1. STATUTE OF FRAUDS; PROMISE TO PAY THE DEBT OF ANOTHER; CREDIT EXTENDED TO PROMISOR. — While, under the provisions of section 335 of the Code of Civil Procedure, a special promise to answer for the debt of another is not enforceable by action unless such promise or some note or memorandum thereof in writing and subscribed by the party charged or by his authorized agent, taking into consideration all the circumstances, as set forth in the opinion: Held, That, in this case, the credit for the lumber sold and delivered to the defendant’s contractor, was extended solely and exclusively to the defendant himself, under the verbal agreement, and that, therefore, the case does not fall within the provisions of the statute requiring certain agreements to be made in writing.

Defendant appellant entered into a contract with one Buenaventura Kabalsa for the repair of a house in the city of Manila. The contractor undertook to furnish the necessary materials, including a considerable amount of lumber, to be used in the repairs. The contractor being a man of no commercial standing in the community was unable to secure credit therefor, and was compelled to pay cash for all the purchases. Having no money and no credit he was unable to continue the purchase of the necessary lumber, plaintiffs, with whom he was dealing, absolutely refusing to allow any lumber to leave their yard without payment in advance. The work on the house being delayed for the lack of the necessary materials, defendant accompanied the contractor to plaintiffs’ lumber yard, and after satisfying plaintiffs as to his own financial responsibility, and that as a property owner and an attorney in active practice in the city of Manila, he was good for the amount of lumber needed in the repair of his house, he entered into an agreement with them whereby they were to deliver the necessary lumber to the contractor for use in the repair of his house.

In pursuance of an in accordance with the directions of the defendant, plaintiffs delivered to Kabalsa a considerable amount of lumber which was used in the repairs upon defendant’s house, and judgment in this action was rendered in favor of the plaintiffs for the proven amount of the unpaid balance of the purchase price of this lumber.

Appellant makes various assignments of error, and contends: First, that the trial court erred in declining to allow an amendment to defendant’s answer for the purpose of formally denying plaintiff’s allegations as to defendant’s guaranty of payment of the purchase price of the lumber; second, that the trial court erred in failing to set out in its decision the finding of facts upon which the judgment rests; third, that the evidence of record does not sustain a finding that the defendant did in fact assume responsibility for the payment of the purchase price of the lumber delivered to his contractor; and fourth, that even if it be held that he did so, then since the alleged promise, as set up by plaintiffs in their evidence, merely guaranteed payment for the lumber and was not in writing, proof thereof was not admissible in evidence, and defendant was not bound thereby, under the provisions, of section 335 of the Code of Civil Procedure.

The alleged errors of procedure may be dismissed without much discussion. We think a reading of the judgment itself clearly discloses that the trial judge did in fact make the necessary findings of fact, and that he expressly held that, admitting all the evidence offered by both parties, the evidence of record establishes the existence of defendant’s promise to pay for the lumber, and discloses the existence of a balance due on account of the lumber delivered to defendant’s contractor. Without considering whether, under the pleadings, the defendant’s evidence should have been stricken out of the record and his motion to amend his answer denied, as appears to have been the opinion of the trial court, we agree with the trial court that even if the evidence be admitted and the complaint amended, the weight of all the evidence, including the evidence thus admitted, supports the plaintiffs’ allegations touching defendant’s promise to pay for the lumber in question, and establishes his contention that this lumber was in fact delivered to the defendant’s contractor, and by him used in the construction of the house under the directions of the defendant, and that the amount for which the judgment was given in the court below was the amount of the unpaid purchased price of the lumber thus delivered. If, therefore, it was error of the trial court to rule that defendant’s evidence should be stricken from the record and that defendant’s answer should not be amended in accordance with a motion for that purpose made three weeks after judgment was rendered, it was at most error without prejudice.

The only question that remains is defendant’s contention that his alleged guaranty of payment of the purchase price of the lumber finished at his request to his contractor Kabalsa not being in writing, it is enforceable in this action.

Section 335 of Act No. 190 is as follows:jgc:chanrobles.com.ph

"In the following cases an agreement hereafter made shall be enforceable by action unless the same, or some note or memorandum thereof, be in writing, and subscribed by the party charged, or by his agent; evidence, therefore, of the agreement can not be received without the writing, or secondary evidence of its contents:chanrob1es virtual 1aw library



"2. A special promise to answer for the debt, default, or miscarriage of another;"



An immense amount of litigation has arisen in England and the United States over the construction of similar provisions are found most, if not all, of the so-called statutes of fraud which have been enacted in those jurisdictions, and many courts and text writers have acknowledged their inability to find anything like uniform rules of construction in the conflicting decisions which have been rendered, applying the statute to the infinite variety of facts which have presented themselves; so that it has been said by some that the law upon the subject is a state of hopeless confusion.

The true test as to whether a promise is within the statute has been said o lie in the answer to the question whether the promise is an original or a collateral one. If the promise is an original or an independent one; that is, if the promisor becomes thereby primarily liable for the payment of the debt, the promise is not within the statute. But, on the other hand, if the promise is collateral to the agreement of another and the promisor becomes thereby merely a surety, the promise must be in writing. (Gull v. Lindsay, 4 Exch. 45; and other cases cited under note 2, p. 906, Encyclopedia of Law, vol. 29.)

Just what is the character of a promise as original or collateral is a question of law and fact which in each case be determined from the evidence as to the language used in making the promise, and the circumstances under which the promise was made; and, since as a general rule the parties making a promise of this nature rarely understand the legal and technical difference between the original and a collateral promise, the precise form of words used, even when established by undisputed testimony is not always conclusive. So that is said that "While, as a matter of law, a promise, absolute in form, to pay or to be ’responsible’ or to be the ’paymaster’, is an original promise, and while, on the other hand, if the promisor says, ’I will see you paid,’ or ’I will pay if he does not,’ or uses equivalent words, the promise standing alone is collateral, yet under all the circumstances of the case, an absolute promise to pay, or a promise to be ’responsible,’ may be found to be collateral, or promises deemed prima facie collateral may be adjudged original." (Encyclopedia of Law, 2d ed., vol. 29, p. 907, and many cases there cited.)

If goods are sold upon the sole credit and responsibility of the party who makes the promise, then, even though they be delivered to a third person, there is no liability of the third person to which that of the party promising can be collateral, and consequently such a promise to pay does not require a memorandum in writing; and on the same principle it has been held that when one advances money at the request of another (on his promise to repay it) to pay the debt of the third party, as the payment creates no debt against such third party, not being made at all upon his credit, the liability of the party on whose request and promise it was made is original and not collateral, and not within the Statute of Frauds. (Pearce v. Blagrave, 3 Com. Law, 338; Prop’rs. of Upper Locks v. Abbott, 14 N. H., 157.) But it has been said that if a person for whose benefit the promise is made was himself liable at all, the promise of the defendant must be in writing. (Matson v. Wharam, 2 T. R., 80) And the text writers point out that if this rule be understood as confined to cases where a third party and the defendant are liable in the same way, and to do the same thing, one as principal and the other as surety, it may be accepted as the uniform doctrine of all the cases both in England and in the United States. (Browne on the Statute of Frauds, par. 197, and cases there cited.) In such cases, the defendant is said to come in aid to procure the credit given to the principal debtor, and the question therefore, ultimately is "upon whose credit the goods were sold or the money advanced, or whatever other thing done which the defendant by his promise procured to be done;" and where the defendant stands in the relation to the third party, the defendant’s promise is required to be in writing as collateral." (Browne on the Statute of Frauds, p. 227, and notes 2 and 4.) But it must be clearly recognized that these principles are applicable only where the parties are liable in the same way to do the same thing, one as principal and the other as surety, and for if the credit is given to both jointly, since neither can be said to be surety for the other to the creditor, their engagement need not be in writing.

As has been said before, it is has been frequently a matter of difficulty to determine to whom the credit has actually been given, whether to the defendant alone, in which case the debt is his own and his promise is good without writing; or in part to the third party, in which case the defendant’s promise being collateral to and in aid of the third party’s liability, requires writing to support it, or to both jointly, in which case as has been said in their engagement need not be in writing. This must be determined from the language and expressions used by the parties promising, and from an examination of the circumstances showing the understanding parties. The unexplained fact that charges were made against a third party on the plaintiff’s books, or that the bill was presented to the original debtor in the first instance, unqualified by special circumstances, tends to prove that the credit was given in whole or in part to him, and that the defendant’s promise is a collateral one. (Larson v. Wyman, 14 Wend. (N. Y.) , 639) But it is evidently quite impossible to specify any fact or set of facts on which the question as to whom the plaintiff gave credit is to be determined. In the language of Buchanan, C.J., in Elder v. Warfield (7 Harris & J. (Md.) , 397), "the extent of the undertaking, the expression used, the situation of the parties, and all circumstances of the case should be taken into consideration."cralaw virtua1aw library

Application of these principles has been made where owners of building going up under contract enter into agreements upon the faith of which subcontractors or others have continued to supply labor or material after the principal contractor has become either actually or probably unable to pay. In these cases, the question is whether the services for which the action is brought against the owner of the building were performed solely upon the credit of his promise, to be himself responsible and to pay for the materials and labor furnished, or whether the subcontractors and laborers continued to furnish labor and materials to the principal contractor relying upon his obligation guaranteed by the promise of the owner. (Gill v. Herrick, 111 Mass., 501; Walker v. Hill, 119 Mass., 249; Clifford v. Luhring, 69 Ill., 401; Rawson v. Springsteen, 2 Thomp. & C. (N. Y.) , 416; Belknap v. Bender, 6 Thomp. & C. (N. Y.) , 611; Jefferson County v. Slagle, 66 Pa. St., 202. See Eshleman v. Harnish, 76 Pa. St., 97; Haverly v. Mercur, 78 Pa. St., 257; Weyand v. Critchfield, 3 Grant (Pa.) , 113; Lakeman v. Mountstephen, L. R. 7 H. L., 17.)

Taking into consideration all the circumstances of the case at bar, we are satisfied that the credit for the lumber delivered by the plaintiffs to defendant’s contractor was extended solely and exclusively to the defendant under the verbal agreement had with him, and therefore, that the provisions of the statute did not require that it should be made in writing. Defendant admitted on the stand that his contractor and no commercial credit or standing in the community, and it appears that plaintiffs, after investigation, absolutely refused to extend him any credit whatever upon any conditions and that the defendant was well aware of that fact. From the testimony of the contractor himself, it seems clear that when the agreement for the delivery of lumber was made, the credit was extended not to the contractor but to the defendant. It appears that both plaintiffs and defendant exercised special precautions to see that all the lumber was delivered on defendant’s lot, and that before each bill of lumber was delivered, defendant carefully examined the invoice, which by agreement was submitted to him, and that no lumber was delivered without his approval. The precise language in which the verbal agreement was made does not appear from the evidence, and while it is true that one of the plaintiffs in his deposition, made in the United States, refers to the agreement as one whereby defendant "guaranteed" payment for the lumber, we are satisfied from all the evidence that the word was not used by this witness in this technical sense, and that he did not mean thereby to say that defendant guaranteed payment by the contractor, but rather that after satisfying plaintiff as to his own financial responsibility, he obligated himself to pay for the lumber delivered to his contractor for use in his house. The only evidence in the whole record in doubt, is the testimony of plaintiff’s acting manager during plaintiff’s absence in the United States who stated that he sent a statement of account and a bill for the lumber to the contractor; but this fact, which under ordinary circumstances would be strong evidence that the credit was originally extended to the contractor and merely guaranteed by the defendant, was satisfactorily and sufficiently explained by proof that the plaintiffs were compelled to leave for the United States quite unexpectedly, with no opportunity to go over the accounts with their acting manager, who was left in charge, so that the latter having no knowledge whatever as to plaintiffs’ agreement with defendant, and learning that lumber had been delivered to the contractor, supposed that it had been sold to him, and only discovered his mistake on later investigation and correspondence with his principals, after the contractor had notified him as to the true nature of the transaction.

The judgment appealed from should be affirmed with the costs of this instance against the Appellant. So ordered.

Arellano, C.J., Torres, Mapa, Johnson and Moreland, JJ., concur.

1. CORRECTION OF MINORS; "LESIONES GRAVES;" AGGRAVATING CIRCUMSTANCES. — The fact that a person accused of administering excessive correction to a child is the uncle of the victim cannot be considered as a aggravating circumstance in applying the penalty for the crime of lesiones graves. The nature of the relationship which may either aggravate or mitigate the criminal liability is defined by the first paragraph of article 10 of Penal Code and exist when the injured person is "the spouse, or ascendant, descendant, legitimate, natural, or adopted brother or sister, or relative by affinity, in the same degrees, of the offender."

The defendant inflicted upon his niece, Marcelina Cainela, a girl of twelve years of age, three wounds, which required a little over a month to cure, without medical assistance , and of which on the day of the trial nothing but the scars appeared. The wounds were: one on the thigh, another near it, and another in the back, and were the result of punishment inflicted with a reaping hook, because she had been unable to answer a question in a lesson that he was giving her.

The Court of First Instance of Cebu, taking into consideration the aggravating circumstance of parentage and in addition of that of abuse of a person of tender age, sentenced him to two years and four months of prision correccional, with the corresponding accessory penalties, but credited him with one-half of the time of his detention in prison, and to pay the costs, without subjecting him to pay an indemnity for the reason that no evidence had been adduced as to damages.

Marcelina Cainela declared that she lived with her aunt and uncle, Oliva Insierto and Ramon Insierto, the accused; that the latter was her teacher; that he had been teaching her for a long time and did not beat her when she took lessons, and that he beat her on that occasion only because she had been unable to answer his questions.

By his testimony the accused shows that his mental faculties were somewhat unbalanced ever since he suffered from an affection of the head.

The testimony of Oliva Insierto agreed with the statement of her niece, Marcelina Cainela. With respect to the condition of the accused she testified as follows:jgc:chanrobles.com.ph

"FISCAL. Ramon Insierto, the defendant, has testified that in the month of December, 1908 (when the affair happened), he was insane. Is this true?

"WITNESS. He suffered from that malady after having been wounded.

"FISCAL. Was he not insane before that?

"WITNESS. I do not know, but it is true that the was sick.

"FISCAL. What was the nature of his sickness?

"WITNESS. At first he had pains in the back of the neck and waist."cralaw virtua1aw library

For the simple reason that when the child Marcelina was asked how many days she had been ill she replied more than one month , the injuries inflicted by the accused have been classified as graves. But upon being asked "Who cured you?" she replied: "We ourselves;" that is to say, no medical attendance was required. And, further, it has not been shown whether, as a result, she was unable to attend to her ordinary work.

There is reason to question the classification of the wounds as graves, made by the trial court, in view of the doctrine established by the decision in cassation of the 23d of December, 1876, to wit, that "in classifying injuries where the special circumstances of Nos. 1, 2, and 3 of article 431 of the Penal Code are not involved (416 of the Code of the Philippines), the application of the criminal law depends entirely upon the longer or shorter duration of the medical attendance, or of the inability to work in the fields, all of which must be considered in classifying the injuries;" for this reason the foregoing decision reversed as erroneous the judgment of the lower court classifying a wound that required forty dates to heal as a grave injury, notwithstanding the fact that it was evident that the injured party had not needed medical attendance after twelve days and was not able to attend to his ordinary work.

But admitting as proper the classification of the wounds as graves, in accordance with No. 4 of article 416 of the Penal Code, the result is that the penalty applicable is that arresto mayor in its maximum degree to prision correccional in its minimum degree, to wit, from four months and one day to six months of arresto, and from six months and one day to two years and four months of prision correccional. Hence, by sentencing the defendant to two years and four months of prision correccional, the court below has applied the extreme penalty; it must therefore have taken into account the two aggravating circumstances which have been considered in its judgment; that of the relationship, and of the age of the injured party.

If in the present case it were possible to consider the circumstance of the relationship, the same article 416, by its paragraph 2, raises the penalty for No. 4 to prision correccional in its minimum and medium degrees; and this would be the penalty that should be applied, not that imposed by the court below, which is merely the penalty prescribed by paragraph 4 of article 416 in its maximum degree.

The fact is that the circumstance of the relationship can not be considered, neither as an aggravating circumstance, as stated in the judgment of the court below, nor as a mitigating one as proposed by the Attorney-General in this instance. The relationship which might aggravate or mitigate criminal liability is defined by the first paragraph of article 10 of the Penal Code: "When the injured person is the spouse, or ascendant, descendant, legitimate, natural, or adopted brother or sister, or relative by affinity in the same degrees of the offender." The girl Marcelina Cainela does not come within any of the above degrees of relationship with respect to the defendant, who is simply her uncle, as she calls him.

As to other aggravating circumstance considered in the judgment and also in the brief of the Attorney-General in this instance, to wit, the insult or contempt for the respect which the injured person deserved on account of her age, there is likewise reason for doubt. It is true that there is always reason for reproach if a outsider should lay his hands on a boy or a girl; but the same act done in order to punish a boy or a girl can not be censured if, for example, it were done by the father or the mother. Punishment, even though it be administered by laying the hands on a child, is not per se, a crime, as long as it is reasonable and moderate. Excessive punishment is the kind for which the penal law punishes the father or mother. It is so stated in paragraph 4 of the said article 416: "The injuries which a father may cause his child in too severe correction are ad included in the preceding paragraph (the second paragraph above cited)." Hence, in the case of the father who corrects his child, the circumstances of relationship or age of the child are not considered as modifying for the reason that they are necessarily involved in such a case of excess of correction, which alone is what constitutes the crime of lesiones.

A child who complains of excessive correction received from his father is always a relative and always a minor. The criminal law does not expressly place a teacher in the same position as a father; but on the other hand, when a pupil or a child causes less grave injuries to his teacher or to his father, the law makes the relation of the injured person a reason for increasing the penalty applicable to the offender.

By virtue of the foregoing, and inasmuch as it is proper to consider said circumstance as the only one in the case, as was done in the judgment appealed from, it is our opinion that the penalty imposed by paragraph 4 of article 416 should be applied in the minimum grade of the maximum degree, reducing the same to one year eight months and one day of prision correccional, one-half of the period of detention being credited to the accused.

Thus modified the judgment appealed from is hereby affirmed; provided, however, that the penalty of two years ad four months imposed therein shall be changed to one year eight months and one day, with the costs of this instance against the Appellant. So ordered.

Torres, Mapa, Johnson, Carson and Moreland, JJ., concur.

1. "PACTO DE RETRO;" RIGHT OF VENDOR TO REPURCHASE LAND SOLD. — Held, under the facts stated in the record, that the vendor had done all that he was required to do under the law to repurchase the property sold under a pacto de retro.

An action to repurchase a parcel of land sold under a pacto de retro. The complaint contained the following allegations:jgc:chanrobles.com.ph

"1. On or about the 16th day of September, 1907, the plaintiff executed a notarial deed in Tagalog in favor of the defendant, a exact copy of which, together with its Spanish translation, is attached as Exhibit A, and forms an integral part of this complaint.

"2. The deed mentioned in the foregoing paragraph refers to the sale with pacto de retro, within the term of one year from the execution thereof, of a rice field, for P149.80, made by the plaintiff in favor of the defendant, the description of which land is as follows:jgc:chanrobles.com.ph

"It is located in the barrio of Tubuan, municipality of Pila, La Laguna, and has an area of about two cavanes of rice seed of 3,783 square meters, and is bounded on the north by the shore of the Laguna de Bay; on the east, by land belonging to D. Higino Benitez; and on the west, by an irrigation ditch, known as ’Paraan.’

"3. On or about the 16th of September, 1908, Jose Rinon, of Pila, representing the plaintiff, called on the defendant to redeem the land described in this complaint, and was there from the morning until late at night; but the said defendant was not at his house and did not return that day, and then the said Rinon offered the amount of the repurchase to the plaintiff’s wife, but the latter refused to accept the amount, telling him to wait his husband’s return. On the following day, that is to say, on the 17th of September, 1908, the said Jose Rinon went to the defendant’s house again, but he did not find him. On the third day, that is, on the 18th of the same month of September, 1908, the said Jose Rinon appeared on the defendant’s house once more, and having found him there, he offered him the amount of the repurchase of the land in question but the defendant refused to accept it, stating that he recognized no one but the plaintiff, notwithstanding the statement made by Jose Rinon to the effect that he represented the said plaintiff.

"4. On or about the 20th of September, 1908, as soon as the plaintiff became aware of what had happened to his representative, he went to the defendant personally, ad in a friendly manner repeatedly offered him the amount of the repurchase, but the latter refused, and still refuses, to allow the redemption desired by the plaintiff.

"5. This breach of the contract and bad faith on the part of the defendant has caused plaintiff damages to the extent of P300, of expenses incurred during said friendly demands made in order to effect the repurchase.

"For all the above reasons the plaintiff requests the court to render judgment: (a) ordering the defendant to receive from the plaintiff the amount of the repurchase of the land described in this complaint, after the execution of the deed of retracto; (b) adjudging the defendant to pay the plaintiff the sum of P300 for damages, with the costs of this trial; and (c) allowing moreover, any further relief to which he may be entitled in justice ad equity."cralaw virtua1aw library

The defendant presented an answer as follows:jgc:chanrobles.com.ph

"That he denies each and all of the statements of the complaint generally and specifically, and admits only that the rice field, subject of this complaint, is the same described in Exhibit A of the plaintiff, and as special defense he alleges:jgc:chanrobles.com.ph

"That the right of repurchase alleged by the plaintiff has elapsed according to the precise terms of the sale made by the said plaintiff in favor of the defendant.

"Therefore, the defendant asks the court to render judgment in his favor, absolving him from the complaint, with the costs against the plaintiff, and to allow other proper relief."cralaw virtua1aw library

After hearing the evidence adduced during the trial of the cause, the lower court rendered a judgment in favor of the plaintiff and against the defendant, permitting the plaintiff to repurchase the land in question, as follows:jgc:chanrobles.com.ph

"In this case the plaintiff seeks to redeem the land described in the complaint, which he sold to the defendant with pacto de retro on or about the 16th day of September, 1907, for the sum of P149.80, and for the term of one year, and alleges that on the day of the expiration of the contract, i. e., the 16th of September, 1908, he sent a representative of his to redeem the land and pay the said amount; but, the defendant being absent from his house, the said representative tried to deliver the money to the defendant’s wife; the latter, however, several times refused to accept it, and some days later the defendant also refused to accept the money.

"The defendant answered that the sale of the land in question was made, but he denies that the offer to repurchase had been made to him in due time, and that the period has already elapsed.

"The question then is only whether or not the amount, or value of the land sold under pacto de retro, was duly offered by the plaintiff on the day of the expiration of the contract.

"The preponderance of the evidence has shown that, as to the land sold under pacto de retro by the plaintiff to defendant for the sum of P149.80, on September 16, 1907, an attempt was made to redeem it on September 16, 1908, the last day of the term fixed, and for several days thereafter, which repurchase and delivery of the money to the defendant’s wife could not be affected because of the latter’s refusal, and that of the defendant himself some days later.

"It is then duly established that the plaintiff did his best to fulfill the terms of the contract, by sending the money to repurchase the land sold under pacto de retro, within the term stipulated, and if the repurchase could not be affected, it was due to the behavior and refusal of the defendant, and for this reason the plaintiff is entitled, in my opinion, to repurchase the land in question according to the contract made between the parties.

"Therefore, the court holds that the plaintiff has a right to repurchase the land, after paying the value thereof, that is to say, the sum of P149.80, and the expenses of the deed, and the defendant is accordingly ordered to execute the corresponding deed of resale in favor of the plaintiff, after the repayment of the said amount, the plaintiff having to make the said payment within the period of one month from the day following the notification of this decision, and the defendant shall execute the deed within the period of ten days, ad then the land shall be immediately returned to the plaintiff, after payment of the value thereof. No special finding as to costs. So ordered."cralaw virtua1aw library

After receiving notice of this judgment, the defendant presented a motion for a new trial, which motion was denied. The defendant presented no exception to the order of the court denying his motion for a new trial. This court can not therefore examined the evidenced adduced during the trial of the cause.

In this court the defendant and appellant made the following assignments of error:jgc:chanrobles.com.ph

"1. The court erred in rendering judgment against the defendant notwithstanding the fact that it was proved at the trial, and it was admitted as true by the same plaintiff, Luis Fructo, that the period fixed i the contract has elapsed.

"2. The court erred in rendering judgment to the effect that it has been proven that Luis Fructo, plaintiff, endeavored to exercise his right of repurchase of the land in question on September 16, 1908.

"3. The court erred in rendering judgment ad declaring that the defendant, Maximiano Fuentes, refused to accept the redemption of the land in question on September 16, 1908."cralaw virtua1aw library

Not being able to examine the evidenced adduced during the trial of the cause by reason of the failure of the defendant ad appellant to except to the order of the judge denying the motion for a new trial, we are governed by the findings of fact made by the lower court. Under this findings of fact it is clearly shown that the plaintiff, not only on the day when the contract fell due made an effort to pay the amount due for the purpose of repurchasing the land in question, but on several consecutive days was this effort made. Without intending to hold that the vendor of land under a pacto de retro does not lose his right to repurchase the same on the day of the maturity of the contract, yet where, as in the present case, at the time of the maturity of the contract, he makes a diligent effort to repurchase, as was doe in the present case, and fails by reason of circumstances over which he has no control, we are of the opinion and so hold that he does not thereby lose his right to repurchase his land, by reason of his failure to repurchase on the day of maturity.

The judgment of the lower court is therefore hereby affirmed with costs. So ordered.

Arellano, C.J., Torres, Mapa, Carson and Moreland, JJ., concur.

1. PRINCIPAL; AGENT; SALE OF MERCHANDISE BY AGENT WITHOUT DISCLOSING THE PRINCIPAL. — When an agent transacts business 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 he business were for his own account, to the persons with whom he transacts the same, said persons not having any right of action against the principal nor the latter against the former. (Castle Brothers, Wolf & Sons v. Go Juno, 7 Phil. Rep., 144; Pastells & Regordosa v. Hollman & Co., 2 Phil. Rep., 235; 11 Manresa, 470.)

On the 16th day of July, 1908, the plaintiffs commenced an action against the defendants in the Court of First Instance of the city of Manila, alleging that upon the 26th day of May, 1908, the 5th day of June, 1908, and the 12th day of June, 1908, they sold to the defendant certain merchandise, amounting to the sum of P1,043.57; that said amount was due and unpaid, and prayed judgment for said sum (P1,043.57) with interest and costs.)

To this petition the defendants filed a general denial.

After hearing the evidence, the lower court found as a fact that "the defendants purchased the merchandise in question from Domingo Tim Bun Liu and paid the said Domingo Tim Bun Liu for the merchandise."cralaw virtua1aw library

The lower court further said: "The conclusions are that the defendants have paid for the merchandise described in the complaint, and that they are not liable for payment for the value thereof," and rendered judgment in favor of the defendants and against the plaintiffs and dismissed said complaint, with costs against the plaintiffs.

From this decision of the lower court the plaintiffs appealed and made the following assignments of error:chanrob1es virtual 1aw library

First. The lower court erred in holding as follows: "It also clearly appears that the defendants have paid for the merchandise described in the complaint, and that they are not liable for payment for payment for the value thereof," and rendered judgment in favor of the defendants and against the plaintiffs and dismissed said complaint, with costs against the plaintiffs.

Second. The lower court erred in holding that the plaintiffs never notified the defendants, in any way, that their employee, Domingo Tim Bun Liu, could sell their merchandise, but could not receive payment for it, and that the defendants never had notice that their business transactions with Domingo Tim Liu were by him as agent or employee of the plaintiffs.

Third. The court erred in holding that the plaintiffs accepted payment through Domingo Tim Bun Liu.

Fourth. The court erred in holding that "the defendants having in good faith purchased the goods upon an agreement to pay for them in merchandise of their own, under an agreement with the person from whom they received the goods, to so pay for them, could not be held responsible for the failure of the plaintiffs’ employee to deliver to his employers, that which was received in payment."cralaw virtua1aw library

Fifth. The court erred in admitting as evidence Exhibit D (1), Exhibit D (2), and Exhibit D (3).

Sixth. The court erred in dismissing the plaintiffs’ complaint and in deciding in favor of the defendants.

Upon the assignments of error the plaintiffs and appellants present three questions:chanrob1es virtual 1aw library

First. Did the defendants purchase directly from the plaintiffs?

Second. If not, did the defendants have sufficient notice of Domingo Tim Bun Liu’s relations with the plaintiffs to place them on their guard?

Third. If the last is answered affirmatively, then was the payment by the defendants to Domingo Tim Bun Liu, in something other than cash, binding on the plaintiffs?

With reference to the first question?" Did the defendants purchase directly from the plaintiffs?" there is much conflict in the testimony. The lower court answered this question in the negative. It appears that the defendants had been buying merchandise from Domingo Tim Bun Liu for a period covering several months, and paying for said merchandise by selling to Domingo Tim Bun Liu certain merchandise in exchange, and from time to time settling their accounts by the defendants paying to the said Domingo Tim Bun Liu the difference, if any, in his favor, and by Domingo paying to the defendants the difference of the accounts, if there was found to be due them any balance on such settlements. The defendants claim that they had no knowledge or information that the merchandise which they were receiving from Domingo Tim Bun Liu was the merchandise of the plaintiffs. This contention of the defendants is supported by the fact that during all of the period during which they were doing business with Domingo, their books of account were kept with Domingo, their books of account were kept with Domingo Tim Bun Liu, and not with the plaintiffs. The plaintiffs contend that for a certain of the merchandise sold by Domingo Tim Bun Liu to the defendants Domingo presented a bill in their favor. In this proof the plaintiffs attempt to establish the fact that the defendants knew that they were dealing with them and not with Domingo Tim Bun Liu.

In answer to this contention, the defendants contend that the only bill Domingo presented to them for merchandise belonging to the plaintiffs was for the purpose of showing that he, Domingo, was charging the defendants for the merchandise in question the same price which he had been obliged to pay to the plaintiffs.

The fact is not disputed that Domingo Tim Bun Liu purchased all or nearly all of the goods which he sold to the defendants, from the plaintiffs. We think a fair preponderance of the evidence of the evidence shows that the defendants, in their dealing with Domingo Tim Bun Liu believed that they were dealing with him and not the plaintiffs. There is no proof that Domingo ever notified the defendants that Domingo Tim Bun Liu was acting as their agent in selling the merchandise which they purchased of him.

It being established by a preponderance of he evidence that Domingo Tim Bun Liu acted in his own name in selling the merchandise to the defendants, and that the defendants fully believed that they were dealing with the said Domingo Tim Liu, without any knowledge of the fact that he was the agent of the plaintiffs, and having paid him full for the merchandise purchased, they are not liable to the plaintiffs, for said merchandise, even though it be admitted that Domingo Tim Bun Liu was in fact the agent of the plaintiffs in selling the merchandise in question. This is true whether the transaction is covered by the provisions of the Civil Code (art. 1717) or by the provisions of the Commercial Code (art. 246). Said article 1717 provides:jgc:chanrobles.com.ph

"When an agent acts in his own name, the principal shall have no action against the persons with who the agent has contracted, nor the said persons against the principal."cralaw virtua1aw library

Said article 246 provides that: "When an agent transacts business 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 won account, to the persons with whom he transacts the same, said persons not having any right of action against the principal, nor the latter against the former, the liabilities of the principal and the agent to each other always reserved."cralaw virtua1aw library

(Castle Brothers, Wolf & Sons v. Go Juno, 7 Phil. Rep. 144; Pastells & Regordosa v. Hollman & Co., 2 Phil. Rep., 235; 11 Manresa, 470; Munroe v. Kearney, 17 Ohio, 572.)

Having reached the above conclusions, we deem it unnecessary to further discuss the assignments of error and the questions presented by the Appellant.

In view of the foregoing reasons, the judgment of the lower court should be and is hereby affirmed. So ordered.

Arellano, C.J., Torres, Mapa, Carson and Moreland, JJ., concur.

1. DEBTS AND DEBTORS; ACTION UPON A DEBT CONTRACTED IN MEXICAN CURRENCY; JUDGMENT. — In an action to enforce the payment of a debt contracted in Mexican money, when judgment is rendered in Philippine currency, as required by law, it is not proper to make the conversion from one currency to the other at a Government rate which is not in force at the time of the rendition of the judgment. In such a case, it is the duty of the court to receive evidence as to the real and just value of the debt in Philippine currency, in accordance with section 3 of Act No. 1045.

The appellants herein presented a claim for 2,890.59 pesos to the committee of appraisal of the estate of Victorino Buhay, which they allege was due by the deceased to their principal, Telesforo Chuidian, together with interest thereon at the rate of 10 per cent per annum from the 9th of February, 1898, when the debt was contracted, and 180.66 pesos in addition thereto on account of a certain commission agreed to in favor of the creditor, Chuidian. Subsequently the last-named amount was remitted, whereby their claim was reduced to the two items first mentioned.

The court below ordered the administrator of the estate to pay the sums claimed. The said order is as follows:jgc:chanrobles.com.ph

"While the court was in full session this administrator admitted the contract which the plaintiff claims had been entered into with the deceased while living. Upon examination of the said contract it was shown that Buhay owed the heirs of Chuidian the sum of 2,890.59 pesos and also the sum of 2,910.55 pesos for interest up to the 6th of March, 1908, with interest thenceforth on the principal amount at the rate of 10 per cent per annum until payment is made.

"Said contract was made in Mexican currency and it should be converted into Philippine currency at the official ratio established by the Government of the Philippine Islands on this date.

"This claim with respect to the amount already referred to is hereby approved, and the administrator is hereby ordered to pay the said sum immediately."cralaw virtua1aw library

The plaintiffs excepted to the above order solely in so far as it ordered the conversion of Mexican into Philippine currency at the official ratio which, according to said order, ruled at the time when the order was issued.

The fact established by the trial court that the debt had been contracted in Mexican currency is either denied nor discussed in the brief of the appellants, nor is the propriety of converting the obligation into Philippine currency discussed. The only objection made by them is to the conversion at the official ratio mentioned in the order appealed from, maintaining that it should be done at par. And they allege as a reason and basis for their pretension that the administrator of Buhay’s estate made no objection to the admittance of the debt, as it appears in the account marked as Exhibit A (p. 11 of the bill of exceptions), when the matter was brought before the commissioners for appraisal, the amounts being stated therein in figures with the proper sign for Philippine currency. In support of said allegation they insert in their brief a copy of the record of the appearance before the commissioners for appraisal which, among other things, literally reads "that the administrator admits the document presented by the other party acknowledging at the same time the credit therein stated for P2,890.59 3/8." The document herein referred to is the account marked as Exhibit A which has just been mentioned.

The record of appearance before the commissioners for appraisal has not been submitted to this court, nor was it made a part of the bill of exceptions which we have before us, for which reason we can not take it into account in rendering a decision in this matter. This court can not base its decisions on evidence which is not before it, it being of course the duty of the appellants to take all the necessary steps to have the same submitted to this court in those cases in which is desired, and the law grants, a review of the evidence.

As to the rest, if the said document or record of appearance were to be considered, it would be seen that there is nothing therein to support the pretension of the appellants, inasmuch as the figures which represent the amounts are not indicated with the proper sign of the Philippine currency. The Philippine peso is represented by means of this sign: "P" (Executive Order No. 66, August 3, 1903), and that used in the above-cited record is this other: "P;" this last sign is certainly in use to signify pesos, but pesos in general, not particularly Philippine pesos.

The same must be said with respect to the account, Exhibit A, and it should further be noted that therein the signs" $" and "P" are used indiscriminately, which fact shows that the parties did not attach much importance nor pay much attention to the question of signs, apparently considering it as a matter of small consequence. It is well known that the sign" $" indicates money of the United States, as recognized in Executive Order No. 66, above cited. It is true that in the copy of said Exhibit A, which appears at page 11 of the printed bill of exceptions, there appears the sign "P," but this is evidently an error in copying or on the part of the printer, because, in the original (p. 12), the said sign does not appear, but shows the letter "P." Therefore, the allegation of the appellants, which the appellee has denied in his brief, that the latter had agreed to pay the debt in Philippine currency on the basis of one Philippine peso for one Mexican peso, at par, is unfounded.

The order appealed from directs a conversion of the Mexican currency into Philippine currency at the official rate established by the Government and in force on the date of said order (March 6, 1908). The order is erroneous and should be revoked. Section 7 of the Act of Congress of March 2, 1903, provides as follows:jgc:chanrobles.com.ph

"That the Mexican silver dollar now in use in the Philippine Islands and the silver coins heretofore issued by the Spanish Government for use in said Islands shall be receivable for public dues at a rate to be fixed from time to time by the proclamation of the Civil Governor of said Islands until such date, not earlier than the first day of January, nineteen hundred and four, as may be fixed by public proclamation of said Civil Governor, when such coins shall cease to be so receivable."cralaw virtua1aw library

By virtue of this provision, Executive Order No. 1, dated January 1, 1904, was issued providing that "The Insular Treasurer and each provincial treasurer in the Philippine Islands shall . . . exchange on demand Philippine currency for said Spanish-Filipino currency at such rates as the Insular Government may, from time to time, determine."cralaw virtua1aw library

Such was the purpose in fixing said rates: that it might serve as a basis or official standard in exchanging at the treasuries the so-called local currency for Philippine currency during the period while the said local currency should be received in payment of dues, it being the duty of the Insular Government to fix the date when it should cease to be so receivable. And the said date was fixed by the Government by Executive Order No. 8 of March 11, 1907, providing that "from the 1st day of July, 1907, the Insular Treasurer and all provincial treasurers shall cease to redeem the silver coins . . ." (Spanish-Filipino, Mexican, etc.) .

The redemption of the local currency having been thus prohibited, the reason for the official ratio between said currency and the Philippine currency ceased; consequently no official rate of exchange whatever existed on the 6th of March, 1908, when the order appealed from was rendered, for the reason that it had been abolished. As no such ratio existed at the time, it can hardly serve as a basis, even though it be supplementary, for the conversion of Mexican into Philippine currency; the order above alluded to can not therefore be sustained with reference to this point.

In order that the true equivalent of the two above-mentioned classes of currency may be established, the contending parties should be given an opportunity to present evidence in connection with the matter in the manner provided by section 3 of Act No. 1045 of the Philippine Commission, inasmuch as the debt was contracted in Mexican currency, did the payment must be ordered in Philippine currency, precisely in accordance with said Act.

The order appealed from is hereby set aside in so far as it directs that the amount claimed be converted into Philippine currency at the official ratio said to be ruling on the 6th of March, 1908; a new trial shall be held for the sole purpose of permitting the parties to present evidence as to the actual value of the Mexican money as compared with Philippine currency, which shall serve as a basis for the reduction of the said debt to Philippine currency as must be ordered in the judgment to be rendered. Without special finding as to costs. So ordered.

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

1. LOSS OF PROPERTY BY SUPERIOR FORCE; DAMAGES NOT RECEIVABLE. — Damages can not be recovered for the loss of property when it is not proven that the defendant had possession thereof and that it was lost through his fault. Nor can such recovery be had when it is clearly shown that the loss was due to superior force and not to any fault of the possessor.

In the year 1904, Santos Capadocia brought an action against Celestino Montero for the recovery of P501, with legal interest thereon, due him since the year 1900.

As Celestino Montero was sentenced by the court of the justice of the peace of San Jose, Province of Antique, to pay the debt, the sheriff of Antique levied upon the property of Montero on the 5th of February, 1905, and sold it at public auction on the 5th of March following, and the property was adjudicated to the said Santos Capadocia.

The property levied upon and sold was (a) a wooden house and its lot situated in the town of San Pedro, a suburb of the municipality of San Jose; (b) a house of mixed materials and a lot in the barrio of Belison with an area of 1 hectare and 70 ares: (c) a parcel of rice-producing land in the barrio of Belison with an area of 50 ares; (d) another parcel of rice-producing land situated in the sitio of Lugutan, San Pedro, with an area of 1 hectare; (e) another parcel of rice-producing land situated in the sitio of Soong, San Pedro, with an area of 1 hectare; and a parcel of land located in the sitio of Casudlan, San Pedro, with an area of 5 hectares. A description showing the respective boundaries of the above-mentioned properties appears in the record.

On the 29th of January, 1907, there appeared Ignacio Arroyo, administrator of the intestate estate of Blas Gerona, claiming the property above referred to as belonging to the intestate estate, and demanded the recovery thereof from the possession of Santos Capadocia who held and continues to hold the same, together with P500, as indemnity for damages. As a second cause of action, he alleged that the sheriff of the Province of Antique levied upon the said property and sold it at public auction without regard to the formalities prescribed by the law, for which reason he prayed that the sale be declared null and void.

Capadocia interposed a demurrer, which was subsequently overruled by the Court of First Instance of Antique, by which the matter was heard, to which the defendant excepted, and when answering the complaint he pleaded a general denial. The sheriff, in addition to denying that portion of the complaint that referred to him, alleged as special defense that he had acted in conformity with the provisions of the law.

The case came up for trial and the plaintiff offered in evidence a copy of a public instrument, said to have been executed by Celestino Montero at San Jose de Buenavista on the 19th of July, 1902, before the clerk of the Court of the First Instance and notary public ex officio in said province, Anacleto Villavert Jimenez, in order to prove the sale by Montero of the property in question to Blas Gerona, and also the testimony of witnesses to identify the same as the property that was attached and sold, and for other purposes; the defendant likewise offered both documentary and oral evidence. The trial court entered judgment in the following terms:chanrob1es virtual 1aw library

1. That the provisions of the law regarding the advertising and sale of the property levied upon had not been complied with, and in consequence thereof it was held that the auction sale made by the defendant sheriff was null and void; that therefore the defendant Santos Capadocia did not acquire the ownership of the said property.

2. That, in view of the evidence, the said property pertains to the intestate estate of Blas Gerona, and said intestate estate owned the same before the attachment was made; it was therefore ordered that the plaintiff recovered the possession and enjoyment of the property, and that the defendant Santos Capadocia pay the plaintiff P300 for the value of the house described in paragraph (a) of the complaint, which the former caused to be demolished, and P50 for the house described in paragraph (c).

3. The claim presented by the plaintiff for 68 cavanes of paddy from the lands levied upon was dismissed for the reason that Celestino Montero or his heirs, who has the lease of said lands, owned the same, reserving, however, such right of action as he might have against the latter to obtain from them the grant of the lease.

4. That the plaintiff was entitled to recover the fruits of said lands from the 19th of July, 1907, until the day the property is delivered, as well as the legal interest on the value of the houses claimed, from the date of the judgment, October 24, 1907, and to the payment of the costs.

Against the foregoing judgment the defendant Santos Capadocia has appealed, submitting to this court a bill of exceptions, and he has the right to have the evidence reviewed. The following errors have been assigned to said judgment:chanrob1es virtual 1aw library

1. In having overruled the demurrer.

2. In having admitted as evidence Exhibit A of the plaintiff.

3. In having admitted the legal capacity of the plaintiff as representative of the intestate estate of Blas Gerona.

4. In having affirmed that the appellant had enforced execution against property belonging to said intestate estate.

5. In having declared that the property claimed in the complaint was owned by said intestate estate before it was levied upon.

6. In having declared that neither the record of the auction sale nor the advertisement thereof appear in the proceedings in the court of the justice of the peace.

7. In having established that it was the duty of the defendants to present evidence that the advertisement of the sale had been legally effected; and

8. In having determined that P300 is the value of one of the houses, adjudging the appellant to pay said sum, as well as P50, the value of the other house, and the costs.

As to the first and third assignments of error, none has been committed in overruling the demurrer, for the same reasons contained in the decision of the court below; therefore, the exception thereto is hereby overruled.

The fourth assignment of error is of no importance; the intention was to state that there was no truth in the affirmation that the appellant had designated any property on which the sheriff might have brought an execution.

As to the second assignment of error, which is of more importance in connection with this question, the record shows that Exhibit A is a copy of the instrument of sale issued by the notary public before whom the same was executed, and by whom it was certified in accordance with the provisions of the Spanish notarial law followed at the time by contracting parties and the notary. As required by said legislation, the original instrument was drawn up by the notary in his protocol, and a true copy of the same was issued by him to the interested parties.

The said exhibit A was offered in evidence, whereupon the representative of the appellant objected because it was not the original instrument; but as it was admitted by the court below, he limited himself to the following cross-examination:jgc:chanrobles.com.ph

"Q. Is the original of this document on file at your office? — A. I have now forwarded it to the keeper of the archives in Manila.

"Q. And formerly did you only issue a copy of the original instrument? — A. Yes, sir.

"Q. For what reason did you keep the original instrument? — A. To comply with the notarial law in force at the time."cralaw virtua1aw library

He said that the original had been forwarded to the custodian of the archives of the Philippine Islands on the 1st of March, 1904.

"Q. Have you any record in your office regarding the remittance of the original of this document? — A. Yes, sir; I have an inventory which was sent to me by the chief of the division of archives.

"Q. Can you produce the record of the remittance of the original of the said document? — A. Yes, sir, as soon as the court orders it.

"THE COURT. If it is only an inventory it is all right, go and get it. (This the witness did.)

"WITNESS. Here is the inventory and receipt from the custodian of archives wherein he acknowledges receipt of the documents sent in the protocols.

"Q. That is all."cralaw virtua1aw library

With regard to the sixth and seventh assignments of error, not having before us case 133, with reference to which the court below has stated that neither in the record of the sale nor in the advertisement of the same had the provisions of the law been complied with, nothing can be established in this decision as a ground for affirming the first of the findings in the judgment, in so far as the sale made by the defendant sheriff is thereby held to be null and void. Therefore the said finding is hereby revoked.

The fifth assignment of error is directed against the second finding in the judgment, whereby the claim for the recovery of possession is granted by virtue of the evidence offered at the trial. With the exception of two points the trial court has not committed the error attributed to it. It has rendered its decision upon the evidence and judging by the preponderance of that offered by the plaintiff, it has held that the property now claimed was owned by the intestate estate of Blas Gerona when the same was attached by virtue of the order of execution issued in favor of the appellant in an action brought against the original owner thereof, Celestino Montero, who sold it to Blas Gerona prior to said execution, after which he died intestate. This preponderance of evidence arose, in the opinion of the judge, because of Exhibit A and the testimony of the witnesses who identified the property.

Against such preponderance of evidence thus considered, we find in the proceedings in general nothing to destroy it, nor in so considering it has the court below violated any law. Therefore, the second finding in the judgment must be affirmed, with the exception of two points which are outside the scope of the finding.

In the complaint, the right of ownership of Blas Gerona is set forth in paragraph (c) to:jgc:chanrobles.com.ph

"One house of strong materials with a wooden floor, nipa sides, and cogon roof, erected on the said lot of Belison (b), being 6 brazas frontage and 5 deep, which house and lot are assessed at $150 Mexican currency."cralaw virtua1aw library

In the letter (a) another house is described as a wooden house with its corresponding lot within the suburb of San Pedro with the boundaries as described therein.

Hence, claim is made for two houses, and as they no longer exist, the trial court orders the defendant to pay P300 as the value of the house described in paragraph (a), and P50 as that of the one described in paragraph (c).

In the first place, the second finding in the judgment can not be affirmed, in so far as it declares that the intestate estate of Blas Gerona is the owner of all the property claimed, for the reason that it does not own the house mentioned in paragraph (c). The real proof of said ownership adduced by the plaintiff is the public instrument marked as "Exhibit A," and in no manner does it appear therein that said house, which was erected on the lot in Belison (b), was ever sold by Montero to Gerona. Therefore, whether the building was destroyed or not, the plaintiff has nothing to do with a house of which he does not seem to be or ever to have been the owner, and this disposes of the indemnity of P50 that the court below awarded him by the second finding.

In the second place, even admitting that Gerona and his intestate estate owned the house described in paragraph (a), and that if it existed, the judgment, in so far as it orders the same to be restored to the owner, would be in accordance with the law, yet as it has been shown at the trial that the loss of the house was not due to the fault of the possessor, Capadocia, but to superior force exercised by the municipal authorities of San Jose, Antique, proven in the proceedings by the testimony of said municipal president and by that of another witness, neither of whom have been discredited, the possessor in good faith can not be held liable for the value of the house.

Therefore, that portion of the second finding which orders that the defendant Santos Capadocia shall pay to the plaintiff P300 as the value of the house described in paragraph (a) of the complaint, and P50 for the house described in paragraph (c), can not lawfully be affirmed.

For the reasons above set forth, the judgment appealed from is affirmed in so far as it orders "that the plaintiff, as owner of the property claimed, shall recover the possession and enjoyment of the same," in so far as it "adjudicates to the said plaintiff the products that the said lands may have yielded from the 19th of July, 1907, until the date of their delivery," and in so far as it "orders the defendants to pay the costs of the proceedings." With costs of this instance against the Appellant. So ordered.

Torres, Johnson, Carson and Moreland, JJ., concur.

1. FALSIFICATION OF A PUBLIC DOCUMENT. — The simulation of a public or official document, done in such a manner as to easily lead to error as to its authenticity, constitutes the crime of falsification. It is not essential that the falsification shall have been made in a real public or official document.

Amadeo Corral maintained Paz Ramos as his wife or seamstress. The latter left his house and appeared at the police station in Paco and complained that he had illtreated her. Corral came after the woman Ramos and they left the station together. Later, however, Corral appeared at the same station asking if he could cause the woman’s arrest because she had left his house, taking with her a trunk and a diamond ring; the sergeant asked him for his address and in reply he handed him his card (Exhibit C). He then wrote to the justice of the peace of Corregidor Island, inquiring whether he could file a complaint against her in the court of the said justice; his letter having been answered, one day Corral met the wife of the said justice of the peace in Manila, gave her his card (Exhibit E), offered her his services and informed her of the departure of the woman Ramos.

On another day the municipal president of Corregidor received a warrant by mail (Exhibit A), sent for Ramos and said to her: "Here is a warrant and Captain Crame wants you because there is against you in the hands of the fiscal," and read to her document A, wherein she is charged with having taken away one trunk and a diamond ring. Juan Mapa appeared before the municipal president with a card from the accused (Exhibit F), and the former surrendered to him the person of Paz Ramos in compliance with the order of arrest, so that he could turn her over to the police in Manila.

Paz Ramos and Juan Mapa came to Manila, and Juan Mapa testifies that: "We got ashore, and I gave the letter, that is, the warrant (Exhibit A) to the first policeman I came across and turned Paz Ramos over to him."cralaw virtua1aw library

Tiburcio Quiogue, who is the policeman above alluded to, testified to the same effect, saying that it was 9 in the evening when he received the paper in the form of an order by Captain Crame, and that no sooner was he about to read the same than Corral made his appearance and told him that he could not consent to the arrest of his wife, and that no attention should be paid to the paper because it was a forged document and that the order it contained was not a real one; he said that whatever the said certificate might be, that he should not read it because it was a falsified document. Hardly had he commenced to read the first words when Corral snatched the paper from his hands and tore it to pieces, throwing them to the ground, from whence they were picked up by Juan Mapa or someone else who was there, and delivered to the policeman. Therefore it was possible to present the document, pieced together, to the court. The document is of the following tenor:jgc:chanrobles.com.ph

"Dec. 15, 1908.

"The Municipal President of Corregidor.

"SIR: It is desired to know the whereabouts of Señora Paz Ramos (alias) de Corral, a resident of No. 144, interior, Calle San Marcelino, who left on the 4th day of the present month, taking with her one trunk which contained several articles of value, a diamond ring, and several important documents which are now in the hands of the prosecuting attorney, Mr. George.

"Enclosed I send a copy of the warrant for the arrest of the said woman for proper action.

"‘To all officers of the law, greeting:jgc:chanrobles.com.ph

"‘The arrest of Paz Ramos (alias) de Corral is hereby ordered, she having been charged before me with the crime of theft. Let her be brought over to my presence as soon as possible in order that the law may be applied as it may be proper.

"‘Given at Manila on the 7th day of December, 1908.

(Signed)" ’R. ZARAGOZA,

"‘Asst. Prosecuting-Attorney.’

"Very respectfully,

"J. CRAME,

"Captain of Police."cralaw virtua1aw library

An indorsement on the back of the order of arrest shows that the same was complied with, and that Paz Ramos was sent to Manila by the municipal president of Corregidor, in charge of Mapa.

The accused does not deny Exhibit A, and says that he saw it in the hands of a policeman on the Muelle de la Reina one night in December when, together with Paz Ramos, he was sent to the Cuartel at Meisic where Sergeant Keses asked why he had torn that paper; he answered that it was because it was not an official document, and at the trial he added that it was nothing at all, not an official letter, and that, as he was in bad temper, he tore it up. When questioned as to whether he had read that letter he answered that he read "the first portion of the letter ’President de Corregidor.’"

The Court of First Instance of Manila sentenced the accused to eight years and one day of prision mayor, and to pay a fine of P250, with costs.

The defendant has appealed from said judgment, and the Attorney-General has requested that the same be affirmed, save that the penalty shall be of presidio mayor instead of prision mayor, as imposed in the judgment, with the addition of the accessory penalties prescribed by the law.

In his brief the Attorney-General states that the signature of Captain Crame has been counterfeited with sufficient likeness; that an order of arrest which had not been simulated; that an official documents has been imitated; that it matters not that the same of the fiscal, who appears to have issued the same, is improperly written, or that the signature of Captain Crame lacks a de, which he uses in signing, or that the document should bear no official seal or heading because, on the other hand, the official titles "Assistant Prosecuting Attorney" and "Captain of Police," following the signatures, and the wording of the order of arrest being in due form, are of more importance than the seal, the heading, and the exactness of the signatures in including belief in the truth of what was set forth; that this is true to such extent that the municipal president of Corregidor hastened to comply with the order in question, believing it a genuine one contained in a request which he also thought was genuine made by the said captain of police.

As the crime of falsification punished by article 301 in connection with article 300 (No. 1), of the Penal Code has been committed, without any circumstance modifying the liability therefore, the judgment appealed from is in accordance with the merits of the case, the provisions of the law, and the contentions of the Attorney-General.

Therefore, the judgment appealed from is hereby affirmed: Provided, however, that the sentence shall be presidio mayor and that the accused be further sentenced to suffer the accessory penalties of article 57 of the code with the costs of this instance, and it is so ordered.

Torres, Johnson, Carson and Moreland, JJ., concur.

1. CONTRACT FOR THE SALE OF LAND; EVIDENCE; FAILURE TO OBJECT. — The decisions in the case of Thunga Chui v. Que Bentec (2 Phil. Rep., 561) and Couto v. Cortes (8 Phil. Rep., 459) followed to the extent of holding that "an oral contract for the sale of real estate, made prior to the enactment of the Code of Procedure in Civil Actions, is binding between the parties thereto." The contract exists and is valid thought it may not be clothed with the necessary form, and the effect of a noncompliance with the provisions of the statue (sec. 335 of the Code of Procedure in Civil Actions) is simply that no action can be proved unless the requirement is complied with; but a failure to except to the evidence because it does not conform with the statue, is a waiver of the provisions of the law. If the parties to the action, during the trial, make no objection to the admissibility of oral evidence to support the contract of sale of real property, thus permitting the contract to be proved, it will be just as binding upon the parties as if it had been reduced to writing.

On the 16th day of January, 1906, the plaintiffs commenced an action against the defendants to recover, as owners, certain parcels of land located in the pueblo of Molo, Province of Iloilo, together with damages, which parcels of land are more particularly described in paragraph 6 of the complaint.

The defendants, by their answer, allege that they are the owners of the parcels of land in question. The question thus presented by the complaint and answer was simply, Who are the owners of said parcels of land?

After hearing the evidence adduced during the trial of the cause, the lower court found that the plaintiffs were the owners and were entitled to the possession of all of the parcels of land described in said paragraph 6 of the complaint, except that parcel, together with the house located thereon, described in subsection (d) of said paragraph 6. This latter parcel of land the lower court held belonged to the estate of Vito Tiongco.

In discussing the evidence adduced during the trial relating to the question of ownership of said house and parcel of land, the lower court said:jgc:chanrobles.com.ph

"The preponderance of evidence in this case establishes the fact that the house in question, with the tile roof, was originally the property of Catalina Tiongco, sister of Anselma, which was afterwards left to Anselma by virtue of the will made by Catalina before her death, and that after that time, probably in 1887, her nephew, Vito Tiongco, was appointed gobernadorcillo of Molo, whose appointment was contested with much animosity, among other objections adduced against him being the allegation that he was not the owner of any realty. In order to counteract his opposition and avoid his being defeated for that reason, Anselma, who then possessed many properties, put him into possession of the said tile-roofed house as apparently his own property. He lived in the house from that date up to the time of his death in 1904 and as appeared to everybody, he considered it as if he was the real owner thereof. He made many repairs as well as alterations in the house on his account and to suit his own wishes. From the weight of the evidence I find that, after being put into possession of the house in the manner above mentioned, Anselma agreed that he could have the house as his own if he would pay to her P3,000, which sum is alleged to be the amount paid by her sister Catalina for the death of Anselma, he had paid this sum to the satisfaction of Anselma, and, while I can not find any formal conveyance of the property on the part of Anselma, I do find that some time subsequent to that date he claimed it as his property and it was recognized as his own, therefore, I am inclined to find that the house with tile roof was, at the time of the death an Anselma, really the property of Vito Tiongco, her nephew."cralaw virtua1aw library

From this decision of the lower court the plaintiffs appealed and made the following assignments of error in this court:jgc:chanrobles.com.ph

"First. In allowing the defendants to prove, by means of oral evidence, the ownership of the said realty.

"Second. In declaring that Anselma Tiongco sold the realty in question to Vito Tiongco."cralaw virtua1aw library

The appellant in his brief said:jgc:chanrobles.com.ph

"The question now at issue in this court is limited to the said house."cralaw virtua1aw library

The appellant contends, in his first assignment of error, that the lower court committed an error by allowing the defendants to prove the sale of said parcel of land by Anselma Tiongco to Vito Tiongco, in or about the year 1887, by oral proof. The simple question presented is, May the sale of real property made in 1887 be proven by oral testimony? In support of his contention the appellant cites articles 1278, 1279, and 1280 of the Civil Code. These articles of the Civil have already been construed by this court in the cause of Thunga Chui v. Que Bentec (2 Phil. Rep., 561), where the court held that "An oral contract for the sale of real estate, made prior to the enactment of the Code of Civil Procedure, is binding between the parties thereto, although it may still be necessary for the parties seeking to enforce such contract to take some action to secure the execution of proper documents, but this requirement will not render the agreement invalid."cralaw virtua1aw library

Section 335 of the Code of Procedure in Civil Actions, now in force, has established a rule relating to the method of proving contracts of sale of real property, and an oral contract for the sale of real property can not now be proven under said section 335 except "some note or memorandum thereof be in writing and subscribed by the party charged or by his agent." However, said section (335) makes no attempt to render such contracts [oral contracts] invalid. It simply provides that the contract shall not be enforced by an action, unless the same is evidenced by some note or memorandum. This provision (sec. 335) for the code simply provides how contracts for the sale of real property shall be proved. It does not attempt to make contracts invalid which have not been executed in writing. This provision does not go to the existence of the contract, except when made by and agent (par. 5 of sec. 335). It simply requires a form of contract. The contract exists and is valid, though it may not be clothed with the necessary form and the effect of a noncompliance with the provisions of the statute is simply that no action can be proved unless the requirements is complied with; but a failure to except to the evidence because it does not conform with the statute is a waiver of the provisions of the law. (Anson on Contracts, p. 75.) If the parties to the action, during the trial make no objection to the admissibility of oral evidence to support a contract of sale of real property, and thus permit the contract to be proved, it will be just as binding upon the parties as if it had been reduced to writing. In the present case the defendants called thirteen witnesses, who each testified concerning the sale of the parcel of land and the house in question by Anselma Tiongco to Vito Tiongco, in or about the year 1887, and no objection was made by the plaintiffs to the admissibility of this testimony. The plaintiffs did not invoke the provisions of section 335. They permitted the defendants to prove the oral contract of sale. The contract of sale, therefore, being fully proven, and under the provisions of the law an oral contract for the sale of real property being binding and valid between the parties, we see no escape from the conclusion that if the evidence was sufficient to show the sale, that the contract was binding, even though it had not been reduced to writing.

The second question is, then, Was the evidence adduced during the trial sufficient to show that Anselma Tiongco sold the parcel of land in question to Vito Tiongco in or about the year 1887? The lower court found that a preponderance of the evidence showed that the sale had actually been made. Upon a full consideration of the evidence adduced during the trial upon this question, we are satisfied and so hold that a large preponderance of the evidence shows, beyond question, that said sale took place and that Vito Tiongco, at the time of his death was the owner of the said parcel of the land.

For the reasons heretofore stated, the judgment of the lower court is hereby affirmed, with costs. So ordered.

Arellano, C.J., Torres, Mapa and Moreland, JJ., concur.

1. CRIMINAL PRACTICE AND PROCEDURE; ABORTION; CONVICTION FOR CRIME SHOWN BY THE EVIDENCE. — When in a complaint upon which criminal proceedings were instituted facts are stated showing maltreatment of a pregnant woman, causing an abundant hemorrhage followed by abortion, for which reason she was ill during eight days, although the complaint charged the crime of lesiones, once it is proven that the act perpetrated really constitutes the crime of abortion, and that the accused and his counsel knew the contents of the complaint, and when questioned by the court pleaded not guilty, denied the charge of having so illtreated the woman as to occasion the hemorrhage and consequent abortion, fully defending himself against the charge, it is perfectly lawful and just that there should be applied the penalty prescribed for the crime shown to have been committed and not that for the crime erroneously set out in the title of the complaint.

On the evening of March 1, 1909, while Teodorica Saguinsin was in a Chinese shop situated in Guadalupe, municipality of San Pedro Macati, Rizal Province, a man named D. B. Jeffrey appeared therein, and, without any apparent reason whatever, struck the woman three times on the hip with a bottle that he was carrying, in consequence of which the woman fell to the ground with an abundant hemorrhage from the womb; she was immediately taken to her home in a carretela, and being three months pregnant she had a miscarriage on the following day, according to the examination made by the president of the municipal board of health. The woman was ill and unable to attend to her usual duties for forty-five days.

Therefore a complaint was filed by the provincial fiscal with the Court of First Instance of said province on the 5th of June, 1909, charging D. B. Jeffrey with the crime of lesiones menos graves, whereupon these proceedings were instituted. The trial court sentenced the accused, on the 19th of August, 1909, to the penalty of forty-five days of arresto mayor, to pay a fine of 325 pesetas, to indemnify the injured woman in the sum of P50, and, in case of insolvency in the payment of the fine and the indemnity, to suffer the corresponding subsidiary imprisonment, not, however, to exceed one-third of the main penalty, and to pay the costs. From this judgment defendant’s counsel has appealed.

From the facts above related it is clearly shown that the crime of abortion, defined and punished by article 411 of the Penal Code, has been committed, inasmuch as, in consequence of the maltreatment received, on the evening of March 1, 1909, by Teodorica Saguinsin, a married woman who for three months had been pregnant, she fell to the ground, and had a severe hemorrhage and, being unable to return to her home, was taken there in a vehicle, with the assistance of Basilisa Pascual, who witnessed the occurrence. On the following day she had a miscarriage, as certified by the president of the municipal board of health of the town of San Pedro Macati who made an examination of and attended the victim of the maltreatment.

The defendant pleaded not guilty and denied the charge made in the case, although he admitted that on the night in question he had a dispute with the injured woman because he collided with her a little push with the index finger of the right hand in the back of her body, but without illtreating her, even though he carried a bottle at the time. The foregoing statements to a certain extent confirm the charge that the woman was maltreated or struck three times upon the hips by the accused with the bottle that he was carrying, which fact is corroborated by the testimony of the witness. The testimony of the military surgeon, Raymond F. Metcalf, who, seven days thereafter, examined the injured woman and stated that he did not discover upon her body any sings of abortion, has not affected the preponderance of the evidence offered by the prosecution, inasmuch as, after the lapse of seven days, the miscarriage having occurred the day following the night when the woman was brutally struck upon the hips with a bottle, it is not strange that he did not find any traces of the hemorrhage or of the miscarriage, as seen by the physician who examined and attended the maltreated woman and certified to the fact of the abortion.

Even though it was not the criminal intent of the defendant to cause the abortion, the fact that, without any apparent reason whatever, he maltreated Teodorica Saguinsin, presumably not knowing that she was pregnant, as author of the abuse which caused the miscarriage, he is liable not only for such maltreatment but also for the consequences thereof, to wit, for the abortion; and it was also proven that on the said occasion the defendant was drunk, which circumstance explains how he came to strike the woman with a bottle without any known motive. It does not appear that he is an habitual drunkard. The penalty of prision correccional as fixed by the aforesaid article should be imposed upon him in the minimum degree, owing to presence of circumstance 6 of article 9 of the Penal Code, there being no aggravating circumstance to counteract its effect.

With respect to the question as to whether or not D. B. Jeffrey, having been accused of the crime of lesiones menos graves, can be lawfully sentenced for the crime of abortion, one which is distinct from that of lesiones, it is proper to consider that the complaint filed by the fiscal reads:jgc:chanrobles.com.ph

"The undersigned fiscal of the Province of Rizal, P. I., hereby charges D. B. Jeffrey with the crime of lesiones menos graves committed as follows: In that on the 1st day of March, 1909, in the municipality of San Pedro Macati, Province of Rizal, P. I., the said D. B. Jeffrey, the accused herein, wilfully, unlawfully, and feloniously assaulted Teordorica Saguinsin, maltreating and striking her about the hips which resulted in a serious hemorrhage followed by a miscarriage; the patient required medical attendance for more than eight days, and was unable to work for an equal period of time. All contrary to law."cralaw virtua1aw library

The accused, attended by counsel, appeared before the Court of First Instance of Rizal, and the foregoing complaint was read to him and translated into English by the clerk of the court. Upon being asked by the court to plead thereto, he pleaded not guilty.

Hence, when the defendant was informed of the complaint, he at once understood that, although he was charged with the crime of lesiones menos graves, the charge also included the fact that he had maltreated Teodorica Saguinsin, striking her about the hips, in consequence of which she had a hemorrhage which was followed by a miscarriage; the woman was confined and disabled for work during eight days and was attended by a physician. Not a single fact constituting the crime of lesiones is alleged in the complaint, and there can be no question that, because of the translation into English, the accused must have heard and known that the charge against him was that he had struck and maltreated the injured woman who, as a result of his unlawful act, suffered an abundant hemorrhage and a subsequent miscarriage. For this reason, when the defendant denied the charge and plead not guilty, he defended himself against the charge which consisted in that, in consequence of having struck her with a bottle, he caused the abortion; and, inasmuch as the maltreatment and the miscarriage that followed in consequence thereof have been proved, it is perfectly just and legal that the penalty to be applied shall be that fixed by the law of the crime shown by the evidence and which the accused actually committed.

For the reason above set forth, and holding that the crime committed is that of abortion and not that of lesiones, it is our opinion that the judgment appealed from should be set aside, and that the accused should be and he is hereby sentenced to the penalty of eight months of prision correccional, to indemnify the injured woman in the sum of P50, with subsidiary imprisonment in case of insolvency, and to pay the costs of both instances. So ordered.

Arellano, C.J., Mapa, Johnson, Carson and Moreland, JJ., concur.

1. ROBBERY "EN CUADRILLA." — Held, That under the facts, as found from the record, the defendants are not guilty of the crime of robbery by a gang.

These defendants were charged with the crime of robbery by a gang, committed as follows:jgc:chanrobles.com.ph

"That the said accused, on the night of the 23d of January, 1908, in the sitio of Tubor, pueblo of Bayambang, Province of Pangasinan, being members of a band consisting of several individuals, armed with revolvers, a gun, talibones, and bolos, assaulted the camarin of Alejo de Guzman, situated in the said sitio of Tubor and, after having tied and maltreated the persons who were in the said camarin, causing injuries to Juan Punsalan, Toribia de Guzman, Mariano Evangelista, Alberto Mijares, Mariano Gonzales, Tomas Birones, and Marcos Punsalan, and also wounding Maria Bautista upon her right leg by a shot from a firearm, which wound healed in fifty days, during which time the said Maria Bautista was unable to perform her habitual duties, they seized, with intent to profit thereby, the sum of P400 and one caraballa valued at P120, all belonging to Alejo de Guzman, and a further sum of P20, a pair of earrings set with pearls, some clothes, and one sheet, amounting in all to P15.50, all belonging to Toribia de Guzman, which facts constitute the said crime of robbery en cuadrilla with lesiones graves, defined and punished by articles 502 and 504, in relation with article 503, No. 4 of the Penal Code, and committed within the jurisdiction of this Court of First Instance, all contrary to law."cralaw virtua1aw library

Each of the defendants, upon arraignment, plead "not guilty." Cornelio de la Cruz asked for a separate trial, which was granted him. After the trial of the cause against Cornelio de la Cruz, the court found the evidence was insufficient to convict him of the crime charged, and therefore dismissed the complaint and discharged him from the custody of the law.

After the trial of the other defendants the court found that the evidence was insufficient to support the charges made in the complaint against the defendant Esteban Cajulao, Eduvigis Corpus, Sergio Alcantara, Pio Barroga, and Pedro Atencio, and therefore dismissed the complaint as to them and discharged them from the custody of the law.

After hearing the evidence, the lower court found the defendants Santiago Alumisin, Esteban G. Corpus, and Pastor Dueñas each guilty of the crime charged in the said complaint, and sentenced each to imprisoned for a period of fourteen years of cadena temporal, to suffer the accessory penalties provided for in article 56 of the Penal Code; each to pay one-ninth of the costs and to restore to Alejo de Guzman and Toribia de Guzman the moneys and goods robbed from them respectively, and in default thereof, that they should jointly and severally pay to the said Alejo de Guzman the sum of P520 and to Toribia de Guzman the sum of P35.50 and to Maria Bautista the sum of P17.

From this sentence of the lower court the defendants each appealed and made the following assignments of error in this court:chanrob1es virtual 1aw library

First. That the court erred in holding that the guilt of the accused Santiago Alumisin, Esteban G. Corpus, and Pastor Dueñas was proved beyond reasonable doubt.

Second. The court erred in finding that the wounds inflicted upon the offended parties were such as to bring the case within the provisions of paragraph 4 of article 503 of the Penal Code.

Third. The court erred in holding that in the commission of the crime there was present the aggravating circumstance of nocturnity and that the nighttime was selected in which to commit the crime.

Fourth. The court erred in holding that in the commission of the crime there was present the aggravating circumstance that it was committed in an uninhabited place.

From the record it appears that Alejo de Guzman, Mariano Evangelista, and Francisco Bato were the owners of two fisheries located in the pueblo of Bayambang, in the Province of Pangasinan; that said fisheries were located upon or near the boundary line between the pueblos of Bayambang, in the Province of Pangasinan, and the pueblo of Moncada, in the Province of Tarlac; that there had been some question between the two pueblos relating to the said fisheries. The pueblo of Moncada contended that said fisheries belonged to it; that the boundary line between the said pueblos, when properly located, would show that said fisheries belonged to the pueblo of Moncada.

Some time prior to the time of the commission of the alleged crime there was an election for the office of presidente of the pueblo of Moncada. The defendant, Santiago Alumisin, promised his people that if he were elected as presidente at said election he would take such steps as were necessary to bring the said fisheries within his pueblo. Upon this issue it appears that the said Santiago Alumisin was elected to the office of presidente (mayor). The taxes paid by the said fisheries into the municipal treasury was a considerable sum, sufficient at least to make it worth while for the pueblo to assert its right to them. After the election certain protests were presented against the election of the said Santiago Alumisin. One of the first acts of the said defendant, after his election to the office of presidente, was to secure authority from his municipal council to attempt to locate the boundary marking the division line between his pueblo and the pueblo of Bayambang. He was authorized by resolution of the municipal council to make said investigation. It appears from the record that on the 8th of January, 1908, two days after assuming his duties as presidente, this defendant, with a company of some thirteen person, including the members of the municipal council, certain members of a committee known as an agricultural committee of the pueblo, the sergeant of police, and certain municipal police, left the pueblo (Moncada) for the purpose of attempting to locate said boundary line. On this occasion they found one of the monuments marking the said division line.

On the 18th of January, 1908, another attempt was made by the defendant to locate other monuments marking said division line. On this second expedition he was accompanied by five others to wit: Eduvigis Corpus, Esteban Cajulao, Esteban G. Corpus (sergeant of the municipal police), Pastor Dueñas (a municipal policeman), and Jose Cabusay. Before leaving their pueblo they had received information that there was another monument marking the division line, located near the fisheries in question, and that Mariano Evangelista, one of the proprietors of the fisheries, knew where the said monument was located. With this information the said presidente and his companions went directly to the house of Mariano Evangelista. Upon their arrival there (January 18) Mariano Evangelista information relating thereto. The defendant, Santiago Alumisin, and his companions on this day remained at said fishery, took their meal in the middle of the day and remained there until the cool of the evening before they returned home. So far as the record shows there was nothing but the kindliest relations between the defendant, Santiago Alumisin, and his companions and the owners of the fishery on said day.

On this occasion there was at the fishery a young girl known as Toribia de Guzman, a relative of one of the owners of the fishery, Alejo de Guzman. On this occasion the defendant, Santiago Alumisin, entered into a somewhat trivial conversation with the young girl and wrote a statement in a book which she had, which statement did not reflect much credit upon his dignity as presidente of the pueblo. However, there was nothing in the statement which in any way points to his guilt of the crime with which he is now charged.

Later, on the night of the 23d of January, 1908, some time between the hours of 12 and 2 o’clock, a band of robbers, composed of from ten to fifteen persons, armed with revolvers, a gun and bolos, it is alleged, appeared at said fishery and entered the camarin or house where the owners of the said fisheries lived, and by means of force and intimidation, representing themselves to be of the authorities, did rob said occupants of about P400 in money, one carabao and certain other effects. During the commission of the robbery some of the occupants of the house were maltreated and wounded. The evidence is very conflicting with reference to the exact time when the robbery was committed. None of the witnesses attempted to state the exact time of night. Some of them say that it was about midnight; other say that it was about 1 o’clock; others that it was sometime between midnight and 2 o’clock. We think that the evidence shows that if the robbery was committed at all, it was committed sometime between midnight and 2 o’clock in the morning.

After the robbers went away, two of the occupants of the house, Mariano Evangelista and Francisco Bato, went to the pueblo of Bayambang, which was some distance away, for the purpose of giving a report to the authorities of said robbery. Upon their arrival in the pueblo of Bayambang, about 6 o’clock in the morning, they first met a policeman, who was at the municipal building, and told him about the robbery. This policeman asked them if they could give the names of the robbers. They answered him that they could not. The policeman called the presidente of the municipality of Bayambang to give to him an account of the robbery. The presidente called these two persons and asked them if they recognized any of the robbers, and if they should give the names of any one of the said robbers. They answered the presidente that they did not recognize any of them.

Upon hearing their account of the robbery, the presidente sent a member of the Constabulary, Gregorio Torio, together with certain policeman, to the scene of the alleged robbery, for the purpose of making an investigation of the said robbery. Mariano Evangelista and Francisco Bato accompanied the said Gregorio Torio and the policemen back to the fishery.

Gregorio Torio testified as a witness on the trial of the cause. He said that upon his arrival at the fishery, some of the occupants of the house, at least three of them, if not four, told him that they had recognized at least three of the robbers and that they were the defendants, Santiago Alumisin, Esteban G. Corpus, and Pastor Dueñas.

After Gregorio Torio had made an investigation, he started back to the pueblo of Bayambang. He swore that the occupants of the robbed house told him that the robbers were Santiago Alumisin, and the other two were the policemen of the pueblo of Moncada. We think the question pertinent--If Gregorio Torio had been informed who the robbers were, why did he not go to the pueblo of Moncada, instead of returning to the pueblo of Bayambang? These two pueblos are in different directions from the fisheries.

After Gregorio Torio and his companions had started back to the pueblo of Bayambang, and after they had gone some distance, the occupants of the robbed house saw a number of individuals crossing a river near by, coming in the direction of the house. The occupants immediately raised the cry that the robbers were returning and sent a messenger after Gregorio Torio and his companions has started back to the pueblo of Bayambang, and after they had gone some distance, the occupants of the robbed house saw a number of individuals crossing a river near by, coming in the direction of the house. The occupants immediately raised the cry that the robbers were returning and sent a messenger after Gregorio Torio and requested him and his companions to return. Gregorio Torio and his companions, upon the request, did return to the fishery. Upon his return there he found the defendants in the present cause, and placed them under arrest and took them to the pueblo of Bayambang.

There is much conflict in the testimony relating to the conversation which took place between Gregorio Torio and Santiago Alumisin and the other defendants at the time of their arrest.

The defendants, Santiago Alumisin and his companions, arrived at the fisheries on the morning of the 24th of January, sometime between 8 and 10 o’clock. We think that the weight of the testimony shows that they arrived there about 9 o’clock in the morning. Gregorio Torio took the defendants and two of the occupants of the house, Mariano Evangelista and Francisco Bato, to the pueblo of Bayambang. Sometime during the afternoon (January 24) the auxiliary justice of the peace made some investigation of the robbery and took the statements of Mariano Evangelista and Francisco Bato. Francisco Bato stated that he did not recognize any of the persons who committed the robbery. Mariano Evangelista said that he thought that he recognized Santiago Alumisin by his voice.

Later a further investigation was held by the justice of the peace of the pueblo of Bayambang. The defendants were arrested and detained and later the cause was brought on for trial in the Court of First Instance. During the trial in the Court of First Instance, the said Alejo de Guzman, Toribia de Guzman, Mariano Evangelista, Francisco Bato and other witnesses were sworn in behalf of the prosecution. In the Court of First Instance Alejo de Guzman, Toribia de Guzman, Mariano Evangelista, and Francisco Bato swore positively that they identified on the night of the robbery the defendants Santiago Alumisin, Esteban G. Corpus, and Pastor Dueñas. Their statements relating to the identification of the defendants seem to be positive and unequivocal. There is much conflict between them, however, relating to the appearance of these defendants on the night in question. Some of them say that the defendants wore hats; others wore that they did not wear hats. One of them stated that the presidente had a handkerchief tied around his head; others swore positively that the presidente had nothing on his head whatever. Some of them swore that the defendants had their faces covered with mud; others say that their faces were not covered with mud. This conflict between their sworn statements seems to lend some doubt to the veracity and truthfulness of their relation of the facts. This conflict between their statements, added to the fact that they each swore that between the time of the robbery and the time when the alleged robbers returned the next morning, there was no statement made by any of them, among themselves, relating to the identity of the persons who had committed the robbery, seems to lend additional doubt to the credibility of their statements made during the trial of the cause.

The defendants make an effort to show that their presence at the fishery at any time between 12 and 2 o’clock on the night of the 23d of January was impossible. The defendant, Santiago Alumisin, proved to our mind beyond peradventure of doubt, that he was in the pueblo of Moncada up to and after 12 o’clock on said night. The other defendants were accounted for, especially the policeman, during the entire night up to about 6 o’clock in the morning of the 24th. The records of the police station show this fact. It is further shown that on the morning of the 24th, on or about 6 o’clock, one of the defendants, the sergeant of police, hired a horse of a Chinaman in the pueblo of Moncada.

It will be remembered that at the time the robbery was committed the band was then composed of from ten to fifteen persons. When the presidente and his companions arrived at the fishery on the morning of the 24th, about 9 o’clock, there were but nine persons in said company. The lower court acquitted six of the nine. If the presidente was a member of the band of robbers on the night of the 23d, the band being composed of from ten to fifteen persons, he must have left the fisheries and formed another band composed of different persons, and returned to the fisheries the next morning. In order to have accomplished this he must have gone from his pueblo to the fisheries after 12 o’clock at night, and returned to his pueblo before 6 o’clock in the morning and organized his second band. The possibility or impossibility of doing this would depend somewhat upon the distance between his pueblo and the fisheries. The evidence does not show clearly the distance. Some of the witnesses swore that it would require about six hours to walk the distance; others said that the distance might be walked in four hours. The fact is that the presidente and his companions who were arrested at the fisheries on the morning of the 24th, left the pueblo of Moncada on or about 6 a. m., all of them being on horseback, except two of them. They did not arrive at the fisheries until at or about 9 o’clock. This would seem to prove that it required at least three hours, more or less, to go on horseback from the pueblo of Moncada to said fisheries. It seems unreasonable to us to believe that the presidente should have organized a band of robbers composed of ten or fifteen persons, after 12 o’clock at night, and have gone to the fisheries and committed the alleged robbery, and have returned to his pueblo and have organized another band composed of nine persons before 6 o’clock in the morning, and have returned to the fisheries by 9 o’clock. No proof was presented showing or tending to show when the presidente and his companions arrived at the fisheries the next morning, before the return of Gregorio Torio, that he or his companions had intended to commit any acts of violence toward the owners of the fisheries.

According to the testimony of the owners of the fisheries, the robbers made a thorough search of the house at the time of the robbery and carried away all of the money which they had. If these defendants were the persons who committed the robbery at night, they must have known, because of their search of the house, as alleged by the offended persons, that there was no other property there to rob. For what purpose then did they return the next morning in broad daylight? If they had been recognized during the time of the robbery, they must have known it, and why did they return the next morning for further identification? IT seems unreasonable to us that the presidente, if he had been a member of the band of robbers on the night in question, should have returned there the next morning in broad daylight. He knew the occupants of the house and he knew that they knew him. He had spent the entire day there just a few days before the time of the robbery.

The fact that the defendant Santiago Alumisin had been elected presidente of his pueblo his promise to locate accurately the boundary line between the pueblo of Moncada and the pueblo of Bayambang, and the fact that his election to attempt to locate said boundary line, and the fact that he had made two expeditions before the morning of the 24th for the purpose of finding the monuments located upon said boundary line, seem to justify his contention that he, together with the sergeant of police of his pueblo, the agricultural committee of his pueblo, and other policeman were at the fisheries on the morning in question for the purpose of making a further investigation and that they were not there for the purpose of committing a robbery. These facts seem to us to be sufficient to refute absolutely the contention of the prosecution, that the defendants Santiago Alumisin, Esteban G. Corpus, and Pastor Dueñas, together with ten or more other persons, were present at the fisheries between 12 and 2 o’clock on the night of the 23d of January, and then and there assisted in the commission of the alleged robbery. The fact that the witnesses for the prosecution, after having recognized some of the robbers, failed to communicate to each other the names of the persons recognized; the fact that two of the persons robbed who went to the pueblo of Bayambang the next morning to give an account of the robbery, failed to give the names of the persons they recognized among the robbers, together with the fact that Gregorio Torio, as he alleged, had been given the names of some of the robbers, started to return to the pueblo of Bayambang, instead of going in the direction of Moncada, all taken together, seem to throw much doubt upon the credibility of the statements of the persons robbed, when they swore in the Court of First Instance, during the trial of the cause, that at the time of the robbery they recognized the presidente and the sergeant of police.

Upon all of the facts presented during the trial of the cause, we are of the opinion and so hold that the evidence does not show beyond peradventure of doubt that the appellants Santiago Alumisin, Esteban G. Corpus, and Pastor Dueñas assisted in the commission of said robbery. Therefore the judgment of the lower court is hereby reversed, the complaint against these defendants is hereby ordered to be dismissed and the defendants discharged from the custody of the law, with costs de oficio. So ordered.

Torres, Mapa, Carson and Moreland, JJ., concur.

1. FALSIFICATION OF PUBLIC DOCUMENTS; EVIDENCE; PENALTY. — Held, That the evidence of record in these two cases fully sustains the conviction of the defendant for the crime of falsification of public documents, but attention of the Chief Executive is invited to the severe penalties necessarily imposed under the provisions of the Penal Code.

These are two separate proceedings against the same defendant for two separate offenses, in each of which the accused was convicted and sentenced to fourteen years eight months and one day of cadena temporal, together with the accessory penalties prescribed by law, and in each of which separate appeal was taken to this court.

For reasons of convenience, and especially on account of the recommendation of clemency hereinafter set out, the separate appeals in these cases are taken up together and decided in a single opinion.

The information in case No. 5426 charges the defendant with the commission of the crime of falsification of a public document, committed as follows:jgc:chanrobles.com.ph

"On or about the 16th day of May, of the year 1908, the said defendant, being the municipal treasurer of Cuyapo, maliciously and criminally abused his office by issuing an official document as a voucher for certain expenses, in which was set forth a payment of P3.50 made to Tomas Daprosa for the transportation, from Paniqui to Cuyapo, of certain boxes belonging to the municipality, when the sum actually paid was P0.60 and not that herein before stated, making such false statement of facts for the purpose of appropriating the balance. The act was committed in the municipality of Cuyapo, Province of Nueva Ecija, P. I., in violation of the law."cralaw virtua1aw library

The information in case No. 5427 charges the defendant with the commission of the crime of falsification of a public document, committed as follows:jgc:chanrobles.com.ph

"On or about the 19th day of may, of the year 1908, the said defendant, being the municipal treasurer of Cuyapo, maliciously and criminally abused his office by issuing an official voucher for expenses in which was set forth a payment of P1.50 made to Vicente Defiesta, for the transportation of three cases of oil belonging to the municipality from Paniqui to Cuyapo, this not being the true amount paid, which was P0.50, making such false statement of facts for the purpose of appropriating the balance. The act took place in the municipality of Cuyapo, Province of Nueva Ecija, Philippine Islands, contrary to law."cralaw virtua1aw library

The evidence of record in both cases fully sustains the findings of fact by the trial court and established the guilt of the defendant of the crime with which he was charged in each case beyond the peradventure of doubt. We find no error in the proceedings in either case prejudicial to the substantial interests of the accused, and the judgments of conviction and the sentences imposed in both cases should, therefore, be affirmed, with the costs of this instance against the Appellant.

Under the provisions of article 2 of the Penal Code, and in view of what seems to us to be the excessive penalty ("taking into consideration the degree of malice and the injury caused by the crime" of which defendant was convicted in each case), which it was the duty of the court below, under strict application of the provisions of the code, to imposed in both cases, and which it now becomes our duty to affirm, we deem it proper to invite the attention of the Chief Executive to the nature and character of the two separate offenses committed by the accused and the severe penalties necessarily imposed upon him upon conviction thereof, for such action as shall be deemed proper in the premises. So ordered.

Arellano, C.J., Torres, Mapa, Johnson, and Moreland, JJ., concur.

1. MURDER; PRINCIPALS IN CRIME; ACCESSARIES. — Under the oft-repeated doctrine of this court, the mere fact that a person is present when a crime is committed, but at the time has no knowledge of the intention to commit the crime and takes no part therein, he can not be convicted as either principal or accomplice. If, however, he afterwards aids in concealing the crime, as by giving false information tending to mislead the public authorities, he is guilty as accessary after the fact, or encubridor.

In the Court of First Instance of the Province of La Laguna, Guillermo Romulo, Celerino de la Cruz, Buenaventura Canape, and Fidel Veloz, were charged with the crime of assassination in an information couched in the following terms:jgc:chanrobles.com.ph

"That the said accused, on the 16th day of April, 1909, in the municipality of Majayjay, Province of La Laguna, P. I., voluntarily, unlawfully, feloniously, with treachery, premeditation, vindictiveness, and nocturnity, murdered Mr. Adrian Herren, a surveyor of the Bureau of Public Lands, inflicting upon him several blows with a cutting instrument, causing numerous wounds on his shoulder, arm, neck, hand, and other parts of his body, severing his head from his body and his left arm from the shoulder, and cutting him in the middle of the right forearm; all contrary to law."cralaw virtua1aw library

Upon arraignment, the defendants pleaded not guilty. Before entering on the trial, the information against Fidel Veloz was dismissed on the motion of the provincial fiscal, for the purpose of using him as a witness for the prosecution. The trial court found each and all of the other defendants guilty of the crime of assassination, and sentenced Romulo and Canape to death, and De la Cruz to life imprisonment, together with the accessory penalties prescribed by law. The record is before us now on the appeal duly taken by these three defendants from the judgment of conviction and sentenced imposed by the lower court.

About half past 4 o’clock on the evening of the 16th of April, 1909, one Adrian Herren, a surveyor in the Bureau of Public Lands, set out from a place called Malinao, where he was engaged at work, for the town of Majayjay, where he was accustomed to pass the night. He was accompanied by his four native assistants, the defendants in this action, the party walking in single file, Herren in front followed in order by Romulo, Canape, De la Cruz, and Veloz. When the party arrived at a clump of cane, near the River Dalitiwan, Romulo stepped up alongside Herren and struck him a blow with a hatchet which felled him face downward to the ground. Immediately thereafter Canape struck the fallen man a number of blows on his head and body with a heavy stick, and both assailants slashed and cut the helpless and unconscious man with their bolos. The body of the deceased was at once hidden in the nearby of cane, and the whole party immediately set out for the town of Majayjay.

The evidence fails to disclose what participation, if any, was taken in the commission of the crime by De la Cruz and Veloz; and as to De la Cruz, we think that the weight of the testimony tends to sustain his counsel’s contention that while he was present when the crime was committed, he took no part therein, and in nowise a died or abetted the assassins either by word, act, or deed. There is no evidence which would support a finding that he had any warning or knowledge that the sudden and unexpected attack was about to take place, or that he could have prevented it had he desired so to do; and while it affirmatively appears that Romulo and Canape bore bitter enmity and resentment against the deceased because of his alleged brusque and overbearing manner toward them, the evidence tends to disclose that De la Cruz and the deceased were on friendly terms at the time of the murder, and that De la Cruz had worked for the deceased for many years and had his confidence. It appears, however, that after the crime was committed, De la Cruz, who was foreman of the native party, was present when the body was concealed in the clump of cane, accompanied the murderers back to Majayjay, slept in the same house with them on arriving there, and the following morning, manifestly for the purpose of concealing the commission of the crime, and aiding the murderers, his companions, to escape detection and capture, voluntarily presented himself to the president of Majayjay, and after inquiring whether the president knew where Herren could be found, said that "while they were putting out boundary posts or marks in Malinao about 4 o’clock of the afternoon of the day before, the American had gone ahead of them, so that the capataz and his workmen were left there until the termination of the work which had been ordered by the American."cralaw virtua1aw library

The evidence of record conclusively establishes the guilt of Romulo and Canape of the crime of assassination of which they were convicted, but we do not think that it sustains a finding of the guilt of Celerino de la Cruz, as principal or accomplice. It does not appear beyond a reasonable doubt that he took any part either direct or indirect in the commission of the crime beyond the mere fact that he happened to be present during its execution. It does not appear that he was aware of the existence of the criminal conspiracy between Romulo and Canape before the commission of the crime, nor that there was any understanding between De la Cruz and the other members of the party in this regard. Without some previous concert or conspiracy as to the execution of the proposed crime, we do not think that the mere fact that De la Cruz happened to be present at the time when it was executed establishes his guilt as principal or as accomplice in its commission, there being nothing in the surrounding circumstances which would justify us in assuming that he in fact aided or abetted the murderers, or gave to them the moral support of his sympathy and advice, or in any way countenanced their act.

In its sentence of the 7th day of September, 1885, the supreme court of Spain held that "The simple fact that a person accompanied another who intended to set fire to a straw deposit, which intention was unknown to the former; that he remained on one of the streets of the town while the other was setting the place on fire, and that he fled after the perpetration of the crime, is not sufficient to show the culpability of said person as a coprincipal."cralaw virtua1aw library

In its sentence of the 22d of December, 1883, the same court held "That direct instigation to commit a crime, by reason of which the instigator is considered as a principal, the same as the person who actually commits the crime, should be recognized only in a case involving acts of command, of advice sometimes, of agreement, or excitation so explicit that they may effect the criminal act, none of which are found in the words of Miguel Perez, which are alleged to have been the efficient cause of the death, both because important circumstances simultaneous with the affair are not clearly known (such as the respective position of the deceased and the murdered at the moment the words were pronounced, and the degree reached in the quarrel between them), and because the decision appealed from does not furnish any facts sufficiently expressed to show that Miguel might have foreseen the use of a firearm by his son, nor that, therefore, he might excite the latter to use it; consequently the trial court in so holding has not violated the legal provision cited by the appellant prosecutor, etc." And again in its sentence of March 13, 1884, that "the fact that a person witnessed the murder, committed by his brother, of a person who was an enemy common to both of them, with whom they had had some trouble previously; that, during the perpetration of the crime, he said some threatening words, the words not being known nor against whom they were directed, is not sufficient to prove his participation in the crime on the ground that, although the accused supplied a cause for the first trouble, and later on accompanied the aggressor and was present at the perpetration of the crime, pronouncing some threatening words, all as stated above; these isolated facts, without any other preceding ones explaining them, can not be considered as of great importance without grave danger of error, nor can we deduce from them any participation or cooperation in the criminal act, which is the fact that legally constitutes complicity in the case of a crime."cralaw virtua1aw library

So in its sentence of the 20th of March, 1885:jgc:chanrobles.com.ph

"The said supreme court based its decision reversing the said judgment on the fact that, it being an indispensable element of the liability of an accomplice that he, by means of previous or simultaneous acts, should aid, facilitate, or protect the execution of the acts constituting the crime perpetrated by another, it does not appear from the facts stated in the decision that the shot fired by the aggressor at the offended party was either advised, assisted, or induced by the appellant, whose acts were merely those of intimidation or offense; therefore the trial court, by declaring the latter an accomplice of the complex crime of shooting firearms and of lesiones menos graves, acted in violation of article 15 of the Penal Code" (art. 14 of that of the Philippines.)

And in its sentence of June 25, 1886, it formally announced the doctrine as follows:jgc:chanrobles.com.ph

"Considering, in the matter of the appeal of Jose Martinez Atalaya, that the trial court finds him guilty as an accomplice in the commission of the crimes solely for the reason that he was present at the place where they were committed, at the same time acknowledging that he took no part in their commission; considering that the liability of an accomplice is determined by acts of assistance knowingly rendered to the principal before or at the time; and that the fact of being present during the commission of the crime not falling within this category, when it is not shown, and, for the effects of the appeal, when the lower court does not find, that such presence has for its object the encouragement of the principal, or to pretend, or to actually lend additional help: the declaration of the responsibility of Martinez Atalaya can not be thereby sustained, after it has been fully shown that between him and Juan Gomez no agreement existed, because, as held by the trial court, there are no prior or simultaneous acts which would demonstrate, beyond peradventure of doubt, his intention of doing or assisting in doing any damage in the house he entered, and thus perhaps incurring criminal liability of another kind; and considering the absence of voluntary cooperation on the part of Martinez Atalaya and of any appropriate overt act which would establish his liability, the conjunction of which circumstances forms the basis of liability of the indirect principal of the crime, the lower court has committed an error and has violated article 15 of the Penal Code."cralaw virtua1aw library

This court, discussing the same question, has held as follows:jgc:chanrobles.com.ph

"The mere presence of the defendant at the time and place of the commission of the crime is not of itself sufficient to show such an act of simultaneous cooperation as to make such a defendant an accessary to the crime." (U. S. v. Guevara, 2 Phil. Rep., 528.)

"Where one of two persons jointly engaged in a quarrel with others stabs and kills one of his opponents, his companion can not be held as principal or accomplice where it does not appear that there was some concerted action leading up to the striking of the fatal blow, or that said companion had any reason to believe that a deadly attack was to be made on the deceased." (U. S. v. Manayao, 4 Phil. Rep., 293; see also U. S. v. Cabonce, 6 Off. Gaz., 1340; 1 U. S. v. Flores, 6 Phil. Rep., 383; U. S. v. Maquiraya, 7 Off. Gaz., 1666, 2 citing U. S. v. Empeinado, 9 Phil. Rep., 613; U. S. v. Dasal, 3 Phil. Rep., 6).

"One of the defendants, Reyes, suddenly and unexpectedly inflicted mortal injuries with a club upon a man named Legaspi, while Legaspi was being held by the other defendant, Javier: Held, That Javier was neither principal nor accomplice in the commission of the crime of homicide of which Reyes was convicted, it appearing that there was no concerted action between him and his codefendant, that he had no reason to believe that a homicidal attack was about to be made, and that, in holding Legaspi, he was not voluntarily cooperating therein." (U. S. v. Reyes, 7 Off. Gaz., 1359. 3)

Adhering to the doctrine laid down in these decisions, it is clear that we can not and should not sustain the finding of the trial court of the guilt of De la Cruz of the crime with which he was charged, either as principal or accomplice.

We think, however, that the evidence is sufficient to establish his guilt as encubridor (accessary after the fact) of the crime with which he was charged as principal, not because he was present with the murderers when the crime was committed and when they concealed the body of the deceased, and continued in their company until the following day, nor because he failed to denounce the crime to the local authorities; but because he went to the municipal president of the town of Majayjay and volunteered false information which tended affirmatively to deceive the prosecuting authorities and thus to prevent the detection of the guilty parties and to aid them in escaping discovery and arrest. In the case of the United States v. Caballeros (4 Phil. Rep., 350) we said that the mere fact that one does not denounce the perpetration of a crime to the authorities is not a punishable offense under the Penal Code; but it is one thing to refrain from denouncing the accused, and another to affirmatively aid him in escaping the vigilance of the prosecuting authorities. Article 15 of the Penal Code provides that —

"Accessaries after the fact (encubridores) are those who, having knowledge of the commission of the crime, and without having participated therein either as principals or accomplices, subsequently take part in its execution in any of the following manners:chanrob1es virtual 1aw library



"3. By harboring, concealing, or assisting in the escape of the culprit, provided any of the following circumstances are attendant:chanrob1es virtual 1aw library



"(2) When the delinquent is guilty of treason, regicide, parricide, assassination, attempt against the life of the Governor-General, or known to be an habitual criminal in any other crime."cralaw virtua1aw library

In view of all the foregoing, we are of opinion that the judgment of conviction as principal in the commission of the crime of assassination and the sentence imposed therefor upon De la Cruz should be reversed, and that this court should find him guilty as accessary after the fact (encubridor) of the crime of assassination with which he was charged, and that for that offense he should be sentenced to the penalty of eight years and one day of presidio mayor, together with the accessory penalties prescribed by law and to pay his proportionate share of the costs of the proceedings in both instances. The guilt of the defendants Guillermo Romulo and Buenaventura Canape as principals of the crime of assassination, of which they were convicted, marked with the aggravating circumstances, as found by the trial court, and no extenuating circumstances, is established by the evidence beyond a reasonable doubt, and the judgment of conviction and the sentenced imposed upon them by the trial court should therefore be affirmed, with their respective shares of the costs in this instance against them. So ordered.

Torres, Johnson, and Moreland, JJ., concur.

Arellano, C.J., and Mapa, J., concur as to the conviction of Guillermo, Romulo and Buenaventura Canape only.

Endnotes:

---

1. 11 Phil. Rep., 169.

2. 14 Phil. Rep., 243.

3. 14 Phil. Rep., 27.

1. ROBBERY WITH HOMICIDE; CRIMINAL PRACTICE AND PROCEDURE; CIRCUMSTANTIAL EVIDENCE. — When, in addition to the direct evidence adduced by the prosecution, circumstantial evidence is presented of such a conclusive character that it leaves no reasonable doubt in the mind as to the criminal responsibility of the accused, the conviction will be sustained.

The defendant was convicted of the crime of robbery with homicide in the Court of First Instance of the Province of Misamis and sentenced to death, there having been found present in the commission of the crime several aggravating circumstances. The case comes to us en consulta.

The court below found clearly and conclusively proved the following facts, using the language of his decision:jgc:chanrobles.com.ph

"On or about the 12th day of June, 1908, in Casol, barrio of Baliangao, municipality of Langaran, Province of Misamis Rafaela Magusara, her niece Francisca Magusara, two children of the latter, the elder of whom was 11 years of age, named Hilario, Bonifacio Palot and Mateo Uraga occupied a house of light materials located in an isolated place. While there were three neighboring houses in that vicinity, they were so far away that a cry made at the house in question could not be heard at either of the others. On the day named, at about 2 o’clock in the morning, the accused and two companions, dressed in black, he and one companion wearing red chevrons on their cuffs, entered the house in question. They were all armed with daggers, bolos, and revolvers. The accused, who appeared to be the leader, called to the household in the name of the law. They awoke and lighted a lamp. The accused entered the house and immediately compelled Bonifacio and Mateo to go outside, striking said Bonifacio with a tail of a fish called ’ray’ as he passed out. On passing out they were instantly seized and bound together by those outside and one of their captors conducted them to a field of hemp near by. The accused compelled Francisca Magusara and her two children to sit down in the house, threatening them with death if they moved. He and his companion then placed a rope around the waist of Rafaela Magusara, threw it over a rafter in the house, and seizing the end thereof, they raised and lowered her, and permitted her to violently drop to the floor several times, for the purpose of compelling her to disclose where her money was hidden. They then unbound her and took her with them to another part of the house separated from the others by a curtain of matting, where they broke open trunks and appropriated the contents, including her money. In the meantime Francisca and her children escaped from the house, taking different directions. On the following day they were found in the forest. Some moments after their escape Rafaela Magusara, still conducted by her captors, passed near the place where Bonifacio and Mateo were being detained in the direction of the seashore opposite the little island of Murcielagos, called also Cagban. When the accused passed near where Bonifacio and Mateo were detained, he called to the one who was guarding them to go to the house and get a bag of money which he had forgotten, he himself standing guard over the prisoners, who were about 10 meters distant. Bonifacio availed him self of this opportunity to loosen the rope with which he and Mateo were bound, telling the latter to escape. Mateo fled in the direction of a forest, while Bonifacio, being lame, was able to go only a short distance, where he hid himself beneath some dry hemp leaves. When the accused was told of the escape of Bonifacio and Mateo, he said that they ought to have killed them in order that they might not reveal what had been done. On the fourth day after, the corpse of Rafaela was found on the beach of Cagban with two stones tied to the waist, floating on the water, 1 yard deep. The body was substantially nude, with a strip of the skirt on the waist. One foot was gone and there were several serious wounds on the body, among others, one near the navel, from which protruded a portion of the intestines. The right arm and forearm were covered with wounds."cralaw virtua1aw library

We have carefully examined the evidence adduced at the trial and are thoroughly satisfied that the court below was quite correct in his conclusions as to the facts proved. The guilt of the defendant is proved beyond a reasonable doubt. In addition to the evidence of the persons who were in the house at the time the robbery and homicide were committed and who testify directly to the commission of the one and circumstantially to the other, the testimony of Flornecia Gumiter corroborates and fortifies the case against the accused in a manner that leaves no room for doubt. She had been a servant in the house of the accused for some time prior to the commission of the crime. She testified that prior to the crime she made for the accused, at his order, the red sleeves which the other witnesses testified he wore the night of the crime; that on Thursday before the night of the crime, he accompanied by two other men, left home taking with him the said sleeves and a kris; that the other two were also armed; that on Saturday at about 3 o’clock in the afternoon two of them returned; that one of them carried some money in a handkerchief; that there were blood stains on some of their weapons and on their clothes; that the day following, the witness and the wife of the accused washed the blood out of the garments of the accused; that at the time order of the accused, one Guillermo took the money thus brought to Misamis to change it for other money; that the accused, after his return, did not stay at the house, but remained in the forest in hiding, charging the witness that if anyone came looking for him she should say that he had returned to his pueblo; that some days after the crime the wife of the accused returned from Oroquieta, where she had been to attend church, and told her husband that they were looking for him; that thereupon the accused became very much frightened, and leaving the house ran to the woods; that on Tuesday following he and his companions started for the Island of Siquijor on a very rainy night.

The evidence fully justifying the conviction, and there being no error in the record of which the accused may complain, the judgment of the trial court is affirmed with costs against the Appellant.

Arellano, C.J., Torres, Mapa, Johnson, and Carson, JJ., concur.

1. "ESTAFA." — One who promises an ignorant and unlettered man that he will obtain for him from the Court of Land Registration a certificate of title to his land, and thereafter, in pretended fulfillment of said agreement, taking advantage of the ignorance of the other, delivers to him a mere affidavit that the latter is the owner of the land in question and collects from him the sum of P150 therefor, the owner relying wholly upon his representations that the document so delivered is in fact a certificate of title to the land duly obtained from the Land Court as per said agreement, is guilty of estafa.

The defendant was convicted of the crime of estafa in the Court of First Instance of the Province of Ambos Camarines under the following information:jgc:chanrobles.com.ph

"The undersigned accuses Emilio Pimentel of the crime of estafa, committed as follows:jgc:chanrobles.com.ph

"That on or about the 15th day of August, 1907, in the municipality of Paracale, Ambos Camarines, the said Emilio Pimentel, for the purpose of defrauding Zacarias Riesa, promised to obtain for him from the Court of Land Registration a certificate of title to the land of said Riesa, situated in Manpongo, Paracale.

"That a few days afterwards said Emilio Pimentel, taking advantage of the ignorance of said Zacarias Riesa, delivered to him a document, saying to Riesa at the time that it was a certificate of the title of his land and that it was worth P150 Conant, and maliciously, criminally, and illegally took from him the said amount of P150, in the following form: One carabao valued at P120, and Riesa’s promissory note for P30, which he delivered to the said accused in payment for said document; that said document is not a certificate of the title to the said property, but is simply s statement sworn to before a notary public."cralaw virtua1aw library

No question is raised on this appeal other than that of the sufficiency of the evidence to sustain the conviction.

We are convinced, after a careful reading of the evidence and exhibits in this case, that the allegations of the information are sufficiently proved. The complainant testified that on the 15th of August, 1907, the accused was at his house in Manpongo and that after some talk they agreed that the accused should procure for him a certificate of registration of the title to his land; that on the 20th of the same month the accused returned to the complainant’s house, bringing a document, then without the signatures, reading as follows:jgc:chanrobles.com.ph

"I, Zacarias Riesa y Rayos, married to Alejandra Aguilar, now deceased, of full age, citizen and resident of Paracale, Ambos Camarines, P. I., being of sound mind and memory, voluntarily by these presents show: That for more than thirty years I have been and am now possessing and cultivating without interruption, under claim of title as owner, a parcel of coconut land (describing it) of the value of 700 pesos, Conant.

"I further state that my said possession, peaceful and without interruption, for said thirty years during which I have cultivated said land and planted coconuts thereon, has not been molested or disturbed by any person, by reason whereof I have acquired the rights of ownership under the existing laws, and as proof I offer two residents of this place who know of their own knowledge that I am the only owner of said land and that I have possessed and occupied it for a period of thirty years without molestation. Said witnesses are Antero Riesa and Tomas Balisbis, who know that I have not been molested in my quiet and peaceable possession during said time.

"I also state although I have possessed the said land I lack the evidences which prove my title; nevertheless I have been paying tax, having declared that I was owner of said land in the municipal secretary’s office of Paracale.

"In testimony whereof I execute this instrument in Paracale the 15th of August, 1907.

"ZACARIAS RIESA.

"ANTERO RIESA.

"TOMAS BALISBIS.

"Signed in the presence of —

"EMILIO PIMENTEL.

"EUGENIO DAMAS."cralaw virtua1aw library

That the accused told complainant that the document which he had and which he presented to him was the certificate of title to the land which he had agreed to get for him; that he asked the accused how much it was and the accused told him P200; that he objected to the price and the accused said that he would take P150; that the accused told him that it was a certificate of title to his property and, being ignorant and unable to read, he accepted his statement and paid him P150, as above set forth; that they thereupon went to the office of the municipal president to make the formal transfer of the carabao on the records. The record of transfer reads as follows:jgc:chanrobles.com.ph

"This registry shows that Zacarias Riesa, resident of Paracale, municipality of Paracale, Province of Ambos Camarines, as owner, has sold to Emilio Pimentel, resident of Daet, Ambos Camarines, as purchaser, in the sum of P120, a carabao, . . . ."cralaw virtua1aw library

It is dated August 20, 1907.

The testimony of the complainant is corroborated by Ursula Riesa, Pedro Pango, and Francisco Eco.

Certain contradictions in the testimony of Zacarias Riesa were properly regarded by the court below in passing upon the weight of the proofs as unsubstantial their influence upon the weight of said testimony generally considered.

The document for which the complainant paid the accused the sum of P150 was not, as instantly appears upon reading, the certificate of title which the accused had agreed to obtain. Accordingly his representations to the complainant, made by the accused knowing their falsity. By reason of such representations, and relying wholly upon them, the complainant parted with his property, being ignorant, as the accused well knew, of the nature and effect of the instrument he received.

We are satisfied, from a careful reading of the proofs, that the conclusions of the court below are correct. The penalty imposed is within the law. The record discloses no error prejudicial to the substantial rights of the accused.

The judgment appealed from is, therefore, affirmed, with costs against the Appellant. So ordered.

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

1. REALTY; SALE BY PERSON NOT THE OWNER; RIGHTS OF PURCHASER. — A person who is neither the owner nor possessor of a parcel of land, and in addition the thereto never intended to hold or possess the same, can not be lawfully considered as such owner or possessor. For this reason, when selling two lots, situated one on each side of the said parcel, the said intermediate parcel can in no wise be understood as included in the sale, nor could the purchaser have acquired any right to the property improperly included, notwithstanding the form and terms of the instrument executed for the conveyance of the two adjoining properties.

2. CONSTRUCTION OF CONTRACTS. — Where the words and clauses of a written contract are in conflict with the manifest intention of the contracting parties, the latter shall prevail over such clauses and words, and, however general may be the terms of the agreement, the contract can not be understood to include things and cases different from those with regard to which the persons interested intended to contract.

By a writing presented on the 3d of January, 1906, the representative of Irineo Felix requested the registration of a parcel of land belonging to the latter, situated in the town of Antipolo, Rizal Province, bound on the north by Calle Real; on the east by lots owned by Braulia Cuepangco and Engracia Loalhati; on the south by Calle Martinez; and on the west by lots belonging to Gregorio Lim and Braulia Cuepangco; it has an area of 815.98 square meters and its description and boundaries are stated in the plan attached to the petition; the said property, as alleged, was acquired by purchase from the same, Vicente Francisco Ayco, was assessed at the last assessment at $110 United States currency, and is free from all incumbrances, no one having any right or interest therein; it is now occupied by the applicant who, after the hearing of this case and before judgment was rendered in the premises, conveyed the said land by means of an absolute sale to Canuto Reyes for the sum P600, according to the notarial instrument appearing at folio 78.

On the 4th of April, 1907, the representative of Jacinto Limjap made written opposition to the foregoing application, requesting the same be dismissed and that the registration of the said property in favor of Irineo Felix with costs be denied; he alleged that the opponent is the owner and present possessor of the land and denied that the applicant or his predecessors or principals had ever been in legal or material possession of the same, and also denied all the other allegation not expressly or implicitly denied in the previous paragraphs.

The case came up for trial and evidence was adduced by both parties to the suit, the documents exhibited by them being made of record. On the 3d of March, 1909, the trial court overruled the opposition of Limjap and decreed the adjudication and registration of the aforesaid property in favor of Canuto Reyes, after declaring a general default. The opponent excepted to the foregoing decision and moved for a new trial, on the ground that the judgment was contrary to law and not sustained by the evidence; the motion was overruled; the petitioner excepted and gave notice of his intention to appeal by the corresponding bill of exceptions which was duly presented, approved, and submitted this court.

From the record of the case forwarded by the Court of Land Registration upon this appeal, it is fully proven by means of documents and by the testimony of competent witnesses: (1) That Crisostomo Marero possessed the land in question under title of ownership and sold it under pacto de retro to Vicente Francisco Ayco on the 25th of May, 1874, for the sum of 60 pesos, on condition that the vendor and the purchaser would both receive as partners the rent that the house erected on said land should produced, according to document marked with the letter "B" ; (2) that in view of the fact that the vendor did not redeem the property within the period fixed by article 1508 of the Civil Code, as no term whatever was stipulated in the contract sale with the right of purchase, Vicente Francisco sold it on the 17th of December, 1906, to Irineo Felix under public instrument, folio 7, and the latter, after having applied for the registration of his title in the registry of property, also sold the said lot to Canuto Reyes, in whose favor the registration was decreed.

It appears to have been admitted by the opponent, who did not impugn in due course the document marked as Exhibit B of the applicant, that Crisostomo Marero was the original owner and possessor of said land, and, as it does not appear that Marero had transferred his control over the property to Braulia Cuepangco, no possible reason exists under the law for considering the latter to be the lawful owner of the land; therefore, she could neither have disposed of it nor sold it to the opponent Limjap.

As a matter of fact Cuepangco, as stated by her son-in-law and attorney-in-fact or representative, Dalmacio Guidote, in his affidavit, folio 99 of the record, never possessed nor pretended to own the said parcel of land situated between two lots belonging to his mother-in-law, and when he sold them in her behalf he did not include the intermediate lot, which was the property of one Marero, who subsequently sold it to the Chinaman Vicente Francisco and the latter to Irineo Felix, and this fact was stated to the notary Manikis; and even though at first he refused to subscribe the instrument of sale drawn up by the said notary, because it referred to lands of larger area, he afterwards did so because after consulting with Attorney Sotelo, the notary assured him that as the writing contained no clause providing for the protection of purchaser from interference, nothing serious could happen.

Article 430 of the Civil Code provides that "Natural possession is the holding of a thing or the enjoyment of a right by a person. Civil possession is the same holding or enjoyment, together with the intention of acquiring ownership of the thing or right."cralaw virtua1aw library

If Braulia Cuepangco was never in material nor civil possession of the land in question and did not even have the intention to possess it, and if her representative and son-in-law, Dalmacio Guidote, being well aware that the said land situated between the two parcels owned by his mother-in-law belonged to a third person, Ireneo Felix, the last purchaser, and for this reason he did not include the same in the sale of the two parcels to Limjap, the latter could never have acquired any right to the land of the applicant because none was ever transferred to him by the vendor Cuepangco, under the instrument marked with the letter A, folio 66, who was not the owner of the intermediate land or lot owned by Vicente Francisco, and finally sold to Canuto Reyes.

With reference to the rights in the said land acquired by Vicente Francisco by virtue of the contract of sale contained in document marked "B", executed in his favor by the owner Crisostomo Marero, more than thirty years ago, in the presence of the gobernadorcillo accidental of Antipolo, notwith standing the fact the it is not a transfer by a public instrument recorded in the registry of property, the transfer arose from a valid contract, and is legal and efficient; for this reason Vicente Francisco was the owner and possessor with just title and in good faith, and the right the he transmitted to the applicant must be sustained and protected by the courts while no better title under the law has been presented; nor has it been shown that the property was redeemed in due course. Therefore, the applicant has an unquestionable right to have his title recorded in the registry of property.

With respect to the identity of the land, it has been sufficiently shown by the documents offered in evidence, among which is the plan that was presented and which the witness Guidote had before him when testifying in the presence of the opponent, and also by the testimony of the witnesses examined at the trial. The opponent has not proven that the land, the registration of which has been applied for, is not the land describe in the application, in the public instrument, and by the plan above referred to, or that it was larger than it should really be; for which reason, in the absence of proof to the contrary, it must be acknowledged and admitted that said facts so proven are true.

The mere fact that in the instrument of sale of the lands of Cuepangco to Limjap a greater extension was stated than the actual area, including a parcel which belonged to another and not the property of the vendor, can not have conferred any right whatever to the purchases over the land improperly included, even though he consented to have the clause of eviction and warranty suppressed in the document, because the inclusion was made without the knowledge or consent of the real owner of the land, and Cuepangco, who did not own the property, could not dispose of it or sell it; and the pretension of the opponent is all the more unsustainable inasmuch as the representative of the vendor, who acted in her behalf in negotiating and closing the sale, frankly and spontaneously acknowledged that an error had been committed by including in the document the land of the applicant which has not been, an d could not be included in said sale, that he had endeavored to correct the error, and that, if he subsequently subscribed the instrument it was through the advice of the lawyer, who assured him that nothing could happen if said clause of eviction and warranty were suppressed.

Article 1281, paragraph 2, of the Civil Code provides that "If the words should appear contrary to the evident intention of the contracting parties the intention shall prevail."cralaw virtua1aw library

Article 1283 of said code prescribes that "However general the terms of a contract may be, there should not be understood as included therein things and cases different from those with regard to which the persons interested in tended to contract."cralaw virtua1aw library

Hence, considering that he land of the applicant was not the subject of the contract, and that it could not so be for the reason that it did not belong to the vendor, it can in no wise be understood as included in the instrument of sale which appears at folio 66. no matter what may be the terms of the document.

For the foregoing reasons by which are refuted the errors assigned to the judgment appealed from, wherein the deposition of witness Vicente Francisco is entirely disregarded, it is our opinion that the said judgment should be and is hereby affirmed, with the costs against the Appellant. So ordered.

Arellano, C.J., Johnson, Carson and Moreland, JJ., concur.

1. FORCIBLE ENTRY; DWELLING. — Article 491 of the Penal Code relates not only to the method by which one may pass the threshold of the residence of another without his consent, but also to his conduct immediately after his entrance; and where several persons, whether by force or not, enter the store and dwelling house of certain Chinamen and immediately assault them with clubs, they are guilty of allanamiento de morada as defined by said article.

The defendants were convicted in the Court of First Instance of the Province of Oriental Negros of the crime of allanamiento de morada and condemned each one to two years four months and one day or prision correccional, to a fine of 325 pesetas, with subsidiary imprisonment in case insolvency , and to pay one-third of the costs of the trial. They appealed. During of the case on appeal the defendant Lucio Hermenegildo withdrew his appeal.

It appears that in the 3d of May, 1908, Ling Aling, Awi Cuan, and Co-boy Cuan were conducting a store in Bais, Oriental Negros. The building used as a store was occupied by them also as living quarters. About 7 o’clock of the morning of that day the defendant Santiago Villanueva went to the store and sought to buy a pair of shoes on credit. He was refused. Nevertheless he wrote a promissory note and leaving it on a table in the store went out. At about 10 of the same morning he returned to the store and asked credit for a shirt and a pair of pantaloons. On being again refused credit he asked for a piece of paper, saying that he would send to his house for the money. He then left. At about 1 of the same day he went again to the store, this time, however, accompanied by the other two defendants. Having entered he paid the proprietors for the shirt and pantaloons, whereupon the defendant Hermenegildo struck Co-boy with a stick and the defendant Villanueva, seizing a piece of iron, struck Awi Cuan in the temple with such force that he fell to the floor. The defendants then went out, and after their departure, the Chinamen closed the store and locked the doors. Soon the defendants returned. They forced the door open, breaking the lock and fastenings, and again entered the store. The defendant Gamilla assaulted Aling with a stick, wounding him in the face, breaking his nose and causing injuries which required more than thirty days for their cure.

These facts are fully established and proved by the testimony of the Chinamen assaulted and by that of Vivencio Baldado, Eusebio Buso, Jose Maria Montenegro, Bais Emilio Tevez, and Eladio de Guia.

Testimony tending to contradict that of the prosecution as to the forcible entry was given by the defendants. The court below, however, found in favor of the Government. A careful examination of the evidence leads us to the conclusion that his finding was correct. Moreover, in any view that may be taken of it, we meet the decision of this court in the case of United States v. Arceo (3 Phil. Rep., 381), in which the court, speaking by Mr. Justice Johnson, says, at page 383, interpreting article 491 of the Penal Code:jgc:chanrobles.com.ph

"We are not of the opinion that the statute relates simply to the method by which one may pass the threshold of the residence of another without his consent. We think it relates also to the conduct, immediately after entrance, of him who enters the house of another without his consent. He who being armed with deadly weapons enters the residence of another in the nighttime, without consent, and immediately commits acts of violence and intimidation, is guilty of entering house of another with violence and intimidation and is punishable under subsection 2 of article 491 of the Penal Code. (See Visada, vol. 3, p. 303; Gazette of Spain of the 28th of March, 1883; Viada vol. 6, p. 363; Gazette of Spain of the 19th of May, 1892, p. 165.)"

The court, however, erred in the imposition of the penalty. The penalty provided for by law is that of prison correccional in its medium four months and one day to six years, with the accessories provided by law, and a fine of from 325 to 3,250 pesetas, with subsidiary imprisonment in case of insolvency. There being present in the commission of the crime neither aggravating nor extenuating circumstances, the penalty imposed should have been in the medium degree.

The judgment of the court below is hereby modified and the defendants are sentenced each one to three years six months and twenty-one days of prision correccional, to the accessories provided by law, to a fine of 1,000 pesetas, to subsidiary imprisonment as provided by law, and to pay one-third of the costs. Thus modified, the judgment of the court below is affirmed, with costs against the appellants, equally. So ordered.

Arellano, C.J., Torres, Mapa, Johnson and Carson, JJ., concur.

1. ELECTION LAW; THREATS; INTERFERENCE WITH VOTERS. — A person threatened another that unless he voted for a certain man for the office of member of the Assembly he would find himself at the point of a gun and would learn that he who threatened was the one who governed in Jamindan, the threatener being at the time municipal president of Jamindan, is guilty of the crime of attempting to prevent a voter "from freely and fully exercising his right to] vote as defined in section 30 of Act No. 1582.

The defendant in this case was convicted of a violation of section 30 of the Election Law by the Court of First Instance of the Province of Capiz, and sentenced to pay a fine of P200, to imprisonment in case of insolvency, and to pay the costs of the trial. He appealed.

It appears that during the month of July, 1907, the accused, who was then municipal president of Jamindan, made an inspection of the barrio of San Juan, situated in said municipality, accompanied by two policemen armed with rifles. On that inspection he entered the house of Gregorio Maximo, with whom he spoke concerning the election which was to be held during that month. During the course of the conversation he requested Maximo to vote for Jose Altavas for member of the Assemble. Maximo answered that he could not do so because he had already promised to vote for Hugo Vidal. At this the accused became furious and sought to intimidate Maximo, threatening that if he voted for any body but Altavas he would find himself at the point of a gun, that he would learn that the accused was the one who governed in Jamindan. He used other threatening language also. It further appears that some days after the election Maximo was taken from his houseboy a couple of Constabulary and another man by the name of Biloy, a cousin of the accused, at the instigation of the accused. The accused ordered the Constabulary to punish Maximo, and, after they had bound him to a tree, they proceeded to maltreat and beat him.

The conclusions of fact of the court below are fully justified by the proofs adduced on the trial.

The assignments of error interposed on behalf of the defendant are partly disposed of upon the facts. The remaining assignments of error relate to the question whether or not the threats proved were sufficient under the law to justify a conviction. We do not deem argument necessary to demonstrate that the court was right in his conclusions of law. We simply call attention to the language of section 30 of Act No. 1582, the terms of which are too clear to require comment:jgc:chanrobles.com.ph

"Any person who, by any wrongful means, shall prevent or attempt to prevent any voter from freely and fully exercising his right to vote, . . . shall be punished by imprisonment for not less than thirty days nor more than one year, or by a fine of not less that two hundred pesos nor more than five hundred pesos or both, in the discretion of the court."cralaw virtua1aw library

The judgment of the court below is affirmed, with costs against the Appellant. So ordered.

Arellano, C.J., Torres, Mapa, Johnson and Carson, JJ., concur.

1. MURDER; MITIGATING CIRCUMSTANCE OF RACE. — In a proceeding under a complaint charging the crime of murder, although it appears from the evidence that the crime was committed for the purpose of robbery, yet, as the robbery has not been satisfactorily proven, and as it is not possible to sentence the murderer for a robbery not charged in the complaint, according to the established rule of this court the special circumstance of article 11 of the Penal Code must be considered and taken into account in imposing the penalty for the murder.

On the night of February 3, 1909, Antonio Serrano, living at No. 194 Calle Magallanes, Intramuros, left his house in company with his wife to go to the Carnival, leaving his two servants, Alberto Concepcion and Eulogio Peña, in the house and locking the gate. at about 11 o’clock of the same night, Patrolman Charles G. Smith received information that there was a wounded man in the house; he immediately proceeded to the place and found a man covered with blood lying on the ground in the interior patio; he was obliged to force open the locked gate in order to remove the wounded man, who proved to be Alberto Concepcion, one of the house boys, and to conduct him to the hospital of San Juan de Dios, where he died within an hour after arrival.

An examination of the body of the deceased showed many wounds: one about 10 centimeters long and half a centimeter deep on the forehead; another of similar size on the rightside of the forehead; another about 12 centimeters long over the left ear; another over the superficial temporal artery, which was severed; another in the left occipital region; another at the back of the neck which penetrated the spinal vertebrae, severing all the muscles of the neck; two wounds of 5 centimeters in length on the right forearm; another on the left wrist; two other wounds in the right forearm, and one wound on the little finger of the right hand. According to the surgeon who made the examination, the majority of the above-described wounds were necessarily fatal and sufficient to have caused death; there were other wounds of less importance on the body. The doctor who examined the body to these wounds at the trial.

According to Eulogio Peña, the only eyewitness of the affray, the violent death of the victim occurred as follows: Peña that night was waiting at the grated door of the house for the newspaper, after the departure of his masters, when Silvestre Quillo approached him from the street, asking if his employers had gone out, to which he answered in the affirmative. After this Quillo left and the servant Peña went upstairs to the dining room whence he saw that Quillo, by means of a ladder, had climbed over the fence and with a bolo in his hand was going in the direction of the servants’ quarters on the ground floor of the house; Alberto Concepcion was there at the time, sitting on a trunk and reading a book; there was a light in the room, and when the witness went to the window of the kitchen, he saw that Quillo was attacking his fellow-servant Concepcion, but notwithstanding the cries of the latter he dared not go to assist him as he wanted to do, because the aggressor had threatened to kill him if he came near; being afraid, he went back to the dining room and from there he saw Silvestre Quillo place a ladder against the wall and climb over the fence and out of the house; at about 11.30 p.m. his master arrived with several policeman, he being asleep through fear at the time.

In view of the foregoing facts, as alleged, a complaint was filed with the Court of First Instance of Manila charging Silvestre Quillo, who was later on arrested, with the crime of murder, and these proceedings were instituted; on the 13th of February, 1909, the trial court rendered judgment therein sentencing the defendant to the penalty of cadena perpetua, with costs, from which judgment he appealed.

From the above-stated facts, fully proven in this case, it appears beyond a doubt, that the crime of murder was committed, inasmuch as Alberto Concepcion was attacked with a sharp, cutting weapon, at a time when he had his back turned to the aggressor and while sitting on a trunk of a light in the room. Patrolman Hartpence, who was the first to enter the room, found the book open upon the floor with blood stains on page 45, which detail confirms the statement by Peña, the other servant in the house and the only eyewitness of the occurrence. And even though doubts were entertained as to the latter’s statement, that the aggressor attacked his victim from behind, considering the report of the surgeon who examined the wounds of the deceased at the hospital of San Juan de Dios, yet it is undeniable that, being seated and busy reading, entirely unaware and unarmed, he was suddenly attacked by the aggressor who was carrying a bolo, and in view of the numerous wounds inflicted on him, some of them of a serious character and necessarily mortal, it appears that the deceased was attacked treacherously, because the aggressor employed ways and means in the commission of the crime tending directly and particularly to insure its consummation without any risk to his person which might arise from a defense by the injured party who, unquestionably, was unable to execute any such act or even to flee because, being seriously wounded in the back of the neck, as stated by the witness Peña, or in the forehead and left side of the face as the said surgeon believed, the assaulted man was at once incapacitated and could not defend himself, and the aggressor, to continue his acts until he left the assaulted man almost dead.

The crime therefore falls within the provisions of article 403 of the Penal Code. The defendant. Silvestre Quillo, pleaded not guilty, and although the did not testify in the case, his counsel presented Maria Rodriguez as a witness to prove an alibi, and the latter declared that the said defendant was in her house and slept in it, although he did not usually do so, from 8 o’clock on the night of the affair until 4 o’clock of the following morning, when he left to return to his own dwelling.

The foregoing testimony, which is insufficient of itself, has been contradicted by Patrolan Hartpence, who had a conversation with her regarding the hour at which the defendant reached her house because she did not have a clock, and she then said nothing about having heard bells strike, which she thought indicated 8 o’clock, when the defendant arrived at her house. At any rate the testimony of the said Maria Rodriguez is not at all sufficient to destroy the testimony of the eyewitness to the crime, Eulogio Peña, the only person who was in the house where it took place; the testimony of the aforesaid eyewitness is corroborated by other circumstantial evidence which, together with that of the said eyewitness, produce in the mind a full conviction, beyond all doubt, of the guilt of Silvestre Quillo as the sole principal in the murder herein prosecuted.

In fact, it is proven that at 4 o’clock of the morning following the night when the murder was committed, the defendant appeared at the door of the house of Gaspar Justinbaste situated in Calle Magallanes, 151, close to that where the affair happened, wherein he lived, and when trying to enter it, after cautiously looking all around, he saw Policeman Catalino Fernandez who was there seated on a bench awaiting his return; that he then tried to escape, but the policeman cautioned him not to run away and caught him by the arm and asked him his name; that he first said his name was Pedro, and later on that it was Juan, and only when the defendant used in the assault, was afterwards found in a box outside of the room where the crime was committed, and upon its being presented to Gaspar Justinbaste, in whose house the accused lived, it was recognized as the one that he had and which disappeared three weeks previously, for which reason he had given it up for lost; said witness called attention to the fact that the bolo, upon examination, proved to be sharper than before its disappearance; that, according to the declaration of Policeman Hartpence, the interior of the room where the crime was committed could be seen and examined from the window of the kitchen on the upper floor of the house, which confirms the statement of witness Peña; that the latter asserted that on the night of the murder the accused wore black trousers, and as a result of the search made by Policeman Catalino Fernandez in the house where the defendant lived, the black trousers were found with blood stains on them, and were identified by Peña and by Antonio Serrano, who formerly owned the trousers and gave the same to his servants, although he did not know which one had secured them, but supposed that it was the accused Quillo, who was in his employ at the time, and was one of the servant of the house, from which he afterwards departed.

With respect to the motive that gave rise to the attack upon the unfortunate Alberto Concepcion, none can be found in the record, with the exception of the facts stated by Eulogio Peña, a fellow-servant of the deceased, who says that, a few days before, some trouble had arisen between the deceased and the defendant, because the former had not given the latter certain money that Quillo had requested from Concepcion; such a motive was too insignificant to warrant the killing of the latter, and it show the degree of perversity of the murderer.

In the commission of the crime the presence of aggravating circumstances Nos. 15 and 20 of article 10 of the Penal Code must be considered, inasmuch as the defendant undoubtedly and expressly selected and waited for the darkness of night in order to successfully carry out his criminal intent, and perpetrated the crime in the dwelling of the victim. These two circumstances are counteracted by the special circumstance established by article 11 of the Penal Code, for the reason that Silvestre Quillo is a native of these islands and of hardly any education, which circumstance may properly be considered because the present case is not one of robbery with homicide, or of murder and robbery, and the complaint only charges the accused with the crime of murder, And, notwithstanding the fact that in the room where the murder occurred a trunk was found open with all the clothing therein mixed up and with blood stains thereon, it has not been shown that the crime of robbery was committed, and whether beyond the two P5 bills found inside a piece of red paper among the clothes, money or other goods had been stolen; therefore it can not be concluded with certainty that the crime of robbery was committed.

Therefore, it is our judgment appealed from should be and is hereby affirmed with the costs against the appellant, provided, however, that he shall further be sentenced to suffer the accessory penalties Nos. 2 and 3 of article 54 of the Penal Code, and to indemnify the heirs of the deceased in the sum P1,000 and that the two P5 bills shall be delivered to the latter if it has not already been done. So ordered.

Arellano, C.J., Mapa, Johnson, Carson, and Moreland, JJ., concur.

1. SALE; TRANSFER OF OWNERSHIP. — The act of selling of alienating real or personal property undisputably transfers the ownership of the vendor to the vendee of transferee, but he who is not the owner can not perform any act which will affect the ownership, nor can the vendee acquire the thing bought, inasmuch as no right was transferred by the vendor.

2. PLEDGE OR MORTGAGE; CREDITOR’S RIGHTS. — The creditor can not appropriate to himself the things held as pledge or under mortgage, nor can he dispose of the dame as owner; he is merely entitled, after the principal obligation has become due, to move for the things pledged, in order to collect the amount of his claim from the proceeds.

On the 27th of July, 1907, Esteban Ranjo filed a written complaint with the Court of First Instance of Ilocos Norte against Gregorio Salmon, Francisca Gonzalez, and Valeriano Tomas, alleging that he was the owner, by inheritance from his deceased mother, Dorotea Adiarte, of a tract of land used as a truck garden and a rice field, situated in the barrio of Rangtay, pueblo of Pasuquin, Ilocos Norte, with an area of about 2 hectares and 43 ares; that the property is bounded on the north by a path and land owned by Calixto Luna; on the east by lands belonging to Ubaldo Tagabilla, Eugenio Blas, and Timoteo Caliba; on the south by lands of the same Caliba, Agustin Menor Macario Lagac, Cipriano Daquigan, Eugenio Blas. and a sandy tract; and on the west by another sandy tract that in 1900 (the exact date being unknown) he pledged the said land to Francisca Gonzalez for the sum of 100 pesos, with a right to redeem it upon repayment of the amount; that in 1904 Gonzalez transferred fed rights in the said land upon the said condition to Valeriano Tomas, who in 1906 transferred his right to Gregorio Salmon for the sum of P140; that the defendants having amicably requested to return the land in question to the question to the plaintiff, upon payment of the last-mentioned amount of the pledge made in favor of Salmon; that the latter refused to comply with the request, wherefore the plaintiff prayed that judgment be rendered ordering the defendants to deliver the above describe land to the plaintiff, upon repayment of P140 to Gregorio Salmon, and to pay the costs.

Gregorio Salmon having been summoned, made written answer to the above complaint, stating that the lands mentioned therein were not the property of the plaintiff when they were sold to him by Valeriano Tomas, who was their exclusive owner, and therefore he prayed that judgment be rendered in his favor, and that the plaintiff be adjudged to pay the costs.

The other defendant, Francisca Gonzalez, stated in her answer that she admitted as true the facts on which the plaintiff based his complaint, and that she therefore agreed to the redemption of the land described therein, and prayed that judgment be rendered in favor of the said plaintiff with the costs against the defendant Salmon.

Valeriano Tomas died on July 28, 1907, as appears from Exhibit B of the plaintiff.

After the hearing of the case and the evidence adduced by both parties, the documents exhibited having been made part of the record, the judge therein, sentencing Gregorio Salmon to deliver the land claimed to the plaintiff Esteban Ranjo, upon repayment of P140, and to pay the costs. Counsel for the defendant Ranjo excepted to this decision, and asked for the annulment thereof on the ground that it was not sufficiently sustained by the evidence, that the findings deduced from the facts were clearly and manifestly contrary to the weight of the evidence, and stated that, should his petition be denied, he excepted thereto and intended to file his bill of exceptions in the usual way; the motion was denied and the annulment asked for was declared to be improper, and his notice of intention to submit his bill of exceptions in the usual way having been admitted, the said bill of exceptions was prepared, certified, and approved, and thereafter filed with the clerk of this court.

It having been proved that Valeriano Tomas was not the owner of the land claimed by Esteban Ranjo, the allegation of Gregorio Salmon that it belonged to him can not be supported, since he acquired it by purchase from the said Tomas, who was not the owner.

Only the owner can dispose of property, without any other limitations than those prescribed by the law, and he has a right of action against the holder or possessor thereof to recover it. (Art. 348, Civil Code.) If Valeriano Tomas was not the owner, but a mere mortgage creditor of the land in question, he could not sell it nor convey any right of ownership to the defendant Salmon notwithstanding the document exhibited by the said defendant and marked "A."cralaw virtua1aw library

Article 1859 of the Civil Code reads as follows:jgc:chanrobles.com.ph

"A creditor can not appropriate to himself the things given in pledge or mortgage, nor dispose of them."cralaw virtua1aw library

What the creditor is entitled to do, after the principal obligation has become due, is to ask for the alienation of the things constituting the pledge or mortgage, in order to secure reimbursement. (Art. 1858 of the same code.)

Valeriano Tomas, in order to obtain the 125 pesos he had loaned to Francisca Gonzalez, by way of mortgage on said land, conveyed his rights to Gregorio Salmon for the sum of 140 pesos, which was paid to him by the latter. Valeriano Tomas testified under oath to this effect in the document presented by the plaintiff (Exhibit A), which document was ratified before a notary, the contents of which confirm the statements made by Francisca Gonzalez in her written answer to the complaint, agreeing to the pretensions of the plaintiff, Ranjo, and directly contradict the contents of the document exhibited by the defendant Salmon as evidence of his allegation that he is the owner of the said land. The latter allegation is wholly unfounded, inasmuch as, if his title of ownership is derived, according to his answer to the complaint, from the right of the said Valeriano Tomas, it having been proved that the latter was not the owner of the land, but a mere creditor with the right to recover his credit from the proceeds of the sale of the property, it is undisputable that he could not dispose of the land nor sell it absolutely and finally to the defendant Salmon, as the latter pretends, basing his pretension on the said document of sale, which is notoriously inefficient because it is a contract wholly null and void.

The other defendant, Francisca Gonzalez, stated in her sworn testimony that after having held the land under mortgage for four years, and being in need of money, after having notified its owner Esteban Ranjo, she in turn mortgaged it to Valeriano Tomas, from whom she received 125 pesos; no new document was then executed, but she simply indorsed the old one executed by her and Esteban Ranjo; the latter in his sworn testimony confirmed Gonzalez’s statements and added that he had inherited the said land from his mother, and that it is at present in possession of the defendant Salmon, because the former mortgagee, Valeriano Tomas, had mortgaged it to him; and that, as Tomas assured him that upon paying Salmon the 140 pesos received as loan he could recover the land without any objection, he went to see the defendant Salmon (because Tomas was sick), to redeem the land, and presented to him a letter from Tomas; but Salmon refused to receive the money, saying that he wanted to deliver the land to the same person from whom he had received it.

From the above-stated facts it appears that the document evidencing the mortgage, and which Francisca Gonzalez avers was executed and indorsed to Valeriano Tomas, must have been delivered to the last mortgagee, Gregorio Salmon; and the latter having failed to exhibit it at the trial (since the said document contains and shows the successive mortgages to which the land in question has been subjected), it must have been because it did not suit the defendant Salmon to produce such a document, which is evidently incompatible with the document of sale exhibited by him, the facts related by the plaintiff and Francisca Gonzalez being moreover corroborated by the notary, David Cleto, and by the witness, Alejandro Blas.

The character of the plaintiff, as owner of the land, as denied and questioned, but the defendant does not take into account the fact that he himself acknowledges and admits that he had acquired it from Valeriano Tomas; and, as it is a fact that the latter had in turn received it from Francisca Gonzalez, in whose favor it was mortgaged by Esteban Ranjo, it is undisputable that the first and true owner of the land mortgaged is the plaintiff, inasmuch as it has not been shown that it was Valeriano Tomas who, according to the defendant, sold and conveyed to him the land in controversy.

The act of selling or alienating real or personal property to another person conveys the ownership of the vendor as to the thing sold; one who is not the owner can not perform any act which would transfer the ownership, nor could his pretended transferee acquire any rights in the property, because his vendor did not convey to him any right of ownership.

Therefore, the judgment appealed from being in accordance with the law and the merits of the case, it is our opinion that it should be and it is hereby affirmed, with the costs against the Appellant. So ordered.

Arellano, C.J., Mapa, Johnson, Carson and Moreland, JJ., concur.

1. COURTS OF FIRST INSTANCE; DECISIONS SHOULD BE RENDERED UPON ISSUES PRESENTED. — The Courts of First Instance, in rendering decisions, should adhere to the issues presented for their consideration by the parties in their pleadings.

2. ESTATES; CONJUGAL PROPERTY; PARTITION. — Upon the death of a husband or wife, one-half of the conjugal property can not be immediately inventoried as the exclusive property of the deceased. When the affairs of the partnership have been settled and all debts and obligations of the estate are discharged, then one-half of the net proceeds are to be considered as the exclusive property of the deceased husband or wife. (Art. 1426, Civil Code; sec. 685, Code of Civil Procedure; Alfonso v. Natividad, 6 Phil. Rep., 401.)

3. ID.; ID.; APPOINTMENT OF COMMISSIONERS NECESSARY. — Under the provisions of the Code of Civil Procedure, in the settlement of the estates of deceased persons, it is necessary to appoint commissioners before whom the creditors of such deceased persons may present their claims within a time fixed by the court. (Sec. 689, Code of Civil Procedure.)

4. ID.; ID.; HUSBAND IS ADMINISTRATOR OF CONJUGAL PARTNERSHIP. — The husband is administrator of conjugal partnership. Debts contracted during such administration are payable out of the conjugal property. The surviving spouse can not claim one-half of such property until after the liquidation of the debts because, while the proportion of the participation of the surviving spouse is fixed by law, the amount thereof cannot be determined until after the debts are paid and obligations discharged. (Arts. 1412 and 1422, Civil Code.)

5. ID.; ID.; PARTITION BY HEIRS; ADMINISTRATORS AND COMMISSIONERS. — The heirs, if they are of legal age, may agree upon a division of the estate upon assuming the payment of the claims against the estate. In the absence of such an agreement and assumption of obligations, the wife can not, no more than any heir, sue for her participation in the conjugal property; the estate must first be liquidated by the appointment of an administrator and of commissioners to hear and determine claims. (Sec. 596, Code of Civil Procedure.)

The plaintiff herein alleged that she, together with her former husband (now deceased) Paulino Rendon, in the month of July, 1900, sold to the defendant a parcel of land, with the improvements thereon, located in the municipality of Atimonan in the Province of Tayabas, for the sum of $1,250 gold, or the sum of 2,999 pesos, Mexican currency, being the alleged value of the $1,250 gold at the time of the alleged sale.

The plaintiff admitted that the defendant had paid on the said contract the sum of 2,500 pesos, and alleged that there was still due the sum of 499 pesos. The plaintiff prayed in her petition that the contract of sale be declared void for the failure of the defendant to comply with its terms, and that said property be returned to her upon the payment by her, to the defendant, of the sum which the defendant had actually paid upon the said contract. To this petition the defendant demurred, which demurrer the court overruled.

Upon the overruling of the demurrer, the defendant answered denying each and all of the facts alleged in the complaint and, for a special d, alleged that said action was prescribed; that the plaintiff had no interest in the litigation of the question presented, and that she signed the contract of purchase simply as the wife of Paulino Rendon; that he had never entered into a contract with the plaintiff for the purchase of the land in question.

The lower court, after hearing the evidence adduced during the trial of the cause, said:jgc:chanrobles.com.ph

"The undisputed testimony shows that Paulino Rendon, with his wife, the plaintiff in this case, sold a house and lot in Atimonan for $1,250, gold coin of the United states, that being in circulation at the time. When the contract of sale came to be drawn up and signed, to insure the payment in gold the consideration was made 2,999 pesos.

"It is admitted that only 2,500 pesos was said on this sale, but it is insisted that silver being worth at that time 2 pesos for one gold dollar, that the obligation was discharged. This could not have been the agreement or the reasonable construction of it, or 2,999 pesos would not have been named as the consideration in the written contract of sale.

"It is urged that this plaintiff can not recover, because this amount of 499 pesos, if due any one, is due the estate of the deceased Paulino Rendon, and that only his administrator could maintain a suit for the amount.

"I can not agree with this theory of the plaintiff. It was the undisputed proof that she and her husband acquired the property long after their marriage in 1881; she is the absolute owner of one-half of the property under the law, and if there is no administration of her husband’s estate this can not debar her of her right to recover her part of the estate.

"The children of the deceased Paulino Rendon may or may not be of age and may not wish to join in this suit. They are not parties to this suit and do not ask for an adjudication of their rights, but the plaintiff does. I am of the opinion that she has a legal right to recover one-half of the amount contracted by the defendant to pay for the house, if not paid in $1,250 gold coin, less the 2,500 pesos, paid on the contract price.

"Therefore it is the order and judgment of this court that the plaintiff recover of the defendant 249.50 pesos, with interest at 6 per cent per annum, from this date, until paid, and the costs of this suit."cralaw virtua1aw library

From this judgment of the lower court the defendant appealed and made the following assignments of error:chanrob1es virtual 1aw library

First. That the lower court committed an error in conceding to the plaintiff, in his sentence, a remedy which was not prayed for in the complaint.

Second. That the lower court committed an error in holding that the plaintiff was the proper person to maintain the action in question.

With reference to the first assignment of error it will be noted that the plaintiff prayed that the contract of purchase be declared null and that the property be returned to her upon her returning to the defendant the amount of money which the defendant had already paid upon said contract.

The lower court rendered a judgment in favor of the plaintiff for one-half of the unpaid purchase price. The question presented in the petition was not even discussed by the lower court, to wit; the right of the plaintiff to have the contract declared null and the property in question returned to her. The court, in rendering its decision, ought to have limited itself to the issues presented by the parties in their pleadings.

With reference to the second assignment of error, the defendant and appellant, relying upon section 685 of the code of Procedure in Civil Actions, contends that the plaintiff was without authority to maintain the present action.

Said section 685 provides as follows:jgc:chanrobles.com.ph

"Community property. — One-half of the community property, as determine by the law in force in the Philippine Islands before the 13th day of August, 1898, belonging to a husband and wife, shall be deemed to belong to the deceased husband or wife, and shall be inventoried and accounted for, and distributed as a part of the estate, in the same manner as all other property belonging to the estate."cralaw virtua1aw library

This section has already been interpreted by this court in the case of Alfonso v. Natividad (6 Phil. Rep., 240). In that case it was said (p. 243):jgc:chanrobles.com.ph

"This section can not be so construed as to require one-half of the property of the conjugal partnership to be inventoried as the exclusive property of the deceased spouse before any settlement of the affairs of the partnership. Such a construction would be in direct violation of the law, which requires that the partnership property be used to pay in debts, and provides that one-half of the net proceeds only belong to each spouse. (Art. 1426, Civil Code.) This section (685) must mean that when the partnership affairs have been settled, and all its debts and obligations discharged, then one-half of the net proceeds shall be considered as the exclusive property of the deceased spouse."cralaw virtua1aw library

By the provisions of the new Code of Civil Procedure, in the settlement of the estates of deceased persons, it is necessary to appoint commissioners, before whom the creditors of the deceased must present their claims, within a time fixed by the court.

The husband is the administrator of the conjugal partnership (art. 1412, Civil Code). Debts contracted during this administration by the husband are payable out of the conjugal partnership property (art. 1422, Civil Code). The amount of the conjugal property to be distributed can not, therefore, be determined until after the debts are paid. The surviving spouse can not claim one-half of the conjugal property until after the liquidation of the debts. While the proportion of the participation of the surviving spouse in the conjugal property is fixed by law, the amount can not be determined until after the debts are paid.

It is true, under the provisions of the Code of Procedure in Civil Actions, that the heirs, if adults, may agree upon a division of the estate (sec. 596, Code of Procedure) by assuming the payment of debts, if any, against the estate. Until it appear as that the heirs have by mutual agreement among themselves agreed to a division of the estate, assuming thereby the obligation to pay the debts, the wife, no more than any of the other heirs, has a right to sue for her participation in the conjugal property. Unless the adult heirs agree to a division of the inheritance, the estate must be administered in accordance with law, by the appointment of an administrator, and by the appointment of the commissioners to hear claims against the estate.

The judgment of the lower court is therefore declared to be of no effect and the cause is hereby remanded to the lower court with direction that such steps be taken as may be necessary for the proper division or administration of the estate of Paulino Rendon.

Without any findings as to costs, it is so ordered.

Arellano, C.J., Torres, Mapa, Carson and Moreland, JJ., concur.

1. PLEADING AND PRACTICE; REVIEW OF EVIDENCE. — It is a doctrine established and adhered to by this court, in accordance with legal provisions in force in connection with civil procedure, and which constitutes a rule of law, that an appellant who desires to have the evidence offered at the trial reviewed in the second instance is under obligation to see that all such evidence is transmitted to the Supreme Court.

2. ID.; ID.; FINDINGS AND CONCLUSIONS BY TRIAL COURT. — It is not permissible to transmit only a part of the evidence adduced in the first instance and then to ask a reversal of the judgment appealed from on the ground that the evidence submitted at the trial does not sustain the decision appealed from; in such a case the appellate court must accept the facts as found by the judge, as well as conclusions set forth in the judgment.

On the 18th of February, 1908, Francisca Breta filed a written complaint with the Court of first Instance of Albay against the firm of Smith, Bell & Co. which has a branch office established in the port of Legazpi in said province, alleging that she is the owner, with full control and right of possession, of a building lot situated in the barrio of Sta. Cruz, municipality of Ligao, in said province, with an approximate area of 25 topones, according to legal measurement, the boundaries of which are: on the north, the land of Leon Pincaro; on the south, the land of Juan Roco that is crossed by a footpath leading to Ralla’s barn; on the east, the lot of Saturnina Breta, formerly belonging to Juliana Breta and now the proper Smith, Bell & Co, the defendants herein; and on the west, the public road between Pandan and Cabasi; that she is also the owner of camarin build of wood and light materials, erected on the said lot, with a frontage of about 12 and depth of 8 varas, which is occupied by the Chinaman Lim Tongco; that on or about the 23rd of March, 1907, the defendant company seized the above-described property, retaining it, utilizing it, and depriving her of the possession and enjoyment of the same up to the present date, under pretense of having real rights adverse to those of the plaintiff; that the latter has suffered losses and damages to the amount of P50, for the wear and use of the camarin, the sum of P20 monthly, from the 23rd of March, 1907, until the day the same is restored to her, and the sum of P100, representing the profits that she should have obtained had she not been dispossessed of said property; she therefore prayed that judgment be entered in her favor and against the defendants for the restitution of the possession and of the full control of the above-described property, for the total amount of the losses and damages suffered, and for the costs of the proceedings.

The defendants, having been duly summoned, answered the foregoing complaint in writing on the 18th of March, 1908, denying each and all of the allegations of the complaint not expressly admitted and in harmony with the defense set up in the answer, admitting paragraphs 1 and 2 of the said complaint, and as a special defense alleged that prior to the 23rd of March, 1907, Saturnina Breta, now deceased, owned and possessed a building lot in the town of Ligao, a barrio of Santa Cruz, Province of Albay, on the left-hand side of the street leading thereto, opposite the junction of the road to Tomulin, having an area of 1,740 square meters and bounded on the north by lots belonging to Leon and Maria Pincaro and Maria Peligera; on the east by rice fields belonging to the heirs of Anacleto Tuason; on the south by a crossroad leading to the fields; and on the west by the road already mentioned; that on the said property and close to the said street is a camarin built of wood and nipa of 14 by 9.80 meters, and former toward the interior, at about 24 meters from the road, there is a nipa house 12.50 by 7.30 meters; that prior to the aforesaid date Saturnina Breta mortgaged the said property to the defendant company; that, in consequence of the foreclosure of the mortgage, the sheriff sold the property by public auction on said date, and the same was adjudicated to the defendants as the highest bidder; that after the debt of the debtor Saturnina Breta, and after an administrator o her estate had been appointed, the plaintiff, Francisca Breta, presented a claim to the duly appointed commissioners demanding P30 for the lien on the said property, which claim was admitted in the sense that the said should be adjudicated to the petitioner, from which resolution Francisca Breta has never appealed, notwithstanding the fact that the administration of the intestate estate of said deceased was closed; that the defendant company, upon being informed of said claim and of the decision rendered therein, took part, being the bidder at the sale of said property, and defended its right of possession, a proceeding which required an expenditures of P300, and that the plaintiff, being aware of the question in the matter of the possession of the said property, did not intervene or take any part therein; the defendants therefore prayed that they be absolved of the complaint, and that the plaintiff be estopped from claiming the said property, and that she be perpetually enjoined from further action, and sentenced to pay the costs of the proceedings.

The case came up for trial, evidence being adduced by both parties to the suit, and their exhibits and the arguments of their respective lawyers were made of record; on the 24th of April, 1908, the trial court rendered judgment against the plaintiff, and dismissed the complaint with costs.

The plaintiff, upon being informed of the foregoing decision, excepted thereto an don the 25th of April moved for a new trial, requesting the court below to amend the said judgment, clearly and specifically stating the conclusions of fact that resulted from the evidence, and which served as the basis of the decision; and that a correction be made in the fourth paragraph of her complaint, causing it to appear that the plaintiff constructed a new camarin on the same spot where the camarin destroyed by the cyclone of 1904 formerly stood, in which new building some of the timbers of the old one were used.

On the same date, April 25th, the plaintiff presented a motion requesting a reopening and a new trial on the ground that the above judgment was not supported by and was openly and manifestly contrary to the weigh to of the evidence, to law and to equity, and because the testimony of the witnesses was not properly taken down by the stenographer, as required for a review of the said judgment.

On the 27th of April, the court below, on the ground that the facts stated in the judgment were sufficiently described therein, and in view of the fact the Attorney Imperial stated in the presence of the adverse party that it was unnecessary for the stenographer to take down the testimony of the witnesses who where examined at the trial, for which reason the plaintiff was not entitled to anew trial, overruled the two motions filed by the latter, who excepted to the order and to the final judgment and gave notice of intention to appeal.

The bill of exceptions was prepared, to the approval of which the appellee objected because it contained testimony of witnesses not included in the record of the case; the court below ruled that the bill be amended and the said testimony eliminated, but the appellant excepted thereto and again insisted that the amended bill of exceptions, with the testimony of the witnesses according to the minutes, should be approved.

The court below held that if the parties would agree in writing as to the testimony of the witnesses included in the bill of exceptions, the clerk of the court must submit the same to this court; that, in case of disagreement, then both parties should present their respective bills for the approval of the court below, which could not be done because the judge found that the notes were so brief that they did not comprise all of the said testimony; therefore, as the bills presented by the parties could not be corrected nor harmonized with certainty, it was ordered that all the documents be submitted to this court.

Section 1 of Act No. 1596, enacted February 25, 1907, amending section 497 of Act No. 190, the Code of Procedure in Civil Actions, prescribes in paragraph 2, among other things, the following:jgc:chanrobles.com.ph

"If the excepting party filed a motion in the Court of first Instance for a new trial, upon the ground that the evidence was insufficient to justify the decision, and the judge overruled said motion, and due exception was taken to his overruling the same, the Supreme Court may review the evidence and make such findings upon the facts by a preponderance of the evidence, and render such final judgment as justice and equity may require."cralaw virtua1aw library

Act No. 1123, enacted April 27, 1904, amending, among others, section 143 of said Act No. 190, provides in substitution of the penultimate the following:jgc:chanrobles.com.ph

"Immediately upon the allowance of a bill of exception judge, it shall be the duty of the clerk to transmit to the clerk of the supreme Court the original bill of exceptions and all documents which by the bill of exceptions are made a part of it. The cause shall be heard in the Supreme Court upon the bill of exceptions so transmitted, all duly certified by the clerk of the Court of First Instance."cralaw virtua1aw library

It is fixed doctrine which constitutes a rule established by this court, in accordance with the provisions of law above quoted, that if the appellant desires that the Supreme Court shall review the evidence offered at the trial, he must see that all the evidence is submitted to this court upon appeal.

He can not bring in a part of the evidence only and then claim a reversal on the ground that the evidence presented to this court does not support the judgment. (Ferrer v. Abejuela, 9 Phil. Rep., 324; Valle v. Galera, 10 Phil. Rep., 619.) The oral evidence taken in the present case has not been submitted to this court for the reason that, as stated in the order of the trial court of the 27th of April, 1908, Attorney Imperial for the plaint, as well as the attorney for the defendant, stated in open court that they did not desire the court stenographer to take down the testimony of the witnesses who had been examined; hence the judge believe that the representative of the plaintiff was not entitled to move for a new trial. It has not been possible for the appellant to have the clerk of the lower court transmit the oral evidence together with the documentary evidence, because it was not taken down at the trial, and for this reason the conclusions of fact in the judgment can not be reviewed, since to that end it would be necessary to examine all the evidence presented at the trial, and certainly this court has not before it the oral evidence.

The attorney who appeared for Francisca Breta, under agreement with the defendant’s lawyer, expressly renounced the right to have the testimony of the witnesses taken down by the stenographer, for, even though no stenographer had been available, the testimony might have been taken in longhand or typewritten by a copyist, to which means the representative of the plaintiff did not have recourse, when, in the event of unfavorable decision, it was his duty to assemble all the evidence and see that the same was all transmitted to this court, if he desired a review of the judgment, which could not be accomplished on account of the expressed waiver of the appellant, that is to say, through his fault.

Therefore we are forced to accept the reasoning and conclusions of the judge in the judgment appealed from.

In view of the foregoing, it is our opinion that the said judgment should be and is hereby affirmed, with costs against the appeal ordered.

Arellano, C.J., Mapa, Johnson, Carson and Moreland, JJ., concur.

1. ROBBERY; CIRCUMSTANTIAL EVIDENCE. — Held, That the circumstantial evidence, as set forth in the opinion, is sufficient to sustain the conviction of the defendant for the crime of robbery.

The defendant was convicted, in the Court of First Instance of the Province of Leyte, of the crime of robbery. He was the muchacho of Lieutenant Prueyn, of the United States Army. The house where the robbery occurred was occupied by Lieutenant Prueyn and Captain Taylor, with their muchachos, who were the defendant and another. Lieutenant Prueyn on the 4th day of December, 1908, had in his possession certain funds of his company, which, together with money and jewelry of his own, was on said date kept in a strong box in the house aforesaid. On the night of said December 4th, at about 12 o’clock, said strong box was found broken open and the money and jewelry gone. It was conclusively proved on the trial that the box had been opened by means of a hatchet which was kept in the house. The marks upon said box corresponded with the size of the hatchet’s edge and the hatchet upon being examined was found sustained with the red paint with which a portion of said strong box was covered at the time it was forcibly opened.

The defendant was convicted upon circumstantial evidence. No one saw the crime committed and none of the property has been discovered. The following facts and circumstances were used by the court below to convict the defendant:chanrob1es virtual 1aw library

Lieutenant Prueyn left the house on the afternoon of the 4th of December at 5 o’clock and did not return until about 12 o’clock of the same night. When he left the house the strong box was securely locked and he carried with him the only key thereto. Only four persons lived in the house — Lieutenant Prueyn, Captain Taylor, the defendant muchacho of Lieutenant Prueyn, and Agaton, muchacho of Captain Taylor. These two muchachos did not ordinarily remain in the house at night, but at the end of each day, after serving at supper at the residence of the colonel of the regiment, went to their respective homes to pass the night. Before leaving the house on the day in question Lieutenant Prueyn had sent the accused to the village after a horse.

On the morning after the robbery the accused did not return to the house at the usual time, but remained away until 9 o’clock. On arriving at the house he appeared to Lieutenant Prueyn to be very nervous and on entering his room told him that the box had been broken open and that he was very much afraid. Upon being questioned by the lieutenant as to when he returned from the village where he had been sent for the horse, he stated first that he had returned at 7.30 o’clock, then at 7 o’clock, and then at 6 o’clock, and then at 6.30 o’clock. Ordinarily the accused did not appear nervous nor did he prior to the robbery appear to be of a nervous temperament.

The accused knew that the box contained money and jewelry, as he had many times seen Lieutenant Prueyn open it and take out considerable sums of money and had seen him close it up, leaving large sums of money and valuable jewelry therein. The hatchet with which the box was forced was the one usually kept in the house for the ordinary uses of the occupants, particularly the servants, and was always kept in a particular place in the house. So far as appears from the evidence, nobody knew where the hatchet was kept in the house except the two occupants and their muchachos, one of whom was the accused. After the robbery the hatchet was found in its ordinary place in the room where it was usually kept. Immediately after the discovery of the robbery Captain Taylor and Lieutenant Prueyn, observing that the box had been opened with an instrument resembling a hatchet, got the hatchet and discovered that it had upon its blade and nose marks of the red paint with which the strong box was covered. They observed also that the marks and indentures made upon the box were closely fitted by the various portions of the hatchet. Prior to the commission of the robbery no such paint marks had been observed upon the hatchet.

It was the custom of Captain Taylor and Lieutenant Prueyn to leave the house at about 6 o’clock to go to the colonel’s apartments for their supper. Sometimes Agaton closed the house; sometimes the accused. Ordinarily after having served supper the servants, including the accused, did not return to the house but went directly to their own homes. The proofs show that the servants never returned to the house without orders. Upon the night of the robbery there was no order to the servants to return to the house.

The accused knew that Lieutenant Prueyn was going for a walk on this particular night, and he also knew that when he did go for a walk he was usually away about three hours. When not taking his walk the lieutenant was usually absent from the house from one and one-half to three hours. Prior to the robbery the lieutenant had missed from his pocket a P20 bill. This was the only time any of his property disappeared. The accused usually borrowed money of the lieutenant during the month in anticipation of his salary.

Captain Taylor left the house on the afternoon of the robbery at about 6 o’clock to get his supper at the colonel’s. Ordinarily Agaton, who served at the colonel’s table, left the lieutenant’s house at about 6 o’clock or a little later, when he too went to assist with the supper at the colonel’s house. On the night of the robbery Captain Taylor arrived at the colonel’s house at about 6.30 o’clock and found there Agaton, whom he saw there until a little later after 7. When he left the lieutenant’s house at about 6 o’clock Agaton had already gone, but there still remained in the house another person, who, while not seen by the captain, was taken by him to be the defendant. The captain returned from his supper to the lieutenant’s house at about 7 o’clock. On arriving there he found the accused. It was not usual or customary for the accused to be there at that time of night. The captain seated himself at a table to read. While so seated the accused two or three times entered the room in which the hatchet was kept and passed several times through the room in which the captain was seated, going from one thing to another in the room and appearing to be very nervous. The conduct of the accused being very unusual, the captain ceased reading and observed him, whereupon the accused, noticing that he was observed, stopped and asked him when Lieutenant Prueyn would return. The captain replied that he did not know. The captain remained at the house until twenty minutes past 9, when he went to the house next to the one occupied by him, located about 30 or 35 yards therefrom, returning before 10. While at that house he would have been able to hear very easily the sounds which would necessarily have been made in forcing open the strong box in the manner in which it was found to have been opened. He heard no such sounds while there. He returned to the lieutenant’s house before 10. At 11 o’clock he went to bed. While in the room he was about 24 feet from the strong box. He was thus in a position from 7 o’clock until the discovery of the robbery where he would undoubtedly have heard the noise which would necessarily have been made in opening the box. He heard no such noise. The robbery, then, must have been committed before 7 o’clock. The accused was at the house from 6 to 7.

The servant Agaton was continuously at the lieutenant’s house until 6 o’clock, when he went to the colonel’s house to prepare supper. When he left the house the accused was still there. Captain Taylor was also there. Immediately after supper at the colonel’s house Agaton went to his own home to pass the night. He did not return to the lieutenant’s house that night.

Miss Nellie H. Weeks, who was witness on the trial, testified that from about 6.20 to 7 o’clock she was on the balcony of her house, which was located about 100 yards from the house of Lieutenant Prueyn. While seated there she heard sounds of blows coming from the house where the robbery occurred. The sounds lasted five or six minutes. They were frequent and successive. It sounded to her as if someone was trying to knock something to pieces.

From the proofs it thus appears that:chanrob1es virtual 1aw library

1. The accused was one of four who knew that the strong box contained a large sum of money and some jewelry.

2. The strong box was broken open with the hatchet belonging to the house.

3. The accused was one of four who knew that there was a hatchet in the house and the place where it was located.

4. None of the other three committed the crime.

5. The robbery must have been committed between 6 and 7.

6. The accused was in the house alone from 6 till 7.

7. Between 6 and 7 sounds such as would naturally result from forcing the strong box in the manner in which it was found to have been forced were heard to proceed from the place where the robbery occurred.

8. The accused did not return to his duties at the usual time on the morning following the robbery.

9. The conduct and appearance of the accused at 7 o’clock, when observed by Captain Taylor, and the next morning, when questioned by Lieutenant Prueyn, were unusual and significant.

Upon the whole case we can not say that the court below was wrong in his conclusion as to the defendant’s guilt. We accordingly affirm the judgment appealed from, with costs against the Appellant. So ordered.

Torres, Johnson, and Carson, JJ., concur.

1. HOMICIDE; SUFFICIENCY OF PROOF. — Held, That the court below was justified by the testimony, as related to the opinion, in finding the defendant Palaobsanon guilty of the crime of homicide, but that the defendant Castro would be discharged, as the evidence is insufficient to warrant his conviction.

In this case it appears that on the morning of the 23d of August, 1908, the deceased, Isidro Blanco, was a prisoner in the jail of San Carlos, Occidental Negros, charged with the crime of assassination. At about 7 o’clock of that morning he asked permission of Benito Alonso the policeman acting as guard in the prison, to go to a water-closet which was situated behind the jail building in a little court inclosed by a fence. The guard appointed the two defendants in this case, who were also guards in the jail, to accompany the deceased, to prevent his escape. The three went out of the back door of the municipal building and started toward the water-closet. On approaching the corner of the municipal building the defendant Melecio Castro order the deceased to go to a grove of banana trees instead of going to the water-closet, because the latter was dirty and filthy. Blanco started to obey and one of the policemen gave him a push which caused him to fall to the ground. On arising, the defendant Palaobsanon discharged a revolver at him. Thereupon the deceased began running and leaped over the fence enclosing the courtyard and started to run alongside of the jail. During this time the said defendant was firing at him with his revolver. The deceased ran around to the front of the jail and entered the front door of the municipal building, pursued by the defendants. On arriving just inside of the door of the municipal building the defendant Palaobsanon fired a fifth shot, from the effects of which the deceased died within five minutes.

The defendants were convicted of the crime of homicide and each one was sentenced to reclusion temporal for a period of fourteen years eight months and one day, to pay one-half the costs, and to indemnify the heirs of the deceased in the sum of P1,000. From this judgment of conviction and the sentence imposed thereunder the defendants appealed to this court.

The guilt of the defendant Palaobsanon is clearly demonstrated:chanrob1es virtual 1aw library

1. By the testimony of Crisanto Periano, another prisoner in the jail, who went out at the same time with the deceased and the defendants in order to empty a urinal. He testified that on approaching the corner of the municipal building Castro ordered the deceased not to go to the water-closet, because it was very dirty, but to go instead to grove of banana trees which stood near by; that as the deceased started to obey, the defendant Palaobsanon discharged his revolver at him; that thereupon the witness ran around into the jail.

2. By the testimony of Mateo Campo and Simeon Malbago, also prisoners in the jail, who testified to the same effect as Periano, substantially, and who further said that they saw the deceased when he received the shot inside of the jail which caused his death; that he was kneeling down and was shot by the defendant Palaobsanon; that the deceased was not hurt by the first four shots, which were all fired in the rear of the jail.

3. By the testimony of Leona Gimeno, who testified that she was an inmate of the house of Agustin Ilagan, which stood very near the jail and that she saw a portion of the occurrence involving the death of the deceased. She testified that she heard the first and second shots, but did not go out of the house; that she went out when the third shot was fired; that from the veranda where she was she saw the man who was shot by the policeman as he was going into the front door of the municipal building; that he was running backwards toward the front door of the jail, with his hands held up before him and that the policeman Palaobsanon was following him with a revolver; that the fifth shot occurred inside of the municipal building; that she did not see the defendant Castro shoot at the deceased; that she knew the fifth shot was fired by Palaobsanon because he was the man who was holding the revolver; that so far as she knew the other defendant had no revolver.

4. By the testimony of Narciso Baoyan, who was an inmate of the said house of Ilagan. He testified that he was on the verandah and saw the deceased running, followed by two policemen; that the first he saw was the deceased walking toward the banana trees accompanied by two policemen; that he heard the last shot fired inside of the municipal building; that when the deceased was running around the municipal building he was not wounded; that he saw no blood upon the clothes of deceased or anywhere else and that after the policemen had fired four shots at him he was still able to jump through or over the fence surrounding the garden.

5. By the testimony of Agapito Golera, a physician, who made a post-mortem examination of the body of the deceased. He testified that at the request of the justice of the peace he examined the corpse of Isidro Blanco in the municipal jail aforesaid about an hour and a half after he was shot. He testified that he found the deceased lying face down; that the body showed a gunshot wound near the right shoulder blade and another on the front of the body where the bullet came out; that the wound was located in the upper chest; that death was necessarily caused by this wound, because of one of the important arteries was cut; that, considering the seriousness of the wound, the deceased, if he had received the same in the rear of the municipal building near the banana grove, would not have been able to pass around to the front of the municipal building and enter the front door thereof, as he in fact did; that the wound was of such a character that the deceased could not have gone after receiving it more than about 10 steps when he would have fallen down; that the distance from banana trees around to the front door of the municipal building is about 35 meters; that when he entered the municipal building for the purpose of examining the corpse, he saw spots of blood on the floor, beginning about 10 steps from where the deceased lay dead; that at the place where he lay there was much blood.

The defense offered by the accused was that the deceased used the privilege to go to the water-closet as a means of effecting his escape and that on arriving in the courtyard in the rear of the jail he, instead of going to the water-closet, ran and jumped over the fence and started for the mountains; that they ordered him to halt; that he refused to do so but keep on running; that the defendant Palaobsanon thereupon began to shoot at him; that all five shots were fired in the ear of the municipal building; that the would which caused the death of the deceased was made in the rear of the municipal building while the defendants were attempting to prevent his escape; that there were blood spots found near the banana trees and the coursed of the deceased around the municipal building to the front thereof was marked by drops of blood; that they did not shoot him inside of the municipal building but that all of the shots were fired in the rear thereof and for the of preventing his escape.

This claim and the evidence offered to support it are in direct contradiction to the theory of the prosecution and the evidence offered to support it. The court below saw the witnesses upon the stand and observed their manner of testifying. After a careful analysis of the evidence he arrived at the conclusion that the defendants were guilty beyond a reasonable doubt. We have carefully examined the evidence in this case and weighed it thoroughly. We are convinced that the conclusion of the court below is fully sustained by the proofs as to the defendant Palaobsanon. We are of the opinion, however, that as to the defendant Melee Castro, the proofs are not sufficient to warrant his conviction. It is conceded that he did not fire the shot which killed the deceased. It appears from the testimony of most of the witnesses that his defendant did not fire a shot at any time, and from some of them that he did not have a revolver.

The court below imposed the penalty in the minimum of the medium degree. From the proofs it clearly appears that the aggravating circumstances specified in subdivision 11 of article 10 of the Penal Code, namely that the culprit took advantage of his public position to commit the crime, is present. The penalty therefore should have been imposed in its maximum degree.

The judgment of the court below as to Melee Castro is hereby reversed and the defendant is acquitted and his discharged from custody ordered; as to the defendant Palaobsanon, the judgment of the court below is modified and the said defendant is hereby condemned to seventeen years four months and one day of reclusion temporal, to the accessories provided in article 59 of the Penal Code, and to indemnify the heirs of the deceased Blanco in the sum of P1,000, and to pay the costs of this action. So ordered.

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



CARSON, J., dissenting:chanrob1es virtual 1aw library

I dissent.

I am not unaware of the fact that prisoners have sometimes been willfully and maliciously shot to death by their guards on the false pretext that they were attempting to escape. But there is absolutely nothing in the record which justifies the belief that this may have been a case of that kind, save only the naked denial that the deceased made any attempt to escape which appears in the statements of some of his fellow-prisoners. Their testimony is not convincing, and in the absence of the slightest proof of a motive of any kind for the commission of the crime as described by them, I am not prepared to believe their story as against the very reasonable account of the incident as related by the defendant.

In the absence of any indication of the existence of malice, ill or motive of any kind, I do not readily believe that in cold blood, without provocation, in broad daylight, and in the absence of any excitement or disturbance, the defendant deliberately shot down one of the prisoners under his charge, in an open prison yard, without thought of consequences, of the presence of witnesses, or of the investigation and punishment which would certainly follow the commission of such an act.

Had there been any motive for the commission of the crime as described by the witnesses for the prosecution, it seems to me that it would undoubtedly have been disclosed at the trial, and I find it much easier to believe that the witnesses for the prosecution conspired together to make out the worst case possible against their guard who had killed one of their number, than that the defendant committed the motiveless crime which they attribute to him. Such conspiracies on the part of the prisoners keenly resentful of the authorities set over them are too frequent in the common experience of those who have deal with them to justify the acceptance of such testimony without rigid and painstaking scrutiny.

1. ROBBERY WITH VIOLENCE AND INTIMIDATION. — Defendant was one of the persons who entered a dwelling and while therein discharged a revolver to intimidate the occupants, and also maltreated one of the inmates and appropriated the sum of four pesos: Held, That, as it does not appear from the record that the offense was committed by more than three armed persons, the crime is properly classified as robbery with violence and intimidation, and not robbery en cuadrilla, as charged in the complaint.

The defendant was convicted of the crime of robbery in the Court of First Instance of the Province of Tarlac and, there being present the aggravating circumstances of nocturnity and morada, was condemned to the penalty of eight years of presidio mayor, the accessories provided by law, to indemnify the injured party in the sum of P4, and to pay the costs of the action.

It appears that about 12 o’clock midnight of the 12th of May, 1908, two individuals entered the house of Dorotea de Luna, situated in the barrio of Sinigpit, in the Province of Tarlac, and once inside discharged a revolver which they had for the purpose of intimidating the occupants of the house; that the accused maltreated Dorotea de Luna and her daughter Pelagia Soberano with a bolo which he carried, while his companion took out of a tampipi in the house the sum of P4, all of the money which was found in the house.

The guilt of the defendant Barot is clearly proved by the testimony of Dorotea de Luna and her daughter, who identified positively the defendant as one of the two individuals who broke into the house; by the testimony of Carlos Felio and of Julian Taduan, a municipal policeman, who testified that the defendant Barot freely and voluntarily, without promise of reward, and not having been threatened with violence or injury, confessed that he was one of the parties who broke into and robbed the house of said Dorotea de Luna.

It does not appear in the case that the crime was committed by more than three armed persons and, therefore, the crime charged in the complaint, namely, robo en cuadrilla, is not sustained by the proofs. The facts proved, however, constitute the crime of robbery with violence and intimidation of the person, which crime is defined and punished in subdivision 5 of article 503 of the Penal Code.

The guilt of the defendant being clearly established and the punishment prescribed by the court below being within the law, the judgment appealed from is affirmed, with costs against the Appellant. So ordered.

Arellano, C.J., Torres, Mapa, Johnson and Carson, JJ., concur.

1. OPEN WILLS UNDER THE OLD LAW. — An open will, executed before a notary public with the requisite number of witnesses, was a public instrument having the force and effect of this class of public documents under the old law.

2. ID.; ACKNOWLEDGMENT OF A DEBT IN A DEFECTIVE WILL. — The acknowledgment of a debt, in such a will, by the testator in favor of another person, although the document may be insufficient as a will because of the lack of some legal formality required to give it validity, is nevertheless sufficient as written and authentic evidence of the existence of the obligation.

3. ID.; ID.; DATE UPON WHICH OBLIGATION BECOMES EFFECTIVE. — The binding force of such an obligation does not arise upon the death of the testator, which is the time when the will becomes effective, but from the actual date upon which it was contracted, and, if this latter date does not appear, it arises at least from the date when, in his will, the testator acknowledged it in writing.

4. ID.; HEREDITARY DEBTS ACKNOWLEDGE IN A WILL. — Hereditary debts enumerated and acknowledged in a will as obligations imposed upon the testator by contract in nowise depend upon his death, from which they acquire no such essential validity as happens with respect to testamentary bequests.

5. ID.; DEATH OF DEBTOR DOES NOT SUSPEND STATUTE OF LIMITATIONS. — The death of a debtor does not interrupt the running of the statute in bar of an action by the creditor against the estate of the debtor; this because the creditor has at his disposal appropriate means for the prosecution of an action to enforce the collection of such debt.

6. ID.; ID.; EXTINCTION OF OBLIGATIONS. — Inasmuch as the death of the debtor does not interrupt the running of the statute of limitations with respect to the period of prescription provided by law, if the entire period elapses without any action being taken to prevent it, the effect is to extinguish the obligation.

Andres Madrid died on the 26th of June, 1901, and his widow, Luciana de los Santos, instituted proceedings for the settlement of the estate on the 7th of June, 1907, requesting the appointment of a judicial administrator to take charge of the property that the deceased had left in the Province of Albay, wherein his death had occurred. The properly was believed to be worth about 30,000 pesos. As stated by the widow, the petitioner herein, it seems that the deceased had left a will, and that the nearest relatives were herself and the children and grandchildren of the deceased.

On the 11th of the said month of June, 1907, the will and testament of Andres Madrid was presented; therein it appeared that he left a widow, the said Luciana de los Santos, children and grandchildren, and appointed three executors, of whom one died, another, Aniceto Gomez Medel, declined to accept the appointment, and the other, Tomas Madrid, accepted the appointment. The will seems to have been executed on the 14th of November, 1890, in the municipality of Albay, in the presence of Paciano Imperial, a notary public, and the proper number of witness, in accordance with the Spanish law which was in force at the time. It is alleged, however, without contradiction, that the will had not been legalized (it was presented for this purpose shortly after the intestate proceedings), owing to a legal defect referred to in one of the briefs presented to this court. For this reason the intestate proceedings continued and commissioners were appointed, before whom Aniceto Gomez Medel field his claim for a credit of 9,000 pesos, Mexican currency, against the estate left by Andres Madrid; this claim was admitted by the commissioners, against whose decision the administrator of the intestate estate of Pedro Avecilla appealed to the court then having jurisdiction of the matter of the succession.

As the appeal to the Court of First Instance was perfected, Aniceto Gomez Medel reproduced his complaint and asked that judgment be entered in his favor ordering that the 9,000 pesos be paid him by the intestate estate, with legal interest thereon at the rate of 6 per cent per annum from the 16th of June, 1901, as damages for the delay.

The administrator of the intestate estate, in addition to a general denial, set up, as special defense, the statute of limitations.

The court below reached the following conclusions: That the only evidence of the claim consist of a document alleged to be the last will or testament of Andres Madrid; that the legalization of the said will was denied by the court; but that the document in itself, as a public instrument executed before a notary, was conclusive evidence that when Andres Madrid, now deceased, executed the same he owed Medel 9,000 pesos; that Andres Madrid so states therein; that the said document is dated December 14, 1890; that Andres Madrid died in June, 1901; that by said will the claimant was appointed executor, but until the year 1907 he did not ask for the legalization of the will, and it was during the said year that the widow of Andres Madrid instituted proceedings in connection with the intestate estate of her deceased husband; and that from November, 1890, until 1907, to wit, during a period of more than sixteen years, it does not appear that the claimant took any action to enforce his claim.

On the strength of the conclusions and of the provision of article 1964 of the Civil Code, which is the only one applicable to the case, supposing the credit to date only from November, 1890 (date of the public instrument executed by Andres Madrid as his will and testament, in which he acknowledges the debt), the court below found that the action had prescribed by the lapse of fifteen years, which is the period allowed for personal actions according to aforesaid article of the Civil Code.

The claimant appealed from the decision and his bill of exceptions having been submitted to this court for the hearing of the appeal, it appears that the following errors have been assigned:chanrob1es virtual 1aw library

1. For not considering the debt of a deceased person as an encumbrance upon the inheritance and a charge upon the property left by him, a debt which should be paid within two years after the making of the partition.

2. For considering the period of prescription, which began to run before the death of the debtor, as continuing uninterruptedly after his demise in favor of his heirs, before the inheritance was legally settled and the debt paid or liquidated.

3. For considering that, when a debt is acknowledged in a document which is denominated a will, said acknowledgement is effective from the date of said document, and not from the time of the death of the testator.

The manner in which the court, executed by Andres Madrid before a notary and a sufficient number of witnesses, is in accordance with the provisions of the Spanish law which was in force at the time. If it is not valid as a will, owing to the absence of an essential requisite in open wills, such as the specification of the hour at which it was executed, it is valid as a public instrument, for which latter the statement of the hour is not required, and because no other instrument as a public instrument is lacking.

If in said public instrument the person executing it, in addition to the clauses constituting his last will as a testator, also enumerates and acknowledges a debt in favor of a third person, the latter has, upon producing the said instrument, a positive proof of his claim; and in such a case what is not valid as a will is valid as a written and authentic evidence of an obligation.

The validity of such obligation does not depend upon the date of the death of the testator, which is the time when the will becomes effective, but is reckoned from the actual date when the same was contracted; and when the latter does not appear, as in the present case, it takes effect at least from the date when the written declaration and acknowledgment of its existence was made, and in this manner the court below has computed the existence of the obligation at bar.

The date of obligations contained in a will, where the same arise out of purely testamentary provisions by the testator in his will, is reckoned from the time of his death; but if the obligations are hereditary and antedate the will, and are declared and acknowledged in the will as just debts imposed by contract, they do not depend at all on the death of the testator, from which no validity is acquired as happens with the former class of obligations.

If the obligation of Andres Madrid for 9,000 pesos in favor of Aniceto Gomez Medel originated at least from the 14th of November, 1890, and the right of personal action which the creditor had against the debtor was not prosecuted until the middle of the year 1907, it is clear that the action prescribed by the lapse of fifteen years, which is the period the law grants for prosecution of personal actions (art. 1964, Civil Code).

The ground for the prescription of an action is the in action or negligence on the part of the creditor who is not solicitous in enforcing his rights. The allegation that, on account of the debtor’s death, there is no person to answer the judicial complaint, can not excuse his lack of diligence, it being a well-known fact that the estate itself is a juridical person which continues the rights and obligations of the former owner of the estate, and the representative of the estate itself may be used by the creditor of the deceased debtor and obliged to respond for debt.

It was within the power of the creditor to interrupt the term which was running, by instituting the testamentary succession proceedings after the death of the testator, he being in possession of the will as one of the executors; the whole term for the prescription would not then have elapsed without some action to suspend it, as has happened in this case.

Hereditary debts are an incumbrance upon the inheritance, that is, they should be deduced therefrom, because until the money which belongs to another has been deducted the is no inheritance; but the period of prescription is not interrupted until the creditor takes some action to enforce his claim.

For the reasons above set forth, the judgment appealed from is hereby affirmed with the costs of this instance against the Appellant. So ordered.

Torres, Mapa, Johnson, Carson, and Moreland, JJ., concur.

1. HOMICIDE; CRIMINAL PRACTICE AND PROCEDURE; DISCRETION TO ADJOURN TRIAL. — The judge of the Court of First Instance adjourned the trial from September, 1908, until February, 1909, the next term of court, on account of the gravity of the charges against the accused, the absence of one witness who had already been summoned, the sickness of another and his inability to attend, the fact that the fiscal could not state what the absent witnesses would testify, and, further, because the cause was being tried for the first time and the accused admitted to bail: Held, that the adjournment of the trial, under the circumstances, was not an abuse judicial discretion.

The defendant in this case was convicted of the crime of homicide in the Court of First Instance of Masbate and sentenced to six years and one day of prision mayor, to indemnify the heirs of the deceased in the sum of P500 and to pay the costs of the trial. The defendant appealed.

It appears that the accused, being a member of the municipal board of the municipality of Dimas-Alang, sub-province of Masbate, Sorsogon, on or about the 31st day of December, 1905, in the court-house of said municipality, assaulted one Pedro Abejero by kicking and striking him, thereby causing various contusions upon his body, particularly in a portion of the head just back of and below the left ear, and in the right side. By reason of these wounds the injured party was at once confined to his bed and died in consequence of such injuries on the third day after receiving them.

The proofs of the parties in this case are in complete contradiction.

Camilo Samson, a witness for the prosecution, testified that on a certain occasion he was called by the mother of the injured party above mentioned and found him in bed, unable to speak; that he noticed that the head and neck just back of and below the left ear, near the throat, appeared to be discolored to a certain extent; that the ribs upon the right side appeared to be inflamed and that when he pressed his hand over that portion the injured person appeared to suffer pain.

Francisco Avenir, another witness for the prosecution, testified that during the month of January, 1906, the said deceased was in the court-house aforesaid and that the accused asked him why he had not cleaned the street in front of the court-house; that the deceased answered that he had not yet been able to do so as he had been occupied in other duties; that thereupon the accused struck him a blow with his fist under the left ear which felled him to the floor; that thereupon the accused with the heel of his shoe kicked him in the side below the ribs; that the deceased died on the 3d day of January, about three days after he had been thus assaulted.

Juan Morada, another witness for the prosecution, swore that the deceased died on the 3d day of January, 1906; that the witness was called to see him; that when he saw him he was not able to eat and was in a condition of great agony; that he saw and observed that the skin was discolored below the left ear; that the mother of the deceased showed the witness a contusion upon the right side over the lower ribs; that the witness noticed at that time that the lower rib projected beyond the others and that it had a mark upon it about the size of a shoe heel.

The last witness for the prosecution, Julian Amante, declared that the accused beat the deceased in the court-house aforesaid; that he first struck him a blow with his that thereupon the accused with the heel of his shoe kicked him in the right side below the ribs; that this occurred on Monday, the 1st day of January, 1906.

The medical expert produced by the prosecution, Dr. Julio Ruiz, a licensed physician, who was at the time the sanitary inspector of the district of Sorsogon, testified as follows:jgc:chanrobles.com.ph

"Q. State, from the experience you have had as a physician, what would happen to a man if he should receive from another a blow with the fist on this part of the right side of the neck, below the ear, which blow had occasioned a bruise resulting in a swelling and a discoloration of the part touched by the first? — A. A duplication of the tissues and a livid color or wound from a heavy blow in this region indicate a severe contusion of the tissues and, considering the organs situated partly in this region, the pathologic phenomena that may be suffered an be very different. The duplication and the black color denote an extravasation of the blood on the inside. As in this region there are blood vessels and nerves and the larynx, which are very delicate organs, and this blow, as I said before, was undoubtedly the result of a quarrel and must have been a violent one; in these conditions, there is not only extravasation of the blood, but also a traumatic inflammation gives rise to an oedema which hinders respiration, for it is through this orifice that the air necessarily must pass. The cerebral circulation will be retarded by the compression, and these nerves give life to the respiratory movements also; so that various phenomena can be produced in consequence of this contusion. At all events, the symptoms shown by him were those of a serious injury.

"Q. Do you believe that the individual who received that blow could swallow food? — A. It would be very difficult to swallow food, much more so while the patient was in this condition of the development of the contusion; it would be very difficult to take food, and especially liquids.

"Q. If this same individual who received the blow on the right side of the neck had fallen to the floor and received a blow with a shoe heel on this part of the last right rib, or on the right side, by a man as strong as is the accused — and if, as a result of this shoe-heel blow in the region of the lower rib, this rib was crushed inward, what might be the result of what might happen to the patient? — A. Such a blow is still more serious than the first blow received on the side of the neck. In this region is the liver. It is supposed that this blow was produced by a hard body, and from the condition in which the accused probably was and considering that the blow was the result of a quarrel, it is to be supposed that it was a very violent one. This blow could have produced a rent in the liver in the right lobule and an effusion of the bile, which would give rise to inflammations of the peritoneum, that is, to peritonitis. In the first moment of this blow the individual must have fallen into a syncope through a traumatic shock, which is always produced and always shown in those heavy contusions of the organs; and if the rib was fractured, the condition was more serious.

"Q. In your opinion, after all the contusions and blows you have just mentioned, could the man live? — A. The most prudent opinion is that the man could not have withstood the phenomena produced by both blows. They in themselves, considered separately, are sufficient causes to have produced death."cralaw virtua1aw library

From the testimony above epitomized it appears established with sufficient conclusiveness that the death of Abejero was caused by the injuries which are alleged to have been inflicted by the accused. As to whether or not such injuries were actually sustained at the hands of the accused, we are unable to say, after a careful examination of the evidence, that the conclusions of the court below in that regard are not well founded in the proofs. The witnesses upon that point are in direct contradiction, those for the Government testifying one way and those of the defense other. Under such circumstances the credibility of the witnesses is, of course, of the utmost importance. There being little on the face of the record from which that may be judged, we must rely upon the judgment and discretion of the trial court who saw the witness in the act of testifying and judged of their relative truthfulness. Having this in mind, we are satisfied that the conclusion of the court below upon the facts is fully justified by the evidence.

The objection to the conviction of the defendant which is argued at greatest length by his attorney is founded upon the fact that the trial court adjourned the trial of the cause from September, 1908, to the succeeding term of the court which was held in February, 1909. Counsel for the defendant held this adjournment to be an abuse of discretion. In making this adjournment of the trial, the court said:jgc:chanrobles.com.ph

"By reason of the gravity of the charges which are made against the accused, I am going to adjourn this cause until the next session of the court in spite of the opposition of the counsel for defendant. In view of the fact that Julian Amante has not appeared in court, notwithstanding that he was duly subpoenaed, and by reason of the fact that the witness Epifania Barruga is sick of fever, and by reason of the fact that the fiscal does not know what the witnesses will testify to, and also by reason of the fact that it is the first time that this cause has been brought on for trial, the cause may be adjourned for a term, especially in view of the fact that the accused is admitted to bail."cralaw virtua1aw library

Under the circumstances of the case, we do not believe that the court below abused its discretion in ordering an adjournment of the cause.

The judgment of the court below is affirmed, with costs against the Appellant.

Arellano, C.J., Mapa, Johnson, and Carson, JJ., concur.



TORRES, J., dissenting:chanrob1es virtual 1aw library

The writer, with due respect to the decision of the majority, believes, however, following the opinion of the Attorney-General, that the special circumstance of article 11 of the Penal Code can not be taken into account in favor present, it is not very marked, according to article 81, paragraph 5, of the code. Hence, the presence of the mitigating circumstance No. 3 of article 9 of the same code being the only one that may be taken into account, it is my opinion that the defendant should be sentenced to twelve years and one day of reclusion temporal, with the accessory penalties of article 59 of the Penal Code, and to pay an indemnity and costs.

1. FALSIFICATION OF A PUBLIC DOCUMENT; ABSENCE OF CRIMINAL INTENT. — In consideration of the enforced removal of certain houses, for reasons of sanitation, the city of Manila agreed to pay for the removal and reconstruction of the houses, and for all new material. About the time of the removal, defendant purchased one of the houses and acquired all the rights of the owner under the certificate issued by the city, including the right to reconstruction. Defendant is charged with falsification of a public document, in that he wrongfully entered upon his time book the name of a carpenter as working for the city while he was actually reconstructing the house bought by the accused: Held, That the facts, as stated, show an entire absence of criminal intent on the part of the accused; that if the right of defendant’s vendor was transferable, which question is not decided, the right passed to the defendant; that whether or not the right so passed, the accused believed that it did and acted upon that belief, and while the method pursued by him is subject to criticism, his acts were not criminal.

It appears that prior to the commencement of this prosecution the city of Manila, by its Municipal Board, had ordered to be torn down a number of houses whose location the health authorities of the city had declared to be unsanitary for the occupants, and the removal of said houses to the lands of the San Lazaro Estate, there to be reconstructed. In consideration of its act of enforced removal of said houses the city agreed with the owners thereof that it would furnish and pay the workmen required for the tearing down, removal, and reconstruction of said houses and would furnish and pay for all new materials used in such reconstruction. To carry out this order and agreement the city issued to each owner of a house so to be torn down and removed a certificate or permit containing the name of the owner, a description of the house, and the agreement to remove and reconstruct gratis. Among the certificates, or permits, or agreements, was one issued to Severino Pelagio, dated January 18, 1909. About the time that the house was to be torn down and removed to San Lazaro, Severino sold and transferred said house, together with all of his rights under said certificate or agreement, to the wife of the accused in this case, including the right to have the house rebuilt at the expense of the city. The instrument of transfer bears date the 12th of March, 1909. In rebuilding the said houses, the city hired the carpenters and the time they worked was kept daily by the accused, who was their foreman. Among the carpenters so hired by the city was one, Segundo Castro, who was engaged in rebuilding the house formerly owned by said Severino Pelagio and transferred to the accused. Castro worked in the reconstruction of this house from the 15th of April to 23d of April, inclusive. The charge against the accused is that he reported Castro upon his time book as working for the city when in reality he was working for the accused, and that he thereby sought to defraud the city of the sum which it would have paid for such labor.

The accused was charged in the Court of First Instance of Manila with the crime of falsification of a public document by a public official, was duly tried thereon, convicted and sentenced to twelve years and one day of cadena temporal. He appealed.

It appears from the facts as detailed above that there was an entire absence of criminal intent on the part of the accused. If the right of Severino Pelagio to have his house rebuilt at the expense of the city, both as to workmen and materials, was transferable right, a question we do not here decide, then that right passed to the accused. Whether or not that right passed by the transfer, the accused evidently believed it did and acted upon that belief without attempt at concealment or evasion. Accordingly, believing that the city was in duty bound to rebuild the house which his wife had purchased of Severino, he saw no more harm or wrong in charging against the city the time spent by the carpenter Castro in rebuilding it than in charging against the city the time spent by other carpenters who were rebuilding the other houses that had been removed under exactly the same circumstances.

While the methods pursued by the defendant are subject to criticism and were very properly objected to by the city, we are of the opinion that he should be death with civilly or administratively rather than criminally.

The judgment of the court below is hereby reversed, the defendant acquitted and his discharge from custody ordered; costs de oficio.

Arellano, C.J., Torres, Mapa, Johnson, and Carson, JJ., concur.

1. PRINCIPALS IN CRIME; PERSONS INDUCING COMMISSION OF CRIME; INTENT TO GAIN. — Whether the person who induces others to perpetrated a crime intended to gain thereby is wholly immaterial. The fact that he induced the commission of the crime makes him a principal. The crime is consummated when the persons induced commit the same with intent to gain for themselves. The moment the crime is complete as to them, the one who induced the act becomes a principal, and no further participation on his part is necessary to produce this result. (Art. 13, Penal Code.)

2. ROBBERY, AND ROBBERY WITH HOMICIDE; PREMEDITATION. — While premeditation is an inherent and integral element or quality of the crime of robbery and therefore can not therein be considered as an aggravating circumstance, such is not the case in the crime of robbery with homicide, as defined by article 502 and 503 of the Penal Code. In the latter crime, if it involves premeditation, the latter may be taken into consideration as an aggravating circumstance to increase the penalty. (U. S. v. Castroverde, 4 Phil. Rep., 246; U. S. v. Blanco, 10 Phil. Rep., 298; supreme court of Spain, January 7, 1887, November 22, 1900.)

3. RIGHTS OF THE ACCUSED; NON PREJUDICIAL ERRORS OR IRREGULARITIES. — No accused person can be heard to challenge any process, pleading, proceeding, or decision in the courts of the Philippine Islands which does not prejudice a substantial right upon the merits.

The defendant, Rufino Ancheta, was charged with robo con homicidio por induccion, alleged to have been committed on the 26th of August, 1908, by inducing, persuading, and hiring four Igorots, named Laoyan, Guay, Dalocdoc, and Udcusan respectively, to murder Tiburcio Ancheta. These Igorots, having confessed their crime, were convicted and sentenced to death, and the judgment has been affirmed by this court (No. 5136). 1 This defendant, after a separate trial, was found guilty as charged, and sentenced under paragraph 1 of article 503, Penal Code, to cadena perpetua, and to indemnify the heirs of Tiburcio Ancheta in the sum of P500, and to pay the costs of this prosecution.

Upon his appeal to this court, the defendant assigned numerous errors, based upon the alleged insufficiency of the warrant and information, and the insufficiency of the evidence to justify the defendant’s conviction of the crime of which he was in fact convicted. Passing for the present the preliminary questions which go to the regularity of the manner in which the defendant was charged and brought to trial, we proceed to the consideration of the question of his guilt or innocence upon the evidence adduced.

The information charges:jgc:chanrobles.com.ph

"That on or about the 26th day of August, 1908, in the township of Cervantes, Mountain Province, Philippine Islands, and within the jurisdiction of this court, said Rufino Ancheta did intentionally, criminally, maliciously and feloniously, and for the purpose of gain, induce the Igorots Laoyan Dolinen (alias Quibatay), Guay, Dalocdoc, and a certain Toog (alias Udcusan), to take possession of and to rob, by means of force and against the will of the owner, one carabao, the same being the property of one Tiburcio Ancheta and in said township of Cervantes, by first putting to death the owner thereof, said Tiburcio Ancheta; and that the said Igorots, Laoyan Dolinen (alias Quibatay), Guya, Dalocdoc, and a certain Toog (alias Udcusan), in pursuance of said inducement of the said Rufino Ancheta, did voluntarily, criminally, feloniously, and maliciously, and for the purpose of gain, take possession of, rob, and carry way, by means of force against the property and violence and intimidation against the person, the same consisting in having put to death said Tiburcio Ancheta, one carabao, the property of said Tiburcio Ancheta, of the value of P150, and other effects, also articles of clothing."cralaw virtua1aw library

The evidence offered on behalf of the prosecution shows that in the latter part of August, 1908, Tiburcio Ancheta, who resided with his Igorot wife Salome in a hunt near the town of Cervantes in the Mountain District, was murdered by the four Igorots named in the information. The murderers then took possession of the carabao and certain other personal property, and left for their home in the mountains. The prosecution claims that the crime thus committed by the Igorots was suggested, incited, and brought about by the defendant, Rufino Ancheta, who sought the death of his uncle Tiburcio in order to satisfy certain feelings of resentment, and also in order that he might inherit Tiburcio’s property. The case rests upon the evidence of the Igorots Laoyan and Guay, and certain circumstances corroborative thereof.

The defense contends that the defendant can not be convicted of the crime of robbery with homicide, because of the absence of the intent of gain to himself, one of the essential elements of the crime of robbery. We can not give weight or force to this contention, because whether or not the accused intended to gain or did gain financially or otherwise by the robbery is wholly immaterial. The mere fact of inducing the commission of the crime makes him a principal. (Supreme court of Spain, judgment of October 20, 1881.) The crime was consummated and completed when the persons induced committed the crime with the intent to gain for themselves. The instant the crime became complete as to them, that instant the accused became a principal. No further participation in the crime was necessary. This is apparent from the provisions of article 13 of the Penal Code as well as from reason and authority.

The four Igorots named in the complaint left their rancheria, called Booyan, and went to a rancheria called Lesseb, where they passed the night. Leaving there in the morning, by evening of the day they arrived at a point near Cervantes, where the defendant lived with his wife Petra. They were not acquainted with the defendant, but went to his house and told him they wanted work, and were asked if they would like to kill a man, a relative who had mistreated him, and whom he would like to have out of the way. As an inducement or reward for killing the man, the defendant told the Igorots that the man to be killed had recently sold some land, and received P40 therefor, and this sum they would find in the house; that they could also take his carabao and exchange it for a younger one, which he would later purchase from them. As the witness Guay testified, the defendant said to them: "If you go to work, you only make a little; it is better to kill this man and take his carabao and the P40 which was received from the sale of the house in town." The Igorots agreed to kill the man. The defendant was to go a place called Ululing in the morning, and remain away until after the crime had been committed. The Igorots were to hide in the bushes south of the victim’s house until night, when they should go to his house and kill him.

The defendant left for Ululing, and the Igorots spent the day in the bushes, where the defendant’s wife brought them food. At night they went to the defendant’s house to eat. From there they proceeded to Tiburcio’s hut, some 70 years distant, for the purpose of carrying out their design, but finding him armed with a long bolo, they decided not to take the risk involved in attacking him, and returned to the bushes, where they spent the night.

The next morning they went to the house of one Bacolog, near Ululing, where they found the defendant taking his breakfast with Bacolog and an Ilocano named Abot. When the Igorots saw the defendant alone, they explained why they had not killed Tiburcio, and the defendant replied: "Why did you eat my chickens if you are not going to do what I told you to do? I came here to spend the night in Cambaguio because I thought you were going to kill him."cralaw virtua1aw library

The Igorots then spent three days clearing some land for Bacolog, for which they received P2.25. About noon of the third day of their work the defendant went to them and said: "Now you must repeat what I told you to do, and comply with our agreement. I am going to Ululing to-day, and I wish you to kill Tiburcio to-night. You go to the bushes and conceal yourselves in the same place where you were concealed before." The four Igorots then left the house of Bacolog and returned to the defendant’s house, where they saw his wife Petra, who told them to go to Tiburcio’s house and pretend they wanted to cook their rice there. They again concealed themselves in the bushes, where as before Petra brought them their food. After darkness came they went to the house of Tiburcio, and having established familiar relations with him by means of appealing to his hospitality they killed him. They were unable to find the P40, but took the carabao, and carried it away with them.

The testimony of the Igorot witnesses gives a vivid idea of the manner in which this crime was committed, and the way in which the savages were induced to act. The witness Laoyan testified as follows:jgc:chanrobles.com.ph

"We started from Lesseb in the morning and we arrived at his house in the evening, and we went there for the purpose of asking him whether or not he had some work for us. When we stopped at his house on that night Rufino Ancheta said to us that he wanted us to go and kill a man because that man had sold a house of theirs for the sum of P40 and that he had not given Rufino any part of it, and besides that we made rice fields and he did not give me but a very small part of it, and he said that I hate him for that reason. Besides all of that, Rufino Ancheta said that Tiburcio was the son of one hundred fathers; and then he gave us five chickens to kill and we looked at the galls of the chickens and we found out from the galls that it was all right; that it was a good time to kill a man. And then Pinong Ancheta asked us whether we could kill that man that night or not, and we told him yes, we can kill him if you wish it done. And then afterwards he said to me: ’I am living here alone with my wife and the best thing for us to do is that I am going to Ululing to-morrow morning (or Cambaguio), and then you will also go to the bushes to the south of the house and to-morrow night you will go to kill this man. I want to go to Cambaguio so that I can avoid being examined after that man has been killed.’ In the daytime, according to the instructions of Pinong, we went to conceal ourselves in the bushes around the house of Pinong, and at night we went to the house of Tiburcio for the purpose of killing him, but as we found him with a long bolo in his possession we were afraid to do it, and then we went back to the bushes. The next day in the morning very early we went to meet Pinong in the house of Bacolog, and when we arrived there Pinong asked us ’Why did you not kill him?’ and we replied, ’No, because we were afraid because he had a long bolo.’ Then Pinong said, ’Why did you eat my chickens if you are not going to do what I told you to do? I came here to spend the night in Cambaguio because I thought you were going to kill him.’ And then I spoke to Bacolog about cleaning four parcels of land of his, and we agreed to clean the four parcels of land for the sum of P2.25. And Pinong and Abot, who was with him there, went to plow some lands there while we were cleaning off the four parcels. Then on the day that we had been working there we spent the night also in the place of Bacolog, and the second day in the morning very early Pinong and his companion continued to plow the lands where they were working on. In the afternoon they left that place and we remained there. When Pinong asked me why we did not kill that man Tiburcio, Bacolog was plowing some land and his companions were some distance away from us. I do not know where he had gone to, and no one heard this conversation. And when we finished our work Pinong came back to Bacolog’s house or place in the morning very early and he said to us: ’Now you must repeat what I told you to do and comply with our agreement. I am going to Ululing to-day, and I wish you to kill Tiburcio to-night. You go to the bushes and conceal yourselves in the same place that you concealed yourselves in before.’ When we left Bacolog’s place the sun was about 12 o’clock and we went to conceal ourselves in the place where we were concealed before. We arrived at the house of Pinong in the afternoon and we did not meet anyone there except his wife Petra. We went to the house of Tiburcio and we found them there cooking their supper; and while they were eating their supper we cooked our rice. After our rice was cooked we also ate our supper. And then all of us went outside of the house, in front of the house on the porch. As Tiburcio sat down in the doorway of the door I and Dalocdoc sat down in front of him and Udcusan sat to his left, and Guay to his right; and while in this position they struck him. Guay struck Tiburcio with a club about as long as this, a piece of wood, and about as large as my arm [indicating a club a little less than a meter long], and Udcusan struck him on his legs with a piece of wood or club. And after this we went inside of the house to search for the P40, which was the price of the house according to Pinong, and as we could not find it we asked his wife Salome where that money was, and she told us it was used to pay for some clothing and bolos. And then we took the carabao off with us because Pinong, Rufino Ancheta, promised that we should have that carabao as our reward as well as the P40. And Pinong further told us that if we got that carabao we should exchange it for a younger carabao which has horns about like this [indicating a young carabao’s horns about 8 inches long] and then I will come and buy that carabao from you to use in my work. We only had the intention to rob the carabao and without induction we would not have killed that man but we killed him because that man instructed us to kill him [indicating the accused, Rufino Ancheta]. And Pinong instructed us not to take the young pigs and chickens, because he said they would be used in feeding the people who would bury the body of Tiburcio. I tell the truth now, and we left in the house some palay, a jar full of rice, some other things, a barate, and an ax, and we also left there a brass jar which they used for cooking camotes for the pigs. And he [indicating Rufino Ancheta, the accused] also told us not to take the black shirt because that he said would be placed on the dead body when it was buried. When we asked Salome about this black shirt she said it was here in town in the possession of his mother. And the woman Salome took with her the three bolos and placed them in her belt; and myself and Salome opened the trunk out of which we took the clothing and skirt, and we took the clothing out and placed them in a basket and she took them with her."cralaw virtua1aw library

The witness Guay said:jgc:chanrobles.com.ph

"We came from our rancheria and went to the house of Pinong (the defendant Ancheta). We came from Boogan and we slept in Lesseb, and we came with Udcusan. We came from Lesseb and we arrived in Ululing to look for some work. We were four with Udcusan, and we came to the house of Pinong. When we arrived at the house of Pinong it was nighttime. We arrived that night in the house of Pinong, and he asked us where we were going, and we told him to look for some work, and he then asked us if we wanted to kill a man and we replied to him, ’Why are we going to kill a man? and then he said, ’I am his only relative and there will be no one to complain against you afterwards, and I am mad at him because of the action of this man in regard to the sale of our house in the town.’ Pinong said that he was mad because he sold their house in the town and did not give him anything, and also their rice fields and that he did not give him a part of them. And also he said that when he asked him for the carabao to work some he did not wish to let him take it. He said in the early morning ’you go away and I am going to look for some labor and at night you go and kill him, because if I am near there they will call me to examine me.’ We went near the house of Pinong in a gully near by to hide there, and our food was brought to us by Petra, the wife of Pinong. All that we ate for dinner was cooked by Petra, and Dalocdoc went to look for her. At night we went to eat in the house of Pinong, and on that night we went to the house of Tiburcio. We found him armed with a bolo and we left. We returned to the place where we were at first, where there were many camachili and other trees; at this time it was already daylight. The following day we went to work in the rice fields of Bacolog. We arrived at the house of Bacolog and we found Pinong, Abot, and Bacolog there, and our conversation there was not heard by Abot and Bacolog. When we arrived there they had not eaten yet. We worked on the pacteo (contract) for Bacolog for P2.25. Abot and Pinong cooked the rice, and then we all ate there. After we had eaten we went outside, and Pinong asked us why we had not killed him; Abot and Bacolog remained in the house. We answered him that we did not kill him because we were afraid of the bolo which he had. And while they were plowing we cleaned the grass away. On that night we all slept in the house of Bacolog. The following day they plowed and we continued to clean the grass; we were in the house of Bacolog for three days. Pinong said to us now that we had finished we must go and kill him, because I am going to Ululing, because if I do not they may examine me. We finished about this time and we returned where we had been before where there were many camachili trees and bushes. On that day, as before, Petra brought us our food; at night we went to the house of Pinong to eat and Petra told us to go there to Tiburcio’s house with the excuse to cook our rice. We arrived there with the excuse to cook as though we had just arrived from Cervantes, in fact that is what we told Tiburcio. After Laoyan had cooked the rice we went inside to eat, and after we had eaten we left the house and went outside of the house. And outside of the house we were in this position; Laoyan was sitting in front of Tiburcio; Udcusan was sitting to the left of Laoyan, and I, myself, was sitting over to one side of Tiburcio, and Dalocdoc was sitting near Udcusan.

"Q. What else? — A. Laoyan was in front of Tiburcio talking to him because he could not defendant himself, and this is what Pinong ordered us to do. We gave him a blow in the face and Udcusan struck him on the legs. We were the only two that struck him. We killed him and searched the house for the money which Pinong said was there and we could not find anything. We asked the woman about the money which Pinong spoke about, but Salome said they used it to buy rice fields. The clothes the woman took, and the black shirt, which Pinong said we must leave there because it was worth much with the Christians, we could not find. We asked Salome about the shirt and she said yes it was true that there was a shirt there but that it was not in the house then but in the town. The chickens and the pigs which Pinong said we must leave there and the bolo also we did not touch. Pinong said to us: ’Leave the pigs and the chickens; do not take them away; leave part of the chickens because the people who will bury Tiburcio’s body will have something to eat.’ We only carried away the carabao because that is what Pinong had told us to do; he told us to carry away the carabao and the money, but the woman said there was no money there. He told us to carry away the carabao to our house and that after the palay was cut he would come there to get the carabao to bring it here to Cervantes to work. And he further told us that ’if you go in the road and the people come to catch you, you must run away although you may have to leave the carabao, because if they catch one of you it will be bad for us, and although they may bring the carabao here I will get it the following day and give it back to you.’ We carried the carabao away, but we did not tie the woman up. Although the woman says that we tied her up it is not true, we did not tie her up. And Pinong said: ’After you have killed the man Petra will come to Ululing to tell me about it, and I will come from Ululing to report the matter and then you will be far away.’ We killed him, it is true, and Petra did not sleep because she was watching. Petra put out the light when we killed him. Salome, when we killed her husband, cried out.

"Q. How did Salome cry out, and what did she say? — A. [Indicating by a horrified yell. ] And Pinong then further said: ’If you kill him I will get the rice fields, and when you come to Cervantes you must come to eat in my house.’ We celebrated a kañao with the chickens of Pinong; we made a kañao in his house and ate all of the chickens.

"Q. How many chickens did you eat? — A. Five chickens. Everything that I have stated is true. And he said ’after you have seen the galls of the chickens if it is all right then go;’ that is what he said to us; that is what Pinong said. We did not see anybody else in the house. We only saw the two whom I have mentioned. We took the chickens and went outside of his house to hide there.

"Q. But whom did Pinong inform you that you must kill? — A. Pinong is the man who informed us of the sale of the house, and proposed that we must kill him for the amount of the sale of said house. And in regard to the amount of the house they did not give us anything."cralaw virtua1aw library

After this simple yet graphic description of the course of events from the inception of the crime to its commission, little more needs to be said as to the facts. The court below, after a careful review of all the evidence adduced at the trial, arrived at the conclusion that the story told by the Igorots was true. We are satisfied that the court was right in that decision. There appear in the story told by these savage witnesses so many of the badges and indicia of truth as to leave in the mind no doubt concerning its substantial truthfulness. Although the accused denies absolutely the testimony of these witnesses and states that he had never in his life seen them until they appeared against him in court, still their narrative of the facts discloses a knowledge of many matters so personal to the accused that it could have been acquired only through the most intimate relations between them. The sale of the house and lot by Tiburcio and that the accused received no part of the proceeds, the tilling of the land by him and accused in common, the black shirt in the possession of Tiburcio in which he was to be should attend the funeral, that the accused was working for Bacolog and was at Ululing during the days immediately prior to the murder, that the accused had a wife and that her name was Petra, the relationship between the accused and Tiburcio, and that the accused would be one of those to inherit the land of Tiburcio, all these facts the Igorots knew. From whom did they obtain this information? The impossibility of answering this question otherwise than with the two words "The accused," is, under the facts of this case, irrefragable corroboration of the testimony of the two hillmen.

The being so, the fact that the accused was the instigator and inducer of the crime charged appears so clearly as to require no discussion or argument. (Supreme court of Spain, judgments of 20 October, 1881; 7 January, 1887; 12 January, 1899; Penal Code, art. 13.)

It now remains to inquire whether the sentence imposed by the court below was proper under the law.

Article 79 of the Penal Code reads as follows:jgc:chanrobles.com.ph

"ART. 79. The aggravating or extenuating circumstances that consist in the moral condition of the delinquent, in his private relations with the injured party, or in any other personal cause, shall serve to aggravate or diminish the liability of only the principals, accomplices, or accessaries who may be affected thereby.

"The circumstances which consist in the material execution of the deed, or in the means employed to accomplish it, shall serve to aggravate or diminish the liability of those persons only who were acquitted with them at the moment of the commission of the crime or of their cooperation therein."cralaw virtua1aw library

Commenting on this article, Groizard says, volume 2, page 362:jgc:chanrobles.com.ph

"A new limitation, a new reduction of the circle within which aggravating and extenuating circumstances may occur and be considered, is created by this article.

"The circumstances attending the commission of a crime either relate to the persons participating in the same, or to its material execution, or to the means employed. The former do not affect all the participants in the crime, but only those to whom they particularly apply; the latter have a direct bearing upon the criminal liability of all the defendants who had knowledge thereof at the time of the commission of the crime, or of their cooperation therein.

"The principle is clear and just. If the law had failed to expressly recognize it, it could be fairly inferred from the rational nature of the crime and its legal definition, from the scientific notion of the imputability and legal determination of the inherent liability of the authors, accomplices, and accessaries, from the general theory of aggravating and extenuating circumstances, and from the peculiar nature of each of these as determined by the legislator in describing them.

"Four malefactors commit homicide. One of them is under eighteen. Another is drunk. The third is recidivist, and the other is neither under age nor drunk nor guilty of any former crime. Are they equally liable? The first one has in his favor an extenuating circumstances to wit, minority, which does not affect his codefendants. The second has another different circumstance in his favor to wit, drunkenness, which does not extend to the other participants in the crime. The third has an aggravating circumstance which affects him only; and the fourth, finally, shall suffer the penalty corresponding to him without taking into consideration the aggravating circumstance which affects the one or the extenuating circumstances which affect the others.

"Greater doubts, if not as to the principle itself, as east in the practical application of that principle, will rise under the second paragraph, which relates to the circumstances affecting the material execution of the deed, or to the means employed. Such circumstances under the law can only aggravate or mitigate the criminal liability of those who had knowledge of the same at the time of the commission of the crime, or of their cooperation therein.

"The rule, of course, as stated long ago by one of our more able commentators (Pacheco), has no application as to extenuating circumstances. The law — says the winner referred to — refers in the second paragraph in this section both to extenuating and aggravating circumstances. We who understand the theory of the latter, and can cite many instances regarding the same, are unable to understand the former, or to find a single instance in which they say apply.’

"It is same with us. During our long practice we have never yet found a single case in which this provision of the law has been invoked with reference to extenuating circumstances, and must confess that we are unable to conceive one in which it might be so invoked. In so far as relates to the means employed in the execution of the crime, and other acts incident to the actual perpetration thereof, it is impossible to conceive that any mitigating circumstance which can properly be considered as to one of the defendants, is not equally applicable to the others, even to those who had no knowledge of the same at the time of the commission of the crime, or of their cooperation therein.

"The Neapolitan Code has recognized the difference which exists upon this point between extenuating and aggravating circumstances. While it applies the rule provided in case of personal circumstances, to extenuating and aggravating circumstances, it limits the same to aggravating circumstances where they relate to the material execution of the crime.

"It is to be regretted that our code does not contain a similar provision. In other respects it would be easy to give illustrations of the application of the rules under consideration. Two malefactors lay hands upon an agent of the authorities. One of them is induced by a promise of reward by a third party, a fact of which his codefendant has no knowledge. That which constitutes an aggravating circumstance as to one of them does not apply to the other. A person induces others to commit the crime of abduction, or forcible entry of a dwelling. The latter in undertaking to commit the crime do so, employing, without the knowledge of the instigator of the deed, deceit, fraud, and disguise. They are all equally liable for the commission of the crime, but the aggravating circumstance referred to attending the material execution of the crime, shall only affect those who actually commit the deed.

"We are fully aware of the fact, however, that notwithstanding the simplicity and justice of the rules contained in the said section, this will not always suffice to dissipate the shadow of the doubt which will arise in the minds of our courts when applying the same, particularly in certain difficult cases in which the so-called qualifying circumstances, according to most of the expounders of our law, play an important part. But these objections are inevitable. The letter of the law properly construed, the spirit of the same where the text is not clear, and the previous knowledge of the theories, sources, and origin of these legal provisions where the spirit and letter of the same may appear insufficient, are the only means which the courts have to comply with their mission in these and other similar cases. It is impossible for the law to cover every possible case that may arise. Wherever it attempts to do so it fails. Casuistry, which only furnishes a solution in certain specified cases, would take the place of the legal doctrine within the principles of which a satisfactory solution can always be found."cralaw virtua1aw library

The robbery and homicide were planned by the accused. He instructed the Igorots exactly how to accomplish them. The crime was carried out in perfect consonance with his instructions. By express arrangement with the hillmen the night was selected by the accused as the time for the commission of the crime, to the end that it might be the more easily committed and that the chances of discovery might be minimized. Under the provisions of the article above quoted, we are of the opinion that the aggravating circumstance of nocturnity must be imputed to the defendant, nocturnity being one of the circumstances in the material execution of the deed and one of the means employed to accomplish its commission, and he, at the time of the commission of the crime and before, being acquainted with that circumstance and of the fact of its use in the commission of the crime. (Supreme Court of Spain, judgment of 12 January, 1899.) Moreover, there must be imputed to the accused in this case the aggravating circumstance of premeditation. While premeditation is an inherent and integral element or quality of the crime of robbery and therefore can not, in that crime, be used as an aggravating circumstance (United States v. Castroverde, 4 Phil. Rep., 246; United States v. Blanco, 10 Phil. Rep., 298), such is not the case in regard to the crime of robbery with homicide as defined in article 502 and 503 of the Penal Code. In that crime premeditation, if it is present, may be used as an aggravating circumstance (supreme court of Spain, judgments of 7 January, 1887, and 22 November, 1900) to augment the penalty to be imposed. This doctrine meets our approval upon principle. That there was, in the case at bar, the element of premeditation is too clear for discussion.

We have delayed until this moment the discussion of the questions raised by appellant’s counsel respecting the irregularities which he claims were present in the arrest, arraignment, and trial of the accused. His assignments of error upon that branch of his appeal are:jgc:chanrobles.com.ph

"1. That the warrant was issued without probable cause and was not supported by oath or affirmation and was issued without due process of law.

"2. The pretended querella upon which the defendant was tried is not verified or based upon a preliminary examination as provided by law.

"3. That the pretended querella does not conform substantially to the prescribed form.

"4. That the pretended querella does not state facts sufficient to constitute the crime of robo con homicidio por induccion."cralaw virtua1aw library

A detailed examination of the record before us discloses that from the time of the arrest of the defendant until the termination of his trial no objection was made to any of the processes or pleadings, except that, at the beginning of the trial, the defendant’s counsel interposed a demurrer to the complaint "because it does not set forth any intent of gain or that any gain was to be got out of this robbery by the accused in this case, Rufino Ancheta." Giving the objection the full force and effect of a demurrer, it is still evident that it is without legal basis as it appears, from what has been said heretofore, that it is wholly immaterial whether or not the accused intended or expected to gain financially by the commission of the crime.

This being the only objection taken by the defendant during the whole course of the trial, we hold that the questions presented by the assignments above quoted can not be heard here. Objections not having been presented opportunely, such defects, if any, as the assignments indicate, were waived. Moreover, sections 9 and 10 of the Code of Criminal Procedure read as follows:jgc:chanrobles.com.ph

"SEC. 9. The information or complaint may be amended in substance or form, without leave of court, at any time before the defendant pleads, and thereafter, during the trial, as to all matters of form, at the discretion of the court, when the same can be done without prejudice to the rights of the defendant.

"SEC. 10. No information or complaint is insufficient nor can the trial, judgment, or other proceedings be affected by reason of a defect in matter of form which does not tend to prejudice a substantial right of the defendant upon the merits."cralaw virtua1aw library

No defect of form or substance existed in the complaint or information which is not cured by these provisions. No accused person may be heard to challenge any process, pleading, proceeding or decision in the courts of these Islands on account of any defect or irregularity which does not prejudice a substantial right upon the merits.

Many of the questions raised by the defendant in his assignments of error have been passed upon by this court in the case of United States v. Wilson (4 Phil. Rep., 317).

The guilt of the defendant as a principal in the crime having been clearly established and there being present at the commission of the crime the aggravating circumstances of premeditation and nocturnity, with no extenuating circumstance, the penalty should have been imposed in its maximum degree.

The judgment of the court below is reversed and the defendant is hereby found guilty of the crime of robbery with homicide as defined in articles 502 and 503 of the Penal Code, and he is hereby condemned to the penalty of death, the accessories of article 53 of the Penal Code, to indemnify the heirs at law and next of kin of Tiburcio Ancheta in the sum of one thousand pesos (P1,000) and to pay the costs of this appeal. So ordered.

Arellano, C.J., Torres, Mapa, Johnson and Carson, JJ., concur.

Endnotes:

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1. 14 Phil. Rep., 747.

1. JUSTIFICATION HOMICIDE; SELF-DEFENSE; MISTAKE OF FACTS. — Defendant was a cook and the deceased was a house boy, and both were employed in the same place and usually slept in the same room. One night, after the defendant had gone to bed, he was awakened by some one trying to open the door, and called out twice, "who is there?" He received no answer, and fearing that the intruder was a robber, leaped from the bed and again called out: "If you enter the room I will kill you." At that moment he was struck by a chair which had been placed against the door. Believing that he was being attacked, he seized a kitchen knife and struck and fatally wounded the intruder, who turned out to be his roommate. Thereupon he called to his employers and rushed back into the room to secure bandages to bind up the wound. Defendant was charged with murder. While there can be no doubt of defendant’s exemption from liability if the intruder had really been a robber, the question presented is whether, in this jurisdiction, a person can be held criminally responsible when, by reason of a mistake of facts, he does an act for which he would be exempt if the facts were as he supposed them to be, but would constitute murder if he had known the true state of facts at the time.

Held, That, under such circumstances, there is no criminal liability, provided that the ignorance or mistake of fact was not due to negligence or bad faith. In other words, if such ignorance or mistake of facts is sufficient to negative a particular intent which, under the law, is a necessary ingredient of the offense charged it destroys the presumption of intent and works an acquittal; except in those cases where the circumstances demand a conviction under the penal provisions governing negligence, and in cases where, under the provisions of article 1 of the Penal Code, a person voluntarily committing an act incurs criminal liability even though the act be different from that which he intended to commit.

The evidence as to many of the essential and vital facts in this case is limited to the testimony of the accused himself, because from the very nature of these facts and from the circumstances surrounding the incident upon which these proceedings rest, no other evidence as to these facts was available either to the prosecution or to the defense. We think however, that, giving the accused the benefit of the doubt as to the weight of the evidence touching those details of the incident as to which there can be said to be any doubt, the following statement of the material facts disclosed by the record may be taken to be substantially correct:chanrob1es virtual 1aw library

The defendant, Ah Chong, was employed as a cook at "Officers’ quarters, No. 27," Fort McKinley, Rizal Province, and at the same place Pascual Gualberto, deceased, was employed as a house boy or muchacho. "Officers’ quarters No. 27" is a detached house situated some 40 meters from the nearest building, and in August, 1908, was occupied solely as an officers’ mess or club. No one slept in the house except the two servants, who jointly occupied a small room toward the rear of the building, the door of which opened upon a narrow porch running along the side of the building, by which communication was had with the other part of the house. This porch was covered by a heavy growth of vines for its entire length and height. The door of the room was not furnished with a permanent bolt or lock, and the occupants, as a measure of security, had attached a small hook or catch on the inside of the door, and were in the habit of reinforcing this somewhat insecure means of fastening the door by placing against it a chair. In the room there was but one shall window, which, like the door, opened on the porch. Aside from the door and window, there were no other openings of any kind in the room.

On the night of August 14, 1908, at about 10 o’clock, the defendant, who had retired for the night, was suddenly awakened by someone trying to force open the door of the room. He sat up in bed and called out twice, "Who is there?" He heard no answer and was convinced by the noise at the door that it was being pushed open by someone bent upon forcing his way into the room. Due to the heavy growth of vines along the front of the porch, the room was very dark, and the defendant, fearing that the intruder was a robber or a thief, leaped to his feet and called out. "If you enter the room, I will kill you." At the moment he was struck just above the knew by the edge of the chair which had been placed against the door. In the darkness and confusion the defendant thought that the blow had been inflicted by the person who had forced the door open, whom he supposed to be a burglar, though in the light of after events, it is probable that the chair was merely thrown back into the room by the sudden opening of the door against which it rested. Seizing a common kitchen knife which he kept under his pillow, the defendant struck out wildly at the intruder who, it afterwards turned out, was his roommate, Pascual. Pascual ran out upon the porch and fell down on the steps in a desperately wounded condition, followed by the defendant, who immediately recognized him in the moonlight. Seeing that Pascual was wounded, he called to his employers who slept in the next house, No. 28, and ran back to his room to secure bandages to bind up Pascual’s wounds.

There had been several robberies in Fort McKinley not long prior to the date of the incident just described, one of which took place in a house in which the defendant was employed as cook; and as defendant alleges, it was because of these repeated robberies he kept a knife under his pillow for his personal protection.

The deceased and the accused, who roomed together and who appear to have been or friendly and amicable terms prior to the fatal incident, had an understanding that when either returned at night, he should knock at the door and acquaint his companion with his identity. Pascual had left the house early in the evening and gone for a walk with his friends, Celestino Quiambao and Mariano Ibañez, servants employed at officers’ quarters No. 28, the nearest house to the mess hall. The three returned from their walk at about 10 o’clock, and Celestino and Mariano stopped at their room at No. 28, Pascual going on to his room at No. 27. A few moments after the party separated, Celestino and Mariano heard cries for assistance and upon returning to No. 27 found Pascual sitting on the back steps fatally wounded in the stomach whereupon one of them ran back to No. 28 and called Lieutenants Jacobs and Healy, who immediately went to the aid of the wounded man.

The defendant then and there admitted that he had stabbed his roommate, but said that he did it under the impression that Pascual was "a ladron" because he forced open the door of their sleeping room, despite defendant’s warnings.

No reasonable explanation of the remarkable conduct on the part of Pascual suggests itself, unless it be that the boy in a spirit of mischief was playing a trick on his Chinese roommate, and sought to frighten him by forcing his way into the room, refusing to give his name or say who he was, in order to make Ah Chong believe that he was being attacked by a robber.

Defendant was placed under arrest forthwith, and Pascual was conveyed to the military hospital, where he died from the effect of the wound of the following day.

The defendant was charged with the crime of assassination, tried, and found guilty by the trial court of simple homicide, with extenuating circumstances, and sentenced to six years and one day presidio mayor, the minimum penalty prescribed by law.

At the trial in the court below the defendant admitted that he killed his roommate, Pascual Gualberto, but insisted that he struck the fatal blow without any intent to do a wrongful act, in the exercise of his lawful right of self defense.

Article 8 of the Penal Code provides that —

"The following are not delinquent and are therefore exempt from criminal liability:jgc:chanrobles.com.ph

"4. He who acts in defense of his person or rights, provided there are the following attendant circumstances:chanrob1es virtual 1aw library



"(1) Illegal aggression.

"(2) Reasonable necessity of the means employed to prevent or repel it.

"(3) Lack of sufficient provocation on the part of the person defending himself."cralaw virtua1aw library

Under these provisions we think that there can be no doubt that defendant would be entitled to complete exemption from criminal liability for the death of the victim of his fatal blow, if the intruder who forced open the door of his room had been in fact a dangerous thief or "ladron," as the defendant believed him to be. No one, under such circumstances, would doubt the right of the defendant to resist and repel such an intrusion, and the thief having forced open the door notwithstanding defendant’s thrice-repeated warning to desist, and his threat that he would kill the intruder if he persisted in his attempt, it will not be questioned that in the darkness of the night, in a small questioned that in the darkness of the night, in a small room, with no means of escape, with the thief advancing upon him despite his warning, defendant would have been wholly justified in using any available weapon to defend himself from such an assault, and in striking promptly, without waiting for the thief to discover his whereabouts and deliver the first blow.

But the evidence clearly discloses that the intruder was not a thief or a "ladron." That neither the defendant nor his property nor any of the property under his charge was in real danger at the time when he struck the fatal blow. That there was no such "unlawful aggression" on the part of a thief or "ladron" as defendant believed he was repelling and resisting, and that there was no real "necessity" for the use of knife to defend his person or his property or the property under his charge.

The question then squarely presents itself, whether in this jurisdiction one can be held criminally responsible who, by reason of a mistake as to the facts, does an act for which he would be exempt from criminal liability if the facts were as he supposed them to be, but which would constitute the crime of homicide or assassination if the actor had known the true state of the facts at the time when he committed the act. To this question we think there can be but one answer, and we hold that under such circumstances there is no criminal liability, provided always that the alleged ignorance or mistake of fact was not due to negligence or bad faith.

In broader terms, ignorance or mistake of fact, if such ignorance or mistake of fact is sufficient to negative a particular intent which under the law is a necessary ingredient of the offense charged (e. g., in larceny, animus furendi; in murder, malice; in crimes and misdemeanors generally some degree of criminal intent) "cancels the presumption of intent," and works an acquittal; except in those cases where the circumstances demand a conviction under the penal provisions touching criminal negligence; and in cases where, under the provisions of article 1 of the Penal Code one voluntarily committing a crime or misdemeanor incurs criminal liability for any wrongful act committed by him, even though it be different from that which he intended to commit. (Wharton’s Criminal Law, sec. 87 and cases cited; McClain’s Crim. Law, sec. 133 and cases cited; Pettit v. S., 28 Tex. Ap.; 240; Commonwealth v. Power, 7 Met., 596; Yates v. People, 32 N. Y., 509; Isham v. State, 38 Ala., 213; Commonwealth v. Rogers, 7 Met., 500)

The general proposition thus stated hardly admits of discussion, and the only question worthy of consideration is whether malice of criminal intent is an essential element or ingredient of the crimes of homicide and assassination as defined and penalized in the Penal Code. It has been said that since the definitions there given of these as well as most other crimes and offenses therein defined, do not specifically and expressly declare the acts constituting the crime or offense must be committed with malice or with criminal intent in order that the actor may be held criminally liable, the commission of the acts set out in the various definitions subjects the actor to the penalties described therein, unless it appears that he is exempted from liability under one or other of the express provisions of article 8 of the code, which treats of exemptions. But while it is true that contrary to the general rule of legislative enactment in the United States, the definitions of crimes and offenses as set out in the Penal Code rarely contain provisions expressly declaring that malice or criminal intent is an essential ingredient of the crime, nevertheless, the general provisions of article 1 of the code clearly indicate that malice, or criminal intent in some form, is an essential requisite of all crimes and offenses therein defined, in the absence of express provisions modifying the general rule, such as are those touching liability resulting from acts negligently or imprudently committed, and acts done by one voluntarily committing a crime or misdemeanor, where the act committed is different from that which he intended to commit. And it is to be observed that even these exceptions are more apparent than real, for "There is a little distinction, except in degree, between a will to do a wrongful thing and indifference whether it is done or not. Therefore carelessness is criminal, and within limits supplies the place of the affirmative criminal intent" (Bishop’s New Criminal Law, vol. 1, s. 313); and, again, "There is so little deference between a disposition to do a great harm and a disposition to do harm that one of them may very well be looked upon as the measures of the other. Since, therefore, the guilt of a crime consists in the disposition to do harm, which the criminal shows by committing it, and since this disposition is greater or less in proportion to the harm which is done by the crime the consequence is that the guilt of the crime follows the same proportion; it is greater or less harm" (Ruth. Ints. C. 18, p. 11); or, as it has been otherwise stated the thing done, having proceeded from a corrupt mind, is to be viewed the same whether the corruption was of one particular form or another.

Article 1 of the Penal Code is as follows:jgc:chanrobles.com.ph

"Crimes or misdemeanors are voluntary acts and omissions punished by law.

"Acts and omissions punished by law are always presumed to be voluntary unless the contrary shall appear.

"Any person voluntarily committing a crime or misdemeanor shall incur criminal liability, even though the wrongful act committed be different from that which he had intended to commit."cralaw virtua1aw library

The celebrated Spanish jurist Pacheco, discussing the meaning of the word "voluntary" as used in this article, says that a voluntary act is a free, intelligent, and intentional act, and roundly asserts that without intention (intention to do wrong or criminal intention) there can be no crime; and that the word "voluntary" implies and includes the words "con malicia." which were expressly set out in the definition of the word "crime" in the code of 1822, but omitted from the code of 1870, because, as Pacheco insists, their use in the former code was redundant, being implied and included in the word "voluntary." (Pacheco, Codigo Penal, vol. 1, p. 74.)

Viada, while insisting that the absence of intention to commit the crime can only be said exempt from criminal responsibility when the act which was actually intended to be done was in itself a lawful one, and in the absence of negligence or imprudence, nevertheless admits and recognizes in his discussion of the provisions of this article of the code that in general without intention there can be no crime. (Viada, vol. 1, p. 16.) And, as we have shown above, the exceptions insisted upon by Viada are more apparent than real.

Silvela, in discussing the doctrine herein laid down, says:jgc:chanrobles.com.ph

"In fact, it is sufficient to remember the first article, which declares that where there is no intention there is no crime . . . . in order to affirm, without fear of mistake, that under our code there can be no crime if there is no act, an act which must fall within the sphere of ethics if there is no moral injury." (Vol. 2, The Criminal Law, folio 169.)

And to the same effect are various decisions of the supreme court of Spain, as, for example in its sentence of May 31, 1882, in which it made use of the following language:jgc:chanrobles.com.ph

"It is necessary that this act, in order to constitute a crime, involve all the malice which is supposed from the operation of the will and an intent to cause the injury which may be the object of the crime."cralaw virtua1aw library

"And again in its sentence of March 16, 1892, wherein it held that "considering that, whatever may be the civil effects of the inscription of his three sons, made by the appellant in the civil registry and in the parochial church, there can be no crime because of the lack of the necessary elements or criminal intention, which characterizes every action or omission punished by law; nor is he guilty of criminal negligence."cralaw virtua1aw library

And to the same effect in its sentence of December 30, 1896, it made use of the following language:jgc:chanrobles.com.ph

". . . Considering that the moral element of the crime that is intent or malice or their absence in the commission of an act defined and punished by law as criminal, is not a necessary question of fact submitted to the exclusive judgment and decision of the trial court."cralaw virtua1aw library

That the author of the Penal Code deemed criminal intent or malice to be an essential element of the various crimes and misdemeanors therein defined becomes clear also from an examination of the provisions of article 568, which are as follows:jgc:chanrobles.com.ph

"He who shall execute through reckless negligence an act that, if done with malice, would constitute a grave crime, shall be punished with the penalty of arresto mayor in its maximum degree, to prison correccional in its minimum degree, and with arresto mayor in its minimum and medium degrees if it shall constitute a less grave crime.

"He who in violation of the regulations shall commit a crime through simple imprudence or negligence shall incur the penalty of arresto mayor in its medium and maximum degrees.

"In the application of these penalties the courts shall proceed according to their discretion, without being subject to the rules prescribed in article 81.

"The provisions of this article shall not be applicable if the penalty prescribed for the crime is equal to or less than those contained in the first paragraph thereof, in which case the courts shall apply the next one thereto in the degree which they may consider proper."cralaw virtua1aw library

The word "malice" in this article is manifestly substantially equivalent to the words "criminal intent," and the direct inference from its provisions is that the commission of the acts contemplated therein, in the absence of malice (criminal intent), negligence, and imprudence, does not impose any criminal liability on the actor.

The word "voluntary" as used in article 1 of the Penal Code would seem to approximate in meaning the word "willful" as used in English and American statutes to designate a form of criminal intent. It has been said that while the word "willful" sometimes means little more than intentionally or designedly, yet it is more frequently understood to extend a little further and approximate the idea of the milder kind of legal malice; that is, it signifies an evil intent without justifiable excuse. In one case it was said to mean, as employed in a statute in contemplation, "wantonly" or "causelessly;" in another, "without reasonable grounds to believe the thing lawful." And Shaw, C.J., once said that ordinarily in a statute it means "not merely ’voluntarily’ but with a bad purpose; in other words, corruptly." In English and the American statutes defining crimes "malice," "maliciously," and "malice aforethought" are words indicating intent, more purely technical than "willful" or "willfully," but "the difference between them is not great;" the word "malice" not often being understood to require general malevolence toward a particular individual, and signifying rather the intent from which flows any unlawful and injurious act committed without legal justification. (Bishop’s New Criminal Law, vol. 1, secs. 428 and 429, and cases cited.)

But even in the absence of express words in a statute, setting out a condition in the definition of a crime that it be committed "voluntarily," willfully," "maliciously," "with malice aforethought," or in one of the various modes generally construed to imply a criminal intent, we think that reasoning from general principles it will always be found that, with the rare exceptions hereinafter mentioned, to constitute a crime evil intent must combine with an act. Mr. Bishop, who supports his position with numerous citations from the decided cases, thus forcefully presents this doctrine:jgc:chanrobles.com.ph

"In no one thing does criminal jurisprudence differ more from civil that in the rule as to intent. In controversies between private parties the quo animo with which a thing was done is sometimes important, not always; but crime proceeds only from a criminal mind. So that —

"There can be no crime, large or small, without an evil mind. In other words, punishment is the sequence of wickedness, without which it can not be. And neither in philosophical speculation nor in religious or moral sentiment would any people in any age allow that a man should be deemed guilty unless his mind was so. It is therefore a principle of our legal system, as probably it is of every other, that the essence of an offense is the wrongful intent, without which it can not exist. We find this doctrine confirmed by —

"Legal maxims. — The ancient wisdom of the law, equally with the modern, is distinct on this subject. It consequently has supplied to us such maxims as Actus non facit reum nisi mens sit rea, ’the act itself does not make a man guilty unless his intention were so;’ Actus me invito factus non est meus actus, ’an act done by me against my will is not my act;’ and others of the like sort. In this, as just said, criminal jurisprudence differs from civil. So also —

"Moral science and moral sentiment teach the same thing.’By reference to the intention, we inculpate or exculpate others or ourselves without any respect to the happiness or misery actually produced. Let the result of an action be what it may, we hold a man guilty simply on the ground of intention; or, on the same ground, we hold him innocent.’ The calm judgment of mankind keeps this doctrine among its jewels. In times of excitement, when vengeance takes the place of justice, every guard around the innocent is cast down. But with the return of reason the public voice that were the mind is pure, he who differs in act from his neighbors does not offend. And —

"In the spontaneous judgment which springs from the nature given by God to man, no one deems another to deserve punishment for what he did from an upright mind, destitute of every form of evil. And whenever a person is made to suffer a punishment which the community deems not his due, so far from its placing an evil mark upon him it elevates him to the seat of the martyr. Even infancy itself spontaneously pleads the want of bad intent in justification of what has the appearance of wrong, with the utmost confidence that the plea, if its truth is credited, will be accepted as good. Now these facts are only the voice of nature uttering one of her immutable truths. It is, then the doctrine of the law, superior to all other doctrines, because first in nature from which the law itself proceeds, that no man is to be punished as a criminal unless his intent is wrong." (Bishop’s New Criminal Law, vol. 1, secs. 286 to 290.)

Compelled by necessity, "the great master of all things," an apparent departure from this doctrine of abstract justice results from the adoption of the arbitrary rule that Ignorantia juris non excusat ("Ignorance of the law excuses no man"), without which justice could not be administered in our tribunals; and compelled also by the same doctrine of necessity, the courts have recognized the power of the legislature to forbid, in a limited class of cases, the doing of certain acts, and to make their commission criminal without regard to the intent of the doer. Without discussing these exceptional cases at length, it is sufficient here to say that the courts have always held that the intention of the lawmaker to make the commission of certain acts criminal without regard to the intent of the doer is clear and beyond question the statute will not be so construed (cases cited in Cyc., vol. 12, p. 158, notes 76 and 77); and the rule that ignorance of the law excuses no man has been said not to be a real departure from the law’s fundamental principle that crime exists only where the mind is at fault, because "the evil purpose need not be to break the law, and it suffices if it is simply to do thing which the law in fact forbids." (Bishop’s New Criminal Law, sec. 300, and cases cited.)

But, however this may be, there is no technical rule, and no pressing necessity therefor, requiring mistake in fact to be dealt with otherwise than in strict accord with the principles of abstract justice. On the contrary the maxim here is Ignorantia facti excusat ("Ignorance or mistake in point of fact is, in all cases of supposed offense, a sufficient excuse"). (Brown’s Leg. Max., 2d ed., 190.)

Since evil intent is in general an inseparable element in every crime, any such mistake of fact as shows the act committed to have proceeded from no sort of evil in the mind necessarily relieves the actor from criminal liability, provided always there is no fault or negligence on his part; and as laid down by Baron Parke, "The guilt of the accused must depend on the circumstances as they appear to him." (Reg. v. Thurborn, 1 Den. C. C., 387; P. v. Anderson, 44 Cal., 65; P. v. Lamb, 54 Barb., 342; Yates vs P., 32 N.Y., 509; Patterson v. P., 46 Barb., 625; Reg. vs Cohen, 8 Cox C. C., 41; P. v. Miles, 55 Cal., 207, 209; Nalley v. S., 28 Tex. Ap., 387.) That is to say, the question as to whether he honestly, in good faith, and without fault or negligence fell into the mistake is to be determined by the circumstances as they appeared to him at the time when the mistake was made, and the effect which the surrounding circumstances might reasonably be expected to have on his mind, in forming the intent, criminal or otherwise upon which he acted.

"If in language not uncommon in the cases, one has reasonable cause to believe the existence of facts which will justify a killing — or, in terms more nicely in accord with the principles on which the rule is founded, if without fault or carelessness he does believe them — he is legally guiltless of the homicide; though he mistook the facts, and so the life of an innocent person is unfortunately extinguished. In order words, and with reference to the right of self-defense and the not quite harmonious authorities, it is the doctrine of reason, and sufficiently sustained in adjudication, that notwithstanding some decisions apparently adverse, whenever a man undertakes self-defense, he is justified in acting on the facts as they appear to him. If without fault or carelessness, he is misled concerning them, and defends himself correctly according to what he thus supposes the facts to be, the law will not punish him though they are in truth otherwise, and he has really no occasion for the extreme measure." (Bishop’s New Criminal Law, sec. 305, and large array of cases there cited.)

The common illustration in the American and English textbooks of the application of this rule is the case where a man, masked and disguised as a footpad, at night and on a lonely road, "holds up" his friend in a spirit of mischief, and with leveled pistol demands his money or his life, but is killed by his friend under the mistaken belief that the attack is a real one, that the pistol leveled at his head is loaded, and that his life and property are in imminent danger at the hands of the aggressor. No one will doubt that if the facts were such as the slayer believed them to be he would be innocent of the commission of any crime and wholly exempt from criminal liability, although if he knew the real state of the facts when he took the life of his friend he would undoubtedly be guilty of the crime of homicide or assassination. Under such circumstances, proof of his innocent mistake or criminal intent, and (since malice or criminal intent is a necessary ingredient of the "act punished by law" in cases of homicide or assassination) overcomes at the same time the presumption established in article 1 of the code, that the "act punished by law" was committed "voluntarily."cralaw virtua1aw library

Parsons, C.J., in the Massachusetts court, once said:jgc:chanrobles.com.ph

"If the party killing had a felonious design against him, and under that supposition killed him, although it should afterwards appear that there was no such design, it will not be murder, but it will be either manslaughter or excusable homicide, according to the degree of caution used and the probable grounds of such belief." (Charge to the grand jury in Selfridge’s case, Whart. Hom., 417, 418, Lloyd’s report of the case, p. 7.)

In this case, Parker, J., charging the petit, jury, enforced the doctrine as follows:jgc:chanrobles.com.ph

"A in the peaceable pursuit of his affairs, sees B rushing rapidly toward him, with an outstretched arm and a pistol in his hand, and using violent menaces against his life as he advances. Having approached near enough in the same attitude, A, who has a club in his hand, strikes B over the head before or at the instant the pistol is discharged; and of the wound B dies. It turns out the pistol was loaded with powder only, and that the real design of B was only to terrify A. Will any reasonable man say that A is more criminal than he would have been if there had been a bullet in the pistol? Those who hold such doctrine must require that a man so attacked must, before he strikes the assailant, stop and ascertain how the pistol is loaded — a doctrine which would entirely take away the essential right of self-defense. And when it is considered that the jury who try the cause, and not the party killing, are to judge of the reasonable grounds of his apprehension, no danger can be supposed to flow from this principle." (Lloyd’s Rep., p. 160.)

To the same effect are various decisions of the supreme court of Spain, cited by Viada, a few of which are here set out in full because the facts are somewhat analogous to those in the case at bar.

"QUESTION III. When it is shown that the accused was sitting at his hearth, at night, in company only of his wife, without other light than that reflected from the fire, and that the man with his back to the door was attending to the fire, there suddenly entered a person whom he did not see or know, who struck him one or two blows, producing a contusion on the shoulder, because of which he turned, seized the person and took from him the stick with which he had undoubtedly been struck, and gave the unknown person a blow, knocking him to the floor, and afterwards striking him another blow on the head, leaving the unknown lying on the floor, and left the house. It turned out the unknown person was his father-in-law, to whom he rendered assistance as soon as he learned his identity, and who died in about six days in consequence of cerebral congestion resulting from the blow. The accused, who confessed the facts, had always sustained pleasant relations with his father-in-law, whom he visited during his sickness, demonstrating great grief over the occurrence. Shall he be considered free from criminal responsibility, as having acted in self-defense, with all the circumstances related in paragraph 4, article 8, of the Penal Code? The criminal branch of the Audiencia of Valladolid found that he was an illegal aggressor, without sufficient provocation, and that there did not exist rational necessity for the employment of the force used, and in accordance with articles 419 and 87 of forced used, and in accordance with articles 419 and 87 of the Penal Code condemned him to twenty months of imprisonment, with accessory penalty and costs. Upon appeal by the accused, he was acquitted by the supreme court, under the following sentence: ’Considering, from the facts found by the sentence to have been proven, that the accused was surprised from behind, at night, in his house beside his wife, who was nursing her child, was attacked, struck, and eaten, without being able to distinguish the person or persons attacking, nor the instruments with which they might have executed their criminal intent, because of the fact that the attack was made from behind and because there was no other than fire light in the room, and considering that in such a situation and when the acts executed demonstrated that they might endanger his existence, and possibly that of his wife and child, more especially because his assailant was unknown, he should have defended himself, and in doing so with the same stick with which he was attacked, he did not exceed the limits of self-defense, nor did he use means which were not rationally necessary, particularly because the instrument with which he killed was the one which he took from his assailant, and was capable of producing death, and in the darkness of the house and the consternation which naturally resulted from such strong aggression, it was not given him to know or distinguish whether there was one or more assailants, nor the arms which they might bear, nor that which they might accomplish, and considering that the lower court did not find from the accepted facts that there existed rational necessity for the means employed, and that it did not apply paragraph 4 of article 8 of the Penal Code, it erred, etc.’ (Sentence of supreme court of Spain, February 28, 1876.)" (Viada, Vol. I, p. 266.)

"QUESTION XIX. A person returning, at night, to his house, which was situated in a retired part of the city, upon arriving at a point where there was no light, heard the voice of a man, at a distance of some 8 paces, saying: ’Face down, hand over your money!’ because of which , and almost at the same moment , he fired two shots from his pistol, distinguishing immediately the voice of one of his friends (who had before stimulated a different voice) saying, ’Oh! they have killed me,’ and hastening to his assistance, finding the body lying upon the ground, he cried, ’Miguel, Miguel, speak, for God’s sake, or I am ruined,’ realizing that he had been the victim of a joke, and not receiving a reply, and observing that his friend was a corpse, he retired from the place. Shall he be declared exempt in toto from responsibility as the author of this homicide, as having acted in just self-defense under the circumstances defined in paragraph 4, article 8, Penal Code? The criminal branch of the Audiencia of Malaga did not so find, but only found in favor of the accused two of the requisites of said article, but not that of the reasonableness of the means employed to repel the attack, and therefore, condemned the accused to eight years and one day of prision mayor, etc. The supreme court acquitted the accused on his appeal from this sentence, holding that the accused was acting under a justifiable and excusable mistake of fact as to the identity of the person calling to him, and that under the circumstances, the darkness and remoteness, etc., the means employed were rational and the shooting justifiable. (Sentence supreme court, March 17, 1885.)" (Viada, Vol. I, p. 136.)

"Question VI. The owner of a mill, situated in a remote spot, is awakened, at night, by a large stone thrown against his window — at this, he puts his head out of the window and inquires what is wanted, and is answered ’the delivery of all his money, otherwise his house would be burned’ — because of which, and observing in an alley adjacent to the mill four individuals, one of whom addressed him with blasphemy, he fired his pistol at one of the men, who, on the next morning was found dead on the same spot. Shall this man be declared exempt from criminal responsibility as having acted in just self-defense with all of the requisites of law? The criminal branch of the Audiencia of Zaragoza finds that there existed in favor of the accused a majority of the requisites to exempt him from criminal responsibility, but not that of reasonable necessity for the means, employed, and condemned the accused to twelve months of prision correccional for the homicide committed. Upon appeal, the supreme court acquitted the condemned, finding that the accused, in finding at the malefactors, who attacked his mill at night in a remote spot by threatening robbery and incendiarism, was acting in just self-defense of his person, property, and family. (Sentence of May 23, 1877)." (I Viada, p. 128.)

A careful examination of the facts as disclosed in the case at the bar convinces us that the defendant Chinaman struck the fatal below alleged in the information in the firm belief that the intruder who forced open the door of his sleeping room was a thief, from whose assault he was an imminent peril, both of his life and of his property and of the property committed to his charge; that in view of all the circumstances, as they must have presented themselves to the defendant at the time, he acted in good faith, without malice, or criminal intent, in the belief that he was doing no more than exercising hid legitimate right of self-defense; that had the facts been as he believed them to be he would have been wholly exempt from criminal liability on account of his act; and that he can not be said to have been guilty of negligence or recklessness or even carelessness in falling into his mistake as to the facts, or in the means adopted by him to defend himself from the imminent danger which he believed threatened his person and his property and the property under his charge.

The judgment of conviction and the sentence imposed by the trial court should be reversed, and the defendant acquitted of the crime with which he is charged and he is bail bond exonerated, with the costs of both instances de oficio. So ordered.

Johnson, Moreland and Elliott, JJ., concur.

Arellano, C.J., and Mapa, J., dissent.



TORRES, J., dissenting:chanrob1es virtual 1aw library

The writer, with due respect to the opinion of the majority of the court, believes that, according to the merits of the case, the crime of homicide by reckless negligence, is defined and punished in article 568 of the Penal Code, was committed, inasmuch as the victim was willfully (voluntariamente) killed, and while the act was done without malice or criminal intent it was, executed with real negligence, for the acts committed by the deceased could not warrant the aggression by the defendant under the erroneous belief on the part of the accused that the person who assaulted him was a malefactor; the defendant therefore incurred responsibility in attacking with a knife the person who was accustomed to enter said room, without any justifiable motive.

By reason of the nature of the crime committed, in the opinion of the undersigned the accused should be sentenced to the penalty of one year and one month of prision correccional, to suffer the accessory penalties provided in article 61, and to pay an indemnity of P1,000 to the heirs of the deceased, with the costs of both instances, thereby reversing the judgment appealed from.

1. "ESTAFA;" SUFFICIENCY OF PROOF; CHINESE SIMULATED DRAFTS. — Defendant, a Chinese merchant, prepared or had prepared an instrument which, upon its face, purports to be a draft for P600, drawn by one Lim Chi Hian in favor of Ong Chik Nen and accepted by the defendant, upon the back of which document were placed three "chops" purporting to be the signatures of three indorsers. With the exception of that of the defendant, all other names are fictitious. The alleged draft was sold on behalf of defendant to Cotauco, the prosecuting witness, for P590. The latter, upon maturity of defendant’s acceptance, presented the instrument for payment and was then informed that defendant had already made a general assignment in favor of creditors. Thereupon defendant was charged with the crime of estafa.

While upon first impression the instrument would be adjudged a fraud, yet there is a reasonable doubt as to defendant’s intention to deceive, on account of the existence of this most reprehensible practice among the Chinese to issue instruments of this character. In the present case the defendant gave full and particular instructions for the preparation of the so-called draft, in the presence and within the hearing of several persons who were in his place of business, and he had frequently prepared and had discounted similar drafts. The conduct of the witness who purchased the instrument was such as to raise a doubt as to whether he was or was not aware of the true nature of the paper which he discounted.

Held, That, as it has not been proven beyond a reasonable doubt that the transaction involved any false pretense or deceit on the part of the defendant whereby the complaining witness was defrauded, while disapproving the practice of issuing such instruments, the conviction of the defendant for the crime of estafa can not be sustained.

Pau Te Chin, the appellant in this case, was sentenced by the trial court to six months of arresto mayor, and to indemnify the complaining witness in the sum of P590, with interest at the rate of 6 per cent per annum and subsidiary imprisonment in the event of insolvency, upon an information charging him with the commission of the crime of estafa as follows:jgc:chanrobles.com.ph

"That on or about the 11th day of December, 1907, in the city of Manila, Philippine Islands, the said Pau Te Chin, alias Pau Kam Ching, did then and there willfully, unlawfully, feloniously, deceitfully, and with intent of gain, defraud one Rafael Cotauco by then and there using fictitious names, assuming fictitious powers, influences, and attributes, and by pretending to possess property, credit, enterprise, and commission that he did not possess, and use of other similar deceit, in this, to wit:jgc:chanrobles.com.ph

"That the said accused, Pau Te Chin, alias Pau Kam Ching, did then and there prepare a certain false, fraudulent, and fictitious draft, purporting to be drawn by and signed by Lim Chi Hian on the said accused, Pau Te Chin, alias Pau Kam Ching, payor, for the sum of six hundred (600) pesos, Philippine currency, and purporting to be indorsed by one Lim Quieng Bi, one Sieng Mee, and one Woo Siong, which said draft was in the Chinese language, and a true copy of said draft in the Chinese language, together with a translation into the English language, is hereto attached and marked "Exhibit A," and made a part hereof; and did further then and there present and cause said draft to be presented to the said Rafael Cotauco, and represent and cause to be represented to the said Rafael Cotauco that the said draft was a good and valid draft for the sum of six hundred (600) pesos, Philippine currency, duly drawn by the said Lim Chi Hian, a reputable and responsible businessman, and indorsed by the said Lim Quieng Bi, Sieng Mee, and Woo Siong, respectively, responsible business men, and requested the said Rafael Cotauco to purchase the said draft and pay therefor the sum of six hundred (600) pesos, Philippine currency.

"That then and there, relying on the false and fraudulent representations aforesaid, and believing that said draft was a good and valid draft drawn and indorsed as aforesaid, for the sum of six hundred (600) pesos, Philippine currency, the said Rafael Cotauco was induced by said false and fraudulent representations to purchase the draft aforesaid and pay therefor the sum of six hundred (600) pesos, Philippine currency, which said sum the said Pau Te Chin, alias Pau Kam Ching, did then and there convert to his own use to the damage and prejudice of the said Rafael Cotauco in the said sum of six hundred (600) pesos, Philippine currency, equivalent to and of the value of three thousand (3,000) pesetas.

"That the said draft was false, fraudulent, and fictitious, and the drawer and indorsers, above named, did not exist as the said Pau Te Chin, alias Pau Kam Ching, then and there well knew.

"All contrary to law."cralaw virtua1aw library

The following is the English translation of Exhibit A referred to in the foregoing information:jgc:chanrobles.com.ph

"BILL OF EXCHANGE.

"Series ’Chai.’ Trip No. 50. Draft No. 20.

"We acknowledge the receipt from Mr. Ong Chik Nen, of Laoag, of the sum of six hundred pesos, (P600) local currency, and we agree to pay the same at Manila, upon presentation of this draft, at fifteen days’ sight. After payment this draft is to be surrendered to this office as evidence of payment.

"Holder and draft must both be identified; if any other person picks this up, it shall be regarded as waste paper.

"Issued this 2d day, 11th month, 33d year. (Dec. 6, 1907.)

"By (Signed) LIM CHI HIAN.

(Chop) CONG GUANG, Laoag.

"To Mr. PAU KAM CHING (PAU TE CHIN), of the Ye Siong Hong.

"Draft presented. Date of expiration: 13th day, 12th month, 33d year (Jan. 16, 1908).

"(Chop) YE SIONG, Pua Ma Tao’s nephew.

"Jan. 16 —

On back:jgc:chanrobles.com.ph

"(Chop) LIM QUIENG BI.

"(Chop) SIENG MEE.

"(Chop) WOO SIONG."cralaw virtua1aw library

For some twenty years prior to the date of the transaction out of which these proceedings arose, defendant owned and conducted an extensive dry-goods business in the city of Manila, with sales aggregating, as he claims, more than a million pesos a year. In the month of January, 1908, being in need of money, the defendant prepared or had prepared under his direction the above-set-out instrument, which upon its direction the above-set-out instrument, which upon its face purports to be a draft for P600, drawn at Laoag, Samar, by one Lim Chi Hian in favor of one Ong Chik Nen, payable fifteen days after sight and accepted by defendant on January 1, 1908. On the back of this instrument were placed three undated stamps or chops, purporting to be the signatures of as many indorsers. Except the name of the defendant and of one of the indorsers (who seems to have added his name as an accommodation to the defendant, for the purpose of giving greater credit to the instrument in the later negotiations for its sale), all of the names attached to the instrument are fictitious, no such persons or firms being in existence as appear therein as drawer, payee, and indorsers, and, manifestly, the instrument was neither draft nor bill of exchange drawn and accepted in the regular course of business as on its face it purported to be. It was sold for and on behalf of the defendant by a Chinese broker to a Chinese lumber merchant and money lender named Rafael Cotauco, for P590, who upon the maturity of defendant’s acceptance, presented it to the defendant for payment, and was informed that defendant had no funds, and had made a general assignment in favor of his creditors, some of whom had forced him into liquidation a few days before the acceptance fell due.

The facts just set out, which in our opinion are fully established by the evidence of record, if unexplained, would leave little room for doubt that the defendant prepared a fictitious commercial instrument for the purpose of deceiving the purchaser to whom he sold it, by giving the instrument the appearance of a draft or bill of exchange drawn in the regular course of business, with a drawer, payee, and indorsers upon whom the purchaser might rely for payment in the event of the failure of the defendant acceptor so to do; and that the purchaser, deceived by the fictitious quality given the instrument as a commercial document, had suffered by the deception of the defendant to the amount which he paid therefor.

But we think that there are further facts disclosed by the evidence of record which are sufficient to raise a reasonable doubt not only as to the intent of the defendant to deceive the purchaser of the instrument, but also as to whether the purchaser was in fact deceived, to his loss or detriment, by the peculiar and unusual form in which the instrument was executed. We can not close our eyes to the fact that a most reprehensive practice (we refuse to dignify it by speaking of it as a custom) exists among many of the Chinese merchants of the city of Manila, whereby borrowers, with the full knowledge of the lender, execute just such instruments as the one under consideration, in evidence of loans and advances such as that made by the purchaser of the instrument in the case at bar. What may be the origin of this practice, or what are the objects of the Chinese merchants who adopt it, we do not undertake at this time to determine. It is sufficient for the purposes of this decision to say that the existence of the practice is a matter of general knowledge in this community, and is disclosed by the records of various cases brought to this court, one of which, a civil case, is actually pending at this time; and that while the defendant in the case at bar did not expressly set up or rely upon the existence of the practice in his defense, we are satisfied that the evidence of record raises at least a reasonable doubt as to whether the transaction in question was not had in accordance with this practice with the full knowledge and consent of the complaining witness, the purchaser of the alleged fictitious and fraudulent instrument.

From the evidence of one of the principal witnesses for the prosecution, it appears that defendant not infrequently prepared and had discounted just such instruments as the one now under consideration, and that on at least one occasion this witness himself discounted such an instrument, with full knowledge of the fact that defendant made use of such instruments for the purpose of borrowing money thereon. And if the other witnesses for the prosecution are to be believed, and we think that the trial judge rightly found that they are, the defendant gave full and particular directions for the preparation of the alleged fraudulent instrument in the presence and within the hearing of various persons who happened to be in his store at the time it was executed, although there was not the slightest necessity for so doing. It would seem that had he been conscious that he was engaged in a fraudulent transaction he would not have thus unnecessarily exposed himself to detection and punishment.

The conduct of the complaining witness, the purchaser of the instrument, as disclosed by his own testimony, was such as to raise at least a reasonable doubt in our minds as to whether he was or was not aware of the true nature of the instrument which he discounted. He admitted that he brought the draft relying solely on the credit and business reputation of the defendant whose name appeared thereon as acceptor, and that he did not know and made no effort to discover what was the credit or standing of the drawer, payee, and indorsers, or whether any such persons were in existence. He bought the instrument notwithstanding the fact that the signature of the payee does not appear indorsed thereon, and he took it from the Chinese broker who sold it to him, without the broker’s indorsement, and relying exclusively, as he says, upon the established credit of the defendant and the assurances of the broker that the defendant would pay it at maturity. Under all the circumstances, and especially in view of the known common practice among Chinese merchants and money lenders to give and receive instruments such as the one in question as evidences of loans and advances, we can not say beyond a reasonable doubt that the complaining witness was in anywise deceived by the form in which the instrument was executed, and indeed we are inclined to believe that he well knew that it was not a draft, as on its face it purported to be, and that it was no more than defendant’s promise to pay its face value on maturity of his final acceptance set out therein.

It not being proven beyond a reasonable doubt that the transaction set out in the information involved any false pretense or deceit on the part of the defendant whereby the complaining witness was defrauded "in the substance, quality, or quantity" of the thing sold to him, defendant’s conviction for the crime of estafa can not be sustained. (Art. 534, Penal Code.)

It may not be improper here to say that this decision in Norway places the stamp of our approval on the extremely reprehensible and dangerous practice referred to above, whereby money is borrowed and advanced by Chinese merchants and money lenders in Manila, on evidences of indebtedness cast in the form of drafts with fictitious drawers, payees, and indorsers. The execution, and the disposal or transfer of such fictitious commercial instruments to innocent purchasers for value, without knowledge of their true character, might well expose the parties not merely to the penalties prescribed on conviction of the crime of estafa but also to the much graver penalties prescribed for the crime of falsification of commercial instruments; and it is to be observed also that proof of the true nature of such evidences of indebtedness would in some cases affect the civil rights and obligations of the parties thereto in ways which, it is probable, are wholly unanticipated by those executing and negotiating them, as to which, however, we express no opinion whatever at this time.

The judgment of conviction and the sentence imposed by the trial court should be reversed, and the defendant acquitted of the crime with which he is charged and his bond exonerated, with the costs of both instances de oficio. So ordered.

Johnson, Moreland and Elliott, JJ., concur.

Arellano, C.J., dissents.



TORRES, J., dissenting:chanrob1es virtual 1aw library

It seems to the writer that the crime of estafa was committed and that, according to the merits of the case, the judgment appealed from should be affirmed.

1. FALSIFICATION OF PUBLIC DOCUMENT; RENTING OF PROPERTY TO GOVERNMENT; "OWNER OF BUILDING" CONSTRUED. — Defendant, who was the real owner in fee of a certain building, leased it to one Pepa who in turn sublet it to the Government for use as a post-office, wherein defendant was employed as postmaster. The lease made by Pepa contained the words "owner of the building." Defendant certified the official vouchers for the rent as correct, and thereupon he was charged with falsification of a public document. Defendant was fully authorized to expend the amount certified for the monthly rent and received no undue benefit, nor were the interests of the Government adversely affected by the irregularity in the vouchers. In his defense, defendant alleged that the words "owner of the building" were inserted in the vouchers simply in accordance with a sample voucher prepared for him by the postal authorities in Manila: Held, That there is no question as to defendant’s right to lease his own property and to authorize his lessee to sublet the property to the Insular Government and that, although it would have been more frank and open for him to have done so, yet he was under no legal obligation to disclose his arrangement with his original tenant; that the words "owner of the building" do not necessarily constitute a deception, inasmuch as the term, among other things, would appear to include any person having a lawful right to make a rental contract with respect to such building; and that, therefore the defendant should be acquitted.

Appellant was charged with the crime of falsification of a public document, in that, as postmaster of the municipality of Indang, he certified certain official vouchers whereby it was made to appear that the Government of the Philippine Islands was indebted to one Filoteo B. Pepa, for the rent of the building occupied by the post-office in that municipality during several months of the year 1907; and, further, in that he certified in those vouchers that Pepa was the owner of that building, when, as it is alleged, appellant was himself, in truth and in fact, the owner of the building and the real creditor of the Government for the rent due for its use as a post-office.

Appellant admitted that as postmaster of Indang he certified the vouchers introduced into the record by the prosecution; and that the house rented to the Government, and used by him as a post-office in Indang is and was, at the time when the vouchers were executed, his own property. In explanation of the fact that the vouchers show on their face that the house was rented to the Government by Pepa, that Pepa’s name appears therein as the creditor of the Government for the amount of rent accrued at the end of each month, and that Pepa signed the vouchers in the blank space reserved on the voucher form for the name of the person with whom the rental contract was executed and in whose name the warrants for the payment of the rent were to be issued, appellant corroborated by Pepa himself, testified that he had an agreement with Pepa, whereby, in consideration of services as clerk, rendered and to be rendered by Pepa while appellant was postmaster, appellant agreed to rent the house of Pepa during the term of his postmastership, and to let Pepa recover the amount of the rent which the Government was to pay for the use of appellant’s house as a post-office.

In explanation of the fact in some of the vouchers (though not in all), the English words "owner of the building" are placed immediately under the name of Filoteo B. Pepa, where it appears in the heading to the voucher, and in the blank space which the printed guide words indicate as intended for the "address of the creditor," appellant stated that these words were inserted there, in accordance with a sample voucher prepared for him by the postal authorities of Manila, which was made a part of the record, wherein under the blank space reserved for the name of the creditor, and on the line reserved for the address of the creditor, the words "owner of the building" are inserted in typewriting. Appellant states that he thought these English words were intended to designate the person from whom the building was rented by the Government and who was entitled to receive the rent and receipt therefor, and that since he had rented his house to Pepa and given him authority to contract with the Government for the rent, and to receive and receipt for it, the name of Pepa was properly inserted in the blank space which appeared to be reserved in the sample voucher for the person who was at the same time the creditor of the Government and the owner of the rented building.

It was admitted by the prosecution that the accused was duly authorized to expend the amount paid for the monthly rent of the house occupied as a post-office, and there is no suggestion that the appellant received any undue profit or payment or that the interests of the Government in anywise suffered as a result of the alleged irregularity in the preparation of the vouchers.

It does not appear from the record that there is in these Islands any provision of law, executive order, or other prohibition forbidding the use and occupation as a post-office of a building which is the property of the postmaster in charge of such office; and it nowhere appears from the record in this case that the renting to the Bureau of Posts of a building for use as a post-office by its owner, the postmaster, is prohibited either expressly or by implication.

There is no question therefore of the right of the defendant to rent his property, as we hold that the undisputed evidence of record discloses he did, to another, for and in consideration of services rendered and to be rendered, and to authorize his tenant to sub-rent the property to the Bureau of Posts.

There was no obligation upon the defendant to disclose the details of this arrangement with his tenant, and while it would undoubtedly have been a more open, frank, and honorable transaction had he done so, we are not prepared to hold that the mere fact that the vouchers fail to disclose the nature and details of his contract with Pepa constitutes such a falsification or a perversion of the truth in the relation of the facts set out therein as is defined and penalized by the law. Whether such conduct on his part would justify the postal authorities in relieving him from his office, and putting another in his place, we are not called upon to consider or to decide.

The guilt or innocence of the defendant of the crime with which he is charged turns therefore on the single question whether or not, in certifying as correct the voucher wherein the words "owner of the building" appear after the name of his tenant Pepa, he knowingly certified a false relation of facts in a public document.

The word owner when applied to real estate, without any qualifying words, is generally understood to mean in both common and legal parlance, prima facie, the person in whom is the fee simple. But the word owner is not uniformly or necessarily used in this sense. It is frequently employed to designate one having a lesser estate in the property, and speaking generally the term may be said to be applicable to anyone having a defined interest in real estate as distinguished from one in naked possession only. Thus it has been applied to "one who owns in fee; the person owning the fee; a person who has an estate in fee simple; the legal owner, or who owns the legal estate in lands; the person entitled to the legal estate in the land; the person having the legal title; any person who has an equitable right to or interest in land; one who has any right which, in law or equity, amounts to ownership in the land — any right of entry upon it, to its possession or enjoyment, or any part of it, which can be deemed an estate in it; any person having a claim or interest in real property, though less than an absolute fee; one having an interest in or claim upon property much less than absolute and unqualified title; any person having an interest in the estate; any person having any estate, interest or easement in property; one who has complete dominion of the property owned; one who has dominion over that which is the subject of the ownership; one who has the right to own; the exclusive right of the possession; the legal or just claim of title; the proprietorship; any person who has the usufruct, control, or occupation of the land, whether his interest in it be less than a fee; anyone who has the right of possession to property; occupier; the occupant in possession; any person occupying or cultivating lands; the person or persons who represent a particular piece of property, where there is a unity of possession; a person in receipt of the rack rents; a person who receives beneficial returns from the land; every person in the possession or receipt either of the whole or any part of the rents and profits of any land or tenement or the occupation of such land or tenement, other than as tenant from year to year, or for any less term, or as tenant at will; any corporation or person enabled to sell and convey land; any one owning real estate whose interest is subject to payment of judgment." (29 Cyc., 1549 and 1550, and many cases there cited.)

In addition to the foregoing examples of the use of the word, all of which have been recognized by the courts, and some of which would undoubtedly seem to be broad enough to include the relation which, under his contract, Pepa bore to the house in question, there is in common parlance a loose and ill-defined application of the word to designate one who holds a house on a monthly renting or the like. This use of the English word "owner," while slovenly in the extreme and lacking in precision, is by no means infrequent, and we do not think that we would be justified in holding beyond a reasonable doubt that when the defendant, in a voucher prepared by him in English, a language which he was but superficially acquainted, certified that Pepa was the owner of the house in question, he was knowingly certifying to a statement false in fact, as he understood the meaning of the English words "owner of the building" used therein.

We have no reason to believe that when the postal authorities prepared the sample voucher which was followed by the defendant, and inserted the guide words "owner of the building" under the blank space reserved for the person with whom the rental contract was made, it was their intention thereby to indicate that the rental contract could not and should not be entered into with any other person than the owner in the strictest meaning of that word, that is to say, the person in whom was the fee simple. Indeed so far as it would appear from the record, these guide words were used in their broader colloquial signification, for the purpose of designating any person with lawful authority to make the rental contract; and in that sense, under the facts as hereinbefore set out, the contents of the vouchers in question were in strict accord with the truth, and the defendant can not be held guilty of the crime of the falsification.

Whatever may be said as to the wisdom or unwisdom, the propriety or impropriety, of defendant’s conduct in concealing or rather failing to disclose his interest in the house rented as a post-office, his failure to make this disclosure in a voucher prepared by him under instructions from his superiors, can not be said to be a falsification of such voucher when it does not appear that there was any obligation upon him to make such disclosure, or that the voucher as submitted contains any statement which is not in accord with the truth.

There was some suggestion in the evidence that the defendant’s contract with Pepa imposed upon the Pepa the obligation to turn over to defendant a small part of the monthly rent received by him, but we are unable to see how that fact, even if it be admitted as true, affects the main question involved in the case.

The judgment of conviction and sentence imposed by the trial court should be reversed, and the defendant acquitted of the crime with which he was charged and set at liberty forthwith, with the costs of both instances de officio. So ordered.

Arellano, C.J., Torres, Mapa, Johnson and Moreland, JJ., concur.

1. SHIPS AND SHIPPING; SALVAGE. — There being no express law in force in these Islands nor any positive provision in the Code of Commerce relative to the case, this court proceeds to judge and determine the question at issue concerning remuneration for certain salvage services, in accordance with the legal theory in practice in the United States and the jurisprudence established by the courts thereof.

2. ID.; REASONS FOR ALLOWING SALVAGE; COMPENSATION TO SALVING VESSEL. — Salvage is allowed to reward promptness, energy, efficiency, and heroic endeavor in saving life and property in peril, etc., but, however meritorious and worthy of praise be the action and cooperation of the officers and crew of the salving vessel, it is of capital importance to take into consideration the use and service of the said vessel as an indispensable instrument for the salvage, as well also as the danger to which it was exposed; whence it is unquestionable that both the owner of the salving vessel and the crew thereof are entitled to reward for the salvage service rendered.

3. ID.; ID.; THEORY AND PRACTICE OF UNITED STATES COURT; PARTIES. — The theory and jurisprudence of the courts of the United States does not oblique the owner of the salving vessel to make the said officers and crew parties to the suit in his claim before the courts for the just remuneration of salvage service, but permit him to continue the suit without prejudice to the rights the former may have to a part of the said remuneration, which is allotted proportionately in the discretion of the court; for the said officers and members of the crew may no longer be in the service of the shipowner and may have removed to other countries, wherefore it would be difficult to unite them of at least to rely upon the acquiescence of the absent parties, and it would not be equitable that, because of these circumstances, the shipowner should be deprived of the exercise of his right when he whose obligation it is to pay the remuneration refuses to do so extra judicially or does not heed the efforts of the creditors, notwithstanding the justice of the claim. (The Blackwall, 10 Wall. (U. S.) , 1, 12, 13; The Camanche, 8 Wall., 448, 474, 476).

On May 19, 1909, the firm of G. Urrutia & Co. filed suit in the Court of First Instance of the city of Manila against The Pasig Steamer and Lighter Company, alleging, among other particulars, that it is the owner of the steamer called Nuestra Señora del Pilar, registered in the port of Manila, provided with the proper licenses to navigate and do business in the waters of the Philippines, its cash value being P80,000, the cargo it carried, on the dates referred to in the claim, being P45,000; that the defendant is the owner of the steamer San Juan, registered at the port of Manila; that on or about the 6th of December, 1908, while a storm was raging, the said steamer Nuestra Señora del Pilar was proceeding toward the port of Legaspi, and twenty hours and thirty minutes after departure of the vessel a steamship displaying signal flags was sighted in the direction of Malabrigo, on which account the former ship steered toward the latter and it was seen that it was the San Juan, and the signals were "M.Y." — I am disabled, can not navigate. Will you tow me? "E. L. D." — Secure anchorage.

That thereupon the steamer Nuestra Señora del Pilar, with great risk to the vessel, salved the San Juan and took her to a safe port and that had it not been for the timely, prompt, and efficacious help rendered by the Nuestra Señora del Pilar, the San Juan and her cargo would have been totally lost; that the steamer salved had at the date of the salvage an actual and cash valued of P100,000, wherefore the just and adequate remuneration for the salvage service rendered by plaintiff’s steamer amounted to the sum of P40,000, the payment of which having been demanded of the defendant since the 15th of January, 1909, the said defendant, without objecting to the amount of the claim for the said service, does not pay the same and has been delaying payment under flimsy pretexts, and therefore the plaintiff prays the court to render judgment in its favor for the sum of P40,000, with legal interest thereon from the 15th of January, 1909, and the costs.

The defendant, being summoned to appear, filed a demurrer to the original complaint, alleging that the facts therein set forth did not constitute a cause of action against the defendant and that there was a defect of plaintiff parties.

On the 30th of June following the plaintiff presented a motion praying that the aforesaid demurrer be overruled and summons issued to the defendant; the court, by order of July 3, 1909, sustained the demurrer and declared that the plaintiff was entitled to amend the complaint by including therein the officers and crew of its ship as defendant parties, if they did not wish to be made plaintiffs. Against this decision the attorneys for the plaintiff took exception and by a writing of the 8th of the following July stated to the court that, in conformity with article 101 of the Code of Civil Procedure, they chose not to amend their client’s complaint by making the captain and officers of the said steamer parties thereto.

In view thereof, the court, by order of the same date, July 8, dismissed the complaint for the reasons it set forth, with the costs against the plaintiff. To this decision the latter excepted and announced their intention to file a bill of exceptions in the ordinary manner; this when filed was certified, approved, and forwarded to the clerk of this court.

The shipping firm owning the steamer Nuestra Señora del Pilar seeks to obtain compensation from the owners of the steamer San Juan for salvage services rendered by the former to the latter during a storm. The services were successfully rendered, at the request of the officers of the ship salved, which was conducted by the Nuestra Señora del Pilar to a safe port, and the compensation is not refused by the owners of the San Juan. The matter at issue, which is the subject of the appeal, is restricted to the question whether the company owning the Nuestra Señora del Pilar is compelled, in order to claim the said compensation, to make the officers and crew of the salving ship, Nuestra Señora del Pilar, parties plaintiff of defendant, as was decided affirmatively by the Court of First Instance.

Notwithstanding the fact that the case is not expressly provided for in the legislation in force in these Islands, especially in the Code of Commerce, inasmuch as it is a question of such an important service and of just compensation therefor, wherein the subjects might become international, under the principles of the common law, it is proper for this court to determine the question pending between the parties in accordance with the laws of the United States and the decisions of the courts of the same.

"Salvage is awarded to encourage promptness, energy, efficiency, and heroic endeavor in saving life and property in peril . . . ." (Vol. 24, Am. & Eng. Ency. of Law, p. 1222.)

"The owner of the saving vessel has always been considered as entitled to salvage reward for the use of his vessel in rendering salvage services, though he was not present when the salvage service was rendered." (Idem, p. 1195.)

The action and cooperation of the officers and crew of the salving vessel was meritorious and worthy of all praise, yet the use and service of the vessel, as an indispensable instrument for the salvage, was of the utmost importance, taking into consideration the danger to which the ship and the crew were exposed; therefore the latter and the owner of the salving vessel are unquestionably entitled to the remuneration which they have earned.

It sometimes happens that not all the officers and members of the crew remain in the service of the shipowner, but that, after rendering the salvage services, they depart for other distant countries, and it is difficult to reunite them or to rely upon the acquiescence of the absent ones; it is not right that the shipowner should be prevented by this circumstance from availing himself of his right to claim so just a remuneration before the courts, when he whose obligation it is to pay it refuses to do so extra judicially or does not heed the efforts of the creditor to obtain compensation, notwithstanding the justice of his claim.

Granting that the officers and members of the crew were entitled to a certain part of the remuneration, if the owner of the salving vessel makes claim for proper compensation in the courts, the theory and jurisprudence of the courts of the United States in North America do not compel him to make the said officers and crew parties to the suit without prejudice to any rights the former may have to a part of the said remuneration which is allotted proportionately in the discretion of the court.

For want of an express law in these Islands governing the matter, and since this court is obliged to decide the present litigation in accordance with the jurisprudence of the courts of the courts of the United States, we cite the following pertinent extracts from two decisions of the United States Supreme Court.

Justice Clifford, of the Supreme Court of the United States, who wrote the opinion in the case of The Blackwall (10 Wall. (U. S.) , 1, 12, 13), says:jgc:chanrobles.com.ph

"Salvors are not deprived of a remedy because another set of Salvors neglect or refuse to join in the suit, nor will such neglect of refusal benefit the libelants by giving them any claim to a larger compensation, as the non prosecution by one set of Salvors inures, not to the libelants prosecuting the claim, but to the owners of the property saved.

"Cases may also be found where cosalvors who neglected to appear and become parties to the suit until the decree was pronounced were allowed to petition the court for such compensation out of the fund in the registry of the court, and where their claim received a favorable adjudication.

"Objection is also made that the owners of a vessel can not promote a salvage suit unless they participate in the salvage service; or if they may promote such a suit, that they can not participate in the reward decreed for the salvage service except for the risk and damage to which their property was exposed in rendering the salvage service. Such an objection was made in the case of The Camanche, before cited, but the court overruled the objection, and that ruling is adopted and applied in this case."cralaw virtua1aw library

The same Justice Clifford, who delivered the opinion in the case of The Camanche (8 Wall. (U.S.) , 448, 474, and 476), among other things also says:jgc:chanrobles.com.ph

"Remuneration for salvage service is awarded to the owners of vessels, not because they are present, or supposed to be present when the service is rendered, but on account of the danger to which the service exposes their property and the Rick which they run of loss in suffering their vessels to engage in such perilous undertaking; . . .

"Next proposition of the claimants is that the libelants, even if they may be regarded as Salvors, were not the sole Salvors, and consequently that the decree of the circuit court ought not to be affirmed , as it would not be a bar to a subsequent suit for the same services if instituted by their employees.

"All persons interested may appear, on the return of the monition, and become parties to the suit, of proper proceeding, have their rights adjudicated; and in many cases, even after the decree upon the merits is pronounced, they may appear at any time before the fund is distributed and claim any interest they may have in the proceeds of the property libeled, if any, in the registry of the court, . . . ."cralaw virtua1aw library

Considering the doctrine established by the decisions quoted, and in of the fact that the plaintiff firm has chosen not to make the captain, officers, and crew of the steamer Nuestra Señora del Pilar parties in its claim, this court decrees that the trial shall continue in all due form, without prejudice to the said officers and crew exercising the rights that pertain to them, whenever they may deem proper.

For the foregoing reasons, and following the procedure observed in the United States, it is in our opinion proper to reverse, and we hereby reverse, the order of dismissal of the 8th of July, together with the previous order sustaining the demurrer, and the judge of first instance, to whom this decision shall be communicated, shall proceed with the present litigation in accordance with law. So ordered.

Arellano, C.J., Mapa, Johnson, Carson and Moreland, JJ., concur.

1. MURDER; PROVOCATION; ARTICLE 11, PENAL CODE; PENALTY. — When a person is killed by members of an uncivilized tribe while he is endeavoring to abduct the chief of the tribe, this circumstance should be considered in imposing the penalty; and when the members of such tribe are ignorant of law and order, impregnated with superstitions of a degrading character, under the influence of which it becomes to them a duty to take the life of another, who are without any of the elements of civilization, as that term is generally understood, and without any adequate conception of the value of human life, the mitigating circumstance of article 11 of the Penal Code ought to be applied and the death penalty should not be imposed.

The defendants in this case were convicted of the crime of murder by the Court of First Instance of the Province of Nueva Vizcaya and sentenced to death, to indemnify the heirs of Doctor Jones in the sum of P3,000, and to pay the costs of the action. This case comes to us en consulta.

All three accused are Igorots belonging to the tribe known as Ilongotes, living in the mountain districts of northern Luzon. They are accused of having murdered Dr. William Jones on the 29th of March, 1909, in the Province of Nueva Vizcaya. It appears that Doctor Jones was a naturalist and scientist engaged in original research in the district inhabited by the Ilongotes. During his stay among them he had received their constant aid in the prosecution of his investigations and every consideration at their hands which their simple and primitive condition could afford. The facts upon which the charge of murder is based are best stated by the only witness for the prosecution. He said:jgc:chanrobles.com.ph

"We reached the sitio of Pinapagan and Doctor Jones called the captain of the Ilongotes. The captain came there where Doctor Jones was at the sitio of Pinapagan, and he was ordered by Doctor Jones to bring the balsas (rafts) there; the captain answered Doctor Jones, saying that he would bring the balsas, but that his polistas were still looking for some of them and that they were not all prepared yet. Then the doctor asked him why he had not prepared the balsas as he had ordered him to prepare the balsas many days beforehand. Then the doctor told the captain that he would have to sleep there with us and get the balsas the following day. On the following morning Doctor Jones, in company with the captain, went to the river and there he said to the captain that as the balsas had not yet arrived we would all go to the place called Pung-gu and there wait for the arrival of the balsas which the captain’s people were to bring for him. And then we at once went to the Pung-gu, the doctor, myself, and the captain of the Ilongotes. Here at this place we waited for one-half of the day and at about 1 o’clock the Ilongotes arrived with only four balsas. The Ilongotes prepared chow for Doctor Jones and he ate, and after I had eated I told the doctor that it would be better for us to go back to Dumabato, but the doctor answered me, saying that he would wait a little longer and see if the Ilongotes would arrive with the other balsas. As the other balsas did not arrive, the doctor said that we would all have to leave for Dumabato and that we would have to take the captain of the Ilongotes along with us. And the doctor told the Ilongotes there that we would wait for the other balsas in the sitio called Dumabato. After this we went to the place where the balsas were with another Ilongote, who was our companion in our trip up to this place of Pung-gu. Doctor Jones took hold of the arm of the captain and said that he would have to come along with us to Dumabato to make sure that your people will bring the other balsas. He carried the captain of the Ilongotes to the bank of the river and tried to force him onto the balsa, but the captain of these Ilongotes did not want to go and resisted. Then the doctor told the other Ilongotes to take the balsas and leave, and then it was when Palidat came near the doctor as though to tell him good-by and promising to bring the other balsas the following day, and all at once he drew his bolo and hit the doctor in the head with it and then the other Ilongotes arose and took their bolos from their sheaths and began to attack the doctor. The Ilongotes Gacad and Maguen were the one nearest to Doctor Jones and were the ones who attacked him after Palidat. Gacad was the one who struck the doctor in the stomach with his lance. When I saw this I ran toward the doctor and that was when I saw the other Ilongote, and he wished to strike the doctor also. After the Ilongote Magueng had succeeded in hitting the doctor, I went at once to the doctor’s side and picked him up, because I saw that he was very gravely wounded and I placed him on the bank. And then the doctor gave me his revolver and I began to discharge the same at the Ilongotes and succeeded in driving them away. And then we went off to Dumabato."cralaw virtua1aw library

It does not appear that any ill-feeling had existed between the Ilongotes and the doctor prior to the assault. On the contrary, a specie of friendship apparently subsisted between them down to the moment of the attack.

The evidence produced by the prosecution for the conviction of the defendants was the testimony of the witness whose evidence is above quoted and the confessions of the defendants themselves, who, freely and voluntarily and without any attempt at concealment, told exactly what happened. It is significant to note that, in the confessions which they made of the acts committed in accomplishing the death of the doctor, the dominant feature appears to be that "we attacked the doctor because he was guilt." It is not evident from the proofs what the motive was, that is, what the doctor was guilty of, which actuated the defendants in attacking him unless it was the protection of their chief, whom the doctor had seized and was attempting forcibly to abduct. It was just about the time when the doctor was struggling with the chief, who was vigorously resisting the attempt to remove him from the midst of his tribe, that he was attacked by the defendants and killed. While this act of the doctor did not warrant the defendants in killing him, we are of the opinion that justice requires that it be used in their behalf in extenuating the punishment which should be imposed, as provided in article 9, subdivision 4 of the Penal Code.

We are convinced, upon the whole case, that justice and humanity require the application of article 11 of the Penal Code to the prisoners at bar. They were all members of an uncivilized tribe. They were reared in absolute ignorance of law and order. They were impregnated with superstitions of a degrading character, under the influence of which it frequently became the duty of one to take the life of another. They had not a single element of civilization, as that term is generally understood, and had not adequate conception of the value of human life. There is enough in the evidence to indicate that, if the facts in their favor had been fully brought out in the court below, it might have been possible to demonstrate that the act of Doctor Jones in attempting forcibly to remove their chief from their midst aroused among the tribe the highest form of resentment and required on their part the most vigorous action; and that they, laboring under such strong provocation and excitement, committed the fatal act from what was to them a high sense of duty and obligation, that of the protection of their chief, and not from cruelty and malice.

For these reasons, we are constrained to give the accused the benefit of article 11 of the Penal Code.

The judgment of the court below is, therefore, modified and the defendants are hereby sentenced to seventeen years four months and one day of cadena temporal, to indemnify the heirs of Doctor Jones in the sum of P1,000, and to pay the costs of this instance.

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

1. TRANSFER OF CLAIM FOR MONEY WON IN A GAME OF CHANCE. — Games of chance are prohibited by law and no action is permitted for the recovery of money won in any such a claim, and subsequently transferred to a third party, can give no validity to a debt based upon an illegal consideration.

On July 26, 1906, the plaintiff entered suit against the defendants, that is, against Francisco Martinez y Garcia and his judicially appointed guardian. It was alleged in the complaint that the said Martinez Garcia bound himself by a public instrument of the date of April 16, 1903, to pay to Jose Escalante y Espinosa, within six months from that date, the sum of 7,000 pesos, Mexican currency, which he therein declared and acknowledged that he owed to the latter because of alike amount received in cash. A copy of the said instrument, marked with the letter A, accompanied the complaint as a part thereof. On the same date, April 16, the aforesaid claim of 7,000 pesos was negotiated by the creditor Escalante, who transferred it to the plaintiff Azada y Lara in payment of an equal sum, and transmitted to him all the rights and actions he had against Martinez, substituting the latter in his place and conferring upon him the necessary powers for the collection of the said debt. On the same date, the debtor Martinez was duly notified of the transfer, and he acknowledged the same by affixing his signature thereto. A copy of the instrument of transfer and notification accompanies the record, under the letter B, and is made part of the complaint. Notwithstanding that the term of obligation had long since expired, and in spite of the various private and friendly negotiations had with the debtor and his guardian Vicente Ilustre, they had not paid the said claim up to the date of the complaint, they are indebted to the plaintiff for the entire sum; wherefore the latter asks that, after the proper proceedings, judgment be rendered against the defendants, directing them to pay to the plaintiff the sum of 7,000 pesos, Mexican currency, or the equivalent in Philippine currency, with legal interest from the date of the complaint, and costs.

The defendants having been summoned to appear, and the demurrer interposed to the complaint having been denied and exception filed by the guardian of the defendant Martinez, on September 5, 1906, the defendants in answer stated that with the exception of the contents of the first paragraph of the complaint they denied generally and specifically each and all of the allegations made in the rest of the complaint, and, as a special defense, they set forth that the sum of 7,000 pesos claimed by the plaintiff, on the ground of the false transfer made in his favor by Jose Escalante, was an imaginary sum which the latter had won from Francisco Martinez y Garcia illegally and fraudulently in a game of monte, on which account they pray that they be acquitted of the complaint, with the costs against the plaintiff.

By a writing of the 12th of September of the same year, the plaintiff denied the facts alleged as a special defense by the defendant in his answer and asked for a judgment for the amount claimed, with legal interest, and the costs.

The case having come to trial and oral evidence having been adduced by both parties, to the record of which were afterwards united the documents exhibited, the court, on the 19th of June, 1907, rendered judgment, acquitting the defendants of the complaint, with the costs against the plaintiff, who, on being informed thereof, filed an exception to the judgment and announced his intention to present the appropriate bill of exceptions. Moreover, he made a motion, in writing, for a new trial, on the ground that the facts did not justify the judgment of the court, which, he alleged, was contrary to law and the weight of the evidence. This motion was denied and exception thereto was taken by the appellant, who duly filed the bill of exception, which was approved, certified to, and forwarded to the office of the clerk of this court.

Claim is made in this litigation for the payment of a certain sum which the defendant Francisco Martinez had lost in a gambling game known as monte. Article 1798 of the Civil Code prescribes that:jgc:chanrobles.com.ph

"The law does not permit any action to claim what is won in a game of chance, luck, or hazard; but the person who loses can not recover what he may have voluntarily paid, unless there should have been fraud, or should he be a minor or incapacitated to administer his property."cralaw virtua1aw library

Games of chance, luck, or hazard being prohibited by substantive law, it is evident that the same could not permit such a game to support an action to enforce a claim for what was won, inasmuch as such games produce no civil obligation and, consequently, no action whatever may be brought the courts of justice which would receive the favor and protection of the law.

The circumstance of the document, Exhibit A, having been executed before a notary on April 16, 1903, by the defendant Martinez in favor of Jose Escalante, who, as proven at the trial, had won from the maker of the instrument the sum of 7,000 pesos, Mexican currency, as therein set forth, in a game of monte, and the circumstance of the apparent transfer of this sum by the so-called creditor Escalante to the plaintiff Rafael Azada y Lara by means of an instrument of the date — a transfer duly made known to the debtor Martinez — do not change the effects of the prohibition established in the above-quoted article, nor is it possible to perceive how, by the execution of the said instruments of debt and of transfer of the contracted in a game of chance like that of monte, one may lawfully elude the prohibitive provision of the law, inasmuch as, if there exists no obligation to pay what was won in an illicit game like that of monte, and if the law does not permit an action before the courts for its recovery, it likewise will not be permissible to demand the payment of such a debt merely because of its acknowledgment in a public instrument and its transfer to a third party by another instrument, which documents do not legalize the debt in face of the absolute prohibition of the law.

For the foregoing reasons, and in view of the fact that the judgment appealed from in found to be in accordance with law and the evidence contained in the records, it is proper in our opinion to affirm and we do hereby affirm the same, with the costs against the Appellant. So ordered.

Johnson, Carson, and Moreland, JJ., concur.

Arellano, C.J., and Mapa, J., dissent.

1. ACTIONS FOR THE RECOVERY OF REALTY; NUMEROUS PARTIES; CODE OF CIVIL PROCEDURE. — Section 118 of the Code of Civil Procedure, which refers to cases involving numerous parties and provides that under certain circumstances one or more may sue or defend for the benefit of all, does not apply to actions instituted for the recovery of real property. This class of actions should always be prosecuted by the real parties in interest and in the names of each and all them, in order that there may be a complete determination of all the questions at issue, in accordance with section 114 of the said code.

This is a suit for the recovery of land. It is said textually in the complaint, among other things, "that both the plaintiffs and the defendants are so numerous that it is impossible for them to appear at the trial; that the said Pablo Rallonza and Teodoro Evangelista are sufficient to represent the interests of the rest of the plaintiffs and defendants, respectively." And in accordance therewith the trial was continued in the name of the said Rallonza and Evangelista only, though they both represented, as it appears, all the other interested parties, who were very numerous, both plaintiffs and defendants, according to the statement contained in the complaint. After all the evidence had been submitted, the Court of First Instance rendered judgment as follows:jgc:chanrobles.com.ph

"Pablo Rallonza, and many others not mentioned by name, claim the ownership of the land described in the complaint and situated at the place called Puritac, Paoay, Ilocos Norte, as against Teodoro Evangelista and many others, likewise not mentioned by name, the former alleging that the latter unlawfully occupy the same.

"The defendant denies the charge.

"It appears by the evidence that the original owner of the lands of Puritac and Badio of Salamanca, Paoay, Ilocos Norte, was Felix Duque; that the latter’s heirs, whose names or number are not given, covenanted with the Pagdilao family of Badoc, without any stipulation as to who or how many composed the family, to divide the said lands and bring water thereon for irrigation, that it is likewise not shown, nor among whom it was made; that it is likewise reserved undivided, and what parcels were not reserved; of the descendants of Felix Duque, nor who are those of in the work on the irrigation ditches and in the division of the lands.

"Although it appears, by the record, that certain persons belonging either to the Duque family or to the Pagdilao family apparently executed acts of dominion over specific parcels of the said lands, it is certain that it is not possible to determine whether the said persons were or were not the owners, because the real division, which is alleged to have been made, is not known, so that the litigating parties themselves do not know and can not say who are the plaintiffs and who are plaintiffs and who are the defendants, or better said, it is not known who are the owners and which are the properties that pertain to them, neither in general nor in particular.

"Not being able, for the reasons forth, to determine who is the owner or who are the owners of the lands in question, the court acquits the defendant of the complaint, without special finding special finding of costs."cralaw virtua1aw library

In view of the premises established in the judgment, and which accord with the weight of the evidence and the allegation made in the complaint that the parties interested in the lands in litigation, both as plaintiffs and as defendants, are very numerous, it is evident that the suit was improperly prosecuted and decided in the name of all the aforesaid interested parties to whom reference is made, under the supposition that the latter were represented therein by Pablo Rallonza and Teodoro Evangelista, respectively, the only ones who personally appeared in their own right and in representation of the former at the trial.

It appears that the parties proceeded as hereinbefore related because of the provisions of section 118 of the Code of Procedure in Civil Actions. The text of this section is as follows:jgc:chanrobles.com.ph

"SEC. 118. Numerous parties. — When the subject-matter of the controversy is one of common or general interest to many persons, and the parties are so numerous that it is impracticable to bring them all before the court, one or more may sue or defend for the benefit of all. But in such case any party in interest shall have a right to intervene in protection of his individual interest, and the court shall make sure that the parties actually before it are sufficiently numerous and represented so that all interests concerned are fully protected."cralaw virtua1aw library

Whatever be the real meaning of those provisions, under the different aspects in which they may be considered, we hold it to be certain and unquestionable that they ought not to and can not apply to actions instituted, as in the present case, for the recovery of property. This class of actions always be promoted by the interested parties themselves and in the name of all and each one of them, in order that, as stated in section 114 of the aforementioned code of procedure, there may be a determination or complete settlement of the questions in litigation. He who considers himself entitled to a certain property can not be ignorant as to who are his coowners, if he has any; and, knowing them, he can not neglect to make them parties to the suit under the pretext that they are numerous. This sole circumstance does not make their summons and appearance impossible when they are numerous. In such a case, the reason or motive inspiring the provisions of section 118 would be lacking. The representation made by as defendant, can not bind their respective coowners, as regards the results of the trial, inasmuch as it is altogether illegal. The trial, considered from this point of view, was essentially null and void from the beginning.

The judgment appealed from is set aside, and it is ordered that a new trial be held wherein those interested in the lands in question shall be made parties, either as plaintiffs or as defendants. So ordered.

Arellano, C.J., Torres and Carson, JJ., concur.

1. LOSS OF PROPERTY BY REASON OF ADVERSE POSSESSION. — The loss of possession enumerated in article 460 of the Civil Code, by reason of which a person may be deprived of his right to property after it has been possessed by another for more than one year, means possession de facto and not de jure. (Bishop of Cebu v. Mangaron, 6 Phil. Rep., 286.)

This suit involves the possession of a piece of land a and the issuance of an injunction. The lower court decided the case in favor of the plaintiff and the defendants appealed from the judgment to this court.

The text of the judgment appealed from, in the part thereof necessary to quote, is as follows:jgc:chanrobles.com.ph

"The court finds that along in the year 1899 the plaintiff, Leon Caballero, obtained possession of the said land and continued possessing it until the year 1904. Since then, by mutual agreement between him and the defendants, he utilized the services of the latter for the cultivation of the said land, in the character of tenants on shares, the products obtained therefrom to be divided by halves.

"From the year 1899 the defendants, in their capacity above expressed, cultivated the land in question and sowed it to rice and, until the year 1904, shared its products with the plaintiff in the manner covenanted by them.

"The court finds that since the crop of the year 1905, the defendants, notwithstanding their continuing to cultivate the aforesaid land as tenants on shares of the plaintiff, refused until 1906 to give him the part of the crop that corresponded to him and, taking advantage of the fact that they held the land under their control as employees of the and against his will, and refused not only to deliver to him the part of the products that corresponded to him during the said two years, but also deliver to the plaintiff the possession of the land.



"The court finds that the crops mentioned (those of 1905 and 1906) were regularly produced, and that the plaintiff having received as his share of the last crop, that is, in the year 1904, some 60 cavanes of unhulled rice, the share that should correspond to him of the crops appropriated by the defendants in the two years mentioned ought to be adjusted according to the amount of the last annual crop. The price of unhulled rice in the municipality of Minglanilla during the said two years was 3 pesos a cavan. The most approximate calculation shows that Estefania Abellana obtain a crop of 60 cavanes the last year that she gave a share of it to the plaintiff, the half of which amount, or 30 cavanes, corresponded to the latter. During the same period, Serapio Mabunay ought to have delivered to the plaintiff about 12 cavanes, Gervasio Pakada 10 cavanes, and each one of the last two defendants 4 cavanes; and in this proportion they should have delivered to the plaintiff annually his proper share of the last two crops.

"The defendants allege in their answer that they hold exclusive possession of the land in question. The court finds that they had such possession only in their capacity of laborers or tenants on shares of the plaintiff.

"The plaintiff, Leon Caballero, in view of the facts set forth, is the possessor of the land in litigation; and the defendants having taken such possession from him illegally and without any right, he should be reinstated in the possession and exclusive usufruct of the said land.



"And as the defendants are impeding the plaintiff from cultivating the said land and from exercising over it all the possessory acts to which he is entitled, it is proper that this court issue in his favor a permanent injunction against the defendants.

"By reason of all the foregoing, and in accordance with the findings of fact and law above given, the court orders that judgment be entered against the defendants, sentencing them to restore to the plaintiff the land at issue, as described in the complaint, and to deliver to the plaintiff 120 cavanes of unhulled rice in the following proportion: Estefania Abellana must deliver 60 cavanes; Serapio Mabunay, 24 cavanes; Gervasio Pakada, 20 cavanes; and each one of the last two defendants, 8 cavanes; and in the event of default, they shall pay to the plaintiff the equivalent price therefor at the rate of 3 pesos a cavan, in the proportion indicated. The costs of this action shall be paid by the defendants severally and in solidum, and it is further ordered that an injunction shall issue against the said defendants prohibiting them from this date from hindering the plaintiff in his work on the land in question and his exercise over the save of any possessory acts whatsoever to which he has a right."cralaw virtua1aw library

Having carefully examined the evidence, we find that the weight thereof is not against the findings of facts recorded in the judgment appealed from, although the defendants also presented evidence to support their allegations. The judgment therefore must be affirmed, since the findings therein contained are merely the legal conclusions based upon the facts deemed to have been established.

The appellants, however, allege the following:jgc:chanrobles.com.ph

"According to the judgment appealed from, the acts negatory of the possessory right claimed by the plaintiff commenced, on the part of the defendants, in the year 1905, and as the action was instituted in January, 1907, this case undoubtedly falls under No. 4 of article 460 of the Civil Code, according to which the possessor may lose his possession of another, if the new possession has lasted for more than one year."cralaw virtua1aw library

The true meaning of this legal provision has been already extensively discussed and stated in the case of The Bishop of Cebu v. Mangaron (6 Phil. Rep., 286). In short, it possession de facto and not possession de jure, wherefore it is not applicable to the present case which involves the last-mentioned kind of possession.

The judgment appealed from is affirmed, with the costs of this instance against the Appellant. So ordered.

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

1. "ESTAFA;" SALE ON CREDIT. — The person who receives merchandise from another on credit, though afterwards the credit be discontinued, but subsequently renewed because of his apparently conducting his business in a manner which appears to justify it, and then does not pay for what he owes on account of such credit, does not thereby commit the crime of estafa, which it is evident he would not have committed by availing himself of the credit in the beginning.

On the 27th of May, 1908, the complaint was filed against Tan Tok. The crime charged was estafa, consisting in that on the 1st of April, 1908, he had been sold upon credit a bale of gray cloth for P260, and this bale afterwards appeared included in an attachment, made on petition of Findlay & Co., of the store at No. 144 Calle Rosario, as of the property of another Chinaman named Uy Chieng Can and sold as a result of Findlay & Co.’s claim against this other Chinaman — Behn, Meyer & Co., who had sold the bale to Tan Tok, losing the price thereof. Had Tan Tok not assured Behn, Meyer & Co. that the store at No. 144 was exclusively his and that he had already severed connections with the business carried on by Uy Chieng Can, who conducted the store at No. 156 on the same street, he would not have been trusted with that bale of gray cloth valued at P260.

The order for the merchandise was given by Tan Tok to Behn, Meyer & Co. on March 26, 1908. On April 1 or 2 the bale was taken to the store at No. 144, which was supposed to belong to Tan Tok. On April 4, 1908, the document evidencing the debt for the price of the bale, that is, for P260, was signed. First it was signed with a square stamp, which meant nothing. The document was again taken to the store at No. 144 and was returned signed with another stamp which reads: "Benito Uy Chieng Can, Rosario, 156."cralaw virtua1aw library

Tan Tok says that on March 29, 1908, the said store at No. 144 was sold by him to Uy Chieng Can.

So that when, on April 1 or 2, 1908, the bale of gray cloth ordered by Tan Tok on the 26th of March previous was received in the said store, it was in fact received in a store belonging to Uy Chieng Can, and this is how that document of debt for the price of the bale appears as signed by Uy Chieng Can; and Deogracias Zamora, a clerk in the employ of Behn, Meyer & Co., says that he called the matter to the attention of a principal employee of the firm, who had Tan Tok come to the office; but what the said employee did afterwards does not appear in the record.

Up to May, when the bale in question was in the possession of the sheriff for sale, the only thing done was to prosecute the criminal action for estafa.

In this class of operations where, with more or less caution, one relies upon a person’s credit, there is no estafa. If a person already enjoyed credit and it was afterwards withdrawn, but subsequently, because of his apparently conducting his operations in a manner which appears to warrant it he again secures credit and does not pay for what he gets by reason of the credit thus continued, he does not thereby commit the crime of estafa, which it is evident he would not have committed by availing himself of the credit in the beginning.

To the creditor, the firm of Behn, Meyer & Co., is reserved the right to bring such civil action as may be proper for the recovery of the value of the merchandise sold upon credit, against the debtor. Tan Tok, or whoever may be found to be indebted for its price.

The judgment of the Court of First Instance of the city of Manila is reversed, with costs in both instances de oficio. So ordered.

Torres, Mapa, Johnson, Carson and Moreland, JJ., concur.

1. ESTATES; DONATION INTER VIVOS; TRANSMISSION OF OWNERSHIP. — By virtue of a donation inter vivos, wherein the requirements prescribed by law for its validity and force have been complied with, the dominion over the thing donated is transmitted to the donee, who, by operation of the law and in fact, acquires the ownership of the same, as customarily occurs in all contracts of transfer of dominion.

2. ID.; ID.; QUESTIONS TO BE DECIDED AT REGULAR TRIAL; DEMURRER. — Questions arising as to the nullity or irregular nature of a donation, and which affect its validity and force, or some excess which may require reduction, must be argued and decided in accordance with law at a regular trial and by a final judgment, and not by a ruling upon a demurrer.

3. ID.; ID.; QUESTIONS NOT TO BE DECIDED IN PROBATE PROCEEDINGS. — Neither shall the questions mentioned be decided in an incidental trial concerning testate or intestate proceedings, for the reason that the thing donated is no longer the property of the deceased donor, nor does it form a part of the hereditary estate, but belongs to the donee until by executory judgment the donation be declared null and irregular.

4. ID.; ID.; MATTERS TO BE DECIDED AT REGULAR TRIAL; DEMURRER. — The question as to whether the provisions of articles 634, 636, 643, and others of the Civil Code, were observed or violated, shall be argued and examined in a regular trial and decided, according to the allegations adduced and proved, by final judgment, and not upon demurrer.

5. ID.; ID.; STATUS OF DONEE INTER VIVOS. — In section 704 of the Code of Civil Procedure, according to the English text, which, in case of disagreement with the Spanish, is the one that must prevail, as prescribed by Act No. 63 of the Philippine Commission, the donee inter vivos, who has a status different from the heirs and the devisees, is not comprised among the latter.

On October 13, 1908, Ricardo Lopez, in his own behalf, Josefina Lopez y Jaucian and her husband, Ceferino M. Villareal, and Encarnacion, Jose, and Amparo Lopez y Jaucian brought suit against Adolfo Olbes, the testamentary executor of the deceased Martina Lopez, alleging in their complaint that the latter, on the 14th of May, 1907, executed a public instrument before the notary Felix Samson whereby she donated to the plaintiffs a parcel of hemp land situated at the place called Ali, in the pueblo of Guinobatan, Albay, containing an area of 162 hectares, 2 ares, and 50 centares, the boundaries of which are expressed in the said instrument; that this property was inscribed in the registry of property of Albay in the name of the deceased Antonio Lopez, the predecessor in interest of the said Martina Lopez, also deceased; that, by virtue of the said donation, Ricardo Lopez was entitled to the usufruct of the real property concerned, and that the other plaintiffs, Josefina, Encarnacion, Jose, and Amparo, all surnamed Lopez y Jaucian, were the equal owners thereof in fee simple; that on the same date, May 14, 1907, the said donation was accepted by Ricardo Lopez on his own behalf and in representation of the minor children above designated, and the donor, Martina Lopez on the same date, was duly notified of the said acceptance; that the said Martina Lopez was the legitimate mother of the plaintiff Ricardo Lopez, and the other plaintiffs, Josefina, Encarnacion, Jose, and Amparo, the legitimate children of Ricardo Lopez, were her legitimate grand-children; that Adolfo Olbes was the testamentary executor duly appointed by order issued by the Court of First Instance, on April 22, 1908, in proceedings No. 918, entitled: In the matter of the estate of the deceased Martina Lopez; that the said Olbes, as executor, claimed to have rights of ownership and possession to the aforementioned land adverse to those then held by the plaintiffs, inasmuch as the said estate still continued to belong to the deceased Martina Lopez and was then in charge of a trustee by virtue of an agreement had between the attorneys of the executor and the plaintiff Ricardo Lopez, on April 18, and of the order issued by the court on the same date in the aforesaid probate proceedings; and the complaint concluded by asking that a guardian ad litem be appointed, who should be the said Ricardo Lopez, to represent his minor children, also plaintiffs; that judgment be rendered in the latter’s favor and against the defendant for the ownership and possession of the said land, and that the trusteeship over the same be declared dissolved and the trustee be ordered to render an accounting, and that the amounts or products which he might have in his possession be adjudicated to the plaintiffs, with the costs against the defendant.

The defendant, having been summoned, filed a demurrer in writing, on November 23, 1908, alleging that the facts set forth in the complaint did not constitute a right of action, inasmuch as the plaintiffs, as the heirs or donees, could not maintain any suit against the testamentary executor to recover the title or possession of the land so long as the court had not adjudicated the estate to them or until the time allowed for paying the debts should have expired, unless they be given possession of the said land by the executor.

Counsel for the plaintiffs, in answer to the demurrer, set forth that the terms of section 704 of the Code of Civil Procedure do not comprise donees, but merely heirs or devisees, because, although in the first part of the said section the word donatario (donee) appears, the subsequent paragraphs contain only the words heredero o legatario (heir or devisee), it appearing to be evident that the Spanish translation of the said section is not correct; the English text thereof is given wherein the word "donee" does not appear, only the words "heir" and "devisee," which mean heredero and legatario; this is apparently confirmed by the precedents of existing legislation, quoted by counsel, and therefore the prohibition contained in the aforesaid section of the Code of Civil Procedure only refers to the heir or devisee, and in nowise to the donee, whose title is derived from a donation inter vivos, the legal effects of which are those of a real contract which is binding on the donor from the moment of its acceptance; that the donations which are to become effective inter vivos are governed by the provisions concerning contracts and obligations (art. 621, Civil Code), and that the rule that the plaintiffs’ right can not be enforced in an ordinary action, but in probate proceedings only, solely refers to the questions involving the status of heirs and their share in the inheritance and not to that class of actions provided for in section 699 of the Code of Civil Procedure, counsel citing decisions rendered in suits against testamentary executors or administrators, as the case of Hijos de I. de la Rama v. The Estate of Benedicto (5 Phil. Rep., 512), and that of Sunico v. Chuidian (9 Phil. Rep., 625); and for all the foregoing reasons the plaintiffs requested that he demurrer interposed by the defendant be dismissed and that he be ordered to answer the complaint within the period allowed by law.

The demurrer having been heard, the judge, on February 26, 1909, issued an order sustaining the said demurrer and directing that the same, as an incidental proceeding, be attached to the record of the probate proceedings of the deceased Martina Lopez.

By virtue of the petition presented by the plaintiffs asking for final judgment and the appointment of Ricardo Lopez as guardian ad litem of the other plaintiff minors, the judge issued an order on March 6, 1909, amending the preceding one by admitting the demurrer authorizing the plaintiff to amend his complaint, with the understanding that should he not file an amended complaint within the time allowed by law the case would be dismissed, with the costs against the plaintiff; this order was attached to the record of the said probate proceedings, and he appointed Ricardo Lopez guardian ad litem to represent the minor plaintiffs in the litigation.

On March 9, 1909, the plaintiffs filed a written amended complaint, a reproduction of the previous one, although this was done by Ricardo Lopez on his own behalf and in representation of his minor children, also plaintiffs, as their guardian ad litem, and by Ceferino M. Villareal as the husband of the plaintiff Josefina Lopez.

The defendant, being informed of the foregoing amended complaint, again demurred to the same on the grounds that the facts therein alleged did not constitute a right of action, inasmuch as in the amended complaint, which is a reproduction of the previous one, no new allegation was made that might supply the deficiency of right of action on the part of the plaintiffs in their endeavor to obtain a reversal of the judgment rendered, without employing legal remedies against the order of March 6; wherefore the defendant prayed the court to allow this new demurrer, to dismiss the amended complaint, and to adjudge the plaintiffs to pay the costs.

The hearing on this demurrer having been had, the judge, by order of March 24, 1909, sustained the same and dismissed the case with the costs against the plaintiffs, and provided that this question should be determined in the hearing on the said probate proceedings.

In another document of the date of March 26, 1909, counsel for the plaintiffs stated to the court that the latter desired to appeal from the said ruling to the Supreme Court, and prayed that final judgment be rendered in the case in conformity with section 101 of the Code of Civil Procedure and the doctrine established in the case of Serrano v. Serrano (9 Phil. Rep., 142), in order that he might perfect and duly submit his appeal; but the court, by an order of the 27th of the same month, ruled that the case having been dismissed, with the costs against the plaintiffs, in the ruling on the last demurrer of March 24, this decision was final and appealable. From this ruling counsel for the plaintiffs appealed and stated in writing that the latter also appealed from the rulings of February 26 and March 24, 1909, and announced their intention to file the requisite bill of exceptions.

The court, by order of May 8, 1909, on the grounds there in set forth and in view of plaintiffs’ written petition of March 26, rendered judgment against the plaintiffs and in favor of the defendant, and finding that the allegations made in complaint were not sufficient to constitute an action, dismissed the complaint with the costs against the plaintiffs, and ordered, moreover, that after the parties had been notified of this judgment a copy thereof, as an integral part of the bill of exceptions submitted, be forwarded to the Supreme Court.

This is a question of maintaining the rights acquired by the plaintiffs by virtue of a donation of land situated at the place called Ali, in the pueblo of Guinobatan, Albay, the boundaries of which are expressed in the complaint, against the claims of the testamentary administrator of the property left by the late Martina Lopez, who was the donor of the said land.

Although in paragraph No. 5 of the amended complaint the donees affirm that they took possession of the land in question, it is certain that the executor, who claims to have rights as such to the possession of the said land, succeeded in having the same placed in trust, inasmuch as one of the petitions of the plaintiffs is to request that the trusteeship over the property be declared dissolved. The Civil Code provides as follows:jgc:chanrobles.com.ph

"ART. 618. A gift is an act of liberality by which a person disposes gratuitously of a thing in favor of another, who accepts it."cralaw virtua1aw library

"ART. 624. All persons who can contract and dispose of their property may bestow gifts.

"ART. 625. All persons who are not especially disqualified by law therefore may accept gifts."cralaw virtua1aw library

"ART. 620. Gifts which are to become effective upon the death of the donor partake of the nature of provisions by last will and shall be governed by the laws established for testamentary succession."cralaw virtua1aw library

(These gifts are denominated in law mortis causa.)

"ART. 621. Gifts which are to produce their effects inter vivos shall be governed by the general provisions of contracts and obligations in all that is not determined in this title."cralaw virtua1aw library

"ART. 623. A gift is consummated upon the donor having knowledge of its acceptance by the donee."cralaw virtua1aw library

"ART. 633. In order that a gift of real property may be valid it shall be made in a public instrument, stating therein in detail the property bestowed as a gift and the amount of the charges, which the donee must satisfy.

"The acceptance may be made in the same instrument bestowing the gift or in a different one; but it shall produce no effect if not made during the life of the donor.

"If made in a different instrument the acceptance shall be communicated to the donor in an authentic manner, and this proceeding shall be recorded in both instruments."cralaw virtua1aw library

The action exercised by Ricardo Lopez in his own behalf and as guardian of his minor children, and by Josefina Lopez, assisted by her husband Ceferino M. Villareal, in their character of donees, is based on the rights which as such donees they had acquired by virtue of the donation inter vivos made by Martina Lopez during her lifetime in favor of the plaintiffs by an instrument executed by the donor before a notary on May 14, 1907, a donation expressly accepted on the same date by the donees and of which acceptance the donor was also informed on the same date; wherefore, these requirements of the law having been complied with, it is unquestionable that the dominion over the land donated was properly transmitted to the donees who in fact and by operation of the law acquired the ownership of the property, as customarily occurs in all contracts of transfer of dominion.

The said action with its motive and grounds may be impugned for any reason based on the nullity or on the irregular nature of the donation, tending to make it in efficacious or to reduce it; but these exceptions, as well as those founded on some defect or vice, which affect the essential nature and formalities of the act or contract or the main questions relative thereto, must be heard and argued in an ordinary action, and must be decided in accordance with law by a final judgment, and not by a ruling on a demurrer which ordinarily occurs in connection with an incidental motion concerning mere formalities of procedure and not in a full trial or due process of law wherein the rights of the contestants have been examined, argued, and proved.

Property of the testate estate of the deceased Martina Lopez is not here concerned. During her lifetime she gave away the land mentioned, in the exercise of a right that pertained to her as owner thereof. By virtue of the said donation the sole and true owners of the land donated are the plaintiffs, so long as the said donation is not proven to be null, in efficacious, or irregular. All the questions which by reason of the same are raised by the interested parties must be heard in a regular trial and decided by a final judgment absolutely independent of the probate proceedings concerning the estate of the deceased, who was the previous owner of the land concerned; and therefore the complaint of the donees should not have been dismissed, but the trial should have been proceeded with to final judgment. The prima facie donation inter vivos and its acceptance by the donees having been proved by means of a public instrument, and the donor having been duly notified of said acceptance, the contract is perfect and obligatory and it is perfectly in order to demand its fulfillment, unless an exception is proved which is based on some legal reason opportunely alleged by the donor or her heirs.

So long as the donation in question has been judicially proved and declared to be null, in efficacious, or irregular, the land donated is of the absolute ownership of the donees and, consequently, does not form a part of the property of the estate of the deceased Martina Lopez; wherefore the action instituted demanding compliance with the contract, the delivery by the deforciant of the land donated, or that it be prohibited to disturb the right of the donees, should not be considered as incidental to the probate proceedings aforementioned.

The question as to whether the provisions of articles 634, 636, and 643 of the Civil Code were observed or violated should be tried and decided in an ordinary action.

With respect to whether the donees inter vivos are or are not comprised within the provisions of section 704 of the Code of Civil Procedure, the English text of the said section, which, in case of disagreement with the Spanish, is the one that must prevail and be observed, in accordance with Act No. 63 of the Philippine Commission, conclusively proves that an important mistake was made in the draft of the Spanish text, by using the word donatario (donee), which is not expressed in the English text, the exact translation of which into Spanish could not comprise the donee among the heirs and devisees, as was improperly done; wherefore the demurrer should have been overruled, as it is based on an error so notably unmaintainable under the general principles of law, and in particular taking into account the legal provisions relative to the respective character, condition, and juridical conception of heir, devisee, and donee.

For the foregoing reasons, we hold that the orders of February 26, March 6, 24, and 27, together with the additional order of May 8, 1909, should be and are hereby revoked, and the case shall be returned to the Court of First Instance in order that the defendant may answer the amended complaint within the regular legal period and the trial may then be had in all its proceedings and in accordance with law. So ordered.

Johnson, Carson and Moreland, JJ., concur.

1. CRIMINAL PRACTICE AND PROCEDURE; CONCLUSIONS OF TRIAL COURT AS TO CREDIBILITY OF WITNESSES. — It is the peculiar province of the trial court to resolve the questions as to the credibility of witnesses and, unless there is something in the record which by fair interpretation impeaches the resolutions of the trial court, this court will assume that the court below acted fairly, justly, and lawfully.

The defendant was convicted in the Court of First Instance of the Province of Isabela de Luzon of the crime of murder and sentenced to life imprisonment, accessories, indemnification, and costs. He appealed.

The court below found the following facts to have been established by the proofs:jgc:chanrobles.com.ph

"It appears from the evidence in this case that about 11 o’clock on the night of March 1, 1909, the accused, Juan Pico, accompanied by Fernando Rustant, Maximo Teves, Francisco Baquiran, Hermogenes Ramos, and a deaf-mute, named Jose Balayan, all employees of the hacienda of ’Maluno,’ of which the accused is administrator, went to the house of Eulogio Castellanes, which is situated on the said hacienda of ’Maluno;’ that, on arriving at the house of the said Eulogio Castellanes, the accused fired two shots from a gun which he carried; that he then called to Eulogio Castellanes to awake and to open the door; that Eulogio Castellanes obeyed, and when the door was opened the accused, Maximo Teves, and Francisco Baquiran entered the house; that the accused asked Eulogio Castellanes if he had any guests in his house and that Castellanes answered that there was a Chinaman sleeping in another room; that the accused then entered the room where the Chinaman, whose name appears to have been Go-Siengco, was sleeping and called him three times, and the Chinaman failing to get up as directed, the accused struck him with the gun which he carried; that the Chinaman then awoke, and the accused attempting to strike him again with the gun, the Chinaman caught the gun and held it until Francisco Baquiran, coming between the accused and the Chinaman, separated them; that the accused then ordered Francisco Baquiran to bring the Chinaman outside, and Baquiran brought the Chinaman downstairs and out of the house; that the accused then ordered the deaf-mute Jose Balayan and Hermogenes Ramos to tie the arms of the Chinaman, which they did, and the Chinaman refusing to walk in the direction of the casa-hacienda where the accused lived, the accused struck him several times with his gun, and that, on arriving at the said casa-hacienda, the Chinaman was in a state of collapse and could not speak as the result of the blows inflicted on him by the accused, and that the accused was obliged to awaken other employees and servants of the hacienda named Anacleto Duarte and Bienvenido Duarte and one Guillermo to help carry the deceased up the stairs of the casa-hacienda; that the said Hermogenes Ramos, the man named Guillermo, Bienvenido Duarte, Anacleto duarte, and the deaf-mute carried the Chinaman upstairs and into the room of the said casa-hacienda, which is called the cuarto de orden, where the Chinaman died about four hours later, or at about 4 o’clock on the morning of March 2; that at 8 o’clock on the morning of the said 2d of March, by direction of the accused, the deceased Chinaman was buried on the hacienda of ’Maluno,’ and on the 5th of March the body was exhumed by order of the justice of the peace of the municipality of Ilagan, and Nicasio Claravall, president of the board of health of the said municipality, assisted by a practicante named Jose Banta, made a post-mortem examination of the body; that the body showed plainly the marks of the violent treatment to which the deceased man had been subjected at the hands of the accused on the night in question."cralaw virtua1aw library

The only question presented by the defense on this appeal is one of fact. The constant assertion of the accused is that the Government has not proved its case against him. It is conceded in effect, however, that if the testimony of the witnesses for the prosecution is true the defendant is guilty. That he is guilty if the witnesses of the Government are to be believed is beyond possibility of doubt. The real question resolves itself ultimately, then, into the question of the credibility of the witnessed. We have said in a recent case that where there is a conflict in the testimony of witnesses the peculiar province of the trial court is to resolve the question of credibility, and, unless there is something in the record impeaching by fair interpretation the resolution of the trial court in relation to that question, this court will assume that he acted fairly, justly, and legally in the exercise of that function. We have read the evidence adduced on the trial with great care. The testimony of the witnesses Castellanes, Baquiran, Bienvenido Duarte, Anacleto Duarte, Magas, Balayan, Claravall, Banta, Bayad, and Eugenio, produced by the prosecution, is clear, direct, unequivocal, and powerful, disclosing no elements of untruth. Their probative force is overwhelming. They support in the very clearest and most forcible manner the findings of the trial court.

We have only one criticism of the judgment below. We are convinced that the court, in imposing the penalty, should have taken into consideration in favor of the accused the extenuating circumstance described in article 9, subdivision 3, of the Penal Code, namely, that "the delinquent had not intention of committing so grave an injury as that which he inflicted." There not having been present any aggravating circumstance, the penalty should have been imposed in its minimum degree.

The judgment of the court below is hereby modified, and the defendant is hereby sentenced to seventeen years four months and one day of cadena temporal, to the accessories provided by law, to indemnify the heirs of the deceased in the sum of P1,000, and to pay the costs of the trial. So modified the judgment is affirmed, with the costs of this instance against the Appellant.

The defendant makes a motion for a new trial, alleging the discovery of new and material evidence which could not have been discovered before the trial in the court below by the exercise of reasonable diligence and which is of such a character as probably to change the result. In support of his motion he presents his own affidavit and the affidavits of Hermogenes Ramos and Maria del Pilar. In his statement Ramos swears that on the night in question he was riding a carabao upon the road along which the Chinaman, Go-Siengco, was being conducted from the house of Castellanes to that of the accused; that the Chinaman walked well; that he saw Balayan, the deaf-mute, a witness for the prosecution, suddenly strike the Chinaman three heavy blows with the butt of a gun, on receiving which the Chinaman fell to the ground; that Balayan picked him up and they passed on toward defendant’s house; that affiant approached closer and Balayan told him that he had struck the Chinaman three blows with his gun; that soon thereafter Balayan again struck the Chinaman in the right side with his gun, causing the Chinaman to cry out with pain; that the next morning Balayan told him that the Chinaman was dead, having succumbed to the blows which he had given him the night before. Maria del Pilar states in her affidavit that she is the mother of Balayan and that she heard him tell the wife of the accused after the trial, in response to the question why he had sworn against her husband at the hearing of the cause, that he had sworn against the accused for fear of some Chinamen and the sergeant of police of Ilagan, who told him that they would shoot him and hang him unless he so testified.

We do not believe that the motion for a new trial ought in justice to be granted. It has been held by this court that a new trial will not be granted "unless the following conditions exist: (1) The evidence must have been discovered since the trial; (2) it must be such that with the use of reasonable diligence on the part of the defendant it could not have been secured on the former trial; (3) it must be material and not merely collateral or cumulative or corroborative or impeaching; (4) it must be such as ought to produce a different result on the merits on another trial; (5) it must go to the merits, and not rest on a merely technical defense." (U.S. v. Luzon, 4 Phil. Rep., 343.)

In the case at bar it was fully known to the defendant that Hermogenes Ramos was a very material and important witness since he was one of those, according to the defendant’s own proof, who accompanied the Chinaman from the house of Castellanes to that of the accused. No effort whatever was made by the defendant to secure the attendance of this man as a witness on the trial. Moreover the evidence which the defendant offers to present on the occasion of a new trial is contradictory in the extreme to the evidence which he actually presented on trial at which he was convicted. There it was contended stoutly, and evidence was adduced by him to support that contention, that the Chinaman was not assaulted or struck by any person in any way from the time he left the house of Castellanes until he reached that of the accused. In corroboration of this the defense presented evidence tending to show that the Chinaman died a natural and not a violent death. In addition, while Hermogenes, in his affidavit, states that he joined those who were conducting the Chinaman only after they had progressed a considerable distance on the way to the house of the accused, having inadvertently come upon them while he, mounted upon a carabao, was traveling upon his own affairs, nevertheless it appears from the testimony of defendant’s witness on the trial that he, Hermogenes, was present as one of the companions of the accused from the time he left the casa-hacienda in search of several malhechores until he returned there with one lone Chinaman roughly dragged from peaceful slumber.

The motion for a new trial is denied. So ordered.

Arellano, C.J., Torres, Mapa, Johnson and Carson, JJ., concur.

1. REGISTRATION OF SALE OR TRANSFER OF CATTLE; ATTACHMENT. — No sale or transfer of large cattle is valid unless it is registered and a certificate of the transfer is secured as required by the Cattle Registration Act. (Secs. 13, 14, and 22, Act No. 1147.) Unless the record of such transaction is so registered and the certificate obtained, the ownership of the cattle does not pass and they may still be attached as the property of the vendor.

2. SPECIAL STATUTES EXCLUDE GENERAL LAWS. — When a special law is enacted and in force with respect to any particular matter, the provisions of the Civil Code on the same subject are not applicable except in so far as the special statute may be defective.

On July 23, 1907, Rafael O. Ramos brought suit in the Court of First Instance of Occidental Negros, alleging in his complaint, among other things, the following: That on the 13th of the previous month of May, Martin Grosin, as deputy sheriff of the province, Manuel Lopez, on petition of the firm known as The Sons of I. de la Rama, proceeded to attach 20 carabaos, consisting of 10 castrated carabaos, 7 female carabaos, and 3 calves, belonging to the plaintiff, which attachment was not set aside, notwithstanding the protest made by their owner who had already planted in seeds beds 100 cavanes of rice required for 100 hectares of land which, without the use of the attached carabaos, would not be set out and the plaintiff would thereby be damaged to the extent of P5,000, wherefore he asked that judgment be rendered against the defendants directing them to return to the plaintiff the said 20 carabaos thus attached, and condemning them to the payment of P5,000 as damages, in addition to the costs of the trial and the imposition of the other penalties expressed in the complaint.

The defendants having been summoned, Valentin Inventor in his answer stated that he admitted the facts alleged in the complaint and asked that the case be dismissed.

By order of the court of August 16, issued on petition of the plaintiff, the defendant Manuel Lopez was declared in default.

The other defendants, the firm of The Sons of I. de la Rama and Martin Grosin, in answer to the complaint, set forth that they denied each and all of the allegations contained in each and all of the paragraphs of the complaint, with the exception of those in paragraph 1 of the same; and as a special defense they alleged that the carabaos claimed belonged to the defendant Valentin Inventor; that the pretended right of ownership of the plaintiff Ramos is based on an alleged public document of transfer said to have been executed by the defendant Inventor in favor of the said plaintiff Ramos on the 14th of September, 1906; that the said transfer was a sham, contrary to law, and made with the intent to defraud the said firm, the creditor of the said Inventor; wherefore they prayed that the complaint be dismissed, with the costs against the plaintiff.

By written motion of November 11, 1907, the plaintiff asked permission to amend paragraph 3 of the complaint so that it would read: "that he duly protested against the said attachment, and presented the corresponding document of intervention to the defendants, Martin Grosin and Manuel Lopez, notwithstanding which intervention the attachment has not been raised."cralaw virtua1aw library

On January 24, 1908, the case was heard and the evidence was adduced by both parties, the documents exhibited being attached to the record, and the court, on May 8 of the same year, rendered judgment in the case, declaring null and void the instrument of September 14, 1906, Exhibit No. 1, executed by Valentin Inventor evidencing the sale of the carabaos in question to Rafael O. Ramos, as the sale was contrary to law, and that the said stock must therefore be considered as belonging to Valentin Inventor, and discharged all the defendants, without express finding as to the costs. To this decision the plaintiff filed exception and by petition of May 12, 1908, requested a new trial on the grounds that the judgment was contrary to law and that the findings of fact therein set forth were manifestly contrary to the weight of the evidence. This petition was denied and exception thereto was taken by the plaintiff, who duly presented the corresponding bill of exceptions which was approved, certified, and forwarded to this court, together with the record of the evidence taken at the trial.

This litigation concerns a claim made by Rafael O. Ramos, as intervener, for the return to him of 20 carabaos which were attached on petition of the firm of The Sons of I. de la Rama, which claim is based on the alleged fact that he is the owner of these animals and that they no longer belong to Valentin Inventor, the debtor of the said firm.

It not being shown in the record that when Valentin Inventor transferred the said carabaos to the intervener Ramos, for a consideration, there existed against the said Valentin any condemnatory judgment or that any writ of attachment of his property had been issued, it is not permissible to presume the said contract of sale to have been executed in fraud of the said creditor firm, under the provisions of article 1297 of the Civil Code.

Upon the supposition that the carabaos in question were really sold by their owner on September 14, 1906, as stated in the notarial certificate, Exhibit 1 of the plaintiff, the provisions of the Civil Code would not apply to the contract of sale, inasmuch as contracts of purchase and sale and of transfer of large cattle are governed and regulated by special laws in force in these Islands, and only in case of a deficiency in the latter would the provisions of the Civil Code be applied, as prescribed by article 16 of the said code.

Act No. 1147 provides, in section 13, that municipal treasurers shall enter in a book, duly prepared and kept for the purpose, all transfers of large cattle, which entry shall set forth the name and residence of the owner, the name and residence of the purchaser, the purchase price of the animal or the consideration for the sale, the class, sex, age, brands, and other marks of identification of the animal, and a reference by number to the original certificate of ownership, with the name of the municipality which issued it.

Section 14 provides that on making the entry of transfer prescribed by the preceding section, the municipal treasurer shall issue to the purchaser of the animal a certificate of transfer expressing the details set forth in the said Article, etc.

Section 22 of the said Act provides that:jgc:chanrobles.com.ph

"No transfer of large cattle shall be valid unless registered and a certificate of transfer secured as herein provided."cralaw virtua1aw library

The certificate, Exhibit E, issued by the deputy treasurer of the pueblo of Ilog, Occidental Negros, shows that in the registry books of transfer of large cattle on file in his office, there is no entry whatever of the transfer of large cattle by Valentin Inventor to the plaintiff Rafael O. Ramos.

So that, in the sale of the 20 carabaos attached, with others, as set forth in the notarial document above referred to, the said special law, Act No. 1147, was violated. This law clearly and expressly requires the registration of all transfers of large cattle made in these Islands, and to this effect section 22 declares that no transfer of large cattle shall be valid without the registration and the issuance of the certificate mentioned in the said sections 13 and 14.

Article 4 of the Civil Code declares that "Acts executed against the provisions of law are void, excepting the cases in which said law orders their validity."cralaw virtua1aw library

The special law to which the alleged contract of purchase and sale of the 20 carabaos concerned is subject, provides, as already shown, that no transfer of large cattle shall be valid that has not been registered and certified to by the municipal official charged with keeping the books of registration of such acts and issuing the proper certificates.

If that which is not valid in law is entirely null and can not be maintained before the courts, it is unquestionable that when the 20 carabaos were attached on May 13, 1907, and which were then in the possession of Valentin Inventor, these animals were owned by the latter and did not belong to the plaintiff Rafael O. Ramos, notwithstanding the notarial instrument of sale of the same issued on September 14 of the previous year; inasmuch as the said sale or transfer of carabaos, animals properly designated as large cattle, and undoubtedly comprised within the provisions of the aforesaid special law, was not valid and is therefore as void as if it had not been made, because the attempted sale was effected in manifest violation of the aforementioned special law, as the record shows that it was not registered, and no certificate could be exhibited showing the transfer of the carabaos.

If the carabaos were not legally transferred by sale to the plaintiff and continued to belong to Valentin Inventor on the date of the attachment, notwithstanding his allegation that he held them by virtue of a lease agreed upon with the purchaser, it must be considered that they are his property and that they were duly attached on petition of the creditor firm of The Sons of I. de la Rama. The instrument of transfer and sale of the said carabaos, dated September 14, 1906, does not prevail against this consideration, for the reason that by that document the law is not complied with, nor are acts thereby confirmed which were not valid.

For the foregoing reasons, accepting in part those contained in the judgment appealed from and denying the claim of intervention by the plaintiff with respect to the attached carabaos, which are the property of Valentin Inventor, we are of the opinion that the defendants should be and they are hereby acquitted of the complaint, with the costs against the Appellant. So ordered.

Arellano, C.J., Mapa, Johnson, Carson and Moreland, JJ., concur.

1. IMMIGRATION LAW; FORFEITURE OF CITIZENSHIP BY PROLONGED ABSENCE. — Petitioner is a person of Chinese descent, born in the Philippine Islands. His mother was a former resident Chinese merchant, who has since died in China. Defendant left the Islands when he was about 15 years old, remained continuously in China until he was 34 years of age, and acknowledges that he had no intention of returning until the year he did return: Held, That in order to forfeit one’s citizenship an actual or recess renunciation is not necessary; that mere absence for a prolonged period, without intention to return, may be sufficient; and that the petitioner having voluntarily left the Islands and remained away for so many years without intention to return is not a citizen of the Philippine Islands and is not entitled to land.

An appeal by the Acting Insular Collector of Customs against a judgment of the Court of First Instance of Manila ordering that the petitioner be discharged from the custody of the Acting Insular Collector of Customs and be permitted to land in the Philippine Islands.

The petitioner, Eugenio Pascual Lorenzo, in his application to the Court of First Instance for the writ of habeas corpus, alleges:jgc:chanrobles.com.ph

"First. That he is allegedly detained and restrained of his personal liberty by the Acting Collector of Customs of the Philippine Islands and is so detained and restrained at the custom-house in the city of Manila.

"Second. That he is not restrained of his liberty by virtue of any criminal prosecution or any order or sentence of any competent court or tribunal.

"Third. That the real motive for his detention, according to his best knowledge and belief, is that the said Acting Collector of Customs for the Philippine Islands claims that he was not a native subject of the Philippine Islands on the date of his last arrival per the steamer Taisang on April 7, 1908, when he was examined for admission by a board of special inquiry.

"Fourth. That he is the illegitimate child of a Filipina woman, by a Chinese subject, born in the Philippine Islands; that he has never taken the oath of allegiance to any foreign power and that he is still the subject of the Philippine Islands.

"Fifth. That he is restrained of his personal liberty for the purpose of deportation and refusing him the privilege of remaining in the Philippine Islands, his native country, and that there is no other nation or country that recognizes him as in any way belonging to them.

"Sixth. That he was duly landed in the Philippine Islands and released by means of a consular guaranty to appear for such investigation as the Collector of Customs or the special board of inquiry, might require, and that upon hearings held by them and complete proof of his status and of the facts heretofore alleged were furnished.

"Seventh. That he left the Philippine Islands while he was a minor; that his mother and all his relatives are living in the Philippine Islands; and that he has no friends or relatives other than those in the Philippine Islands.

"Eighth. That from the decision of the special board of inquiry appeal was duly made to the Collector of Customs and denied by him

"Ninth. That the special board of inquiry and the Collector of Customs in the Philippine Islands, as executory officer and Commissioner of Immigration, in the investigation of the status of your petitioner, have acted in abuse of their power, discretion, and authority in denying that he is a citizen of the Philippine Islands, applying the Chinese immigration laws and demanding a certificate as required by section 6 of Act of July 5, 1884, in order that he might land, and in making unlawful rulings and taking improper action on the case presented by your petitioner, and in exceeding their jurisdiction in attempting to make final decision on a question of citizenship and the treaty of Paris.

"Wherefore your petitioner respectfully prays that a writ of habeas corpus may be granted, directing the same to the Acting Collector of Customs, H. B. McCoy, to have the body of the said Eugenio Pascual Lorenzo before your honor, at a time and place therein to be specified, to do and receive what shall then and there be considered by your honor concerning him, and that he may be restored to his liberty."cralaw virtua1aw library

The Court of First Instance issued a writ of habeas corpus, in pursuance of the prayer of said petition, and the Acting Insular collector of Customs made return to said writ as follows:jgc:chanrobles.com.ph

"Comes now H. B. McCoy, Acting Insular Collector of Customs, and in his official capacity makes return to the writ in the above-entitled case as follows:jgc:chanrobles.com.ph

"I. That the Eugenio Pascual Lorenzo referred to in the petition in this case arrived at the port of Manila from a foreign port, to wit, the port of Amoy, on the steamer Taisang on or about April 7, 1908, and is now seeking to be landed at the said port of Manila;

"II. That his right to land had been inquired into by a board of special inquiry thereunto duly authorized, and the questions put by the said board was adverse on the ground that the said Eugenio Pascual Lorenzo was not born in the Philippine Islands, and that, if born in the Philippine Islands, he was not a citizen having a right of entry at the present time, but was an alien of the Chinese race and descent who presented none of the statutory evidence of the right to land;

"III. That an appeal was taken on his behalf, copy of which is hereto annexed and marked ’Exhibit B; that before any decision was rendered on said appeal, an application for rehearing was interposed upon his behalf, which said application is hereto annexed and marked ’Exhibit C;’ that this application was approved and the case went a second time before the board of special inquiry thereunto duly authorized;

"IV. That the questions put by the said board and the answers returned thereto on said rehearing were as shown in Exhibit D hereto attached. The decision of the board was adverse on the ground that even though he was born in the Philippine Islands yet he was not a citizen thereof and was not entitled to land, but no findings were made upon the question of fact as to the place of his birth;

"V. That thereafter an appeal was taken from said decision, copy of which is hereto annexed marked ’Exhibit E,’ and the case coming on regularly for a decision upon the appeal, the Insular Collector of Customs rendered his decision adverse to the right of the applicant to land on the ground that the said Eugenio Pascual Lorenzo is an alien of the Chinese race and descent, and a subject of the Emperor of China, who is coming to Manila from foreign parts; that he does not present any section six certificate or other legal documentary proof of his right to land; that there has never been any finding by the board of special inquiry in favor of his claim to native birth; and that even though of native birth; and that even though of native birth yet he is not shown to be a citizen of the Philippine Islands, nor to be entitled to enter the Islands at this time;

"VI. That thereafter still another rehearing was requested under date of August 5, 1908, copy of which said request is hereto annexed and marked ’Exhibit F.’ This application was approved for the purpose of introducing only the evidence referred to in letter of July 23, 1908, which said letter is hereto annexed and marked ’Exhibit G;’ that at said rehearing the proceedings were as shown in Exhibit H hereto annexed, and the decision of the board was still adverse for the reasons stated in the board’s decision on the original hearing;

"VII. That thereafter an appeal having been interposed, copy of which appeal is hereto annexed and marked ’Exhibit I.’ And the case coming on regularly for decision on appeal, the Insular Collector of Customs again rendered his decision adverse to the right of the applicant to land, on the ground that the man is not a citizen of the Philippine Islands, but is an alien of the Chinese race who had no right of entry without the production of a section six certificate of other statutory documentary proof of such right (Exhibit J);

"VIII. That, in consequence of the adverse decision of the board of special inquiry affirmed on appeal by the Insular Collector of Customs, the said Eugenio Pascual Lorenzo has been ordered deported to the place whence he came, and the alleged detention is only such as is necessary to insure the due execution of the said order of deportation;

"IX. That the defendant denies each and every allegation in the petition contained, except as in this return specifically admitted, and especially denies that the immigration officers at the port of Manila, or any of them, have abused their authority, have denied the applicant any opportunity of presenting his witnesses and proofs, or have been guilty of any improper conduct in this case whatsoever;

"X. That the body of the said Eugenio Pascual Lorenzo is hereby produced in court to abide the order of the court in the premises.

"H. B. McCOY,

"Acting Insular Collector of Customs."cralaw virtua1aw library

"EXHIBIT A.

"(Proceedings of the board of special inquiry at the port of Manila for the prompt determination of all cases of aliens detained by law, appointed by the Acting Insular Collector of Customs, April 18, 1907.)

"Examination of Eugenio Pascual Lorenzo, male, age 34, detained Chinese Immigrant, ex steamer Taisang, April 7, 1908.

"Q. What is your name? — A. Eugenio Pascual.

"Q. How old are you? — A. 34.

"Q. Where are you coming from? — A. China.

"Q. Where were you born? — A. Santa Maria.

"Q. Who is your mother? — A. Apolonia Guinotan Pascual.

"Q. Who was your father? — A. Marcelino Lorenzo Vy Ju.

"Q. Who was your mother’s father? — A. I do not know.

"Q. Who was your mother’s mother? — A. I do not know.

"Q. Who was you godfather? — A. Manuel Yaptico.

"Q. Do you talk Tagalog? — A. A little.

"Q. Where were you baptized? — A. I do not know.

"Q. Where is your mother now? — A. In Rosario.

"Q. Where is your father? — A. Dead.

"Q. When did he die? — A. About ten years ago.

"Q. Have you any brothers or sisters? — A. One brother.

"Q. What is his name? — A. Joaquin.

"Q. Where is he? — A. In Rosario.

"Q. How old is he? — A. 19.

"Q. Have you any sisters? — A. No.

"Q. Any more brothers? — A. No.

"Q. Who took you to China? — A. My father.

"Q. What have you been doing in China? — A. Going to school.

"Q. How old are you now? — A. 34.

"Q. What kind of school did you go to? — A. Private School.

"Q. What have you been learning there? — A. Chinese.

"Q. How many years have you been going to school? — A. Four or five.

"Q. What have you been doing in China all this time? — A. Nothing.

He presents a baptismal certificate issued by the parish church of Santa Maria, Bulacan, June 19, 1881, representing that on the 9th of September, 1874, there was baptized there a boy who was born on the 6th of said month, being the natural son of Apolonia Guinotan Pascual, spinster, and who was named Eugenio Lorenzo Pascual.

"Q. What have you been doing in China? — A. Nothing at all.

"Q. Are you married? — A. No.

"Q. Have you any family in China? — A. No.

"Q. Why are you coming here now? — A. In order to see my mother.

"Q. Did she send for you? — A. No; I came alone.

"Q. When did your brother Joaquin come back from China? — A. He has never been to China.

"Q. What is your name? — A. Apolonia Pascual.

"Q. How old are you? — A. 53.

"Q. Where do you live? — A. 195 Rosario.

"Q. What is your business? — A. Hat factory.

"Q. Do you understand the nature of an oath? — A. Yes.

"Q. Arise and be sworn. — A. (She was duly sworn.)

"Q. Are you married? — A. Yes.

"Q. Who is your husband? — A. Marcelino Lorenzo Vy Ju.

"Q. Where is he? — A. He is dead.

"Q. When did he die? — A. About ten years ago.

"Q. Where were you married? — A. In Binondo.

"Q. In church? — A. Yes.

"Q. How long ago were you married? — A. Over thirty years ago.

"Q. Have you a marriage certificate? — A. Yes.

"Q. Where is it? — A. At my home.

"Q. Have you had any children? — A. Yes; two.

"Q. Boys or girls? — A. Boys.

"Q. What are their names and ages? — A. Eugenio, 33; Joaquin, age 19.

"Q. Where is Eugenio? — A. In China.

"Q. When did he go to China? — A. He was 15 years old when he go to China.

"Q. Where is your son Joaquin? — A. Here.

"Q. When did he comeback from China? — A. About two years ago.

"Q. Did Joaquin go to China? — A. Yes.

"Q. When did he go to China? — A. About two years ago.

"Q. How long did he stay in China? — A. I do not know.

"Q. How old was Joaquin when he went to China? — A. Seventeen.

"Q. Where was Joaquin born? — A. Binondo.

"Q. Where was Eugenio born? — A. Santa Maria, Bulacan.

"Q. Was he born before you were married? — A. Yes.

"Q. Your son Eugenio states that his brother Joaquin has never been to China? — A. Yes.

"Q. Is he telling the truth? — A. I do not know.

"Q. Did you ever go to China? — A. No.

"Q. When your son Joaquin returned from China, did you testify at this custom-house? — A. No.

"Q. How did he come back? — A. He made a paper before a notary public.

"Q. Where is your son Joaquin now? — A. Outside.

"Q. Is your son Eugenio married? — A. He married in

China.

"Q. Did you ever see his wife? — A. No.

"Q. How did you know he is married? — A. I have heard.

"Q. How many children has he? — A. No children.

"Q. How long has he been married? — A. I believe about three years ago.

"Q. What has he been doing in China? — A. Studying.

"Q. Studying what? — A. Chinese.

"Q. Did it take him nineteen years to study Chinese? — A. I don’t know; he has been working.

"Q. What work has he been doing? — A. I do not know.

"Q. What is your name? — A. Joaquin Lorenzo Uy Ico.

"Q. How old are you? — A. Nineteen.

"Q. Where do you live? — A. No. 195 Rosario.

"Q. What is you business? — A. Employee.

"(Presents C. R. 21796/47645 Manila, cedula F1336580, dated Manila, April 9, 1908.)

"Q. Do you understand the nature of an oath? — A. Yes.

"Q. Arise and be sworn — A. (He was duly sworn.)

"Q. Where were you born? — A. In Manila.

"Q. Who is your mother? — A. Apolonia Pascual.

"Q. Who is your father? — A. Marcelino Lorenzo Uy Juco.

"Q. Where is your father? — A. He is dead.

"Q. Where did he die? — A. In China.

"Q. When did he die? — A. Ten years ago.

"Q. Have you any brothers or sisters? — A. One brother; no sister.

"Q. What is your brother’s name? — A. Eugenio.

"Q. When is the last time you saw him? — A. 1906.

"Q. Where did you see him? — A. In China.

"Q. You are sure about that? — A. Yes, sir.

"Q. Your brother Eugenio says that you have never been to China? — A. Yes.

"Q. Is your brother Eugenio married? — A. Yes.

"Q. Has he any children? — A. Not as far as I know.

"Q. Do you know his wife? — A. Yes.

"Q. Did you ever see her? — A. Yes.

"Q. What has Eugenio been doing in China? — A. Studying.

"Q. All this time? — A. Always studying.

"Q. Where was Eugenio born? — A. Santa Maria, Bulacan.

"Q. When did he go to China? — A. I do not know.

"Q. You never saw him before he left there? — A. No.

"Q. And the only time you saw him was in 1906? — A. Yes.

"Q. How do you know he was your brother? — A. I was told so.

"Q. Why did he not come here before? — A. He was studying."cralaw virtua1aw library

Eugenio recalled:jgc:chanrobles.com.ph

"Q. Why did you never come back before? — A. I did not pay any attention to it.

"Q. When was the first time you thought of returning? — A. Last year.

"Q. You never intended to come back until last year? — A. No.

"Q. Why did you not come back last year? — A. Because I could not.

"Q. Since your residence in China you have been a Chinese subject? — A. Yes.

"Q. Do you know this boy? — A. My brother Joaquin.

"Q. Where did you see him before? — A. In Manila.

"Q. Before you went away? — A. Yes.

"Q. How old was he when you went away? — A. I do not remember.

"Q. How big was he? — A. Not so very big.

"Q. Could he talk? — A. No.

"Q. Could he walk? — A. Yes.

"Q. What is your wife’s name? — A. I have no wife.

"Q. Never had a wife? — A. No.

"Q. did you ever see this boy in China? — A. No."cralaw virtua1aw library

"DECISION.

"The board finds that the applicant is Chinese subject, coming here from the port of Amoy, and that he does not present the certificate required by law for the admission of Chinese. His allegations to right of entry in the Philippine Islands on the ground of nativity have not been proven, and his own testimony has been controverted by the witnesses offered in his behalf. The board, therefore, finds that the said Eugenio Pascual is not a native-born Chinese, and he is, therefore, refused landing and, admitting that he was born here. he was not constructively a citizen of these Islands April 11, 1899.

"He is informed of this decision, and he is further informed that he has two days to appeal from this decision to the Insular Collector of Customs, in case he is dissatisfied therewith.

"(Signed) WILLIAM C. BRADY,

"Acting Chairman of the Board.

"(Signed) W. M. SMITH, Member.

"(Signed) SIDNEY C. SCHWARZKOPF,

"Stenographer."cralaw virtua1aw library

"EXHIBIT B.

"APRIL 10, 1908.

"THE INSULAR COLLECTOR OF CUSTOMS, Manila.

"SIR: I beg to give notice of appeal from the decision of the board of special inquiry in refusing admission to Eugenio Pascual Uy, alleged native of the Philippine Islands, 34 years of age, ex steamer Taisang, April 7, 1908.

"Very respectfully,

"(Signed) GEO W. COLE."cralaw virtua1aw library

"EXHIBIT C.

"MAY 7, 1908.

"THE INSULAR COLLECTOR OF CUSTOMS, Manila.

"SIR: I have the honor to request that Eugenio Pascual, native of the Philippine Islands, refused landing, ex steamer Taisang, April 7, 1908, be granted a rehearing on the ground of newly discovered evidence which could not, by reasonable diligence have been presented at the original hearing and which is of such nature as ought, if believed, to change the decision of the board of special inquiry.

"Pedro Baltazar, native of Obando, Bulacan, age 36 years, hat maker, No. 195 Calle Rosario, Manila, will testify that Eugenio Pascual was born at Santa, Maria Bulacan, 34 years ago; that his mother was a Filipina woman named Apolonia Pascual and his father a Chinaman named Marcelino Uy Ju; that the said Eugenio Pascual went to China when he was 15 years of age; that he knew the said Eugenio Pascual from the time he was born until he went to China; and that he can now identify the said Eugenio Pascual as a native of the Philippine Islands.

"Ceferino Daming, native of Obando, Bulacan, 52 years of age, property owner, Obando, Bulacan, will testify that Eugenio Pascual was born at Santa Maria, Bulacan, 34 years ago; that he was present in the town of Santa Maria, when the said Eugenio Pascual was born; that his mother was a Filipina woman named Apolonia Pascual and his father a Chinaman named Marcelino Uy Ju; that the said Eugenio Pascual went to China when he was 15 years of age; and that he can now identify the said Eugenio Pascual as a native of the Philippine Islands.

"At the time of the original hearing in this case the above-mentioned persons were in Bulacan and could not be present to testify.

"Very respectfully submitted.

"(Signed) GEO. W. COLE."cralaw virtua1aw library

"EXHIBIT D.

"(Proceedings of the board of special inquiry at the port of Manila, for the prompt determination of all cases of aliens, detained under the provisions of the law, appointed by the Acting Insular Collector of Customs, April 18, 1907.)

"Rehearing in the case of one Eugenio Pascual, age 34, detained Chinese Immigrant, ex steamer Taisang, April 7, 1908.

"Q. What is your name? — A. Eugenio Pascual.

"(NOTE. — The substance of the evidence presented in the previous hearing of this case is to effect that this applicant, Eugenio Pascual, was born in the Philippine Islands, the son of a Filipina woman.)

"Q. How old are you? — A. Thirty-four.

"Q. Where are you coming from? — A. China.

"Q. Place? — A. Ng Chun.

"Q. How long have you been in Ng Chun? — A. Nineteen years.

"Q. Where did you live before that? — A. Here, in Rosario.

"Q. In Manila? — A. Yes.

"Q. How long did you live in Manila? — A. I was born here. Fifteen years I stayed here before I went to China.

"Q. And when you were 25 years old you went to China? — A. Yes.

"Q. And that is nineteen years ago? — A. Yes.

"Q. And you are 34 now? — A. Yes.

"Q. Why didn’t you come back before? — A. I have been studying.

"Q. Have you been studying for nineteen years? — A. No.

"Q. What have you been doing? — A. About five years I studied.

"Q. The first five years or the last five years? — A. The first five years.

"Q. What have you been doing since? — A. No; not doing anything.

"Q. Not doing anything at all? — A. No.

"Q. How did you live? — A. I worked a little farm.

"Q. Your farm? — A. Yes.

"Q. Why didn’t you come to the Philippines when you were 21 years old? — A. I received a letter from my mother, so I returned to Manila.

"Q. Why didn’t you come back when you were 21? — (No

answer).

"Q. Just didn’t want to come back? — A. I thought it

didn’t matter.

"Q. Just didn’t want to come back? — A. I thought it was of no importance, so I did not come back.

"Q. You would rather stay in China? — A. Yes.

"Q. Have you any witnesses here this morning? — A. I do not know.

"(NOTE. — The case is held until Monday for further witnesses.)"

"SESSION (MORNING).

"MAY 18, 1908.

"Present: Same board in session.

"Eugenio Pascual, present.

"Q. Have you any witnesses here this morning? — A. Yes.

"FIRST WITNESS.

"Q. What is your name? — A. Ceferino C. Domingo.

"Q. How old are you? — A. Thirty-two years.

"Q. Surely you are 52 years? — A. 52 years. I was mistaken.

"Q. Where do you live? — A. Obando.

"Q. What is your business? — A. Property Owner.

"Q. Have you a cedula? — A. Yes.

"(He presents cedula No. A-1358119, Polo, Bulacan, February 1, 1908.)

"Q. Do you understand the nature of an oath? — A. Yes.

"Q. Arise and be sworn. — (He is duly sworn.)

"Q. Do you know Eugenio Pascual? — A. Yes, sir.

"Q. How long have you known Eugenio Pascual? — A. About nineteen year, something like that, since I saw him.

"Q. You have not seen him for nineteen years? — A. I have not seen him for nineteen years.

"Q. Where did he live during the time that you knew him? — A. In Binondo.

"Q. In Manila? — A. About 15 years old, and then he went to China.

"Q. Do you know his father and mother?— A. Yes; the mother of Eugenio is my sister-in-law.

"Q. How old was Eugenio when he went away from here? — A. About 15, a little more or less.

"Q. And do you know where he was born? — A. Yes.

"Q. Where? — A. In Santa Maria, Bulacan.

"Q. Was his father Chinese or Filipino? — A. Chinaman.

"Q. Did you know him? — A. Yes.

"Q. What is his name? — A. Marcelino Lorenzo Uy Eho.

"Q. Where is he now? — A. I heard that he died in China.

"Q. Where is Eugenio’s mother now? — A. Here in Binondo.

"Q. Is that Apolonia Pascual? — A. Yes, sir.

"Q. Can you identify Eugenio now? — A. I will try and see, but I have not seen him for a long time.

"Q. He looks just like a Chinaman now.

"(NOTE. — The said Eugenio is brought before the board.)

"Q. Is this Eugenio? — A. (Witness.) Yes."cralaw virtua1aw library

"SECOND WITNESS.

"Q. What is your name? — A. Pedro Baltazar.

"Q. How old are you? — A. Thirty-six.

"Q. Where do you live? — A. Rosario, No. 195.

"Q. What is your business? — A. Hat maker.

(He presents a cedula No. F-1328181, Manila, March 21, 1908.)

"Q. Do you understand the nature of an oath? — A. Yes.

"Q. Arise and be sworn. — (He is duly sworn.)

"Q. Do you know Eugenio Pascual? — A. Yes, sir.

"Q. How long have you known him? — A. When my mother lived there I was 2 years old at that time.

"Q. Where was that? — A. In Santa Maria. I was 2 years old at that time.

"Q. How long did you know Eugenio? — A. He left here when he was 15 years old, and I was 17 years old at that time.

"Q. Where did he go? — A. To China.

"Q. Did you know his father and mother? — A. Yes.

"Q. And he went away before the Americans came to Manila? — A. Yes; he went away before the Americans came here.

"Q. And he never came back any more? — A. No.

"Q. Do you know where he was born? — A. Yes.

"Q. Is his father a Chinaman? — A. Yes, sir.

"Q. And his mother a Filipina? — A. Yes, sir.

"Q. Can you identify him now? — A. Yes.

(NOTE. — The said Eugenio is called before the board.)

"Q. Is this Eugenio? — A. Yes."cralaw virtua1aw library

"DECISION.

"The board decides that the said Eugenio Pascual is a person apparently of Chinese descent, with the manners and customs of Chinamen, speaking only the Chinese language, and coming at this time from the country of China, who claims that he is a native of these islands. Evidence has been presented to the effect that his mother is one Apolonia Pascual, a native of the Philippines, and that his father was one Marcelino, a former resident Chinese merchant, who has since died in China. It appears that his applicant left the Philippine Islands, approximately nineteen years ago, being about 15 that time, and that he has never returned to the Philippine Islands, and was not a resident here at the time of the American occupation nor has he resided here up to the present time. He states that he has a home in China, and that he was engaged there working on his farm and also attending school. His evidence in respect to attending school is rather absurd, as from his age and appearance he has probably not been to school for the last fifteen years. The board sees no reason why this person should be considered a citizen of the Philippine Islands at his time, and granting that he was born here, as claimed, and left here at the age of 15, there have now elapsed more than ten years, approximately thirteen years, since he reached his majority, during which time he has not attempted to exercise the right to claim citizenship in the Philippines. Had he returned to the Philippine Islands within a reasonable time after attaining his majority, it would seem perhaps that he would be entitled to admission as citizen and native of these islands, but under the present circumstances such a claim now appears absurd. He is, therefore, refused landing, and ordered to be deported to the place whence he came, as being a Chinese person and subject of the Emperor of China, who does not present the certificate required by law for the admission of Chinese. He is informed of this decision and he is further informed that he has two days from this date within which to appeal to the Insular Collector of Customs in case he is dissatisfied with the decision of the board.

"(Signed) JOHN R. AMAZEEN,

"Chairman of the board.

"(Signed) W. A. NORTHROP, Member.

"(Signed) HORACE J. DICKINSON,

"Stenographer."cralaw virtua1aw library

"EXHIBIT E.

"MANILA, P. I., May 20, 1908.

"The INSULAR COLLECTOR OF CUSTOMS, Manila.

"SIR: I hereby give notice of appeal from the decision of the board of special inquiry in refusing admission, on rehearing, to Eugenio Pascual Uy, native of the Philippine Islands, ex steamer Taisang, April 7, 1908.

"Very respectfully,

"(Signed) GEO W. COLE."cralaw virtua1aw library

"EXHIBIT F.

"AUGUST 5, 1908.

"GEORGE R. COLTON, Collector of Customs, Manila, P.I. :jgc:chanrobles.com.ph

"Application is hereby made for a rehearing in the case of Eugenio Pascual for the purpose of presenting additional proof and treating more fully the legal status of the applicant in regard to his citizenship. This application is primarily based upon the law applicable to the citizenship of Eugenio Pascual and his right to return to the Philippine Islands.

"Trusting that this may receive favorable consideration and that a rehearing may be granted, I remain,

"Yours respectfully,

"(Signed) G. W. O’BRIEN."cralaw virtua1aw library

"Approved: For the purpose of introducing only the evidence referred to in letter of July 23.

"(Sgd.) BEAUMONT,

"Insular Special Deputy Collector of Customs."cralaw virtua1aw library

"EXHIBIT G.

"In re Eugenio Pascual, immigrant, ex steamer Taisang, April 7, 1908.

"The immigrant by the undersigned counsel respectfully requests consideration of the decision in the above-entitled case for the reason that the same is contrary to law.

"‘But base the decision on the ground that he is not a citizen of the Philippine Islands even though born in the Philippines.’

"The immigrant being admitted to be illegitimate child of a Filipina woman, he would take the domicile of the mother and the mother’s nationality. (Savigny, 8-353; Blyth Vayres, 96 Cal., 532; 9 Ill., 148.)

"The immigrant being born about 1874 and leaving the Philippine Islands in 1891, was a minor and not capable of changing either his domicile or his nationality.

"If treated as a native of the Philippines he will arrive at legal age at 23; if treated as a Chinaman, on the death of his father, and on the latter point there is no evidence.

"For the purpose of the decision it is admitted though born in the Philippine Islands, and the illegitimate child of a Filipina woman, he is not now a citizen because he did not reside in the Philippines on the 11th day of April 1899.

"If he changed his citizenship, the burden of proof is on the Government, not on the immigrant.

"The question ’since your residence in China, you have been a Chinese subject,’ is a legal question which the immigrant is not capable of answering, and, as a matter of fact, it is asserted that neither the interrogator nor the interpreter were capable of answering the question. Further, it is a fact, there is no Chinese law by which a foreigner of any nation can become a subject of China.

"No individual can change his nationality by mere acquiescence in the language, customs, religion, dress or by residing in a foreign country. It requires a specific rejection of his allegiance to his native country, and the voluntary oath of allegiance to his chosen country.

"As a conclusion, it is submitted that the immigrant was a subject of the King of Spain on the 11th day of April, 1899, and that he is not and never has been considered as a subject of the Empire of China. It is further submitted that this government is not authorized to reject a native-born Filipino from entering the Philippine Islands, no matter after how long an absence, if he has never taken the oath of allegiance to any authority other than that existing in the Philippine Islands.

"If the immigrant was insane or suffering from some disease, a foreign country would return him to his native shore and the government would be obliged to take care of him.

"Suppose a Chinaman comes to the Philippine Islands and adopts the customs, dress, religion, etc., as Dr. Tee Han Kee has, would your department hold because of his continued residence here he would lose his nationality? Under such circumstances it is a bad rule that will not work both ways.

"Article 9 of the treaty of Paris provides for the preservation of the allegiance of Spanish subjects in default of which declaration they shall be held to have renounced it.

"Admitting that the immigrant was a Spanish subject and failed to make such declaration, then it is presumed that he did not renounce his allegiance to Spain, which places him in the position as referred in the Bosque case. That case did not treat of his right of entering the Philippines.

"No court would have held that he was not entitled to entrance, and furthermore, if the immigrant is not a resident of the Philippines, he is a Spaniard, and as such entitled to entrance.

"United States Supreme Court, page 501, advance sheets, October term, 1907:jgc:chanrobles.com.ph

"‘The absence of a Spanish subject from the Philippine Islands during the entire period allowed by the treaty of peace with Spain of December 10, 1898 (#0 Stat. at L., 1759), art. 9 for making a declaration of his intention to preserve his allegiance to the crown of Spain, prevents the loss of his Spanish nationality by reason of his failure to make such declaration.

"Wherefore, it is respectfully submitted that the decision should be reconsidered and the immigrant allowed to land as a citizen of the Philippine Islands, or as a subject of Spain.

"The question of failing to reside in the Philippines on the date of signing the treaty would only tend to make the immigrant a Spanish grant.

"Hundreds of Filipinos who are were absent on the above date have since returned without restraint. Again calling attention to the fact that the burden of proof is on the Government to prove change of his nationality, and insisting that the question and answer quoted in the decision is wholly improper.

Respectfully submitted.

"(Signed) C. W. O’BRIEN.

To the COLLECTOR OF CUSTOMS, Manila, P. I."cralaw virtua1aw library

"EXHIBIT H.

"(Proceedings of the board of special inquiry at the port of Manila, for the prompt determination of all cases of aliens, detained under the provisions of the law, approved by the Acting Insular Collector of Customs. April 18, 1907.)

"Rehearing in the case of Eugenio Pascual, age 34, Chinese immigrant, ex steamer Taisang, April 7, 1908, who was refused landing on rehearing by the board of special inquiry in session May 15, 1908.

"(NOTE. — This case comes before the board on a request for rehearing by Mr, C. W. O’Brien, under date of August 5, 1908, which request was approved by the Insular Special Deputy Collector of Customs for the purpose of introducing evidence in regard to the laws of China covering domicile, citizenship, parentage, minority, allegiance, etc.)

"Present: Mr. C. W. O’Brien, representing the applicant.

"(NOTE. — Mr. O’Brien, in behalf of applicant’s claim to Philippine citizenship, presents the following authorities:)

"Fifty-fifth Congress, House of Representatives, second session, Document 551, composed of eight volumes, entitled ’Moore’s Digest of International Law,’ reference cited commencing with page 296 of volume 3.

"Moore’s International arbitrations — Digest, volume 3, page 2454.

Case of Henry Havenstein Et. Al. v. Jno. Lynham (100 U. S. Supreme Court Reports, 25 Lawyers’ edition, p 628).

"Counsel makes the following statement:jgc:chanrobles.com.ph

"‘The treaty between China and Japan of 1864, published in the Official gazette, 1870, provides that a Chinese person may become naturalized Spanish subject in the Philippines, but the Spanish Government never made any procedure for making the law effective. Therefore, it remains null and void as though never enforced, and any Chinaman, either before 1870 or after 1870, on to the time the American Government took control here, could only become a Spanish subject by getting a Royal Decree from the King of Spain. I will submit a brief covering this point.

"The Royal Decree of May 11, 1901, treats, so far as Spain is concerned, of the Spanish citizens who are residents of the territory acquired from Spain by the United States by the treaty of Paris, and who are beyond the limits of the territory, and is to the effect that a Spaniard who lose citizenship can acquire it again. No distinction is made between the Philippines and Spain. Reference is made to the civil register all way through.’

"(NOTE. — An exhaustive argument on all questions in the case was made by Mr. O’Brien on behalf of this applicant for the consideration of the board, and it was submitted without being taken verbatim, by mutual consent. Such references and authorities as were quoted were entered in the record.)

"(NOTE. — The case was held open for introducing the evidence of the Chinese consul-general in regard to what the law of China is on the subject of citizenship.)"

"SESSION (P. M.) .

"September 11, 1908.

Present: Amazeen and Dickinson (Mr. Brady absent), members.

"(NOTE. — In addition to the foregoing, there was this day presented on behalf of the applicant Eugenio Pascual, by his attorney, Mr. O’Brien, a volume purporting to be Book 8 of the Chinese laws, an extract of which was translated substantially to the effect that Chinese persons, in order to be recognized as citizens of the empire of China, must show certain tax receipts and other personal documents provided by the proper authorities, and further that foreigners, such as persons coming from Manchuria, etc., in order to be considered as subjects of China, must have been duly recognized by imperial decree, and have a proper Chinese name, and also the tax receipts and documents as in other cases.

"(NOTE. — The members of the board then proceeded to consider and discuss the facts of the case.)

"DECISION.

"The board now decides that the said Eugenio Pascual is not entitled to admission in the Philippine Islands, for the reason stated in the original hearing before this board. The argument presented in his behalf at this rehearing to some extent favors the claim of the applicant that he could not be subject of China, and the Chinese law as interpreted to the board would seem to be the effect that foreigners can not become subjects of China without obtaining an imperial decree, and also certain tax receipts and documents required of Chinese subjects. While there is no evidence before the board that this applicant ever obtained any imperial decree making him a subject of China or that he has the required documents, nevertheless there is no evidence presented that he did not obtain such documents although that would be the presumption. Granting, therefore, that he never obtained any imperial decree or other necessary documents to constitute him a subject of China, he would still be considered to have forfeited any right that he might have had return to the Philippine Islands, in view of his long absence therefrom without any reasonable effort having been made to return at or about the time that he reached majority and would ordinarily be supposed to be free from parental control. It is recognized that a citizen of a country has the right to leave his country and return after a temporary absence, but in as much as this mains clearly a person of Chinese descent and does not come within the terms of the treaty of Paris and the subsequent Acts of Congress defining citizens of the Philippine Islands, this board is constrained to believe that he comes within the prohibitions of the Chinese-exclusion laws, and is not entitled to enter the Philippine Islands at this time.

"He is informed of this decision through his attorney, Mr. O’Brien, and verbal notice was given to the board that appeal would be taken from this decision within the time prescribed.

"(Signed) JOHN B. AMAZEEN,

"Chairman of the Board,

"(Signed) HORACE J. DICKINSON,

"Stenographer."cralaw virtua1aw library

"EXHIBIT I.

"September 14, 1908.

"Mr. J. B. AMAZEEN,

"Chief of the immigration department, Manila, P. I.

"SIR: Being advised by the board of special inquiry that the decision upon the rehearing in the case of Eugenio Pascual was adverse to his landing in the Philippine Islands, I hereby appeal from said decision to the Insular Collector of Customs, and request that an extract of the points raised by me as counsel for said applicant be forwarded to the Insular Collector for review.

"Yours, respectfully,

"(Signed) C. W. O’BRIEN,

"Attorney for applicant."cralaw virtua1aw library

"EXHIBIT J.

"DECEMBER 28, 1908.

"In re Eugenio Pascual Lorenzo, Chinese immigrant, ex steamer Taisang April 7, 1908. Case No. 33, C. B. R. No. 824. Decision on appeal on rehearing.

"This case coming on regularly for review upon an appeal filed by Mr. C. W. O’Brien, on behalf of the above-mentioned alien, after examining the evidence taken before the board of special inquiry at Manila and considering the arguments offered, and being fully advised in the premises, it is adjudged and decided that the said appeal be overruled for the following reasons:jgc:chanrobles.com.ph

"This applicant claims that he was born in the Philippine Islands and left here about nineteen years ago, being at that time 15 years of age, and never since returned. It appears further that his mother is a Filipina woman, and that his father was a Chinese subject previously residing in the Philippine Islands. Section 4 of the Act of Congress of July 1, 1902 (32 Stat. at L., 92, chap. 1369), provides that:jgc:chanrobles.com.ph

"‘All inhabitants of the Philippine Islands continuing to reside therein who were Spanish subjects on the eleventh day of April, eighteen hundred and ninety-nine, and then residing in said Islands, and their children born subsequent thereto, shall be deemed and held to be citizens of the Philippine Islands, and as such entitled to the protection of the United States. except such as shall have elected to preserve their allegiance to the Crown of Spain, in accordance with the provisions of the treaty of peace between the United States and Spain, signed at Paris, December tenth, eighteen hundred and ninety-eight.’

"The record in this case clearly shows that this applicant was not an inhabitant of the Philippine Islands continuing to reside therein and who was a Spanish subject on the 11th day of April 1899, and then residing in these Islands. In fact, it appears clearly from the record that he left the Islands ten years before the date mentioned, and continuously resided in China; in fact that he had reached his majority previous to the date mentioned, and now for the first time he claims his rights as a citizen of the Philippine Islands. It is admitted that he is a person of Chinese race and descent, and even though born in the Philippine Islands under the section of law above quoted he can not now be considered a citizen, and consequently his right to admission here must necessarily be governed by the requirements of the Chinese-exclusion law, and in order to be admitted at this time he must present the certificate required by section 6 of the Act of Congress of July 5, 1884.

"The appeal in this case is, therefore, necessarily overruled.

"(Signed) GEO. R. COLTON,

"Insular Collector of Customs."cralaw virtua1aw library

The return by the Acting Insular Collector of Customs sets out at length what appears to be all that took place in the hearing before the board of special inquiry. These facts are neither traversed nor denied as true. Unless the return to a writ of habeas corpus is in some way traversed or denied, the facts stated therein must be taken as true. (U. S. v. Ju Toy, 198 U. S., 253; Crowley v. Christeten, 137 U. S. ., 86, 94) The writ of habeas corpus can not be used as writ of error for the purpose of securing a review of the case. (Ex parte Watkins, 3 Peters (U. S.) , 193, 201; Wales v. Whitney, 114 U. S. ., 564, 571; In re Chapman, 156 U. S., 211; In re Belt, 159 U. S., 95; U. S. v. Ju Toy, 198 U. S., 253; Collins v. Wolfe, 4 Phil. Rep., 534; Yambert v. McMicking, 10 Phil. ., 95; In re Prautch, 1 Phil. Rep., 132; Banayo v. The President of San Pablo, 2 Phil. rep., 413; Gutierrez v. Peterson, 3 Phil. Rep., 276; Carrington v. Peterson, 4 Phil. Rep., 134; Andres v. Wolf, 5 Phil. Rep., 60.)

The lower court, therefore, upon the questions of fact was governed by the facts stated in this return. His examination of the facts was limited to the facts stated in said return. Upon this return and these facts the lower court discharged the applicant and held that:jgc:chanrobles.com.ph

"The petitioner born in the Philippine Islands and being a citizen and deriving his citizenship from his mother at the time of his birth, does not cease to be such citizen at law until such time as he has taken legal steps to renounce his allegiance as such citizen, and that he has renounced or abandoned his citizenship in the Philippine Islands and as such entitled to land.

"In my opinion there was an abuse of discretion and authority in denying the petitioner this right."cralaw virtua1aw library

From this order or judgment the Acting Insular Collector of Customs appealed (Act No. 654, Philippine Commission) and the following assignments of error:chanrob1es virtual 1aw library

I. The court erred in the issuance of a writ of habeas corpus in behalf of Eugenio Pascual Lorenzo, a person of the Chinese race and descent held for return to China after having arrived from China and made application to land at the port of Manila, and who, after examination by the duly authorized immigration officers, was found by them not to be entitled to enter the Philippine Islands, and was denied admission and ordered deported, which decision was affirmed by the Insular Collector of Customs.

II. The court erred in not treating as final and conclusive the decision of the duly automation officers upon the question of the citizenship of Eugenio Pascual Lorenzo, a person of Chinese race and descent and seeking admission to the Philippine Islands, it not being alleged in the petition nor proved or admitted in the court below that the petitioner was arbitrarily denied the hearing provided by law and the opportunity to prove his right to enter the Philippine islands.

III. The court erred in holding that under the facts in this case the petitioner does not cease to be a citizen of the Philippine Islands until such time as he has taken legal steps to renounce his allegiance as such citizen, and that, in the absence of evidence to the effect has renounced or abandoned his citizenship in the Philippine Islands, the petitioner continued to be a citizen of the Philippine Islands and as such entitled to land, and that to refuse him permission to land as a citizen of the Philippine Islands is an abuse of discretion.

IV. The court erred in holding that the application of the provisions of section 4 of the Philippine Bill to the condition of citizenship of the petitioner in this case was the abuse of authority.

V. The court erred in ordering the said petitioner be discharged from the custody of the Insular Collector of Customs and that he be permitted to land in the Philippine Islands.

We have here the question squarely presented, May the courts, under the act of Congress (secs. 10 and 25) of February 20, 1907, 1 in an application for the writ of habeas corpus, examine the facts and upon such facts make a different finding than that made by customs officials, without first finding that there had been an abuse of authority?

The substance of the petition for the writ of habeas corpus in the present case may be stated as follows:chanrob1es virtual 1aw library

First. That the applicant was a citizen of the Philippine Islands.

Second. That the special board of inquiry and the Collector of Customs of the Philippine Islands have acted in abuse of their power, discretion, and authority in denying that he is a citizen of the Philippine Islands.

The substance of the reply, apart from the exhibits presented by the Acting Insular Collector of Customs, may be stated as follows:jgc:chanrobles.com.ph

"That his right (the applicant’s) to land has been inquired into the board of special inquiry, thereunto duly authorized; that the decision of said board was adverse on the ground that the said Eugenio Pascual Lorenzo was not born in the Philippine Islands, and that if born in the Philippine Islands he was not a citizen having the right of entry at the present time, but was an alien of Chinese race and descent, who presented none of the statutory evidence of right to land.

Said sections of the Act of Congress above referred to are as follows:jgc:chanrobles.com.ph

"SECTION 10. That the decision of the board of special inquiry, hereinafter provided for, based upon the certificate of the examining medical officer shall be final as to rejection of aliens affected with tuberculosis or with loathsome or dangerous contagious disease, or with mental or physical disability, which would bring such aliens within any of the classes from admission to the United States under section 2 of this Act."cralaw virtua1aw library

SECTION 25 provides in part as follows:jgc:chanrobles.com.ph

"SECTION 25. That such boards of special inquiry shall be appointed . . . at the various ports of arrival as may be necessary for the prompt determination of all cases of immigrants detained at such ports under the provisions of law. Each board shall consist of three members. . . . Such boards shall have the authority to determine whether an alien who has been duly held shall be allowed to land or shall be deported. . . . Provided, That in every case where an alien is excluded from admission into the United States, under any law or treaty now existing of hereafter made, the decision of the appropriate immigration officers, if adverse to the admission of such alien, shall be final, unless reversed on appeal to the Secretary of Commerce and Labor (in the Philippine Islands to the Collector of Customs); but nothing in this section shall be construed to admit of any appeal in the case of an alien rejected as provided for in section 10 of this Act."cralaw virtua1aw library

The above sections were also found in earlier Acts of Congress. For some years eminent lawyers questioned the constitutionality of said provisions upon the ground that the Congress had no power to confer upon boards of special inquiry authority to finally decide questions relating to the right of persons to enter the territory of the United States. The Supreme Court of the United States has time and time held the legality of such statues. (U. S. v. Sing Tuck, 194 U. S., 161; U. S. v. Ju Toy, 198 U. S., 253; Murray v. Hoboken Co., 18 Howard, 272, 280; Springer v. U. S., 102 U. S., 586, 594; Hilton v. Merritt, 110 U. S., 97, 107; Robertson v. Baldwin, 165 U. S., 275; Fong Yue Ting v. U. S., 149 U. S., 698, 713; Public Clearing House v. Coyne, 194 U. S., 497, 508; Bushnell v. Leland, 164 U.S. A., 684.)

Where the decision of questions of fact is committed by the legislative department of the Government to the head of a department, his decision thereon is conclusive; and even upon mixed questions of law and fact, or of law alone, his action carries a strong presumption and correctness and courts will not ordinarily review it, although they may have the power and will occasionally exercise the right of so doing. (Gonzales v. Williams, 192 U. S., 1; U. S. v. Arredondo, 6 Peters, 691, 729; Quinby v. Conlan, 104 U. S., 420, 425; U. S. v. California, etc., Land Co., 148 U. S., 31, 34; Foley v. Harrison, 15 Howard, 433, 447; Shepley v. Cowan, 91 U. S., 330, 340; Hadden v. Meritt, 115 U. S., 25; Bushnell v. Leland, 164 U. S., 684; Gardner v. Bonesteel, 180 U. S., 362, 369; Bates & Guild Co. v. Payne, 194 U. s., 106.)

The court has sustained the same doctrine in the case of the Philippine Railway Co. v. Solon Et. Al. (7 Off. Gaz., 427, 13 Phil. rep., 34); (Shoemaker v. U. S., 147 U. S., 282; Braun v. Metropolitan West Side, etc., Railroad Co., 66 Ill., 343.)

In the latter case the supreme court of Illinois said (p. 436):jgc:chanrobles.com.ph

"We have carefully considered the evidence relied upon by the appellant as showing that this verdict is so in consistent with the weight of the testimony as that court below should have set it aside, and this court, for its failure to do so, should reverse the judgment. It has been often decided by this court that in cases of this kind, where the jury have viewed the premises and the evidence is conflicting, we will not interfere with the verdict unless it is manifestly contrary to the preponderance of the evidence as to indicate misconduct. . . . (See also City of St. Louis v. Brown, 155 Mo., 545)"

"Under the Chinese-exclusion and the immigration laws, whereas person of Chinese descent asks admission to the United States, claiming that he is a native-born citizen thereof, and the lawfully designated officers find that he is not, and upon appeal that finding is approved by the Secretary of Commerce and Labor (Collector of Customs) and it does not appear that there is an abuse of discretion, such finding and action of the executive officers shall be treated by the courts as having been made by a competent tribunal, with due process of law, and as final and conclusive; and in habeas corpus proceedings, commenced thereafter, and based solely on the ground of the applicant’s alleged citizenship." (U. S. v. Ju Toy, 198 U. S., 253.)

The Supreme Court of the United States has decided in many cases can not prevail in a habeas corpus proceeding by showing simply that the decision of the inspector or board of special inquiry was wrong. If a fair, full hearing was given and full opportunity had to present evidence and a question of fact was presented and decided and the action taken was not arbitrary, then the decision of the inspector, affirmed by the department is final. (Chin Low v. U. S., 208., 8, 11 (1907); U. S. v. Ju Toy, 198 U. S., 253; Ex parte Ling Foot, 174 Fed. Rep., 70 (Nov. 22, 1909.)

This doctrine has also been repeatedly stated and relied upon by this court. (Ngo-Ti v. Shuster, 7 Phil. rep., 365; Ko Poco v. McCoy, 10 Phil. Rep., 442; Luzuriaga v. Insular Collector, 10 Phil. Rep., 762.)

In the case of Ngo-Ti this court decided that "the decision of administrative officers that a person seeking to enter the Islands is not a citizen is final when no abuse of authority by such officers is alleged.

This rule applies when a person seeking to enter the territory of the United States alleges that he is a citizen and is denied admission, as well as when he is prohibited from entering for any other reason. (U. S. v. Sing Tuck, 194 U. S., 161.) The rule is well settled that a Chinaman seeking admission into the United States because of the alleged birth therein must in the first instance submit his claim to the determination of the immigration officers. Such officers have a right to decide upon all questions of fact, including that of citizenship.

The mere fact that the applicant alleged that he was a citizen of the United States or territory hereof, and the fact that the administrative officers found that he was not a citizen, is not sufficient in itself to show that such administrative officers abused their authority. Practically all of the cases which come before the immigration officers, brought by persons seeking admission into the United states, involve the question of citizenship. The mere fact that the applicant alleges that he is a citizen of the United States, and the fact that the proper department of the Government has decided that he is not, provided such applicant was given a fair, full hearing and had full opportunity to present evidence, and a question of fact was presented and decided, and the action taken was not arbitrary, is not sufficient to justify the granting of the writ of habeas corpus, when such person is denied the right of admission. A mere finding of facts, after a full and fair hearing, and opportunity given to present evidence, and all the evidence which the applicant has, that the applicant is not a citizen and therefore not entitled to enter the United States is not an abuse of authority, provided that such finding was based upon such evidence.

The lower court in his decision said:jgc:chanrobles.com.ph

"The petitioner, having been born in the Philippine Islands and being a citizen, does not cease to be such citizen at law until such time as he has taken steps to renounce his allegiance as such citizen."cralaw virtua1aw library

This assumption of law is not in conformity with the actual decisions. No actual or express renouncement of citizenship is necessary. Mere absence from one’s country for a prolonged period, without the intention of returning, may be sufficient. In the present case the applicant left the Philippine Islands when he was about 15 years of age and remained in China until he was 34 years of age. He says himself that he had no intention of returning to the Philippine Islands until the year before he did return. His mother and his brother say that he married a wife in China. This fact he denies. The applicant says that he owned and operated a farm in China; that he was a subject of the Chinese Empire. If, as the lower court found, he was a citizen of the Philippine Islands notwithstanding the fact that he had resided in China for a period of nineteen years, he would be entitled to a passport from the Government of the Philippine Islands and he would be entitled to travel in foreign countries under the protection of the United States Government; and if he is really a citizen, he is entitled to the protection of the United States Government, even though he still continues to reside in the Empire of China. The applicant testified that he never had any intention of returning to the Philippine Islands until last year. It must have been upon this testimony that the Collector of Customs found that, if the applicant has never been a citizen of the Philippine Islands, he had lost such citizenship by his long residence in the Chinese Empire.

Secretary Olney (a member of president Clevelands’s cabinet) in passing upon the right of a person born within the United States, but who had for a number of years resided in Germany, to retain his citizenship in the United States, said:jgc:chanrobles.com.ph

"Otherwise, following the precedent established for a number of years, this department would be constrained to regard Josef Georg Surmann as having voluntarily relinquished his right to continued protection as a citizen of the United States by reason of his prolonged and indefinite residence abroad after attaining his majority."cralaw virtua1aw library

In the case of Surmann, he was born in the United States and only resided in Germany two years after attaining his majority. In the present case the applicant continued to reside abroad for at least eleven years after he had reached his majority without in any way indicating (even admitting that he had been a citizen of the United states) that he intended to retain such citizenship. The rule adopted by the State Department of the United States government with reference to the time within which the citizen of the United States, by residing abroad, any lose such citizenship is that a continued residence for three year, after the attainment of majority, unless it is clearly proven that the animo revertendi had existed, is sufficient to lose citizenship. (Van Dyne on Citizenship, pp. 276, 277; In re Bosque, 1 Phil. Rep., 88.)

In the present case the Collector of Customs found that. if the applicant had ever been a citizen of the Philippine Islands, he had lost such citizenship by reason of his long residence in China. This conclusion of fact, in our opinion made by the Collector of Custom. No allegation is made that the applicant did not have a fair and full opportunity to present all of the proof which he had. There is, therefore, no foundation upon which this court can base its conclusion which he did, in any way abused the authority which was conferred upon him.

The judgment of the lower court, therefore, is hereby reversed, and the applicant is hereby remanded to the custody of the proper officials to be disposed of in accordance with the order of the Collector of Customs. It is so ordered, with costs.

Torres, Carson and Moreland, JJ., concur.

Arellano, C.J., dissents.

Endnotes:

---

1. 6 Public Laws, p. 503.

1. IMMIGRATION LAW; CHINESE MERCHANT DEFINED. — Under the facts, as fully set forth in the opinion, the defendant is held to be a Chinese merchant: Quoting the decision in the case of Lee Kan v. U.S. (10 C. C. A., 669), and distinguishing the cases of the U. S. v. Sy Quiat (12 Phil. Rep. 676) and U. S. v. Lim Co (12 Phil. Rep., 703).

In this case, which appears to be in the nature of a test case, there is no contention as to the facts, which are definitely and comprehensively stipulated, and the only question submitted for our consideration is whether, under the facts thus, stipulated, defendant and appellee, who is a Chinese person, apprehended under the provisions of Act No. 702, is a "merchant" and was a "merchant" during the period of registration prescribed in the Act, as the term is defined therein.

Section 12 of Act No. 702 of the Philippine Commission provides that:jgc:chanrobles.com.ph

"The term ’merchant’ as employed in this Act signifies a person engaged in buying and selling merchandise at a fixed place of business, which business is conducted in his name, and who during the time he claims to be engaged as a merchant does not engage in the performance of any manual labor except such as is necessary in the conduct of his business as such merchant. The definition of ’laborer’ and ’merchant’ set out in this section shall receive the same construction as that given to it by the Federal courts of the United States and the rulings and regulations of the Treasury Department of the United States."cralaw virtua1aw library

This definition is taken bodily from the provisions of the Chinese-exclusion laws enacted by Congress which were extended to the island territory of the United States; and the Philippine Commission, upon which was imposed the duty of enforcing the laws thus extended to these Islands, properly refrained from any attempt to modify or to change the requisites of the definition laid down by Congress, and took care to provide that the terms "merchant" and "laborer" as used in the Act should have the same meaning as that given to them by the Federal courts of the United States, thus eliminating any possibility that, influenced by local law, the meaning given these terms should in any wise affect the uniformity of application and administration of the Chinese-exclusion laws in the United States and the Philippines.

The facts as stipulated by counsel are as follows:chanrob1es virtual 1aw library

1. Tan Sam Tao, the defendant, is a Chinaman, 38 years of age, who has been in the Philippines for the past twenty-four years.

2. On June 15, 1909, an officer of the Manila custom house demanded of the said Tan Sam Tao that he exhibit his certificate as a Chinese resident in the Philippines, and the said Tan Sam Tao declined and refused to exhibit it, and in consequence thereof was arrested by the said officer and brought before this court, where the complaint in this case was filed against him requesting the deportation of the said Tan Sam Tao from these Islands.

3. The said Tan Sam Tao justifies his sojourn in the Philippines by alleging that he is a merchant, as defined by the Act of Congress for the exclusion of Chinese from the territory of the United States, which claim is disputed by the officers charged with administration of the provisions of the said Act in the Philippines.

4. The said Tan Sam Tao is at the present time, and has been for more than ten years, a member of a firm having a fixed place of business, to wit, No. 27 Calle Nueva, Binondo Manila.

5. The said Tan Sam Tao is interested to the extent of P11,100 of the capital of P40,900 invested in the said business among the six members, in the following manner:chanrob1es virtual 1aw library

Tan Sam Tao P11,100

Tan Sam Chian 9,500

Tan Sen Ken 6,600

Tan Bu Ay 4,500

Ching Suy Hong 5,200

Tan Sam Juan 4,000

6. The said Tan Sam Tao can prove these facts by two competent witnesses who do not belong the Chinese race.

7. Proof of the existence of the said firm, composed of the six members aforesaid, appears in the articles of incorporation, wherein it is set forth that the defendant is the owner of his share in his own name, and the same facts are to be found in the books of the firm.

8. The said business consists of the purchase and sale to the public, by wholesale and retail, of textiles, under the firm name of "Jap Jin", sometimes called "Jap Jin & Co.," which, translated into English, means "United for prosperity."cralaw virtua1aw library

9. The said Tan Sam Tao does not do nor has he done other manual labor than that what is or was necessary in the said business to which he devotes himself exclusively.

10. Neither the said Tan Sam Tao does nor his firm are registered in the Mercantile Register, nor in the Bureau of Internal Revenue, but the license for the said business, issued by the Collector of the Internal Revenue, is in the name of one of the other members of the said firm.

11. The said business is established and carried on in accordance with the Chinese customs, the articles of incorporation being drawn up and the bookkeeping done in the Chinese language.

From the facts thus stipulated, there can be no doubt that appellee is in fact a merchant, but the question submitted is whether from these facts he can be said to have conducted his business in his own name, so as to bring him under the definition of the term "merchant" as above set out.

This precise question was submitted and decided upon an agreed statement of facts substantially similar to the stipulation of facts above set out, by the Circuit Court of Appeals for the Ninth Circuit (Lee Kan v. U. S., 10 C. A., 669; 15 U. S. App., 516; 62 Fed., 914) in an opinion delivered by Mr. Justice McKenna, then circuit judge, which was cited with approval by the Supreme Court of the United States in the cases of Tom Hong, Tom Dock and Lee Kit v. U. S. (193 U. S., 517,518), and in, which, as observed by Justice Day in the latter cases, "the subject was so fully considered as to leave little to be added to the discussion."cralaw virtua1aw library

From this opinion we quote at length:jgc:chanrobles.com.ph

"To ascertain the meaning of Congress, the purpose of the Act as well as the language must be considered. The provisions of section 2, supra, are amendments to the Act of May 5, 1982, commonly called the ’Geary Act,’ and they and the Act they amend are but steps in legislation to regulate and restrict the coming of Chinese laborers into the United States, and provisions in regard to other classes are but means to that end. In interpreting that legislation, this purpose has been steadily regarded, as by well-known canons of interpretation it must have been regarded, and the general language of the Acts confined to executing this purpose. (In re Low Yam Chow, 13 Fed., 605) The sanction of these Acts is the treaty of November, 1880, modifying that of 1868, except the Scott law, which, to its extent, abrogated the treaty; but this also was no exception to the purpose of the legislation, to wit, the exclusion of laborers. Besides, it was expressed in terms so irresistibly clear as to leave interpretation no function. The first article of the treaty of November, 1880, provides that ’the Government of the United States, but may not absolutely prohibit it;’ but the treaty also provides ’that the limitation or suspension shall be reasonable, and shall apply only to Chinese who may go to the United States as laborers, other classes not being included in the limitation.’ Furthermore, in the second article it is declared that ’Chinese subjects, whether proceeding to the United States as teachers, students, merchants , or from curiosity, together with their body or household servants, and Chinese laborers who are now in the United States, shall be allowed to go and come of their own free will and accord, and shall be accorded all the rights, privileges, immunities, and exemptions which are accorded to the citizens and objects of the most favored nations.’ The first Act after this treaty was that of May 6, 1882. It prohibited the coming of Chinese laborers for ten years, and contained provisions to secure the prohibition. Among others, it provided, in section 6, that the identity of ’every Chinese person other than a laborer should be evidenced by a certificate issued under the authority of the Chinese Government.’ This Act came up for consideration before Justice Field, in the case of In re Low Yam Chow, supra, and he held that the ’section was evidently designed to facilitate proof by Chinese, other than laborers coming from China, and desiring to enter the United States. . . . It is not required as a means of restricting their coming. To hold that such was its object would be to impute to Congress a purpose to disregard the stipulation of the second article of the new treaty that they should be allowed to go and come of their own free will and accord.’ The learned justice also says:jgc:chanrobles.com.ph

"And we will not assume, in the absence of plain language to the contrary, that Congress intended to disregard the obligation of the original treaty of 1868, which remains in full force except as modified by the supplementary treaty of 1880.’

"This case and its language were approved by the United States Supreme Court in Lau Ow Bew v. U. S. (144 U. S., 59, 12 Sup. Ct., 517), and other cases where there collected and commented on which sustain its principle. There is nothing the Geary and McCreary Acts which excludes them from the doctrine of these cases, or in any way includes merchants in the limitations or prohibitions on immigration. That we are right in this case is sustained by the explanation made by Mr. Geary in the House of Representatives when the McCreary bill was under consideration. The provisions of section 2, supra, were not contained in the bill reported by the Committee on Foreign Affairs. They were moved as amendments by Mr. Geary, and in explanation of them he said:jgc:chanrobles.com.ph

"There is one other definition that we think necessary. The treaty permits "merchants" to come into this country. We have no desire to restrict the movements of the mercantile class; but the trouble has been that men pretending to be merchants have asked for admission at New York and other places, have sworn that they had interest in stores established in those communities, have been admitted as merchants, and immediately developed into full-fledged laborers. We merely ask for a definition of the word "merchant’ which shall be broad enough to protect every man legitimately engaged in that industry, and narrow enough to prevent the designation being used as an instruments of fraud by a class that we do not desire. This amendment requires every Chinaman asking to be admitted into the United States, and who claims to have formerly desired here, to prove that for at least one year, at some fixed place of business within the Union, he was engaged in buying and selling merchandise. We do not demand that he shall have a dollar’s worth of stock, or a thousand dollars’ worth; we simply follow the language of the treaty, and demand this protection to our own people.’

"How efficient the amendment is for the purposes declared by Mr. Geary we shall hereafter show. It is incontestable that it was not directed at merchants any more than prior legislation was, or that it was not intended to regulate their methods of business, except so far as necessary to prevent evasions of the Act. It was directed at laborers — to prevent them from assuming a false character. To construe it otherwise is to make merchants its primary objects and subject them to a discrimination and inconvenience within the country to which no other merchants are subjected. It would not only forbid them to do business as it is their custom to do, but to do business as do business as it is their the custom of all commercial people to do. It is stipulated in this case that the designation of the firm which petitioner is a member was selected in accordance with custom which has prevailed from time immemorial among the Chinese, and expresses a propitious omen, and means, when literally rendered in English, ’everlasting,’ ’great,’ ’bountiful.’ But, as stated by counsel, the custom is not exclusive with Chinese. It prevails with other people, and the Bon Marche of Paris, and the Golden Rule Bazaar of this city were cited, among others, as examples. These designate, as the name Wing Tai Lung designates, a house rather than a firm, and expresses the sentiment and principle which shall govern its dealings. It might be better if the practice were more general. The construction contended for by the Government would not only forbid the Chinese this practice, but forbid them, as we have said, the common practice of this country, and of all commercial countries. The designations of very few business houses contain the names of all of the partners. One or two are usually named, and the others are not named, but only their existence indicated by the addition ’and company.’ We can not believe that Congress intended to forbid to Chinese merchants, not only their own customs, but the custom of merchants wherever trading is practiced. But we construe section 2 to mean that the interest of the merchant must be real, and appear in the business and partnership articles in his own name, and not that his name must appear in the firm designation. And this reaches the evil which existed. It was not complained that the firm designation was a cover to deception. According to the stipulation, it could not be in many cases. It contained no name to claimed which stood in a name other than the claimants, and that the ownership was established by Chinese testimony. Section 2 prevented this, and required name and ownership to go together, and to be established by the testimony of credible witnesses other than Chinese. This views is confirmed by considerations drawn from other sections of the Act. The definition of ’merchant’ is general. The provision of section 2 is:jgc:chanrobles.com.ph

"‘The term merchant employed herein and in the Acts of which this Act is amendatory shall have the following meaning, and none other.’

"The definition is then given as hereinbefore stated. Section 6 requires all Chinese laborers to register, the penalty of refusal being deportation from the country. All who are not merchants within the requirements of the definition (excluding, of course, certain privileged classes) are laborers; hence the definition applies not only to the merchant who claims to enter the United States, having formerly been here, but to him who stayed and while he stays.

"The interpretation of the Government makes the law forbid him to stay as a merchant and do business as he formerly did, and to what end? That he may be deported? No one desires it. That he may be compelled to register as a laborer? A useless compulsion. And, to accomplish an undesired or useless result, were are asked to attribute to Congress an intention to change the business methods of many people, and to compel them to adopt inconvenient and, maybe, impracticable ones. Chief Justice Fuller, delivering the opinion of the court in Lau Ow Bew v. U. S., supra said:jgc:chanrobles.com.ph

"‘Nothing is better settled than that statutes should receive a sensible construction, such as will effectuate the legislative intention, and, if possible, so as to avoid an unjust or an absurd conclusion.’

"And the learned Chief Justice cites Church of Holy Trinity v. U. S. (143 , 457, 12 Sup. Ct., 511); Henderson v. Mayor (92 U. S., 239). This is a wise canon of construction. By it language general enough to include other thins is confined to the purpose of the lawmakers, securing it and avoiding confusion and disappointment, and often absurdity. Illustrating this canon, Justice Field, in the case of Ah Tie (13 Fed., 294), said:jgc:chanrobles.com.ph

"‘So the judges of England construed the law which enacted that a prisoner breaking prison should be deemed guilty of felony, holding that it did not apply to one breaking out when the prison was on fire, observing that the prisoner was "not hanged because he would not stay to be burnt." And, in illustration of this doctrine, the construction given to the Bolognian law against drawing blood in the street is often cited. That law enacted that whoever thus drew blood should be punished with the utmost severity, but the courts held that it did not extend to the surgeon who opened the vein of a person falling down in the streets in a fit.’

"And the learned justice, in re Low Yam Chow, supra, gave two additional illustrations taken from decisions of the Supreme Court:jgc:chanrobles.com.ph

"‘A law of Congress declares that whoever willfully obstructs or retards the carrier of the mails of the United States shall be deemed guilty of a public offense, and be punished by a fine. A mail carrier in Kentucky was arrested by the sheriff upon a charge of murder, and for the arrest the sheriff was indicted. The Supreme Court held that the general language of the Act of Congress was not to be construed to extend to the case; for it could not be supposed that Congress intended to interfere with the enforcement of the criminal laws of the State in its legislation to prevent unnecessary obstruction in the carriage of the mails. It would have been absurd to hold that, in order to secure the speedy transportation of the mails, immunity from punishment for a crime was given to the mail carrier. (U. S. v. Kirby, 7 Wall, 482.) So the Act of Congress for the recovery of the proceeds of captured and abandoned property during the late war required the claimant in the Court of Claims to prove that he had never given aid or comfort to the rebellion; yet the Supreme Court held that one who had been pardoned by the President was relieved from this requirement. The general language of the Act covered his case, but, as the pardon in legal effect blotted out the guilt of the offender — that is, closed the eyes of the court so that it could not be considered as an element in the determination of his case — the pardon was deemed to take place of the proof, and relieved him from the necessity of establishing his loyalty. "It is not to be supposed," said the Supreme Court," that Congress intended by the language of the Act to encroach upon any of the prerogatives of the President, and especially that benign prerogative of mercy which lies in the pardoning power. It is more reasonable to conclude that claimants restored to their rights of property by the pardon of the President were not in contemplation of Congress in passing the Act, and were not intended to be embraced by the requirement in question. All general terms in statutes should be limited in their application so as not to lead to injustice, oppression, or any unconstitutional operation, if that be possible. It will be presumed that exceptions were intended which would avoid results of that nature." Carlisle v. U. S., 16 Wall., 153)

"And the learned justice said, virtually, that these cases would have justified him in restricting section 6 of the Act of 1882 to merchants coming from China, even if the general term used in the section were susceptible of a larger meaning. Undoubtedly, if the purpose of the Act had been a limitation on the immigration of merchants, as it was of laborers, its language would have applied to their coming from everywhere. There can be no temptation, in order to secure the exclusion of Chinese laborers, to give a strained construction to section 2. As we construe it, it is entirely sufficient, and completely fulfills the objects of the legislation. It does not disturb real merchants in the privileges guaranteed by the treaty, and it prevents false ones from claiming them. It makes the definition of the word ’merchant’ that which Mr. Geary aptly said it was intended to be — ’broad enough to protect every man legitimately engaged in that industry, and narrow enough to prevent the designation being used as an instrument of fraud by a class that we do not desire.’ The burden of proof is on the person seeking to land, and the character of the factors which he must prove, the time which they mush have existed, and the witnesses by who proved, together with the possibilities of counter proof inevitably suggested, make deception impossible, except under a very negligent administration of the law. A place in the firm name would not prevent this, nor is it to be apprehended."cralaw virtua1aw library

The reasoning and authority of the foregoing decision, accepted and approved by the Supreme Court of the United States, is clearly decisive of the issue involved in this appeal, and renders further discussion wholly superfluous.

It is proper, nevertheless, to direct attention to the decisions of this court in the cases of the U. S. v. Sy Quiat (12 Phil. Rep., 676) and U. S. v. Lim Co (12 Phil. Rep., 703), in each of which held the defendant not to be a "merchant" as threat terms is employed in the Act under consideration, the evidence not sustaining the claim of the defendant that he owned an interest in a certain store as alleged by him, or that his name was included in any partnership agreement touching the ownership of that store, and it affirmatively appearing that the store in question was conducted in the individual name of a Chinese person other than defendant. Upon the facts thus found these decisions were clearly correct, and are in nowise in conflict with the reasoning of the decision in the case of Lee Kan v. U. S., above cited and adopted as its own by this court.

In support of our ruling in those cases, we cited a number of decisions of the Federal courts, and among others we quoted at length from the case U. S. v. Quan Gin (61 Fed. Rep., 395), which goes much farther than was necessary for the purposes of our decisions in the former cases; and is in direct conflict with the later decisions of the Supreme Court of the United States above cited, in so far as it holds that the mere fact that the name of a Chinese person is not included in the firm name of the business in which he claims to be a partner is sufficient ground to sustain a holding that the business is not conducted" in his own name," as that phrase is used in the statute defining the word "merchant."cralaw virtua1aw library

The rule laid down in the Quan Gin case (supra) was not necessarily drawn in question by the facts proven in the Sy Quiat and Lim Co cases , and the only proper bearing of the Quan Gin case on those cases was to show, when taken together with the other Federal cases cited, that the Federal courts have uniformly held that proof that one is a "merchant" as the term is used in the Chinese exclusion acts is incomplete without proof that the alleged merchant conducts his business under his own name. The quotation from that case, however, setting out as it does the objectionable rule, doubtless was calculated to mislead those interested, and we are glad to avail ourselves of this opportunity to correct any mistaken inference which may have been drawn from the fact that this quotation appears in the body of the opinion, without an express disavowal of the rule. The rule itself not being necessary to the decisions in the Sy Quiat and Lim Co cases was not given the consideration which it would if it had been necessary for the purpose of those cases to adopt or reject it, and, indeed, the attentions of the court and of the writer of this opinion, was not directed to the Lee Can case (supra) and the case in the Supreme Court of the United States adopting the reasoning of that case (193 U. S., 517, 518), at the time when the Sy Quiat and Lim Co cases were submitted.

The judgment of the court below discharging the defendant from custody should be affirmed and the bail bond exonerated with the costs of this instance against the Appellant. So ordered.

Arellano, C.J., Torres, Mapa, Johnson and Moreland, JJ., concur.

1. IMMIGRATION LAWS; ALIEN CONTRACT LABORERS — When the services in question are essentially those of superintendent or management, a person who renders services of that nature is not a laborer, but is a superintendent or manager, and is not within either the letter or spirit of the alien immigration laws prohibiting the importation of contract laborers.

The defendants in this action, at the time of the execution of the contract hereinafter presented, were merchants doing business in the city of Manila and in other places in the Philippine islands. On the 12th day of June, 1902, the plaintiff and the defendants executed the following contract at Hybederabad Sindh, India:jgc:chanrobles.com.ph

"I, the undersigned, Chatamal Tikumal Hindu, aged 26 years, of Hyderbad Sindh, do hereby agree to enter the service of Messrs. Pohoomul Brothers, namely, Mr. Moolchand, Mr. Lekraj, and Mr. Sahijram, sons of Khiamull, on the following conditions:jgc:chanrobles.com.ph

"1. That I shall serve the said firm for the period of three years, commencing on the ______ day of the month of _______ 1902, in any place they may like to send me, at the salary of Rs. 45 per month for the said period and to be supplied with my daily food by the said firm during the period of my serving them.

"2. That all my travelling expenses to and from any place shall be at the charge of the said firm.

"3. My salary will commence from the date of departure and will be ceased from the date of leaving the destination.

"4. That I bind myself to serve the said firm honestly and faithfully and be obedient to my masters, their managers or persons in charge of their business in any place or at any time I shall be serving and I shall do the works they impose on me.

"5. The accounts to be settled at Bombay or Hyderabad Sindh, where the said masters wish.

"6. The accounts to be settled on the rate of English months.

"7. That I shall be responsible for anything and every article which will be trusted to me and shall pay all amounts of loss of such articles, as well as all amounts of goods wherever sold by me on credit, and bind myself to render all amounts or parts of them whenever and wherever called upon.

"8. That if these conditions or any of them is not strictly fulfilled by me, Messrs. Pohoomul Brothers or their agents or anyone in charge of their business at the time will be justified to dismiss them from their service, retaining all pay or amounts of pay in their hands which may be due to me at the time without having I any right to claim from the firm any amounts or balance of pay and salary.

"9. If I after signing this agreement I do not enter the service of said company, I will be liable to pay Rs. 200 as damages to said company and will at once return the amount received, with interest from the date of receipt at the rate of Rs. per cent per annum.

"10. That I bind myself to leave Gyderabad Sindh as soon as I am ordered by any of the brothers of the said company to do so. If I fail to go I will be liable as i para. 9th.

"11. The sum of Rs. 25 the above mentioned masters will give here to my parents for the maintain of family members.

"Dated thus the agreement 12th June, 1902"

As shown by the contract itself, it bears date the 12th day of June, 1902. Pursuant to said contract and by virtue of the terms thereof, the plaintiff emigrated to the Philippine Islands, arriving at Manila on the 13th day of October, 1902, and immediately thereafter began work for the defendants as manager of their store at Tacloban. He continued in their employ until the 21st day of May, 1906. During all that time he was the manager of various stores belonging to the defendants in Calbayog, Tacloban, and Jolo and for a short time was employed in the main house in Manila. So far as appears in the evidence, the only occupation in which the plaintiff engaged while in the service of the defendants was that of manager of one or the other of their stores referred to. It does not appear except rarely that he worked as a clerk or performed any manual labor whatever, unless he performance of his duties as manager may be held to be such. As shown by the evidence, his work was to a very large extent management. We can not assume, for the purpose of bringing the plaintiff within the statute, the he contracted to do prohibited work or that he worked as a laborer while here (U.S. ca. Gay. 80 Fed. Rep., 254)

During such employment the plaintiff received from the defendants the sum of P1,208.76.

After the term mentioned in the contract had expired, the plaintiff discovered, as he believed, that the contract under which he came to the Philippine Islands was void under the laws of the United States prohibiting the importation of alien labor, and thereupon brought this action to recover the value of his services, disregarding entirely the said contract and the terms thereof and asserting his right to recover on a quantum merit.

The defendants set up as their first defense that even though said contract was void, as in violation of said laws of Congress, still it is valid and binding upon the parties thereto for the reason that it has been fully executed by them. As a second defense they allege that some time prior to the commencement of this action they and the plaintiff made a full and complete settlement of their respective accounts and claims under said contract, observing strictly the terms thereof, and that it was found upon such settlement that there was due from the plaintiff to the defendants the sum of P528.38, for which sum the plaintiff then and there gave his promissory note. They ask an affirmative judgment against the plaintiff for the amount.

As to the first defense, the plaintiff replied and asserted that the contract was absolutely void, it being clearly within the prohibition of the laws of Congress relating to the importation of alien labor and it could not, therefore, be an executed contract in the sense asserted by the defendants in their first defense. As to the second defense, the plaintiff admits the execution and delivery of the note, but alleges that the same was voidable because it had been executed by him while under the duress caused by threats on the part of the defendants.

The court below in his decision found that the contract was void as claimed by the plaintiff, that the note given in pursuance of said settlement was made and executed by the plaintiff through excessive and controlling fear caused by the threats of the defendants to put in state prison for a series of years, and that, for that reason, the execution of said note occurred while plaintiff was laboring under such fear and intimidation that he did not act of his own free will. Approving plaintiff’s claim of a right to recover upon a quantum meruit, the court below disregarded the said contract wholly and gave the plaintiff a judgment for P1,208.86 and interest at 6 per cent from June 1, 1906.

This case does not fall within the provisions of the Act of Congress of March 3, 1903, but within the Acts hereinafter quoted. (Fornow v. Hoffmeister, 6 Phil. Rep., 33.)

The Act of Congress of February 26, 1985, so far as it is material to the issues in this case, reads as follows:jgc:chanrobles.com.ph

"Be it enacted, etc., That from and after the passage of this Act is shall be unlawful for any person, company, partnership, or corporation, in any manner whatsoever, to prepay the transportation, or in any assist or encourage the importation or migration of any alien or aliens, any foreigner or foreigners, into the United States, its Territories, or the District of Columbia, under the contract or agreement, parole or special, express or implied, made previous to the importation or migration of such alien or aliens, foreigner or foreigners, into the United States, its Territories, or the District of Columbia, under contract or agreement, parole or special, express or implied, made previous to the importation of migration of such alien or aliens, foreigner or foreigners, to perform labor or service of any kind in the United States, its Territories, or the District of Columbia.

"SEC. 2. That all contracts or agreements, express or implied, parole or special, which may hereafter be made by and between any person, company, partnership, or corporation, and any foreigner or foreigners, alien or aliens, to perform labor or service by any person in the United States, its Territories, or the District of Columbia previous to the migration or importation of the person or persons whose labor or service is contracted for into the United States, its Territories or the District of Columbia previous to the migration or importation of the person or persons whose labor or service is contracted for into the United States, shall be utterly void and of no effect.

"SEC. 3. That for every violation of any of the provisions of section one of this Act the person, partnership, company, or corporation violating the same, by knowingly assisting, encouraging, or soliciting the migration or importation of any alien or aliens, foreigner or foreigners, into the United States, its Territories, or the District of Columbia, to perform labor or service of any kind under contract or agreement, express or implied, parole or special, with such alien or aliens, foreigner or foreigners, previous to becoming residents or citizens of the United States, shall forfeit and pay for every such offense the sum of one thousand dollars, which may be sued for or recovered by the United States or by any person who shall first bring his action therefor, to any such contract or agreement, as debts of lime amount are now recovered in the circuit court of the United States; the proceeds to be paid into the Treasury of the United States; and separate suits may be brought for each alien or foreigner being a party to such contract or agreement aforesaid. And it shall be the duty of the district attorney of the proper district to prosecute every such suit at the expense of the United States.



"SEC. 5. That nothing in this Act shall be so construed as to prevent any citizen or subject of any foreign country temporarily residing in the United States, either in private or official capacity, from engaging, under contract or otherwise, persons not residents or citizens of the United States as aforesaid;

"Nor shall this Act be so construed as to prevent any person or persons, partnership, or corporation from engaging, under the contract of agreement, skilled workmen in foreign countries to perform labor in the United States upon any new industry not at present established in the United States.

"Provided. That skilled labor for that purpose can not be otherwise obtained; nor shall the provisions of this Act apply to professional actors, artists, lecturers, or singers, nor to persons employed strictly as personal or domestic servants:jgc:chanrobles.com.ph

"Provided, That nothing in this Act shall be construed as prohibiting any individual from assisting any member of his family or any relative or personal friend to migrate from any foreign country to the United States, for the purpose of settlement here."cralaw virtua1aw library

This has been amended and supplemented by several subsequent enactments, but not in a way to effect the questions involved in this action.

It is evident from reading the statute that, so far as the present action is concerned, the main provisions of the Act are: (1) That the prepayment of transportation or the assistance or encouragement of the immigration of aliens or foreigners under a contract to labor in the United States is unlawful; and (2) that such contracts made previous to their emigration are utterly void and of no effect.

The evidence is undisputed that the contract in this action was made at Hyderabad Sindh on the 12th of June, 1902, and the purpose of the contract was to secure the emigration of the plaintiff to the Philippine Islands in order that he might serve the defendants as manager of one or more of their stores located herein. The contract contains an express provision for the payment by defendants of the expense of transportation of the plaintiff to these Islands. It is admitted that the plaintiff, at the time of his emigration to these Islands, was an alien and a foreigner, being a native of British India and a subject of that empire.

The facts proved in the case bring the contract clearly within the prohibition and condemnation of the statute above quoted provided the plaintiff may be considered a laborer within the meaning of the Act.

In the case of Holy Trinity Church v. United States (143 U. S., 457), the court said at pages 463, 464, and 465:jgc:chanrobles.com.ph

"Again, another guide to the meaning of a statute is found in the evil which it is designed to remedy; and for this the court properly looks at contemporaneous events, the situation as it existed, and as it was pressed upon the attention of the legislative body. (United States v. Union Pacific Railroad, 91 U. S., 72, 79) The situation which called for this statute was briefly but fully stated by Mr. Justice Brown when, as district judge, he decided the case of United States v. Craig (28 Fed. Rep., 795, 798): "The motives and history of the Act are matters of common knowledge. It had become the practice for large capitalists in this country to contract with their agents abroad for the shipment of great numbers of an ignorant and servile class of foreign laborers, under contracts, by which the employer agreed, upon the one hand, to prepay their passage, while, upon the other hand, the laborers agreed to work after their arrival for a certain time at a low rate of wages. The effect of this was to break down the labor market, and to reduce other laborers engaged in like occupations to the level of the assisted immigrant. The evil finally became so flagrant that an appeal was made to Congress for relief by the passage of the Act in question, the design of which was to raise the standard of foreign immigrants, and to discountenance the migration of those who had not sufficient means in their own hands, or those of their friends, to pay their passage.’

"It appears, also from the petitions and in the testimony presented before the committees of Congress, that it was this cheap unskilled labor which was making the trouble, and the influx of which Congress sought to prevent. It was never suggested that we had in this country a surplus of brain toilers, and, least of all, that the market for the services of Christian ministers was depressed by foreign competition. Those were matters to which the attention of Congress, or of the people, was not directed. So far, then, as the evil which was sought to be remedied interprets the statute, it also guides to an exclusion of this contract from the penalties of the Act.



"We find, therefore, that the title of the Act, the evil which was intended to be remedied, the circumstances surrounding the appeal to Congress, the reports of the committee of each House, all concur in affirming that the intent of Congress was simply to stay the influx of this cheap unskilled labor."cralaw virtua1aw library

In the case of the United States v. Laws (163 U. S., 258), the court cites and approves the doctrine laid down in the above case, and in speaking of the opinion written in that case says, at page 264:jgc:chanrobles.com.ph

"Upon the basis, therefore, that it could not be imputed as the intention of Congress, notwithstanding the language used in the Act, to prevent the introduction of religious teachers, it was held that the Act did not apply to the case before the court. Both grounds were covered in the opinion; the one that the Act was clearly intended to apply only to cheap, unskilled labor, and the other that in no event could it be construed as applying to a contract for the services of a rector or a pastor of a religious corporation. The first ground covers the case in hand. The construction given to the words ’labor or service’ by this court in the above case was neither forced, unnatural, nor unusual. Considering the clear purpose of the Act, the construction adopted was a natural and proper one."cralaw virtua1aw library

To quote further from the opinion in this case, pages 264 and 265:jgc:chanrobles.com.ph

"In Aikin v. Wasson (24 N. Y., 482) the plaintiff contracted with a railroad company to construct part of its road. Defendant was a stockholder in the company, which became insolvent. It was indebted to plaintiff for the services of himself and his laborers and servants under his contract. Section 10 of the Railroad Act enacted that all the stockholders of every such company shall be jointly and severally liable for all the debts due or owing to any of its laborers and servants for services performed for such corporation.’ It was held that the plaintiff was neither a laborer nor a servant within the meaning of the Act.

"In Coffin v. Reynolds (37 N. Y., 640) the statute reads: "The stockholders of a company organized under the provisions of this Act shall be jointly and severally individually liable for all debts that may be due and owing to all their laborers, servants, and apprentices for services performed for such corporation.’ The plaintiff was the secretary of the company and commenced an action against the defendant as a stockholder to recover the amount of his salary, the company being insolvent. It was held that he could not recover. He was not a laborer or a servant within the meaning of the statute.

"In Wakefield v. Fargo (90 N. Y., 213), under the same statute, it was held that one who was employed at a yearly salary as bookkeeper and general manager was not a laborer, servant, or apprentice within the meaning of the Act, and hence that he could not recover against the stockholders for a balance of salary due him from the insolvent corporation.

"These statutes were passed for the protection of laborers, servants, apprentices, and the like, and the opinions of the courts in relation to the class of individuals that would be included within the meaning of those terms are somewhat relevant, although not entirely analogous, to the case before this court."cralaw virtua1aw library

It thus appears that the Supreme Court of the United States has decided clearly and definitely that the only laborers to which the Act in question refers are those engaged in cheap, unskilled labor.

In the case of the United States v. Gay (80 Fed. Rep., 254), it was held that the Acts of February 26, 1985, and March 3, 1891, "are highly penal and must be so construed as to bring within their condemnation only those who are shown by direct and positive averments to be embraced within their terms;" and "they are to be construed in the light of the evil to be remedied, and are limited to cases in which the assisted immigrant is brought into this country under a contract to perform manual labor or service." This case was affirmed in 37 C. C. A., 46.

From the doctrine laid down by the cases referred to it so clear to our minds that the plaintiff in this action does not come within the prohibited class. We are confirmed in this view by an examination of the decisions of other jurisdictions. While not analogous to the case under consideration, they are helpful and instructive.

The court, in the case of Brockway v. Innes (39 Mich., 47), interpreted the provision of the constitution of the State of Michigan which provided that corporation stockholders should be liable "for labor performed for such corporations." In that case an attempt was made to make the stockholders of the corporation liable for the services of an assistant chief engineer. The court in deciding that case said (p. 48):jgc:chanrobles.com.ph

"But we feel very sure that the position of an assistant chief engineer would never have been classed as that of a laborer, nor his work as labor, in the popular sense. It is mostly direction and scientific work, involving much more superintendent that personal exertion in manual labor. He is chosen for his knowledge and not for his muscular capacity, in which latter quality he may or may not be eminent."cralaw virtua1aw library

In the case of Trust Company v. Grand Rapids Democrat (113 Mich., 615) the question of the right of preference arose under a statute reading as follows:jgc:chanrobles.com.ph

"The funds which shall be owed for labor by any person, persons, or corporation at the time hem they, or it shall become insolvent, shall be preferred claims, etc."cralaw virtua1aw library

The nature of the work performed by the person claiming preference "was the writing of editorials and the performing of various kinds of editorial work required to be done on the daily and weekly issues of the Grand Rapids Democrat, . . . . the preparation and correction of copy for the printers, the direction of the make-up of the paper, including full charge of all branches of the mechanical department of said paper after the close of the business office each night." Another claim for preference was presented by one who was engaged "in reporting, going around to the different wholesale houses, collecting market reports and assisting in editorial work and proofreading." In deciding the case the court said, in regard to these two claimants, "it was the work of professional men rather than the work of laborers, giving the word its ordinary acceptation, and is not such work as is intended to be covered by the statute."cralaw virtua1aw library

In the case of Wildner v. Ferguson (42 Minn., 112) it was held, interpreting a statute providing for the exemption of wages, that the words "a laboring man or woman" did not include and protect an agent who sells goods by sample, driving about for that purpose with his own horse and buggy and receiving a weekly salary.

In the case of Wakefield v. Fargo (90 N. Y., 213), the questions before the court was the interpretation of meaning of the words "laborers, servants, and apprentices" in a statute making stockholders "liable for all debts that may be due and owed to their laborers, servants, and apprentices for services performed for such corporation." It was held in that case that one employed at a yearly salary as a bookkeeper and general manager is not a laborer, servant, or apprentice within the meaning of the provision of law just quoted. In that case the person seeking the favor of the statute "kept account of the receipts and disbursements of the company, and in the absence of the superintendent had the charge and control of its business."cralaw virtua1aw library

In the case of Aiken v. Wasson (24 N. Y., 482), the person seeking the favor of a statute similar to the one in the case last cited was "a contractor with the Albany and Northern Railroad Company, of which the defendant is a stockholder, for the construction of a part of its road." The court said (p. 483):jgc:chanrobles.com.ph

"It is obvious from the nature and terms of this and other provisions of the Act, as well as from the general policy indicated by analogous statutes, that the legislature intended to throw a special protection around that class of persons who should actually perform the manual labor of the company."cralaw virtua1aw library

It was held that such contractor was not laborer within the meaning of the Act. To the same effect are Balch v. Railroad Co. (46 N. Y., 521); Ericsson v. Brown (38 Barb. (N. Y.) , 390); Stryker v. Cassidy (10 Hun. (N. Y.) , 18).

In the case of the Railroad Co. v. Leuffer (84 Pa. St., 168), the court said (p. 171):jgc:chanrobles.com.ph

"When we speak of the laboring or working classes, we certainly do not intend to include therein persons like civil engineers, the value of whose services rests rather in their scientific than in their physical ability. We thereby intend those who are engaged not in head but in hand work and who depend upon such hand work for their living."cralaw virtua1aw library

To the same effect are Heebner v. Chabe (5 Pa. St., 117); Seider’s Appeal (46 PA. St., 57); Sullivan’s Appeal (77 Pa. St., 107).

A statute in the State of Texas gave a lien to mechanics, laborers, and operators who have performed labor or work with tools, teams, or otherwise in the construction, operation, and repair of any railroad." In the case of Railway v. Matthews (75 Tex., 92), the court, interpreting that statute, said (p. 94):jgc:chanrobles.com.ph

"The word ’laborer,’ as used in the statute, evidently means one who performs manual services in the construction, repair, or operation contemplated by the statute and does not embrace one who may work in preparing something of his own to sell to a railway company after it has been rendered suitable through his toil to be used in the construction or repair of a railway."cralaw virtua1aw library

In the case of Farinholt v. Luckhard (90 Va., 936), the court said (p. 938):jgc:chanrobles.com.ph

"But we think it safe to say that the word ’laborer,’ when used in its ordinary and usual acceptation, carries with it the idea of actual physical and manual exertion or toil and is used to denote that class of persons who literally earn their bread by the sweat of their brows and who perform with their own hands, at the cost of considerable physical labor, the contracts made with their employers."cralaw virtua1aw library

In the case of Ho King (14 Fed. Rep., 724) it was held that "the term ’laborer’ is used in the treaty with China of November 17, 1880, and the Act in aid thereof of May 6, 1882, in its popular sense, and does not include any person but those whose occupation involves physical toil and who work for wages." It was there held that a Chinese actor or theatrical performer was not a laborer.

In the case of Malcomson v. Wappoo Mills (86 Fed. Rep., 192) the question was presented as to who came within the provisions of an Act entitled "An Act to provide for laborer’s liens." The court said (pp. 198):jgc:chanrobles.com.ph

"The body of the Act gives to all employees in the factories, mines, etc., a lien, whether they be employed either by the day or month, whether the contract be in writing or not, to the extent of the salary or wages that may be due. The word ’laborer’ does not appear in the body of the Act. To sustain the Act . . . the word ’laborers’ must be synonymous with the word ’employees;’ and, as the word ’laborers’ is used in the title, the word ’employees’ body of the Act, must be so restricted as to mean such employees as are laborers. This being so, neither the superintendent nor the bookkeeper comes within this term."cralaw virtua1aw library

In the case of Epps v. Epps (17 Ill. App., 196) it was held that a bookkeeper was not a laborer within a statute relating to exemptions. (Coffin v. Reynolds, 37 N. Y., 640)

In the case of Richardson v. Dexter (85 Me., 372) it was held in ordinary speech a laborer is one who hires himself out, or who is hired out, to do physical toil. (See also Kansas City v. Donald, 80 Mo. App., 448; 18 Ency. of Law, p. 71.)

In the appeal of Clark (100 Mich., 448) it was held that:jgc:chanrobles.com.ph

"The general and collecting agent of a corporation engaged in the manufacture and sale of flouring mills and milling machinery, who receives an annual salary and his necessary and reasonable travelling expenses, and who occasionally, in the performance of his duties, performs some manual labor in fixing the machines that have been sold, in operating a new mill and securing its satisfactory running, and in giving instructions to others, is not a ’laborer,’ within labor debts due from insolvent corporations."cralaw virtua1aw library

The following cases have held that drummers are not laborers: Wildner v. Ferguson (42 Minn., 112); People v. Remington (109 N. Y., 631); Briscoe v. Montgomery (93 Ga, 602); Epps v. Epps (17 Ill. App., 196); Eppstein v. Webb (44 Ill. App., 341).

In the following cases a civil engineer was held not to be a laborer: Railroad Co. v. Leuffer (84 Pa. St., 168); Conant v. Van Schaick (24 Barb. (N. Y.) , 87); Brockway v. Innes (39 Mich. 47); State v. Rusk (55 Wis., 465).

The following cases have held that a superintendent is not a laborer: Railroad Co. v. Baker (14 Kans., 428): Blakey v. Blakey (27 Mo., 39); Malcomson v. Wapoo Mills (86 Fed. Rep., 192); Blanchard v. Railroad Co. (87 Me., 241); Cole v. McNeil, (99 Ga., 250); Wakefield v. Fargo (90 N. Y. 213); Hill v. Spencer (61 N. Y., 274); People v. Remington (109 N.Y., 274); People v. Remington (109 N. Y., 631); State v. Rusk (55 Wis., 465); Isbell v. Dunlap (17 S. C., 581); Whitaker v. Smith (81 N. C., 340); Krauser v. Ruckel (17 Hun. (N. Y.) , 463).

In the State v. Rusk (55 Wis. 465) it was said that the word "laborer," as employed in the Act empowering the governor to expand certain moneys in paying the claims of laborers, to expend certain moneys in paying the claims of laborers, etc., for work on a line of railway, should be interpreted in the sense in which it is ordinarily used and understood when applied to men engaged in constructing railways. It was held that engineers were not included.

The court in the case of Bank v. Shenandoah Iron Co. (35 Fed. Rep., 436), interpreting a statute of Virginia giving the wages of employees of an insolvent corporation preference, held that the president of an iron manufacturing company, whose official designation was "general manager," was not entitled to the preference provided by said statute. See England v. Organ Co. (41 N. J. Eq., 470).

In Kyle v. Montgomery (73 Ga., 343), the court held that the "boss" boss of a department of a factory, having charge of the employment and discharge if the men who worked under him, who was required to do no manual labor, but was simply required to exercise his experience and knowledge in the direction of the operatives, can not be regarded as a day laborer within the meaning and intent of the statute exempting the wages of such persons from garnishment. (18 L. R. A., 309).

There are many cases holding, in some respects, apparently conflicting doctrines. For example:chanrob1es virtual 1aw library

In the case of Heckman v. Tammen (184 Ill. 144) a bookkeeper was held to be a laborer within a statute preferring the laborers of an insolvent employer.

The following cases have held that a clerk is a laborer: Cole v. McNeill (99 Ga., 250); Railroad Co. v. Baker (14 Kans., 428); Signor v. Webb (44 Ill. App., 338); Epps v. Epps (17 Ill. App., 196).

In the case of Heckman v. Tammen (184 Ill., 144), construing an Act entitled "An Act to protect employees and laborers in their claims for wages," in which it was provided that "in all such cases the debts owed to laborers or servants, which have accrued by reason of their labor or employment, shall be considered and treated as preferred claims, and such laborers or employees shall be preferred creditors," it was held that the parties claiming the favor of the statute performed "physical labor as typesetters, cylinder feeders, pressmen, and one also kept the books, at stipulated wages of so much per week. That in their employment they had acquired and used skill would not render the designation ’laborer’ inapplicable. Their labored with their hands for their employer for wages and were clearly laborers within the meaning of the statute. . . . While we are disposed to hold that the statute must be confined to those who perform manual service, still it can not be confined to such services only that require no skill in their performance of them."cralaw virtua1aw library

In the case of Lawton v. Richardson (118 Mich., 669), the court, interpreting a statute which gave a preference to debts for labor, held that debts due to employees in a dry goods store, who act as department managers and salesmen, and perform such services as the unpacking of goods, marking them and placing them upon shelves, sweeping out the store, and keeping the stock in order, are debts for labor within the meaning of the statute. The court said (p. 671):jgc:chanrobles.com.ph

"The circuit judge found that, as to the work done by Mr. Lawton when in New York, it was not the work of a laborer within the meaning of the statute; but as to the other work done by him, and the work done by other complainants, it was labor within the meaning of the statute. It is apparent from what has already appeared that nearly all the labor done was not intellectual or supervisional [professional] in its character, nor was it of an especially skillful kind. It was, in the main, manual labor and of such a character as the statute was intended to protect."cralaw virtua1aw library

The following cases have held foremen to be laborers:chanrob1es virtual 1aw library

Flagstaff Silver Mining Co. v. Cullins (104 U. S., 176); Capron v. Strout (11 Nev., 304); Kyle v. Montgomery (73 Ga., 337).

The following cases have held a superintendent to be a laborer: Gold Mining Co. v. Bouscher (9 Col., 385); Coraker v. Mathews (25 Ga., 571); Moore v. Heaney (14 Md., 559); Pendergast v. Yandes (124 Ind., 159).

In the case of Williams v. Link (64 Miss., 641), the court said (p. 643):jgc:chanrobles.com.ph

"Where physical toil is the main ingredient of services rendered, although directed and made more valuable by skill, the person performing them is a laborer within the meaning of the statute. The appellant is shown by the record to have been a laborer, engaged as a clerk in a store, and the wages earned by him as such laborer are exempt from garnishment."cralaw virtua1aw library

In the case of the Flagstaff Silver Mining Co. v. Cullins, supra, the court said (p. 177):jgc:chanrobles.com.ph

"Statutes giving liens to laborers and mechanics for their work and labor are to be liberally construed. (Davis v. Alvord, 94 U. S., 545.) The finding of the district court makes clear the character of the services rendered by the defendant in error. He was not the general agent of the mining business of the plaintiff in error. That office was filled by Patrick. He was not a contractor. His services were not of a professional character, such as those of a mining engineer. He was the overseer and foreman of the body of miners who performed manual labor upon the mine. He planned and personally superintended and directed the work, with a view to develop the mine and make it a successful venture. His duties were similar to those of the foreman of a gang of track hands upon a railroad, or of a force of mechanics engaged in building a house. Such duties are very different from those which belong to the general superintendent of a railroad or the contractor for erecting a house. Their performance may well be called work and labor; they require the personal attention and supervision of the foreman, and occasionally in an emergency, or for an example, it becomes necessary for him to assist with his own hands. They can not be performed without much physical exertion, which, while not so severe as that demanded of the workmen under his control, is nevertheless as really work and labor. Bodily toil, as well as some skill and knowledge in directing the work, is required for their successful performance. We think that the discharge of them may well be called work and labor, and that the district court rightfully declared the person who performed them entitled to a lien under the law of the Territory."cralaw virtua1aw library

The reasons for this apparent conflict are found, not, perhaps, so much in the different ways in which different courts regard the general subject, as in the wording of the particular statutes under consideration, and in the fact that one who is called, for example, a clerk in one jurisdiction and performs therein a class of service which entitles him to that designation, will still be called a clerk in another jurisdiction, although he performs different or additional services. In other words, while his services in the former jurisdiction are purely those of a clerk, in the other they are a mixture of those of clerk and superintendent, or overseer or bookkeeper, or traveling salesman. This is a source of considerable confusion to one reading the decision hastily.

Moreover, in viewing the apparent discordance between the holdings of many of the courts above cited and those of Holy Trinity Church v. United States and United States v. Laws, supra, we must not overlook the fact that the rules of statutory construction and interpretation applicable to the statute under consideration in the case at bar are directly opposite to those applicable to the statutes interpreted and construed in the other cases. the statute now under consideration, being highly penal, must be construed with extreme strictness; while the statutes dealt with in the other cases, having for their object the giving of liens "to laborers and mechanics for their work and labor," are to be liberally construed.

The courts are, however, substantially uniform in holding that, where the nature of the employment is essentially of superintendent or management, he who engages in that employment is not a laborer but a superintendent or manager and is not within the letter or the spirit of the Act.

The judgment of the court below is hereby reversed and the cause remanded for a new trial, without special finding as to the costs of this instance. So ordered.

Arellano, C.J., Torres, Mapa and Carson, JJ., concur.

1. ELECTION LAW; REMOVAL OF ELECTED MUNICIPAL OFFICER; JURISDICTION. — Plaintiff was elected municipal president while he was still a member of the local school board, from which latter office he had not resigned. The election was protested and the municipal council was approved by the provincial board. Plaintiff then submitted the matter to the Court of First Instance, where a demurrer was interposed on the ground that the court had no jurisdiction. The demurrer was sustained and plaintiff appealed to this court: Held, That the municipal council, with the approval of the provincial board, has the power, as well as the Governor-General, to remove any person elected as a municipal officer who is subsequently shown to be ineligible, although he has already assumed the duties of the office; and that, in such cases, the Election Law, which is the only law, applicable, does not confer upon Courts of First Instance jurisdiction to review a resolution of a municipal council approved by the provincial board.

The appellant was elected municipal president of Lipa, in the Province of Batangas, at the election held on November 5, 1907, without having previously resigned the office which he was holding as member of the local school board of the said municipality. In January, 1908, he took possession of the office of municipal president to which he had been elected, and in the same month the candidate defeated in that election filed a protest against the election of the appellant, on the ground of the latter’s ineligibility on account of his not having resigned the said office as member of the local school board. The proper information having been filed, the municipal council of Lipa, in view of the result thereof, declared the said office of municipal president of Lipa to be vacant, which resolution was designated the opponent, Guillermo Catigbac, to occupy the said office.

With these facts as a basis, the appellant instituted suit in the Court of First Instance of Batangas, in which he demanded:chanrob1es virtual 1aw library

First. That he declared eligible to the office f municipal president of Lipa, notwithstanding his not having expressly resigned the office of member of the local school board.

Second. That, therefore, the resolution of the municipal council of Lipa, declaring vacant the office of president of the same municipality, be declared null and void; and

Third. That the designation of Guillermo Catigbac, made by the provincial board, to occupy the said office of municipal president, be likewise annulled.

To this complaint the respondents filed a demurrer, and among other reasons alleged lack of jurisdiction of the court to try the case, which demurrer was admitted by the court on the said ground. The case has been forwarded to this court by virtue of the appeal filed by the petitioner against the order of the court.

Section 12 of the Election Law, No. 1582, as amended by Act No. 1726, in its last paragraph, read as follows:jgc:chanrobles.com.ph

"Any councilor or other municipal officer or other person who has information that a municipal officer or other person who has information that a municipal officer is ineligible shall immediately report the matter to the municipal council, which shall hold an investigation giving the officer opportunity to present the evidence in his favor. The council shall declare the office vacant or dismiss the proceedings as the facts may warrant. A record of the proceedings and evidence shall be kept and forwarded to the provincial board which, within thirty days, shall affirm or reverse the action of the council."cralaw virtua1aw library

"The Governor-General, upon receipt of proof satisfactory to him that an ineligible person is holding any provincial or municipal office or employment, may summarily remove such person."cralaw virtua1aw library

As the appellees say in their brief, and with which we agree, the provision just quoted reserves to the municipal council, with the due approval of the provincial board, and also to the Governor-General, the power to remove from office any person elected as a municipal officer and who is subsequently proven to be ineligible, although he be already holding the office, and in no part of the Election Law is jurisdiction granted to the Courts of First Instance to review the resolution of the municipal council and the approval thereof, in such a case, of the provincial board, wherein such removal is ordered. Such a resolution is final and conclusive, in the sense that it can not be reviewed by the Courts of First Instance, and is so provided by the Election Law. It is superfluous to add that this law, being special and exclusive as it is in the matter of elections, is the one applicable to the present case, rather than any other of a general character. (Sec. 228, Code of Procedure in Civil Actions.)

The order appealed from is affirmed, with the costs in this instance against the Appellant. So ordered.

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

1. CONTRACT; AGREEMENT NOT TO ENGAGE IN SIMILAR BUSINESS. — A stipulation contained in a contract executed by an employer and an employee, by which the latter agrees that for a period of years he will not in any way engage in any business or enterprise similar to that conducted by said employer, and that in the event of his so doing he will pay to such employer a certain sum of money as damages, is valid and may be enforced by appropriate action.

On January 11, 1902, the plaintiff and the defendant entered into a contract with the following stipulations.

"First. Pedro Koch binds himself to render his services as an employee of the commercial firm of Carlos Gsell, established in this city, and to devote all his practical and technical knowledge exclusively to the business of the said Gsell. He binds himself, furthermore, not to do business, for account of himself, for another person, of for his own account, and to keep the most absolute reserve with regard to the business commended to him;

"Second. The term or duration of this contract shall be two and one—half years, counting from the first of the present month of January, 1902, to which the effect of this document shall be retroactive; and the said Pedro Koch shall receive as salary and for board and lodging the sum of two hundred pesos, Mexican currency per month;

"Third. The said Pedro Koch binds himself to pay in cash to Mr. Gsell the sum of ten thousand pesos if, after leaving the firm of C. Gsell, and against the latter’s will, he shall engage directly or indirectly in carrying on any business in which the said Carlos Gsell is at present engaged, or within the two and one—half years fixed for the duration of the present contract in these Islands, either as an employee or member of a firm or company, on or his own account; and he furthermore binds himself to pay in cash to Mr. Gsell an equal sum of ten thousand pesos for each violation of any secret of the business entrusted to him;

"Fourth. This contract shall subsist in each and all of its parts during the period of time above mentioned, even though Mr. Gsell should organize a company or transfer his business to another person, for in these cases the present contract shall be understood also to be transferred either to the company or to the person or persons who acquire the business referred to; and

"Fifth. Under the preceding conditions, the contracting parties have executed the present contract which they bind themselves to observe and comply with well and faithfully in each and all of its parts, in the most solemn manner conformable to law, and by common consent they designate this city of manila as the place where all the acts and proceedings, judicial and extrajudicial, that originate therefrom shall be performed."cralaw virtua1aw library

On June 30, 1904, the same plaintiff and defendant executed the following instrument:jgc:chanrobles.com.ph

"The contract between Mr. Carlos Gsell and Mr. Pedro Koch, made in Manila on January 11, 1902, before the notary Mr. Enrique Barrera, having expired, the first named this day delivers to Mr. Pedro Koch a ticket for passage on the steamer Rubi to Hongkong and another ticket for passage from that port on the German mail steamer to Genoa. Moreover, he delivers to him the sum of $200 Mexican currency as travelling expenses and for the purchase of railroad tickets from Genoa to Switzerland.

"By the foregoing the contract before mentioned, of hire of personal services, is fulfilled, with the exception of its third paragraph, which shall subsist in all its parts and with all the penalties stipulated for its violation.

"Finally, Mr. Pedro Koch declares that he sill not make any subsequent claim against the firm of Mr. Carlos Gsell."cralaw virtua1aw library

It is alleged in the complaint that, during the last ten years, the plaintiff has engaged solely and exclusively in the manufacture of umbrellas, matches, and hats in the city of Manila, and at the present time continues to engage in the manufacture of the aforementioned articles, and among them the manufacture of straw hats; that the contracts above mentioned were executed in consequence of and under the following circumstances: The defendant, while a young laborer without experience or technical knowledge, a native and resident of Switzerland was, by recommendation and at the expense of the plaintiff, employed as an apprentice in an important hat manufactory in Switzerland, under the agreement that, after he should have acquired some experience, he should come to Manila at the expense of the plaintiff, to work in the latter’s hat manufactory as in fact he did, after an apprenticeship of one year and a half in the aforesaid manufactory in Switzerland. That on February 11, 1900, the defendant arrived at this port, at the expense of the plaintiff, on which date a contract of lease of services was executed between both parties which contained nearly the same clauses as that mentioned in the complaint, which latter contract was executed the expiration of the term of the first contract; that in the manufacture of hats in his manufactory in Manila, the plaintiff uses various recipes, formulas, and procedure, the acquisition and knowledge of which have cost more than P20,000; that the defendant, during his stay in plaintiff’s manufactories in Manila finally became familiar with the said procedure, formulas, and recipes employed by the plaintiff’ that since the month of November, 1907, and after having left the service of the plaintiff, the said defendant engaged and continues to engage in the manufacture of straw hats in the city of Manila, against the will of the plaintiff, thereby violating, to the serious detriment of the latter, the stipulations of the aforementioned contracts of January 11, 1902, and June 30, 1904, and that he is therefore, oblige to pay the plaintiff the sum of P10,000.

On the basis of the foregoing facts, the plaintiff requests: (1) that judgment be entered against the defendant and in favor of the said plaintiff for the sum of P10,000 and the costs of the trial; and (2) that, in default of such payment, the defendant be prohibited from engaging in the manufacture of hats in the Philippine Islands.

The defendant filed a dumurrer to the complaint to the complaint on the ground that it did not set forth facts sufficient to constitute a cause for action, which demurrer was admitted by the court and the plaintiff was allowed a term of five days to amend the complaint, should he deem proper to do so. The plaintiff stated that he did not desire to amend it and requested that the case be decided on its merits, whereupon the court issued an order of dismissal, to which exception was taken in due form by the plaintiff.

The question of law here raise whether the stipulation contained in the third clause of the contract alleged in the complaint is or not valid in law. The trial court has decided it in the negative, basing its decision on article 1583 of the Civil Code, which declares the hire of services for life to be null and void, concluding that, by virtue of the said stipulation, the services of the defendant, in so far as they concern the conduct of any business or undertaking in which the defendant might engage, were pledged for life to the plaintiff, for in the said clause, it appears that the services are not confined to any specific business or undertaking — the manufacture of straw hats to which the complaint refers being included therein, nor is there a limit to the time during which the defendant shall be obliged to render his services exclusively to the plaintiff in the business or undertaking in which the latter might engage.

It is questionable that were it a matter of the hire of services for life the contract would be null and void in accordance with the said provision of the Civil Code, which, moreover, is clear and specific. But, in our opinion, that is not the case. The third clause referred to contains no contract whatever for the hire of services of any kind for any period of time, either long or short, and still less during the whole of defendant’s life; far from this, it refers distinctly to the cessation on the services stipulated, not indeed for life, but for only two years and a half, in the first and second clauses of the contract; so that the agreement therein contained rests on the necessary supposition of the defendant’s having left the service to the plaintiff. The hire of services covenanted between both parties was terminated at the expiration of that period of two years and a half agreed upon, so recognized and expressly declared in the instrument of June 30, 1904, and therefore there is no occasion to speak here of such a hiring.

Considering the question from another point of view, the court says in the order appealed from the virtue of what was covenanted in the third clause of the contract, the defendant was bound not to engage, either as a member of a firm, as an employee, or on his own account, directly or indirectly, in carrying on any business in which the plaintiff Gsell might be engaged, and in case of failure to comply therewith he was bound to pay in cash to the said plaintiff therewith he was bound to pay in cash to the said plaintiff the sum of P10,000, which stipulation, it may be said in addition, deprives the defendant of the liberty to use his abilities for his own benefit or that of any other person except the plaintiff; that it constitutes a restrictive obligation or a prohibition in absolute terms with respect to defendant’s conducting one or various industries; it is also an infringement of the latter’s liberty to remain in these Islands, because if he conducts the same industry or engages in the same business in which the plaintiff is engaged, he would find himself obliged to absent himself from the Islands in order not to pay the P10,000 specified in the aforesaid third clause of the contract.

We believe that this opinion is not well founded, considering the terms of the clause referred to. It does not prohibit the defendant from conducting any industry or business, even the kind of business in which the plaintiff is engaged. The defendant has not found himself to abstain from such kinds of businesses or industries as are mentioned in the order appealed from. At least, no obligation whatever of that kind appears to have been assumed in the contract. On the contrary, the latter allows the presumption that the said defendant may engage in the same industries or businesses in which the plaintiff is engaged, and the sole obligations that he was contracted with regard to this feature is that he shall pay to the latter P10,000 in case he should engage in them. Consequently the question which arises is that as to whether a person can lawfully bind himself to pay certain sum of money to another to another in case the former shall conduct a specified business or industry. And we certainly do not see why such an obligation should be considered null and void, supposing that it is a question of a lawful industry or business. Within the liberty to make contracts, sanctioned by our laws, everyone is free to execute the contracts he may consider suitable, provided they are not contrary to law, morality, and good customs, and, in our opinion, there is nothing in the obligation referred to that it is opposed to any of these three conceptions. Apparently, the obligation essentially rests on a just desire on the part of the plaintiff to protect himself by means of an indemnity in advance against the effects of the competition which the defendant might make, after he had duly qualified the defendant to enable him to do so, by defraying the expenses of his industrial apprenticeship and initiating him into a knowledge of his own procedure and formulas, the acquisition of which, as he states, has cost him more than P20,000, and this is to be accepted as true under the demurrer to the written complaint.

But it is alleged that if the P10,000 stipulated are not paid to the plaintiff the defendant may not engage in the business in which the former is engaged, and in fact the plaintiff asks, in the second part of the complaint, that in default of payment of the said sum, claimed in the first part thereof, the defendant be prohibited from engaging in the manufacturer of hats in the Philippine Islands. It is to be observed, however, that the contract does not so state. It is not an expression of its terms, but an interpretation, more or less direct, more or less debatable, of its purview and consequences, and it is very obvious that the validity of a contract is not to be judged by the consequences, perhaps unfounded, which the contracting parties with more or less correctness claim to deduce from it, but by its context. Speaking in general terms and without predetermining the question with regard to the true value of the said interpretation, from the fact of the defendant’s binding himself to pay P10,000 to the plaintiff in the case provided for the contract, it might perhaps not necessarily follow that, by not being able to pay the said sum, he could not engage in the same kind of business in which the plaintiff is engaged, as would occur, for example, were it decided finally upon the merits that such a payment was not stipulated as a necessary condition in order that the defendant might undertake the class of business or industry referred to. In such a case it evident that other debtors who can not pay their debts or comply with their obligations.

Be this as it may, this is not the proper time to discuss such an aspect to the question. It is certain that there is no obligation whatever resting upon the defendant, recorded in the contract, requiring him not to engage in the same enterprise in which the plaintiff is engaged, even though he might not be able to pay to the latter the P10,000 stipulated therein; and that the sole obligation that is found to be clearly and expressly contracted by the said defendant, with respect to that point, is that he shall pay to the plaintiff the aforementioned sum in the case provided for in the contract, an obligation which we declare to be valid and sufficient, together with the other facts alleged in the complaint, to constitute a cause of action.

The order appealed from is revoked, and the records shall be returned to the trial court so that it may proceed in accordance with law by ordering the defendant to answer the complaint within the regular period. No express findings is made as to the costs of this instance. So ordered.

Arellano, C.J., Torres and Carson, JJ., concur.

1. LIABILITY FOR DAMAGES; CONTRIBUTORY NEGLIGENCE. — When the immediate cause of an accident resulting in an injury is the plaintiff’s own act, which contributed to the principal occurrence as one of its determining factors, he can not recover damages for the injury.

An action to recover damages for the loss of an eye and other injuries, instituted by David Taylor, a minor, by his father, his nearest relative.

The defendant is a foreign corporation engaged in the operation of a street railway and an electric light system in the city of Manila. Its power plant is situated at the eastern end of a small island in the Pasig River within the city of Manila, known as the Isla del Provisor. The power plant may be reached by boat or by crossing a footbridge, impassable for vehicles, at the westerly end of the island.

The plaintiff, David Taylor, was at the same time when he received the injuries complained of, 15 years of age, the son of a mechanical engineer, more mature than the average boy of his age, and having considerable aptitude and training in mechanics.

On the 30th of September, 1905, plaintiff, with a boy named Manuel Claparols, about 12 years of age, crossed the footbridge of the Isla del Provisor, for the purpose of visiting one Murphy, an employee of the defendant, who had promised to make them a cylinder for a miniature engine. Finding on inquiry that Mr. Murphy was not in his quarters, the boys, impelled apparently by youthful curiosity and perhaps by the unusual interest which both seem to have taken in machinery, spent some time in wandering about the company’s premises. The visit made on a Sunday afternoon, and it does not appear that they saw or spoke to anyone after leaving the power house where they had asked for Mr. Murphy.

After watching the operation of the traveling crane used in handling the defendant’s coal, they walked across the open space in the neighborhood of the place where the company dumped the cinders and ashes from its furnaces. Here they found some twenty or thirty brass fulminating caps scattered on the ground. These caps are approximately of the size and appearance of small pistol cartridges and each has attached to it two long thin wires by means of which it may be discharged by the use of electricity. They are intended for use in the explosion of blasting charges of dynamite, and have in themselves considerable explosive power. After some discussion as to the ownership of caps, and their right to take them, the boys picked up all they could find, hung them of a stick, of which each took one end, and carried them home. After crossing the footbridge, they met a little girl named Jessie Adrian, less than 9 years old, and all three went to the home of the boy Manuel. The boys then made a series of experiments with the caps. They thrust the ends of the wires into an electric light socket and obtained no result. They next tried to break the cap with a stone and failed. Manuel looked for a hammer, but could not find one. They then opened one of the caps with a knife, and finding that it was filled with a yellowish substance they got matches, and David held the cap while Manuel applied a lighted match to the contents. An explosion followed, causing more or less serious injuries to all three. Jessie, who, when the boys proposed purring a match to the contents of the cap, became frightened and started to run away, received a slight cut in the neck. Manuel had his hand burned and wounded, and David was struck in the face by several particles of the metal capsule, one of which injured his right eye to such an extent as to necessitate its removal by the surgeons who were called in to care for his wounds.

The evidence does not definitely and conclusively disclose how the caps came to be on the defendant’s premises, not how long they had been there when the boys found them. It appeared, however, that some months before the accident, during the construction of the defendant’s plant, detonating caps of the same kind as those found by the boys were used in sinking a well at the power plant near the place where the caps were found; and it also appears that at or about the time when these caps were found, similar caps were in use in the construction of an extension of defendant’s street car line to Fort William McKinley. The caps when found appeared to the boys who picked them up to have been lying there for a considerable time, and from the place where they were found would seem to have been discarded as defective or worthless and fir only to be thrown upon the rubbish heap.

No measures seem to have been adapted by the defendant company to prohibit or prevent visitors from entering and walking about its premises unattended, when they felt disposed as to do. As admitted in defendant counsel’s brief, "it is undoubtedly true that children in their play sometimes crossed the footbridge to the island;" and, we may add, roamed about at will on the unenclosed premises of the defendant, in the neighborhood of the place where the caps were found. There is no evidence that any effort ever was made to forbid these children from visiting the defendant company’s premises, although it must be assumed that the company or its employees were aware of the fact that they not infrequently did so.

Two years before the accident, plaintiff spent four months at sea, as a cabin boy on one of the interisland transports. later he took upon work in his father’s office learning mechanical drawing and mechanical engineering. About a month after his accident he obtained employment as a mechanical draftsman and continued in the employment for six months at a salary of P2.50 a day; and it appears that he was a boy of more than average intelligence, taller and more mature both mentally and physically than most boys of fifteen.

The facts set our in the foregoing statement are to our mind fully and conclusively established by the evidence of record, and are substantially admitted by counsel. The only questions of fact which are seriously disputed are plaintiff’s allegations that the caps which were found by plaintiff on defendant company’s premises were the property of the defendant, or that they had come from its possession and control, and that the company or some of its employees left them exposed on its premises at the point where they were found.

The evidence in support of these allegations is meager, and the defendant company, apparently relying on the rule of law which places the burden of proof of such allegations upon the plaintiff, offered no evidence in rebuttal, and insists that plaintiff failed in his proof. We think, however, the plaintiff’s evidence is sufficient to sustain a findings in accord with his allegations in this regard.

It was proven that caps, similar to those found by the plaintiff, were used, more or less extensively, on the McKinley extension of the defendant company’s track; that some of these caps were used in blasting a well on the company’s premises a few months before the accident; that not far from the place where the caps were found the company has a storehouse for the materials, supplies, and so forth, used by it in its operations as a street railway and a a purveyor of electric light; and that the place, in the neighborhood of which the caps were found, was being used by the company as a short of dumping ground for ashes and cinders. Fulminating caps or detonators for the discharge by electricity of blasting charges by dynamite are not articles in common use by the average citizen, and under all the circumstances, and in the absence of all evidence to the contrary, we thing that the discovery of twenty or thirty of these caps at the place where they were found by the plaintiff on defendant’s premises fairly justifies the inference that the defendant company was either the owner of the caps in question or had these caps under its possession and control. We think also that the evidence tends to disclose that these caps or detonators were willfully and knowingly thrown by the company or its employees at the spot where they were found, with the expectations that they would be buried out of sight by the ashes which it was engaged in dumping in that neighborhood, they being old and perhaps defective; and, however this may be, we are satisfied that the evidence is sufficient to sustained a finding that the company or some of employees either willfully or through an oversight left them exposed at a point on its premises which the general public including children at play, were not prohibited from visiting, and over which the company knew or ought to have known that young boys were likely to roam abound in pastime or in play.

Counsel for appellant endeavors to weaken or destroy the probative value of the facts on which these conclusions are based by intimating or rather assuming that the blasting worked on the company’s well and on its McKinley extension was done by contractors. It was conclusively proven, however, that while the workman employed in blasting the well was regularly employed by J.G. White & Co., a firm of contractors, he did the work on the well directly and immediately under the supervision and control of one of defendant company’s foremen, and there is no proof whatever in the record that the blasting on the McKinley extension was done by independent contractors. Only one witness testified upon this point, and while he stated that he understood that a part of this work was done by contract, he could not say so of his own knowledge, and knew nothing of the terms and conditions of the alleged contract, or of the relations of the alleged contractor to the defendant company. The fact having been proven that detonating caps were more or less extensively employed on work done by the defendant company’s directions and on its behalf, we think that the company should have introduced the necessary evidence to support its contention if it wished to avoid the not unreasonable inference that it was the owner of the material used in these operations and that it was responsible for tortious of negligent acts of the agents employed therein, on the ground that this work had been intrusted to independent contractors as to whose acts the maxim respondent superior should not be applied. If the company did not in fact own or make use of caps such as those found on its premises, as intimated by counsel, it was a very simple matter for it to prove that fact, and in the absence of such proof we think that the other evidence in the record sufficiently establishes the contrary, and justifies the court in drawing the reasonable inference that the caps found on its premises were its property, and were left where they were found by the company or some of its employees.

Plaintiff appears to have rested his case, as did the trial judge his decision in plaintiff’s favor, upon the provisions of article 1089 of the Civil Code read together with articles 1902, 1903, and 1908 of that Code.

"ART. 1089. Obligations are created by law, by contracts, by quasi—contracts, and by illicit acts and omissions or by those in which any kind of fault or negligence occurs."cralaw virtua1aw library

"ART. 1902. Any person who by an act or omission causes damage to another when there is fault or negligence shall be obliged to repair the damage so done.

"ART. 1903. The obligation imposed by the preceding article is demandable, not only for personal acts and omission, but also for those of the persons for whom they should be responsible.

"The father, and on his death or incapacity the mother, is liable for the damages caused by the minors who alive with them.



"Owners or directors of an establishment or enterprises are equally liable for the damages caused by their employees in the service of the branches in which the latter may be employed or on account of their duties.



"The liability referred to in this article shall cease when the persons mentioned therein prove that they employed all the diligence of a good father of a family to avoid the damage."cralaw virtua1aw library

"ART. 1908. The owners shall be also be liable for the damages caused —

"1. By the explosion of machines which may not have been cared for with due diligence, and for kindling of explosive substance which may not have been placed in a safe and proper place."cralaw virtua1aw library

Counsel for defendant and appellant rests his appeal strictly upon his contention that the facts proven at the trial do not establish the liability of the defendant company under the provisions of these articles, and since we agree with this view of the case, it is not necessary for us to consider the various questions as to the form and the right of action (analogous to those raised in the case of Rakes v. Atlantic, Gulf & Pacific Co., 7 Phil. Rep., 359), which would perhaps, be involved in a decision affirming the judgment of the court below.

We agree with counsel for appellant that under the Civil Code, as under the generally accepted doctrine in the United States, the plaintiff in an action such as that under consideration, in order to establish his right to a recovery, must establish by competent evidence:chanrob1es virtual 1aw library

(1) Damages to the plaintiff.

(2) Negligence by act or omission of which defendant personally, or some person for whose acts it must respond, was guilty.

(3) The connection of cause and effect between the negligence and the damage.

The propositions are, or course, elementary, and do not admit of discussion, the real difficulty arising in the application of these principles to the particular facts developed in the case under consideration.

It is clear that the accident could not have happened had not the fulminating caps been left exposed at the point where they were found, or if their owner had exercised due care in keeping them in a appropriate place; but it is equally clear that plaintiff would not have been injured had he not, for his own pleasure and convenience, entered upon defendant’s premised, and strolled around thereon without the express permission of the defendant, and had he not picked up and carried away the property of the defendant which he found on its premises, and had he not thereafter deliberately cut open one of the caps and applied a match to its contents.

But counsel for plaintiff contends that because of plaintiff’s youth and inexperience, his entry upon defendant company’s premises, and the intervention of his action between the negligent act of defendant in leaving the caps exposed on its premises and the accident which resulted in his injury should not be held to have contributed in any wise accident, which should be deemed to be the direct result of defendant’s negligence in leaving the caps exposed at the pace where they were found by the plaintiff, and this latter the proximate cause of the accident which occasioned the injuries sustained by him.

In support of his contention, counsel for plaintiff relied on the doctrine laid down in many of the courts of last result in the United States in the cases known as the "Torpedo" and "Turntable" cases, and the cases based thereon.

In the typical cases, the question involved has been whether a railroad company is liable for an injury received by an infant of tender years, who from mere idle curiosity, or for purposes of amusement, enters upon the railroad company’s premises, at a place where the railroad company’s premises, at a place where the railroad company knew, or had a good reason to suppose, children who would likely to come, and there found explosive signal torpedoes left exposed by the railroad company’s employees, one of which when carried away by the visitor, exploded and injured him; or where such infant found upon the premises a dangerous machine, such as a turntable left in such condition as to make it probable that children in playing with it would be exposed to accident or injury therefrom and where the infant did in fact suffer injury in playing with such machine.

In these, and in a great variety of similar cases, the great weight of authority holds the owner of the premises liable.

As laid down in Railroad Co. v. Stout (17 Wall. (84 U.S.) , 657), (wherein the principal question was whether a railroad company was liable for an injury received by an infant while upon its premises, from idle curiosity, or for purposed of amusement, if such injury was, under the circumstances, attributable to the negligence of the company), the principles on which these cases turn are that "while railroad company is not bound to the same degree of care in regard to mere strangers who are unlawfully upon its premises that it owes to passengers conveyed by it, it is not exempt from responsibility to such strangers for injuries arising from its negligence or from its tortious acts;" and that "the conduct of an infant of tender years is not to be judged by the same rule which governs that of an adult. While it is the general rule in regard to an adult that to entitle him to recover damages for an injury resulting from the fault or negligence of another he must himself have been free from fault, such is not the rule in regard to an infant of tender years. The care and caution required of a child is according to his maturity and capacity only, and this is to be determined in such case by the circumstances of the case."cralaw virtua1aw library

The doctrine of the case of Railroad Company v. Stout was vigorously controverted and sharply criticized in severally state courts, and the supreme court of Michigan in the case of Ryan v. Towar (128 Mich., 463) formally repudiated and disapproved the doctrine of the Turntable cased, especially that laid down in Railroad Company v. Stout, in a very able decision wherein it held, in the language of the syllabus: (1) That the owner of land is not liable to trespassers thereon for injuries sustained by them, not due to his wanton or willful acts; (2) that no exception to this rule exists in favor of children who are injured by dangerous machinery naturally calculated to attract them to the premises; (3) that an invitation of license to cross the premises of another can not be predicated on the mere fact that no steps have been taken to interfere with such practice; (4) that there is no difference between children and adults of an invitation or a license to enter upon another’s premises.

Similar criticisms of the opinion in the case of Railroad Company v. Stout were indulged in by the courts in Connecticut and Massachusetts. (Nolan v. Railroad Co., 53 Conn., 461; 154 Mass., 349). And the doctrine has been questioned in Wisconsin, Pennsylvania, New Hampshire, and perhaps in other States.

On the other hand, many if not most of the courts of last resort in the United States, citing and approving the doctrine laid down in England in the leading case of Lynch v. Nurding (1 Q.B., 29, 35, 36), lay down the rule in these cases in accord with that announced in Railroad Company v. Stout (supra), and the Supreme Court of the United States, in a unanimous opinion delivered by Justice Harlan in the case of Union Pacific Railway Co. v. McDonald (152 U.S, 262) on the 5th of March, 1894, reexamined and reconsidered the doctrine laid down in Railroad Co. v. Stout, and after an exhaustive and critical analysis and review of may of the adjudged cases, both English and America, formally declared that it adhered "to the principles announced in the case of Railroad Co. v. Stout."cralaw virtua1aw library

In the case of Union Pacific Railway Co. v. McDonald (supra) the facts were as follows: The plaintiff, a boy 12 years of age, our of curiosity and for his own pleasure, entered upon and visited the defendant’s premises, without defendant’s express permission or invitation, and, while there, was by an accident injured by failing into a burning slack pile of whose existence he had knowledge, but which had been left by defendant on its premises without any fence around it or anything to give warning of its dangerous condition, although defendant knew or had reason to believe that it was in a place where it would attract the interest or curiosity of passers-by. On these facts the court held that the plaintiff could not be regarded as a mere trespasser, for whose safety and protection while on the premises in question, against the unseen danger referred to, the defendant was under no obligation to make provision.

We quote at length from the discussion by the court of the application of the principles involved to the facts in that case, because what is said there is strikingly applicable in the case at bar, and would seem to dispose of defendant’s contention that, the plaintiff in this case being a trespasser, the defendant’s company owed him no duty, and in no case could be held liable for injuries which would not have resulted but for the entry of plaintiff on defendant’s premises.

"We adhere to the principle announced in Railroad Co., v. Stout (supra). Applied to the case now before us, they require us to hold that the defendant was guilty of negligence in leaving unguarded the slack pile, made by it in the vicinity of its depot building. It could have forbidden all the persons from coming to its coal mine for purposes merely of curiosity and pleasure. But it did not do so. On the contrary, it permitted all, without regard to age, to visit its mine, and witness its operation. It knew that the usual approach to the mine was by a narrow path skirting its slack pit, close to its depot building, at which the people of the village, old and young, would often assemble. It knew that children were in the habit of frequenting that locality and playing around the shaft house in the immediate vicinity of the slack pit. The slightest regard for the safety of these children would have suggested that they were in danger from being so near a pit, beneath the surface of which was concealed (except when snow, wind, or rain prevailed) a mass of burning coals into which a child might accidentally fall and be burned to death. Under all the circumstances, the railroad company ought not to be heard to say that the plaintiff, a mere lad, moved by curiosity to see the mine, in the vicinity of the slack pit, was a trespasser, to whom it owed no duty, or for whose protection it was under no obligation to make provisions.

"In Townsend v. Wathen (9 East., 277, 281) it was held that if a man place dangerous traps, baited with flesh, in his own ground, so near to a highway, or to the premises of another, that dogs passing along the highway, or kept in his neighbors premises, would probably be attracted by their instinct into the traps, and in consequence of such act his neighbor’s dog be so attracted and thereby injured, an action on the case would lie.’What difference,’ said Lord Ellenborough, C.J., ’is there a reason between drawing the animal into the trap by means of his instinct which he can not resist, and putting him there by manual force?’ What difference, in reason we may observe in this case, is there between an express license to the children of this village to visit the defendant’s coal mine, in the vicinity of its slack pile, and an implied license, resulting from the habit of the defendant to permit them, without objection or warning, to do so at will, for purposes of curiosity or pleasure? Referring to the case of Townsend v. Wathen, Judge Thompson, in his work on the Law of negligence, volume 1, page 305, note, well ways: "It would be a barbarous rule of law that would make the owner of land liable for setting a trap thereon, baited with stinking meat, so that his neighbor’s dog attracted by his natural instincts, might run into it and be killed, and which would exempt him from liability for the consequences of leaving exposed and unguarded on his land a dangerous machine, so that his neighbor’s child attracted to it and tempted to intermeddle with it by instincts equally strong, might thereby be killed of maimed for life."cralaw virtua1aw library

Chief Justice Cooley, voicing the opinion of the supreme court of Michigan, in the case of Powers v. Marlow (53 Mich., 507), said that (p. 515):jgc:chanrobles.com.ph

"Children, wherever they go, must be expected to act upon childlike instincts and impulses; and others who are chargeable with a duty of care and caution toward them must calculate upon this, and take precautions accordingly. If they leave exposed to the observation of children anything which would be tempting to them, and which they in their immature judgment might naturally suppose they were at liberty to handle or play with, they should expect that liberty to be taken."cralaw virtua1aw library

And the same eminent jurist in his treaties on torts, alluding to the doctrines of implied invitations to visit the premises of another, says:jgc:chanrobles.com.ph

"In the case of young children, and other persons not fully sui juris, an implied license might sometimes arise when it would not on behalf of others. Thus leaving a tempting thing for children to play with exposed, where they would be likely to gather for that purpose, may be equivalent to an invitation to them to make use of it; and, perhaps if one were to throw away upon his premises, near the common way, things tempting to children, the same implication should arise." (Chap. 10, p. 303.)

The reasoning which led the Supreme Court of the United States to its conclusions in the cases of Railroad Co., v. Stout (supra) and Union Pacific Railroad Co. v. McDonald (supra) is not less cogent and convincing in this jurisdiction than in that than in that wherein those cases originated. Children here are actuated by similar childish instincts and impulses. Drawn by curiosity and impelled by the restless spirit of youth, boys here as well as there will usually be found wherever the public permitted to congregate. The movement of machinery, and indeed anything which arouses the attention of the young and inquiring mind, will draw them to the neighborhood as inevitably as does the magnet draw the iron which comes within the range of its magnetic influence. The owners of premises, therefore, whereon things attractive to children are exposed, or upon which the public are expressively or impliedly permitted to enter to or upon which the owner knows or ought to know children are likely to roam about for pastime and in play, "must calculate upon this, and take precautions accordingly." In such cases the owner of the premises can not be heard to say that because the child has entered upon his premises without his express permission he is a trespasser to whom the owner owes no duty or obligation whatever. The owner’s failure to take reasonable precautions to prevent the child form entering premises at a place where he knows or ought to know that children are accustomed to roam about or to which their childish instincts and impulses are likely to attract them is at least equivalent to an implied license to enter, and where the child does not enter under such conditions the owner’s failure to make reasonable precaution to guard the child against the injury from unknown or unseen dangers, placed upon such premises by the owner, is clearly a breach of duty, a negligent omission, for which he may and should be held responsible, if the child is actually injured, without other fault on its part than that it had entered on the premises of a stranger without his express invitation or permission. To hold otherwise would be expose to all the children in the community to unknown perils and unnecessary danger at the whim of the owners or occupants of land upon which they might naturally and reasonably be expected to enter.

This conclusion is founded on reason, justice, and necessary, and neither the contention that a man has a right to do what he will with his own property of that children should be kept under the care of the parents or guardian, so as to prevent their entering on the premises of others is of sufficient weight to put it in doubt. In this jurisdiction as well as in the United States all private property is acquired and held under the tacit condition that it shall not be so used as to injure the equal rights of others or greatly impair the public rights and interests of the community (see U.S. v. Toribio, 1 No. 5060, decided January 26, 1910), and except as to infants of very tender years it would be absurd and unreasonable in community organized as is that in which we live to hold that parents or guardians are guilty of negligence or imprudence in every case wherein they permit growing boys and girls to leave the parental roof unattended, even if in the event of accident to the child the negligence of the parents could in any event be imputed to the child so as to deprive it of a right to recover in such cases — a point which we neither discuss not decide.

But while we hold that the entry of the plaintiff upon defendant’s property without defendant’s express invitation or permission would not have relieved defendant from responsibility for injuries incurred there by the plaintiff, without other fault on his part, if such injury were attributable to the negligence of the defendant, we are of opinion that under all the circumstances of this case the negligence of the defendant in leaving the caps exposed on its premises was not the proximate cause of the injury received by the plaintiff, which therefore was not, properly speaking, "attributable to the negligence of the defendant," and, on the other hand, we are satisfied that plaintiff’s action in cutting open the detonating cap and putting a match to its contents was the proximate cause of the explosion and of the resultant injuries inflicted upon the plaintiff, and that the defendant, therefore, is not civilly responsible for the injuries thus incurred.

Plaintiff contends, upon the authority of the Turntable and Torpedo cases, that because of plaintiff’s youth the intervention of his action between the negligent act of the defendant leaving the caps exposed on its premises and the explosion which resulted in his injury should not be held to have contributed in any wise to the accident; and it is because we can not agree with this proposition, although we accept the doctrine on the Turntable and Torpedo cases, that we have thought of proper to discuss and to consider that doctrine at length in this decision. As was said in case of Railroad Co. v. Stout (supra), "While it is the general rule in regard to an adult that entitle him to recover damages for an injury resulting from the fault or negligence of another he must himself have been free from fault, such is not the rule in regard to an infant of tender years. The care and caution required of a child is according to his maturity and capacity only, and this is to be determined in each case by the circumstance of the case." As we think we have shown, under the reasoning on which rests the doctrine of the Turntable and Torpedo cases, no fault which would relieve defendant of responsibility for injuries resulting from negligence can be attributed to the plaintiff, a well-grown boy of 15 years of age, because of his entry upon defendant’s uninclosed premises without express permission or invitation; but it is a wholly different question whether such a youth can be said to have been free from fault when he willfully and deliberately cut upon the detonating cap, and placed a match to the contents, knowing, as he undoubtedly did, that his action would result in an explosion. On this point, which must be determined by "the particular circumstances of this case," the doctrine laid down in the Turntable and Torpedo cases lends us no direct aid, although it is worthy of observation that in all of the "Torpedo" and analogous cases to which our attention has been directed, the record discloses that the plaintiffs, is whose favor judgments have been affirmed, were of such tender years that they were held not to have the capacity to understand the nature or character of the explosive instruments which fell into their hands.

In the case at bar, plaintiff at the time of the accident was well—grown youth of 15, more mature both mentally and physically than the average boy of his age; he had been to sea as a cabin boy; was able to earn P2.50 a day as a mechanical draftsman thirty days after the injury was incurred; and the record discloses throughout that he was exceptionally well qualified to take care. The evidence of record leaves no room for doubt that, despite his denials on the witness stands, he well knew the explosive character of the cap with which he was amusing himself. The series of experiments made by him in his attempt to produce an explosion, as described by the little girl who was present, admit of no other explanation. His attempt to discharge the cap by the use of electricity, followed by his efforts to explode it with a stone or a hammer, and the final success of his endeavors brought about by the applications of a match to the contents of the cap, show clearly that he knew what he was about. Nor can there be any reasonable doubt that he had reason to anticipate that the explosion might be dangerous, in view of the fact that the little girl, 9 years of age, who was with him at the time when he put the match to the contents of the cap, became frightened and ran away.

True, he may not have known and probably did not know the precise nature of the explosion which might be expected from the ignition of the contents of the cap, and of course he did not anticipate the resultant injuries which he incurred; but he well knew that a more or less dangerous explosion might be expected from his act, and yet he willfully, recklessly, and knowingly produced the explosion. It would be going far to say that "according to his maturity and capacity" he exercised such "care and caution" as might reasonably be required of him, or that the defendant or anyone else should be held civilly responsible for injuries incurred by him under such circumstances.

The law fixed no arbitrary age at which a minor can be said to have the necessary capacity to understand and appreciate the nature and consequences of his own acts, so as to make it negligence on his part to fail to exercise with due care an precaution in the commission of such acts; and indeed it would be impracticable and perhaps impossible so to do, for in the very nature of things the question of negligence necessarily depends on the ability of the minor to understand the character of his own acts and their consequences; and the age at which a minor can be said to have such ability will necessarily vary in accordance with the varying nature of the infinite variety of acts which may be done by him. But some idea of the presumed capacity of infants under the laws in force in these Islands may be gathered from an examination of the varying ages fixed by our laws at which minors are conclusively presumed to be capable to exercising certain rights and incurring certain responsibilities, through it can not be said that these provisions of law are of much practical assistance in cases such as that at bar, except so far as they illustrate the rule that the capacity of a minor to become responsible for his own acts varies with the varying circumstances of each case. Under the provisions of the Penal code a minor over fifteen years of age is presumed to be capable of committing a crime and is to be held criminally responsible therefore, although the fact that he is less than eighteen years of age will be taken into consideration as an extenuating circumstance (Penal code, arts, 8 and 9). At 10 years of age a child may, under certain circumstances, choose which parent it prefers to live with (Code of Civil Procedure, sec. 771). At 14 it may petition for the appointment of a guardian (Id., sec. 551), and may consent or refuse to be adopted (Id., sec. 765). And males of 14 and females of 12 are capable of contracting of legal marriage (Civil Code, art. 83; G.O., No., 68, sec. 1).

We are satisfied that the plaintiff in this case had sufficient capacity and understanding to be sensible to the danger to which he exposed himself when he put the match to the contents of the cap; that he was sui juris in the sense that his age and his experience qualified him to understand and appreciate the necessity for the exercise of that degree of caution which would have avoided the injury which resulted from his own deliberate act; and that the injury incurred by him must be held to have been the direct and immediate result of his own willful and reckless act, so that while it may be true that these injuries would not have been incurred but for the negligent act of the defendant in leaving the caps exposed on its premises, nevertheless plaintiff’s own act was the proximate and principal cause of the accident which inflicted the injury.

The rule of the Roman law was: Quod quis ex culpa sua damnum sentit, non intelligitur damnum sentire. (Digest, book 50, tit. 17, rule 203.)

The partidas contain the following provisions:jgc:chanrobles.com.ph

"The just thing is that a man should suffer the damage which comes to him through his own fault, and that he can not demand reparation therefore from another." (Law 25, tit. 5 Partida 3.)

"And they even said that when a man received an injury through his own negligence he should blame himself for it." (Rule 22, tit. 34 Partida 7.)

"According to ancient sages, when a man received an injury through his own acts the grievance should be against himself and not against another." (Law 2, tit. 7 Partida 2.)

And while there does not appear to be anything in the Civil Code which expressly lays down the law touching contributory negligence in this jurisdiction, nevertheless, the interpretation placed upon its provisions by the supreme court of Spain, and by this court in the case of Rakes v. Atlantic Gulf and Pacific Co., (7 Phil. Rep., 359), clearly deny to the plaintiff in the case at bar the right to recover damages from the defendant, in whole or in part, for the injuries sustained by him.

The judgment of the supreme court of Spain of the 7th of March, 1902 (93 Jurispredencia Civil, 391), is directly in point. In that case the court said:jgc:chanrobles.com.ph

"According to the doctrine expressed in article 1902 of the Civil Code, fault or negligence is a source of obligation when between such negligence and the injury there exists, the relation of cause and effect: but if the injury produced should not be the result of acts or omissions of a third party, the latter has no obligation to repair the same, although such acts or omissions were imprudent or unlawful, and much less when it is shown that the immediate cause of the injury was the negligence of the injured party himself."cralaw virtua1aw library

The same court, in its decision of June 12, 1900, said that "the existence of the alleged fault or negligence is not sufficient without proof that it, and no other cause, gave rise to the damage."cralaw virtua1aw library

See also judgment of October 21, 1903.

To similar effect Scaevola, the learned Spanish writer, writing under that title in his Jurisprudencia del Codigo Civil (1902 Anuario, p. 455), commenting on the decision of March 7, 1902, says that "in accordance with the doctrine expressed by article 1902 of the Civil Code, fault or negligence gives rise to an obligation when between it and the damage there exists the relation of cause and effect’ but if the damage caused does not arise from acts or omissions of a third person, there is no obligation to make good upon the latter, even though such acts or omissions be imprudent or illegal, and much less so when it is shown that the immediate cause of the damage has been the recklessness the injured party himself."cralaw virtua1aw library

And again —

"In accordance with the fundamental principle of proof, that the burden thereof is upon the plaintiff, it is apparent that it is the duty of him who shall claim damages to establish their existence. The decisions of April 9, 1896, and March 18, July 6, and September 27, 1898, have especially supported the principle, the first setting forth in detail the necessary points of the proof, which are two: An act or omission on the part of the person who is to be charged with the liability, and the production of the damage by said act or omission.

"This includes, by inference, the establishment of a relation of cause or effect between the act or the omission and the damage; the latter must be direct result of one of the first two. As the decision of March 22, 1881, said, it is necessary that damages result immediately and directly from an act performed culpably and wrongfully’ ’necessarily presupposing a legal ground for imputability.’" (Decision of October 29, 1877.)

"Negligence is not presumed, but be proven by him who alleges it." (Scaevola, Jurisprudencia del Codigo Civil, vol. 6, pp. 551, 552.)

(Cf. decisions of supreme court of Spain of June 12, 1900. and June 23, 1900.)

Finally, we think the doctrine is in this jurisdiction applicable to the case at bar was definitely settled in this court in the maturely considered case of Rakes v. Atlantic, Gulf and Pacific Co. (supra), wherein we held that while "There are many cases (personal injury cases) in the supreme court of Spain in which the defendant was exonerated." on the ground that "the negligence of the plaintiff was immediate cause of the casualty" (decisions of the 15th of January, the 19th of February, and the 7th of March, 1902, stated in Alcubilla’s Index of that year); none of the cases decided by the supreme court of Spain "define the effect to be given the negligence of a plaintiff which contributed to his injury as one of its causes, though not the principal one, and we left to seek the theory of the civil law in the law in the practice of another countries;" and in such cases we declared the law in this jurisdiction to require the application of ’the principle of proportional damages," but expressly and definitely denied the right of recovery when the acts of the injured party were the immediate causes of the accident.

The doctrine as laid down in that case as follows:jgc:chanrobles.com.ph

"Difficulty seems to be apprehended in deciding which acts of the injured party shall be considered immediate causes of the accident. The test is simple. Distinction must be made between the accident and the injury, between the event itself, without which there could have been no accident, and those acts of the victim not entering into it, independence of it, but contributing to his own proper hurt. For instance, the cause of the accident under review was the displacement of the crosspiece or the failure to replace it. This produced the event giving occasion for damages — that is, sinking of the track and the sliding of the iron rails. To this event, the act of the plaintiff in walking by the side of the car did not contribute, although it was an element of the damage which came to himself. Had the crosspiece been out of place wholly or partly through this act or omission of duty, that would have been one of the determining causes of the event or accident, for which he would have been responsible. Where he contributes to the principal occurrence, as one of its determining factors, he can not recover. Where, in conjunction with the occurrence, he contributes only to his own injury, he may recover the amount that the defendant responsible for the event should pay for such injury, less a sum deemed a suitable equivalent for his own imprudence."cralaw virtua1aw library

We think it is quite clear that under the doctrine thus stated, the immediate cause of the explosion , the accident which resulted in plaintiff’s injury, was his own act of putting a match to the contents of the cap, and that having "contributed to the principal occurrence, as one of its determining factors, he can not recover."cralaw virtua1aw library

We have not deemed it necessary to examine the effect of plaintiff’s action in picking up upon defendant’s premises the detonating caps, the property of the defendant, and carrying them sway to the home of his friend, as interrupting the relation of cause and effect between the negligent act or omission of the defendant in leaving the caps exposed on its premises and the injuries inflicted upon the plaintiff by the explosion of one of these caps. Under the doctrine of the Torpedo cases, such action on the part of an infant of very tender years would have no effect in relieving defendant of responsibility, but whether in view of the well known facts admitted in defendant’s brief that "boys are snappers-up of unconsidered trifles," a youth of the age and maturity of plaintiff should be deemed without fault in picking up the caps in question under all the circumstances of this case, we neither discuss not decide.

Twenty days after the date of this decision let judgment be entered reversing the judgment of the court below, without costs to either party in this instance, and ten days thereafter let the record be returned to the court wherein it originated, where judgment will be entered in favor of the defendant for the costs in first instance and the complaint dismissed without day. So ordered.

Arellano, C.J., Torres and Moreland, JJ., concur.

Johnson, J., concurs in the result.

Endnotes:

---

1. 15 Phil. Rep., 85.

1. FAILURE TO PERFECT AN APPEAL WITHIN PERIOD ALLOWED. — The general rule is that a failure to perfect an appeal from a judgment of a justice of the peace within the period allowed by law bars the appeal. When the interested party, in conversation with the justice of the peace, states that he intends to appeal, but does not present the necessary papers, or the appropriate sureties or bond, or make the necessary deposit, the fact that he is told by the justice to return another day will not justify a failure to perfect the appeal within the specified period.

In a civil action instituted in the court of the justice of the peace of Gapan, Province of Nueva Ecija, between Luis Borja as plaintiff and Alejandro Policarpio as defendant, judgment was rendered in favor of the former, of which the latter was notified on July 24, 1908. On the afternoon of Saturday, the 8th of the following month of August, the last day of the fifteen specified by law as the period for the filing of an appeal, the said Alejandro Policarpio met the justice of the peace in a private house, for the purpose, according to his own statement, of appealing, and the justice told him to return the following Monday. Apparently the said justice believed in good faith that this day was within the term prescribed by law for an appeal. Policarpio did not return on the following Monday, and on the petition of Luis Borja the execution of the judgment was ordered on the following Tuesday.

In view of these facts, the aforesaid Alejandro Policarpio filed suit in the Court of First Instance, praying for the annulment of the said judgment of the justice of the peace on the ground that, owing to the latter’s error in computing the days comprised within the legal term for an appeal, he was prevented from filing in due time his appeal against the judgment aforesaid.

The case having come to trial, after the evidence had been adduced by both parties, the court rendered judgment annulling that of the justice of the peace, by virtue of the provisions of section 148 of the Code of Procedure in Civil Actions, concluding that the facts alleged in the complaint had been proved. "It is a fact," the judgment states, "that the plaintiff was prevented from filing his appeal within the term fixed by law, either through error on his part or through error of the justice of the peace."cralaw virtua1aw library

The important question to be decided in this case is what the present plaintiff did on the 8th day of August with respect to his appeal against the judgment rendered by the justice of the peace — whether he did or did not file the said appeal in due form, for not having so done, not having actually filed an appeal on the day, no importance could attach to the fact that the justice of the peace told him to return on another day. On such a supposition, it could not be said that he was prevented from appealing within the legal term for a cause or reason not imputable to himself.

The plaintiff says, in testifying with regard to what occurred on the said 8th of August, that he met the justice of the peace and told him that he would file his appeal; that he carried with him his written appeal and showed it to the justice, who did not receive it, telling him to return on Monday; and that he took no sureties with him, but that he did carry money, although he made no intimation of his wish to deliver the money to him, in view of the fact that the latter told him to return on Monday. On the other hand, the justice of the peace testified in his behalf that the plaintiff did not the present to him, nor did he carry on that occasion any document whatever; that neither did he present to him any bond, and that he merely said to him that he wished to appeal, wherefore the justice told him to return on Monday. On this witness being asked why he did not admit the appeal as it was the fifteenth day, he answered literally as follows: "It was because he brought nothing with him on that occasion."cralaw virtua1aw library

Section 16 of Act No. 1627, amendatory of section 76 of Act No. 190, provides as follows:jgc:chanrobles.com.ph

"An appeal in civil cause shall be perfected by filing with the justice of the peace, within fifteen days after the entry of the judgment complaint of, a notice that the party intends to appeal, and by depositing with such justice the appellate court docket fee of sixteen pesos, and by filing with him a bond in the sum of fifty pesos, executed to the adverse party by the appellant and by at least one sufficient surety, conditioned that the appellant will pay all costs which the Court of First Instance may award against him. In lieu of such a bond, the appellant may file with the justice a certificate of the proper official that the appellant has deposited twenty—five pesos with the municipal treasurer (in Manila with the Collector of Internal Revenue) and that said sum is available for the satisfaction of any judgment for costs that may be rendered against appellant by the appellate court in said cause."cralaw virtua1aw library

Even admitting as true the whole testimony of the plaintiff, the conclusion is that all he did on that occasion amounted to no more than a mere intention to appeal, which was not carried out, or at least was not effected in the manner required by law. Neither did he deposit the P16 for the court fee, nor execute the bond required by law, nor even make any offer of the one or the other, nor did he make the slightest intimation that he was willing at that moment to comply with the said requirements, which was the least that he could have done in order to file his appeal in due form. Far from doing this, he himself asserted that he took no sureties with him and did not tell the justice of the peace that he carried money. And he also testified that what he said to the latter was only that he would file an appeal. But the appeal was not filed. He did not comply with, nor did he do anything to comply with any of the essential formalities prescribed by law for the perfecting of an appeal. As the justice of the peace states, when he saw that the plaintiff brought nothing, that is, neither money for a deposit nor a bond, he told him to return on Monday. Consequently, the fact of saying that he was to return on another day was not the reason why the appeal was not filed within the term specified by law; it was said because the plaintiff did not then formally file the appeal. We find, therefore, that it has not been shown that the latter was prevented through error or other cause not imputable to himself from filing the appeal in due time.

The judgment appealed from is reversed and the petition contained in the complaint is denied, without special finding as to costs of this instance.

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

Carson, J., dissents.

1. TARIFF LAW; INCLUSION OF SELLER’S COMMISSION IN DUTIABLE VALUE. — H, in his sworn statement accompanying the invoice of certain merchandise shipped from a foreign country to the Philippine Islands, declared that he was the seller of the goods, which were dutiable ad valorem. A commission of 4 per cent was included in the dutiable value of the goods. In ruling upon the protest, the Insular Collector held that the commission was properly included, and his decision was sustained by the court below, which judgment is now affirmed.

2. ID.; CORRECTION OF A MISTAKE MADE IN A SWORN STATEMENT; ESTOPPEL. — It should not be down, as a general rule, that an importer shall not be permitted to correct a real mistake in a sworn statement made to the customs officials concerning his relation to the person from whom he receives merchandise. Whether a correction will be permitted depends upon the facts in any given case, and whether a person is estopped from asserting something contrary to his former assertions depends upon conditions. A person may make an honest mistake under oath as well as in an unsworn document. When, however, it is sought to vary a former sworn statement, the evidence in support of an alleged mistake will be closely scrutinized.

This is an appeal from a decision of the Court of First Instance of the city of Manila affirming the decision of the Collector of Customs in the protest case Entry E, 3646, and filed by the appellant herein in behalf of their clients, Moll, Kunzli & Co., the case number being C.A. 61. Inasmuch as the question involved in case C.A. 49, entitled Moll, Kunzli & Co. v. The Collector of Customs, is the same, it has been stipulated that the appeal in that case be discontinued awaiting the decision of this case, and it has also been stipulated that the evidence in that case, as well as in this case, should be made a part of the bill of exceptions here.

The protest in this case was against the inclusion in the dutiable value of certain goods, dutiable ad valorem, of a 4 per cent commission on an invoice of said goods made by Cuno Hering, of Hamburg, Germany, to Messrs. Moll, Kunzli & Co. The form of invoice employed was the regular consular invoice prescribed for goods purchased by the importer, in which the said Cuno Hering described himself as seller. The protest was overruled and denied by the Acting Insular Collector of Customs.

The appellants say in their brief filed in the court:jgc:chanrobles.com.ph

"It will thus be seen that the question in this case is simply one of whether Cuno Hering was a seller to or purchasing agent for Moll, Kunzli & Co. If he was a seller, the items charged as a commission were properly included as a dutiable item in the valuation of the goods. If he was an agent of the purchaser, Moll, Kunzli & Co., the items charged as commission were not properly so included."cralaw virtua1aw library

The court below found that Cuno Hering was the seller and not the agent of Moll, Kunzli & Co., and held, accordingly, that the commission, or whatever it may be called, of the seller, being an integral part of the value of the goods from the standpoint of Moll, Kunzli & Co., was therefore dutiable.

On the shipment of the goods from Weimar, Cuno Hering made the following declaration on the invoice accompanying the shipment.

"I, the undersigned, do solemnly and truly declare that I am the seller of the merchandise in the within invoice mentioned and described; that the said invoice is in all respects correct and true, and was made at Weimar, whence said merchandise is to be exported to the United States of America; that said invoice contains a true and full statement of the time when, the place where, and the persons from whom the same was purchased, and the actual cost thereof, the price actually paid or to be paid therefore, and all charges thereon; that no discount, bounties, or drawbacks are contained in said invoice but such as have been actually allowed thereon; that no different invoice of the merchandise mentioned in said invoice has been or will be furnished to anyone, and that the currency in which said invoice is made out is that which is actually paid or is to be paid for said merchandise. I further declare that it is intended to make entry of said merchandise at the port of Manila.

"Dated at Weimar, Germany, this 24th day of December, 1906.

(Signed) "CUNO HERING."cralaw virtua1aw library

On the arrival of the goods here, Moll, Kunzli & Co. made the following sworn declaration on the entry and appraiser’s return:jgc:chanrobles.com.ph

"Tomas Molina, being duly sworn, says that he is an agent of the firm (or corporation) of M. M. & Co., agents of Moll, Kunzli & Co., the identical person (persons) mentioned in the within entry, and that the said entry contains the true numbers, weights, and quantities, according to the tariff, and a just and true account, classification and description of all the goods, wares, and merchandise contained in the parcels described in the said entry, as he verily believes; that according to the best of his knowledge and belief there is no invoice or bill of landing other than those now produced by him and that they are in the state in which he actually received them, and that nothing has been by him or to his knowledge concealed or suppressed whereby the Government may be defrauded of the duty lawfully due on said goods, wares, and merchandise. And this deponent further says that the invoices and entry which he now presents contain, as to such goods, wares, and merchandise as are dutiable according to the value thereof, a just and faithful account of the actual cost and actual market value thereof in the usual wholesale quantity, including the cost of all packing, packages, and receptacles thereof, and all other costs incident to placing the said goods, wares, and merchandise in condition ready packed for shipment to the Philippine Islands."cralaw virtua1aw library

On the question of the good faith of the appellants in making the protest, the following letter from the American consul at Hamburg was admitted in evidence without objection:jgc:chanrobles.com.ph

"HAMBURG, January 16, 1908.

"To the Collector of Customs, Manila, P.I.

"SIR: I received your letter of the 11th ult. inclosing two invoices of Mr. Cuno Hering, both of which I herewith return.

"I regret that it escaped our notice that the commission of 4 1/2 per cent was not stated on the invoice, as this office was extremely busy at the time.

"Of late we have had numerous conversations with Mr. Hering regarding other consular invoices, and on the same subject, and he has been informed that every item, including commission, must be stated in the consular invoice and that this invoices will be refused if any such statements are wanting.

"I would add that Mr. Hering is absolutely innocent in the matter, always wishing to do what is correct, but that Messrs. Moll, Kunzli & Co., in Manila, are constantly instructing Mr. Hering to make out his invoices other than in the manner prescribed by our regulations, and has caused this office much unnecessary annoyance and work. For instance, in this case, he was instructed by the Manila firm to leave out his commission, notwithstanding that we have always demanded that the same must be stated in the invoice.

"In future Mr. Hering’s invoices shall be carefully scrutinized, so that such oversight may not occur again. I am, sir,

"Very respectfully yours,

" ______________________________

"Consul-General."cralaw virtua1aw library

We do not believe that it ought to be laid down as a general rule that an importer may not have the right to correct a mistake made in a sworn statement to the customs officials concerning the relations which he sustains to the person from whom he receives the goods. We do not believe that such a statement is conclusive against him. We are convinced that does not work an estoppel in pais. Whether or not a correction will be permitted in a given case must depend upon the facts of that case. Whether or not one is estopped from asserting something contrary to what he has theretofore stated or asserted depends on conditions. The doctrine of estoppel can be stated only in the most general terms. This is its particular characteristic. It is impossible to lay down a rule to cover all cases.

To arrive at a conclusion in this case it is necessary to consider only the facts of this case. Whether or not a correction will be permitted depends, among other things, upon (1) the good faith of the party seeking the change, that is, whether it is a real mistake or a simulated one; upon (2) the promptitude with which the request for correction is presented; and (3) upon whether or not injury will result to anyone if the change is permitted.

The fact that the relations between the appellants and Cuno Hering are stated under oath by appellants is not of itself conclusive against them. One may make an honest mistake under oath as well as in an unsworn statement. Neither is it conclusive that the appellants and Cuno Hering agreed in their description of the relations between them. Men may, and frequently do, mistake the relation which they bear to each other. These are simply facts which must be considered and weighed in determining whether as a matter of justice and equity, upon the whole case, the correction ought to be permitted.

For these reasons the authorities cited by the contending counsel, while significant and helpful, can not have weight here. The facts in those cases are not the same or substantially the same as in the case at bar.

The Government has no ready means of knowing the real relations between the shipper and the importer except by the testimony of these persons themselves. They themselves are the only ones who know the facts from which those relations spring. The evidence of that relationship they alone possess. The Government is, in a way, at their mercy in this regard. Therefore, when they solemnly and formally state under oath what these relations are, a presumption of more than usual strength and tenacity arises that they are stating the truth and the fact, especially when in such statement they speak against their own interests. If, later, they return to vary that statement, thereby regaining what their previous statement lost them, their evidence of mistake will be scanned with the very closets scrutiny. If in it there appears any flaw or weakness, of if, in the whole case as presented, there appears any reason of doubt the good faith which they ought to exercise in dealing with the Government, the right to change will be denied them.

Greenleaf says in his Treatise on Evidence, paragraph 210:jgc:chanrobles.com.ph

"PAR. 210. In some other cases, connected with the administration of public justice and of government, the admission is held conclusive, on grounds of public policy. Thus, in an action on the statute against bribery, it was held that a man who had given money to another for his vote should not be admitted to say that such other person had no right to vote. So, one who has officiously intermeddled with the goods of another, recently deceased, is, in favor of creditors, estopped to deny that he is executor. Thus, also, where a shipowner, whose ship had been seized as forfeited for breach of the revenue laws, applied to the Secretary of the Treasury for a remission of forfeiture, on the ground that it was incurred by the master ignorantly, and without fraud, and, upon making oath to the application, in the usual course, the ship was given up, he was not permitted afterwards to gainsay it and prove the misconduct of the master, in an action by the latter against the owner for his wages, on the same voyage, even by showing that the fraud had subsequently come to his knowledge. The mere fact that an admission was made under oath does not seem alone to render it conclusive against the party, but it adds vastly to the weight of the testimony, throwing upon him the burden of showing that it was a case of clear and innocent mistake. Thus, in a prosecution under the game laws, proof of the defendant’s oath, taken under the Income Act, that the yearly value of his estates was less than 100, was held not quite conclusive against him, though very strong evidence of the fact. And even the defendant’s belief of the fact, sworn to in an answer in chancery, is admissible at law, as evidence against him of the fact, though not conclusive."cralaw virtua1aw library

We do not feel like disturbing the conclusive of the Collector of Customs in this particular case. He dealt with the parties at first hand, was thoroughly acquainted with the system in operation, was deeply schooled in the methods and arts of those who seek to impose upon the Government in the matter of customs duties. He listened to the protest, observed the conduct of the parties, and weighed the evidence presented. He drew his conclusions from the whole case; and, while the declarations under oath of the appellants and Hering are not conclusive against them, still we are satisfied from the whole case that the Collector of Customs in concluding that they have failed to meet and overcome satisfactorily the burden of proof which those declarations laid upon them was fully justified.

The judgment of the court below is, therefore, affirmed, with costs against the appellants. So ordered.

Arellano, C.J., Torres, Mapa, Johnson and Carson, JJ., concur.

1. VALIDITY OF WILLS; SIGNATURE OF TESTATOR WRITTEN AT HIS REQUEST. — When the judge having jurisdiction of the matter finds that a will is signed with the name of the testator written by one of the witnesses and by the express direction of the testator, and that the instrument is signed by more than three competent witnesses, in the presence of the testator and of each other, nothing being shown to the contrary, the decision of the trial court that in such a case the provisions of section 618 of the Code of Civil Procedure are complied with is in accordance with the law.

2. ID.; SURPLUSAGE. — The legality of a will is not affected by the insertion, supposed to have been made subsequently, of another name before that of the testator when such name may be treated as nonexistent without affecting its validity.

3. ID.; UNDUE INFLUENCE. — The existence of improper and undue influence, because of which it is alleged that a will is invalid, is a matter to be proven to the satisfaction of the court, whose decision can not be questioned unless it is shown that the judge has committed an error of fact or has violate some provision of law or some legal doctrine amounting to an error of law.

Simplicia de los Santos having died on June 19, 1907, her surviving husband, Gregorio Macapinlac, submitted her will to the Court of First Instance of Pampanga, for probate. Mariano Alimurong, a nephew of the deceased, opposed the proceedings and requested that "the will of the deceased, Doña Simplicia de los Santos, be declared null and void for either of the two reasons" which he expresses, and which are:jgc:chanrobles.com.ph

"(1) Because the will was not executed and signed by the witnesses in accordance with the provisions of the Code of Civil Procedure now in force.

"(2) Because it was executed under duress and undue and illegal influence on the part of the persons benefited thereby or of a person acting in their interests."cralaw virtua1aw library

The trial having been held and evidence adduced, the trial court declared the following facts to be proven:jgc:chanrobles.com.ph

"(1) That at 6 o’clock on the evening of June 17, 1907, Simplicia de los Santos, who was sick but in full possession of all her faculties, executed her will, which is the document attached to the record, Exhibit No. 1 of the petitioner.

"(2) That after the execution of such will on Monday, the testatrix died early on the morning of the following Wednesday.

"(3) That, as a preliminary act, a rough copy of the said will was made up, which rough copy was read to the testatrix, and the latter ordered an additional clause to be added thereto, in connection with a legacy that she desired to make in favor of some of her old servants who had rendered good service.

"(4) That, after the rough copy was amended by the additional of the above—mentioned clause, a clear copy thereof was made up and was again read to the testatrix, who approved it in all of its parts, and, as she was unable to sign, she requested Amando de Ocampo to sign for her and the latter wrote the following words with his hand.’At the request of the testatrix D. Simplicia de los Santos, I signed — Amando de Ocampo.’ Immediately afterwards and also in the presence of the same testatrix and of each other, the witnesses Jose Juico, Gabino Panopio, Eusebio Dayao, Juan Angeles, Jose Torres, Alejo San Pedro, and Gregorio Sangil signed at the bottom of the will.

"In view of the said facts—the lower court concludes—the will executed by Simplicia de los Santos must be admitted to probate. The provisions of section 618 of the Code of Procedure in Civil Actions and Special Proceedings are fully complied with. The will bears the name of the testatrix written by Amando de Ocampo in her presence and by her express direction, and has been witnessed and signed by more than three trustworthy witnesses, in the presence of the testatrix and of each other."cralaw virtua1aw library

The judgment was as follows:jgc:chanrobles.com.ph

"It is ordered that Exhibit No. 1, duly translated, be probated as the last will of Simplicia de los Santos and that the corresponding letters of administration be issued in favor of Gregorio Macapinlac, the surviving husband of the said Simplicia de los Santos, the protest of the adverse party being dismissed, with the costs."cralaw virtua1aw library

The opponent appealed, and the appeal having been submitted to this court, together with the allegations of both parties, it appears that the appellant has alleged the following assignments of error:chanrob1es virtual 1aw library

1. That the proceedings were not dismissed, because the witnesses for the petitioner did not sign their respective testimony.

2. That it was declared that the will of the deceased Simplicia de los Santos was executed with all legal formalities.

3. That it was not declared that the will of the deceased Simplicia de los Santos was executed under undue and illegal influence on the part of the persons benefited thereby or of a person acting in their interests.

With reference to the first assignment of error, inasmuch as no question was raised in the first instance in the form of a motion and denied by the court below and exception taken and brought up on appeal, there is no ground on which we may take into consideration such assignment and decide a matter not covered by the appeal and with reference to which a decision by this court is not properly sought.

In regard to the second assignment, in view of the facts set forth and of the findings made by the trial court, according to the preponderance of the evidence, it can not be rationally shown that the conclusion should have been otherwise, nor does it appear that the conclusion infringes any statute or legal doctrine for the enforcement of which this court should review the evidence.

But, besides the question of fact, the appellant submits another question of law, viz, whether or not the will was signed in accordance with the law, and he affirms that it was not, inasmuch as the law requires that when a person signs in place of the testator he should write the name of the latter in the will as the signature; this was not done by Amando de Ocampo in the will question, as he did not sign it with the name of the testatrix.

It is shown by the evidence that the will was wholly written in the handwriting of the subscribing witness, Gregorio Sangil, and at the foot thereof the following words appear in a new paragraph and sufficiently apart:jgc:chanrobles.com.ph

"At the request of the testatrix, Da. Simplicia de los Santos, I signed.

"For Simplicia de los Santos.

"Amando de Ocampo."cralaw virtua1aw library

As a question of fact, the authenticity of the words "For Simplicia de los Santos," prefixed to the signature, is impugned as not having been written at the time of the execution of the will.

And, as a question of law, it is claimed that the form of signing for the testatrix "At the request of the testatrix Da. Simplicia de los Santos, I signed: Amando de Ocampo," is not in accordance with the requirements of the law.

Regarding the first question, the trial court concluded that "the posterior insertion of the words ’For Simplicia de los Santos’ can not effect the validity of the will."cralaw virtua1aw library

Therefore, it can be considered as nonexistent, and the other as the only form of signature by the testatrix, the authenticity of which has not been impugned or which the trial court admits as conclusive, and is the only one taken into account in its findings of fact. Although the said words "For Simplicia de los Santos" be considered as inserted subsequently, which we neither affirm nor deny, because a specific determination either way is unnecessary, in our opinion the signature for the testatrix placed outside of the body of the will contains the name of the testatrix as if she signed the will, and also the signature of the witness who, at her request, wrote the name of the testatrix and signed for her, affirming the truth of this fact, attested by the other witnesses then present. And this fully complies with the provisions of section 618 of the Act.

With reference to the third assignment of error, the court below found:jgc:chanrobles.com.ph

". . . and the influence which, according to the adverse party, was exercised upon the testatrix by Father Lupo is not shown. While the rough copy of the will was being made, Father Lupo simply discussed with those who were making the rough draft the question of the more appropriate use of some phrases in Pampango. It is true that he went in and out of the room of the testatrix several times, and that from time to time he showed a relic to her, but there is no evidence to indicate that Father Lupo influenced the testatrix directly and caused her to be influenced in any way."cralaw virtua1aw library

Against this finding of fact, based upon the preponderance of the evidence as weighed by the trial court, we find no reason or ground for deciding this question of fact in any other way. We find no data showing that the person above mentioned directly influenced the provisions of the will; that such is the illegal and improper influence which the law condemns as overcoming that freedom by which the last of will of a man must be expressed.

The judgment appealed from is hereby affirmed, with the costs of this instance against the Appellant. So ordered.

Torres, Johnson, Carson and Moreland, JJ., concur.

1. HOMICIDE; PARAGRAPH 4, ARTICLE 8, PENAL CODE. — The application of the additional circumstances prescribed by paragraph 4 of article 8 of the Penal Code depends upon the existence of the illegal aggression.

2. ID.; SELF-DEFENSE. — The injuries inflicted upon the attacking party by the defendant having been preceded by an illegal aggression by the former, unprovoked and repelled in a reasonable manner, the plea of self-defense is admissible.

On the night of June 2, 1908, in a barrio of the municipality of San Pablo, La Laguna, Facundo Bardelas wounded Simeon Belen with cutting weapon, as a result of which the latter died few hours after he was taken to a house near the place of the occurrence. On expert examination it was found that Simeon Belen had a stab would on the inner front part of the left arm above the elbow, running downward and backward; the said wound was 13 centimeters long and 5 centimeters deep, the humeral artery, the superficial and internal veins, and the median nerve of the region being severed. The physician who made the examination certified and declared at the trial that, in his opinion, the true cause of the death of the deceased Simeon Belen was the hemorrhage caused by the said wounds and the severing of the veins and artery.

Apolonio Manalo, a boy 16 years of age, cousin of the deceased, declared, as the first witness for the prosecution and as the only one who witnessed the affair, that on the evening of the said day, the 2d of June, 1908, at about 6 o’clock, he and his cousin Simeon Belen went to a barrio to inspect a zacate field belonging to Belen; that they remained for about two hours in the house belonging to an aunt of theirs and situated in the barrio, there being no one else in the house at that time; that they afterwards returned to the town; that Simeon Belen was armed with a bolo; that when they were returning, at about 10 o’clock p.m., and near the house of one Marcelino Biglete, "I—the witness says—felt the desire to urinate, but, before finishing, I saw the two men (Facundo Bardelas and his cousin Belen) quarreling, and when I was about 10 brazas from them, my cousin’s opponent ran away, and my cousin was crying and calling upon me to revenge him; then I followed after Facundo Bardelas, and when I was some distance away my cousin again called out and told me to take him to his house;" that when he went again to his cousin, he latter was standing and wounded, but he then no longer felt able to reach his home and preferred to be taken to a nearby house, which belonged to Gelasio Bagsic; that he took him to the said house, the wounded man learning upon him, and after he had called the inmates of the house they entered it; that immediately thereafter he left hi cousin under the care of Bagsic and his wife, and then proceeded to the town to inform the wounded man’s mother of what had happened; that he returned to Bagsic’s house with a policeman; that before the quarrel, as he was urinating, he did not notice whether anyone had passed along the road where they were walking; that when he approached his cousin he had seen no one else, and that he does not know whether anyone could have seen the quarrel, which took place in from of the house of Marcelino Biglete; that, when they went to see the zacate field, Belen carried his bolo sheathed at his waist, but in the moment of the quarrel, when the witness approached, he saw that the former had the bolo in his hand, but he could not see whether or not it was stained with blood because, as stated, he immediately went in pursuit of the other man, and he only saw the bloody bolo when he was conducting his cousin to the house of Bagsic.

"Q. And who was carrying the bolo, you of Simeon, when you went to Gelasio’s house? — A. Simeon.

"Q. And where was Simeon’s bolo when you left him at Gelasio’s house? — A. I left it here.

"Q. What was the size of the bolo? — A. The edge was 40 centimeters long.

"Q. What king of handle did the bolo have? — A. It was made of wood.

"Q. What part of the bolo was stained with blood when you saw it? — A. The whole length of the bolo."cralaw virtua1aw library

Albina Balverde, the wife of Gelasio Bagsic, testified that Simeon Belen was taken to her house, and that he died after informing her husband that Facundo Bardelas was the one who wounded him; that she saw a bolo stained with blood in the place where the corpse was, which bolo was unsheathed and lying on the floor where the deceased left it, at the right side of the body.

Teodoro Abenoja, the policeman who accompanied Apolonio Manalo when he went back to the house of Gelasio Bagsic, testified that, on arriving at the place where the quarrel had occurred, Apolonio pointed it out to him saying:jgc:chanrobles.com.ph

"The two men quarreled here," and in view of which he examined the spot carefully and found a hat there.

The last witness for the prosecution, Francisco Olove, declared that on the night of the occurrence, when he was returning from the distillery in which he worked, accompanied by Roman Amatorio, walking toward his house, situated in the vicinity of the house of Marcelino Biglete and Gelasio Bagsic heretofore mentioned, he met Facundo Bardelas in the road opposite the house of Marcelino Biglete, and he then met Simeon Belen and another person who was standing close to a fence, facing the same; that Bardelas was standing with his right hand on his waist or in his pocket; that he called the latter by his name and received an answer and then continued on his way.

Facundo Bardelas testified that on the night of the 2d of June, 1908, he left his house after supper to visit a friend of his, one Felicidad Fule, in the barrio of San Rafael. "When I was at a certain distance from the house of Marcelino Biglete — he says—I saw two men standing in front of the house of Gregorio Fule; on passing in front of the house of Marcelino, Apolonio and Simeon came toward me, and Simeon seized me by the front of my shirt and asked me where I was going; I replied that I was going to visit an acquaintance of mine, Felicidad Fule; then Simeon told me: "Why do you go there?,’ to which I replied asking why I should not go, she being an unmarried woman; then he caught me by the neck and, squeezing it, he said to his companion: pegale un tajo, pegale! (strike him, strike him), then with my left and I endeavored to remove his hand from my neck, and I then heard Apolonio Manalo tell Simeon Belen to strike me; with my left hand I beat the left hand of Simeon Belen, with which he was grasping my neck, in order to make him let go, whereupon, Simeon Belen stabbed at me; I was able to prevent the blow with my left hand and at the same time I also struck him and ran away." Upon being questioned with what weapon he struck the blow, he said that it was a penknife, which, having been exhibited, is described in the following terms: "A penknife of those usually called a fan knife, sharp pointed, with a metal handle, the blade being 8 centimeters long and the handle 10 centimeters." When he was asked what happened when he ran away, he said that Apolonio Manalo ran after him, without succeeding in catching him, and that he did not stop running until he reached his house, and that when he arrived there he noticed that he had an injury in the upper part of his left hand and another on his neck, in consequence of "the squeezing that Simeon Belen gave me;" these injuries were examined by the president of the local board of health.

It is shown by the record that, on the 4th of June, 1908, the same physician who had examined the corpse of Simeon Belen on the previous day, examined Bardelas and certified that he had sharp cut on the back of his left hand, penetrating the skin, 2 1/2 centimeters in length; and a scratch on the skin about the middle of the left side of the neck, 2 1/2 centimeter long, running horizontally to the base of the neck; both injuries were slight; that the first would heal in five days with medical assistance, and the second without any assistance. In the record of the proceedings, on July 30, which was the date of the trial, the following appears:jgc:chanrobles.com.ph

"The accused exhibits before the court the scar he has at the place described in the medical certificate (Exhibit No. 1), that is, in the middle of the back of the left hand, 3 1/3 centimeters in length, which scar is vertical to the bones of the hand. And he exhibited another small scar, 1 1/2 centimeters long, of an irregular form, also vertical with relation to the axis of the neck and on the left side."cralaw virtua1aw library

The assistant counsel for the prosecution asked the court to appoint two expert physicians to determined clearly: (1) the position in which the accused was when he received that wound, and with respect to the scar, when and from what direction he received the blow; (2) whether a violent blow given with a bolo would have resulted in the simple cutting of the skin without severing any artery or vein.

The two physicians who testified, Dr. Gertrudo de los Reyes and Dr. Donato Montinola, stated that it is likely that the said injury was caused by the blow which the deceased attempted to give the accused, but the physician first named thinks that, judging from the injured tissues, the bolo did not fall vertically upon the back of the hand, but rather obliquely so that the man was able to stop the bolo with the back of his hand and was wounded superficially, or, as the other physician says, the direction was oblique and the injury received by the accused might have been the effect of the blow struck by the deceased.

It has not been shown that the said injury was not the effect of the unlawful aggression attributed to the deceased, which aggression was corroborated by the attitude in which he was found by the witness for the prosecution who accompanied him, who states that, when he approached, he saw him with the bolo unsheathed and that he kept it in his hand until he arrived at the house to which he was taken.

The three circumstances constituting lawful self—defense, and exemption from criminal responsibility, having been duly proven, the judgment appealed from can not be sustained.

The said judgment is hereby reversed and Facundo Bardelas is acquitted with the costs of both instances de oficio. So ordered.

Torres, Mapa, Johnson, Carson and Moreland, JJ., concur.