G R. No.

1105, November 26, 1902

IN THE MATTER OF THE PETITION OF R. W. CARR ET AL. FOR A WRIT OF HABEAS CORPUS. D ECIS ION
WILLARD, J.: An application for a writ of habeas corpus having been presented to this court in behalf of R W. Carr and three others, an order was directed to whomsoever might have them in custody requiring such person to show cause why the writ should not issue. In pursuance of this order a captain of the Marine Corps appeared and showed cause. It was proved at the hearing that these four men are marines in the service of the United States; that it was alleged that they had committed an offense Avhich was in violation of the military laws and regulations by which that corps is governed, and that at the time the application for the writ was made they were in the guardhouse of the marines at Oavite by virtue of an order of the commanding officer of that corps at that place. These facts are sufficient to show that they are not illegally detained. But it is claimed by the petitioners that the offense charged against them was a violation not only of the military law, but also of the civil law; that they had been arrested by the local police at Cavite on account thereof; that by reason of the insecurity of the local jail the civil authorities had transferred them to the Marine Corps; that they were being held by the latter awaiting trial by the civil authorities; that in the language of their counsel they were civil prisoners held by the military arm, and that no warrant for their detention had ever been issued. These facts do not make their confinement illegal. When a soldier commits an offense which makes him amenable both to the civil and military law he can be tried by either. (Coleman vs. Tennessee, 97 U. S., 513; ex parte Mason, 105 U. S., 696; Johnson vs. Sayre, 158 U. S., 115.) If the military authorities have him in their possession they can turn him over to the civil courts for trial or they can try him themselves. The fact that they have agreed to surrender him to the civil courts does not deprive them of jurisdiction to try him before such surrender. The marine authorities having jurisdiction to try the petitioners when this application was made their detention by such authorities was not illegal. (Carter vs. McClaughry, 183 U. S., 365.) The application for the writ is denied, with costs de oficio. Arellano, C. J., Torres, and Mapa, JJ., concur. COOPER, J., dissenting : I dissent. SMITH, J., concurring : I am of the opinion that the petitioners had a to the order to show cause, and in case of thereof to put the respondents to their proof. did not ask leave or offer to make any such right to make answer to the respondent's return a denial of all or any of the material allegations In view of the fact, however, that the petitioners answer, the facts alleged in the return must be

considered as admitted, and I therefore concur in the foregoing decision.

OSJurist.org

G. R. No. 868, December 16, 1902

THE UNITED STATES, COMPLAINANT AND APPELLEE, VS. JUAN SANTIAGO, 2D, ET AL., DEFENDANTS AND APPELLANTS. D ECIS ION
LADD, J.: The defendants have been convicted of murder by the court below. That court finds one aggravating circumstance to be present, which is stated to be "the fact of the robbery committed at the same time as the murder." This supposed aggravating circumstance the court compensates with the circumstance of article 11 of the Code, that of race, considered as extenuating, with the result that the defendants have been sentenced to cadena perpetua, which is the medium grade of the penalty assigned to the crime of murder. The following facts are established by uncontradicted evidence: The deceased, Elias Acogido, his wife, Benita Baldilosa, and their two sons, one 17 and the other 21 years old, residents of the pueblo of Bacarra in Ilocos Norte, wen* awakened early in the morning of December 3, 1901, by the voice of a man outside their house calling to the deceased. Benita answered that her husband was not in the house. Immediately thereafter five men entered the house, seized the deceased, who had hidden behind a door, and dragged him downstairs. Three of the men were armed with clubs, oik; had a bolo, and the other a dagger. At the foot of the stairs they all fell upon the deceased, beating him with the clubs and inflicting four wounds upon his head and face with the bolo and dagger, two of which were of a mortal character. They then carried him upstairs to the bataUnij where they beat him again and choked him. They then allowed his wife to take him into the house. Three of them also went into the house and demanded money from the woman. She replied that she had none, whereupon they proceeded to search the upper part of the house while the other two did the same in the lower part, but they found nothing and went away without having taken anything. The deceased died in six days in consequence of the injuries received. Benita and the two sons identified the defendants, who lived in the same pueblo as themselves, and whom they had known previously, as the men who entered the house and assaulted the deceased. Their evidence was corroborated by that of three witnesses, neighbors of the deceased, who testified that on the night in question they went to the house for the purpose of rendering assistance, but instead of going in at first concealed themselves in the bushes in the yard, and from their hiding place saw the robbers as they left the house and recognized them as the defendants. Each one of the defendants undertook to establish an alibi. Six witnesses testified that they were in the house of the defendant Santiago during the entire night in question, taking care of the latter's brother, who was lying at the point of death, and that Santiago did not leave the house at all during the night. Three witnesses testified that they were in the house of the defendant Acosta during the entire night, Acosta's concubine being sick, and that Acosta Avas there all night. Four witnesses testified that they were in the house where the defendants Ceferino and Benito Eumbaoa lived, the entire night, and that those defendants were there all night taking care of a sick daughter of Benito. Two witnesses testified that they were with the defendant Carlos Eumbaoa in his house during the entire night.

The Solicitor-General in his brief points out several contradictions in the evidence of these witnesses, but his references are to the testimony taken at the preliminary investigation, which is not a part of the record properly before the court, and the contradictions are not found in the testimony given at the trial. The evidence, however, all comes from witnesses who are relatives or connections of the respective defendants in whose favor they testify; the details of the three independent alibis set up by Santiago, by Acosta, and by Ceferino and Benito Kumbaoa, respectively, are precisely similar, a suspicious circumstance to say the least; and having regard to the facility with which such a defense may be fabricated, we can not attach to the evidence sufficient weight to bring into doubt the positive and in all respects satisfactory evidence of the prosecution connecting the defendants with the crime. We regard their direct participation in the crime as principals as established beyond a reasonable doubt. These being the facts, of what specific crime should the defendants be convicted? The complaint designates the crime charged as simple murder; but describes it in a manner which shows that the crime of frustrated robbery was committed in connection with that of murder, and it may be that a conviction could be had upon the complaint for the complex crime defined in article 506 of the Code. We think the deceased was killed under circumstances which imply alevosia. (Judgment of,the supreme court of Spain of May G, 1876.) The crime of murder was therefore committed either as an independent crime or as one of the constituent elements of the complex crime, referred to. If the latter is the true construction of the facts, still we see no objection to a conviction of murder upon this complaint, because as the penalties prescribed for simple murder and for the complex crime of frustrated robbery with murder are identical (article 506 of the Code), no prejudice results to the accused from such conviction. It is therefore of no practical importance in this case whether the crime was simple or complex. If the defendants should hewnftor be prosecuted for frustrated robbery, that question might arise, and if it should be held that the crime was complex, such prosecution, involving a liability to punishment additional to that here imposed, could not be maintained. We have not thought it necessary to discuss the theory advanced in the brief of counsel for the defendants, that the case is governed by article 64 of the Code, fixing the rules for the application of penalties where the crime committed is distinct from that which the accused intended to commit It is perfectly apparent here that there was a distinct intent to assault the deceased as well as an intent to rob. Both generic circumstances appreciated by the court below must be discarded. The result is that the penalty was imposed in the proper grade. The judgment with the modifications indicated is affirmed. Arellano, C. J., Torres, Cooper, Smith, Willard, and Mapa, JJ., concur.

OSJurist.org

G. R. No. 945, December 19, 1902

THE UNITED STATES, COMPLAINANT AND APPELLEE, VS. MELCHOR ABELINDE ET AL., DEFENDANTS AND APPELLANTS. D ECIS ION
ARELLANO, C.J.: The defendants were convicted at first instance and condemned to the penalty of death for the crime of the murder of Antonio, Juan, Julian, Nicomedes, Lucio, Severo, and Isabel Echevarria, of Candida de los Reyes, of one Dionisio, and of Antonio Caldevilla. The case has been sent to this court in consultation of the judgment by which this penalty was imposed upon them. In the night of the 14th or 15th (the exact date does not appear) of the month of August, 1900, the house occupied by the Echevarria family, situated in the hamlet of Naro, then corresponding to the town of Uson and now to the township of Palanas, Province of Masbate, was assaulted by a band composed of some forty men. The malefactors fired two or three shots upon arriving at the house, and then told the people who were living there to come down one at a time. They having done so, the assailants took from them their arms, consisting of guns and revolvers, and tied them elbow to elbow. In this condition the prisoners were killed by being shot or stabbed with bolos. The bodies were subsequently sewn in sacks and thrown in the sea. All the persons named in the complaint were killed in this manner. These facts are fully established by the testimony of the eyewitnesses Patricia Arma and Diego Atigera. The latter was kidnaped by the malefactors the night before and taken as a prisoner to the place where the crime was committed because, as the malefactors themselves told him, he was a relative of the Echevarrias. Elvira Clemente, the wife of the deceased Juan Echevarria, corroborates the testimony of the witness above mentioned, except as to the manner and form in which the victims were killed. She was not present at this, because she did not leave the house, although she testifies that she knew of the death of the victims because she heard the malefactors themselves state that they had killed them, shortly after the occurrence, and because they were not seen again after that time. She further testified that the malefactors demanded the delivery of the arms which the Echevarrias had, promising not to do them any injury. The witness Patricia Arma apparently intends to convey the same idea by the statement made by her that the Echevarrias did not defend themselves, notwithstanding the fact that they were provided with guns and revolvers, because they did not know what was going to be done to them. The shots fired by the malefactors were also heard by Tomas Atigera, Policarpia Arisola, and Victoria Garcia, who became so frightened upon hearing the shots that they ran away and hid in the woods. Victoria saw the bodies of all the deceased on the beach, and Policarpia saw the bodies of five of them on the day after the occurrence. The same witnesses, Patricia Arma and Diego Atigera, testified to having seen Melchor Abelinde at the time the the crime was committed, and that he was one of the men who formed part of the band which made the assault. Patricia Arma testified further that she saw him take direct part in the killing of the Echevarrias.

From an examination of the record the conclusion is reached that the malefactors remained at the hamlet of Naro during the night in question; that part of them went away early in the morning of the day following, the others remaining there in the custody of the house while removing the money, rice, and other goods found therein, Melchor Abelinde must have been one of those who remained, and hence it was that he was seen on the morning in question by Tomas Atigera and Camilo Afable, and by Victoria Garcia on the afternoon of the same day, while standing guard at the door of the said nowise, armed with a saber and a gun. Policarpia Arisola also saw him the same day among the malefactors, although this witness could not testify precisely as to the place where she saw him. With respect to the other defendant, Leon Arco, nobody saw him on the night in question at the place where the crime was committed. Nevertheless, circumstantial evidence points strongly against him. When part of the band which had committed the assault and killed the Echevarrias was leaving the hamlet of Naro, between 8 and 9 o'clock on the morning following, Arco was seen forming part of this band and armed with a bolo. So testified Martin Atin and Bernardo Legaspi, who were kidnaped by the band on the road on that occasion. This witness, while in the hands of the malefactors, heard them say that they were coming from the hamlet of Naro, where they had killed the Echevarria family the night before. According to Martin Atin, it was Arco himself, assisted by another member of the gang, who captured him, telling him that if he did not keep quiet they would kill him as they did the people in Naro . This witness also testifies that he noted spots of blood on the sheath of the bolo carried by Arco. It also appears from the testimony of Mariano Santos that when this band was in his house, having come there for the purpose of getting rice, some days after the event in question, the defendant Arco was one of the gang; that the bolo he carried was stained with blood; that one of the party stated in a loud voice that they had killed the Echevarrias at the hamlet of Naro, and that Arco heard this statement and did not deny it. These proofs in themselves are sufficiently conclusive to produce a full conviction of the guilt of the defendants, and they have still greater force in connection with their own testimony at the trial. They confessed that it was true that they were present at the hamlet of Naro, together with the slayers of the Echevarrias family on the ocasion in question. The force of this confession is not overcome by the fact that they alleged that they had been kidnaped and taken there forcibly by the malefactors, and that the latter left them, the defendants, tied to some trees at some distance from the house of the Echevarrias while they committed the crime herein prosecuted, and only set them at liberty afterwards; because not only have they failed to prove in any degree the truth of this alleged kidnaping, but the merits of the case, which have been briefly analyzed, prove precisely the contrary. It is a matter of absolute indifference whether the accused did or did not kill the deceased by their own hands. Although they might not have done soand there is proof to the contrary with respect to Melchor Abelindeit is sufficient that they were present as a part of the band of murderers at the time and place of the occurence, thus contributing by their presence to augment the power of the band and to aid in the successful realization of their purposes in order to become responsible by direct participation for the death of the victims, in accordance with article 13 of the Penal Code. The fact that the deceased were killed while tied elbow to elbow, and therefore prevented from making any defense, constitutes the circumstance of alevosia, defined in paragraph 2 of article 10 of the Penal Code. Hence, the crime prosecuted in this case was properly classified in the court below in its judgment as that of murder, defined and punished by article 403 of the Penal

Code. There is absolutely nothing in the record to indicate that the defendants have done anything which might tend to add ignominy to the effects peculiar to the crime committed, or that they had any intention to affront the age and sex of any of the deceased. Consequently the court below erred in considering against the defendants aggravating circumstances Nos. 12 and 20 of article 10 of the Code. With respect to the circumstance of the commission of the crime in the nighttime and in a gang, which the court below also considered as aggravating circumstances, these circumstances must be regarded as involved in the circumstance of alevosia, inasmuch as in the daytime, and if the malefactors had been less than four, the minimum number necessary, under article 505, to constitute a gang, it would not have been possible for them to have overcome so many victims, to the extent of allowing themselves to be tied without making the slightest resistance, having, as they did, guns and revolvers with which they might defend themselves, and not without certain advantages from a position of defense in the house. It is to be supposed that they would have done so had the gang which made the assault been less numerous, and had they been able to expect the assistance of their neighbors, which might naturally be more readily counted upon in the daytime than in the nighttime. Hence the circumstance of nocturnity and the circumstance of the commission of the crime by a gang were principal and doubtless necessary elements which made possible the existence of alevosia which consisted in the killing of the deceased while tied elbow to elbow, as otherwise the result of the attack might perhaps have been different, in view of the peculiar circumstances surrounding the case. What appears to be unquestionable is that the slayers of the Echevarrias acted upon premeditation. The agreement between them to form the numerous gang which perpetrated the crime prosecuted is an agreement which must necessarily have been preceded by a mutual and a reiterated communication of ideas, intentions, and plans relative to the commission of the said crime; the fact that Diego Atigera was kidnaped twenty-four hours before the occurrence, for the sole reason, as stated by the defendants themselves, that he was a relative of the Echevarrias, and that he was not restored to liberty until after the murder of the latter had been accomplished, and doubtless with the purposeas there is no other which can be imaginedof preventing him from warning the Echevarrias of the danger which threatened them and of which Atigera must doubtless have had some information, all demonstrates that since the preceding day they had taken precautions tending to insure the success of their criminal enterprise, and constitute facts which give evidence of a reflexive and persistent deliberation upon the commission of the crime. This it m which constitutes known premeditation within the meaning of the Penal Code. This aggravating circumstance must therefore be considered against the defendants, by virtue of paragraph 7 of article 10 of the said Code. Aggravating circumstance No. 8 of the same article must also be considered, because the malefactors made use of fraud in the commission of the crime, deceiving the deceased with the false promise that no harm would be done them if they would peaceably give up the guns and revolvers in their possession, and then killing them after so obtaining the weapons. There is good reason to believe that, as the victims were so numerous and were so well prepared for defense, they would not have surrendered at the first intimation without the slightest resistance had they not confided in good faith in the sincerity of that promise. Counsel for the defense, during the pendency of the appeal, has moved the court to apply in favor of the defendants the amnesty of July 4 last, alleging that the deceased belonged to a

Spanish family and were killed by reason of the political feuds and hatreds arising from the fact that the deceased had formerly been caciques of the town in which they lived. The merits of the defense do not support this allegation. It does not appear, in any manner whatsoever, that the slayers of the Echevarrias had taken part in the insurrection against Spain or against the United States, or that they had committed the crime to advance the interests of the said insurrection, or that it was due to motives more or less connected therewith. The mere fact that the deceased were Spaniards is not sufficient to authorize the conclusion that their death was due to political hatred or dissensions, there being absolutely no evidence upon which to support such a supposition. There is no way in which the conclusion can be legally dra wn' from the record that the defendants committed the crime of which they are charged with any political purpose or motive. On the contrary, it appears perfectly clear and evident from the testimony of all the witnesses in,the case that their principal object was that of robbery, and this purpose was effected, they having stolen everything there was in the house of the Echevarrias. No charge of robbery was, however, included in the information, and therefore can not be passed upon in our decision. These facts, however, invest the murder of the Echevarrias with all the characteristics of a common crime, and therefore not embraced by the amnesty proclamation invoked by the defense. For the reasons above expressed we overrule the motion of the defendants for the application of the amnesty, and affirm the judgment below, with the modifications above indicated with respect to the aggravating circumstances which should be considered against the said defendants, with the costs of this instance against them. So ordered. Torres, Cooper, Smith, Willard, and Ladd, JJ., concur. Mapa, J., did not sit in this case.

OSJurist.org

G.R No. 505, April 08, 1902

FRANCISCO GUTIERREZ REPIDE, GENERAL ADMINISTRATOR OF THE PHILIPPINE SUGAR ESTATES DEVELOPMENT COMPANY, LIMITED, PLAINTIFF AND APPELLANT, VS. MARTIN ASTUAR ET AL., DEFENDANTS AND APPELLEES. D ECIS ION
WILLARD, J.: On June 20, 1901, Baldomero de Hazanas, as attorney for the Philippine Sugar Estates Development Company, Limited, a corporation, presented to the Court of First Instance of the Province of Cavite a petition asking that said company be placed in possession of the lands described in said petition, in accordance with the provisions of Title XIII of book 3 of the Code of Civil Procedure then in force. In the petition two estates were described, one called San Isidro Labrador, or Naic, and the other Santa Cruz, or Tanza. The first has an area of 7,978 hectares 75 ares and 99 centares. A part of it was devoted to the cultivation of palay, a part to cultivation of sugar cane, a part to building lots, and more than 3,000 hectares uncultivated. The area of the hacienda of Santa Cruz is not stated, but it appears from the petition that it was applied to the same uses as the hacienda of Naic, and that the petitioner had on it a stock farm which occupied part of the same. The prayer of the petition is that: "The company be given judicial possession of the estates above described in the form prescribed by law, the act to be effected in the towns of Santa Cruz and Naic, and that the persons commissioned to that effect publish in said towns by placards the possession of the respective estates, in order that the tenants may be informed thereof, and that, more especially in the town of Naic, demand be made upon the military officers who occupy the principal building thereon and the warehouse, and to the occupant of tjie hydraulic mill, to recognize the said company as the possessor of the said properties." In the petition it was not asked that any such demand be made upon any other tenant or occupant of the said estate. On the 27th of June the court of Cavite made an order granting the prayer of the petitioner and directing that orders be issued to the justices of the peace of Naic and Santa Cruz, in compliance with the provisions of articles 2017 and 2018 of the said Code of Civil Procedure. On the 17th of July the said justice of the peace of Santa Cruz notified the court that on the 15th of said month he had received the order addressed to him, and that before giving possession there appeared before him the local president and the military commander of the detachment stationed in that pueblo, and some of the inhabitants of the vicinity, in number 200, more or less, who protested that they would not recognize "as a representative of said company the said Don Francisco, and they also protested against the date of the order." In view of this appearance and statement, the justice of the peace stated that he had suspended further proceedings, and he asked instructions of the court. By an order of the 17th of July, 1901, the court directed the justice of the peace that he should enter upon his record the protest which had been made by the parties prejudiced by the

proceedings, who would have a right to make formal opposition before the court for the purpose of preserving their rights. On the 20th of July, 1901, Don Eduardo Imzon y Ison, a resident of Santa Cruz, in the name of the people of that pueblo, presented to the Court of First Instance an objection to the granting of the prayer of the petitioner. On the 20th of July, 1901, said court, by telegraph, ordered the justice of the peace to suspend the proceedings mentioned in the first order. It does not appear in the record that anything more was done in Santa Cruz looking to the fulfillment of the order of the court issued on the 27th of June. On the 13th of August, 1901, the petitioner presented a motion asking the revocation of the above-mentioned order of suspension. On the 16th of the same month this motion was served upon the provincial fiscal, who, on the 28th of the same month, presented his opinion, saying that the objection made by the municipality ought to be sustained. The order issued on the 27th of June directed to the justice of the peace of Naic was not received by the latter until the 21st of August, 1901. Upon receiving it the justice of the peace demanded, in writing, of the military commander who was in possession of the dwelling house on the estate, and of the local president of the municipality who had in his possession the hydraulic machinery, that they should recognize the petitioner as the owner of said property. It does not appear that any answer was given to this document by the military officer who was in possession of the dwelling house upon the estate. The local president, however, following the instructions of the municipal council, refused, on the 30th of August, to deliver the possession of the machinery, or to recognize the petitioner as the owner of it. It appears that notices were published, in Naic as a preliminary, according to the justice of the peace, to the act of giving possession. In consequence of this publication there was presented to the justice of the peace on the 24th of August, 1901, a protest, signed by more than 200 residents of the pueblo, who stated in their protest that they were occupying a part of the land described in the petition; that they were opposed to the possession which the petitioner claimed, and they asked that the proceedings should be suspended, and that the company should be required to maintain their rights in an ordinary action. On August 26 there was presented to the Court of First Instance of Cavite a formal protest, identical with that which had been presented before the justice of the peace. In view of the presentation of this protest to the Court of First Instance the latter, on August 28, ordered the provisional suspension of the proceedings mentioned in the order of the 27th of June, and directed the justice of the peace that he should report if all the lands of the estate were included in the opposition. This order of suspension did not reach the justice of the peace until after the 30th day of August, and upon that date he proceeded to give possession in the following form: "The justice's court, convened in the public plaza of this town for the purpose of giving possession, as directed by the preceding order, after publication and formal notice, and there being present Don Peregrin Mestre, representing Don Francisco Gutierrez y Repide and Don Antonio Denhardt, the court gave possession to the former, reading the said order in an audible voice, and describing the lands of which possession is thus given with all solemnity, inviting the said Senor Peregrin Mestre to freely enter upon and depart from the lands which are the

property of the company." The justice of the peace also says that in said act some of the inhabitants of the pueblo opposed the proceedings, and twenty-eight of them presented a written statement in which their protest appears. It appears in the record that Francisco Gutierrez had been named as attorney for the petitioner in place of Don Baldomero de Hazanas, for the purpose of receiving said possession. The petition is accompanied by a copy of a public document which apparently shows a right of property in the petitioner over the land described in the petition. On the 6th of September, 1901, Don Baldomero de Hazanas presented a written answer to the opinion of the fiscal of August 28 above cited. In it he asked that the court grant the prayer contained in his first motion of August 13. On the 12th of September, 1901, the court of Cavite entered the judgment declaring the matter contentious. On September 25 the petitioner appealed from this order, and his appeal was admitted on September 26. In the hearing before this court it was stated that in respect to the hacienda of Naic possession had been given before any protest was presented. This statement is not borne out by the record. The only possession which was attempted to be given was that made by the justice of the peace on the 30th of August; which was not only subsequent to the presentation to the Court of First Instance of the written objection, but also after that court had ordered the justice of the peace to suspend the proceedings. Two questions are raised by the record: (1) Is article 1800 of the Law of Civil Procedure applicable to proceedings commenced under said Title XIII in such a way that when objection is made it is necessary to declare the matter contentious? (2) If objection could be made, was it properly done in this case? 1. Possession includes the idea of occupation, and except iu the cases mentioned in article 444, the possession can not exist without it. (Art. 430 of the Civil Code.) It is true that it is not necessary that the proprietor himself should be the occupant. This occupancy can be lield by another in his name. (Art. 431.) But it is necessary that there should be such occupancy or there is no possession. The owner of real estate has the civil possession, either when he himself is physically in occupation of the property, or when another person who recognizes his rights as owner is in such occupancy. Let us suppose that th owner sells a tract of real estate. The purchaser, by virtue of that sale, does not immediately acquire the possession. The only direct transmission of possession is, that which is brought about by operation of law upon the death of the opponent. (Art. 440) The purchaser can acquire the possession by the acts and legal formalities established for the purpose of acquiring such right. (Art, 438.) One of these formalities is that which is prescribed by Title XIII, book 3, of the Law of Civil Procedure in question. The possession which is mentioned in said title is the same possession mentioned in the Civil Code; that is, the possession which includes occupation. The object of the proceeding is to confer upon the petitioner that occupation. This can be done in two ways. If the real estate is vacant, the purchaser can without difficulty be placed in possession of it. The judicial proceeding clothes the act with more solemnity and the proof of the same is better preserved than if the purchaser should take possession by himself. If the real estate is found in the actual possession of a third

person, and that third person, upon being so requested by the officer of the court, recognizes the purchaser as the owner, the latter acquires the complete civil possession, because, although he himself does not actually occupy the real estate, there is another person who does so in his name. But in no case can possession be acquired by means of this proceeding when there exists a third person who is in occupation of the property and who is opposed to it. "Every occupant has the right to be respected in his possession." (Art. 440 of the Civil Code.) "He who believes that he has a right to deprive another of the possession of a thing must seek the aid of the proper authority if the occupant objects to the delivery." (Art 441.) From the very nature, then, of the case, it appears that proceedings of voluntary jurisdiction must necessarily terminate if the person who is in possession refuses to abandon the real estate or to recognize the petitioner as owner.. Let us suppose that there is an estate in the active occupation of A, The petitioner obtains from the judge an order that he be placed in the possession of this estate possessed by A. The bailiff, assisted by the clerk, appears upon the property and requires A to abandon it, in order that they may place the plaintiff in possession of it. A refuses to do so. They then demand of him that he recognize the petitioner as the owner of the estate. He refuses to do this. The bailiff has no right to evict him by force. He can do no more than return to the court and inform the judge that he could not give the petitioner possession. With this action, the proceeding also terminates. It would make no difference what titles or rights A was able to present, or if he had no right at all, It would he sufficient that he was in the actual occupation of the estate, and that he refused to abandon it or recognize the petitioner as owner. It can not be correctly said that, in such a ease, the competent authority whose aid the petitioner has to invoke in accordance with article 441, above cited, is the court which has taken cognizance of these proceedings of voluntary jurisdiction. Article 446 would be entirely disregarded if, by means of a judicial procedure of this character, in which he was not a party and in which he had no opportunity to be heard, the actual occupant could be evicted from the estate. The bare possessor, if he is disturbed in his possession, has the right to commence against the person who is interfering with his possession the action to "retain" or to "recover," according to the circumstances, both by article 446 of the Civil Code and by article 1646 of the Law of Civil Procedure. Title XIII can not authorize the dispossession of the occupant when this very act of eviction would confer upon the occupant the right to commence an action to be restored to the possession. The competent authority, mentioned in said article 441, is the court which would have jurisdiction in a suit between parties. It is claimed by the appellant that the law does not authorize any opposition in this suit of voluntary jurisdiction, because the act ordered io be done by the judge constitutes only a modification. The language of the law does not support this claim. The law does not say that the bailiff shall notify the tenants of the change of ownership. What it does say is that he shall give the petitioner the possession and require the tenants to recognize as such the new owner. If by reason of the opposition the possession can not be given, the suit of voluntary jurisdiction produces no effect. Its whole effect rests upon the consent given by the person when his consent is demanded. If that consent is refused, nothing can be done in the suit of voluntary jurisdiction, since he can not be deprived of his rights without being heard in court. The phrase "without prejudice to third persons" must be interpreted in the sense that, if the proceedings in the suit of voluntary jurisdiction are made effective by the consent of the tenant, they do not prejudice persons other than the petitioner and the tenant. By this proceeding the possession is either conferred upon the petitioner or is not conferred. If it is not conferred, the

proceeding produces no effect. If the possession is given, by that very act the person who was in possession is evicted, and therefore is necessarily prejudiced by the act. It is impossible to give the possession to the petitioner without taking it from him who was in possession, to the prejudice of the latter. The phrase, then, "without prejudice to third persons who have a better right," in article 2016, must refer to third persons other than the occupant. Under the provisions of the Civil Code the objection of the occupant puts an end to the voluntary suit. If there is any provision in Title XIII which is opposed to this right it must be considered as repealed by the provisions of the Civil Code; but there is no such provision. Article 1 0 says that, if opposition is made by anyone who has an interest in the matter, the suit will be made contentious. Under article 446 it is evident that the mere occupant has an interest in the matter, and that, in accordance with article 441, his opposition is sufficient to put an end to the suit of voluntary jurisdiction, and, under article 1800 of the Law of Civil Procedure, sufficient to justify the action of the court in making the suit contentious. The supreme court of Spain has decided that article 1800 is applicable to Title XIII. (Judgment of March 24, 1896.) Manresa is of the same opinion. (Commentaries on the Law of Civil Procedure, vol. 6, pp. 117, 481, 482, 483.) We therefore hold that if, either before or in the act of giving possession in accordance with Title XIII, the bare possessor objects to the proceeding, it must be made contentious. It is not necessary that this opposition should be made in any particular form. It is sufficient, for the purposes of article 441, that the occupant is opposed to tlie delivery. 2. Was the opposition which was made in this case sufficient? We think that it was. If the petitioner had asked that each one of the persons recognize him as owner, as we believe he ought to have done, the tenants would then have had an opportunity of refusing such consent and of refusing to deliver possession of the land. That, as we have seen, would have been sufficient. This, in fact, took place with respect to the pueblo of Naic as the possessor of the hydraulic machinery. The other tenants, to whom no such opportunity was given, did all that they were able to do. A great number of themthe record says the pueblo in a massmade their opposition known to the justice of the peace. More than two hundred of them presented in the Court of First Instance their protest in writing. It has not been claimed that those persons who made opposition, and who appeared before the court and presented their formal objections, were not real occupants of the land. As such occupants they had, as we have seen, an interest in the matter, and the right to make their opposition, in accordance with article 1800. We decide that the opposition made was sufficient, without considering that made by the municipality of Santa Cruz. When the protest of two hundred and more tenants was presented to the Court of First Instance on the 28th of August, that court ordered a suspension, of the proceedings for the purpose of ascertaining if the opposition included all the lands. On the 3rd of September the petitioner was notified of this order. The order which made the matter contentious was not entered until the 12th of September. We think that it was not the duty of the defendants, nor of the court, to ascertain if the opposition extended to all the lands. A sufficient opposition had been made with respect to part of them. If the petitioner did not wish that the whole suit be made contentious, he should have asked for an amendment of his

petition, omitting those lands to which the opposition related. Not having done this, the fact that tlie entire matter was made contentious must be attributed to him. And in this court it has not been claimed that the judgment of the lower court was wrong because the whole matter was declared contentious, Avhen this declaration ought to have been made only in respect to a part of it. The order appealed from is affirmed, with the costs of this instance against the appellant. So ordered. Arellano, C. J., Torres, Cooper, Mapa, and Ladd, JJ., concur.

OSJurist.org

G.R. No. 666, January 14, 1902

IN THE MATTER OF THE PETITION OF J. GARCIA BOSQUE FOR ADMISSION TO THE PRACTICE OF LAW IN THE PHILIPPINE ISLANDS. D ECIS ION
ARELLANO, C.J.: The cession of the Philippine Archipelago having been agreed upon by the parties to the treaty of Paris of December 10, 1898, the compulsory subjection of the subjects of the ceding power to the new sovereign followed as a logical consequence. The status, of these subjects was not uniform, as in addition to the natives there were others who were merely residents but who, equally with the natives, had interests and rights inherent in the nationality of the territory. With respect to these the special agreement contained in article 9 was established, by virtue of which it was agreed to accord them the right of electing to leave the country, thus freeing themselves of subjection to the new sovereign, or to continue to reside in the territory, in which case the expiration of the term of eighteen months without their making an express declaration of intention to retain their Spanish nationality resulted in the loss of che latter, such persons thereby becoming subjects of the new sovereign in the same manner as the natives of these Islands. The period of eighteen months began to run from the date of the exchange of the ratifications of the treatythat is to say, from April 11,1899, and expired on the corresponding day of October, 1900. The petitioner absented himself from these Islands on May 30, 1899, and remained absent therefrom during the whole period. It was in January, 1901, that he returned to these Islands. From this conduct on the part of the petitioner it is evident that he elected to take the first of the two courses open to him under his right of option. Neither the Government nor the courts can place any other construction upon the facts above related. Having left the Islands he had no occasion,to make any declaration of his intention to preserve his Spanish nationality, which he carried with him on his departure. This nationality could be forfeited only by a continued residence in the ceded territory and a failure to make a declaration of intention to preserve it within the term fixed therefor. The conditions which gave rise to the presumptive change of nationality were residence and the lapse of eighteen months without express declaration to the contrary; these two conditions not being fulfilled there was no change of national status. Neither by the Government of Spain nor by that of the United States could the petitioner be regarded as a Filipino subject. By absenting himself from the territory he continued to be a Spaniard. To native-born subjects of the territory no such right of option was accorded; it was expressly refused tllem upon the rejection by the American Commissioners of the proposition in favor of the inhabitants of the ceded territories made by the Spanish Commissioners in Annex No. 1 to the twenty-second protocol. (Conference of December 10, 1898.) The native subject could not evade the power of the new sovereign by withdrawing from the Islands, nor while continuing to reside therein make declaration of his intention to preserve the Spanish nationality enjoyed under the former sovereign. Neither the Government of the United States nor that of Spain can consider them as other than Filipino subjects. This is expressly stated by the Spanish Government in article 1 of its royal decree of May 11, 1901.

The dates fixed by the treaty by which the sovereignty of one nation is ceded to another are of the highest importance, they being part of the contract, and are not within the control of the subjects as are those relating to their individual rights by reason of the fact that the political rights of the contracting nations themselves are the subject of the agreement. It is for this reason that the Government of Spain in the royal decree above cited has always taken the dates fixed in the treaty of Paris as the starting point, and, moreover, expressly declares therein that persons who are natives or residents of the ceded or relinquished territories can not, in their relations with the Government or authorities of such territories, lay claim to Spanish nationality preserved or recovered by virtue of said decree, except with the consent of such Government, or under treaty stipulations. (Art. 5.) The Government and courts of these Islands should not act with less circumspection in the matter, and invade the sovereign rights of Spain by giving the presumptive nationality established by Article IX of the treaty of Paris an extent not warranted by the conditions upon which it depends, to wit, residence coupled with failure to make an express declaration to the contrary. The ordinary provisions of local laws in their normal operation with regard to the effect of absence upon the retention of a residence or domicile can not therefore be relied upon, nor the presumption as to the intention of an absentee recognized by civil codes and international treaties, although the most general and almost the only proof allowed by statute as evidence of an intention to preserve a residence or domicile in a country is the maintenance of a dwelling or commercial establishment therein, upon which point, as also upon the fa,ct that the petitioner became a member of the bar of Barcelona upon his arrival in that city, we make no decision, not regarding it as of any moment in view of the conclusions above expressed. The fact is thai one is not to be regarded as having submitted to the new sovereign by the mere failure to make an express declaration, inasmuch as without a residence de facto the declaration is of no significance, having been established for the express purpose of overcoming the effect of a continued residence, an act which in itself implies subjection to the new sovereign by giving rise to the presumption of waiver of Spanish nationality and the adoption of that of the territory. The petitioner can not, therefore, be considered to have lost his Spanish nationality by reason of his residence in the territory after the 11th of October, 1900, and his failure to make declaration of his intention to preserve it within the period agreed upon by the high contracting parties to the treaty of Paris, and to have adopted the nationality of the native subjects under the presumption arising from the conditions expressed. He can only acquire it through voluntary renunciation of his present nationality by seeking to become naturalized in these Islands; but upon this matter this court can decide nothing, there having been no legislation upon the subject up to the present The status of the petitioner with respect to the new sovereignty of the territory having been defined, it remains to determine the question raised as to whether Spanish subjects resident therein constitute an intermediate class between other foreign residents and the natives of the country in whose behalf some specially favorable conditions have been stipulated. Upon this point no proposition was made, even incidentally, nor was any reference made to it in the discussions which preceded the treaty of Paris. The American Commissioners, referring to Spanish subjects, natives of Spain, simply said: "Such persons have the fullest right to dispose of their property and remove from the territory or remain therein to continue to be Spanish subjects or elect the nationality of the new territory." (Memorandum annexed to Protocol No. 22.) "They shall also have the right to carry on their industry, commerce, and profession, being subject in respect thereof to such laws as are applicable to other foreigners." (Art. 9 of the treaty of Paris.) The laws applicable to other foreigners were, prior to that treaty, the Law of

Foreigners for the Ultramarine Provinces of July 4, 1870, and article 27 of the Civil Code. The first of these laws in its thirty-ninth article authorized all foreigners to engage in any kind of industry in the Spanish ultramarine provinces subject to the laws prevailing therein, and to practice any profession for which the laws did not require a diploma of proficiency granted by the Spanish authorities. No one can doubt that the legal profession is one of those for the practice of which the law required a diploma of proficiency granted by the Spanish authorities. The second law cited provides that foreigners in Spain shall enjoy the rights which the civil laws accord to Spaniards, subject to the provisions of article 2 of the constitution of the State. Article 2 of the constitution of 1876 establishes the same restriction or limitation as the law of foreigners. Hence if other foreigners could not then engage in the practice of law, and by the express prohibition of the Code of Civil Procedure in force can not do so at the present time, neither can Spanish subjects do so, they being in every respect upon the same footing as other foreigners. If, then, the petitioner upon his departure from these Islands on May 30,1899, did not take with him the nationality of the native inhabitants impressed by the treaty of Paris, which had been in force from the 11th of April of the same year; if he departed as a Spaniard and continued to be a Spaniard, by taking the first course left open by the right of option stipulated in the treaty of Paris, without being affected by the presumptive nationality of the territory arising from the fact of residence and the lapse of the time fixed; if he had not elected to adopt this nationality of the territory by express declaration within the same period; if after the expiration of that period it is expressly provided that the right of option shall no longer be available, and that the only course is naturalization, as to which there has been no legislative enactment; if as a Spanish subject upon equal footing with other foreign residents he can not practice the legal profession under the law either prior or subsequent to the treaty of Paris, it is evident that this court can not regard the petitioner as possessed of the qualifications alleged. The new petition presented by him for admission to the bar of these Islands must therefore be denied, and it is so ordered. Torres, Cooper, Willard, and Mapa, JJ., concur. Ladd, J., did not sit in this case.

OSJurist.org

G.R. No. 21, December 08, 1902

SIMONA BRILLANTES, PLAINTIFF AND APPELLEE, VS. MANUEL BRILLANTES ET AL., DEFENDANTS AND APPELLANTS. D ECIS ION
TORRES, J.: By an order of July 30 of this year the appeal was declared to have been abandoned, and the appellants' rights to have lapsed by the expiration of more than two years. In consequence the judgment appealed was declared a finality. The appellant, Manuel Brillantes, upon the day following the service upon him in his residence of notice of the order, service having been made by the judge of Abra, filed a petition asking for the vacation of the said order, and that he be allowed the term of twenty days or more provided for by article 370 of the old Code of Civil Procedure, for the purpose of coming to an understanding with Solicitor Santos, or some other solicitor, to represent him before this court. Among other grounds he alleged that he was prevented from prosecuting the appeal by force majeure, to wit, by war, and that the term prescribed by article 394 of the law cited had not expired when the force majeure ceased, and that therefore he considered himself entitled to avail himself of the remedy prescribed by article 399 of the same law. The petitioner has not proven, nor has he even offered to prove, that he was prevented from prosecuting his appeal before the expiration of the term of two years by force majeure, or by any cause independent of his own will. For this reason his application, brought conformably to the provisions of articles 395, 399, and 400 of the Code of Civil Procedure, must be overruled, and consequently the vacation of the order prayed for by Manuel Brillantes in his petition of September 20 last is denied, with the costs. The directions contained in the order referred to will be carried into effect. So ordered. Arellano, C. J., Cooper, Smith, Willard, Mapa, and Ladd, JJ., concur.

OSJurist.org

G.R. No. 28, March 06, 1902

IN THE MATTER OF THE ESTATE OF DOLORES GARCES. D ECIS ION

LADD, J.: This is an appeal, from an order of the Court of First Instance of Ilocos Norte, denying the petition of the appellant to raise to the formality of a public instrument ( escritura ) the open will of his deceased wife, Dona Dolores Garces. The will was executed without the services of a notary according to the provisions of articles 700 and 702 of the Civil Code relative to wills executed in articulo mortis. It was reduced to writing and signed by the testatrix and seven witnesses. The court denied the application upon the sole ground that it did not appear that the will, had been executed by one single act. Six of the witnesses to the will were examined by the judge, one witness having died before the hearing. All of the witnesses testified expressly that the will was executed by one single act. Concerning the hour when this execution took place all were not agreed. Four of them testified that it took place approximately between the hours of 6 and 7 of the evening. One testified that it occured at 3 o'clock of the afternoon and one that it was done during the time between 3 o'clock in the afternoon and 8 o'clock in the evening, approximately. The judge deemed these statements, apparently contradictory, concerning the hour when the will was made, as destructive of the force of credibility of the unanimous statement of all of the witnesses to the effect that the will was executed in one single act. We do not so consider the aforesaid statements. The four witnesses who testified that the execution took place between 6 and 7 might have referred onlyas is reasonable to supposeto the formal act of executing the same, or, in other words, to the final reading of the document to the testatrix in the presence of the witnesses, the manifestation by the testatrix of her approval of the same, and the act of signing by the testatrix and the witnesses, which acts naturally would not consume more than a short time. On the other hand, the witness who testified that the execution took place during the period from 3 to 8 might have understood that the execution included all of the procedure, drawing up the will in wrjting, and including all that was done with reference to the same preparatory to the final formalities. The execution, in this sense, might easily have lasted several hours as the witness stated. The last witness, who testified that the execution took place at 3 might have had in mind the first step in the process of the execution, using the term in this last sense. Thus explained the testimony of all of the witnesses is found to agree in the essential particulars and we are inclined to believe that this interpretation is the true one. Even though it were impossible to reconcile the different statements in question, we would not be disposed to give to a contradiction of this sort, which is upon a merely accessory circumstance, the weight that has been given thereto by the lower court. We believe that the due execution of the will was sufficiently proved. And therefore the order appealed from should be reversed and the document which appears in the record is declared the will of the deceased, Dona Dolores Garces, verified by the witnesses, it being understood that this declaration is without prejudice to third persons. The said will is ordered to be inscribed in the proper notarial record or protocol.

Arellano, C. J., Torres, Cooper, Willard, and Mapa, JJ., concur.

OSJurist.org

G.R. No. 32, March 03, 1902

RAMON FECED, PLAINTIFF AND APPELLEE, VS. MARIANO ABELLA, DEFENDANT AND APPELLANT. D ECIS ION
WILLARD, J.: In the present case we find it necessary to determine bat one question, which is as follows: Will the summary writ of recovery ( interdicto de recobrar ) lie against one who is not the party committing the ouster, but is a third party to whom the latter has delivered the realty? The law upon this point has undergone some radical changes. The annotator of the publication La Publicidad, speaking of law 30, title 2, partida 3, says; "The summary writ of recovery introduced by the canonical law, is much more advantageous than the Roman writ 'unde vi ,' because, among other reasons, the former is a real action and will lie, therefore, against any possessor of the thing, while the latter is personal and is directed only against the party who ejects or ousts. For this reason the latter disappeared in practice and there is used only the writ of recovery." The Law of the Partidas declares expressly that the writ will lie against the ousting party or a third person who has received the realty with knowledge of the ouster. There existed likewise in the Roman law another writ called " utrubi" which might be directed against any person whatsoever, even though he be a possessor in good faith, provided that the plaintiff must prove that during the preceding year he had possessed the realty for a period greater than that of the possession of the defendant. (Revista de Legislacion y Jurisprudencia, vol. 81, p. 27.) All of these writs have been abolished by the Law of Procedure of 1855. The Law of the Partidas and the canonical writ disappeared; they were replaced by the provisions of article 724 and the succeeding articles. In this article there is no declaration that the action is a real action against any person; the law does not state that the writ will lie against the disturbing party or a third person who has entered into possession of the realty with knowledge of the ouster. The omission in this place of some such provision when the same formerly had formed a part of the Law of the Partidas is an almost conclusive proof that the intention of the legislator was to repeal such law. In accordance with article 724 it should appear from the complaint "(2) That he has been disturbed in this possession or tenancy, designating the person creating the disturbance." In all of the following articles when there is mention made of the person against whom the writ is directed reference is made only to the party disturbing the possession. (Boletin de la Revista General de Legislacion y Jurisprudencia, vol. 40, p. 530.) The procedure of the two writs having been reformed and made one, and included in a single section of the Code of 1881, promulgated in the Philippines in 1888, the word " despojante " ("disturber") is no longer applied to the writ of retention and in its place was substituted the word " demandado " ("defendant"); but the said word still remains in that part of article 1640 which is expressly applicable to the writ of recovery. According to the Code of Civil Procedure for the Philippines it is necessary that one fact appear from the complaint "whether said acts were done by the defendant or by another at the instance of the defendant." (Art. 1634, No. 2.) It appears to us that this wording expressly limits the action to two personshe who

commits the disturbance and he who has ordered the sameand necessarily excludes the idea that the action can be directed against a third person who is found in possession of the realty within the year. Manresa says: "The action must be directed always against the true author of the disturbance." (Comentarios de la Ley de Enjuiciamiento Civil, vol. 6, p. 140; judgment of October 11, 1898.) In no way can it be inferred that this writ, such as it exists in the Code last mentioned, is a real action. By the express terms of the Code (art. 1638) the court is prohibited from admitting evidence concerning the title to the realty in question. Article 1640 says: "The parties shall have reserved to them all rights which they may have to the property or to the definitive possession thereof, and they may enforce the same in the appropriate action." The fact that the plaintiff is not required to present any title in justification of his claim indicates that it can not be a real action, for the reason that it is difficult to conceive of such action without evidence relating to the title. If we should decide that the writ might be directed against a third person we should have to hold that it would lie even against one who had no knowledge of the ouster. The Law of the Partidas excluded such person, but nothing exists in this law which would justify us in making such an exception. We should have to hold that if a person buys real property from another wlio was in possession and held a perfect title to the same duly recorded, and after acquiring the same enters into possession thereof, the new purchaser might be summarily evicted by a person without any title or claim of title to the realty who would be able to prove that within the year he had had the tenancy of said property and had been ousted from the same by the former owner. We can not give our assent to any such doctrine. There remains for us to determine whether the defendant is the person who actually ousted the plaintiff from his possession. From the proofs adduced it is evident that the properties were attached by the so-called government of Malolos; the agents of this organization took possession of the properties and subsequently delivered them to the defendant. The questions directed by the plaintiff to all of the witnesses who testified in his behalf take this fact for granted. The question is as follows: "Whether Abella took possession after the raising of the attachment levied upon said properties by the alleged Filipino government." Nicolas Vivente Ortiz, as a witness called by the plaintiff, testifies that "the only thing which he knows is that said properties were attached by the Filipino government, but he does not know whether or not Mariano Abella took possession of the same." The plaintiff introduced a letter dated November 21, 1898, in which the local chief of Iriga notified the resident provincial chief that on that very day he had released the deposit of the attached properties and had delivered the same to the agent of Abella. This letter having been introduced by the plaintiff we have the right to presume that it refers to the properties under consideration here. There is no proof whatever in any part of the record that Abella has ever ousted the plaintiff from these properties. But the plaintiff alleges that the defendant has confessed the ouster in his answer, or has failed to deny the same. In view of the fact that such an admission is directly contrary to the evidence, we should not consider the same as made unless the answer clearly discloses such admission. It is true that he admitted clearly in his answer the possession of the defendant in the capacity of administrator, but this is not the question under consideration. Is it admitted that the plaintiff was ousted by the defendant? The answer, after alleging that by virtue of the attachment levied by the Spanish Government these properties were usurped by the plaintiff, states: "And upon restoring to the heirs of the father of my client his property which had been attached there were delivered to him these properties." The use of the words "restore" and "deliver" in this clause can not be reconciled

with the idea of a forcible ouster by the heirs of Sefior Abella. These words clearly indicate that some third party intervened between Feced and Abella, depriving the former of the properties and delivering the same to the latter. This interpretation, as we have seen, is completely in accord with the facts as they have been established by the evidence. This clause is a sufficient denial of the ouster alleged in the complaint. For the foregoing reasons we decide: (1) That the summary writ of recovery lies only against the ousting party and not against a third person who has received the realty from the former; and (2) That the evidence in this case discloses that the defendant is not the ousting party. The judgment, therefore, is reversed and the defendant absolved from the complaint without special ruling as to costs in either instance. It is so ordered. Arellano, C. J., Torres, Cooper, Mapa, and Ladd, JJ., concur.

OSJurist.org

G.R. No. 34, December 31, 1902

PABLO PALMA, PLAINTIFF AND APPELLEE, VS. JUAN CAIZARES, DEFENDANT AND APPELLANT. D ECIS ION
TORRES, J.: On the 28th of April, 1900, Attorney Arsenio Cruz Herrera, on behalf of Pablo D. Palma, filed a complaint to which was attached a note dated on the 21st of July, 1899, signed by Francisco Ong, as attorney in fact of Juan Caizares, indorsed by the payee, Saturnina Salazar, to Palma. He also attached, as an exhibit, a notarial act. The complaint was filed for the purpose of instituting an ordinary action against Caizares to recover judgment against him for the sum of 4,500 pesos, the amount indicated on the indorsement of the note as still due and unpaid, together with interest at the legal rate and the costs of the action. The plaintiff had formerly made an unsuccessful attempt to bring an executive action. The facts alleged in the complaint were that as Cafiizares has failed to pay the second and third installments of $500 each on account of his indebtedness of 5,000 pesos, evidenced by the said note, and by reason of the fact that the payee, Salazar, needed the money, she had indorsed the said note to the plaintiff, Palma, with the consent of Caizares; that Palma had paid the woman, Salazar, $4,500 in currency, as shown by the indorsement of October 20, 1899; that the debtor, Cafiizares, Up to the date of the complaint, had not paid the debt so indorsed in the manner agreed upon between himself and the original creditor, notwithstanding demand to that end made upon him by the creditor, Palma; that, as appears from the preliminary proceedings had for the purpose of instituting an executive action, the debtor did not allege that the document in question was false, nor did he expressly deny the validity of the claim; that the Chinaman, Francisco Ong, a brother-in-law of the debtor, and who lived with the latter, signed the said note by order of the debtor, and that he admitted before a notary public on the 17th of April the authenticity of his signature and rubric appearing at the foot of the said document, all of which appears from the said notarial act. The plaintiff also argued as the law applicable to the case that the debtor, Juan Caizares, had impliedly acknowledged and confessed the legitimacy and certainty of the note and of the indebtedness mentioned, because he did not assert that the document was a forgery, nor did he deny the existence of the credit; that it was not probable, in view of the importance of the amount and the recent date of the note, that he should be unable to remember, as he had stated, whether he did or did not owe this sum to Saturnina Salazar de Abreu, or whether his brother-in-law, Francisco Ong, had or had not executed this instrument by his orders; that obligations arising from contracts have the force of law and should be performed as provided by article 1091 of the Civil Code, and that consequently Caiiizares is under obligation to pay the said sum of f 5,000 at the rate of $500 per month, from the 21st of July, 1899, in accordance with the agreement; that as he only paid the first installment it is evident that he can be required to pay, not only the installments overdue, but also the whole remaining sum of $4,500, in accordance with the provisions of paragraph 1 of article 1129 of the Civil Code, in addition to interest at the legal rate of 6 per cent as damages, he having been in default since the 7th of November, 1899, upon which date demand was first made upon him in court at the instance of Palma (arts. 1100 and 1108 of the Civil Code); that subrogation, according to article 1212 of the same Code, transfers to the subrogated creditor the claim, with all the rights

thereto annexed, against the debtor, and that therefore Palma, who was subrogated to the said credit by the indorsement in his favor by Salazar, can maintain his action to recover from Caizares the whole sum of $4,500, with interest at 6 per cent per annum, in accordance with the undertaking of the debtor. The notarial act referred to contains a transcript of the note on page 87, for $5,000, in favor of Saturnina Salazar, with the promise to pay $500 per month. The note bears date the 21st of July, 1899, and is signed by Francisco Ong as attorney in fact of Juan Caizares. On the back of the note is an indorsement directing payment to the order of Pablo D. Palma of the sum of $4,51)0 still unpaid by the debtor, Caizares, which sum Saturnina Salazar, who signs the indorsement, declares she received in cash from Palma in Manila on the 20th of October of the same year. On the margin of the back of the paper there is a note of the payment of the sum of f 500 on the 20th of August At the instance of Palma, a notary public made demand upon Francisco Ong to state whether he recognized as his the signature and rubric appearing at the foot of the note, to which the said Ong replied that he recognized the said signature and rubric as authentic, adding that he executed this document by the order of the woman, Salazar, who had won from his brother-inlaw, Caizares, in a monte game played in a house on Calle del Rosario, Binondo, the sum of money expressed in the said note. Attorney Alfredo Chicote, on behalf of the defendant, Juan Caizares, filed an answer to Palma's complaint, setting up the following facts: That in a monte game in which Caiiizares, Salazar, and several other persons took part on the afternoon of the 22d of June, 1899, in the house belonging to the Chinaman, Lim-Cong-Quian, Caizares lost the sum of $5,000, which was won by Salazar; that this sum not having been paid the creditor made persistent demands for a settlement, and finally succeeded in obtaining the document in question, which, by order of Caizares, was drawn and subscribed by the Chinaman, Francisco Ong, the document referred to being the same attached to the complaint; that it was false that the said document was the result of any mercantile operation or transaction between Caizares and Salazar, or that any mercantile transaction had ever transpired between them, or between the plaintiff and the defendant; that it was false that Caizares had received from Salazar as a loan the money mentioned in the note, or that he had made any agreement whatsoever with respect to the said note, which had no other value than that it records a sum of money won in a monte game; that he denies all the allegations of fact contained in the complaint in so far as the same are in contradiction of or do not agree with those stated in the answer. As the law applicable to the case, the defendant contended that a debt can not be regarded as confessed unless it appears clearly and expressly that the debtor admits it, and that in such a case the debt can not be regarded as confessed by the mere fact that the debtor has refrained from alleging the falsity of the document by which the indebtedness is evidenced, because such a confession must be express and not implied; that even if it can be held that a debtor has acknowledged his indebtedness' by reason of his refusal to answer interrogatories or by reason of an evasive answer, this declaration must be made by a court and must be based upon the refusal to testify, and after formal judicial demand (arts. 569 of the Law of Civil Procedure and 1220 of the Civil Code ); that there is no contract unless the essential requisites for its validity are present, among which w a lawful consideration, not opposed to the law or to good morals (arts. 1261 and 1275 of the Civil Code); that as the consideration in this case arises from a gambling gamean illicit considerationit follows that the obligation expressed in the document referred to could produce no legal effect and is absolutely unenforceable, there being

no valid contract (art. 1278 of the Civil Code); that the law does not allow any action for the recovery of money won in a game of chance, and that losses in a prohibited game, such as monte, do not produce any civil obligation (arts. 1798 and 1801); that the subrogation is not legal and does not transfer the credit with the rights thereto annexed when the debtor has not expressly or by implication assented to the payment made by a third person not interested in the obligation (arts, 1209, 1210, and 1212 of the Civil Code); that the burden of proof of obligations rests upon him who demands their performance and that the marginal note; is only of effect in so far as it may be favorable to the debtor; that all legal value and effect is denied this subrogation by the defendant, and that the same is impugned as civilly false, and concludes with the petition that the action be dismissed. In the notarial act attached to the answer of the defendant it appears that at the instance of the Chinaman, Francisco Ong, the notary public, Calixto Reyes, recorded in that act the statements of Emiliano Boncan, the Chinaman, Yap Pueco, the Chinaman, So-Tiaoqui, the Chinaman, Alejandro R. S. Liocsin, the Chinaman, Lu-Hwun, and the Chinaman, Lim-Cangui, who, having been informed of the four questions addressed to them, replied that on the evening of the 22d of June, 1899, they were engaged in a monte game with Juan Caizares and Saturnina Salazar, in the house of Lim-Cong-Quian, upon which occasion the woman, Salazar, won from Caizares the sum of $5,000,which, at the termination of the game, was not paid; that to avoid trouble Caizares consented to the demand of his creditor that he execute a note, and that he did so, giving a note for |5,000,with the obligation of paying this sum at the rate of $500 per month; that this note was dated July 21 and was signed by Francisco Ong, and that this the last three witnesses knew, because they were in Ong's house, the first three stating that they did not remember the day of the month, but had been informed thereof by the woman, Salazar, and that the statement was subsequently confirmed by Caftizares and by Francisco Ong. Counsel for the plaintiff, Palma, in his replication, repeated the demand made by his complaint, alleging that the story of the monte game was wholly false and was a pure invention of the defendant, who, further, when demand was made upon him to recognize the document, did not allege that the debt arose from a gambling game, and, reasserting the facts set up in the complaint, alleged further that the credit in question having been indorsed by Salazar to the plaintiff, Palma, with the consent of Cafiizares, the latter on various occasions requested the creditor to extend the time of payment, and that the plaintiff had attempted an act of conciliation with the defendant, as shown by the attached certificate. He also reasserted the propositions of law relied upon in the complaint, and added that the subrogation of Palma to the rights of Salazar was in accordance with the provisions of articles 1210 and 1212, in connection with article 1528 of the Civil Code, and that when the act of conciliation was attempted with Caizares the latter failed to appear, the plaintiff therefore believing that an attempt to get an amicable settlement was useless. Counsel for the defendant, Caizares, in his rejoinder added to the facts stated in the answer that he had absolutely and expressly denied that Caizares had consented to or approved, expressly or impliedly, the payment alleged to have been made by the plaintiff to the woman, Salazar; furthermore, that he denied that such a payment had been effected, and that be considered at all binding the subrogation whereon plaintiff based his claim, and denied that Caizares had at any time asked Palma for an extension of time, or that he had had dealings with Palma with respect to the sum in suit, denying the facts alleged in the complaint and

rejoinder, and reasserted the propositions of law relied on in the answer. An examination of the evidence produced by both parties in the course of the trial discloses, by the testimony of several unimpeachable witnesses, that on the afternoon of the 22d of June, 1899, a gambling game was played in the house of the Chinaman, Lim-Cong-Quian, in which, among others, Saturnina Salazar and the Chinaman, Juan Caizares, took part; that the latter, having lost in the game, became indebted to the woman, Salazar, in the sum of $5,000, which, as a result of repeated demands of the creditor, the debtor recorded in a note dated the 21st of July, 1899, signed by Francisco Ong, a brother-in-law of Caizares, as the attorney in fact of the latter. Caizares paid his creditor, on the 20th of August of the same year, on account of the debt, the sum of $500. On the 20th of October following Saturnina Salazar, who affirms that she received from Pablo Palma the sum of $4,500 still owing by Cafiizares, indorsed the instrument to Palma, who, by virtue of the indorsement, and availing himself of his rights as subrogated creditor, demanded payment of tlje said sum. It is indubitable that the indebtedness of 5,000 pesos expressed in the note referred to arose in a monte game, a game of chance, and therefore expressly prohibited by law. As the law does not allow an action for the recovery of money won in such games (art. 1798 of the Civil Code), it follows that the action brought by Palma can not be maintained, nor can any judgment be rendered by the courts directing the payment of the sum claimed in the complaint. The undertaking expressed in the note executed by a third person in favor of the woman, Salazar, by order of Caizares does not constitute a ratification or confirmation of the obligation contracted to pay the sum lost in a monte game. Saturnina Salazar conveyed or assigned the credit of $4,500 to Pablo Palma, as appears from the indorsement on the note, but it has not been satisfactorily proven that the debtor, Juan Caizares, gave his consent or approval to the subrogation. The testimony of the witnesses presented by the plaintiff is not sufficient to overcome the absolute denial of Caizares. These witnesses were unable to testify that they were present when the indorsement was written and the note assigned, or that they saw the delivery of the $4,500 by the assignee to the assignor. Their testimony does not show that the defendant consented to or approved of this assignment. It follows, therefore, that the plaintiff, Palma, in this suit has brought the same action which might have been brought by the woman, Salazar, and as that action can not be maintained, for the reason that the obligation of the supposed debtor, because of its vicious origin, is not enforceable in court, it follows that no recovery can be had in this suit. For these reasons we are of the opinion that the defendant, Juan Caizares, is under no obligation to pay to Pablo Palma the sum of $4,500 represented by the note, and the action is therefore dismissed, without special condemnation as to costs. So ordered. Cooper, Smith, Willard, and Ladd, JJ., concur. Arellano, C. J., and Mapa, J., dissent.

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G.R. No. 35, February 11, 1902

MIGUEL FABIE, PLAINTIFF AND APPELLEE, VS. FELICIANA DE GUZMAN, DEFENDANT AND APPELLANT. D ECIS ION
LADD, J.: This is an appeal from the judgment given by the Court of First Instance of Binondo in favor of the plaintiff in the action for eviction commenced for the purpose of recovering the possession of a basement story occupied by the defendant. The plaintiff alleged that he was the owner of the house of which the basement story formed a part and that the defendant had been occupying the said basement as a tenant at will without paying any rent therefor and that he had given her a month's notice to vacate the place. The plaintiff alleges that the property belongs to him by virtue of the will of Dofia Tiburcia Ortiz, deceased, who at the time of her death was the owner of the same. The plaintiff has filed a copy of the notarial instrument from which it appears that the Court of First Instance of Binondo had ordered the registration of a document which is said to be the will of the said party by which the latter constitutes the plaintiff her universal heir. At the trial before the lower court the defendant asked the stay of the proceedings for two reasons: First, that the defendant had moved for an injunction permitting her to retain and recover the possession of the house in question as against the plaintiff and that the defendant had moved the Court of First Instance of Tondo from which the judgment was sought for the consolidation of those proceedings with the present action, and second, that the defendant had filed a complaint before the Court of First Instance of Intramuros for the falsification of the will of Doa Tiburcia. The court below, without having previously ruled upon the petition for stay of the proceedings, ordered that the defendant answer the complaint on its merits. The attorney for the defendant then interposed two dilatory exceptions, namely, the want of jurisdiction of the court and the pendency of another actionthe last based upon the fact that there was stillpending the injunction as well as the demand for the exhibition of the will of Dofia Tiburcia and a probate proceeding, which she stated were pending in the court of Quiapo. From copies of the documents taken from the judicial records filed by the defendant at the trial held in the court below it appears indeed that the said injunction proceeding had been commenced. Concerning the petition for the consolidation as well as the proceedings before the Court of Quiapo, there were no proofs other than the statement of the attorney. No proof whatever was presented concerning the criminal complaint except the statement made by the attorney that the same had been filed. It appears from the record that the defendant in spite of having been given by the court full opportunity to do so did not answer to the merits of the complaint. The plaintiff had the right therefore to have judgment dictated in his favor unless the dilatory exceptions interposed by the defendant should be sustained, or unless the court had committed error in not staying the proceedings in order to await the determination of the motion for consolidation as well as of the criminal case. We believe that the dilatory exceptions were properly overruled'.

The jurisdiction of the court appears to be unquestionable, since this is one of the cases included in No. 2 of article 1545 of the Code of Civil Procedure and the property is situated within the jurisdiction of the court. With reference to the exception of the pendency of another action, we understand that the defendant can not avail herself of this objection in a summary proceeding like the present one. Supposing that a petition praying for the consolidation of these proceedings with those for injunction had been presented, we are of the opinion that it should have been denied (art. 148, Code of Civil Procedure), and therefore the course of the court below was proper in refusing to suspend the proceedings on such grounds. Inasmuch as the defendant did not prove and in our opinion did not even allege in the record that the criminal complaint had been admitted, she therefore had no right to stay of proceedings in accordance with the provisions of article 497 of the Code of Civil Procedure. In his argument at the hearing of this appeal, the defendant asked for the hearing of evidence at second instance in order to set forth the facts concerning the criminal complaint. This request should be denied on the ground that it has not been declared that the proofs would disclose that the said complaint had been admitted, and furthermore because it does not appear that the defendant has been prevented from presenting said proofs in the court below. (Art. 845 of the Code of Civil Procedure.) The judgment is affirmed with costs taxed against the appellant. Arellano, C. J., Torres, Cooper, Willard, and Mapa, JJ., concur.

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G.R. No. 48, March 07, 1902

MILLAT, MARTY & MITJANS ET AL., PLAINTIFFS, VS. THE ATTORNEYGENERAL, DEFENDANT. D ECIS ION
TORRES, J.: The four plaintiffs brought their respective actions against the resolution passed by the Intendencia General de Hacienda of the former Spanish Government in a decree of August 21, 1895, for the reason that the fine of 20 per cent upon the owners of the contraband silver found aboard the steamer Don Juan was made applicable to that part of the silver which was not circulating Mexican currency in the manner prescribed in said decree; and for the reason that the other plaintiffs, Medina, Madariaga, and Garcia Gutierrez were denied recognition as the captors of said silver and were consequently denied the right to a share of the fine imposed by the Intendencia General. The several complaints have been drawn up in accordance with the special act which controls the maintenance of an action of administrative contention. By order of May 9, 1896, affirmed by order of March 26, 1897, it was directed that the four actions be consolidated. To these complaints the Attorney-General made answer praying the Confirmation of the decree complained of. The action having proceeded according to the due course of law, the written discussion was declared at an end and the period of proofs concluded by order of May 1 of the same year (1897). Subsequently by a further order of the 11th of the same month the parties were ordered to be cited for a decision, together with the setting of a day for the trial. This was the status of the litigation upon the dissolution of the Spanish tribunal which had jurisdiction over the same. The matter was then placed upon the calendar of this court for the setting of a day for trial. Thereupon Attorney J. B. Early appeared on behalf of Don Antonio Iribar and Messrs. Early & Levering on behalf of the Chinaman Sy Guian and demanded that there be paid to Iribar the third part, or such other portion as the law awarded, of the silver moneys and other properties salved from the wreck of the steamer Don Juan by said Iribar, who was captain of the steamer San Antonio, which effected the salvage of the burned steamer together with its passengers' and cargo, and that there be paid to the Chinaman Sy Guian, owner and manager of the steamer San Antonio, that portion of the valuables and effects salved which belonged to him for the expenses of the salvage. The 25th day of February last having been designated for the hearing of this action, on the 10th day of said month the attorneys Montagne & Dominguez, and the Attorney-General presented a writing setting forth that it had been agreed that the plaintiffs Messrs. Millat, Marty & Mitjans should desist from the action pending against the above-mentioned resolution so far as the same concerned themselves, and the said attorneys for that reason moved that the same be deemed dismissed on behalf of their clients and that the resolution of the defunct Intendencia General be declared final and its execution be ordered. For the purpose of this motion a hearing was had on February 11, and at that hearing the attorneys, Montagne and Early were heard. The latter opposed the dismissal of the litigation and asked that the motion of Messrs. Montagne & Dominguez be denied and that the stipulation made in the name of Millat, Marty & Mitjans be disregarded for the reason that Iribar had a

right to the one-third part at least of the silver which was salved, and the Chinaman Sy Guian, as owner of the steamer San Antonio, likewise had a right to recover the expenses incurred in the salvage and to collect salvage money according to law. Whatever may be the rights which the captain of the steamer San Antonio, Don Antonio Iribar, and the Chinaman Sy Guian, as owner of this steamer, have respectively for the salvage of the destroyed steamer Don Juan the action which accrues in favor of each of them should be litigated in a suit which lies in first instance and in no wise in this court, especially not in a suit in the nature of a contentious-administrative action. There exists no law, either general or special, which confers jurisdiction upon this court under which it can take cognizance as a court of first instance of the questions raised by reason of the salvage of a vessel destroyed by fire and of the expenses incurred by the salvage of the same and of her cargo and passengers. The actions which might have accrued to the aforesaid Iribar and Sy Guian do not partake of the nature of contentious-administrative proceedings, nor can they be sustained in view of the character of the same, in accordance with the legal procedure provided for a contentious administrative suit. Article 4 of the law of November 23, 1888, provides conclusively that questions of a civil or criminal character appertaining to the ordinary jurisdiction or to other special jurisdictions are questions which, among others, are not within the cognizance of the contentious-administrative courts; and it is apparent at first sight that the questions which may be raised by the claims made incidentally by the representatives of Iribar and Sy Guian are of a civil nature, inasmuch as the respective rights which are supposed to have been violated are of such character. Furthermore, the aforesaid Iribar and Sy Guian are not parties, and have never been parties, to the present contentious-administrative suit, since they have filed neither appeal nor complaint, nor have they intervened in any manner in this suit during its entire course from its commencement until the same was closed for the hearing. For this reason there is no legal ground upon which the court may accede to the demands of the said parties, or even take the same into consideration in the decision which will be made at the proper time. With reference to the petition made by the attorneys Montagne & Dominguez in the name of Messrs. Millat, Marty & Mitjans, dismissing the action and the complaint interposed against the above-mentioned decree of the defunct Tntendencia General de Hacienda, and asking for the execution of said decree, with which said petition the Attorney-General agrees, no objection is offered to the granting of the same. The provisions of the law concerning administrative contentions do not prohibit nor are they opposed to the dismissal of an action or complaint filed in accordance with the same, neither do the general provisions of the Law of Civil Procedure, which controls as the law supplementary to the legislation concerning administrative contentions prohibit the parties from desisting from the prosecution of the complaints, claims, or actions they have interposed. On the contrary, expressly authorizing the same, they provide that after certain proceedings had, such dismissals shall be admitted and the suit deemed at an end. Therefore, by virtue of the foregoing considerations the representatives of Messrs. Millat, Marty & Mitjans must be deemed to have withdrawn from the prosecution of the complaint filed against the resolution made in the decree of August 21, 1895, by the Intendencia General de Hacienda of the former Spanish Government, and it is so decided, with the one-fourth part of

the costs incurred in the suit up to folio 488 and those by them or for them incurred subsequent to said point taxed against the said representatives; the motion of counsel for Don Antonio Iribar and the Chinaman Sy Guian is denied, with the costs of the motion taxed against the said parties; and it is directed that this proceeding be called at the next general term in order that it may be set for trial and hearing be had. It is so ordered. Arellano, C. J., Cooper, Willard, Mapa, and Ladd, JJ., concur.

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G.R. No. 55, March 19, 1902

THE UNITED STATES, COMPLAINANT AND APPELLEE, VS. MARIANO RICAFOR, DEFENDANT AND APPELLANT. D ECIS ION
LADD, J.: The defendant, Mariano Ricafor, was declared guilty by the Court of First Instance of Pangasinan of the crime of assassination committed without any generic circumstance qualifying the criminal responsibility and was sentenced to life imprisonment ( cadena perpetua). The cause is brought up to this court for review. The Solicitor-General concurred with the judgment of the trial court and asked that the same be affirmed. It appears from the evidence that on the night of a certain Friday in the month of March, 1900, the defendant and Gabino Marquez, in company with Clemente Oli, Marcos Nares, and Cornelio Tabajonda, went to the house of Pedro Lorioda, within the limits of Pozorrubio, Province of Pangasinan; that Oli, Nares, and Trabajonda, who it appears were asked or compelled to accompany the defendant and Marquez for that purpose called Pedro Lorioda and his brother, Juan Lorioda, out of their house or in some manner induced the latter to permit the defendant and Marquez to enter the house; that the defendant and Marquez took possession of the two Loriodas and, still accompanied by Oli, Nares, and Tabajonda, conducted them to the fields of the barrio of Alipangpang within the confines of Pjozorrubio and to a place in which there was a well. Upon arriving at this spot the defendant and Marquez bound their victims and killed them by inflicting wounds upon the neck with bolos, the defendant killing Pedro and Marquez Juan. They then threw the bodies into the well. The abduction of the two Loriodas by removing them from the house is proved by the statement of five eyewitnesses, namely, Oli, Nares, Trabajonda, and the wife and daughter of Pedro Lorioda, The remaining facts are proved by the statements of Oli, Nares, and Trabajonda, who, if they are to be believed, went, as has been stated, from the house to the fields with the accused and Marquez after the abduction of the Loriodas, and they were present while the latter were bound and killed. It appears that these three individuals were accomplices in the commission of the crime, but as their statements were corroborated in large part that is to say, with reference to what took place at the houseby other witnesses, and inasmuch as the latter were not impeached in any sense, and as we must presume that there was nothing in the manner of giving these statements at the trial which would affect their probability (General Orders, No. 58, art. 55), we are of the opinion that the same should be given absolute credence as was done by the trial court. We attribute little importance to the fact that the motives for the crime were not disclosed. In this, as in almost every crime apparently without motive, the motives which might exist are innumerablemotives unknown perhaps to the relatives of the deceased who testified at the trial and not even disclosed to the three who cooperated in a certain measure in the crime. The fact of having bound the murdered persons, inasmuch as it hindered their resistance or rendered it impossible and had for its direct and special object the assurance of the execution of the crime without personal risk to the defendant and Marquez, constitutes the qualifying circumstance of treachery, thus converting the homicide into assassination.

A majority of the court is of the opinion that the circumstance of premeditation should also be taken into account. The facts as they appear in the record and as set forth above are scanty but suffice to demonstrate the existence of a determined plan to commit the assassination conceived by the defendant and Marquez at the latest at the time of taking hold of the Loriodas and starting with them for the place where the crime was committed. It does not appear what time elapsed between the effecting of the abduction at the house and the arrival of the captors with their victims at the well, but it is to be supposed that the time was sufficient, in the language of the supreme court of Spain, for the "conscience to conquer the determination of the will." (Opinion of November 10, 1894.) Then followed the operation of binding the deceased, affording a new opportunity for reflection upon the crime which the defendant was about to commit. In a judicial sense we believe that there was a complete opportunity for meditation and reflection, just as much as if days or weeks had elapsed between the forming of the plan and its execution. It is true that the premeditation which the law prescribes must be "evident"that is, must be based upon external acts and not presumed from the mere lapse of time. We do not doubt that such external acts exist in this case. In the first place there was the deceit practiced in order to obtain possession of the persons of the murdered men; then came the abduction, followed by the conveyance of the deceased to the place where the crime was committeda place (and this is in our opinion a very significant circumstance) which lent itself to the execution of the crime with respect to the concealment of the bodiesand after that the binding of the victims, which could not have been done with any other object than that of facilitating and assuring the commission of the crime. If all these acts, which evidently form part of a single design, directed from the beginning to the end to the realization of the same final result, would not constitute reflective meditation in the judicial sense, there would then be very few eases of this character in which it would be possible to deduce the existence of the external manifestations of the mental functions in human conduct. Any interpretation of the acts of the defendant to which we have referred excluding the idea of premeditation we do not conceive to be convincing. (See the opinion of Justice Willard in the cause of the United States vs. Teodoro de Leon, supra ) A majority of the court being of the opinion that the defendant is guilty of the crime of assassination committed with the aggravating circumstance of premeditation, without any extenuating circumstance, and it being our opinion that there should not be considered as an extenuating circumstance in favor of the culprit the circumstance of race as established in article 11 of the Code, in view of the nature of the crime and the conditions of the defendant, the sentence of the court below is annulled and the defendant condemned to the penalty of death and to the payment of an indemnity of 1,000 pesos, Mexican currency, to the widow and heir of Pedro Lorioda, and in the event that this sentence be not carried out by reason of the pardon of the defendant, to the accessory penalties of perpetual, absolute disqualification and subjection to the vigilance of the authorities during his life, unless said penalties are expressly included in the pardon. Let the cause be remanded to the Court of First Instance of Pangasinan for the execution of this sentence. It is so ordered. Arellano, C. J., Torres, Cooper, and Willard, JJ., concur. Mapa, J., dissents.

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G.R. No. 59, January 11, 1902

THE UNITED STATES, COMPLAINANT AND APPELLEE, VS. SIXTO ARRIBAS ALCACID, DEFENDANT AND APPELLANT. D ECIS ION
TORRES, J.: On a certain day in the month of May, 1899 (the exact date does not appear), the accused, Sixto Arribas, met Victoriano Aon walking upon the highroad of the barrio of Pongol, in the capital of Ilocos Sur Province, in company with Tiburcio Alcante, Urbano Alnairo, Geronimo Arruisa, and Hilario Arribas Aon upon noting the presence of Arribas, ran away, whereupon the latter pursued him, bolo in hand. Upon overtaking Aon in a lot in which he had taken refuge he assaulted him, inflicting several wounds, some of them necessarily fatal, according to the medical report, and from which Aon then and there died. His companions, following him to the lot to see what was taking place, found him a corpse, covered with wounds, but did not find the accused, whom they supposed to be the author of his death, at the place of the assault. These facts, fully proven in the case by ocular inspection, expert testimony, authentic documents, and the testimony of trustworthy witnesses,constitute the crime of homicide, penalized in article 404 of the Penal Code, for the reason that the wounds of Victoriano Aon were the immediate cause of his death. Although the accused did not plead guilty of the homicide in question, it is altogether beyond doubt that Sixto Arribas was the sole confessed and convicted author by direct participation of the violent death of said Aon.This is verified not only by his own statement that he had pursued the deceased and assaulted him with the bolo which he carried, but also by the testimony of three witnesses who witnessed the pursuit which preceded the assault and who later saw the corpse of the deceased with several wounds, so that the witnesses believed that Arribas and no other was the aggressor and the author of the death of the deceased Aon. In the commission of this crime there is to be considered the circumstance provided for in article 11 of the Code and the extenuating circumstances 5 and 7 of article 9 of the Code, since it is an established fact that the deceased attempted to rape the wife of the accused, Perpetua Quejismundo, and on being surprised leaped through the window of the house and fled, all of which is confirmed by three witnesses who had knowledge of the facts, one of whom having heard the cries of the wife of the defendant appealing for help. The conduct of the deceased, who fled at sight of the accused, is also significant as tending to show that he had committed some grave offense against the latter. Although there is no proof of the second attempted assault upon his wife, alleged by the prisoner in his defense, to justify the attack made upon the deceased, it is altogether incontrovertible, judging from the merits of the record, that the defendant attacked and killed Victoriano Aon to vindicate a grave offense to his honor and that of his wife, and was impelled to the commission of the crime by the powerful passion of jealousy, and thus acted while under the influence of passion and obfuscation. There being no aggravating circumstances, and the two mitigating circumstances mentioned being present in a marked degree, rule 5 of article 81 of the Code is to be applied by imposing upon the accused the minimum grade of prisidn mayor, the penalty next below that assigned in article 404 of the Code.

Therefore, tke judgment reviewed should be affirmed in all respects with the costs of appeal taxed against appellant, and with approval of the order dictated in the incident of attachment, declaring defendant insolvent It is so ordered. Arellano, C. J., Cooper, Willard, and Mapa, JJ., concur. Ladd, J., did not sit in this case.

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G.R. No. 65, February 13, 1902

THE UNITED STATES, COMPLAINANT AND APPELLANT, VS. JOSE REGALADO Y SANTA ANA, DEFENDANT AND APPELLEE. D ECIS ION
TORRES, J.: For failure to pay the sum of 3,929 pesos and 60 cents, the amount specified in a promissory note executed by Don Jose Regalado y Santa Ana in favor of Messrs. Luchsinger & Co., the latter commenced an executive action in 1893. A preliminary attachment was ordered and was levied upon, among other properties, a warehouse with galvanized iron roof together with the land upon which it was located situated on the sea wall of the city of Iloilo. Nevertheless this attachment was not recorded in the register of property. When the decree of sale of the property was made in the executive action the order could not be carried out in spite of the fact that this land and warehouse had, by order of the court, been put in the possession of Don Juan Yncher as receiver or depositary, because the defendant had sold the attached property in 1900, as unincumbered for the sum of 15,000 pesos to his son, Don Pedro Regalado. Both the vendor and the purchaser of the property knew that it had been attached by an order made in the executive action which was still pending. This transfer was made without the consent of the plaintiff's creditors and without the authorization of the court or the knowledge of the receiver, and upon these grounds attorney Jose Ma, Gay, in the name of the creditors whose interests were supposed to be defrauded, filed a complaint against the defendant charging him with the crime of swindling ( estafa). The failure to record in the register of property the attachment levied upon the property belonging to the defendant, Don Jose Regalado y Santa Ana, is a defect so vital that it prevents us from holding that the crime of swindling has been committed by the disposal of the property in the sale made by the defendant to his son, Don Pedro Regalado. Such recordation is obligatory, not optional, and does not depend upon the discretion of the court or the will of the plaintiff in view of the imperative character of the rule laid down in article 1435 of the Code of Civil Procedure, which makes express reference to a preceding article, N6. 1391, which provides that the attachment of real property shall be effected only by a writ addressed to the registrar directing that the attachment be opportunely inscribed in the register of property in accordance with the prevailing provisions of the law. It follows, therefore, that no incumbrance exists. As a matter of law there can be no levy upon real propertyalthough it was otherwise before the enactment for these Islands of the Code of Civil Procedure which went into effect on the 12th of November, 1888unless the attachment appears inscribed in the register of property in the manner provided by article 43 of the Mortgage Law. The mere issuance of the attachment made by virtue of a judicial order in an executive action or in proceedings for a preventive attachment, or in proceedings for the execution of a judgment, is not sufficient to affect any property with an incumbrance or subject it to the claim sued upon. For such purpose it is essential that the inscription be made. For the reasons given it must be held that the fact that the defendant, Don Jose Regalado, conveyed the said warehouse together with the lot on which it stands, which were attached at the instance of Luchsinger & Co., does not constitute the crime of swindling, because in spite of

the order of attachment there was no legal or effective incumbrance upon said real property for the reason that this attachment wag not inscribed in the register of property. This is an essential requisite, failing which the property can not be deemed incumbered and the defendant who sold the same to a third person can not be deemed included within the terms of article 537, paragraph 2 of the Penal Code. Therefore, in our opinion the judgment appealed from should be affirmed with the costs de oficio. It is so ordered. Arellano, C. J., Cooper, Willard, and Ladd, JJ., concur. Mapa, J., did not sit in this case.

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G.R. No. 77, May 01, 1902

THE UNITED STATES, COMPLAINANT AND APPELLANT, VS. JOAQUIN SANTA MARINA, DEFENDANT AND APPELLEE. D ECIS ION
ARELLANO, C.J.: This case was commenced upon the complaint of the attorney for Antonio Ventura, the husband of Margarita Lopez, in which he accuses Joaquin Santa Marina of having falsified a private document. It is charged that on the 13th of April, 1898, in the liquidation, partition, and adjudication of the estate of the late Juan Grau by the accused, as testamentary executor, he entered the sum of 9,330 pesos and 21 cents as the amount of Mr. Grau's interest in the "La Insular" factory. This denunciation was not accepted or supported by an information by the prosecuting attorney, even after he admitted that he was a party to the continuation of the investigation directed by the former Supreme Court. The only authority for the act of the executor, Santa Marina, in entering the sum of 9,330 pesos and 21 cents in the liquidation of the Grau estate as the total amount of the interest of the deceased in the La Insular factory is a balance sheet of the factory. Hence the falsity must have consisted in the balance due as shown therein being some sum other than the amount entered by the executor, Santa Marina, in the general statement of property of the Grau estate. This is the only means by which the truth or falsity of this balance, or the amount of Grau's share which should have been included in the estate, can be proven. The complainant in the petition presented on the 2nd of May, 1901, for the purpose of extending the investigation of the acts denounced, writes on folio 57 a paragraph which commences as follows: "In the balance of the 30th of June, 1892, which shows the sum of 9,330 pesos and 21 cents as Mr. Grau's share, the stock on hand is put in at cost price, whereas the inventory should have been made by including the stock and fixtures on hand at their actual value at that time, for the purpose of determining what Mr. Grau's interests were on leaving the partnership." From the first words written it evidently appears that the amount included by the executor, Santa Marina, in the liquidation of the Grau estate was exactly the same as that which appears in the balance of the Insular factory's books from which this item was taken. Hence it is evident that the statement made by the executor in the liquidation of the testamentary estate agrees with the balance on the books of the Insular factory. Whether this amount so entered on the books of the factory was or was not the entire interest of the partner Grau, or whether or not the calculation made by Santa Marina, the manager of the Insular factory, was correct, is an entirely different question and one which must be investigated by a different process. In this case the only question which has been discussed is the conduct of the executor in the liquidation of the Grau estate with respect to the statement as to the sum which the executor had received as the value of Mr. Grau's interest in the Insular factorywhether this interest was or was not ascertained in accordance with commercial custom or in conformity with the law. Therefore the order of the court below dismissing the proceedings and holding that there is no ground for continuing the prosecution for the falsification charged, with the costs to the complainant, must be affirmed, and it is so ordered, with the costs of this instance to the appellant.

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

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G.R. No. 81, December 27, 1902

THE UNITED STATES, COMPLAINANT AND APPELLANT, VS. RAMON GOMEZ RICOY, DEFENDANT AND APPELLEE. D ECIS ION
ARELLANO, C.J.: During the month of January, 1900, chips and stub tickets were used in the Spanish Casino for gambling games, including monte, which was being played there. These chips were made of mother of pearl and were worth from 5 to 100 pesos each; the checks represented $1,000 each. The chips circulated as money in the Casino and also at times on the Escolta. They belonged to the Casino and were to be exchanged for cash therein. In that month there was a person engaged whose duty it was to deliver the chips to the gamblers in exchange for money or I. O. U's. It does not appear clearly from the record who was in charge of the comptoir during that month, but it is proven that Mr. Lobaton was in charge of the chips and that Ricoy, the accused, was the inspector of the games. The duty of Mr. Ricoy as such inspector was to give orders to Mr. Lobaton with respect to requests for chips made by the players, who purchased them by notes or I.O.U's signed by them. Mr. Lobaton delivered no chips to anyone without previous orders from Mr. Ricoy. Mr. Ricoy also signed the stub tickets used in the Casino. At 2 o'clock on the afternoon of January 3, 1900, a game of monte was commenced in the Spanish Casino, the game on which this case turns, and was ended at 7 o'clock on the morning of the 4th. It was the practice or custom observed in the Casino during that month that the Casino and one of the players were to alternate as bankers. That night Mr. Angeles was banker, and therefore he was entitled to all the profits of the game. Several players took a hand in the game, including the accused, Ricoy, himself, and Messrs. Sabas del Rosario, Mapua, and others. On the night in question, at the request of Ricoy, Sabas, and others who made up the set for the game, Don Joaquin Lafont took part, receiving chips from Seor Lobaton in the comptoir and distributing them to those sitting around the table. Upon receiving chips for the value of $100, $500, or $1,000 the players gave their I. O. U.'s to Seor Lobaton, who kept their account on a half sheet of paper until the liquidation of the deal. Seor Ricoy gave an I. O. U. or note to Mr. Lafont every time he received from the latter $5,000. Seor Mapua did the same. At the end of the game a liquidation was had among all the players. This liquidation was carried out "on the basis of the number of due bills or I. O. U's which Seor Lobaton had received from each player and his note of having made delivery to them." The result of the liquidation was that Seor Angeles, the banker, had won chips and stub tickets to the value of $39,300. All the witnesses have testified that Sefior Angeles delivered to Seor Ricoy all the chips and tickets, and that Seor Ricoy immediately told Sefior Lobaton to draw up a note or I. O. U. for the amount; this Seor Lobaton did and Sefior Ricoy signed the note and delivered it to Seor Angeles. It does not appear from the record whether Seor Ricoy signed this note as inspector or in his individual capacity. The witness Seor Lobaton repeatedly testified in the case that Seor Ricoy had lost this amount and it appeared from his notes that he had delivered to Ricoy the sum of $39,300. It also appears by the record that Seor Mapua

lost the sum of $6,000 in this game, which he paid in his house to Seor Lobaton that same morning, Seor Lobaton turning over the note or I. O. U. to Seor Mapua. It appears froin the record of the testimony of the witness Don Jose Olivares that when the note for $39,300 was delivered to Seor Angeles, the latter accepted it, took up the note, and went away. There was no protest on the part of anyone. The witness Enrique Godino in his testimony used language which indicates that there might be some responsibility on the part of the Casino with respect to the chips and tickets which were in the hands of Seor Angeles before they were delivered to Seor Ricoy. The same appears from the testimoy of Seor Olivares. Seor Lobaton testified that he could not state precisely whether the sum which was represented by the due bill or I. O. U. was won entirely from Ricoy by Angeles, and Seor Lafont testified to the same effect. Seor Sabas del Rosario affirms that Sefior tticoy made this liquidation by virtue of his office in the Casino. Seor Lobaton testified that Sefior Ricoy had directed him to tell Seor Angeles that he wanted to see him in order to pay him that amount, and that in consequence Seor Lobaton on the 7th told Seor Angeles to call on the following day. On the 8th Messrs. Ricoy, Palma, and others were in the Casino. Seor Ricoy asked Seor Angeles if he had brought the note or due bill, and the latter, having replied affirmatively, took it out of his pocket and handed it to Seor Ricoy. The two immediately went into another room, and there were no eyewitnesses to what occurred between them there. The record only discloses that Seor Angeles returned carrying in his hand a letter which had been delivered to him by Seor Lobaton. This letter is in the record, and reads as follows: "Lucio, I have been anxious for a long time to fool an Indian, and I take advantage of this occasion to fool you. Ricoy." And Seor Ricoy disappeared. It does not appear from the record that any attempt was made to recover the note. The record contains an information charging the accused with the crime of estafa as denned and punished by articles 534 and 535, paragraph 9, of the Penal Code. The act of which the accused is charged and as it appears to have been committed constitutes prima facie> a crime. The decision of his inculpability and the judgment of acquittal were premature, the trial not having been terminated either on behalf of the prosecution or defense. The latter had not been able to offer or introduce any testimony, and it appears that on frequent occasions during the taking of the testimony for the prosecution the defense was not allowed to introduce testimony in its behalf, which was postponed to the proper time. The accused being entitled to a full and complete trial, we are of the opinion that the judgment of acquittal rendered by the Court of First Instance must be set aside and the case remanded, with directions to the court to continue the same from the point in which it was interrupted by the decision, without retaking the testimony received up to that time, which, in so far as it may be relevant and competent, may be considered, and such evidence as may be offered by the accused, and any additional evidence which either of the parties may be entitled to introduce will be taken in the manner prescribed by law. So ordered. Cooper, Smith, and Mapa, JJ., concur.

Torres, J., disqualified.

DISSENTING WILLARD, J.: I dissent. I think that the evidence shows conclusively that the defendant is not guilty oi the crime of estafa charged against him and that the judgment of acquittal should consequently be affirmed. Article 343 of the Penal Code is as follows: "The bankers and proprietors of houses where games of chance, stakes, or hazard are played shall be punished with the penalty," etc. "The players who assemble at the houses referred to shall be punished with," etc. It was plainly proven that mmite was played habitually in the Casino during the time in question. It appears from the evidence that the Casino, to encourage the playing of this game, adopted a practice which allowed the members to alternate with the Casino as bankers. It was by the operation of this rule that Angeles was banker on the night in question. The Casino was, therefore, a gaming house within the meaning of the article above cited. The decisions of the Supreme Court are uniform to this effect. (Judgment of November 8,1897.) That monte is a game of chance, stakes, or hazard is of course undoubted. The playing of the game in question was a violation of said article 343. For this crime Angeles was liable as a principal, having been the banker. Ricoy was liable as a principal, having .been a player. Whether the Casino owned the building or leased it is immaterial. In either event it was the owner of it for the purposes of said article 343. (Judgment of November 16, 1872.) It was, therefore, liable as a principal in this crime. From this unlawful game it is claimed that there resulted a binding obligation in favor of Angeles. It is not necessary to determine against whom this alleged obligation existed. From the evidence I am however inclined to think that it was against the Casino. Before the vale was issued Angeles had in his possessions chips and checks which represented no obligation other than of the Casino. They did not purport to be claims against Mapua, Ricoy, or any other player. The Casino had issued them and had promised to redeem them. The vale may have been signed by Ricoy in his capacity as inspector. There is no evidence that Angeles agreed to accept this vale as the individual obligation of Ricoy in substitution of the claim which he had against the Casino. Assuming that the obligation, if it exists, is against the Casino it results that the Casino while it and Angeles were engaged in the commission of a crime furnished to him and others tokens to be used in said criminal act, and at the time of furnishing them impliedly promised to redeem them. Can that promise be enforced?

Article 1305 of the Civil Code, speaking of the nullity of contracts, says: "When the nullity arises from the illegality of the consideration or the object of the contract, if the fact constitutes a crime or misdemeanor common to both contracting parties, they shall have no action against each other, and proceedings shall be instituted against them, and, furthermore, the things or sum which may have been the object of the contract shall be applied as prescribed in the Penal Code with regard to the goods or instruments of the crime or misdemeanor." This alleged contract sprang from an unlawful enterprise. It had its origin in this criminal act which the parties were then committing. Its cause and object were connected with nothing else. They were both unlawful. (Article 1275 of the Civil Code.) The crime was common to all the contracting parties, for Angeles, Ricoy, and the Casino were all principals in it. By the express terms of said article 1305 Angeles has no action against the Casino for the purpose of enforcing this alleged contract. It may be added that in addition to what is contained in said article 1305, article 345 of the Penal Code says: "The money or other articles and the instruments and tools used in gambling or raffles shall be confiscated." Had Ricoy and his companions been surprised by the police on the night in question the chips and checks from which this supposed contract proceeded would have been confiscated. If we suppose that this is the obligation of Ricoy the same result would follow. They were both principals in crime out of which the alleged contract grew. We arrive at this result with reference to Ricoy without considering the provisions of article 1798 of the Civil Code. In what has been said the Casino has been spoken of as a natural person. But the fact that it may be an artificial entity can not alter the result in this case. It.is not necessary here to decide against what person connected with the Casino a criminal prosecution should be directed. It is enough to say that when an artificial body is the owner of a gaming house its civil rights and obligations growing out of prohibited games are governed by the provisions of said article 1305. Was the concealment or destruction of the vale by Ricoy an offense punished by article 535, 9, of the Penal Code? It represented no obligation. It did not prove or tend to prove the existence or extinction of any right. It was simply a small piece of paper with writing on it. As a mere piece of paper its intrinsic value is too small to be appreciable. Its destruction could not injure Angeles, for it had no value extrinsic or intrinsic. The words of article 535, 9, are "any process, record, document, or any other paper of any character whatsoever." While this language is broad it can not be construed as including the destruction of any kind of a paper regardless of what it is in itself or what it represents. A letter of friendship, a card of invitation, a note of regret, which have no value extrinsic or intrinsic, can not be covered by it. The constant doctrine of the Supreme Court has been that no person could be convicted of estafa unless damage has resulted. It matters not that there may have been deceit or that the defendant thought he was causing damage. If the act which he did was from the nature of the

object incapable of causing that damage there can be no conviction. (Judgment of February 4, 1874.) It was claimed by the Solicitor-General in his brief that while an action could not be maintained to recover money won at gaming, by reason of the provisions of article 1798 of the Civil Code, yet, the transaction created a natural obligation, which, by subsequent ratification, might be changed into a legal one. It is not necessary to decide that question. Article 1798 is applicable to gambling whether that gambling constituted a crime or not. It would, for example, apply to a game of monte played for the first time in a private house, a thing not prohibited by the Penal Code. But this case goes further. Here as we have seen the promise grew out of the commission of a crime. It is similar to a promise to pay money to one man for unlawfully killing another. Promises like these can not by ratification be converted into binding obligations. Article 565 of the Penal Code is as follows: "The burning or destruction of papers or documents, the value of which can be estimated, shall be punished according to the provisions of this chapter; if the value can not be estimated, with the penalties of arresto mayor m its maximum degree to prision correccional in its medium degree and a fine of from 625 to 6,250 pesetas." "The provisions of this article are to be considered as applicable if the deed should not constitute another graver crime." Ricoy might be convicted under this article, but it seems clear that he can not be convicted of estafa.

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G.R. No. 86, May 01, 1902

GEORGE M. SAUL, PLAINTIFF AND APPELLANT, VS. ENRIQUE DALTON HAWKINS, DEFENDANT AND APPELLEE. D ECIS ION
ARELLANO, C.J.: On the 8th of August, 1900, D. Canuto Rivera sold to George M. Saul a house and lot at No. 14 Aguilar Street, Iloilo, P. I., by deed recorded in the property register on September 13 of the same year. On the 29th of the same month Mr. Saul, in an act of conciliation with Mr. Dalton, stated that on the 8th he had bought the said house, and "as Mr. Dalton has subleased the house, he demands that the latter deliver to him each month the entire amount of the rental under the sublease," to which the defendant replied that as he had a contract of lease with Mr. Canuto Rivera he did not consider himself under any obligation to turn over the entire amount of the monthly rental, but simply the amount which he had agreed to pay Mr. Rivera. On October 30 of the same year Mr. Saul, invoking article 348 of the Civil Code, according to which the owner of property is entitled to dispose of the thing owned by him without other limitation than that established by the laws and articles 2, 23, and 27 of the Mortgage Law, under which a lease, executed by the former owner of the property by means of a public instrument and recorded in the register of property, is a limitation established by law with respect to a third person who acquires by sublease, and affirming that the lease of the property to Dalton by Rivera, because it is a mere private agreement, does not bind Mr. Saul and can not constitute a gravamen upon the property which the purchaser is bound to respect, prayed the court to declare "the nullity of the gravamen which Mr. Dalton claims to have on the house purchased and to order him to deliver to Mr. Saul the total amount of the rental received from the date on which the latter purchased the house, with the costs." On the 28th of November following counsel for Mr. Dalton answered the complaint, and, for the purpose of determining the issue before alleging the facts constituting his defense, stated: "And as the gravamen which my client contends to have upon the property in question is a contract of lease of the same entered into with Mr. Rivera, we conclude that this action is brought for the annulment of this contract of lease." Upon this basis he alleged the following facts as relevant to the issues: (1) That it is not true that the contract of lease in favor of Mr. Dalton is a private agreement; (2) that if it was such originally it was subsequently authenticated by the acknowledgment of its authenticity in court by Rivera in an action concerning the validity of the sublease by Dalton before the justice court, in which Dalton had won the suit; that this judgment had been preventively annotated in the property register after Rivera had recorded in a notarial act a description of the property in question. The contract of lease having these conditions, in his third conclusion of the law he draws the inference that "It results that this lease is enforceable not only against the person with whom the contract was made but also against a third person, such as is Mr. Saul." And in his fourth conclusion of law he states that with respect to Mr. Saul, not only is the contract of lease in question enforceable against him because the same was preventively annotated in the property register, but also because before purchasing the house in question he had knowledge of the existence of the contract, and he

who purchases property, knowing the same to be encumbered, is understood to take it subject to the gravamen, and therefore is under obligation to accept the same. The plaintiff in his replication, presenting the question in the same terms, said: "The affirmation of the adverse party that we, in seeking to obtain a declaration of the nullity of the gravamen of the lease which Mr. Dalton claims to have upon the house No. 14 Aguilar Street, are also seeking to obtain the nullity of the contract of lease entered into as alleged between his client, Mr. Dalton, and Mr. Canuto Rivera is wholly erroneous. It is apparent that the adverse party has not perceived that these are two distinct questions and that they can and do exist separate. The gravamen of the lease may be declared void, as prayed for by Mr. Saul, and the contract of lease entered into between Dalton and Rivera still be valid and binding. In no part of our complaint have we discussed the nullity of the contract, of lease, because it is our understanding that this is a matter completely distinct from the purpose of our complaint. * * * As a final argument the defendant states that the contract was ratified by Mr. Rivera before a notary public and was afterwards preventively annotated and registered, and that therefore it was converted into a public document; and, in consequence, Mr. Saul is obliged to respect it. We do not deny the first paragraph of the replication of the adverse party, but at the same time we contend that the document in question is not a public document, and, with respect to the purchaser, Mr Saul, is unenforceable. * * * This lack of legal efficacy is demonstrated by the dates of the acts which are alleged to make the lease entered into with the former owner binding upon the new owner, and which are as follows: The ratification of the notarial act, September 28; the annotation in the register, October 26, and the date of the purchase, August 8." In the fourth paragraph of the replication the plaintiff' says: "As before stated, we do not discuss the validity or lack of validity of the contract in question, as that is not in issue. If the adverse party had made a careful examination of the complaint he would perhaps have seen that we take for granted the existence of some verbal or written contract in seeking to obtain a declaration of the nullity of the gravamen of lease, a thing which would not be asked if the lease did not exist, as the adverse party might well have understood." The terms of the only question put in issue by the complaint and answer are well defined. These pleadings present the issue for all legal purposes, and the terms of the question can not subsequently be altered. We can not take into consideration the other question, improperly raised in the replication and rejoiner, with respect to the nullity of the contract of lease itself, upon the ground, apparently, that the stipulation was for the use of the house for such period as the lessee might desire to keep it. Article 531 of the Law of Civil Procedure of 1888 prohibits a variance from the claims advanced and defenses set up in the complaint and answer, which should be the principal object of the suit. Apart from this no discussion can be had upon a matter not involved in the case, and in this case there is no such contract of lease. There is no question that the position taken by the defendant before the presentation of the complaint and still maintained is that of considering the lease executed by Rivera upon the property purchased by Mr. Saul as an incumbrance, and of insisting upon Mr. Saul's respecting the contract. Mr. Saul accordingly attempted to free his property from the alleged incumbrance and asked the court to declare the property free from this gravamen in the following words: "To declare the nullity of the lease which Mr. Dal ton alleges to exist upon the house purchased." The court must determine whether the plaintiff has the right asserted by him and whether the action brought is the proper one. The existence of an unrecorded lease, executed in favor of the defendant by the grantor, is taken for granted. There is no allegation that in the contract any agreement has been made

that it was to be respected by the purchaser or any other subsequent transferee. A contract of lease executed by the vendor, unless recorded, ceases to have effect when the property is sold, in the absence of a contrary agreement. The right to use the house is one of the rights inherent in the dominium transferred by the vendor to the vendee. The contract between the lessor and the lessee does not, however, cease to be binding if the term stipulated in the contract has not expired, as the transfer of the dominium and other rights over the thing does not free the vendor from liability under the personal actions arising from a contract of lease. But these personal actions do not bind the purchaser in his capacity as successor by singular title in the absence of an express agreement between the lessor and the lesseean express agreement which must, in turn, become a personal obligation of the purchaser. If the lease is recorded it is no longer merely a personal right on the part of the lessee to continue to enjoy the property leased, even after the same is sold. It is also a real right, made such by recordation, and constitutes an incumbrance upon the property, whoever may be its owner or possessor, and is therefore enforceable even against third persons. The lease in question does not constitute a real right. The subject of the preventive annotation was a judgment which refused "to declare the nullity of the contract of sublease entered into between the said Enrique Dalton and the present sublessee of the house belonging to the said Canuto Rivera." This is not such a recordation of the lease as to constitute a real right, and which, when inscribed in the register to give it publicity, plainly shows to anyone intending to purchase the property the existence of an incumbrance consisting in the deprivation of the right to use the house during the time stipulated in the recorded lease. Taking for granted the existence of this sublease, attested in the judgment preventively annotated, it appears that at the date of the complaint it was not the defendant, Dalton, but the sublessee who had actual possession of the property. Article 445 of the Civil Code provides that possession de facto can not be recognized in two distinct persons, except in cases of tenancies in common. The sublessee, therefore, might continue to enjoy this possession with the toleration of the new purchaser, but it would not be a continuation of the civil possession of Canuto Rivera; that is, it could not be considered as a possession in the name of the owner who had conveyed away his civil possession, together with his dominion, by executing the contract of sale. The right of the grantor being extinguished, the right granted is extinguished. Resoluto jure dantis resolvitur jus accipientis. So that at the moment of the transfer of the dominion and civil possession, and, at the same time, of the right to use and enjoy the thing sold, all physical possession in the name of another was extinguished. The civil possession of Canuto Rivera being extinguished the physical possession of the lessee or sublessee was also extinguished ipso jure. In this case the only right remaining to the lessee with respect to the purchaser is that of reaping the fruits of the crop corresponding to the current agricultural year, and, with respect to the vendor, the right to recover from him such damages as the lessee may have suffered. (Art. 1571, par. 2, of the Civil Code.) What, then, was there to prevent the plaintiff from exercising his right to use and to enjoy the thing bought? The existing lease, argues the defendantthe lease entered into with Canuto Rivera, by constituting an incumbrance upon the property acquired by the plaintiff which the latter is bound to respect. This lease would be a valid and enforceable incumbrance with respect to Canuto Rivera during

its existence, but it is not valid or binding with respect to Mr. Saul, as to whom it has no effect, because of the extinction of the right of the person who granted it, argues in turn the plaintiff. The right having been extinguished ipso jure it was necessary that this be made known to the lessee, Dalton, or to the person to whom Dalton had subleased the property, the rights of the latter not being terminated by the mere fact of the transfer of the dominion and other real rights. The purchaser, availing himself of his privilege under article 1571, paragraph 1, above cited, to terminate the lease existing at the time of the sale, maae use of the act of conciliation, and this act of conciliation was opposed by the objection discussed in this suit; that is, the existence of a real right of recorded lease. It is unquestionable that for the reasons above stated the alleged incumbrance does not exist as to the purchaser, the plaintiff herein; that is to say, it can not continue to be valid and enforceable against him, as it was against his predecessor, the vendor. Is, however, an action brought to obtain a declaration of the nullity of the alleged incumbrance the appropriate remedy? It would undoubtedly have been correct to have brought action for an adjudication that the alleged incumbrance was not enforceable. But a prayer that it be declared "null" instead of "not enforceable" is not entirely incorrect, in view of the precise terms of the issue, the allegations of the parties, and the evidence introduced. A judgment which correctly and explicitly passes upon the relief prayed for by the plaintiff would be congruent with the complaint, even if the action may have been improperly designated, inasmuch as this circumstance does not change its nature. (Judgment in cassation of April 4, 1883.) The possessor in good faith is entitled to the fruits received until his possession is legally interrupted. (Art. 451 of the Civil Code.) The act of conciliation produces a civil interruption provided it is followed by a suit for the recovery of possession. (Art. 1947.) The complaint in this case for a declaration that the lease made by the former owner was riot enforceable, filed within two months following the date of the act of conciliation by which demand was made upon the defendants for the delivery of the entire rental of the property, is equivalent to a suit for possession. Therefore the judgment appealed is reversed, and we hold that the lease stipulated in favor of Enrique Dalton by Canuto Rivera upon the house No. 14 Aguilar Street, Iloilo, can not be enforced against George M. Saul, and the said Saul is entitled to recover all rents received or which might have been received by Dalton from the time of the celebration of the act of conciliation, and the said Dalton is hereby ordered to pay and deliver the amount of the said rents derived from the property, without special condemnation as to costs. Torres, Cooper, and Willard, JJ., concur, Mapa J., dissents. Ladd, J., did not sit in this case.

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G.R. No. 104, April 22, 1902

THE UNITED STATES, COMPLAINANT AND APPELLEE, VS. ALEJANDRO VALDEZ ET ALV DEFENDANTS AND APPELLANTS. D ECIS ION
MAPA, J.: Valdez's codefendants having been acquitted in the court below, this case has been brought before us on appeal by the said defendant against the judgment of the Court of First Instance, by which he was condemned as principal of the crime of homicide committed on the person of Martin Evangelista to fourteen years, eight months and one day of reclusion temporal and the accessories, to the payment of 700 pesos to the heirs of the deceased, and to the payment of an eighth part of the costs of the prosecution. The guilt of the defendant Valdez is fully proven in the record. The judge below acted correctly, in our opinion, in classifying the facts in the case as constituting the crime of homicide. The evidence is insufficient to show that any of the specific circumstances established by article 403 as constitutive of the crime of murder were present in the commission of the crime. It is true that the defendant testified that Martin Evangelista was killed by one Venancio Cariaga while bound elbow to elbow. This testimony is the only evidence in the record upon this point. If this circumstance were true it would be unquestionable that the crime was committed treacherously ( con alevosia) and should therefore be classified as homicide, as urged by counsel for the Government in this instance; but we can not admit the testimony of Valdez as true in any degree, not even in so far as it might be prejudicial to him, by reason of the fact that he gave this testimony for the sole and exclusive purpose of incriminating another to exculpate himself, evidently falsely stating the facts and circumstances in such a manner that it would be unwise, in our judgment, to accept any of his testimony as the foundation of a decision. We are of the opinion that it was his purpose to entirely disregard the truth, his sole purpose being to incriminate another. For these reasons this testimony can not properly be considered a confession of the defendant, but should be regarded as testimony given for the purpose of injuring a third person. Consequently it should be accepted only in so far as it is corroborated by other data in the record. We therefore decide that the judgment appealed should be affirmed, with the costs of this instance to the appellant. Arellano, C. J., Torres, Cooper, Willard, and Ladd, JJ., concur.

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G.R. No. 106, February 14, 1902

THE UNITED STATES, COMPLAINANT AND APPELLEE, VS. EMILIANO PARAISO, DEFENDANT AND APPELLANT. D ECIS ION
WILLARD, J.: In the year 1900 the defendant was the agent in Vigan of the business house known as "The Philippine Trading Company." In the month of March he signed a document with the name of Luis Encarnacion in which it was made to appear that the latter had received from him as such agent the sum of 150 on account of the purchase of 100 picos of maguey. In July he signed with the same name a similar receipt for the sum of $970. During the trial the defendant confessed that it was true that the receipts were false, that he had not bought maguey from Encarnacion, and that he had not paid the latter any money. He signed the receipts in imitation of the writing and rubric of Encarnacion. The accused kept the said receipts in his house without having delivered or shown them to anyone or made any use of them. Van Sternberghe, then the cashier of the accused, produced them to the court. It does not appear how the latter obtained them, although the counsel for the defendant stated at the trial in the court below that while the accused was absent in Manila Van Sternberghe, who lived in his house, took the said receipts. The defendant made false entries in the books of the company by which it appears there were paid to Encarnacion on the dates of the receipts the sums which are stated therein. Nevertheless he is not accused of any crime based upon the said entries. The complaint is limited to the falsification of the receipts. It is probable that the entries were made first, the receipts having been drawn up later in order that they might be availed of in corroboration of the entries. It is not explained to us how the fact of the existence of these entries can have any relation to the facts of the case. It is not proved that prejudice to the company might have arisen because of the entries or the receipts. The crime provided for and punished in article 304 is not committed by the mere falsification of the document. It does not suffice that the document itself be false, but there must also be proved the prejudice caused to a third person or the intention to cause it. And here we find a certain difference between this and other crimes, as, for example, the counterfeiting of money. (Art. 280.) In order to cause prejudice to a third person it is absolutely necessary to make use of the falsified document after it is writtenthat the person who executes it realizes some act which makes it effective. If a person falsifies a promissory note and keeps it in his house it can not in any manned operate to the prejudice of a third person. If an individual falsifies a promissory note and, after keeping it in his house for a time, destroys it, he does not prejudice anyone by the mere fact of having made it. It is evident that a person can not be declared guilty under the first clause of this article "to the prejudice of a third person" unless he does two things; in the first place he must have counterfeited the false document, and secondly, he must have performed an independent act which operates to the prejudice of a third person. Xt.appears equally evident that the same rule should be applied to the second clause "with intent of causing it." In the first place he must have counterfeited the document, and secondly, he must have performed some other independent act in order to make use of itan act which,

while it does not result in prejudice to a third party, has been done nevertheless with the intention of causing such prejudicev The fact that no prejudice has been caused would not be due in such case to the desistance of the defendant himself but to causes absolutely independent of his will. To maintain the contrary would be equivalent to completely suppress from the article the phrase "to the prejudice of a third person," because in every case there exists undoubtedly in the mind of the falsifier at the time of uttering the document the idea or intention to make unlawful use of the same to the prejudice of a third person. Let us suppose the case in which a person falsifies a check, authenticating it with the signature of another who has money on deposit in the bank. He presents the said check at the bank and the employees of the latter, without noting the falsification, pay him the money. In this case he is guilty under the first clause, since he has caused prejudice to the bank. Suppose that he presents the check and the employees on noting the falsification refuse to deliver him the money. In this case lie is guilty under the second clause, for, although nobody is prejudiced, he had the intention of causing prejudice by having performed certain acts to that end. Supposing that he falsifies the check and keeps it in the house without making use thereof, he can not be considered guilty in accordance with either of the two clauses. The law never punishes the mere intention to commit a crime. For this it is necessary that something be done in the way of putting such intention into effect. In order to class as criminal (won acts of this kind they must constitute an attempted crime according to article 3 of the Penal Code prevailing. It results evidently that the acts committed by the defendant in this case do not fall within the terms of said article. The judgment is therefore reversed and the defendant freely acquitted with the costs de oficio. It is so ordered. Arellano, C. J., Torres, Cooper, Mapa, and Ladd, JJ., concur.

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G.R. No. 108, April 08, 1902

THE UNITED STATES, COMPLAINANT AND APPELLEE, VS. JUAN ESCOBAR, DEFENDANT AND APPELLANT. D ECIS ION
LADD, J.: This case comes up from the Court of First Instance of Ilocos Sur en consults. The defendant was convicted in that court of the offense of lesiones graves, under No. 3 of article 416 of the Penal Code, and sentenced to three years of prisidn correccional The evidence shows that the complainant, Bernabela Pacleb, had forbidden the defendant, who appears to have been a suitor of her daughter, to come to her house; that on the occasion in question the defendant did go to the house, but whether for the purpose of paying his addresses to the daughter or of assaulting his prospective mother-in-law is not quite clear; that at all events some difficulty ensued between the two, and that the complainant ran out of the house into the street, followed by the defendant, who, after the two were in the street, struck her several times with a stick. The complainant then took refuge in the house of a neighbor, still pursued by the defendant, who, at the door of the house, continued for some time to noisily manifest his intention to "kill the old woman." As a result of the defendant's blows the complainant was wounded over the left eye, and one of the bones of her left forearm was broken. The fracture, however, united in such a way as to leave no deformity other than a diminution of the movements of supination, not sufficient to prevent fyer from performing the light work to which she has been accustomed. She recovered from the injuries in forty days. She was incapacitated for doing any kind of work for twentyeight days. Upon these facts we think the defendant should have been convicted under article 416, No. 4, instead of No. 3 of the same article. In view of the sex of the complainant and that of the defendant, and of the other circumstances of the case, we think the court below was correct in finding the existence of the aggravating circumstance of article 10, No. 9. The evidence does not, in our judgment, warrant the conclusion reached by the court below that the aggravating circumstance of article 10, No. 20, is also present. We find no extenuating circumstances. The judgment below should be reversed, and the defendant sentenced to two years of prision correctional and costs, without indemnification to the complainant, she haying waived her right thereto. The cause is remanded for the execution of this judgment. Arellano, C. J., Torres, Cooper, Willard, and Mapa, JJ., concur.

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G.R. No. 110, October 24, 1902

THE UNITED STATES, COMPLAINANT AND APPELLANT, VS. ANTONIO YACAT ET AL. DEFENDANTS AND APPELLEES. D ECIS ION
TORRES, J.: It is a fact proven in this case that at about 11 a. m. on the 6th day of July, 1900, and for reasons which do not sufficiently appear, an armed conflict broke out between Marcos Bautista and his son, Gregorio Bautista, 20 years of age, on the one hand, at Antonio Yacat, Bautista's brother-in-law, Eugenio Yacat, Cristino Yacat, Macario Mangilit, and Pedro Lising, on the other hand, at a place called Guyonguyong, near the town of Cabiao, the result of the fray being that Marcos received eight wounds, some serious and others mortal, in consequence of which he was left dead on the scene of the fight. Gregorio, Macario, and Cristino were also wounded more or less seriously. The violent death of Marcos Bautista, which is charged in the information filed by the fiscal as murder, is fully proven in the record. The facts constitute the crime of homicide in a confused and tumultuous affray, and the case falls within article 405 of the Penal Code. Not only does the record fail to disclose which of the five men with whom the deceased and his son, Gregorio, fought was the one who killed Marcos, but it also fails to disclose which of them inflicted upon him the wounds. As all his five adversaries, Antonio Yacat, Eugenio Yacat, Cristino Yacat, Macario Mangilit, and Pedro Lising, during the conflict in which Marcos Bautista received his eight wounds, at least inflicted upon the said Bautista more or less serious personal violence, it is unquestionable that the homicide prosecuted occurred in a confused and tumultuous affray, and that the five defendants are responsible for the killing. Of these five defendants four were arrested and prosecuted and the fifth is absent. The four defendants before the court, Antonio Yacat, Eugenio Yacat, Cristino Yacat, and Macario Mangilit, plead not guilty. Prom their self-contradictory testimony it may be inferred that all of them, together with the absentee, Pedro Using, took part in the fight with the Bautistas, father and son. Their respective exculpative allegations can not, however, be admitted, as the same were not supported by the evidence. Nor can it be declared as a fact that they were attacked by the deceased Marcos and his son Gregario, because, if their statement that they were at that time unarmed were true, they have failed to give any explanation of how it is that Marcos received eight wounds before he was killed, and that Gregorio was also wounded. The record does not show that the defendants, acting on agreement or impelled by the sole purpose of killing Marcos, simultaneously attacked the latter without there having been a fight. The wounds of Macario Mangilit and Cristino Yacat show that there was a fight, but it is not possible to determine which of the contending parties provoked or commenced the quarrel, Notwithstanding the testimony of Gregorio Bautista, it does not appear which of the five adversaries of his father, Marcos, was the one who killed the latter, nor which of them inflicted the serious wounds upon him, as Gregorio was unable to designate them. From the testimony for the prosecution it is to be inferred that the five adversaries of Marcos and his son, Gregorio, at least committed violence upon the person of the deceased.

From these statements it necessarily follows that the crime of murder has not been committed, because none of the qualifying circumstances referred to by article 403 of the Code were present in the killing by violence of Marcos Bautista. The killing occurred in such a manner as to fall within the provisions of article 405 of the Penal Code. In the commission of the crime no generic mitigating or aggravating circumstances can be considered. The guilt of the defendant Antonio Yacat appears to be aggravated by his relationship with the deceased, who was his brother-in-law by marriage with his sister, Tiburcia Yacat. Upon this ground, the reasons which led him to make this attack upon the life of his brother-in-law and leave his sister a widow, not Jiaving been proven, circumstance No. 1 of article 10 of the Code must be applied as aggravating his culpability. If the judgment of acquittal against which the prosecut ing attorney appealed is unsustainable, this can not be said of the contention of the counsel for the Government. If the crime of homicide is included in that of murder because homicide qualified by certain specific circumstances constitutes murder, it is unquestionable that upon an information for murder the courts can convict the defendants, as in this case, of the crime of homicide, under section 29 of General Orders, No. 58. It is not necessary that a new information be filed charging,the latter offense. It is true that the record contains no data upon which Eduardo Llanera can be held responsible as an accessory to the homicide in question. It is, however, unquestionable that Pedro Ureta, who was the local president of the town of Cabiao at the time the crime was committed, has incurred criminal liability. Abusing his public office, he refused to prosecute the crime of homicide and those guilty thereof, and thus made it possible for them to escape, as the defendant Pedro Lising did in fact. This fact is sufficiently demonstrated in the record, and he has been unable to explain his conduct in refusing to make an investigation of this serious occurrence, of which complaint was made to him, and consequently he should suffer a penalty two degrees inferior to that designated by paragraph 2 of article 405 of the Code, by virtue of article 68 thereof. With respect to the motion of the counsel for the defendants that the case be dismissed on the ground that his clients are entitled to the benefits of the amnesty proclamation of July 4, 1902, in view of the fact that these defendants did not take part in any way in the late insurrection to which the amnesty refers, and of the further fact that the record does not disclose sufficient evidence that the homicide in question was the result of a political hatred or of political dissensions between Filipinos, we are of the opinion that the application for amnesty can not be granted. For the reasons stated, therefore, the motion for the dismissal of the case and the application of the amnesty proclamation of July 4 in favor of the defendant is hereby overruled. The judgment of. the court below is reversed, and the offense being classified as homicide in a confused and tumultuous affray, the defendant Antonio Yacat is convicted and sentenced to the penalty of five years of correctional imprisonment, and the other three, Eugenio Yacat, Cristino Yacat, and Macario Mangilit, to the penalty of four years, each one, of correctional imprisonment, with the accessories of article 61, and to the payment, jointly or severally, of 1,500 Mexican pesos to the widow and heirs of the deceased, and, in case of insolvency, to the corresponding subsidiary imprisonment, not to exceed one year, and to the payment each of one-seventh part of the costs of both instances, they to be given allowance for one:half of the time they have been held as detention prisoners. The accessory, Pedro Ureta, is convicted and condemned to three months of arresto mayor, the accessories of article 61 of the Code above mentioned, and

with subsidiary liability for the payment of the said indemnification in case of the insolvency of the authors of the crime, and, in case of his failure to pay the same, to suffer the corresponding subsidiary imprisonment, not to exceed one month, and to pay one-seventh part of the costs of both instances. Eduardo Llanera is acquitted, by reason of the lack of proof of his guilt, with one-seventh part of the costs de oficio, no decision being made for the present with respect to the absentee, Pedro Lising, and Vithout prejudice to the criminal action which may be brought for the wounding of Gregorio Bautista, Macario Mangilit, and Cristino Yacat So ordered. Cooper, Smith, Mapa, and Ladd, JJ., concur.

DISSENTING WILLARD, J.: It clearly appears from the evidence that there was a contest between the defendants on one side and the deceased and his son, Gregorio, on the other. It can not be doubted that Marcos Bautista was killed by the defendants, or some of them, and not by his son. It is also clear that the wounds received by some of the defendants were inflicted by Marcos and Gregorio, and not by any of the defendants. All of the defendants were engaged in an unlawful attack upon the two Bautistas which resulted in the death of Marcos, caused by one or more of them, this, in my opinion, making them guilty of homicide. Such a conflict between two well-defined bands does not constitute a confused and tumultuous affray mentioned in article 405. The four defendants engaged in the conflict should therefore be punished for the crime of homicide, defined in article 404.

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G.R. No. 113, April 24, 1902

THE UNITED STATES, COMPLAINANT AND APPELLEE, VS. SAMARIN, DEFENDANT AND APPELLANT. D ECIS ION
ARELLANO, C.J.: According to the complaint the Moro Samarin, one day in June, 1900, at a place called Sigamay, in the town of Iligan, Province of Isabela, Island of Luzon, gave Juan Castro a cut with a bolo in the right side, in consequence of which the latter died. The complaint charges the accused with having subsequently possessed himself of 20 pesos and some pieces of cloth which the deceased was carrying. The defendant pleaded not guilty, and at the trial stated that the person who killed Juan Catstro was Domingo Sipagan, and that the four pieces of cloth which were shown him had been found in his possession and were part of those which Castro was carrying, but that they had been given him by Sipagan as a present. The only witness who charges him with the crime of homicide and the robbery Of the cloth is Domingo Sipagan himself, who says that he started, in company with Juan Castro, to go to a Callingas fiesta; that the accused, the Moro Samarin, sprang upon them in the road and gave Castro a cut, inflicting upon him a wound running from the base of the neck down to the breast on the right side; that the accused then seized several pieces of cloththe same pieces which were shown him at the trialand that then he, Sipagan, fearing that he might also be killed, ran away; that he does not know who picked up the body, and can not say whether the deceased had any money. Domingo Ibarra says that he accompanied the local president of Ilagan to look for the body at the place indicated by the last witness, but that they could not find the body nor did they see anything there to attract their attention. They concluded that the body had been carried away by some crocodile or that it had been borne off by the current, as the place was on the bank of a river. Juan Castro is unknown and his relatives are unknown. It only appears that he was seen passing through the village of Catalaganes. The corpus delicti has not been proven after an exhaustive investigation. The judgment of conviction by the court below is clearly erroneous. We therefore acquit Samarin, with the costs of both instances de oficio. Torres, Cooper, Willard, Mapa, and Ladd, JJ., concur.

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G.R. No. 174, August 05, 1902

THE UNITED STATES, COMPLAINANT AND APPELLEE, VS. FRANCISCO RESABA ET AL., DEFENDANTS AND APPELLANTS. D ECIS ION
TORRES, J.: This case was brought before the late Audiencia, Territorial of Manila for review of the judgment of the 7th of November, 1894, rendered by the then judge of the First Instance of the District of Lipa, by which judgment Francisco Resaba was acquitted of the offense of resistance to the agents of the authorities and the other accused were convicted of the offense of lesiones graves and menos graves. Unagan was sentenced to one year eight months and twenty-one days of prision correctional , and Gregorio Lat, Valentin Dimaano, Mariano Tagle, and Pelagio Unagan to two months and one day of arresto mayor, with accessories and costs, the case having been dismissed with respect to Andres Cariaga, alias Pernis, he having died. Counsel for the Government, however, asked that the judgment below be reversed, and that Francisco Resaba be convicted of the offense of resistance to the agents of the authorities and sentenced to one month and one day of arresto mayor, with a fine of 325 pesetas, and to the payment of a seventh part of the costs, one-half of the time of the preventive imprisonment to be computed, and also asks that the other defendants be acquitted, with the exception of the deceased Cariaga, they being exempt from criminal responsibility by reason of their having acted in the performance of an official duty, this offense being established by section 11, article 8 of the Penal Code. The undersigned concurs in the opinion of the representative of the Government and accepts his opinion with respect to the findings of fact and the classification of the offense prosecuted. In effect, the defendant Francisco Resaba, while armed and in company with the malefactor Cariaga, committed the crime of resistance to the agents of the authorities, because the officers when attempting to arrest these men were compelled to use force; and although it may be true that the record does not show that Resaba made an attack on the officers with a weapon, it is nevertheless unquestionable that he did resist them by refusing to obey and surrender to his captors, while Cariaga openly attacked them, and it was on this account that their captors wounded them. Notwithstanding the fact that the acts of the officers constituted the crimes of the discharge of a firearm and of lesiones gravesand menos graves, inflicted upon the persons of Cariaga and Resaba, nevertheless they are exempt from all responsibility, because they were acting in the performance of an official duty, inasmuch as it appears that the judge of the corresponding military court had given orders for the capture of Cariaga and Resaba, they having been prosecuted on a criminal charge. Consequently, the officers must be acquitted in accordance with the provisions of article 51 of the provisional law for the application of the Penal Code. For the reasons expressed, therefore, and in view of article 252 of the Penal Code and section 50 of General Orders, No. 58,. the judgment of the court below must be reversed and Francisco Resaba convicted and sentenced to one month and one day of arresto mayor, with a fine of 325 pesetas, or to the corresponding subsidiary imprisonment in case of insolvency, with accessories, and to the payment of one-seventh part of the costs in both instances, one-half of

the time of the preventive imprisonment suffered to be computed, the defendants Pablo Unagan, Valentin Dimaano, Gregorio Lat, Mariano Tagle, and Pelagio Unagan to be acquitted, with the remainder of the costs de oficio. The order entered in the incident of embargo is approved. So ordered. Arellano, C. J., Cooper, Willard, and Ladd, JJ., concur. Mapa, J., did not sit in this case.

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G.R. No. 198, February 14, 1902

THE UNITED STATES, COMPLAINANT AND APPELLEE, VS. JUAN LLAMES, DEFENDANT AND APPELLANT. D ECIS ION
TORRES, J.: As a clerk in the internal-revenue office of Ambos Camarines, Juan Llames received from the Chinaman Chua-Tauco the sum of $15.25, Mexican currency, which the latter paid on behalf of Gregorio Loria as fees on forestry products. Llames executed a receipt for the said sum (dated October 26,1897), falsifying therein the signatures of the collector of internal revenue, Joaquin Mendoza, and of the superintendent, Ramon Maria Saidin, which to all appearances authorize the said document, which is of the kind which is issued by the Internal Revenue Department, and is on one of the regular printed forms. The falsity of the receipt was discovered, and the document, together with the defendant, was sent to the Court of First Instance, with an official communication from the Civil Governor in which he stated that the accused had confessed his guilt. The facts related, which are fully established by the evidence adduced by the testimony of the officers mentioned, as well as that of the complaining witness, Gregorio Loria, owner of the amount embezzled, and by the certificate by which it is certified that the defendant did not turn over the said sum to the treasury of the internal-revenue office, constitute the compound crime of embezzlement with falsification of an official document, penalized in articles 300, 301, and 535, No. 5, together with article 89 of the Penal Code. The crime of falsification was committed as a means to the embezzlement from Gregorio Lorina of the sum which the latter" paid through the medium of the said Chinaman as forestry fees which he owed to the Internal Revenue Department. Therefore the falsification was a necessary means to the consummation of the embezzlement, because the accused, upon the payment of the money to him, was obliged to give an apparently authentic receipt for it. Of these crimes the sole principal by direct participation, confessed and convicted, is the defendant, Juan Llames, who, in his examination, admitted that he had executed the false document in his own house, imitating the signatures of the collector and superintendent, availing himself of one of the printed forms which were on hand in the office for receipts and filling with written words the blank lines, and that he had spent the money received. In the commission of this compound crime no generic circumstance, either mitigating or aggravating, is to be considered, nor should there be considered the circumstance provided for in article 11 of the Code, for the reason that the defendant, as a clerk, ha4 sufficient enlightenment to understand the grave character of the acts which he committed and of their consequences. Therefore the defendant has incurred the maximum degree of the penalty for the graver crimethat is to say, the medium grade of presidio mayor, according to article 89 of the Code. In virtue, then, of the considerations set forth the sentence reviewed should be reversed, Juan Llames sentenced to the penalty of eleven years of presidio mayor, to a fine of 5,000 pesetas, to the accessory penalties provided in article 57 of the Code, to the payment of an indemnity of 15 pesos and 25 centimos, Mexican currency, to the aggrieved party, Loria, without subsidiary

imprisonment for inability to pay the flue and the indemnity, according to article 51 of the Code, and to the payment of the costs in both instances. The order declaring the insolvency of the defendant, made in the attachment proceedings, is approved. So ordered. Arellano, C. J., Cooper,Willard, Mapa, and Ladd, JJ., concur.

OSJurist.org

G.R. No. 238, April 12, 1902

THE UNITED STATES, COMPLAINANT AND APPELLEE, VS. LEON BALLESTEROS, DEFENDANT AND APPELLANT. D ECIS ION
TORRES, J.: This case comes before us in consultation. The defendant, Leon Ballesteros, was prosecuted for nine crimes of estafa, and by the judgment of April 9,1898, was convicted of eight crimes of consummated estafa and one crime of frustrated estafa. For each of the consummated crimes he was condemned to two months and one day of arresto mayor, and for the frustrated crime to pay a fine of 150 pesetas, with the accessories, and to the return of the money obtained by the estafa to each one of the persons injured, and in case of failure to pay the indemnification and the fine to suffer subsidiary imprisonment within the period allowed by law. The department of public prosecution asked that the judgment be affirmed, but that the duration of the penalties imposed upon the defendant for the eight crimes of estafa should not exceed the triple duration of one of the penalties, under the provisions of rule 2 of article 88 of the Penal Code. It is necessary for us, therefore, to pass upon the question raised by counsel for the Government under the provisions of section 50 of General Orders, No. 58, and the general penal law. Under the provisions of rule 2 of article 88 of the Penal Code above cited the judgments consulted should be affirmed, but the maximum penalty to be suffered by the defendant for the eight consummated crimes of estafa must not exceed three times the duration of one of them, to wit, six months and three days of arresto mayor. The fine must be 325 pesetas, the minimum of this punishment as a correctional penalty, but without subsidiary imprisonment in case of insolvency or in case of failure to pay the indemnity to the persons injured, inasmuch as the amounts obtained by the estafa did not exceed 12 1/2 pesetas from each. The costs of both instances will be assessed against the accused and the case will be returned to the court below, with a certified copy of this decision, for compliance therewith. So ordered. Arellano, C. J., Cooper, Willard, Mapa, and Ladd, JJ., concur.

OSJurist.org

G.R. No. 241, August 06, 1902

THE UNITED STATES, COMPLAINANT AND APPELLEE, VS. LUCIO BARBASA ET AL., DEFENDANTS AND APPELLANTS. D ECIS ION
TORRES, J.: Appeal by the defendants Lucio Barbasa and Teodoro Luna from the judgment of the 24th of December, 1897, rendered in case No. 6614 by the Court of Intramuros (Manila), by which the defendants were convicted of falsification of cedula, and each one of them sentenced to four months and one day of arresto mayor, and a fine of 325 pesetas, with accessories. Lucio Barbasa, for each one of the two offenses of falsification of certificates, was convicted and condemned to two years and one day of suspension and a fine of 325 pesetas, and, in case of insolvency, to the corresponding subsidiary imprisonment, and Teodoro Luna, for each one of the two crimes, to the penalty of one month and one day of arresto mayor, with accessories, and each to the payment of one-sixth part of the costs, one-half of the provisional imprisonment suffered to be deducted from the term of imprisonment to which they were sentenced. Tomas Acosta and Ignacio Jacobo were acquitted of the charge of falsification of cedula and falsification of .certificates, and the said Acosta and Jacobo and the said Lucio Barbasa and Teodoro Luna were acquitted of the charge of falsification of a certificate of baptism by reason of lack of evidence of their participation in the said crime, with the remainder of the costs de oficio. Julio Lagrimas del Rosario made certain arrangements with one Catalino Gaza by which the latter was to act as his substitute in the military service under the Spanish Government. Gaza received from Lagrimas a certain sum of money through the agency of Tomas Acosta, a sergeant of the engineer corps which the substitute was to join. Acosta undertook to prepare the necessary documents, consisting of the certificate of baptism of Julio Lagrimas, the cedula of the latter, and two certificates issued by Lucio Barbasa as gobernadorcillo of Ermita, with two attesting witnesses, Miguel Abalos and Teodoro Luna. The result of the investigation shows that the certificate of baptism was altered by erasing the year of birth and by writing over this erasure "1864" in place of "1874," which was the year originally entered on the certificate; that the personal cedula of Julio Lagrimas, issued on July 4, 1894, by the said gobernadorcillo, Lucio Barbasa, and the caheza de barangay, Miguel Abalos, stated that Lagrimas was 30 years of age and was a resident of Ermita, the fact being that he was only 20 years, of age and was a resident of Santa Cruz; that in the certificate of July 10, 1894, by the said gobernadorcillo, Barbasa, and the attesting witnesses, Abalos and Luna, it was stated that Lagrimas, whose name was registered in the district under the charge of Abalos, was free from forced military service for that year, the fact being that he was included in the list of conscripts of the district of Santa Cruz; and that in another certificate of the same date, issued by the same gobernadoroillo and witnesses, it was recited that Eleuterio Lagrimas, the father of the substitute Julio, had given his consent to the enlistment of the latter, the certificate purporting to bear the signature of Eleuterio, who, in fact, was unable to write, and who denies having given such consent. From the facts related it follows that the crime of falsification of a public document has been committed, inasmuch as a certificate of baptism is of a public or official character, this crime

being defined and punished in article 301, in connection with article 300 of the Penal Code. The facts also show the commission of another crime, consisting in the falsification of a personal cedula, punished by article 307 of the same Code, as well as the commission of two crimes of falsification of certificates, defined and punished by article 310 of the Code. Tomas Acosta, the only person liable for the falsification of the certificate of baptism of Julio Lagrimas, being absent, it is not necessary for the court to deal with the question of his guilt in the commission of this crime. For the same reason, owing to the absence of Miguel Abalos, the cabeza de barangay who issued the false personal cedula in favor of the said Julio Lagrimas, making it appear falsely that the latter was registered in his office, the question of his guilt is not before us. Nor can we hold that the gobernadorcillo of Ermita, Lucio Barbasa, participated in this falsification of cedula, inasmuch as his signature was simply appended for the purpose of attesting that the cedula was issued, as it was in fact, by the cabeza de barangay, upon whom alone rests the responsibility for the validity and the authenticity of the cedula issued. With respect to the two crimes of falsification of certificates, and in view of the absence of Miguel Abalos, one of the attesting witnesses who signed them, the only persons who can now be held responsible for their participation in the commission of the crime are the gobernadorcillo , Lucio Barbasa, and the other attesting witness, Teodoro Luna, as, notwithstanding the exculpative allegations of the gobernadorcillo, Barbasa, the fact is that he, acting in his capacity as a local authority, together with the attesting witnesses, issued and signed these certificates, under his name and official title. Hence, the attesting witness Teodoro Luna and the gobernadorcillo who signed the certificates are responsible for the falsification committed by the mere fact of having certified to the truth of statements therein contained, it being unquestionable that Barbasa performed these acts in the exercise of his official duties, the documents having been sealed with the seal of the municipal court of Ermita, and consequently having, under the administrative laws, an official character, the offense being specifically punished by article 310 of the Code. However, the responsibility of Teodoro Luna, as a mere attesting witness, and therefore a mere private individual, and not in the exercise of any public, permanent office, falls within the provisions of article 311 of Code. It the commission of the two crimes above mentioned, we are of the opinion that the especial circumstance of article. 11 of the Code should be applied, in view of the character of the crimes prosecuted and the personal conditions of the accused, there being no aggravating circumstance to offset the effect of this article. Therefore, by virtue of section 50 of General Orders, No. 58, and without passing upon those parts of the judgment of the court below against which no appeal has been taken, we are of the opinion that for each one of the two crimes of falsification of certificates the former gobernadorcillo of Ermita, Lucio Barbasa, should be sentenced to two years and one day of suspension from public office, the right of suffrage, the exercise of any trade or profession, and to a fine of 700 pesetas, and, in case of insolvency, to the corresponding subsidiary imprisonment, and to the payment of one-sixth part of the costs in both instances, and Teodoro Luna to one month and fifteen days of arresto mayor, with the accessories of another sixth part of the costs in both instances; and that the said Barbasa and Luna be acquitted of the charge of falsification of cedula, with two-sixths parts of the costs de oficio, the judgment below to be affirmed in so far as it is in conformity with this opinion and reversed in so far as it is in conflict therewith.

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

OSJurist.org

G.R. No. 257, August 29, 1902

THE UNITED STATES, COMPLAINANT AND APPELLANT, VS. LINO REYES, DEFENDANT AND APPELLEE. D ECIS ION
TORRES, J.: Appeal by the private prosecutor, Flaviano Abreu, against the judgment of the 20th of July, 1896, rendered in case No. 52 of the Court of Bulacan, for falsification and estafa, by which the defendant was acquitted, with costs de oficio. By an order of the 7th of April, 1891, entered in a civil suit, it was directed, among other things, that certain lands situated at Panducot and Mayto be delivered to Flaviano Abreu and his wife, Saturnina Salazar, together with the fruits received or which might have been received from 1885 up to the date of delivery, without prejudice to the rights of ownership or possession which the heirs of the late Regina Estrella might believe to exist in their favor with respect to said lands, and which they might exercise in the corresponding civil actions against such persons as they see fit to sue, without express condemnation as to payment of costs and other matters therein expressed. This order was affirmed by the civil branch of the audiencia on the 17th day of April, 1893, and in consequence the said Abreu and Zalazar were put in possession of the said lands on June 16, 1893. On the 1st day of May, 1893, Lino Reyes presented a petition, which was accepted, by which he sought to obtain recognition by the state of his title to a certain parcel of land situated at a place called Mayto, of the town of Calumpit, with the view to obtaining a deed to the said lands. As soon as he obtained this deed it was recorded in the office of the Registrar of Property, and then, at his instance, the Court of First Instance directed that he be put in possession of the said lands. However, in view of the opposition made by Flaviano Abreu to the possession which Reyes sought to obtain, the proceeding was declared contentious by a subsequent order of the court dated the 16th of June, 1894. The record shows that on the 16th of June, 1893, the judge of First Instance of Bulacan, with his assistants, a surveyor and a representative of Flaviano Abreu and his wife, went to the places called Nagdasic and Panducot, and that the said representative was put in possession of certain lauds in each one of the two places mentioned, of which lands the boundaries and superficial area were separately recited in the minutes of those proceedings. With these antecedents, counsel for the complaining witness accused Lino Reyes of having committed the crimes of estafa and falsification, alleging that he, pretending to be the owner of the land situated at the place called Panducot, of the town of Calumpit, of the value of more than 5,000 pesos, and by means of a proceeding in voluntary jurisdiction, obtained from the Court of First Instance the possession of said land on the 16th of June, 1894, to the prejudice of the Abreus, who had been in possession thereof since June 16, 1893, and that he, to that end, made use of fraud and deceit, and that upon the true facts being known to the court, and in view of the opposition of the possessors, the Abreus, by order of the 16th of June, 1894, above mentioned, the proceedings were declared contentious, and that consequently the said

Reyes was liable to suffer the penalties prescribed by article 537 of the Penal Code. It was further alleged that the crime of falsification was committed because said Lino Reyes made a false statement of facts in his petition prepared for the purpose of obtaining a title from the State to the said lands, and by deceit obtained a title deed to the same, and that subsequently, by means of this title deed, he obtained judicial possession of the said lands, and that consequently he was subject to the penalties prescribed by articles 301 and 302, in connection with article 300 of the Penal Code. The case having come on for trial, the defendant in his testimony alleged that by composition with the State he had obtained a title deed to a piece of land situated at a place called Mayto; that he had solicited this composition in May, 1893, and that, by virtue of the deed issued, he was judicially given possession of the said lands, and further stated that, before seeking to obtain the said title, he was already in possession of the land as guardian of his children, who had inherited the same in 1890 from their deceased grandmother, Regina Estrella. From the facts related it does not appear that the crimes of estafa and falsification charged have been committed. The mere fact that the defendant, Reyes, solicited composition with the State concerning certain lands which he alleges to have been in his possession for more than twenty years under title derived by inheritance, and the fact that he obtained a deed to the said lands, there having been no opposition on the part of any third person with a better right, after compliance with the other legal requirements, are not those which constitute the crime defined and punished by article 537 of the Code, because there was no deceit employed, lucri causa, to the prejudice of a third party. Nor has Reyes, under a simulated claim of ownership, sold, leased, or encumbered the said lands, and thereby violated the articles of the Penal Code cited. Apart from the fact that it does not appear with sufflcient clearness whether the Mayto lands are or are not the same lands situated at Panducot and Nagdasig, as this fact does not appear to have been determined in the proceeding of ocular inspection (folio 167); and in view of the fact that the complaining witness, Flaviano Abreu, opposed the judicial possession which the defendant, Reyes, sought to obtain of the land situated at Mayto, it is evident that the real question at issue is the validity or nullity of the deed obtained by Reyes, and the real question in controversy is the ownership of certain lands, which, furthermore, do not appear to have been sufficiently identified. With respect to the falsification also charged in this case, it does not appear from the record that the defendant when he affirmed in writing that he had been in possession of the Mayto lands for twenty years in representation of his minor children, who inherited the same from their grandmother, Regina Estrella, maliciously perverted the truth with the wrongful intention of .injuring the complaining witness; and with respect to the deed given the accused by the Government, the same is an official document which, on its face, complies with all the requisites established by the administrative laws and is guaranteed by the State. Its validity and legal efficacy are unquestionable. The charges of estafa and falsification made in this case are deficient in that they take the issue itself for granted. The evidence does not disclose any false statement of fact nor the simulation of any title. Upon these considerations, therefore, and because the facts charged do not constitute the

crimes of estafa and falsification, there being no indication that such crimes have been committed, we are of opinion that the judgment of acquittal of the court below should be affirmed, with the costs of this instance de oficio, and that the judge should dissolve the attachment levied upon the property of the defendant, Lino Reyes. So ordered. Arellano, C.J., Cooper, Willard, and Ladd, JJ., concur.

OSJurist.org

G.R. No. 266, March 04, 1902

THE UNITED STATES, COMPLAINANT AND APPELLEE, VS. VICENTE DEL ROSARIO, DEFENDANT AND APPELLANT. D ECIS ION
TORRES, J.: On the night of September 8,1896, Wenceslao Cristobal, lieutenant of the barrio, ordered that Vicente del Rosario be placed as sentinel in the sentry box at the place called Lauangbato in the pueblo of Santa Maria, Bulacan, and as the latter withdrew to his home and delayed in making his appearance, the said lieutenant ordered that he be called. Upon his appearing after a considerable period of time he stated that he ought not to render said public service because he had already made the rounds and that another should do it. Thereupon the lieutenant raised his stick to strike the defendant who in turn grasped his bolo, perhaps in order to defend himself, so that the blow then given was parried by the said weapon. The lieutenant then seized Rosario, in order to subdue him, with the assistance of two witnesses there present, one of whom tied him while the other took the bolo from him. The act set forth does not constitute the crime of assault, or that of resisting an agent of the Government, and still less that of grave disobedience to the latter in the exercise of his authority, for the reason that the defendant seized the bolo which he carried in his belt in order to defend himself and for the purpose of parrying the blow given him by the agent of the Governmentan instinctive act of defense against an unjustified assault. And as the defendant did not attack nor attempt to assault or intimidate the officer with said weaponelements in the commission of the crime of assault defined and punished in articles 249 and 250 without which the said crime can not be deemed to exist - and as he did not disobey an order of the said officer (for the statement which has been relied upon can not be construed as disobedience) it is apparent that proof is lacking of the acts which constitute a crime and that the acts committed by the accused are not criminal or of a criminal character. The defendant must therefore be acquitted. It follows that the judgment appealed from should be reversed and the defendant acquitted with the costs of both instances de oficio. The order declaratory of the defendant's insolvency made in the proceeding of attachment should be approved. So ordered. Arellano, C J., Cooper, Willard, Mapa, and Ladd, JJ., concur.

OSJurist.org

G.R. No. 268, August 05, 1902

THE UNITED STATES, COMPLAINANT AND APPELLANT, FRUTO ANDRADE ET AL., DEFENDANTS AND APPELLEES. D ECIS ION
TORRES, J.: On the 27th of January, 1896, the solicitor representing Gregorio Francisco and Antonia Rojas, husband and wife, filed a written complaint alleging that on the morning of the 16th of the said month Juan San Luis, Lorenzo Trinidad, Hermogenes Ignacio, and Fabian Francisco proceeded to cut some canes which were growing on a piece of land situated at a place called Carapdapan, of the town of Marilao, of the Province of Bulacan, of the exclusive ownership of the said complainants, and conveyed the same, with other canes already cut, and which were lying on the ground there, to a lot next to the house of Fruto Andrade, who at that time was there present, together with Melecio Rojas, this having been done by the four persons mentioned by order of Andrade, who subsequently made use of the canes taken; that as Maximo de los Santos, the person left in charge of the land and of the plantation by the owners, opposed this proceeding, Melecio Rojas threatened him that, as he, Rojas, was justice of the peace, he could have him tied up and sent to the capital city; and that, in view of this proceeding, Maximo left the place to report what had happened to the owners of the land. Maximo de los Santos, the caretaker referred to, and seven other witnesses testified in corroboration of the facts related in the complaint. For the purpose of proving the ownership of the land the complaining witness exhibited the certificate of the registrar of property to the effect that a possessory information, prepared at the instance of Antonia Rojas, had been presented at his office for record, and in this possessory information the land on which the canes were cut is described. They also presented a will executed by Esteban Rojas, in clause 18 of which, as part of the share of Dofta Antonia, the land referred to appears. The value of the canes cut was estimated by experts to be 18 pesos. The defendants Lorenzo Trinidad, Juan San Luis, Hermogenes Ignacio, Fabian Francisco, and Fruto Andrade confessed that the four first-named defendants had cut a number of canes on the day mentioned in the complaint, and took them, together with others formerly cut, to Andrade's house by order of the latter. There was some conflict in their testimony as to the name of the place where the cane was cut, although Andrade testified that the place was called Donganpare or Carapdapan. All of them, however, denied that they or Melecio Rojas, who had gone there for the purpose of getting two pieces of bamboo, had made any threats against Maximo de los Santos, who, they said, was not there. This m also the testimony of Rojas, who, in turn, cited four witnesses who testified in corroboration of his statement to the effect that they had not seen Maximo de los Santos, the man alleged to have been threatened, in the place referred to. Fruto Andrade further testified that he is the owner of the land where, the cane was cut, and that the land does not belong to Antonia Rojas, but to him (Andrade), he having inherited the same from his late father, Saturnino Andrade, who had been in uninterrupted possession thereof for thirty years. As witnesses he called five persons who were owners of adjacent lands. The first three of these witnesses testified in corroboration of the statement of Andrade, the

fourth affirmed that her deceased husband had so informed her, and the last witness testified to the contrary. It also appears from the case that an ocular inspection of the land in dispute was made in the presence of the parties in interest, the owners of adjacent lands, and of eleven other witnesses presented by Andrade, the result of which was that the lines of the land inspected and on which the canes were cut were found to be different from those of the land which the private prosecutors claim to be their property. The witnesses there present testified that the land in question and the bamboo canes were the property of Andrade. The record furthermore contains a copy of a complaint filed by Andrade against the private prosecutors, for the purpose of obtaining the annulment of the possessory information presented by them to the registrar of property. From the facts above stated it appears that the record does not contain conclusive evidence of the existence of the crimes of theft and threat. On the one hand, it does not appear that Maximo de los Santos was present at the place where these threats are alleged to have been made, nor that Melecio Rojas, charged therewith, had made such threats; and, on the other hand, it does not appear from the record that the other defendants have stolen bamboo as charged, with intent to profit thereby, inasmuch as the evidence does not sufficiently demonstrate that the bambpo or the land on which it was growing was the property of Antonia Rojas. Consequently, the question of the ownership of the land having been put in issue, and that question being now pending decision in the action for the annulment of the possessory information with respect to the land in question, brought by Andrade against the private prosecutor, Antonia Rojas, it does not appear that Andrade and his codefendants have committed the crime of theft. To overcome the allegations and evidence of the complainants, Fruto Andrade, in turn, introduced evidence for the purpose of showing that he was the owner of the land and of the canes alleged to have been stolen, and as the boundary lines of the land which the complaining witness alleges to be her property are different from those of the land claimed by Andrade, as shown by the ocular inspection conducted in the presence of the parties, of the owners of adjacent lands, and of several other witnesses, the defendants must be acquitted on account of the absence of proof of the existence of the crime of theft as above stated, and because the fact of the cutting and taking of bamboo from the land in question by order of Fruto Andrade does not constitute the crime of theft, and because the question raised by the parties as to the ownership and possession of the land in question must be determined in the proper civil action. Therefore, for the reasons stated, and in view of the provisions of section 57 of General Orders, No. 58, the judgment of the court below must be affirmed with costs de oficio the judge to proceed in accordance with law with respect to the property belonging to some of the defendants which has been attached. Arellano, C. J., Cooper, Willard, and Ladd, JJ., concur. Mapa, J., did not sit in this case.

OSJurist.org

G.R. No. 275, July 22, 1902

THE UNITED STATES, COMPLAINANT AND APPELLEE, VS. BALBINO ROSALES ET AL., DEFENDANTS AND APPELLANTS. D ECIS ION
TORRES, J.: This case comes up in consultation of the judgment of the 18th of February, 1898, rendered in case No. 13153 of the Court of First Instance of Batangas, for robbery. In that case Balbino Rosales and Leocadio de Guzman were each convicted as principals in the crime and sentenced to suffer the penalty of one year and one day of correctional imprisonment, with accessories, and Ruperto Alse and Julian Dimaculangan, as accessories, were condemned to the payment of a fine of 6,250 pesetas each, and, in case of insolvency, to suffer subsidiary imprisonment not to exceed six months. All four were condemned to pay to the complaining witness damages in the sum of 55 Mexican pesos, the value of the animals stolen, together with 10 cuartos, the amount of damage done to the corral, this obligation being imposed jointly and severally, in accordance with law, with subsidiary imprisonment in case of insolvency. These defendants were also condemned to pay each one-ninth part of the costs. The Government in the second instance asks that the judgment be reversed and that the four accused convicted by the judge below be acquitted. The taking of a bull belonging to Brigido Bonafe from the corral where he was inclosed on the night of Saturday, the 7th of November, 1891, and the destruction of part of the said corral, can not be properly classified as robbery, but constitutes the crime of theft, since, as in order to take the animal away, it was not necessary to destroy the corral or to cut the stakes driven into the ground. The only thing that was done was to pull up some of these stakes for the purpose of making the opening the thieves required, and so the man in charge found the corral' the next day. The fence opened does not appear to have been firmly constructed and did not offer the slightest security against the most insignificant effort to force an entrance, as appears from the fact that the thieves, with their hands alone, and without any other instrument, were able to make the opening and to take away the bull. In consideration, moreover, of the fact that the corral was not covered or in any way connected with an inhabited house, it is unquestionable that the offense committed was that of theft, defined and punished by section 3 of article 518 of the Penal Code. The guilt of the defendants Balbino Rosales and Leocadio de Guzman as principals, and that of Ruperto Alse and Julian Dimaculangan (who subsequently died) as accessories, is established by the evidence in the case. Therefore, the undersigned being of the opinion that the findings of fact and conclusions of law of the judgment of the court below are correct, with the exception of its conclusion with respect to the classification of the offense, as stated above, the said findings of fact and conclusions of law are accepted by the undersigned as the basis of this decision, notwithstanding the opinion of the counsel for the Government, with the exception of the part of the said judgment which refers to the deceased defendant. In determining the appropriate penalty the concurrence of the aggravating circumstance of nocturnity will be considered. There are no mitigating circumstances in the case, and therefore the judgment of the court below should be reversed. Balbino Rosales and Leocadio de Guzman,

guilty as principals of the crime of theft prosecuted, should be convicted and sentenced each to six months and one day of correctional imprisonment, with the accessories of article 58 of the Code. Ruperto Alse should be fined 1,250 pesetas, and, in case of insolvency, should suffer subsidiary imprisonment, not to exceed one month. All three defendants should be condemned to the restitution of the stolen animal, or to indemnify the complaining witness therefor jointly and severally, in the order established in article 125 of the Code, the value of the animal being fixed at 55 pesos, and in case of insolvency should suffer the corresponding subsidiary imprisonment. Finally, they should be condemned to pay each one-ninth of the costs of both instances. The case is, with respect to Julian Dimaculangan, reversed, with one-ninth part of the costs de oficio. No decision can be made with respect to the two absent accused, as to whom the course of the case was suspended, nor with respect to the three defendants acquitted below, under section 50 of General Orders, No. 58. The order declaratory of insolvency, made in the incident of embargo, is approved. So ordered. Arellano, C. J., Cooper, Willard, and Ladd, JJ., concur. Mapa, J., did not sit in this case.

OSJurist.org

G.R. No. 307, September 12, 1902

THE UNITED STATES, COMPLAINANT AND APPELLEE, VS. AGUSTIN VILLANUEVA, DEFENDANT AND APPELLANT. D ECIS ION
TORRES, J.: Appeal by the defendant, Agustin Villanueva, against the judgment of the 18th of November, 1897, rendered in case No. 5606 by the court of La Laguna, for attempted estafa, by which he was condemned to pay 500 pesetas fine, or to the subsidiary personal penalty, and to the payment of one-third part of the costs. On the 25th of November, 1884, Celestino Borlasa filed a complaint before the local authorities of the town of Lilio against Agustin Villanueva, stating that he, accompanied by Juan Urna, had gone to the complainant's house, and, after having examined the house, by order, as stated by Villanueva, of the forestry officer, Hermenegildo de Ocampo, and having observed that the house was built with new lumber, as well as several other houses also examined, demanded of the complainant the sum of 6 pesos and 2 reals for the purpose of avoiding a fine and with a view to preparing a petition for obtaining a free permit to cut timber. This amount the complainant was unable to pay, and Villanueva refused to receive 3 pesos, which was offered him by Borlasa. This fact, proven by the testimony of two trustworthy witnesses, constitutes the crime of attempted estafa, denned and punished by section 1 of article 534 and section 1 of article 535 in connection with article 66 of the Penal Code. The facts established by the evidence in the case show that the attempt was made to obtain the sum of 6 pesos and 2 reals by fraudulent representations and for purposes not justified or authorized by the forestry law. If the estafa was not consummated it was because the complainant either could not or would not pay the amount demanded, and simply offered a little less than half, which the defendant, in turn, refused to accept. The defendant, Agustin Villanueva, is guilty, as author by direct participation, of the crime of attempted estafa of a sum not exceeding 250 pesetas, by his own confession. Although the defendant did not succeed in consummating the crime of obtaining the money upon the fraudulent pretext of having been authorized by the forester, Hermenegildo de Ocampo, an employee of the Forestry Bureau, the fact is that he attempted to obtain the amount demanded and refused to receive the 3 pesos which the complainant offered him, this being less than onehalf of the amount demanded. All these facts are established by the testimony of the two witnesses there present and by another witness, who affirms that he saw Villanueva in conversation with the complainant, Celestino Borlasa, although not aware of the subject of their conversation. The unsupported allegation by the defendant that he had acted under the orders and upon the authority of the ranger, Ocampo, who was not arrested and is still absent, can not serve as an excuse or relieve him from the charge brought against him, inasmuch as the forester was not authorized or empowered to give such orders, nor is such an action authorized by law.

In the commission of the crime, and for the purpose or the imposition of the penalty, the concurrence of the aggravating circumstance of No, 18 of article 10 of the Code must be considered, because Villanueva has been already convicted by final judgment of three other crimes of estafa, and, therefore, no mitigating circumstance being present to offset the effects of the aggravating circumstance, the defendant must suffer the penalty prescribed by the law in its maximum degree, although, in consideration of the provisions of article 83 of the Code, and it not appearing that the financial position of the defendant is such that he may be classed as a rich man, which appears from the nature of the crime, the fine to which he has become liable should not be a heavy one, and therefore, by virtue of articles 26, 83, 92, and those above cited, section 50 of General Orders, No. 58, and the law of August 10, 1901, we are of the opinion that the judgment appealed should be affirmed with reference to the defendant, Villanueva, but in case of inability to pay the fine, the subsidiary imprisonment can not exceed one month and one day, the preventive imprisonment suffered to be computed, the defendant to pay one-third of the costs of this instance, without special mention as to the defendant Juan Urna acquitted by the court below. So ordered. Arellano, C. J., Cooper, Willard, Mapa, and Ladd, JJ., concur.

OSJurist.org

G.R. No. 310, July 30, 1902

THE UNITED STATES, COMPLAINANT AND APPELLEE, VS. JACINTO ASIAO ET AL., DEFENDANTS AND APPELLANTS. D ECIS ION
TORRES, J.: Late on the night of the 28th or early in the morning of the 29th of December, 1897, a wooden trunk, containing clothing and jewelry to the value of 9 pesos and 7 reales, and the sum of 56 pesos and 50 cents in silver, and 5 reales in fractional coin, were taken from the house of Dolores del Rosario, situated in the town of Milaor, of the Province of Camarines Sur. In order to enter the house the thief or thieves had entered by the street door, which they succeeded in opening by thrusting a hand through the nipa wall and then drawing the wooden bolt. By chance the woman Dolores woke up, and, missing the trunk from her room, immediately opened the window toward the street and then saw two men who were running away with the trunk. She recognized one of them as Jacinto Asiao, and as he lived with Atanasio Copendit, she immediately concluded that these two were the men who had stolen her trunk, which was subsequently found some distance away, with the top broken in and the money missing, the clothing and jewelry, however, having been recovered. The damage done the trunk is estimated at 50 cents. These facts, proven by competent testimony, constitute the crime of robbery without arms, in an inhabited house, of goods and money of which the total value does not exceed 1,250 pesetas, and the breaking of a locked trunk, outside of the place from whence it was takena crime defined and punished by article 502 and the last paragraph of article 508 of the Penal Code. Notwithstanding this, however, the record does not sufficiently demonstrate the guilt of the two accused, inasmuch as the unsupported allegation of the complaining witness that she recognized Jacinto Asiao on the night of the robbery as one of the men she saw from the window of her house running away with the trunk, is not sufficient to satisfactorily establish the responsibility of Jacinto Asiao, nor is the testimony of a servant of the complaining witness who identified Atanasio Copendit in the ring of prisoners as the other of the two thieves. This same witness testified elsewhere that owing to the darkness of the night of the occurrence he could not recognize the man whom he challenged when running after the two thieves. Therefore, there being no other evidence for the prosecution in the record to support the accusation of the complaining witness in view of the contradictory statements made by the witness referred to, the defendants are entitled to an acquittal. They must be presumed to be innocent until their guilt is proven by satisfactory testimony, and even in case there is a reasonable doubt as to their innocence they are entitled to an acquittal. Therefore, in accordance with section 57 of General Orders, No. 58, the judgment of the court below must be reversed and the defendants acquitted with the costs of both instances de oficio. The order declaratory of insolvency is approved, and the judge is directed to act in accordance with law with respect to the property of Copendit, which was attached. So ordered. Arellano, C. J., Cooper, Willard, and Ladd, JJ., concur.

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

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G.R. No. 339, July 18, 1902

THE UNITED STATES, COMPLAINANT AND APPELLEE, VS. DAMASO JADER, DEFENDANT AND APPELLANT. D ECIS ION
TORRES, J.: This case was brought before the court in consultation of the judgment of the 11th of April, 1898, rendered in case No. 112 of the Court of First Instance of Tayabas on a charge of five offenses of bribery. By it the defendant, Damaso Jader, was condemned to three months and eleven days of arresto mayor for each one of the said five offenses, together with special disqualification for and suspension from all public offices and from the right of suffrage during the continuation of the penalty, and to the payment of a fine of 12 pesos and the costs. The Attorney-General in this second instance asked that the .judgment of the court below be reversed and that the accused be condemned to the penalty of two months and one day of arresto mayor for each one of the five offenses, the penalty not to exceed in its totality three times any one of the individual penalties, to the accessory penalties, to special temporary disqualification, and to the payment to the complaining witnesses of the value of the articles obtained, together with a fine of 15 pesos and the costs. In case of insolvency with respect to the fine or indemnification, it was asked that the defendant be condemned to suffer the subsidiary imprisonment and payment of costs. The facts found by the court below, which we accept, were that the defendant, Damaso Jader, as cabeza de barangay and teniente of the barrio of the town of Candelaria, accepted cocks, hens, bamboo, and other articles under promise to relieve the persons from whom he had obtained them of the obligation to perform certain duties which they as citizens were required to perform. Notwithstanding the fact that the accused denied these charges and alleges that he had purchased the articles which he received, the record contains evidence which is sufficient to convince the mind of the truth of the facts, which constitute crimes of estafa and not of bribery, as well as the guilt of the accused. Consequently the defendant should be convicted as prayed for by the Attorney-General, article 11 of the Penal Code being taken into consideration in his behalf as a mitigating circumstance. The facts upon which the prosecutions are based constitute, in our opinion, five offenses of estafa and not of bribery. The articles received by the accused were not offered to him nor were they donated by the five taxpayers of his department for the purpose of corrupting him and in order to induce him to omit the performance of his duty, but were demanded by the defendant, who thereby abused his office as cabeza de barangay and teniente of the barrio. Therefore, instead of applying to these facts articles 383, 385, and 387 of the Penal Code, section 1 of article 534 should be applied, in connection with section 1 of article 535 and article 399 of the same Code. These facts constitute exactions committed by a public functionary by an abuse of his official position, to the prejudice and in fraud of his fellow-citizens. Taking into consideration the mitigating circumstance mentioned, therefore, we are of the opinion that the judgment below should be reversed. The five offenses committed constituting estafa, Damaso Jader should be condemned for each one of them to the penalty of two months of arresto mayor, the imprisonment to be suffered by him not to exceed in its total duration three times the length of each individual penaltythat is, six monthsthe remainder of the imprisonment

to be remitted in accordance with rule 2 of article 88 of the Code. The accused should also be condemned to the accessories of article 61, ten years and one day of special temporary disqualification, indemnification to the complainants of the value of the articles received, and in case of insolvency to subsidiary imprisonment, and to the payment of the costs of both instances. So ordered. Arellano, C. J., Cooper, Willard, and Ladd, JJ., concur. Mapa, J., absent on account of illness.

OSJurist.org

G.R. No. 367, March 26, 1902

THE UNITED STATES, COMPLAINANT ANA APPELLEE, VS FRANCISCO ENRIQUEZ, DEFENDANT AND APPELLANT. D ECIS ION
WILLARD, J.: The court is not agreed upon the merits of this case. We are all agreed that the amended complaint is insufficient and that the judgment must be reversed for that reason. We differ as to whether this defect should be disregarded and the defendant acquitted. The amended complaint was presented on the 13th day of November, 1900, and in its substantial part it is as follows: The undersigned accuses Francisco Enriquez, defendant in cause No. 82, of the crime of embezzlement ( estafa), committed as follows: The said Francisco Enriquez on the 20th day of November, 1897, in Manila, Province of Manila, appropriated to himself the sum of $4,243, an amount received by Francisco Enriquez in the capacity of agent, to the prejudice of his brothers, Don Eafael, Don Antonio, etc., from whom he lived separately, contrary to the statute in such case made and provided. To this amended complaint the defendant demurred. The demurrer was overruled and he was placed upon trial and convicted of appropriating $4,243 found to have been received by him as agent of his father; $1,000 on September 13, 1883, and the balance on December 24, 1883. The money was found to have been received by him as part of the purchase price of the house No. 2, in Calle Pundicion, Intramuros. One purpose of a complaint is to notify the defendant of the transaction from which it is claimed the crime results, so that he can prepare his defense. If, after reading the complaint, he, being a man of "common understanding," can not tell to what acts of his done in the past the complaint refers, it is insufficient. In this complaint the estafa is alleged to have been committed on November 20, 1897. Time, Jiowever, was not a material ingredient in the offense of estafa here charged, and under the provisions of article 7 of General Orders, No. 58, that date need not have been alleged. When the date is not a material ingredient of the crime it alone furnishes, as a general rule, no means of determining what the transaction is to which the complaint refers. Everyone performs a great many acts in a single day. Which one of these acts is marked by the complaint as criminal must be. identified in some other way than by the date. That is well illustrated by this case. It appears that this date, November 20,1897, is the date of the inventory which the defendant presented as executor of the estate of his parents. His failure to include in this inventory the sum above referred to is alleged to have constituted the estafa. How could this date give the defendant any clue as to what act of his in connection with this inventory was charged as criminal, even assuming that he knew that this was the date of the inventory, and that it was the presentation of this inventory and not any other act of his committed on that day to which reference was had? But it may be said that the amount appropriated is given, to wit, $4,243. That amount,

however, described nothing. There is no way of knowing what $4,243 is mentioned. It appears from this inventory that he received over $220,000. Under this complaint he could have been tried for the embezzlement of any $4,243 included in that sum. Besides all this, as a general rule the amount named is not descriptive of the offense, and the defendant can be convicted if the evidence shows a smaller amount embezzled. The complaint does not show of whom he was agent. We do not see why, if this complaint is sufficient, he could not have been tried for appropriating, in November, 1897, any sum less than $4,243 received from anyone by him as agent, provided it was shown that Don Kafael and Don Antonio Enriquez were prejudiced. In fact, this last statement is really the only thing which identifies the transaction. If the defendant, on reading the complaint, had surmised that it referred to the sale in 1883 of this house on Calle Fundicion and had prepared his evidence to meet that charge, we see nothing that would have prevented the Government, when the case was called for trial, from proving a case entirely foreign to that transaction; as, for example, that on or about November 20, 3 897, A. had paid the defendant about $4,200, which the latter had received as a deposit with the duty of paying it to Don Rafael and Don Antonio. It is plain that the complaint did not restrict the Government to proof of any defined specific transaction, and consequently that the defendant had no notice of the transaction which was to be investigated. In view of a new trial, it is proper to "say that the letter of May 9,1883, and the receipt of September 13,1883, have, if genuine, an important bearing on the questions involved. Some proof of the authenticity of these documents should be made. The testimony of Cajigas is important. The accounts of his guardianship, if he presented any, should be produced for the purpose of corroborating or disproving his statements that he paid these sums in question at the date named. For the reasons before stated the judgment is reversed and the cause remanded to the court below with instructions to that court to direct the filing of a new complaint or information against the defendant. Arellano, C. J., Cooper, Mapa, and Ladd, JJ., concur. Torres, J., did not sit in this case.

OSJurist.org

G.R. No. 384, July 18, 1902

THE UNITED STATES, COMPLAINANT AND APPELLEE, VS. AGAPITO FORTIN,, DEFENDANT AND APPELLANT. D ECIS ION
TORRES, J.: On the night of the 15th of February, 1897, while several inhabitants of the barrio of Talaonga, in the town of Bulusan, were gathered together in the town hall for the purpose of electing subordinate officers, the presiding officer of the meeting, Lucio Fusio, who was also the teniente of the barrio, and was at that time drunk, got into an altercation with Agapito Fortin. The trouble was brought on by Fusio, who, approaching Fortin, bit him in the left shoulder. Against this aggression Fortin defended himself, throwing the teniente to the ground, and as a result of the struggle Fusio suffered some slight bruises. This act would constitute the crime of an attack upon an agent of the authorities and not upon the authorities themselves, inasmuch as Fusio was not an authority, but was only a cabesa de barangay and the teniente of the barrio ; but in view of the fact that the commission of this crime has not been proven, the provisions of article 249 and the last paragraph of article 250 of the Penal Code can not be applied. It appears from the record that the provocation and the aggression were both on the part of the teniente of the barrio , who while drunk bit the accused in the shoulder as stated above, and that the latter in repelling this aggression threw the complaining witness to the ground, the latter being so drunk that he could not represent the authorities with decorum, and that in so doing the defendant only acted in his personal defense against an unlawful attack made without provocation on his part and by means which were entirely reasonable. Therefore, the accused in so acting committed no offense and'is exempt from all responsibility, more especially because he simply defended himself against a ridiculous and improper aggression made by a drunken man, who, by reason of his drunkenness arid because he was the aggressor, was divested of his character as agent of the authorities. The law can not grant protection to one who has himself been the first to violate it. By virtue, then, of these considerations we are of the opinion that the judgment below should be reversed and the accused acquitted, the facts not constituting an offense. The accused being free from all liability, the judge below will act in accordance with law with respect to the attachment of the property of the accused. The cost of both instances are adjudged de oficio. Arellano, C. J., Cooper, Willard, and Ladd, JJ., concur. Mapa, J., absent on account of illness.

OSJurist.org

G.R. No. 408, April 24, 1902

THE UNITED STATES, COMPLAINANT AND APPELLANT, VS. FRANCISCO ENRIQUEZ, DEFENDANT AND APPELLEE. D ECIS ION
MAPA, J.: On the 14th of February, 1883, in the district of Binondo, city of Manila, a public instrument was executed before the notary Miguel Torres, the parties to which were Antonio Enriquez y Sequera, of the one part, and of the other Dona Concepcion Dayot. This instrument recites that the notary went to the house No. 4 David Street, in the district above mentioned, for the purpose of authenticating the execution of this instrument. It also recites the sale by Antonio Enriquez to Concepcion Dayot of a house helonging to him at No. 14 Baluarte Street, Walled City, Manila, for the sum of 7,150 pesos, and that the vendor had already received the sum of 4,484 pesos on account of the purchase price. The notary certified in the instrument that Antonio Enriquez stated he had the necessary legal capability for the execution of this instrument, and that in the opinion of the notary this was true. He also certified that the parties to the instrument were personally known to him, that they personally appeared before him, and that the contract was executed in the presence of the witnesses Ambrosio Aquino and Mariano Palacio. The instrument is signed by the latter and by Concepcion Dayot. With respect to the other party to the contract, the deed contains the following statement: "The vendor, Antonio Enriquez, being unable to sign for himself, because, although in good health, he is physically unable to sign by reason of the paralysis of his right hand, his son, Francisco Enriquez, here present, signs at his request." The notary also certified to his personal acquaintance with Francisco Enriquez. The complainants charge Francisco Enriquez with having committed a falsification in the execution of the instrument in question by falsely simulating the participation of Antonio Enriquez, and by attributing to him the statements contained therein, it being charged that these statements and such participation are wholly false, because on the date in question the said Antonio was physically and mentally incapable of executing the instrument referred to. This incapability the complainants allege to be the result of a cerebral hemorrhage suffered by Antonio Enriquez in October, 1882. They assert as a fact that in consequence of this hemorrhage Antonio Enriquez became paralyzed and totally deprived of reason and speech; that he was constantly, from that time on and up to the time of his death in the month of July, 1884, in a completely imbecile condition and therefore absolutely incapable of making contracts and executing public instruments. The evidence introduced shows it to be a fact that Antonio Enriquez suffered a hemorrhage in October, 1882, which resulted in the paralysis of the entire right side of his body, and that in consequence he lost his speech and the use of his intellectual faculties for a more or less lengthy period of time, the duration of which is not clearly determined in the record. But we do not consider the evidence to be sufficient to show that subsequently to that time he never recovered his reason or that at the date of the execution of the deed alleged to have been falsified, to wit, on February 14,1883, he was physically and mentally incapable of executing the same, as affirmed and maintained by the complainants.

In the first place, the testimony of the witnesses for the prosecution does not agree as to the degree and persistence of the effects produced by the illness of Antonio Enriquez. Trinidad Enriquez, a sister of the complainants, testified that Don Antonio remained in such a condition that he could not speak or walk or move or recognize any one; that he had become, as she says, completely idiotic, the witness giving it to be understood that he remained constantly in this idiotic condition up to the time of his death. Another witness, Carmen Gonzalez, also avers that Don Antonio was deprived of his speech from the time he fell ill until he embarked for Europe (at the end of March or the beginning of April, 1883); but, on the other hand, she says that some days he was better; that sometimes he was rational, and at others not. Luis Quintos, also a witness for the prosecution, testifies, on the other hand, in effect that Antonio Enriquez recovered his speech, although he spoke with difficulty and incoherently. According to this witness he went to see Don Antonio two or three times for the purpose of transacting some business with him in connection with the inheritance of his wife. The first visit was about the beginning of his illness, and the last shortly before his departure for Europe. He testifies that on neither of these occasions did he succeed in attaining his purpose, because they could not reach an understanding, as Don Antonio was unable to answer him clearly. "The replies he gave me," says the witness, "although spoken most laboriously, I could not understand, because I wanted to say one thing and he answered me about something else." The same witness says that on one of those occasions he talked to Don Antonio for about half an hour; but states, however, that during that period he remained silent for a short time, and that he did not continue talking about his business, but about the illness (Don Antonio's, he doubtless meant to say). "I do not think" adds the witness, "that Don Antonio was mentally unbalanced, but as he did not talk about what I was saying I withdrew." Nevertheless, upon being asked to give his concrete opinion with respect to Don Antonio's mental condition, he stated that he believed the latter was incapacitated because he could not give a consistent answer to his questions. It appears that the witness bases this opinion upon the fact that when he said to Don Antonio, "Let us see if tee can not make a satisfactory arrangement about the matter" Don Antonio replied to him by saving, "I know nothing about it." This reply, considered in itself, does not in our opinion appear to be so inconsistent as the witness regards it, but might well be interpreted as an intentional evasion, for the purpose of not going into the matter which the witness desired to discuss with Don Antonio. At all events, it is evident that the testimony of Luis Quintos is in open contradiction with that of Trinidad Enriquez and Carmen Gonzalez. It would have been absolutely impossible for him to have had a more or less lengthy conversation with Don Antonio Enriquez, even if his answers, in the opinion of the witness, were inconsistent, if it were true that Don Antonio had never recovered his speech, as affirmed by Trinidad and Carmen. The testimony of Agueda Esteban, another witness for the prosecution, is of but little interest in the case. She simply testifies that the illness of Don Antonio Enriquez consisted in his being unable to speak, but without stating whether or not he ever recovered from it. As the only concrete fact which she adduces in support of her assertion the witness states that upon one occasion she approached Don Antonio to complain about the determination of the accused to evict herself and her family from the Teatro Viejo, where they lived, the property, apparently, of Don Antonio, and that the latter did not reply to her, because he could not speak. This occurred, according to her statement, about the middle of 1882, the fact being that Don Antonio fell ill in October of that year. This detail shows how uncertain is the memory of the witness, more especially if it is held in mind that in one part of her testimony she says that she was evicted from the Teatro Viejo by the accused after Don Antonio went to Spain, and in

another place states that this occurred while Don Antonio was still in the city of Manila. The testimony of Julian de las Cajigas is of still less importance. This witness was also called by the complainants, and his testimony refers exclusively to the condition in which he saw Don Antonio Enriquez while in Paris. He did not see him once during the time he was ill in this city. One of the proofs presented by the prosecution is the letter written by the accused on December 30, 1882, to the now complainant, Rafael Enriquez, who was then in Paris, informing him of the illness of Don Antonio, their father, and of his condition at that time. The authenticity of this letter has been admitted by the accused, who also offered it as evidence for the defense, and it therefore has the force of evidence admitted and accepted by both parties. Now, in that letter it is stated, it is true, that Antonio Enriquez had suffered, some days after the 10th of October, 1882, an attack of paralysis, complicated with hemorrhage of the brain, which completely deprived him of movement and of speech, and that the gravity of the attack was such that at first his family despaired of saving him; but it is also true that the letter itself states that some weeks after the attack the patient commenced to improve, slowly at first but rapidly and notably subsequently, to such an extent that at the date of the letter, he was able to walk about the house, with the help only of a little girl, and although he had not yet recovered his speech, he was, however, already able to pronounce clearly a number of words. "The doctor," adds the letter, "hopes that he will very soon be able to speak; he [Don Antonio] already eats with us at the table, * * * and at this rate I hope that by the end of January he will be able to walk without assistance." From this letter it can not properly be inferred that Antonio Enriquez was physically and mentally incapacitated on the 14th of February, 1883, for the execution of the instrument in question. On the contrary, if on the 30th of December, 1882, the date on which the letter was written, he was already able to walk all over the house alone, with the slight assistance of a little girl, and was already able to clearly pronounce a number of words, it is in nowise improbable, in our opinion, that his improvement should have been still more marked in every way a month and a half later, unless he had suffered, in the meantime, some relapse. This, however, does not appear from the record. We do not consider it necessary to concern ourselves with the opinion of Drs. Manuel Xerez y Burgos and Manuel Garcia Ageo, cited by the complainants, to the effect that Antonio Enriquez was absolutely incapacitated. This opinion, founded as it is upon the statements of the witnesses for the prosecution and upon the contents of the letter of December 30, 1882, already spoken of above (for it does not appear that these physicians personally attended Don Antonio), we are unable to give greater weight than that to which it is entitled relatively to the weight which should be given the statements and the letter themselves. It should also be stated that the opinion referred to has been impugned and contradicted in its technical part by Drs. Altmann and Garcia del Rey, called by the defense, who testified that from the evidence in the case it was not possible to draw a sufficiently clear conclusion to form an opinion as to the diagnosis of the illness suffered by Don Antonio, and of its consequences, and that therefore "it can not be affirmed that the latter remamed in the condition stated hy the doctors Xerez y Burgos and Garcia Ageo." In addition to the testimony of these doctors, Messrs. Altmann and del Rey, the defense introduced documentary and oral evidence to demonstrate the capability of Antonio Enriquez at the time of the execution of the deed in question. The oral testimony consists of the declaration of Venancio Ruiz, who says that as solicitor of Jose Roman he filed a complaint against Don

Antonio Enriquez for the recovery of a sum of money in February or March, 1883, and that upon service on the latter of the summons, as he was ill, he sent for the witness; that on his arrival Don Antonio said to.him, "What is this agamst me?" "A complamt of Jose Roman concerning a sum of money" replied the witness. To this Don Antonio replied, "Well, I want that complamt to be withdrawn, I am going to Spain, and I want that complaint withdrawn. Make arrangements with my lawyer, Antonio Gomez." The witness states that the conversation continued for ten or fifteen minutes, and that Don Antonio spoke readily, and that he understood him very well, although he observed that he had some difficulty in enunciation. He also adds that during the entire conversation Don Antonio was standing up, leaning on a stick; but the witness noticed, however, that he walked with some difficulty. The documentary evidence consists, in the first place (1) of a public instrument purporting to have been executed by Antonio Enriquez before the notary public Miguel Torres on the 5th of March, 1883, conferring a power of attorney on his son, Francisco, to represent him in all his affairs and to manage his property, in which instrument it appears that Attorney Pederico Gimenez Zoboli signed at the request of Don Antonio, the donor of the power, he being unable to do so himself on account of the disability of his right hand; (2) a copy of an order entered on the 19th of February, 1883, in a case brought in the Court of Intramuros (Manila) by Francisco de Paula Enriquez, in which it is stated that Don Antonio Enriquez has expressed his approval of the taxation of costs in the said case; (3) copy of the record of demand of payment of said costs made personally upon Antonio Enriquez in his house on March 4, 1883, in which record it appears that he himself at that time gave a comparatively long answer, which, as it is unconnected with the case at bar, it is unnecessary for us to repeat. These copies were not impugned by the prosecution and have apparently been compared with their originals. The authenticity of these documents being taken for grantedand they must be presumed to be authentic until their falsity is shown, owing to their legal character as solemn public instrumentswe must necessarily admit the reality of Don Antonio Enriquez's participation therein and of the statements therein alleged to have been made by Don Antonio. From this point of view these documents must be regarded as strong evidence as to the capacity of Don Antonio at the time of the execution of the instrument in question, because it is indubitable that he could not have personally participated in the proceedings to which these documents refer, or have made these statements, if he had been physically and mentally incapacitated, as asserted by the complainants. Part of the documentary evidence of the defense consists of certain letters of a date subsequent to that of the instrument in question, written from Paris by the complainant, Rafael Enriquez, to his brother, Francisco, the defendant herein, the authenticity of which was admitted by Rafael at the trial. These letters corroborate the fact, flatly denied by some of the witnesses for the prosecution, that Antonio Enriquez had really attained a positive and notable improvement during his illness. Thus, for example, in the letter of June 1, 1883, Rafael says: "Father has improved noticeably during the eleven days we have been here. He goes out with me on foot every day, and with little difficulty goes up and down stairs twice a day to the room in which we live; * * * the improvement m his health points to a complete recovery in a few months". In his letter of the 28th of the same month of June he says, "His mind is quite clear, and he talks to me about everything, and particularly about the little girls." Finally, the record contains a letter written to the accused by Don Antonio from Paris, dated September 30, 1883, signed in his own handwriting, as admitted by the complainant, Rafael, himself. In this letter he speaks of some accounts and the sending of money, giving the

accused instructions for a certain business transaction, just as any completely sane person might do. The explanation which Rafael has endeavored to give concerning this letter, to the effect that he guided his father's hand in the signing of it, apart from the fact that it is wholly unproven, we consider to be of but little importance after what he himself has said in his letters with respect to the physical and mental condition of Don Antonio Enriquez. In view of the result of the evidence introduced in the case we are of the opinion that the falsity of the instrument of February 14, 1883, the object of the complaint, has not been proven. This instrument, having been executed before a notary public, and being, therefore, a public document, carries with it the legal presumption of its authenticity until the contrary is fully established. This conclusion having been reached, it is wholly unnecessary to pass upon the question raised by the defense as to the prescription of the alleged crime, and therefore we make no ruling upon this point. We therefore decide that the judgment appealed, by which the accused was acquitted, must be affirmed, with the costs of this instance to the appellant. Arellano, C. J., Cooper, Willard, and Ladd, JJ., concur. Torres, J., did not sit in this case.

OSJurist.org

G.R. No. 411, April 23, 1902

DONALDSON, SIM & CO., PLAINTIFFS AND APPELLANTS, VS. SMITH, BELL & CO., DEFENDANTS AND APPELLEES. D ECIS ION
LADD, J.: This is an action to recover damages alleged to have been sustained by the plaintiffs by reason of the defendants' wrongful occupancy of certain warehouses in Manila from the 2d to the 14th of May, 1900, inclusive. The buildings in question were the property of Luis R. Yangco, and had been leased by him in July, 1899, to the military government of the United States, by which they had been sublet to the defendants under an arrangement the details of which it is not necessary to state. Yangco objected to the occupancy of the buildings by the defendants, and on the 11th of April, 1900, the Chief Quartermaster of the Army, acting apparently under a misapprehension as to the facts respecting the defendants' arrangement with the Government, addressed a letter to them, stating that the records of the office failed to show that they had any right to the occupancy of the buildings, and requesting that they be vacated at once. On the 30th of April the lease from Yangco to the Government Avas terminated by mutual consent. On the 1st of May, Yangco leased the buildings to the plaintiffs for one year. On the same day the plaintiffs notified the defendants of the lease, and requested them to vacate the buildings within twenty-four hours. This the defendants declined to do, and continued in the occupancy of the warehouses, or some of them, to the exclusion of the plaintiffs, till subsequently to the 14th of May. The judgment in the court below was in favor of the defendants, and the plaintiffs appealed. The decision of this case does not involve the determination of the character of the defendants' occupancy of the warehouses, whether wrongful or otherwise, as between them and the Government, or as between them and Yangco. The only question is whether the defendants have failed to perform any duty which they owed to the plaintiffs. Whatever rights the plaintiffs had in the premises during the period in question, viz, from the 2d to the 14th of May, originated in and depended upon their contract with Yangco for the lease of the buildings. Not having entered into possession under their lease, they had acquired no rights in the leased propertj^ in the nature of rights in rem, and which third persons were therefore bound not to infringe. Article 1560 of the Civil Code, which gives the lessee a direct action against a trespasser, is confined to the case of an actual interference with the lessee's use of the property. Here such use by the plaintiffs had not begun when the alleged wrongs were committed. Article 1902 of the Civil Code, relied upon by the plaintiffs, established the general principle of liabilit for damage caused by fault or negligence, but there can be no fault or negligence where, as in the present case, there was no obligation resting upon the person causing the damage to exercise diligence as respects the injured person. The failure to establish any legal relation between the parties, giving rise to rights in the plaintiffs and corresponding duties on the part of the defendants, as respects the occupancy of the buildings in question, is fatal to the plaintiffs' recovery in this action. Their remedy, if they have any, is against the lessor, under articles 1554 and 1556 of the Civil Code.

The judgment must be affirmed, with costs. So ordered. Arellano, C. J., Torres, Cooper, Willard, and Mapa, JJ.,concur.

OSJurist.org

G.R. No. 417, February 17, 1902

FELICIANA DE GUZMAN, PLAINTIFF AND APPELLANT, VS. MIGUEL FABIE, DEFENDANT AND APPELLEE. D ECIS ION
LADD, J.: This is an appeal from the judgment given in favor of the defendant by the Court of First Instance of Manila in the action of interdiction instituted for the purpose of retaining the possession of the half story and to recover the possession of the upper story of the same house. It appears that the plaintiff lived in the house as a servant of the owner, one Tiburcia Ortiz, at the time of the death of the latter, which occurred on December 22, 1899. After the death of Doa Tiburcia the plaintiff continued in the house, occupying the upper floor of the same for some time and later having removed to the half story. The record is silent concerning the circumstances under which she changed to the half story, save that she did so in order that certain relatives of Doa Tiburcia might temporarily occupy the rooms of the upper story. When they ceased to occupy these rooms, and, as it appears, while the plaintiff still lived in the half story, the defendant rented the rooms to other parties. This is the ouster on which the plaintiff bases her claim that she be again placed in the possession of said rooms. It likewise appears that the defendant, asserting his right as owner of the house, demanded of the plaintiff, through the medium of a notary, that she vacate the half story. The plaintiff contends that this implies such disturbance in her possession of the half story that it gives her the right to be protected in such possession by the law. The defendant, after having made this notarial demand, commenced an action of eviction, which was decided in his favor. (See Fabie vs . Guzman, supra ). The plaintiff contended that the property belonged to her as legatee of Doa Tiburcia under a will executed in 1889, no legal proof of the same having been presented, however. The defendant claimed ownership as universal heir of Doffa Tiburcia under a will executed September 10, 1896, having proved that the registry of said will in the protocol had been ordered by competent authority. We shall not consider the question of whether the plaintiff was ever in such possession of the property that she might maintain an action of interdiction. Nor shall we consider the question, also argued by the attorneys of the parties, whether the two interdicts to retain and to recover possession may be consolidated in one single action as the plaintiff has sought to do. We are of the opinion that the decision of the lower court is perfectly correct, based upon other grounds. Whatever the possession of the plaintiff may have been with reference to the apartments of the upper floor after the death of Dona Tiburcia, there is nothing in the record which indicates, and nothing from which it might be justly inferred, that the defendant has ousted her of said possession or that she has lost the same either directly or indirectly by reason of any act committed by him. It appears that she vacated these rooms voluntarily and did not again acquire the possession thus abandoned prior to the date on which the defendant introduced his tenants. When the act was performed which she classifies as ouster in her complaint, the plaintiff did not hold any possession of which she could be ousted, and the action, considered as

an interdict to recover possession, can not, therefore, be sustained. It is apparent that the action, viewed as an interdict to retain possession of the half story, can not be sustained either. The object of these interdicts is to prevent parties from dispensing justice for themselves, and not to place obstacles in their use of the ordinary legal processes. The notice to vacate given to the plaintiff was merely the first and necessary step given by the defendant in the defense, by the means which the law placed at his disposal, of that which he believed to be his right to the possession of the premises. It makes no difference whether or not he had a right to the possession. He had the right to have the court pass judgment upon his claim, and therefore he had also the right to establish the grounds for the action which he intended to commence by giving notice to vacate. The notice can not be considered as an act which manifests the intention to disturb the plaintiff in her possession or oust her from the same within the meaning of article 1633 of the Code of Civil Procedure. The plaintiff contends that the trial held before the lower court should have been stayed until the determination of an action filed by her against the defendant for the production of the will which is said to have been executed by Doiia Tiburcia in 1809, as well as the determination of a complaint which she is said to have filed against the defendant for the falsification of the will in virtue of which he was claiming the ownership of the house. With reference to this point it suffices to state that, as appears from the record, the plaintiff filed in the lower court an incidental motion, and finally withdrew the same in express terms and prayed the court to give its judgment. No error having been committed in the judgment appealed from, the same should be affirmed with costs taxed against the appellant. It is so ordered. Arellano, C. J., Torres, Cooper, Willard, and Mapa, JJ., concur.

OSJurist.org

G.R. No. 422, March 14, 1902

THE UNITED STATES, COMPLAINANT AND APPELLEE, VS. NICOLAS ANCHETA ET AL., DEFENDANTS AND APPELLANTS. D ECIS ION
TORRES, J.: Late in the night of May 26 of last year when Juana Martires was sleeping in her home in the confines of the pueblo of Amulung, she was awakened by the voice of her husband, Ventura Quinto, who called her to come to the door of the house with a light because certain individuals were there who had arrested him. But when Juana appeared at said door with a light one of the men ordered her to extinguish it or the Americans with them would kill her. She then noticed that her husband had been bound and heard one of the strangers say to him that by order of the American garrison at Alcala they were to conduct him to Pefia Blanca in connection with some affair concerning one Badajo. She recognized Nicolas Ancheta as one of the three men who kidnaped her husbandthe very one who threatened herby his voice, height, and walk. They had their faces covered with their handkerchiefs. Some were armed with daggers and bolos. Terrified, she fled from the house and hid herself at some distance away. Upon her return the following morning she did not find her husband at home and at once reported the occurrence to the authorities. When the municipal president, who was also justice of the peace of that township, made the necessary investigation, the seven defendants were taken into custody and before the justice of the peace, his secretary, the commanding military officer of AJcala, and other persons, they confessed that they had conducted the kidnaped man, Ventura Quinto, to a place called Radap, within the confines of the same township, and that there, by order of Nicolas Ancheta and Sebastian Dayag, he was killed by Faustino Pascual, Daniel Verson, and Aniceto Javier. The latter held an end of the cord with which Ventura was bound and secured, while Nicolas Ancheta, Sebastian Dayag, Claro Ancheta, and Maximo Verson posted themselves at some, distance to watch for the approach of anyone, in order to prevent the discovery of the crime. The local authorities found the body of the deceased in a hole some 2 meters deep, near Radap, at the place designated by the accused. The body was in a state of complete decomposition and hence the practitioner who made the examination was unable to determine the number of the wounds, although he noted that both elbows were tied from behind with strips of rattan and that the abdomen had been ripped open. In addition to this the dagger and bolo were discovered in the place pointed out by the defendants Nicolas and Faustino. All these facts were confirmed by the defendants in their testimony. A complaint having been filed by the public prosecutor and the defendants arraigned they pleaded "not guilty." At the trial the municipal president testified that in his opinion Ventura Quinto was killed as an act of vengeance on the part of Dayag, who had been ill treated the year before by the deceased. Furthermore he believed that the defendants bore resentment against the deceased because the latter, by order of the witness, had arrested the bandit Jose Badajo, who was suspected of belonging to the defendants' band. Two expert armorers testified that they were unable to ascertain if the spots noted on the dagger and bolo were or were not of blood; and that the dagger was of a kind whose use was prohibited, but not the bolo.

The foregoing facts, fully proved at the trial by ocular inspection, expert testimony, the declarations of credible witnesses, and by grave and conclusive circumstantial evidence, constitute the crime of murder, prohibited and penalized in article 403 of the Penal Code. The execution of the crime was attended with the qualificative circumstance of treachery ( alevosia), in that the defendants, in killing Ventura Quinto while he was bound elbow to elbow, employed means tending directly and particularly to insure the consummation of the crime without risk teethe aggressors, inasmuch as thus bound and disarmed the victim could not defend himself in any manner against the seven men who kidnaped him or even against the thre6 who actively participated in his killing. The criminal responsibility of the defendants as perpetrators of the murder which is here prosecuted is beyond question, inasmuch as all of them by previously concerted action met together and witnessed the capture and later the violent killing of Ventura Quinto. Some took a direct part in the actual commission of the crime, others were the determined instigators who induced the former to commit it, while the remainder cooperated in the same by their presence and by means of acts without which the crime would not have been perpetrated. It must be taken into account that this murder was committed by a gang ( cuadrilla ) of seven persons, the greater part of whom were armed, and it does not appear that any of those present who were not active participants in the crime made any effort to prevent it This latter conclusion is not affected by the unfounded allegations made by the defendants, since they inculpate each other mutually in confessing their participation and cooperation in the said murder and since it is proven that all of the four who were not the actual perpetrators thereof witnessed the commission of the crime, lending to the murderers their moral support, all are thus directly responsible for the consequences and incidents of the same. In the commission of this murder there is to be considered, according to the facts adduced at the trial, the presence of the fifteenth aggravating circumstance of article 10 of the Code, affecting all seven of the defendants in that they committed the crime at night, in an uninhabited place, and in a band ( en cuadrilla ). These three incidents are considered, according to the decisions of the courts, as one single circumstance for the purpose of increasing the penalty for the crime. Likewise there is to be considered the presence of the seventh circumstance Of the same article 10 as applicable to the defendants Nicolas Ancheta and Sebastian Dayag for the reason that these two conceived the idea and premeditated the killing of Quinto, induced the others to kidnap him in order that he might be put to death, and ordered the three to kill him. In addition, we must consider the presence of the eighth aggravating circumstance of said article of the Code as applicable to Faustino Pascual, Daniel Verson, Aniceto Javier, and said Nicolas Ancheta for the reason that they employed both disguise and fraud, covering their faces with handkerchiefs while effecting the capture of their victim to avoid being recognized and making him believe by deceit that they would conduct him to another place at the order of the commander of the American detachment at Alcala. With respect to all the defendants the only mitigating circumstance in their favor which can be applied to offset the first aggravating circumstance is that especially established in article 11 of the Penal Code, which, in view of the class to which the defendants belong, may be applied in their fawr for the reduction of the penalty. It follows that even regarding the fifteenth aggravating circumstance as compensated by the mitigating circumstance of article 11, still circumstances 7 and 8 of article 10 of the Code must be applied, and to them we must add the twenty-fourth of the same article, because the murderers made use of a daggera weapon prohibited by the regulations.

The crime here prosecuted being thus defined by the circumstances already enumerated, it is apparent that the penalty prescribed in article 403 of the Penal Code should be imposed upon the five defendants, Nicolas Ancheta, Sebastian Dayag, Faustino Pascual, Daniel Verson, and Aniceto Javier in its maximum grade, and upon the remaining two, Claro Ancheta and Maximo Verson, in its medium grade, with the corresponding accessory penalties. Furthermore, in view of the nature and circumstances of the murder for which this cause is prosecuted it is evident that the fact that the deceased was captured in his house and taken by the defendants to an uninhabited place selected by them for the purpose of killing him there, does not constitute the crime of illegal detention, since it does not appear that it was the purpose of the accused to commit this offense. On the contrary they seized the unfortunate Quinto in his house with the sole object of carrying him away to a suitable place, which they subsequently pointed out to the authorities, and of there murdering him. Concerning the petition for the annulment of the judgment reviewed presented on appeal by the Solicitor-General, and based on the ground that the same was made by a judge who should have retired on June 16,1901, this question has been previously determined by the court, upon a similar motion of the Solicitor-General, in its decision dated November lt>, 1901, in a case of grave assault ( lesiones graves) from Ilocos Sur, register No. 412, and reported elsewhere. In that opinion the validity of the proceedings and of the judgment was sustained and the court's decision upon this point is referred to and applied in this cause. Therefore, for the reasons above stated, it is meet in justice and in accordance with the provisions of the penal law that the defendants Nicolas Ancheta, Sebastian Dayag, Faustino Pascual, Aniceto Javier, and Daniel Verson, be condemned to the death penalty, to be executed in the township of Amulung, Cagayan, Island of Luzon, and if they should be pardoned from such penalty it shall likewise be understood that they are condemned to absolute and perpetual disqualification and subjection to the vigilance of the authorities for the lifetime of each one of the defendants unless the said accessory penalties be especially remitted in such pardon. The remaining defendants, Maximo Verson and Claro Ancheta, shall be sentenced to the penalty of life imprisonment ( cadena perpetua) and to the accessory penalties of civil interdiction and subjection to the vigilance of the authorities during the respective lives of the culprits and in case the said. defendants should obtain a pardon of the principal penalty they shall suffer those of absolute and perpetual disqualification and subjection to the vigilance of the authorities during the lifetime of each one of the defendants unless the same shall be expressly remitted in the pardon of the principal penalty. All of the seven defendants shall be sentenced to pay pro rata and in solidtim an indemnity of 1,000 pesos, Mexican currency, to the widow and heirs of the deceased and to pay a seventh part of the costs of both instances. The arms seized are declared forfeited. The judgment reviewed is therefore conjfirmed in so far as it agrees with the foregoing decision and reversed in so far as it conflicts therewith. It is so ordered. Arellano, C. J., Cooper, Willard, and Ladd, JJ., concur. Mapa, J., dissents.

OSJurist.org

G.R. No. 424, January 27, 1902

THE UNITED STATES, COMPLAINANT AND APPELLEE, VS. MARCOSA PENALOSA AND ENRIQUE RODRIGUEZ, DEFENDANTS AND APPELLANTS. D ECIS ION
WILLARD, J.: Article 475 of the prevailing Penal Code provides as follows: "Any minor who shall contract marriage without the consent of his or her parents or of the persons who for such purpose stand in their stead shall be punished with prison correctional in its minimum and medium degrees." The accused were convicted in the lower court for the violation of this article, it appearing from the evidence adduced that the accused, Marcosa Pefialosa, was not 21 years of age on the 3d day of May, 1901, when she married the codefendant, and that she contracted the marriage without the consent of her father. Should the judgment appealed from be affirmed if the woman was in fact less than 21 years of age, without taking into consideration what was her belief concerning her age? Many instances can be called to mind in which there may exist an error in good faith concerning this point. A man who is about to marry and is ignorant of his exact age seeks and obtains a certified copy of the registry of his baptism. From this it appears that he was born twenty-one years before the 1st day of June, let us say. He marries on the 15th day of June. It develops later that. the person who took the copy of the registry of baptism read July as June, and as a matter of fact the man in question did not complete his twenty-one years until the 1st day of July, fifteen days after his marriage. Can such a one be convicted of a violation of article 475? It would seem that this case is included within those of the article. He was in fact a minor when he married, and he married without the consent of his parents. It is true that so far as the parent is concerned the offense has been committed, but can the same be said with reference to the State in the absence of a voluntary violation of the law? Article 1 of the Code does not contain the words "with malice" that are to be found in the Code of 1822; nevertheless Pacheco, the eminent commentator, has said that those words are included in the word "voluntary" ( El Codigo Penal Concordado y Gomentado , Vol. I, folio 74, third edition); and he states positively that crime can not exist without intent. Other commentators, without being in entire conformity with Pacheco, nevertheless are agreed up to a certain point. Groizard says: "Such is the general rule; so it is ordinarily." (Codigo Penal de 1870, Vol. I, folio 37.) Viada says that "in the majority of cases, in the absence of intent there has been no crime; but that there can exist in some cases the latter without the former." (Vol. I, Codigo Penal Reformado de 1870, folio 16.) Silvela says : "In effect it suffices to remember the first article, which states that where there is no intent there is no crime, * * * in order to assert without fear of mistake that in our Code the substance of a crime does not exist if there is not a deed, an act which falls within the sphere of ethics, if there is not a moral wrong." (Vol. 2, Derecho Penal, folio 169.) The theory that the absence of the words "with malice" in the prevailing Code has this effect is

supported by the provisions of article 568 which says: "He who by reckless negligence commits an act which would constitute a grave crime if malice were present shall be punished," etc. The Supreme Court in several successive sentences has followed the same doctrine: "It is indispensable that this (action) in order to constitute a crime should carry with it all the malice which the volition and intention to cause the evil which may be the object of the said crime suppose." (Judgment of May 31, 1882.) In a cause for falsity the facts involved were that the defendant had married "before the municipal judge of the pueblo of Eubete without other ceremony than the simple manifestation and expression of his wishes and those of the woman Leonor with whom he married before said municipal judge; that relying upon that, on account of his ignorance and lack of instruction, on the 27th of June, 1882, and the 5th of April, 1884, in the municipal court of the pueblo of Polopos he registered as legitimate children his sons, Jose and Emilio, the offspring of the illicit union of the defendant and Leonor Gonzalez." For the crime of falsity committed by reckless negligence the Criminal Audiencia of Albufiol condemned the said defendant to the penalty of four months and one day of arresto mayor. The Supreme Court annulled said sentence "considering that whatever might be the civil effects of the registration of his three sons entered by the accused in the Civil and Parochial Kegisters, it can not partake of the nature of a crime for lack of the necessary element of volition or intent to offend, essential to every punishable act or omission; neither did he act with negligence." (Judgment of March 16, 1892.) In a cause prosecuted against the Chinese Sy-Ticco and against Don Guillermo Partier, in the court of Quiapo, for falsification of trade-marks, the Criminal Chamber of the Audiencia of Manila condemned the Chinaman to two years and some months of presidio correccional , and Partier to one year and some months of similar imprisonment. A writ of error was sued out in the name of Partier. The Supreme Court annulled this sentence, "considering that the moral element of the crime, or, in other words, existence or nonexistence of intent and malice in the commission of an act designated and punished by the law as criminal is essentially a question of fact for the exclusive judgment and determination of the trial court." "Considering that the act charged against the accused, Guillermo Partier, of having printed in his lithographic establishment the trade-mark of the cigarette packages of the Insular factory by virtue of a supposed order of the owner of said factory, to whose injury the Chinaman Abelardo Zacarias Sy-Ticco ordered him to do the said fraudulent printing, can not be considered (from the facts declared proved in the final sentence of acquittal of the Court of First Instance, accepted in its entirety and without any addition by the Appellate Court) as constituting intentional participation or cooperation in deed of falsification and defraudation committed by the former, since it does not appear in any part of the sentence that Partier was in connivance with Sy-Ticco nor that he had any reason to suspect the true character of him who, styling himself the representative of Seffor Santa Marina, the owner of the La Insular factory, gave him the order to print the trade-mark of this factory on the packages, which were to be used to hold cigarettes." (Judgment of December 30, 1896.) The judgment of October 4, 1893, is of the same tenor. It is not necessary to hold in this action that no crime mentioned in the Code can exist without intent. It suffices for the present to decide, as we do decide, that one can not be convicted under article 475 when by reason of a mistake of fact there does not exist the intention to commit the crime. It remains for us to apply this principle to the facts of the present case. The defendant has

stated that she believed that she was born in 1879; that so her parents had given her to understand ever since her tenderest age; that she had not asked them concerning her age because her father had given her to so understand since her childhood. Her father was present in the court room as the complaining witness. If his daughter was deviating from the truth it would have been an easy matter for him to have testified denying the truth of what she had stated. It is evident that he was interested in the conviction of his daughter, and the fact that the complaining witness did not contradict her obliges us to accept as true the statements of the witness. Being true, they disclose that she acted under a mistake of fact; that there was no intention on her part to commit the crime provided for and punished in article 475. As for the husband, it has been proved that two days before the marriage was celebrated he received a letter from the woman in which she said that she was 21 years of age. This letter the defendant showed to the clergyman who married them. The woman when the marriage ceremony was performed took an oath before the cleryman, in the presence of her husband, that she was 21 years of age. The defendant testifies that he had no suspicion that the woman was a minor. This statement has not been contradicted and we consider that it suffices to demonstrate that the defendant acted under a mistake of fact, and in conformity with the principle laid down in this opinion he has not been guilty of a violation of article 475 in connection tion with article 13, No. 3, nor in any other manner. The conviction of the defendants in accordance with article 568, together with article 29 of General Orders, No. 58, has not been prayed for, and even if it had been we do not consider the evidence sufficient to sustain a conviction in accordance with this article. Her husband had the right to accept the sworn statement of the woman. The only person whom she could ask for information was her father, and he had told her her age repeatedly. For the reasons above set forth' the sentence of the lower court is reversed with reference to both defendants, acquitting them freely with costs of suit de oficio. It is so ordered. Arellano, C.J., Cooper, Torres, and Mapa, JJ., concur. Ladd, J., did not sit in this case.

OSJurist.org

G.R. No. 427, April 15, 1902

CO-TIONGCO, PLAINTIFF AND APPELLEE, VS. CO-GUIA, DEFENDANT AND APPELLANT. D ECIS ION
ARELLANO, C.J.: From the documentary evidence introduced by both parties and admitted by both of them without objection it appears that the following facts may be regarded as the antecedents of the question in issue: (1) That on March 6, 1894, by a public instrument the Chinaman Co-Quingco leased a lot from Pedro Sy-Quia, at that time the owner of the lot, as purchaser, subject to the vendor's right of redemption; (2) that this lease was to run for ten years, the term to end on an equal date in March, 1904; (3) that the sum of 50 pesos per month had been agreed upon as the rental in this lease; (4) that in the same instrument Eugenio Guidote, the vendor, who had reserved the right to redeem, bound himself to respect this contract of lease for the period of ten years, at a monthly rental of 50 pesos; (5) that this contract of lease, signed by CoQuingco, SyQuia, and Guidote, was recorded in the property register of the North District of Manila on March 12, 1894 (documentary evidence, pp. 20 to 23); (6) that on the 23d of January, 1901, Eugenio Guidote sold the lot in question to the Chinaman Co-Tiongco, declaring it to be free from all incumbrance or gravamen, the sale having been effected by a public instrument, which was also recorded in the property register (documentary evidence, pp. 3 to 6). As preliminaries to the action of unlawful detainer brought by the purchaser of the land, CoTiongco, the following facts are also admitted by the parties: (1) That Co-Guia, on March 2, 1901, consigned in the justice court of Binondo the rental of 50 pesos a month, corresponding to the preceding February (probably meaning January), because Guidote had refused to receive the rental, without stating the motive, the consignment being made "as payment under our contract" as stated by Co-Guia; (2) that rental to the amount of 100 pesos was also consigned for the months of February and March following by Co-Guia on the 9th of April, after an unsuccessful tender of payment by notarial act to the new owner of the lot on the 6th of April. Co-Guia, "as agent of the Chinaman Co-Quingco and manager of his lumber yard," says that "the rent corresponding to the months of February and March not having been received from him at the rate of 50 pesos per month, according to the contract," he made formal tender to Co-Tiongco of payment of the rental, to which Co-Tiongco replied "he can not receive the sum mentioned, offered him by the Chinese manager, Co-Guia, inasmuch as he has no contract with the said Chinaman, nor with Co-Quingco, the owner of the lumber yard" (documentary evidence, pp. 24 to 29); (3) that on March 22 of the same year Co-Tiongco gave Co-Guia notice to vacate the premises, giving him to the end of the month in which to do this. With these facts as antecedents, the action of unlawful detainer was instituted. The action was based solely upon the contention that Co-Guia was occupying the lot as lessee, as stated by him in the minutes of the consignment of rent; that the lease was from month to month, as CoGuia had stated in the same document that the rental was 50 pesos per month, and consequently that the lease expired at the end of each month. In bringing this action CoTiongco, the plaintiff, introduced as evidence the notice of the first consignment of rental offered to Eugenio Guidote, in whose possession this document must have been.

The defendant opposed the complaint, and in his answer vigorously denied the fundamental fact alleged therein. As evidence he introduced the contract of lease entered into between CoQuingco of the one part and Sy-Quia and Guidote of the other part. The question presented on appeal to this court is whether or not the action of unlawful detainer can be maintained by Co-Tiongco against Co-Guia upon the facts on which the action is founded. The purchaser, as successor to the vendor by singular title for a valuable consideration, is not, as a general rule, bound to respect obligations of a personal character contracted by his predecessor, as is an heir who succeeds by universal gratuitous title with respect to the obligations of his decedent. Hence it is that the Civil Code in article 1571 provides, as a consequence of the rule stated, that the purchaser of the leased property is entitled to terminate a lease pending at the time of the sale. But when the rights in question are not those arising from merely personal obligations, but from an express agreement or a real right affecting the property itself which is transferred by the sale, in this case the rule does not apply. The same article 1571 denies the purchaser the right to end a pending lease in case there has been a stipulation to the contrary or if it has been forbidden by the provisions of the Mortgage Law. The Mortgage Law provides that leases for more than six years' duration should be recorded in the register of property. (Art. 2, par. 5.) The Mortgage Law provides further that recorded acts and contracts shall be enforceable against third persons. (Art. 23.) Recordation is a species of promulgation of the private law of the act or contract producing it, a requisite as indispensable to this law to give it obligatory force as is promulgation with respect to laws emanating from the public authorities. (Moscoso, Mortgage Law.) The lease of the lot in question agreed upon between Sy-Quia and Guidote on the one hand and Co-Quingco on the other hand having been recorded, it is obligatory law for third persons, such as is, in this case, Co-Tiongco. He being bound to respect this lease for the period of ten years, he can not pretend ignorance of the right of use which was and still is in the hands of a third person. The vendor Guidote could not transmit to him any greater right than that which he himself had at the time of the sale. At this time among his rights of dominion which he transmitted to Co-Tiongco the right of use was not reallyalthough virtuallyincluded, as this right had been alienated in March, 1894, in consideration of the sum of 50 pesos per month, up to an equal date in the year 1904. He could only transmit to the purchaser the right to end the lease before the expiration of the term and to reacquire the use of the lot before the date stipulated by showing some resolutory cause against the present possessor of the right of use, Co-Quingco, and obtaining a final judgment resulting in the cancellation of the inscription appearing in the property register; or, in other words, the derogation of that private law which, until such time, must bind him. Until CoQuingco, the possessor of the right of use, has had fyis day in court and judgment has been rendered against him, the allegation of a resolutory cause tending to produce the rescission of a bilateral contract entered into with Co-Quingco can not be effective when the allegation is made and the judgment is obtained against a stranger, such as, in this case, is Co-Guia. CoGuia was not even a sublessee. He was, as admitted by Co-Tiongco himself, the manager of the lumber yard constructed on the lot of which Co-Quingco is the owner. So that the judgment rendered by the court below against Co-Guia can produce no effect whatever against CoQuingco, the case not having been brought against Co-Guia as representative of Co-Quingco but against a trespasser, but a trespasser who pays rent and occupies the lot by virtue of the lease.

We therefore hold that the action of unlawful detainer brought will not lie, and dismiss the complaint against the defendant, Co-Guia, reversing the judgment below in all its parts, without special condemnation as to costs. Cooper, Willard, and Mapa, JJ., concur. Ladd, J., did not sit in this case.

DISSENTING TORRES, J.: It does not appear from the record, nor has it even been hinted, at what time and upon what conditions Co-Guia took the place of the now absent Co-Quingco in the lease of the lot. The defendant, who exhibited with his answer the instrument in which was recorded the contract of lease entered into between Pedro Sy-Quia and the said Co-Quingco, with the consent of the real owner of the lot, Eugenio C. Guidote, did nothing more than affirm that he is a mere agent ( encargado ) of Co-Quingco. He did not prove his capacity as such agent ( encargado ), or that he was in any other sense the attorney in fact or representative of the former tenant, absent in China, or why he has been paying the rental of the lot leased in the name of Co-Quingco. CoGuia having been sued as tenant in his own right, he could not lawfully set up the contract of lease, by virtue of which Co-Quingco was tenant, because it does not appear that he has been subrogated to the rights of the latter under the terms of the contract with respect to the use and enjoyment of the lot, with the consent of the owner, Eugenio Guidote, and therefore he should be regarded as such tenant by virtue of a new verbal contract from month to month, inasmuch as the contrary does not appear to have been proven. The lot having been redeemed from Pedro Sy-Quia and an absolute conveyance having been made by the former owner, Eugenio Guidote, to the Chinaman Francisco Saez Co-Tiongco, the latter has a perfect right to demand the termination of the lease pending in favor of Co-Guia, under the provisions of article 1571 of the Civil Code. It does not appear that any agreement to the contrary was made between the vendor, Guidote, and the purchaser, Saez Co-Tiongco. The rights accruing under the former contract of lease and its recordation in favor of the contracting parties named in the contract of lease can not be set up by the defendant Co-Guia. He was not one of the contracting parties, nor does he in any wise appear in this contract. There being no evidence to the contrary, he should be regarded as a lessee under a new verbal contract from month to month, because the payment of rent was monthly, and consequently the lease can be treated as terminated without the necessity of notice at the expiration of each month, in accordance with the provisions of article 1581 of the Civil Code. The burden of proof that Co-Guia has been occupying the lot not as a tenant in his own right but as sublessee of Co-Quingco, or as encargado or agent of the latter, rests upon him, inasmuch as he so alleges in his reply, and not upon the plaintiff, inasmuch as it is an unquestionable fact that the plaintiff, Saez Co-Tiongco, is the owner of the lot. A person who occupies a lot in consideration of the payment of a monthly rental must be presumed to occupy it as a tenant until it be shown that his occupation is in some other capacity. Against the

assertion of the plaintiff no evidence to the contrary appears in the record to support the allegation of the defendant who, if he paid rent in the name of the former tenant, could have shown receipts signed by the owner so stating. He did not exhibit these receipts because they would not support his allegation, but would show that Co-Guia is a true tenant under an entirely different contract. The tenant is entitled to use and enjoy the thing leased as long as the contract of lease continues, but he has not the legal possession of the thing, because he possesses it in the name of the proprietor, the only one who has the real legal possession as owner, with the corresponding right to bring actions of all kinds, including the action of unlawful detainer in cases authorized by law. The defendant, Co-Guia, who denies that he is a tenant under a verbal contract entered into with the former owner of the lot, has no right to rest his defense upon the former contract of lease recorded by public instrument and upon which the rights of the former tenant, CoQuingco, rested, because he has not shown that he is the successor of CoQuingco, or that he has been subrogated to his rights under the contract, or that he is an agent or attorney in fact of that tenant, and because Co-Guia was not one of the parties to the contract referred to and could acquire no right to the use of the lot by virtue thereof. The legal effects of a contract of lease recorded in a public instrument and inscribed in the property register are of no avail with respect to the enjoyment of the lot leased to one who is not a contracting party, nor a representative or sublessee of one of the contracting parties. The contract is law between the contracting parties, and its recordation in the register is its promulgation and guaranty, and from this point of view the rights and obligations arising therefrom can only favor or affect those who have agreed to them, their representatives, or their legal successors. Co-Guia is a stranger. He is not a sublessee or a lawful representative of the contracting tenant, Co-Quingco, and therefore can not set up the acts of the latter nor continue to hold the lot to the detriment of the rights of the present owner, Co-Tiongco. The judgment in this case should solely affect those who took part therein as litigants. As CoQuingco is not a party to this action it is unquestionable that it could not have affected him or prejudiced his rights. The favorable judgment which the plaintiff, Co-Tiongco, might have obtained would not have been rendered against Co-Quingco, who did not litigate and is not a party to this suit, but against the defendant, Co-Guia, who has no right as lessee to the possession of the property and should be evicted therefrom. For the reasons stated it is irrelevant to discuss the efficacy of the contract of lease referred to, and much less the efficacy and consequences of its recordation in the register of property. These questions, if raised at the proper time by some person entitled to raise them in a suit, will be determined in accordance with law. For the reasons stated, therefore, and accepting the conclusions of law laid down in the judgment appealed so far as the same agree with those expressed in this opinion, I believe that the judgment should be affirmed with the costs to the appellant.

OSJurist.org

G.R. No. 428, April 30, 1902

JOSE ZULUETA, PLAINTIFF AND APPELLEE, VS. FRANCISCA ZULUETA, DEFENDANT AND APPELLANT. D ECIS ION
LADD, J.: Don Jose Zulueta and his sister, Doa Francisca Zulueta, are sole heirs under the will of their father, Don Clemente Zulueta, who died in Iloilo in 1900. In the course of the voluntary testamentary proceedings instituted in the Court of First Instance of Iloilo by Don Jose, three auditors were appointed to make a division of the estate under article 1053 of the Ley de Enjuiciamiento Civil, of whom Don Jose and Doa Francisca each nominated one, the third or auditor umpire being chosen by common accord of the parties. The two auditors nominated by the parties respectively failed to agree, and each rendered a separate report. The auditor umpire, whose report was filed March 29,1901, agreed with and accepted in its entirety the report of the auditor nominated by Don Jose. The procedure marked out in articles 1062 and 1067 of the Ley de Enjuiciamiento Civil was then followed, and upon the application of Dona Francisca the record was on April 13 delivered to her for examination. April 25 she filed her opposition to the report of the auditor umpire, and a meeting of the interested parties having been had, as provided in article 1069 of the Ley de Enjuiciamiento Civil , and no agreement having been reached, the court, by a providencia of May 4, directed that the procedure prescribed for declarative actions be followed, and that the record be again delivered to Dona Francisca in order that she might formulate her demand in accordance with article 1071 of the Ley de Enjuiciamiento Civil. On petition of Don Jose the court by a providencia, of May 7 fixed the term of fifteen days as that within which Dona Francisca should formulate her demand, which term was subsequently enlarged seven days on petition of Dona Francisca. June 5 Doff a Francisca petitioned the court, stating that the new Code of Procedure enacted by the Civil Commission was soon to become operative, and that she deemed it more advantageous to her rights that the declarative action which she had to bring should be governed by the new Code rather than that then in force, and asking that proceedings in the action should be suspended till the new Code went into effect. This petition the court denied in an auto rendered June 15, declaring, furthermore, that the term fixed for the filing of the demand having expired, Dona Francisca had lost her right to institute the action. June 22 Dona Francisca petitioned for the reform of this auto. On the same day this petition was denied in an auto rendered by Don Cirilo Mapa, a justice of the peace of the city of Iloilo, who had been designated, as would appear from the record, by the judge of the then recently constituted Ninth Judicial District to preside in the Court of First Instance of the Province of Iloilo during the illness of the latter. The denial of this petition was put on the ground that the auto of June 15 was not one against which the remedy of reform was available, but that the remedy was by way of appeal under article 365 of the Ley de Enjuiciamiento Civil. On June 29 Dona Francisca interposed an appeal against the auto of June 22, which the court, now presided over by the regular judge of first instance of the district, declined to admit, on the ground that it was not presented within three days, as prescribed in article 363 of the Ley de Enjuiciamiento Civil. Thereupon, upon petition of Don Jose the partition proceedings were approved by the court by an auto of July 16 from which Dona Francisca took the present appeal. While the appeal was pending in this court Doa Francisca presented a petition under Act No.

75 of the Civil Commission, alleging that the auto of June 22 was rendered through a mistake of the acting judge of first instance, who erroneously believed that he had jurisdiction to render the same; that Dona Francisca was prevented from entering an appeal from that auto by her mistake as to the term prescribed by the Ley de Enjuiciamiento Civil for entering appeals in such cases; and finally that the auto of July 16 approving the partition proceedings was rendered by a mistake of the judge, who erroneously believed that the auto of June 22 was valid, whereas it and all subsequent proceedings were absolutely void; and asking that the auto of June 22, the providencia denying the admission of the appeal, and the auto of July 16 be set aside and the proceedings restored to the condition in which they were previous to June 22, when the first mistake was made. Upon this petition a hearing has been had, and we have also heard arguments upon the appeal. Taking up the petition first, we do not find it necessary to decide whether the acting judge of first instance by whom the auto of June 22 was rendered had such de facto authority that legal validity will be accorded to his acts. Assuming that he was without jurisdiction to render the auto, we are of opinion that Dona Francisca can not take advantage of the error in such a proceeding as the present. Act No. 75 provides a remedy "against judgments obtained in Courts of First Instance by fraud, accident, or mistake," but although the language of the law is somewhat broad, the general scope and purpose of the enactment indicate too clearly to require argument that the mistake against which relief is provided can not be a mistake into which the court may have fallen in the findings of fact or conclusions of law upon which its judgment is based. If such were the effect of the enactment, every case in which a party felt himself aggrieved by the judgment of the court below could be brought to this court for revision in this way, and the ordinary remedy by appeal or otherwise would be thus entirely superseded by the more summary proceeding therein provided. "The meaning of the word 'mistake' as used in the statute does not extend - nor was it intended that it should - to an error of law which may have been committed by the judge in the trial in question. Such errors may be corrected by appeal. The statute under consideration can by no means be employed as a substitute for that remedy." (Jose Emeterio Guevara vs. Tuason & Company, decided October 7,1901, p. 27, supra .) The result is that we can not set aside the auto of June 22 on this petition, and that of July 16 stands upon precisely the same footing, the allegation being that that auto also was rendered under a mistake of law on the part of the judge. The remaining question upon the petition is whether Dona Francisca is entitled to relief against the consequences of her failure to interpose, her appeal against the auto of June 22 within the period fixed by the law. The mistake in this instance was her own, but it was a mistake of law, and while we should be unwilling to say that special cases might not occur in which relief would be afforded in such a proceeding as this against a mistake of law made by a party, we are of opinion that the present is not such a case. Nothing is shown here except the bare fact that the party acted under ignorance or misconception of the provisions of the law in regard to the time within which the appeal could be taken, and there is no reason why the general principle, a principle "founded not only on expediency and policy but on necessity," that "ignorance of the law does not excuse from compliance therewith" (Civil Code, art. 2), should be relaxed. The framers of Act No. 75 could not have intended to totally abrogate this principle with reference to the class of cases covered by the act. If such were the effect of this legislation the court "would be involved and perplexed with questions incapable of any just solution and embarrassed by inquiries almost interminable." Act No. 75 was framed for the purpose of preventing injustice, and although the legal

construction to be placed upon its provisions can not of course be affected by any considerations as to the hardships of the particular case in which it is invoked, it is proper to say that if the question determined in the auto of June 15, which is that against the consequences of which the petitioner seeks ultimately to be relieved, were to be decided upon its merits, that auto would necessarily be sustained, so that the petitioner has in fact suffered no hardship or injustice by reason of the auto having been left in effect as a result of the mistakes which she claims to have vitiated the subsequent proceedings. The petition for the suspension of the declarative action till the new Code went into effect was totally without merit. No reason was alleged in the petition itself why the suspension should be granted other than the mere convenience of the party, and none has been suggested on the argument. The petitipn could not in any possible view that occurs to us have been granted. With reference to the declaration in the auto that the plaintiff had lost her right to file her demand in the declarative action, it may be said that this declaration followed as a necessary consequence from the providencia of May 7, fixing the time within which the demand must be formulated, and the subsequent providencia enlarging the period, from neither of which providencias had any appeal or other remedy been attempted by Dona Prancisca. But going back to what may be called the fundamental question of the right of the court to fix a definite term within which the declarative action must be instituted, we are of opinion that such right clearly existed, and that the providencia of May 7 was in exact conformity with the procedure prescribed by article 1071 of the Ley de Enjuiciamiento Civil . It might be claimed with much reason that if the parties interested in the partition of the estate failed to agree on that made by the auditor, either should be allowed to institute a declarative action against the other for the purpose of settling the dispute within such time as he might think proper, the property remaining in the meantime undivided, were it not that the law in language of unmistakable import prescribes a different rule of procedure. Article 1071 of the Ley de Enjuiciamiento Civil is as follows: "If no agreement is had, the procedure prescribed for declarative actions, according to the amount involved, shall be followed, and the delivery of the papers shall be first made to the parties who first requested delivery to them of the partition report as provided in article 1067." Article 1067 is as follows: "If the interested parties, or any of them, request, within eight days, that the record of the proceedings and the report on partition be delivered to them for examination, the judge shall order said delivery for a period of fifteen days to each person making such request." The law does not treat the partition proceedings as terminated by the failure of the parties to agree, but provides that "the case" shall in that event "be given the procedure of the declarative action" and goes on to designate the party who is to take the initiative in the pleadings, a provision utterly irreconcilable with the idea that it is optional for either party to commence the proceeding at his pleasure. And it then proceeds by reference to article 1067 to fix the time within which the proceeding is to be instituted. The petitioner had the benefit of that period and was accorded besides an extension of seven days, and has consequently had all the rights to which she was strictly entitled under the law and something more. She hasj we think, no just ground to complain that she has been deprived of any substantial right either by her own mistake or that of the court below, in any possible view in which the facts of the case may be regarded. What has been said with reference to the petition disposes also of the question involved in the appeal. If Dona Francisca had, as we think must be the case, lost her right to institute the declarative action, there was no other course for the court to take except to approve the partition proceedings, unless there was some defect which vitiated them, and none has been pointed out. It was suggested in the argument that the report of the auditor umpire was of

prior date to that of the auditor nominated by Don Jose, and it was claimed that this rendered the proceedings defective. An examination of the record shows that the report of the auditor nominated by Don Jose was dated March 24 and filed March 29, and that that of the auditor umpire was dated March 28 and filed March 29. The contention of counsel on this point is therefore not supported by the facts. The result is that the petition must be denied and the judgment appealed from affirmed, with costs to the appealing party both as to the petition and the appeal. So ordered. Arellano, C. J., Torres, Cooper, and Willard, JJ., concur. Mapa, J., did not sit in this case.

OSJurist.org

G.R. No. 430, January 27, 1902

THE UNITED STATES, COMPLAINANT AND APPELLANT, VS. ENRIQUE RODRIGUEZ, DEFENDANT AND APPELLEE. D ECIS ION
MAPA, J.: The defendant was on intimate terms with Marcosa Pealosa, 18 years of age, while the latter lived at the house of her father, Gregorio Pealosa, who is the private prosecutor in this case and who was opposed to these relations. During the afternoon of May 2, 1901, Marcosa left her house of her own free will and went to that of the defend ant for the purpose of demanding from him the fulfilment of the promise of marriage which he had repeatedly made her on previous occasions. Two witnesses were present in the defendant's house, dealing with him on business matters, when she presented herself there between 1 and 2 of that afternoon. These witnesses were informed that very afternoon that Marcosa would be married to the defendant and were asked by the latter to act as witnesses to the marriage which was celebrated the following day, May 3, as appears from the corresponding certificate which is a part of the record. From these facts, which we consider sufficiently proved, it is seen that the departure of Marcosa Pefialosa from her house was, instead of a case of abduction, a real elopement carried out by her as a means for contracting marriage with the defendant against the opposition of her father, inasmuch as she acted upon her own initiative and was not seduced by the said defendant. But whether elopement or abduction, it is evident that the act was not committed with unchaste designs but with matrimonial intentions which were, indeed, well known to certain persons from the very commencement of the affair, and which were realized the following day by the marriage of the accused to the woman alleged to have been abducted. The unchaste designs constitute one of the essential elements that characterize the crime of abduction, as well when committed with violence against the will of the woman as when carried out with her consent in case of her minority. This is precisely the point which constitutes one of the principal differences which distinguish this crime from crimes against personal liberty and security. If the removal of a woman from her house, although she be a virgin under the age of 23 years, is committed for the purpose of murdering her or demanding a ransom, or holding her a prisoner somewhere, it would undoubtedly constitute a crime but would by no means fall under the provisions of the sections of the Penal Code which define and punish the crime of abduction, but of other sections quite distinct, although there exists in such case the material fact of the stealing away of a woman. This consideration demonstrates that the unchaste purpose is essential in all cases to the crime of abduction, and this same conclusion is deduced from the fact that the crime is classified in the Code among the crimes against chastity. Article 445 of the said Code establishes clearly and conclusively the necessity of said circumstance in order that the crime of abduction may exist, and even though section 446, invoked by the complainant as applying to the present case, in speaking of the abduction of a virgin under the age of 23 years and over 12, committed with her consent, does not make express mention of unchaste designs, the provisions of this article should be considered in connection with those of the preceding one, which requires this circumstance as indispensable and essential. Article 445 is the complement of article 446, the two forming, as they do, a part of one and the same

chapter included in the title which the Code devotes to crimes against chastity. In addition to this, paragraph 2 of article 448, which treats of causes for abduction, speaks only of abduction committed with unchaste designs, and the preceding interpretation is still further confirmed by article 449 in that it provides that those convicted of abduction shall be sentenced, by way of indemnity, to endow the complainant and acknowledge the offspring. This impliedly presupposes the idea of unchaste purpose in all cases of abduction, for the provisions of this article as well as in that of article 448 above-mentioned are applicable to all cases of abduction for the reason that the Code expressly declares them to be of common application to all crimes against chastity. In view of the foregoing considerations we are of the opinion that the judgment appealed from should be affirmed with costs in this instance de oficio. It is so ordered. Arellano, C. J., Torres, Cooper, and Willard., JJ., concur. Ladd, J., did not sit in this case.

OSJurist.org

G.R. No. 432, February 06, 1902

THE UNITED STATES, COMPLAINANT AND APPELLEE, VS. GERONIMO LEAL ET AL., DEFENDANTS AND APPELLANTS. D ECIS ION
TORRES, J.: On the morning of June 29, 1900, Segundo Labitoria was present in the house of Geronimo Leal for the purpose of ascertaining from the latter who had stolen two jars of basi belonging to him. Pablo Laranang appeared in the house and after the three had been drinking basi with Baldomero Lacasandeli and when they had become intoxicated, Laranang, upon the prompting of Leal, whom Labitoria accused of the theft of the two jars of basi, assaulted Labitoria with a bolo, inflicting upon him seven wounds which then and there produced his death. The wounds upon the head and side were necessarily mortal, and the remainder serious, according to the practitioner who examined them. Although Lacasandeli endeavored to leave the said house upon seeing Labitoria dead, the slayer of the latter, Laranang, detained him and likewise called to Rufino Lastimosa, who was passing casually in front of the house where the occurrence took place, in order that they should assist them in burying the corpse. This they did in a cane field near the house. On the fourth day, and after investigations made at the instance of the family of the deceased, the corpse of Labitoria was there found by the local authorities of the town of Taguding. The facts related and fully proved at the trial by ocular inspection, expert evidence, the testimony of witnesses, and the confession of the accused constitute the crime of homicide defined and penalized in article 404 of the Penal Code. In the commission of the homicide there do not appear to have been any general or specific circumstances of aggravation or mitigation which might increase or decrease the penalty. The evidence shows that Pablo Laranang and Geronimo Leal are guilty of the crime as principals and Baldomero Lacasandeli and Rufino Lastimosa as accessories. Laranang pleaded guilty, confessing that he attacked the deceased with a bolo upon the instigation of the owner of the house, Geronimo Leal, and stated he was so intoxicated at the time that he could not give an account of what he did after Leal had told him to kill Labitoria. He is, therefore, the actual author of the crime. The owner of the house, Geronimo Leal, at first pleaded guilty of the crime of which he was accused, but later on he withdrew this plea and stated that he was not guilty of the criminal act. Nevertheless the guilt of this defendant is established beyond a doubt in spite of his denial and of his statement that he merely assisted in the burial of the corpse, by the testimony of his confessed partner in crime, Laranang, that he had killed Labitoria upon the inducement of the owner of the house, Geronimo Leal, who witnessed the execution of the crime in his own house; the fact that Leal disappeared and absented himself from his house from the date of the occurrence; and the fact that the deceased, a few moments before, had had an altercation with him concerning the disappearance of the two jars of basi which the defendant accused him of having stolen. From this it follows that Leal alone had motives of resentment or revenge which might lead him to desire the death of Labitoria, and it would appear that after inviting the latter to come to his house Leal lacked the determination to kill him himself, and therefore induced Laranang to do so. There is nothing in the case to show that the latter had any motive for killing Labitoria, and this circumstance strongly tends to show that he acted upon inducement.

Again, if this were not the case, and if there had been no ill feeling toward the deceased on the part of Leal, he would not have been an indifferent spectator of a crime such as this, perpetrated in his own house, and which it was his duty to have attempted to prevent. These conclusions, drawn from an examination of the case, are quite sufficient to convince us of the guilt of the defendant Leal. There can be no doubt as to the participation in the crime of the other defendants, Baldomero Lacasandeli and Kufino Lastimosa, as accessories. Lacasandeli was present when the crime was committed, and although this is not true as to Lastimosa, nevertheless upon entering the house he saw a corpse covered with wounds, and although neither of theser defendants took part in the perpetration of the crime itself, they nevertheless aided the principals to conceal the body by unlawfully burying it in a field to that end and by neglecting to inform the authorities of the facts known to them. The provisions of article 9, paragraph 6 of the Penal Code must be applied in mitigation of the penalty, as the crime was committed while the principals were in an intoxicated condition, and it does not appear that they were habitual drunkards. We do not think it proper to allow the principals, Leal and Laranang, the benefits of the special circumstance established in article 11 of the Penal Code, because of the conditions of these defendants, and of the fact that the crime committed by them has of late become very frequent. There are, however, no aggravating circumstances against them to increase the criminal liability they have incurred. For the sole purpose of reducing the penalty we are of of the opinion that we are justified in giving the accessories, Lacasandeli and Lastimosa, the benefit of article 11, as there are no aggravating circumstances against them, and because from the nature of their offense and their personal conditions it is to be presumed that they did not fully realize that it was their duty to report the facts to the authorities, and that they would become criminally responsible for their failure to do so and for their participation in the occurrence. For the reasons stated, therefore, the defendants Laranang and Leal are subject to punishment by the minimum grade of the penalty of reclusion temporal and the defendants Lacasandeli and Lastimosa also by the minimum grade of the penalty of prisidn correctional, which is the penalty two degrees below that assigned by the law to the consummated offense. Therefore the defendants Pablo Laranang and Geronimo Leal are condemned each one to thirteen years of reclusion temporal, together with the accessories prescribed by article 59 of the Code, and to the payment of 1,000 Mexican pesos to the widow and heirs of the deceased; the accessories Baldomero Lacasandeli and Rufino Lastimosa are condemned each one to six months and one day of prision correctional, the accessory penal ties fixed by article 61, and to subsidiary liability for the payment of the indemnification, pro rata or in solidum, in case of the insolvency of the principals, or else to subsidiary imprisonment not to exceed one-third part of the principal penalty, and to the payment by each one of the four defendants of one-quarter part of the costs caused, the defendants Lacasandeli and Lastimosa to be given credit for one-half of the time they have been detention prisoners in the computation of the principal penalty. The court below will take such action as may be proper with respect to the property attached. With respect to the contention of the Solicitor-General that the court should set aside the judgment as a nullity on the ground that it was rendered after the 16th of June last by a judge who at the time of his decision had ceased to be such, and was therefore without jurisdiction, the court, upon the authority of the case of the United States vs. Cayetano Abalos, supra, holds that the objection can not be sustained.

Cooper, Willard, and Ladd, JJ., concur. Arellano, C. J., and Mapa, J., dissent.

OSJurist.org

G.R. No. 441, April 09, 1902

THE UNITED STATES AND MARIA CONCEPCION LUCIA SEBASTIANA, COMPLAINANTS AND APPELLANTS, VS. MATEO PEREZ, DEFENDANT AND APPELLEE. D ECIS ION
MAPA, J.: The complaint upon which this case was instituted charges the crime of estafa, and is drawn in the following language: "Mateo Perez, in April, 1901, in Manila, appropriated the sum of 2,247 pesos, received in thecourse of the administration, to the prejudice of Maria Concepcion Lucia Sebastiana, * * * owner of the said money." The accused demurred to the complaint under section 4 of article 21 of General Orders, No. 58, upon the ground that the facts charged do not constitute an offense. In support of his contention he alleged various facts tending to demonstrate that the sum of 2,247 pesos mentioned in the complaint had been embezzled by the Chinaman Calixto Santos, by means of the negotiation of a check which the defendant accepted as good in exchange for that amount of money, which check subsequently turned out to be a forgery, and that on this account the said Chinaman has been criminally prosecuted on relation of the defendant for the crime of estafa with falsification; that the loss of the said sum which thus occurred constitutes a loss chargeable to the business of the Hotel de Espana, which the defendant was at that time managing, and which should properly be borne by the complaining witness as. owner of the hotel business; that this view being taken by the complainant herself, whom he had informed of what had occurred, she approved the accounts of his management presented to her in November, 1900; that thenceforth their relations and accounts were terminated, to the complete satisfaction of both, as shown by the fact that the complainant in that month took charge of the management of the hotel, and that she sold the hotel to the accused himself in January, 1901, and gave him a complete acquittance for the purchase money, without reservation or protest of any kind; that it was consequently false that he had appropriated the sum above mentioned as stated in the complaint. For the purpose of proving these allegations the accused presented various documents, which we do not consider it necessary to examine at this time. Upon the facts alleged and the documents presented by the accused, the court below, by order of July 12, 1901, sustained the demurrer, declaring that the facts charged did not constitute a crime. Against this order the complaining witness appealed. The counsel for the Government before this court asks that the order appealed be reversed, upon the ground that the facts charged do constitute the crime defined in paragraph 5 of article 535 of the Penal Code. We concur in this opinion of counsel for the Government. The article cited punishes as guilty of estafa those who appropriate or misapply money, goods, or any other personal property received on deposit or on commission or administration, or by any other title which produces the obligation of delivering or returning the same. It is sufficient to read the complaint to reach the conclusion that upon its face the act charged is literally included within this provision of law. If the accused really received the money in question in the course of administration, and

appropriated it, to the damage of the complainantwhich is precisely the fact chargedit is evident that none of the elements constituting the crime of estafa charged in the complaint is missing; and it is therefore evident also that the facts charged as they appear from the complaint constitute a crime under the law. We are unable to see how the contrary proposition could be maintained. The accused has not shown it, nor has he even endeavored to show it. What he did was to allege new facts not only different but diametrically opposed to those alleged in the complaint, thereby essentially altering the terms of the question. His allegations tend to show that he did not appropriate the money which the complainant alleges and insists that he did appropriate. It is evident that if this appropriation did not really take place the crime charged does not exist. But that is not the question. At this stage of the case there can be no discussion or demonstration as to the truth or falsity of the appropriation, as this will be the purpose of the evidence taken at the trial. The only question is whether this appropriation, taking it for granted as charged in the complaint, does or does not constitute a crime. The demurrer of the defendant merely raises a question of law with respect to the criminal character of the facts charged. For the purpose of showing that the demurrer should be sustained the accused should limit himself to these facts, admitting them as the basis of the discussion just as they appear from the complaint or information, and should demonstrate that even though these facts be true, nevertheless they would not be punishable under the law. Every allegation which tends to deny them or modify them is and must of necessity be irrelevant, because it tends to raise a question of fact, which is not admissible under the peculiar nature of the exception. Consequently, such allegations can not be considered in passing upon the demurrer. We are therefore of the opinion that the order appealed does not conform to the law, because it is based upon facts which not only do not appear from the complaint but which completely alter and destroy its terms. Counsel for the defendant has expressly prayed in this instance that we declare that the appeal of the complaining witness was improperly allowed, upon the ground that section 23 of General Orders, No. 58, provides that an order sustaining a demurrer by the accused ends the case, and is a bar to another prosecution for the same offense, and that section 44 grants the United States only the right to appeal against such an order. We consider this contention to be wholly unfounded. Section 23 does not deal with appeals, which are specially dealt with in other sections of the general order which determine in what cases an appeal may be allowed. It is unquestionable that the order in question is not unappealable, as the accused appears to contend, because section 44 cited says expressly that it may be appealed against by the United States. With respect to the private individual injured by the offense, as is the complainant in this case, the right to appeal from such an order is recognized in section 107, which, after providing that "the privileges now secured by law to the person claiming to be injured by the commission of an offense to take part in the prosecution * * * shall not be held to be abridged by the provisions of this order," expressly declares that such person, that is, the party injured, may appeal against any decision denying him a legal right. It is unnecessary to add that an order sustaining a demurrer by the accused is such an order, because it tends to make unavailing the rights which the injured party attempts to exercise by means of the complaint. It is evident that it has this effect, because such an order, when final,. constitutes a bar to a continuation of the case or a subsequent prosecution for the same offense charged in the complaint. This order, therefore, being appealable, not only by the United States but also by the party injured, it is evident that the effects of the order must be subordinated to the result

of the appeal taken by the latter, and the allowance of the appeal by the court below was perfectly legal and strictly in accordance with the statute. The allegation of the accused that the order appealed produces jeopardy under the provisions of sections 26 and 28 of General Orders, No. 58, is no less unfounded. The first of these articles is applicable solely to cases in which the accused has been convicted or acquitted, which can not take place except when a prosecution has been carried through all its stages and a final judgment of conviction or acquittal rendered therein. Section 28 refers to orders if dismissal entered before final judgment, but after the accused has pleaded to a good complaint or information upon which a conviction might be sustained. In this case the accused not only has been neither convicted nor acquitted, but he has not even pleaded to the charge, precisely because he has put in issue, by means of his demurrer, the sufficiency of the complaint as a basis for a criminal proceeding. Furthermore, this being an appealable order against which an appeal has been taken, it is wholly improper to invoke such an order for the purpose of claiming the benefit of jeopardy thereunder, because such an order can not be regarded as final and executory, nor as producing any effect whatsoever until affirmed by the superior tribunal. At all events, the plea of jeopardy should be made before a judge of competent jurisdiction to try a case against the accused, and not before this court, whose jurisdiction in the present case is limited by law to passing upon the appeal taken by the complaining witness. We therefore decide that the demurrer filed by the accused should have been overruled. The order below is consequently reversed, with the costs of this instance de oficio. Arellano, C J., Cooper, Willard, and Ladd, JJ., concur. Torres, J., did not sit in this case.

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G.R. No. 442, March 14, 1902

VICENTE GAY, COMPLAINANT AND APPELLANT, VS. W. KEAY DEFENDANT AND APPELLEE. D ECIS ION
WILLARD, J.: Article 452 of the Penal Code is as follows: "Calumny is the false imputation of an offense which gives rise to official proceedings" ( procedimiento de oficio). The crime of which the complaining witness was accused was that of cutting timber upon public lands in the Island of Negros and the importation thereof into Iloilo without the payment of fees. The imputation, if true, would have made him liable to a fine according to the provisions of General Orders, No. 92, series of 1900. The royal decree of November 13, 1884, put in force in the Philippines the "final regulations for the government of the forestry bureau of the Philippines." The said decree was promulgated in Manila on January 5, 1885, and published in the Manila Gazette on the 23d of the same month and year. The violation of these regulations are punished by a fine, and article 95 of the same provides that these fines shall be imposed by the governor in chief, by the general board of civil administration, or by the governor-general, according to the amount of the fine. There was no recourse before the courts of justice aside from two cases which have no connection with that and are not in point. The penalty was imposed and enforced in a purely administrative manner. There was no penalty other than administrative fines. The General Order above cited conforms to this royal decree. It does not prescribe that the collection of the fines incurred should be made by judicial process. They should be collected, and indeed they have always been collected, by the bureau of forestry. The question which must be decided is this: Do the violations of said General Order "give rise to official proceedings ( de oficio)" within the meaning of said article 452? Certain crimes, such, for example, as adultery, are prosecuted only upon the complaint of the aggrieved party. It was with the object of excluding this class of cases that the words de oficio were employed. The same phrase appears in article 326, which states as follows: "The crime of false accusation or denunciation is committed by imputing falsely to anyone acts which if true would constitute a crime of the class which give rise to an official proceeding if this imputation were made before an administrative or judicial officer who by reason of his office should proceed to verify or punish the same. "Nevertheless proceedings shall not be commenced against the denouncer or accuser except by virtue of a final judgment or final order of dismissal of the court which should have jurisdiction of the imputed offense. "The latter (court) shall order official proceedings to be commenced against the denouncer or accuser whenever it appears from the principal cause that there are sufficient grounds for commencing the new proceedings." It is certain that the text is confined to judicial proceedings notwithstanding the use of the word

"administrative" ( administratvo), since it provides conclusively that the accuser shall not be proceeded against until the court which should have jurisdiction of the crimes shall have dictated an order of dismissal. If the defendant Keay had been proceeded against in accordance with this article instead of article 452 and it should have been proved that his accusation after an investigation by the bureau of forestry was false and a final order of dismissal should have been dictated by the chief of said bureau he could not have been convicted. The bureau of forestry would have had the right to investigate and to punish the act, but the case would have lacked the essential element of a judgment of a judicial tribunal declaring the accusation to be unfounded. These two articles are very similar. So far as the imputation is concerned this is the same in both. They differ with reference to the person to whom the said imputation is communicated. There are no reasons, therefore, why the phrase procedimientos de oficio should be interpreted in article 452 in a sense different from that which should be given the same in article 326. We are therefore of the opinion that a person can not be convicted in accordance with the former article unless the imputation constitutes a crime punishable before the courts of justice. Having arrived at this conclusion we have not deemed it necessary to analyze the grounds upon which the trial court based its decision. The judgment appealed from is affirmed and the defendant is acquitted with costs of both instances taxed officially. . Arellano, C. J., Torres, Cooper, Mapa , and Ladd, JJ., concur.

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G.R. No. 444, January 28, 1902

THE UNITED STATES, COMPLAINANT AND APPELLEE, VS. LEOCADIO TANJUANCO ET AL., DEFENDANTS AND APPELLANTS. D ECIS ION
TORRES, J. : Causes Nos. 10 and 11 were commenced in the Court of First Instance of the Province of Bulacan against Leocadio Tanjuanco and Domingo Bernardo for robbery in a gang and brought before this court by virtue of an appeal interposed by the defendant Tanjuanco from the sentence of September 17, 1901, dictated by the court below in the latter of said actions, imposing upon him the penalty of eight years of presidio mayor for each one of the crimes which are the subject matter of both complaints. Every action commenced for the purpose of prosecuting a crime should be finally determined either by an order of dismissal or a judgment either of conviction or acquittal. Since each of the above-mentioned causes has been commenced by means of an information presented by the provincial fiscal for each of the two robberies of which they treat in accordance with the provisions of section 11 of the Law of Procedure of April 23, 1900, and since the said two crimes are not punishable by one single penalty according to article 89 of the Penal Code, there is no law which authorizes the court to enter a single judgment for the two offenses in one of the two actions as he has done in cause No. 11, including in a single judgment the decision of two causes. Without a consolidation of these causes the judge has considered together the proofs adduced in each of them and has rendered a judgment of conviction not only of the robbery prosecuted in cause No. 11 but also of that prosecuted in cause No. 10. The procedure followed by the court below violates an essential right of the accused, inasmuch as he is entitled, although accused of the two offenses, to a trial in each one of the two cases in question upon the proofs adduced in each individual case, and upon the allegations set forth in each information. It is not permissible to take into account or consider in one case the facts proved in the other, and vice versa. Therefore, since each of the two robberies should be punished independently and separately, it follows that the single judgment rendered for the two actions in cause No. 11 (one of them) is a nullity, and the sentence appealed from must be reversed and the two causes remanded to the court of Bulacan with instructions tp enter the proper judgment in accordance with law in each one of them. It is so ordered. Arellano, C. J., Cooper, Willard, and Mapa, JJ., concur. Ladd, J., did not sit in this case.

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G.R. No. 445, March 31, 1902

PEDRO MARTINEZ, PLAINTIFF AND APPELLANT, VS. FRANCISCO MARTINEZ, DEFENDANT AND APPELLEE. D ECIS ION
COOPER, J.: This is an action brought by Pedro Martinez Ilustre, the son and the compulsory legal heir, against Francisco Martinez Garcia for a declaration of prodigality against the father. The allegations in the complaint are substantially: That Don Francisco Martinez, owing to his advanced age, is dissipating and squandering his estate by making donations to his second wife, Bofia Anastacia Ilustre, and to her parents of properties amounting to over $200,000; that he has given over the administration of this estate to the management of his wife; that the defendant has a propensity for litigation and has instituted groundless actions against theplaintiff in order to take possession of the property held in common with the plaintiff to give it to his wife and her relatives. In a supplementary prayer plaintiff asked the court to direct that the complaint be entered in the property register of the province, which was done by order of the court The defendant in his answer denies the allegations in the complaint and sets forth a state of facts quite inconsistent with those alleged in the complaint. Among other things, it is stated that he has executed in favor of the plaintiff a general power of attorney under which the plaintiff has administered the community estate for several years; that the plaintiff has caused the ships Germana, Don Francisco , and Balayan, belonging to the estate, to be registered in his own name without the consent of the father and is otherwise mismanaging and misappropriating the property of the estate, which caused the defendant to revoke the power of attorney given to plaintiff, and that the suit brought by the defendant against the plaintiff was due to the attitude of the son, who, notwithstanding the fact that the power of attorney had been revoked, refused to render an account of his administration. The Court of First Instance rendered judgment against the plaintiff and adjudged the costs against him. The plaintiff has appealed to this court. The acts which constitute prodigality are not defined in the Civil Code owing to the difficulty of applying general rules to the varying circumstances of the case and the different situations of persons. The declaration of prodigality must be made in an ordinary action ( en juicio contradictorio). (Art. 221 of the Civil Code.) The proceedings must be instituted by the consort or the forced heirs.(Art. 222 of the Civil Code.) Under our law it may be inferred that the acts of prodigality must show a morbid state of mind and a disposition to spend, waste, and lessen the estate to such an extent as is likely to expose the family to want of support, or to deprive the forced heirs of their undisposable part of the

estate. Donations are considered as acts of liberality dictated by generosity and affection. All persons who can contract and dispose of property may make donations. (Art. 624 of the Civil Code.) Donations may comprise all the actual property of the donor, except such as is required for the support of the donor in a condition corresponding to his circumstances. (Art. 634 of the Civil Code.) And with further limitation that no person can give by a donation more than what he can give by testament. A donation is considered inofficious in all that exceeds such limits. (Art. 636 of the Civil Code.) Public policy requires that limitations of the character mentioned should be imposed upon the owner, but a law which would impose restrictions further than such as are required by public policy may well be regarded unjust and tending in a contrary direction, as destroying*the incentive to acquire property, and as subduing the generous impulse of the heart. Beyond these limitations the law does not attempt to adjust claims to generosity. There were a number of witnesses introduced both by the plaintiff and by the defendant whose testimony it is unnecessary to recount. The testimony on the part of the plaintiff was wholly insufficient to support the allegations of his complaint. It was vague, indefinite, and of an inconclusive nature. The father's estate consisted of city property in Manila; of farms and of certain vessels, two of which are steamships. There is no evidence offered to show any transfers by sale or mortgage of these properties. This could have been easily done if such existed. Donations of real property must be made in a public deed (art. 633 of the Civil Code), and the acquisition of vessels must also be included in a written instrument, and produces no effect with regard to third persons if not recorded in the Commercial Registry. (Art. 573 of the Code of Commerce.) There is no proof that there was any money belonging to the estate, or other personal property, the transfer of which could not be easily traced. The son has been in possession of a greater part of the estate since November, 1897, collecting the revenue from the ships and rents from the city property. The farms have been nonproductive on account of the disturbed conditions of the country, and the revenue from even these has been in part collected by the son. While some of the witnesses state that the possessions of the wife have greatly increased since her marriage, there is no evidence whatever to show that there has been any perceptible diminution of the defendant's property. This can be accounted for only on the grounds that the father, so far from being a prodigal, is still in the full exercise of his faculties and still possesses the industry, thrift, and ability that resulted in the accumulation of a splendid estate after the date of his marriage with the mother of the plaintiff, to one-half of which estate the plaintiff has succeeded as heir of the mother. A careful consideration of the evidence is sufficient to induce the belief that the plaintiff himself possesses that propensity for instituting lawsuits which he unjustly attributes to his father.

The judgment of the Court of First Instance is affirmed and costs of suits in both courts is adjudged against the plaintiff. Arellano, C. J., Torres, Willard, Mapa, and Ladd, JJ., concur.

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G.R. No. 448, September 20, 1902

THE UNITED STATES, COMPLAINANT AND APPELLEE, VS. PHILIP K. SWEET, DEFENDANT AND APPELLANT. D ECIS ION
LADD, J.: <DIV ALIGN=JUSTIFY>The offense charged in the complaint is punishable under the Penal Code now in force by <I>arresto mayor</I> 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 <I>vs.</I> 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 <I>In re</I> 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. <I>Arellano, C. J., Torres, Willard,</I> and <I>Mapa, JJ.,</I> concur. <HR ALIGN="CENTER" WIDTH="60%" SIZE="1" NOSHADE>

<CENTER>CONCURRING</CENTER> 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 law&mdash;that 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 prisoners&mdash;is not within the jurisdiction of the courts of the Civil Government, (<I>In re</I> 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. <I>Ordered affirmed.</I></DIV>

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G.R. No. 452, April 30, 1902

GAUDENCIO SIMPAO., PLAINTIFF AND APPELLEE, VS. JOAQUIN DIZON, DEFENDANT AND APPELLANT. D ECIS ION
COOPER, J.: This is an appeal from a judgment of the Court of First Instance of the Province of Pampanga, rendered on the 8th day of June, 1901, in favor of the plaintiff, in a summary proceeding instituted by Don Gaudencio Simpao against Don Joaquin Dizon, to recover possession of two tracts of land located in the municipality of Porac. The judgment appealed from restored to the possession of the plaintiff the two parcels of land in question, and adjudged that the defendant should pay plaintiff all such damages as he might have sustained and costs, reserving to both parties such rights as they might have to the ownership of the land in question, and to the final possession thereof, which rights they may exercise in due time. The plaintiff alleged in his complaint that he was the sole owner of the two parcels of land, and that he had been in possession of said lands since June, 1888, having acquired the same at said time from Gaudencio de' Mesa by sale with right of repurchase, which title has never since been questioned; that he leased same to Cecilio Lacsamana, of the same town, who has been cultivating the premises during the last two years, but, on account of the unsettled condition of affairs, landowners could not take care of their property; and that the defendant, Don Joaquin Dizon, had taken possession of the land in September last, in spite of the opposition of the tenant, Cecilio Lacsamana, and the plaintiff asked that he be restored to the possession of the farms in question. The answer of the defendant states that he took charge of the cultivation of the land by the express order of the owner, Miguel de Mesa; that Cecilio Lacsamana held it as tenant of Miguel de Mesa, and has refused to pay the rent; that the captain commanding the post at Porac directed the land to be turned over to Miguel de Mesa; that Lacsamana was the person who was ejected from the premises, and that he was the only one who could bring suit for its recovery; that the action can not be maintained against the defendant, Joaquin Dizon, for the reason that the defendant is but the agent of Miguel de Mesa, in charge of the cultivation of the farm, and that what he did was in pursuance of instructions from Mesa. On the trial of the case the plaintiff offered as evidence a document signed by Gaudencio de Mesa on the,18th of June, 1889, showing a conveyance, with right of redemption ( venta con pacto de retro ), of the land from the said Gaudencio de Mesa to the plaintiff and in which the tenancy of the lands was acknowledged by Gaudencio de Mesa. The plaintiff also introduced in evidence the certificate from the registrar to the effect that a possessory information had been filed by the plaintiff,, and judicial possession awarded him of the two parcels of land on October 18, 1895. The property was again registered in the same office October 12, 1896, as the repository of documents had been destroyed by fire. The plaintiff also offered in evidence a lease dated September 25,1898, by which the two parcels of land were leased to Cecilio Lacsamana.

Defendant introduced in evidence a lease made by Anastasip de Mesa and Ariston Jaime to Don Ciriaco Austria of the two parcels of land under consideration, by which the latter was to pay the former the amount of 120 pesos per annum, the lease to cover the property from 1897 to 1898, and after the crop for that year had been harvested. Both plaintiff and defendant introduced testimony of witnesses as to their respective possession of the property. The plaintiff's witnesses testified as to the dispossession of Lacsamana by Joaquin Dizon. Cecilio Lacsamana stated that he leased the land from plaintiff, and not from Miguel de Mesa. Defendant offered evidence of many witnesses to the effect that on the death of Gaudencio de Mesa, the father of Miguel de Mesa, the latter remained in the possession of the land, and that he leased the land to Lacsamana; that Lacsamana paid a stipulated rent to Miguel de Mesa; that defendant, Joaquin Dizon, was the agent of Mesa, and that it was by order ot Miguel de Mesa that he had entered into the possession of the farm and cultivated it. The testimony of the witnesses for the plaintiff and the defendant is irreconcilable. We think the witnesses for the plaintiff have been corroborated by the documentary evidence referred to. The testimony of Lacsamana shows very clearly that the plaintiff was in possession through him, and that he was dispossessed of the property by the defendant. The documentary evidence corroborated, as stated, the testimony of this witness. The only admissible evidence in summary proceedings of this character is that which has reference to the two issues referred to in article 1634 of the old Code of Civil Procedure, which are: (1) That the claimant was actually in possession or tenancy of the property, and (2) that he had been molested or disturbed in such possession or tenancy by the defendant, or some other person at the instance of said defendant. The question is presented by the defendant as to whether an action in summary proceedings can be maintained by the owner or lessor. Unquestionably he has a right to maintain the action. Otherwise he might lose his civil possession, and suffer serious inconvenience. By article 460 of the Civil Code, possession is given to another, even against the will of the former possessor, if the new possession has lasted a year. It is important that the owner should have the right to institute summary proceedings to protect himself against such result. Article 446 of the Civil Code provides that every possessor has the right to be protected in his possession, and should he be disturbed in it he will be protected, or possession restored to him by the means established in the laws of procedure. Possession of things or rights is exercised either by the same person who holds and enjoys them, or by another in his behalf. (Art. 431 of the Civil Code.) If possession is once acquired, either by material occupancy of the thing or right possessed, or by the fact that the same remains subject to the action of one's will, it continues in the possessor, and he only loses such possession in one of the modes mentioned in article 460 of the Civil Code. Article 1554 relates to the rights and obligations of lessor and lessee, and makes it the duty of the lessor to maintain the lessee in the peaceable enjoyment of the lease during all the time of the contract. By article 1559 the lessee is bound to give notice to the owner, with the least possible delay, of any usurpation or injurious alterations which any person may have done or is openly preparing to do to the thing leased. It may be well inferred that the purpose of this notice was to enable the owner to maintain his civil possession, by suit if necessary. The acts of dispossession were

committed Wy the defendant. He can not avail himself of the plea that in committing the wrong he was acting under the directions of some other person. The action will lie both against the party who commits the trespass and against another person at the instance of whom the trespasser is acting. The testimony offered by the plaintiff is sufficient to support the material issues: (1) That the claimant was in actual possession or tenancy of the property, and (2) tjiat he was molested or disturbed in such possession or tenancy by the defendant. The judgment of the lower court should be affirmed with costs, which is accordingly done. Arellano, C. J., Torres, Willard, Ladd, and Mapa, JJ., concur.

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G.R. No. 457, February 18, 1902

THE UNITED STATES, COMPLAINANT AND APPELLEE, VS. ANTONIO SEVILLA, DEFENDANT AND APPELLANT. D ECIS ION
WILLARD, J.: The testimony of the clergyman, Tranquilino Manahan, is written in such a manner that it is almost impossible to know if, reference is made to threats actually made in his presence or to a narration of prior threats related to him in the interview referred to. We are inclined to believe the latter, inasmuch as it is not probable that at an interview at which the. accused and the complaining witness were present, which interview seems to have been held for the purpose of securing the money which the latter had promised to pay to the accused, the defendant should have threatened the other with death if she did not do the very thing which he was then performing. From this testimony it appears doubtful if in the interview referred to there was an actual and certain payment of the $125 either by the complainant or by the witness. If this payment was made, then it seems certain that there were no threats; if not, then there is lacking evidence to establish such payment. The complainant so testified in her preliminary statement and the lower court in its judgment states that this was confirmed in her statement during the trial; but it does not so appear in the record, nor does it appear that she has given any testimony whatever at the trial. The witness Segunda Austria testified that the accused struck Benita Vinson because the latter had taken his jewels according to his statements. This witness says nothing concerning the question of whether threats were involved. The only witness who so affirms is Hermogenes de los Reyes. The latter says that he was called to the house of Maria Vinson, where he found the accused striking the said Maria and striking Benita Vinson, saying that he would kill them if they did not return to him the jewelry which he had lost. With the record in this state we can not declare the accused guilty of a violation of article 494 of the Penal Code. The threats which are there dealt with are those made with the dejifterate purpose of creating in the mind of the person threatened the belief that the threat will be carried into effect. The said article does not relate to threats which may be made at the time of an unlawful assault and which form part of the same. The Supreme Court has so declareaTepeatedly. (Sentences of April 13, 1874, and June 19, 1878.) With reference to threats, it is seen that the accused is guilty of the misdemeanor provided for and punished in article 589. It appears furthermore, from the evidence, that the defendant is guilty of the crime of compulsion ( coaccion) according to the provisions of article 497 of the Penal Code. But we can not condemn him for that crime upon the present complaint. In accordance with the provisions of article 6, No. 2, of General Orders, No. 58, the crime is specified in the complaint as that of threatening ( amenazas). The facts set forth in compliance with No. 3 of the same article state that the accused threatened the complainant with death and that the latter feared that he would carry out his threat. At the conclusion of the complaint it is expressly stated that the defendant is prosecuted for the violation of article 494. This construction served as the basis throughout the entire course of the trial and the attorney for

the defense waived the crossexamination of one of the witnesses on the express grounds that her testimony referred solely to the violence and not to the threats. The two crimes of threats and of compulsion are distinct and can not be prosecuted in a single complaint according to article 11 of General Orders, No. 58. The fact that the complaint contains allegations which disclose that the crime of compulsion has been committed does not justify us in convicting the defendant of this crime, because of the lack of evidence to prove the crime of threats of which he is likewise accused in the complaint We decide that the accused can not be found guilty of compulsion upon this complaint, and therefore the right is reserved to the fiscal to present a further complaint against him for the aforesaid crime if it be deemed proper. The judgment appealed from is reversed and the accused condemned to five days of imprisonment ( arresto ) aild a fine of 125 pesetas, or subsidiary imprisonment as fixed by law in case of insolvency, with costs in this instance taxed officially and those of first instance taxed against appellant. It is so ordered. Arellano, C, J., Torres, Cooper, Mapa, and Ladd, JJ., concur.

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G.R. No. 472, April 28, 1902

THE UNITED STATES, COMPLAINANT AND APPELLANT, VS. JOSE REYES, DEFENDANT AND APPELLEE. D ECIS ION
MAPA, J.: The complaint charges the defendant with the crime of estafa and falsification, and alleges that he, while an employee of the Manila-Dagupan Railway, on the 18th of July, 1901, in the vicinity of the Province of Manila, issued a ticket to a passenger who was going from Manila to Caloocan, and who continued his trip to Malolos; that the difference in the fare amounted to 1 peso and 22 cents; that the ticket issued simulated that the trip was from Manila to Bocaue and the charge only 18 cents; and that he rendered account to the company for this amount, appropriating the balance of the sum received. It appears, therefore, that the complaint does not precisely designate the place where the falsification was committed, nor where occurred the appropriation of the money with which the accused is charged. The testimony introduced has not resulted in determining the first point, but this is not the case with respect to the second. It appears from the testimony of the accused himself that he rendered an account, to the station master at Tarlac, of the money collected on the trip in question that he there delivered the money collected during the trip, amounting to 6 pesos and 48 cents, and that there also, finally, he delivered the stub in which, it is charged, the simulation or falsification denounced was committed. There is nothing in the record to contradict or offset the testimony of the accused. In addition to his testimony the record discloses an itemized account of the collections made by him on the trip in question, in which appears the entry corresponding to the stub alleged to have been falsified. This document is dated in Tarlac and contains an invoice of delivery, signed by the accused, and a receipt, signed by the station master at that point, for the sum of 6 pesos and 48 cents. As part of this sum is included, the 18 cents entered on the stub in question which appears as one of the vouchers of the account referred to. This document fully corroborates the statements of the accused, and these facts considered together constitute in our judgment a sufficient demonstration that the appropriation of the difference resulting between the sum of 18 cents entered on the stub and the 1 peso and 22 cents actually collected as charged in the complaint was consummated in Tarlac, and that in Tarlac, also, he made use of the stub referred to in rendering an account of the trip in question, and delivering the amount collected to the station master at that point. This being so, under article 29 of the General Compilation of Laws upon Criminal Procedure, jurisdiction to try the offense charged is vested in the court of Tarlac, not only because it was within the territory of that court that the appropriation constituting the crime of estafa charged was committed, but also because within the same territory the accused made we of the document alleged to be false, it not appearing with certainty, on the other hand, at what place the falsification was committed. (Judgment of the supreme court of Spain of October 7, 1896.) The fact that the Court of First Instance of Manila took jurisdiction of the offense charged, because, in the opinion of the court, the place of the commission of the crime was not clearly shown, is not an obstacle to the court's declaring itself to be without jurisdiction as soon as the

lack of jurisdiction appeared from proceedings subsequently had. Jurisdiction over criminal cases can not be conferred by consent. (Art. 23 of the compilation above cited.) We therefore affirm the order appealed, with the costs of this instance to the appellant. Arellano, C. J., Torres, Cooper, Willard , and Ladd, JJ., concur.

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G.R. No. 482, March 21, 1902

FRUTO FELICIANO ET AL., PLAINTIFFS AND APPELLANTS, VS. ESCOLASTICO FERNANDEZ ET AL., DEFENDANTS AND APPELLEES. D ECIS ION
COOPER, J.: The defendants allege in their complaint that after having solicited the probate of the intestate estate of Doffa Fernanda Trinidad, Don Escolastico Fernandez appeared in the proceeding as the surviving spouse and asked the dismissal of the proceedings, filing as grounds therefor a certified copy of a will dated August 30, 1899, and executed by the deceased Doiia Fernanda Trinidad before the notary public of Pasig, Don Matias Salamante y Villanueva, and constituted her husband, Don Escolastico Fernandez, her sole and universal heir. During the pendency of the litigation the defendant died, and the proceedings were continued against his heirs, Dofia Petrona and Dofia Dionisia Fernandez y Limasin. The trial of the present action having been terminated, the defendants were discharged from the prayer of the complaint and the claims of the plaintiffs were perpetually quieted with costs of suit taxed against said plaintiffs. From this judgment appeal has been taken to this court. The plaintiffs, as grounds for a decree annulling and canceling the will referred to, allege that the notarial authority of Senor Salamante, before whom the will was executed, was created by royal decree, with the town of Pasig as the place of his residence; that the will was executed before Senor Salamante in the city of Manila and was null and of no force or effect, since the act was performed outside of the jurisdiction of the notary. By royal decree of February 15, 1889, the notarial law of May 28, 1862, prevailing in the Peninsula (Spain) was put in force in the Philippines with certain modifications and was to go into effect on July 1,1889. Article 3 of this notarial law provides that the office of notary shall include the territorial limits of the judicial districts in which the same were established. Tondo was in the judicial district of which the town of Pasig formed a part and Senor Salamante had authority to authenticate the execution of the will in the city of Manila. Therefore the contest of the will of Dona Fernanda Trinidad can not be sustained. The other grounds of nullity alleged by the plaintiffs, with respect to the execution of the will, refer to formalities of little importance which do not affect its validity; and furthermore, the greater part of them are not in conformity with the facts as they appear in the record. The judgment of the Court of First Instance is affirmed, with costs of this appeal taxed against the appellants. Arellano, C. J., Torres, Willard, and Mapa, JJ., concur. Ladd, J., did not sit in this case.

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G.R. No. 483, December 31, 1902

DAMIAN HERMITANO, PLAINTIFF AND APPELLEE, VS. MARCELINO CLARITO, DEFENDANT AND APPELLANT. D ECIS ION
MAPA, J.: The plaintiff alleges that the municipality of Carmona conveyed to him on December 4, 1897, a certain piece of land, the.property of the township, in payment or remuneration of certain services rendered by him in the years 1895 and 1896; that since that time he had quiet and peaceable possession of said lands as owner thereof until the 28th day of April, 1900, on which date the defendant, as local president at that time of the said town, without authority to do so, ousted him from his possession, and notified the tenants of the land that from that date henceforth they were to recognize him, the said defendant, as owner of the lands, in his capacity as president of the town. Upon these facts, and availing himself of the action of restitutory interdict, the plaintiff prayed the court that he be restored to the possession of the land from which he had been ousted and that the defendant be condemned to the payment of damages and to the costs of the action. The complaint was filed on the 17th of April, 1901, and contained a description of the land in question as to its area, location, and boundaries. The action having been prosecuted through its various stages, the Court of First Instance entered judgment in favor of the plaintiff, granting him the relief prayed for by restitutory interdict, together with other relief proper in the premises, against which judgment the defendant appealed to this court. Four witnesses testified for the plaintiff in the preliminary investigation, and three witnesses testified at the trial, all seven having unanimously affirmed that the facts related in the complaint are true, both with respect to the quiet and peaceable possession of the plaintiff and with respect to the ouster by the defendant. Two of them expressly stated that the latter had been in possession of the land since the date on which he made demand upon the tenants as municipal president of Carmona to attorn to him as the owner of the land, and to deal with him in all matters concerning expenses and seed for the cultivation thereof. The fact that three of these witnesses were unable to recall the exact date of the ousteraffirming, however, that it took place some time in the month of April, 1900does not diminish the probatory force of their testimony for the purpose of proving the facts upon which the complaint is based, because, considering this testimony in relation with that of the other witnesses, who affirmed that the ouster was effected on the 28th of the said month of April, we can not fail to conclude that this date has sufficiently been proven, by reason of the fact that all the witnesses refer to the same act, the testimony of each serving to corroborate that of the others. The conveyance of the land in question by the municipality of Carmona to the defendant has also been proven by a certified document (p. 54 of the record), which also contributes to give greater strength, although indirectly, to the grounds of the complaint, inasmuch as it demostrates the origin of the possession alleged by the plaintiff to have been enjoyed by him. The defendant does not deny the facts alleged in the complaint, but, on the contrary, admits their truth by his statement (p. 27) that the act which occasioned the ouster (these are his own words) took place on the 1st of April, 1900. It was for the same reason, doubtless, that he

offered no evidence whatsoever to offset that of the plaintiff with respect to the fact of the former's possession of the land and the ouster by the defendant. The only thing to which the defendant did not agree with respect to this point is the date on which the ouster took place. This he asserts occurred on the 1st day of April, 1900, and not on the 28th, as asserted by the plaintiff. If the true date were the first mentioned, the result would be that when the complaint was filed, on the 17th of April, 1901, more than one year had expired since the date of the ouster, in which case the action for the recovery of the possession by means of restitutory interdict would Jiave been barred by the statute of limitations, and consequently the complaint would have been dismissed, in accordance with the provisions of article 1635 of the Code of Civil Procedure. Such, in effect, is the defense upon which the defendant principally relies to destroy the action instituted by the complaint. For the purpose of proving that the ouster took place on the 1st of April, 1900, the defendant filed a certified copy (p. 50) of a resolution passed on that date by the municipal council of Carmona, establishing a new system for the cultivation of the town commons, which, under a long established custom, to use the words of the resolution, was ceded in usufruct to the members of the municipal council of the town for the period of their incumbency of that office. It was doubtless intended to show by this that the plaintiff was deprived of his possession by virtue of this resolution, and on the same date of its passage, which, however, has certainly not been proven in any way in the course of the trial. Furthermore, it is self-evident that the resolution, per se, could not have produced the effect de facto of depriving the plaintiff of his possession. To that end it was necessary that the resolution be executed by some subsequent act, which act, according to the unanimous testimony of the four witnesses, was effected on the 28th of April, 1900. From this date to the 17th of the same month in the year 1901, on which date the complaint was filed, the year had not expired as contended by the defendant. The defendant in the second place alleges that the conveyance of the land by the municipality of Carmona to the plaintiff was void, and therefore could produce no legal effect, as several decrees of the General Government of the Philippines, which appear in the record, expressly prohibit the alienation of the common lands of the said municipality for any cause whatsoever. This allegation is wholly irrelevant, inasmuch as the question in issue here is not the legality of the title by which the plaintiff possesses the land in question, but concerns solely and exclusively the fact of his possession. Whether the conveyance by the municipality of Carmona was valid or not, the fact remains that in consequence thereof the plaintiff was given possession of the said lands, and continued to possess them quietly and peaceably and as owner thereof for a period of over two years, until he was ousted by the defendant upon his own authority in April, 1900. The plaintiff was entitled to have this possession respected until such time as he might have been defeated in the proper action, even if it be true that the deed by which the land was conveyed to him was void. Even if he had been absolutely without title, with nothing more than the naked possession de facto of the land, under article 446 of the Civil Code he was entitled to have this possession respected. In accordance with this principle the Code of Civil Procedure affords a remedy by restitutory interdict not only to a possessor under a more or less valid title, but even to those who have

only the naked possession, if they are despoiled thereof. For the purpose of directing a restitution in such a case if is unnecessary to consider anything further than the fact of the possession and the ouster. Hence no evidence should be admitted in the trial other than that referring to these two points, and any evidence not concerning these issues should be rejected by the court on its own motion. (Arts. 1633, 1634, and 1638.) We therefore affirm the judgment appealed, with the costs to the appellant. So ordered. Arellano, C, J., Cooper, and Smith, JJ., concur. Torres, J., disqualified. WILLARD, J., with whom concurs LADD, J., dissenting : We dissent from this opinion.

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G.R. No. 488, April 05, 1902

GREGORIA MARTINEZ, PLAINTIFF AND APPELLEE, VS. HOLLIDAY, WISE & CO., DEFENDANTS AND APPELLANTS. D ECIS ION
WILLARD, J.: Holliday, Wise & Co., on the 9th day of May, 1900, obtained an attachment against the property of Marcelo Lerma, and on the 11th following there were seized, among other things, the sixth part of an estate marked with the letters A, B, C, D, E, P, G, and H, and the fifth part of an estate marked with the letter I, both situated in Azcarraga Street. On the 3d day of November of the same year judgment was ordered, directing Lerma to pay the plaintiff 2,334 pesos and 94 cents. The attachment was provisionally recorded in the register of property. In this condition of the suit Dona Gregoria Martinez filed a claim in intervention as owner and as a person having a prior lien on the property. In the first of these she asked that there be excluded from the attachment those parts of the estate seized as the property of Lerma, and that it be declared that they belonged to her as owner, and that the attachment upon them be dissolved. By the second she asked that her claim of 4,520 pesos against Lerma be declared superior to the claim of Holliday, Wise & Co. The court below admitted the intervention only in respect to the claim of preference, and as thus limited the complaint was served, upon Holliday, Wise & Co. The plaintiff thus impliedly agreed that her claim of ownership should be stricken out. The defendant admitted the facts stated in the complaint, except that part thereof in which it is stated that Lerma had renounced in favor of Dona Gregoria Martinez the property which constituted his paternal inheritance, because, in the document presented with the complaint, no such waiver is stated. This document says that Manuel Lerma, the defendant in the first action, was entitled to 4,374 pesos 43 3/8 cents as his share in his father's estate; that he had received from his mother, the executrix, at different times, various amounts, so that at the date of the document there had been delivered to him 4,524 pesos; that is to say, 149 pesos and 56 5/8 cents in excess of his share. This document also says "that he acknowledges to have received prior to the execution of this instrument from Dofia Gregoria Martinez y Bernardo, as executrix of the will of Don Jose Lerma y Lim, the sum of 4,374 pesos and 43 cents, the total amount of his hereditary portion, in cash, to his entire satisfaction, and the sum of 149 pesos and 56 5/8 cents loaned, also in cash, to his entire satisfaction, for which sums, amounting together to 4,524 pesos, evidenced by the above-mentioned receipts, the grantor hereby executes in favor of the said executrix the most binding and complete acquittance necessary for her security, and in consequence acknowledges to have received his said share in the hereditary estate." This is, in substance, all that the document contains. From it it clearly appears that the only debt which is set up or claimed is a debt of 149 pesos and 56 5/8 cents. In respect to the remainder, the words of the document constitute, in express terms, the extinction of a debt. It is possible that the parties intended to accomplish something else, and were not fully informed of the legal effect of the document, but we can only consider that which the document expresses, and we hold that by it there is recognized a debt of only 149 pesos and, 56 5/8 cents.

It is, however, still necessary to consider if, in respect to this sum, the plaintiff, Dofia Gregoria, has a right, in the distribution of the value of the property in question, superior to the right of Holliday, Wise & Co. The claim of Holliday, Wise & Co., the appellants, is a simple debt, evidenced by a promissory note. As such it had no preference over the other debts against the same debtor, and was included within the provisions of aiticle 1925 of the Civil Code. While in this condition the claim of the appellee of 149 pesos had a preference over it, because her claim appeared in the public writing and fell within the provisions of article 1924, No. 3, of the same Code. Holliday, Wise & Co. commenced an ordinary declarative action against the common debtor and obtained an embargo, which was levied on certain goods recorded in the register of property in the name of the debtor. This attachment was provisionally recorded in the same register. Did that record give them a preference which they did not have before over the debt of the appellee? Article 1391 of the Law of Civil Procedure requires this proceeding, and article 42, No. 2, of the Mortgage Law allows it. Article 44 of the Mortgage Law declares what its effect is in the matter of preferences. This article is as follows: "The creditor who obtains in his favor a provisional record in the cases referred to in Nos. 2, 3, and 4 of article 42 will be preferred, in respect only to the property covered by the attachment, to those who may have against the same debtor another claim contracted after the said record." From the time when the Mortgage Law of 1861 was in consideration up to the present time there has been only one opinion concerning the effects of a provisional record of this class. It has always been said that it did not change the character of the debt; that it did not convert into a right to the thing itself the claim of the creditor; that it did not give him any preference over existing claims which were not so provisionally recorded. In the introduction to the Mortgage Law of 1861 the Commission says: "The judicial mortgages, which hereafter, under the projected law, will be known as provisional records ( anotacion preventiva ), are constituted solely for the purpose of insuring the success of a trial. They do not create any right, and still less do they convert into a right in rein a claim which did not have this character before. It can not be said of them that they are the prize for the racers, as has been stated in another nation, thus likening the desire of the creditors to overreach each other in obtaining the provisional record to the. eagerness with which the first place at the end of a horse race is sought. They are not an unmerited favor granted to the most relentless creditor. They do not modify the character of obligations by changing simple into hypothecary obligations, nor do they make the judge an agent of the litigants, compelling him to make good the negligence of the creditor, and to give him securities which possibly the debtor himself at the time of assuming the obligation would not have given. The judicial mortgage, which has for its sole purpose that of insuring the results of a suit, has never had this character in Spain. It certainly has not created a mortgage action in favor of the creditor who has succeeded in obtaining the attachment or an order preventing a conveyance of the thing during the pendency of the action. The right of the creditor has not been modified by the judicial mortgage, nor has its character been changed. The creditor has simply obtained greater security by taking from the debtor the means of destroying the things of conveying it away, or of going into insolvency. Therefore, in the case of the insolvency of a nonmerchant or the bankruptcy of a merchant, those who have obtained in their favor judicial mortgages of the class above referred to did not obtain, nor will they now obtain thereby, any preferred claim over and above other creditors of

the same class, nor can they be classed as mortgage creditors. "These principles having been adopted by the proposed bill, they give a new lease of life to our ancient law and again proclaim that the creditor who obtains in his favor a provisional record, the object of which is to secure the consequences of a favorable judgment, shall solely enjoy preference over other creditors who hold claims against the same debtor which have accrued subsequent to the provisional record. Nor could it be otherwise without violating the principles of justice. One who makes a contract and does not demand a mortgage security contents himself with the security given him by the personal credit of the debtor, and should not be given any preference over others who find themselves in the same circumstances. If the debtor fails to perform his agreement at the time fixed the creditor may compel him to make payment by bringing his action, but this action does not change either the nature of the credit or the force of the claim. If any other rule were to be established the result would be that as to several creditors of the same class of one debtor the advantage would be on the part of the most insistent, the most relentless, the one who by fair means or foul might obtain exact information as to the condition of the estate of the debtor, the one who had the most diligent attorney. The Commission, following the teachings of the old law, has considered that none of these causes should be ground for preference." The Commission says elsewhere: "It can not be said with justice that by a judicial order, which has merely a provisional character, the nature of the obligation is changed, or that it is thereby converted from a simple to a mortgage debt; nor that it places at a disadvantage creditors of the same character; nor that it destroys the right of preference of mortgage creditors as established by the laws." Moscoso says: "We have stated repeatedly that the provisional record does not change the character of the obligation or the right which is its object; its effects are prospective; it solely affects persons who come later, who, with respect to the property embraced by the record, can not disregard the liability to which such property appears to be subject. This is because from the time of the provisional record this liability is made public by its entry in the register." (Legislaci6n Hipotecaria, p. 343.) The Supreme Court has of October, 1888, it is purpose of securing the repeatedly been held by repeatedly announced the same doctrine. In the judgment of the 26th said: "That the record of attachments of real estate made for the result of a suit does not alter the nature of the demand in litigation has this court."

The Civil Code, in article 1923, No. 4, in respect to preferences over described real estate, says; "Claims recorded in the register of property by virtue of a judicial order, by attachment, sequestration, or execution of judgments over the goods covered by the record, and only in respect to subsequent claims." This is, in substance, the language of article 44 of the Mortgage Law. The words "subsequent claims" in the first have the same meaning as the words "contracted after said record" in the Mortgage Law. According to the express terms of this article, the record affects only subsequent claims. It does not affect a prior one. The relation between the claim in favor of which the record is made and any other claim of a prior date is not changed in any way by the record. If the claim of the

appellee was prior to that of the appellants without the record of this attachment, it was so after it. The express terms of the article, and the nature itself of a record of this class, as we have seen, permit no other conclusion. In view of the condition in which the respective claims of the parties were found at the time the complaint in intervention was filed this article (1923) is not applicable. Neither is article 1927. We are not required to consider at present the apparent contradictions noticed by Moscoso (p. 344) between this article, No. 2, and article 1923, No. 4. The plaintiff, Dona Gregoria Martinez, having a claim entitled to preference over that of Holliday, Wise & Co. in respect to the amount of 149 pesos, her right to maintain this complaint so far as that sum is concerned has been settled by the decision of the supreme court of Spain in the judgment of October 6,1886. The judgment of the lower court is reversed, and it is declared that said Dona Gregoria is entitled to a preference only in respect to 149 pesos and 56 5/8 cents. No order is made in regard to costs. Arellano, C. J., Torres, Cooper, and Mapa, JJ., concur. Ladd, J., did not sit in this case.

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G.R. No. 493, November 25, 1902

THE UNITED STATES, COMPLAINANT AND APPELLEE, VS. ANTONIO ACUNA ET ALV DEFENDANTS AND APPELLANTS. D ECIS ION
LADD, J.: The appellants were convicted in the Court of First Instance of Iloilo, under article 343 of the Penal Code, which punishes the bankers and proprietors of gaming houses ( casas de juego de suerte, envite o azar ) and the players in such houses. Upon complaint of the provincial fiscal to the Court of First Instance, setting forth that he had received information to the effect that unlawful gaming was being carried on in the house in question, the judge, accompanied by the fiscal, the clerk, and other officers of the court, visited the house on the evening of April 30, 1901, and found a number of persons there engaged in playing the game known as "monte," among others the six appellants convicted as players, and Jacinto Ramos who was acting as banker. The usual apparatus of the game was found in use, and, together with some 89 pesos in money, was seized by direction of the judge, and has been declared forfeited in the judgment under article 345 of the Penal Code, providing that "the money or other articles and the instruments and tools used in gambling or raffles shall be confiscated." Antonio Acuna is admitted to have been the lessee of the premises during the period covered by the evidence, and may be held responsible as proprietor. (Judgment of the supreme court of Spain of January 10, 1882.) It is claimed by counsel for the appellant Teaiio that his client was not a participant in the game but was present as a mere spectator. The act, drawn up under the authority of the judge reciting what was discovered and done at the time the premises were visited, states that Teano was one of the players, and we find nothing in the evidence to justify the conclusion that that fact was incorrectly stated. The only substantial question to be determined is whether the house was a gaming house ( casa do juego de suerte, envite o azar ), that is, "a house specially devoted to the encouragement or promotion" ( dedicada al fomento o mantenimiento ) of gaming. (Judgment of the supreme court of Spain of December 28, 1887.) Mariano Nara testified that he had been in the house and had seen gambling going on there on an occasion distinct from that when the house was raided. The evidence of Ceferino M. Fontbuena is to the same effect. And Perfecto Izar, whose evidence we regard as substantially unimpeached, testified that he had been employed by Antonio Acuna to bring players to the house, receiving as compensation for his services a percentage of the profits. To rebut this positive evidence, as to the character of the house, we have only the statements of a number of witnesses who, in substance, merely say that they had never heard of gambling being carried on in the house except on the evening of the raid. The evidence furnished by the nature of the things found in the house by the judge also tends strongly to establish the character of the house, and on the whole we are unable to see any room for doubt that unlawful gaming was carried on there as a business by the lessee. It is

true that the lessee had only occupied the house a short time when the raid occurred, but we apprehend that the length of time during which the unlawful business had continued can have no materiality when once it is shown that such business had been established on the premises. The judgment of the court below is affirmed, with costs, and the case is remanded to that court for the execution of the judgment. So ordered. Arellano, C. J., Torres, Cooper, Smith, and Willard, JJ., concur. Mapa, J., disqualified.

OSJurist.org

G.R. No. 496, December 31, 1902

THE UNITED STATES., COMPLAINANT AND APPELLANT, VS. WILLIAM FOWLER ET AL., DEFENDANTS AND APPELLEES. D ECIS ION
TORRES, J.: The two defendants have been accused of the theft of sixteen bottles of champagne of the value of $20, on the 12th August, 1901, while on board the transport Lawton, then navigating the high seas, which said bottles of champagne formed part of the cargo of the said vessel and were the property of Julian Lindsay, and which were taken lucri causa , and with the intent to appropriate the same, without violence or intimidation, and without the consent of the owner, against the statute in the case made and provided. The accused having been brought before the court, the prosecuting attorney being present on behalf of the Government, counsel for the defendants presented a demurrer, alleging that the Court of First Instance was without jurisdiction to try the crime charged, inasmuch as it appeared from the information that the crime was committed on the high seas, and not in the city of Manila, or within the territory comprising the Bay of Manila, or upon the seas within the 3-mile limit to which the jurisdiction of the court extends, and asked, upon these grounds, that the case be dismissed. This contention was opposed by the prosecuting attorney, who alleged that the court has original jurisdiction in all criminal cases in which the penalty exceeds six month's imprisonment, or a fine of over $100; that, in accordance with the orders of the Military Governor and the Civil Commission admiralty jurisdiction over all crimes committed on board vessels flying the flag of the United States has been vested in the Courts of First Instance of the city of Manila. Among other laws and orders he cited the order of August 14, 1898, and Acts Nos. 76 and 186 of the United States Civil Commission. He argued that the President of the United States had unquestionable authority to authorize the commanding general and the Civil Commission to establish a judicial system with authority to take cognizance of maritime and admiralty causes, citing a decision of the Supreme Court of the United States in support of this doctrine, which was applicable to this Archipelago, which is now analogous to the status of some of the States of the Union during the Mexican war and the war of secession. The judge, however, by an order of the 14th of September, 1901, held that the court was without jurisdiction to try the accused for the theft alleged to have been committed on the high seas, sustained the demurrer, and ordered the discharge of the defendants, with the costs to the Government. Against this order the prosecuting attorney appealed, and the case was brought before this court. This case deals with a theft committed on board a transport while navigating the high seas. Act No. 136 of the organic law, as well as Act No, 186 passed by the Civil Commission, and which repealed the former law, Act No. 76, do not expressly confer jurisdiction or authority upon this court to take cognizance of all crimes committed on board vessels on the high seas. While the provisions of the law are clear and precise with respect to civil admiralty or maritime cases, this is not true with respect to criminal cases. If any doubt could arise concerning the true meaning of the law applicable to the case, Act No. 400 effectively dissipates such doubts.

This law, which is an addition to Act No. 136, by which the courts of justice of the Philippine Islands were organized, in article 1 adds to article 56, consisting of seven paragraphs, another paragraph numbered 8, which reads as follows: "Of all crimes and offenses committed on the high seas or beyond the jurisdiction of any country, or within any of the navigable waters of the Philippine Archipelago, on board a ship or water craft of any kind registered or licensed in the Philippine Islands in accordance with the laws thereof." The purpose of this law was to define the jurisdiction of the Courts of First Instance in criminal cases for crimes committed on board vessels registered or licensed in the Philippine Islands. The transport Lawton not being a vessel of this class, our courts are without jurisdiction to take cognizance of a crime committed on board the same. Upon these grounds we consider that the order appealed should be affirmed, with the costs de oficio. So ordered. Arellano, C. J., Cooper, Smith, Willard, Mapa, and Ladd, JJ., concur.

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G.R. No. 500, January 30, 1902

THE UNITED STATES, COMPLAINANT AND APPELLEE, VS. LEOCADIO TANJUANCO ET AL., DEFENDANTS AND APPELLANTS. D ECIS ION
TORRES, J.: Causes Nos. 10 and 11 were commenced in the Court of First Instance of the Province of Bulacan against Leocadio Tanjuanco and Domingo Bernardo for robbery in a gang and brought before this court by virtue of an appeal interposed by the defendant Tanjuanco from the sentence of September 17, 1901, dictated by the court below in the latter of said actions, imposing upon him the penalty of eight years of presidio mayor for each one of the crimes which are the subject matter of both complaints. Every action commenced for the purpose of prosecuting a crime should be finally determined either by an order of dismissal or a judgment either of conviction or acquittal. Since each of the above-mentioned causes has been commenced by means of an information presented by the provincial fiscal for each of the two robberies of which they treat in accordance with the provisions of section 11 of the Law of Procedure of April 23, 1900, and since the said two crimes are not punishable by one single penalty according to article 89 of the Penal Code, there is no law which authorizes the court to enter a single judgment for the two offenses in one of the two actions as he has done in cause No. 11, including in a single judgment the decision of two causes. Without a consolidation of these causes the judge has considered together the proofs adduced in each of them and has rendered a judgment of conviction not only of the robbery prosecuted in cause No. 11 but also of that prosecuted in cause No. 10. The procedure followed by the court below violates an essential right of the accused, inasmuch as he is entitled, although accused of the two offenses, to a trial in each one of the two cases in question upon the proofs adduced in each individual case, and upon the allegations set forth in each information. It is not permissible to take into account or consider in one case the facts proved in the other, and vice versa. Therefore, since each of the two robberies should be punished independently and separately, it follows that the single judgment rendered for the two actions in cause No. 11 (one of them) is a nullity, and the sentence appealed from must be reversed and the two causes remanded to the court of Bulacan with instructions tp enter the proper judgment in accordance with law in each one of them. It is so ordered. Arellano, C. J., Cooper, Willard, and Mapa, JJ., concur. Ladd, J., did not sit in this case.

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G.R. No. 500, September 16, 1902

THE UNITED STATES, COMPLAINANT AND APPELLEE, VS. LEOCADIO TANJUANCO ET AL., DEFENDANTS AND APPELLANTS. D ECIS ION
COOPER, J.: Leocadio Tanjuanco and Domingo Bernardo are charged with the crime of robbery en cuadrilla committed with seven other persons who carried guns, and who, after tying Antonio Capistrano, Benito Capistrano, Victoriano de la Cruz, and Baldomero de Vera with ropes, carried them off and also possessed themselves of and carried away four carabaos and one mare, the property of Antonio Capistrano. Domingo Bernardo it appears has died in prison. The defendant Leocadio Tanjuanco was convicted by the Court of First Instance, Fifth Judicial District, and sentenced on the 15th day of March, 1902, to eight years of presidio mayor. At the trial a copy of the proceedings had at a meeting of the municipal council of the pueblo of Angat on the 15th of September, 1901, was offered by the prosecution and received in evidence against the defendant, in which it was certified that at the meeting held by the residents of the barrios of Bangat, Binagoag, and others for the purpose of investigating the life and conduct of the defendant Leocadio Tanjuanco, it was unanimously agreed that he was known as a man of bad character by reason of his notorious acts during the time of the Spanish Government and up to the date of this prosecution; that he had been prosecuted for robbery, theft, and other crimes, such as poisoning. Formerly under the Spanish procedure such evidence was admissible. ( Auto Acordado of September 4, 1860, art. 30.) By the provisions of section 15, General Orders, No. 58, in force at the time of the trial, it is the right of the accused in all criminal prosecutions to be confronted by and to cross-examine the witnesses against him. The introduction of such evidence as the proceedings of the municipal board of Angat was contrary to the provisions of this law, and the Court of First Instance erred in receiving it. For this error the cause is reversed and is remanded to the Court of First Instance for a new trial, and it is so ordered. Arellano, C. J., Torres, Willard, and Ladd, JJ., concur.

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G.R. No. 503, July 15, 1902

THE UNITED STATES, COMPLAINANT AND APPELLEE, VS. ELSIDA RAPINAN, DEFENDANT AND APPELLANT. D ECIS ION
ARELLANO, C.J.: This prosecution is based upon a charge of the theft of a gold chain of the value of 70 pesos. The information alleges that this theft was committed upon an occasion on which the defendant had gone to the house of Dona Cayetana Veloso with the pretext of seeing and selecting a chain for the purpose of buying it. It is supposed that this chain was lostthat is, takenon one day in June, 19U0. A year afterwards, in June, 1901, Florentina Remoquillo stated to Dona, Cayetana Veloso that she had seen in the possession of the accused the chain which had been missed a year ago. A prosecution was commenced, and of the three witnesses called on behalf of the Government one of them the woman Remoquillonone were able to testify as to the actual theft nor to the fact that the accused was in the house of the complaining witness to see about buying a chain. At the trial all three, as well as the complaining witness, made self-contradictory statements, their testimony being different from that given at the preliminary investigation. It was found impossible to prove anything when the case was called for trial. The complainant offered to produce other witnesses, and the oase was set for a later day. On this occasion five more witnesses were presented. By the testimony of three of them an attempt was made to show that the accused had tried to give an account of her acquisition of the jewelry in question. Two of them directly testified to the theft of which the accused is charged. These two witnesses testified that they had been present a year before and that they had seen the accused commit the theft. Nevertheless, they said nothing about it to the complaining witness until the day before they were put on the stand. The 29th of July, 1901, having been fixed as the day for the continuance of the trial, one witness, Mateo Ufana, stated that on the 28th he had gone to the house of the complaining witness for the purpose of telling her what he knew about the matter, and that on this account she had called him as a witness, together with Melchor del Mar, his companion on that occasion, whom Ufana reminded of what had taken place a year before in order that he might be called as a witness. The court can not consider that the theft has been proven by the testimony of these two witnesses: it is sufficient to read their testimony and compare it with that of the complainant in order to observe its self-contradictory and partial character. The fact of the theft of which the accused is charged not having been proven, it follows that she was the lawful possessor of the chain in question. The latter was spontaneously exhibited by counsel for the defense to the court in order that it might be shown to the witness. In accordance with articles 620, 844, and 635 of the Law of Criminal Procedure of Spain promulgated on the 14tb of September, 1882, made supplementary law in these Islands by virtue of article 95 of the provisional regulations for the application of the Penal Code and still in force by virtue of the provisions of section 1 of General Orders, No. 58, series of 1900, on the subject of criminal procedure, the person in possession of a thing at the time it is seized by order of the trial court is presumed to be the owner of it. The possession of personal property

acquired in good faith is equivalent to title thereto, in accordance with article 464 of the Civil Code now in force, and by the provisions of article 434 good faith is always to be presumed, the burden of proof being upon him Vho asserts that the possessor holds in bad faith. What appears to be really questionable is whether the accused is the owner of the chain, in view of the assertions of the complaining witness. "Who is the owner? Who is the possessor? This it is impossible to determine a priori. The relation of the person to the thing or the right is apparently the same with respect to ownership as with respect to possession. From an exterior point of view he who exercises acts of ownership must be regarded as the owner. Hence it is that owing to the impossibility of determining the question from appearances and in view of the impossibility of looking into the conscience of the possessora matter entirely beyond the scope of judicial investigationarticle 434 establishes the presumption of good faith; it does not say that good faith exists, but that it is presumed. This presumption is just, because possession is the outward sign of ownership. It is to be presumed that the right of the possessor is well founded. This appearance of lawful possession must be accepted even though it be in reality nothing more than a disguise for bad faith, because this can not be known with certainty until proved, and because every person is presumed to be honest until the contrary is shown. Hence, protection is given to the possessor against all other persons, whoever they may be, and hence, the precept of article 434 which demands proof of bad faith." (Manresa, Commentary on the Spanish Civil Code, Vol. IV, p. 96.) "He who may have lost a chattel or has been illegally deprived of it may recover it from the person in whose possession it may be." (Art. 464, Civil Code.) These were the questions in issue. Therefore the judgment below by which the defendant is convicted of theft and condemned to two months and one day of arresto mayor and to the restoration of the chain in question, which is now in the hands of the clerk, and to the payment of costs, is hereby reversed and set aside, with the costs of both instances de oficio. The chain in question will be returned to the accused, in whose possession it formerly was. So ordered. Cooper, Mapa, Willard, and Ladd, JJ., concur.

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G.R. No. 504, September 16, 1902

THE UNITED STATES, COMPLAINANT AND APPELLANT, VS. TOMASA DE LOS EEYES, DEFENDANT AND APPELLEE. D ECIS ION
LADD, J.: This is an appeal from the Court of First Instance of Manila, taken by the complaining witness, Julian Gonzalez, from a judgment of acquittal, upon a complaint for bigamy under article 471 of the Penal, Code. The defendant was married to the complaining witness in Manila, May 27, 1897. After living together in Manila for a time they separated, the defendant remaining in the house where they had been previously living until some time subsequent to July 12, 1900. On that day she was married in Manila by a Protestant clergyman to Ramon Martinez. Her defence is that she honestly believed her first husband was dead when she married Martinez. It appears that the mother and some other relatives of Gonzalez lived, after the separation, in the same house with the defendant. Gonzalez testifies that the separation took place in March, 1900, and that he also lived for some months in the lower story of the same house, the defendant living in the upper story. He further testifies that after he left this house and went to live elsewhere he visited his relatives there nearly every day down to a few days before the trial, which took place in September, 1901. He says that he often saw his wife at these times, supplying her with means for her support through his relatives, but that he never spoke with her. A short time after her second marriage the defendant moved away from the house and has since lived elsewhere. The defendant testifies that she and Gonzalez had been living together a year and two months when the separation took place. That would fix the date of the separation in July, 1898. She testifies that some time during the year following the separation she was told by the mother of Gonzalez that she had been informed that her son was dead, that thereupon prayers were said for his soul for nine nights, and that she put on mourning and wore it a year. She says that she contracted the second marriage with the consent of the mother of Gonzalez, and believing that the information which she had received from her as to the death of Gonzalez was true. The mother of Gonzalez died before the trial. There was some further evidence from other witnesses On both sides, but it was of such a character as to throw but little light upon the facts of the case. On the whole, we have reached the conclusion, though not without some hesitation, that the story told by the defendant is in the main more likely to be true than false, and that she probably did contract the second marriage under a bona fide belief that the first marriage had been dissolved by the death of Gonzalez. We have recently held, in the United States vs. Marcosa Penalosa and Enrique Kodriguez, decided January 27, 1902, that there can be no conviction under article 475 of the Penal Code, where by reason of a mistake of fact the intention to commit the crime does not exist, and we think the same principle must apply to this case. The defendant was therefore properly acquitted of the crime charged in the complaint.

We are, however, of the opinion that the defendant is chargeable with criminal negligence in contracting the second marriage, and should have been convicted under article 568 of the Penal Code. (See G. O., No. 58,.sec. 29.) It does not appear that she made any attempt to ascertain for herself whether the information received by her mother-in-law as to the death of Gonzalez was to be relied upon. She never even saw or communicated directly in any way with the persons who gave her mother-in-law this information. Moreover, viewing the testimony in the light most favorable to her, she waited less than two years after hearing of the death of her husband before contracting the second marriage. The diligence with which the law requires the individual at all times to govern his conduct varies with the nature of the situation in which he is placed and with the importance of the act which he is to perform. In a matter so important to the good order of society as that in question, where the consequences of a mistake are necessarily so serious, nothing less than the highest degree of diligence wiU satisfy the standard prescribed by the law. We can not say that the defendant has acted with that diligence in the present case. Applying the provisions of article 568 of the Penal Code, the act of contracting a second or subsequent marriage, the prior marriage not having been lawfully dissolved, being one which, if done with malice, would constitute a grave crime, the offense committed by the defendant is punishable by arresto mayor in its maximum degree to prision correccional in its minimum degree. There being no aggravating circumstance, and as we think the extenuating circumstance of article 11 of the Penal Code may properly be considered in this case, this penalty should be applied in its minimum degree. We therefore sentence the defendant to four months and one day of arresto mayor and costs. The judgment of the court below will be modified in accordance with this opinion. So ordered. Arellano, C. J., Cooper, Smith, Willard, and Mapa, JJ., concur.

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G.R. No. 513, December 19, 1902

BENITO LEGARDA Y TUASON, COMPLAINANT AND APPELLANT, VS. VICENTE GARCIA VALDEZ, DEFENDANT AND APPELLEE. D ECIS ION
MAPA, J.: The appellant filed a criminal complaint against the defendant for the crime of libel ( injurias graves), defined and punished by article 458 of the Penal Code, alleging that in issue No. 16, dated September 15, 1901, of the weekly paper called "Miau," published in this city and of which the defendant was the editor, an article was published under the heading "D. Benito Legarda y Tuason," and to which reference was made by the complaint, it not being reproduced verbatim on account of its great length; that in said article certain defamatory statements are made, tending to discredit the complainant and to bring him into contempt by charging him with vice and immorality, which defamation tends to prejudice his good name, credit, and honesty. A prosecution having been had upon the said complaint the judge of the court below, on the 6th day of May, 1902, entered judgment, in which he declared the defendant to be guilty and condemned him to suffer six months' banishment and to pay a fine of 625 pesetas and the costs of the action. The private prosecutor appealed from this judgment, against which the defendant on his part did not appeal. The evidence taken during the trial shows fully that the accused was the editor of "Miau" at the time of the publication of the article upon which the complaint is based. The text of this article, on the other hand, leaves no room for doubt as to its defamatory character and of the gravity of the defamatory statements made therein concerning the complainant. It is sufficient to merely read the article to reach this conclusion. The accused himself must have been so fully convinced of this fact that he made no attempt to even deny it or discuss it, and much less to demonstrate the contrary, but simply offered to prove the truth of the charges made against the complainant in this article, which offer to prove was properly rejected by the judge, in accordance with the provisions of article 460 of the Penal Code, to the effect that "the defendant in a prosecution for libel ( injuria) shall not be allowed to introduce evidence as to the truth of the charges * * *." Such an offer, properly regarded, to a certain extent is an implied acknowledgment on the part of the accused that he was the author of the article in question. It also appears from the record that the complainant was a member of the United States Civil Commission in these Islands at the date of the publication of the article referred to. Accepting, upon these grounds, the opinion of the court below as to the guilt of the accused, it is obvious that the penalty imposed upon the latter in the judgment appealed is not that which corresponds to the crime prosecuted in accordance with the provisions of the Penal Code. Article 458 of the Penal Code provides that written injurias graves made public shall be punished by banishment from the medium to the maximum degree and a fine of 625 to 6,250

pesetas. Under article 462 injuria is considered to have been made in writing and publicly when it is effected by means of printed papers, and this is precisely what has occurred in this case. The minimum duration of the penalty of banishment in its medium degree is that of two years four months and one day, as appears from the demonstrative table of article 96. Consequently, although the penalty prescribed by article 458 should be imposed in its minimum degree, it must be at least of that duration, and could never be for six months only, more especially in view of the fact that the Penal Code does not recognize the penalty of banishment for so short a time, the duration of this banishment, under article 28, being from six months and a day to six years. The appellant contends that the penalty prescribed by article 458 should be imposed upon the accused in its maximum degree, because of the concurrence in the commission of the offense of the aggravating circumstance of the commission of the crime in disregard of the respect due the defendant by reason of the dignity of his office as a Commissioner at the time of the publication of the article which led to this prosecution. The judge below did not apply this circumstance, upon the ground that as no evidence was admissible on the part of the accused as to the truth of the charges contained in the publication, it was impossible to determine whether these charges were or were not made in disregard of the respect due the complainant by reason of his office. According to the judge it would be such a disrespect if the computation was false, but none if it was true. We can by no means accept this reasoning. The prohibition established by the Penal Code as to the admission of evidence as to the truth of libelous publications is not and can not be an obstacle to the consideration in the commission of the crime of injuria of the dignity of the complainant. This very circumstance constitutes one of the reasons for regarding the injuria as grave. What is in itself merely a slight injuria may be regarded as grave, in accordance with section 4 of article 457, by reason of the status, dignity, and circumstances of the complainant or of the defendant. This demonstrates conclusively that, notwithstanding the prohibition referred to, dignity can and should be considered for the purpose of giving the proper legal classification to the offense, and consequently in determining the penalty which should be imposed upon the defendant, according as the case may be. When, for the purpose of classifying a defamation as grave it is necessary to take into consideration as an element constituting its gravity the status and dignity of the complainant, as in the case of paragraph 4 of article 457 referred to, this circumstance must be regarded as a qualification of the offense, in which case it can not produce the effect of augmenting the penalty, under article 78, because it has already been considered by the law in defining and punishing the crime. This was so held in a decision rendered on the 8th of November last in the case entitled Pardo de Tavera vs. Vicente Garcia Valdez. But when the defamation is per se of a grave character, or is so classified independently of the dignity of the person defamed, as occurs, among other cases, in that falling under paragraph 2 of article 457, which is precisely the case now before us, tnen this circumstance is to be regarded as a generic, aggravating circumstance, in accordance with the provisions of paragraph 20 of article 10 of the Penal Code. (Judgment of the supreme court of Spain of February 5, 1884.) The court below, by failing to so regard it in the judgment appealed, clearly violated this provision. Therefore an error of law was committed in the said judgment: (1) In so far as the accused is thereby condemned to six months banishment, whereas the duration of this penalty can in no

case be less than six months and one day, in accordance with article 28 of the Penal Code; (2) because the penalty prescribed by article 458 of the said Code, this being the article applicable to the crime herein prosecuted, was not inflicted; and (3) because the aggravating circumstance of the commission of the crime in disregard of the respect due the complainant by reason of his office was not applied. This circumstance in this particular case is not qualificative of the defamation, as this is per se of a grave character, having been committed without regard for the dignity of the complainant, and consequently the provisions of paragraph 20 of article 10 were violated. In addition to this aggravating circumstance it is necessary to consider against the defendant the circumstance of recidivation, indicated in paragraph 18 of article 10. According to this article there is recidivation when the defendant, upon being tried for a crime, has been already convicted of another offense comprised in the same title of the Code, and the defendant has already been convicted of the same offense as that herein prosecuted, to wit, the offense of injuria grave, by the judgment of this court of the 8th of November, 1902, in the prosecution instituted against him at the instance of D. T. Pardo de Tavera, above mentioned. We therefore condemn the defendant to six years of banishment from the city of Manila and from the territory surrounding it within a radius of 250 kilometers, and to pay a fine of 6,250 pesetas, or, in the event of the failure to pay the same, to suffer subsidiary banishment at the rate of one day for each twelve and one-half pesetas, subject to the provisions of article 50 of the Penal Code, and to pay the costs of this instance. The judgment appealed, thus modified, is affirmed. So ordered. Arellano, C. J., Torres, Cooper, Willard, Ladd, and Smith, JJ., concur.

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G.R. No. 513, February 25, 1902

BENITO LEGARDA, COMPLAINANT AND APPELLANT, VS. VICENTE GARCIA VALDEZ, DEFENDANT AND APPELLEE. D ECIS ION
WILLARD, J.: Article 56 of Act 136 defines the jurisdiction of Courts of First Instance. Under clause 6 of this article these courts have jurisdiction "in all criminal cases in which a penalty of more than six months' imprisonment or a fine exceeding one hundred dollars may be imposed." It does not admit of doubt that the court has jurisdiction of an offense if it may impose a fine of more than $100. The fact that it may under the law impose a fine of less than $100 does not deprive it of jurisdiction. The Court would, for example, clearly have jurisdiction of the offense prescribed and punished' by article 459 of the Penal Code. The fine there may be no more than $31, but it may, in the discretion of the court, be $310. So if the Code punished an offense with imprisonment for one year and a fine of $50 the court would have jurisdiction not only to direct the imprisonment but also to impose the fine. This would also be true if the fine were $200 and the imprisonment three months. The prosecution in this case is based upon article 458, which assigns a penalty of destierro and a fine of from 625 to 6,250 pesetas. We can not, therefore, see why it is necessary in this case to decide whether the penalty of banishment is lighter or heavier than imprisonment for six months. Even assuming that it is a lighter punishment the court had, as far as this point is concerned, jurisdiction to try this case because it had power to impose a fine of nearly $600. It remains to be considered whether Courts of First Instance have power to impose the penalty of banishment. We do not agree with the counsel for the defendant in his claim that the language of article 56 of Act No. 136 prevents Courts of First Instance from inflicting any punishment except fine or imprisonment. Such a construction would prohibit the infliction of the death penalty. The penalty of destierro is defined as follows by article 114: "Those sentenced to destierro shall be precluded from entering the place or places designated in the sentence; or within the radius therein designated, which shall include a distance of 25 kilometers at least, and 250 kilometers at most, from the place designated." If in this case the defendant is convicted the sentence might be such as to enable him to live free from all restraint in any place in the Archipelago that was more than 25 kilometers from Manila, and to return hither upon the expiration of the penalty. Groziard (vol. 2, p. 511), in distinguishing this penalty from that of confinement, says: "The punishment involved is, nevertheless, much less than that of confinement. For the exile there is only one prohibition that of entering the places designated in the judgment. All other parts of the territory are free and open to his person. The criminal, sentenced to confinement, is not permitted to depart from the place whither he has been transported; the exile may go anywhere with the exception of the places designated in the judgment." Punishment of this character is not new, for it is found in the Fuero Juzgo (law 12, title 5, book

6; law 13, title 5, book 6). It is not limited to the Spanish law. It has existed in the French, Austrian, Italian, Portuguese, and other codes. It can not be and is not claimed to be a cruel punishment. It is, however, claimed to be a punishment unusual in the United States, and therefore prohibited in these Islands by the instructions of the President to the Commission. Those instructions use the words "cruel and unusual punishment." They were, of course, taken from the Constitution of the United States and originally from the English statute.. It is to be observed that the words are "cruel and unusual." To be prohibited by this provision the punishment must not only be unusual but it must also be cruel. There is no reason why unusual punishments which were not cruel should have been prohibited. If that had been done it would have been impossible to change the punishments that existed when the Constitution was adopted. A law which changes a penalty so as to make it less severe would be unconstitutional if the new penalty were an unusual one. It would prohibit the introduction in the matter of penalties of new ideas intended to ameliorate the condition of criminals. Such a construction has never been given to this provision. Speaking of the law of New York providing for electrocution the Supreme Court of the United States said: "The provision in reference to cruel and unusual punishments was taken from the well-known Act of Parliament of 1688, entitled 'An Act for Declaring the Rights and Liberties of the Subject, and Settling the Succession of the Crown,' in which, after rehearsing various grounds of grievance, and among others, that 'excessive bail hath been required of persons committed in criminal cases, to elude the benefit of the laws made for the liberty of the subjects; and excessive fines have been imposed; and illegal and cruel punishment inflicted'it is declared that 'excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.' (Stat. 1 W. & M., chap. 2.)" So that, if the punishment prescribed for an offense against the laws of the State wereinanifestly cruel and unusual, as burning at the stake, crucifixion, breaking on the wheel or the like, it would be the duty of the courts to adjudge such penalties to be within the constitutional prohibition. And we think this equally true of the Eighth Amendment, in its application to Congress. In Wilkerson vs. Utah , 99 U. S. 130, 135, Mr. Justice Clifford, in delivering the opinion of the court, referring to Blackstone, said: 'Difficulty would attend the effort to define with exactness the extent of the constitutional provision, which provides that cruel and unusual punishments shall not be inflicted; but it is safe to affirm that punishments of torture, such as those mentioned by the commentator referred to, and all others in the same line of unnecessary cruelty, are forbidden by that Amendment to the Constitution.' Punishments are cruel when they involve torture or a lingering death; but the punishment of death is not cruel, within the meaning of that word as used in the Constitution. It implies there something inhuman and barbarous, something more than the mere extinguishment of life." "The courts of New York held that the mode adopted in this instance might be said to be unusual because it was new, but that it could not be assumed to be cruel in the light of that common knowledge which has stamped certain punishments as such." ( Ex parte Kemmeler, 136 U. S, 436) By disposing of this claim on this ground we do not wish to be understood as giving our assent to the proposition that the said instructions could in any event have any bearing on this case. It is not necessary to pass upon this question and we do not do so. The defendant demurred to the complaint on three grounds: The first attacked the jurisdiction of the court, the other two were directed to the sufficiency of the complaint. The court expressly refrained from passing upon these and limited itself to deciding that the court was

without jurisdiction. These objections were made before the defendant had pleaded to the complaint. Article 9 of General Orders, No. 58, allows the complaint to be amended before that time in substance or form without leave of the court. When the case is remanded the complaining witness will have that right. Article 23 of General Orders, No. 58, provides also that if the court below sustains a demurrer for defects in the complaint it has the power to order a new complaint to be filed. The court may take this course if, upon the remanding the case, the demurrer is renewed and sustained. For these reasons we decline to consider the other points raised by the demurrer. The judgment of dismissal is reversed and the cause remanded with instructions to proceed therein according to law, with costs of this instance de oficio. Arellano, C. J., Torres, Cooper, Mapa, and Ladd, JJ., concur.

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G.R. No. 518, February 15, 1902

THE UNITED STATES, EOMPLAINANT AND APPELLANT, VS. ROSARIO DE GUZMAN, DEFENDANT AND APPELLEE. D ECIS ION
TORRES, J.: About 10 o'clock in the morning of October 16, 1900, Kosario de Guzman went to the house of Doa Victorina Leonquingco, located in the district of Santa Cruz, and, on the pretense that she had a purchaser who wished to see the jewels, took from the latter several pieces of gold jewelry set with diamonds, of the total value of 730 pesos. These she promised to return, or to pay over their value in case they were sold, on the afternoon of the same day. As she did not do so, the son of the owner of the jewelry went in search of her on the following day. lie was not able to find her until some days had passed, and then the defendant Guzman pleaded with Leonquingco that she be given an extension of time for the return of the jewelry. She failed, however, upon various pretexts, to return the jewels. The facts related are fully proved in the cause by the testimony of several witnesses and by the confession of the defendant, and constitute the crime of embezzlement ( estafa), defined and penalized in article 534, No. 2, and article 535, No. 5, of the Penal Code, since evidence shows that Rosario de Guzman had received from the complaining witness, Victorina Leonquingco, various pieces of jewelry, valued at 730 pesos, for the purpose of selling them, subject to the express obligation of delivering their value or returning them to their owner if they should not be sold. Not having done so, and having failed to give an account of their whereabouts, the legal presumption arises that the defendant abstracted and appropriated to herself the jewelry received, to the grave prejudice of the owner of the same, inasmuch as she neither returned them nor paid their value, as was her duty. Of the crime charged, the sole proven principal by direct participation, confessed and convicted, is the defendant, Rosario de Guzman. Her assertion, even if substantiated, that she delivered the jewels to a broker, who states that she either lost them later or that they were stolen from herand there is no proof of thisand that the complaining witness has entered into an agreement with her for the payment of their value in installments, would constitute no defense. The reason for this is that it is not within the discretion of the parties to change the nature of criminal causes, which are public in character, by converting them into civil actions; and the alleged agreement, even if true and established by proof, would not demonstrate that there has not been fraud on the^part of the accused, or prejudice to the owner of the jewelry; fraud and prejudice which took place and which may not be atoned by the restoration of the embezzled property, the greater part of which, indeed, has not been restored. In the commission of this crime there is no extenuating or aggravating circumstance to be considered, and therefore the appropriate penalty should be imposed in its medium degree. By virtue of the foregoing considerations we deem it proper that the judgment appealed from be reversed and that Rosario de Guzman be condemned to the penalty of five months of arresto mayor, together with the accessory penalties of article 61, and the payment of an indemnity equal to the value of the jewelry embezzled in case same be not finally returned, or the corresponding subsidiary imprisonment not to exceed the third part of the principal penalty,

and to the payment of costs in both instances. So ordered. Arellano, C. J., Cooper, Willard, Mapa, and Ladd, JJ., concur.

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G.R. No. 521, April 01, 1902

THE UNITED STATES, COMPLAINANT AND APPELLEE, VS. FRANCISCO DE LEON ET AL., DEFENDANTS AND APPELLANTS. D ECIS ION
LADD, J.: This is an appeal from a judgment of the Court of First Instance of Bataan, whereby the defendants were convicted of the theft of two caraballas of the value of 100 pesos, and sentenced to four months and one day of arresto mayor, indemnification, and costs. There was evidence on the part of the prosecution that in April, 1901, one Caragay had two caraballas in a pasture in the pueblo of Balanga, that they disappeared and have never been found, and that about the time they disappeared the defendants were seen leading the caraballas with a rope away from the pueblo. No evidence was introduced for the defense. We think the conviction was right. While the appeal was pending in this court the defendants presented a petition asking for the reopening of the trial under General Orders, No. 58, section 42, on the ground of newly discovered evidence material to their defense, This newly discovered evidence is to the effect that during the month of April, 1901, when the witnesses for the prosecution state that they saw the defendants with the caraballas in the outskirts of the pueblo, no persons exceptsoldiers and the police were allowed by the military authorities to enter or leave the pueblo, and' that if they did so it was at the risk of being shot by the patrols stationed around the pueblo. Without commenting upon the inconclusive character of this evidence, it is sufficient to say that the petition does not state any facts from which the court can infer that it is not owing to a lack of diligence that the evidence did not come to the knowledge of the defendants before the trial in the court below. The petition must therefore be denied, and the judgment is affirmed with the costs of this instance. Arellano, C. J., Torres, Cooper, Mapa, and Willard, JJ., concur.

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G.R. No. 522, March 10, 1902

THE UNITED STATES, COMPLAINANT AND APPELLEE, VS. TEODORO DE LEON, DEFENDANT AND APPELLANT. D ECIS ION
WILLARD, J.: On the 28th of June, 1897, Don Julio Banson was in a small hut with his wife and child. Two men, called Fabian and Tolome, now deceased, presented themselves, apparently unarmed. After entering the hut they drew their bolos, bound the said Banson, and compelled him to go with them. Upon reaching a point near the fields of said Banson where five servants of his were working, the two kidnappers forced the said servants to proceed with them. At that point the defendant joined them, appearing from behind a knoll where he had concealed himself. Upon so appearing he exclaimed, according to one witness: "It was written that you were to fall in my power;" according to another witness: "Thanks be given that I have caught you, now you are in my hands;" according to another, "Thanks be given that you have fallen into my power." The defendant then beat him with the butt of a gun which he carried until they arrived at a place called Bulutong, where Tie made the five servants place themselves in single file and ordered Don Julio to kneel before them and maltreated the latter brutally, saying: "Give me the amount of the cedula which you collected; now you will pay me for the blows which I received in the tribunal." Not satisfied with torturing the deceased by himself he ordered Tolome to give him a blow upon the chest with a bolo. Don Julio begging for mercy, the defendant sent one of the servants to the wife of the deceased to ask for $1,000 for his ransom. After the servant had been sent all were led to a place called Cosme and upon arriving there the defendant ordered Fabian and Tolome to conduct Don Julio to a ditch. At the same time the witness and his three companions were given their liberty by the defendant, who remained with his two companions and with Don Julio. Don Julio was never afterwards seen alive and his headless body was found two or three days later in this same place. No eyewitness has testified to the killing of Banson by the defendant, but the violent death of the former is proved, and that the defendant is responsible for such death as principal admits of no reasonable doubt. In conformity with an apparently preconceived plan, Banson was violently taken from his house by two armed servants or dependents of the defendant; he was bound and cruelly wounded and beaten by the defendant and his henchmen at his order, and he was taken by the defendant to the place where a few days later his headless body was found. This evidence is sufficient to convict the defendant as principal. Prom the evidence there appears the qualifying circumstance of treachery. To show this it is only necessary to mention the fact that the deceased was bound. There is present also the generic circumstance No. 6 of article 10. The evidence shows that the defendant was beaten into a state of almost insensibility, not with the intention of then killing him but to cause him unnecessary suffering as a preliminary to the killing. There is present also the twelfth generic circumstance of article 10, proved by the fact that the deceased, a land owner, was forced to kneel in front of his four servants drawn up in line before him. The writer of this decision is also of the opinion that there is present the seventh generic circumstance, article 10, that of "acting with known premeditation." But it is not necessary to

so decide as the two other circumstances raise the penalty to the maximum grade. For the reasons above stated the judgment of the court below is reversed and we adjudge that the defendant is guilty of the crime of murder with the sixth and twelfth aggravating circumstances of article 10 of the Penal Code, and we condemn him to the penalty of death with indemnification of $1,000 to the widow and heirs of the deceased and with costs of both instances. In case of the non-execution of the penalty imposed through the pardon of the accused, it shall then be understood that he is condemned to perpetual absolute disqualification and subjected to the vigilance of the authorities during his life, unless these accessory penalties be specially remitted by executive clemency. The case is remanded to the court below with instructions to proceed therein in accordance with law. Arellano, C. J., Torres, Cooper, and Ladd, JJ., concur. Mapa, J., did not sit in this case.

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G.R. No. 524, April 29, 1902

RAMON MORTERA, PLAINTIFF AND APPELLEE, VS. LI CHINGTING ET AL., DEFENDANTS AND APPELLANTS. D ECIS ION
ARELLANO, C.J.: This action for unlawful detainer was instituted because of breach of the terms of the contract. One of those terms was contained in condition "A" of the contract entered into by the parties litigant, according to which the tenants under no circumstances or pretext whatever were to sublease the property or to assign or convey their rights to any other person. It appears that the two lessees did not take part in the suit and that the complaint was opposed by the Chinaman Tan Ching Kay, represented by his attorney, as partner of the defendant lessees. Upon examination at the trial he admitted that he was a partner of the defendants and manager of the firm, with an interest in the business. Being asked if it was true that the Chinaman Ching Sang paid him the sum of 120 pesos a month as rent for the upper story and part of the lower story of the house in question, he replied twice in the affirmative. The only legal argument made by the defense upon this point is that in the clause referred to the sublease of the whole house is prohibited, but not that of part of it. As the clause in the contract absolutely prohibits a sublease, a natural understanding of this is that any sublease is prohibited, and no statute or principle of law supports an interpretation of the contract in the sense of a partial sublease being allowable, although a total sublease is prohibited. Therefore the judgment directing an eviction of the defendants with the costs is hereby affirmed, with the costs of this instance to the appellants. Torres, Cooper, Willard, and Mapa, JJ., concur. Ladd, J., did not sit in this case.

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G.R. No. 528, October 15, 1902

THE UNITED STATES, COMPLAINANT AND APPELLEE, VS. SANTIAGO BOLAR ET AL., DEFENDANTS AND APPELLANTS. D ECIS ION
COOPER, J.: The defendants, Jose Cabbadol and Santiago Bolar, were accused of the murder of Claudio Magligsay, and each sentenced to the punishment of fourteen years and one day of reclusion temporal, under article 404 of the Penal Code. The defendants appeal from this judgment. It appears that the deceased, Claudio Magligsay, disappeared from the place of his residence about the 8th of July, and that his body was found floating in an estero called Allanigan. The conviction is sustained chiefly on the testimony of the defendants themselves. Santiago Bolar testifies that about 12 o'clock at night, in the month of July last, on returning toward his house after having made watch on his land, he accidentally met Claudio Magligsay, who was coming in an opposite direction; that the witness asked Claudio if he still had resentment and jealously against him for having formerly been the lover of Baldomera Cabalse, and as a reply the deceased gave the witness a blow with a stick on the left shoulder, which caused the witness to fall to the ground; that upon getting up the defendant answered, giving the deceased a blow which struck him on the head. Baldomera Cabalse states that some time ago Santiago Bolar asked for her hand; that there afterwards resulted intimate relations; that from these relations a child was born, and that afterwards Santiago withdrew from her his affections by reason of having fallen in love with another woman, and the witness entered into new relations with Claudio Magligsay, with whom she was to marry; that on the night of the killing Olaudio left her house at a late hour. Agapito Palos y Cortalos testified that the body of the deceased when found contained a wound in the breast and that the body was almost decapitated. Jose Cabbadol y Torres, one of the defendants, states that two weeks before the crime occurred the defendant Santiago Bolar said to witness that he had to kill Claudio Magligsay; the witness states that Baldomera Cabalse was the querida of Claudio and Santiago wished to renew his relations with the woman and that this was the cause of the enmity which Santiago bore against the deceased; that one night when the witness and Santiago Bolar were returning from watching their land, about 12 o'clock at night, the witness, being a little behind Santiago, saw that the latter met Claudio Magligsay, who was coming in the opposite direction, and that upon such meeting Claudio struck Santiago a blow with a stick, the latter falling to the ground; that Santiago immediately got up and in turn struck' a like blow on the head of the deceased, who then took to his heels, and meeting the witness a short way off Claudio also struck him with the stick, whereupon, in self-defense, the witness stabbed Claudio, killing him; that afterwards the witness and Santiago took the body and placed it in a large basket and threw it into the river. In weighing the testimony given by a defendant in a criminal case the same rules are observed as prevail in considering the testimony of other witnesses. That part which is consistent and generates belief will be accepted, and such parts as are inconsistent and produce an opposite

effect may be rejected. We discredit the statement made by the defendants that the deceased was the aggressor. There is an entire lack of probability that such should have been the case. This view is based upon a reasonable deduction from the evidence and by considering the previous statement made by Santiago Bolar to Jose Cabbadol that the deceased must be killed; the jealously and resentment of Santiago toward the deceased; the lack of any such feeling on the part of the deceased, so far as the record discloses; that the defendants were found at a late hour of the night without satisfactory explanation near the residence of Baldomera Cabalse, where the deceased was; that the body of the deceased was mutilated by the defendants, placed in a basket, and thrown into the river, showing strong feelings of hate and a purpose to conceal the crime not consistent with innocence; also the improbability that the deceased, who was unarmed and alone, should have provoked the difficulty and attacked the defendants. We think it more probable that the defendants, knowing that the deceased was in the house of Baldomera Cabalse, were lying in wait there, and that Santiago, with the aid of Jose Cabbadol, sought the occasion with a heart full of hatred to wreak bloody vengeance upon the deceased. Under the most favorable view that can be taken the defendants must be found guilty of homicide, punishable under article 404 of the Penal Code, with the aggravating circumstances existing of nocturnity as defined in paragraph 15 of article 10 of the Penal Code. The judgment of the Court of First Instance will be reversed and judgment rendered against the defendants, Santiago Bolar and Jose Cabbadol, sentencing each of them to the penalty of reclusion temporal, punishable by imprisonment fop the period of seventeen years four months and one day, with indemnification in the sum of 1,000 pesos, Mexican, with costs of suit adjudged against the defendants. Arellano, C. J., Torres, Willard, and Ladd, JJ., concur. Smith and Mapa, JJ., did not sit in this case.

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G.R. No. 530, April 16, 1902

THE UNITED STATES, COMPLAINANT AND APPELLEE, VS. BERNABE SANTOS, DEFENDANT AND APPELLANT. D ECIS ION
LADD, J.: The defendant was convicted of murder in the Court of First Instance of Manila and sentenced to death. The case is before this court on appeal and in consultation. On the night of the 15th of August, 1900T the defendant and three other men, all armed with revolvers and daggers, broke into the house of Lorenzo Laopoco, in Tondo, tied Laopoco and his son-in-law, Norberto Anacleto, and after committing various acts of violence upon Anacleto's wife and the other persons in the house, and taking some jewelry and money, left the house, carrying with them Laopoco. These facts were satisfactorily established by the evidence of Anacleto and his wife. There was no direct evidence as to what occurred after the robbers left the house, but immediately thereafter Anacleto and his wife heard Laopoco cry out for help, saying that the robbers were going to kill him, and upon opening the window and looking out they saw him lying on the ground and around him or in the act of leaving the spot the defendant and his companions, including several who had not entered the house. Laopoco was taken into the house, and was found to be covered with wounds inflicted with daggers, in consequence of which he died in about three weeks. Upon these facts the defendant is clearly guilty either of homicide or, if the constitutive circumstance of alevosia is present, of murder. The prosecuting attorney is of the opinion that this circumstance has not been shown, and that the crime is therefore to be regarded as simple homicide, and asks that the judgment of the court below be modified in accordance with that view. The ground upon which the prosecuting attorney bases this opinion is that "it has been impossible to show clearly the means, methods, and manner which the criminals availed themselves of for the purpose of perpetrating the crime. No one was present when the deceased was attacked by them, nor does it even appear from the record whether he was or was not bound when the wounds from which he died were inflicted upon him. These are data which must of necessity be proved in order to legally determine whether the circumstance of alevosia is present." The facts showing alevosia as a generic or qualificative circumstance may, under the Spanish system of evidence in criminal cases, be established by the same kind and degree of proof as the main facts upon which the guilt of the accused is predicated. (Judgment of the supreme court of Spain of January 22,1878, fifth conclusion of law; the provisional law for the application of the provisions of the Penal Code in the Philippine Islands, par. 52.) In neither case are "mere presumptions" or "arbitrary deductions from hypothetical or presumable facts" admissible. (Judgment of the supreme court of Spain of October 7, 1871.) In both cases, if the inference of guilt rests solely upon circumstantial evidence, such evidence must be "grave and conclusive," and "the conviction which the combination of such evidence produces must be such as to leave no room for reasonable doubt as to the criminality of the accused in the ordinary and natural order of things." (Provisional law above cited.) If there were anything in these rules

inconsistent with the new law of criminal procedure fixing the degree of certainty with which the guilt of the accusedthat is to say, every element constituting his guiltis to be proved, and prescribing the nature of the evidence which must be employed for this purpose, the principles of the latter law would prevail. It is clear that under that law no discrimination is made between direct and circumstantial evidence in any case, and that the only requirement is that the guilt of the accused be proved by relevant evidence, the best of which the case is susceptible, and beyond a reasonable doubt. (General Orders, No. 58, sees. 57 and 59.) It is true that in the present case there was no ocular evidence that the deceased was bound at the moment when the fatal wounds were inflicted. And it is also true that the two witnesses for the prosecution who saw him while he was lying on the ground after the stabbing have omitted to state whether he was at that time bound or not. But it has been proved that he was bound in the house, and while it is of course barely possible that his captors may have released him before putting him to death, the only reasonable conclusion, "according to the ordinary and natural order of things," is that he remained bound until their purpose was accomplished. It is not easyindeed, it is almost impossibleto conceive any reason why he should have been liberated in the short interval that elapsed between the time he was taken from the house and the time he was killed. We are of the opinion, therefore, that the evidence is entirely sufficient to show that the crime was committed with alevosia as defined in article 10, No. 2, of the Penal Code. The aggravating circumstance of article 10, No. 15, is clearly present, the crime having been committed in a band. We are of opinion that no generic extenuating circumstances are present, and that, in view of the nature of the crime and the circumstances of the accused, the circumstance of article 11 can not properly be considered in his favor. The result is that the judgment of the court below must be affirmed with costs. Arellano, C. J., Torres, Cooper, and Willard, JJ., concur. Mapa, J., dissents.

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G.R. No. 532, August 21, 1902

THE UNITED STATES, COMPLAINANT AND APPELLEE, VS. MAURICIO RUBETA, DEFENDANT AND APPELLANT. D ECIS ION
TORRES, J.: Between 1 and 2 o'clock in the afternoon on the 29th of April, 1900, Mauricio Rubeta went to the house of Jose Marcos, a resident of the colony of San Antonio of that district, and went up the stairs of the kitchen looking for the owner of the house. Salome Valderas, a little girl 10 years of age, who was in the kitchen, told him that Marcos was sleeping in his bedroom. The accused immediately went into the room and, approaching the sleeping man, inflicted upon him two wounds in the breast, from which he died in a few moments. The little girl, seeing that Rubeta was attacking her master, left the house and told Gervasio Fernandez what had occurred. Fernandez, with Justo Balais, went to the house of Marcos, where they found his dead body, showing two wounds inflicted by a sharp instrument, stretched on the ground near the stairway. The little girl Valderas stated that she believed the motive of the aggression was that Marcos had objected to one of his servants marrying a son of his slayer. The facts stated constitute the crime of murder, defined and punished by article 403 of the Penal Code, inasmuch as the violent death of Marcos was the consequence of the mortal wounds which were inflicted upon him while he was in bed and asleep and from which he died in a few moments. This circumstance constitutes alevosia, because the aggressor, availing himself of the condition in which he found his victim, evidently employed means for the commission of the crime which directly and specially tended to insure its consummation without any risk to himself resulting from an attempt on the part of the injured party to defend himself, for, as the latter was asleep, it is unquestionable that Rubeta acted with the assurance of success in the realization of his criminal purpose. The record demonstrates conclusively the guilt of the accused as author, by direct participation, of the crime prosecuted. The exculpative allegation of the defendant that he was attacked by the deceased is not admissible, because not supported by the evidence, and because the witness for the prosecution, whom he called to prove this allegation, denied it absolutely. Furthermore, the drops of blood which were found by the two witnesses who went to the house shortly after the commission of the crime, together with other signs observed on the bed on which Jose Marcos was attacked, confirm unquestionably the testimony of the girl Salome Valderas, the only eyewitness to the aggression. The fact that the body of the deceased was found in another part of the house does not show that the accused was struck before the attack, as it is quite natural and by no means extraordinary that Marcos, aroused by the wounds received, should have gotten out of bed and attempted to walk until he fell dead. In addition to the qualifying circumstance of alevosia, which carries with it an increase of punishment and makes the crime committed that of murder, we must also consider the concurrence of the twentieth aggravating circumstance of article 10 of the Code, because Marcos was attacked and mortally wounded in his own house, without provocation on his part. This circumstance, however, is compensated in its effects by article 11 of the Code as a mitigating circumstance to be applied, in view of the personal conditions of the defendant and

the nature of the crime. Therefore the accused will be punished by the medium grade of the penalty assigned in article 403 of the Penal Code, and by virtue of articles 13,17,27, 81, and 122 of the Penal Code, rule 51 of the provisional law, section 50 of General Orders, No. 58, and Act No. 194 of August 10, 1901, we are of opinion that the judgment appealed should be affirmed in so far as by it Mauricio Rubeta is condemned to life imprisonment ( cadena perpetua) and to the costs of the prosecution j the defendant to be also condemned to suffer the accessories designated in rules 2 and 3 of article 54 of the Penal Code, to indemnify the heirs of the deceased in the sum of 1,000 Mexican pesos, and to pay the costs of this instance. So ordered. Arellano, C. J., Cooper, Willard, and Ladd, JJ., concur. Mapa, J., did not sit in this case.

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G.R. No. 534, April 01, 1902

THE UNITED STATES, COMPLAINANT AND APPELLEE, VS. CUSTODIO PAYOG ET AL., DEFENDANTS AND APPELLANTS. D ECIS ION
MAPA, J.: The information filed in this case charges the crime of abandonment of children, defined and punished in article 488 of the Penal Code, which is literally as follows: "He who, being responsible for the rearing and education of a child, should deliver such child to a public establishment or to any other person without the consent of the person who has placed such child in his care, or the consent of the authorities in defect thereof, shall be punished by a fine of from 325 to 3,250 pesetas." The accused pleaded not guilty to the crime charged. The complainant introduced no evidence in the trial in support of the charge. The only testimony taken at the trial was that of the defendant Payog, which constitutes the only data upon which we must decide this case. From this testimony it appears that while Payog was in the forest one day he found a little girl who was all alone, and who told him that her people, the Negritos, had refused to care for her. He therefore took charge of her and brought her to Manila for the purpose of delivering her to some person who might care for and support her, he being very poor and without means to do so himself, and that he did deliver the little girl to Santiago Barcelona, who on this account gave him the sum of 55 pesos as a present. The participation of the other defendant, Domingo Garcia, in the matter was limited solely, according to Payog, to accompanying him, at his request, to Barcelona's house. The court below, considering that the facts shown fall within the sanction of article 488 of the Penal Code above cited, rendered judgment condemning Payog to pay a fine of 325 pesetas, and Garcia to pay a fine of 3,250 pesetas, with the costs to each one of them in equal parts. Against this judgment Garcia appealed. Payog consented to the judgment. Without determining the question as to whether the delivery of the girl by Payog to Santiago Barcelona, under the circumstances and for the reasons stated in his testimony, does or does not constitute the crime of abandonment of children, defined in the article above cited, as we do not consider it necessary in disposing of this case, we are of the opinion that the mere fact that Garcia accompanied Payog to Barcelona's house is not in itself sufficient to make him responsible for the crime with which he is charged, whether Payog was guilty or not. It does not appear that when Garcia did this he had any knowledge of how or why it was that the girl in question was in Payog's possession, nor consequently of any duty which Payog may have had with respect to the rearing and education of the girl. Among other cases which might be supposed it might very well be that the girl' had been confided by her parents to Payog for the purpose of delivering her to Barcelona, in which case Payog's action in so doing in accordance with this request would evidently not be punishable before the law. It is true that these were not the facts, but the accused, Garcia, was not obliged to know them, nor to investigate them for the purpose of doing what he did, which was simply to point out to Payog the house of Barcelona and accompany him thereto. In order to render him this service, which certainly was not in itself unlawful, he was under no obligation of knowing or finding out whether Payog was

responsible in the technical sense of the Penal Code for the rearing and education of the girl in question, or whether he was under any other obligation to keep her in his custody; still less in view of the fact that it does not appear that Payog communicated to him the purpose for which he desired to see Barcelona when asking Garcia to accompany him to Barcelona's house. We therefore decide that the judgment appealed must be reversed, and the accused, Domingo Garcia, acquitted, w,ith the costs of this instance and one-half of the costs of the court below de oficio. Arellano, C. J., Torres, Cooper, Willard, and Ladd, JJ., concur.

OSJurist.org

G.R. No. 536, January 23, 1902

IN THE MATTER OF THE APPLICATION OF THOMAS TOYE PATTERSON FOR A WRIT OF HABEAS CORPUS. D ECIS ION
ARELLANO, C.J.: The 15th day of October, 1901, Act 265 of the Legislative Commission of the Philippines was promulgated; about the 23d of November following a British subject, Thomas Toye Patterson, arrived at the port of Manila from abroad on board the steamer Yuensang. It appeared in the course of these proceedings that Patterson was a justice of the peace under the Australian Government, and had not lost his official character notwithstanding his residence of ten months in the United States, from whence he had gone to the British colony of Hongkong, and from the latter point proceeded to the port of Manila. Upon being arrested by the Collector of Customs of the Philippine Archipelago twenty-four hours after landing he sued out a writ of habeas corpus, the object of the present decision, to which Mr. W. Morgan Shuster, as such Collector of Customs of the Philippine Archipelago, made return that he had arrested said Patterson because he had reasonable grounds to believe him guilty of some or all of the offenses specified in said law. Without any intention to prejudge the question, and acting solely upon its desire to permit the most ample discussion after its resolution of the 7th of December the court resolved to allow evidence to be taken in this case, and with this same object in view did not limit any proof whatever which the parties might desire to offer nor bar any allegation upon the question which it pleased them to raise concerning the exclusive competency of that administrative officer in the application of Act 265, the jurisdiction of this court to review a decision of such officer, the nature of the law, its true object and scope, and the authority of the Legislative Commission to pass such a law. After this exhaustive discussion of the case it is now for the court to render its decision. Unquestionably every State has a fundamental right to its existence and development, as also to the integrity of its territory and the exclusive and peaceable possession of its dominions which it may guard and defend by all possible means against any attack. Upon this fundamental right Act 265 of the Legislative Commission of the Philippines is based. Upon this fundamental principle are based many other laws, among them those concerning immigration, emigration, commerce, and international inter-course. But contrary to the various allegations of the parties, Act 265 is not an emigration law, because it does not purport to regulate the conditions upon which the inhabitants of the territory may leave it; nor is it an immigration law, because it is not limited to the entrance into the territory of those who are foreigners, but refers "to persons coming from abroad, or those who are guilty of coming to the Philippines with a certain purpose," without distinction of nationality; neither is it a law of commerce or international communication, because of the precise and positive character of its object, which is no other than to prevent the entrance of those persons who "have aided, abetted, or instigated an insurrection in these Islands against the sovereignty of the United States therein, or against the Government herein established, or such persons as come here with any of these objects." Consequently the arguments adduced by the parties, with citations of authorities pro or con based upon the supposition that Act 265 is an immigration law, or part of the laws of the

United States upon this subject, need not occupy the attention of the court. Nor is there merit in the question raised by the petitioner when he invokes the international treaty between England and the United Statesthat is to say, the law governing commerce and intercourse between the subjects of both nationsbecause, as we believe, it is a doctrine generally professed by virtue of that fundamental right to which we have referred that under no aspect of the case does this right of intercourse give rise to any obligation on the part of the State to admit foreigners under all circumstances into its territory. The international community, as Martens says, leaves States at liberty to fix the conditions under which foreigners should be allowed to enter their territory. These conditions may be more or less convenient to foreigners, but they are a legitimate manifestation of territorial power nnd not contrary to law. In the same way a State possesses the riarht to expel from its territory any foreigner who does not conform to the provisions of the local law. (Martens's Treatise on International Law, vol. 1, p. 381.) Superior to the law which protects personal liberty, and the agreements which exist between nations for their own interest and for the benefit of their respective subjects is the supreme and fundamental right of each State to self-preservation and the integrity of its dominion and its sovereignty. Therefore it is not strange that this right should be exercised in a sovereign manner by the executive power, to which is especially entrusted in the very nature of things the preservation of so essential a right without interference on the part of the judicial power. If it can not be denied that under normal circumstances when foreigners are present in the country the sovereign power has the right to take all necessary precautions to prevent such foreigners from imperiling the public safety, and to apply repressive measures in case they should abuse the hospitality extended them, neither can we shut our eyes to the fact that there may be danger to personal liberty and international liberty if to the executive branch of the Government there should be conceded absolutely the power to order the expulsion of foreigners by means of summary and discretional proceedings; nevertheless, the greater part of modern laws, notwithstanding these objections, have sanctioned the maxim that the expulsion of foreigners is a political measure and that the executive power may expel without appeal any person whose presence tends to disturb the public peace. The privilege of foreigners to enter the territory of a State for the purpose of traveling through or remaining therein being recognized on principle, we must also recognize the right of the State under exceptional circumstances to limit this privilege upon the ground of public policy, and in all cases preserve the obligation of the foreigner to subject himself to the provisions of the local law concerning his entry into and his presence in the territory of each State. The abnormal conditions prevailing in some provinces of this new territory of the United States,are known as a fact to the whole world. Act 265, as a political measure, seeks to prevent all classes of agitators, even citizens, from aggravating or extending the disturbance which still exists, much reduced, in certain parts of the Archipelago. Under these circumstances the Government exercising in a sovereign and efficacious manner this attribute of executive power has authorized an administrative officer to prevent the entrance into the country of persons from abroad whom he has reasonable grounds to believe guilty of having aided, abetted, or instigated insurrection, or whom he suspects of coming to the Philippines with that purpose. The power conferred in those terms upon this executive officer is discretional. Hence, his act is presumed to be based upon reasonable grounds for believing certain persons guilty of the acts or of an intention to commit the acts defined by the law. So the law must be understood in accordance with the principles established by the highest court of the nation in a decision rendered in the case of Nishimura Ekiu vs. United States (142 U.S.), in which Mr. Justice Gray uses the fallowing language: "But, on the other hand, the final determination of those facts may be entrusted by Congress to executive officers; and in such a case, as in all others , in which a

statute gives a discretionary power to an officer, to be exercised by him upon his oum opinion of certain facts, he is made the sole and exclusive judge of the existence of those facts, and no other tribunal, unless expressly authorized by law to do so, is at liberty to examine or controvert the sufficiency of the evidence on which he acted." Because the law has used the term "reasonable grounds" it is not to be inferred that this executive officer is required to show the reason for his grounds of belief to a court of justice; what the law desires to impress upon him is the idea that he is not to proceed arbitrarily but with discretionthat is, honestly, tactfully, and prudently. The exhaustive argument which the court has heard is due to its urgent desire not to consider as a proper application of the law that which is not such in reality, and that there should not result a breach of constitutional or international law; but nothing of this kind has been demonstrated in this ample and wide discussion aiid argument. To hold that because Thomas Toye Patterson succeeded in landing when the law forbids his landing the State thereby lost its right to reembark him and deport him from the territory would be similar to saying that in case a quarantine law has prohibited the landing of a person suffering from a contagious disease should such person succeed in landing the State has lost all right of deporting him and freeing itself from the danger of contagion. It has been alleged that the Legislative Commission has no power to pass such a law; but the law has been passed, and against its operation there is nothing to oppose. We know of no law violated or right infringed by the existence of a law which advances the welfare of the people, the supreme law of all affairs of life. We therefore deny the application of Thomas Toye Patterson for discharge, and he will be remanded to the custody of Mr. W. Morgan Shuster, Collector of Customs of the Philippine Archipelago, with the costs to Patterson, and it is so ordered. Torres and Mapa, JJ., concur. Ladd, J., did not sit in this case.

CONCURRING WILLARD, J.: Upon the return to the writ in this case the petitioner offered to prove that the Collector did not have reasonable grounds for believing that the former came within the terms of the law in question. The court held that the decision of the Collector on this point was final and could not be reviewed by any judicial tribunal. The evidence was accordingly rejected. In this ruling I did not concur. I concede, so far as this petitioner is concerned, that the Commisison had the power to pass a law making the decision of the Collector final. The only question is, Has it done so? The law does not say "if the Collector believes," "if he is of the opinion," "if he has evidence satisfactory to himself," nor does it use any similar phrase. Neither does it say in so many words that his

decision shall be final as does the act of Congress of 1894 relied upon by the Attorney-General. To hold that his decision is final is to strike from the law the words "reasonable grounds" This is contrary to the rule of construction, which has been carried into the Code of Civil Procedure (art. 287), that effect must be given, if possible, to all the particulars of a statute. When the Commission said that the Collector must have reasonable grounds on which to act they meant that he must have grounds Avhich were reasonable in fact. Whether they were in fact reasonable or not was not to be determined by himself. If the Commission had so intended it would have been very easy to have used language which clearly expressed that intention. To hold that the Commission by the use of these words intended simply to advise the collectors throughout the Islands to act reasonably in the exercise of their powers under the act is to impute to it the doing of a vain and useless thing. Every official is presumed to act reasonably and it is not necessary in every law to advise him to do so. Moreover, under this construction the Commission virtually says to the collectors, "You must act on reasonable grounds, but if you do not no one can interfere with you." Bankrupt and insolvent laws in the United States generally provide that a preference shall be void if the creditor has reasonable grounds to believe that his debtor is insolvent. It has of course always been held that the courts must decide whether or not the grounds were reasonable. So, in actions for malicious prosecution, the defendant prevails if he had probable cause to believe that the plaintiff had committed the offense on account of which he procured the arrest. The courts in this class of cases always pass upon this question of probable cause. The construction which I think should be given to the law would not interfere with its operation. It provides that until there is an opportunity to deport the person detained he may be confined. The persons charged with his confinement can, while a petition for a writ of habeas corpus is being heard, easily prevent the accomplishment of any wrongful purpose which he may have had in coming to the Islands. Neither does this construction interfere with the rule that the courts can not control the discretionary acts of an administrative officer. The whole question here is whether the act is or is not discretionary. The majority of the court having taken the contrary view, however, that became the law of the case. Upon the evidence which was received and upon which the case was submitted I think that the prisoner was properly remanded. To the opinion of the Chief Justice I desire to add nothing except on the subject of the landing. The evidence showed that passengers were not allowed to leave the ship at their will after receiving a pass, but were required to go from the ship to the shore, with their baggage, in a certain launch. The baggage was not examined by the customs official until it reached the shore. It seems very clear to me that while the passengers were in this launch they and their baggage were still under the jurisdiction of the Collector, and that on the arrival of the launch at the shore he could have detained any passenger coming within the provision of the law in question. In this particular case the petitioner departed from the ship in this launch, but before it reached the landing he transferred himself from it into another craft which was brought alongside by one of his friends, and thus reached the shore. He left the launch in this way without the knowledge or consent of the Collector or any of his deputies, and having done so the mere fact that he succeeded in getting his foot on shore did not deprive the Collector of the right to detain him when on the next day he presented himself for his baggage, which all the time remained in the custody of the Collector. Where a person not entitled to land gets on shore stealthily or without the knowledge of the Collector, from the very nature of the case the right of the latter to detain him must continue for at least a reasonable time thereafter. To hold otherwise would give to

the law what seems to be an absurd construction. The Commission would in effect say to the petitioner and everyone else: The Collector has the right to prevent your landing, but if you can in any way get to the shore without his knowledge you can stay there.

DISSENTING COOPER, J.: The application for a writ of habeas corpus in this case is based upon the acts of the Collector of the Customs of the Philippine Islands in the detention of the prisoner for the purpose of deporting him to Hongkong, Under the provisions of Act 265 of the United States Philippine Commission, entitled "An act .requiring persons whom the Collector of Customs has reasonable grounds for believing guilty of aiding insurrection seeking to land in the Philippines to take an oath of allegiance and prescribing punishment for the violation thereof," any person whom the Collector of Customs has reasonable grounds to believe guilty of having aided and abetted or incited an insurrection in these Islands against the authority and sovereignty of the United States or against the government constituted by the United States herein, or of coming to these Islands for that purpose, and who, coming from a foreign country, seeks to land at any port, shall not be permitted to land until after he shall take before the Collector of Customs or his authorized deputy the oath prescribed by the act. On the 24th day of November the petitioner, Thomas Toye Patterson, a British subject, arrived at the port of Manila, from Hongkong, by the steamer Yuensang. Twenty-four hours after landing he, having been required by the Collector of Customs to take the prescribed oath and having refused to comply on account of his objections to certain parts of the oath, was arrested by the Collector of Customs and is now held by him for deportation. It may be admitted that it is not within the province of the judiciary by a judgment to order that foreigners who have never been naturalized or acquired any residence in the country shall be permitted to enter in opposition to the lawful measures of the legislative and executive branches of the Government; that the question in such cases is political in its nature and belongs exclusively to the legislative or executive branches of the Government; that as to such persons the decision of an executive or administrative officer, acting within powers expressly conferred, is due process of law, and that in the absence of express authority such decision can not be reSxamined by any tribunal. Still, such officer must act within the scope of his authority, otherwise he is without jurisdiction, his decision is a nullity, and the courts will relieve a person by habeas corpus from the unlawful imprisonment under such void proceedings. The testimony of Ralph C. Dickey, Inspector of Immigration, is that he is the Inspector of Immigration for the port of Manila, that his duty as such officer is to conduct the examination of passengers on incoming steamers as to their qualifications to land under the act in question and to reject or pass all passengers on board of such vessels; that on the 24th day of November, 1901, in the discharge of his duty and for the purpose of making such examination he went aboard the steamer Yuensang when that vessel came to the harbor and conducted the

examination in person; that among those examined by him was the petitioner, and as a result of such examination he decided to pass him and gave him a permit which is in form as follows: "UNITED STATES CUSTOM-HOUSE, MANILA, P. I., "IMMIGRATION OFFICE.

"Guards will permit bearer to leave this ship. "(Dated) ........................ (Signed) "RALPH C. DICKEY, "Inspector of Immigration.
"Guards will take up this card when bearer leaves ship and return same into Immigration Office." This witness states that under the regulations for such examination the passenger before leaving the ship gives this pass to the inspector or to the inspector's assistant at the gangway; that such examinations are made and concluded on board the ship, and that it is not the duty of the inspector to stay there and see passengers leave the ship; that passengers leave shipboard on the Travelers' Transport launch, a company bonded to transport passengers arriving at this harbor from incoming ships to the land. By reference to Act 219 of the Philippine Commission it will be seen that the Travelers' Transport Company was not in the service of the Collector of Customs nor in any way in the service of the Government. It was a company selected by the Collector of Customs, after bids were received, to land passengers and their baggage from incoming ships. By the provisions of section 3 it is expressly stated that nothing therein contained shall prevent the landing of passengers and baggage gratuitously, the intent of this act being to limit "the business of landing passengers and baggage to the persons selected in accordance with this act." The testimony of the petitioner shows that after the ship Yuensang arrived, an examination of those aboard was made by the Inspector of Immigration; that petitioner answered the required questions and took the oath as to his baggage; that he was passed by the Inspector and a permit was issued to him, and that this permit was taken up at the gangway of the ship by the assistant inspector; that with the other passengers of the ship he left for land on board the Travelers' Transport launch, taking with him a part of his baggage; that before this launch reached the shore a friend came alongside and took him aboard his boat, from which boat he landed in Manila. He testifies that he had no intention whatever of defeating any law by going in the boat with his friend; that he knew no order nor regulation to the contrary; that he simply went in the boat with his friend as a matter of courtesy and friendship. There is no evidence whatever in the case tending in any degree to show that the petitioner left the launch stealthily; on the contrary, the testimony is that he was subjected to and passed the only examination required by the rules and regulations of the Inspector of Customs as to his qualifications to land. The petitioner was arrested twenty-four hours after landing, and the question arises whether the Collector of Customs is acting within his jurisdiction in detaining and deporting him to Hongkong.

Whether the case, in view of the examination made by the inspector on board the Yuemang, may be considered as one in which a decision by a competent authority has been duly made upon inquiry and investigation, and a decision reached possessing qualities of finality in the absence of provisions for opening up and reviewing the proceedings, and by which decision the jurisdiction of the officer was exhausted in the particular case, or whether it may be regarded as an attempt made by the Collector of Customs to exercise jurisdiction in a case not provided for by the act in question, which is for preventing the landing and clearly does not extend to and embrace a case in which the landing has been fully and effectually made, in either case the Collector of Customs is, in my opinion, acting without jurisdiction, and the wrongful detention under such void proceedings should be relieved against by this court. It is not contended by the Attorney-General that the immigration regulations for the Philippine Islands, made by the Secretary of War on June 6, 1899, in any way affects this case. Article 4 of these regulations is cited to show that a temporary removal from the vessel should not be regarded as a landing. It is expressly provided in this article "that whenever it shall be necessary in making the examination of immigrants to temporarily remove them from the vessel upon which they arrive to a desirable place provided for the examination, such immigrants shall not be regarded as having landed so long as they are undergoing the examination and in charge of the officer whose duty it is to make such examination, and such a removal shall not be considered a landing during the pendency of any question relating to such examination or while awaiting their return as provided by law." It is contended that in analogy to this regulation the petitioner's coming ashore should not be regarded as a landing. It seems more plausible that a contrary conclusion should be drawn from this provision, as clearly showing the construction of what is regarded as a landing, and that the War Department in considering the effects of a landing has deemed it proper to define what facts shall constitute a landing. The inference is that in the absence of such regulation the landing of an immigrant orr passenger not in charge of an officer whose duty it is to make such examination would be considered as a landing and deprive the officer of his power to make the examination. As shown by the testimony above referred to it is clear that the examination by the inspector on board the ship was complete and no further examination was contemplated, and that the petitioner was in no way in charge of the inspector after the issuance of the permit to him. The power confided by the Commission to the Collector of Customs is a limited one and of a very high and delicate nature. It is to be exercised upon sudden emergency. The Collector has no time for scrupulously weighing the evidence upon which he is to exercise the power. It is of a nature which does not require strict technical proof. An investigation according to the course of judicial proceedings is wholly impracticable. Further, the disclosure of the evidence might reveal important secrets of state which for public interest should be kept in secrecy. According to the view of the majority of the court, in which, regarding the act as in the nature of an immigration law, I concur, the act gives a discretionary power to be exercised by the Collector upon his own opinion of certain facts, and constitutes him the sole and exclusive judge of the existence of those facts. The exigency necessarily results in the nature of the power itself. This view furnishes a strong reason why courts should scrutinize closely the exercise of this extraordinary power, and confine the officer to the exact limits set by statute upon his

action. The4 act is for the purpose of preventing a landing of objectionable persons and not for the purpose of bringing to trial suspicious persons who have already landed. If those who have fairly landed or who have passed examination as to their qualifications to land, and have been adjudged by proper authority as possessing the qualifications, are twenty-four hours after such examination and landing subject to arrest and deportation, at what period of time are they to be secure from the exercise over them of this extraordinary power? The limit in my opinion is the time when they have passed the examination and have been discharged or have been permitted to leave the ship and are on land not in charge of the officer whose duty it is to make such examination. This rule is easy of application. The rule adopted by the majority of the court is uncertain and dangerous in its application. I do not concur in the opinion of the court.

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G.R. No. 537, April 09, 1902

THE UNITED STATES, COMPLAINANT AND APPELLEE, VS. HIPOLITO HILARIO ET AL., DEFENDANTS AND APPELLANTS. D ECIS ION
LADD, J.: Alejandro Bello, Bernabe Santos, Hipolito Hilario, Andres Estrella, and Anacleto Abena were tried upon a complaint for robbery in the Court of First Instance of Manila. Estrella and Abena were acquitted. The other three were convicted and appealed. Pending the appeal, this court was officially informed that Bello and Santos had escaped from prison, and the cause was in consequence suspended as to them, but was heard and submitted as to the remaining defendant Hilario. In the court below Bello was tried separately, and Hilario, Santos, Estrella, and Abena were tried together. The evidence upon the trial of the four latter defendants shows conclusively that Hilario was one of a band of robbers, six in number, who early in the morning of the 11th of July, 1901, succeeded in effecting an entrance into the house of one Telesforo Obispo, in Tondo, under the pretext that they were policemen, where, after having beaten Obispo and thrown him on the floor and tied his wife and some of the other inmates of the house, they took possession of a sewing machine, some clothing, and various other articles which they found in the house, and a small sum of money, all of which they carried away. It appears from the evidence that Hilario carried a light and that two of the other robbers were armed, one with a gun and the other with a revolver and a bolo. Hilario and Santos were convicted under the last clause of article 508 of the Penal Code. We think, confining ourselves, of course, at this time to the case of Hilario, that the conviction should have been under article 503, No. 5, there having been a certain amount of personal violence employed in effecting the robbery. We think, also, that the two aggravating circumstances of article 10, Nos. 8 and 15, are present. The defendant Hilario is therefore sentenced to ten years of presidio mayor, restitution of the property stolen, and costs. The cause will be remanded for the execution of this judgment. Arellano, C. J., Torres, Cooper, and Willard, JJ., concur. Mapa, J., did not sit in this case.

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G.R. No. 539, April 01, 1902

THE UNITED STATES, COMPLAINANT AND APPELLEE, VS. JUAN RAMOS ET AL., DEFENDANTS AND APPELLANTS. D ECIS ION
MAPA, J.: The evidence introduced in this case fully convinces the mind that the accused inflicted several wounds upon Ambrosio Macaraeg, who died shortly after in consequence thereof, and that the accused perpetrated the crime treacherously ( alevosamente). The court below classified the facts as constituting the crime of murder, and stated that the guilt of the accused as principals was proven, and that in the commission of the crime aggravating circumstance No. 20 of article 10 was presentthat is, the commission of the crime in the dwelling house of the injured person. In consequence he condemned Fermin de la Cruz to life imprisonment ( cadena perpetua) and Juan Kamos and Bartolome Ramos to death by the garrote, taking into consideration the bad antecedents of the latter two. Fermin de la Cruz not having appealed, the case was sent to this court in consultation of the judgment with respect to Juan Ramos and Bartolome Ramos only, in accordance with the provisions of the law applicable to the subject. We consider that the classification of the crime as murder by the judge below is in accordance with "law, as is also his conclusion as to the guilt of Juan and Bartolome Ramos. We do not, however, agree with the judge with respect to the penalty imposed upon them. In our opinion the circumstances which the judge considered for the purpose of imposing the death penalty should not be applied. From the testimony of Luisa Macaraeg, the daughter of the deceased, the most important witness for the prosecution, it may be deduced that Macaxaeg was attacked and wounded outside his house. She says that the accused called him out upon the deceitful pretext that they wanted to speak to him, and that, he having come down, they attacked him with the bolos they were carrying, inflicting upon him five wounds and leaving him stretched on the ground. This being so, and it not having been demonstrated that the place where the attack was madeit certainly was not in the house, which the accused did not enterwas connected with the house as an integral part thereof, it follows that the aggravating circumstance of the commission of the crime in the dwelling of the offended party can not properly be considered. The bad antecedents of the accused do not constitute in themselves an aggravating circumstance, it not having been made to appear that they have been formerly punished for some crime or crimes, or could be regarded as recidivists under paragraphs 17 and 18 of article 10 of the Penal Code. Furthermore, the report of the municipality in which the Ramos brothers lived as to their manner of life and conduct solely states that it was middling a vague expression which conveys no concrete idea and can nojt, therefore, be considered for the purpose of aggravating the penalty which the law requires should be inflicted upon these defendants. As there is no circumstance connected with this case which modifies the penalty, the accused

must be condemned to suffer the penalty prescribed by article 403 of the Penal Code in its medium grade, to wit, life imprisonment ( cadena perpetua), in accordance with rule 1, article 81 of the Code. We therefore decide that the accused, Juan Ramos and Bartolome Ramos, must be condemned to life imprisonment ( cadena perpetua), with its corresponding accessories, this punishment to be inflicted in the penal establishment provided by law to that end, and not in the provincial jail of Pangasinan. The judgment below is therefore reversed, in so far as it condemns the accused to death, but it is otherwise affirmed, with the costs of this instance to both the accused in equal parts Arellano, C, J., Torres, Cooper, Willard, and Ladd, JJ., concur.

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G.R. No. 542, April 01, 1902

JOSE GONZAGA, PLAINTIFF AND APPELLANT, VS. CARMEN CANETE, DEFENDANT AND APPELLEE. D ECIS ION
WILLARD, J.: We have been very much embarrassed in the decision of this cause on account of the condition of the record. It is evident that, although the suit was commenced in accordance with the Law of Civil Procedure, it was carried on, after the 1st day of October, 1901, in accordance with the procedural law now in force. The court below, however, in its last order, directed the making of a bill of exceptions, and ordered that the original record should be sent to this court. An examination of the record shows that it does not contain the proceedings at the trial. Nor does it appear what the evidence received and considered by the court below was, nor whether or not the plaintiff offered proofs in evidence which the judge refused to admit. Notwithstanding the defective condition of the record, the parties at the last term in Iloilo argued the case, limiting themselves by agreement to a discussion of the questions of law, excluding from the discussion all questions of fact. There was not, however, any agreement in respect to the facts upon which the questions of law were to be based. Certain facts have, however, been admitted by the pleadings which appear in the record. It is admitted that the estate in question was rented under the contract which it attached to the complaint; that there existed on said estate a hydraulic mill for the grinding of sugar; that upon the 1st day of August, 1900, the municipality of Granada decided to close the canal which furnished water to the mill, on the alleged ground that said canal was dangerous to the public health. There is nothing to show whether or not the new canal which was opened by the defendant was a sufficient substitute for the old canal. In this condition of the record we can not decide whether the said act of the municipality of Granada is or is not sufficient ground for the rescission of the contract. The proof is not sufficient to enable us to determine whether or not the defendant had acquired by prescription the right to the enjoyment of the waters of the canal. In accordance with the provisions of article 1554 of the Civil Code the landlord is bound to maintain the estate in proper condition for the use for which it has been rented. This provision requires the defendant to maintain the estate substantially, with reference to this mill, in the same condition as it was when the contract of lease was made. If the canal was closed by the municipality of Granada, acting in the exercise of its rights, the defendant, after having been so required, would be bound to furnish another canal as good as the old one, and if she failed to do so after such demand and the expiration of a reasonable time, the tenant would have a right to rescind the contract. From what appears in the record the decision of the municipality of Granada can not be considered as a mere casual interference, and therefore within the terms of article 1560, since it does not appear in the record whether the council acted in the exercise of its rights or not. In the last case its action does not fall within the provisions of article 1560 by the express terms of the last clause. The parties have the right to present evidence upon the following points: (1) Did the council have, or not, the right to close the canal; and (2) Has the plaintiff furnished, or

not, another canal as good as the old one? The judge below made no decision concerning the right of the plaintiff to rescind the contract, and, as we understand, the judgment did not decide this question. It is inferred from the statement made by the lawyer for the defendant in his argument in this court that the evidence offered upon this point was excluded. If this is true, the court committed error. The fact that the defendant has failed to furnish the thirty carts mentioned in the contract, if it is true, would not be ground for the rescission of the contract of lease, inasmuch as such omission only could affect the plaintiff with respect to the fulfilment of that part of the contract which was connected with the crop of 1899-1900, which crop was the property of the defendant. The case having been carried on in the court below in accordance with the present Code, we think we are justified in applying to it the provisions of that Code so far as the judgment to be entered by this court is concerned. In accordance with that Code we have power to vacate a judgment and grant a new trial. (Art. 496.) In view of the fact that th,e judge ordered that the original record should be sent to this court without requiring the filing of a bill of exceptions, it would be a manifest injustice to hear the case upon this defective record and to enter a final judgment against the defendant rescinding the contract, when, if we had before us the evidence, it might turn out that no such judgment should be entered. The plaintiff ought not to get this advantage from his own failure to bring the record here in the proper condition. Moreover, the agreement of the parties to submit to the decision of the court questions of law raised in a suit carried on in accordance with the present Code ought to give us the right to enter a proper judgment for the determination of such questions in conformity with the provisions of said Code. For these reasons it is ordered that the judgment of the court below be vacated and that the record be returned to the said court for a new trial, in which the parties will be able to present such evidence as they think proper. No order is made with regard to costs. Arellano, C. J., Torres, Cooper, and Mapa, JJ., concur. Ladd, J., did not sit in this case.

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G.R. No. 543, October 23, 1902

THE UNITED STATES, COMPLAINANT AND APPELLEE, VS. JOSE MABANAG, DEFENDANT AND APPELLANT. D ECIS ION
WILLARD, J.: The evidence produced by the defendant to prove an alibi is not sufficient to overcome the positive testimony of two persons who identified him as the author of the assault in question. The judgment can not, therefore, be reversed on that ground. Gregorio de Leon, the person attacked, was so seriously injured that he was taken to a hospital. While there, on the 24th day of August, eight days after the injury was inflicted, he signed, in the presence of the defendant, apparently, a written statement as to the occurrence. He recovered from his injuries, and at the time of the trial was in the provinces. This statement was formally offered in evidence at the trial below. No objection was made thereto by the defendant or his counsel, and it was admitted. In this court the lawyer for the appellant claims that this statement should not have been received. This presents the only serious question in the case. The written declaration was doubtless inadmissible, but the defendant did not object to its reception. Why he did not the record does not show. In certain respects the statement contradicted the testimony of the other eyewitness who had already given his evidence at the time this declaration was offered. If Gregorio had been called to testify in court he might have explained these contradictions and in other respects made the Government's case stronger than the statement made it. The lawyer who represents the defendant here did so below. Considerations such as these may have induced him to refrain from objecting. But whatever his reasons were, we can not hold that he had a right to remain silentsubmit the case on this short statement of the injured person; have the chance of an acquittal by reason of its defects, and when the judgment went against him say in this court, for the first time, that the statement should not have been received. When it was offered he should hav.e objected to it. From his failure to do so may be presumed his consent that it might be received. It is now too late to withdraw that consent. The judgment is confirmed with costs of this instance against the appellant. Arellano, C. J., Torres, Cooper, and Ladd, JJ., concur. Smith and Mapa, JJ., did not sit in this case.

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G.R. No. 544, April 19, 1902

EDWIN H. WARNER, PLAINTIFF AND APPELLANT, VS. THE MUNICIPALITY OF PASAY, DEFENDANT AND APPELLEE. D ECIS ION
WILLARD, J.: In this case an attempt has been made to apply the procedure of title 14, book 3 of the Law of Civil Procedure to the survey and fixing of boundaries of some 480 hectares of land constituting a single property known as the Pasay estate. It appears that the town of Pasay, with its streets, public squares, and buildings, is situated within this estate. The requirements of article 2020 of the Law of Civil Procedure were not strictly complied with in the original complaint, as no person interested was cited therein. The amended complaint only mentions the names of the adjacent property owners outside the perimeter of the estate. Although the municipality of Pasay was not cited, it entered an appearance in the action as the owner of streets, squares, and other lands. This opposition having been made, the judge dismissed the proceedings and the petitioner appealed. Article 384 of the Civil Code grants to all property owners the right to survey their property. This right is also granted to those in whose favor real rights exist. Article 2020 of the Law of Civil Procedure grants the right to the owner as well as to "him who has a real right in the land for his use and benefit." For the purposes of this action the Codes are consistent with each other, and each one of them grants the owner this right. If the person who solicits the remedy is not the actual owner he is not entitled to it. Passing for the present the question of real rights, it is evident that he who is not the owner of property is not entitled under either Code to survey and make a designation of the boundaries thereof. No one is entitled to the survey and designation of boundaries of an estate which is in the possession and is the property of another. Such a survey and designation of boundaries would imply an unlawful interference with the said possession and ownership. It could not be done without a material trespass upon the land, an act which no stranger has a right to perform. If a stranger should attempt to do so there is no doubt that the real owner would have an interest in the matter, under the provisions of article 1800 of the Law of Civil Procedure cited. Being a party in interest, he has a right to make opposition and to deny that the petitioner is the owner. Such opposition having been made, the judge can follow only one course. He sees that he is without authority in an action of voluntary jurisdiction to take cognizance of a contentious suit. He has no authority to decide that the petitioner is the owner and that the opposing party is not He can not decide that the opposing party is the owner. He can only remit the parties to a contentious suit in which alone such questions can be decided. To direct a continuation of this act of voluntary jurisdiction, in view of the denial of ownership, would be practically equivalent to deciding the question in issue. This proceeding is available to the owner only. To allow the petitioner to utilize it is to decide that he is the owner, a fact which the opposing party denies. But it is alleged that no one can make opposition, with the exception of the adjacent owners, and article 1807 is cited in connection with articles 1800 and 2029 of the Law of Civil Procedure. It has been repeatedly held by the supreme court of Spain and by the commentators that the proceeding under title 14 depends upon the consent of the parties and

upon nothing else. "Upon the ground that there can be no suit if there is no contest or question between the parties, the law has placed the survey of property among the acts of voluntary jurisdiction, provided that it is effected with the consent or acquiescence, at least, of all the parties in interest. But from the moment in which one of them makes opposition, whether before the operation or at the time of its performance, it is carried into the domain of contentious jurisdiction. Until such opposition is made the act is inter volentes. Its validity depends upon the consent of the parties in interest, and if the judicial authorities are permitted to intervene it is not as an essential requisite, as there is no issue to be decided, but simply for the purpose of giving greater solemnity to the act, or for the purpose of avoiding obstacles which might arise either owing to the difficulty of getting together all the adjacent owners at the simple request of the one most interested, or by reason of the passive resistance of some of them. Thus it is that if they meet together voluntarily and by common agreement make the survey and record it in a notarial act or some other authentic document, it would have the same force and effect as if done with the intervention of the judicial authority." (6 Manresa's Commentaries on Law of Civil Procedure, 486.) If the parties in interest do not consent to this proceeding, it must necessarily fail. This consent may be withheld by the owner, in which case the proceeding is entirely suspended. The consent may be refused by one of the adjacent owners, in which case the proceeding can not continue with respect to that part of the estate adjacent to Ms. An examination of titles 1 and 14 of book 3 of the Law of Civil Procedure demonstrates that these principles are therein recognized. Article 2020 says that the complaint shall state the names and residences of the persons who shall be cited to appear. Article 2021 says that the designation of the day and hour shall fbe made in such a manner that "all the parties in interest may be present, they to be previously cited in legal form." Article 2029 is, in our opinion, entirely consistent with article 1800. The first article is specific; the second is general. Article 2029 limits the effects of the opposition made by an adjacent owner to that part in which he is interested, provided that the petitioner desires to continue with respect to the remainder. It was never intended to withhold from a third person who, under article 1800, has an "interest in the matter," as, for example, the owner or possessor, the right to oppose the proceedings. That any other person not an adjacent property owner may have interest in this case is also evident when we pass to the second class of persons who may exercise this right; that is to say, those who have real rights. Such a person institutes proceedings; his intention is to obtain a survey and designation of boundaries of lands which are not his property but over which he has a real right. Argument is not necessary to show that the owner is interested in the survey of his own land; that he is a party interested in the case within the meaning of article 1800, and should be cited. Manresa, in his Commentaries on the Civil Code, states that the law is to this effect (Vol. 3, p. 289.) If the owner is cited he is entitled to make opposition to the proceeding. If he makes opposition the proceeding must be declared contentious. He is a party in interest and he refuses his consent. Consent constitutes the basis of the act, and if this is lacking nothing can be done. But are there any parties in interest other than adjacent owners and the owner of the property? Is a bare possessor who refuses to set forth the details of his claim a person interested, who can suspend the proceedings by refusing his consent? We have recently had occasion to consider the rights of such persons in the case of the Philippine Sugar Estates Development Company, Limited, concerning judicial possession. According to the principles therein established, such a person must be respected in his possession, and in case of his being

disturbed therein he is entitled to the remedy of interdicto de retener. We believe that the act of the petitioner who alleges that he is an owner and who makes an actual entry upon the lan(J with the purpose of designating its boundaries constitutes such a disturbance as that spoken of in article 446 of the Civil Code as well as in article 1633 of the Law of Civil Procedure. Such an act is therefore contrary to law and can not be permitted under title 14. It follows that the naked possessor is a person in interest. Under the provisions of article 2021 he should be cited, and under article 1800 may make opposition. It is not necessary to decide in this case whether the opposition made at the time by the inhabitants of the town was or was not sufficient. The petitioner alleges that he is with some exceptions the owner of all the lands included within the perimeter described, but in these exdeptions he does not include the streets. The municipality of Pasay was the owner of said streets and public squares. (Arts. 339, 343, and 344 of the Civil Code.) These form part of the lands described in the petition and improperly claimed by the petitioner. As owner of part of the lands the municipality, as we have seen, was entitled to oppose the petition. The municipality undertook also to oppose the proceeding as the representative of the private interests of the inhabitants. It had no right to do this, but it expressly made opposition with respect to its ownership of the streets, squares, and other lands which did or might belong to it. This last ground was sufficient, and the proceedings were properly terminated. In conclusion we should add that whenever a dispute arises between parties interested in real property, either with respect to ownership or possession, they should not resort to this act of voluntary jurisdiction, nor insist upon it, no matter what may be the merits of the dispute. However unfounded may be the claims of either party, the fact that there is a dispute places the case beyond the scope of an act of voluntary jurisdiction. The judgment appealed is affirmed, with the costs of this instance to the appellant. So ordered. Torres, Mapa, and Ladd, JJ., concur.

DISSENTING COOPER, J.: This is a voluntary proceeding for the survey and demarcation of the boundary lines of a tract of land containing about 400 hectares, called the "Hacienda de Pasay," instituted by Edwin H, Warner, who states in his application that he is the owner of the entire tract, with the exception of certain parts which are described by him, lying wholly within the perimeter and not touching the boundary lines of the part to be surveyed at any point. After an order had been made by the court directing the survey and demarcation of the lines of the hacienda, and after they had in part surveyed and marked the land, the town of Pasay, acting through its municipal council, filed an opposition to the proceeding, upon which the court dismissed the same. From this order of dismissal the plaintiff has appealed to this court. Voluntary proceedings are defined as all matters in which the intervention of a judge is

requested or is necessary without there being actual litigation, or which are not instituted against known and determinate parties. Under this classification fall surveys and demarcations. With reference to voluntary proceedings, it is provided by the Code of Civil Procedure as follows: "Art. 1800. If opposition to the request be made by any person interested the matter shall become litigious without altering the situation of the parties in interest or the subject-matter of the proceedings, and the procedure prescribed for ordinary actions shall be followed according to the import thereof." Under this provision of law the opposition of the town of Pasay seems to have been made and filed. The questions for the determination of this appeal are therefore: First, was the town of Pasay a party "interested" within the meaning of this article; and, second, will its opposition duly filed terminate the survey and demarcation of the land as attempted by the plaintiff? The opinion of the majority of the court is based upon the affirmative view of the questions. I am inclined to the opposite view. It is said in the opinion that it needs no argument to show that the owner is interested in the survey of his own land. The converse is equally true. But these self-evident propositions do not tend in any way to elucidate the questions. The proceeding is intended simply for the determination of the boundary line and can have no other effect, and none can be interested except those who are interested in the location and demarcation of these lines. The proceedings are necessarily confined to adjoining owners, and the fact of establishing the lines can not in any way affect those who do not occupy such position. It is not contended that the town of Pasay abuts on any line attempted to be surveyed nor that any of its streets form such lines. It has not been made a party to the proceedings, nor is there any attempt to bind it. In his amended petition the plaintiff names as parties owners entirely outside the limits of the hacienda, they being the only persons who are interested in the boundary line. It did not concern the town of Pasay in any manner whether this line was pressed in or forced out so long as the parties engaged in making the survey did not intrude upon its possession. The bare possibility of such a result would not make it an interested party and give it the status of an adjoining property owner. The provision of law with reference to the filing of an opposition expressly and clearly limits the right to the owner of adjoining property, and the discontinuance of the voluntary proceedings takes effect only as to that part of the land which adjoins that of the opposing party. As to other adjoining owners who do not object to the continuation of the survey, article 2029 of the (Code of Civil Procedure reads as follows: "If before commencing the survey opposition be made thereto by any owner of adjoining property, the survey of that part of the land which adjoins that of the opposing party shall be discontinued, the parties reserving the right to institute such declarative action therefor as may be proper. A similar discontinuance shall be ordered if any opposition is presented during the proceedings, provided the parties in interest do not agree upon the matter in dispute. In both cases the survey of the balance of the land may be performed at the request of the petitioner, provided the other adjoining owners do not make opposition thereto." I do not consider this article of the Code as in any way conflicting with the provisions of article 1800, which gives the right to any person interested to file opposition and to convert the voluntary proceeding into a contentious proceeding, because, as above stated, the town of Pasay is in no way interested in the boundary line. If such a conflict does exist, the general provision contained in article 1800 must give way to the more specific provision which is contained in article 2029, not only according to the ordinary rules of construction but by the express provisions of article 1807, which reads as follows: "The provisions prescribed in the

preceding articles (including 1800) shall be applicable to special proceedings specially mentioned in the titles following except in so far as the provisions may be opposed thereto." The case has been tried upon the theory, which the opinion of the majority of the court recognizes, that the town of Pasay is situated entirely within the boundaries of the hacienda and does not adjoin the tract which plaintiffs attempt to survey. It would be a sufficient answer to the objections or opposition which is made to say that it is not shown that the town of Pasay "is the owner of any adjoining property," and therefore does not come within the provisions of article 2029. I do not understand that the case of the Philippine Sugar Estates Development Company states a contrary doctrine and that any person interested may, without declaring the nature of his claim, file opposition to a voluntary proceeding and so terminate it. that case was a voluntary proceeding for the judicial possession of land, and the opposition was made by one in possession without disclosing the nature of his title, simply stating his possession. This was a specific statement of the nature of his claim, and his possession was of itself sufficient to justify him in objecting to the voluntary proceeding for possession. The opposition at Pasay wholly fails to show that it is interested as the owner of an adjoining tract of land. On the contrary it clearly shows that, while it is within the limits of the outer boundary lines described in plaintiff's petition, the town tract does not touch the boundary lines which plaintiff is attempting to survey. Other reasons might be given which would lead to the reversal of the judgment of the lower court, but those stated are sufficient to determine the case upon its merits. Arellano, C. J., also dissented.

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G.R. No. 546, October 10, 1902

THE UNITED STATES, COMPLAINANT AND APPELLEE VS. MANUEL SCARELLA, DEFENDANT AND APPELLANT. D ECIS ION
LADD, J.: The complaint, which is for estafa, charges the defendant with having received three sums of money, viz, 5 pesos from Potenciano Ebora, 10 pesos from Marcelo Cueto, and 38 pesos from Isidoro Castillo, in payment of dues for timber cut on public lands; that he received these sums with the obligation to pay them over to the United States and that he appropriated them to his own use to the prejudice of the United States. The court below found the defendant guilty as to all three sums under article 535, No. 5, of the Penal Code, which punishes "those who, to the prejudice of another, shall appropriate or misapply any money, goods, or any kind of personal property which they may have received as a deposit, on commission, for administration, or in any other capacity producing the obligation to deliver or return the same, or who shall deny having received it," The defendant appealed. The defendant was a ranger in the employ of the Forestry Bureau of the Insular Government in the Province of Batangas. His duties were to measure timber cut on the public lands and issue certificates of the amount cut and other particulars to the parties liable to the payment of the dues. He had no authority to collect the dues himself. The payments by Potenciano Ebora and Marcelo Cueto and that by Isidoro Castillo must be considered separately. (1) As to the payments by Ebora and Cueto: Ebora testified that he paid the defendant 5 pesos 71 centimos and 4 octavos, and that he was with Marcelo Cueto when the latter, at the defendant's instance, paid him 10 pesos, and that these sums were paid for licenses for boats, or, as we think he in effect says, as dues for timber used in the construction of boats belonging to Ebora and Cueto, respectively. The defendant, who testified in his own behalf, admitted the receipt of these sums, and that they were received by him as charges due the Government. He, however, says that the 5 pesos and 71 centimos were received from one Lorenzo Cueto and not Ebora. His testimony is in accord with Ebora's as to the 10 pesos having been received from Marcelo Cueto. Neither Lorenzo Cueto nor Marcelo Cueto testified at the trial. As to the date of the receipt of these sums there is no evidence except that of the defendant, who says the 5 pesos 71 centimos were received in August, 1901, and the 10 pesos on the 13th of the succeeding month. The payments were made at Batangas, the capital of the province. The defendant was arrested September 28, 1901, and up to that date he had not paid the money into the Treasury or made any other disposition of it for the benefit of the parties from whom he had received it. The defendant in his testimony undertook to explain and justify his conduct in receiving and retaining these sums. This part of his testimony is confused and obscure, but the purport appears to be, with reference to the payment of the 5 pesos 71 centimos, that it was only a partial payment, the boat not being at the time completed, and it being, therefore, impossible

to ascertain the total amount that would be payable respecting it, and that it was understood that upon the completion of the boat the owner was to return and pay whatever balance might then be found to be due. With reference to the other sum the defendant says that he was obliged to go to Lemery on official business the day the payment was made, and that he therefore issued to Marcelo Cueto a provisional certificate, and that Cueto was to wait till his return on the following day, when he was to provide him with the definite certificate or order for payment to the treasury, but that upon his return he found that Cueto had left town. We are unable to perceive that this evidence, admitting its truth, suggests any justification or excuse either for the original receipt of the money in either instance or for its subsequent retention. It was the defendant's duty, immediately upon the receipt of these sums or within a reasonable time thereafter, to pay them into the public treasury. He had, indeed, no authority to receive them on behalf of the Government. But once having received them, although wrongfully, he was under an obligation to the parties from whom he had received them, an obligation arising ex maleficio, to apply them to the purposes for which they had been delivered to him. His failure to do thisin the case of the 10 pesos for about two weeks and in the case of the other sum for a considerably longer periodfurnishes in itself and without the necessity of taking into consideration his confession, to which we shall advert in another connection, an amply sufficient basis for the inference that he had. fraudulently converted them to his own use. This constitutes the crime of estafa under the section of the Penal Code above quoted. The persons injured by the estafa were, however, the persons to whom the money belonged, and not, as the complaint charges and as the court below finds, the Government of the United States, the payment to the defendant, by reason of his lack of authority to receive it, not having operated as a payment of the debts due the Government. The indemnification should, therefore, be in the one case to Potenciano Ebora, who we think was the person who paid the 5 pesos 71 centimos, and in the other to Marcelo Cueto. The point that the allegation of the complaint, as to the person injured by the commission of the offense, is erroneous has not been raised by the defendant, and would not avail him if it had been raised. (G. O., 58, sec. 7.) (2) The case stands upon a different footing with regard to the payment by Castillo. The defendant admits the receipt of 38 pesos from him13 pesos September 13 and 25 pesos September 25 but says that he received the money to hold as a fund, upon which Castillo, who lived some distance from the capital of the province and found it inconvenient and dangerous to make frequent journeys there to pay timber dues, might draw for that purpose as occasion required. This evidence does not appear to us unreasonable, and there is nothing in the record to contradict it, Castillo himself, by whom it might have been disproved if false, not having been called as a witness. If it is to be believed, as we think it must be, the only obligation resting upon the defendant with respect to this money was to hold it till Castillo should direct its payment by him to the Government. So far as appears from the evidence, no such direction had ever been given. The fact that the money had not been paid into the treasury by the defendant can not, therefore, be used, as in the case of the payments by Ebora and Cueto, as the basis for an inference that it had been appropriated by him. There is some evidence that the defendant, when threatened with arrest, made a verbal statement to Mr. Blanchard, the provincial treasurer of Batangas, confessing the receipt of 53 pesos in timber dues, and naming Ebora, Marcelo Cueto, and Castillo as the persons from whom he had received the money, and that he acknowledged that he had spent the money for medicine, and there is also evidence that subsequently, while in confinement, he wrote Florencio Caedo, the provincial secretary of Batangas, to the same effect, except that he stated in this letter that he had lost the money gambling. The letter was not produced; the evidence

as to the verbal confession is not as full, as clear, or as specific as is desirable in evidence of this character, and the defendant retracted the confession at the trial. Even if we were satisfied upon this evidence that the defendant made use of the money received from Castillo for his own purposes, there would still, we think, be grave doubt whether upon this single fact, unaccompanied by any evidence tending to show that by so doing he placed it out of his power to perform the obligation he was under to Castillo, a fraudulent and prejudicial appropriation could be predicated. It would seem that if by the use of the money he did not alter his situation with reference to his ability to perform the obligation, he would not be guilty of estafa until the time for its performance had arrived and he had made default therein. (See 3, Viada, Penal Code, 515-516.) We do not decide this question in the present case, because, upon the whole, we are not convinced beyond .a reasonable doubt by the uncorroborated evidence as to the confession that the money received from Castillo had been applied to his own use by the defendant prior to his arrest. The result is that he must be acquitted as to the 38 pesos received from Castillo. The fact that the defendant is a mestizo was improperly considered by the court below as an aggravating circumstance. Nor are there any facts in the case which warranted the court in finding the existence of the aggravating circumstance of article 10, No. 12, viz, that means were employed or circumstances brought about which added ignominy to the natural effects of the act. There remains only the aggravating circumstance of article 10, No. 11, viz, that advantage was taken by the accused of his official position, which we think was properly applied by the court below. In the view we have taken of the case it will not be necessary to specially consider any of the defendant's assignments of error, all of which, we think, have been covered in substance by what has been already said. The judgment of the court below is reversed, and the defendant is found guilty of two distinct offenses of estafa under article 535, No. 5, of the Penal Code, each of a sum less than 250 pesetas, with the aggravating circumstance of article 10, No. 11, in each case, for each of which offenses he is sentenced to three months and one day of arresto mayor, the sentences to be served consecutively, and to perpetual special disqualification, in accordance with the provisions of article 399, and to indemnify Potenciano Ebora in the sum of 5 pesos and Marcelo Cueto in the sum of 10 pesos, the costs of this instance to be de oficio. The cause will be remanded to the court below for the execution of this judgment. So ordered. Torres, Cooper, Smith, and Mapa, JJ., concur. Willard, J., with whom Arellano, C.J, concurs, dissenting : I agree with the foregoing decision so far as it relates to the sums paid by Potenciano Ebora and Marcelo Oueto. So far as it relates to the money paid by Isidoro Castillo, I dissent. To my mind the evidence shows that the defendant received this money in such a capacity and so used it as to make him guilty of the crime of estafa as charged.

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G.R. No. 547, September 11, 1902

FLORENCIO POZADAS, PLAINTIFF AND APPELLANT, VS. DOMINGO MARTINEZ ET AL.,DEFENDANTS AND APPELLEES. D ECIS ION
TORRES, J.: Appeal by counsel for Florencio Pozadas, allowed in both effects, from the order of the 24th of June, 1901, directing the reversal of the order giving Pozadas possession of the land referred to in this proceeding which is declared to be contentious, preserving to the parties their respective possession of land, with one-third part of the costs to the municipal president of the town of San Carlos, the other two-thirds of the costs to be paid by the plaintiff and the defendant, the said Pozadas being enjoined from molesting Domingo Martinez in his possession of the land in question. By petition of the 13th of May, 1901, Florencio Pozadas, alleging that he was the owner of a parcel of land situated at a place called Pata, of the town of San Garlos, the extent and boundaries of which appear from the public instrument by which the land was acquired, recorded in the Register of Property, and which he exhibited as evidence of his rights of ownership, asked that he be judicially put in possession of the said land in accordance with the provisions of article 2015 of the Law of Civil Procedure then in force. The petitioner prayed that the municipal president of San Carlos, acting as justice of the peace, be authorized to execute the order, and that the petitioner be given a transcript of the order directing that he be given possession of the lands, and also a transcript of the record of its execution, and that the public instrument exhibited by him be returned. By order of the same date the court granted Pozadas's petition, without prejudice to third persons with better right. On the 22d of May, after the publication of the edicts citing the owners of the adjacent lands; Pozadas was put in possession of the land referred to in the deed mentioned, without opposition on the part of any third person, and the area and boundaries of the land were recorded in the minutes of the proceeding. But the judge, by an order of the 25th of May, after an examination of these minutes, and in view of certain defects observed in the citation of the owners of the adjacent lands and the insufficient description of the boundaries, declared the act by which possession was given to be null and void, and ordered the municipal president of San Carlos to repeat the proceedings, after compliance with the formalities indicated. The proceeding by which Pozadas was to be put in possession of the land claimed having been had de novo, the area and boundaries of which land were recorded in the minutes of the 31st of May, Domingo Martinez and Magdalena Martinez, husband and wife, appeared and made opposition thereto. These individuals filed a petition on the 29th of May with the municipal president, the commissioner, asking that by virtue of the claims set forth therein, supported by documentary evidence, the possession which was about to be conferred de novo on Pozadas be suspended, if the land of which Magdalena Martinez was in possession as owner was included therein, and that report of this opposition be made to the Court of First Instance; but the municipal president, without granting this petition, notified the claimant Martinez to prosecute his claim

before the Court of First Instance. This he did by filing a petition, dated the 1st of June, asking that the possession last conferred upon Pozadas be set aside, and that the latter be ordered to assert his rights in the corresponding civil action. After an ocular inspection by the court, in pursuance with an order made by him in furtherance of justice, and upon a report by the clerk of the court, the order here appealed was entered, upon the ground that the possession given Pozadas by the last proceeding constituted an ouster from a judicial possession formerly conferred by final judgment rendered in a contradictory suita stronger title than a deed of sale, even if supported by a title obtained by composition with the State, which might be set aside in a similar action; that such a title might serve as a basis for obtaining the possession of realty by voluntary jurisdiction proceedings, provided this realty be not possessed by a third party, but that such proceedings should be suspended as soon as opposition is made by any third person, who can not be ousted without first having had his day in court; and that, therefore, it was the duty of the president of San Carlos to have suspended the proceedings by which he was conferring possession, in view of the opposition of Martinez and his wife. This is a question concerning a proceeding of voluntary jurisdiction instituted for the purpose of obtaining judicial intervention in order to avoid damage whiclr might be suffered in a property right, the petitioner to that end availing himself of the provisions of article 2015 of the Law of Civil Procedure then in force. The judge, in accordance with the provisions of article 2016 of the same Law, ordered that the possession solicited be given without prejudice to the rights of third persons. It is true that on the 22d of May, 1901, Pozadas was placed in possession of the land to which the proceeding referred without opposition on the part of any third person, but it is also true that, by an order of the 25th of the same month, and for the reasons therein expressed, the proceeding by which possession was given was declared void, and directions were given that the proceeding be effected anew. The order of the 25th of May having become final and unappealable, as the appellant took no exception thereto, we can not now discuss the question as to whether this order was correct or not; and therefore the new proceedings for giving possession of the 31st of the same month would have been perfectly legal had it not been for the opposition of Martinez and his wife before Pozadas was put in possession of the land. This opposition, made in due time, was sufficient to have given the proceedings a contentious character. It must be remembered that the judicial order of possession can be executed only in case no opposition is made by a third person interested in the matter. This is the situation of Martinez and his wife, who allege that they are in possession under a claim of ownership of a piece of land included in the estate which was and is the object of Pozadas's claim. The moment that opposition was made to the proceedings, as was that of Martinez and his wife, before possession was given, the execution of the order of possession should have been suspended, and the proceedings of voluntary jurisdiction dismissed, with the result of converting the action into one of contentious jurisdiction, in accordance with the provisions of article 1817 of the Law of Civil Procedure. From these considerations it is evident that the order appealed is without error, and, although the possession given Pozadas by the municipal president of San Carlos on the 31st of May,

1901, was in violation of the provisions of the said article 1817, nevertheless the fact that he was a layman and that he acted in good faith, as shown by the text of the order of the 20th of May, exempt him from responsibility or liability to any disciplinary correction, and for this reason no special order should have been made concerning the costs in the first instance. Upon these grounds, therefore, we are of opinion that the order of the 24th of June, 1901, should be affirmed, with the costs of the second instance to the appellant, but the said order is understood as reversed with respect to the costs of the first instance and is to be understood as standing without any special declaration as to the costs of that instance. So ordered. Arellano, C. J., Cooper, Willard, and Ladd, JJ., concur. Mapa, J., did not sit in this case.

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G.R. No. 551, December 24, 1902

MARIANO DEVEZA, PLAINTIFF AND APPELLANT, VS. SIMEON GUINOO, DEFENDANT AND APPELLEE. D ECIS ION
TORRES, J.: On the 14th of August, 1896, a public instrument was executed before a notary public of the city of Iloilo by Guinoo and Deveza, by which the former sold to the latter, in consideration of the sum of 3,540 pesos, a piece of land situated at the places called Lanotan and Simulan of the town of Minuluan, in the District of Occidental Negros, subject to the right of redemption in case the vendor should return the consideration within a period to expire on the 10th of April, 1897. In the event of a failure to return the consideration the sale was to become absolute and irrevocable. In the meantime the vendor was to continue to hold the land and enjoy the usufruct of the same without paying anything to the purchaser. This instrument was provisionally entered in the register, and this provisional entry was subsequently converted into a final inscription. By petition of the 14th of June, 1898, Solicitor Alejandro Monreal, on behalf of Mariano Deveza, filed a complaint bringing an action of unlawful detainer against Simeon Guinoo, and prayed that after the usual legal proceedings judgment be rendered in favor of the plaintiff and warning the defendant that he would be evicted should he fail to vacate the land mentioned within the term of twenty days, with the costs to said defendant. In support of this petition he alleged that by reason of the expiration of the term agreed upon for the redemption without the return by the vendor to the purchaser of the consideration oi the sale the same had become final, and that on this account demand had been made upon Guinoo at the instance of the purchaser by the justice of the peace of Minuluan on the 5th of May previous that he vacate the land and leave the same at the disposal of Deveza, with all its accessories, but that he had failed to do so, and that therefore the said Deveza was entitled to maintain this action of unlawful detainer by reason of the facts of his unquestionable right to the enjoyment of the property held by Guinoo as a precarious tenant without the payment of rent and by him unlawfully detained. Upon the filing of this complaint a day was set for a hearing, in accordance with the provisions of the old Law of Civil Procedure, but before this time arrived counsel for the defendant, Guinoo, filed a petition, in which he advanced the dilatory plea of lis pendens , and prayed the court to hold that he was not obliged to answer the complaint in this action of unlawful detainer, with the costs to the plaintiff. This petition was served upon the plaintiff, and he was given three days in which to reply. By another petition counsel for the defendant, Guinoo, moved the court to vacate the order of the 25th of June, 1898, by which a new day was set for the hearing of the verbal action of unlawful detainer, and prayed the court to suspend this hearing until the said exception of lis pendens had been decided. A copy of this petition was also served upon the plaintiff, in order that he might answer the same within three days. It appears from the minutes of the trial held on the 5th of July of said year, on which date the parties appeared, that the plaintiff urged the same contentions of law and fact as those

expressed in his complaint, and prayed for the same relief demanded therein. Counsel for the defendant, however, argued that as a dilatory plea of Us pendens had been interposed he could not answer the complaint in the action for unlawful detainer, believing that the proceedings should be suspended until the plea interposed should have been passed upon, and protested against the celebration of the oral trial, for the suspension of which he had moved the court The time for trial having passed, the judge adjourned the case until the following day. The plaintiff, Deveza, filed a written answer to the dilatory plea referred to, and upon the grounds advanced therein prayed that the plea be overruled, with the costs to the defendant. By another petition counsel for the plaintiff asked that the defendant's motion for the vacation of the order of June 25 be overruled, with costs. By order of July 5 the court ruled, refusing to take action upon the incidental question raised by the defendant, and denied the motion for the vacation of the order of June 25. The oral trial having been continued, it appears from the minutes of the proceedings dated July 6, 1898, that the defendant stated that having been notified of the order entered the preceding day he protested against the whole proceedings as null and void, and reserved his right to appeal within the legal term; that without making formal answer to the complaint, he solely desired to state that he did not admit the facts alleged therein; that it was not true that the defendant, Guinoo, was a precarious tenant of the property, or that the plaintiff, Deveza, was or had been the owner thereof, because the deed upon which he based his claim was rescinded by an agreement between the parties, which, in due time, would be proven. With this the hearing was terminated. Counsel for the defendant filed a petition praying for the reversal of the order of July 5, and that the court direct the suspension of the action of unlawful detainer, with the costs to the plaintiff. Of this petition a copy was served upon the plaintiff by the order of July 27, 1898. Since this date no further proceedings were had. in the case. By petition dated the 16th of January, 1901, Attorney Antonio Jaime entered an apearance on behalf of the plaintiff, Deveza, and prayed the court that after report by the clerk upon the condition of the case a ruling be had upon the plea of lis pendens. The judge, by order of the 21st of Setember, 1901, and reserving his action with respect to the prayer as to the decision af the plea of lis pendens, admitted Attorney Jaime as a party to the suit in representation of Deveza. Counsel for the plaintiff, by another petition alleging that the case had already been argued, moved the court to render judgment directing an eviction. The judge, without prejudice to subsequent action upon this motion, di? rected that notice be served upon the defendant, Guinoo, to appoint an attorney to represent and defend him in the case within a period of fourteen days, notice of which order was served by the usual process. By order of November 11, 1901, the 13th of that month at 10 a. m. was set for the hearing of the action of unlawful detainer. Directions were given for service of notice of this order upon Vicente Franco, as the representative of the defendant, Guinoo. On the 15th of November, 1901, the judgment now pending before us on appeal was entered. As appears from the proceeding resume of an examination of the record, the course of the action for unlawful detainer was suspended while the oral trial prescribed by article 1575 of the

Law of Civil Procedure then in force was still pending. The judge, when setting the case down for trial, appears to have intended (although he did not so expressly state) to apply the provisions of the present Code of Civil Procedure which went into operation on the 1st of October, 1901, and accordingly evidence was received at the hearing, the result of which, however, does not appear from the record, although reference is made to this evidence in the text of the decision. (This decision was entered by the court below, as it appears on page 113 of the record, without complying with the provisions of article 133 of the said Code.) If the new Code was applied, the judge should have directed the presentation of a bill of exceptions for allowance, in accordance with articles 141 to 143 of the same Code, but under no circumstances could he properly direct that the original papers be sent up. From an examination of the proceedings had in the case, from page 109 forward, it is evident that the case has not been conducted in accordance with the procedure estab Iished by the former Law of Civil Procedure, more especially in articles 1571 and 1575 thereof. Had the judge authority to apply the new procedural law to this action of unlawful detainer commenced under the old Law of Civil Procedure and still pending at the time the new Code became operative? We think he had not. Cognizance of actions of unlawful detainer and of all actions arising from an ouster from or illegal detention of real property, corresponds to the justice of the peace of the place where the property is situated, as expressly provided by article 80 of the Code of Civil Procedure. Consequently, even had it been possible to apply the new procedural law to this action, in accordance with paragraph 4 of article 795 of the new Code, the special judge of Negros was without jurisdiction to try the case, as jurisdiction over such matters has veen vested in the justice of the peace of the place where thre property is situated by the provisions of article 80 of the Code of Civil Procedure, and by those of paragraph 2 of article 56 of the Organic Act. The provisions of paragraph 3 of article 795 above cited should therefore be applied, and consequently the proceedings in this action of unlawful detainer should be continued inthe Court of First Instance of Negros, in accordance with the provisions of the former law of Civil Procedure. The proceedings had below and recorded on pages 112 et.seq. can not be sustained, as they do not conform to the law, and the judgment appealed must also be set aside, because the record does not contain the evidence taken and we are therefore unable to pass upon it as the law requires us to do. Furthermore, in order that a proper judgment may be entered in an action for unlawful detainer, compliance must have been had with all the formal provisions established by the procedural law, the exact observance of which is a matter of public policy. On the grounds stated we are of the opinion that the proceedings should be set aside from page 112 forward, together with the judgment appealed, which is hereby declared void. The judge is directed to continue the trial of the case in accordance with the old Law of Civil Procedure. No special ruling will be amde as to the costs of either instnace. So ordered. Arellano, C. J., Cooper, Smith, Willard, Mapa, and Ladd, JJ., concur.

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G.R. No. 552, November 17, 1902

THE UNITED STATES, COMPLAINANT AND APPELLEE, VS. UI MATIAO, DEFENDANT AND APPELLANT. D ECIS ION
COOPER, J.: The defendant, Ui Matiao, was convicted in the Court of First Instance of the city of Manila of the offense of an attempt to bribe a public official. The court based the conviction on the provisions of articles 381 and 387 of the Crimial Code, taken in connection with article 354 of the same Code, and the defendant was given the benefit of article 11 of the Penal Code. The defendant is condemned to the punishment of imprisonment for six months and one day and to pay a fine of three times the amount of the alleged bribe and costs of the suit, from which he appeals. The provisions of the Code upon which the conviction rests read as follows: "Art. 381. The public official who shall receive, directly or through an intermediary, a gift or present, or who shall accept offers or promises for his committing, in the discharge of his office, an act constituting a crime, shall be punished with the penalties of prision correccional in its minimum to its medium degree and a fine of an amount equal up to three times the value of the gift, without prejudice to the imposition of the penalty pertaining to the crime committed in consideration of the gift or promise should it have been executed." Article 387 reads as follows: "Those who shall corrupt public officials with gifts, presents, offers, or promises, shall be punished with the same penalties as those imposed on the officers suborned, excepting that of disqualification." Article 354 is as follows: "The public official who shall knowingly render or advise an unjust interlocutory decree or decision in a matter of administrative litigation, or merely administrative, shall incur the penalty of temporary special disqualification in its maximum degree to perpetual special disqualification." One of the sanitary inspectors of the city of Manila visited the premises of the defendant in order to make a report on an application by the defendant for a license to sell oil. The defendant offered the officer money, and in order to secure evidence against the defendant the officer wrote out a note and obtained the defendant's signature to it The note, the form of which is contained in the complaint, reads as follows; "That said Ui Matiao on the 28th of September, 1901, or thereabouts, in the city of Manila, P. I., having petitioned for a license to sell oil in the city of Manila, P. I., then and there, knowing well what he did, corruptly, maliciously, and willfully, offered and gave to Doctor Altman, as and for a bribe, a note in the sum of ten (10) pesos, said note being in the following form: 'I have offered and promised to bearer

ten (10) pesos to expedite my license to sell oil; and I understand well what I am signing. 28-9-1901. Ui Matiao. "Altman was an official of the Health Inspector, and it was his duty to report on the petition. Ui Matiao then and there offered said note as a bribe to said Altman on condition and for the purpose of securing a favorable indorsement and report from said Dr. Altman contrary to the law in such cases provided." The defendant interposed a demurrer to the complaint, one paragraph of which is that the facts charged in the complaint constitute no offense. Under the provisions of article 387 of the Code above cited, those who corrupt officials with gifts, presents, offers, or promises are punishable with the same penalties as those imposed upon the officer suborned, excepting that of disqualification, In order that a public official may be convicted of bribery he must have accepted a bribe for his committing in the discharge of the duties of his office an act constituting a crime. It therefore becomes necessary to consider whether the official if he had accepted the bribe in the discharge of his office in the particular case, would have committed an act constituting a crime as defined in article 354 of the Penal Code. Suppose that the officer in consideration of the note had decided to make a favorable report on the application and had made such a report. This would not of itself have constituted the offense defined in article 354. It must have been an unjust decision knowingly rendered. The information contains no allegation embodying this requisite. For the same reason the charge is defective under article 382. Perhaps the information might be held sufficient under article 386, which is against the public official who shall accept presents in consideration of his official position. But the punishment for this offense is suspension in its minimum and medium degree, and public censure; and as the same penalty applies to persons offering or giving the bribe as those imposed on the officer suborned it is evident that the punishment can not be the same and is therefore not applicable to the case. Other interesting questions have been raised not necessary to consider. On account of the insufficiency of the information in the particulars indicated the judgment of the Court of First Instance is reversed and the case remanded, with costs of the appeal de oficio. Arellano, C. J., Torres, and Ladd, JJ., concur. Willard, J., concurring: I agree with the result. Smith and Mapa, JJ., did not sit in the case.

OSJurist.org

G.R. No. 553, August 09, 1902

THE UNITED STATES, COMPLAINANT AND APPELLEE, VS. MARTIN PEREZ, DEFENDANT AND APPELLANT. D ECIS ION
WILLARD, J.: The judgment in this case condemning the defendant to six months of arresto mayor and a fine of 6,250 pesetas was rendered on the 20th of November, 1901. The time to appeal from it expired on the 5th day of December. The appeal was not taken until the 9tb of December. It must, therefore, be dismissed. The case can not be affected by the facts connected with the defendant's attempt to have the case reopened. He first moved for this relief on the 21st of November. This motion was denied on the 26th of November without prejudice to the right of the defendant to renew it. It was renewed on December 2 and was undecided on the 5th day of December, when the time to appeal expired. The motion was determined on the 9th, and on the same day the appeal was taken from the judgment. The case of United States vs . Flemister, just decided, lays down the rules which govern proceedings under article 42 of General Orders, No. 58. It is there held that such a motion must be heard and decided before the time to appeal from the judgment expires, and that the pendency of such a motion does not extend the time to appeal from the judgment. There can be no doubt but that the judgment in this case was the resolution of the court entered on November 20, and not the order of December 9, denying the motion to reopen the case. General Orders, No. 58, was ingrafted unto the then existing Spanish proceedings as is expressly stated in the preamble. Under that procedure it was well understood that the judgment was that document which, after reciting the facts proved, the claims of the attorneys, and the conclusions of law, pronounced the punishment which the defendant must suffer. The words "final judgment" in General Orders, No. 58, refer to this determination. This is made clear by the provisions of articles 44 and 47, which provide for an appeal from a final judgment or from an order made after judgment. Both distinguish between a final judgment and an order, such as the one of December 9, made after final judgment. In this case the appeal is plainly stated to be from the judgment, and it was too late. Even if it had been from the order, it would not avail the defendant; that order, having been made after the judgment below became firme, was void. (United States vs . Flemister, supra .) To have it so declared would not help the defendant. The appeal is dismissed with costs of this instance de oficio. Arellano, C. J., Torres, Cooper, and Ladd, JJ., concur. Mapa, J., did not sit in this case.

OSJurist.org

G.R. No. 555, April 19, 1902

THE UNITED STATES, COMPLAINANT AND APPELLEE, VS. PANTALEON GIMENO, DEFENDANT AND APPELLANT. D ECIS ION
COOPER, J.: The defendant, Pantaleon Gimeno, was on November 21, 1901, convicted in the Court of First Instance, Fifth Judicial District, of the offense of robbery and sentenced to six years and one day of presidio mayor and to the payment of damages and costs. Upon an examination of the record we discover that the defendant applied to the Court of First Instance for assignment of counsel for his defense at the trial of the case, and in accordance with the application an attorney was assigned for his defense. Notwithstanding this, it seems that the attorney failed to appear at the trial to represent him, and the burden fell upon him to make his own defense. Under General Orders, No. 58, if the defendant appears without counsel he must be informed by the court that he has a right to have counsel before being arraigned, and must be asked if he desires the aid of counsel. If he desires and is unable to employ counsel the court must assign counsel to defend him. (Sec. 17.) This is a right which the defendant should not be deprived of, and the failure of the court to assign counsel or, after counsel has been assigned, to require him to perform this duty by appearing and defending the accused would be sufficient cause for the reversal of the case. For this reason it will be necessary to remand this case for a new trial, at which the defendant must be assigned counsel for his defense. It is so ordered and directed, and the costs of this appeal are adjudged de oficio. Arellano, C. J., Mapa, and Ladd, JJ., concur.

DISSENTING WILLARD, J.: I can not agree with the opinion of the court in this case. It appears that at the request of the defendant on the day before thetrial the court appointed a lawyer to defend him. At the trial this lawyer not appearing, the defendant conducted his own defense and cross-examined some of the witnesses. As far as the record shows he made no objection to proceeding without the presence of his lawyer. Why that lawyer was not present does not appear. Upon this record the majority of the court reverse the judgment for a non-compliance with section 17 of General Orders, No. 58. As a matter of fact the court did comply with section 17 and did nominate a lawyer for the defense. In the absence of any showing to the contrary we ought to assume that

the judge would not have proceeded with the case in the absence of this lawyer unless there was some good reason for doing so. He had recognized the right of the defendant to have counsel by appointing such counsel. It is not credible that the next day he would have ignored the right of the defendant to this protection. For the purpose of reversing the judgment we ought not to presume that the court neglected his duty which he must then have had in mind; we ought rather to presume that the defendant consented to proceed without the presence of his lawyer; his conduct shows this. I think that the judgment should be affirmed. Torres, J., did not sit in this case.

OSJurist.org

G.R. No. 562, August 30, 1902

THE UNITED STATES, COMPLAINANT AND APPELLEE, VS. CARLOS VELASCO ET AL., DEFENDANTS AND APPELLANTS. D ECIS ION
TORRES, J.: One day in the month of July, 1900, Carlos Velasco, having heard that Juan Custodio and a lad called Pedro, whose surname is unknown, both of them residents of the town of Cainta, were bandits and engaged in assaulting and robbing travelers, he proceeded to arrest them. By order of the revolutionary general, Francisco de log Santos, to whom he reported upon the case, he turned the prisoners over to Gavino Ramos, with directions to kill them. This order was carried out by Gavino Ramos in the presence of Carlos Velasco, by striking the deceased with an iron crowbar. The bodies of the two deceased were then buried in a hole dug by the accused. Cirilo Vergara, who was plowing a field a short distance from the place where these crimes were committed, was an eyewitness to the crimes, and he it was who pointed out the graves to Mateo Custodio, a brother of one of the deceased, who, accompanied by the police, was looking for the missing man. In a hut close by the place of burial were found two belts and two hats which had belonged to the deceased, a Remington rifle with forty cartridges, and two carabaos belonging to the defendant Velasco. It appears from an investigation of the record that these goods and animals were turned over to the municipal president of Cainta. The facts related constitute two crimes of murder, because the violent killing of Juan Custodio and the lad Pedro is homicide, qualified by the specific circumstance of alevosia, which, under article 403, makes the penalty applicable heavier than that prescribed by article 404 of the Penal Code, inasmuch as the deceased were bound, unarmed, and unable to defend themselves, or even to avoid by flight the criminal aggression of their heartless slayer, who, in killing them, acted without risk to himself in the perpetration of these horrible crimes, in the commission of which means were used which completely assured their consummation. Velasco is guilty because he induced or ordered Ramos to kill the deceased, and Ramos is guilty because he it was who actually committed the crime as described in articles 12 and 13 of the Penal Code. It does not appear from the record that Velasco, when ordering Ramos to kill the two men whom he had arrested, was acting in obedience to orders from General Francisco de los Santos, and even if he had so acted, he would not thereby be relieved from responsibility, nor would Gavino Ramos, the person who actually committed the crimes. The allegation of the latter that Velasco it was who killed the lad Pedro can not be believed, because of the lack of evidence and because the statement is denied by Velasco, who affirms that it was Ramos who killed both the deceased by his order, which statement is corroborated by the testimony of Cirilo Vergara, the only eyewitness, whose testimony is of the greatest importance in this case and is worthy of full credit. Thanks to this witness, the full details of the crimes were ascertained, and the record contains nothing which tends to offset or destroy the truthful statement by this witness of the fate of the unfortunate victims. Upon the merits of the case, and more especially upon the testimony of Velasco himself, it is evident that with respect to him in the commission of the double crime of murder, the

aggravating circumstance of premeditation must be considered, by reason of the fact that he it was who arrested the deceased and subsequently ordered his codefendant to kill them in his presence, later assisting in the burial of the bodies. These acts demonstrate conclusively that Velasco deliberately formed the criminal intention of killing the two men he had arrested, without any legal reason or authority therefor, in order to effect their death by means of his codefendant. It follows, therefore, that he unquestionably acted after thinking over and meditating upon the perpetration of these grave crimes. With respect to Ramos, the actual guilty agent in the commission of these murders, the circumstance of premeditation can not be considered, as Ramos simply committed the crimes in obedience to the orders from Velasco. The record does not disclose evidence showing that he took part in the arrest or detention of the deceased, or that he acted after reflection and meditation upon the perpetration of these crimes. The facts which constitute circumstances that either increase or mitigate criminal responsibility must be proven in order that such circumstances may be taken into consideration, and consequently, as the record does not contain evidence showing whether the place of the killing was or was not inhabited, or what was the age of the lad Pedro, deceased, there is no basis upon which to rest the application of any other circumstances connected with the facts indicated. Furthermore, in consideration of the abnormal condition of affairs consequent upon the state of war at that time prevailing in the Province of Rizal, as well as in other provinces of the Archipelago, and the moral and material disturbance prevailing at the time when these crimes were committed, and which had practically broken down all authority, in consequence of the revolution started several years ago, the respect for the law was with difficulty maintained outside of the towns held by military garrisons, and consequently the writer is of the opinion that the circumstance established in article 11 of the Code should be applied to mitigate the penalty, in view of the character of the crimes committed and the personal condition of the defendants. Consequently, the aggravating circumstance of premeditation, the only one existing against Velasco, is offset, and, with respect to Ramos, no aggravating circumstance having been appreciated, it is evident that Velasco must suffer the medium grade of the penalty assigned by article 403 of the Penal Code, and Ramos the minimum degree of the same penalty for each one of the two crimes of murder, article 87 and the last two paragraphs of article 88 of the Penal Code, however, to be applied. Therefore, by virtue of General Orders, No. 58, April 23, 1900, the act of August 10, 1901, of the Civil Commission, and rule 51 of the provisional law for the application of the Penal Code, the judgment of the court below should be reversed and Carlos Velasco condemned to life imprisonment ( cadena perpetua) for each one of the crimes of murder, it being understood, nevertheless, that in computing the duration of each one of the two penalties indicated thirty years will be allowed for each one, and to the accessory of civil interdiction, and subjection to the vigilance of the authorities during the lifetime of the convict; and in case the principal penalty should be remitted by pardon, then absolute, perpetual disqualification and subjection to the vigilance of the authorities for life shall be imposed, unless this accessory penalty shall be expressly remitted in the pardon of the principal penalty. Gavino Ramos is condemned for each one of the two crimes of murder to the penalty of twenty years cadena temporal and the accessories of civil interdiction during the duration of the penalty, to absolute disqualification and subjection to the vigilance of the authorities during the lifetime of the convict, and to the payment, jointly and severally with his codefendant, Carlos Velasco, of 1,000 Mexican pesos to the heirs of each one of the deceased, and of onehalf each of the costs of both instances, the court to act in accordance with law with respect to the two carabaos belonging to the defendant Velasco, delivered to the municipal president of

Cainta. So ordered. Arellano, C. J., Cooper, Willard, and Ladd, JJ., concur. Mapa, J., did not sit in this case.

OSJurist.org

G.R. No. 568, April 30, 1902

THE UNITED STATES, COMPLAINANT AND APPELLEE, VS. FRANCISCO CABE ET AL., DEFENDANTS AND APPELLANTS. D ECIS ION
ARELLANO, C.J.: Late on a night in January, 1901, some ten or twelve men, armed with bolos and firearms, went to the vicinity of the house of Celedonia Bienes, situated in the barrio of Sail Antonio, town of San Nicolas, Pangasinan. Some of them entered the house and seized the brothers Francisco and Daniel Gascon, two of its inmates, and in the house next door captured Sotero Alquero, and, binding the three, took them toward the river Agno. While on the road, before reaching the river, they freed Alquero. Upon reaching the river one of the malefactors, who subsequently proved to be Roman Cabe, acting under orders of Francisco Cabe, shot Francisco Gascon, who was standing with his back toward the aggressor. Immediately after, Roman struck Francisco Gascon a blow with a bolo, separating bis head from his body, and then threw the body into the river. Upon this Julian Serios, another of the malefactors, struck Daniel Gascon several blows with a bolo, inflicting upon him five wounds. In consequence of the aggression Daniel fell into the river, where, believing him to be dead, the five men left him. Of the five Daniel was able to recognize only the three defendants Francisco and Roman Cabe and Julian Serios, whom he had known previously. After several hours he succeeded in reaching the bank of the river, got out of the water, and returned to his home. His wounds were several months in healing. Although the three accused pleaded not guilty to the crime of murder, it is unquestionable that they were, with certain other persons unknown, the sole authors, by direct participation, of the violent death of Francisco Gascon. The evidence in the record shows unquestionably that Roman Cabe, obeying the orders of Francisco Cabe, attacked and killed Francisco Gascon in the presence of Julian Serios and his other companions unknown, who, although they took no material part in the execution of the crime, nevertheless gave their moral support, it not appearing that they attempted to prevent its consummation. Furthermore, Julian Serios directly attacked Daniel Gascon, the brother of the victim, who did not die, his wounds proving to be not of a mortal character. The fact that only one witness testified is not an obstacle to our becoming fully convinced as to the certainty of the occurrence and of the guilt of the defendants, because, in addition to the testimony of this witness, we find grave and conclusive circumstantial evidence, based upon proven facts, such as the sequestration of the deceased and of the witnesses Daniel Gascon and Sotero Alquero by the three accused and seven or nine other individuals unknown; the wounds inflicted upon Daniel J the disappearance of Francisco Gascon, his brother; and the selfcontradictory statements of the defendants themselves. It is unquestionable that the killing of Francisco Gascon was committed with treachery ( alevosia). It was executed while he was bound, in the middle of the river and in the hands of the three defendants, assisted by others. It is evident, therefore, that the crime was consummated without any risk to the aggressors arising from an attempt at defense on the part of the victim. Francisco Gascon and Daniel Gascon were policemen under the Americans. One of

them had served the Americans as a guide. The two formed part of a gathering of several persons which was assembled that night at the house of Celedonia Bienes. For the purpose of meeting together at that barrio at a given hour and capturing the two brothers, and Sotero Alquero, who was in a neighboring house, and talcing them to the river Agno, 3 miles away, and for the purpose of killing one of them, or rather twoalthough the murder of Daniel was not consummatedit must be supposed that there wras a plan and a concerted action, which shows known premeditation on the part of the principals in this crime. To this generic aggravating circumstance must be added the other arising from the commission of the crime by an armed band in an uninhabited place and in the nighttime. This, although offset by the mitigating circumstance of article 11 of the Penal Code, still leaves the two circumstances first considered, to wit, the qualifying circumstance of known premeditation. These two circumstances being present, no penalty less than the maximum degree of that assigned for the crime of murder can be imposed. Consequently the judgment of the court below is affirmed, the indemnification imposed in the judgment to be changed to 1,000 pesos. Cooper, Willard, and Ladd, JJ., concur.

DISSENTING TORRES, J.: The violent killing of Francisco Gascon, as above related, is a fact fully proven, and constitutes the crime of murder, defined and punished in article 403 of the Penal Code, because in the execution of this crime the qualifying circumstance of treachery ( alevosia) was present. The deceased was killed while helpless, with arms bound elbow to elbow, and was unable to defend himself against his aggressor. The latter, furthermore, was assisted or accompanied by some eleven or more armed men. Apart from this should be considered the fact that the victim was wounded by a gunshot fired from behind, the aggression being concluded by severing his head from his body by a blow which certainly must have been received on the back of the neck. Although the body was not subsequently found, the fact is that the deceased has not been seen since the night in question, nor has any information been received as to his whereabouts. Consequently it is unquestionable that he was killed, as asserted by his brother Daniel, the only eyewitness to the crime. Although the three accused pleaded not guilty to the crime of murder charged against them, it is indubitable that they, with certain other persons unknown, are the authors, by direct participation, of the violent death of Francisco Gascon. An examination of the record discloses as an unquestionable fact that Roman Cabe, in obedience to orders received from Francisco Cabe, attacked and killed the said Francisco Gascon in the presence of Julian Serios and his other companions unknown. These, although they took no part in the material execution of the crime, nevertheless gave it their moral support, it not appearing that they made any attempt to prevent the consummation of this grave offense. Furthermore, Julian Serios made a direct attack upon Daniel Gascon, the brother of the victim, who did not die, his wounds proving to be

not of a mortal character. The fact that we have the testimony of only one eyewitness to the murder is not an obstacle, within the exercise of a sound discretion, to reaching the conclusion that the defendants are criminally responsible. The statements made by Daniel Gascon and the facts which he related have not been disproven, but, on the contrary, have been corroborated by numerous grave and conclusive items of circumstantial evidence, based upon certain and proven facts, such as the capture of the deceased and the witnesses Daniel Gascon and Sotero Alquero by the three defendants and seven or nine other persons unknown, the wounds inflicted upon Daniel, the disappearance of the latter's brother, Francisco Gascon, and the lack of proof of the exculpative allegations of the defendants. These sequestrations do not constitute the crime of illegal detention, because the criminals captured the injured persons, not for the purpose of depriving them of liberty alone, but in order to kill them, this being the final object they intended to attain, at all events with respect to the Gascon brothers. In the commission of the crime herein prosecuted the only generic circumstance which should be considered present is that established by paragraph 15 of article 10 of the Code, because the crime was committed by the defendants in an armed band in an uninhabited place and under cover of the darkness of night. These three circumstances, included in one paragraph of the Penal Code, constitute, under the rulings of the supreme court of Spain, a single aggravating circumstance, offset in its effects by the mitigating circumstance indicated in article 11 of the Code. The presence of the latter circumstance should be considered in this case, in view of the personal conditions of the defendants, and the political passions of partisanship, hatred, and revenge which impelled them to the commission of the crime. The undersigned does not believe that it is proper to consider that the aggravating circumstance of premeditation was present, inasmuch as the band which captured the Gascon brothers and the witness Alquero was a more or less numerous gang of thieves who, under the guise of revolutionists, were wandering about the country in Pangasinan, committing outrages and abuses, impelled by erroneous beliefs due to their illiteracy, but not necessarily acting by previous agreement. Furthermore, the record does not show that the crime was preceded by reflective meditation upon the murder in question. Circumstances which qualify criminal responsibility, whatever their nature and effect, can in no case rest upon mere presumption, no matter how reasonable or probable, but must be based upon facts which the judicial mind considers to be of unquestionable existence, and which show clearly and indubitably that the criminal calmly and reflectively meditated upon the perpetration of the crime. This is the unvaried rule of the supreme court of Spain. Such facts do not appear from the record in this case. Nor should it be considered that there were present in the commission of the crime aggravating circumstances Nos. 6, 9, and 14 of article 10 of the Penal Code. The manner in which the accused killed Francisco Gascon does not imply unnecessary cruelty, nor does it show that it was their intention to deliberately augment the evils inherent in the crime or to increase the pain of their victim by the infliction of other unnecessary sufferings, but rather the decided purpose to kill Francisco Gascon. Although the malefactors were numerous and were armed, the existence of the circumstances of abuse of superiority and the assistance of armed men should not be considered as aggravating circumstances, since it does not appear from the record that these circumstances were present as defined in the Penal Code. The fact that the criminals were armed and that they were more than three in number has already been

considered. The so-called abuse of authority is involved or inherent in the alevosia, the circumstance by which the crime is qualified, according to the decisions of the supreme court of Spain. From the foregoing it is to be inferred that the three infliction of the medium degree of the penalty assigned Code, and should be condemned to the corresponding any subsidiary personal penalty in case of insolvency, article 51 of the Code, and to the payment of the costs. defendants should be punished by the for murder in article 403 of the Penal civil responsibility in solidum, without in accordance with the provisions of

Therefore, for the reasons above stated, the undersigned is of the opinion that the judgment appealed should be reversed, and that the defendants Francisco Cabe, Roman Cabe, and Julian Serios should be condemned each one to the penalty of life imprisonment ( cadena perpetua), with the accessories of civil interdiction and subjection to the vigilance of the authorities during their lifetime, and in case these criminals should be pardoned as to the principal penalty, then to suffer the penalty of absolute, perpetual disqualification and subjection to the vigilance of the authorities during their lifetime, unless these accessory penalties should have been expressly remitted in the pardon of the principal penalty; also, to the payment, pro rata or in solidum, of 1,000 Mexican pesos to the widow and heirs of the deceased, and to the payment each of one third part of the costs of both instances, the judge to act in accordance with law if the prosecuting attorney should file a complaint for the frustrated murder or homicide of Daniel Gascon, in case he has not yet done so. Mapa, J., also dissented.

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G.R. No. 571, December 03, 1902

THE UNITED STATES, COMPLAINANT AND APPELLANT, VS. THOMAS E. KEPNER, DEFENDANT AND APPELLEE. D ECIS ION
SMITH, J.: Thomas E. Kepner, an attorney-at-law, was charged in the Court of First Instance of the city of Manila with the crime of estafa, alleged to have been committed by him by indorsing a warrant of the Insular Government made payable to his client, Aun Tan, and collecting and appropriating to his own use the amount due thereon without the authority or consent of the latter. The accused was tried on the charge and after hearing the evidence of both sides the trial judge was of the opinion that there was evidence tending to show that the appropriation of the amount of the warrant was made under a bona fide claim of right. He therefore acquitted the defendant and the fiscal appealed. Wong Cheong and Aun Tan, Chinese bakers, were charged before a military commission with illegally having in their possession some four hundred sacks of commissary flour, the property of the United States, against the statute and military regulations in such cases made and provided. On March 24, 1901, while they were in confinement, O. C. Hing, a Chinese friend of the parties, retained Kepner to obtain their release on bail and to defend them before the military court. It was agreed that the attorney should receive for his professional services $300, Mexican, cash, and $700, Mexican, additional on condition that he save Wong Cheong and Aun Tan from fine or imprisonment, and secured the release of the flour which had been seized by the authorities. After obtaining the release of his clients on $3,000, Mexican, bail and taking their statements, Kepner came to the conclusion on the 1st of May, 1901, that both were guilty of the offense with which they were charged and that in no event would he be able to procure a release of the flour. He therefore told the accused Chinamen as well as Hing "that it was absolutely out of the question to stand by the original agreement and offered to return the $300 which had been already paid. He finally allowed himself, however, to be persuaded to continue with the case for a consideration, which he says was an unconditional fee of $500 payable on the determination of the cause. Hing says no agreement for an unconditional fee was ever made. His story is that after Aun Tan had been released on bail Kepner declared that he could not get the flour back and proposed that that contingency should be eliminated from their understanding. To this proposition Hing consented and Kepner agreed to secure Wong Cheong and Aun Tan against fine or imprisonment for the sum of $500 in addition to what he had previously received. The trial of the two men took place about the 4th of May, 1901, and resulted in the acquittal of Wong Cheong and the conviction of Aun Tan, who was fined $1,000, gold, and paid it. On the 9th of May Kepner sent Hing a bill "for services in re the United States vs. Wong Cheong and Aun Tan, as per agreement, $500." Hing flatly refused to pay the account on the ground that Aun Tan had been fined and that there was nothing due under the terms of the contract. On June 20 Kepner apparently yielded the point, for on that date he borrowed from Hing, his alleged debtor, $150, which he promised to repay on or before the 20th of July next ensuing.

This he would scarcely have done if Hing had been indebted to him at the time in the sum of f 500 for services which he asserted had been then fully completed. On the 1st of July, 1901, Hing went to the office of Kepner and asked him to make an effort to get the fine remitted and the confiscated flour returned. Hing says Kepner agreed to obtain the restoration of the fine and the flour for the sum of $1,000, Mexican. Kepner says he agreed to get back the fine for a consideration of $500, Mexican, and "'that no agreement had been reached on the flour proposition" nor anything said on the subject beyond a conversation touching the making of an application for its recovery, and an offer on his part to do the work for $500. Kepner presented his petition for a remission of the fine, but before it had been acted upon officially, so far as appears from the evidence, he again made a demand on Hing for money, which was refused. Considering, however, that the appellant had obtained the acquittal of Wong Cheong, Hing offered to allow him $250 in settlement of the second contract, and the offer would ajppear to have been finally and definitely accepted by Kepner in his letter of the 12th of August, 1901, in which he says: "Dear Mr. Hing : I am surprised that you should say that you only owe me $250, but until the fine is returned I will let it go that way.

"I have received from $150.00 you................................................................... "Clothes 36.00 .......................................................................................... "Balance due on 21.25 collections................................................................. 207.25 "Balance due 42.75 me................................................................................
"Please pay balance of $42.75 to Mr. Denmark, and oblige, "Yours, respectfully, etc., "THOMAS B. KEPNER." The sum of $42.75 was paid by Hing as directed by this letter, and on the 12th of August, 1901, all sums then due from Hing to Kepner had been paid, and Hing so understood it. Two days later, namely, on the 14th of August, 1901, although he had not yet received the return of the fine, Kepner notified Hing that the military authorities had remitted the fine and requested him to call the next day " and pay his bill in this case, amounting as per agreement to $750, Mexican currency," apparently reviving his claim under the second contract and adding $500 for an alleged completion of the third contract. Hing refused to pay, saying that nothing was due or would become due until the fine and the flour were recovered. On the 24th of August Kepner received $200 from Hing as a loan, according to the latter, as a payment on the second contract, according to the former. How anything could have become due in view of the settlement of August 12, 1901, and in view of the fact that the fine had not been repaid, does not appear. Although the fine was remitted and an order made for its return, Kepner found that the money

had been turned into the Insular Treasury, and that he could not get it without an act of the Commission authorizing its payment. The mere fact that this formal act of the Commission was required to get money out of the Treasury caused Kepner, if he is to be believed, to despair of ever recovering the fine, and he threw up the case. According to his account he was induced to take it up again, however, for a consideration, to wit, 50 per cent of the amount recovered, which he says Hing agreed to pay. Hing says he did nothing of the kind. However that may be, the appellant wrote a letter to General Chaffee, asking to refer the matter to the Commission for an appropriation bill, and on the 20th of September a warrant in favor of Aun Tan for $1,000, gold, was drawn on the Insular Treasury by the Civil Governor and countersigned by the Auditor. The Treasurer, on the face of the warrant, executed an order to the Chartered Bank of India, Australia and China to pay the warrant, and the same was then delivered to Kepner. Kepner requested Aun Tan to either indorse it or give him power to cash it, and Aun Tan positively refused to comply. Kepner then told Hing that he would put the warrant in his safe until they could reach some agreement. On the 23d of September the following letter was written to Hing by Kepner : "Mr. O. C. HING, "Calle Magallanes, No. 19, Intramuros. "MY DEAR SIR: I have to inform you that if you do not settle your account with me before Tuesday noon (September 24) or indorse the draft I hold I shall sue you and foreclose my lien on the draft. "Yours respectfully, etc., "Thomas E. Kepner." On the very same day, September 23, without waiting until the following day, as indicated in his letter, Kepner, in the very teeth of Aun Tan's refusal to indorse the draft or to authorize its collection, wrote Aun Tan's name on the back of it by himself as attorney, presented it to the bank, represented that he had a power of attorney to make the indorsement, and had the full amount of the warrant credited to his account. He would not say that this account then amounted to more than $5.40. On the very same 23d day of September, exclusive of the check to Hing, he drew checks against the $1,000, gold, or $2,000, Mexican, so credited to him, for more than $1,217.50, Mexican, to pay personal bills, so that on the 24th of September, when he handed Hing a check for $450, Mexican, and his receipted bill for $1,550, Mexican, the whole $2,000, Mexican, had not only been actually appropriated but more than $1,200, Mexican, of the sum had been actually expended by Kepner in payment of personal accounts. The sums paid by Hing to Kepner were $300 retainer on the first contract, $250 for the acquittal of Wong Cheong under the second contract, and $200 advanced on the third contract for the return of the fine and the flour$750 in all. According to Kepner there accrued to him $300 for his retainer on the first contract, $500 under the second contract which he claims was unconditional, $1,000 for having secured the return of the fine, and $500 for having attempted to obtain the redelivery of the flour, which feat, he says, he knew could not be accomplished, and for the doing of which, he says, he never had any understanding whatever with either Hing, Wong Cheong or Aun Tan$2,300 in all. He admits receiving from Hing the sum of $750, leaving a balance of $1,550, which he paid to himself by cashing the warrant and crediting the

entire proceeds to his account. That is to say, Kepner's charges for services amounted to $300 more than the whole amount of the fine. The appellant's account of his transactions with his clients is such that his credit as a witness is wholly destroyed as to the disputed facts of the case. His own story shows him to be a man lacking in principle and wholly unworthy of the honorable profession to which he unfortunately belongs. He may have been entirely right in canceling his first contract to defend the accused Chinamen for a retainer of $300 and $700 additional, contingent on the result. But why did he. wait from March 24 until May 1, the eve of the trial, before doing so? Was it to diminish the chance of the engagement of other counsel and so force his clients to accept such terms as he might offer? He may not have been actuated by any such motive, but in view of his subsequent conduct it smacks of it. The circumstances may have justified his agreeing for a fee of $500 to obtain a return of the fine which had been justly imposed on Aun Tan, whom he knew to be guilty, but what is his justification for breaking his agreement in the very moment of success and forcing his clients to agree to pay double his fee for the very same service? Why did he state to Hing after the fine had been remitted by competent authority that he could not recover the money when all that remained to be done was a mere authorization of the Commission which would have been conceded, as it Avas, for the bare asking? Was it to give him an excuse to extort from his clients an additional fee of $500 for the very trivial service of writing a letter to General Chaffee asking him to notify the Commission that the fine had been remitted in order that an appropriation bill might be passed enabling1 the withdrawal of the money from the Insular Treasury? What right did he have to collect $500 for endeavoring to obtain a return of the confiscated flour, a charge which he admits was for a service impossible of accomplishment and wholly unwarranted by any understanding whatever with his clients? But if he can fairly explain all this, under what rule of law or morals does he justify his act of representing to the bank that he had authority from Aun Tan to collect the insular warrant when he knew that such authority had been definitely, positively, and expressly refused? Kepner's own testimony justifies the court in concluding that he sought to take a grossly unfair advantage of a confidential relation, and that he is unworthy of credence. The second agreement, as testified to by Hing, is therefore accepted by the court and Kepner's account as to that agreement and the subsequent agreements is rejected. Considering that all he accomplished for his clients was to save them from fine or imprisonment in conformity with the second contract, and considering that he was paid $750 for the service, there only remained $50 due him at the time he cashed the warrant. He therefore unlawfully misappropriated $1,500, viewing the case from the standpoint that the money was the money of Aun Tan and giving Kepner credit for the $450 check delivered to Hing. But if we admit the truth of all that the accused says, if we forget that he took out of the warrant $500 for services rendered to secure the flour without either contract, agreement, or understanding with his clients to justify it, if we concede that in all his transactions with Aun Tan he acted in good faith, he is nevertheless guilty of the crime of estafa. The warrant delivered into his hands, drawn by the Insular Government in favor of Aun Tan on the Chartered Bank, was the property of Aun Tan, but the money which it represented was not, until it had been delivered to the bank for payment, properly and legally indorsed by Aun Tan, or by his authority. Aun Tan had no money in the bank and no monetary loss was inflicted on him by illegally cashing his warrant. The injury to him was the delay, annoyance, and damage caused by the unlawful misappropriation of the warrant. In a word, the bank would have been compelled to pay Aun Tan the amount of the warrant, notwithstanding a previous payment to

Kepner. If this be so, on the undisputed facts in the case the defendant withdrew from the Chartered Bank and appropriated to his own use $2,000, Mexican, of its funds by representing to the bank that he had a power and authority which he did not possess, and that constitutes the crime of cstafa under the provisions of article 535, subdivision 1, of the Penal Code. The allegation of the complaint that the unlawful misappropriation of the proceeds of the warrant was to the prejudice of Aun Tan may be disregarded by virtue of section 7 of General Orders, No. 58, which declares that when an offense shall have been described in the complaint with sufficient certainty to identify the act, an erroneous allegation as to the person injured shall be deemed immaterial. In any event the defect, if defect it was, was one of form which did not tend to prejudice any substantial right of the defendant on the merits, and can not, therefore, under the provisions of section 10 of the same order, affect the present proceeding. It has been stipulated between the appellant and the fiscal that certain affidavits may be considered as evidence on the review and examination of the record by this court on appeal. These affidavits show that Kepner on the 12th of October, 1901, after the question of the validity of his indorsement had been called to his attention by the bank, volunteered to make good to the bank any deficiency which might exist between his account and the amount of the warrant, and that to make this amount good he deposited with the bank, after his arrest and on the 30th of October, 1901, $2,000, Mexican. The affidavits further show that on the 10th of May, 1902, he effected a full, voluntary, and satisfactory settlement with his client of all financial differences. His promise to return the money about the time he was threatened with arrest, and his subsequent return of it after his arrest, as well as the settlement of his financial differences with his clients, constitute no defense to the crime, which, if committed at all by him, was committed on the 23d of September, 1901. Eestitution m not even an attenuating circumstance under article 9 of the Penal Code. It is a matter to be considered solely by the Executive in the exercise of the pardoning power. The judgment of the lower court acquitting the defendant is reversed with costs against the respondent. Taking into consideration all the evidence in the case the court finds: First. That the defendant received on the 21st of September, 1901, from the Insular Government for the use and benefit and as the property of his client a certain warrant drawn in favor of said Aun Tan for the sum of $1,000, gold, which the Insular Treasurer, by proper order on its face, directed the Chartered Bank of India, Australia and China to pay to said Aun Tan. Second. That said defendant, against the will and without the consent of said Aun Tan, wrote the name of Aun Tan by himself as attorney on the back of said warrant and presented the same to the said bank for payment. Third. That he represented and stated to said bank that he had a power of attorney from Aun Tan to make such indorsement, and that his representation and statement to that effect to the bank was false and untrue, as he, the said defendant, well knew when he made it. Fourth. That in consequence of said unauthorized indorsement by the defendant and his

aforesaid false representation and statement to the bank said warrant was cashed, and the whole amount thereof, $2,000, Mexican, credited to appellant's personal account in said bank on the 23d of September, 1901. Fifth. That afterwards, and on said 23d of September, 1901, defendant used of said sum so credited to his said account more than $1,217.50, Mexican, and possibly |1337.50, Mexican, for the payment of personal bills and expenses. Sixth. That on the 24th of September, 1901, defendant delivered to O. C. Hing for Aun Tan his personal check on said bank for $450, and his receipted bill of $1,550 for services rendered, but that said check was never cashed by Aun Tan nor was said bill for $1,550 accepted as correct or just. Seventh. That neither on the 23d of September, 1901, nor on the 24th of the same month and year was any greater sum due from said Aun Tan to said defendant than the sum of $50, Mexican. Taking into consideration the provisions of article 534, article 535, Nos. 1 and 5, and article 58 of the Penal Code, the court finds as a conclusion of law from the foregoing facts that the defendant, Thomas E. Kepner willfully, illegally, fraudulently, and feloniously misappropriated and converted to his own use said warrant and the sum of money which he collected thereon, and that he is guilty of the crime estafa within the intent and meaning of article 535, subdivisions 1 and 5, of the Penal Code. Wherefore, by reason of the law in such.cases made and provided and the articles of the Penal Code above cited, the court orders and adjudges that the defendant, Thomas E. Kepner, be, and he is hereby, condemned to one year eight months and twenty-one days of presidio correccional , and to the suspension from every public office, profession, trade, and right of suffrage, with costs. Taking into consideration that the amount collected on the warrant was returned to the bank on the 30th of October, 1901, and that all financial differences between the defendant and Aun Tan were finally amicably settled in May, 1902, no judgment for the return of the money is made, but it is ordered and adjudged that the warrant which forms a part of the record herein be returned to Aun Tan and that the clerk attach to the record a duly certified copy of said warrant in lieu thereof. So ordered. Arellano, C. J., Torres, Cooper, Willard, and Mapa, JJ., concur. Ladd, J., disqualified.

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G.R. No. 571, October 11, 1902

THE UNITED STATES, COMPLAINANT AND APPELLANT, VS. THOMAS E. KEPNER, DEFENDANT AND APPELLEE. D ECIS ION
SMITH, J.: The defendant in this case was brought to trial in the Court of First Instance of Manila on the charge of estafa, and after a full hearing of the case he was acquitted. From the judgment of acquittal the prosecuting attorney took an appeal to this court by virtue of the provisions of General Orders, No. 58, sections 43, 44, et seq. , and the defendant now asks that the appeal so taken be dismissed on the ground that the Government is "not entitled to an appeal from a finding of not guilty and a judgment of acquittal in a criminal case." A similar motion heretofore made by counsel for the accused was denied by this court. The renewal of the motion is based on the theory that that portion of the "Philippine Bill" recently passed by Congress which secures a defendant against more than one jeopardy of punishment for the same offense ought to receive the same construction given like provisions in the Constitution of the United States and the constitutions of various States of the Union, and that therefore the previous ruling should now be reversed. The court is still of the opinion that no jeopardy attaches to the defendant until the judgment for or against him has become final, and that the act of Congress temporarily providing for the administration of affairs in the Philippines affords no ground for any change in the ruling made on the first motion. Now, as then, the question is, Has the defendant been placed once in jeopardy by his trial and acquittal in the lower court? If he has, then he can not again be tried on the same charge, and the appeal ought not to be entertained, as no result could follow its determination. If he has not, then the appeal must be heard and determined in conformity with the law of procedure now in force in these Islands. All civilized peoples are substantially agreed that when a person accused of crime has been once finally convicted or acquitted of the charge against him he ought not to be vexed again by a prosecution for the same offense. The plea of once in jeopardy is the res adjudicata of the criminal case. But just when the right to the plea accrues, just when a defendant may call it to his protection and avail himself of it as a shield against further prosecution on the same charge has presented, particularly to some American courts, difficulties which, by the way, do not arise from any perplexities inherent in the plea itself, but rather from a more or less rigid adherence to a long line of precedents which nobody seems willing to disturb but which nearly all admit have now but little if any sound reason to support them. Formerly, in England, the right to plead jeopardy after an acquittal or conviction was the necessary adjunct, the indispensable auxiliary of the trial by jury, inasmuch as the right of trial by his peers, reluctantly conceded as a remedy for judicial abuses, would have availed th citizen but little if the verdict of the twelve men, good and true, had been left to the mercy of a pliant judiciary who were the mere creatures of the authority or influence which made them. Hence, no appeal was permitted from the verdict of the jury or from the judgment entered in

conformity with it. Both were final, and therefore the jeopardy became complete, not because there had been a conviction or an acquittal but because the question of innocence or guilt, of punishment or no punishment, had been finally determined beyond all possibility of judicial change or alteration. From the fact, however, that the verdict of the jury marked the final and definite determination of the proceeding, it came to be regarded as the test of whether or not there was a complete jeopardy, and from this in its turn arose the correlative principle that once the trial had been begun before a competent court and jury, upon a valid indictment, no step backward being possible, any discharge of the jury not resulting by consent of the prisoner or from a cause beyond the control of the court, perfected tt jeopardy of the accused which he might plead in any subsequent prosecution against him on the same charge. This construction, by which the verdict of the jury and not the final determination of the case was made the test of an accrued jeopardy, could affect no rights in England, either of the State or of the accused, inasmuch as the same result had to follow whether one construction or the other was adopted. In some few States of the Union, however, whose constitutions gave voice to the common-law maxim that no man should be brought in jeopardy twice for the same offense, the acceptance of the verdict of the jury as the sole test of the accomplished jeopardy resulted in the reading into the constitutional provision the finality of a verdict of acquittal and the enunciation of the consequent doctrine that from a verdict of acquittal there could be no appeal,v even though such a step were expressly authorized by statutory enactment. This, too, although the courts of these very States found it entirely consistent to uphold the right of an accused to appeal from a judgment of conviction and secure a new trial upon the convenient doctrine, lugged in by the ears, that by taking an appeal the defendant waived his right to plead jeopardy. That is to say, he waived his pleaa most substantial rightwhen he sought by appeal to have an illegal conviction set aside for errors committed against him; but when the State invoked the same remedy to vacate an illegal acquittal secured, let us say, by his successful objection to proper, competent, and material evidence, of his guilt, he waived nothing. The proposition that a person accused of crime is entitled to have an illegal and improper judgment against him modified, corrected, and set aside and that the State can have no relief against a similar judgment in his favor, has neither sound sense nor sound law to support it. It prevents uniformity in, the administration of justice and strikes at the ultimate purpose of all jurisprudencea correct judgment, legally obtained. The defendant has no higher right to be protected against an improper conviction than, has the body politic to be secured against an unlawful acquittal and a miscarriage of justice. At first, when judges were the corrupt and willing tools of tyrannical power, there may have been good reason for not permitting an appeal by either side from the verdict of twelve men duly selected to try the case, but when the courts became good enough to pass on the validity of a verdict of conviction, it would seem that they might be safely trusted to pass on the legality of a verdict of acquittal. When the reason for the rule ceased, the rule ought to have ceased with it, and at all events it should not be read into the organic law as a limitation on legislative power to provide a proper remedy for the correction of judicial errors and mistakes. But even if the cases cited by respondent (People vs. Weber, 38 Cal., 467, and 19 111., 342) are correct in construing that the constitutional provision on jeopardy makes the judgment of acquittal final and beyond attack or impeachment, their authority is of little avail in support of the motion unless it can be further shown that Congress adopted the jeopardy clause of the "Philippines Bill," not in the light of existing insular laws but in the light of a judicial construction applicable at best to jury trials, which have not now, never have had, and are not

likely to have in the immediate future any place in the jurisprudence of the Archipelago. The court is of the opinion that Congress did nothing of the kind. Any other conclusion would lead to the assumption that Congress intended the provision under discussion to be interpreted by precedents not only. far from satisfactory to many of the best jurists of its own country but wholly at variance with the judicial system, procedural law, and established precedents of the people for whose benefit the law was enacted. Before the change of sovereignty there never was in the Philippine Islands any finality to the judgment .of the trial court in felony cases until it had been ratified and confirmed by the court of last resort. Such a judgment was merely advisory to the appellate tribunal, and might be modified, set aside, or changed, on a review of the record, either to the benefit or the prejudice of the defendant, with or without an appeal. Whether the Court of First Instance acquitted the defendant or convicted him, he could not be placed at liberty in the one case or receive the punishment adjudged in the other until the reviewing authority had finally affirmed the judicial determination of the lower court. More than that, if the trial court acquitted the accused, the Audiencia (Supreme Court) might convict him, and if he was convicted it might raise or lower his punishment or even acquit him altogether. This was the law of the land when the change of sovereignty took place, and it has only been modified since to the extent of making the judgments of Courts of First Instance in felony cases (except those for capital offenses) final unless an appeal has been taken either by the Attorney-General or the accused. So then, so now: Once a criminal cause is before the court, whether on appeal or on review, the judgment may be changed, altered, or reversed as to the appellate tribunal may seem proper. Not being inconsistent with the act of Congress, this law can not be construed to have been repealed by implication, and it must be held to be now in full force for the purposes it was designed to affect. To be in jeopardy in the legal sense it is. not sufficient that the danger should have begun. It must also have ended before the plea can be made effectual. Jeopardy is not the peril of more than one trial, but the peril of more than one punishment, and in the same proceeding there can be no danger of a second punishment until the first has been finally adjudged. Attention is called to the following decisions of this court and its immediate predecessor: D. Juan Garcia vs. D. Cesar Lopez Gascon, Criminal Branch Supreme Court of Justice, P. I., September 12, 1900; United States vs. D. Mateo Perez, Supreme Court, P. I., April 9, 1902. For the foregoing reasons the court is of the opinion that respondent's motion to dismiss the appeal taken by the Government must be denied, and it is so ordered, with costs against the moving party. Arellano, C. J., Torres, Cooper, Willard, Ladd, and Mapa, JJ., concur.

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G.R. No. 574, December 17, 1902

THE UNITED STATES, COMPLAINANT AND APPELLEE, VS. BONIFACIO MODAMA, DEFENDANT AND APPELLANT. D ECIS ION
COOPER, J.: The defendant, Bonifacio Modama, was charged with the offense of the theft of $1,000, United States currency, and has been convicted by the Court of First Instance and condemned to the punishment of three years six months and twenty days of presidio correccional and to the restitution to the injured party of the amount stolen, arid in the event of insolvency to subsidiary imprisonment in satisfaction of the amount, with costs of the proceedings, from which judgment he appeals to this court. The testimony shows that on the 12th day of November, 1901, Captain White, who was a guest at the Giralda Hotel in the city of Manila, had, in the inside pocket of his hand satchel, $1,000 in $20 gold certificates, United States currency, nearly all new, which satchel he took with him into his room at the hotel and placed under the head of the bed; that about five o'clock in the afternoon he and his family absented themselves from the room for a couple of hours, and that at about ten o'clock that night upon opening his satchel he found that the money had disappeared; that the door of his room was unlocked, it having been left open in order that the muchacho, who was the defendant, should have entrance to the room for the purpose of arranging it; that the defendant failed to put in an appearance at the hotel the next day, and the complainant thereupon reported the loss of the money and the circumstances to the Chief of the Secret Service for investigation. The matter was placed in hands of detectives with the description which had been given of the defendant. The defendant was arrested at a saloon in the city of Manila, and upon his person was found the sum of $280 in $20 gold bills. He was taken to the police station, and being questioned by the Chief of Police as to where he got the money replied that he was a servant of an American captain and that he entered his room to make up the bed with another muchacho called Juan Mendoza, and that they took the money and divided it between them. Upon being interrogated as to his place of residence the Chief of Police and a detective accompanied him to his house. They searched the premises and found various articles belonging to the Giralda Hotel, and noticing the strange deportment of the wife of the defendant, who had her hand upon her breast and seemed much disturbed, the officer seized her by the wrist and drew her hand from her bosom and found in it five bills of $20 in gold and two bills of five dollars, gold, each. Upon being asked where she got the money she stated that the defendant had given it to her; she stated that she had already used a $20 bill in the purchase of some jewelry. The defendant being asked by the officer if this money was taken from the same place as he had taken the other money replied in the affirmative. He was asked what he had done with the rest of the money, and said that a muchacho called Juan Mendoza had the remainder. This occurred in the presence of the Chief of Police and of the officer. The money was identified by the owner as bills having a similar appearance to those which he had lost. We think this evidence shows clearly the theft of the property by the defendant as alleged in the complaint. Under article 518, No. 1, of the Penal Code the theft of an amount exceeding 6,250 pesetas is punished by presidio correccional in its minimum and medium degrees. It. is contended by

counsel for the defendant that the amount of money found on the person of the defendant and that taken from the possession of his wife was less than 6,250 pesetas, and that the defendant should receive the punishment of arresto mayor. All of the money amounting to $1,000, was taken from the satchel, and if the defendant himself did not appropriate to his own use the entire amount, still it is evident that the amount of $1,000, gold, was taken by him. It is immaterial whether he made the division claimed to have been made of the money or not The defendant was indicted under article 518 of the Penal Code. He might have been charged with the offense defined in article 520 of the Penal Code, under which he would have been punishable with the penalty next higher in degree, it being shown that he was a domestic of the Giralda Hotel at which the complaining witness lived at the time, but the fact that he was such domestic has not been alleged in the complaint, which should have been done in order to sustain a conviction under article 520. The indictment not having been drawn under this section this circumstance can not be considered as qualifying the offense and raising it to a higher degree. However, under paragraph 10 of article 10 the law defines and enumerates circumstances which aggravate criminal liability and when the act is committed with the abuse of confidence those circumstances may be considered without the necessity of alleging the aggravating circumstances. Taking into consideration paragraph 10, article 10, as an aggravating circumstance, and giving the defendant the benefit of article 11 as reducing the penalty, the defendant is guilty of the offense punishable with that of presidio correccional in the medium degree, the minimum of which is imprisonment for the period of three years six months and twenty-one days, which we think is the punishment applicable to the case as proven. This is substantially the penalty fixed by the lower court. The judgment of the lower court is affirmed and the defendant, Bonifacio Modama, is condemned to the punishment of three years six months and twenty-one days of presidio correccional, and to the restitution to the complaining witness, George White, of the sum of $1,000, gold, less the sum of $485, gold, taken from the possession of the defendant, and in case of insolvency to subsidiary imprisonment at the rate of one day for each twelve and onehalf pesetas, the amount of subsidiary imprisonment not to exceed one year, together with the costs of the proceedings. Arellano, C. J., Torres, Smith, Willard, and Mapa, JJ., concur. Ladd, J., disqualified.

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G.R. No. 581, February 14, 1902

IN THE MATTER OF THE APPLICATION OF A. W. PRAUTCH FOR A WRIT OF HABEAS CORPUS. D ECIS ION
COOPER, J.: The petitioner, Arthur W. Prautch, makes application to this court for a writ of habeas corpus and a writ of certiorari, alleging in his petition that he is unlawfully held by the Sheriff of Manila by an order made by the Court of First Instance in a civil suit pending in that court, under article 412, Code of Civil Procedure (1901), which provides for the arrest of defendant in certain civil cases. It is alleged in the application that the suit in the Court of First Instance is based upon a cause of action which arose between the plaintiff and defendant on the 20th day of August, 1900, and it is contended that the court did not have jurisdiction to make the order of arrest, because at the date of the making of the contract there was no law then in existence authorizing an arrest in civil cases, such provision having been enacted by the Code of Civil Procedure, which went into effect the 1st day of October, 1901. It is insisted that to sustain the proceedings would be giving the law a retroactive effect and that it would impair the obligation of the contract, and that a new remedy has been provided which changes the legal character and effect of the contract by taking aAvay a vested right acquired under an existing law, creating a new obligation, imposing a new duty, and attaching a new disability in respect to the transaction or consideration already passed. We think that the principle invoked is inapplicable to this character of remedy. The right to imprison for debt h not a part of the contract. (Sturges vs. Crowninshield, 4 Wheat., 200; Odgen vs. Saunders, 12 Wheat., 230; U. S. vs. Quincy, 71 U.S., 409; Sutherland on Statutory Construction, 625.) If the right to imprison for debt is not a part of the contract the converse of the proposition is also true, that the right to exemption from imprisonment for a debt does not form a part of the contract. Such statutes are regarded us penal rather than remedial. They are enacted to pre vent fraud in the making of contracts, or to prevent the subsequent fraudulent conduct of parties with reference to their obligation, and are properly invoked as a punishment for dishonesty. It does not appear from the application whether the affidavit upon which the arrest was based set forth the fraudulent acts as having been committed at a time before or after the Code of Civil Procedure went into effect, and consequently it is not necessary to consider whether the statute as to prior acts would in its nature be an ex post facto law, and as to what would be the"effect of a statute in such case. There are other considerations equally conclusive against the right of petitioner to the writ. By the provisions of section 528 of the Code of Civil Procedure (1901), if it appears that the person alleged to be restrained of his liberty is in the custody of an officer under process issued by a court or magistrate or by virtue of a judgment or order of a court of record, and that the court or magistrate had jurisdiction to issue the process, render the judgment, or make the order, the

writ shall not be allowed. The Court of First Instance had jurisdiction both of the subject-matter and of the person; the remedy for arrest is provided by statute and the question as to the sufficiency of the grounds is for the determination of the court. That the affidavit for the arrest is based upon insufficient grounds or that the claim upon which the suit is based is without foundation in law are questions to be determined by the Court of First Instance, and should error be committed the defendant may appeal from the decision of the court. It is true that an appeal can not be taken to an interlocutory order, but upon the rendition of a final judgment disposing of the action either party has the right to perfect the bill of exceptions for a review by the Supreme Court of all rulings, orders, and judgments made in the case to which the party has duly excepted at the time of the making of such ruling, order, or judgment. (Sec. 143, Code of Civil Procedure, 1901.) That the defendant may suffer unjust imprisonment while waiting for a final judgment is a question to be addressed to the legislative power. To prevent such result all reasonable safeguards have been placed around the remedy. The order of arrest is made by the judge; an affidavit is required to be made by the plaintiff, or some other person who knows the facts, that a sufficient cause of action exists, and that the cause is one of those mentioned in section 412. Before making the order the party applying for it must execute to the defendant an obligation in an amount to be fixed by the judge, and with sufficient surety to be approved by him, conditioned that the plaintiff will pay all costs which may be adjudged to the defendant, and all damages which he may sustain by reason of the arrest if the same shall finally be adjudged to have been wrongful or without sufficient cause. And, finally, the defendant arrested may at any time before the trial of the action apply to the judge who made the order, or to the court in which the action is pending, upon reasonable notice, to vacate the order of arrest or to reduce the amount of bail. Upon such application the judge or court shall grant an immediate hearing, after notice to the parties, and upon hearing make such orders as appear to be just as to continuing the order of arrest or vacating same or reducing the amount of bail required. (Secs. 413, 414, 415, 423, Code of Civil Procedure, 1901.) Without considering the question of the practice of joining in the same petition an application for both habeas corpus and, certiorari, it is clear that a writ of certiorari can not be granted in such a case as is presented here. Under the provisions of the Code in certiorari proceedings, it is necessary that it should appear both that the inferior court has exceeded its jurisdiction and that there is no appeal from such court. (Code of Civil Procedure, 1901, sec. 217.) The application for writ of habeas corpus and certiorari is denied, and costs taxed against petitioner. Arellano, C. J., Torres, and Mapa, JJ., concur. Ladd, J., did not sit in this case.

CONCURRING WILLARD, J.: I concur with the opinion of the majority in the denial of the petition, but my opinion is based upon the following reasons: The affidavit upon which was issued the order of arrest contains this clause, "that the said Arthur W. Prautch has concealed or disposed of all the money appropriated and not paid by him as aforesaid, and has removed and disposed of all his property and of all the property of the house of Prautch, Scholes & Co. aforementioned with intent to defraud his cceditors." It does not appear whether this act took place before or after the 1st of October, 1901, when the prevailing Code of Procedure went into effect. If it took place after this date it could not be seriously contended that the law did not authorize the arrest. Supposing that on the date on which the debt was contracted the debtor might have had the right to defraud his creditors by means of such transfers, to contend that such a privilege continues attached to the debt in such a manner that the law can not take it away would be to contend that an individual could have a vested right to defraud his creditors. It was the duty of the petitioner to show that the court had committed error, and therefore the burden was upon him to prove that the act in question took place before the 1st of October. Not having done so he can not raise the question of whether or not the arrest can be ordered for a cause arising prior to said date, and we do not decide that question. It remains to be considered whether the alleged defects in the affidavit, pointed out by the petitioner, affect the competency of the court in such a manner as to make null and void the order made by virtue of the same, or whether said order was merely voidable and the error which has been committed in making the same was one of those which can be remedied by means of an appeal. The Supreme Court of the United States has said: "It may be confessed that it is not always very easy to determine what matters go to the jurisdiction of a court so as to make its action when erroneous a nullity. But the general rule is, that when the court has jurisdiction by law of the offense charged and of the party who is so charged, its judgments are not nullities." ( Ex parte Bigelow, 113 U. S., 328.) In this case we have an action pending in which the court below has jurisdiction. We have a law which authorizes the arrest when the cause of action has accrued after the 1st of October. We have a defendant who committed an act after the said date which warrants his arrest. Under these circumstances the court has the right to order his arrest. According to the text of the Code the court "has jurisdiction to issue the writ or make the order."(Art. 528.) The jurisdiction of the court does not proceed from the filing of the affidavit but rather from the existence of the facts above set forth. Considering the existence of facts which may confer jurisdiction the question of whether those facts are presented in such a manner in the affidavit as to invoke the exercise of this jurisdiction is one which the court has the same right to

determine as it would have in the decision of any other questions which might arise in a matter within its cognizance. In the exercise of this power it may issue an erroneous order, but such an order is not absolutely void; unless it is remedied during the same action by means of an appeal or otherwise, it will have the effect of a valid order. The Court of First Instance should not give a judgment upon a complaint on a promissory note which does not state a cause of action, but if it does so its judgment is valid unless it is reversed by means of appeal. We can not defer to any decision of the supreme court of California which sustains a contrary doctrine. Article 528, already cited, establishes the law of these Islands, and we must submit to that. To accept the other rule would be to convert the writ of habeas corpus into a writ of error, a thing which is in no wise permissible. It would make it possible for any defendant by means of such writ to interpose an appeal to this court in all those cases in which an order of arrest should be issued and would oblige us to review the errors of law which are alleged to have been committed by the court in investigating the sufficiency of the affidavit, and this is, in our opinion, the very practice which article 528 seeks to avoid. Errors of this kind can be remedied by an appeal from the judgment. (Art. 143.) If the order was erroneous the plaintiff must answer upon his bond to the defendant for the damages and injuries which the latter suffers. (Art. 415.) That this right of appeal is not by reason of the delay in securing it an adequate remedy is a matter which should be submitted to the legislature and not to the courts, The release prayed for should be denied, with the costs taxed against the petitioner.

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G.R. No. 583, October 16, 1902

THE UNITED STATES, COMPLAINANT AND APPELLEE, VS. ISIDRO PADDIT ET AL., DEFENDANTS AND APPELLANTS. D ECIS ION
COOPER, J.: The defendants, Isidro Paddit, Marcelino Lozano, and Julian Serios, are accused of robbery en cuadrilla, resulting in homicide, in the following manner: The defendants on a night in November, 1900, in the town of San Nicolas, presented themselves at the house of Jacob de la Cruz, and after having tied him carried him to a place where the deceased had hidden a certain package, the property of Don Gregorio Mejia, which contained various articles and jewelry, and there committed the robbery and the killing of the deceased. The defendants were found guilty under the provisions of article 503, Penal Code, and the penalty of death was imposed upon them, from which judgment they have taken an appeal to this court. It was proven at the trial that on the night in question, on the occasion of the entering into the pueblo of the American Army, four persons armed with guns and bolos went to the house of the deceased, Jacob de la Cruz, and after binding his hands carried him off. Nicolasa Valdez, the widow of the deceased, testified that the three defendants were the persons who came to the house and commanded her husband to come downstairs. She lit a candle and went with her husband and recognized these three defendants; that she knew the three men because they lived in the same pueblo and barrio in which she was living; that the defendant Marcelino Lozano was a neighbor; that she had known him since her childhood; that in the month of November one Gregorio Mejia, on account of the confidence which he had in her husband, confided to his keeping a package containing the articles mentioned; that the defendants knew her husband was keeping the property of Gregorio Mejia because they saw the property when it was brought to his house; that she supposed they killed her husband in order that he might not report the matter to the authorities. That she knew they were killing her husband after taking him away, because he called to her aloud just before they succeeded in killing him in a phrase used by the natives in bidding goodbye just before death; that about one hour and a half afterwards, on the return of her father, she told him what had happened, and they immediately went out and found the body of Jacob de la Cruz. He had five wounds on the breast and one on the back near the spinal column; it was east of the house that her husband was killed, near the place where the package was buried. She went to look for the package next day after her husband was killed and found that it was gone. This witness was corroborated in her statements, as to the carrying off of her husband on the night in question, by Gregorio Mejia, Vicenta Valdez, and Lorenza Javellana, and as to the finding of the body and the character of the wounds which had been inflicted upon him and the disappearance of the articles mentioned. The defense offered the witnesses Joaquin Martinez; Eugenia Vicente, wife of Isidro Paddit; Juana Bibat and Oiriaca Serios, wife and daughter of Julian Serios, who testified that the three defendants were, during the whole month of November, in their respective houses; Paddit in the barrio of Santo Tomas, and Lozano and Serios in the same barrio in which the occurrence took place. We give no credence to the proof of alibi by these witnesses for the defendant. If the charge had been murder ( asesinato ) the evidence would have been entirely sufficient to

sustain the charge as qualified by alevosla, with the aggravating circumstances of nocturnity, and the sentence fof the court to the death penalty might have been sustained, but the charge is for robbery resulting in homicide. After a careful consideration of the testimony we are inclined to believe that the offense of robbery has not been proven beyond a reasonable doubt. No witness saw the taking of the package by the defendants and none of the property has been found in their possession. The property was hidden two weeks before the occurrence; there was no evidence as to the manner in which it was hidden nor whether it remained at the place or was seen there at any time from the time it was placed there two weeks previous to the time of its disappearance. By the provisions of section 29, General Orders, No. 58, a defendant may be found guilty of any offense the crime of which is necessarily' included in the charge under the complaint and information. The offense of homicide is included in the offense of robbery resulting in homicide, and we find the defendants guilty of homicide with the aggravating circumstance of nocturnity, which is punishable under article 404, with seventeen years and four months reclusion temporal in its medium degree. The judgment of the Court of First Instance is reversed and the defendants are each now sentenced to seventeen years four months and one day of reclusidn temporal in its medium degree, with indemnification of 1,000 pesos, Mexican, to the family of deceased, and costs of suit. Arellano, C. J., Torres, Willard, and Ladd, JJ., concur. Smith and Mapa, JJ., did not sit in this case.

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G.R. No. 586, April 30, 1902

MARTINIANO VELOSO Y GREY, PLAINTIFF AND APPELLANT, VS. BENITA PACHECO, DEFENDANT AND APPELLEE. D ECIS ION
WILLARD, J.: On September 28, 1901, the plaintiff brought an action of unlawful detainer in the Court of First Instance of Manila. On the same day the judge entered an order directing that the case be tried in accordance with the provisions of article 1571 of the Law of Civil Procedure then in force. In the course of the proceedings counsel for the defense offered the testimony of the defendant as a witness on her own behalf. The judge rejected this evidence, ruling that under the Law of Civil Procedure by which the case was being tried the parties themselves could not be witnesses. Judgment was rendered December 20, 1901, in favor of the plaintiff. On January 4, 1902, the defendant moved for a new trial under the provisions of .articles 113 and 145 of the Code of Procedure in Civil Actions and Special Proceedings now in force. By an order of January 13 the judge granted the petition, and against this order the plaintiff appealed. It has been noticed that this case was commenced only two days before the present Code went into effect. As a pending case on October 1 it fell within the class described in article 795, 4 thereof. The court, however, in the proceedings up to and including the judgment applied the provisions of the Ley de Enjuiciamiento Civil . In granting a new trial after the judgment he applied the Code now in force. The important question in this case is this, Do the provisions of articles 113 and 145 apply to all judgments entered after October 1, 1901, or do they apply only to those judgments entered after that date in actions in which the proceedings prior to the judgment were in accordance with the present Code? We have concluded that they apply to all judgments entered after October 1. By the provisions of the Ley de Enjuiciamiento Civil a judge of the Court of First Instance after the entry of judgment had no power to set it aside or change it. (Art. 34(5.) The right to secure a new trial on the ground, for example, of newly discovered evidence did not exist in the law in force prior to October 1, 1901. Neither the Court of First Instance nor the Audiencia nor the Tribunal Supremo had such power. The recurso de revisionbefore the Tribunal Supremo, denned in article 1778 et seq., . was much more limited in scope than the provision of article 145, 2, of the Code now in force. In short, the latter Code gives remedies which did not exist under the former law. To our minds the question it not whether one procedure shall be followed or another. The question is whether a remedy not given by the former procedure can be added to it. It is not a case of substitution, but of addition. Let us suppose that the former law allowed no appeal where the judgment was for less than 100 pesos. The present law allows an appeal in all.cases. It seems clear that any judgment entered after October 1, 1901, would be appealable regardless of the law under which the case was tried. Article 795 apparently gives the courts some discretion in the matter of applying one or the

other procedure to pending cases. One or the other is to be applied so far as it can conveniently be done. It could not have been intended by the legislative body that the application of article 145 should rest in the discretion of the judge. Whether that shall or shall not be applied can not be a matter of discretion. If it could be conveniently applied in any case it could in all cases. We do not think that the question is to be resolved with reference to article 795. Article 145 either is applicable by its own force or it is not. It either applies to all cases pending on October 1,1901, or it applies to none. It was not left to the discretion of the judge to hold it applicable in one case and not in another. By using the word "applicable" we, of course, do not mean to say that the court would have to grant every motion made under said article. We simply say that he would have to consider every motion and decide each one upon its own merits; in other words, that a party is entitled to the benefit of these articles if he can bring himself within their terms. The legislative body was of opinion that after judgment a new trial should be granted for newly discovered evidence. That opinion rested upon considerations entirely apart from the particular procedure which had been followed in the case prior to the judgment. The reasons why a party who has discovered new evidence should be allowed a new trial have nothing ifco do with the fact that his case was tried with a jury or that it was tried without one, or that the witnesses were examined in court or that they were examined before a commissioner. Two cases are commenced on September 28 before two different judges. One of them applies the former procedure and orders judgment for the plaintiff. The other applies the present procedure and enters judgment for the plaintiff. Both defendants move for a new trial on the ground of newly discovered evidence. That the one whose case was tried in accordance with the present Oode is entitled to have his motion heard is conceded. There is no reason why the other should not have the same right. There is nothing in article 145 or in article 113 which expressly limits their operation to judgments in actions commenced after October 1, or to those commenced before that date but tried in accordance with the present Code. These sections grant new remedies not known to the former procedure, and we hold that they apply to all judgments entered after October 1, regardless of the procedure which was applied to the case in its course prior to the judgment. This conclusion leads necessarily to the dismissal of the appeal. The court below had jurisdiction to.entertain this motion and decide it one way or the other. He decided it in favor of the defendant, set aside the judgment, and ordered the case retried. The new trial has not yet been had, and no final judgment has yet been entered. Such a decision of the court below is not appealable. Article 123 of the Code in force says: "Nor shall any ruling, order, or judgment be subject to appeal to the Supreme Court until final judgment is rendered for one party or the other." Article 146 distinctly says that the decision upon a motion of this kind shall not be ground for exception. For the reasons stated the appeal is dismissed. Neither party will be entitled to costs of this instance. Arellano, C. J., Torres, Cooper, Ladd, and Mapa, JJ., concur.

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G.R. No. 587, July 14, 1902

FIDEL RIVERA, PLAINTIFF AND APPELLEE, VS. PAULA DE GUZMAN, DEFENDANT AND APPELLANT. D ECIS ION
MAPA, J.: The plaintiff in bringing this action of unlawful detainer alleged that he was the possessor and owner of the lot which is the subject of the complaint, that the defendant occupies this lot, on which she has constructed a house, as a precarious tenant, and by his tolerance only without the payment of rent, and that demand was made upon her on the 31st of July, 1901, to vacate the lot within the term of thirty days, but that she failed to do so up to the 12th of September following, which is the date on which the complaint was drawn up. In support of the complaint he presented a notarial act dated the 31st of July, 1901, in which the demand made upon the defendant is recorded, and also a transcript of a possessory information presented in the Court of First Instance of Quiapo on the 11th of June of the same year, approved by order of the same court on the 17th of the said month and recorded in the registry of property of the North District of Manila on the 24th of July following. From this it appears that two witnesses testified that the plaintiff purchased the lot in question from D. Jose Torres y Osorio in the year 1898, and that since that time and up to the date on which the said possessory information was presented he has been in the peaceful and uninterrupted possession of the same. The defendant denies the facts alleged in the complaint and states that the lot which is the subject of the action belongs in fee to her and her husband, Hilario Rafael, and that therefore they are in possession of the same by virtue of the right of ownership and not as precarious tenants. The allegations of the defendant tend to show that she purchased the said lot from D. Jose Torres, who is the same person from whom the plaintiff states he purchased it in 1898. For the purpose of supporting this assertion the defendant, among others, presented the following documents: (1) A certificate of an act of conciliation effected between herself and Jose Torres, in the justice court of Intramuros, July 27,1901, in which act the now defendant, Dona Paula de Guzman, stated that some three years before she had agreed with Torres upon the purchase of the lot in question, which was then the property of the said Torres, the consideration being the sum of 270 pesos; that this was paid to him by her, he receipting for the amount stated; and that, having been infprmed that the said Torres had again sold the same lot to another person, she now made demand upon him to rescind this second sale, in case it had actually consummated, inasmuch as he was without right to sell the lot, it no longer being his. To this Jose Torres replied that his cousin, Candido de Vera, had entered into negotiations concerning the sale of this lot with a woman called Romana Baza; that two or three days after, the woman Romana returned, accompanied by Paula de Guzman, and that all three agreed upon the sale for the sum of 270 pesos, on account of which the women delivered 100 pesos to his said cousin; that subsequently Dona Agueda Asuncion, a cousin of Dona Paula (and the wife of the present plaintiff) delivered to him the remainder170 pesos; that subsequently Dona Paula and Dona

Romana presented to him and his cousin a document in which the receipt of these sums was acknowledged, which document they signed, and the same was attached to the deed; and that since that time he had made no attempt to sell the lot to any other person, inasmuch as it had ceased to be his property. (2) Another act of conciliation between Dona Paula de Guzman and Dona Antera Macario, dated the 15th of July, 1901, in which the latter acknowledged that she delivered to the former the sum of 270 pesos, with which the price of the lot purchased from Jose Torres was paid. (3) A copy of an affidavit presented by the defendant on the 9th of August, 1901, to the landtax office of the city of Manila, in which it is stated that the lot in litigation is her property. During the probatory period of this case D. Jose Torres and D. Candido de Vera testified that the sale of the said lot was effected as stated in the act of conciliation between the said Torres and Dona Paula de Guzman, and that the sale was made to Dona Agueda Asuncion. It is not necessary for us to express here our opinion as to the legal weight of this testimony because we do not consider it of any importance with respect to this decision. It is well to state that neither the plaintiff nor the defendant has presented any document whatsoever evidencing the contract of sale which they respectively allege was entered into with D. Jose Torres, the former owner of the lot in question, and that the plaintiff admits as true that when he purchased the said lot the defendant's house was already standing on it. He states that he does not know how long the building has been standing. The defendant alleges that it was built some fifteen years ago. The possessory title to the lot in question, recorded in the registry of property in the name of the plaintiff, unquestionably gives him the right to bring an action of this character, under the provisions of article 1546 of the Code of Civil Procedure; it is not, however, sufficient to show that one has capacity to sue in order to recover judgment in an action for unlawful detainer. It is necessary for him to further show that the defendant falls within one of the provisions of article 1.547 of the said law, because it is only in such cases that the action for unlawful detainer will lie. The plaintiff has done nothing more than to prove his right of possession as the owner of the lot in litigation. He has not attempted to introduce any evidence tending to show that the defendant is merely a precarious tenant occupying the lot by his tolerance, notwithstanding the fact that she denied this allegation from the beginning and affirms in turn that she is in possession of the lot as owner thereof. The plaintiff has taken the principal issue for granted and has not proved the fact which is the basis of his complaint. In view of the result of an examination of the record we do not consider it sufficiently proven that the possession of the defendant is merely precarious, especially in view of the fact that she was in possession of the lot when the plaintiff purchased it, as he himself has admitted in the trial. From this it would appear to be a logical conclusion that she did not enter into possession of the lot by mere tolerance of the plaintiff as alleged by him in his complaint. It is possible that the possession of the defendant may have resulted originally from a gratuitous license of the former owner of the property or from a contract of lease entered into with him, but as this point was not in issue at the trial it can not be passed upon in our decision. It is evident that if there was a contract of lease the defendant can not be regarded as a precarious tenant, because this is not the legal character of the possession of lessees. It not having been clearly proven that the defendant is merely a precarious tenant of the lot in

question and of which she claims to be the owner, we are of the opinion that the eviction prayed for by the plaintiff can not be granted. The parties should determine their respective rights in the corresponding declarative action. The burden is upon the plaintiff to establish all the facts which are necessary to show that he is entitled to recover in an action of unlawful detainer, and in case he fails to do so his action must be dismissed. (Judgment of the supreme court of Spain, January 29, 1897.) The supreme court of Spain has also held, in a judgment dated April 8,1897, that controverted claims as to property rights can not be passed upon in an action of unlawful detainer, it being the duty of the courts in such cases to do nothing more than to examine and pass upon the propriety of the action brought with respect to the person sought to be evicted. Although the title shown by the plaintiff might be sufficient in another action to show that the defendant is without rights, it can not produce the effect of disturbing the actual situation de facto of the parties. We therefore reverse the judgment appealed and hold that the eviction prayed for by D. Fidel Rivera must be denied, reserving to the parties the right to determine their respective claims in the proper action, without special imposition of costs herein. So ordered. Arellano, C. J., Torres, Cooper, Willard, and Ladd, JJ., concur.

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G.R. No. 589, August 20, 1902

THE UNITED STATES, COMPLAINANT AND APPELLEE, VS. FELIPE ISLA, DEFENDANT AND APPELLANT. D ECIS ION
WILLARD, J.: This is a prosecution for bigamy. It is admitted that the defendant, Felipe Isla, was married to Aleja Pascual on November 14, 1901, in the parish church of Tondo in this capital. On 5th of November, 1899, in the parish church of Santa Cruz, this capital, Felipe Isla was married to Maria Hilario, the complaining witness. The defendant claims that he is not the Felipe Isla who was a party to the marriage of 1899. The evidence to show that he was is the following: He admits that he knows Maria Hilario and that she was living with him as his mistress in 1899. She testifies that the defendant is the person whom she married. Also so testify the two witnesses to that marriage who are named in the record thereof, namely, Maximo Briseno and Alexandra de los Angeles. The defendant is a native of Paranaque. So was the Felipe Isla of that marriage. Passing the statements of the defendant's witnesses that they understood that he was a bachelor prior to his marriage in 1901 as not entitled to any weight in face of the direct evidence to the contrary, the only other ground on which the defendant rests his denial is the fact that the record of the first marriage shows that the Felipe Isla there mentioned was the son of Valentin Isla and Maria Madayag, both deceased, while the defendant testifies that he is the son of Gabriel Isla and Petra de Leon. If the only evidence of the first marriage had been this certificate, it is undoubtedly true that it would not have been sufficient to show that the Felipe Isla therein named is the defendant. But other evidence was received which proved that fact. This evidence shows that the statement in that record as to the parentage of the defendant was incorrect. The record, however, was still competent evidence to prove the marriage of a Felipe Isla, the other evidence pointing out who that Felipe Isla is. It is claimed by the defendant that he should have been convicted under article 440 of the Penal Code and not under article 471. The history of the former article is given by Viada in the Commentaries on the Penal Code (vol. 3, p. 128) as follows: "The object of the disposition of this article (455) introduced by the revisors of 1870, was to restrain the public scandal which would result from the fact of a person uniting himself in canonical matrimony after the promulgation of the Civil Marriage Law, abandoning his consort, and contracting a new marriage according to the beforementioned civil law, with another person, without the canonical having been legitimately annulled, or vice versa; both cases equally possible without resorting to intrigue and deceit from the moment that article 2 of the beforementioned law of June 18, 1870, did not recognize civil effects with respect to the persons and property of the husband and wife of their descendant, except in the case of civil marriage or that celebrated according to the provisions of the beforementioned law; and furthermore, the ecclesiastical power could very well ignore the legitimacy and validity of said civil partnerships, in which case the latter would not be an obstacle to a legal celebration of the canonical marriage between persons

distinct from those who were only bound by a civil tie. "But from the time that article 1 of the royal decree of February 9, 1875, conceded all the civil effects recognized by the laws of Spain until the promulgation of the 18th of June, 1870, to canonical marriages, celebrated or to be celebrated, in accordance with the sacred canons, the existence of the crime mentioned, prescribed, and punished in this article 455 is not possible, since every new marriage, either civil or canonical, celebrated without being legitimately relieved of the previous obligation, will constitute an offense against the civil status of the persons, and therefore the crime of bigamy, prescribed and punished by article 486." The law of 1870 relating to civil marriages never was promulgated and was never in force in these Islands. The provisions of the Civil Code relating to civil marriages and a civil registry were in force here for two weeks after the promulgation of the Civil Code, and then were suspended by royal order. It can therefore be said that civil marriages were never recognized here until the promulgation on the 11th day of December, 1899, by the Military Government of the United States, of General Orders, No. 68. Why article 440 was retained in the Penal Code when it was placed in force here is not apparent. It is enough to say that in this case both marriages were canonical and indissoluble and that the defendant falls exactly within the terms of article 471, This court has applied said article to a case where the second marriage was celebrated in accordance with the provisions of said General Orders, No. 68. (The United States vs. Leoncio Cruz, December 13, 1901.) For the reasons above stated the judgment of the court below is confirmed with costs of this instance to the appellant. So ordered. Arellano, C. J., Torres, Cooper, and Ladd, JJ., concur. Mapa, J., did not sit in this case.

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G.R. No. 590, October 10, 1902

THE UNITED STATES, COMPLAINANT AND APPELLEE, VS. ISIDRO GUZMAN ET AL., DEFENDANTS AND APPELLANTS. D ECIS ION
TORRES, J.: This case, tried in the Court of First Instance of Isabela on a charge of murder, was pending in this court on appeal taken by the accused, Isidro Guzman and Jose Guzman, against the judgment of January 6 of this year by which they were convicted and condemned to life imprisonment, payment of damages, and costs. On July 11 last Mr. W. A. Kincaid, counsel for the accused, filed a motion praying that the two accused be given the benefits of a general amnesty proclaimed by the President of the United States on July 4 last, and that the case be dismissed with the costs de oficio. Counsel for the accused alleged that upon grounds of prudence and humanity, with a view to the establishment of peace and order and to promote the loyalty of the Filipino people to the sovereignty of the United States, the American Government, as a political measure, on the memorable Fourth of July, the anniversary of the independence of the United States, granted a full and general amnesty for the benefit of all Filipinos who took part in the insurrection against the Government of Spain, and who had committed during such revolution acts in violation of law, as also in favor of persons guilty of crimes which were the result of internal political feuds or of dissensions between the Filipinos and Spaniards or the Spanish authorities during that insurrection; that in the judgment below certain facts were foiind which, if true, would constitute a crime resulting from political hatred between the accused and the deceased, Piera, and committed in the course of the said insurrection; that for these reasons the crime of murder of which they are charged and of which they have not yet been convicted, is clearly within the amnesty, whatever might be the punishment they might deserve, it being the will of the sovereign power that these offenses be remitted and their presumptive authors pardoned, they being Filipinos. This case involves a most heinous crime committed on the person of Salvador Piera, lieutenant in the Spanish army, under greatly aggravated circumstances, the crime having been committed about the end of September or the beginning of October in 1898 by order of Simeon Villa, at that time a major in the revolutionary army and commanding officer of the forces occupying the district of Isabela. A few days after Simeon Villa arrived at Ilagan as major of troops of the Filipino revolution he telegraphed Colonel Tiron, then in Aparri, to send Piera to him, the latter being at that time a prisoner of the revolutionary forces, in order to take Piera's deposition; this Villa did, according to the accusors, at the instigation of Dimas Guzman, whose purpose it was to take revenge upon Lieutenant Piera, who was judge in a military prosecution which in 1897 was brought against Guzman on political grounds, by which reason the latter was a bitter enemy of Piera and of others who had taken part in the said prosecution ; that, therefore, Guzman intended to revenge himself upon various Spaniards, and as soon as he became aware of the proximity of the Filipino revolutionary forces, Guzman went out to meet them, and subsequently some of the revolutionary officers were lodged in the house of the Guzman family, Dimas Guzman being

possessed of great influence with the people by reason of his social standing and the abnormal condition of affairs. As soon as Lieut. Salvador Piera arrived at the house in which Major Villa resided, the latter and the accused, Isidro and Jose Guzman, beat and kicked Piera, clubbed him with their guns, and then, having tied his arms behind his back, hung him from the roof of the parochial residence, letting him fall to the ground from time to time until he died, they subsequently burying his body in a hole which to that end had been dug near the said house. No matter how odious and repugnant may be the crime of which the unfortunate Salvador Piera was the victim, and who, as a prisoner of war, was under the protection of the laws of war and of international law, for which reason the party or parties guilty of his horrible death have violated those laws and were subject to the heaviest penalties, from the moment in which the sovereign power of the territory in which the crime occurred saw fit to decree a remission and forgetfulness of a certain class of offenses, blotting out even the shadow of crime for reasons of state and motives of humanity, obedience to the will of the sovereign is compulsory and must result in the final dismissal of prosecutions instituted for the punishment of crimes expressly included within the amnesty proclaimed. After a long and profound disturbance which has caused a moral, material, and radical upheaval of the Filipino people, and in view of the fact that during the revolution crimes due to or characterized by political passions have been committed, the amnesty proclaimed on July 4 last constitutes an act of policy, of wise prudence, and well-timed generosity, freely exercised by the President of the Union for high political motives for the purpose of tempering or mitigating the rigor of the law, following the dictates of common sense and a humane conscience, based upon the fact that society would suffer more by the execution of the penalty than by allowing crimes committed under the impulse of partisan spirit and agitated, passions to go unpunished. The record shows that the accused, Isidro and Jose Guzman, took part in the rebellion against the Spanish Government, and that they were officers of the revolutionary army and rendered services thereto, and also, passing upon the responsibility of the accused, that the murder of Lieutenant Piera was the result of political hatred and of dissensions between the accused, especially those of the Guzman family and the deceasedpolitical hatreds which were the general rule between Spaniards or agents of the Spanish Government and the Filipinos. This is shown by the proceedings had in the case, and for these reasons and in accordance with the spirit, letter, purpose, and object of the decree of amnesty it is unquestionable that the said Jose and Isidro Guzman are properly included within its scope. The words "When the Bastile fell, the day arrived for the settlements of accounts," "Now you will give me satisfaction," and "Now we are even," addressed to the dead body of Piera and attributed by various witnesses to the accused, Jose and Isidro Guzman, among others, show that between the latter and the deceased, Piera, there existed enmity, hatred, and malice, and confirm the statement above made. It is true that murder pertains to the class of common crimes, but it is also true that the murder in question was committed in violation of the laws of war, and in consequence of hatred and dissensions between Filipinos and Spaniards or authorities and officers of the Government of Spain, which arose from acts and feuds of a political nature; and that, therefore, notwithstanding the cruel and inhuman manner in which the unfortunate Piera was assassinated, there is no well-grounded reason to be deduced from the text of the said

proclamation which can reasonably prevent the application of the amnesty in favor of the petitioners without misconstruing the meaning and high design of this sovereign disposition, which, under the circumstances then prevailing in the country, is an act of justice political rather than judicial in its nature. Upon these considerations we are of the opinion that justice requires that the accused, Isidro and Jose Guzman, be declared to be included within the amnesty of July 4 of this year and entitled to enjoy its benefits; orders will, therefore, be given the judge of First Instance of Isabela, in order that after the taking of the oath prescribed as a condition in the said decree of amnesty the accused be immediately set at liberty, with directions to the judge to transmit the record of his proceedings in fulfillment of this order together with the original oaths, and upon their receipt fet the court be informed thereof. So ordered. Arellano, C. J., Cooper, Willard, and Ladd, JJ., concur. Justices Smith and Mapa did not participate in the hearing of this motion.

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G.R. No. 593, December 10, 1902

THE UNITED STATES, COMPLAINANT AND APPELLANT, VS. JOAQUIN FERNANDEZ Y HERRERIAS ET AL., DEFENDANTS AND APPELLEES. D ECIS ION
TORRES, J.: Case No. 47 was commenced in the Court of First Instance of Iloilo on June 23, 1901, upon a complaint filed by Cirilo Mapa, attorney at law, charging Francisca Zulueta and her husband, Joaquin Fernandez Herrerias, with the crime of calumny. The defendants appeared before the court, and, having been arraigned upon the charge, on the 13th of August filed in due form a demurrer to the information. Upon this the private prosecutor filed an answer, and, without further proceedings by the provincial fiscal, who was duly notified, the incident was decided by an order dated the 4th of November, 1901, by which the demurrer of the defendants was overruled, and, in accordance with the provisions of section 24 of General Orders, No. 58, the defendants were directed to plead to the charge at the day and hour designated. On the 4th of November, 1901, the attorney for the defendants moved the court to dismiss the information, upon the ground, among others, that the same was presented by a person not authorized to represent the United States, and not a party to the proceedings; that the action had not been prosecuted by the provincial fiscal, and had been abandoned, inasmuch as lie had failed to make reply within three days to the demurrer and the argument in support thereof filed by the defendants. The court below, by an order of the same date, November 4, 1901, after service of notice upon the provincial fiscal and upon the private prosecutor, ordered the parties to appear on the morning of the 8th of November. The hearing took place on that day, and after oral argument by the attorney for the defendants, the private prosecutor, and the provincial fiscal, on the 23d of November the order appealed from was entered. By the order of the 4th of November the court below overruled the demurrer of the defendants to the information upon which this prosecution was instituted. The judge could not subsequently enter an order of dismissal, and order the answer filed by the private prosecutor against the demurrer to be excluded because he considered that the provincial fiscal had abandoned the prosecution of the case. The fact that the provincial fiscal did not reply to the demurrer taken by the attorney for the defendants was not sufficient ground to authorize the dismissal of the. case, because as the demurrer was overruled by the order referred to, the prosecution of the case should have been continued and the defendants ordered to plead, in accordance with section 24 of General Orders, No. 58, dated April 23, 1900, as Avas expressly directed by the order referred to of November 4. It is necessary to hold constantly in mind the provisions of section 107 of General Orders No. 58, when considering the rights of the party injured by the commission of the offense, and further that all public offenses tried before the Courts of First Instance must be prosecuted by complaint or information, in accordance with section 3 of the general order cited. As the private prosecutor, Cirilo Mapa, filed a complaint in his capacity as the party injured and entitled to

take part in the prosecution of the crime of which the defendants are charged, and for the purpose of enforcing against them their civil liability, it is evident that the case was properly commenced by the filing of the said complaint. There was no abandonment of the penal action by the provincial fiscal, as it appears from the record that since the preliminary investigation was had that officer has constantly participated in the prosecution, and that notice was served upon him of the order overruling the demurrer, and that notice was served upon him of the orders made by the judge for the prosecution of the case. This, apart from the petition filed by him, and which, appears on page 10 of the record, and the fact that he was present when the defendants appeared, and that he addressed the court at the time they were arraigned in the hearing upon the motion, and that he joined the private prosecutor in his appeal to this court against the order referred to. If the provincial fiscal failed to answer in writing to the demurrer filed by the attorney for the defendants, this was possibly due to the fact that no copy of the demurrer, or of the argument in support of it, was served upon him, and in the order on page 30 of the record the judge did nothing more than to direct that notice of the order be served upon the provincial fiscal. But however that may be, the failure on the part of the fiscal to so reply or answer would under no circumstances be sufficient to authorize the dismissal of the prosecution, or to support the conclusion that the representative of the Government had abandoned the case, when several other acts of that officer demonstrate the contrary; furthermore, section 38 authorizes the appointment of a practicing attorney to perform the duties of the fiscal, should he be absent during the trial. Upon these grounds, therefore, we are of the opinion that the order of the 23d of November, 1901, should be reversed, and that the case should be returned to the court below for a continuation of the prosecution, in accordance with the procedural law. Arellano, C. J., Cooper, Smith, Willard, and Ladd, JJ., concur. Mapa, J., disqualified.

OSJurist.org

G.R. No. 596, August 19, 1902

THE UNITED STATES, COMPLAINANT AND APPELLANT, VS. ANASTASIO CARMONAN DEFENDANT AND APPELLEE. D ECIS ION
LADD, J.: The defendant was tried for asesinato in the court below and acquitted. The case is now pending in this court on appeal. The Solicitor-General and counsel for the defendant have united in a petition that he be declared to be embraced within the President's amnesty proclamation of July 4, last. The circumstances under which the deceased met with his death and the defendant's connection therewith are stated in the judgment of the court below as follows: "The accused, Anastasio Carmona, was a captain in the so-called insurrectionary army. Acting in this capacity he issued an order to four soldiers under his command to lie in wait for the deceased, a tailor named Marcelo Blas, at a place known as Maytubig, in the district of Malate, in the city of Manila, and to arrest him as a spy in the service of the Americans and the police. In pursuance of this order these soldiers lay in wait for Blas at the place designated, and as he passed by, accompanied by his wife and one Domingo Tansio, on the afternoon of the 3d of October, 1900, and after a short conversation, in which they told him that their superior officer wanted to have his measure taken for a suit of clothes, Blas refusing to go because it was too late, two of the men threw themselves upon him and stabbed him to death, leaving his body in the middle of the road." These findings of the court below are supported by the evidence in the record. An examination of the record also shows that there was some uncontradicted evidence to the effect that an order had been issued by an insurrectionary officer superior in command to the defendant, directing the arrest of all Filipino spies, and we think the conclusion is entirely warranted by the evidence that the defendant was acting in pursuance of this order in commanding the arrest of the deceased. The defendant having participated in the insurrection against the Government of the United States, comes within the description in the proclamation of the classes of persons to whom the amnesty is extended. The crime of which he is guiltyif he is guilty of any crime of which he can be convicted upon the complaint in this casebelongs also to one of the classes of offense covered by the proclamation. It was committed in the course of the insurrection against the Government of the United States; it was committed pursuant to orders issued by insurrectionary military authorities, and it was committed for military purposes in the interest of the insurrection, and without any motive of private revenge or hatred whatever, so far as is disclosed by the record, and falls, therefore, within the designation of "offenses political in their character," as that expression is used in the proclamation, even placing upon the words the narrowest interpretation of which they are in any possible view susceptible. The defendant is therefore declared to be entitled to the benefit of the proclamation upon filing in this court the oath prescribed therein as a condition of the amnesty, and upon the filing of such oath the cause will be returned to the court below with directions that the defendant be

discharged with costs de oficio. So ordered. Arellano, C. J., Torres, Willard, and Cooper, JJ., concur. Mapa, J., did not sit in this case.

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G.R. No. 597, April 15, 1902

JUANA MORENO FRANCISCO, PLAINTIFF AND APPELLEE, VS. JOSE MANUEL GRUET, DEFENDANT AND APPELLANT. D ECIS ION
WILLARD, J.: This is a motion to dismiss an appeal from an order removing a guardian. The Code of Civil Procedure now in force points out two methods, radically different, for bringing cases to this court. One is by bill of exceptions and the other is by appeal. The first refers to ordinary suits, the second to special proceedings. Any ordinary action can be brought to the Supreme Court by a bill of exceptions. (Art. 143.) There does not, however, exist any general provision which authorizes an appeal in all kinds of special proceedings. Article 772 is limited to proceedings in the cases of adoption; articles 778, 779, and 780 to orders concerning the allowance of accounts of executors, administrators, and guardians; article 781 to orders declaring the validity or nullity of wills; article 782 to orders directing the partition of property; and article 783 to final orders in testate or intestate estates and the administration of guardians and trustees. This case falls within the provisions of article 783. It was not in any sense an ordinary suit. Article 574, in connection with article 581, gives to the Court of First Instance the power to remove guardians. It is evident that the order in this case was entered by the court by virtue of its jurisdiction in special proceedings concerning the administration of guardians. Being an order entered in special proceedings, it ought to have been brought here by an appeal and not by a bill of exceptions. In order to perfect an appeal in accordance with article 783 only two things are required of the appellanthe must present a written notice of appeal and he must give a bond. In respect to the first requirement, it was stated at the argument of this case, and not denied by the opposing party, that the appellant presented to the court a notice of appeal and that he was told by the judge that in that case an appeal was not proper, and ten days were given him for the presentation of a bill of exceptions. In this bill of exceptions prepared by the appellant and signed by the judge it is said that the appellant, upon being notified of the order, appealed; and there also appears in the record an order admitting the appeal. We are satisfied that what the appellant did in this case amounted to a notice of appeal within the meaning of said article 781. With regard to the second requisitethat is, the bondit appears that the appellant in fact gave a bond in the sum of $3,000, which was approved by the judge. It also appears, however, that by an order of the court said bond was conditioned for the performance of the judgment by the appellant in case it was affirmed. The condition should have been that he would prosecute his appeal and pay the damages and costs occasioned by reason thereof. (Art. 780.) The question is, Ought we to dismiss the appeal by reason of this defect in the bond? Article 500 says no bill of exceptions shall be dismissed for defects of form which do not affect the rights of the parties, nor for any defect which can be cured. It is true that this article only treats of bills of exceptions and not of appeals, but it is evident that it was the intention that it was to be applied to both. They are no more than different methods of accomplishing the same endsthat is, the removal of a suit from a lower to a higher court. If a bill of exceptions ought

not to be dismissed for defects of form, an appeal ought not to be. We think that this article is applicable to both cases, and that the defect which appears in the bond is one which can be corrected. When an appeal is perfected in special proceedings, in accordance with article 783, it is the duty of the clerk to send to this court a certified copy of the evidence introduced. At the hearing in this court it was stated that this had not been done. In such a case article 501 requires us to suspend the hearing until the record is complete. We are not allowed to dismiss an appeal for such reasons. The attorney for the appellee stated at the hearing that the appellant had never served upon him his assignment of errors and brief, as required by the rules of this court. The attorney for the appellant answered that they were included in the bill of exceptions which had been served upon the appellee. This, of course, is not a proper place for them. The bill of exceptions should contain facts only. It is a statement of what occurred at the trial in the court below. Argument has no place in it. This should be made in the brief. This mistake of the appellant has not in any way, however, prejudiced the appellee, upon whom the brief and assignment of errors was served, although not in proper form. The appeal ought not to be dismissed by reason of this mistake. For the reasons above mentioned, the motion to dismiss the appeal is denied, but it is ordered that the appellant be required, within twenty days from this date, to file in the court below a bond approved by that court in such sum as that court may order, conditioned as provided in article 780. If he should fail to do so the appeal will be dismissed. It is further ordered that the clerk of said court send forthwith to this court, at the expense of the appellant, certified copies of all the evidence presented at the trial there held, with the exception of those parts of the same which have already been remitted; that upon the receipt of the same the clerk of this court order them to be printed at the expense of the appellant and distributed to the parties; that the brief and assignment of errors in the so-called bill of exceptions be considered as the brief and assignment of errors of the appellant, and that the appellee be given twenty days from the receipt of the said printed additions to the record for the service of his brief upon the opposite party and the filing in this court. Arellano, C. J., Torres, Mapa, and Ladd, JJ., concur.

DISSENTING COOPER, J.: As stated in the opinion of the majority of the court, the Code of Civil Procedure (1901) provides two radically different methods for removing a case to this court. One is by means of a bill of exceptions; the other is by means of an appeal. The former relates to ordinary actions, the latter relates to special proceedings. As further stated by the court the order appealed from was made in a special proceeding and should have been brought here by appeal and not by a bill of exceptions. For this reason a motion has been made by appellee to dismiss the case, which has been overruled by the court. From this decision I dissent.

The provisions relating to the bringing of cases here by bill of exceptions have been. strictly followed. There can be no doubt in this respect as to the intention of the appellant. No attempt whatever has been made to follow the provisions for appeal in special proceedings nor has there been any substantial compliance with them. This decision will in future be a precedent for the rule that, notwithstanding the radical differences in the mode of bringing cases to this court, as provided by statute, an ordinary bill of exceptions will be sufficient for that purpose in all cases of both special proceedings and ordinary suits. Whether the different modes provided by the Code are likely to cause confusion and whether there are sufficient reasons for making such difference are questions purely for the legislative discretion. The law should not be changed by judicial legislation or construed away by decision. The methods of bringing an appeal in a special proceeding are (1) by filing with the Court of First Instance an application for an appeal within twenty days after the entry of the judgment (Art. 781), and (2) by giving a satisfactory bond to the court conditioned that the appellant will prosecute the appeal to effect and pay the intervening damages and costs occasioned by such appeal (Art. 780). That the bond was given in the case was not intended as an appeal bond appears on the face of the same. It is stated by the clerk in his certificate that the bond was given in the sum of $3,000 in accordance with article 144 of the Code. Article 144, referred to, is the provision of the statute for a supersedeas bond where a case has been brought to this court by a bill of exceptions. The condition of this bond is not, in substance, the same as that provided for in appeal bond. It is perfectly clear that the parties did not contemplate the execution of an appeal bond. As to the other requisite, the filing with the Court of First Instance of an application for an appeal within twenty days after the judgment, there has been no attempt to comply with the statute. The statement that the appelant presented to the court below an application for an appeal and was told by the court that it was not a case in which an appeal would lie, but that remedy was by bill of exceptions, not only shows that there was no attempt to comply with the provision requiring the filing of the application but shows clearly a change of purpose and an abandonment by the appellant of that mode to appeal the case. The statement contained in the bill of exceptions prepared by the appellant and signed by the court, that the appellant appeals the case, clearly conveys the idea that the method of appeal was by a bill of exceptions. It was not a statement tending in the least to show that the appellant had or was attempting to bring the case up by the method of appeal for special proceedings. The supposed order contained in the bill of exceptions allowing the appeal is nothing more than a receipt of the bill of exceptions by the Court of First Instance, stating that by such bill of exceptions the appeal to the Supreme Court was admitted, and required a bond in accordance with section 144, which, as stated above, is a supersedeas bond, given only in cases of bills of exceptions, clearly showing that the appeal intended was by means of a bill of exceptions. But no order is required to perfect the appeal in special proceedings, nor would any such order, if shown, have the effect of supplying the requisite prescribed by statute. These provisions of law are simple and easily complied with. The Civil Code of Procedure is new to the native lawyer and doubtless presents many perplexing questions. Its meaning may often be misconstrued, but in the desire to relieve

them, if to these difficulties are superadded unnatural and forced constructions of its provisions, the difficulties are multiplied and the confusion will become hopeless.

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G.R. No. 667, April 16, 1902

PIO ESPIRITU, PLAINTIFF AND APPELLANT, VS. MARIANO DESEO, DEFENDANT AND APPELLEE. D ECIS ION
COOPER, J.: On June 20, 1901, Pio Espiritu brought this action against Mariano Deseo to recover the possession of certain lands, together with damages, upon the ground that the plaintiff had been in the possession as lessee of the said lands, the property of the Augustinian Friars, from the year 1884 to the year 1898, at which time he was dispossessed by the defendant. The defendant made the following allegations in opposition to the complaint: (1) That the alleged lease upon which the plaintiff bases his complaint has not been proven by any competent evidence; (2) that the action which plaintiff might properly have brought for the recovery of possession is the restitutory interdict, but that the possessory action corresponds exclusively to the owner of the property; and (3) that the plaintiff has lost the right of possession by the expiration of more than one year. The defendant further alleges that he has been in possession of the said lands and the lot in question for seventeen years, of the former by composition with the State and of the second by right of testamentary succession. After a careful examination of the record we have not been able to find therein any evidence of the existence of any contract of lease of the lands in question executed by the Augustinian Friars in favor of the plaintiff, or any evidence from which might be deduced the existence of any right on the part of the plaintiff to the lands in question. The presentation of receipts which show the payment of the amount of the annual ground rent corresponding to several years prior to the act of dispossession by no means tends to demonstrate that the plaintiff on the date at which this action was brought had any subsisting contract of lease on said lands. The plaintiff might have brought the summary action of restitutory interdict if he had brought suit within a year from the time of the execution of the act alleged to constitute the dispossession, and which took place in 1898, founding his claim exclusively upon the possession of the property then enjoyed by him. (Law of Civil Procedure, arts. 1634 and 1635.) The benefits of this former possession were lost by reason of the possession of the defendant for more than one year. Not having the possession or ownership of the lands in question or any apparent right with respect to the same, the action can not be maintained. It is not necessary to decide in this case whether the tenant can bring a possessory action, because the alleged lease has not been proven, nor is it necessary to determine the true character of the action brought by him. Neither is it necessary to decide whether he can maintain any action for the purpose of recovering the rents, issues, and profits or damages thereof, inasmuch as the record does not disclose their amount. The judgment of the Court of First Instance is therefore affirmed, with the costs to the plaintiff. Arellano, C. J., Torres, Willard, Mapa, and Ladd, JJ., concur.

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G.R. No. 848, September 27, 1902

THE UNITED STATES, COMPLAINANT AND APPELLEE, VS. JUAN CARDONA, DEFENDANT AND APPELLANT. D ECIS ION
WILLARD, J.: In the fall of 1901 Clayton J. Bailey was an inspector of the Constabulary and in command of the forces stationed in the Province of Tarlac. Complaints were made to him by some of the inhabitants of Gerona that the defendant had robbed them of carabaos and horses. After making investigations he seized about ninety head of stock in the possession of the tenants of the defendant and deposited this stock in the Government corralat Tarlac. Juan Jose produced at the trial, and there is attached to the record, a certificate of transfer to him in June, 1896, of a caraballa marked with the brands described in said certificate. The witness Bailey stated that he had personally compared the brands on one of the animals taken from Cardona's farm, and at the time of the trial in the corral near the court-house, with the brands that are set forth in the said certificate and that they were the same. He also testified that Juan Jose had claimed this animal as his own. Felix Llorente, an inspector of Constabulary of the fourth class, testified that the animal referred to by the witness Bailey had been taken from Cardona's farm; that the day of the trial he had compared the marks on it with the marks on the certificate and that they were identical. Juan Jose testified that about the 5th or 6th of March as lie, in company with his uncle Paulo Jose and Cipriano Jose, was going toward Gerona with his caraballa and its calf, he met the defendant, Cardona, with four other persons in an unfrequented part of the road; that Oardona, holding a revolver at his head, told him to take himself off and leave his animals there together with the cart to which the caraballa was harnessed. That he at once departed with his uncle Paulo Jose and Cipriano Jose. Juan Jose then had in his pocket the said certificate, but Cardona made no inquiry for it. He testified that he had seen the animal referred to by Bailey then in the corral and that it was his. His uncle corroborated him as to the occurrence in the road, and also stated that since that date he had seen the caraballa of Juan in the said Government corral. The testimony of the defense was directed to three points: (1) To show that Oardona was in Tarlac and not in Gerona about March 25; (2) to show his good character, and (3) to the fact that one Paulo Tafiedo had bought in August, 1901, at public auction held in Gerona by the municipal authorities, the caraballa taken from Juan Jose. (1) The evidence is ample to show that Oardona by violence and intimidation took from Juan Jose his caraballa and sent it to his, Cardona's, farm, from which it was taken by the Constabulary. There was no attempt whatever to contradict the statements of Juan and Paulo Jose as to the forcible taking of the animal; and the identification of it with the one seized on Cardona's farm was only sought to be overcome by the testimony of Paulo Tanedo, but that testimony and the documents presented on a motion for a new trial fall far short of accomplishing it. The most that Tafiedo would say was that he did not know whether the caraballa which he had bought was the one taken from Jose or not; that his had three marks, one of which was like one of those on Juan Jose's but the other two were not. The documentary

evidence in connection with the public sale to Paulo Tailedo shows also that only one of the three marks corresponds to any of the three marks on the animal of Juan Jose. (2) The testimony as to the whereabouts of the defendant on March 25 was unimportant, as the evidence shows the robbery was committed about the 5th or 6th of March. The defendant in his brief claims that the evidence should be restricted to the date mentioned in the complaint, which was the 25th of March. In this case, however, the date was not a material ingredient of the offense, and under the provisions of article 7 of General Orders, No. 58, the Government was not limited in its proof to the date stated therein. (3) The testimony as to good character could not in any event outweigh such positive and uncontradicted evidence as was produced in this cause to show defendant's guilt. It is to be noted moreover that some of the defendant's witnesses on this point admitted on crossexamination that they had heard that the defendant's reputation prior to the American occupation of these Islands was bad. (4) In the petition for a new trial it is alleged that the trial was void because the evidence was not read over to the witnesses before they signed it as required by article 32, General Orders, No. 58. But it does not affirmatively appear that this was not done, and, even if it were not, this, without anything more appearing, would be a defect of form for which the judgment could not be reversed. (Art. 10, General Orders, No. 58.) (5) The defendant has filed a petition that he be discharged because he is included in the amnesty proclamation of July 4, 1902. It is obvious that this petition must be denied. (6) The offense proven is covered by article 503, No. 5, of the Penal Code. The complaint did not allege that the offense was committed in an unfrequented place. It is not necessary to decide whether without such an allegation the defendant could be convicted under the provisions of article 504, as we arrive at the same result which the court below reached by considering the fact that the offense was committed in an unfrequented place as an aggravating circumstance under the provisions of article 10. (7) There is not, in our opinion, sufficient evidence to show that the defendant in the commission of the crime took advantage of his official position as provincial secretary, so as to make applicable article 10, No. 11, of the Penal Code. Juan Jose testified that he did not know that Cardona held this office. It is true that he stated on cross-examination that he believed Cardona to be one of the authorities of Gerona, but we do not think this sufficient to justify us in saying that his official position was a material factor in the crime. Juan Jose was induced to abandon his property by the revolver which Cardona held at his head and by the fact that four men accompanied Cardona, (8) The defendant in his brief asks us to apply in his favor article 11 of the Penal Code as an attenuating circumstance. It is clear that we are not warranted in making any such application of this provision. (9) The presence of the aggravating circumstance which we have taken into consideration raises the punishment to the maximum grade. The penalty imposed by the judge below i within that grade, and the judgment is consequently affirmed with costs of this instance to the appellant. Arellano, C. J., Torres, Cooper, Ladd, Smith, and Mapa, JJ., concur.

OSJurist.org

G.R. No. 850, December 23, 1902

LOS HIJOS DE I. DE LA RAMA, PLAINTIFFS AND APPELLANTS, VS. ERIBERTO MIJARES, DEFENDANT AND APPELLEE. D ECIS ION
COOPER, J.: This is an appeal from a judgment of the Court of First Instance of Occidental Negros in a suit brought by Los Hijos de I. de la Rama against the defendant, Eriberto Mijares, on certain promissory notes aggregating the sum of $4,500, executed by the defendant payable to D. Esteban de la Rama. The suit was commenced on the 4th day of January, 1900, by an executive action, and after the termination of the executive action, by reason of objections made, a complaint in an ordinary declarative action was filed on the 21st of October, 1901. Paragraph 4 of section 795 plainly states that where the trial has not been already commenced all future procedure in such actions and special proceedings pending in a court at the date of the adoption of the new Code shall be in accordance with the provisions of the Code of 1901, so far as this act may be conveniently applicable to the conduct of such actions or proceedings. The proceedings in the case, from the filing of the complaint up to the time of the trial, were apparently had in accordance with the provisions of the Code of Civil Procedure, 1901, but at this stage, after the rendition of judgment, the judge adopted the provisions of the old Code of Civil Procedure and granted an appeal in accordance therewith. Instead of the case being brought here by bill of exceptions, as it should have been done, an appeal has been taken in which even the provisions of the former law have not been observed, the evidence not having been sent up with the original papers in the case. We have held in Bustillos vs. Garbanzos, decided on the 4th day of December, 1902, appealed from this same court, similar in character, in order that the ends of justice may not be defeated, that the error resulting from the act of the judge in requiring the case to be brought up under the old procedure, should not be charged to the appellant. The law permits the procedure under the old law when the new law may not be conveniently applicable, and we must presume that the judge acted under the discretion allowed him under this provision. The record of this case is in such a confused state that it has been impossible for us to determine the case upon its merits, and we find it necessary in this as we did in the former cases, to reverse and remand the case to the Court of First Instance for a new trial. The cost of this appeal will be adjudged against the appellant. The judgment is reversed and the cause remanded for a new trial. Arellano, C. J., Torres, Smith, Willard, Mapa, and Ladd, JJ., concur.

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G.R. No. 852, April 28, 1902

THE UNITED STATES, COMPLAINANT AND APPELLEE, VS. PATRICIO ANTONIO, DEFENDANT AND APPELLANT. D ECIS ION
MAPA, J.: The accused is charged with the crime of perjury. The complaint alleges that in the criminal case brought against Gabriel Dancel for discharging a firearm and for lesiones menos graves inflicted upon Miguel Marunao the accused testified that Dancel fired one shot from the gun, which caused the death of Eustrasio Guerrero and at the same time wounded Marunao, the fact being that there were really two shots fired, the first killing Guerrero and the second wounding Marunao. From the transcripts taken from the record of the case against Gabriel Dancel, it appears that the accused herein was not the only witness who testified that there was only one discharge of the gun, but that four other witnesses, named Pablo Antonio, Escolastico Laureta, Rafael Dancel, and Pedro Asuncion, testified to the same effect; that is, that Gabriel Dancel fired the gun but once, while three other witnesses, Andres Arcellano, Damaso Arcellano, and Juan Sahagun, testified that the gun was fired twice, the first shot killing Eustrasio Guerrero and the second wounding Miguel Marunao. The evidence introduced in this case produces an equally contradictory result. While the prosecution called four witnesses who testified that there were two shots, the defense presented four witnesses who testified in the completely contrary sense, affirming that there was only one shot fired. The latter witnesses were near the place of the occurrence and were those who conveyed the body of Eustrasio Guerrero to the town. They testified that if there had been two shots they must necessarily have heard them, owing to the short distance between them and the place of the occurrence. These witnesses did not take part in the quarrel and consequently were able to preserve the presence of mind necessary to observe the principal details of the event, so far as susceptible of perception by the senses. The witnesses for the prosecution, who all participated in the occurrence in which Gabriel Dancel made use of the gun, testified that upon hearing the first shot they were frightened and ran away, and that they were still running when they heard the second shot. This being so, it is not easy to understand how they can testify that it was the second shot which wounded Marunao, when at that time, according to their own statement, each one was in full flight. Marunao himself testified that he was wounded while he was running, but nevertheless an examination of his wound shows that it took effect on the knee, which would appear to indicate that he received it while he was facing the aggressor. The experts who made the examination, as appears from the transcript of the record of the proceedings in the case, expressed the opinion that it was very possible that Marunao might have been wounded by the same shot which caused the death of Eustrasio Guerrero, and not only that they believe it possible, but that they are inclined to think this is actually what occurred, in view of the distances and the position in which both victims were standing with respect to the aggressor, and considering the other circumstances of the case.

Upon the merits of the case we can not with certainty reach the conclusion that the accused perverted the truth when testifying that Gabriel Dancel fired only one shot on the occasion referred to. We therefore decide that the accused must be acquitted, and the judgment below is therefore reversed, with the costs of both instances de oficio. Arellano, C.J., Torres, Cooper, Willard, and Ladd, JJ., concur.

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G.R. No. 855, November 21, 1902

HIJOS DE I. DE LA RAMA, PLAINTIFFS AND APPELLEES, VS. VICENTE BENEDICTO, DEFENDANT AND APPELLANT. D ECIS ION
WILLARD, J.: The judgment in this case must be affirmed. It is clearly proved by the testimony of Felix Labayan, Casiana Capilar, and Timoteo Unson that part of the crop of 1899 was not delivered by the defendant to the plaintiff in accordance with the terms of the agreement between them. The provisions of article 1575 of the Civil Code can not be so applied as to excuse this failure. That article does not refer to a contract in which the stipulated rent is an aliquot part of the crop, for example, one-fourth, as it was in this case. This failure to deliver a part, of the crop was a failure to pay the rent, and therefore gave to the plaintiff the right to eject the defendant under the terms of article 1569, section 2. This action was brought for that purpose and for that alone. It was in no sense a personal action to recover the value of that part of the crop which had not been delivered. The fact that this suit was brought before the termination of the crop of 1899-1900 is not important. It was not brought until after a failure by the defendant to deliver part of the crop at the time specified in the contract. The defendant's alleged counterclaim was properly rejected for the reasons stated in the opinion of the trial court. As to the suggestion made in the argument that the defendant had already abandoned the land, it is enough to say that such fact does not appear in any way from the record. On the contrary it appears that the appeal to the Superior Court of Negros was allowed in both effects. The judgment is affirmed with costs against the appellant. Arellano, C. J., Torres, Cooper, Smith, Mapa, and Ladd, JJ.,concur.

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G.R. No. 861, December 20, 1902

THE UNITED STATES, COMPLAINANT AND APPELLANT, VS. DOMINGO VIERA, DEFENDANT AND APPELLEE. D ECIS ION
LADD, J.: The defendant, a priest in Jaro, is accused of tearing down a wall and stealing the stones of which it was composed. He admits that the wall was torn down by his direction, but he claims that he acted under the bona fide belief that it was the property of the College of the Sisters of Charity, an institution of which he was at the time the administrator. It is not disputed that he used a part of the stones to repair the pavement of the public highway and the rest in repairs upon the pavement of the courtyard of the college. Apparently he derived no individual pecuniary profit whatever from the stones. Whether the wall belonged to the college depended upon whether one Jalandoni had conveyed or agreed to convey the land on which it stood to the college. Upon an examination of the record we find it difficult to understand how the defendant could have believed that there had been any such conveyance or any agreement or intention on the part of Jalandoni to make such conveyance, but on the other we find it equally difficult to conceive that a person who, without any attempt at concealment, tears down a stone wall 50 feet long and disposes of the remains, not for his own private gain, but for the benefit of an educational and charitable institution, and for the public in general, can have acted with a genuine criminal intent. Of course, these facts do not exclude the possibility that the intent may have been criminal; there may be other facts not in the record which would give the transaction an altogether different complexion; but with only the light afforded by the meager evidence before us we can not free our minds from grave doubts, and such doubts must be resolved in favor of the defendant. The judgment of acquittal is affirmed with costs de oficio. Arellano, C. J., Torres, Cooper, Smith, and Willard, JJ., concur. Mapa, J., did not sit in this case.

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G.R. No. 875, October 13, 1902

THE UNITED STATES, PLAINTIFF AND APPELLANT, VS. MATEA JOSE ET AL. DEFENDANTS AND APPELLEES. D ECIS ION
COOPER, J.: Matea Jose and Sotera Galves; were charged with the crime of estafa committed as follows: That Matea Jose and Sotera Galvez on the 2d day of December, 1901, received from Benita Varela twelve pieces of jusi cloth of the value of 300 pesos, and forty pieces of pina cloth of the value of 200 pesos, as a deposit on commission for administration, under the obligation to sell the same and return the profits thereof to the said Benita Varela; that the said Matea Jose and Sotera Galvez refused afterwards to deliver to the said Benita Varela either the cloth or the money derived from the sale of the same. The defendants were tried in the Court of First Instance in the city of Manila and acquitted of the charge. The acquittal of the defendants was based upon the fact that such contradictions were found in the evidence as to cause a reasonable doubt as to the guilt of the defendants. We have examined the testimony and find many discrepancies which seem to justify the conclusion reached by the Court of First Instance. The prosecuting witness, Benita Varela, in her testimony states that on the 2d day of December, 1901, she delivered to the defendants, Sotera Galvez and Matea Jose, twelve .pieces of jusi cloth and forty pieces of pina cloth with the understanding that the cloth was to be sold and money paid over, or the goods returned that same evening. That the defendants disappeared and never returned again; that Sotera had been her laundry woman for two or three years; that the goods were delivered to the defendants jointly, but on the faith of her acquaintance with Sotera. In her testimony she says that she began to look, for Sotera after Christmas and contradicts this by saying that she began the search for Sotera on the day the goods were delivered to her, December 2. She says that she saw Sbtera only once afterwards, then testifies that she saw her twice. She testifies that Sotera continued as her laundry woman until the date of arrest13th of February. Sotera also testifies this. It is hardly probable that the witness should have retained Sotera as laundry woman if such defalcation had occurred, and still less probahle if Sotera so continued that the witness should not have seen her quite frequently. The witness testifies that she never had a like transaction with the defendants except on December 2, when the twelve pieces of jusi and forty pieces of pina were delivered. The testimony of the accused Sotera shows that she had been in the habit for a long time of taking goods on commission from the prosecuting witness. Both defendants deny the occurrence out of which the prosecution arose, but testify to previous transactions had with the prosecuting witness. There are other discrepancies in the statements made by the prosecuting witness and also in the statements made by the other witnesses produced. While there is evidence to show that the transaction occurred, as stated by the prosecuting witness, and testimony showing a confession by the defendants of having had a transaction with the prosecuting witness on the date mentioned, still there are such discrepancies in the evidence as would cause a reasonable doubt, and the Court of First Instance did not err in acquitting the defendants.

The judgment of acquittal is affirmed, with costs de oficio. Arellano, C. J., Torres, Smith, Willard, Mapa, and Ladd, JJ., concur.

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G.R. No. 876, August 09, 1902

THE UNITED STATES, COMPLAINANT AND APPELLEE, VS. JOHN H. FLEMISTER, DEFENDANT AND APPELLANT. D ECIS ION
WILLARD, J.: The defendant was prosecuted in the Court of First Instance of Ilocos Sur for the crime of allanamiento de morada. Judgment was rendered on February 6, 1902, condemning the defendant to six years of presidio correccional and a fine of 3,250 pesetas. His appeal against this judgment was admitted on February 12. On May 8 he filed in this court a motion in which he asked for a new trial (1) on the ground of newly discovered evidence and (2) for errors of law committed at the trial below. The Solicitor-General has filed an escrito in which he consents that the motion may be granted. The motion was argued on the 19th of July. The question presented called for a construction of article 42 ol General Orders, No. 58. That article is as follows: "At any time before the final entry of a judgment for conviction, the defendant may move, either in the court in which the trial was had or on appeal to a higher court, for a reopening of the case upon the ground of newly discovered evidence material to his defense. The motion must be made to the court which pronounced sentence, or to the appellate court if the case shall have been appealed, and must be made in writing and be supported by the affidavits of the witnesses by whom such evidence is expected to be given, or by duly authenticated copies of documents which it is proposed to introduce in evidence. Within a like period after conviction, a case may be reopened on account of errors of law committed at the trial. The motion must be in writing and must set forth the errors alleged to have been committed. In courts of higher jurisdiction the decision of the court on such motions shall be in writing, and, together with the motion and affidavit, shall be attached to the papers in the case, and any evidence admitted must be taken and recorded as upon the original hearing. The new hearing, if allowed, shall take place in the, court of original jurisdiction." So far as this article relates to a motion for a new trial on the ground of newly discovered evidence it is not difficult of construction. The right to move for a new trial on this ground both in the lower court and in this court is clearly given. Nor can there be doubt as to the time within which this motion may be heard. The language is "at any time before the final entry of a judgment for conviction." In the time of the Spanish sovereignty and down to the promulgation of General Orders, No. 58, there was no final judgment in any criminal case until this court or rather its predecessors had so ordered. If the case was not brought up by appeal it was sent up for review and no one was finally acquitted or convicted of a public offense until his case had been passed upon here. This is the settled doctrine of this court. (United States vs. Perez, April 9, 1902; United States vs. Keener, February 6, 1902; and of its immediate predecessor, United States vs. Gascon, January 30, 1901.) By article 50 of General Orders, No. 58, it was provided that cases in which the penalty did not exceed one year's confinement or a fine of 250 pesos should not be sent up for review, and by

Act No. 194 of the Commission that no cases should be sent up for review except those in which the punishment ordered was death. There still remained in all these cases the right of appeal within fifteen days after the rendition of the judgment. The effect of these provisions was to make final and conclusive after fifteen days all those judgments of the Courts of First Instance not declaring the death penalty from which no appeal had been taken. It is said that the article gives the defendant the right to present his petition for a new trial on the first ground, namely, newly discovered evidence, at any time within the fifteen days, and does not require it to be decided within that time. The first clause of the article says that the defendant may move for a "reopening" of the case. This indicates that the case is not reopened when the defendant makes his motion, but when it is granted. It follows that when later on in the article it is stated that the case may be "reopened" within a like period, the meaning is that the motion must be heard and decided within that period. Although the phraseology is not the same in both clauses, we do not think that the legislative power intended to provide that a motion on one ground should be decided within the time to appeal, while if made on the other ground it would be sufficient to merely present it within that time. No reason is apparent why any distinction of this kind should be made between the two cases. It may be stated, we think, as a general rule that any action which the trial court takes in a case must be taken before the time to appeal from the final judgment expires. When such time has once expired it ought to be certain that the rights of the parties, so far as the trial court is concerned, are definitely fixed. If the mere presentation of the motion within the time is sufficient, this might be done on the last day and the case thus kept in the hands of the trial court for an indefinite time. The defendant in the meantime either would have to be committed, the court hearing and deciding the motion afterwards, or the execution of the sentence would have to be stayed until such hearing and decision could be had. This by reason of the press of business or for other causes might occasion a delay of some considerable time. If the latter course were pursued it is probable that the trial court would be called upon to hear such a motion in almost every case, for the mere presentation thereof would secure a stay of execution. For these reasons we hold that a motion to reopen the case on either ground must be heard and decided before the time to appeal from the judgment expires. The Court of First Instance may grant a new trial on the ground of newly discovered evidence at any time after the trial and before judgment, and also until the expiration of the fifteen days allowed for an appeal. Article 42 contains also the following provision: "Within a like period after conviction, a case may be reopened on account of errors of law committed at the trial." Must such a motion be made in the trial court or can it be made also in the appellate court? In support of the former view it may be said that a motion for a new trial in an appellate court for errors committed in a trial court is unusual, if not unknown, and that for the correction of such errors the defendant already had a remedy by appeal, in which they all can be reviewed. But, on the other hand, the law distinctly gives a defendant the right to have such a motion considered "within a like period after conviction." As we have seen, that period does not terminate in appealed cases until judgment is rendered in this court. The law therefore gives

him a right to move in this court. The words "after conviction" indicate that the time in which he may make this class of motion does not commence until after the judgment is rendered in the lower court. Our conclusion is (1) that within the fifteen days allowed for an appeal the trial court may reopen the case on either of the two grounds; (2) that if the defendant does not appeal he can make no motion in this court on either ground; (3) that if he does appeal he can move in this court on either groundIf the defendant makes the motion in the lower court and that is denied, he can still appeal if the fifteen days allowed therefor have not expired. If the defendant fails to appeal and limits himself to a motion in the trial court to reopen the case, this motion fails if it is not decided within the said nonextendible period of fifteen days. If he presents such a motion and before it has been decided he appeals within the said fifteen days from the judgment which has been rendered. in the case, it will be considered that he has waived his right to have his motion determined by the trial court. The case having been remitted to this court the appeal will be proceeded with, without prejudice, however, to the right of the defendant to move here for a reopening of the case before the final judgment is rendered. When a motion is made on either or both grounds in this court, the motion will be heard at the same time that the appeal is heard. In this respect we conform the practice to that marked out for civil cases by article 497, No. 2, of the Code of Procedure in Civil Actions. The result of the foregoing conclusions applied to the case at bar is that the hearing already had on the motion is vacated, and the motion is set down to be heard with the appeal on the 22d day of August, 1902. Arellano, C.J., Torres, Cooper, and Ladd, JJ., concur. Mapa, J., did not sit in this case.

OSJurist.org

G.R. No. 876, September 05, 1902

THE UNITED STATES, COMPLAINANT AND APPELLEE, VS. JOHN H. FLEMISTER, DEFENDANT AND APPELLANT. D ECIS ION
WlLLARD, J.: In the evening of November 28, 1901, Don Teodoro Suller gave a ball at his house in the pueblo of Cabuyau. The defendant went to the ball without any invitation from the owner, danced with an American doctor, and then went away. He returned after a short time. What then occurred is thus described by Don Teodoro: "I met him almost in the door of the stairway, took him by the hand, and said to him, 'Friend, what do you wish; do you come to dance?' Without making any answer he roughly withdrew his hand and struck me. "Q.Did you not ask him to take a seat? A.I did so, but he answered nothing and immediately entered." Don Teodoro also testifies that he had heard that the defendant had some design of attacking Captain Davison, who was in the sala, and that he stopped him because he was attempting to enter that apartment. The testimony of Ramos is to the effect that the owner of the house attempted to stop the defendant as he was entering the sala. The defendant admits that he struck Don Teodoro so that he fell, and that he had a quarrel with Captain Davison, in which he, the defendant, drew his revolver. It seems clear to us that the purpose of the owner of the house was to prohibit the defendant not from entering his house but from entering the sala in order to avoid a quarrel between the two Americans. His taking the defendant by the hand, asking him if he came to dance, and requesting him to be seated, are inconsistent with the idea that he was attempting to keep the defendant from entering the house. His efforts to prevent this meeting were praiseworthy and the conduct of the defendant extremely reprehensible. The latter can not, however, under the evidence be convicted of the, offense of allanamiento de morada. It is unnecessary to consider other questions argued by counsel for the defendant. The judgment is reversed and the defendant acquitted, with the costs of both instances de oficio. Arellano, C. J., Torres, Cooper, Ladd, Smith, and Mapa, JJ., concur.

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G.R. No. 879, November 03, 1902

THE UNITED STATES, COMPLAINANT AND APPELLEE, VS. CIRIACO BALUYUT ET AL, DEFENDANTS AND APPELLANTS. D ECIS ION
SMITH, J.: Ciriaco Baluyut, Felipe Duban, Camilo Angeles, and Cenon Patdu were charged in the Court of First Instance of the Province of Pampanga with having gradually and furtively made away with three gold buttons, two silver ones, a few razors, a watch, an umbrella, a ring, and a general assortment of more or less useful wearing apparel. The complaint neglects to state who owned the property abstracted, but for the purposes of this case it will be assumed that it did not belong to the accused. To enable the fiscal to utilize them as witnesses for the State the charge was dismissed on the trial as to all the defendants except Ciriaco Baluyut, who was found guilty of having stolen from the house in which he was employed as cook one razor of the value of $2.70. In the opinion of the trial court this disregard of the property rights of his master constituted the crime of domestic theft, and Baluyut was therefore sentenced to one year and a day of presidio correccional; and the usual accessories. From the judgment Baluyut appealed to this court, and the only question raised by the record is the sufficiency and competency of the evidence on which his conviction was secured. The Attorney-General recommends that the judgment of conviction be reversed, and we are of the opinion that his recommendation is well founded. The only evidence against the defendant is his own confession and the uncorroborated testimony of his codefendant, Camilo Angeles. Unfortunately the confession seems to have been made under such circumstances as to raise the presumption that it was induced by fear of physical violence, and that it was not of such a free and voluntary character as to give it weight and value as competent evidence. Baluyut and Angeles having been arrested on the charge, they were confined together and examined touching the misappropriation of the property in question. Both at first denied having any guilty knowledge of the matter, and persisted in their denials until Camilo Angeles, having been beaten and buffeted by Epifanio Carreon, finally admitted that he had received the razor from Baluyut in satisfaction of a debt. Baluyut then admitted that he had given the razor to Angeles. That Angeles was beaten is not denied by the prosecution, although he himself testifies that his incriminating statement was "spontaneous." Inasmuch as the prosecution carefully refrained, however, from asking him if he had been struck before making it, and declined to examine Goodale, Carreon, or Reyes on the subject at all, although they were witnesses for the prosecution and present at the time of the alleged beating, it is reasonably safe to assume that any spontaneity on the part of Angeles was accomplished by the strenuous measures described by defendant and his witness, Gutchillan. No physical violence appears to have been visited upon Baluyut himself, yet, for all that, his confession made under the circumstances set out in the record must be excluded from consideration by the court for the lack of that free and voluntary character which would otherwise give it value as evidence. The physical violence to his co-defendant, inflicted within his hearing, and almost in his immediate presence, to force a damaging admission, was as

much an intimidation of the appellant, as much a warning to him of what he might expect under like circumstances, as if he had been openly threatened with similar ill treatment should he further persist in his denials of guilt. That confession may have any weight whatever with courts of justice, as legal proof, it is absolutely necessary that they should be freely and voluntarily made. If they are brought about by menace, threat, or intimidation or by a promise of reward or even of leniency they are stripped of the only element which makes them valuable to courts in determining the truth. With this confession out of the way the only evidence remaining against the defendant is the testimony of Angeles to the effect that Baluyut sold him the razor. The testimony of this witness standing alone and uncorroborated by other competent evidence does not convince the court of the guilt of the accused to a moral certainty and beyond a reasonable doubt. The testimony of this witness is a substantial repetition of the statement obtained from him as the result of physical violence and force. It is impeached by the witness Batac, who testifies that Angeles informed him before the arrest that an American had given him (Angeles) the razor to sell. It is weakened by the fact that the prosecution failed to call Eulalio Razon or Pedro to corroborate Angeles's statement that the razor had been given to him by Baluyut in their presence. It is unreliable because of the character of the witness, who is shown by the evidence to have stolen the cochero's watch, which he only returned after being threatened with prosecution for the theft by Mr. Goodale. For these reasons the unsupported evidence of his codefendant is not sufficient to warrant a conviction of the appellant. The judgment of the lower court must therefore be reversed, arid the defendant acquitted of the charge, with with costs de oficio. So ordered. Arellano, C. J., Cooper, Willard, Mapa and Ladd, JJ., concur. Torres, J., withdrew from this case.

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G.R. No. 880, November 14, 1902

THE UNITED STATES, COMPLAINANT AND APPELLEE, VS. ROMAN SARMIENTO, DEFENDANT AND APPELLANT. D ECIS ION
WILLARD, J.: On the 1st of November, 1901, the defendant was a clerk in the custom-house at Manila. Whenever there was presented to him a petition asking that a license be granted to enable a vessel to engage in the coastwise trade it was his official duty to make out a note in, triplicate showing the tonnage of the vessel and the amount of the fee charged for the license (which fee was at the rate of $1 for each ton). This triplicate note, after approval by the head of the Department, was taken by the applicant to the cashier, the dues paid, one of the triplicate notes with the cashier's receipt returned to the defendant, who thereupon issued the license and delivered it and the note and the receipt to the applicant. On the 4th or 5th of November Juan Urnales, a clerk of one Zapirain, presented to the defendant at his desk in the custom-house a petition for a license for the vessel Dolores. He presented at the same time the old license. This showed that the tonnage was $325.73. Instead of making out the triplicate note for $325.73 he made it out $25.73. This, if done knowingly and intentionally, would constitute the crime of falsification defined in article 300, 4. The defendant in his testimony says that the mistake was unintentional. We can not credit this testimony. The evidence shows that under the pretense that the cashier would not receive silver dollars, but only bank bills, he got Urnales to give him the bag of $326 which he (Urnales) was carrying, presented to the cashier the triplicate note showing the dues to be $25.73, paid the sum of $25.73, altered the payee's note by placing a figure "3" before the number "25.73," and delivered it to Urnales with the license. The fraud was discovered the day on which the payment was made. The next morning the defendant went to the hotel of Mr. Mobley, his chief, promised to repay the $300 that morning and deposited with him $300 in bills as security for his undertaking. Later in the same forenoon he caused $300 to be paid to the cashier. The defendant denies most of this testimony, but to our minds it is conclusive against him, notwithstanding the evidence of his good character and the alleged contradictions in the testimony of the witnesses for the Government pointed out in the brief of his counsel in this court. What has been said disposes of the fifth, sixth, and seventh points of that brief. The point is also made that the trial was void because part of the testimony was taken in English. It appears that the evidence referred to was taken at the preliminary hearing and not at the trial. Moreover, there is no claim that this in any way prejudiced the rights of the defendant. Under article 10 of General Orders, No. 58, it must be disregarded. It is also claimed that the complaint states the crime of falsification with estafa, or both crimes, in violation of article 11 of General Orders, No. 58. The complaint does not support this claim. There are no facts alleged which show that the crime of estafa as defined in any one of the paragraphs of article 535 was committed. There is no allegation in the complaint that any money was received by the defendant from any one. The claim that the defendant voluntarily desisted from his unlawful purpose can not be sustained. He made no effort to return the

money until after his crime had been discovered and became known at the custom-house. The court below convicted the defendant under article 301, holding that the defendant was a private person. We can not agree with this conclusion. We think that he was a public functionary, and therefore included in article 300. The term "public functionary" is defined by article 401 as follows: "For the purposes of this chapiter and the preceding chapters of the present book, all persons who, by direct requirement of law, or by popular election, or by public appointment by competent authority, participate in the exercise of public functions, shall be regarded as public functionaries." The defendant was a public functionary within this definition, and the offense was committed in the discharge of the very duties imposed upon him by his superiors. The judgment below is in all tilings confirmed, except that the punishment is hereby fixed at twelve years and one day instead of six years and one day. The costs of this instance are against the defendant. It is so ordered. Arellano, C. J., Torres, Cooper, Smith, and Mapa, JJ., concur. Ladd, J., did not sit in this case.

OSJurist.org

G.R. No. 881, August 30, 1902

THE UNITED STATES, COMPLAINANT AND APPELLEE, VS. PEDRO ALVAREZ, DEFENDANT AND APPELLANT. D ECIS ION
LADD, J.: On the 27th of December, 1901, Maria Esperanza Evangelista, a young woman 21 years of age, left her parents' house without their knowledge and went to the house of the defendant in the same pueblo, where she remained in his company ten days. The defendant was married, but it would appear that he lived apart from his wife. He had represented himself to Maria to be a widower, and had agreed to marry her. The intimacy between them had existed for some months prior to the elopement. Maria testifies that she went to the defendant's house in pursuance of an arrangement had with him, and this evidence, taken in connection with the natural inference which arises from the facts which we have statedall of them established independently of her testimonyaffords ample warrant for the finding of the court below to the effect that she was induced to leave her home by the persuasions of the defendant. Nor can it be doubted, in view of the deceit practiced by the defendant and in the entire absence of any evidence upon which any other explanation of his conduct in receiving her in his house can be based, that his purpose was an immoral one. It is not, however, shown that he actually assisted her in any way in making her escape from her home, further than to receive and conceal her in his house. Upon these facts, the defendant was convicted under article 446 of the Penal Code, which punishes "the abduction of a virgin under 23 and over 12 years of age, effected with her consent." It is claimed that the conviction is wrong (1) because the young woman was not taken physically from her parents' home, either by the defendant or through his agency, and (2) because the fact of her virginity at the time of the alleged rapto was not established. (1) The etymology of the word "rapto" would indicate that the offense involves a physical taking of the person, but in the case of a rapto with the consent of the woman, where ex hypothesi s the woman is not taken away from her home by force, but abandons it of her own accord, enticed by the wiles and persuasions of the raptor , it is apparent that the word is not used in its original and proper signification, but is employed in the sense of seduction. "There are two kinds of raptorapto by force, punished by article 445 of the Penal Code, and rapto by seduction; the first is that which is effectd by violence, against the will of the person abducted, and the second is that which is accomplished without the resistance of the person, when she consents to it through promises, enticements, or artifices of her raptor ." (4 Escriche, Dictionary of Legislation and Jurisprudence, 793; article Rapto.) In the latter case, if the woman leaves her home in the company of the raptor , or if he provides means whereby she may effect her escape, and so, in a sense, takes her from her house, these circumstances are merely incidents in the commission of the offense, and do not pertain to its essence.

The essence of the offense is not the wrong done to the woman, but "the outrage to the family and the alarm produced in it by the disappearance of one of its members." (Judgment of the supreme court of Spain of November 30,1875.) It has accordingly been held by the same court, in a case where the facts were not distinguishable from those now before us, that all the essential elements of the offense were present, the court stating the law to be that "it is not necessary * * * that the virgin * * * should have been taken physically from her parents' house, but it is sufficient that he has abandoned it, and that, yielding to the allurements and promises of the seducer, she has withdrawn herself for a time from the power and vigilance of her parents." (Judgment of October 29, 1895.) To the same effect is the judgment of March 31, 1896. We are satisfied, both upon principle and authority, that a forcible taking of the woman is not an element of the offense described in the article under which the defendant was convicted. (2) Under the Spanish system of proof, the mere fact that a woman was unmarried did not give rise to a presumption de jure of her virginity; nor would this fact, without any other evidence tending to show her good repute, be a sufficient basis for a presumption of fact. (Judgment of the supreme court of Spain of July 4, 1896. See also judgment of June 30, 1891.) Under the system of proof established by the new Code of Civil Procedure, a presumption de jure of the woman's virginity would arise whenever it was shown that she was unmarried, and would continue until overthrown by proof to the contrary. (Section 334, 1.) The provision cited establishes, we think, a rule for both civil and criminal cases, and might be applied to the present case. It is not, however, necessary to decide that this is so, because we think that there is sufficient evidence in the case to warrant the inference of the young woman's virginity, without the aid of any artificial legal presumption. Slight evidence is sufficient of a fact of this character, when there is no absolute proof to the contrary. (Judgment of the supreme court of Spain of June 30, 1891.) Here it is shown, not only that the young woman was unmarried, but that she lived at home with her parents, a mode of life not commonly or naturally associated with dissolute habits. This, we think, was sufficient. The court below did not find the existence of any aggravating or extenuating circumstances, and we do not discover any. The penalty should, therefore, be applied in its medium degree, and the court erred in applying it in its minimum degree. We are also of opinion that the sum in which the defendant is required to endow the young woman is too large, having regard to the circumstances of the parties and the social and economic conditions of the country. The defendant should be sentenced to one year eight months and twenty-one days of prision correccional; to endow the young woman in the sum of 500 pesos, Mexican, with costs. With these modifications the judgment is affirmed, and the case will be remanded for execution of the judgment as modified. It is so ordered. Arellano, C.J., Cooper, Torres, and Willard, JJ., concur. Mapa, J., did not sit in this case.

OSJurist.org

G.R. No. 885, November 11, 1902

THE UNITED STATES, COMPLAINANT AND APPELLEE, VS. MARCELO DE GUZMAN, DEFENDANT AND APPELLANT. D ECIS ION
COOPER, J.: Marcelo de Guzman is charged with the murder of Pelagio Bonifacio with alevosia and premeditation, and was convicted in the Court of First Instance of Pangasinan under article 403 of the Penal Code and sentenced to imprisonment at hard labor in the public prison of Pangasinan for the period of his natural life, and to pay to the widow of the deceased, Bonifacio, the sum of 1,000 pesos, and to pay the costs of this suit. An application has been made for the discharge of the accused under the provisions of the amnesty granted by the President of the United States by his proclamation of the 4th of July, 1902. It is stated in the application that the accused is a Filipino and that the crime was committed by him while taking part in the insurrection against the Spanish Government in these Islands, and that the offense has the character of a political crime committed during the course of the insurrection, in obedience to orders given by the military authority of the insurrection, or, at least, the offense was committed as the result of internal political feuds and dissensions among the Filipinos; that the death of the deceased was not committed through any personal motive, and therefore the accused is comprehended in the proclamation of amnesty, and asks this court that he be placed at liberty after his taking and subscribing the oath of allegiance prescribed in the amnesty proclamation. The testimony in the case shows that the defendant, Marcelo de Guzman, was a captain in the insurgent army and had many posts under his command, and often visited the pueblo of Binmaley during the time that the insurgents occupied that pueblo. That upon one occasion on one of iiis visits there, about the time the Spanish army surrendered at Dagupan, the deceased, Pelagio Bonifacio, was brought before Guzman, the defendant, charged as a spy of the Spaniards; that deceased was interrogated by Guzman and admitted that he was a spy, whereupon the defendant, after assaulting and abusing him, ordered a couple of soldiers under his command to carry the deceased to the cemetery near by, there to be killed. The order was duly executed by the soldiers. The defendant testified in the case and stated that his action was based on an order given by one Vicente Prado, his superior in command, who directed him to look out for a spy in the pueblo of Binmaley and when found to have him executed; that the deceased was captured and brought before him, and having been asked whether he was a spy or not answered in the affirmative, and thereupon he reported the circumstances back to Vicente Prado, who ordered the defendant to kill the deceased. This statement as to the defendant having received direct orders from Vicente Prado for the execution of the deceased is not borne out by the testimony of the witnesses, who state that no sooner had the deceased been brought in the presence of the defendant than the deceased was struck by the defendant and ordered to be taken off and shot. However, it appears beyond doubt that the commission of the offense was done by the

defendant as an officer in the insurgent army, and that it grew out of internal political feuds and dissensions between Filipinos and Spaniards or out of the political feuds and dissensions among the Filipinos themselves during the Spanish insurrection. Following the cases decided at the present term of this court of the United States vs. Vicente Villamor; United States vs. Ariastasio Carmona; United States vs. Jose Guzman et al., it must be held that the defendant brings himself within the amnesty proclamation of the President, and that he is entitled to be discharged upon his taking and subscribing the oath prescribed in the amnesty proclamation before any authority in the Philippine Archipelago authorized to administer oaths. Upon such oath being presented to this court the defendant will be ordered discharged from custody. Arellano, C. J., and Torres, J., concur. WILLARD, J., with whom concur Smith and Ladd, JJ., concurring : We concur in the result in this case, inasmuch as the accused acted under orders from his superior, Vicente Prado. The testimony of the accused that Prado told him to watch for the deceased and to execute him when found has not been contradicted.

OSJurist.org

G.R. No. 886, September 09, 1902

THE UNITED STATES, COMPLAINANT AND APPELLEE, VS. ADRIANO SOLAR, DEFENDANT AND APPELLANT. D ECIS ION
SMITH, J.: In this case Adriano Solar was convicted in the Court of First Instance of the Province of Pangasinan of the crime of "attempt to rape" and sentenced to four years and two months imprisonment in the public prison of the province, with costs. He now appeals to this court from the judgment, and the only question raised by his appeal is the sufficiency of the evidence upon which his conviction was secured. The testimony for the prosecution as disclosed by the record is to the effect that about 10 o'clock of the morning of the 15th of November, 1901, the accused, Adriano Solar, having a knife in his hands, entered the house in which the prosecuting witness, Juliana Perez, then was and seizing her hands attempted to embrace her and to throw her on the floor. All this took place near an open window of the house and in the actual presence of Aniceta Solar, the aunt of Adriano Solar, and Potenciana Salcedo, the aunt of Juliana Perez. The accused said nothing from the time he entered the house and commenced the assault until he left it after the complainant, with the aid of the other two women, had released herself from him. The prosecutrix claims that she received injuries about the head and breast caused by the knife in the hands of Solar. From these injuries she says she recovered in about a week. The only witness in behalf of the defense is the accused himself, who testified that he lived in the same house with his accuser and that she is the daughter of Antonio Perez and one Petra Salinas, who was the concubine of his father. He further says that he went to the house on th morning of the alleged offense and in the presence of Tomas Tirao, Maxima, his wife, and Aniceta Solar, ordered Juliana Perez to leave the house because she and her mother had stolen certain documents and money from him and had tried to bribe a man by the name of Pedro to kill him. He says, also, he inflicted no violence on the prosecutrix, and that she denounced him to the court in revenge for being ordered from the house. Neither Pedro, Tomas Tirao, nor his wife were produced as witnesses. One of the essential elements of the crime of "attempt to rape" is the intent to have carnal knowledge of a woman against her will, and in despite of any resistance she may make. If this element is wanting or the prosecution fails to establish it by competent evidence beyond a reasonable doubt the charge is not made out and no conviction on it can be had. The evidence in this case seems to show that an assault was committed, but hardly goes to the extent of establishing that it was committed with the intent to rape. There is no, act, word, or deed which satisfactorily shows beyond a reasonable doubt that the accused sought to have criminal knowledge of the person of the complaining witness or that his design was any other than the infliction on her of physical violence or bodily harm. Any inference or presumption that he intended to violate the complainant which might be drawn from the fact that he seized her hands, put his arms about her, and attempted to throw her on the floor is overcome by the fact that these acts of violence were perpetrated in broad daylight near an open window in the presence of close relatives of both. Crimes against the

chastity of women are not usually committed in the presence of persons not aiding and abetting the offense and much less in the immediate personal presence of kinswomen whose active opposition might be reasonably expected. The evidence being insufficient to support the charge of "an attempt to rape" the judgment based on it ought to be reversed, and it is so ordered, with costs de oficio. Arellano, C. J., Torres, Cooper, Willard, Mapa, and Ladd, JJ., concur.

OSJurist.org

G.R. No. 887, September 25, 1902

THE UNITED STATES, COMPLAINANT AND APPELLEE, VS. BENIGNO DE VERA, DEFENDANT AND APPELLANT. D ECIS ION
TORRES, J.: Appeal by the defendant from the judgment of the 20th of January, 1902, rendered in case No. 83 of the Court of First Instance of Pangasinan, by which the defendant was convicted of the crime of abduction and was sentenced to seventeen years four months and one day of imprisonment with hard labor, to count from the day of the judgment, with the corresponding accessories, and to the payment of costs. After 10 o'clock one night in the year 1900, day and month unknown, the defendant, Benigno de Vera, and several other men, provided with arms, went to the house of Rosa Magalon. De Vera immediately entered the house and seized Severina de Guzman, a girl some 18 years of age, the daughter of the owner of the house. Notwithstanding her opposition and her attempt to cling to her mother, he forcibly carried her off against her will, taking her out of the house. In the struggle he struck the girl's mother a blow in the chest, upon which she fled from the house. The three women who were living in the house were unable to call for assistance or prevent the aggression, as they were overcome with fear. The abducted girl was placed on horseback by De Vera and taken to his house at a place called Bagnat, where she was held for three days and by threats compelled to accede to De Vera's lewd desires, until Mariano Gonzalez, accompanied by several other men, came to the house and notwithstanding the opposition of the defendant succeeded in recovering the girl and restoring her to her mother's house. These facts constitute the crime of abduction, committed against the will of the victim, and with a lewd intent, a crime covered by article 445 of the Penal Code. The commission of the offense is fully proven by the testimony of the injured party, of her mother, and of another woman who lived with them in the house, all of whom uniformly testified to the occurrence in all its details. Notwithstanding the plea of not guilty entered by the defendant, the evidence in the case is sufficient to establish his guilt. This evidence, has not been contradicted by the defendant, who was present when the prosecuting witness testified and heard the testimony of each one of the witnesses for the prosecution without having alleged any exculpation or having made any attempt to show his innocence of the crime of which he is charged. In the commission of the abduction for which this prosecution is brought, the circumstance of nocturnity, No. 15 of article 10 of the Code, must be cpnsidered in view of the fact that the defendant availed himself of the darkness and silence of night for the consummation of the crime. Furthermore, aggravating circumstance No. 20 of article 10 must be applied, by reason of the fact that the crime was committed in the dwelling of the offended person, this circumstance being compensated in its effects by article 11 as a mitigating circumstance to be applied in view of the nature of the crime, the disturbed condition of the country at the time the abduction took place, and the personal conditions of the defendant. Therefore the penalty assigned by the law must be imposed in its maximum degree.

Furthermore, with respect to the motion made by the counsel for the defendant for a dismissal of the proceedings on the ground that the prosecution was commenced without the express solicitation or instance of the offended party, it is a sufficient answer to consider the object and purpose of the penal law, which does not require a formal written denunciation as a basis for the prosecutibn of the crime of abduction. This formality is not required by article 448 of the Code, which expressly declares that it is not necessary that a formal petition be filed. In this case the provincial fiscal filed an information by virtue of the complaint made to him by the complaining witness, who, with her mother, sustained and confirmed during the trial the action brought by the fiscal in the name of the Government. Therefore there is no legal reason or ground upon which the petition of the defendant that the proceedings be set aside can be granted, and, consequently, for the reasons stated, the defendant, Benigno de Vera, must be convicted and sentenced to the penalty of seventeen years four months and one day of reclusion temporal, with the accessories designated in article 59, indemnification as a dowry for the girl Guzman of 500 Mexican pesos, and to acknowledge the issue, if any, unless the quality of its origin should prevent, and to support such issue, if any, and to pay the costs of both instances. The judgment of the court below is reversed. So ordered. Arellano, C. J., Cooper, Willard, and Ladd, JJ., concur. Mapa, J., did not sit in this case.

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G.R. No. 888, August 16, 1902

THE UNITED STATES, COMPLAINANT AND APPELLEE, VS. MANUEL GARCIA, DEFENDANT AND APPELLANT. D ECIS ION
TORRES, J.: This case was prosecuted in the Court of First Instance of Pangasinan against the defendant, Manuel Garcia, on an information for murder. The case having been brought here on appeal, counsel for the defendant has moved the court for an order declaring that the offense prosecuted falls within the provisions of the proclamation of amnesty promulgated July 4 last, by the Civil Governor in the name of the President of the United States. The information charges two serious offenses alleged to have been committed on May 11, 1898, by the said Garcia, formerly president or municipal captain of the town of Manaoag, Pangasinan. The town having been attacked by a large number of insurgents early on the morning of the day mentioned, the local police and a number of volunteers commanded by the muriicipal captain, Manuel Garcia, succeeded in repelling the attack. They pursued the attacking party and captured two of them, who were immediately tried by a summary court-martial, presided over by the municipal captain, and the two men were at once executed in the town square. The accused alleges that this proceeding was strictly in accordance with instructions given him and other local presidents by the then civil governor of Pangasinan, who governed that province on behalf of the Spanish Government, and that he therefore acted as a Spanish official and in the exercise of the powers and duties of a municipal captain. Supposing that the killing of these two men constituted the crime of double murder, perpetrated by a Spanish official invested with authority, during the period of Spanish sovereignty in these Islands, can the defendant, Manuel Garcia, in view of the capacity in which he acted when ordering the commission of these crimes, be considered to be entitled to the benefits of the amnesty proclamation? The reply, in our opinion, must be negative, both under the spirit and the letter of the proclamation. The conditions required for the application of amnesty are complex. It is necessary for the delinquent to be a person who, in the Philippine Archipelago, has committed one or more of the crimes enumerated in the proclamation. The defendant who now seeks the benefit of the amnesty, although he is a Filipino and the crimes charged against him were intimately connected with the political movement, nevertheless, as he does not pertain to the class of persons to whom the amnesty expressly refers, it is legally impossible, without disregarding the generous purpose of the Chief Executive, to hold him entitled to its benefits. It is true that this is a matter in which a broad and favorable interpretation should be followed; but it is also true that it is never lawful to extend the purpose of the sovereign to cases and persons not included within the scope and terms of the benefit conceded. Without prejudging the question of the guilt of the appellant, Garcia, it must not be forgotten that the accused, when the acts which have led up to this prosecution were committed, was in

the exercise of a public office of local authority in the town of Manaoag, in the name and representation of the Spanish Government, and therefore he was an official of Spain, and was not a rebel or revolutionist against the authority of the Spanish Government. If the defendant has committed such crimes in violation of law, and by the abuse of his official position under the former Government, the mere reading of the amnesty proclamation is sufficient to show that such an offender is not entitled to its benefits. This act of policy which the Chief Executive saw tit to adopt after a long and radical disturbance of the Filipino people, thus throwing the veil of pardon and forgetfulness over certain crimes committed on account of or on the occasion of the revolution, for the purpose of tempering or mitigating the rigor of the law in accordance with the dictates of common sense and human conscience, can under no circumstances be regarded as referring to public officials of the Spanish Government, even though they may have been natives of the Philippines. Those who, under the former Government, abusing a public office, have committed crimes punishable under the Code, can not therefore be included in the amnesty, inasmuch as it does not appear from the text of the document that it was the express will of the President to include such crimes of Spanish officials within its scope, and the courts of justice would certainly exceed their authority were they to give the amnesty decree a greater scope than that which it should properly be given. Furthermore, even in case Manuel Garcia should be entitled to such pardon, it is incumbent upon him to solicit this favor from the Chief Executive, who alone can grant him a special pardon now, the general amnesty in question not being applicable. For the reasons stated the motion of the attorney of Manuel Garcia is overruled, with the costs against him. Arellano, C. J., Cooper, Willard, and Ladd, JJ., concur. Mapa, J., did not sit in this case.

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G.R. No. 890, August 29, 1902

THE UNITED STATES, COMPLAINANT AND APPELLEE, VS. VICENTE VILLAMOR, DEFENDANT AND APPELLANT. D ECIS ION
WlLLARD, J.: On the 28th day of September, 1900, Guillermo Ballesta was the jefe principal , in the pueblo of Bangued, in the Province of Abra, of the Filipino forces then in insurrection against the United States. The defendant, Vicente Villamor, a Filipino and resident of the Islands, was at that time his secretary. On that day the soldiers of Guillermo Ballesta pursuant to his orders seized the person of Bernardo Dumasal and conveyed him to a house in the said pueblo. He was there tried by a council of war presided over by said Guillermo Ballesta as jefe principal and composed of the said Ballesta and the jefes parciales of that vicinity. The defendant acted as secretary of this council. Dumasal was by the council convicted and sentenced to death, and we will assume that the proof shows that the sentence was executed. The judgment of the council was in writing. The defendant signed it, as secretary, and gave a copy of it to the officers charged with its execution. He had, according to the testimony, neither voice nor vote in the council. Dumasal was tried for the crime of having bought cows for the Americans and was convicted of being a traitor to his country. The trial and conviction were had pursuant to laws and regulations promulgated by officials of the insurrectionary forces superior in rank to the defendant. The case being here on review and upon appeal by the defendant from a sentence of death, he moved for his discharge on the ground that he was included in the proclamation of amnesty of July 4, 1902. The Solicitor-General joined in the motion. We think that it should be granted. The defendant was and is an inhabitant of the Philippine Islands. At the time the act complained of was committed he was participating against the United States in the insurrection then existing. The execution of Dumasal was "an offense of a political character." (In re Castioni, R. (1891), 1 Q. B., 149; in re Ezeta, 62 Fed., 964; United States vs. Oarmona, decided by this court August 19, 1902.) The evidence shows that it was committed pursuant to orders issued by the civil or military insurrectionary authorities superior in rank to the defendant. So that, assuming that the evidence shows that the defendant is guilty of the crime charged against him, a question which we do not decide, it also shows that he has been pardoned. The defendant is therefore declared to be entitled to the benefit of the proclamation, upon filing in this court the oath prescribed therein as a condition of the amnesty, and upon the filing of such oath the cause will be returned to the court below with direction that the defendant be discharged, with costs de oficio. So ordered. Arellano, C. J., Torres, Cooper, and Ladd, JJ., concur. Mapa, J., did not sit in this case.

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G.R. No. 891, December 11, 1902

JUANA DOMINGO, PLAINTIFF AND APPELLEE, VS. THE WARDEN OF BILIBID PRISON, DEFENDANT AND APPELLANT. D ECIS ION
COOPER, J.: A writ of habeas corpus was granted petitioner, Juana Domingo, by the Court of First Instance of the city of Manila, and upon a hearing she was discharged from the custody of the respondent who held her under a conviction and sentence of the Municipal Court of Manila for the District of South Pasig. From the decision of the Court of First Instance the Government has appealed to this court. We will not attempt to review the judgment of the Court of First Instance in making this order, in view of the conclusion which we reach, that this court has no jurisdiction over the appeal. The Code of Civil Procedure, 1901, is divided into two. parts - Part I relating to civil actions and Part II to special proceedings. The difference between the procedure in civil actions and in special proceedings relates, principally, to the powers of the judge or court. Under this classification various proceedings have been denominated as special proceedigs, such as the appointment of guardians, trusts and trustees, wills and allowances thereof, the settlement of estates of deceased persons, etc., and among them proceedings in habeas corpus. All civil actions are brought to this court by bill of exceptions, while special proceedings are brought here by the procedure denominated "appeals in special proceedings." Chapter 42 of the Code of Civil Procedure regulates these appeals and specifically provides for the different classes of cases appealable. Thus, section 773 provides for an appeal from an allowance or disallowance of a claim. Section 778, fdr appeals from the settlement of account of administrators, executors, trustees, or guardians. Sections 781, for appeals in case of allowance or disallowance of wills. Sections 782, for appeals from decree of distribution, and finally, Sectiop 783 regulates appeals in other cases affecting settlement of estates. We also find in section 772 an appeal allowed in cases of adoption and custody of minors. It will be seen by an examination of these sections the right to appeal is given in every character of special proceedings except the special proceeding of habeas corpus. It has not been deemed proper that appeals should be taken in this character of proceeding, as is evident by the failure to make provision for such appeal. For those wishing to avail themselves of the benefit of habeas corpus there would be no

necessity of an appeal to the Supreme Court because they have the right to make application direct to the Supreme Court for the issuance of the writ. It is true that the act of a judge of the Court of First Instance in discharging a defendant committed under sentence of another court, under a mistaken view of the law as to jurisdiction, might be quite serious, but the legislative power has not seen proper to provide the Government with the remedy of appeal in such cases and we can not furnish one. The appeal in this case is therefore dismissed with costs de oficio. Arellano, C. J., Torres, Smith, Willard, Mapa, and Ladd, JJ., concur.

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G.R. No. 892, September 11, 1902

THE UNITED STATES, COMPLAINANT AND APPELLEE, VS. JUAN LUNA, DEFENDANT AND APPELLANT. D ECIS ION
TORRES, J.: This case was prosecuted in the Court of First Instance of Manila against Juan Luna for attempted abduction, and was brought before us by an appeal taken by the defendant against the judgment of the 12th of March last, by which he was condemned to one year eight months and twenty days of prision correctional, with accessories, and to the payment of costs. While the appeal was pending in this court the attorney for the appellant, by petition dated the 17th of May last, presented to the court a public instrument dated the 15th of the same month, by which, with the consent of the defendant, Tomasa Rivera y Felipe, a widow, who states that she is the mother of the minor Juana Isidro y Rivera, 12 years of age, the alleged victim of the crime prosecuted, granted an express pardon of the offense committed, as the representative of her said daughter, in favor of the defendant, Juan Luna, remitting the penalty to which he may have become liable, this pardon having been granted generously, without consideration of recompense and without coercion. The attorney for the defendant moved the court to declare that the penal action brought by the complaining witness was extinguished, and asked that the bail bond given by the defendant be canceled. This case deals with an offense in which the penal action or liability to the penalty fixed for its punishment may be extinguished by the express or implied pardon of the party offended, in accordance with the last paragraph of article 448 of the Penal Code. The motion of the counsel for the defendant is based upon an express pardon, recorded in a public instrument, by the mother of the injured party, who, being a widow, exercises over the complaining witness the rights of parental authority. The Solicitor-General opposes this motion on the ground that the pardon was not granted by the injured party herself, as is expressly required by the Penal Code. In view of the clear and precise terms in which paragraph 4 of article 448 is drawn, there can not be the slightest doubt that the express pardon for the offense must be granted by the injured party, and in case the injured party should be a minor, or should lack the necessary capacity to maintain an action, then, in order that the .pardon have its effect, it is necessary that this defect be cured by the completion of this deficient personality. In the third paragraph of article 448 it is provided that if the injured party, by reason of nonage or moral condition, should be without capacity to sue, and should be so unprotected as to be without parents, grandparents, brothers, tutor, or curator, then the fiscal may denounce the crime. It appears, therefore, that the right to prosecute the crime or to appear in the action is attributed in the first place to the person aggrieved, and, in the event of such person being unable to do so by reason of lack of personality, then the law designated in successive order the persons upon whom devolves the duty of prosecuting the crime. Correlative to this precept, the following paragraph establishes the right, conferred by the law upon the injured party, to grant a pardon. In order that the pardon produce its effects it must be made by the person injured, or, in case that person be a minor, then the parents or

guardian of such person must take part in the granting thereof. But the granting of pardon by these persons alone, in the name or on behalf of the minor, is not sufficient, because, as the offense essentially and directly affects the injured party, she alone is entitled to remit the offense and to authorize the extinction of the penal action. This pardon can only be presumed in the case of the marriage of the injured party with the offender, and can not be presumed from any act on the part of her. representatives. The best confirmatory demonstration of the doctrine that it is absolutely necessary and indispensable that the pardon be granted by the victim of the attempt herself is a decision of the supreme court of Spain of the 5th of January, 1898, applying the precept of section 4 of article 448 of the Penal Code, to the effect that a marriage entered into by a girl under age, although illegal because of lack of consent of the parents, is sufficient to produce the extinction of the penal action and of the penalty, because, by the celebration of this marriage, the pardon of the offense is presumed, and the crime is blotted out by the marriage of the injured party to the offender. Consequently, as it has not been made to appear that the offended party, Juana Isidro, has expressly pardoned the injury alleged to have been done her by the defendant Juan Luna, and the pardon of the girPs mother not being sufficient to authorize the dismissal of the case in accordance with the provisions of the Penal Code, we are of the opinion that the contention of the attorney for the defendant can not be sustained, and therefore the motion is overruled, with the costs, and the prosecution of this case in the second instance will be continued. So ordered. Arellano, C. J., Cooper, Smith, Willard, Mapa, and Ladd, JJ., concur.

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G.R. No. 895, September 13, 1902

THE UNITED STATES, COMPLAINANT AND APPELLEE, VS. BRAULIO ROQUE, DEFENDANT AND APPELLANT. D ECIS ION
LADD, J.: The defendant was convicted in the court below of falsification under article 304 in connection with No. 1 of article 300 of the Penal Code. The evidence at the trial tended to show that he had been furnished by his employer, Captain Harford, with money to pay certain shop bills contracted by the latter, and among others one of H. Price & Co. for 64 pesos; that he signed the name of M. Legaspi, an employee of that firm, to what purported to be a receipt for the bill, which he then delivered to Captain Harford; and that he retained the money for about two weeks thereafter, when, having learned that his deception had been discovered, he sought out H. Price & Co. and paid the bill to them. But as there was no evidence that he imitated or attempted to imitate Legaspi's handwriting in the signature to the receipt the conviction can not be sustained. In order to constitute the crime of falsification by "counterfeiting or feigning any writing, signature, or rubric" (Penal Code, art. 300, No. 1) there must be, as the language in which the crime is described imports, a similitude between the genuine and the pretended writing, signature, or rubric. This is the settled doctrine of the supreme court of Spain, and it has been adopted by this court. (The United States vs. Emiliano Paraiso, decided November 13, 1901, citing decisions of the supreme court of Spain.) The complaint should have been for estafa. The judgment will be reversed and the defendant acquitted, with costs de oficio. So ordered. Arellano, C. J., Torres, Gooper, and Willard, JJ., concur. Mapa, J., did not sit in this case.

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G.R. No. 899, December 31, 1902

THE UNITED STATES, COMPLAINANT AND APPELLEE, VS. FELICITAS ORTIZ, DEFENDANT AND APPELLANT. D ECIS ION
ARELLANO, C.J.: Vicente Lavin had pledged to his grandmother, Romualda Faz de Leon, some jewelry of the value of 1,500 pesos as security for a loan of 400 pesos. This sum, advanced by Romualda Faz de Leon to her grandson, Lavin, formed part of the sum of 889 pesos, the property of Felicitas Ortiz, the defendant, the daughter of the said Romualda Faz de Leon, which sum of money was in the hands of a Chinese merchant. The jewelry pledged by the grandson to his grandmother was in turn pledged by the daughter, together with some other jewelry belonging to her, to Apolinaria Sy-Quia, as security for a loan of 1,000 pesos. Lavin offered to pay Apolinaria SyQuia the 400 pesos which he owed his grandmother, together with the interest accruing thereon up to that time, with the view to obtaining the return of the jewelry pledged. Apolinaria Sy-Quia, however, stated that Felicitas Ortiz had told her that the amount to be paid was 600 pesos as principal and 100 pesos as interest, the additional 200 pesos being part of the 889 pesos referred to, received by Romualda Faz de Leon from a Chinese merchant and loaned by her to Juana Encarnacion, and by the latter in turn loaned to Vicente Lavin, as appears from the receipt signed by the latter and endorsed by Juana Encarnacion to the accused, Felicitas Ortiz. It appears that the jewels were afterwards lost upon the death of Apolinaria Sy-Quia, according to the statement made by the mother of the latter, and it also appears that Felicitas Ortiz obtained from the mother of Apolinaria Sy-Quia the payment of the sum of 2,500 pesos for her jewelry and 1,000 pesos for the jewels of Lavin. The record contains a document, executed apparently by Romualda Faz de Leon in favor of Felicitas Ortiz, in which the former acknowledges to have received from the latter 1,500 pesos in satisfaction of the value of the jewelry belonging to Vicente Lavin and lost while in the possession of Apolinaria Sy-Quia. Vicente Lavin, upon this, instituted a prosecution against Felicitas Ortiz on the charge of estafa. In this criminal proceeding we can not consider the causes of actions which may have accrued from the second operation of pledge; from the refusal of Apolinaria SyQuia to return the jewelry pledged, upon the tender of payment made by Vicente Lavin of the sum loaned by Romualda Faz de Leon, together with the accrued interest; from the addition to the loan secured by the pledge of 200 pesos more as principal on the account of Felicitas Ortiz, who demanded that this sum be paid by Vicente Lavin, Juana Encarnacion not having done so; from the loss of the jewels while in the possession of the Sy-Quia family; from the payment of the money in lieu of the jewels said to have been made by the mother of Apolinaria Sy-Quia to Felicitas Ortiz and by the latter to her grandmother, Romualda Faz de Leon. All these questions are entirely foreign to the issues in this case. We can only consider here the acts which are alleged to constitute the crime of estafa, in the manner and form in which they are alleged to have been committed by the accused. It does not appear in any manner that the accused has attempted to appropriate or convert the jewels which Vicente Lavin had pledged to his grandmother. The fact of her having pledged them to Apolinaria Sy-Quia was not such an act of appropriation or conversion, nor was it in

itself a crime punished by any article of the Penal Code, as the acts appear to have been committed from the allegations in the record. Neither, in consequence, does it appear that the accused, by means of the second pledge, or by the claim for damages by reason of the loss of the jewels, has obtained any profit or gain, nor, furthermore, would such an intent to obtain a profit or gain by any of the means employed constitute a crime under any of the provisions of the Penal Code. She may, perhaps, have acted in excess of her right, or there may have been negligence or even intentional wrong in the acts committed by her, but nothing of this kind has been proven, nor, if it had been proven, has it been shown that the breach of duty which might have resulted has gone beyond the sphere of tortuous negligence, upon which might be predicated a liability for the payment of damages, but which does not constitute the crime punished by paragraph 2 of article 534 of the Code, as defined in section 5 of article 535 thereof, or for which Felicitas Ortiz can be held personally responsible upon a prosecution instituted by Vicente Lavin in his own right, and not on behalf of any other person who may have sustained with the accused any of the legal relations referred to in paragraph 5 of article 535 above cited. The court therefore, without deciding anything concerning the civil actions which may respectively pertain to the plaintiff and to the accused ajs arising from the possible sources of obligation before indicated, acquits the defendant, Felicitas Ortiz, with the costs de oficio. So ordered. Torres, Cooper, Smith, Willard, Mapa, and Ladd JJ., concur.

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G.R. No. 909, October 02, 1902

JOVITO YUSAY, COMPLAINANT AND APPELLANT, VS. VICENTE GARCIA VALDEZ, DEFENDANT AND APPELLEE. D ECIS ION
MAPA, J.: The defendant was charged with libel as the editor of a weekly paper in which certain defamatory matter was published in the issue of August 25, 1901. To prove that he was such editor the prosecution presented certain copies of an issue of the same paper dated October 6, 1901. There being no other evidence to connect the defendant with the publication of the libel, he was acquitted. The private prosecutor appealed the case to the Supreme Court. The number of the paper in which the alleged libelous article was published, dated August 25, 1901, did not contain the name of the defendant either as director or otherwise. To prove that he was such director the complainant offered and there was received in evidence a number of the papers published October 6, 1901, in which the defendant is referred to as such director. No other evidence was offered Tby the complainant. Without deciding whether this was or was not sufficient to prove that the defendant was the director of the paper on October 6, we hold that it was not sufficient to prove that he was such director on August 25. The judgment is affirmed with costs against the appellant. Arellano, C. J., Torres, Cooper, Willard, Smith, Ladd, and Mapa, JJ., concur.

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G.R. No. 915, August 01, 1902

THE UNITED STATES, COMPLAINANT AND APPELLANT, VS. AMBROSIO TIQUI, DEFENDANT AND APPELLEE. D ECIS ION
ARELLANO, C.J.: The final judgment in this case having been pronounced on the 31st day of March last, the complaining witness, on the 5th day of April, gave notice of appeal. The appeal was allowed. Counsel for the accused now moves the court to dismiss the appeal on the ground that it was taken on the sixteenth day after the promulgation of the sentence, fifteen days being the term assigned by article 47 of the law. The question arising is whether the fifteen days are to be counted from the very day of the publication of the judgment. In a doubtful case the law will be interpreted in the light of its underlying principles. The law in question is based upon the American legislation, and the local legislation in force prior to its promulgation, which, by section 1 thereof, is declared to be continued in force in so far as not in conflict with its provisions. Under the American system, in computing time the first day is excluded and the last day included, it not being necessary to cite authority in support of this proposition, inasmuch as the same doctrine has been established in the special legislation of the Philippines, as may be seen in articles 4 and 76 of the Code of Civil Procedure now in force. No rule was more uniform in the law as formerly and as still enforced in these Islands, as may be seen in the Codes of Criminal and Civil Procedure, as well as in the Code of Commerce and the Civil Code. Article 1130 of the Civil Code establishes as a principle that "when the term of an obligation is fixed by days to be counted from a specified one, such day shall be excluded from the computation, which shall begin on the following day." It not being demonstrated that article 47 of General Orders, No. 58, upon the subject of criminal procedure has intentionally departed from these precedents, it must be construed harmoniously with the other law, both substantive and adjective, which is wholly uniform on this subject. The reason why the first day is excluded is undoubtedly because the appellant is given fifteen days in which to appeal, and as Paragraph I, article 7 of the Civil Code provides that a day shall always be understood to consist of twentyfour hours, it follows that the period allowed would not be fifteen complete days were the day in questionthat is, the day of the publication of the judgmentto be included in the computation. The motion is therefore overruled, with costs. So ordered. Torres, Cooper, Willard, and Ladd, JJ., concur. Ladd, J., did not sit in this case.

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G.R. No. 919, December 11, 1902

THE UNITED STATES, COMPLAINANT AND APPELLEE, VS. VICENTE SOTELO, DEFENDANT AND APPELLANT. D ECIS ION
LADD, J.: The defendant, Sotelo, has been convicted under No. 1 of article 518 of the Code of the larceny of 1,450 pesos, Mexican, the property of Warner, Barnes & Co., and in the possession of J. R. C. Smith, the representative of that firm in Albay. Sotelo was employed as escribiente in Smith's office, and at times had access to the safe where the money was kept. Smith suspected him of the larceny, and accused him of it in the" presence of an officer of the Constabulary and another person. Sotelo at first denied his guilt, but upon the officer threatening to have him arrested he requested a private interview with Smith and, according to the latter's testimony, made a full confession to him. If Smith's evidence as to the confession were uncorroborated, we might possibly regard it as unsafe to convict. But it is admitted that subsequent to this interview with Smith, and after the initiation of criminal proceedings against him, Sotelo sent several telegrams to the manager of the firm of Warner, Barnes & Co. in Manila, in which he asked for pardon and mercy, and that the,prosecution be withdrawn and the.affair concealed from his family, and promised restitution. The ingenious argument of counsel for the defense utterly fails to convince us that this conduct is reconcilable with the hypothesis of innocence. The evidence in the record discloses other circumstances pointing to the defendant's guilt, to which we need not advert. We regard the evidence as to the verbal confession, corroborated as it is by the telegrams, as amply sufficient to sustain the conviction. There were no aggravating or extenuating circumstances and the court below erred in applying the penalty in the minimum instead of the medium grade. The penalty should be three years six months and twenty-one days of presidio correccional . With the modification indicated the judgment is affirmed with costs of first instance, and the cause will be returned to the court below for the execution of such judgment. So ordered. Arellano, C. J., Torres, Cooper, and Willard, JJ., concur. Smith and Mapa, JJ., did not sit in this case.

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G.R. No. 922, November 08, 1902

TRINIDAD H. PARDO DE TAVERA, COMPLAINANT AND APPELLEE, VS. VICENTE GARCIA VALDEZ, DEFENDANT AND APPELLANT. D ECIS ION
LADD, J.: Both the private prosecutor and the defendant have appealed from the judgment of the court below, finding the defendant guilty of the offense of injurias graves under articles 457 and 458 of the Penal Code, and sentencing him to pay a fine of 4,000 pesetas, with subsidiary imprisonment and costs. (1) No brief has been filed by the defendant, nor did he appear, either personally or by counsel, on the day fixed for the argument, and under the rules of this court the motion that his appeal be dismissed for lack of prosecution might be granted, but we have nevertheless deemed it proper to consider the whole case upon the merits. The evidence shows that the defendant was in September, 1901, the editor of "Miau," a periodical published and circulated in Manila, and that an article containing the alleged injurious matter was published in the issue of that periodical of September 15,1901. The article is couched throughout in grossly abusive language, and in terms not capable of being misunderstood; charges the private prosecutor, who had been then recently appointed a member of the United States Philippine Commission, with having displayed cowardice at the time of the murder of his mother and sister and with having subsequently entered into intimate political relations with the assassin. The article contains other statements and imputations of a derogatory character, but we base our opinion upon that portion to which reference has been made. Injurias graves are classified by article 457 of the Penal Code under four heads, as follows: "(1) The imputation of a crime of the class not subject to prosecution de oficio. (2) That of a vice or moral shortcoming, the consequences of which might seriously injure the reputation, credit, or interests of the person offended. (3) Injurias which by reason of their nature, occasion, or circumstances are commonly regarded as insulting. (4) Those which may be reasonably classified as grave in view of the condition, dignity, and personal circumstances of the injured party and the offender." The statements in question do not involve the imputation of a crime, and, possibly, not of a vice or moral shortcoming in the strict sense, but they are obviously of a character calculated to bring the person attacked into public obloquy and contempt, and specially so in the present case in view of the position of the private prosecutor as a high official of the Government, and they are therefore clearly comprehended under Nos. 3 and 4 of the article cited. The defendant's offer to prove the truth of the statements was properly rejected. (Penal Code, art. 460.) The conviction must be sustained. 2. The question raised by the appeal of the private prosecutor relates solely to the propriety of the punishment imposed by the court below. Article 458 of the Penal Code provides that " injurias graves, put into writing and made public [which is the present case] shall be punished with the penalty of destierro in its medium to its maximum degree, and a fine of from 625 to 6,250 pesetas." Act No. 277 of the United States Philippine Commission "defining the law of libel," etc., and reforming the preexisting Spanish law on the subject of calumnia and injurias affixes to the offense of publishing a libel as defined in the act the punishment of "a fine not exceeding $2,000 or imprisonment for not exceeding one

year, or both." Section 13 of the same act provides as follows: "All laws and parts of laws now in force, so far as the same may be in conflict herewith, are hereby repealed: Provided, That nothing herein contained shall operate as a repeal of existing laws in so far as they are applicable to pending actions or existing causes of action, but as to such causes of action or pending actions existing laws shall remain in full force and effect." This act went into effect October 24, 1901, subsequent to the publication of the article in question, and during the pendency of the prosecution. By article 22 of the Penal Code "Penal laws shall have a retroactive effect in so far as they favor the person guilty of a crime or misdemeanor," etc. The court below in fixing the punishment proceeded upon tbe theory that by the operation of this general rule the penalty prescribed in the Penal Code for the offense in question was necessarily modified and could not be inflicted in its full extension. In so doing we think the court overlooked or improperly construed the proviso in the section of Act No. 277, above cited, by virtue of which the previously existing law on the subject covered by the act is left intact in all its parts as respects pending actions or existing causes of action. The language is general and embraces, we think, all actions, whether civil, criminal, or of a mixed character. In this view of the case we have no occasion to consider the question argued by counsel for the private prosecutor as to whether the provisions of Act No. 277 respecting the penalty are more favorable to the accused than those of the former law or otherwise. The punishment must be determined exclusively by the provisions of the former law. It is urged by counsel that the official position of the private prosecutor should be considered as an aggravating circumstance under Penal Code, article 10, No. 20. We are inclined to think that in the view we have taken of the case this circumstance is qualificative rather than generic. (Penal Code, art. 78.) The result, then, is that the penalty prescribed by article 458, paragraph 1, of the Penal Code should be applied in its medium grade, and in view of all the circumstances of the case we fix the penalty as four years of destierro and a fine of 4,000 pesetas, with subsidiary liability to one day's banishment for every 12| pesetas not paid, and the costs of both instances. The judgment of the court below will be modified in accordance with this opinion, and the record will be returned to that court for the execution of the sentence as thus modified. So ordered. Arellano, C. J., Torres, Cooper, Smith, Willard and Mapa, JJ., concur.

OSJurist.org

G.R. No. 924, May 01, 1902

PIO IVANCICH, PETITIONER, VS. ARTHUR F. ODLIN, JUDGE OF THE COURT OF FIRST INSTANCE OF THE CITY OF MANILA, AND THE PACIFIC EXPORT LUMBER COMPANY, A CORPORATION, RESPONDENTS. D ECIS ION
ARELLANO, C.J.: On the 18th of the current month, the judge of Part II of the Court of First Instance of the city of Manila directed the attachment of the Austrian steamer Marguerite, with her tackle, furniture, and other appurtenances, and ordered that all persons claiming any interest in the said vessel, or who could show cause why she should not be sold as prayed for in the libel filed in the said court, be notified to appear before the said court within the term assigned. This order was made by the judge on a libel filed by the Pacific Export Lumber Company, a corporation, in which the court was prated to "issue process against the master and against the said vessel, and that all persons claiming any interest therein may be cited to appear and answer the complaint above set forth, and that this honorable court fix and decree the damages and general average due, as aforesaid, to the libellant, with the costs and attorney's fees, and that the said vessel may be condemned and sold to pay the same, and for such further relief as in law and justice may be proper." The facts stated are: (1) That the captain of the said steamer, contrary to the conditions of a charter party between the owners of the vessel and the Pacific Export Lumber Company, caused the vessel to deviate from her proper course, on account of her not being in a seaworthy condition or able to perform the service for which she was delivered by the said owners to the libellant; that the steamer was without a sufficient stock of coal, and consequently was obliged to touch at Honolulu, where fuel was taken aboard, and that the libellant was obliged to pay the harbor dues of the port of Honolulu and to pay for the coal purchased, and in addition the cost of stowing the same, the amount of these expenditures and advances being $4,327.90, United States currency, (2) That the loss of time occasioned by this deviation was five days and a half, and that the said advances, payments, and loss of time constitute a general average loss for their respective shares which the owners of the said steamer and the consignees of the cargo are liable, and that the owners of the steamer refuse to contribute their share. (3) That upon reaching Manila the owners of the steamer obtained, through the medium of the Austrian consul, the retention, by the Quartermaster Department of the United States Army, of the freights due the plaintiff corporation, thereby causing the latter damages in the sum of $26,000, United States currency. (4) That after the said steamer was discharged there were 4,000 tons of coal remaining in the bunkers, of the value of 13 pesos a ton, for which the owners refused to pay the plaintiff corporation, to its damage in the sum of 4,200 pesos, Mexican currency. (5) That upon the arrival at this port of the said steamer, the owners and the master thereof refused to call for a general average contribution, and refused to call upon the consignees of

the cargo to sign a general-average bond, as requested by the plaintiff corporation, thereby damaging the latter in the sum of $500, United States currency. The captain, being cited as above, appeared by his attorneys, and moved the court to dissolve the attachment and to dismiss the libel on the ground that the latter was a nullity. On the 24th of this month the motion was argued, and was overruled by the court. These are the antecedents of the action brought by the said captain against the judge and the corporation above mentioned. He seeks to obtain from this court the issue of a writ of prohibition against the Hon. Arthur P. Odlin and against Attorney Oscar Sutro, as representative of the libellants, prohibiting the judge from continuing to take cognizance of the case, the trial of which had been commenced, as he has commenced to do, and from detaining the steamer upon an ex parte libel, and to prohibit Attorney Sutro from continuing to prosecute the suit and seeking the detention of the steamer without actual parties to the proceeding, as required by the provisions of chapter 6 of the Code of Civil Procedure, and asks that both of them be prohibited from detaining the eaid steamer unless this be done in accordance with the provisions of chapter 18 of the Code. The prayer for relief seems to indicate that this court is asked to lay two prohibitions upon the judge of the inferior court, one prohibiting him from taking cognizance of the case, unless he acts in accordance with the provisions of chapter 18 of the Code of Civil Procedure, and the other restraining him from taking cognizance of the case with reference to the detention of the steamer upon an ex parte complaint. The petition for the first prohibition is based on the allegation that the judge, in overruling petitioner's motion on the 23d instant, takes the ground that the word "admiralty" used in section 4 of article 56 of the Organic Act passed by the United States Philippine Commission ex priore vigore brought to the court all the procedure in use in the maritime courts of the United States; that he sustains his jurisdiction to entertain a libel in rem against a vessel without personality to be sued, and insists upon his jurisdiction to attach the steamer without any of the formalities prescribed by law, and declares his intention to continue to exercise it unless prohibited by this court; and that the petitioner is deprived of the command of the yessel, and the owners thereof of the profits which they might otherwise earn were the vessel free, and that they are. furthermore caused damages by reason of the cost of maintaining the vessel, which alone amounts to $200 per diem. The ground upon which the second prohibition is sought is that the attachment ordered by the court is not such an attachment as is authorized by articles 424 et seq. of the Code of Civil Procedure of the Philippine Islands, but on the contrary is an attachment under a procedure not in force here, although it is in force in the United States of America in maritime cases, and that the attachment, moreover, was levied without affidavit, bond, or any of the securities established by law whereby the owners of the steamer can obtain reparation for any damages which may be occasioned them by the unlawful detention of the said steamer; and that the procedure of the court below is devoid of all the formal requisites established by law for the levying of such attachments. Had a case such as this occurred in the time of the Spanish sovereignty, there would have been no difficulty in finding laws applicable to it, for it is certain that in the Philippines we had a complete legislation, both substantive and adjective, under which to bring an action in rem against a vessel for the purpose of enforcing certain liens. The substantive law is found in

article 580 of the Code of Commerce. This enumerates in the order of preference ten classes of liens, and a case such as the present would fall under the eighth class, which refers to furnishing a vessel with provisions and fuel on her last voyageone of the iens alleged by the plaintiff corporation in the case which gave rise to this petition for a writ. The procedural law is to be found in article 584 of the same Code, which provides: "Vessels subject to the liens mentioned in article 580 may be attached and sold judicially in the manner provided in article 579, in any port in which they may be found, at the instance of any creditor, subject to the exceptions enumerated in the same article." The reason why provisions of adjective law are to be found in a code which purports to be substantive law is that the old Law of Civil Procedure of the Philippines was promulgated prior to the Code of Commerce now in force in the Philippines, and in this Code of Commerce certain changes were made which were not to be found in the old Code of 1829. At all events, the judge would then have proceeded in accordance with the provisions of article 580 for the purpose of determining the existence of the right, and for procedure would have turned to articles 584 and 579, not overlooking the provisions of articles 1526 and 1527 of the Law of Civil Procedure. These articles refer to attachment proceedings in mercantile matters, the words "and fuel" for the provisioning of the vessel, found in section 8 of article 580 of the Code of Commerce, being regarded an extension of section 4 of article 1526, which designates the charterers or masters of vessels as debtors liable for victuals supplied for their equipment; and the same remark applies to section 4 of article 1527. Hence the judicial procedure for the attachment and sale of a vessel is defined in the articles above cited of the Code of Commerce and the old Code of Civil Procedure of the Philippines in force under the former Government. By proclamation of the commanding general of the American Army in these Islands, dated August 14, 1898, all these laws were kept in force, and although the old Law of Civil Procedure has been repealed by the new Code of Civil Procedure enacted by the new Government, the Code of Commerce is still operative. The result is, therefore, that in the Philippines any vesseleven though it be a foreign vesselfound in any port of this Archipelago may be attached and sold under the substantive law which defines the right, and the procedural law contained in the same Code by which this right is to be enforced. There is no necessity for applying any other procedure while that described above is in force, as we understand it to be. The judge did not, therefore, act without jurisdiction when directing the attachment of the vessel in question, and has not exceeded his jurisdiction. If the excess of jurisdiction upon which the argument was based consists in his having levied the attachment without the fulfillment of the necessary conditions and without following the form prescribed by some law of procedure applicable to the case, it is our opinion that this error is not such an excess of jurisdiction as can be cured by prohibition, and the petitioner has other means whereby this error of procedure may be corrected or remedied. Upon these grounds we decide that the petition for a, writ of prohibition must be denied, with the costs to petitioner, and it is so ordered. Torres, Cooper, Willard, Ladd, and Mapa, JJ., concur.

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G.R. No. 926, December 09, 1902

THE UNITED STATES, COMPLAINANT AND APPELLEE, VS. PAULO CATEQUISTA, DEFENDANT AND APPELLANT. D ECIS ION
LADD, J.: The defendant was convicted by the court below of the offense of lesiones menos graves under article 418 of the Code. We are of opinion that the evidence was sufficient to warrant the conviction. The first paragraph of the article cited fixes the general rule for the punishment of the offense, which is to be by " arresto mayor, or destierro and a fine of from 325 to 3,250 pesetas in the discretion of the court." The second paragraph makes an exception of cases where the injury is inflicted "with manifest intent of outrage or under humiliating circumstances;" in these cases the punishment is to be by arresto mayor and a fine of from 325 to 3,250 pesetas. In the present case the conviction was under the first paragraph, and the evidence would not have warranted a conviction under the second. The penalty imposed was two months and one day of arresto mayor and a fine of 325 pesetas. The two alternative penalties which may be.imposed under the first paragraph are (1) arresto mayor and (2) destierro and a fine. The fine can not be imposed as a part of the first alternative penalty. Such is the construction of the clause indicated by the punctuation, which in the case of a carefully prepared Code is entitled to considerable weight, and such is the construction which has been placed upon the same clause in the corresponding article of the Code of Spain by the highest judicial authority of that country, judgment in cassation of January 12, 1875. See also to the same effect 3 Viada, Commentaries on the Penal Code of Spain, 86; 4 Groizard, Commentaries on the Penal Code of Spain, 565. The court erred, therefore, in the present case in imposing a fine in addition to the imprisonment. The court also erred in not determining in the judgment the civil liability of the defendant for the danos and perjuicios which resulted from the criminal act. Such civil liability is a necessary consequence of criminal responsibility (Penal Code, article 17), and is to be declared and enforced in the criminal proceeding except where the injured party reserves his right to avail himself of it in a distinct civil action. (Code of Criminal Procedure of Spain, article 112; Provisional Law for the Application of the Penal Code in the Philippines, article 51, No. 4.) No such waiver or reservation is disclosed by the record here. The judgment of the court below must therefore be modified as respects the penalty imposed by eliminating the fine; and there should be added a declaration that the defendant is entitled to indemnification in the sum of 5 pesos for the perjuicios which resulted from hi-s inability to work for ten days in consequence of the assault, together with such sum as he may be able to prove that he has expended for medical attendance. As thus modified the judgment will be affirmed, and case remanded to the court below for the execution thereof. Costs will be de oficio. So ordered. Arellano, C. J., Torres, Cooper, Smith, Mapa, and Willard, JJ., concur.

OSJurist.org

G.R. No. 927, November 08, 1902

THE UNITED STATES, COMPLAINANT AND APPELLEE, VS. JAIME UBINANA; DEFENDANT AND APPELLANT. D ECIS ION
LADD, J.: The alleged libel upon the private prosecutor was contained in a letter which the evidence shows was written by the defendant in the course of an illicit correspondence with the private prosecutor's wife, and which was sent to her by the defendant, read by her, and finally discovered by her husband in her possession. We do not understand that it is claimed by counsel for the defendant that the language of the letter is not defamatory, but it appears to be claimed that the "private, confidential, and secret" character of the letter is sufficient to rebut the presumption that the publication was malicious. The new libel law, under which this prosecution was brought, attaches the presumption of malice to an injurious publication, "if no justifiable motive for making it is shown." (Act of the United States Philippine Commission, No. 277, sec. 3.) Without undertaking to state what motives may be deemed justifiable under this act, it is sufficient with reference to the present case to say that it would involve a contradiction in terms to hold that the letter in questiona solicitation to commit adulterywas published by the defendant with justificable motives. There is nothing in the case to rebut the presumption of malice which arises from the mere fact of publication. It is further claimed that it was not shown that the defendant parted with the custody of the letter "under such circumstances that as a natural and logical consequence it might be read by a third person." Section 5 of the Libel Act provides that "to sustain a charge of publishing a libel, * * * it is enough that the accused knowingly parted with the immediate custody of the libel under circumstances which exposed it to be read or seen by any other person than himself." The circumstances of the present case meet these conditions fully. An examination of the record shows that the statement of counsel that the court below did not permit the defendant to testify at the trial in his own behalf, upon which the first assignment of error is based, is not true in point of fact The same is the case with reference to the statement upon which the second assignment of error is based, viz, that the court permitted the wife of the private prosecutor to testify without the previous consent of both spouses. The judgment of the court below is affirmed, the subsidiary imprisonment in case of insolvency to be at the rate of one day for every 12 pesetas, such imprisonment not to exceed six months in all. The record will be returned to the court below for the execution of the judgment. So ordered. Arellano, C. J., Torres, Cooper, Smith, Willard, and Mapa, JJ., concur.

OSJurist.org

G.R. No. 928, October 18, 1902

THE UNITED STATES, COMPLAINANT AND APPELLEE, VS. FRANCISCO BUENAVENTURA, DEFENDANT AND APPELLANT. D ECIS ION
ARELLANO, C.J.: A check drawn in favor of P. San Buenaventura was indorsed by Francisco San Buenaventura, he signing the indorsement "P. San Buenaventura." The check was for $25, gold. The accused pleads guilty to having signed and collected the check in the name of P. San Buenaventura, saying, to use his own language, "my name is Francisco San Buenaventura, and as on several occasions I have collected my own checks which, in my presence and for the payment of my fees, have been issued to me by my American employers, they confusing the 'F' of my name with 'P,' as they usually do, and as the rest of my surname is exactly the same as that expressed in the check I took and indorsed the check upon which this prosecution is based as my own, and in consequence made the collection in good faith." An unbroken line of decisions interpreting section 1 of article 300 of the Penal Code in force holds that when no attempt has been made to imitate, counterfeit, or simulate a signature the crime of falsification is not committed, but possibly that of estafa. The decisions of this court have followed this line of cases. (United States vs. Paraiso and United States vs. Roque, cases Nos. 91 and 895.) In this case the Government cites three decisions of the supreme court of Spain, dated the 24th of November, 1882, the 24th of January, 1883, and the 31st of January, 1884, in which the doctrine is laid down that the person who signs a receipt on a bill of exchange with the name of another, he not being the lawful owner thereof, and signs the name of the true holder of the bill, is guilty of the falsification of a mercantile document, because of having falsely caused it to appear on the face of the document that some one who did not really sign it was a party thereto; that is to say, in the present case Francisco Buenaventura made it appear by the indorsement that the real P. San Buenaventura had indorsed the check, the fact being that he did not do so. It is difficult to imagine how a case could arise in which one person's signature is substituted for another, whether simulated or not, without it being made to appear by the person making the substitution that some person who did not actually sign had done so. Neither is it easy to understand how a case could arise which would fall within paragraph 1 of article 300 of the Code without at the same time falling within paragraph 2 of the same article. Upon this theory, in all those decisions in which the court held that there was no falsification because there was no attempt to imitate, counterfeit, or simulate the true signature, the court omitted to consider, as in the three judgments cited, that the person accepting the signature had feigned the participation of a person who did not actually participate. It may, perhaps, be attempted to rest the distinction upon the fact that in the last three, judgments and some others which might be cited the documents referred to are commercial, whereas in the former judgments, as well as in some others rendered in recent years which might also be cited, the questions concern private documents. But the fact remains that this

differentiation must fall to the ground upon an examination of another judgment rendered July 1, 1890. This was a case of a clerk in a commercial firm who had presented a check to a bank for collection, having signed his principal's name and indorsed the check "Received," signed by himself with the name of another person. The check was not paid on presentation by reason of the fact that the signature appended thereto was not recognized as authentic. The criminal branch of the court of Havana held that these facts constituted the crime of frustrated estafa, but the Government took the case up on cassation for infraction of law, assigning as error the failure to hold that these facts constituted the crime of falsification, urging that this offense consists not only in counterfeiting the handwriting or signature of another but also in simulating the participation in an act of a person who did not so participate, or in perverting the truth in a narration of facts. Nevertheless the supreme court held that the court of Havana had not erred in its determination as to the crime resulting from the facts upon which the appeal was based, holding that the facts found by the judgment, to the effect that the defendant signed a check and signed the receipt with another's name but without counterfeiting the handwriting, signature, or rubric of thje supposed signer, the case did not constitute any one of the falsifications covered by article 310 of the Penal Code of Cuba and Porto Rico (art. 300 of the Philippine Penal Code), but constituted an integral part of the deceit which, together with the intent to defraud, constituted the essence of the crime of estafa; that orders for payment known as mercantile documents in the Code of Commerce in force acquire their validity from the signature of the person who issues them, and when the supposititious signature has been written in such a way that the difference between the true and supposititious signature is observed as soon as the check is presented for payment, and the difference is such as to avoid all possibility of error on the part of the person called upon to pay the check, it simply shows anjntention on the part of the criminal to commit the crime of estafa. Therefore the judgment below, by which the defendant was condemned to eight years and one day of prision mayor and to pay a fine of 5,000 pesetas, is reversed, and the defendant is acquitted of the charge of falsification. The crime committed is that of estafa. Cooper, Willard, Smith, Ladd, and Mapa, JJ., concur.

DISSENTING TORRES, J.: Francisco Buenaventura was accused of the crime of the falsification of a mercantile check on the Hongkong-Shanghai Banking Corporation in favor of P. S. Buenaventura, a copy of which appears on folio 3, He had made the signature of the latter to appear on the indorsement in favor of Segundo Madera, and after two subsequent indorsements the check was presented and paid by the bank. A prosecution was commenced and the defendant, a young man 19 years of age, having been called upon to plead to the charge, plead guilty, and stated that he had signed the check with the name of P. S. Buenaventura, and that he had collected the amount thereof, because his name was Francisco San Buenaventura, and as on other occasions his

American employers had issued checks to him in which the first letter of his Christian name was confused with the letter "P," and as the rest of his surname is exactly the same as that which appears on the check, he indorsed the same in the belief that it was his and collected it in good faith. These facts do not constitute a misdemeanor as contended by the defense, but the crime of falsification of a mercantile document, defined and punished by article 301, in connection with article 300, paragraphs 2 and 4 of the Penal Code. The fact that the defendant wrote an indorsement with the letters "P. Sn." and the surname "Buenaventura" on a check issued to the latter, simulating the signature of the owner of the check and transferring it to a third person, from whom he received its value, $25, it follows that the crime of falsification has been committed, because in the operation of indorsement he simulated the participation of P. S. Buenaventura, and perverted the truth in the narration of the facts, lucri causa, and with the malicious intent to defraud the person from whom he received the value of the check. It is of no importance that in the substitution of the signature of P. Sn. Buenaventura in the indorsement of the check to Segunda Madera no attempt was made to imitate the handwriting and signature of the real owner of the check. This requisite of imitation with respect to the crime of forgery by substitution of signature is only applicable when the falsification is of a private document, such as the simulation of a letter, duebill, or receipt. With respect to public, official, or mercantile documents the crime of falsification is present whenever any one of the offenses enumerated in article 300 of the Penal Code is committed, and even a case falling under paragraph 1 of that article, where no attempt has been made to imitate the handwriting and signature of the person whose signature has been substituted. It is a general principle, established by articles 301 and 304 of the Penal Code, that a private individual who, in a public or official document or in a mercantile document or in a private document, commits any of the falsifications enumerated in article 300 shall suffer the penalties respectively prescribed in each one of these articles, according to whether the falsified document is public or mercantile or merely private. It is to be observed, however, that Avith respect to private documents the falsification of the latter can only be brought within one of the first six paragraphs of article 300, inasmuch as the last two paragraphs refer to the falsification of public instruments. There is an essential difference between the falsification of a public or mercantile document and that of a private document. In order that the latter be punishable as a crime it is an indispensable condition that a third person be prejudiced thereby or that the crime was committed with the intent to cause such prejudice. With respect to the falsification of public documents, it is a matter of indifference whether it has or has not caused damage to a third person by reason of the fact that the falsification of public documents is controlled by other principles distinct from those applicable to private documents. In the latter the prejudice or damage suffered by a third person is the principal element. With respect to the public documents it is the public interest which it is principally sought to protect, and, with respect to mercantile documents, credit, the principal element of commerce. (Judgment of June 3, 1873, of the supreme court of Spain.) As long as the present Penal Code is in force it is indispensable, for a proper application of its principles, to follow the doctrine established by the decisions of the supreme court of Spain. This high tribunal, applying the general principle referred to, has laid down the proposition

which has now the force of law, that the crime of falsification of documents is committed when any one of the falsifications narrated in article 300 of the Penal Code, equivalent to article 314 of the Spanish Code, is committed. With respect to a mercantile document, the falsification of which exists in the substitution of the signature of its lawful owner, the crime of falsification exists even if no attempt has been made to imitate the handwriting, signature, or rubric of the true owner of the document. (Judgments of November 24, 1882; January 24, 1883; January 31, 1884; April 21, 1897.) As an exception to this rule the court has held that the mere simulation of the receipt, letter, or duebill, or of any private document made or committed for the purpose of estafa, does not constitute the crime of falsification of a private document unless an attempt is made to imitate the handwriting and signature of the person by whom such dfccuments purport to be made. (Judgments of October 18,1873; January 15, 1874; December 27,1882; April 15, 1885; May 20, 1886.) The guilt of the defendant appears from his own spontaneous and express confession of what he did for the purpose of consummating the crime. It can not be considered that he acted in good faith, as his own statements demonstrate that by availing himself of similarity which he allegesand which has not been provenbetween the letters "P" and "F" and the identity of his surname with that of the owner of the check, he substituted the signature of the latter with the malicious intent to convert to his own use the amount of the check, to the prejudice of the person paying him its value, he well knowing that he had no right to collect the same. In the commission of the crime no mitigating or aggravating circumstance appears to be present, and certainly not that set up by the defense with respect to the age of the defendant, because the latter is over 18 years of age. He stated himself (p. 4) that he was 19. In view of these considerations I am of the opinion that the judgment below by which the defendant was sentenced to eight years and one day of presidio mayor and to pay a fine of 5,000 pesetas should be affirmed with the costs of both instances to the defendant, although the ruling of the court below as to subsidiary imprisonment should be omitted, in view of the character of the penalty imposed and in accordance with article 51 of the Penal Code.

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G.R. No. 929, September 05, 1902

THUNGA CHUI, PLAINTIFF AND APPELLEE, VS. QUE BENTEC, DEFENDANT AND APPELLANT. D ECIS ION
WILLARD, J.: The bill of exceptions in this case contains the complaint, answer, and judgment. It states that the defendant excepted to the judgment, and that he took no other exception during all the proceedings in the court below. He now moves this court that the bill of exceptions be amended by adding thereto all the evidence taken at the trial. In the exercise of its appellate jurisdiction this court considers three classes of cases, namely, appeals in criminal cases, appeals in special proceedings, and bills of exceptions. In a prosecution for a public offense it considers upon an appeal all the evidence adduced in the court below, besides both questions of law and fact, and forms its own opinions as to the guilt or innocence of the accused. The practice has not been changed in this respect from that which existed during the Spanish domination. In criminal cases of this character it is necessary that all the evidence be returned to this court. In appeals in special proceedings, this court has also by the provision of the Code of Civil Procedure now in force the power to pass upon all questions both of law and fact, (Act 498.) The Code indicates what parts of the evidence are to be returned to this court in the different classes of appeals in special proceedings. (Arts. 779, 781,782.) But in ordinary civil actions the power of this court on appeal has been limited and its practice radically changed. It has become for such cases only a court for the correction of errors of law, and no longer, except in the three cases mentioned in article 497, has the power to pass upon questions of fact raised by the testimony. The article says: "The Supreme Court shall not review the evidence taken in the court below, nor retry the questions of fact." Outside of the three excepted cases mentioned in said article 497, our power in cases like the one at bar is limited to a consideration of error of law committed by the court below. And, moreover, we are allowed to consider such errors of law only when they have been duly excepted to. If no errors of law are committed during the progress of the case or in the judgment, it will not avail the defeated party to bring it here on the ground that the judge should have believed his witnesses rather than those of the other side, unless his case falls within the exceptions mentioned in said article 497. Neither will it avail him to bring the case here, even if errors of law were committed, unless he duly excepted to the erroneous rulings of the court at the time they were made. In the case at bar it appears that the defendant excepted to the judgment which the court rendered. Upon that exception he is entitled to discuss here the question as to whether or not, assuming that the facts recited in the judgment are true, the plaintiff was entitled as a matter of law to recover the amount of $1,035.40 and interest. He is entitled to argue that the facts

stated by the judge do not justify the judgment ordered by him. Upon such an exception he can not argue that the facts are not as stated by the judge. He can not go into the question as to whether upon the evidence the judge should not have found the facts the other way. The case does not come within any of tjie three exceptions mentioned in article 497, and we are, therefore, expressly forbidden to retry questions of fact. So that, even if the evidence which the appellant asked to have sent up were all here, we would have no power to consider it. Neither would we have any power to examine it for the purpose of seeing if the court committed any error of law in receiving or excluding evidence, for the bill of exceptions states that the defendant took no exceptions to such erroneous rulings, if any there were. For the reasons above stated the motion is denied. The appellant is allowed thirty days from the entry of this order in which to file and transmit copies of his brief to the adverse party. Arellano, C. J., Cooper, Smith, Mapa, and Ladd, JJ., concur. Torres, J., withdrew from this case.

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G.R. No. 932, December 31, 1902

PEDRO REGALADO, PLAINTIFF AND APPELLEE, VS. LUCHSINGER & CO., DEFENDANTS AND APPELLANTS. D ECIS ION
SMITH, J.: This is an appeal by Messrs. Luchsinger & Co. against a judgment of the Court of First Instance of the Province of Iloilo. No motion was made for a new trial in the court below, nor was any exception taken other than that against the judgment. This court, therefore can only consider in this instance whether the pleadings and facts admitted and those found by the Court of First Instance are sufficient to support the judgment by him rendered. From the admissions in the pleadings and from the judgment sought to be reversed the following appear to be the facts in the case: In March, 1893, Messrs. Luchsinger & Co. brought an executive action against Jose Regalado y Santa Ana for the recovery of 3,929 pesos and 60 cents, alleged to have been owed by the latter upon a promissory note, and, among other property of his, attached a certain warehouse and lot which it is admitted the maker of the note at that time possessed. In 1896 the Court of First Instance entered a judgment in favor of Luchsinger & Co. and against Jose Regalado y Santa Ana for the total amount of the note, interest, and costs, which judgment was finally affirmed by the Royal Audiencia of Manila in 1897. The record and the judgment so affirmed were returned to the Court of First Instance of Iloilo for execution, but, owing to the complications arising from claims made by third persons to some of the personalty embargoed, the destruction of part of the official records, and the general disturbance occasioned by the Spanish-American and Filipino wars, nothing further was done in the case until the 13th of April, 1900, upon which date the warehouse and lot which this action concerns and which were under attachment, were put up at public auction by an order of the court of the 30th of that month. On the day of the sale Pedro Regalado, a son of Jose Regalado y Santa Ana, instituted this suit in intervention under claim of ownership, and sought to obtain the suspension of the sale and the dissolution of the attachment, upon the ground that the judgment debtor was not, and that he, the said Pedro Regaiado, was the absolute owner of the property to be sold. Luchsinger & Co. opposed the contention of Pedro Regalado as to the ownership of the property attached, alleging that the acquisition of the property by the latter occurred subsequently to the attachment levied by them, and was therefore unavailing. In consequence of the filing of this complaint in intervention the sale of the warehouse and lot was suspended, and has so continued up to the present time. On the 21st of March, 1902, more than one year before Luchsinger & Co, sought to obtain payment of their note, Jose Regalado y Santa Ana executed to Samuel Bischoff a mortgage on the warehouse and lot in question, as security for the payment to the latter of the sum of $7,024.74. This mortgage was recorded in Iloilo on the 10th of June, 1892, and was assigned to Jose" Maria Regalado by the mortgagee on July 12, 1897, but the instrument of assignment

was never recorded in the register. Jose Maria Regalado, as owner of the Bischoff mortgage, received the sum of $9,834.48 in payment thereof, and canceled the mortgage in favor of the mortgagor, Jose Regalado y Santa Ana on the 28th of March, 1900; but the cancellation was not recorded in the register. On the 2nd of March, 1893, Jose Regalado y Santa Ana executed a second mortgage upon the same warehouse and lot in favor of Alejandro Montelibano, to secure to him the payment of the sum of $7,984.87, which mortgage appears to have been recorded on the 18th of March, 1893. The Montelibano mortgage was assigned by the mortgagee to Jose Maria Regalado on the 8th of August, 1895, and the instrument of assignment was duly recorded on June 19, 1896. Jose Maria Regalado, as owner of the Montelibano mortgage, received the sum due thereon, amounting to 17,984.87, and canceled the same in favor of Jose Regalado y Santa Ana on March 9, 1901, but did not record its cancellation. Pedro Regalado, the plaintiff in this action, purchased the warehouse and lot above referred to subsequent to the levy of attachment by Luchsinger & Co. for the sum of 15,000, and the instrument of conveyance in his favor was recorded in the register on May 25,1900. The $15,000 which was the consideration for the sale made by Jose Regalado y Santa Ana to his son Pedro was devoted to the satisfaction of the Bischoff and Montelibano mortgages, transferred, as above stated, to Jose Maria Regalado. Upon the facts the Court of First Instance dismissed the action brought by the plaintiff, Pedro Regalado, with the costs to the latter, and ordered execution in favor of Luchsinger & Co., as prayed for, against Jose Regalado y Santa Ana for the sum total of their claim, with the interest and costs, and ordered that the warehouse and lot be sold. The Court of First Instance nevertheless recognized Pedro Regalado as a preferred creditor with respect to Luchsinger & Co. for the sum of $15,000, devoted to the payment of the Bischoff and Montelibano mortgages, and decided that this sum, in addition to the expenses of repairs and preservation of the property, less the rents, issues, and profits obtained by him from the said property, should be first paid to the plaintiff, and that the product of the sale should be applied in the second place to the satisfaction of the claim of Luchsinger & Co., and that the balance, if any, should be paid to Pedro Regalado. The plaintiff alleged in his complaint that he was the owner of the property attached by the judgment creditors. He did not allege or claim at any time in the course of the proceedings that lie was a proferred creditor. The introduction by him into the suit of the Bischoff and Montelibano mortgages was not for the purpose of proving that he had a preferred claim upon the money which might be obtained by the judicial sale of the warehouse and lot, but only to show that he was the real owner of the property attached, purchased for a valuable consideration, and that the sale made to him by his father was a true and not a fictitious sale. Pedro Regalado intervened in the executive action upon the sole ground that he was the owner of the property attached, and the judicial sale of the property directed by the Court of First Instance was suspended upon this ground - a result which could not have followed had the plaintiff sought to make use of the appropriate remedy available to a preferred creditor. (See arts. 1514, 1517, and 1518, of the Spanish Law of Civil Procedure.) This case was considered and tried by both parties as an intervention under the claim of ownership, and not as an

intervention by a preferred creditor. The only question of fact or law raised by the pleadings was that of ownership, and to this issue alone the judgment of the court should have been limited. The evidence might have been quite sufficient to justify the belief of the learned judge of First Instance that Pedro Regalado was rather a preferred creditor than the owner, but as the claim to a preferred credit with respect to the property of the judgment debtor was not raised by the pleadings, judgment should not have been rendered in favor of the plaintiff upon this consideration of the facts. The purpose of the pleadings according to the Spanish procedure was that of stating therein, in a clear and precise manner, the points of fact and law in controversy between the parties litigant in such a way that the court might be informed of the issues, and that the parties might be prepared to contest the debated points. The court was without authority to raise or decide issues not presented by the pleadings. In this case the question as to whether the plaintiff was or was not a preferred creditor by reason of having paid the Montelibano and Bischoff mortgages was raised by the court itself, and the case was decided upon this issue without previous notice to the parties. The plaintiff may or may not have ground of complaint, but it is certain that the defendants have sufficient reason to object to a judgment which gives to the plaintiff a character which he has never claimed and which, therefore, the appellants had no opportunity to oppose. The judgment of the court below is therefore reversed, with the costs to the appellee. In view of the condition of the record we are satisfied that justice requires that the case be returned to the court below for a new trial, and the clerk is directed to remand the case, after the entry of the judgment, in accordance with this decision. So ordered. Arellano, C. J., Torres, Cooper, Willard, and Ladd, JJ., concur. Mapa, J., disqualified.

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G.R. No. 936, November 29, 1902

THE UNITED STATES, COMPLAINANT AND APPELLEE, VS. CATALINO COLOCAR ET AL., DEFENDANT AND APPELLANTS. D ECIS ION
ARELLANO, C.J.: For the purpose of determining the applicability of the amnesty proclamation the following facts may be taken as proven: (1) That Catalino Colocar was regarded as an officer with the rank of second lieutenant of infantry, and that as such he took part in the insurrection against the American Government in Mindoro; (2) that he received from Maj. Estanislao Cayton orders to kill Mariano Finohermoso, who was considered to be a spy of the American Army; (3) that Ceferino Colocar protected his son, Catalino, in this matter; (4) that the other defendants are accused of having participated in some degree in the actual killing of Finohermoso, this participation consisting in the digging of the grave and the burial of Finohermoso, by order of Catalino Colocar. It does not appear that there was or could have been any other motive for the killing. Upon the hypothesis of the guilt of the defendants, it would be, therefore, a crime of a political character committed by the defendant Catalino Colocar, the principal offender, in obedience to an order received from a military authority, and consequently the case falls strictly within the terms of the amnesty proclamation. We therefore hold that Catalino Colocar, Ceferino Colocar, Lucio Alcala, and Diego Cueto, defendants'in the present case, are embraced by the amnesty proclamation, upon condition of their taking and subscribing before a competent authority the oath prescribed in the proclamation of July 4, 1902, with the costs de oficio. So ordered. Torres, Cooper, Smith, Willard, Mapa, and Ladd, JJ., concur.

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G.R. No. 937, September 11, 1902

THE UNITED STATES, COMPLAINANT AND APPELLEE, VS. MIGUEL MONTON ET AL., DEFENDANTS AND APPELLANTS. D ECIS ION
WILLARD, J.: Eleno Afable, a Filipino, for some time had been, and in the first days of October, 1901, was the town crier ( pregonero) of the pueblo of Pola, in the Island of Mindoro. The American forces were then in possession of Pola, and he was performing such duties as the commander of those forces, through the municipal president, imposed upon him. In the early part of October he left the pueblo to bring from his sementera two of his children and some rice. He was captured by insurrectionary soldiers, and taken by them to their camp in the mountain, six hours from the barrio of Casiligan. There were in the camp between 150 and 200 revolutionary soldiers. The officer in command was Raymundo Oorcuera, since deceased, before whom Eleno Afable was brought by his captors. The officer convened a council, of which the defendants Buenaventura Paola and Modesto Ramos, both officials inferior in rank to said Raymundo, formed a part. The letter asked the opinion of the other officers as to the acts of the accused and the disposition to be made of him. The investigation resulted in an order from Raymundo Corcuera that the prisoner be killed, because he was a spy of the Americans. Six soldiers, under the command of the defendant Brigido Jimenez, were told off to execute the sentence. He was taken by the guard into the forest, about a thousand yards from the camp, and there decapitated by the defend- ant Miguel Monton. His body was brutally mutilated and buried at the place of execution. The guard returned to the camp, and Brigido Jimenez reported verbally to Raymundo Corcuera that his orders had been carried out. The defendant Victorio Pilar was one of these six men. The five defendants were tried in the Court of First Instance of Mindoro for the murder of Eleno Afable. Buenaventura Paola, Modesto Ramon, Brigido Jimenez, and Miguel Monton were convicted and sentenced to death. Victorio Pilar was convicted and sentenced to twelve years and one day of cadena temporal. The case as to the first four has been brought here en consulta. Victorio Pilar did not appeal. The Solicitor-General and the counsel for the accused have joined in a motion that the defendants be discharged on the ground that they are included in the amnesty proclamation of July 4, 1902. Under the circumstances above narrated it is clear that the murder of Eleno Afable was a crime of a political character. (United States vs. Vicente Villamor, decided by this court, August 29, 1902; United States vs. Carmona, decided by this court, August 19, 1902; In re Castioni (1891) Q. B., 149; In re Ezeta , 62 Fed. R., 972.) At the time in question the defendants, Buenaventura Paola, Modesto Ramos, and Brigido Jimenez were participating against the United States in the insurrection then existing, and the murder was committed pursuant to an order issued by an officer engaged in that insurrection superior in rank to any of the defendants. Miguel Monton and Victorio Pilar both testified at the trial that they were prisoners to the insurrectionists. Pederico Aguilar, one of the six, testified that they were all prisoners except Brigido Jimenez and Vicente Espinosa. The latter, Vicente Espinosa, in his testimony stated that he too was a prisoner. There is, however, direct testimony in the case that they were all insurrectionary soldiers. This is shown also by

circumstances. A formation of all in the camp was made, from which the six men were selected. The six were all armed with bolos. They were over a thousand yards from the camp. If five of the six were prisoners, their escape could easily have been effected. We conclude that Miguel Monton and Victorio Pilar were participating against the United States in the insurrection, and that all of the defendants, except the said Pilar, are included within the said proclamation. We have, however, no power to make any order in the case of Victorio Pilar, as there was no appeal as to him, and his case could not come here in consulta. (Act No. 194 of the Commission.) The defendants Buenaventura Paola, Modesto Ramos, Miguel Monton,. and Brigido Jimenez are, therefore, declared to be entitled to the benefit of the proclamation, upon filing in this court the oath prescribed therein as a condition of the amnesty, and upon the filing of such oath the cause will be returned to the court below with directions that the defendants be discharged, with costs de oficio. So ordered. Arellano, C. J., Torres, Cooper, Smith, Mapa, and Ladd, JJ., concur.

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G.R. No. 944, December 19, 1902

THE UNITED STATES, COMPLAINANT AND APPELLANT, VS. UBALDO BORNALES, DEFENDANT AND APPELLEE. D ECIS ION
MAPA, J.: This is a prosecution for the crime of abduction, defined and punished in article 445 of the Penal Code. In the information five witnesses are cited, among others the woman alleged to have been abducted, to give testimony for the prosecution. The case having come on for trial on the 21st day of April, 1902, the defendant having plead not guilty, it was found necessary to order a continuance, on account of the absence of the witnesses for the prosecution. The case was reset for 9 a. m. on the 25th of the same month. During the trial on that date the abducted woman testified strongly against the defendant. Owing to the lateness of the hour, the case was again continued to 3 o'clock p. m. of the same date. This time having arrived without the appearance of the witnesses for the prosecution who had not yet testified, the court below, without further proceedings, acquitted the defendant, with costs de oficio. The judge has not stated the legal grounds upon which he reached this conclusion, but whatever they may have been it is unquestionable that the facts charged, if true, constitute the crim$ of abduction. The testimony of the prosecutrix having been given, which can not.be disregarded as an element of proof because it is the testimony of the injured party, but should have been weighed by the court within its discretion like that of any other witness in accordance with section 55 of General Orders, No. 58, the case should have been continued throughout as provided by section 31 of the order cited, and the defendant given an opportunity to introduce evidence on his behalf, as it would be improper to determine the case without giving him an opportunity to make Ms defense. The defendant not having been given this opportunity, he has been left defenseless in this case. The right to a defense being an essential one, it follows that the trial was fatally defective, and that therefore the judgment rendered therein can not stand (sec. 10, General Orders, No. 58). We therefore reverse the judgment appealed, with directions to the judge to continue the case in accordance with law, with the costs of this instance de oficio. Arellano, C. J., Torres, Cooper, Smith, Willard, and Ladd, JJ., concur.

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G.R. No. 946, October 22, 1902

THE UNITED STATES, COMPLAINANT AND APPELLEE, VS. MANUEL BANZON ET AL., DEFENDANTS AND APPELLANTS. D ECIS ION
TORRES, J.: Shortly after 8 o'clock on the night of the 29th of June, 1901, Manuela and Felicisima Key Hipolito, sisters, the latter 15 years and the former 13 years of age, while in the watercloset, some distance from the house in which they lived, observed that the two defendants were concealed behind a tree near the privy. Upon this the two girls left the closet for the purpose of going back to the house, but before they succeeded in this the defendants approached them, Manuel seizing Manuela and Jose seizing Felicisima. They embraced the girls and tried to throw them on the ground, with the intent to rape them. Notwithstanding their forcible efforts to do so they did not succeed in carrying out their purpose, owing to the resistance of the girls and their screams for help, which attracted the attention of their parents. Manuela retained in her hand a piece of her aggressor's shirt as a result of the struggle. The girls' parents were unable to catch the accused, as they made their escape before the parents reached the spot. The facts related constitute the double crime of attempted rape. The accused, by the mere fact of having embraced the complaining witnesses and struggling with them and endeavoring to lay them or throw them on the ground, with the unquestionable intent of raping them, evidently commenced the execution of the crime of rape by exterior acts, and if they did not succeed in consummating the crime or performing the other acts necessary for its complete realization, it was not due to any voluntary withdrawal, but to the resistance of the victims, and the fact that their parents, attracted by their cries, came to their assistance. It follows, therefore, that the crime committed is that defined and punished by article 438, in connection with articles 3 and 66 of the Penal Code. Although the defendants plead not guilty to the charge, the record discloses sufficient evidence for the prosecution to conclusively establish their guilt, as authors respectively of these attempted rapes, notwithstanding the denials and exculpative allegations of the defendants. The testimony of the girls and that of their parents and that of several other witnesses, some of whom heard the screams and others observed from a distance the struggle between the complaining witnesses and the defendants and who say the latter ran away upon the approach of the girls' parents; the piece of Manuel's shirt which, as a result of the struggle, was left in Manuela's hand; the two letters written in the native dialect, by the accused to each one of the complaining witnesses, respectively, some days after the event, in which, confessing their guilt, they asked pardon, and begged that the girls themselves impose the punishment upon them, and the statements made by Manuel Banzon in his sworn testimony, in which he relates the occurrence as having a different character, all tend to prove the facts upon which the complaint is based and to show that there was not a simple quarrel, as they allege by their unsupported statements. This conclusion is further supported by the other circumstances connected with the commission of the crime. No aggravating circumstance was present in the commission of the offense, but the mitigating circumstance of article 11 of the Penal Code should be applied, in view of the character of the

crimes' prosecuted, and the personal conditions of the defendants and of the complaining witnesses. Therefore, each one of them must be condemned to the minimum degree of the penalty assigned by law. We are, therefore, of the opinion that the judgment below should be reversed, and each one of the defendants convicted and sentenced to one year and six months of prison correccional , and to pay, each one, a half of the costs, they being also condemned to the accessory penalties established by article 61 of the Penal Code. So ordered. Arellano, C. J., Cooper, Willard, Mapa, and Ladd, JJ., concur.

OSJurist.org

G.R. No. 947, November 04, 1902

THE UNITED STATES, COMPLAINANT AND APPELLEE, VS. DONATO SALANDANAN ET AL., DEFENDANTS AND APPELLANTS. D ECIS ION
MAPA, J.: The record discloses the fact, established not only by the testimony of the witnesses for the prosecution, but also by the confession of the defendant Mendigoren, that Igncio Lopez and Alvaro Bruno were kidnaped on the afternoon of the 5th of November, 1901, and were held under the control of the defendants, who were members of a band of malefactors, until the night of the 7th of the same month, when they succeeded in recovering their liberty, by force, with the help of Catalino Pangilinan. The other defendant, Salandanan, has also acknowledged by implication the truth of the facts charged in the information, but has endeavored to excuse himself by alleging, without proving his statements, that although he accompanied the persons who committed the crime, and was armed with a gun, it was because he also had been kidnaped. These facts constitute the crime of illegal detention, defined and punished by article 481 of the Penal Code. The judge below so held correctly, and condemned the defendants to eight years and one day of prisidn mayor, not applying any circumstance in mitigation of the responsibility arising from the commission of the crime prosecuted. The defense in this instance admits that the guilt of the defendants is disclosed by the record, but contends for them as a mitigating circumstance, in the first place, the loss of self-control which, it is alleged, was naturally produced with respect to both of them by reasons of the suspicion they entertained that the injured parties were members of the secret police. There is nothing in the record to justify such an assertion, and this alone is sufficient to demonstrate, without the necessity of further consideration, the inadmissibility of such contention. It is absolutely necessary, in order to consider the concurrence' in the commission of a crime of the mitigating circumstance invoked by the defense, that the record contain proof of the causes which are supposed to have produced such powerful excitement as to overcome reason and self-control. Counsel for the defense also invokes the circumstance of race, established by article 11 of the Penal Code. This circumstance is not necessarily mitigating. It rests in the discretion of the courts to apply it in mitigation or aggravation according to the special circumstances of each case. In the present case no reason can be found which would lead us to apply this circumstance as a ground for the mitigation of the penalty in favor of the defendants. The judgment of the court below is therefore affirmed, with the costs of this instance to the defendants. So ordered. Arellano, C. J., Torres, Cooper, Smith, Willard, and Ladd, JJ., concur.

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G.R. No. 951, November 13, 1902

THE UNITED STATES, COMPLAINANT AND APPELLEE, VS. JUAN SALANDANAN, DEFENDANT AND APPELLANT. D ECIS ION
MAPA, J.: One afternoon, while the defendant was absent from his house, Domingo Alba Clemente entered and proposed to the wife of the defendant that she have illicit intercourse with him. As she refused to accede to his desires he endeavored to rape her. He seized her and was about to throw her on the ground when he was surprised by the defendant, who at that moment returned to the house and who rushed in upon hearing his wife's screams for help. Alba, upon seeing the defendant, turned on the woman and inflicted upon her a serious wound in the right forearm with a bolo he was carrying and then immediately attacked the defendant, wounding him in the breast. A hand-to-hand struggle followed between them, in the course of which the defendant succeeded in snatching the bolo from Alba's hands and with it inflicted upon him a wound from which he died shortly after. Such are the facts established by the evidence in the record. Upon them the court below held the defendant to be guilty of the crime of homicide, and applying in his favor the mitigating circumstances of immediate provocation and of excitement sufficient to overcome reason and self-control, condemned him to six years and one day of prision mayor. The court below was of the opinion that the complete defense of section 4 of article 8 of the Penal Code could not be applied, because, "although it may be admitted," he says, "that the defendant acted in self-defense, and that there was an unlawful aggression without provocation on his part, nevertheless the reasonable necessity of the means employed to repel the aggression has not been proven, because after the deceased was deprived of the weapon with which he made the attack he, the defendant, had no necessity to employ the weapon to ward off the attack of his adversary." We do not concur in this opinion of the court below. The deceased, having attacked the defendant and his wife with a bolo, and having wounded both of them, and having made an unsuccessful attempt, frustrated by the defendant, to rape the latter's wife, and having continued his aggression up to the point of commencing and maintaining a hand-to-hand struggle with the defendant, it can not be said that the latter exceeded the limits of a just defense in wounding the aggressor iri the act with the same bolo with which he had been attacked and wounded. It does not appear that the struggle ceased after the weapon was taken from the aggressor. Consequently it can not be asserted that the danger to the defendant had ceased. If the struggle continued the defendant might in turn have been disarmed by the deceased in the course of the changing fortunes of the fight; in which case he would have been completely at the mercy of his adversary. This was a contingency which the accused might well have reasonably feared, more especially in view of the fact that having received a somewhat serious wound in the breast which might well, under these critical circumstances, have appeared to him to be much more serious than it really was, he was in a disadvantageous position with respect to his adversary for a continuation of a prolonged hand-to-hand struggle. This fear, added to the natural instinct of self- defense, strongly excited by this fierce attack,

must have instinctively impelled him to avail himself of the advantage momentarily thrown in his way by a fortunate accident of the affray to put his aggressor hors de combat in the only way possible in the heat of the fight. We can not require a man who finds himself so forcibly and persistently attacked as was the accused to retain the presence of mind necessary to pick and choose, and to employ some other less violent means, more especially when we remember the natural rapidity with which the defense must necessarily be made if it is to produce the effect of repelling the aggressor. For these reasons, there having been an unlawful aggression on the part of the deceased without provocation of any kind on the part of the accused, we are of the opinion that his act in defense of his person complies with all the conditions which in accordance with section 4, article 8, of the Penal Code wholly exempt him from criminal liability. We therefore acquit the defendant and reverse the judgment below, with the costs of both instances de oficio. So ordered. Arellano, C. J,, Torres, Cooper, Smith, Willard, and Ladd, JJ., concur.

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G.R. No. 955, November 21, 1902

RAMON CHAVES, PLAINTIFF AND APPELLEE, VS. RAMON NERY LINAN, DEFENDANT, APPELLANT. D ECIS ION
TORRES, J.: By order of the 29th October last the motion of the defendant for the dismissal of the bill of exceptions was overruled. The defendant now moves the court to issue an order to the clerk of court of Misamis, directing him to send to this court theoriginal record of the case, to the end that the court may do complete justice, upon the ground that the bill of exceptions is incomplete and was prepared without the knowledge or praticipation of the moving party or of his attorney. The appellant, who for the purpose of his defense might really be interested in presenting to this court the original record, opposes the motion of the appellee. The appellee has not indicated in detail the deficiences of the bill of exceptions presented, and has not stated in what the incompleteness of this bill consists. The attorney for the party which has presented the bill in defense of his rights alleges that it is not incomplete. In view of these facts we are of the opinion that the motion of the appellee should be overruled, and it is so ordered. Arellano, C. J., Cooper, Smith, Willard, Mapa, and Ladd, JJ., concur.

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G.R. No. 955, October 29, 1902

RAMON CHAVES, PLAINTIFF AND APPELLEE, VS. RAMON NERY LINAN, DEFENDANT AND APPELLANT. D ECIS ION
TORRES, J.: The bill of exceptions, brief, and assignment of errors were filed in this case on the 21st of August, 1902. The parties stipulated in writing, under date of September 17 following, that the appellee should be allowed to file his brief in reply to the brief of the appellant, which brief, with the bill of exceptions and assignment of errors, had been duly served upon him. A motion was subsequently made by counsel for the appellee for the dismissal of the bill of exceptions brought up by the appellant, on the ground, first, that neither the said appellee nor his attorneys had been notified of the motion of the appellant in the Court of First Instance for a new trial under article 146 of the Code of Civil Procedure; second, that the said motion was decided by the judge below without the knowledge or presence of the appellee; third, that the said bill of exceptions does nbb show that the appellant has taken any exceptions in the course of the trial in the court below; and fourth, that neither the appellee nor his attorney had received notice of the presentation to the judge of the said bill of exceptions, or of the allowance of the same, and that therefore the appellee had no opportunity to make objections or offer amendments thereto, and that the same is incomplete and incorrect. On page 8 of the bill of exceptions it appears that the defendant made a motion for a new trial, upon the grounds therein stated, which motion was overruled, and that he then presented to the judge the corresponding bill of exceptions. If no notice of the motion which was overruled by the court below was served upon the plaintiff, no prejudice has been suffered by him, and for this reason the judge considered it proper to deny the motion without service of notice upon the adverse party, in accordance with the provisions of section 146 of the Code of Civil Procedure. The bill of exceptions was presented in due time and allowed by the judge. The appellee has not stated in what the bill is deficient or why the said bill is not complete or correct, or, if it was incomplete or incorrect, what prejudice has been occasioned tiim thereby. On the other hand, the appellant in his motion for a new trial based the motion upon the ground that the conclusions drawn from the facts are contrary to the evidence. Furthermore, it is to be observed that, according to the stipulation between the parties, a day was fixed upon which the appellee was to file his brief, and that brief was, in fact, so filed on the day following the hearing of this motion, and in the said brief the affirmance of the judgment below is prayed for. For these reasons the appellee's motion for the dismissal of the bill of exceptions must be overruled. So ordered. Cooper, Willard, Mapa and Ladd, JJ., concur.

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G.R. No. 956, November 18, 1902

FRANCISCO IRURETA GOYENA, PLAINTIFF AND APPELLEE, VS. ILDEFONSO TAMBUNTING, DEFENDANT AND APPELLANT. D ECIS ION
WILLARD, J.: The plaintiff's principal owned a tract of land and the building thereon known as No. 20 Calle San Jose, Ermita, Manila. This tract contained 152.46 square meters of land. A broker, representing the plaintiff, stated to the defendant that this lot was for sale and, on information received from the plaintiff, that it measured 23 meters in front and 8 meters in depth. The broker had nothing more to do with the matter, and the plaintiff and defendant had certain negotiations between themselves concerning the sale. On March 12, 1901, the defendant signed the following document: "On this date I have bought from Don Francisco Yrureta Goyena a lot at No. 20 Oalle San Jose, Ermita, for the sum of thirty-two hundred pesos, this money to be paid as soon as the bill of sale is signed. Manila, March 12, 1901. (Signed) Tambunting." The plaintiff signed a similar document. What the negotiations between the parties were prior to the signing of the these documents does not appear. There is no evidence whatever in the record that they came to any agreement in regard to the sale other than the one contained in the papers of March 12. The defendant took from the office of the notary employed to make the formal transfer the title papers which showed the area of the lot of land to be 152.46 square meters, kept them for several days, and returned them to the notary. On the day assigned for the execution of the instrument, all the parties being in the office of the notary, the defendant told the latter to insert in the writing the price, $3,200, and then refused to sign it because the lot did not contain the area which the plaintiff, through the broker, had represented that it contained. He expressed his willingness to sign it if a proportional reduction was made in the price. This the plaintiff refused to make, and this action was brought under article 1451 of the Civil Code. The question to be decided is: Ought the plaintiff to make this reduction? The private contract expresses a specific thing as the object of the contract. Upon this point there is no controversy. There is no doubt as to which lot is No. 20 on Calle San Jose, of the District of Ermita of the city of Manila. The private contract specifies a certain price, 3,200 pesos. There is no controversy whatsoever upon this point. There is no question that this sum is there specified plainly and specifically, and without being made subject to any condition whatever. Is this a perfect contract ? Evidently nothing is lacking for the existence of a perfect contract of purchase and sale. Article 1445 of the Civil Code is as follows: "By the contract of purchase and sale one of the contracting parties undertakes to deliver a specific thing, and the other to pay therefore a price

certain , in money or in some thing representing it." Article 1450 of the same Code is a follows: "The sale shall he perfected between vendor and vendee and shall be binding on both of them, if they have agreed upon the thing which is the object of the contract and upon the price, even when neither has been delivered." This private document was not a more draft or project. It can not be said that the purchase is not to be understood as perfected until the execution of the public instrument. That private document is not subject to any term or condition whatever. The least that can be said about the private document is that it contains a promise to buy, not a mere project of sale, and a promise to buy, according to article 1451, confers upon the contracting parties the right to reciprocally demand the performance of the contract. If the contract were not perfected no right would accrue in favor of the contracting parties to reciprocally demand its performance. A thing which has no existence can produce no effect. Because it is merely a private document which contemplates the subsequent execution of a public instrument, it does not follow that it is not enforceable as it now stands. "Contracts," says article 1278, "shall be obligatory whatever may he the form in which they have been entered into, provided that the essential elements for their validity are present," to wit, a determinate thing, a price certain , and a meeting of the minds with respect to the object of the contract. Hence the contract in question is obligatory. But the defendant says: "I can not pay the 3,200 pesos indicated in the private document, inasmuch as the lot does not contain a sufficient number of meters to be worth this sum total of 3,200 pesos, at so much a meter. I made the purchase at so much a meter." He then cites article 1469, 2, which is: "If the sale of real property should be made with a statement of its area, at the rate of a certain price for a unit of measure or number, the vendor shall be obliged to deliver to the vendee, if the latter should require it, all that may have been mentioned in the contract; but should this not be possible, the vendee may choose between a proportional reduction in the price or the rescission of the contract: Provided, That in the latter case the decrease in the real estate is not less than one-tenth of the area given it. "The same shall be done, even when the area appears to be the same, if any part of the real estate is not of the character mentioned in the contract. "The rescission in such case shall only take place at the will of the vendee, when the inferior value of the thing sold exceeds one-tenth of the price agreed upon." In reply to the contention of the defendant the plaintiff cites article 1471, which says in part: "In the sale of real estate made for a fixed price and not at the rate of a specified sum for a unit of measure or number, the increase or decrease of the same shall not be considered, even when greater or less area or amount than that stated in the contract may be found." The plaintiff also says: "The fact is that in a private document no statement is made of any superncial area, nor of a price on the basis of a unit of measure or number. Hence, I am under no obligation to deliver any determinate area or number or measure, but simply lot No. 20 Calle San Jose, as to whose specific individuality there is no controversy or doubt." Article 1218 says: "Public documents may be used as evidence against the contracting parties and those who contract under them with respect to the statements therein contained, made by the contracting parties."

Article 1225 says: "A private document, legally acknowledged, has the same value as the public instrument between those who have signed the same, and their privies ." Hence it follows that, whether evidenced by a public instrument or by a private document, the contract is what the words of the parties indicate. It will not avail the defendant to say, "But my intention was not what my words express." The defendant bought a specific article and agreed to pay $3,200 for it. The fact that the article is not as large as he thought it was does not relieve him from the necessity of paying that price. It was just such cases as this that article 1471, 1, was intended to cover. If the defendant intended to buy by the meter he should have so stated in the contract. Not only does the contract not so state, but there is no evidence in the case that the parties ever discussed at all the price which should be paid for each meter. There was considerable evidence in the case concerning an agreement by the plaintiff to reduce the price and the plaintiff in answering interrogatories propounded by the defendant said that, after the objection of the defendant to carry out the contract, he did agree to make a proportional reduction. The case shows, however, that this answer and the testimony of the defendant and his witness referred to a conversation at the house of the defendant, und that this statement of the plaintiff was made when he thought that the difference was slight, not amounting to more than a meter or two, and that a proportional reduction would not decrease the price more than 20 or 30 pesos. We do not think that this admission of the defendant is sufficient of itself to prove a contract by measure in the face of the written document and the entire absence of other evidence; to that end. We rather construe it as indicating a willingness on the part of the plaintiff to abate a triile from what he was entitled to demand with the purpose of obtaining an amicable settlement of the controversy and avoiding litigation. Upon the whole evidence we think the judgment below is right, and it is accordingly affirmed, with costs of this instance against the defendant. Arellano, C. J., Cooper, Smith, Mapa, and Ladd, JJ., concur. Torres, J., withdrew from this case.

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G.R. No. 959, November 03, 1902

JUAN ISMAEL, PLAINTIFF AND APPELLEE, VS. MANUEL GANZON, DEFENDANT AND APPELLANT. D ECIS ION
WILLARD, J.: The appellant based his motion to amend the bill of exceptions on two grounds. The first one was that he had made a motion for a new trial in the court below; that this court under article 497, 3, had therefore a right to review the evidence, and that for such a review it was necessary to amend the bill of exceptions by adding thereto the evidence omitted. After the judgment was entered in the court below the defendant presented a bill of exceptions which contained the pleadings, decision, and judgment and certain allegations of fact and law. It concluded as follows: "Therefore the defendants pray the court that its judgment be amended, and that the defendants go hence without day, or else that this bill of exceptions be sent to the Supreme Court for its decision thereon." The judge, adding some statements of his own to it, signed this bill of exceptions and a copy thereof has been sent here. The claim of the appellant is that the aforesaid prayer found in the bill of exceptions was in effect a motion for a new trial. We can not agree to this contention. It is evident that the parties below did not so treat it. The judge made no order granting or denying it. It was simply a part, improperly so, of the bill of exceptions and we can not consider it as a motion for a new trial under article 145. The appellant is therefore not entitled to have the evidence brought here for the purpose of enabling us to review it. The second ground on which the appellant bases his motion is that the bill of exceptions should be amended in the respect that the judge should certify as a part thereof that the cane in question belonged to Jose de Luna before it belonged to the plaintiff. At the trial the defendant offered certain evidence tending as he claimed to show that certain cane once belonging to Jose de Luna had been burned. The court rejected this evidence, to which the defendant excepted. This exception properly appears in the bill of exceptions. But the appellant says that this exception will be valueless to him unless the bill of exceptions shows, and he claims this to be a fact, that this cane so burned passed to the plaintiff from Jose de Luna, and having been burned could not have been converted by the defendants. A decision of this motion does not involve a consideration of article 499. That article has been construed in the case of Gonzaga vs. Norris, August 26, 1902, with which decision we are content The question here is: Can the appellant have the bill of exceptions amended in the particular named under the last clause of article 500? That clause reads as follows: "* * * nor shall such dismissal be granted whereby an amendment to the bill of exceptions, which is hereby declared to be lawful and allowable, and imperfections or omissions of necessary and proper allegations, could be corrected from the record in the case." The bill of exceptions should contain not only the exceptions taken, but enough of the evidence "to show the bearing of the rulings * * * excepted to." (Art. 143.) The judge should "restate the facts if need be, and the exceptions so that * * * their relevancy shall be made clear." (Art. 143.) The bill of exceptions in this case does not do that. It does not show that the fact that Jose de Luna at one time owned this cane is at all relevant to the case. The defendant claims that its relevancy does appear in the record of the case and that this imperfection in the bill of exceptions can be

corrected by reference to that record. We can not give to the word "record" as it is used in the last part of said article 500 its ordinary signification. If it means there only the complaint, answer, bill of exceptions, decision, and judgment, that provision of the article would be useless. Imperfections in the bill of exceptions could rarely be corrected by reference to those documents. Resort would have to be made to what took place at the trial or in other proceedings in the court below. We therefore hold that the word "record" as there used includes everything that was done in that court. The defendant subjects to the allowance of the amendment on the ground, among others, that the defendant prepared the bill of exceptions; that this statement should have been placed in it, and that the defendant has been negligent in prosecuting his appeal and asking for this relief. It appears that the case was tried below by Senor Avancena; that before the decision he moved to Manila to take office in the Fiscalia; that Senor Yusay, who had not participated in the trial, prepared the bill of exceptions; that they were prepared and presented in haste, as the term was about to close. The certified copy of the bill of exceptions was received in this court on May 31, and Senor Yusay then notified thereof. The printed copies were delivered to the parties on September 1. It is plain that there has been delay and negligence on the part of the defendant, but there is no, claim that it has prejudiced the plaintiff except that if the amendment is allowed the case may have to go over to the November, 1903, term of the court at Iloilo. The plaintiff is protected by a bond which was required by the court below as a condition precedent to a stay of execution. It is also said that the bill of exceptions was presented one day after the term closed at which the case was tried. But it appears that the judge acted upon the bill so presented; that notice of this action was waived by the plaintiff, and that the plaintiff has made no motion to dismiss the bill on that ground. The plaintiff also claims that the amendment should not be allowed because in no event can the defendant prevail on his appeal, his exceptions being all without merit. But on this application we can not go into the merits of the appeal. There has been no argument upon that subject. It is the purpose of article 500 to enable the appellant in this way to get his bill of exceptions in such shape that he can present and argue the questions of law which are raised thereby. We have had considerable doubt not over the power of the court to grant this motion but over the propriety of so doing. We have, however, finally decided to do so on terms which we think will protect the plaintiff. Within ten days after the arrival in Iloilo of the judge of that province, the defendant on five days' notice to the plaintiff may move said judge that he add to the bill of exceptions a statement in substance as follows: "The cane mentioned in the complaint belonged to Jose de Luna before it belonged to the plaintiff." The order of the judge granting or denying the motion shall be certified to this court. The defendant shall serve his brief on the plaintiff within thirty days after the date of the oxder of said judge. The plaintiff shall have thirty days in which to reply, and the cause shall, at the option of the plaintiff, be heard in Manila at any time when the court is in session on ten days' previous notice to the defendant. This order is conditional on the defendant within five days after notice thereof paying to the clerk for the benefit of plaintiff the sum of ten dollars, United States currency. If this sum is not paid the motion will be dismissed. Torres, Smith, Mapa and Ladd, JJ., concur.

DISSENTING COOPER, J.: This is an application made by the appellant, the defendant in the court below, to amend a bill of exceptions. It is stated that the defendant on the trial of the case offered in evidence certain documents which were, on the objection by the plaintiff, excluded by the court, and to which ruling the defendant excepted. That in order that the relevancy of the document may appear the bill of exceptions should show "that the cane mentioned in the complaint belonged to Jose de Luna before it belonged to the plaintiff." The appellant requests that the judge of the Court of First Instance be required to certify this in the bill of exceptions. The motion has been granted. The decision of the court is based upon the construction given article 500 of the Code of Civil Procedure, 1901. So far as it is material to the consideration of the question that article reads as follows: "Nor shall such dismissal be granted whereby an amendment to the bill of exceptions which is hereby declared to be lawful and allowable and imperfections or omissions of necessary and proper allegations could be corrected from the record in the case." It is not contended that the proposed amendment can be effected by reference to anything that is contained in the record of this court or anything so far as that is concerned contained in the lower court, unless the word "record" as used in the last part of article 500 be given .a different meaning from that which it possesses according to the ordinary signification of the term. The question to be determined is, whether under the provisions above cited an amendment of the bill of exceptions can be made in this court so as to incorporate in it oral testimony taken in the court below upon the trial of the case. The decision of the court is to the effect that this may be done, and that the word "record" as used in the last part of article 500 should not receive its ordinary signification; that the word should be considered in its meaning so as to include everything that was done in the Court of First Instance, and that the oral testimony, though not reduced to writing, is a part of the record within the meaning of the word as.so construed. It is unnecessary to cite definitions of the word "record," for it is admitted that the word in receiving the construction given has been wrested from its ordinary signification. Is the language of the statute so doubtful or does the context show an intention at variance to such an extent with the word "record" as used in its ordinary signification that the first and primary rule of interpretation should be disregarded? It is said in the opinion that to give the word "record" as used in section 500 its ordinary signification, and if it means only the complaint, answer, bill of exceptions, decision, and judgment, that the provision of the article would be useless, as bills of exceptions could rarely be corrected by reference to those documents. It is immaterial, in my opinion, whether the word used in its ordinary signification would tend to give the section in question a limited operation or not, or even whether it would have any operation whatever. This would not justify judicial revision, correction, or amendment of the law. The rule which governs in such cases is well stated in the case of McClusky vs. Cromwell (11 N.

Y., 593), in the following language: "It is beyond question the duty of courts in construing statutes to give effect to the intent of the lawmaking power, and to seek for that intent in every legitimate way, but in the construction both of statutes and contracts the intent of the framers and parties is to be sought first of all in the words employed, and if the words are free from ambiguity and doubt and express plainly, clearly, and distinctly the sense of the framer of the instrument there is no occasion to resort to other means of interpretation. It is not allowable to interpret what has no need of interpretation, and when the words have a definite and precise meaning to go elsewhere in search of conjecture in order to restrict or extend the meaning. Statutes and contracts should be read and understood according to the natural and most obvious import of the language without resorting to subtle and forced constructions for the purpose of either limiting or extending their application. Courts can not correct supposed errors, omissions, or defects in legislation or vary by construction the contracts of parties. The object of interpretation is to bring sense out of words used and not to bring sense into them." Some ambiguity might arise from the phrase "record in the case," whether this means the record as contained in the transcript or the original record as it exists in the lower court. This question has been decided by the Supreme Court of Georgia in a decision rendered prior to the enactment of our statute, in which the words "record in the case" have been held to mean "the record as contained in the transcript sent up and duly certified by the clerk." (79 Ga., 210.) This decision has peculiar weight in determining the question. It was made on the construction of article 5570 of the Code of Georgia, 1895, from which our statute was taken and of which it is a literal copy. The ordinary rule announced in such cases is that if the legislature of a State in enacting a statute literally or substantially copies the language of the statute previously existing in another State or borrows from Auch statute the provision, clause, or phrase, the same having received a judicial interpretation in the State of its origin, it is presumed that the enactment was made with a knowledge of such interpretation, and that it was the design of the legislature that the act should be understood and applied according to that interpretation. (Black on Interpretation of Laws, p. 159, citing Metropolitan R. R. Co. vs. Moore, 121 U. S., 555; Stutsman Co. vs. Wallace, 142 U. S., 293, and various decisions of States not accessibble to the court.) This decision from the court of Georgia affords not only a reasonable construction of the phrase, but is in harmony with the principles applying to the amendment of records under the practice prevailing in the United States. Where the defect is in the trial court record or where the rulings of that court have not been duly entered, the application to correct or amend the record must be made to that court. (Elliott, Appellate Procedure, 206, 2 Enc. P1. and Prac., 301.) This rule is strictly applicable to the amendment of bills of exception. The court to which the appeal is taken has no power to amend. It is amendable only in the trial court (3 Enc. P1. and Prac, 502.) It is also a rule that after the expiration of the trial term even the trial court can not make an amendment without some minute or memorandum as evidence on which to base the amendment. (3 Enc. P1. and Prac, 505.) It may be urged that as the court has not undertaken to amend the bill of exceptions, but has simply given the appellant leave to apply to the lower court for an amendment, that the question of the right of this court to amend the bill of exceptions does not arise in the case, and that the discussion of the question is premature.

But it will be noticed that while the order passed in the case, contemplates that the amendment should be made by the trial judge the discussion of the question has proceeded upon the right of this court to amend the bill of exceptions under the provisions of section 500. Besides, it is immaterial whether section 500 is invoked as authority for the amendment in this court or in the court below. This section of the law can not be construed as giving the right to amend the bill of exceptions in either case in the manner attempted. If the same rules of practice under our Code are to prevail here as in America, the provisions of which have been largely taken from the Codes of the several States, an amendment of the character permitted can neither be made in tin's court nor in the court below. The parties, however, are not entirely without remedy, for, under the practice prevailing in the United States, a motion, timely made, to the lower court for an amendment of the bill of exceptions will be granted. If made within the time for the filing of the bill of exceptions or within the trial term, the judge may permit any character of amendment to be made so as to make? the bill of exceptions conform to the facts. After the expiration of the term the power of the trial judge over the bill of exceptions is more restricted and only such matters as are made to appear by some minute or memorandum in the record can be incorporated in the bill of exceptions. It is also possible that section 113 of the Code of Civil Procedure, 1901, will apply to cases which do not come within these rules. It reads as follows: "Upon such terms as may be just the court may relieve a party or his legal representative from a judgment, order, or other proceeding taken against him through his mistake, inadvertence, surprise, or excusable neglect, provided that application therefor be made within a reasonable time, but in no case exceeding six months after such judgment, order, or proceeding was taken." The writer is inclined to think that the provisions of this section are sufficiently broad to cover amendments of bills of exceptions of the character applied for in this case. But the application can not be granted under this provision, for the reason that it was not applied for within six months from the date of the bill of exceptions, and further, because the allegations of the application are wholly insufficient. There is no allegation whatever of mistake, inadvertence, surprise, or excusable negligence. The court recognizes in its decision the insufficiency of the application in this respect when it says that it is plain that there has been delay and negligence upon the part of the defendant. By reference to the bill of exceptions it will be seen that the provisionis of the Code and the rules of this court have been ignored by the appellant. The final judgment was rendered in the case on the 11th day of February, 1902. Section 143 of the Code requires that a party desiring to prosecute a bill of exceptions shall so inform the court at the time of the rendition of final judgment or as soon thereafter as may be practicable and before the ending of the term of court at which final judgment is rendered. This provision was not complied with. Within ten days afterwards the excepting party is required to present to the judge a brief statement of the facts in the case sufficient to show the bearing of the rulings excepted to, for allowance by the judge. This was not done until the 21st day of February, one day after the

adjournment of the court. The statute also requires that within five days from such presentation to the judge the bill of exceptions shall be allowed and filed. It was not allowed and filed until the 14th day of March. Section 14 of the rules of this court require that the appelant shall within sixty days after tlie bill of exceptions is filed cause the proper certified copies to be filed in the clerk's office of this court, and if they are not so filed the court will, on application by the appellee, declare the bill of exceptions abandoned, unless for cause then shown it extends the time for the filing of such copies. The bill of exceptions was filed in the case on the 14th day of March. The certified copy of the bill was not filed in this court until the 31st day of May. Section 15 of the rules provides that upon the receipt of the certified copy of the bill of exceptions the clerk shall make an estimate of the expense of printing the same, and notify the appellant thereof, and if after such notice the appellant fails to furnish the money necessary for tlie printing of the transcript the court may, on motion of the appellee, declare the bill of exceptions abandoned. The appellant was duly notified by the clerk on the 31 st day of May, 1902, and on the 29th day of August the rule had not been complied with, on which date, on account of this failure the appellee moved to dismiss the bill of exceptions. Neither have the rules of this court with reference to filing assignments of errors and the printing of brief been complied with; in fact, there seems to have boon no effort whatever made by the appellant to comply with the rules or the statute, nor any excuse given for his failure to do so. He simply states in his application that the amendment is necessary in order that tin; relevancy of the ruling of the court may appear. Not even the poor excuse that his attorney was changed after the trial, referred to in the opinion of the court, is given in the application, for this was stated only in the oral argument on the application to amend. It in also to be further noticed that the bill of exceptions was prepared by appellant's own attorney. It is difficult to imagine a case in which a more flagrant violation of the statutes and rules of the court could occur. To grant such an application tends strongly toward the exercise of arbitrary discretion. The indulgence shown in thp case has been done with a view to prevent the possible miscarriage of justice. But the exercise of such power subverts the law and finally defeats its own object. The danger is strongly portrayed in the following celebrated words of Lord Camden: "The discretion of the judge is the law of tyrants; it is always unknown; it is different in different men; it is casual and depends upon constitution, temper, and passion ; in the best it is oftentimes caprice, in the worst it is every vice, folly, and passion to which human nature is liable." By the establishment of such precedents the domain of doubt is extended so as to embrace not only the lawyer who neglects to read or fails to comprehend the statute and rules of the court but also embraces the diligent and intelligent attorney who reads and comprehends the statutes and rules but remains in doubt as to what construction and application shall be made of them by the courts of the country. For the reasons above stated, I dissent from the decision.

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G.R. No. 960, December 19, 1902

THE UNITED STATES, COMPLAINANT AND APPELLEE, VS. BIBIANO CAPISONDA, DEFENDANT AND APPELLANT. D ECIS ION
COOPER, J.: The defendant, Bibiano Capisonda, is charged with the crime of homicide punishable under article 404 of the Penal Code, he having killed Lucila Marasigan, a girl 15 years of age, by a shot from a gun. He was adjudged guilty by the lower courts and condemned to the punishment of fourteen years eight months and one day of reclusion temporal with the corresponding accessories and the costs of suit, and in case of insolvency to subsidiary imprisonment, and the right to indemnification was reserved to the family of the deceased, from which judgment he has appealed to this court. It appears from the evidence in the case that on the 12th day of February last, at 8 o'clock at night, the defendant, who was then sergeant of police of the town of Gumaga,was standing in front of the municipal presidencia, which was the police quarters, when the deceased, Lucila Marasigan, being directly across the street in front of the presidencia was fired at by the defendant and was struck in the left shoulder, the wound producing almost instant death. He attempts to justify the act under paragraph 11, article 8, which exempts from criminal liability an officer who acts in the fulfillment oi his duty. The defendant testified in the case, and stated that he fired the shot under the following circumstances: That an order had been given by the lieutenant of police that after 8 o'clock at night no person should be permitted on the streets, and that any person found after that hour should be given the order "halt" three times, and should such person refuse to obey the order he should be fired upon. He states that while standing with the sentinel at the place indicated he saw at a distance of about 30 varas a person advancing in his direction; that he gave the word "halt" three times to which the reply "insurrecto" was macle, and that not being able to distinguish the person who gave the reply he discharged his gun at the deceased. Francisco Villapando, Emeterio Capito, and Juan Barreto, policemen of the city, who were present or near by at the time, testified in the case. They were comrades of the defendant, and apparently are not unfriendly toward him. Francisco Villapando testified to the fact of the shooting of the deceased by the defendant; that the deceased was at a distance of about seven steps at the time; that the deceased was in front of the house of her sister at which place the deceased lived, and was about to enter the house when the shooting occurred; that the shooting occurred at 8 o'clock at night, just as the clock was striking that hour; that there was a lamp in the house of the deceased which gave light to the particular place where the deceased was standing; that the light was sufficient for a person to be recognized by; that witness was ignorant as to the motive of the defendant in shooting the deceased. This witness stated that the order from the lieutenant of police was, that all persons found on the streets at 8.30 p. m. should be halted. He corroborates the defendant in the statement that the defendant gave the word "halt" three times, and afterwards fired, but does not know to whom the word "halt" was given because he was within the presidencia; that upon hearing the shot he went

out and saw the defendant, and also saw the deceased stretched upon the ground; that he heard the word "insurrecto," but did not know who uttered this word. He testifies to having seen the deceased, Lucila, passing just before the shot was fired and recognized her clothed as a woman. He knows that the defendant was personally acquainted with the deceased; that deceased was well known in the town. The witness Emeterio Capito testifies that the deceased was coming from a neighboring house to the place where she lived, opposite to where the defendant was standing; that when the deceased was in front of the defendant the defendant raised his gun and fired; that the deceased was about 6 varas distant from the defendant; that the shooting occurred at 8 o'clock; that there was a lamp whose light shone clearly in the streets at that time; that the deceased could have been recognized by the light; that he does not know the motive of the defendant for killing the deceased; that the defendant said nothing before the shooting, and that he heard the deceased say nothing; that when the shooting occurred the sentinel, whose name is Leon Hernandez, was standing guard with the defendant, and seized the defendant and carried him into the police quarters. He states that the defendant and the deceased were old acquaintances, but he does not know whether there was any enmity between them or not; that he did not hear the defendant give the word "halt." This witness testifies that the defendant was accustomed to drinking vhio, and thinks that he was drunk that night. The witness Juan Barreto testifies that he knew the deceased for a number of years; that he was not present at the time of the shootinghe was just inside the police station in front of which the defendant was standing, and heard the shot; that Juan Robinson and Emilia Marasigan, sister of the deceased, hastened to the aid of the deceased; .that the deceased was dead at the time he reached her; that defendant knew the deceased, and that she was well known in the town; that the deceased fell in front of her house; that there was a light in the house of the deceased,burning low; that he did not think it was sufficient to recognize a person by from the police station nor to distinguish a man from a woman; that a lamp was placed in the window of the store underneath the residence of the deceased to light the store; that the light shone both inside and outside. This witness testifies that the defendant gave the word "halt" three times; that on the night in question the insurrectos were not far from the town; that orders were given the police to halt all passers at 9 o'clock; he also testified that the defendant's eyesight was bad. The question in the case is whether the defendant was acting in the bona fide discharge of his duty as sergeant of police at the time of the killing, or whether the killing of the deceased was wrongfully and intentionally done. The defendant, having admitted the killing, has assumed the task of establishing his defense, not that the burden of proof shifted in the case, but it was necessary for htm to establish his defense to the satisfaction of the court. A very material point in which the testimony of the defendant is contradicted is as to the hour of the night at which all persons were prohibited from appearing upon the streets. The defendant testifies that his orders were to halt all persons found on the streets at 8 o'clock. In this he is contradicted by all the witnesses in the case. Francisco Villapando, who was teniente of the police guard, testifies that the order was to prohibit walking after 8.30 p. m. Juan Barreto testifies that the hour fixed was 9 p. m.

Emeterio Capito fixes the hour also at 9 p. m. The deceased met her death precisely at 8 o'clock. The time is definitely fixed by one of the witnesses, who states that the bell of the church clock was just finishing the 8 o'clock stroke. That the defendant should have halted the deceased an half hour before the time fixed for the halting of persons is sufficient to raise a very serious doubt as to the good faith of the defendant in shooting the deceased. That the deceased when halted should have uttered the word "insurrecto," as the defendant testifies, is highly improbable. What motive could she have had in doing so? Besides, the defendant certainly ought to have been able to distinguish the voice of a girl of 15 years of age from that of a man. One witness testifies that he heard the word "insurrecto" uttered.before the shooting; another testifies that the word "insurrecto" was spoken after the shooting. It is quite probable that when the shot was fired some person near by supposed an insurrecto had approached from the fact that the shot was fired, and it was such person who uttered the word "insurrecto." The statement of the accused that the deceased was standing in the dark and that he was not able to distinguish her is not borne out by the testimony. The witness Villapando testified that there was a lamp in the house of the deceased, which gave light to the particular place where the deceased was standing, and that the light was sufficient to recognize a person by. The witness Capito testified that the lamp shone clearly in the street, and that the defendant could have recognized the deceased by the light. We think the testimony in the case is entirely sufficient to disprove the defense. What the motive for the crime was, so far as appears from the record, must be left in mystery. But it is sufficient that the accused killed the deceased, and not having established his defense he must suffer the consequences which the law imposes for the taking of human life. We wish to call the attention of the trial judges and the prosecuting attorneys to the fact that evidence taken upon a preliminary examination has no place in the record; that such testimony except in the cases mentioned in the statute is'inadmissible upon the trial and can not be considered by this court when placed in the record. The defendant, Bibiano Capisonda, is adjudged guilty of the crime of homicide as defined in article 404, and we hereby flx his punishment at seventeen years of reclusion temporal, with the corresponding accessories and costs of suit, and further condemn him to the payment of 1,000 pesos indemnification to the heirs of the deceased. Personal subsidiary liability on account of insolvency can not be imposed upon a person condemned to a penalty higher in the general scale than that of presidio correccional , and the judgment of the lower court was, in this respect, erroneous. The judgment of the Court of First Instance, with the modification herein made, is affirmed. So ordered. Arellano, C. J., Torres, Smith, Willard, Mapa, and Ladd, JJ., concur.

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G.R. No. 964, November 04, 1902

THE UNITED STATES, COMPLAINANT AND APPELLEE, VS CATALINO ORTIZ ET AL., DEFENDANTS AND APPELLANTS. D ECIS ION
TORRES, J.: This case was tried in the Court of First Instance of Maubau, Tayabas, for the crime of murder. The defendants Miguel Arevalo and Germiniano Almagro appealed to this court against the judgment of May 12, 1902, by which the two defendants mentioned and the third defendant, Catalino Ortiz, who did not appeal, were condemned to the penalty of life imprisonment ( cadena perpetua), with the accessories, and to the payment of civil damages. While the case was pending here Mr. Lionel D. Hargis and the Solicitor-General filed a joint motion asking the court to declare that the defendants are entitled to the benefits of the amnesty proclamation of July 4 last, and that they be acquitted and restored to liberty, after taking the required oath. The facts in the case are that one night in the month of July, 1901, Mariano de Mesa, who was held as a prisoner by a party of revolutionists who were scouring the province under command of Maj. Ruperto Reus, was put to death, it being supposed that he was a spy of the American Army. Catalino Ortiz and Miguel Arevalo were those who actually committed the crime by order of Germiniano Almagro, who was the captain of the party, and who in turn acted upon orders received from the said Major Reus. The crime was classified as murder because the aggressors, in order to assure the consummation of the crime without any risk which might arise from an attempt on the part of the victim to defend himself, tied him to a telegraph pole, and while he was in this defenseless condition inflicted upon him with a cutting weapon three wounds, in the head, on the chin, and in his right side, which wounds resulted in his death. His body was found in this condition on the following day by the police of the town of Atimonan. Attached to it was a paper stating that he had been killed as a spy. From the facts related it follows that the murder in question is of a political character and is a result of the political hatred or of political dissensions between Filipinos, as both the deceased and the defendants were natives of the Islands. The defendants were revolutionists and were members of the revolutionary faction. Furthermore, they killed the supposed spy, Mariano de Mesa, by order of the said Maj. Ruperto Reus, who was commanding the party, his orders having been transmitted to the defendant through Almagro, who styled himself captain. It does not appear that the crime was due to any personal resentment, but simply to the belief that Mesa was in fact a spy and an enemy to the revolution. As Almagro and Arevalo appealed from the judgment rendered against them in the court below, and the appeal is now pending before us, it is evident that they have not been convicted by final judgment, and therefore it follows that, from the facts above stated, th.ey are entitled to the benefits of the amnesty proclamation. But the other defendant) Catalino Ortiz, did not appeal and therefore with respect to him the judgment below became a finality. He, therefore, falls within one of the excepted cases foreseen in the amnesty decree, and consequently this court is without jurisdiction to apply the amnesty to him; but he may present a special petition to that end to the proper executive authorities.

For the reasons above stated we hold that the defendants Germiniano Almagro and Miguel Arevalo are entitled to the benefits of the amnesty of July 4 last, and, upon taking before a competent officer the oath prescribed in the said proclamation, they will be set at liberty. The judge will forward to this court proof of compliance with the instructions contained herein, together with the original oaths. So ordered. Cooper, Willard, Smith, and Mapa, JJ., concur.

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G.R. No. 967, July 25, 1902

DARIO ELEIZEGUI ET AL.,PLAINTIFFS AND APPELLEES, VS. THE MANILA LAWN TENNIS CLUB, DEFENDANT AND APPELLANT. D ECIS ION
COOPER, J.: The appellee has moved the court to dismiss the appeal taken against the judgment rendered by the Court of First Instance of Manila, upon the ground that the Supreme Court is without jurisdiction in cases tried by the Court of First Instance in the exercise of its jurisdiction over cases appealed from justice courts. Article 74 of the Code of Civil Procedure of 1901 provides that either of the parties to an action pending before a justice court may appeal against a judgment of a justice of the peace to a Court of First Instance, the appeal to be tried at the next regular term of the said court. In accordance with the provisions of article 75 the effect of an appeal so taken is to vacate the judgment of the justice court, and the case, when duly entered in the Court of First Instance, is tried de novo on the merits, in accordance with the regular procedure of that court, as though it had not been tried before and had originally been brought therein. Article 143 of the Code of Civil Procedure provides that upon the rendition of a final judgment by a Court of First Instance disposing of the action either of the parties shall be entitled to perfect a bill of exceptions for a review by the Supreme Court of all rulings, orders, and judgments made in the action to which the party has duly excepted at the time of making such ruling, order, or judgment. No limitation whatever has been fixed with respect to the right of the parties to appeal against a judgment of a Court of First Instance, nor has any distinction been made as io whether the case was commenced in the Court of First Instance or whether it was brought before it by appeal from a justice court. We hold that article 143 confers jurisdiction upon the Supreme Court in all cases of final judgments rendered by the Court of First Instance, either in the exercise of its original jurisdiction or its appellate jurisdiction. The motion to dismiss is therefore overruled. So ordered. Arellano, C. J., Torres, Willard, and Ladd, JJ., concur. Mapa J., did not sit in this case.

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G.R. No. 968, November 26, 1902

FRANCISCO M. GO-QUICO, PLAINTIFF AND APPELLEE, VS. THE MUNICIPAL BOARD OF THE CITY OF MANILA AND THE HEIRS OF BALBINO VENTURA HOCORMA, DEFENDANTS AND APPELLANTS. D ECIS ION
WILLARD, J.: On March 3, 1902, the plaintiff filed a complaint in the Court of First Instance of Manila, naming as defendants the city of Manila and the heirs of one Hocorma, in which he stated that he was the tenant in possession of the land described therein; that the landlord had fraudulently leased the property to others; that the city of Manila had ordered the houses on the land destroyed, and that he had commenced an action against the landlord for fulfillment of his contract with said landlord. The prayer of the complaint is as follows: "Plaintiff prays that in accordance with the article cited (162) a preliminary injunction issue against the Municipal Board restraining it from executing or causing to be executed the aforesaid order for the demolition of the abovedescribed tenements, until further orders; and that the heirs of D. Balbino Ventura Hocorma be restrained from disturbing the enjoyment of the said lot." On the same day, without notice to the defendants, the court made the following order: "Upon reading and filing the above complaint ordered that a preliminary injunction issue as prayed for in the complaint against the defendants, upon the execution by the plaintiff of a bond in the sum of 500 Mexican pesos, in accordance with law. "Manila, March 3, 1902. "ARTHUR F. ODLIN, Judge. "The defendants may appear before me March 5 at 8.30 a. m., should they so desire, to move for the dissolution of the said injunction. "ODLIN, Judge." On March 7 the attorney for the city, appearing specially for the purposes of the motion only moved to dissolve the injunction. This motion was heard and granted on March 10. On April 12 the plaintiff presented another petition in which "he (the plaintiff) prays that a new preliminary injunction issue," etc. This petition was heard on April 15, the City Attorney appearing specially as before and objecting on the grounds, among others, that no summons or copy of the complaint in the action had ever been served on the city. In overruling this objection the court said: "It is unquestionably true that before the city of Manila can be required to answer or demur to the complaint in this action a copy of the same and of the summons should be served upon it; but the question now pending is an incidental issue such as that contemplated in article 168. The court has, beyond question, power to issue this preliminary injunction, without notice to the city of Manila." A temporary injunction was, on April 16, ordered to be issued in the

same form as the preceding one. The City Attorney again appeared specially and moved to dissolve this injunction. Among other grounds he renewed those contained in his first motion, hereinbefore cited. The court, on May 20, denied the motion in the following order: "Upon reading and filing the motion presented April 19, 1902, praying for the dissolution of the preliminary injunction issued herein April 17, 1902, and the memoranda submitted by the respective parties upon the hearing of the said motion, and upon the pleadings and the record: " Ordered , That the said motion be and the same is overruled, and that the said injunction continue in force, without prejudice to the right of the defendant, the Municipal Board of the city of Manila, to move for its dissolution upon the filing of an approved bond in the sum of $2,000, Mexican currency, conditioned for the payment by the defendant to the plaintiff of all damage he may suffer by reason of the demolition of the condemned buildings should the said order be affirmed or the appeal dismissed. Dated in Manila, May 20, 1902. "ARTHUR F. ODLIN, Judge. " On May 26 the city appealed from the order of April 16 and from the order of May 20. A bill of exceptions was allowed on June 9, and certified to this court A motion having been made here by the plaintiff to amend the bill of exceptions, it was suggested by the court that the orders in question were not appealable. That question has been argued and is now for decision. Article 123 of the Code of Civil Procedure is as follows: "SEC. 123. No interlocutory or incidental ruling, order, or judgment of the Court of First Instance shall stay the progress of an action or proceeding therein pending, but only such ruling, order, or judgment as finally determines the action or proceeding; nor shall any ruling, order, or judgment be the subject of appeal to the Supreme Court until final judgment is rendered for one party or the other." The defendant claims that the only relief prayed for was a preliminary injunction, "and the court having granted him all that it could grant him (art. 126) and there being nothing further to adjudicate in the case" the order refusing to dissolve the injunction Avas the final judgment. The same thing could be said of the very first order made in the case on March 3, when the complaint was presented. By that order the plaintiff secured all he prayed for, and if the contention of the defendant is true that was the final judgment. The same thing could be said also of the order of March 10 dissolving the temporary injunction. There is no difference in principle between any of these orders so far as their finality is concerned. Some may have been made with more evidence before the court and .after more deliberation than the others, but so far as putting an end to the litigation in the court is concerned they were equal. If the contention of the defendant is true, the court below, after the order of April 16, had no power to entertain the defendant's motion to dissolve the injunction therein granted, for that order was the final judgment in the case. It is apparent, however, that there can, in the nature of things, be no such action as one for a temporary injunction and for nothing else. A temporary injunction lasts only during the pendency of the action. When the action terminates the temporary injunction falls. If, therefore,

the judge, after a hearing, should enter a final judgment granting a temporary injunction, that very act would dissolve the injunction. In this case, if the only purpose of the suit was the temporary injunction and the order of April 16 or of May 20 was the final judgment, the defendant did not need to appeal. The injunction fell with the termination of the suit, and the only effect which the defendant's appeal against it had was to keep it alive. If the only purpose of this suit was to obtain a preliminary injunction the defendant should have moved to dismiss the action, for no such suit can be maintained. But it is apparent to us that the purpose of this suit was to obtain an injunction restraining the defendants until the determination of the other action between the plaintiff and the heirs of Hocorma. Whether such relief can be made the subject of an independent action or should be sought in the original action is not before us for decision, and we do not decide it. Such a suit, if it can be maintained, would be a suit for a final injunction (art. 164, 1), not for a preliminary injunction. It is true that the plaintiff has used the word "preliminary" in his prayer and has not asked for other relief. But that prayer could be amended if the defendant answered, and if the defendant did not answer and no amendment could be allowed under article 126, as claimed by the defendant, the only result would be that the court would have to enter a final judgment dismissing the suit. No answer has ever been made in this case, no issues of any kind have been joined. there has therefore been no trial of any issue, either of fact or law. with each motion presented by the defendant he presented various affidavits as to matters of facts. there is nothing to show that the parties ever agreed upon these facts, or ever agreed that the order of may 20 should be considered as the end of the case. if the plaintiff in his complaint had asked for a final injunction and at the same time had asked for a preliminary injunction we do not think that it would be claimed that the proceedings had below legally terminated the action. It may be true that the court below has really decided the question of law in the case in passing upon these motions, and that upon the trial no new facts would be developed. that frequently happens in motions for preliminary injunctions, but it does not make an order on such a motion a final judgment. after the order of march 10 the plaintiff had a right to amend his complaint or to proceed with the case without an amendment. after the decision of april 16 and after the decision of may 20, the defendant had a right to answer, at the trial to present additional evidence and to reargue the questions of law. The decision on the preliminary motion was not an adjudication of the questions there passed upon, either on the facts or the law. The order of May 20 did not finally dispose of the question there decided so far as the Court of First Instance was concerned. It still had jurisdiction and the power to enter a final judgment for the defendant after a trial on the issues raised by an answer. If it had not, every preliminary injunction would be a final one in the trial court. This proposition finds support in the case of Lalande vs. McDonald, 13 Pac. R., 347 (Idaho), cited by the defendant. In Weston vs. City Council (2 Peters, 449), also cited by the defendant, a judgment had been entered reversing a judgment granting a writ of prohibition and ordering judgment for the defendant. It was suggested that this judgment, although it ended that particular suit, did not really finally decide whether the ordinance of the city of Charleston was void or valid, and therefore was not a "final" judgment within the meaning of the twenty-fifth section of the judiciary act. The court, however, said: "The word 'final' must be understood in the section

under consideration as applying to all judgments and decrees which determine the particular case." It is apparent that this case does not support the defendant's contention, for the question here is, Has the particular suit been terminated or not? In Potter vs. Beal (50 Fed. R., 860) the order appealed from finally disposed of a part of the property in dispute so that it passed beyond the control of the court. Putnam, J., said: "The order * * * seems to dispose of a part or the whole of the matter in controversy so effectually that we are forced to accept as a final decree so much as directs a distribution." We can not agree with the majority opinion in the case of Lewis vs. Campan (14 Mich., 458; 90 Am. Dic., 245), so much relied upon by the defendant, even supposing that the statutory provisions of that State are similar to ours. On the contrary, we incline to the view stated by the Chief Justice in his dissenting opinion. He said: "The bill was filed to remove administrators and for appointment of others, asking for the appointment of a receiver and an injunction until the final hearing. The receiver was appointed and an injunction granted upon an interlocutory motion. The final hearing has not yet been had, and the question of costs and further directions is expressly reserved until the final hearing. How this can be regarded as a final decree under the rulings in this State I am at loss to conceive." In considering the American authorities it must be borne in mind that probably no one of the statutes therein construed contained such strong provisions against appeals from interlocutory resolutions as are found in our article 123. The evils resulting from such appeals under the Ley de Enjuiciamiento Civil were well known. It was to cure such evils that this article was adopted. It expressly prohibits appeals not only from interlocutory orders but also from interlocutory judgments. This prohibition is reiterated in article 143, which says: "Upon the rendition of final judgment disposing of the action either party shall have the right to perfect a bill of exceptions." The appeal in this case is prohibited by these articles and it is accordingly dismissed. Arellano, C. J., Torres, Smith, Mapa, Cooper, and Ladd, JJ., concur.

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G.R. No. 970, December 01, 1902

THE UNITED STATES, COMPLAINANT AND APPELLEE VS. TEODORO REYES, DEFENDANT AND APPELLANT. D ECIS ION
LADD, J.: It will not be necessary to decide whether in admitting the declaration of the deceased, made in the course of the preliminary investigation a few hours before his death, the court below erred, because we are of opinion that even if this evidence is to be considered as properly in the case, the defendant must be acquitted The deceased was surprised by the defendant cutting bamboo on what the latter claimed was his land. An altercation ensued between them, and the deceased received a wound which caused his death. The only evidence as to what took place offered by the prosecution was the declaration referred to and some statements by the deceased to his brother. The declaration is in such vague and general terms as to detract greatly from its value as evidence. It is in substance that the defendant found the deceased cutting bamboo as stated; that he took him to task for it, using insulting language; that the deceased replied, and that the defendant thereupon attacked him and stabbed him in the stomach with a clasp penknife. The statements made by the deceased to his brother differ somewhat from the declaration. They are to the effect that the deceased when surprised by the defendant asked his pardon, and offered to pay for the bamboo if the defendant was not willing to give it to him, but that the defendant made no reply but at once attacked him. The defendant, who testified in his own behalf, gave quite a full and circumstantial account of what occurred. He says, omitting unimportant details, that he found the deceased cutting bamboo on his land; that he asked him why he was cutting such young cane; that the deceased replied in effect that it was none of his business as the land was not his; that he then threatened to arrest the deceased (the defendant being teniente of the barrio), whereupon the deceased approached him and aimed a blow at him with his bolo, which he avoided by letting himself fall from his horse; that he retreated, the deceased pursuing and striking at him with the bolo; that at last he opened his knife and put himself in an attitude of defense; that the deceased not desisting he grappled with him and succeeded in wresting the bolo from him, and that in the course of the combat he thinks he must have wounded the deceased with the knife. The defendant's account of the occurrence is corroborated to a certain extent by the evidence of two persons who witnessed the encounter from a field some four hundred yards distant, and who say they saw a man fall from his horse and another man pursue him and finally grapple with him, although they were not near enough to be able to distinguish who the men were. The defendant's testimony appears to us in effect, and especially as thus corroborated, more worthy of credence than the declaration and statements made by the deceased. At all events, in such a conflict of evidence we should not be justified in rejecting it as untrue. Accepting the defendant's statement as true, it is clear that he was acting in the legitimate exercise of his right to defend himself by repelling the unprovoked and wrongful attack of the defendant, and is therefore relieved from responsibility under No. 4 of article 8 of the Penal

Code. The judgment of the court below is reversed, and the defendant is acquitted, with costs of both instances de oficio. Arellano, C. J., Cooper, Smith, Willard, and Mapa, JJ., concur.

OSJurist.org

G.R. No. 976, October 22, 1902

THE UNITED STATES, COMPLAINANT AND APPELLEE, VS. MAXIMO ABAD, DEFENDANT AND APPELLANT. D ECIS ION
LADD, J.: The offense with which the defendant was charged and of which he has been convicted is that defined in section 14 of Act No. 292 of the United States Philippine Commission, which is as follows: "Any person who shall have taken any oath before any military officer of the Army of the United States, or before any officer under the Civil Government of the Philippine Islands, whether such official so administering the oath was specially authorized by law so to do or not, in which oath the affiant in substance engaged to recognize or accept the supreme authority of the United States of America in these Islands or to maintain true faith and allegiance thereto or to obey the laws, legal orders, and decrees promulgated by its duly constituted authorities and who shall, after the passage of this act, violate the terms and provisions of such oath or any of such terms or provisions, shall be punished by a fine not exceeding two thousand dollars or by imprisonment not exceeding ten years, or both." The defendant is a former insurgent officer and is entitled to the benefit of the proclamation of amnesty if the offense is one of those to which the proclamation applies. Assuming, for the purposes of the present motion, that the defendant is guilty of the offense, there is no evidence in the record showing that it was committed pursuant to orders issued by the civil or military insurrectionary authorities, or that it grew out of internal political feuds or dissensions between Filipinos and Spaniards or the Spanish authorities, or that it resulted from internal political feuds or dissensions among the Filipinos themselves. If it is covered by the amnesty it must be because it is embraced within the words employed in the proclamation to designate the first class, of offenses amnestied, namely, "offenses of treason and sedition." If these words are to be given a construction in accordance with their strict technical signification, there will be some difficulty in holding that they include the offense in question. Treason is defined in section 1 of Act No. 292 to consist in levying war against the United States or the Government of the Philippine Islands, or adhering to their enemies, giving them aid and comfort within the Philippine Islands or elsewhere. Sedition is defined in section 5 of the same act as the rising publicly and tumultuously in order to obtain by force or outside of legal methods certain enumerated objects of a political character. A violation of an oath containing the comprehensive engagements of that in question may be committed without by the same act committing either the crime of treason or that of sedition as thus defined, as, for example, in the case of a conspiracy to commit these crimes or to commit the crime of insurrection. (Act No. 292, sees. 3, 4, 7.) And, conversely, the crime of treason or that of sedition may be committed, without a violation of the oath of allegiance when it is committed, as it, of course, may be, by a person who has never taken such oath. The act, therefore, by which the offense of violation of oaths of allegiance, as defined in section 14 of Act No. 292, is committed, is not necessarily identical, although it may be in particular cases, with that by which the technical crime of treason or that of sedition is committed. And in all cases the offense of violation of an oath of allegiance involves, in a sense, an element, namely, the breaking of an express promise, which may not be present in treason or sedition.

In the present case the act by which the defendant is found by the court below to have violated the oath was that of denying to an officer of the United States Army the existence of certain rifles, which had been concealed by his orders at the time of his surrender in April, 1901, and of the existence and whereabouts of which he was cognizant at the time of the denial. If this act was a violation of the oath, which upon the evidence in the case may be doubtful, it was probably also an act of treason, as being an act of adhering to the enemies of the United States, giving them aid and comfort, and if the element of breach of promise is to be regarded as merely an incidental circumstance forming no part of the essence of the crime of violation of oaths of allegiance, the offense in this particular case might, perhaps, be held to be covered by the amnesty as being, in substance, treason though prosecuted under another name. We prefer, however, to base our decision upon a broader ground, and one which will cover all cases of prosecution for the offense of violation of oaths of allegiance. There are a variety of offenses in the criminal codes of all countries which are not directed primarily against individuals, but rather against the existence of the state, the authority of the government or the general public tranquillity. All or nearly all of the offenses created and denned in Act No. 292 are distinctly of this character. Among them are treason properly so called (section 1), misprision of treason (section 2), insurrection (section 3), conspiracy to commit treason or insurrection (section 4), sedition properly so called (sections 5 and 6), conspiracy to commit sedition (section 7), seditious words and libels (section 8), the formation of secret political societies (section 9), and finally the offense in question (section 14). The line of distinction between some of these offenses is often difficult to draw. They are all closely related and may all be embraced under the general description of offenses of a treasonable and seditious nature. When the framer of the proclamation used the words "treason and sedition" to describe the purely political offenses covered by the amnesty, we think it was his intention, without specially enumerating the political offenses defined in Act No. 292, to include them all under those two general heads. Treason, in its more general sense, is the "violation by a subject of his allegiance to his sovereign or liege lord, or to the supreme authority of the state." (Century Dictionary. ) Sedition, in its more general sense, is "the raising of commotions or disturbances in the state." (Bouvier's Law Dictionary, title "Sedition.") Technical terms of the law whqn used in a statute are ordinarily to be given their technical signification. But in construing an executive act of the character of this proclamation, as in construing a remedial statute, a court is justified in applying a more liberal rule of construction in order to effectuate, if possible, the beneficent purpose intended. Certainly a limitation of the words in question to their literal and technical signification would utterly defeat the unmistakable general object of the amnesty. Upon such a construction treason, the highest of all political crimes, a crime which may be punished by death under section 1 of Act No. 292, would be included in the amnesty, while insurrection, which is a crime of precisely the same nature and differs from it solely in being inferior in degree and punishable by fine and imprisonment only, would be excluded, A construction leading to such manifest inconsistencies could be accepted only when the language admitted of no other. We think the construction suggested as the true one though somewhat less restricted than the precise legal signification of the terms "treason" and "sedition?' might warrant, may be adopted without doing violence to the language of the proclamation, and there is no room for doubt in our minds that by adopting that construction we carry out the real intention of the President.

We hold, therefore, that the offense of violation of oaths of allegiance, being one of the political offenses defined in Act No. 292, is included in the general words "treason and seditibn," as used in the proclamation. The defendant is entitled to the benefits of the proclamation, and upon filing in this court the prescribed oath the cause will be returned to the court below with directions that he be discharged. So ordered. Arellano, C. J., Torres, Cooper, and Willard, JJ., concur. Smith and Mapa, JJ., did not sit in this case.

OSJurist.org

G.R. No. 985, November 10, 1902

THE UNITED STATES, COMPLAINANT AND APPELLANT, VS. ANACLETO SANTILLANA ET AL., DEFENDANTS AND APPELLEES. D ECIS ION
WILLARD, J.: On September 7, 1899, Don Juan Carballo y Blanco was killed in a camarin on his hacienda in the Province of Negros Occidental by a band of men armed with rifles and bolos. Three days afterwards the head of Don Juan, wrapped in a sack ( bayan), was found suspended from the bridge in the pueblo of Silay. Upon the outside of the sack was this inscription: " Juan Carballo, hombre pernicioso a la revolucion. E. P. D. (Juan Carballo, a bad man for the revolution. R. I. P. ) Don Juan Carballo was killed by reason of a written order issued by a council of war convened by the revolutionary forces then operating in that province. The officer then in command of these forces was Luis Ginete. Before this council of war the defendant acted as judge-advocate. According to the testimony in this case, the decision of the council was that Don Juan be brought before them for trial. The charges against him were that he was a spy and guide of the Americans. The order provided that in case of resistance he should be killed. This order the defendant delivered to the persons charged with its execution. There was no attempt made to arrest Don Juan. He was attacked and killed without warning. The defendant was tried for the murder of the deceased and was acquitted. The provincial fiscal appealed. In this court the Solicitor-General asks that the defendant be discharged on the ground that he is included in the amnesty of July 4, 1902. While the defendant has asked us to pass upon the merits of the case, yet he also asks the benefit of the amnesty and has filed here the oath required by the proclamation. His case is clearly within its terms. He was participating against the United States in the revolution. He was acting pursuant to the orders of his superior, Luis Ginete. The killing of Don Juan Carballo was an offense of a political character. (United States vs. Vicente Villamor, August 29,1902.) Upon its facts the case at bar is practically the same as the case cited. Under the circumstances we do not feel called upon to decide this case on its merits. Such a decision would involve the determination of questions concerning the status of Filipinos engaged in the revolution, and their liability, civilly and criminally, before the courts for acts committed in the prosecution of that revolution. These questions are of such importance that they ought not to be decided in a case where such a decision is unnecessary. The defendant was acquitted below, and a holding that he is included in the amnesty in no way prejudices his rights. Therefore, assuming, without deciding, that he is legally responsible for the killing of Don Juan Carballo, we hold that he is included in the amnesty. He having filed the oath required thereby, the case is dismissed. Arellano C. J., Torres, Cooper, Mapa, and Ladd, JJ., concur.

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G.R. No. 989, November 28, 1902

JOHN GRUINDROD, PLAINTIFF AND APPELLANT, VS. LIZARRAGA HERMANOS, DEFENDANT AND APPELLEE. D ECIS ION
WILLARD, J.: This is a motion to dismiss the bill of exceptions on the ground, among others, that the resolution excepted to is not a final judgment. Article 123 of the Code of Civil Procedure is as follows: "No interlocutory or incidental ruling, order, or judgment of the Court of First Instance shall stay the progress of an action or proceeding therein pending, but only such ruling, order, or judgment as finally determines the action or proceeding; nor shall any ruling, order, or judgment be the subject of appeal to the Supreme Court until final judgment is rendered for one party or the other." Article 143 says: "Upon the rendition of final judgment disposing of the action, either party shall have the right to perfect a bill of exceptions." The resolution excepted to orders: "That the judgment of the said Superior Provost Court in this case be set aside and that the action be placed on the calendar of the Court of First Instance of Iloilo for a new trial." This determination, so far from finally disposing of the case, expressly held that there had been no final judgment therein, and retained it for a new trial. (Francisco M. Go-Quico vs. Municipal Board of Manila.) The motion is granted and the bill of exceptions dismissed, with costs against the appellant. It is so ordered, Arellano, C. J., Cooper, Torres, Smith, Mapa, and Ladd, JJ., concur.

OSJurist.org

G.R. No. 991, December 19, 1902

THE UNITED STATES, COMPLAINANT AND APPELLEE, VS. FRANCISCO NAVA, DEFENDANT AND APPELLANT. D ECIS ION
COOPER, J.: The defendant, Francisco Nava, is charged with causing the death of one Luciano de la Cruz through reckless negligence in the following manner: On the 14th day of October, 1901, the defendant was the the patron of and having full authority over a certain steam launch known as the Mariposa in the harbor of the city of Manila, and having such authority he took in tow a certain lorcha known as the Legaspi . That while the Mariposa was towing the Legaspi by means of a towline the defendant willfully cast loose the towline from the launch Mariposa so as to cause the Legaspi to go adrift, and the Legaspi being without motive power was unable to resist the action of the wind, current, and the sea in the said harbor. That by reason of so being cast adrift the Legaspi was thrown by the action of the wind and waves upon the breakwater, wrecked, and broken to pieces, and that one Luciano de la Cruz, who was then on board of the lorcha Legaspi , was drowned. The defendant was found guilty under the provisions of article 568 of the Penal Code and sentenced to the penalty of presidio correccional for the period of one year and one day and to the payment of the costs of the proceed1 ings, from which judgment he has appealed to this court. "Criminal negligence" according to Viada, "consists in the failure to take such precautions or advance measures in the performance of an act as the most common prudence would suggest, whereby injury is caused to persons or to property." Does the evidence in the case show such inexcusable negligence and want cf care as to amount to reckless negligence? The evidence shows that about 10 o'clock in the morning of the 14th of October, 19.01, the typhoon signal was raised at the Captain of the Port's Office; that the launches set out to bring into the river the lorchas, cascoes, and other small craft which were used for loading and unloading the vessels in the bay. That about 3.30 in the afternoon the steam launch Mariposa, of which the defendant was the patron, was solicited by the lorcha Legaspi , which was then lying alongside the steamer Perla, to be towed in the direction of the Pasig river; that the Mariposa took in tow the Legaspi and also three other lorchas; that while the Mariposa is a first-class launch it was unable on account of the weather growing worse to advance with the four lorchas, and she ordered the Legaspi to anchor and await her return. At about 5.30 in the evening after the fifth typhoon signal was hoisted at the Captain of the Port's Office, the Mariposa returned to the Legaspi and took her in tow, and was going to take a tow of the lorchas and cascoes that were lying alongside of the ship Esmeralda which was near by, but making a bad mark of it she was delayed for nearly half an hour, when, if properly done, she would have picked them up in five to ten minutes.

The weather in the meanwhile continued to grow worse, the wind increasing in velocity and the waves running high. Under the circumstances the Mariposa desisted in her purpose of taking the other two lorchas and started out for the river with the Legaspi in tow. It is claimed by the prosecution that it was within the power of the Mariposa to have steamed around the end of the breakwater into the inside of the harbor instead of going up the River Pasig, which was farther than the outer end of the breakwater. The Esmeralda was at anchor about 50 yards from the breakwater. When about halfway between the Esmeralda and the breakwater the Mariposa with the Legaspi in tow found herself by the action of the wind and water sagging down towards the breakwater. All the steam was put on that the boilers were able to withstand without gaining any distance, and as stated by the defendant, a trepidation being felt as of touching upon rock, the defendant ordered the Legaspi to anchor, and he cast the towline from the Mariposa, sending the Legaspi adrift. The Legaspi, being without motive power, was left to the mercy of the wind and waves and was soon dashed upon the breakwater. All those on the Legaspi succeeded in saving themselves except Luciano de la Cruz. The Mariposa after casting off the Legaspi steamed safely into harbor.without giving further attention to the Legaspi or making any effort whatever to save those who had been thus left to their fate. It can not be said, we think, that the acts of the patron of the Mariposa were not strictly adjusted to the necessities of the case. The weather was continually growing worse, and the Mariposa finding herself unable to make headway against the wind and waves, had the alternative of casting the Legaspi adrift or herself being wrecked on the breakwater. A witness testifies that it was impossible at the time the Mariposa cast the Legaspi adrift to have succeeded in going around the breakwater to the other side. The patron of the Mariposa, perhaps lacking in skill in attempting to reach the lorchas alongside the Esmeralda , lost valuable time, and failing to foresee on leaving the Esmeralda the difficulties which he would encounter ia attempting to go up the river, found himself drifting upon the breakwater, and was in such close proximity to the breakwater that the Mariposa could neither go up the river nor turn and make her way around the breakwater and go in the inside, and under these circumstances sent the Legaspi adrift. The wrecking of the Legaspi seems to have been inevitable before the time of the casting off of its towline. It can not be said with certainty that the casting off of the towline placed the Legaspi in a worse position than she would have been had the Mariposa held her tow and continued her course toward the river. The circumstances were such that it was impossible to calculate the chances with any degree of certainty. A different course might have been followed, but it is not certain that any other would not have been equally disastrous to the Legaspi . We not only fail to discover that the defendant was guilty of reckless negligence, but we are in doubt as to whether he could have pursued any other course under the circumstances. The negligence charged against the defendant is in sending the Legaspi adrift. There is no evidence showing that by proper effort on the part of the defendant the life of de la Cruz could have been saved, and therefore the act of his steaming oft" in safety can not be considered as an act of negligence. Whether the defendant, to whom was committed the sacred charge of the

lives of his fellow beings, acted through the noble impulse and with the courageous conduct which so often characterizes those engaged in his occupation is not a matter for us to determine. For the reasons stated we must reverse the judgment of the lower court as being unsupported by the evidence and acquit the defendant of the charge, which is accordingly done, and the costs of proceedings are adjudged de oficio. So ordered. Arellano, C. J., Torres, Smith, Willard, Mapa, and Ladd, JJ., concur.

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G.R. No. 996, October 13, 1902

LUIS R. YANGCO, PETITIONER, VS. WILLIAM J. ROHDE, JUDGE OF THE COURT OF FIRST INSTANCE OF MANILA, RESPONDENT. D ECIS ION
ARRELANO, C.J.: The petitioner, Luis R. Yangco, filed in this court a petition for a writ of prohibition, alleging that before Judge William J. Rohde, of the Court of First Instance of the city of Manila, a complaint had been filed by Victorina Obin against the petitioner praying that she be declared the lawful wife of the said Yangco, and that she be granted a divorce, an allowance for alimony, and attorney's fees during the pendency of the suit; that the demurrer filed by the petitioner was overruled by the said judge, said ruling being in part as follows: "I am of the opinion that the marriage alleged in the complaint is valid under the laws in force, although the question is not clear nor without doubt. The facts alleged in the complaint compel me to resolve the doubt in favor of the plaintiff;" and that the petitioner, in answer to the complaint, denied the principal allegation of fact therein, to wit, the mutual agreement to be husband and wife alleged by the plaintiff to have been entered into before witnesses; that while the case was in this condition the plaintiff filed, a motion for a monthly allowance as alimony, costs, and attorney's fees; that on the 22d of July last the said judge ordered the petitioner to pay the plaintiff, in advance, a monthly allowance of 250 Mexican pesos from and after the 11th of March last past, and to pay on ttfe 1st day of August following all accrued allowances, in addition to the allowance for the said month, amounting io the sum of 1,500 pesos; that the plaintiff in the said action owns no property, and the judge not having required from her any security, it is certain that the petitioner, defendant in the said action below, should judgment be rendered in his favor, would be unable to recover such sums as the judge might compel him to disburse; that against the ruling of the court he has no right of appeal or any plain, speedy, or adequate remedy; therefore he prays the court to render judgment declaring the Hon. William J. Rohde, judge of the Court of First Instance of Manila, has acted in excess of his jurisdiction in attempting to oblige petitioner to pay to the said Victorina Obin the said allowance, and to direct that a writ of prohibition issue to the said William J. Rohde prohibiting him from attempting to compel petitioner to pay the said amount. Against this petition the attorney for the respondent, William J, Rohde, filed a demurrer and motion to dismiss upon the following grounds: (1) That this court is without jurisdiction over the subject-matter of the action; (2) that the petition does not state facts sufficient to constitute a cause of action. It is to be observed that in the oral argument and brief filed no denial was made, but on the contrary the fact alleged by the petitioner was affirmed in that the ruling on the demurrer in the Court of First Instance the respondent had expressed his opinion that "the question (as to the alleged marriage) is not clear nor free from doubt." "Nevertheless," he says, "this being so, the said Victorina Obin acquired a right to all conjugal rights, and in particular to the allowance of alimony pendente lite ." And upon this supposition he cited articles of the Civil Code as to rights enjoyed by a married woman by virtue of the marriage, and those which she may further exercise by reason of divorce pending litigation and those granted to her finally in case of a favorable judgment.

The entire theory developed by the demurrer now before us may be expressed in the following terms: The respondent judge had jurisdiction to try the divorce case and its incidents, among others that of alimony; in an interlocutory ruling he held that the alleged matrimony existed, although it appeared to him to be a matter not clear or free from doubt; in another interlocutory order, notwithstanding the fact that the existence of the marriage is not clear or free from doubt, he directed an allowance of alimony pendente lite in favor of the plaintiff; against this interlocutory order no appeal lies on behalf of the alleged husband who is to pay this allowance; this alleged husband must pay it without any guaranty of recovery in the event that the proof should establish a contrary condition of affairs to that assumed to be correct, notwithstanding the fact that the question is not clear or free from doubt; and as the judge is not devoid of jurisdiction, and as no appeal lies against an interlocutory order, that such an opinion, such an interlocutory order so rendered, although erroneous and causing irreparable damage, can not be reviewed by any other court during the course of the trial. Such a theory was not possible in these Islands under its former Law of Civil Procedure, nor is it possible now under the present Code of Civil Procedure. Under article 1591 of the old Code any person believing himself entitled to that provisional alimony or support was required to file with the complaint documents proving conclusively the title by virtue of which the same was sued for. If the title was based upon a right created by law, it was necessary to present the documents establishing the bond of relationship between the plaintiff and defendant or the circumstances which gave a right to the alimony, such evidence to be completed by the testimonyof witnesses if necessary. The judge, under article 1592, could not admit the complaint unless the documents referred to in the preceding article were submitted. It is evident from this that under the provisions of the law then in force a suit for alimony could not prosper upon the mere opinion of the judge expressed, not in a final judgment causing status, but in an interlocutory order which has no other purpose than to facilitate the continuance of the trial. This, apart from the fact that under the former procedural law every interlocutory order not merely of practice was appealable, and consequently the case of one finding himself prejudiced by an order capable of causing him irreparable damage, such as that of paying an allowance without security or possibility of recovery, could never arise under that system of legislation. The necessity of founding the action for support or alimony on a title, and a title supported by documentary evidence, is a consequence of the precepts of article 143 of the Civil Code cited by the respondent judge himself. In this article the right to support is granted (1) to spouses inter se; (2) to legitimate descendants and ascendants inter se; (3) to parents and certain legitimated and acknowledged natural children; (4) to other illegitimate children, and (5) to brothers and sisters. In all these cases it is a civil status or a juridical relation which is the basis of the action for supportthe civil static of marriage or that of relationship. In the present case the action for the support or alimony is brought by a woman who alleges that she is a wife; therefore it is necessary for her to prove possession of the civil status of a spousethat is, a marriage, without which one has no right to the title of husband or wife. Marriages celebrated before the adoption of the Civil Code must be proven by the means established by the former laws (art. 53). "Marriages celebrated before the operation of the Code," says Q. Mucius Scaevola "must be proven by the canonical certificate." (Vol. 2,'p. 137.) "Before the Council of Trent," says Manresa, "no absolute provision of law required the parish priests to make entries in their books with regard to the birth, marriage, or death of their parishioners * * *. The council required the parish priests to open books in which to record

baptisms, marriages, and deaths * * * The State, the attention of which was called for the first time to the importance of the records established by the provisions of the council, gave evidence of its interest by issuing the royal order of March 21, 1749, according to which the prelates of the Kingdom were directed to require the evidence referred to to be kept exclusively in the churches." (Commentaries, vol. 1, p. 262.) This evidence being lacking, and the civil status of marriage being in litigation, it is evident that nothing can be taken for granted upon the point in issue. There is no law or reason which authorizes the granting of alimony to a person who claims to be a spouse in the same manner as to a person who conclusively establishes by legal proof that he or she is such spouse, and sues for divorce or separation. In this case the legal evidence raises a presumption of law; in the former there is no presumption, there is nothing but a mere allegationa fact in issue and a simple fact in issue must not be confounded with an established right recognized by a final judgment or based upon a legal presumption. The civil status of marriage being denied, and this civil status, from which the right to support is derived, being in issue, it is difficult to see how any effect can be given to such a claim until an authoritative declaration has been made as to the existence of the cause. It is evident that there is of necessity a substantial difference between the capacity of a person after the rendition of a final judgment in which that person is decHred to be in possession of the status of marriage and his capacity prior to such time when nothing exists other than his suit or claim to be declared in possession of such status of marriage. Any other view would render useless all the legal effects which flow from the authority of res ndjudicata . Nor can such a theory be sustained under the Code of Civil Procedure now in force. It is true that an interlocutory order such as that rendered by the respondent judge in the present case is not appealable during the course of the trial, but only after a final judgment ha been rendered therein; but it is none the less true that it can not be the intention of the law, when prohibiting an appeal against interlocutory orders, to give executory force to all kinds of interlocutory orders which the judge may see fit to make in the course of a trial, and still less when the effect would be to cause irreparable damage, such as that alleged by the petitioner in the present case, by reason of the insolvency of the person in whose favor the granting of alimony has been ordered, and which allegation has not been objected to or denied by the respondent. It is indeed a wise rule of procedure which refuses to perjnit the interruption of a trial by means of incidental appeals, but, if the judge incidentally in the course of a trial proceeds without or in excess of his jurisdiction, this rule which prohibits an appeal does not leave the party aggrieved without remedy. The same Code of Civil Procedure establishes several means by which such excess may be prevented. In this case the remedy of prohibition is invoked. (Art. 516 in relation with 226.) This remedy must be based upon a lack of jurisdiction or an excess in the exercise of jurisdiction in order that the judge may be prohibited from continuing the proceedings. This remedy having been established by the Code of Civil Procedure now in force, it is not allowable to apply the theories and principles concerning the lack of jurisdiction or an excess in its exercise wThich prevailed in the law of these Islands prior to the promulgation of that Code. We must of necessity apply the theories and principles which prevail in the law which has established the remedy, or the authorities which, in the American law, establish the doctrine upon the subject, and more especially the views prevailing in the State of California, whose Code of Procedure is strictly in accord with the Code in these Islands as to the remedy in question, with respect to which it may be said that the California Code is its true legal precedent.

To this end and as an illustration of the case as to the propriety of the remedy by prohibition, we may cite a decision of the supreme court of California of July 9, 1890. (Havemeyer & Co., petitioners, vs. the Superior Court, Judge Wallace, respondent.) This was a case of quo warranto brought by the attorney-general of the State against a California corporation, the American Sugar Refinery Company, for the cancellation of its charter, and in which case judgment was rendered on the 8th of January, 1890; an incident having arisen as to the appointment of a receiver to take charge of the property of the company pending the taking of an appeal or to proceed to distribute the same according to law in case an appeal should not be taken, inasmuch as the corporation had been dissolved and its corporate rights forfeited, the judge made an order appointing a receiver. The receiver attempted to take possession of the sugar refinery, which he found in the possession of Messrs. Havemeyer & Co., who claimed to have purchased it in the month of March, 1889, and asserted that since that time they had been in full and complete possession as absolute owners in their own exclusive right. After several other incidental proceedings the judge made an order directing the sheriff to put the receiver in possession of the locus in quo . Havemeyer & Co. then applied to the supreme court for a writ of prohibition, which was issued. "The question now remains, says the court in its decision, "whether the superior court had jurisdiction to make an order appointing the receiver and ordering him to take from the possession of the petitioners certain property, the petitioners not having been a party to the quo warranto proceedings and alleging a right of their own to the said property." In disposing of this question the court holds that the judge was without jurisdiction to make this order, and continues: "We now come to the question as to the remedy. Prohibition arrests the proceedings of an inferior judicial tribunal or officer when such proceedings are without or in excess of the jurisdiction of such tribunal or officer, and the writ issues in all cases where there is not a plain, speedy, and adequate remedy in the ordinary course of the law. We have shown that the superior court in appointing a receiver exceeded its jurisdiction, and there is no question that the petitioners are seriously injured by the enforcement of the order. If then they have no plain, speedy, and adequate remedy in the ordinary course of law, they are clearly entitled to the benefit of the writ of prohibition to arrest the proceedings under the void order." The court, to fortify its decision, takes up and discusses various objections, such as the following: (1) That the petitioners might have bowed to the authority of the receiver, giving him possession, and then obtained leave from the court to sue him in ejectment; (2) that the order appointing the receiver was appealable, and that, therefore, the remedy for prohibition would not lie; (3) that before availing themselves of this remedy petitioners should show that an objection to the order in question had been overruled. With respect to the first point the court says: "It is true petitioners might have done this, but the remedy would have been neither speedy nor adequate. They had the right not merely to get their property back after a long and expensive litigationthey had a right to keep it. The wrong with which they were threatened when they applied for the writ and when the writ issued was the deprivation of the possession and the use of their property. To give the property up in the hope of being allowed by the superior court to sue for it and to recover it after years of litigation was neither an adequate nor speedy remedy. It would be as reasonable to say that an injunction should never issue to restrain a threatened injury because the injured party may always have his action for damages." As to the second point the court states: "There must not only be a right of appeal but the appeal must furnish an adequate remedy in order to prevent the issuance of the writ. A number of cases have been decided in this court in which writs of prohibition have been refused because there was a right of appeal, but in all of those cases the appeal alforded a complete

and adequate remedy for the threatened excess of jurisdiction." With respect to the third point the court says that "the following propositions applicable to the case are fully supported by the decision in the case of the Mayor of London vs. Cox, L. R., H. L., 278-280: (1) If a want of jurisdiction is apparent on the face of the proceedings in the lower court, no plea or preliminary objection is necessary before suing out the writ of prohibition. (2) If the proceeding in the lower court is not on its face without the jurisdiction of such court, but is so in fact by reason of the existence of some matter not disclosed, such matter ought to be averred in some proper form in order to make the want of jurisdiction appear. (3) But this is not essential to the jurisdiction of the superior court to grant prohibition. It is only laches which may or may not be excused, according to circumstances. "Accordingly, we find that frequently a failure to plead in the lower court was excused for the reason that it appeared that the plea would have been rejected if made." By judgment of the 12th of December, 1891, the same supreme court in a similar proceeding against the superior court of San Francisco, Judge Wallace used the following language: "Prohibition lies in all cases where there have been proceedings 'without or in excess' of jurisdiction, and there 'is not a plain, speedy, and adequate remedy in the ordinary course of law.' Jurisdiction is usually defined as 'the power to hear and determine;' but, of course, it is difficult to express in abstract terms a statement of the distinction between error in exercising jurisdiction and jurisdiction itself that can be readily applied to all cases as they may arise. The law endeavors to fix definitely everything that can in its nature be so fixed, so as to leave as little as possible to the judgment or caprice of those who administer it. But as many future events can not, in the nature of things, be foreseen and provided for, it follows necessarily that much must be left to the discretion of courts and other tribunals." This doctrine was applied to the procedure of the judge who had taken action upon a void information presented by a grand jury which by reason of its defective organization was not regarded as a legally existing body, and the court decided "that the jury not being a legal body and the so-called indictment being void, the court below was without jurisdiction to try the accused upon such an indictment, hence the attempted action of the court was without and in excess of its jurisdiction." As to whether the petitioner had any other prompt, speedy, and adequate remedy in the ordinary course of law, the court said: "If there be such remedy, it must be by appeal. But it would be a difficult proposition to maintain that a defendant in a criminal case, forced through all the stages of a trial for felony without any indictment against him, or, which is the same thing in effect, upon a void indictment, would have a plain, speedy, and adequate remedy, because, after conviction and judgment, and perhaps after suffering the ignominy of imprisonment in the state prison, he could have the illegal proceeding reversed on appeal. * * * We are of opinion, therefore, that there is no jurisdiction in the respondent to proceed with the trial of petitioner; that the latter has no 'plain, speedy, and adequate remedy in the ordinary course of law, and that prohibition is the proper remedy." Mr. Justice Garmette added: "The case of Quimbo Appo vs. People, 20 N. Y., 542, received an exhaustive

consideration from the court of that State, and, after referring to many authorities upon the question as to when the writ of prohibition should issue, it said: 'These cases prove that the writ lies to prevent the exercise of any unauthorized power in a cause or proceeding of which the subordinate tribunal has jurisdiction, no less than when the entire cause is without the jurisdiction.' And again : 'This shows that the writ was never governed by any narrow, technical rules, but was resorted to as a convenient mode of exercising a wholesome control over inferior tribunals. The scope of this remedy ought not, I think, to be abridged, as it is far better to prevent the exercise of unauthorized power than to be driven to the necessity of correcting the error after it is committed.' " In its decision of December 8, 1890, the same supreme court in a proceeding similar to that now before us, instituted, by J. M. McDowell against Aaron Bell, judge of the superior court of Shasta County, upon the ground that this judge in an incidental proceeding similar to that which now occupies our attention directed that certain property claimed by a third person be subjected to the satisfaction of a judgment rendered against the grantee, held as follows: "In this the respondent exceeded his jurisdiction and the jurisdiction of his court. His only power in the premises was to make an order authorizing the judgment creditor to institute an action in the proper court against the parties claiming the property for the recovery of the property and the subjection of the same to the satisfaction of the debt, and forbidding a transfer of the property until such action could be commenced and prosecuted to judgment." This indicates what is meant by an act without or in excess of jurisdiction in accordance with the .principles upon which article 226 of the present Code of Civil Procedure is based. The court below had jurisdiction to try the divorce suit, but he was without jurisdiction to grant alimony when the right to claim alimony had not accrued in accordance with the provisions of the Civil Code. This Code only grants the right to alimony to a wife . This status not appearing by a final judgment, the court is without jurisdiction to make any order in the matter. Therefore mandamus is the proper remedy upon the facts related. It is not necessary to decide at this time if an exception could be made with respect to a case in which the fact of the marriage is admitted of record by the defendant. In the case before us this fact was denied. The motion and demurrer are overruled and the defendant is authorized to answer the complaint within twenty days from this date. Torres, Willard, and Ladd, JJ., concur. Smith and Mapa, JJ., did not sit in this case.

DISSENTING COOPER, J.: The petition for the writ of prohibition presents a case in which the Court of First Instance of

Manila in an action for divorce has, by an interlocutory order upon application of the alleged wife after a hearing had thereon, granted the alleged wife, the plaintiff in the suit, alimony pendente lite. The defendant bases his application for a writ of prohibition, staying and annulling the order granting the alimony, on the grounds that the Court of First Instance in granting alimony pendente lite has acted in excess of its jurisdiction; that the alleged wife, the plaintiff in the divorce suit, has no resources whatever, and that the judge not having required of her security for the return of the money to be received as alimony, in the event of the rendition of judgment against her upon the final trial the money will be lost to him, and that the remedy by appeal is not a plain, speedy, and adequate remedy. A demurrer was presented to the application which has been overruled by this court. The reasons of the court for overruling are summarized as follows: (1) The Court of First Instance had jurisdiction in the matter of divorce; (2) in this suit the power to grant alimony depends exclusively upon the provisions of the Civil Code, and that this does not permit the granting of such alimony except in favor of a wife ; and (3) that such status not having been established by a final judgment the court lacks jurisdiction to pass any judgment upon the matter of alimony. I regard this decision as establishing an inequitable rule in cases of alimony, and also a practice in the granting of writs of prohibition not authorized by law. The learned Chief Justice in his opinion seems to have in view the practice prevailing in the ecclesiastical tribunals formerly existing here, but'which have passed out with the Spanish domination. These courts having ceased to exist, the practice peculiar to them has been abolished. The jurisdiction of the ecclesiastical courts depended upon a canonical marriage, proof of which was jurisdictional and was the prerequisite to an action. Only one kind of proof was admissible this was the evidence contained in the registers of the church. If this character of proof was not forthcoming and the marriage was disputed the party was sent to the civil tribunal to establish the marriage; the action would not be admitted otherwise. Again, alimony could not be granted in the ecclesiastical court, the court which had cognizance of the main suit, because the ecclesiastical decree produced no civil effects whatever; therefore, in order that it might be granted, the matter was remitted to the civil tribunals which had power to deal with the property of the parties, and this was usually done under the provisions of articles 1591-1599 of the Code of Civil Procedure formerly in force in these Islands. These provisions are for temporary maintenance and apply generally to all cases where the applicant is entitled to support under the law. Actions for divorce were invariably brought in the ecclesiastical courts, but this was on account of the universal custom of the celebration of canonical marriages. The ecclesiastical courts, as stated, exercise jurisdiction only in cases of a canonical marriage. They had no jurisdiction in cases of civil marriage or any other form of marriage such as marriages under foreign laws. The civil tribunals had jurisdiction of divorce suits and suits for nullity of marriage in these cases, and not only had jurisdiction of the main suit but they were also given jurisdiction of the proceedings for alimony pendente lite. Articles 103 and 107 of the Civil Code, which vest this jurisdiction, read as follows: "(103) The civil tribunal shall take cognizance of the suits for nullity of marriages celebrated in conformity with the provisions of this chapter (regulating civil marriages) and shall adopt the measures indicated in article 68 (the article providing for alimony pendente lite), and shall give sentence definitely."

Article 107 is as follows: "The provisions of article 103 shall be applicable to suits for divorce and their incidents." From this it will be seen that the ecclesiastical courts and the civil tribunals admitted suits in their respective jurisdictions on different principlesthe former only where the marriage was not contested or where the status of marriage had been established in a civil tribunal. The latter did not require proof of marriage as a prerequisite to the exercise of its jurisdiction; marriage was only one of the issues involved in the suit. The decrees of the ecclesiastical courts produced no civil effects whatever, and it was necessary to call to their aid the civil tribunals in order to deal with the property of a party. On the other hand, the civil tribunal might settle the whole dispute in one proceeding, they having the power both to adjudge and to enforce their decrees upon the property of the parties. A party in this tribunal would never have been remitted to any other proceeding to establish the civil status of the wife, nor to any other proceeding to enforce its decrees against the property. Consequently the civil tribunals having the full power to adjudge every matter in dispute between the parties after taking cognizance of the cause would retain it until its final termination and the fruits of the judgment had been secured. In the clear language of the statute, it has jurisdiction of divorce suits and its incidents and the granting of the alimony; the law in express terms gives it this jurisdiction. While section 68 of the Civil Code gives alimony to the wife,the jurisdiction of the court can not be made to depend upon this article, nor can the word "wife" in any manner be regarded as a word of limitation on the power to adjudicate alimony. Nor do we apprehend that the Court of First Instance as now organized, with general jurisdiction and with its admitted power to hear divorce suits, can be circumscribed in its power by any such reasons as that the civil status of the wife is a prerequisite to its power to adjudicate the case. If it is intended to be asserted in the decision that in order to obtain alimony it is necessary that the parties should resort to the special proceedings as provided in article 1591, a serious objection to such position is that it is probable these provisions of law are no longer in force. Our present Code of Civil Procedure contains a sweeping clause in the repeal of all other procedure. It reads as follows : "SEC. 795. All codes, statutes, acts, decrees, and orders or parts thereof heretofore promulgated, enacted, or in force in the Philippine Islands prescribed in the Procedure in Civil Actions or Special Proceedings in any court or tribunal are hereby repealed, and the procedure in all civil actions and special proceedings and all courts and tribunals shall hereafter be in accordance with the provisions of this Act." However this may be, the courts organized under our present laws of procedure pursue their course in the exercise of jurisdiction in accordance with American laws. The Spanish system of procedure is scarcely recognized among its enactments. In divorce suits, according to American practice, alimony is regarded as an incident to the suit and the granting of alimony as an auxiliary proceeding. (Encl. PI. and Prac, 408, alimony; 2 Am. and Eng. Encl. Law, 93.) Such a practice as dividing up the suit and trying the issues in the divorce suit in a separate and distinct action from the proceedings for alimony would not be tolerated in an American court. (Bennett vs. Southard, 35 Cal., 691.) Nor would it be

practicable to separate the two proceedings. Alimony being a provision for the wife pendente lite , if the granting of it was separated from the main suit its adjudication might not reach a final conclusion until long after the principal suit, in aid of which it is supposed to be granted, has been disposed of; besides, it would require a multiplicity of suits without any compensating benefit whatever. The proper parties being duly before the court and the court having the power to hear and determine the matter at issue between them constitutes its jurisdiction. The Court of First Instance in this case clearly had the power to hear and determine all the issues involved in the main suit and in the application for alimony, and having the power to hear and determine these questions, in both of which marriage is an issue, it did not exceed its jurisdiction, and prohibition will not lie to correct any errors that may have been committed in the hearing. If it be admitted that the court was not acting without or in excess of its jurisdiction the language of our statute authorizing prohibition seems too plain for controversy. Section 226 reads as follows: "When the complainant in an action pending in any Court of First Instance alleges that the proceedings of any inferior tribunal, corporation, board, or person where exercising functions judicial or ministerial were without or in excess of the jurisdiction of such tribunal, corporation, board, or person, and the court on trial shall find that the allegations of the complainant are true and that the plaintiff has no other plain, speedy, and adequate remedy in the ordinary course of law, it shall render a judgment in favor of the complainant including an order commanding the defendant absolutely to desist or refrain from further proceeding in the action or matter specified therein." In order for a party to avail himself of this remedy the inferior tribunal must be acting without or in excess of its jurisdiction, and in addition to this there must be no other plain, speedy, and adequate remedy in the ordinary course of law. As we have attempted to show, the Court of First Instance had the jurisdiction to hear and determine the issues upon which the right to alimony depended, and whether the remedy by an appeal from an erroneous exercise of this jurisdiction is a plain, speedy, and adequate remedy it is unnecessary to determine. It is the only remedy that has been provided, and if cases occur in which it does not afford adequate relief it is the fault of the legislative power and it rests with it to provide additional remedies. The case of Havemeyer vs. Superior Court, 84 Cal., 327, is in no way in conflict with these views, but rather supports them. The same may be said of the other cases cited. Let us now examine the nature of alimony pendente lite and the principles upon which it is granted. Article 68 of the Civil Code provides that after a petition for a nullity of marriage or for a divorce has been interposed and admitted certain provisions shall be adopted during the pendency of the suit, among which is a provision for the support of the wife and such children as do not remain under the power of the husband. This provision of law contemplates a separation of the consorts in every case. This character of suit is generally marked by obstinacy and bitterness. For here is found property and the offspring as the stake at issue. Passions engendered by resentment, pride, cupidity, and affection find scope in the action. The husband and wife thus involved in litigation and their position as to the right and wrong of the matter being as yet unascertained, we find with reference to their resources the law has placed them in the following condition: The wife's estate consists of her dowry, paraphernalia,

and one-half of the conjugal community property. Her dowry is composed of the property and rights brought as such by her to the marriage at the time of contracting it and those which she acquires during the marriage by donation, inheritance, or legacy as dotal property. The dowry may have been obligatory, i. e., such as the law has required the parents to give to their legitimate daughter on marriage. Now, dowry, if it be an estimated dowrythat is, if the property of which it consists was appraised at the time of its constitutionis transferred in ownership to the husband, who only upon the dissolution of the marriage is pledged to return its value. Of this he has absolute control and power of disposition. The ownership of the dowry not estimated is retained by the wife, but she can alienate, encumber, or mortgage it only with the license of the husband, who, in case of such litigation, is not likely to consent Of this part of the dowry the husband is the administrator and usufructuary. The paraphernalia is the property which the wife brings to the marriage, not included in the dowry and what she acquires after the constitution of the same, and which is not added to the dowry; of this the wife still retains the dominion as well as its management, unless she has delivered the same to the husband with the intent that he may administer it. This property she can not alienate, encumber, or mortgage without the like permission of her husband, and when it consists of available property, such as money or public stocks, or valuable personal property, the husband has the right to require that it be deposited or invested in such a way that the alienation of the same should be impossible without his consent. With reference to the conjugal community property, which is the earnings or profits indiscriminately obtained by either of the consorts during the marriage and which belongs to the husband and wife share and share alike, when the marriage is dissolved she finds herself in no better position, for the husband is the administrator of his property and has the exclusive disposition of it. So we find that the husband at the beginning of this litigation, in which a separation is contemplated, has all of his individual separate property brought to the marriage or acquired during the marriage by him with the absolute power of control and disposition; he is the administrator of the conjugal community property and has the power of its control and disposition; he is the owner, and has the control and disposition over the wife's estimated dowry, and is administrator and usufructuary of the dowry not estimated; he has a veto power upon the right of the wife to alienate, encumber, or mortgage the dowry not estimated and the paraphernalia. The wife has been shorn of power over all of that which she possesses in her separate right as well as that held in her conjugal community right. In this situation she turns in despair to the law and finds that it has done her scant justice by making provisions for her alimony. But this court so construes the law as to substantially deprive her of this benefit. She asks for support while she carries on the litigation; she is told that she must institute an independent action to establish her status as a wife, and that this action must be prosecuted to final judgment. Upon her is thus imposed the additional burden of another suit, in which no provision has been made for alimony; and further, this second suit being commenced subsequent to the divorce suit and: the judgment being alike appealable, according to the natural course of events, will probably not reach a final determination until the main suit has been settled; as a result alimony pendente lite is made impossible.

She is also met by another objection, which is that she is totally without resources and will be unable to return the amount of the alimony received from the husband in the event that she fails in the litigation unless she gives security for it. We have seen that the law absolutely prohibits her from encumbering, without the license of her husband, that part of her separate property which it has not taken from her and given to the husband. The law thus mocks her in the helplessness in which it has placed her. She asks for bread, a stone is given her. Conclusions leading to such inequitable results ought not to be readily adopted by a court of justice. For the reasons stated I dissent from the opinion of the court.

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G.R. No. 1003, December 23, 1902

PIO LABAYEN, PLAINTIFF AND APPELLANT, VS. ROSENDO HERNAEZ, DEFENDANT AND APPELLEE. D ECIS ION
ARELLANO, C.J.: From the record of this case it appears: (1) That the complaint was filed in accordance with the former law of Civil Procedure, and that by it a declarative action of greater import was brought, and that the answer setting up a counterclaim was also filed in accordance with the said law. (2) Prom this stage on the trial was conducted in accordance with the provisions of the new Code of Civil Procedure, and was set for hearing on the 16th of April, 1902. (3) On the same date, the parties having suggested the appointment of experts for the examination of the accounts, the judge made an order for their appointment. The parties, however, subsequently agreed to substitute one of the experts by another, who was accepted by the court by an order of the 7th of June following. (4) On the 14th of the same month the parties presented a petition in which they proposed another person in substitution of the expert last named, who had resigned, and in this petition they expressed the duties of these two persons in the following terms: "The said referees should report solely upon the facts appearing from the record, in accordance with the provisions of article 134 of the Code Civil Procedure, and the documents presented to the court." The court immediately thereafter entered the following order: "Upon the filing of the preceding stipulation of the parties, and in accordance therewith, the court will issue a commission in favor of the gentlemen selected as referees in this case." (5) The clerk entered the following note: "On this date, and in compliance with the preceding order, I have issued, under the seal of this court, the proper commission to the referees in favor of Messrs. William F. Nicholls and Felix Atienza, in accordance with the provisions of article 136 of the Code of Civil Procedure." (6) On the same date, the 14th of June, the record shows that the papers were delivered to the referees appointed, and on the 30th of June the papers were returned by the latter, together with a document called an account-current, prepared by the referees, and based, according to their statement, solely upon the documents and accounts-current, appearing in the record. With this they presented their report. (7) The recoFd discloses that the next step taken was to inform the judge of the filing of this statement and report, and that the judge took time to examine the account and report of the referees. Without further proceedings than those above related the court below ordered judgment against the plaintiff and in favor of the defendant in the sum of 13,498 pesos and 80 cents, concurring entirely in the report of the referees. The termination of this trial has been in a high degree irregular. The judge had no authority, either by the consent of the parties or the provisions of the law, to enter judgment as he did. The will of the parties was that the experts called referees were to report solely upon the facts appearing from the record and papers presented to the judge, and in accordance with the provisions of article 134 of the Code of Civil Procedure. Nevertheless, in their report they passed upon three questions of law, upon which they expressed their opinion, the fact being that the parties, in accordance with the provisions of article 134 of the Code, sought nothing more than an agreement as to the facts, and if these referees understood that they were to act as such in accordance with the indication of the acting clerk in his note with respect to article 136 of the Code of Civil Procedure, in this case they should have complied with the provisions

of the said article and those of the following articles, Nos. 138, 139, and 140. None of this, with the exception of the issuance of the commissions and the collections of fees, has been done. The result was a trial by referees, in violation of the provisions of law, this being a substantial defect which vitiates the judgment itself. We therefore declare the judgment entered below to be null and void, without special condemnation as to costs. It is directed that the record be returned to the court below. So ordered. Torres, Cooper, Smith, Willard, Ladd, and Mapa, JJ., concur.

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G.R. No. 1005, December 03, 1902

JOSE V. L. GONZAGA, PETITIONER, VS. W. F. NORRIS, JUDGE OF THE COURT OF FIRST INSTANCE OF NEGROS, RESPONDENT. D ECIS ION
WILLARD, J.: This case is before us on a return made by the judge below to a writ of mandamus issued under the provisions of article 499 of the Code of Civil Procedure, Gonzaga vs . Norris, August 26, 1902. No motion for a new trial having been made this court can not weigh the evidence nor retry the questions of fact. Consequently the testimony of the witnesses has no place in this bill of exceptions except so far as it is necessary to explain the exceptions that were taken and their relevancy. So far as we can ascertain, no exception was taken which requires for its elucidation any one of the fifteen documents presented by the plaintiff, except document fourteen. They were all received in evidence and there is no exception relating to any of them. The first bill of exceptions proposed by the appellant contains in detail the evidence of many witnesses who testified without objection or exception on the part of the plaintiff. This evidence was properly excluded from the bill of exceptions. The proposed bill contains also the plaintiff's opening statement as to what the facts of the case were. This was properly excluded. Eight pages are also devoted to a legal argument against the judgment. This has no place in any bill of exceptions. All of the exceptions contained in the plaintiff's proposed bill are in the bill signed by the judge. It is of no consequence who prepared the bill. If it is a correct and full statement of the exceptions, the fact that it was prepared by the adverse party or by the court is not important. It appears, however, that the bill prepared by the plaintiff and the amendments prepared by the defendant were discussed and considered by the court and both counsel at a session held for the purpose of settling the bill. There was no error committed by the judge as to the points mentioned. But in other respects the bill signed by him is incomplete. Article 143 requires the bill of exceptions to state enough of the evidence to show the relevancy of the exceptions and the bearing which the answer excepted to has on the case. In most of the exceptions, from No. 3 to No. 18, inclusive, in the bill as allowed this is not done. The judge limited himself to stating the question and his reasons for overruling the objection. Supposing that those reasons were insufficient, there remains only the question with no answer and nothing to show the connection of the question with the other testimony in the case or the issues therein. Exception No. 14 is an example of how the exceptions are stated. It is as follows: "No. 14. The defendant on cross-examination asked a witness for the plaintiff the following question: 'Do you know if your brother sowed sugar cane in the Rosario estate the year nineteen hundred?' The plaintiff objected; the court overruled the objection on the ground that the question was pertinent; the plaintiff took exception."

The bill of exceptions signed by the judge should be amplified by addingto the several exceptions the evidence contained in the indicated pages of the first bill of exceptions presented by the plaintiff. If such evidence is not truly stated in said bill, the court will make the necessary corrections so as to make it conform to the truth. The additions are as follows: To exception No. 3, so much of the evidence of Feliciano Alintara as is contained on page 17 of the first bill of exceptions tendered by the plaintiff. To exception No. 14, all of the testimony of Pedro Saison on page 33 of said bill. To exceptions Nos. 15 and 18, all of the evidence of Inocente Idemne on pages 33 and 34 of said bill. To exception No. 16, all of the evidence of Flaviano Alintana on pages 34, 35, and 36 of said bill. To exception No. 17, all the testimony of Benedicto Tanigue on page 36 and on page 37 Of same bill to the answer to the question objected to. To exceptions Nos. 8, 9, and 10, all the testimony of Aquilino Saosas on pages 38 and 39 of said bill. To exceptions Nos. 12 and 13, document No. 14, and the testimony of Feliciano Alintara on pages 39, 40, and 41 of said bill. To exception No. 7, the testimony of Inocente Idemne on page 11 of the so-called extract of the said bill. The exceptions relating to the jurisdiction of the court and the challenge of the judge and those numbered 19, 20, and 21 are sufficiently stated. We do not find in the plaintiff's bill exceptions Nos. 4, 5, 6, and 11. The respondent in this proceeding is directed to correct the bill of exceptions as hereinbefore indicated and sign and certify the same. Arellano, C. J., Torres, Cooper, Smith, Mapa, and Ladd, JJ., concur.

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G.R. No. 1006, August 26, 1902

JOSE V. L. GONZAGA, PETITIONER, VS. W. F. NORRIS, JUDGE OF THE COURT OF FIRST INSTANCE OF NEGROS, RESPONDENT. D ECIS ION
LADD, J.: The petition sets forth, in substance, that at the trial of the main action in the court below certain material evidence offered by the petitioner was excluded; that he excepted to the exclusion thereof and duly tendered a bill of exceptions to the judge; that the judge refused to sign such bill of exceptions or to restate the facts and exceptions embraced therein, but directed the opposing counsel to prepare a bill; and that without notice to the petitioner the judge signed and certified the bill so prepared, which was thereupon transmitted to this court as the bill of exceptions of the petitioner. The prayer of the petition is that the printing of this bill of exceptions be suspended and that a mandamus issue to the judge directing him to transmit to this court the entire record, together with the bill tendered by the petitioner, and for such relief as may be deemed equitable. Construing the petition liberally, as we are bound to do (Code of Civil Procedure, sec. 2), we think it is evident that the object is to obtain relief against the action of the judge in refusing to sign the petitioner's bill of exceptions, under the provisions of section 499 of the Code of Civil Procedure. This section provides that where "from any cause the bill of exceptions is not certified by the judge of the court below, without fault of the party tendering the bill of exceptions," a mandamus may issue from this court upon petition "requiring him forthwith to make return of his reasons for not certifying the bill of exceptions" and for a hearing upon the judge's return, at which other testimony than the return may, in the discretion of the court, be received "in determining the validity of the reasons given by the judge for his failure or refusal to sign the bill of exceptions." If the reasons given in the return are insufficient or no return is made, an absolute mandamus is to issue commanding the judge to sign and certify "the bill of exceptions as set forth in the petition or as modified by the Supreme Court" We think the remedy provided in this section applies not only to cases where the judge has declined to take action on the bill of exceptions tendered by the party or has refused to certify,such bill without substituting another in its place, but also to cases where he has certified a bill of exceptions but has refused to embody therein some or all of the exceptions embraced in the bill tendered him, and which the party claims to have been properly taken. The language of the Code does not expressly limit the remedy to cases where no bill of exceptions has been signed, but on the contrary it is to be available whenever "from any cause the bill of exceptions is not certified * * * without fault of the party tendering the bill of exceptions," the implication clearly being that it may be invoked whenever the specific bill of exceptions tendered by the party is improperly disallowed, either as a whole or in any material part. Some inconvenience may result .from permitting parties to establish the truth of exceptions in this court, but a like procedure prevails under statutes more or less similar to the provisions in question in several of the United States (3 Enc. of PI. and Pr.j 493), and the framers of the Code may well have considered that it was necessary or expedient to grant such relief to parties who should claim that they had been deprived of their right to bring their cases to this

court for decision by erroneous or arbitrary and unauthorized action on the part of the trial judge. It is difficult to see why any distinction should be made between a case in which no bill of exceptions whatever has been certified and one in which the bill of exceptions certified does not conform to the truth of the facts. A trial judge may as effectually destroy a party's right to have an adverse judgment reviewed in the appellate court by refusing to embody in the bill of exceptions as signed a single exception of vital importance to the party's case, as by refusing to sign any bill of exceptions whatever. The petition is denied as respects the suspension of the printing of the bill of exceptions transmitted to this court, the printing being already so nearly completed as to render such suspension impracticable. Upon the filing by the petitioner of a copy of the bill of exceptions presented to the judge a mandamus will issue to the latter directing him forthwith to make return of his reasons for not certifying the same. So ordered. Arellano, C. J., Torres, and Willard, JJ., concur. Mapa, J., did not sit in this case.

DISSENTING COOPER, J.: This is an application to this court for a writ of mandamus against W. F. Norris, judge of the Court of First Instance of Negros, to compel him to certify a bill of exceptions prepared by petitioner and presented to the said judge for approval in the case of D. Jose V. L. Gonzaga vs. Dona Carmen F. de Canete. It is alleged in the petition that on the 15th day of May, 1902, a judgment was rendered by the Court of First Instance against the petitioner in said suit; that petitioner, through his attorney, within the time prescribed by law, prepared and presented a bill of exceptions for appeal which the judge of the Court of First Instance refused to approve and sign, and required him to amend the same; that another bill of exceptions was presented which was examined by the judge and also disapproved; that the judge thereupon directed the opposite party to prepare and present a bill of exceptions in case; that this bill of exceptions was approved, signed, and ordered filed in the case without notice to petitioner, and that the case has been appealed to this court on this bill of exceptions, the contents of which are to him unknown. He attaches a copy of the bill of exceptions prepared by him to his petition and asks that the judge below be compelled by writ of mandamus to send up the judgment of the court below with his bill of exceptions; that the printing of the bill of exceptions signed and approved by the judge of the Court of First Instance, and certified to this court, be suspended, and that a mandamus issue to the judge directing him to transmit to this court the entire record together with the bill tendered by the petitioner. Our statute regulating the perfecting of bills of exceptions provides that "the excepting party shall cause to be presented to the judge a brief statement of the facts of the case sufficient to show the bearing of the rulings, orders, or judgments excepted to, and a specific statement of

each ruling, order, or judgment that has been excepted to, for allowance by the judge. The judge shall thereupon, after reasonable notice to both parties and within five days from the presentation of the bill of exceptions to him, restate the facts if need be, and the exceptions, so that the questions of law therein involved, and their relevancy shall all be made clear, and when the bill of exceptions has been perfected and allowed by the judge, he shall certify that it has been so allowed, and the same shall be filed and thereupon be transferred to the Supreme Court for determination of the questions of law involved." (Sec. 143, Code of Civil Procedure, 1901.) While by statute a bill of exceptions drafted and tendered on behalf of the party appealing should be taken by the trial judge as a basis of the authenticated bill, still, where the bill is found by the judge in his opinion not correct, the trial judge must decide as to the proper contents of the bill, and state the facts, if need be, and proceed to settle and sign it accordingly. (Sec. 143, Code of Civil Procedure, 1901.) Where the statements of the bill as settled are deficient or false, a restatement should be asked before the transcript has been transferred to the appellate court; because the record of the trial court remains within the power of the trial court, while the record on appeal lies within the power ot the appellate tribunal. (Elliott, Appellate Procedure, 205.) It is admitted by the petitioner that a bill of exceptions was prepared in the case and has been filed in the court below and certified to this court on the appeal. An examination of the bill of exceptions shows a strict compliance with the provision of this section. A bill of exceptions signed, filed, and made part of the record as the law requires, imports absolute verity. (Elliott on Appellate Procedure, sec. 811.) The bill of exceptions filed in the case and certified to this court being in strict compliance with the law must, under this principle, import absolute verity, unless the provisions of section No. 499 of the Code of Civil Procedure (1901) are applicable to the case. In the opinion of the majority of the court the petition is construed to have for its object relief against the action of the judge in declining to sign the petitioner's bill of exceptions. Regarding it as such, does the petitioner bring himself within the provisions of section 499? The section in question reads as follows: "SEC. 499. Judge failing to sign, exceptions, how compelled. If from any cause a bill of exceptions is not certified by the judge of the court below, without fault of the party tendering the bill of exceptions such party, or his attorney, may apply at the next term of the Supreme Court, and on petition obtain from said court a mandamus directed to such judge. (1) Such petition must set out substantially the bill of exceptions tendered, and shall be verified by oath by the lawyer as to the truth of the bill of exceptions as tendered by the party or his lawyer and as to the other facts stated therein. (2) Upon the filing of such petition, the Supreme Court shall issue a mandamus directed to the judge of the Court of First Instance, requiring him forthwith to make return of his reasons for not certifying the bill of exceptions, and the judge shall forthwith make such return, and the Supreme Court shall hear the original parties and determine the validity of the reasons given by the judge for his failure or refusal. (3) If the reasons be insufficient, or the judge fails or refuses to make any return to the mandamus, the Supreme Court shall issue a mandamus absolute, commanding the judge to sign and certify the bill of exceptions, as set forth in the petition, or as modified by the Supreme Court. (4) If

he still refuses to do so, the cause shall be heard by the Supreme Court on the exceptions as verified in the petition for mandamus. (5) In the hearing upon the judge's return, as provided in subdivision 2 of this section, the Supreme Court may, in its discretion, receive other testimony than the judge's return, in determining the validity of the reasons given by the judge for his failure or refusal to sign the bill of exceptions." The duty of settling a bill of exceptions is judicial. Mandamus will lie to compel the trial judge to settle and sign a bill of exceptions, but it would be a violation of principle to specially direct him what to put in the bill in a case where there is a controversy as to what the bill should contain. (Elliott on Appellate Proceedings, sees. 516, 798, 810.) A bill of exceptions must be settled by the trial judge, and by him only. The appellate court is not authorized to act except by statute. (Enc. P1. and Pr., vol. 3, p. 442.) In the State of California, one of the States referred to in the decision of the court as having a statute resembling our statute, and in which a similar practice is supposed to prevail, it has been held that the statute of that State applies only in cases where upon the settlement of a bill of exceptions or statement of facts, the judge refuses to allow an exception, but where the judge merely refuses to settle a bill as presented, a mandamus is the proper remedy. (Tibbets vs. Eiverside Banking Co., 97 Cal, 258; Landers vs. Landers, 82 Cal., 480; Saig vs. Saig, 49 Cal., 263.) The proceedings under these statutes is not against the judge to compel him to sign a bill of exceptions, where from any cause a bill of exceptions has not been certified to, but is a proceeding before the appellate court to establish by proof some exception which has been disallowed by the trial judge. Qn the contrary, the proceeding under our statute is where from any cause the bill of exceptions is not certified by the judge of the court below to compel him by mandamus to make return of his reasons for not certifying the bill of exceptions. It is said in the decision that the remedy provided by this section of the statute applies not only to cases where the judge has omitted to take any action upon the bill of exceptions tendered by the party, or has declined to certify such bill without substituting another in its place, but also to those where he has certified the bill of exceptions, but has refused to embody therein some or all of the exceptions or facts contained in the bill tendered him, and which the party claims to have been properly taken. In other words, that it is within the scope of the remedy to disprove before this court a bill of exceptions duly authenticated and filed in the case by the judge below, and which has been certified to this court on appeal. The fact that a trial judge may as effectually destroy a litigant's right to have an adverse judgment reviewed in the appellate court by refusing to embody in the bill of exceptions as signed an exception vital to the party's cause, as by refusing to sign any bill of exceptions whatever, is a matter which addresses itself to the legislative discretion, and a statute or provision not intended for this purpose should not be used to effect such results. The law as expressed in this opinion is in accordance with the law upon the subject prevailing in a large number of the States of America. In fact it seems to be the established doctrine of all the American courts except those in which this practice has been changed by statute. For the reasons above stated I am unable to concur in the opinion of the majority of the court.

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G.R. No. 1026, December 15, 1902

THE UNITED STATES, COMPLAINANT AND APPELLEE, VS. VICTORINO CORREA ET AL., DEFENDANTS AND APPELLANTS. D ECIS ION
COOPER, J.: This is an application for amnesty on behalf of Victorino Correa, Alejo Correa, Martin Langursay, Leandro Monte, and Romualdo Monte. These men were tried before the Court of First Instance of Ilocos Norte charged with the murder of Pablo Yungat. The first four were found guilty as principals, and were sentenced to life imprisonment, and Romualdo Monte was found guilty as an accomplice and sentenced to twelve years and one day. The accused appealed to the Supreme Court, and counsel for defense has presented a motion for the application to them of the amnesty proclamation of July 4 last. The facts in the case as established by the evidence are as follows : Victorino Correa, who seems to have been the leader of the gang, sent word to the deceased that they were going to barbecue a pig, and invited him to be present at this fiesta . The deceased, accompanied by the person who had given him the message, arrived at the house of Correa, and upon his arrival there he was seized by Leandro Monte and Martin Langursay, and at the same time was struck on the head by a stick wielded by Alejo Correa. Yungat was then tied up elbow to elbow and ankle to ankle. After he was tied he implored Alejo Correa to pardon him, whereupon the latter asked the deceased where he had put the ring which he had taken, to which the deceased replied that he knew nothing' of it. Upon this Leandro Monte seized a piece of cane which he trust between the feet of Yungat, assisted by Martin Langursay, and then having fastened the body of Yungat to the same pole they carried him away and buried him. it appears that the deceased, who was in a dying condition while he was being tied, expired as he was being carried away by the accused. His body was buried in the woods some distance from the scene of the murder. The evidence for the prosecution rests upon the testimony of three witnesses, two of whom were present at the killing, and one of whom was an eyewitness to the burial. Their testimony is corroborated by that of the person who states that he conveyed the message from Victorino Correa to the deceased, but he did not personally see the killing, he having been hastened out of the way by one of the accused and kept out of sight until after the body of the deceased was disposed of. He testines to having seen blood around the place, and also testines to seeing the accused return from the woods alone. The defense rested entirely on an alibi. The accused all swore that they knew nothing of the killing until some time after the date specified as the time of its commission, and most of them testified that they did not know and had never heard of the deceased. Several witnesses were called in support of the defense and gave the usual alibi testimony. During the entire trial of the case nothing was brought out to indicate in the slightest degree

any motive for this offense other than that indicated by the demand made upon the deceased for the return of the ring above referred to. The motion for amnesty made on behalf of the defense rests upon the theory that these accused were revolutionary soldiers, and that the deceased was killed by reason of political differences existing between him and his slayers. The only thing tending in any way to show that the accused were in the revolutionary army is an anonymous letter which was picked up by the widow of the deceased some time after his death, in which she was told that it was useless for her to continue to look for her husband as he had been killed by "Victoriano Correa, Alejo Correa, Martin Langursay, Tilo Correa, Anastasio Munos, Alejandro Monte, and Apolinario Castro, who are insurgents engaged in recruiting companies, and any person who refuses to follow them is killed; therefore, as soon as you receive this letter denounce the killing to the authorities, so that their intention to kill people may be frustrated; if they are tortured they will tell the truth; I do not sign my name because my life will be in peril." Upon the receipt of this information complaint was filed by the widow and the accused arrested, but in the trial of the case this letter was not introduced, nor was any evidence whatsoever adduced tending to show that the killing was in any way connected with the revolution. The application for amnesty must be overruled, which is accordingly done. Arellano, C. J., Torres, Smith, Mapa, Willard, and Ladd, JJ., concur.

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G.R. No. 1035, December 04, 1902

MARIA DEL CARMEN VIUDA DE BUSTILLOS, PLAINTIFF AND APPELLEE, VS. ROQUE GARBANZOS, DEFENDANT AND APPELLANT. D ECIS ION
WILLARD, J.: This proceeding was commenced on February 12, 1900. It was carried on under the law then in force until June 15, 1900, on which date the defendant filed a formal objection to the complaint. After that date nothing was done until May 27, 1902, when the plaintiff filed a petition in which he alleged that the proceeding was being carried on under the Code of Civil Procedure, and in which he asked that a demand for payment be made upon the defendant and that if he did not pay in the act, his property be seized. The judge of the Special Court of Negros cited the parties to a trial and after receiving documentary and oral evidence, none of which appears in the record, he made a decision which recited the proceedings had in the case. States that the defendant has not proved the illegality of the claim of the plaintiff and orders judgment in favor of the latter. From this judgment said court allowed an appeal in both effects and directed the original records to be sent here. If this case was tried before the special court in accordance with the old procedure the evidence should have been returned to this court. If tried according to the new procedure the decision should have conformed to article 133, and the judge should have required the settlement of a bill of exceptions and should not have sent the original record here. Viewed as a decision under the present Code it is entirely insufficient to support the judgment, and if the new Code is to be applied it should be reversed for that reason. There are, however, more indications that the court was pursuing the old procedure than that he was pursuing the new. In accordance with that procedure the evidence should have been preserved and returned to this court. It is impossible for us to pass upon the merits of the case without it. The case of Gonzaga vs . Canete, April 1, 1902, appealed from the same court, came in here in the same condition as this case. It was only by virtue of an agreement between the parties in that case that we passed upon certain questions of law presented by the record. The judgment is reversed and the case remanded to the Court of First Instance for Occidental Negros for a new trial. In view of the fact that the defendant removed the case here knowing as he must have known how incomplete the record was, and of the further fact that this defect was not suggested by him until the argument of the case, the costs of the appeal are charged against him. Arellano, C. J., Torres, Cooper, Smith, Mapa, and Ladd, JJ., concur.

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G.R. No. 1061, October 10, 1902

JURADO & CO., PLAINTIFFS, VS. HONGKONG AND SHANGHAI BANKING CORPORATION, DEFENDANTS. D ECIS ION
WILLARD, J.: At the hearing on October 8, 1902, of the motion of Jurado & Co., dated September 11, 1902, the attorney for the Hongkong and Shanghai Banking Corporation challenged the competency of one of the judges of this court to sit in the case, for having acted as fiscal. The application of article 8 of the Code of Civil Procedure, now in force, to a challenge directed to the competency of a judge of the Court of First Instance is free from doubt. But when the challenge is to the competency of the judge of this court the article may admit of two constructions. Under one construction the magistrate decides for himself the question of his competency; his decision is conclusive, and the other members of the court have no voice in it. Under the other construction the magistrate challenged sits with the court and the question is decided by it as a body. We adopt this second construction as the proper one. We can not admit as possible a third construction under which the court would decide the question, excluding from the consideration of it the members challenged. This construction would, if adopted, put it in the power of a party to stop all proceedings in the cause by challenging three of the justices. The court has examined the original documents referred to at the argument, and we find nothing in them to support the challenge or which expresses an opinion on the merits of the casa Inasmuch as the complaint of the fiscal had for its purpose the compelling of the judge to comply with the law, and as this officer had failed to send up the report which he had been directed to make in accordance with the complaint of the fiscal, now a Justice of this court, the latter simply made a written request that the judge be directed to send in this reporta mere matter of procedure. In accordance with article 8 of the Code of Civil Procedure in force the challenge should have been made in writing, but it appears to the court more convenient to settle the question on the merits, and for the reasons stated the challenge is not allowed and the hearing of the motion will be continued on Monday next. Torres, Cooper, Mapa, and Ladd, JJ., concur. Arellano, C. J., withdrew from this case.

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G.R. No. 1064, November 13, 1902

A. S. WATSON & CO., LIMITED, PLAINTIFFS AND APPELLANTS, VS. RAFAEL ENRIQUEZ ET AL., DEFENDANTS AND APPELLEES. D ECIS ION
WILLARD, J.: The plaintiff, at the commencement of this action obtained a preliminary injunction as prayed for in its complaint. The case was afterwards tried, and in September, 1902, a final judgment therein was entered in favor of the defendants and the temporary injunction was dissolved. On the 20th of September a bill of exceptions was perfected and signed by the judge, and a certified copy thereof was then transmitted to this court. In this court the plaintiff has presented a motion asking that the preliminary injunction be continued. Before discussing the power of this court to grant a preliminary injunction, under these circumstances, it seems necessary to determine whether or not the preliminary injunction granted below was continued in force by the filing of the bill of exceptions. Article 144 of the Law of Civil Procedure, now in force, says: "But the filing of a bill of exceptions shall of itself stay execution until the final determination of the action, unless," etc. Article 1007 of the Revised Statutes of the United States states the manner of obtaining a supersedeas in cases pending in the Federal courts. The meaning of the word "supersedeas" as used in that section has been defined as follows: "A supersedeas, properly so called, is a suspension of the power of the court below to issue an execution on the judgment or decree appealed from; or, if a writ of execution has issued, it is a prohibition emanating from the court of appeals against the execution of the writ." (Hovey vs. McDonald, 109 U. S., 150.) As so construed, article 1007 of the Revised Statutes of the United States is substantially the equivalent of our article 144. This question as to whether a supersedeas has, in the Federal courts, the effect of continuing in force an injunction dissolved by the lower court has frequently been passed upon by the Supreme Court. That court has said: "The general ruling is well settled that an appeal from a decree granting, refusing, or dissolving an injunction does not disturb its operative effect. (Hovey vs. McDonald, 109 U. S., 150-161; Slaughterhouse Oases, 10 Wall., 273-297; Leonard vs. Ozark Land Company, 115 U. S., 465-468.) When an injunction has been dissolved it can not be revived except by a new exercise of judicial power, and no appeal by a dissatisfied party can of itself revive it" (Knox Co. vs. Harshman, 132 U. S., 14.) "The truth is that the case is not governed by the ordinary rules that relate to a supersedeas of execution, but by those principles and rules which relate to chancery proceedings exclusively. * * * In this country the matter is usually regulated by statutes or rules of court, and, generally speaking, an appeal, upon giving the security required by law, when security is required, suspends further proceedings and operates as a supersedeas of execution. * * * But the decree itself may have an intrinsic effect which can only be suspended by an affirmative order either of the court which makes the decree or of the appellate tribunal. This court, in the Slaughterhouse Cases, 10 Wall., 273, decided that an appeal from a decree granting, refusing, or dissolving an injunction does not disturb its operative effect.

Mr. Justice Clifford, delivering the opinion of the court, says: 'It is quite certain that neither an injunction nor a decree dissolving an injunction passed in circuit court is reversed or nullified by an appeal or writ of error before the cause is heard in this court.' It was decided that neither a decree for an injunction nor a decree dissolving an injunction was suspended in its effect by the writ of error, though all the requisites for supersedeas were complied with. It was not decided that the court below had no power, if the purpose of justice required it, to order a continuance of the status quo until a decision should be made by the appellate court, or until that court should order the contrary. This power undoubtedly exists, and should always be exercised when any irremediable injury may result from the decree as rendered." (Hovey vs' McDonald, 109, U. S., 159.) In Minnesota the supersedeas statute provided that the appeal from the order of judgment should "stay all proceedings thereon and save all rights affected thereby. " The court of this State, relying upon the last of the two clauses quoted, held that an appeal from an order dissolving an injunction continued the injunction in force. The evils which would result from such a holding are forcibly pointed out by Judge Mitchell in a dissenting opinion. He said: "Although a plaintiff's papers are so insufficient on their face or so false in their allegations that if he should apply oh notice for an injunction, any court would, on a hearing, promptly refuse to grant one, yet, if he can find anywhere in the State a judge or court commissioner who will improvidently grant one ex parte; which the court on the first and only hearing ever had dissolves, he can, by appealing and filing a bond, make the ex parte injunction impervious to all judicial interference until the appeal is determined in this court. * * * Such a result is so unjust and so utterly inconsistent with all known rules of equity practice that no court should adopt such a construction unless absolutely shut up to it by the clear and unequivocal language of the statute." (State vs. Duluth St. Ry. Co., 47 Minn., 309.) The supreme court of that State afterwards, although adhering to that decision on the ground of stare decisis, stated that in their opinion it was unsound. (State ex rel. Leary vs. District Court, 78 Minn., 464.) We have in these Islands no appeal from orders granting or dissolving preliminary injunctions, yet what was said by Justice Mitchell applies to a case where, upon a full trial in a court below, the judge has decided that neither upon the facts nor the law is the plaintiff entitled to any relief. To allow a plaintiff in such a case, by taking an appeal and giving a supersedeas bond, to continue an injunction in force would be manifestly unjust. We adopt the rule announced by the Supreme Court of the United States and hold that the filing of the bill of exceptions in the case at bar did not operate to revive the preliminary injunction which was dissolved in and by the final judgment. We also adopt the other conclusion of that court to the effect that the judge below has the power, if the purposes of justice require it, to order a continuance of the status quo until a decision should be made by the appellate court or until that court should order to the contrary. We have already in effect declared that principle in the case of Maximo Cortes vs. Palanca Yutivo, decided August 6, 1902. Article 163 of the Code of Civil Procedure provides that "a preliminary injunction may be granted by any judge of the Supreme Court in any action pending in the Supreme Court." This language is broad enough to include not only actions commenced here within the original

jurisdiction of this court, but also actions pending here on a bill of exceptions or appeal. We therefore have the power to grant a preliminary injunction in the present case. The motion is based upon the bill of exceptions and upon nothing else. If no error was committed by the court below, the plaintiff can not recover in the action, and of course would not be entitled to a preliminary injunction. We have looked into the record far enough to satisfy us that the probabilities of the plaintiff prevailing in this court are not strong enough to justify us in granting the temporary relief asked. The motion is denied. Arellano, C. J, Torres, Cooper, Smith, Mapa, and Ladd, JJ., concur.

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G.R. No. 1066, November 22, 1902

SITIA TECO, PLAINTIFF AND APPELLANT, VS. THE HEIRS OF BALBINO VENTURA HOCORMA, DEFENDANTS AND APPELLEES. D ECIS ION
COOPER, J.: The plaintiff, Sitia Teco, instituted an action in the Court of First Instance of Manila against the heirs of Don Balbino Ventura Hocorma, alleging in his complaint that the said Balbino Ventura Hocorma during his lifetime entered into a rental contract with the plaintiff by which a certain plot of land on Calle Santa Elena, District of Tondo, city of Manila, was let to him for the purpose of building upon it; that after the death of D. Balbino Ventura Hocorma his heirs collected the monthly rents which were due under the lease and thereby ratified the rental contract; that without just cause the defendants refused to receive the amount due for the month of February last, and are still refusing to receive the rents, and he seeks to establish against them the rental contract. The defendants deny in their answer that there was in the rental contract any provision with respect to the building by the plaintiff of a structure of any kind upon the leased premises, and deny any ratification of the rental contract from which it might be inferred that the plaintiff was to use the said premises for any particular purpose, and further state that the contract between D. Balbino Ventura y Hocorma, deceased, and the plaintiff was for no fixed term, and that in this respect the contract has not been changed by any supposed ratification; that the rent is monthly and under the provisions of article 1581 of the Civil Code the lease ceases, without the necessity of a special notice, at the expiration of the month; that under their right to terminate staid lease at the end of any month they elected to do so at the end of the month and gave the plaintiff notice of such intention, and thereupon the lease was terminated. The plaintiff contends that article 1581 of the Civil Code is not applicable to such renting; that, as the lot was leased for the purpose of placing a building thereon, this provision should not apply. During the pendency of the suit the plaintiff applied for a preliminary injunction on the ground, as stated in the oral argument of counsel, that the house placed by the plaintiff upon the lot having been destroyed by order of the municipality the defendants repossessed themselves of the premises and were preparing to build a house thereon. Upon a trial of the case judgment was rendered against the plaintiff on the merits of the suit, and the injunction was dissolved. The plaintiff has appealed the case by a bill of exceptions and has made application to this court to restore the injunction on the ground that the operative effect of the judgment by which the injunction was dissolved lias, by virtue of the appeal taken and the giving of a super sedeas bond, been lost, and that the judgment in the case should not have the effect of disturbing the interlocutory injunction. In the case of Watson & Co. vs. Enriquez, decided by this court October 26, 1902, it is held that an appeal from an order dissolving an injunction does not suspend the operation of the decision so as to revive the interlocutory injunction. The applicant has also asked a preliminary injunction under the provisions of section 164 of the Code of Civil Procedure, 1901. It does not appear, from the allegations in the complaint nor in the application for injunction, that the plaintiff had a claim to the property under the lease for

any particular time. There seems to be no reason why the provisions of article 1581 of the Civil Code should not be applicable to the case, and why the owners are* not at liberty, as they have done in the case, to terminate the lease at the end of the month, the rent having been fixed by the month. If any equities could exist on account of the erection of a building upon the land by the plaintiff, a question upon which we express no opinion, the building having been demolished would render them ineffectual. The case is stated vaguely, and the application upon which the interlocutory injunction was granted is entirely omitted from the bill of exceptions. What we understand of its contents has been gathered from the argument of counsel. It may be stated also that the bill of exceptions is defective in a material respect: It does not appear from it that any exception was taken to any order, ruling, or judgment of the court. Without entering into a discussion as to the circumstances under which a preliminary injunction under article 163 should be granted, after a preliminary injunction has been issued by the Court of First Instance, a full hearing had of the case on its merits, the case has been determined, the injunction dissolved, and an appeal taken to this court, it will be sufficient to say that in this case the application does not show that the plaintiff is entitled to the relief that he requests, in that his right to the possession of the property is not shown. The application will be denied and costs of the same adjudged against the plaintiff. Arellano, C. J., Torres, Smith, Willard, Mapa, and Ladd, JJ., concur.

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G.R. No. 1078, December 15, 1902

JOHN W. HOEY, PETITIONER, VS. R. S. BALDWIN, RESPONDENT. D ECIS ION

WILLARD, J.: The petition in this case alleges that the plaintiff is and has been since July 1, 1902, assistant chief of the Fire Department of Manila with a salary of $150 per month, United States currency; that the defendant during that time was and now is the disbursing officer of said city; that the Commission on July 14, 1902, appropriated a sufficient sum of money to pay the salary of the plaintiff during the year commencing with July 1, 1902; that such sum of money had been duly placed in the possession of the defendant as disbursing officer; that the plaintiff had duly performed his duties as such assistant chief during the months of July, August, and September, 1902, as appeared by certificates duly filed with the defendant; that he had tendered to the defendant proper receipts and that the defendant had refused to pay him any part of his salary for said three months. The prayer of the petition was that a writ of mandamus issue to compel the defendant to pay this salary. A summons was issued and served. The defendant appeared and demurred on the grounds that the court had no jurisdiction of the defendant, nor of the subject-matter of the action; that the petition did not state facts sufficient to constitute a cause of action, and that the plaintiff had another remedy, which was plain, speedy, and adequate. The case was heard upon this demurrer. 1. It is suggested by the plaintiff that a demurrer is not proper in a proceeding of this character. Original jurisdiction in mandamus proceedings is given to this court by article 515 of the Code of Civil Procedure. By that same article it is required to follow the procedure prescribed for Courts of First Instance in like cases. The only articles which declare what that procedure, prior to the judgment, shall be are articles 222, 229, and 230. Article 222 is as follows: " Mandate .When the complaint in an action in a Court of First Instance alleges that any inferior tribunal, corporation, board, or person unlawfully neglects the performance of an act which the law specially enjoins as a duty resulting from an office, trust, or station, or unlawfully excludes the plaintiff from the use and enjoyment of a right or office to which he is entitled and from which he is unlawfully precluded by such inferior tribunal, corporation, board, or person, and the court, on trial, finds the allegations of the complaint to be true, it may, if there isno other plain, speedy, and adequate remedy in the ordinary courts of law, render a judgment granting a peremptory order against the defendant, commanding him, immediately after the receipt of such order, or at some other specified time, to do the act required to be done to protect the rights of the plaintiff." The part of the article which relates to the procedure may be reduced to this: "When the complaint in an action in a Court of First Instance alleges * * * and the court on trial finds the

allegations of the complaint to be true, it may * * * render a judgment granting a peremptory order." From this language it must be inferred that proceedings in mandamus constitute a civil action in which there is a complaint. In view of the fact that this is a civil action; that article 222 says nothing more about the procedure than that there is to be a trial and a judgment and thus fails to point out any different procedure, it necessarily follows that the procedure leading up to such trial and judgment must be the procedure marked out by the Code for ordinary civil actions. We have accordingly adopted the practice of requiring a summons to be issued upon the filing of the complaint, in accordance with article 390 and the case to be proceeded with in the ordinary way like any other civil action. The fact that this practice is radically different from that known in the United States is of no importance. The statutes there speak of writs of mandamus, of alternative and peremptory writs, of petitions and affidavits, of orders to show cause. None of these words and phrases occur in our Code. The Commission had these statutes before them when the Code was written. If they had intended to adopt that practice it would have been very easy to have said so. The objections that our construction of this remedial process deprives it of its summary character is without weight in view of article 230, which authorizes the court to expedite the proceedings. Article 229 also secures the right to a preliminary injunction upon the filing of the complaint. The defendant had a right to demur. 2. In order to determine the sufficiency of the complaint it is necessary to examine the statutory provisions relating to the payment of Government employees. The money to pay this particular salary for this particular period was appropriated by Act No. 430. Articles 18 and 19 of Act 183, the Charter of the city of Manila, are as follows: "ART. 18. Insular Auditor to audit accounts of city. The Auditor for the Philippine Archipelago shall receive and audit all accounts of the city of Manila, in accordance with the provisions of Act No. 90. "ART. 19. Insular Treasurer to receive and keep moneys of city.The Treasurer of the Philippine Archipelago shall receive and safely keep all moneys arising from the revenues of the city of Manila, in accordance with the provisions of Act No. 90, and shall expend the same upon warrants drawn in accordance with the provisions of said act. Requisitions for such warrants, in favor of the disbursing officer of the Board, shall be made by the head of the department of the city government to which the business relates, subject to the approval of the Civil Governor." Article 25 of said charter provides as follows: " Powers and duties of heads of departments .Each head of department of the city government shall be in control of such department, under the direction and supervision of the Board, and shall possess such powers as may be prescribed

herein or by ordinance. He shall make requisition in duplicate for all funds required for the use of his department during the ensuing month. All warrants drawn in accordance with such requisitions shall be in favor of the disbursing officer of the Board, and shall be disbursed pursuant to appropriations. The correctness of all pay rolls and vouchers covering the payment of money shall be certified to by each head of department before payment, except as herein otherwise expressly provided." These provisions indicate that it was the duty of the Chief of the Department of Fires and Building Inspection to make requisition on the Treasurer of the Archipelago for the money appropriated to pay the salaries of his employees. Act No. 90, rule 5, as amended, provides: "No warrants shall be drawn for the advance of moneys except upon requisition therefor made by the proper officer approved by the Civil Governor and allowed by the Auditor in conformity to appropriations made." Rules 25 and 26 of said Act 90 are as follows : "RULE 25. Requisitions for advances from funds in the hands of the Treasurer for paying necessary and proper expenses chargeable to the revenues of the Islands shall be made monthly by the respective officers or agents authorized to disburse the same, in such form as may be prescribed, pursuant to appropriations made, and shall be accompanied by itemized estimates of the amounts required for disbursement during the month, and no accountable warrant shall be drawn for an amount exceeding the requirements for one month. "RULE 26. Each requisition shall particularly state the items of appropriation under which the money is to be disbursed, and shall be forwarded to the Auditor, who shall cause to be indorsed thereon the balance due to or from the officer or agent making the requisition, as shown by the books of the Auditor's office, and the amount of credits shown by any unsettled accounts of such officer or agent remaining in the Auditor's office. Thereupon such requisition shall be transmitted to the Military Governor for his approval, and when his approval shall be indorsed thereon the requisition shall be returned to the Auditor for allowance, and when allowed by him and so indorsed upon the requisition, over his official signature, the proper warrant shall be issued for the amount allowed, to which the requisition shall be attached." That the approval by the Governor and the allowance by the Auditor of a requisition are necessary before an accountable warrant can be paid is also stated in rules 55 and 68. It is claimed by the defendant that this approval of the Auditor should have been alleged in the complaint. It is alleged that the money to pay this salary "was as provided by law placed under the control of said defendant as such disbursing officer." It could not in conformity with the law have been placed under his control unless all the steps marked out by the statute had been taken including the approval of the Auditor. We do not think that it was necessary to allege in the complaint all these proceedings. It was sufficient to state the ultimate fact, namely, that the money was in the hands of the defendant as provided by law. (State vs. Ames, 31 Minn., 440, 444.) 3. It is also claimed by the defendant that rule 72 of said Act No. 90 debars the plaintiff from this relief. That rule provides that "any person aggrieved by the action or decision of

the Auditor in the settlement of his account or claim" may appeal. Under the statutory provisions before cited it is difficult to see how the plaintiff could have any account with the Auditor or how that official could settle it Disbursing officers after paying employees must settle with the Auditor. If aggrieved by his decision they are the ones to appeal. But until the money is paid there is no account to settle. Our attention has not been called to any law which would allow this plaintiff to present his claim directly to the Auditor for his decision thereon. Moreover, the Auditor has not yet made any decision against the plaintiff. That official's approval of the estimate was favorable to him. 4. It is further claimed by the defendant that the plaintiff is not entitled to relief because he can maintain an action against the city to recover his salary, or one upon the bond of the defendant, and therefore has another plain, speedy, and adequate remedy. Article 222 does not allow the court to grant a peremptory order if there is such a remedy. Its existence goes to the foundation of the plaintiff's right to the relief and we can not agree with the defendant's claim that this objection can not be taken by the demurrer. We think that it falls under No. 5, article 91, of the Code of Civil Procedure. Assuming that such an action could be maintained by the plaintiff we find no provision in the Charter of Manila relating to the payment of judgments which may be obtained against the city. The city has no control over its revenue. All of it, as fast as it is received, is paid to the Insular Treasurer. Before the city can use any of its money for the purpose of paying judgments against it or for any other purpose the Commission must pass a law specifically appropriating the money. After the money has been appropriated it can not be withdrawn without the consent of the Civil Governor and the Insular Auditor. Should the plaintiff recover a judgment against the city he would have to procure the enactment by the Commission of a law appropriating money to pay it. He then would have to get the head of the Department of Fires and Building Inspection to make a requisition for this sum, the Civil Governor to approve it, the Insular Auditor to allow it, and the disbursing officer of the city to pay it. He might be met with a refusal at each of these steps, and after they had all been taken he might find himself where he is today by the refusal of the last-named officer to pay him the money. It is not necessary to consider authorities from the United States. It is enough to say that such a remedy is certainly not a speedy one and there is difficulty in calling it a plain one. The fact that the defendant by article 1 of Act 145 is required to give a bond to the Insular Government for the faithful performance of his duties is not a bar to this action. (Fremont is. Grippin, 10 Cal., 212.) 5. Article 6 of the Charter is as follows: " Duties of disbursing officer of Board .The Board shall appoint a disbursing officer, who shall be charged with the duty of disbursing all moneys drawn from the Insular Treasury pursuant to appropriations made by the Commission. He shall discharge his duties in accordance with the provisions of Act No. 145, prescribing the duties of disbursing clerks, and shall render his accounts in such manner as the Auditor for the Philippine Archipelago may prescribe." Article 1 of Act No. 145 provides as follows:

"Each head of a civil department, bureau, or office is hereby authorized to appoint, in accordance with law, a disbursing clerk, whose duties shall be to disburse, in accordance with law, and upon approval of the head of the department, bureau, or office to which his duties relate, all moneys appropriated for said department, bureau, or office." The complaint alleges that proper certificates showing that he was entitled to receive his salary had been filed with the defendant. The only duty which the defendant had to perform in this case was to pay the money to the plaintiff. This was a duty purely ministerial, "which the law specially enjoins as a duty resulting from" his office. The Minnesota and California statutes contain the same words as article 222, though they are differently arranged. The decisions in those States allow this remedy in cases like the present. The petition states a cause of action. The demurrer is overruled. The defendant may answer within ten days after notice of this decision. Arellano, C. J., Cooper, Smith, Mapa, and Ladd, JJ., concur. Torres, J., did not sit in this case.

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G.R. No. 1084, November 26, 1902

JOHN FISCHER, PETITIONER, VS. BYRON S. AMBLER, JUDGE OF COURT OF FIRST INSTANCE OF MANILA, RESPONDENT. D ECIS ION
LADD, J.: This is a petition under section 499 of the Code of Procedure to compel the respondent, a judge of the Court of First Instance of the city of Manila, to sign and certify a bill of exceptions. The petitioner was the defendant in the action of Sparravohn vs. Fischer, in which judgment was rendered in favor of Sparravohn on the 15th of July, 1902. It is alleged in the petition, and admitted by the answer, that an exception was taken to the judgment by the petitioner on the 28th of July, and that subsequently during the same term a bill of exceptions was presented to the judge. The judge refused to sign this bill of exceptions, and in his answer to the petition he alleges as his reason therefor "that there were no exceptions whatever taken by the defendant, John Fischer, in the said case of Fred Sparravohn vs. John Fischer at any time during said trial," and that the exception taken to the judgment "was not taken forthwith, as provided by law, and not until thirteen days after the rendition of the judgment, and then not as provided by law, as said defendant filed a paper in court stating that he excepted, and excepted in no other manner whatever." Under the Code of Procedure the only mode in which a party to an action can invoke the appellate jurisdiction of this court for the purpose of obtaining a review of an adverse ruling, order, or judgment, is by perfecting a bill of exceptions. (Sec. 143.) A refusal by the judge to sign the bill on the ground that the exceptions were not taken in due time or in due form is in effect a dismissal of the appeal. Whether a party has lost his right of appeal by his failure to comply with the requirements of the Code in these respects is a question of law, the final determination of which could logically rest with this court as a consequence of its possession of appellate jurisdiction, for if it were otherwise the trial court would have the power, by an erroneous determination of the question, to render the right of appeal in any given case altogether illusory. We think this is what is intended by the Code. Its provisions are not explicit to that effect, but we are of opinion that section 500, which regulates the whole subject of the dismissal of bills of exceptions, clearly contemplates that all questions as to whether there has been a "compliance with the law prescribing the method of bringing actions into the Supreme Court," shall be determined here, and not in the trial court. A convenient course, in cases where exceptions have in fact been taken, will be for the trial court to settle and certify a bill of exceptions, embodying all the exceptions taken, and stating such facts as may be necessary in order to enable this court to pass upon the question whether they were taken in compliance with the provisions of the Code. Section 142 of the Code provides that "the party excepting to the ruling, order, or judgment shall forthwith inform the court that he excepts to the ruling, order, or judgment." The word "forthwith," as here used, means within a reasonable time, which may be a longer or shorter period, according to the circumstances of each particular case. (13 Am. and Eng. Enc. of Law, 1157-1158.) Whether under the circumstances of this case a delay of thirteen days was unreasonable will be determined, if necessary, upon a motion to dismiss.

We do not understand that the bill of exceptions presented by the petitioner contained any other exception than that taken to the judgment. As the answer of the respondent admits that such an exception was taken, and as the truth of the bill of exceptions tendered does not appear to be denied in the answer, except as respects the question whether the exception was duly taken, an absolute mandamus should issue directing the respondent to sign and certify the bill of exceptions presented by the petitioner, adding thereto such facts as he may deem necessary in order to properly present the question whether the exception was duly taken. (Gonzaga vs. Norris, decided August 26, 1902.) If, however, such bill of exceptions is incorrect in any particular the respondent may, within ten days from notice of this order, make further answer to the petition, and the case is retained for the determination of any questions which may arise on such answer. Arellano, C. J., Torres, Smith, Willard, and Mapa, JJ., concur.

CONCURRING COOPER, J.: The appellate court has exclusive power to construe the extent of its own jurisdiction. The inferior court has, accordingly, no power to decide whether an appeal lies in a particular case or whether the requirements of appellate procedure have been properly complied with. (2 EnCL. P1. and Pr., 24) Does section 142 of the Civil Code of Procedure apply to an exception taken after the trial to a final judgment? The section reads as follows: "The party excepting to the ruling, order, or judgment shall forthwith inform the court that he excepts to the ruling, order, or judgment, and the judge shall thereupon minute the fact that the party has so excepted, but the trial shall not be delayed thereby. The exception shall also be recorded by the stenographer, if one is officially connected with the court." This section evidently was intended to apply to rulings made by the court in the progress of the trial, as is shown by the wording of the statute. The reason why the exception should be taken "forthwith" is because such objections are orally made, and the grounds of the objection, the circumstances under which the ruling was made, and the ruling itself, rest only within the memory of the judge, and the exception should be made at the very time of the ruling in order that some memorandum or minute may be made to preserve it. It is notice to the court that the party taking it reserves for the consideration of the appellate court the ruling which he deems erroneous. This reason will not apply to a case where the exception is made in writing to the judgment. It is my opinion that section 142 does not apply to this case. If this section is not applicable there has been no particular time prescribed by a statute for the taking of the exception to the judgment, and in the absence of a fixed time the exception

should be made within a reasonable time, which, in this character of case, would probably be held to mean at some time after the judgment and before the preparation and presentation of the bill of exceptions to the judge for his approval and signature. I do not concur in the definition given to the word "forthwith" used in section 142 as meaning "within a reasonable time." In legal nomenclature the word "forthwith" and the phrase "within a reasonable time" convey quite different and distinct ideas. The word "forthwith" conveys the idea that the thing to be performed must be done with the greatest diligence possible, the only lapse of time being such as may occur by the nature of the act to be performed and the amount of necessary preparation, On the contrary, acts performed months after an event are in some cases regarded as done within a reasonable time, which would be utterly inconsistent with the idea conveyed by the word "forthwith." The idea of a reasonable time is directly opposed to the idea of great diligence or promptitude. (Nicols vs. Blackmoore, 27 Tex., 589.) What effect will be given on appeal to an exception so general in its terms as is made in this case will be determined when the case reaches this court. It has been generally held that an objection or exception must be specific, and point out the very ground upon which the exception is based.

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G.R. No. 1089, October 31, 1902

ANGEL GUSTILO, PETITIONER, VS. ESTANISLAO YUSAY, JUDGE OF THE COURT OF FIRST INSTANCE OF NEGROS OCCIDENTAL, RESPONDENT. D ECIS ION
WILLARD, J.: It can be gathered from the petition that the defendant demurred to the complaint; that the demurrer was overruled; the case tried, and a judgment against the defendant entered on the 30th of August The defendant presented a so-called bill of exceptions on the 5th of September. The judge has failed to sign this bill and the defendant seeks relief under article 499 of the Code of Civil Procedure. His petition states: "I base my exception upon the fact that our demurrer was overruled." Under article 142 an exception to the order overruling the demurrer should have been taken "forthwith" upon receiving notice thereof. This does not appear to have been done. The defendant can not wait until after the trial and then for the first time except to such an order by including a statement to that effect in his proposed bill of exceptions. The petition also states that the defendant appealed from the judgment. The only way of appealing from a judgment in an ordinary action is by presenting an exception to it, having that exception incorporated in a bill of exceptions signed by the judge and certified to this court. (Article 143.) The petition with the proposed bill of exceptions is very vague and indefinite, and we can not Bay that by his so-called appeal he intended to present for review any questions other than those raised by his demurrer. Arellano, C. J., Torres, Cooper, Smith, Mapa and Ladd, JJ., concur.

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G.R. No. 1120, December 08, 1902

DY CHUAN LENG ET AL,, PETITIONERS, VS. BYRON S. AMBLER, JUDGE OF THE COURT OF FIRST INSTANCE OF MANILA, RESPONDENT. D ECIS ION
WILLARD, J.: An action was regularly brought in the Court of First Instance by Ang Ban Ka against Dy Chuan Leng and Lee Gu. The object of the action was to dissolve a partnership alleged by the plaintiff to exist between the plaintiff and defendants. There was a prayer in the complaint for a preliminary injunction and the appointment of a receiver. A preliminary injunction was granted ex parte and a motion to dissolve it denied. The defendants demurred to the complaint. This demurrer is still pending decision. The court below has notified the defendants that he intends to appoint a receiver. The said defendants have now filed in this court a complaint under article 516, Code of Civil Procedure, asking that the judge of Part 3, in which the said action is pending, be prohibited from continuing the preliminary injunction, and from appointing a receiver. The petitioners ask also for an injunction in accordance with article 518. We can not grant an injunction under this section unless there is a compliance with articles 164 and 166. It must appear from the complaint that the plaintiff is entitled to recover in the action. If the complaint states no cause of action no preliminary injunction can be issued. The complaint filed in this court is defective in this respect. It shows upon its face that the petitioners are not entitled to an order of prohibition against the court below. That court had jurisdiction of the action to dissolve the partnership. In that action it had the power to grant a preliminary injunction (article 164), and to appoint a receiver (article 174). Having those powers, if in the exercise of them any errors were committed, they could be corrected only on appeal from the final judgment. The facts as alleged, that the complaint was ambiguous; that the judge believed that the plaintiff below was a partner when the defendants denied it; that he fixed the bond at $1,000 instead of $30,000, as requested by the defendants; that no mention of the bond was made in the writ of injunction; that he refused to hear the defendants' witnesses; that he refused to dissolve the injunction upon a bond which the defendants offered to give, all of these do not show that the court was acting outside of its jurisdiction. They simply show, if they are true, that the court has committed certain errors in exercising its jurisdiction, errors which must be corrected by appeal. ( Re Prautch, February 14, 1902.) In the case of Yangco vs, Rohde, Qctober 13, 1902, we denied a writ of prohibition on the ground that in no case, where the fact of marriage was denied did the Court of First Instance have any jurisdiction to grant temporary alimony. That case differs radically from this one. It is of course apparent that in passing upon this preliminary motion, we have virtually decided the case upon the present complaint. We see, however, no escape from that result.

The motion for a preliminary injunction is denied. Arellano, C. J., Torres, Cooper, Smith, Mapa, and Ladd, JJ., concur.

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