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[US v. ALEXANDER MCCORMICK](http://lawyerly.ph/juris/view/cdf6?user=fbGU2WFpmaitMVEVGZ2lBVW5xZ2RVdz09)
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[ GR No. 5565, Feb 10, 1910 ]

US v. ALEXANDER MCCORMICK +

DECISION

15 Phil. 185

[ G. R. No. 5565, February 10, 1910 ]

THE UNITED STATES, PLAINTIFF AND APPELLEE, VS. ALEXANDER MCCORMICK, DEFENDANT AND APPELLANT.

D E C I S I O N

JOHNSON, J.:

The defendant was charged with  a violation of  Act No. 1761  of the Philippine Commission,  which violation  was alleged  to  have been committed as follows:
"That on or about the 15th of January, 1909, in the city of Manila, Philippine Islands, within the police jurisdiction of said  city, to wit: On the  steamer Rubi, anchored in the Bay of  Manila, within  a distance of less  than 1 1/2 miles from the limits of said city, willfully, illegally, and maliciously, and without authority of law, he had in his possession 60 ounces of opium, contrary to law."

The defendant was duly arrested and pleaded "not guilty."
After  hearing the evidence adduced during the trial of the cause, the  lower court found the defendant  guilty of the crime charged  and sentenced him to  pay a fine of P500, Philippine currency, and the costs, and in case of insolvency to suffer subsidiary imprisonment not to exceed six months. The court further ordered  that the said opium discovered be confiscated to the Insular Government, to be  delivered to the honorable Collector of Customs, to be disposed of in the manner prescribed by law.

From  this sentence the defendant appealed to this court and made the following assignments of error:

First.  The court erred in finding  as a fact  "that  the customs  inspector, with  several assistants,  authorized to make arrests, went  aboard said ship (Rubi) and notified the chief officer thereof  that they  were about to make  a search of said ship for contraband goods, and immediately went to the engine room therein for that purpose, and then and there announced in the presence of  the defendant that they were about to make said search."

Second. The  court erred  in finding from the evidence that "immediately" after the entrance of the customs inspector,  Betenbaugh, into  the  engine room, the accused retired therefrom  and "immediately" went  to the bunker where the opium was found.

Third. The court erred in  finding that the accused was guilty.

The defendant was the second engineer on the steamer Rubi at the time and on the day when said opium was found on said ship.  The contention of the  defendant is that in obedience to  an order of  his  superior officer, the  chief  engineer oi said steamer, he assisted  in making a search of said steamer for opium.  During said search he  found in one of the bunkers of said ship the opium in  question, and immediately reported the same to his superior officer.

It appears  that the customs inspectors had suspicioned that there was opium on the ship, which some person or persons were attempting to bring into the Philippine Islands illegally.

The  evidence seems to show beyond  question that the defendant, after  picking up  the said opium in one of the bunkers of the ship, and after giving his superior officer notice,  carried the opium to the smoking  room of said  ship, or was  in the act  of carrying  it to the smoking room, where he supposed the inspectors were, at the time he was arrested.

The simple  question presented is whether or not the defendant had said opium in his possession, for the purpose of delivering  it to the inspectors, having found  it, as he alleges, or whether or not he had it in his possession for his own private purposes.

If the defendant had the opium in his possession, having found it as he alleges, it  would be absurd to convict him under the law, for the reason that he had been ordered by his superior to search the ship for opium. The evident theory of the prosecution is that the defendant was attempting to bring into  the Philippine Islands illegally the opium in question; that  he had it hidden away,  and when he discovered that a search was to be made of the ship, he  then went to the place where it was hidden, took it and delivered it to the officers, for the purpose of avoiding discovery and subsequent prosecution.

During the  trial it was proven that a  Chinese  tallyman on the said ship, by the name of Wai Kee, had in his  possession  a  permit  to buy opium, issued  by the Hongkong authorities; that  he had actually bought opium from  the Hongkong opium farm; that he had tin cans made in Hongkong similar to the cans in question, which were found by the defendant  on the ship Rubi; that he had had opium on the ship which was delivered  to him by a sampan man, for the purpose of bringing it to Manila to sell; that he  said he had thrown the same overboard; that he did not know the name  of the  sampan man who brought the opium  to him on  board  the ship Rubi,  before the same  sailed from Hongkong.  His  statement that he had  thrown the cans overboard; that he did not know the name of the person who brought them to him, in the face of his own statement that he was  bringing it  to Manila to  sell, seems entirely improbable to us and to be untrue.

The defendant, at  the time he found the opium, apparently made a full and fair statement of how and where he found it.   The place  where the opium was found was used to place cargo and ship's stores and was in charge of the first mate.  During the trial of the  cause the defendant stated the circumstances  under which he  found the opium, exactly as he  stated them at the time  of his arrest.  His statements seem  to be  straightforward  and there is no positive proof to contradict them.  The strongest evidence against the  defendant is a circumstance only.  That circumstance is that he found the opium  "too quickly" after he had been  ordered to  search the ship  for opium.   The lower court  found that the defendant went to the  bunker where the opium  was found  "immediately" after being notified that he was to assist in searching  the ship.   The evidence does not show that he went "immediately" to the bunker where the opium was found.  The  evidence does show that the defendant found the  opium  within  a few minutes after the search  began.  The opium was found in a sack of bran in the corner of said bunker.  It seems improbable to us that if the defendant was trying to bring the opium illegally  into Manila that he would have put it in a bunker in charge of another officer of  the ship.   The circumstance of the defendant  having found the opium within a few  minutes after the search for  opium began, standing alone, unsupported by any other evidence whatever, taken in connection  with the testimony of the witness Wai Kee, is not sufficient, in our opinion, to find the defendant guilty of the  crime charged against him,  beyond reasonable doubt.  This  court has held repeatedly that a defendant may be convicted  upon circumstantial evidence, but when that is done such evidence must be consistent with and  point to the defendant's  guilt, beyond a reasonable doubt, and be inconsistent with his innocence.   (U. S. vs. Reyes, 3 Phil. Rep.,3; U. S. vs. Villos, 6 Phil. Rep,, 510.)

In our opinion the evidence is not sufficient to show  that the defendant was guilty of the crime charged in the complaint.   The sentence of the lower court is, therefore, hereby reversed, with costs de oficio.  So ordered.

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

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