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[ GR No. 7259, Sep 02, 1912 ]



23 Phil. 120

[ G. R. No. 7259, September 02, 1912 ]




These  defendants were charged with a violation of the Opium Law.  The complaint alleged: 

"That  the said accused on May 6, 1911, in the settlement of Laporawan, Zamboanga  District, Moro Province, Philippine Islands, had in their possession opium ashes,  a derivative  of  opium, the said accused not being persons legally authorized therefor:  an  act constituting  said violation defined and penalized in section  31 of Act No. 1761 of the Philippine Commission, and executed within the jurisdiction of this Court of First Instance and in violation of law."

After  hearing  the  evidence,  the Honorable Charles  A. Low,  judge, rendered the following sentence:

"The accused, Chong Ting and Ha Kang, having  been found guilty as charged, are sentenced each to pay a fine of P300 or to three months' imprisonment. 

"It is so ordered."

From that sentence the defendants appealed and in this court attempt to show that the evidence adduced during the trial of the cause is insufficient to show that they are guilty of the crime charged in the complaint.

During the trial of the cause the prosecuting attorney for the District of Zamboanga presented three witnesses.  The first was a Moro called Ambol.  He testified that in the month of May, 1911, he was carrying the two defendants in a sailboat.  He testified that he had been working for the defendants for forty-five days.  He testified that  they were  sailing their boat to the  rancheria  of Laporawan. He  does not state from what place they started.  He  first tries to make it appear that the defendants were smoking in his boat and that he took possession of certain apparatus and opium ashes from them, for the reason that they would not pay him (supposedly for his labor in managing the sailboat).  This witness also tries to make it appear by his declaration that he  took the apparatus and  opium  ashes from the defendants for the reason that he knew that the use of opium was prohibited by  law.  After  he took the apparatus and opium ashes from the defendants he testified that the defendants  took  the same away from him; that he later obtained possession of the  same  again and locked the same up in his trunk; that after they landed (and the evidence is very uncertain as to the place where they landed) Ambol testified that he delivered the  apparatus  and the opium ashes, in company with another Moro called Callava, to Captain Paegelow, some two days after they had landed.

The other  witness, Frank S. DeWitt, presented by the prosecuting  attorney, was only called for the purpose of showing that the apparatus  and opium ashes to which the witness Ambol referred were the apparatus used in smoking opium and that the ashes were in fact opium ashes.

Captain Paegelow was presented by the prosecuting attorney for the purpose of showing  that the objects which the witness  Ambol claimed  he had obtained from the defendants had been delivered  to him by the said Ambol.

It will be noted that there is nothing in the testimony of Mr. DeWitt or Captain Paegelow which in any way shows that these defendants had been in the possession of or had been  using opium in the  manner alleged by  the witness Ambol.

Each  of the defendants testified in his own behalf.   The defendant, Chong Ting, stated that he was a merchant and was 27 years of age; that he knew the witness Ambol and had known him since the 19th of April, 1911; that the witness Ambol had been working for him in managing a sailr boat for a period of ten days only, prior to the 28th of April, 1911; that he had not seen the apparatus or articles or the opium ashes to which reference was made by the witness  Ambol; that during the voyage  in the said  sailboat, some question had arisen between him and the witness Ambol relating to the payment of an amount due from one Yap Kang to the said witness.  From this it appears that one Yap Kang was also a passenger in the sailboat.  This fact does not appear positively but by inference only.

The defendant, Ha  Kang,  testified in his own behalf. He testified that he was a merchant and was 26  years of age; that he lived in the pueblo of Taluysangay; that he knew the witness Ambol; that Ambol had been managing a sailboat for him; that  they  arrived at  the pueblo of Laporawan  on the 28th of April; that he  had had some trouble with the witness Ambol, with reference to the payment of a sum of money supposedly due for Ambol's labor. He  testified positively that the articles (alleged apparatus and opium ashes) had  never  been in his possession; that the witness  Ambol had not taken said articles from him.

The said articles (apparatus for  smoking opium  and opium ashes) which the witness Ambol alleged he had taken forcibly  from the two  defendants, .were not  presented as proof during the trial of the  cause.  The record  contains the statement: 

"The prosecution wishes to  present these articles as  evidence,  marked Exhibit  A for the prosecution."   (Record, p. 15.)

But  nowhere in the record  does it appear that said articles were actually presented or were received in evidence. The only evidence, therefore, which we have before us upon which to base a conviction of  the defendants, is the declaration of the witness Ambol, to the effect that the defendants had been smoking opium  in his sailboat and  that he took from  their  possession  certain apparatus and some opium ashes.  This declaration of the witness Ambol is positively denied by each of the defendants.  There is  nothing in the record which,  in any way, casts doubt upon  the credibility of the testimony of the two defendants.  We see no reason why their testimony in the  present  case should not  be accepted,  in view of all the facts contained  in the record. On  the contrary, the record does contain some indication that the witness Ambol was not clear concerning the facts stated in his declaration.  He stated that he had been working for the  defendants  for forty-five days,  leaving  the impression that the trip on which he had possessed himself of the  articles in question had lasted  for forty-five days. The defendant, Chong Ting, states positively that the trip lasted but eleven days and ended upon the  28th of April. The other  defendant, Ha Kang, stated positively that he did not remember when the trip began, but he did remember that it ended upon the 28th of  April.  This apparent conflict between the testimony of the witness Ambol and that of the  two defendants, taken into  consideration with the fact that the witness Ambol had had in his possession said articles for  a period of two days after  he  had separated from the defendants before delivering the same to any authority, in our judgment casts some doubt upon the truthfulness of  the statements of the witness Ambol.   It further appears from the record that some nine or ten days had elapsed between the time the defendants and the witness Ambol  separated before  any complaint was presented in the courts.  There is nothing in the record which  conclusively shows, in our opinion, that the defendants are guilty of the crime charged in the complaint.

There is an objection to the form of the sentence dictated by the  lower court which we deem inadvisable to overlook without criticism.  It will be noted by reading the sentence above quoted that the same is in the alternative.   Sentences should  not be in the alternative.  There  is nothing in the law which permits courts to impose sentences in the alternative.  The sentence should not only show the facts upon which the defendant is found guilty, but it should  clearly indicate the particular crime of which he is found guilty, as well as definitely and positively and without doubt to indicate the  penalty imposed.   (Articulo 51, Ley  provisional para la aplicacion  de las disposiciones del Codigo Penal,) Of course  where the defendant appeals, it is believed that the Supreme Court has a right to impose the penalty provided by law, for whatever offense, within the complaint. which the  evidence shows was committed.  In  case the defendant does not appeal, however, it is difficult to imagine how a sentence in the alternative  may be enforced.   It is true that under many of the provisions of the penal law, the court has the discretion  or alternative of imposing one or another  of  different penalties; but certainly it can not be argued that because the  judge has the discretion  of  fixing one  or another penalty,  that  he can impose both  in the alternative.  He must  fix positively and with certainty the particular penalty.

After  a  careful  examination  of the  evidence adduced during the trial of the cause, we are persuaded that the same is  not sufficiently positive  to lead us  to believe that the defendants are guilty of the  crime charged in the complaint, beyond a  reasonable doubt.   The sentence  of the lower court is, therefore,  hereby  reversed, and it is hereby ordered that the complaint presented against the defendants be dismissed and that they be discharged from the custody of the law, with costs  de oficio.

Arellano, C. J., Mapa and Carson, JJ.,  concur.