G.R. No.

1, October 18, 1901

THE UNITED STATES, COMPLAINANT AND APPELLEE, VS. MANUEL SYTAY, DEFENDANT AND APPELLANT. D ECIS ION
WILLARD, J.: In this motion, the moving party prays the court to dismiss the appeal from the judgment of the Court of First Instance of Manila. The accused was tried for seduction in the court of the justice of the peace of Binondo, and judgment of conviction was there rendered against him. He appealed from this judgment to the Court of First Instance of Manila, which took cognizance of the case on appeal and gave judgment affirming the judgment of the justice of the peace. From this judgment an appeal to this court was admitted. The motion must be granted. Section 43 of General Orders, No. 58, permits an appeal in this class of cases only when there is involved the constitutionality or validity of a law. The accused alleges that General Orders, No. 58, is a law in force; that the said order repealed the Spanish Code of Criminal Procedure, and that he should have been tried in accordance with the provisions of said general order. The question whether one law repeals another is not a question that involves the validity of the law which is alleged to have been repealed, within the meaning of the exception. This exception refers only to those cases in which it is contended that a law was invalid from the time of its passage. In the present case there is no such contention. It results that all of the questions which are sought to be presented by means of this appeal were determined by the judgment of the Court of First Instance, and that in accordance with the provisions of section 43 of the abovementioned General Orders, No. 58, the said judgment is final and of such character that it can not be the subject of review in this court. Wherefore, the motion of the appellee is granted and the cause is remanded to the Court of First Instance, whence it has proceeded, for its action in accordance herewith, with the costs de oficio. Arellano, C. J,, Torres, Cooper, Mapa, and Ladd, JJ., concur.

OSJurist.org

G.R. No. 6, November 14, 1901

MANUEL GARCIA GAVIERES, PLAINTIFF AND APPELLANT, VS. T. H. PARDO DE TAVERA, DEFENDANT AND APPELLEE. D ECIS ION
COOPER, J.: The present appeal has been interposed in the declarative action of greater import filed in the Court of First Instance of Tondo, commenced on January 10, 1900, by Don Manuel Garcia Gavieres as plaintiff and successor in interest of the deceased Doa Ignacia de Gorricho against Don Trinidad H. Pardo de Tavera as universal heir of the deceased Don Felix Pardo de Tavera for the collection of a balance of 1,423 pesos 75 cents, remaining due on an original obligation of 3,000 pesos which, as the plaintiff alleges, was the amount of a deposit delivered by Doa Ignacia Gorricho, deceased, to Don Felix Pardo de Tavera, deceased, on the 31st day of October, 1859. The agreement between the parties appears in the following writing:

"Received of Senorita Igcacia de Gorricho the sum of 3,000 pesos, gold (3,000 pesos), as a deposit payable on two months' notice in advance, with interest at 6 per cent per annum with an hypothecation of the goods now owned by me or which may be owned hereafter, as security of the payment. "In witness whereof I sign in Binondo, January 31,1859. "FELIX PARDO DE TAVERA."

The defendant answering complaint of plaintiff alleges among other things as a defense, that the document upon which the complaint is based was not a contract of deposit as alleged in the complaint, but a contract of loan, and setting forth furthermore the payment of the original obligation as well as the prescription of the action. The defendant contends that the document upon which the action is based is not evidence of a deposit, as the plaintiff maintains, but of a contract of loan, and that the prescription applicable to loans has extinguished the right of action. Although in the document in question a deposit is spoken of, nevertheless from an examination of the entire document it clearly appears that the contract was a loan and that such was the intention of the parties. It unnecessary to recur to the canons of interpretation to arrive at this conclusion. The obligation of the depositary to pay interest at the rate of 6 per cent to the depositor suffices to cause the obligation to be considered as a loan and makes it likewise evident that it was the intention of the parties that the depositary should have the right to make use of the amount deposited, since it was stipulated that the amount could be collected after notice of two months in advance. Such being the case, the contract lost the character of a deposit and acquired that of a loan. (Art. 1768, Civil Code.) All personal actions, such as those which arise from a contract of loan, cease to have legal effect after twenty years according to the former law and after fifteen years according to the Civil Code now in force. The date of the document is January 31, 1859. The proof of payment in support of the defense we consider likewise sufficient to establish such defense. The document

dated January 8, 1869, executed by Don Felix Garcia Gavieres, husband and legal representative of Doa Ignacia Gorricho, acknowledges the receipt of 1,224 pesos from Don Manuel Darvin, representative of the deceased Don Felix Pardo de Tavera. This sum is declared in said document to be the balance due upon the debt of 2,000 pesos. This was slightly more or less the amount which remained as due upon the original obligation after deducting the payments which are admitted to have been made. In the absence of evidence disclosing that there were other claims in favor of Gavieres it is reasonably to be supposed that this payment was made to satisfy the balance due upon the original obligation. The original contract between the parties was celebrated nearly a half century ago; the contracting parties have ceased to exist long since; it may be that there exists or may have existed documents proving a total payment between the parties and that this document has some time ago suffered the common fate of perishable things. He who by laches in the exercise of his rights has caused a failure of proof has no right to complain if the court does not apply the strict rules of evidence which are applicable in ordinary cases, and admits to a certain extent the presumption to which the conduct of the interested party himself naturally gives rise. It is our opinion that the judgment of the Court of First Instance should be affirmed, and it is so ordered, with costs of appeal taxed against the appellant. Arellano, C. J,, Torres, Willard, and Mapa, JJ., concur. Ladd, J., did not sit in this case.

OSJurist.org

G.R. No. 12, August 08, 1901

IN THE MATTER OF THE PROCEEDINGS AGAINST MARCELINO AGUAS FOR CONTEMPT OF THE COURT OF FIRST INSTANCE OF PAMPANGA. D ECIS ION
SMITH, J.: It appears from the record in this matter that on the 29th of August, 1900, during the progress of a trial then being held before the Court of First Instance at Bacolor, in the Province of Pampanga, the court had occasion to caution Angel Alberto, a witness in the case, not to look at the attorney for the defendant but to fix his attention on the judge who was at the time examining him. It seems that the witness did not give heed to this warning, and the judge thereupon arose from his seat and approaching the witness, seized him by the shoulders, and using the expression, "Lingon ang mucha" ("Look at me"),either shook him, as insisted by the attorney for the defendant, or only turned him about, as claimed by the judge and others. Whether the witness was shaken or only turned about, at all events "seizing him," brought the defendant's attorney to his feet, who, protesting against the action of the judge as coercive of the witness, demanded that a record be made of the occurrence and that the further hearing of the case be postponed. Two days afterward the clerk entered in his record a recital of the incident substantially as above, and also a statement that on other and prior occasions the attorney, Marcelino Aguas, had been wanting in respect to the court by making use of "improper phrases," and by interrupting opposing counsel in their examination of witnesses. The court on this record adjudged the attorney to be in contempt of court and suspended him from the practice of his profession for a period of twenty days. The attorney appealed, but his appeal having been disallowed by the lower court, he asked to be heard in justification, which was granted. On the hearing in justification evidence was taken touching the contempt alleged to have been committed by Senor Aguas, from which the court found that during the trial of the case of Roberto Toledo vs. Valeriano Balatbat, the judge, having had occasion to seize the witness, Alberto Angel, by the shoulders to turn him around, Seor Aguas, attorney for defendant, had risen from his seat in a "menacing attitude," and "with a voice and body trembling" protested that the action of the judge was coercive of the witness; and further that his attention being called to the fact that he was wanting in respect to the court and that he should sit down, he waived his right to go on with the trial and moved a postponement of the hearing. On this finding the court again adjudged the attorney guilty of contempt of court, and suspended him from the practice of his profession for a period of twenty clays. From this judgment Seor Aguas appealed to this court. In our opinion the action of the judge in seizing the witness, Alberto Angel, by the shoulder and turning him about was unwarranted and an interference with that freedom from unlawful personal violence to which every witness is entitled while giving testimony in a court of justice. Against such conduct the appellant had the right to protest and to demand that the incident be made a matter of record. That he did so was not contempt, providing protest and demand were respectfully made and with due regard for the dignity of the court. The only question, therefore in this case is, Was the appellant respectful and regardful of the court's dignity in presenting his objection and asking that it be recorded in the proceedings? The witnesses say and the judge

finds that "his attitude was menacing" ( bastante amenazadora ) in the moment of making his protest, but beyond that there is nothing in the record which even tends to show that he was disrespectful to the court or unmindful of its dignity In our opinion both testimony and finding state a mere conclusion which, in the absence of the facts from which it was deduced, is wholly valueless to support a judgment of contempt. The statement that the attorney's attitude was "menacing" tended no more to competently establish the alleged offense of contempt than if the witnesses had testified and the court had found that his conduct was "contemptuous; or lacking in respect," The specific act from which it was inferred that his attitude was menacing should have been testified to by the witnesses and found by the court, and failing that, the record does not show concrete facts sufficient to justify the conclusion that be was disrespectful to the court or offensive to its dignity. The judgment appealed from must therefore be reversed, and it is so ordered, with costs de oficio. Arellano, C. J., Cooper, Willard, Torres, and Ladd, JJ., concur. Mapa, J., did not sit in this case.

OSJurist.org

G.R. No. 17, August 26, 1901

DON LUCIANO CORDOBA, PLAINTIFF AND APPELLANT, VS. WARNER, BARNES & CO., DEFENDANTS AND APPELLEES. D ECIS ION
SMITH, J.: This action was commenced in the Court of First Instance, Intramuros (Manila), by the plaintiff, Cordoba, to recover from the defendants, Warner, Barnes & Co., the sum of $479.57, Mexican currency, the value of certain merchandise alleged to have been short delivered by them as common carriers of the plaintiff, with 50 per cent of such value added as liquidated damages and also the costs of suit. In the court below judgment went for the defendants and plaintiff appealed. The record discloses without contradiction that some time prior to June, 1900, the firms of Cahn, Nickelsberg & Co. and Trieste & Co. delivered at San Francisco, California, to the Pacific Mail Steamship Company on board its steamship Rio du Janeiro , for shipment to Manila via Hongkong, twenty cases of shoes and five cases of hats, respectively, freight prepaid as per "accountable receipt" or "way-bill." The goods were consigned to plaintiff, Manila, and properly marked with his name. On arrival at Hongkong they were delivered by the Pacific Mail to the steamer Diamante in good condition, for transshipment to Manila Bay, at which place the vessel arrived June 11, 1900, under consignment to the defendants. Ten days later the five cases of hats and six of the twenty cases of shoes were discharged into the lighters of Carman & Co., agents of the plaintiff, empowered to receive and transport them from the ship's side to the custom-house. The court finds as a fact and the managing agent of the defendants positively testifies that before receiving the consignment of plaintiff, Carman & Co. called the attention of the defendants to the condition of the cases, and then and there protested their receipt on account of their "bad condition." Nevertheless, the carrier, without verifying the contents of the packages and without demanding an examination of them on board, voluntarily delivered them to the lighter men who, under customs supervision and control, brought them to the customhouse, where they were deposited in the bodega set apart for broken packages. On the 25th and 27th of June, 1900, and while the goods were still in the custom-house, the plaintiff wrote to the defendants, notifying them that the five cases of hats and the six cases of shoes bore evidence of having been tampered with, and asking that they name a representative to be present at the customs examination of the cases in order to note any shortage which might be disclosed thereby. Warner, Barnes & Co. named Seor Abreu as their representative for the purpose, and he, conjointly with the customs officials, examined the cases in bad condition and reported to his principals that the packages were short 119 hats and 9 pairs of shoes. The merchandise found in the cases was received by the plaintiff from the custom-house some time subsequent to the 29th of June, 1900, on which date the duties were paid. Notwithstanding the report of their representative, the defendants declined to settle the claim presented for the missing goods, first, because the protested packages were not opened and examined before they left the ship's side as required by the bill of lading, and second, because the claim of loss was not presented within twenty-four hours after delivery of the goods to the

lighter for transportation to the custom-house. Both contentions of defendants were sustained by the court below in the suit which was subsequently commenced against them, and plaintiff appealed. In our opinion neither one nor the other of the defenses set up by the consignees of the vessel was well founded. The bill of lading which provides that "in the event of any packages being refused on account of condition, they are, if in bad order, to be examined on board the steamer and contents certified to, when steamer's responsibility will cease," gave to the defendants the undoubted right to retain on board and to examine all refused packages. This right, however, being exclusively for their own protection, they could waive it and they did waive it by discharging the goods, notwithstanding the protest, and accepting a receipt which specified on its face that the cases were in "bad condition" when delivered for transportation to the customhouse. It lay wholly with the carrier to say whether the goods should or should not be discharged from the vessel without examination, and having voluntarily elected to so discharge them the respondents can not now be permitted to urge that the failure to examine the cases on board was a bar to the claim of appellant. If the goods had been examined on board the failure of the consignees to give the certificate of shortage prescribed by the bill of lading would have constituted no defense to the action, and on the same principle their failure to retain and examine the packages after protest made can not be held to prejudice the rights of the plaintiff. Respondents claimed on the hearing of this appeal that the duplicate receipt offered in evidence by the appellants could not be accepted as evidence, for the reason that on its face it appeared to have been written in different inks and by different persons. If the duplicate receipt was fictitious or manufactured for the occasion it could have been shown in a moment by the production of the original delivered to the carrier when the goods were discharged, and the failure to do so by defendants must be considered against them and as fatal to their contention. Defendants' second defensethat plaintiff's suit must fail because his claim was not presented to the carrier or consignees of the vessel within twenty-four hours after receipt of the goods can not be sustained for the reason that plaintiff's claim was presented not later than the 27th of June, 1900, and he did not receive his consignment within the meaning of article 366 of the Commercial Code before the 29th of the same month. The discharge of the merchandise into the lighters of Carman & Co. for delivery at the custom-house under customs supervision and control was not "the receipt of the merchandise" contemplated by article 366. The packages were then in the hands of the Government, and their owner could exercise no dominion whatever over them until the duties were paid or secured to be paid. The time prescribed by article 366 within which claims must be presented does not begin to run until the consignee has received such possession of the merchandise that he may exercise over it the ordinary control pertinent to ownership. For these reasons the judgment of the court below must be reversed without special finding of costs, and it is so ordered. Arellano, C. J., Torres, Cooper, Willard, Ladd, and Mapa, JJ., concur.

OSJurist.org

G.R. No. 18, September 12, 1901

GAUDENCIO ELEIZEGUI, PLAINTIFF AND APPELLEE, VS. JOSEFA AREVALO, DEFENDANT AND APPELLANT. D ECIS ION
WILLARD, J.: This case was initiated and carried on in reliance on the provisions of article 395 of the Mortgage Law. The article referred to applies only to cases in which the proprietor does not have a written title of ownership. The applicant holds a written title to the property described in his petition. Therefore he can not invoke the article referred to for the purpose of registering his ownership. Article 437 of the General Regulations (Reglamento General) can not be invoked by the petitioner, since said article applies only to the registration of possession. It appears in the present case, moreover, that the written document evidencing the title of the petitioner was submitted to the court below attached to the petition. The judgment appealed from should therefore be reversed. It is so ordered. Arellano, C. J., Torres, Cooper, Mapa, and Ladd, JJ., concur.

OSJurist.org

G.R. No. 25, December 07, 1901

JUAN PIEYRO, PLAINTIFF AND APPELLANT, VS. JUAN UTOR ET AL., DEFENDANTS AND APPELLEES. D ECIS ION
WILLARD, J.: The plaintiff obtained a preliminary attachment,presenting for that purpose a document in which it appears that a debt exists in his favor from the defendants. In the complaint filed later in accordance with article 1393 of the Law of Civil Procedure he did not seek to collect the debt but prayed for the rescission of the contract of sale from which the debt had arisen. The court below dissolved the preliminary attachment. The question which must be resolved is the following: What is the nature of the complaint which must be filed in conformity with the said article 1393? We are of the opinion that it should be a complaint for the collection of the debt and not one for the rescission of the contract. The article which confers upon the Courts of First Instance the authority to order preliminary attachments says that this may be done when it is sought to secure the payment of a debt. (Art. 1379.) Justices of the peace, according to the same article, can order a preliminary attachment if requested at the time of filing a complaint in which the payment of a debt is sought. The same article which confers such authority apparently limits its exercise to actions dealing with the collection of a debt. To secure the attachment the moving party must present a document which discloses the existence of the debt. (Art. 1382.) In an action for the rescission of a contract the case may be, and most frequently is, that there is no debt. No attachment can be put into effect if in making of the levy the person against whom it is ordered pays the sums which are claimed. (Art. 1387.) In an action for rescission how is this amount to be determined, and in such action what right has the defendant to make any such payment? In an action to rescind a sale the sole object which the plaintiff seeks is the possession of the thing sold; but if he should be entitled to an attachment in such an action then it could not be limited to the thing sold but might be extended to all of the property of the defendant, both real and personal. In actions which concern the ownership of certain classes of property, section 2 of Title XIV gives to the plaintiff the right to ask for the judicial administration or receivership of the property during the pendency of the litigation. We are not aware of the existence of any other law under which the plaintiff in an action for rescission has the right to ask that the property in litigation be placed in the custody of the court in which the action is being tried during the pendency thereof. The plaintiff not having presented a complaint for the collection of a debt, the order of the trial court is in accordance with law and is hereby affirmed with costs taxed against the appellant. It is so ordered. Arellano, C. J., Torres, Cooper, and Mapa, JJ., concur.

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

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G.R. No. 26, August 24, 1901

WALTER JACKSON, PLAINTIFF AND APPELLEE, VS. PAUL BLUM ET AL., DEFENDANTS AND APPELLANTS. D ECIS ION
COOPER, J.: This is an appeal from the judgment of the Court of First Instance of Intramuros (Manila) in an action for an accounting instituted by Walter Jackson against Paul Blum, H. Blum, W. A. Whaley, and L. M. Johnson. The matter involved is a leasehold interest in the business property known as the "Alhambra," situated on the Escolta in Manila, together with the furniture and fixtures and other appurtenances. In August, 1898, Seor Roca took a lease from the owner of the Alhambra and a short time afterwards transferred the same to Evans, Jackson, and Williams. Williams conveyed his interest to Evans and Jackson and the establishment was conducted by Evans & Jackson. The firm of Evans & Jackson, being in need of money, on the 21st day of October, 1898, made an arrangement by which the interest of Jackson in the property was transferred to Evans. In this transfer it was agreed that when the establishment was free from all incumbrances there should be a settlement between Jackson and Evans, and that Jackson should remain the owner of his interest in the property. On the same day Evans, being then the apparent sole owner of the establishment, obtained a loan from Paul Blum in the sum of 32,443 pesos, and in carrying out the transaction a partnership was formed between Evans and Whaley. and a conveyance, absolute in form, was then made by Evans & Whaley to Paul Blum, transferring to him the establishment, and a contract was also entered into between Evans and Whaley on the one part and Paul Blum on the other part, in which agreement it was recited that Evans & Whaley had borrowed from Paul Blum the said sum of 32,443 pesos and that they had executed to Blum the conveyance of the establishment mentioned. It was stipulated that Whaley was to be the managing partner of the firm of Evans & Whaley, Evans having the right to enter the premises at any time and to inspect the books of account. Each was to receive out of the business for his personal expenses the sum of 300 pesos per month. It was also agreed by Evans & Whaley to purchase from the American Commercial Company, of which Paul Blum was then a member, all supplies which they needed for the establishment. The loan made by Paul Blum to Evans & Whaley was to be paid off from the net proceeds of each day's business, which were to be deposited with the American Commercial Company to the credit of the Alhambra account, or to be paid from any other funds, with interest at the rate of 8 per cent per annum, and Evans & Whaley had the right to pay the whole or any part of the debt at any time to Blum and from funds other than the profits of the Alhambra. Whaley was mentioned in the instrument as representative of Blum. It does not appear, however, from the instrument that Blum was to be considered a partner or in any way interested in the business. Blum perhaps required that Whaley should become the managing partner of the firm of Evans & Whaley for the protection of his interests in advancing the money to them. No term for the duration of the partnership between Evans and Whaley was fixed, nor can any particular term be inferred from the nature of the business to be carried on by them. On the 13th day of November, 1899, a partnership settlement of the firm, of Evans & Jackson was made between Evans and Jackson and the balance of $5,000 was found to be due from Evans to Jackson, and an agreement was then entered into between Evans and Jackson in which it was recited that the sum of 20,000 pesos

was the estimated amount due on the mortgage of the property to Blum and that the equity of redemption was of the value of 40,000 pesos, which belonged to each of the partners in equal parte. In payment of the balance of 5,000 pesos due Jackson on the settlement of accounts, and in consideration of the sum of 5,000 pesos, Evans transferred all of his interest in the Alhambra property to Jackson. On the following day Evans applied to Blum to ascertain the amount due him on the mortgage, offering to pay the same. Blum refused to recognize Jackson as having any rights in the establishment. Afterwards Blum demanded of Evans & Whaley the payment of the sum of 28,000 pesos as due upon the mortgage, and Whaley, being then in exclusive possession of the property, turned over the same to Blum. The judgment of the Court of First Instance was in favor of the plaintiff and an accounting was decreed. The contention of the defendants is: First, that by the sale from Evans and Whaley to Blum the property passed absolutely to Blum; second, that Evans could not substitute Jackson as debtor to Blum without the consent of the latter ; third, that the partnership between Evans and Whaley was based upon confidence, and that Jackson could not be substituted as a member of the firm; fourth, that the juridical relation does not exist between the plaintiff Jackson and the defendants. We shall briefly state the law applicable to the facts in the case: A partnership may be terminated by the will or renunciation of one of the partners, provided no term has been fixed for its duration or when a term is not fixed by the nature of the business. (Arts. 1700 and 1705 of the Civil Code.) Personal or real property which each partner possesses at the time of the execution of the contract continues to be his private property, the usufruct only passing to the partnership. (Art. 1675 of the Civil Code.) Each coowner has the absolute ownership of his part and of the fruits and benefits belonging thereto, and he therefore may sell, assign, or mortgage the same or substitute another in its enjoyment unless personal rights are involved. The effect of the sale or mortgage, however, so far as affects the cociwners, shall be limited to that portion which may be allotted to him in the distribution at the termination of the community. (Art 399 of the Civil Code.) No coowner is obliged to remain in the community. (Art. 400 of the Civil Code.) The judgment of the Court of First Instance is affirmed with costs on appeal taxed to the appellant. Arellano, C. J., Torres, Smith, Willard, and Ladd, JJ., concur, Mapa, J., did not sit in this case.

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G.R. No. 43, September 23, 1901

SERVILIO ROBLES, PLAINTIFF AND APPELLANT, VS. JUAN SANZ, DEFENDANT AND APPELLEE. D ECIS ION
LADD, J.: This is an incident respecting nullity of proceedings, and comes up on appeal from an auto of the Court of First Instance of Intramuros (Manila) sustaining the validity of the proceedings drawn into question. The appellant, Robles, was the plaintiff below in a declarative action of greater import brought to recover for services rendered by him to the appellee, Sanz, the defendant below, as an employee in the latter's store in Manila from January 9,1886, to March 12, 1895. One question at issue between the parties was as to whether any payments had ever been made the plaintiff by the defendant on account of said services, the plaintiff alleging in his demand that no such payments had been made and the defendant in his answer alleging the contrary, and specifying the dates and amounts of certain payments, which he stated appeared upon his books of account. Among other proofs proposed by counsel for the plaintiff was the following; "Documentary; I designate as documentary proof the commercial books of the defendant, Don Juan Sanz, where he says the payments of salary received by my principal appear." The defendant's books were accordingly examined by the court, due notice to the parties being first given, although neither the plaintiff nor his counsel appears to have been present; and the result of the examination was embodied in a statement specifying certain entries of payments to the plaintiff during the years in question found in the book of accounts-current, and adding that they appeared to have been transferred from the corresponding entries in the daybook and ledger, that the books had been properly stamped, and that the portions where the entries appeared bore no evidence of alterations or erasures. The appellant's contention is that as a matter of fact the entries mentioned in this statement were made after the books in which they appeared had been closed, and that the omission to note in the statement this circumstance, which .was apparent from the books themselves, rendered the taking of the evidence invalid. In the court below the appellant moved that evidence be taken in the incident to enable him to establish this fact as to the character of the entries, but the court refused the application. He now asks in a petition addressed to this court that the same evidence be taken at second instance. If the omission to state that the entries appeared to have been made after the books had been closed, such being the fact, would constitute a fatal objection to the legality of the proceedings in the taking of the evidence, the appellant should have been permitted to show the fact in the court below, and not having been permitted to do so there, his petition that the evidence be taken at second instance might properly be granted. But we do not think that the court below was bound to examine the books or to state anything that appeared therein, or any circumstance in connection with them, further than as called upon to do so by the plaintiff in his designation of the evidence which he desired taken. If the plaintiff desired the court to ascertain and state whether the entries appeared to have been made after the books had been

closed, he should have so requested at the proper time. Not having done so, he can not object that the failure of the court to examine and report upon the condition of the books in this particular has the effect of invalidating the proceeding, especially as it is at least doubtful whether in the absence of such request the court would have been justified in making such examination. (Art. 47 of the Code of Commerce.) Assuming, therefore, that the fact which the appellant proposes to prove were established it would have no bearing upon the question involved in this incident. It would undoubtedly tend to discredit the entries as evidence in the main action; but the sole question before us in this incident is a purely procedural one, the determination of which depends in no manner upon the character or value of the evidence of the entries, either considered in itself as it appears in the statement drawn up by the court below or in connection with any qualifying circumstance which might be disclosed upon a further examination of the books. The petition for the taking of evidence at second instance must, therefore, be denied. These considerations also dispose of the appeal itself, no defect in the proceedings in the taking of the evidence being pointed out other than that which the appellant claims results from the omission of the court to note the character of the entries, as having been made after the books were closed. As already indicated, we are of opinion that this omission does not invalidate the proceeding. The petition for the taking of evidence at second instance is denied, and the judgment is affirmed with costs to the appellant. Arellano, C. J., Torres, Cooper, Willard, and Mapa, JJ., concur.

OSJurist.org

G.R. No. 54, November 02, 1901

THE UNITED STATES, COMPLAINANT AND APPELLEE, VS. JOSE JUNIO, ALIAS "BATAAN," DEFENDANT AND APPELLANT. D ECIS ION
WILLARD, J.: It appears from the record that a copy of the complaint was served upon the accused and he was required to plead "guilty" or "not guilty" in accordance with section 18 of General Orders, No. 58. He pleaded "not guilty." The judge then required him to answer the complaint. In response to this request the defendant made a statement. We are of the opinion that this procedure is illegal. The judge had no right to compel the accused to make any statement whatever. The requirement that he do so was an infringement of the rights guaranteed to the accused by section 15 of General Orders, No. 58. It does not appear affirmatively that the latter had any knowledge of his right to refuse to make such a statement. The error committed by the court is explained in view of the relative order in which sections 18 and 19 are placed. Under the correct interpretation of these sections the accused has a certain time within which he may determine in what manner he will answer the complaint. He may interpose a demurrer or file either of the two exceptions, Nos. 3 and 4 of section 24, or he may waive all of these and simply plead "not guilty." When he has so pleaded the cause is at issue and ready for trial and nothing further may be exacted of him either by way of statement or testimony. The sentence reviewed is reversed and all proceedings subsequent to the plea of "not guilty" are declared null. It is ordered that this cause be remanded to the trial court with instructions to proceed in accordance with law. Arellano, C. J., Torres, Cooper, Mapa, and Ladd, JJ., concur.

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G.R. No. 60, November 08, 1901

THE UNITED STATES, COMPLAINANT AND APPELLEE, VS. ISIDRO FERRER, DEFENDANT AND APPELLANT. D ECIS ION
MAPA, J.: This action was commenced by virtue of the information of the prosecuting attorney accusing the defendant of having fired two shots from his revolver at Don Manuel Rojas, killing him instantly and wounding at the same time Don Anastasio Franco y Francisco, without causing his death, however. It was considered that both crimes were the result of a single act and that the attack was made with treachery ( alevosia), and the information charged the compound crime of murder and grave assault ( lesiones graves). The defendant pleaded not guilty. It appears proved at the trial that on the morning of May 7,1900, the agents of the steamer Don Jose , which was anchored in the river in this city at the time, and of which the accused was captain, dismissed the latter from said position, ordering him to turn over command of the vessel to the first mate of the same. With or without cause the defendant attributed his dismissal to a difficulty that he had previously had with Rojas, who was the engineer of the same steamer, and he so stated to the employee of the agents who notified him of his discharge. This took place in the office of the said agents, and upon the return of the defendant to the steamer Don Jose there occurred on board of the same the act which is here prosecuted. The accused fired two shots from a revolverthe first aimed at Rojas, who fell dead on the spot, and the second aimed at Anastasio Franco, who was standing near Rojas at that moment, causing the latter wounds which were healed in twenty-eight days. Thus Franco testifies positively, and his testimony is likewise confirmed by the defendant's own witnesses. All of them saw the latter disputing angrily with the deceased; some say that he had a revolver in his hand at that moment; others saw the revolver immediately after hearing the shots, and still others affirm that it was he who fired the said shots. These statements considered together produce the complete conviction that the accused was the author of the act complained of. His very defense concedes the truth of the fact that he caused the death of Rojas, although he alleges that he did it in self-defense. The defense endeavored to establish that Rojas assaulted the accused with an iron instrument and that the latter found himself obliged to fire the revolver which he was carrying in order to repel the attack. Three witnesses were offered for this purpose. One of these affirms that he saw the deceased raise his hand to assault the defendant with an iron instrument, while the remaining two confine themselves to stating in vague and general terms that they saw the deceased in the attitude of assaulting the accused with said instrument, without defining the concrete fact of in what the attitude consisted. The remaining witnesses for the defense were not offered to prove this point and do not say a single word concerning any such attack. The first witness is without doubt the most important for the purpose of the defense. This witness was a member of the crew of the steamer Don Jose , and says that he saw the attack made by the deceased, because at that moment he was passing by the scene of the occurrence in order to go to the bow of the steamer. If the witness was on the spot at the precise moment

when the deceased attacked the defendant, and the latter fired the revolver for the express purpose of preventing the assault, as is alleged by the defense, it would be natural and logical that the said witness would likewise have witnessed the firing of the revolver, because both acts must have been simultaneous or at least must have succeeded each other without appreciable interval of time. If the act occurred in any other way, even though there had really been an attack, the alleged defensive action would not be fully justified in the eyes of the law. If any time intervened between the supposed attack of the deceased and the firing of the revolver by the defendant, the latter's actions would cease to have the true character of a real defense, which, in order to be legally sufficient, requires primarily and as an essential condition that the attack be immediately present. The witness could not observe the one and be ignorant of the other if a true act of self-defense is in question. The firing of the revolver would necessarily have been witnessed by him, as well as the attack which the defendant is supposed to have tried to stop thereby. In such event he would not be ignorant of the fact that the death of the victim was the result of the dispute which occurred between the latter and the accused. Yet the witness states that he is ignorant of all this, giving us to understand that he did not witness the death of Rojas nor the firing of the revolver which caused the same, although these things must have occurred exactly at the moment when he found himself on the scene of the happening or very close thereto, if his testimony and the allegations of the defense be true. From another point of view his testimony can not serve in any way to establish the case of defense alleged by the prisoner, inasmuch as he does not know how the death of Rojas occurred, which is equivalent to saying that he is ignorant of the details and circumstances under which the act complained of took place. The foregoing comments are applicable likewise in a certain way to the two witnesses who state that they saw the deceased in the attitude of attacking the defendant. They testify that in passing along the levee near which the steamer Don Jose was anchored and when they were some thirty yards distant therefrom, they saw Rojas in that attitude disputing hotly with the accused. They continued on their way and a few moments later heard two shots which seemed to them to proceed from the place where the former were disputing. One of the witnesses had walked ten paces when he heard the shots, the other could not estimate the space of time that had intervened between the two periods. Both had learned later only by hearsay from other persons that the defendant had killed Rojas. If examined carefully it appears from the testimony of these witnesses that they did not witness the occurrence in question but merely a detail which might be called preliminary thereto. They did not witness the defendant's act of discharging the revolver, neither did they witness the death of Rojas; therefore their testimony even considered as wholly veracious does not and can not avail to determine the manner in which occurred that fact which is the most important and essential in the trial. Although they had actually seen the deceased in the attitude of attacking the accused, their testimony would not serve the purpose of the defense since it does not necessarily imply the act which the attitude threatened. As a general rule the mere attitude of attack does not itself constitute a real attack, that conclusive and positive aggression which justifies the defense of one's person. In the present case if the said attitude had been a real attack and the defendant had made use of his revolver necessarily to prevent or repel the same, this defensive act must needs have occurred at the very moment at which the supposed attack was made, in which case the witnesses who saw the attack would not have failed to see the use of the revolver, nor would there have intervened between the one and the other the interval of time which they give to understand in their respective statements.

In view of the foregoing considerations we hold the testimony of the said witnesses insufficient to prove the fact of the attack attributed to the deceased. We are confirmed in this view by the testimony of the wounded man, Anastasio Franco, who was standing by the deceased when the occurrence in question took place. He gives positive assurance that the deceased had not committed any act of aggression when he was attacked by the defendant. It is likewise noteworthy that none of the remaining witnesses offered by the defendant say a single word concerning any such attack. One of them saw the act of the defendant's firing upon the deceased; he describes the relative position occupied by the one and the other, marks the distance which separated the two, and finally he saw Rojas fall wounded by the shot. This witness seems to have attentively observed the principal details of the occurrence and nevertheless he makes no mention of that supposed attack. If the latter actually existed it is not probable that the witness, placed in such circumstances, would have failed to see it, and it is even less probable that, having seen it, he would have omitted to mention the same in his testimony, especially as a witness for the defendant. Inasmuch as the said attack is not proved it is not necessary to enter upon an examination of the remaining requisites which the Penal Code establishes as necessary for the exemption from responsibility on the ground of self-defense. Since the unlawful attack is the basis and foundation of this defense, when the same does not exist it is not possible to imagine a case of defense in the true meaning of the law. The doctors who held the autopsy upon the remains of the deceased make it appear that the projectile entered the latter's chest and left the body at the shoulder, from which it is to be deduced that he was in front of the aggressor when he received the wound. This is likewise testified to by several witnesses, others stating besides that they saw the parties disputing hotly between themselves a few moments before they heard the reports and that the deceased then held in his hand an iron instrument some two hands in length. Under these circumstances it can not be maintained with reason that the attack which caused the death of Rojas was committed with treachery, as set forth in the complaint, in order to characterize the act complained of as murder. The act having been preceded by a dispute which on account of its heat partook of the character of a genuine quarrel, the deceased was enabled to guard himself in time against the consequences that the affair might lead to, and to provide himself against any act of force which his adversary might commit to the peril of his person, especially as the deceased was armed with an iron instrument which was large enough to serve as no inconsiderable medium of defense. Furthermore it does not appear that the prisoner employed means which would tend to render impossible any attempt at defense on the part of the deceased, and this it is which constitutes the characteristic and essential element of treachery ( alevosia). For this reason the act in question should be classed as homicide defined and penalized in article 404 of the Penal Code and not as murder, since the circumstance of treachery was not involved in its commission, nor any other one of the remaining qualifying circumstances which article 403 of said Code mentions in its limitations. There is to be considered in the commission of the said crime the mitigating circumstance of passion and obfuscation induced by the belief which the defendant entertained, with or without reason, that the deceased was the cause of his dismissal. The chagrin of that dismissal and the consideration of the damage it might cause him not only in his material interests but also in his reputation were without doubt sufficiently powerful reasons for confusing his reason and

impelling him to commit the attack of which the deceased was the victim. There is no opportunity in the present case to pronounce any judgment concerning the injuries to Anastasio Franco. These were not caused by the same shot which caused the death of Rojas. The latter was killed by the first shot. The defendant then discharged his revolver a second time, and that was when he wounded Franco. Upon the firing of the second shot the deceased had already fallen to the ground; wherefore it is apparent that the same was not aimed at the latter but at Franco, who testifies conclusively. Under such circumstances, although the two shots were fired successively, they do not constitute a single act, but two acts wholly distinct, not only on account of their own intrinsic duality but also on account of the fact that they were directed against two different persons. Therefore the provision of article 89 of the Penal Code is not applicable to these acts. The said injuries constituting, then, a distinct act, independent of the homicide committed upon the person of Rojas, they should be made the subject of another proceeding or action separate and independent of the present case in accordance with section 11 of General Orders, No. 58. By virtue of all of the foregoing, we are of the opinion that there should be imposed upon the defendant the penalty of twelve years and a day of reclusion temporal with the corresponding accessory punishments, the payment of an indemnity of 1,000 pesos to the heirs of the deceased, but without the personal subsidiary responsibility in case of insolvency by virtue of the provisions of article 51 of the Penal Code, and the costs of this instance. It is so ordered. Arellano, C. J., Cooper, Willard, and Ladd, JJ., concur. Torres, J., did not sit in this case.

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G.R. No. 64, September 10, 1901

THE UNITED STATES, COMPLAINANT AND APPELLEE, VS. VICENTE TAGUIBAO, DEFENDANT AND APPELLANT. D ECIS ION
TORRES, J.: On the morning of May 27 of the current year Vicente Taguibao, Francisco Bancut, and Pedro Bancut went to a place called "Buquid," in the town of Iguid. Taguibao, upon seeing Matias Paguiam engaged in plowing a piece of land which was the subject-matter of a dispute between Pedro Bancut and Vicente Gamat, immediately attacked Paguiam, inflicting blows upon his neck with the back of the bolo. The weapon used was shown by competent testimony to be of a class which it was permissible to carry. As a result of these blows Paguiam, who defended himself with his hands, received two slight wounds, before the combatants were separated by the bystanders, who subsequently testified in the case. The facts stated do not constitute the crime of frustrated homicide, as they have been classified by the court below in the judgment under review, but merely a misdemeanor against the person, prohibited and penalized in article 589, No. 1, of the Penal Code. The accused did, it is true, attack the complaining witness, and struck him upon the neck with a bolo, but the fact that the blows were delivered with the back of the weapon is sufficient to preclude the assault's being classed as frustrated homicide. It does not appear that the accused intended to cause the death of Matias Paguiam. All he did was to beat him with the back of the bolo. In thus classifying an act according to the purpose of the accused, it is absolutely necessary that the homicidal intent be evidenced by adequate acts which at the time of their execution were unmistakably calculated to produce the death of the victim, since the crime in question is one in which, more than in any other case, the penal law is based upon the material results produced by the criminal act. It is not proper or just to attribute to the delinquent a specific intent to commit the higher crime in the absence of proof to justify such a conclusion. In the present case it can not be inferred the accused intended to kill Matias Paguiam. He did not strike him with the cutting edge of the bolo. Consequently the assault committed by him does not constitute the crime of frustrated homicide, and the defendant should be acquitted. However, as the facts proved establish an offense necessarily included in that which was the subject-matter of the complaint, the offense committed should be punished by imposing upon the guilty party the corresponding penalty. The judgment of the court below is reversed and Vicente Taguibao y Calimaran acquitted with the costs de oficio. The defendant is condemned to the penalty of five days of arresto menor and to pay a fine of 125 pesetas, or in default thereof its equivalent in subsidiary imprisonment. So ordered. Arellano, C. J., Cooper, Willard, Ladd, and Mapa, JJ., concur.

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G.R. No. 85, November 05, 1901

THE UNITED STATES, COMPLAINANT AND APPELLEE, VS. TAN JENJUA, DEFENDANT AND APPELLANT. D ECIS ION
WILLARD, J.: Attorney Francisco Ortigas has filed a petition soliciting the reopening of this case in accordance with the provisions of section 42 of General Orders, No. 58. The reopening of a cause under section 42 is only available when there exists newly discovered evidence. If the accused or his attorney knew what would be the testimony of the absent witness or could have known it by the exercise of proper diligence, it can not be said that he has discovered these proofs after the trial. No affidavit whatever setting forth the facts upon this point accompanies the petition as is required by the aforesaid section 42. It is, of course, evident that the error of the judge of the inferior court, if error it was, in the manner of administering the oath to the Chinese witness, can not be presented as newly discovered evidence. For the foregoing reasons the petition is denied without deciding (1) whether the judgment has become final as soon as registered here, thereby making this motion inopportune; or, in case it has not become final (2), whether this motion should have been made before the lower court, since the cause has been remanded and is no longer a cause pending before this court. The motion is therefore denied with costs taxed against the moving party, and it is so ordered. Arellano, C. J., Cooper, Mapa, and Ladd, JJ., concur. Torres, J., did not sit in this case.

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G.R. No. 85, October 23, 1901

THE UNITED STATES, COMPLAINANT AND APPELLEE, VS. TAN JENJUA, DEFENDANT AND APPELLANT. D ECIS ION
MAPA, J.: The defendant is charged with the crime of estafa, alleged to consist in the concealment of a private document evidencing a deposit of 2,600 pesos delivered by Fulgencia Tuason to the Chinaman Jose Palanca Yu-Tivo. It appears from the testimony of the witnesses Balbino Tuason and Macario Deirit that Fulgencia Tuason delivered to Jose Palanca Yu-Tivo through them the sum of 2,600 pesos for the purpose of preventing the money from being seized by the Spanish Government. It also appears from authentic documents in the record that Fulgencia Tuason in September, 1898, went to the Provost-Marshal-General of this city with a complaint concerning the deposit of 2,600 pesos which she had deposited with the Chinaman Jose Palanca Yu-Tivo. In the petition which she presented to the Provost-Marshal-General she asserted that she had in her possession a receipt for this deposit. This receipt, according to the statement of complaining witness, was subsequently delivered by her to the defendant, he having offered to collect the amount of the deposit from the Chinaman Yu-Syna, the son and attorney in fact of Jose Palanca, the latter being absent at that time in China. This according to the complaining witness occurred in the following manner: Yu-Syna having refused to pay the total amount of the money deposited and having on two occasions delivered to her on account the sum of only 250 pesos, the defendant, Tan Jenjua, a relative of Yu-Syna, came to her house one day and told her to come to see him and he would arrange matters. She went to see him on the day following and the defendant then promised to collect part of the money in a short time. Two days afterwards she returned and Tan Jenjua paid her the sum of 300 pesos. At the same time, upon the pretext that he would undertake to settle up the affair of Jose Palanca and Yu-Syna, he asked the complaining witness to give him the receipt for the deposit, promising to deliver the balance of the money deposited within a period of two or three months. Trusting in Tan Jenjua's good faith and fearing that impending hostilities might break out at any time, the complaining witness consented and the receipt was accordingly delivered in the presence of the Chinaman Lim-Kayco and two Filipinos, Daniel and Antonio. Some months afterwards the complaining witness made demand for the 2,050 pesos still due on the deposit and defendant refused not only to settle the matter but also to return the receipt for the deposit, whereupon a complaint was filed by the prosecuting witness. The latter further states that the document in question was written in Chinese, which language she is unable to read, and that when Palanca gave it to her it was a receipt for the deposit. The witness Antonio Deirit testifies to having been present at the time the defendant delivered the 300 pesos to the complaining witness, Fulgencia Tuason, and also at the time of the delivery by her to the defendant of a document written in Chinese characters, on which occasion, according to this witness, after the accused had read the document, he told the complaining witness that according to that paper she still had 2,050 pesos due her and that he would undertake to settle the matter. Daniel Lamprano corroborates the testimony of this

witness and that of the complainant stating that he saw the sum of 300 pesos referred to upon a table, while a Chinaman whom he did not know and the woman Fulgencia were in conversation together and he at the same time observed that the Chinaman had a paper in his hand which he subsequently put into a drawer in the table. It is of no importance that Lamprano did not know the Chinaman to whom he referred, because he was known by the witness Deirit and by the complainant. Furthermore it is to be observed that the combined testimony of the three is to the effect that the paper of which Lamprano spoke was the same document which had just been delivered by the complainant to the accused. These witnesses corroborated each other's testimony by referring to the same occasion, time, and place. There is no reason for believing that the complainant's statement in the petition presented to the Provost-Marshal-General in September, 1898, to the effect that she had in her possession a receipt for the deposit, was untrue. On the contrary, it is to be supposed that when this statement was made she was really in a position to exhibit the receipt in case the ProvostMarshal-General should require its presentation. It can not be presumed that at that time she had formed the design of drawing up a complaint, both for the reason that the complaint was not presented until a year and a half later and because there are no data upon which such a presumption may be based. To this we may add that as the deposit was actually made as shown by the testimony of the two witnesses, it was natural and logical that the complainant should have demanded from the depositor the receipt as evidence thereof. Therefore, if that receipt was still in her possession, it is not probable that she would falsely pretend not to have it and assert the defendant had concealed it against her will, because such an assertion would make it impossible for her to make use of this document for the purpose of collecting the deposit until such time as its return to her should be made to appear. It is not credible that the defendant would voluntarily deprive herself of such proof of the deposit, which would doubtless be the most certain and efficacious in an action to enforce its collection, unless it be fully proven that she is impelled to act in this singular manner by some interest superior to the interest she must have in the collection of the 2,050 pesos still remaining unpaid upon the amount deposited. In view of the testimony in the record, supported by the reasons above set forth, one is convinced of the reality of the delivery by the complainant to the accused of the document evidencing the deposit in question. It is of no importance that the document is written in Chinese and that neither the complainant nor her witnesses can read this language, inasmuch as from the evidence in the record the true nature of the document may readily be inferred. It is evident that the accused had great interest in obtaining possession of this document inasmuch as he was willing to sacrifice the sum of 300 pesos to that end. The delivery of this money by him to the complainant is sufficiently proven by the evidence introduced. The interest of the defendant stands in itself sufficient and convincing proof of the value and importance of the document. It must be either the receipt for the deposit or nothing at all upon the facts presented by this case, and if the latter be the case, it can not be understood nor could it be satisfactorily explained why the accused should have displayed such an interest in obtaining its possession. This consideration acquires greater force if one at the same time keeps in view the fact to which the witness Deirit testified, to the effect that the defendant said to the complainant, after having read this document, that it appeared therefrom that she still had due her 2,050 pesos from the 2,600 deposited after deducting the 250 pesos formerly delivered to her by Yu-Syna and the 300

which at that time had just been delivered to her by the accused. The latter's refusal to return the document is shown in the record solely by the testimony of the complaining witness. No other witness testifies upon this point nor has any attempt been made to introduce evidence on the subject. Nevertheless we can entertain no reasonable doubt as to the truth of this fact. Supposing that the complainant had had no difficulty in recovering possession of the document, unquestionably she would not have failed to do so when it is considered that the recovery of the document was a matter of great interest to her as evidence of a deposit of a considerable sum of money. Furthermore, if this fact was not true, the defendant could have shown such to be the case from the first by simply returning the document; it was to his interest to do so, but nevertheless he has not done it. The failure to return the document up to the present time, notwithstanding the criminal prosecution brought against him on this account, conclusively shows his determination to conceal the paper. There are some facts which do not require proof because they are self-evident; and the unvarying attitude of the defendant in this case is the most complete and convincing proof of his refusal to return the document. The concealment of that document causes a positive injury to the complainant because it dispossesses her of evidence of a deposit of considerable value, thereby making it difficult for her to enforce the collection of this sum by adequate means. For the purpose of proving the existence of this damage it is unnecessary to inquire whether as a matter of fact she has ever succeeded in collecting the deposit or not. The commission of the crime herein prosecuted is entirely independent of that subsequent and casual event, the result of which, whatever it may be, can in no wise have any influence upon the legal effects of the concealment already consummated of the document in question. The extent of a fraud when it consists of the concealment of a document should be graded according to the amount which the document represents, as it is evident that the gravity of the damage resulting therefrom would not be the same, for instance, in the case of the concealment of a document representing $30 as in the case of one representing $30,000. In support of this doctrine several decisions of the supreme court of Spain may be cited, among others, that of April 23, 1880. The document concealed in the present case represents a value of 2,050 pesos, and consequently this sum must serve as a basis for grading the penalty corresponding to the crime. The damage here in question results from the deprivation suffered by the complainant of the document evidencing the deposit and not of the loss of the deposit itself. The concealment of the document referred to does not necessarily involve the loss of the money deposited, and for this reason it would not be just to give judgment against the defendant for the payment of that amount. The court therefore declares that the defendant should be convicted and sentenced to one year eight months and twenty-one days of presidio correctional with the corresponding accessories and the payment of the costs of both instances. The judgment appealed thus modified is affirmed. Arellano, C. J., Cooper, Willard, and Ladd, JJ., concur. Torres, J., did not sit in this case.

OSJurist.org

G.R. No. 91, November 13, 1901

THE UNITED STATES, COMPLAINANT AND APPELLEE, VS. EMILIANO PARAISO, DEFENDANT AND APPELLANT. D ECIS ION
WILLARD, J.: The accused has been charged with the crime of falsifying a private document, prohibited and penalized in article 304 of the Penal Code. During the months of May and June, 1900, the accused was the agent in Vigan of the Philippine Commercial Company. On three distinct occasions during these months the accused executed receipts in which he made it appear that Isabelo Feril had received the total sum of 485 pesos from the Philippine Commercial Company on account of the sale of 100 picos of maguey ( agave ). These receipts were signed by the accused with the name of Isabelo Feril. He likewise made entries in the books of the company on the corresponding dates, evidencing the payment of such sums to Isabelo Feril. Isabelo Feril testifies that the receipts were false. The accused admitted the truth of this statement and that he had never paid Isabelo Feril any sum of money whatever; and that he had never had a contract with the latter for the purchase of maguey. A comparison of the signature upon the three receipts with the genuine signature of Isabelo Feril which appears in the record discloses that the accused made no attempt to imitate the signature of the aforesaid Feril. No similarity exists between the fictitious and the authentic signature. Isabelo Feril testifies that the false signature in no way resembles his own. Under these circumstances we are of the opinion that the accused can not be convicted of a violation of article 304. This article is related to article 300. The sole paragraph of this last-mentioned article that could be applied to the present case is No., 1, which employs the words "contrahaciendo o fingiendo" a letter, signature, or mark. The following definition of the word "contrahacer" is found in the Dictionary of the Spanish Academy: " Hacer una cosa tan parecida a otra que con dificultad se distingan " ("to make a thing of such close resemblance to another that it is distinguished only with difficulty"), and this definition of the word " fingir ": " Contrahacer alguna cosa dandola la semejanza de lo que no es" ("to counterfeit something,giving it the appearance of that which it is not"). The use of these two words indicates that the mere drawing up of a false document is not sufficient to constitute the crime in question. The signing of a private document in the name of another person without authority to do so can not be held to be a crime according to article 304. It is necessary that an attempt be made to imitate the writing, signature, or mark of the person whose name is signed. The supreme court of Spain has so decided in several successive decisions. Among others there may be cited that of April 15,1885, a case very similar in its facts to the present one; so also the decision of December 27, 1882. The judgment therefore should be reversed and the defendant acquitted with costs, and it is so ordered.

Arellano, C. J., Torres, Cooper, and Mapa, JJ., concur, Ladd, J., did not sit in this case.

OSJurist.org

G.R. No. 94, October 07, 1901

JOSE EMETERIO GUEVARA, PETITIONER, VS. TUASON & CO., RESPONDENTS. D ECIS ION
WILLARD, J.: The petitioner, seeking to bring himself within the provisions of Act No. 75 of the Civil Commission, prays that he be permitted to appeal from the judgment rendered against him by the court of Quiapo on December 13, 1898, in an action of forcible entry and detainer. The said petitioner, during the trial of the case in question, was represented by his attorney, and his attorney was properly notified of the judgment rendered in the said case on December 22, 1898. The said petitioner does not allege that he has been prevented from interposing his appeal by reason of fraud. Nor have any allegations been made which show that it would not have been possible to interpose the appeal in case he had attempted to do so; but in his petition he argues that the court of Quiapo had no jurisdiction over the matter, since the property in question is located in what is now the Province of Rizal and outside of the limits of the territory occupied at that time by the Government of the United States. In the same manner, the said petitioner alleges that "having been persuaded that the proceedings held by the court of Quiapo * * * could have no validity or efficacy, both for the reasons indicated and because the judicial terms, according to the royal decree issued on July 26, 1898, by the colonial office (Mjnisterio de Ultramar) of the aforesaid Spanish Government were suspended * * * until the date of the treaty of Parisi. e., until December 10, 1898Don Jose Emeterio Guevara did not appeal from that judgement; that his omission to do so was due, therefore, to an excusable accident, to wit, the past occurrences which produced radical changes in all of the orders and in the royal decree above cited." These are the only reasons which are alleged. From the above it appears that it was not the royal decree which induced the petitioner to delay his appeal, since he himself states that the said decree remained in force only until December 10, 1898. It may be that he has committed an error with reference to this matter; but such error could not have affected in any manner his action with reference to his appeal. In order that he may avail himself of the said act, it does not suffice that it appear that there was a mistake, but it must likewise appear that he was unable to interpose the appeal by reason of the said mistake. Furthermore, it is contended that the court below had no jurisdiction over the case in question. It is not incumbent upon us to determine whether or not he is correct in this contention. Even on the supposition that he was right his allegations can not prevail inasmuch as they are based upon the fact that the said court committed an error in deciding that it was competent to determine the matter. The word "mistake," according to its signification in the act referred to, does ndt apply, and never was intended to apply, to a judicial error which the court in question might have committed in the trial referred to. Such errors may be corrected by means of an appeal. The act in question can not in any way be employed as a substitute for the said remedy. In general terms the "mistake or excusable negligence" of which the said act treats should be understood as that committed by the party and not that of the court.

There seems to be a certain contention on the part of the petitioner to the effect that he has the right to said remedy on the ground that the court may have been in the right concerning its jurisdiction and that the petitioner was mistaken in forming a contrary opinion. It is neither necessary nor proper to establish rules which foretell absolutely all of the cases which may arise under the said act. In order to decide the matter which occupies us at present it suffices to state that the erroneous opinion of one of the parties concerning the incorrectness of the judicial decision of the court can not constitute grounds for the said relief. For example, the court renders judgment in a matter against the defendant. The said defendant believes at the time that said judgment is correct and understands that an appeal would be useless and therefore he does not interpose the same. Later he believes firmly that the said judgment was incorrect, as indeed it was, and that he committed a mistake when lie believed that it was correct. This, although it constitutes a mistake of the party, is not such a mistake as confers the right to the relief. This is so because in no wise has he been prevented from interposing his appeal. The most that may be said is that by reason of an erroneous interpretation of the law he believed that all recourse of appeal would be useless. Therefore, the prayer of the petition is denied with costs against the petitioner. Torres, Cooper, Ladd, and Mapa, JJ., concur. Arellano, C. J., did not sit in this case.

OSJurist.org

G.R. No. 98, October 14, 1901

THE UNITED STATES, COMPLAINANT AND APPELLEE, VS. INOCENCIO ANCHETA, DEFENDANT AND APPELLANT. D ECIS ION
TORRES, J.: It appears in the present cause that on a certain day in the month of December, 1899, Agapito Ramos, upon being taken unawares by his brother-in-law, Inocencio Ancheta, in the act of appropriating a shed roof belonging to the latter, assaulted the said Ancheta, the defendant herein, with his bolo. The latter, warding off the blow, succeeded in securing the weapon, and spurred on by the additional motive of resentment against Ramos because the latter had had illicit relations with his wife and left her enceinte , the defendant in turn attacked Ramos, inflicting twenty-one wounds upon his head, face, chest, and other parts of his body. From the effects of these wounds, which, according to the testimony of an herb doctor, were necessarily mortal, Ramos died within a short time. The father and wife of the deceased, however, and a minor daughter 14 years of age found him while still alive and heard him state that his assailant was the defendant, Inocencio Ancheta. This action having been instituted upon an information filed by the prosecuting attorney, the defendant was arraigned and pleaded not guilty of the crime with which he was charged. As a witness under oath the defendant testified that the deceased sustained illicit relations with his wife on the occasion of his absence for two years in this city, and that he had pardoned them upon receiving a promise that they would not continue their relations; that, nevertheless, his brother-in-law, Agapito Ramos, continued to take advantage of him; that he surprised the latter in his house on the 30th of December; that furthermore the said Ramos carried away a brush shed roof which was the property of defendant, and that upon being required to return it gave the defendant a blow with the bolo which he was carrying; that defendant succeeded in evading the blow and having taken away the bolo, he in his turn attacked Ramos, inflicting upon him the wounds in question; that he immediately gave an account of the occurrence to the local president of the town of Santa Lucia before two witnesses who heard and attested his statements. The act which gave rise to this proceeding, and which is fully proved in the proceedings held for the purpose of its determination, constitutes the crime of homicide, prohibited and penalized in article 404 of the Code, since there was present at its commission no specific or qualifying circumstance which would give it a graver classification or heavier penalty. Ynocencio Ancheta is the convicted and confessed author of the said crime, inasmuch as, notwithstanding his plea of not guilty, the accused has confessed voluntarily that he caused the violent death of his brother-in-law, Agapito Ramos, for which reason his direct participation in the crime which is prosecuted is indubitable. In confessing the commission of the crime the defendant alleges in his favor the claim of exemption from responsibility on the ground that he was acting in the legitimate defense of his person, which had been unlawfully attacked, basing his contention on No. 4 of article 8 of the Penal Code. Inasmuch as there was no witness who was present at the occurrence and as the

statements of the deceased made just before his death do not contradict or detract from those of the accused in his confession, and considering the merits of the case for and against the prisoner according to the rules of a sound discretion, we are obliged to admit the operation in his favor of the partial exemption to which article 86 of the Penal Code refers. There was an unlawful aggression on the part of Agaton Ramos, according to the statement of the defendant, and the latter did not provoke the affray. It appears, on the contrary, that the prisoner, Ancheta, was the one who had grounds for grievance and complaint against the deceased. Nevertheless, it is likewise an indisputable fact that the defendant did not limit his action to the requirements of his defense, because from the moment in which he succeeded in obtaining possession of the bolo there was no reasonable necessity for inflicting twenty-one wounds upon his aggressor, Agaton Ramos. Therefore the proper penalty is that next lower in grade to the one designated in article 404 Of the Code. In applying this penalty there should be also taken into consideration the circumstances referred to in No. 7 of article 9 and in No. 1 of article 10 of the Penal Code, for the reason that it is a fact duly proved in this cause that the defendant committed the deed when blinded and impelled by the passion of jealousy produced by the illicit relations which the deceased sustained with his wife; and in spite of the fact that the deceased, Agaton Ramos, was the brother-in-law of his slayer, this relationship should be considered in the present case as a mitigating circumstance in view of the conduct pursued by said Ramos in contracting adulterous relations with the wife of the defendant. On these grounds there should be imposed upon the defendant the penalty of prision mayor in its minimum degree. In view, therefore, of the foregoing considerations, it follows that the sentence reviewed should be affirmed in all its parts with the costs of this instance against the defendant. It is so ordered. Arellano, C. J., Cooper, Willard, Mapa, and Ladd, JJ., concur.

OSJurist.org

G.R. No. 100, September 09, 1901

AGUSTIN ASENCIO, PLAINTIFF AND APPELLANT, VS. FRANCISCO GUTIERREZ, DEFENDANT AND APPELLEE. D ECIS ION
WILLARD, J.: It has been plainly proven that at the time this declarative action was initiated the defendant resided at Manila, P. I. He left Iloilo with his family November 19, 1898, and his family has never since returned to Iloilo. The defendant was at this latter place from February 17, 1899, until March 16 of the same year with the object, as alleged by him, of recovering the possession of his printing machine, which the American authorities refused to deliver. With this exception the defendant and family have resided permanently at Manila since they left Iloilo in November, 1898. On April 1, 1899, a registration certificate was issued to him as a resident citizen of Manila. On January 1,1900, his name was registered in the books of the Internal-Revenue Collector as a resident of Manila. On April 11, 1900, he presented a declaration to the Spanish consulate under article 9 of the treaty of Park, in which he also stated that he was a resident of Manila. The plaintiff alleges in his complaint that the defendant is a resident of Manila; he also affirms this in his petition of November 20, 1900. It appears from the foregoing facts that it was the deliberate intention of the defendant to change his place of residence. No law has been cited, in force in these Islands, which requires citizens to announce their intention of changing their residence in a more public manner. It is expressly alleged in the complaint that the original lease expired on the 1st of April, 1899. The right alleged by the plaintiff in his complaint is based exclusively upon two facts. The first is, that after the aforesaid lease had expired and after all rent due thereunder had been paid according to the terms thereof, the printing machine, the property of the defendant, still remained in the basement of the house, which basement was only a part of the house described in the original contract of lease. The plaintiff in his complaint admits that the upper floor of the house was in use by him at the time he presented the complaint. The second is that a letter was written to the defendant May 17, 1899, advising him that the rent of the premises would be 150 pesos until the time the printing machine was removed from the building. The defendant did not answer this letter, but receipted for it at the post-office, as the letter was registered. This action has been instituted with the object of collecting rent at the rate of 150 pesos per month from May 1, 1899, to the same month in 1900. The only question arising is this; Should this case be decided at Iloilo, where it originated, or at Manila? If there was a contract in this case it related only to the ground floor of the building and arises from the presence of the printing machine therein and from the letter of the plaintiff dated May 17, 1899. It was not stipulated in this letter where the payment should be made. In accordance with article 1574 of the Civil Code, article 1171 of the same Code is applicable, and the place of residence of the debtor is the place of payment. This personal action is, as affirmed by the plaintiff himself in his complaint, entirely distinct from and independent of an action of forcible entry and detainer.

The rules which regulate the jurisdiction in such actions are not applicable to this case, which is governed by article 46, rule 1, of the Law of Civil Procedure now in force. The order appealed from the Court of First Instance of Iloilo is in accordance with law and must be affirmed with the costs against the appellant. It is so ordered. Arellano, C. J., Torres, Cooper, Mapa, and Ladd, JJ., concur.

OSJurist.org

G.R. No. 105, October 16, 1901

THE UNITED STATES, COMPLAINANT AND APPELLEE, VS. ANTONIO ALEGADO, DEFENDANT AND APPELLANT. D ECIS ION
TORRES, J.: From the record of this case it appears that on the night of May 21, 1900, the body of Catalino Biado's father was lying in the latter's house, situated on the outskirts of the town of Paoay, and that on the occasion of his death some seven or more persons had gathered together in the house. Among them was the defendant, Antonio Alegado. A bolo belonging to the latter disappeared, and, on failing to find it after a search for that purpose, he said in a threatening manner that he would burn the house unless that bolo was found. The bolo was not found, and Alegado with a piece of burning bamboo set fire to the house, which was burned to the ground, as well as a granary nearby, together with the rice stored therein. The occupants of the house discovered the fire soon after it broke out, but were unable to extinguish it. The total damage caused by the fire was estimated by experts to amount to 105 pesos and 75 cents. An information having been presented by the prosecuting attorney and this proceeding instituted, Antonio Alegado pleaded not guilty of the crime with which he was charged. Two witnesses called by the accused to prove his alibi stated that they had gone to the scene of the occurrence in order to assist in extinguishing the fire; and that, although the woman, Basilisa Baraoid, stated to them that Juan Catubay was the incendiary, nevertheless the accused himself told them that it was he who set fire to the said house because he had not found his bolo which was lost therein. The facts related, which are completely proved in the cause by expert testimony and that of witnesses who were present, constitute the crime of arson, provided for and penalized in article 549 of the Penal Code, for the reason that it appears fully proved in the case that the fire was intentionally started with the malicious intent to destroy the dwelling house of Catalino Biado at a time when it was occupied by seven persons and a corpse. It can not be disputed that the defendant has violated the article cited and incurred its very grave responsibility, inasmuch as, although he pleaded not guilty of the crime of which he was accused, the incriminating circumstances and other weighty merits which the case discloses produce the full conviction of his delinquency. The defendant is incriminated not only by witnesses who were present but likewise by the very witnesses whom he had called to prove his innocence. Nor can it be proper to consider that he was ignorant of whether or not there was anyone present in the interior of the house destroyed, for the reason that he was present in that house a few moments before and even threatened those in the house that he would set fire to the same if he did not find the bolo which he was seeking. Therefore he well knew that the house contained persons and even a corpse. For the sole purpose of reducing the penalty to the minimum grade article 11 of the Penal Code will be applied in this case. The judgment reviewed is affirmed. It is understood, nevertheless, that the defendant is sentenced to the penalty of twelve years and one day of cadena temporal, together with the accessory penalties and the payment of the costs in this instance. The order

declaring the defendant insolvent, made in the incidental proceeding of attachment, and ordering that after dissolving the attachment the rice field of the value of 4 pesos which was attached be restored to the accused, is affirmed and approved. In consideration of the fact that in the strict application of said article 549 of the Penal Code to the present case, the penalty therein prescribed is evidently excessive, taking into account the degree of malice and the damage caused by the crime, it is believed proper and just to apply the rule of article 2, paragraph 2, of the same Code by calling the attention of the Civil Governor to the case. It is so ordered. Arellano, C. J., Cooper, Willard, Mapa, and Ladd, JJ., concur.

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G.R. No. 112, December 14, 1901

THE UNITED STATES, PLAINTIFF AND APPELLEE, VS. BERNARDO PATALA, DEFENDANT AND APPELLANT. D ECIS ION
MAPA, J.: Counsel for the Government in this case disregards entirely the testimony of the accused, for the reason, as alleged, that he, the accused, plead guilty in the Court of First Instance, and maintains that in such a case the judge of the Court of First Instance should have forthwith proceeded to enter judgment without trial. Disregarding thus the testimony of the defendant, the prosecution rests its case upon the absolute efficacy of the plea of "guilty." It is true that according to section 31 of General Orders, No. 58, series of 1900, which is the procedural law in force in these Islands in criminal cases, and the general principles of American legislation which are the basis of said general order, the plea of "guilty" entered by the accused puts an end, as a general rule, to the proceedings to the extent that counsel for the Government considers himself relieved from the necessity of proving the allegations of the complaint, because he expects, and justly so, that the accused, having confessed his guilt, will be sentenced by the judge upon his plea; but it is none the less true that according to the same principles of American legislation, and the provisions of section 25 of the said General Orders, the accused may withdraw his plea of "guilty," and the judge must thereupon necessarily order a trial upon the merits in order to hear the evidence that the prosecution must present, and the proof that the defendant may offer in his own behalf. Moreover, under the principles of American law, although there is no express provision to this effect in General Orders, No. 58, it is within the power and discretion of the judge, whenever there is any reasonable doubt in his mind as to the guilt of the defendant after he has plead "guilty," to order that a plea of "not guilty" be entered and try the case upon its merits. It then devolves upon the prosecution to present whatever proof it may have in support of the allegations of the complaint, and the accused acquires thereby the right to have his own testimony considered, as well as any other matter of defense presented by him, the judge being at liberty in such a case, as well as in all cases, to give to the evidence such weight as it may be entitled to. In this case the defendant offered to testify in his own behalf and the court granted his request. For that reason, the testimony of the accused, which counsel for the Government wishes us not to consider, appears in the record. The prosecution apparently contends that the judge erred in ordering a trial, after the defendant has plead "guilty." It has been quite a general practice since the promulgation of General Orders, No. 58, to try the case and hear the testimony of the accused, notwithstanding his plea of "guilty." This practice appears to be perfectly legal, provided the accused withdraws his plea and asks that his testimony be taken or that the judge order that a plea of "not guilty" be entered, so that the only thing lacking in this case, as well as in the proceedings had in the former Courts of First Instance, is the order of the judge directing that the plea of the defendant be withdrawn and a trial had upon the merits. The judge, in his order directing that a trial be had, refers to section 31 of General Orders, No. 58, which lays down the procedure to be followed when the defendant pleads "not guilty." This goes to show that in the mind of the court, as well as in the opinion of the provincial fiscal, there was reasonable doubt as to the guilt of the defendant, notwithstanding his plea of

"guilty," or that the defendant had withdrawn his plea of "guilty" when he asked that he be allowed to testify in his own behalf, a request which must necessarily be granted when the defendant expressly enters a plea of "not guilty." The pleas of "guilty" and "not guilty" as accepted in American law were unknown to the Spanish law. Under the Spanish law there was what was called "judicial confession," whereby the accused admitted the commission of the act alleged in the complaint, but by so doing the defendant did not attempt to characterize the act as criminal, as is the case with a defendant who pleads "guilty" under American law. It also appears that there are no words in the Tagalog or Visayan dialects which can express exactly the idea conveyed by the English word "guilty." In a case of homicide, for instance, when the question is put to the defendant in either of these two dialects as to whether he is guilty or not guilty, he is asked whether he killed the deceased or not. If he answers that he did kill the deceased, he merely admits that he committed the material act which caused the death of the deceased. He does not, however, understand it to be an admission on his part that he has no defense and must be punished. The case at bar serves to illustrate this fact. Under these circumstances, we are of opinion that the trial judge should freely exercise his discretion in allowing the plea of "guilty" to be withdrawn; indeed, he must, on his own motion, order that it be withdrawn if, in his opinion, the accused does not fully realize the probable effect of his admission. As a matter of fact, the judge proceeded upon this theory, and inasmuch as in all cases in which the plea of "guilty" is withdrawn it is legal and proper and even necessary to try the case, we hold that the trial had in the case at bar was valid and proper, particularly because counsel for the prosecution agreed to it and took advantage of this opportunity to present such witnesses as would testify in support of the allegations of the complaint. This being the case, we must also hold that the testimony given by the defendant as a witness in his own behalf in the Court of First Instance must be considered. There is no other proof of the commission of the crime charged in the complaint than the admission of the defendant himself. The prosecution introduced no evidence upon this point, But there are certain statements contained in the testimony of the defendant which, in our opinion, take away from the acts charged in the complaint any element of criminality. It appears from the testimony of the defendant that at the time of the occurrence he was cleaning fish on hoard the steamship Compaa de Filipinas; that, without any provocation on his part the deceased, who was the cook of the boat, believing that some of the fish was missing, slapped him and kicked him; that not being satisfied with this, when the defendant started to run away from him, the deceased pursued him and attacked him with a knife; that the defendant, taking advantage of some favorable chance during the struggle, succeeded in wresting the knife from the deceased and inflicted upon him a wound in the left side, from the result of which he died a few hours later. In our opinion the attack of the deceased upon the defendant was not justified. The fact that he found some of the fish missing, even supposing that it was actually missing and that the defendant was responsible for the loss, which, by the way, was not proven at the trial, did not justify him in inflicting bodily harm upon the defendant in any manner whatsoever, and certainly not in the serious form in which he did it, and persisted in the attack. The aggression on the part of the deceased was in every respect unjustified, and the defendant had a perfect right to repel the attack in the most adequate form within his power under the critical circumstances of a sudden assault.

The serious intention of the aggressor was apparent from the fact that he pursued the defendant with a knife, after having beaten him with impunity. A person will not attack another with such a weapon unless he intends to either inflict a wound or kill. Considering the nature of the aggression, the defendant could have reasonably believed that his life was in danger and that it was a case of life or death with him. He had reason to believe that he was placed in the alternative of killing or being killed when he was being attacked and pursued with a deadly weapon. This was the only weapon used during the struggle and it necessarily had to be either in his possession or in the hands of the deceased. If through a fortunate accident he came into possession of the knife, he could have lost control of it through a similar accident and then found himself at the mercy of his assailant. Therefore the act of the defendant rendering his assailant powerless as well as he could under the critical circumstances of the moment, and repelling his aggression, constitute, in our opinion, a true case of self-defense, which exempts the defendant from any criminal liability under paragraph 4 of article 8 of the Penal Code. Therefore it is the judgment of this court that the defendant be acquitted and the judgment of the Court of First Instance accordingly reversed, with the costs of both instances de oficio. So ordered. Arellano, C. J., Cooper and Willard, JJ., concur.

OSJurist.org

G.R. No. 126, December 26, 1901

THE UNITED STATES, COMPLAINANT AND APPELLEE, VS. DOROTEO RAMOS ET AL., DEFENDANTS AND APPELLANTS. D ECIS ION
WILLARD, J.: At the former hearing of this cause before the old Supreme Court certain objections were made concerning the sufficiency of the complaint filed, which objections are in some respects the same which the attorney for the defense now presents. This court annulled the judgment of conviction dictated in the cause, remanding the same to the lower court for a new trial. The court must have deemed the said complaint sufficient, since it would otherwise have ordered the filing of a new complaint. This decision of the question is therefore res adjudicata . Since the order dictated by this court vacated only the proceedings held by the trial court commencing with the introduction of the evidence, the formal arraignment remained in full force, and therefore in holding the new trial there was no necessity for requiring the appearance anew of the accused to plead guilty or not guilty. The accused were not compelled but merely permitted to testify before the taking of the evidence offered on the part of the Government. This was an irregularity but did not prejudice the essential rights of the accused, and therefore, in view of the provisions of article 10 of General Orders, No. 58, is not sufficient to warrant the annulling of the sentence. The three elements which are necessary in order that there may be a conviction of the crime of rape, according to the attorney for the defense, are all included in this one word. When a woman testifies that she has been raped she says, in effect, that all that is necessary to constitute the commission of this crime has been committed. It is merely a question then, whether or not this court accepts her statement. It can not be said that the proofs are lacking of the existence of the elements which together constitute the crime. In the present case we are convinced that the woman stated the truth, and we believe Ramos to be guilty of the crime with which he is charged. With respect to Torre we have arrived at the conclusion that he should be acquitted. He did not rape the woman. When the two unknown persons presented themselves he ran away. It is true that the witnesses for the prosecution stated that he arrived at the house with Ramos, but there is no proof that he had knowledge of any intention then entertained by Ramos to rape the woman nor can we see how Torre in any manner has lent his aid knowingly to the commission of the crime. The judgment of the lower court is affirmed in all its parts in so far as affects the defendant Ramos and reversed as to defendant Torre. The latter is acquitted of the crime of which he is accused. Affirming that portion of the sentence consulted which is in conformity with this decision and reversing the remaining portion, with one-half of the costs incurred in this action taxed against the defendant Ramos and the remaining one-half taxed de oficio, the case is remanded to the

trial court for further proceedings in accordance with law. Arellano, C. J., Torres, Cooper, and Mapa, JJ., concur. Ladd, J., did not sit in this case.

OSJurist.org

G.R. No. 202, September 21, 1901

THE UNITED STATES, COMPLAINANT AND APPELLEE, VS. CARLOS RASTROLLO, DEFENDANT AND APPELLANT. D ECIS ION
TORRES, J.: In civil proceedings instituted to obtain a preventive attachment to secure a debt contracted by Carlos Rastrollo in favor of D. Emeterio Ruiz, 1,121 feet of hose, among other property belonging to said Rastrollo, was attached at the instance of Attorney Florencio Gonzalez on behalf of Bon Gerardo Urbina. The attached property remained in the possession of the debtor, Rastrollo, who, with the consent of the attorney for the plaintiff, sold the same to the Manila Fire Department. Rastrollo failed to deliver the proceeds of the sale, which took place late in March of this year, to the attorney for the plaintiff, and only deposited the same in the court on the 4th day of June of this year, the day following the filing of the complaint charging him with the crime of embezzlement ( estafa). If the acts of which the accused is charged constitute any crime whatever it would be that of malversation of property attached by judical orderthe crime defined and punished in article 395 in connection with articles 390 and 392 of the Penal Code. The act could not be regarded as constituting estafa under paragraph 5 of article 535 of the Code, because the property alleged to have been misapplied was not the subject of a mere private bailment but of a judicial deposit. This gives the depositary a character equivalent to that of a public official, and a breach of his obligation is similar to the violation of the obligations imposed by public office. However, as the accused, Rastrollo, in selling the said hose, acted with the knowledge and consent of the attorney for his creditor, since it is proved that the said attorney agreed with the depositary that the proceeds of the sale should be delivered to him, and inasmuch as there is no proof, on the other hand, that the depositary, Rastrollo, appropriated or applied the proceeds of the sale of the hose to his own use or that of others, but has deposited the same in court, although somewhat tardily, it is evident that the defendant has contracted no criminal liability. His act does not include all of the elements which constitute the crime of malversation, or of any other crime, and the irregularity noted in his conduct is chargeable to the attorney for the creditor who might have been prejudiced thereby. In view of the foregoing considerations, which are completely in accord with the penal law and the conclusions and merits of the case, the accused, Don Carlos Rastrollo, should be acquitted and the judgment appealed from reversed with costs in both instances de oficio. It is so ordered. Arellano, C. J., Cooper, Willard, Mapa, and Ladd, JJ., concur.

OSJurist.org

G.R. No. 299, October 29, 1901

THE UNITED STATES, COMPLAINANT AND APPELLEE, VS. JULIAN BERTUCIO ET AL., DEFENDANTS AND APPELLANTS. D ECIS ION
It appears from the record that on the night of March 24, 1897, in the town of Lumban, near Pila, a quarrel broke out between Geronimo Linac and Julian Bertucio. The cause of the quarrel was the refusal of Linac to work for Bertucio in order to pay off a dollar which he owed the latter, as he had been requested to do. In the course of the quarrel Bertucio seriously wounded Linac on the right wrist with a bolo. Bernabe Gasapangra, taking part in the affray in aid of Linac, attacked Bertucio in turn and inflicted three bolo wounds upon the latter's head. These wounds were healed with medical assistance in ten days and left no ill results. Geronimo Linac died on the night of the day following the occurrence as the result of a hemorrhage from the wound in his wrist. When Bernabe Gasapangra was found by the police in a cane field, where he hid himself after the occurrence, he attempted to escape and refused to surrender when called upon to do so. In order to prevent his escape and owing to the fact that he was armed with a bolo, some of the arresting party were forced to throw stones at him and employ violence as a result of which he received several wounds of lesser gravity, which healed in the course of some twelve days without causing any permanent injury. The facts proved in the present case constitute two crimesone of homicide committed upon the person of Geronimo Linac, included in the terms of article 404 of the Penal Code; the other, that of an assault of lesser gravity upon Julian Bertucio, prohibited and penalized in article 418 of the said Code. In the crime of homicide there appear none of the specific qualifying circumstances enumerated in articles 402 and 403 of said Penal Code to be considered. The guilt of the defendant Bertucio of this crime of homicide has been conclusively established by the evidence. His exculpative allegations can not be admitted on account of the lack of proof and because of the self-contradictory character of his statements. Furthermore, the fact is proven that he was the only person who had a disagreement with the deceased. The accused himself stated that the deceased might have been the one who inflicted the wounds which he had received upon the head. It is likewise a fact shown at the trial that the other defendant, Bernabe Gasapangra, is responsible for these wounds of the prisoner Bertucio, the former's guilt being likewise established by conclusive evidence. Notwithstanding his denial and the representations he made to demonstrate his innocence, the case offers sufficient data and merits to fully convince the court that Bernabe Gasapangra attacked Bertucio after seeing the latter inflict a grave wound upon his relative, Geronimo Linac, and that he then hid himself in a canebrake, where it was necessary for the authorities to use force and violence in order to apprehend him. With reference to the commission of the homicide there must be considered the presence of the extenuating circumstance, No. 3 of article 9 of the Code, in that the aggressor Bertucio confined himself to the giving of a single blow of his bolo upon the right arm of the injured party and that he did not repeat this blowthus showing that he had no intention of occasioning an injury

as grave and irreparable as the death of Linac. Although the latter died on the night of the succeeding day, this was due to neglect and the lack of medical treatment, his death having resulted from a hemorrhage which they did not know how to stop or control in time. This circumstance, as well as that established in article 11 of the Code, deemed very applicable in the present case, determine that there should be imposed upon the culprit the penalty next lower in grade to that designated for the crime in article 404, there being no aggravating circumstance to consider which might neutralize the effect. With reference to the crime of assault of lesser gravity ( lesiones menos graves), the presence of the mitigating circumstance established in article 11 must be considered, as well as that of No. 24 of article 10 of the Code, since the defendant Gasapangra in committing the offense made use of a weapon of a kind prohibited by the prevailing laws. As for the assault of lesser gravity committed upon Gasapangra by the authorities, inasmuch as the latter acted in the performance of their duties and in the legitimate exercise of their authority they are exempt from criminal responsibility and must be acquitted. For the reasons stated, Julian Bertucio should be condemned to eight years and one day of prision mayor, together with the subsidiary penalties designated in article 61 of the Code and to the payment of the one-third part of the costs in both instances, without judgment of money indemnity by reason of the express waiver of the heirs of the deceased; and Bernabe Gasapangra as the perpetrator of the assault should be condemned to two months and one day of arresto mayor, together with the payment of an indemnity of 50 pesetas to Julian Bertucio and in case of insolvency to the corresponding subsidiary imprisonment and to the payment of another third part of the costs, computing in the principal penalty and in the subsidiary imprisonment one-half of the time spent in provisional imprisonment; and the charge of assault of lesser gravity inflicted upon Gasapangra should be absolutely dismissed with the remaining third part of the costs de oficio; the bolos used should be confiscated and the order declaring the insolvency of the parties made in the incidental proceeding of attachment should be approved. In these terms the present cause should be decided, affirming the judgment appealed from in so far as the same agrees with this decision and reversing it in so far as it conflicts therewith. It is so ordered. Arellano, C. J., Cooper, Willard, Mapa, and Ladd, JJ., concur.

OSJurist.org

G.R. No. 389, November 05, 1901

THE UNITED STATES, COMPLAINANT AND APPELLEE, VS. FLORENTINA JARRILLA, DEFENDANT AND APPELLANT. D ECIS ION
TORRES, J.: It appears from the record that on the morning of August 21, 1897, Florentina Jarrilla, moved by the passion of jealousy and resentment against Natalia Dio on account of the amorous relations maintained between the latter and the former's husband, Norberto Disglasan, proceeded to destroy with a bolo one of the partitions of the house of the complaining witness, Natalia Dio, while the latter was absent from the same and while her two minor daughters the elder of whom was 12 years of age and is the only one who could testify at the trialwere playing near by. After having dragged the partition some distance from said house she set fire to the same, and as the wind then blowing was in the direction of the house, that burned likewise, together with its contents, valued together with the house at 9 pesos 4 reales and 4 cuartos. The facts above related, fully proved by the testimony of witnesses, expert testimony, ocular inspection, and confession of the accused, constitute the crime of arson by reckless negligence and the misdemeanor of malicious mischief included in article 568 in connection with articles 553, 554, 555, and 601 of the Penal Code. Therefore the destruction of the complainant's house by Florentina Jarrilla is not a felony but only the misdemeanor of malicious mischief. The entire house was not worth more than 3 pesos. Only one of the partitions which was separated from the house was destroyed and this part of the dwelling could not possibly exceed 125 pesetas in value. For this reason the justice of the peace had jurisdiction to punish this misdemeanor of malicious mischief. The burning referred to, as has been said, constitutes a crime by reckless negligence, since it is conclusively established that the accused set fire to the partition screen of the house which had previously been separated and placed a certain distance from it. It does not appear that in doing so she had any malicious intent to burn any other part of the house. Although the entire house was burned, this was due to the wind, which communicated the fire from the ignited partition screen to the house. For this reason the act done without premeditated malice by reason of the lack of criminal intent to burn the house merely constitutes arson by imprudence. Under this view, as the facts only constitute a minor offense, and as this arson, had the element of malice been present, would have fallen under the provisions of article 555, it is evident that as this element is lacking the offense must be classified as arson by reckless negligence. As the accused acted under the impulse of the passion of jealousy, circumstance No. 7 of article 9 of the Code must be considered in mitigation, and therefore the proper penalty is that of arresto mayor in its minimum and medium degrees, applied in the minimum grade, and therefore we are of the opinion that Florentina Jarrilla should be condemned to the penalty of one month and a day of arresto mayor, to the accessories of article 61, to the indemnification of the damages occasioned or subsidiary imprisonment corresponding thereto, and to the payment of costs. In computing the principal and subsidiary penalty allowance should be made of one-half of the provisional imprisonment suffered and the order declaring the

insolvency in the incident of attachment should be approved. The judgment of the court below is reversed. It is so ordered. Arellano, C. J., Cooper, Willard, Mapa, and Ladd, JJ., concur.

OSJurist.org

G.R. No. 390, October 22, 1901

THE UNITED STATES, COMPLAINANT AND APPELLEE, VS. FLORENTINO NARVAES, DEFENDANT AND APPELLANT. D ECIS ION
TORRES, J.: It appears that this case was instituted in order to prosecute the defendant for the crime of official dereliction with which he is charged. The alleged crime consisted in that the defendant, Florentino Narvaes, being a justice of the peace of the town of Bulusan, permitted the game of monte to be played in his house, in which the justice court was installed, on the nights of August 15 and 20 and November 27, 1892; and likewise in that monte was played in another house belonging to the said Narvaes situated in the township of San Isidro on the occasion of a holiday which was there celebrated. These facts appear proved by the testimony of several witnesses, some of whom participated in those prohibited games. Although the crime which is the subject of this case is that of official dereliction provided for and penalized in article 355 of the Penal Code, and not that of unlawful gambling embraced in article 343 of the said Code, nevertheless this decision must be directed to the question of whether or not the crime of unlawful gambling was committed by the individuals who played monte in the house of the defendant, who was at that time a justice of the peace, in order to determine whether or not there existed the crime of official dereliction. In other words, it must be determined whether the defendant, as justice of the peace, in violation of his duties willfully omitted to institute proceedings for the prosecution and punishment of the players who, with his knowledge and consent, played monte on three occasions at the house of the defendant. Article 343 of the Penal Code imposes criminal responsibility upon, and designates the respective penalties incurred by, the bankers, the owners of the gambling house, and the players who assemble in such houses kept for playing games of chance or hazard. And as it does not appear from the record that the house of the defendant, Narvaes, was reputed to be a gambling house, it must be held that the offense punished by the law has not been committed, notwithstanding the fact that certain individuals had there played the prohibited game of monte, for the reason that said house was not known as one devoted to gambling and dedicated exclusively to the harboring of this repugnant vice. Under this view of the matter it follows that the accused has not committed the crime of official dereliction, nor has he incurred the criminal responsibility of having consented to the commission of a punishable act and having willfully failed to institute proceedings to prosecute and punish offending gamblers. Therefore, since the crime of official dereliction does not exist, the defendant should be acquitted with costs de oficio and the court below should proceed in accordance with law in the matter of the attachment of his property. It is so ordered. Arellano, C. J., Cooper, Willard, Mapa, and Ladd, JJ., concur.

OSJurist.org

G.R. No. 412, November 16, 1901

THE UNITED STATES, COMPLAINANT AND APPELLEE, VS. CAYETANO ABALOS, DEFENDANT AND APPELLANT. D ECIS ION
ARELLANO, C.J.: Shortly after 8 o'clock in the evening of October 23, 1900, six unknown persons presented themselves in the immediate vicinity of the house of Pedro Pascua, situated in the pueblo of Santa Maria, Province of Ilocos Sur. One of these ordered that the man within the house come down, and as Pascua did not do so because of his fear, one of the unknown, who was recognized and proved later to be the accused, Cayetano Abalos, went up into the house. There the accused, without any apparent motive, struck Pascua repeated blows with a dagger, inflicting upon him five wounds, two of which, in the left side of the chest and in the abdomen, were serious and dangerous according to the medical practitioner who examined him. The patient was cured in thirty-one days, with the result that an opening remained in the abdominal region which produced a hernia which exposed the patient to grave accidents. Notwithstanding the fact that the aggressor set Out to escape immediately after committing the assault, the wife and daughter of the wounded person, as well as he himself, were able to recognize him. The facts related appear duly proved in the action as well as the guilt of the accused, Cayetano Abalos, fully convicted as principal by direct participation of the crime of assault of grave character on the person of Pedro Pascua. Although the accused pleaded not guilty to the charge of the crime imputed to him, his guilt is established by the testimony of two eyewitnesses who confirm the accusation and, together with the person attacked, recognized the accused at the time of the assault; by the statements of three neighbors who were attracted by the cries of the wife of the complainant and who were then informed of what had taken place and of the fact that the attacking person was Cayetano Abalos; by the inexplicable absence and disappearance of the accused from his house since the date of the occurrence, without having appeared in spite of judical citations until he was arested on April 3 of this year. This absence is proved by the answers given by the justices of the peace of the districts of Ilocos Sur and Union and by the local president of Narvacan, which contradict and destroy the proof of an alibi attempted by the defendant. It is also to be noted that whereas the wife and daughter of the accused assert this alibi two other witnesses whom he had also cited testified that Cayetano Abalos absented himself from his house, going, according to one of them, to the town of San Jose de Abra. There should be considered in the perpetration of the crime the concurrence of the aggravating circumstances Nos. 15 and 20 of article 10 of the Code, since the defendant committed the same by availing himself of the darkness and silence of the night, attacking the complainant in his own house without the latter's having provoked or given reason for the deed. Owing to the nature of the crime the mitigating circumstance provided in article 11 should not be considered, nor should any other extenuating circumstances be deemed present. Since on account of the consequences produced by the wound of the abdomen, the deed must be classed as constituting a grave assault ( lesion grave) included in article 416, No. 3, of the Penal Code, it follows that the accused has incurred the penalty prescribed in the aforesaid article and number in the maximum degree.

In this court the Solictor-General asks that the final judgment of the Court of First Instance be annulled on the ground that the same was pronounced after the 16th day of June last, from which he infers that it was rendered by one who was not a judge. By article 65 of the law organizingcourts of justice for the Philippine Islands, No. 136 of those promulgated by the legislative commission, the Courts of First Instance which then existed became extinguished by the subsitution of those which that same act created. The latter was passed the 11th day of June, of the present year and went into effect on the 16th day of the same month. (Art. 92.) Consequently the said judges should have ceased to act on the 16th, the day on which the new organic law commenced to operate, but in fact almost all of them continued exercising their functions until the newly appointed judges arrived to take charge. The reason for this continuation was, as to some, due to ignorance of the new organization, and as to others, the circumstance that, under previous laws which controlled the commencement and the termination of the jurisdiction which they exercised, certain prior acts were necessary without which they would have incurred criminal responsibility, such as might have been incurred in the present case for abandonment of their public functions to the injury of the public, which would have been without an administration of justice during the days that elapsed until the new judges assumed charge. As to the public there was nothing to induce a contrary belief, that is, that certain judges whom the public was accustomed to recognize as true and legitimate judges were incompetent. Therefore they were judges of the new courts de facto and in good faith. No usurpation of jurisdiction can be imputed to them. As such judges they were accepted by common error. It is a universally professed doctrine that the acts of judges, considered such by common error, whether there be color of title or not (as in this case there was), are valid and effective in favor of the public welfare. This, according to the phrase of one law, is the most humane course, one which can injure no one, and brings no discredit upon the administration of justice. On the other hand much harm would result to the prejudice of the public, wholly free from blame and unchargeable with any responsibility, if by the rigor of the law such acts must be declared null, solely upon the ground that the judges were, according to the intent of the legislator, to cease to be such after the 16th of June last. In the American law there can be cited the decision of the Supreme Court of the United States in the case of Norton vs. Shelby County (118 U. S., 425, 445, 446). In the Spanish law, law 4, title 4 of the third Partida , in which is reproduced the famous law of Barbarius Philippus of the Roman Digest, treats of the acts of a slave who had been invested with judicial authority, it not being known that he was in slavery; in such case as this, declares the law, "the judgments and the orders and all other things done in virtue of his office, until the day it was discovered he was a slave, would be valid. And this the ancient sages thought just, because when a whole people commit an error it should be overlooked by all of them, as though it had never happened." The fifth law, first title of Book XI, of the Novisima Recopilacion , concerning this same case, declares "that the judgments and orders and all other things done in virtue of his office as judge were valid up to the day he was discovered to be a

slave since by common opinion he was regarded as free." For these reasons we decide that the judgment here alleged to be null should not be so declared. For the foregoing considerations it is proper that Cayetano Abalos be sentenced to the penalty of four years of prision correccional together with the accessory penalties prescribed in article 61 of the Code and to indemnify the injured party in the sum of 100 pesos and in the event of insolvency to the corresponding subsidiary imprisonment; and to the payment of the costs in both instances. In the penalty imposed there is not to be computed the provisional imprisonment of the defendant for the reason that he is within the exception provided in No. 3 of the ninety-third rule of the provisional law for the application of the Penal Code. The judgment appealed from is therefore affirmed in so far as the same is in accord with the foregoing opinion and reversed in so far as it is not so. So ordered. Torres, Cooper, Willard, and Mapa, JJ., concur. Ladd, J., did not sit in this case.

OSJurist.org

G.R. No. 439, November 11, 1901

GERMANN & CO., PLAINTIFFS AND APPELLEES, VS. DONALDSON, SIM & CO., DEFENDANTS AND APPELLANTS. D ECIS ION
LADD, J.: This is an incident of want of personality of the plaintiff's attorney. The action is to recover a sum claimed to be due for freight under a charter party. It was brought by virtue of a general power for suits, executed in Manila October 27, 1900, by Fernando Kammerzell, and purporting to be a substitution in favor of several attorneys of powers conferred upon Kammerzell in an instrument executed in Berlin, Germany, February 5, 1900, by Max Leonard Tornow, the sole owner of the business carried on in Berlin and Manila under the name of Germann & Co. The first-named instrument was authenticated by a notary with the formalities required by the domestic laws. The other was not so authenticated. Both Tornow and Kammerzell are citizens of Germany. Tornow is a resident of Berlin and Kammerzell of Manila. The defendants claim that the original power is invalid under article 1280, No. 5, of the Civil Code, which provides that powers for suits must be contained in a public instrument. No claim is made that the document was not executed with the formalities required by the German law in the case of such an instrument. We see no reason why the general principle that the formal validity of contracts is to be tested by the laws of the country where they are executed should not apply. (Civil Code, art. 11.) The defendants also claim that the original power can not be construed as conferring upon Kammerzell authority to institute or defend suits, from which contention, if correct, it would of course follow that the delegated power is invalid. In support of this contention reliance is placed upon article 1713 of the Civil Code, by which it is provided that "an agency stated in general terms only includes acts of administration," and that "in order to compromise, alienate, mortgage, or to execute any other act of strict ownership an express commission is required." It has been argued by counsel for the plaintiffs that these provisions of the domestic law are not applicable to the case of an agency conferred, as was that in question, by one foreigner upon another in an instrument executed in the country of which both were citizens. We shall not pass upon this question, since we are clearly of opinion that the instrument contains an explicit grant of a power broad enough to authorize the bringing of the present action, even assuming the applicability of the domestic law as claimed by the defendants. By this instrument Tornow constitutes Kammerzell his "true and lawful attorney with full power to enter the firm name of Germann & Co. in the Commercial Registry of the city of Manila as a branch of the house of Germann & Co. in Berlin, it being the purpose of this power to invest said attorney with full legal powers and authorization to direct and administer in the city of Manila for us and in our name a branch of our general commercial business of importation and exportation, for which purpose he may make contracts of lease and employ suitable assistants, as well as sign every kind of documents, accounts, and obligations connected with the business which may be necessary, take charge in general of the receipt and delivery of merchandise connected with the business, sign all receipts for sums of money and collect them and exact

their payment by legal means, and in general execute all the acts and things necessary for the perfect carrying on of the business committed to his charge in the same manner as we could do ourselves if we were present in the same place." We should not be inclined to regard the institution of a suit like the present, which appears to be brought to collect a claim accruing in the ordinary course of the plaintiff's business, as properly belonging to the class of acts described in article 1713 of the Civil Code as acts "of strict ownership." It seems rather to be something which is necessarily a part of the mere administration of such a business as that described in the instrument in question and only incidentally, if at all, involving a power to dispose of the title to property. But whether regarded as an act of strict ownership or not, it appears to be expressly and specially authorized by the clause conferring the power to "exact the payment" of sums of money "by legal means." This must mean the power to exact the payment of debts due the concern by means of the institution of suits for their recovery. If there could be any doubt as to the meaning of this language taken by itself, it would be removed by a consideration of the general scope and purpose of the instrument in which it occurs. (See Civil Code, art. 1286.) The main object of the instrument is clearly to make Kammerzell the manager of the Manila branch of the plaintiff's business, with the same general authority with reference to its conduct which his principal would himself possess if he were personally directing it. It can not be reasonably supposed, in the absence of very clear language to that effect, that it was the intention of the principal to withhold from his agent a power so essential to the efficient management of the business entrusted to his control as that to sue for the collection of debts. Arellano, C. J., Torres, Cooper, Willard, and Mapa, JJ., concur.

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G.R. No. 443, November 13, 1901

THE UNITED STATES, COMPLAINANT AND APPELLANT, VS. IRA VAN CAMP, DEFENDANT AND APPELLEE. D ECIS ION
WILLARD, J.: There was but little dispute over the facts in this case. Ira Van Camp was employed by the Pacific Oriental Trading Company in the month of May, 1901. On the 28th of that month the manager of the company gave him orders to go to Tarlac to collect a sum of money which was owing to the company from one Buford and to return that night. The accused did as ordered, receiving from Buford 1,900 pesos, which he brought with him to Manila, where he arrived at 7.30 p. m. There was no person present at the offices of the company when he arrived other than Mr. Rogers, to whom the accused delivered 1,600 pesos, stating that he had collected the same from Buford. The following day the accused went to the office and saw that the 1,600 pesos were delivered to the cashier and credited to the account of Buford, giving to the cashier an order of Buford's for a new invoice of merchandise which the company refused to fulfill on the ground that Buford had not paid more than 1,600 pesos. We are of the opinion that it clearly appears from the proofs adduced that the accused never stated on any of the occasions when speaking to the persons connected with the company that the sum collected from Buford was 1,900 pesos and not 1,600 pesos, although he did state to the cashier that within a few days he would pay in $150, gold, to be placed to the credit of Buford. This was when they had already refused to make further sales to Buford on credit. On the 29th, as Ira Van Camp contends, but, according to the cashier, on the 31st, the accused asked how much he had to his credit by way of salary and reimbursement of expenses and he was informed that the sum amounted to 167 pesos. He then paid the cashier 33 pesos and told him to place the sum of 200 pesos to the credit of Buford, which was done. The accused testified that he brought with him to Manila the 1,900 pesos and that he could not pay the balance of 300 pesos the following day for the reason that he did not have that sum. He testified that he used these 300 pesos because he believed that the balance owing to him from the company amounted to that sum. We can not credit this statement. The salary which the accused received was 250 pesos per month and 2 1/2 pesos daily for payment of expenses. He had collected all that was due him up to May 1. During the month of May he had collected 98 pesos in Calumpit which he had applied to the payment of his expenses at the request of the assistant bookkeeper, according to the contention of the accused. During the month of May he had collected 25 pesos on account of his salary. Under these circumstances he should have known that he could not have to his credit a sum equivalent to the 300 pesos which he retained. The facts which appear in this case constitute the crime of embezzlement, prohibited and punished by article 535, paragraph 5, of the Penal Code. It is not necessary to determine whether the amount appropriated was 100 or 300 pesos, since the penalty is the same in either case. The determination of this point would depend, perhaps, upon the question whether the payment of the 33 pesos and the transfer of this sum and the other 167 pesos from the account of Van Camp to that of Buford took place on the 29th or the 31st.

The Court of First Instance considered that the last paragraph of article 535 modifies the entire article and not only paragraph 9 thereof; therefore the judge imposed a fine of 400 pesos. We consider that in this the court committed an error. It appears from an examination of the Penal Code of 1850 that article 535 of the prevailing Penal Code is composed of four of the articles of the former Code. Subdivision 9 of article 535, together with the paragraph referred to, is found in the former Code as a separate article under No. 453. We can not hold from the mere union of these articles that it has been the intention of those charged with the compilation of the Code to make this paragraph, which formerly modified article 453 only, a modification likewise of the other three articles. By its very import it can not be applicable to some of the numbers of the existing article, such for example as Nos. 7 and 8. The crimes referred to in those numbers can not exist without deceit. In all cases where the same numbers may be applicable it is indispensable that there be present an intention to defraud, and in the absence of such there can not be a conviction thereunder. That portion of the sentence therefore must be reversed. The penalty applicable to the crime of embezzlement when the amount appropriated exceeds 250 pesetas and does not exceed 6,250 pesetas is that of arresto mayor in its medium degree to prision correctional in its minimum degree. We assign as the penalty which must be imposed upon the accused that of four months and one day of arresto mayor instead of the penalty imposed by the Court of First Instance. In this respect the sentence of the Court of First Instance is reversed but affirmed in all other respects. The cause is remanded to the trial court for the purposes necessary in accordance with law, with costs on appeal. It is so ordered. Arellano, C. J., Torres, Cooper, and Mapa, JJ,, concur. Ladd, J,, did not sit in this case.

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G.R. No. 448, September 20, 1901

THE UNITED STATES, COMPLAINANT AND APPELLEE, VS. PHILIP K. SWEET, DEFENDANT AND APPELLANT. D ECIS ION
LADD, J.: The offense charged in the complaint is punishable under the Penal Code now in force by arresto mayor and a fine of from 325 to 3,250 pesetas. (Art. 418.) By Act No. 136 of the United States Philippine Commission, section 56 (6), Courts of First Instance are given original jurisdiction "in all criminal cases in which a penalty of more than six months' imprisonment or a fine exceeding one hundred dol lars may be imposed." The offense was therefore cognizable by the court below unless the fact that the appellant was at the time of its alleged commission an employee of the United States military authorities in the Philippine Islands, and the further fact that the person upon whom it is alleged to have been committed was a prisoner of war in the custody of such authorities, are sufficient to deprive it of jurisdiction. We must assume that both these facts are true, as found, either upon sufficient evidence or upon the admissions of the prosecuting attorney, by the court below. Setting aside the claim that the appellant was "acting in the line of duty" at the time the alleged offense was committed, which is not supported by the findings or by any evidence which appears in the record, the contention that the court was without jurisdiction, as we understand it, is reducible to two propositions: First, that an assault committed by a soldier or military employee upon a prisoner of war is not an offense under the Penal Code; and second, that if it is an offense under the Code, neverthe less the military character sustained by the person charged with the offense at the time of its commission exempts him from the ordinary jurisdiction of the civil tribunals. As to the first proposition, It is true, as pointed out by counsel, that an assault of the character charged in the complaint committed in time of war by a military person upon a prisoner of war is punishable as an offense under the Spanish Code of Military Justice (art. 232), and it is also true that under the provisions of the same Code (arts. 4, 5) the military tribunals have, with certain exceptions which it is not material to state, exclusive cognizance of all offenses, whether of a purely military nature or otherwise, committed by military persons. But the fact that the acts charged in the complaint would be punishable as an offense under the Spanish military legislation does not render them any less an offense under the article of the Penal Code above cited. There is nothing in the language of that article to indicate that it does not apply to all persons within the territorial jurisdiction of the law. Under articles 4 and 5 of the Code of Military Justice above cited a military person could not be brought to trial before a civil tribunal for an assault upon a prisoner of war, but by the commission of that offense he incurred a criminal responsibility for which he was amenable only to the military jurisdiction. That criminal responsibility, however, arose from an infraction of the general penal laws, although the same acts, viewed in another aspect, might also, if committed in time of war, constitute an infraction of the military code. We are unable to see how these provisions of the Spanish Military Code, no longer in force here and which indeed never had any application to the Army of the United States, can in any possible view have the effect claimed for them by counsel for the appellant.

The second question is, Does the fact that the alleged offense was committed by an employee of the United States military authorities deprive the court of jurisdiction? We have been cited to no provision in the legislation of Congress, and to none in the local legislation, which has the effect of limiting, as respects employees of the United States military establishment, the general jurisdiction conferred upon the Courts of First Instance by Act No. 136 of the United States Philippine Commission above cited, and we are not aware of the existence of any such provision. The case is therefore open to the application of the general principle that the jurisdiction of the civil tribunals is unaffected by the military or other special character of the person brought before them for trial, a principle firmly established in the law of England and America and which must, we think, prevail under any system of jurisprudence unless controlled by express legislation to the contrary. (United States vs. Clark, 31 Fed. Rep., 710.) The appellant's claim that the acts alleged to constitute the offense were performed by him in the execution of the orders of his military superiors may, if true, be available by way of defense upon the merits in the trial in the court below, but can not under this principle affect the right of that court to take jurisdiction of the case. Whether under a similar state of facts to that which appears in this case a court of one of the United States would have jurisdiction to try the offender against the State laws (see In re Fair, 100 Fed. Rep., 149), it is not necessary to consider. The present is not a case where the courts of one government are attempting to exercise jurisdiction over the military agents or employees of another and distinct government, because the court asserting jurisdiction here derives its existence and powers from the same Government under the authority of which the acts alleged to constitute the offense are claimed to have been performed. It may be proper to add that there is no actual conflict between the two jurisdictions in the present case nor any claim of jurisdiction on the part of the military tribunals. On the contrary it appears from the findings of the court below that the complaint was entered by order of the commanding general of the Division of the Philippines, a fact not important, perhaps, as regards the technical question of jurisdiction, but which relieves the case from any practical embarrassment which might result from a claim on the part of the military tribunals to exclusive cognizance of the offense. The order of the court below is affirmed with costs to the appellant. Arellano, C. J., Torres, Willard, and Mapa, JJ., concur.

CONCURRING Cooper, J., I concur in the result of the decision of the court, but am not prepared to assent to all that is said in the opinion. An offense charged against a military officer, acting under the order of his superior, unless the illegality of the order is so clearly shown on its face that a man of ordinary sense and understanding would know when he heard it read or given that the order was illegal,

and when the alleged criminal act was done within the scope of his authority as such officer, in good faith and without malice, and where the offense is against the military lawthat is, such law as relates to the discipline and efficiency of the Army, or rules and orders promulgated by the Secretary of War to aid military officers in the proper enforcement of the custody of prisonersis not within the jurisdiction of the courts of the Civil Government, ( In re Fair, 100 Fed. Rep., 149.) The civil courts, however, may examine the evidence for the purpose of determining whether the act alleged to be criminal was done in the performance of duty under the circumstances above indicated, but should cease to exercise jurisdiction upon such facts appearing. Ordered affirmed.

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G.R. No. 455, October 26, 1901

RAFAEL ENRIQUEZ, PLAINTIFF AND APPELLEE, VS. A. S. WATSON & CO., DEFENDANTS AND APPELLANTS. D ECIS ION
WILLARD, J.: It appears from the record that the appellants in this case occupied the building at No. 14 Escolta Street, known by the name of the English Dispensary and being a part of the property of the Enriquez estate, under a lease thereof, from January, 1900, to May of 1901. The amount of the stipulated rent for that period has been paid by them. The rent corresponding to the period from January, 1900, to May, 1900, was paid twice; first to the administrator of the estate and later deposited in court. The appellee seeks now to evict the appellants from said property, alleging as his ground therefor the nonpayment of the amount of rent corresponding to said period. The situation in which Messrs. Watson & Co. are found in this case is due principally, in our opinion, to the litigation between the Enriquez brothers over the estate of their deceased parents. During the first period above mentioned the administration of said property passed three times from the hands of one to those of the other of the brothers, Francisco and Rafael. The claim made by Don Rafael does not refer to the failure to pay the said rents but to the fact that these were paid improperly to his brother. It is not surprising that with these frequent changes of administrators the tenants of the properties of the estate have committed mistakes in the payments. The judgment, whose execution is sought in this case, was rendered by default on June 20, 1900. The summons was served upon the person in charge of the establishment, who was denied an extension of some days which he applied for by reason of the absence of the attorney in fact of the house. This judgment became final, and although it is not proper for us, perhaps, to inquire into the merits of said judgment for the purpose of determining its annulment, we can take into consideration the antecedents of the case so far as they serve to make clear the succeeding acts of Don Francisco as Well as of Don Rafael. If the rents whose alleged nonpayment gave rise to said action have been actually received by the Enriquez estate the abandonment of the judgment could be more readily deduced from the succeeding facts than if they had not been paid at any time. After the 1st day of September, 1900, it was Don Francisco who had charge of the administration of the estate. The court notified the appellants that they should recognize him as such. After the said date the said Francisco recognized the appellants as the tenants of the estate and continued to receive from them the amount of the rents until January 25, 1901, when a new lease for twelve years was entered into. Although said lease may have been void it is true that the contracting parties conformed to its terms, paying the amount of the stipulated rent to Don Francisco from January 25, 1901, to April 1. The latter likewise had previously received the rents corresponding to the months from January to May, 1900, which, according to the allegations of Don Rafael, were not paid. As a result of these allegations the judgment referred to was entered. The facts related disclose to us conclusively that Don Francisco never intended to ask the execution of this judgment nor considered Messrs. Watson & Co. evicted,

but rather as actual tenants. As for Don Rafael, his attorney stated before this court that upon assuming charge of the property in February, 1901, he demanded of the appellants the amount of the rents. The statements of his attorney would contradict and be inconsistent with any theory other than that the rents thus demanded were those accrued under the new lease of January 25, 1901. The appellants paid to him the rents from April, but refused to pay that corresponding to the month of March, stating that they had already paid the same to Don Francisco. As a result of this refusal proceedings were had for the purpose of reviving the old judgment of the previous year. It appears to us that the true reason which prompted this action was not the nonpayment of the rents from January to May, 1900, but the fact of the nonpayment to Don Rafael of those corresponding to the month of March, 1901. The original judgment can not be utilized for such purpose. If there has been such failure to pay the rent corresponding to the month last named, Don Rafael ought to have presented the proper complaint, basing it upon that fact. It is not the contract above referred to entered into with the administrator Don Francisco which gives rise to the re-leasing of the property, but the successive acts of administration of the latter, recognizing it in the name of the estate whose representative he alone wasacts neither impugned nor declared void until now, by virtue of which he has accepted the agreements of the tenant which until now have likewise not been rejected by the estate or objected to in any way. In view of the established facts above related we are of the opinion and decide that there have been subsequent juridical acts between the appellants on one side and on the other the Enriquez estate, represented either by Don Francisco or by Don Rafael, by virtue of which the said appellants must have continued as such tenants of the estate, notwithstanding the judgment given on June 20, 1900, which by reason of the very acts of the plaintiff estate has become ineffective and has lost its executory force. Wherefore the judgment appealed from is reversed with costs taxed to the appellee, and it is so ordered. Arellano, C. J., Torres, Cooper, Mapa, and Ladd, JJ., concur.

OSJurist.org

G.R. No. 456, August 28, 1901

IN THE MATTER OF THE APPLICATION OF JOHN W. CALLOWAY FOR A WRIT OF HABEAS CORPUS.
WILLARD, J.: No judge of this Archipelago has at present jurisdiction to issue the writ of habeas corpus unless such jurisdiction has been conferred upon him by some legislative act. The only law now in force which confers such jurisdiction is General Orders, No. 58, amended by General Orders, No. 70, which latter order expressly denies this Supreme Court and other courts in the Philippine Islands the right to set at liberty any prisoner arrested in pursuance of military orders. Article 17 of "An act providing for the organization of courts in the Philippine Islands" reads as follows: "The Supreme Court shall have original jurisdiction to issue writs of mandamus, certiorari, prohibition, habeas corpus, and quo warranto in the cases and in the manner prescribed in the Code of Civil Procedure, and to hear and determine the controversies thus brought before it, and in other cases provided by law." The Code referred to in this article is not as yet in force, and therefore can not be applied to this case. It would appear from the answer to the writ that the petitioner has been arrested by virtue of military orders, such statement not having been objected to by the counsel for the petitioner. Therefore this court has no power to order the discharge of the petitioner. The fact that the petitioner had been arrested in compliance with military orders was not set forth in the petition for the issuance of the said writ, and the court deemed it its duty to issue same in first instance. Wherefore the writ issued August 23, 1901, is hereby repealed. Arellano, C. J., Torres, Cooper, Mapa, and Ladd, JJ., concur.

OSJurist.org

G.R. No. 507, November 05, 1901

IN THE MATTER OF THE PETITION OF A. O. BROOKS FOR A WRIT OF HABEAS CORPUS . D ECIS ION
ARELLANO, C.J.: It is an established fact that A. O. Brooks had obtained his absolute discharge as a soldier. It is likewise a fact explicitly stated by the counsel for the Government that the absolute discharge granted contained no condition that the said Brooks should render services in a civil capacity to the Army as an employee in its offices, and if the latter had entered into a contract for the rendition of services he did so just as any private person not previously in the military service might have done. By the absolute discharge there was dissolved every legal bond that bound him to the Army and thenceforth, since he no longer enjoyed the privileges of the military, neither could he be held subject to the obligations imposed upon the military nor subject to anything more than the terms of the contract of employment which he had entered into with the Army. And inasmuch as a private person who contracts obligations of this sort toward the Army can not, by any law that we know of, either civil or military, be compelled to fulfill them by imprisonment and deportation from his place of residence, we deem it wholly improper to sustain such means of compulsion which are not justified either by the law or by the contract. We decide, therefore, that A. O. Brooks should be placed at liberty, and it is so ordered. Torres, Willard, Mapa, and Ladd, JJ., concur.

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G.R. No. 541, December 02, 1901

RAMON OROZCO, PLAINTIFF AND APPELLANT, VS. HEIRS OF PEDRO HERNAEZ, DEFENDANTS AND APPELLEES. D ECIS ION
WILLARD, J.: In the action of greater import to annul the will of Doa Juana Espinosa, the appellant represented the plaintiff. That the plaintiff was Don Eulalio Hernaez and none other appears from the power of attorney for the purposes of litigation which accompanies the complaint as well as from the text of the complaint itself; that said action was not commenced in his name by virtue of an agreement with the remaining heirs appears in the complaint. In that complaint the plaintiff prays the court that the remaining heirs be required to declare whether or not they conform to the complaint. Four of the heirs having been cited for the purpose proposed by the plaintiff, they declared that they were not in conformity with the complaint, manifesting in a conclusive manner that they did not make themselves responsible for the expenses which the said action might occasion. The facts related disclose that there was no contract, express or implied, between the appellant and any of the heirs with the exception of Don Eulalio which could make the said heirs individually responsible for the payment of the fees earned by the appellant. The appellant contends, nevertheless, that the estate is responsible for the payment of said fees. We can not admit this contention. The action in question was commenced by Don Eulalio personally. The duties of the executor did not require that he avail himself of the services of an attorney such as the present appellant, and it would be difficult to explain how an executor could legally employ an attorney to litigate concerning the validity of the very will of which he is the executor. The heirs have the right to litigate if they deem it expedient to do so, but this would be in their personal capacity, and for the payment of the costs which arise therefrom the estate can not enter into contracts either express or implied. The fact, if such it may be considered, that the prior administrator or executor had paid a part of the fees is of no importance, and said act being illegal of itself it does not authorize the succeeding administrator to continue making such payments. The true grounds upon which, in our opinion, the appellant stands are that his services have resulted beneficially to the heirs and that therefore they should compensate him for his labor. There has not been cited to us, neither do we know of, a provision of the law in support of this contention. If we were to admit this contention the theory of the law would be completely changed. There would be no further need of contracts. It would result that anyone might impose obligations upon another without his knowledge or consent, and even against his protest as happened in the present case. The order appealed from is affirmed with costs taxed against the appellant. It is so ordered. Arellano, C. J., Torres, Cooper, and Mapa, JJ., concur. Ladd, J., did not sit in this case.

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