1. OPIUM; PRESUMPTION OF POSSESSION OF DRUG. — Where a person entertains an offer to sell his opium, goes to the house of the vendor, examines the drug and leaves the house with three tins of it, and where the person is not authorized to have the drug in his possession, it is presumed that he was the owner thereof by purchase.

2. POSSESSION DEFINED. — Civil possession is the holding of a thing with the intention of acquiring ownership. (Civil Code, art. 430.)

3. OFFER TO COMPROMISE. — An offer to compromise is not a confession of debt and is not admissible in evidence.

The reason in this case has come before us on appeal by both defendants from the judgment of the Court of First Instance of Cebu whereby they were convicted of a violation of Act No. 1761. Regino Torres was sentenced to imprisonment for three years, Pablo Padilla to one year and one month, and each to pay one-half of the costs. The three tins of opium, the corpus delicti, were ordered confiscated.

On examination of the record it appears:chanrob1es virtual 1aw library

That the testimony of George W. Walker and Juan Samson, secret service agents of the Cebu Customhouse who arrested the defendants, and the seizure of the corpus delicti (Exhibits A, B, and C) were held by the trial court to be conclusive evidence against defendants.

That Walker testified that he had received information that on the night of January 20, 1914, Regino Torres would go to the house of the widow of one Franco to get some opium; that at 7:30 that evening they stationed themselves in Calle de Colon, where the said house stood, and a short while afterwards saw the two defendants come out of the door of the garage on the premises; that Samson seized Torres, and as Padilla started to run away Walker went in pursuit of him and on passing by Samson and Torres saw two tins of opium; that three times he ordered Padilla to halt, and, as the latter continued to run, witness fired a shot into the air, whereupon Padilla stopped, after he had thrown one tin over a fence; that, after the arrest of both defendants, Walker and Samson set out with lights to search for the tins and found the one thrown by Padilla inside the inclosure, and the other two tins, about a meter from the place where Samson had been holding Torres.

That the other officer, Samson, gave nearly the same testimony. He added, however, when questioned by the defense as to whether Walker had said anything to him on his return from his pursuit of Padilla, that Walker did say that he saw Regino Torres throw away two tins and that he was looking for them. He was also asked by the defense whether Walker had proposed to the defendants that they pay a fine in the form of a compromise, to which he replied that he had not, but that, on the contrary, it was the defendants who made this offer.

That the defendant Regino Torres testified that Padilla told him that there was a large amount of opium, and they agreed that at 6 o’clock in the evening they would go to the house above mentioned; that Padilla went to Torres’ house at 6 o’clock in the evening and hurried him up, saying: "Eat in a hurry, for the owner of the opium needs money" ; that when they arrived at the house of Franco’s widow, Padilla entered the door of the place where the automobiles were kept, and five minutes afterwards called witness to enter the garage and there Padilla showed Torres a tin of opium, at the same time saying that it was first class and cost P60 without haggling; that witness replied that he would first show it to some trustworthy friends to determine its class; that Padilla agreed and they both left for this purpose, but that when they had gone about ten brazas from the door, he was seized by Samson and saw that Padilla had run away and was being pursued by Walker. The court asked Torres whether he had wished to investigate first and buy afterwards, to which he replied that he did, and that if he had been convinced of the quality of the opium he would have bought about 20 or 25 tins. "But have you so much money?" inquired the judge. The defendant replied: "Yes, sir."cralaw virtua1aw library

That, upon arraignment, Pablo Padilla pleaded guilty. "The defendant’s counsel," says the trial court in his decision, "requested that his client be permitted to state the circumstances that surrounded the case and which induced this defendant to commit the crime under prosecution." The court further says therein: "It is preferable that counsel himself state the circumstances that, in his opinion, attended the crime and which may be considered as extenuating."cralaw virtua1aw library

Pantaleon del Rosario, Padilla’s counsel, stated that according to the information given by his client, the latter is a poor man who accompanied the other defendant Regino Torres principally in order that, in case they were caught by the authorities, Torres might transfer the material possession of the opium to counsel’s client and the latter would assume liability for such possession and suffer the legal consequences.

That the trial court took that statement into consideration in extenuation of the penalty he imposed upon Padilla, concluding by saying that this defendant appeared to be a poor man who, impelled by poverty, had accompanied Torres for the purpose, as every probability indicated, of obtaining a relatively small share in the business in which Torres was engaged; while, with respect to Torres, the court said that he played the most important role, for he confessed to have sufficient means to purchase opium to the amount of twenty tins at P60 a tin.

From the judgment of conviction Regino Torres bases his appeal on four assignments of error: (1) In that the trial court concluded that two tins were taken from the appellant’s possession; (2) in holding that the appellant had incurred the penalties provided in section 31 of Act No. 1761; (3) in holding been engaged in the business of buying and selling opium, and in grounding the judgment of conviction on the said confession; (4) in accepting, as evidence for the prosecution, the compromise that it is asserted he proposed to the agent George Walker; and (5), in that the penalty imposed upon the appellant was excessive.

Pablo Padilla bases his appeal only on this last assignment.

Errors 1, 2, and 3 will not lie. Where a person entertains an offer to sell, goes to the house where the sale is to be effected, making haste because the vendor needs money and because he was urged to do so by the agent who made him the offer, enters the house, examines the article, leaves the house with three tins which contained the thing offered for sale and which is a prohibited article by a reason of its being opium, and if the purchaser is not a person authorized to have it in his possession, it can not be held that the purchaser took the three tins with him to sample their contents; such a purpose must be proven and unless it is there can be no other inference than that he carried away with him the thing purchased and that its acquisition was a consummated fact, for the presumption is that the acts took place in the ordinary course of things and the general routine of dealings between men, and it cannot be doubted that the person who had the control over the opium at the moment it was seized, whoever it was that carried it, could be no other than the owner of the money which the vendor so urgently desired to acquire on that day in exchange for the opium. Civil possession is the holding of a thing by a person with the intention of acquiring ownership thereof (Civ. Code, art. 430). It was Torres who had the intention of having the opium as belonging to him, and as he intended, so he had it, and it was afterwards taken from him, as being a thing that he could not hold, possess nor lawfully have as his own. Padilla was not the owner of the money which the person who sold the opium needed. Padilla was but an agent who made the offer to Torres. Padilla had no intention of holding, possessing and having as his own the opium which, on the part of another, he had offered to Torres. The possession or material holding in this case gives way to the civil possession which, according to Torres’ confession, was the reason that took him to the house of Franco’s widow, thus putting into effect the intention to possess which he had a priori entertained as the cause of his presence in the place of the sale. After all, the seizure of the two tins at a place one meter away from the spot where Torres was arrested by Samson, and the seizure of one tin in the possession of Padilla, who had thrown it into an inclosure, are facts held by the trial court to have been proven, and this finding, which does not violate any law and which we do not find to be erroneous, should not be changed in this review of the evidence. We confirm the finding and hold that it is in accord with the merits of the case.

With regard to the fourth cause of action, the facts are as follows: The witness, Walker, testified, among other things, that Regino Torres endeavored to compromise the case and that he (Walker) was willing to accept the compromise through the payment of P1,500, but subject to the approval of his superiors. The defense asked that this testimony be stricken out, alleging that, in accordance with the Code of Civil Procedure, the compromise in such cases must be made in writing. "When made in civil cases, it is proper; but in criminal causes, it is not," the court said, and accordingly overruled the objection. The defense excepted.

We have already seen above what Samson’s testimony was concerning this point and how thereby he corroborated that given by Walker.

An offer to compromise is not a confession of debt and is not admissible in evidence (Code of Civ. Proc., sec. 346). In a criminal cause for theft (U. S. v. Maqui, 27 Phil. Rep., 97) this court said that the weight both of authority and reason sustains the rule which admits evidence of offers to compromise, in criminal cases, but permits the accused to show that such offers were not made under a consciousness of guilt, but merely to avoid the inconvenience of imprisonment or for some other reason which would justify a claim by the accused that the offer to compromise was not in truth an admission of his guilt and an attempt to avoid the legal consequences which would ordinarily ensue therefrom.

It is a legal maxim, which assuredly constitutes one of the bases of the right to penalize, that in the matter of public crimes which directly affect the public interest, in so far as public vengeance and private interests are concerned, no compromise whatever may be entered into as regards the penal action, however it may be with respect to the civil liability. But section 25 of Act No. 1761, under which this cause was prosecuted, expressly authorizes the Collector of Internal Revenue to compromise a case after action has been begun, "instead of commencing or prosecuting suit thereon." The words in quotation marks are textual. A compromise necessarily implies two elements, one of which is the offer and the other the acceptance, in order that the penal action may be extinguished and there remain only the civil liability to deal with. Of course ordinarily it is the defendant who makes the offer, — a lawful act sanctioned by law in this class of prosecutions, — and because it is made, no presumption of guilt must be raised against the maker, as occurs in other criminal causes for public crimes in which the offer is not lawful because it is a thing prohibited by law. The offer may have been prompted simply to avoid the annoyance of a prosecution, as sometimes happens in a civil case where a person involved in the litigation is perhaps entirely in the right but prefers to lose a sum of money rather than commence and prosecute an action. This case is, therefore, on all fours with that of section 346 of the Code of Civil Procedure, above cited. At all events, for the conviction of the defendants it is not necessary to consider and weigh this evidence; it could only be considered as cumulative, and it was not taken into account by the trial court.

With regard to the 5th assignment of error which alleges that the penalty was excessive, it must be remembered that the trial court exercised his discretion in fixing the penalty within the limits established by law and that, in principle, what is authorized by law cannot be held to be arbitrary. But the penalty imposed by the trial court in his discretion will not necessarily have to stand for that reason. If such a principle governed, appeals would be useless. This Supreme Court also exercises its discretion, and, in a higher degree, by its right of review in criminal causes brought up on appeal or consultation and of high inspection over the administration of justice, it has the power to modify within the limits of the penalty provided by law, in order to maintain uniformity in its application. If judicial decisions vary in the different provinces of the Archipelago, even in identical or at least analogous cases, it is principally due to the fact that the judges, acquainted with the extent of crime in their respective jurisdictions, are justified, in order to suppress crime, in applying the law more strictly and severely in some provinces than in others in accordance with the greater or lesser propensity to disobey the laws and the peculiar circumstances that prevail in each locality. But within the same province such variation would not be justifiable, as it would transgress the law which fits the penalty to the crime. In the Province of Cebu the court sentenced Lao Lock Hing, for the possession of 70 tins of opium, to five years’ imprisonment and a fine of P10,000, or, in case of insolvency, to subsidiary imprisonment; but this Supreme Court reduced the penalty to two years’ imprisonment and a fine of P3,000 (14 Phil. Rep., 86 1). In the same Province of Cebu, Miguel Villano was charged with having bought and sold 190 tins of opium — although one of the charges was for 100 tins only, valued at P3,000, because the 190 tins were received on different dates — and was sentenced on the charge for the 100 tins, to one year and two months’ imprisonment and to pay a fine of P2,500, a judgment which was affirmed by this Supreme Court (18 Phil. Rep., 359 2). In another cause also tried in Cebu against one Look Chaw for the sale of 30 tins of opium, the penalty imposed was one year’s imprisonment and a fine of P2,000; this also was affirmed by this Supreme Court (19 Phil. Rep., 343 3).

The foregoing sentences are in notable contrast to the case at bar in which Regino Torres is sentenced to three years’ imprisonment for the possession of two tins of opium, valued at scarcely P120, and Pablo Padilla to one year and one month for the possession of one tin of the same drug, worth probably P60.

The judgment appealed from is affirmed, with the understanding that the imprisonment to be imposed upon Regino Torres shall be that of nine months, and that upon Pablo Padilla, six months, each of them to pay the costs of this instance in equal shares. So ordered.

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

Endnotes:

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1. U. S. v. Lao Lock Hing.

2. U. S. v. Villano.

3. U. S. v. Look Chaw.