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[ GR No. 7081, Sep 07, 1912 ]



23 Phil. 145

[ G. R. No. 7081, September 07, 1912 ]




This defendant was charged with the crime of rape.  The complaint alleged: 

"That on  or about September  15, 1910, and before the filing of this complaint, in the city of Manila, Philippine Islands, the said Tan Teng did willfully,  unlawfully and criminally, and employing  force, lie and have carnal intercourse with a certain Oliva Pacomio, a girl 7 years of age."

After hearing the evidence, the Honorable  Charles  S. Lobingier, judge, found the defendant guilty of the  offense of abusos deshonestos, as"  defined and punished under article 439 of  the  Penal Code, and  sentenced  him to  be imprisoned for a period of 4 years 6 months and 11 days of prision correccional,  and to pay the costs.

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

"I. The lower court erred in admitting the testimony of the physicians about  having taken a certain substance from the body of the accused while he  was  confined in jail and regarding the chemical analysis made of the substance to demonstrate the physical condition  of  the accused with reference to a venereal disease. 

"II. The lower court  erred in  holding  that  the complainant was suffering from a venereal disease produced by contact with a sick man. 

"III. The court erred  in hojding that the accused was suffering from a venereal disease. 

"IV. The court erred in finding the accused guilty from the evidence."

From an examination of the record it appears that the offended party, Oliva  Pacomio, a girl seven years of age, was, on the 15th day of September, 1910,  staying  in the house, of her sister, located on Ilang-Ilang Street,  in the city of Manila; that on said day a number of Chinamen were gambling in or near the said house; that some of said Chinamen had been in the habit of  visiting the house of the sister of  the offended party; that Oliva Pacomio, on the day in question,  after having  taken a  bath, returned to her room; that the defendant followed her into her room and asked her for some face powder, which she gave him; that after using some  of the face powder upon his private parts, he threw the said  Oliva upon  the floor, placing his private parts upon hers, and remained in that position for some little time.  Several days later, perhaps a week or two, the sister of Oliva Pacomio discovered that the latter was suffering from a venereal disease known as gonorrhea. It was at  the time of this discovery  that Oliva related to her sister what  had happened upon the morning of the 15th of September.  The sister  at once put on foot  an investigation to find the Chinaman.  A number of Chinamen  were collected together.  Oliva was called upon to identify the one who had abused her.  The  defendant was not present at first.   Later he arrived and Oliva  identified him at once as the one who had attempted  to violate her.

Upon this information  the defendant  was arrested and taken to the police station and stripped of his clothing and examined.   The policeman  who  examined  the  defendant swore that his body bore every sign of the fact that he was suffering: from the venereal disease known as gonorrhea. The policeman took a portion of the substance emitting from the body of the defendant and turned it over to the Bureau of Science  for  the purpose  of having a  scientific analysis made of the same.  The result of the examination showed that  the defendant was suffering from gonorrhea.

During the trial the defendant objected strongly to the admissibility of the testimony of Oliva, on the ground that because of her tender years her testimony should  not  be given credit.  The lower court,  after carefully examining her with reference to her ability  to understand the nature of an oath, held that she had sufficient intelligence and discernment to justify  the  court in accepting her  testimony with full faith and credit.  With the conclusion of the lower court, after reading her declaration, we fully concur.

The defense  in the lower court attempted to  show that the venereal disease of gonorrhea might be communicated in ways other than by contact such as is described in the present case, and called medical  witnesses for the purpose of supporting  that contention.  Judge  Lobingier,  in discussing that question said: 

"We shall not pursue the  refinement of speculation as to whether or not this  disease might, in exceptional  cases, arise from other than carnal contact.  The medical experts, as well  as the books, agree that in ordinary cases it arises from  that  cause,  and if this was an exceptional one, we think it was incumbent upon the defense  to bring it within the exception,"

The offended party testified that the defendant had rested his private parts upon  hers for some moments.  The defendant was found to  be suffering from gonorrhea.  The medical experts who testified agreed that this disease could have been communicated from him to her by the contact described.  Believing as we do the story told by Oliva, we are forced  to the conclusion that the disease with which Oliva was suffering was the result of the illegal and brutal  conduct of the defendant.  Proof, however, that Oliva contracted said  obnoxious disease from  the  defendant  is not necessary to show that he is guilty of  the crime.   It is only corroborative of the truth of Oliva's declaration.

The defendant attempted to  prove in  the lower court that the prosecution was brought for the purpose of compelling: him to pay  to the sister of Oliva a certain sum of money.

The defendant testified and brought other Chinamen to support his declaration, that the sister of Oliva threatened to have him  prosecuted if he  did not pay her the sum of P60.  It seems impossible to believe  that the sister, after having become convinced that Oliva had been outraged in the manner described above, would consider for a moment a settlement for the paltry sum of P60.  Honest women do not consent to the  violation of their bodies nor those of their near relatives, for the filthy consideration  of mere money.

In the court below the defendant contended that the result of the scientific examination made by the Bureau of Science of the substance taken from his body, at or about the time he was arrested, was not admissible in evidence as proof of the fact that he  was suffering from  gonorrhea. That to admit such evidence was to compel the defendant to testify against himself.  Judge Lobingier, in  discussing that question in his sentence, said: 

"The accused was not compelled to make any admissions or answer any questions, and the mere fact that an  object found on his person was examined; seems no more  to infringe the rule invoked,  than would the introduction in evidence of stolen  property taken  from the  person of  a thief."

The substance was taken from the body of the defendant without his objection, the examination was made by competent medical  authority and  the  result showed that  the defendant was  suffering from said disease. As was suggested by Judge Lobingier, had the defendant been  found with stolen property upon his person,  there certainly could have been no question had the stolen property been taken for the purpose of using the same as evidence against him. So also if the clothing which he wore,  by reason of blood stains  or otherwise, had  furnished evidence of the commission of a crime, there certainly could have been no objection to taking such for the purpose of using the same as proof. No one would think of even suggesting that stolen property and the clothing in the case  indicated,  taken from the  defendant, could not be used against him as evidence, without violating the rule that a person shall  not be  required to give testimony against himself.

The  question presented by the defendant below and  repeated in his first assignment of error  is not a new question, either to the courts or authors.   In the case of Holt vs. U. S. (218 U. S., 245), Mr. Justice Holmes, speaking for the court upon this question, said: 

"But the prohibition  of compelling a man in a criminal court to be a witness against himself, is  a prohibition of  the use of physical or moral compulsion, to extort  communications from him, not an  exclusion of his body as evidence, when it may be material.   The objection, in principle, would forbid a jury  (court) to look at a person and compare  his features with a photograph in proof.  Moreover we are not considering how far a court would go in compelling a man to exhibit himself,  for when he is  exhibited, whether voluntarily  or by order, even  if the order goes  too far, the evidence if material, is competent."

The question which we are discussing was also discussed by the supreme court  of the  State of New Jersey, in the case of State vs. Miller  (71 N.J. Law  Reports,  527),  In that case the court said,  speaking through its chancellor: 

"It was not erroneous to permit the physician of the jail in which the  accused  was confined, to  testify to wounds observed by him on the  back of the hands of the accused, although he also testified that he had the accused removed to a room in another part of the jail and divested of  his clothing.  The observation  made by the witness of the wounds on the hands  and testified to  by him, was in no sense a compelling of the accused to be a witness against himself.  If the removal of the  clothes had been forcible and the wounds had been thus exposed, it seems that the evidence of their character and appearance would not have been objectionable."

In that case  also (State  vs. Miller)  the defendant was required to place his hand upon the wall of the house where the crime was committed, for the purpose of ascertaining whether or not his hand would have produced the bloody print.  The court said, in discussing that question: 

"It was not erroneous to permit evidence of  the  coincidence between the  hand of the accused and the bloody prints of a hand upon the wall of the house where  the crime was committed, the hand of the accused having been placed thereon at the request of persons who were with him in the house."

It may be added that a section of the wall containing the blood prints was produced before the jury and the testimony of  such  comparison  was like  that held  to  be proper in another case decided  by the supreme  court of New Jersey in the case of Johnson vs.  State (30 Vroom, N. J.  Law Reports, 271).  The  defendant caused the prints of the shoes to be made in the sand before the jury, and witnesses who had observed shoe prints in the  sand at the place of the commission of  the  crime were permitted to compare them with what they had observed at that place.

In that case also the clothing of the defendant  was  used as evidence against him.

To admit the doctrine contended for by the  appellant might exclude the testimony of a physician  or a medical expert who had been appointed  to make observations  of a person who plead  insanity as  a defense, where such medical testimony was against the contention of the defendant. The medical expert  must necessarily use the person of the defendant for the purpose  of  making  such  examination. (People vs. Austin, 199 N. Y.,.446.)   The doctrine  contended for by the appellant  would also prevent the courts from  making an examination of the body of the defendant where serious personal injuries were alleged to have been received by  him.   The right of the  courts in such  cases to require an exhibit of the injured parts of the body has been established by a long line of decisions.

The prohibition contained in section 5 of the Philippine Bill that a person shall not be compelled to be a witness against himself, is simply a prohibition against legal process to extract from the defendant's own  lips, against his will, an admission of his guilt.

Mr. Wigmore,  in his valuable work on evidence, in discussing the question before us, said: 

"If, in other words, it (the rule)  created inviolability not only for  his [physical control of his] own vocal utterances, but also for his physical control in whatever  form exercised,  then it would be possible for a guilty person to shut himself up in his house, with all the tools and indicia of his crime, and defy the authority of the law to employ in evidence anything  that might be  obtained  by forcibly overthrowing his possession and compelling the surrender of the evidential articles - a clear reductio ad absurdum. In  other  words,  it is not merely  compulsion that is the kernel of the privilege,   *   *  *   but testimonial compulsion" (4 Wigmore,  sec. 2263.)

The main purpose of the provision of  the Philippine Bill is to prohibit  compulsory oral examination of prisoners before trial,  or upon trial,  for the purpose of extorting unwilling confessions  or  declarations implicating them in the commission of a  crime.   (People vs. Gardner, 144 N.Y., 119.)

The doctrine contended for by the  appellant would pro- hibit courts from looking  at the face  of a defendant even, for the purpose of disclosing  his identity. Such an application of the  prohibition  under discussion certainly  could not be permitted.  Such  an inspection  of the  bodily features by the court or by witnesses,  can not  violate the privilege granted under the Philippine Bill, because it does not call  upon the accused as  a witness - it does not call upon the  defendant for  his testimonial  responsibility. Mr. Wigmore  says  that evidence obtained in this way from the accused, is not testimony by his body but his body itself.

As was said  by  Judge Lobingier: 

"The accused was not compelled to make any admission or answer any  questions, and the mere fact that an  object found upon his body was examined seems no more  to infringe the rule invoked than would the  introduction of stolen property taken from  the person of a thief."

The doctrine contended for by the appellant would also prohibit the sanitary department of the Government from examining the body  of persons who are supposed to have some contagious disease.

We believe that the evidence clearly shows that the defendant was suffering from the venereal disease, as  above stated, and  that through his brutal  conduct said disease was communicated to Oliva Pacomio.  In a case like the present it is always difficult to  secure positive and  direct proof.   Such crimes  as the  present are generally proved by  circumstantial  evidence.  In cases of rape the  courts of law  require corroborative proof,  for  the reason that such crimes are generally committed in secret.  In the present case,  taking into account the number and  credibility of the witnesses, their interest and attitude on the witness stand, their manner  of testifying and the general circumstances  surrounding  the witnesses, including the fact that both parties were found to be suffering  from a common disease, we are of the opinion that the defendant did, on or about the 15th  of September, 1910, have such relations as above described with the said Oliva Pacomio, which  under the provisions of article 439 of the Penal  Code  makes him guilty of ,the crime  of  "abusos deshonestos," and taking into consideration  the fact  that the crime which the defendant committed was  done in the house  where  Oliva Pacomio was living,  we are of the opinion that the maximum penalty of the law should be imposed.  The maximum penalty provided for by law is six years of prision  correccional.   Therefore let a judgment be entered modifying the sentence of the lower court and sentencing the defendant to be  imprisoned for a period of  six years of  prision correccional, and to pay  the costs.   So ordered.

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