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[ GR No. 6612, Aug 31, 1912 ]



23 Phil. 105

[ G.R. No. 6612, August 31, 1912 ]




The facts in this case, are these:  On the morning of the 26th  of May, 1910, the steamer Ton-Yek anchored in the Bay  of Calbayog, Samar.  A  Chinaman named Lee  See (alias Tuya), one of the passengers, disembarked and went to the house of the appellant, Chan Guy Juan (alias Aua) in the town  of Calbayog, where the two had a somewhat lengthy conversation.  Lee See returned to the boat  and the appellant employed one Isidro Cabinico to go alongside of the steamer with his baroto and receive from the said Lee See a certain sack containing, as the appellant said sugar. On arriving at the steamer, Lee See, who was on deck, tied a  rope around the  sack  and lowered  it  into  Cabinico's barato.  The latter, while on his way to the house of the appellant with the sack and its contents, was arrested and the contents  of the sack examined, and found to consist of a small amount of sugar and twenty-eight cans of opium. This  opium was confiscated by the local authorities and separate criminal charges instituted against the two Chinamen and Cabinico. Upon  investigation  by the  provincial fiscal, the case against  Cabinico was dismissed, while those against the two Chinamen were proceeded with, resulting, in the conviction of both.  Both appealed, and the sentence imposed upon Lee See has heretofore been affirmed by this court.
It  clearly  appears from the record that  Cabinico  did not know the contents  of the sack which he received from Lee See and which he  was on his way  to  deliver to  the appellant.  It is insisted that it can not be said, under these facts, that  the appellant had possession or control of the twenty-eight cans of opium.  It is,true that the appellant never had actual physical possession of  the opium, but it must be remembered that  while  he employed Cabinico to go to the steamer and receive, as he said, a certain amount of sugar from his countryman Lee See and bring the same to him, he knew that the sack which Cabinico would receive contained very  little sugar and a large quantity of opium. The expression "having possession of" in section  31  of Act No. 1761 is somewhat ambiguous.  It is clear that the law never intended to hold a person guilty of the possession of the prescribed drug when in fact  he merely had  the custody of the  same without knowledge of its nature, and this court so held in disposing of the case against Cabinico. But  it is equally clear that the law never intended  the possession of the drug  should be  limited to mere manual touch or personal custody.   Upon  such a  holding, a guilty principal could often escape by taking the precaution  to never have the drug in  his actual  possession, and thus defeat  the intent  of the law.   The words "having possession of" must therefore be extended to include constructive possession ; that is, the relation between the owner of the drujy and the  drug itself when the owner is not in actual physical. possession, but  when it  is still under his control and management and subject to his disposition.   It is  immaterial whether Lee See or Chan Guy Juan was  the real owner of the opium found in the sack of sugar.  The evidence shows both were guilty principals in the  effort to land the opium from the steamer.
Cabinico was the innocent agent of the defendant in this case, and the responsibility for carrying the opium ashore therefore reverts to this defendant.  (Art. 13, No. 2,  Penal Code; 12 Cyc, 185, and cases cited; Bishop's New Criminal Law, vol. 1, sec. 651.)
The judgment of the. lower court is therefore affirmed, with the costs of this instance against the appellant.
Arellano,  C. J., Mapa, Johnson,  and Carson, JJ., concur.