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[ GR No. 7380, Sep 18, 1912 ]



23 Phil. 184

[ G. R. No. 7380, September 18, 1912 ]




These  defendants  were charged with a violation of Act No. 1757.  The complaint presented against them contained the following  accusations: 

"That on or  about the afternoon of August 1 of  the present year,  1911,  and in the jurisdiction of this municipality of Iloilo, Philippine Islands, the said accused, Cayetano Rafael, Perseveranda Lopez, Victor Discipulo, Victoriano Rafael and Guillermo Juanesa did intentionally, maliciously  and criminally play,  making bets  in money,  the game of chance called monte; in violation of the law."

During the trial  of  the cause, the complaint was dismissed against Cayetano Rafael for the reason that there was no proof to connect him with the commission of  the alleged crime, with costs de oficio.

At the close of the trial and after hearing the evidence, the Honorable James S. Powell,  judge, found each of  the other four defendants  guilty  of  the crime charged, and sentenced each of them to pay a fine of  P300, and each to pay one-fifth part of the costs, and, in case of insolvency, to suffer subsidiary  imprisonment.

From  that sentence Perseveranda Lopez  and Victoriano Rafael only appealed.

In  this court  the  appellants make  the following assignments of error: 

"1. It was error to admit as evidence for the prosecution the  exhibits presented by the fiscal. 

"2. It was error  to overrule the motion of the  defense that the  official record of the justice of the peace regarding the declarations made by the  witnesses in the preliminary investigation of this case be annexed to the papers in this cause. 

"3. It  was error to sentence the accused to pay the excessive fine of P300 each. 

"4. It was error  to find that the accused played monte with  bets of money in  the house of  Cayetano Rafael, and that they are guilty  of the crime charged."

With reference to  the first assignment of error, the policeman who arrested the defendants at or about the time when they were found gambling in the house of Cayetano Rafael, took possession of tally-sheets, lead pencils, and other things which they believed had been used in connection with  the game of monte, which the defendants had been playing.   If it is true that these objects had been used in connection with the gambling game, they would be admissible in evidence, after having been properly identified.   A careful reading of the decision of the lower court, however, indicates  that he based his conclusion that the defendants were guilty of  the crime charged upon the fact that the defendants had actually been caught in the  act of gambling  and that he gave no credit whatever to the exhibits in question.  In other words, the lower court found that there was sufficient evidence to prove, beyond a reasonable doubt, that the defendants were playing at a prohibited game at the time in question without any reference to these  exhibits.  The mere fact that  the tally-sheets, lead pencils and other things had been found at the time the defendants were seen gambling, could in no way furnish additional  proof that two or three  witnesses presented by the  prosecution had actually seen the defendants engaged  in  playing the prohibited game  of  monte. Generally there is certain paraphernalia used in playing the prohibited game of monte.   This  paraphernalia, however,  is not a necessary part of the game.   It is  only a convenience.  When the particular paraphernalia is found, however, it of itself may furnish some evidence, although not conclusive, that  the parties using it had been playing the prohibited game.  But when there were  eyewitnesses to the playing of  the prohibited game, the existence of the paraphernalia could only be corroborative.  It was not shown  during  the  trial of the cause that the  tally-sheets, lead pencils, etc., which were found at the time and place  where the  defendants  were gambling, had actually been used  in connection with the prohibited game.  The fiscal evidently presented them as evidence, simply for the purpose of corroborating the statements of the witnesses who swore positively that they  had  seen the defendants  gambling.  All of said exhibits might well  be eliminated from the record without affecting the positive and direct proof presented at the trial, showing that the defendants had,  beyond a reasonable do.ubt, been engaged in playing the prohibited game of monte.  We are of the opinion that, even  though it be admitted that said exhibits were inadmissible in evidence, the fact that they were  admitted  in no way prejudiced the defendants.

With reference to the second assignment of error, it will be noted by reference to section 13 of General  Orders, No. 58, and section 2 of Act No. 194, that in  every  preliminary examination conducted by a justice of the peace,  the declarations of the witnesses shall be reduced to writing and  signed by the witnesses.  Neither General Orders, No.  58, nor  said Act No.  194 requires the justice of the peace, in any case, to forward these declarations to the Court of First Instance. Section 13 of Act No. 1627  amends section 2 of  Act No 194 and relieves  the justice of the peace who conducts  a  preliminary examination from the necessity of taking down  in writing the testimony of the witnesses, except the declaration of the accused himself.   Said section 13  of Act  No. 1627  provides that in a criminal case appealed to the Court of First Instance, as well  as  in  preliminary investigations where the accused is bound over to the Court of First Instance, the justice of the peace shall forward to the provincial fiscal a brief statement of the substance of the testimony. The purpose of requiring the justice of the peace to forward to the provincial fiscal  a brief statement of the substance of the testimony, evidently is to enable the provincial fiscal to decide, in  the first instance, whether he shall present a complaint against the defendant, and in the second, to  enable him, in case he decides  to prosecute,  to properly formulate said complaint.   It is practically impossible, in the thickly populated provinces of  the Philippine Islands, for the provincial fiscal  to personally attend all  of the trials and preliminary investigations held before the justices of the peace. The purpose of the provisions of said  section 13  is evidently to enable the provincial fiscal to have sufficient information to enable him to decide whether or not the defendant, in the trial before the justice of the peace or  in a preliminary investigation, shall be further prosecuted  in the Court of First Instance.

In the present case if the  memoranda or brief statement of the substance of the testimony taken before the justice of the  peace  and later forwarded to the  provincial fiscal contained any fact or  information which the  defendants desired to have presented to the Court of First Instance, the law  afforded them a remedy by a  subpoena  duces tecum. (See sec. 402, Act No. 190.)  We have decided in numerous cases that the  record of a preliminary examination constitutes no part, necessarily, of the proceedings in the Court of First Instance; that  it  does not constitute a part of the record of the Court of First Instance, unless it  is properly presented as evidence.  The trial in the Court of First Instance is a trial de novo.   The record of the justice of the peace made in  a preliminary investigation, can not be used as the basis of the sentence of the Court of First Instance. The only  purpose of presenting the record of the  preliminary examination in the Court of First Instance is  perhaps for the purpose of testing the credibility of the  witnesses. The  record  in  the preliminary  examination may  be presented for the purpose  of showing  that certain witnesses testified to  certain facts in the  preliminary examination which were contrary to their declarations  in  the Court of First Instance.   (U. S. vs. Capisonda, 1 PhiL Rep., 575.)

With reference to the 3d assignment of errors  to wit: that the lower  court imposed an excessive  fine in imposing a fine of P300, it may be said that  said fine is  within the provisions of the law and in our opinion is not excessive. Section 3  of said Act No. 1757  provides that any person violating this section, shall be punished by a fine of  not less than P10 nor more than P500, or by imprisonment for not more than one  year, or by both such fine and imprisonment m the  discretion  of the court.  We find no reason in  the record for modifying the sentence of the lower court with reference to the fine imposed.

With reference to the 4th assignment of error, it will be noted that the appellants claim that the lower court committed an error in deciding that the defendants were guilty of playing the prohibited game  of monte  "con apuestas de dinero."  The appellant has evidently overlooked section 7 of Act No. 1757, which provides, among other things, that - 

"The playing at and conducting of any game of  monte *   *   *  is hereby prohibited, and any person taking any part therein  *  *   *  shall be punished as provided in section  3 hereof."

While it may be true, generally, that persons who play the game of monte play for money,  yet, nevertheless, the use of money in the game is not a necessary element in the crime described or defined by the law.  It seems that the purpose of the law was to prohibit absolutely the game of monte in the Philippine Islands.   The mere fact that money was or was not used in no way constitutes an element of the crime.

In our opinion the evidence shows, beyond a reasonable doubt, that the appellants did, on or about the 1st day of August, 1911, play, in the house of  one Cayetano Rafael, at the prohibited  game of monte,  together with their co-defendants.

After a careful examination of the evidence contained in the record, and of the assignments  of error, we  find  no reason for modifying the sentence of the lower court. The same is, therefore, hereby affirmed, with costs.   So ordered.

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