only on negotiable instruments for periods of time not exceeding four months, and in amounts which can in no case exceed fifty thousand pesos.
"With reference to the intimation of the prosecuting officer that the accused is likewise guilty, according to the evidence, of a violation of subsection (b) of section 17, the court is of the opinion that, although it was established by the evidence, the accused cannot be convicted of said violation, because it has not been sufficiently alleged in the complaint, nor from the terms in which it is written can it be inferred that the accused was also guilty of said violation; beside the evidence in regard to this point is not sufficiently conclusive and convincing to serve as a basis for a conviction. It may not be amiss to remember, in discussing this point, that the witnesses for the prosecution, who were members of the board of directors of the Philippine National Bank at the time alleged in the complaint, testified in a manner so uncertain and vague that from the whole of their testimonies, it cannot be deduced with relative certainty that the members of the board of directors of said Bank did not really have knowledge of the contents of the report of the department of loans and discounts.
"Summarizing all the foregoing, the court finds: (a) That the accused is not guilty of a violation of section 35, nor of subsection b of section 17 of Act No. 2747, and (b) that the evidence of the prosecution conclusively proves that the accused is guilty of a violation of paragraph 2 of the said section 17, because, overstepping his powers and without authorization from the board of directors of the Philippine National Bank, he granted the Philippine Vegetable Oil Company a loan for the amount of seven hundred and twenty-five thousand pesos, a sum which up to this date has not been reimbursed by the entity indebted."cralaw virtua1aw library
No demurrer was filed to the information, and no motion was filed to make it make definite and certain.
During the trial the prosecution called some of the directors of the Philippine National Bank as witnesses, and this or a similar question we asked:jgc:chanrobles.com.ph
"Q. Please see this document Exhibit B of the prosecution which I show you, and, after having known its contents, I request that you tell the court if, among the various matters which have been discussed by the board of directors of the Bank on that date, May 21, 1919, the concession of any loan of P725,000 or of any other loan of a greater amount to the Philippine Vegetable Oil Company was discussed?"
To which the defendant made the following objection:jgc:chanrobles.com.ph
"Mr. WELCH. We object to the question and to all this line of questions to the directors of the Bank, with respect to what they remember of the meetings of the board of directors, for being irrelevant, incompetent, and immaterial."cralaw virtua1aw library
The objection was overruled, and an exception duly taken, and the directors were permitted to testify in substance, over the objection of the defendant, that they had never authorized the loan, and that it was made without their knowledge or consent.
When the prosecution rested its case, the defense filed a motion for an acquittal, which was extensively argued pro and con. Among other things, the Fiscal contended:jgc:chanrobles.com.ph
"There was a violation of the second paragraph of section 17, and also of subsection b of this same section, in so far as this section 17 speaks of the duties of the president, principally of the duty which the present has to inform the board of directors of the loans which are being granted. Among the other sections, which the prosecution contends that have been violated, is section 25, which says that the National Bank shall not grant loans, directly or indirectly, to any of the members of the board of directors. or to the assessors of the same, etc."cralaw virtua1aw library
Upon the making of this statement by the fiscal, the attorneys for the defendant asked for the dismissal of the case against him on the ground "that the prosecuting officer asked for the conviction of the accused, basing the complaint over two sections absolutely different, which cannot be combined in only one complaint."cralaw virtua1aw library
The court:jgc:chanrobles.com.ph
"You may proceed, but, as is seen in the complaint, the prosecuting officer has not charged any specific violation of any section of Act No. 2747. The first paragraph of the complaint simply says: The undersigned accuses Venancio Concepcion of violation of some of the provisions of section 17 of Act No. 2717. The question as to what section of the law has been violated by the accused is to be determined by the court rather than by the court rather than by the prosecuting officer. The prosecuting officer may now think and contend that sections 17 and 35 have been violated; the attorneys for the defense could have thought that the allegations of the complaint constitute a violation of section 42, but, in the end, it is the court who must determine, first, whether
The following information was filed against the defendant by the city fiscal of the City of Manila:jgc:chanrobles.com.ph
"The undersigned accuses Venancio Concepcion of a violation of the provisions of Act No. 2747, of the Philippine Legislature, committed as follows:jgc:chanrobles.com.ph
"The at all time herein mentioned, in the City of Manila, Philippine Islands, the said accused was the president of the Philippine National Bank, a corporation created by Act No. 2612 of the Philippine Legislature, and was a member of the board of directors of said bank; that the Philippine Vegetable Oil Company is a Philippine corporation, engaged in business in the city of Manila; that at the time of the declaration of war by the United States against the Empire of Germany and its allies, in the year 1917, it was found that six thousand (6,000) shares of the stock of the said Philippine Vegetable Oil Company were the property of alien enemies of the United States, which said shares were thereafter by the Alien Property Custodian, pursuant to the authority vested in him by the Act of Congress of October 6, 1917, entitled: ’Trading with the Enemy Act;’ that thereafter the Alien Property Custodian advertised the said six thousand (6,000) shares of the stock of the said Philippine Vegetable Oil Company for sale at public auction to be held at Manila, in the Philippine Islands, on or about the month of April, 1919; that one Phil. C. Whitaker, at that time president of the said Philippine Vegetable Oil Company, informed the said accused, Venancio Conception, that it was the intention of the said Whitaker to bid at the auction sale of said six thousand(6,000) shares of the stock of the said Philippine Vegetable Oil Company for the purchase of the same for and on behalf of the said Philippine Vegetable Oil Company; that the said accused then informed the said Whitaker that he, the said accused, also intended to bid at the auction sale for the said shares; that thereupon it was agreed between the said Whitaker and the said accused that to avoid competitive bidding at the said auction, the said accused would refrain from bidding, and that he would cause a loan to be made to the said Philippine Vegetable Oil Company from the funds of the Philippine National Bank of a sum sufficient to pay for the said shares if bid in at said auction sale by the said Whitaker, and the said Whitaker agreed, in consideration of the undertaking of the accused, that if he succeeded in bidding in the said shares for the Philippine Vegetable Oil Company, he would cause the said Philippine Vegetable Oil Company to sell two hundred (200) of said shares to the accused at cost and lend him the money with which to pay for the same; that pursuant to said agreement the said accused refrained from bidding at the said auction sale, and five thousand eight hundred (5,800) of the said six thousand (6,000) shares of the stock of the said Philippine Vegetable Oil Company were, at the said auction sale held in Manila, Philippine Islands, in the said month of April, 1919, sold by the Alien Property Custodian to the said Philippine Vegetable Oil Company; that the said accused in the city of Manila, Philippine Islands, caused a loan to be made to the said Philippine Vegetable Oil Company in the sum of seven hundred and twenty-five thousand pesos (P725,000) Philippine currency, to enable it to pay for the said shares, and the said Whitaker, as president of said Philippine Vegetable Oil Company, in consideration of the said loan and of the abstention of the accused from bidding at the said auction sale, caused two hundred (200) of said shares to be issued to the said accused, Venancio Concepcion, and accepted the note of the said accused for the sum of twenty-fife thousand pesos (P25,000) and payable on demand to the Philippine Vegetable Oil Company in consideration thereof; that the said two hundred(200) shares were thereupon duly registered in the book of the Philippine Vegetable Oil Company as the property of the accused; that on the 15th day of July, 1919, he was paid the sum of two thousand pesos (P2,000) as his dividend on such shares; that thereafter, to wit, on or about the 2d day of September, 1919, at Manila, in the Philippine Islands, the accused informed the said Whitaker that he desired to sell the said two hundred (200) shares of the stock of the Philippine Vegetable Oil Company, whereupon the said Whitaker, on behalf of the said Philippine Vegetable Oil Company, agreed with the accused to purchase the said shares at an advance of fifteen thousand pesos (P15,000) over the price at which they bought by the accused; that on or about the 2d day of September, 1919, in Manila, Philippine Islands, pursuant to said agreement, the said shares were transferred by the accused to the Philippine Vegetable Oil Company, and his said note for twenty-five thousand pesos (P25,000) was cancelled and returned to him; that on the 2d day of September, 1919, the Philippine Vegetable Oil Company issued and delivered to the accused its check on the bank of the Philippine Islands, to the order of the said accused, for the sum of fifteen thousand pesos (P15,000) Philippine currency, which said check was cashed by the said accused and the full amount thereof received by him in payment of the difference between his said note and the increased price at which the said two hundred (200) shares were sold by him to the Philippine Vegetable Oil Company.
"Contrary to law."cralaw virtua1aw library
Upon the charge, he was tried and convicted of a violation of the provisions of section 17 of Act No. 2747 of the Philippine Legislature, and sentenced to pay a fine of P5,000 and costs, or to suffer a subsidiary imprisonment for a period not to exceed six months.
The opinion of the trial court is exhaustive and contains a complete and careful analysis of all the facts shown at the trial. Among other things the court in its opinion says:jgc:chanrobles.com.ph
"It will be observed from the testimony quoted, that the witness Whitaker did not make any agreement with the accused, except the latter could get number of shares that he may desire at cost price. Absolutely no conversation was had with respect to the money with which the price of the shares that would be sold at auction should be paid; neither was there anything said in that conversation with reference to any loan, and it appears from the testimony of the said witness that he had no knowledge of the manner of acquiring the funds with which to play the 5800 shares.
"From said declarations it can clearly be seen that between the accused and Phil. C. Whitaker there was no stipulation or agreement regarding the loan of P725,000, and there is not the slightest indication that in said conversation it was stipulated, as alleged in the complaint, that said loan was granted by the accused in consideration of the previous understanding between him and Whitaker that the Philippine Vegetable Oil Company would transfer to him at cost price all the shares he may desire.
"Aside from the fact that the theory of the prosecution regarding this point does not agree with the testimony of the witness Whitaker, the only one who could be in a position to declare something the essential allegations contained in the complaint, the other proof of the prosecution indicates that there did not exist any contractual relation between the loan obtained from the Philippine National Bank and the alleged agreement had between the accused and Phil. C. Whitaker.
"It having been demonstrated, as it was, that the evidence of the prosecution has not established the essential allegation contained in the complaint that the accused had taken any part of the shares sold by the Alien Property Custodian, in consideration of the loan of seven hundred and twenty-five thousand pesos by him granted the Philippine Vegetable Oil Company nor of the previous understanding which existed between said accused and Phil. C. Whitaker that the former would abstain from taking part in the sale at public auction of the shares, and that he would grant said loan in exchange of the two hundred of said shares to be given to him, it necessarily follows that the accused cannot be found guilty of having obtained by indirect means a loan from the Philippine National Bank, of which he was president, contrary to section 35 of Act No. 2747.
"We will examine the other contention of the prosecuting officer that the facts established constitute likewise a violation of paragraph 2 and subsection (b) of section 17 of the same Act.
"In examining this other aspect of the case, the first question that presents itself is whether or not the complaint herein filed contains allegations upon which the court may find the accused guilty of said violation, in case such finding is borne out by the evidence. The defense insists that the accused cannot be convicted of said violation because there is not in the complaint any allegation to the effect that the accused granted the loan without authorization of the board of directors of the National Bank, and has, consequently, exceeded or overstepped the powers conferred on him by the aforesaid Act.
"The conclusion must, therefore, be that there being categorical and sufficient allegations in the complaint, to the effect that the accused, being president of the Philippine National Bank, granted the Philippine Vegetable Oil company a loan of seven hundred and twenty-five thousand pesos, which constitutes an overstepping of his only powers defined in paragraph 2 of section 17 of Act No. 2747, the accused can be convicted of said violation, if it is established by the evidence.
"From the facts just related, it is inferred that the accused, and not Vicente Gaskell, as is claimed by the defense, granted the loan of seven hundred and twenty-five thousand pesos to the Philippine Vegetable Oil Company, and that said act constitutes a flagrant violation of paragraph 2 of section 17 of Act No. 2747, which empowers the president of the Philippine National Bank to grant loans only on negotiable instruments for periods of time not exceeding four months, and in amounts which can in no case exceed fifty thousand pesos.
"With reference to the intimation of the prosecuting officer that the accused is likewise guilty, according to the evidence, of a violation of subsection (b) of section 17, the court is of the opinion that, although it was established by the evidence, the accused cannot be convicted of said violation, because it has not been sufficiently alleged in the complaint, nor from the terms in which it is written can it be inferred that the accused was also guilty of said violation; beside the evidence in regard to this point is not sufficiently conclusive and convincing to serve as a basis for a conviction. It may not be amiss to remember, in discussing this point, that the witnesses for the prosecution, who were members of the board of directors of the Philippine National Bank at the time alleged in the complaint, testified in a manner so uncertain and vague that from the whole of their testimonies, it cannot be deduced with relative certainty that the members of the board of directors of said Bank did not really have knowledge of the contents of the report of the department of loans and discounts.
"Summarizing all the foregoing, the court finds: (a) That the accused is not guilty of a violation of section 35, nor of subsection b of section 17 of Act No. 2747, and (b) that the evidence of the prosecution conclusively proves that the accused is guilty of a violation of paragraph 2 of the said section 17, because, overstepping his powers and without authorization from the board of directors of the Philippine National Bank, he granted the Philippine Vegetable Oil Company a loan for the amount of seven hundred and twenty-five thousand pesos, a sum which up to this date has not been reimbursed by the entity indebted."cralaw virtua1aw library
No demurrer was filed to the information, and no motion was filed to make it make definite and certain.
During the trial the prosecution called some of the directors of the Philippine National Bank as witnesses, and this or a similar question we asked:jgc:chanrobles.com.ph
"Q. Please see this document Exhibit B of the prosecution which I show you, and, after having known its contents, I request that you tell the court if, among the various matters which have been discussed by the board of directors of the Bank on that date, May 21, 1919, the concession of any loan of P725,000 or of any other loan of a greater amount to the Philippine Vegetable Oil Company was discussed?"
To which the defendant made the following objection:jgc:chanrobles.com.ph
"Mr. WELCH. We object to the question and to all this line of questions to the directors of the Bank, with respect to what they remember of the meetings of the board of directors, for being irrelevant, incompetent, and immaterial."cralaw virtua1aw library
The objection was overruled, and an exception duly taken, and the directors were permitted to testify in substance, over the objection of the defendant, that they had never authorized the loan, and that it was made without their knowledge or consent.
When the prosecution rested its case, the defense filed a motion for an acquittal, which was extensively argued pro and con. Among other things, the Fiscal contended:jgc:chanrobles.com.ph
"There was a violation of the second paragraph of section 17, and also of subsection b of this same section, in so far as this section 17 speaks of the duties of the president, principally of the duty which the present has to inform the board of directors of the loans which are being granted. Among the other sections, which the prosecution contends that have been violated, is section 25, which says that the National Bank shall not grant loans, directly or indirectly, to any of the members of the board of directors. or to the assessors of the same, etc."cralaw virtua1aw library
Upon the making of this statement by the fiscal, the attorneys for the defendant asked for the dismissal of the case against him on the ground "that the prosecuting officer asked for the conviction of the accused, basing the complaint over two sections absolutely different, which cannot be combined in only one complaint."cralaw virtua1aw library
The court:jgc:chanrobles.com.ph
"You may proceed, but, as is seen in the complaint, the prosecuting officer has not charged any specific violation of any section of Act No. 2747. The first paragraph of the complaint simply says: The undersigned accuses Venancio Concepcion of violation of some of the provisions of section 17 of Act No. 2717. The question as to what section of the law has been violated by the accused is to be determined by the court rather than by the court rather than by the prosecuting officer. The prosecuting officer may now think and contend that sections 17 and 35 have been violated; the attorneys for the defense could have thought that the allegations of the complaint constitute a violation of section 42, but, in the end, it is the court who must determine, first, whether
