"WM. J. ROHDE.
"D. J. MCMILLIAN."
According to the testimony of the defendant Rohde, McMillian.was in the retail liquor business and secured a stock of merchandise valued at P1,200 from Brand & Hibberd and sold it. Alleging that they delivered the merchandise to him on deposit only, Brand & Hibberd filed a complaint of estafa against McMillian. McMillian was arrested and released on bond pending the preliminary hearing before the justice of the peace. The defendant Rohde was a practicing attorney and undertook McMillian’s defense in the estafa case. Rohde testified that he was well acquainted with the nature of the transaction between the firm of Brand & Hibberd and McMillian; that the merchandise was sold outright to McMillian; that he knew the estafa complaint was absolutely without foundation; and that McMillian could not possibly be convicted; but that one Sullivan informed him after the preliminary hearing was held that he knew positively that McMillian would be bound over for trial in the Court of First Instance. In rebuttal, Sullivan testified that what he told Rohde was that he was satisfied from the evidence introduced at the hearing that McMillian would be held for trial in the Court of First Instance. Upon the strength of Sullivan’s statement, Rohde agreed to sign the note reproduced above if Brand & Hibberd would withdraw the estafa complaint. He did this because he did not want his client to remain in confinement pending his trial in the Court of First Instance, which would not have occurred for three months. His client was sick at the time and Rohde was afraid that confinement in the jail for such a period of time would seriously endanger his health. After the execution of the note, Brand & Hibberd moved in the justice court that the estafa complaint be dismissed and this motion was granted by the presiding justice. In the order dismissing the complaint, the justice stated that, from the evidence introduced at the hearing he was convinced that there was no sufficient basis for a criminal action, but that the controversy was of a civil character. Rohde subsequently said two hundred pesos on the note. The note was assigned to the plaintiff L. O. Hibberd, on June 10, 1911.
Any agreement which has for its purpose the concealment of a public offense, the suppression of evidence thereof, or the stifling of a criminal prosecution already commenced is contra bonos mores and against public policy. Every successful attempt to shield persons guilty of such offenses adds impetus to crime by encouraging the culprits and all others of criminal tendencies who may learn of such perversions of justice, to commit further offenses. A person suffering pecuniarily from the commission of such a crime may not barter away the benefits of public order and the personal safety and security of the people by representing to the culprit that he will actively aid in the task of securing immunity from the public prosecution if his civil damages are made good. Courts are charged with the duty of administering the law, and they should not lend their aid to the enforcement of any contract which looks to its perversion. (Wever v. Shay, 56 Ohio, 116; 60 Am. St. Rep., 743; Ormerod v. Dearman, 100 Pa., 561; 45 Am. Rep., 391; Partridge v. Hood, 120 Mass., 403; 21 Am. Rep., 524; Gardner v. Maxey, 9 B. Mon. [48 Ky. ], 90; Goodrum v. Merchants & Planters Bank, 102 Ark., 326; Ann. Cas., 1914A; Nickelson v. Wilson, 60 N. Y., 362.) Nor is it important that the shielding of the guilty party was a minor consideration of the agreement, or necessary that a crime shall have been in fact committed. The intention of the parties to obstruct criminal justlce to whatever extent taints the entire contract and makes it unenforcible. (United States Fidelity & Guaranty Co. v. Charles (Ala.) , 57 L. R. A., 212; W. T. Joyce Co. v. Rohan, 134 Iowa, 12; 120 Am. St. Rep., 410; Crowder v. Reed, 80 Ind., 1.) The courts will not interfere either to rescind an executed contract or to enforce an executory contract of such character. The parties are left just where they are found. Perez v. Herranz, 7 Phil. Rep., 693; Rohdes v. Neal, 64 Ga., 704; 37 Am. Rep., 93; Bowman v. Phillips, 41 Kan., 364; 13 Am. St. Rep., 292; Atwood v. Fisk, 101 Mass., 363; 100 Am. Dec., 124; Case v. Smith, 107 Mich., 416; 61 Am. St. Rep., 341; 31 L. R. A., 282.)
A very large number of public offenses, however, inflict pecuniary damage on private persons. The Penal Code recognizes the civil liability of offenders (arts. 119, et seq). In this civil liability the State has no interest other than its undertaking to aid the injure person in securing compensation for his injuries, and it cannot be doubted that if the injured person so desires he may privately negotiate with the criminals or with persons interested in the latter for the settlement of his private damages. Article 1813 of the Civil Code provides that a civil action arising from a crime may be compromised, but the public action for the imposition of the legal penalty shall not be extinguished thereby. So long as the right of the State to exact the penalty for the public offense is not trenched upon, there is nothing unlawful or immoral in such a contract. (Schirm v. Wieman, 103 Md., 541; 7 Ann. Cas., 1008; Atwood v. Fisk, 101 Mass., 363; 100 Am. Dec., 124; Goodrum v.s. Merchants & Planters Bank, 102 Ark., 326; Ann. Cas., 1914A; Lomax v. Colo. Nat. Bank, 46 cOro., 229.) And mere threats of prosecution will not vitiate an instrument given for an amount embezzled or for the value of property feloniously taken, unless coupled with an agreement not to prosecute if the instrument be given. (Wolf v. Troxell Estate, 94 Mich., 573; Portner v. Kirschner, 169 Pa., 472; 47 Am. St. Rep., 925; Goodwin v. Crowell, 56 Ga., 567; Thorn v. Pinkham, 84 Me., 101; 30 Am. St. Rep., 335.) A mere expectation of one of the parties that the settlement of the civil injuries will stop the public prosecution is not sufficient to make such a contract void as against public morals or public policy. (Phillips v. Pullen, 45 N. J. Eq., 830.) As was said in Moog v. Strang (69 Ala., 98), the law does not "seek to control the hope or expectation of the offender. He may very reasonably, in many cases, expect that the prompt settlement of a discovered default may tend to paralyze the energy of an incipient prosecution, and however reprehensible the motives of the parties, they are not cognizable by the courts so long as their minds falls short of concurring in an agreement, express or implied, to compound or not to prosecute as the consideration in part or in whole of the payment of the debt or damages resulting from the crime committed."cralaw virtua1aw library
In this country a person is not an accessory to a public offense except in the cases expressly provided by law. (Penal Code, art. 15; Act No.292; U.S. v. Caballeros, 4 Phil. Rep., 350.) In Goodrum v. Merchants & Planters Bank (102 Ark., 326; Ann. Cas., 1914A), it appears that Goodrum was manager of a bank and that one Eagle held the majority of the bank’s capital stock and controlled its policies. Goodrum defaulted, and to settle his shortage executed a trust deed which was to be surrendered to the bank in case an examination showed that he was criminally liable. In a suit by the bank to compel the conveyance, Goodrum sought to show the illegality of the contract by evidence that he had been promised immunity from criminal prosecution if he would make good the shortage. Eagle testified that he promised that, if the conveyance were made "We won’t lie around the courthouse and try to prosecute him; but if the grand jury calls on me and asks me to explain these books and asks me if the shortage occurred upon the expert’s report, I will tell them everything I know about it." The court said: "We do not think that this statement of Mr. Eagle in effect that he would not go before the grand jury until summoned to appear was an implied agreement either to withhold testimony, conceal the crime, or to stifle the prosecution under the facts and circumstances of this case. The charges made against Goodrum that he was short in his accounts with the bank, and criminally so, were not only known to all the directors and persons present at the conference, but they had been published to the world, and the knowledge thereof rife amongst the people of that community, if not also amongst the people of the county. This is not a case where the charges were only known by a few persons, and upon their failure to divulge them they would not come to the notice or knowledge of the public or to those to whom the prosecution of crime is entrusted by the law. . . . At the most, Eagle only stated that he would not instigate a prosecution. . . . Because he would remain passive relative to matters of which the public authorities had full knowledge, it can not be said that he thereby agreed to shield Goodrum from any public prosecution."cralaw virtua1aw library
In Nickelson v. Wilson (60 N. Y., 362), it was said: "But an agreement to lay the whole facts before the court, and to leave it to the free exercise of the discretionary powers vested in it by law, is not in itself wrong, and is not rendered illegal even by a stipulation on the part of a prosecutor to exert such legitimate influence as his position gives him in favor of the extension of mercy to a guilty party."cralaw virtua1aw library
Whether the tendency of an agreement is to interfere with the due enforcement of criminal law is always a question of fact. (Martin v. Tucker, 35 Ark., 279; Goodwin v. Crowell, 56 Ga., 567; Beath v. Chapoton, 115 Mich., 506; 69 Am. St. Rep., 589; Goodrum v. Merchants & Planters Bank, supra.)
In the case at bar, the findings of fact made by the court below have been duly submitted to us for review. The trial court found as a fact that the consideration of the note was the compromise of a public offense. We do not think that the evidence justifies this conclusion. It is true that the defendant Rohde testified that the consideration of the note was "the withdrawal of the false charge against him (McMillian) and to get him out of jail." But it is also in evidence that McMillian owed Brand & Hibberd the full amount of the note and Rohde knew this fact before he signed the note. There is no charge that Brand & Hibberd filed the criminal complaint with a view of extorting a settlement of their claim against McMillian. The hearing at the preliminary investigation was duly had and all the evidence was before the justice of the peace before the agreement represented by the note was made. It is not shown that Brand & Hibberd agreed not to testify in any further criminal proceedings against McMillian, or that they would suppress any evidence in their possession, or that they would solicit the State’s prosecutor or any other Government official whose authority extend to the criminal case, to not hold the defendant for trial. What they actually did was to move in open court for a dismissal of the complaint. This is all they did so far as the record shows, and that it was satisfactory to the defendant Rohde is apparent from the fact that he subsequently made partial payments on the note.
There can be no doubt that the agreement which resulted in the execution of the note was entered into by Brand & Hibberd with an eye to the satisfaction of their pecuniary claim against McMillian. From the testimony of Rohde himself it appears that he strongly insisted that McMillian was not guilty of the crime charged, and no doubt his ability as a lawyer tended to convince the complainants that the criminal charge was unjustified. If they became converted to this view of the matter, they no doubt more readily consented not to actively assist in the further prosecution of the criminal complaint. We do not think the record justifies a more radical conclusion as to what Brand & Hibberd agreed to do with reference to the criminal phase of the transaction than that they promised not to further actively participate in the case. The record does not justify the conclusion that they went further and agreed to actively assist in preventing the due investigation of the criminal charge by suppressing evidence, by declining to appear against McMillian if duly subpoenaed as witnesses, or by other means. In our opinion, the case is similar in many aspects to Goodrum v. Merchants & Planters Bank (102 Ark., 326), to which we have referred above. The record indicates the same passivity on the part of the injured party and the same publicity of the criminal charge. There having been no agreement to interfere with the due administration of the criminal law, we are constrained to hold that no part of the consideration of the note declared upon is illegal or against public policy. The plaintiff is therefore entitled to judgment. The judgment appealed from is reversed and judgment is decreed against the defendant Rohde for the sum of one thousand pesos, the amount remaining unpaid on the note, together with legal interest from the date of the institution of this action. Without costs. So ordered.
Arellano, C.J., Torres, Carson and Araullo, JJ., concur.