various supreme court decisions 2

8/10/2019 Various Supreme Court Decisions 2

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G.R. No. 24187, People v. TanBomping et al., 48 Phil. 877

Republic of the PhilippinesSUPREME COURT

ManilaEN BANC

March 15, 1926

G.R. No. 24187

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,vs.TAN BOMPING, ET AL., defendants-appellants.Vicente Sotto for appellants.

Acting Attorney-General Reyes for appellee. OSTRAND, J.: The defendants Tan Bomping, Leon Galindo, Policarpo Tambor, Lucio Macalisangand Andres Burias are accused of the crime of falsification of public documents, it

being alleged in the information upon which the case went to trial "that on or aboutthe 21st and 22d of November, 1923, in the municipality of Jimenez, Province ofMisamis, Philippine Islands, and within the jurisdiction of this court, the above-namedaccused, confederating together and cooperating with one another, did willfully,unlawfully and criminally prepare and cause to be prepared eight fictitious andsimulated documents acknowledged before a notary public wherein the accused TanBomping conveys to his co-accused Leon Galindo, Policarpo Tambor, LucioMacalisang and Andres Burias eight parcels of land belonging to said accused TanBomping, making it to appear in said documents that the same were executed on

previous dates, about the years 1919, 1920, 1921, 1922 and August of 1923, when as amatter of fact said documents were executed and signed by all the five defendants on

November 21, 1923, and acknowledged by them before a notary public on November22d of the same year."


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Upon trial Court of First Instance found all of the defendants guilty of the falsificationof private documents and sentenced Tan Bomping to suffer one year, eight monthsand twenty-one days of presidio correccional and to pay a fine of 625 pesetas . Eachof the other defendants was sentenced to six months of arresto mayor with the samefine as that imposed on Tan Bomping. All of the defendants appeal to this court.The evidence shows beyond a reasonable doubt that the defendant Tan Bomping, inorder to escape the attachment of his property in a civil action then pending, on the21st of November, 1923, executed eight deeds of conveyance various parcels of land,of which he was the owner, to his codefendants, and that he intentionally antedatedthe documents. Duly certified copies of the deeds are in evidence and are markedExhibits A to H, inclusive. Two of them, Exhibits A and B were executed in favor of

Leon Galindo and given the date of January 15, 1920. These documents werewitnessed by Policarpio Tambor and Andres Burias. Two other deeds, Exhibits C andD, were made out in favor of Policarpo Tambor and dated October 10, 1921, andOctober 15, 1920, respectively, and were witnessed by Leon Galindo and AndresBurias. Exhibits E and F were executed in favor of Andres Burias, dated August 15,1923, and witnessed by Leon Galindo and Policarpo Tambor. Exhibits G and H wereexecuted in favor of Lucio Macalisang and dated January 20, 1919. The subscribingwitnesses were Leon Galindo and Policarpo Tambor. On the following day Tan

Bomping took the documents to a notary public and acknowledged them in the usualmanner. The notary, observing that the documents bore earlier dates, apparently

became suspicious and at his instance, Tan Bomping stated under oath that they wereexecuted and signed on the dates therein stated.

Upon the facts stated, Tan Bomping is manifestly guilty of the falsification of publicdocuments and not merely of private ones as found by the trial court; he not onlyfalsified the documents, but was also directly instrumental in causing them to be made

public documents. The case against his codefendants is not quite as clear and there isroom for a reasonable doubt as to their knowledge of the true character of thetransactions described. The majority of the members of this court are therefore of theopinion that said codefendants should be acquitted.


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In his assignments of error, counsel for the appellants raises several questions of lawwhich we shall briefly discuss. In the original information filed in the present case, thedefendants were accused of the crime of estafa with falsification of public documents.A demurrer to this information was sustained and the present a new one. Incompliance with this order, the fiscal amended the information so as to chargefalsification of public documents only and counsel for the appellants now argues thatunder section 23 of General Orders No. 58 the court may order the filing of a newinformation, but has no power to order an amendment. This contention must beregarded as having been set at rest by the case of United States vs. Muyot (2 Phil.,177), in which this court held that the trial court has authority to direct amendments toan information or complaint in a criminal case. There is in fact no difference in

substance between an amended information and a new one, and whether theinformation upon which the case goes to trial is styled "New Information" or"Amended Information" is wholly immaterial.Counsel for the appellants also argues that the trial court erred in admitting inevidence certified copies of the falsification documents instead of the originals. Itappears, however, that the originals were in the hands of the defendants; that the fiscalmade demand upon them for the production of the documents in court; and that thedefendants refused to comply with this demand. In these circumstances the duly

certified copies were clearly admissible (see sections 321 and 322 of the Code of CivilProcedure ). No proposition of law is better established than the rule that secondaryevidence is admissible whenever primary evidence is not obtainable, and this ruleapplies to criminal as well as to civil cases (Allen vs. State, 21 Ga., 217;Commonwealth vs. Jeffries, 7 Allen, 548).The case of United States vs. Gregorio and Balistoy (17 Phil., 522 ), cited by counselfor the appellants in support of his contention, is not in point. In that case it does notappear that a reasonable effort was made to procure the original of the document

alleged to have been falsified. The statement in the decision that "in criminal proceedings for falsification of a document, it is indispensable that the judges andcourts have before them the document alleged to have been simulated, counterfeited,or falsified" is much too broad if it is thereby meant that the production of the originalof the document is indispensable in all criminal prosecutions for falsification. In anyevent, the statement can only be considered obiter dicta .
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As we have already stated, the court below erred in holding that the crime committedwas falsification of private documents. A deed acknowledged before a notary publicis a public document and the fact that the false dates were written into the documentshere in question before said documents were presented to the notary, does not alter thecase if they were so presented by the parties who committed the falsification or attheir instance.For the reasons hereinbefore stated, the appellants Leon Galindo, Policarpo Tambor,Lucio Macalisang and Andres Burias are hereby acquitted of the crime charged in thecomplaint with their proportional shares of the costs de oficio.

We find the appellant Tan Bomping guilty of the crime of the falsification of publicdocuments and hereby sentenced him to suffer prision correccional for the term offour years, nine months, and eleven days, and to pay a fine of 250 pesetas , withsubsidiary imprisonment in case of insolvency, and to pay one-fifth of the costs of

both instances. So ordered.**

THE UNITED STATES, plaintiff-appellee,vs.FERNANDO NIETO, defendant-appellant.

Mariano Crisostomo for appellant.Office of the Solicitor-General Araneta for appellee. CARSON, J.: Fernando Nieto, the appellant in this case, was charged with the falsification of a

public document, with abuse of his office as municipal president.

It appears that the accused, who at that time was president of the municipality ofMeycauayan, bought a typewriter for the use of the said municipality for which he

paid $90, gold, and at the same time caused the vendors to sign a receipt and areimbursement voucher setting out the facts connected with the sale of the machineand the amount paid therefor. It appears further that the accused changed the amountas set out in the receipt and voucher from $90, gold, to $95, gold, and on the

presentation of these falsified documents, recovered from the treasurer of the


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municipality the sum of 190 pesos, Philippine currency, in reimbursement of hisexpenditure in the purchase of the machine.

The trial court found the accused guilty of the crime of falsification ofa private document, without aggravating or extenuating circumstances, and sentencedhim to one year eight months and twenty-one days imprisonment (presidiocorreccional) , and to the payment of a fine of 625 pesetas, and to the restitution to themunicipality of Meycauayan of the sum of $5, gold, with the accessory penalties

prescribed by law and the payment of the costs of the trial.We think the evidence of record fully sustains the findings of the trial court, and weare agreed that the documents in question at the time when they were falsified were

private and not public documents, and that the offense was not committed with abuseof a public office. In the purchase of the machine the accused was acting as a private

person and not in his official capacity as municipal president, and the receipt andvoucher at the time when they were altered were merely evidences of a privatetransaction between the accused and the vendors of the machine. They did notemanate from any public office; they were not a part of any public or official record,nor were they certified by any person authorized to certify public documents. Themere fact that they were intended for use in support of a claim against the public funds

could not of itself raise them to the dignity of public documents before they had become a part of some official record, and prior to their certification by some publicofficial clothed with authority for that purpose.

The accused admitted that he had made the alterations in the documents as alleged, but attempted to justify or rather to explain his action by stating that at the time whenhe bought the machine he also bought $5 worth of typewriter supplies; that at the timewhen he recovered the amount paid for the machine he had mislaid his receipt for

these supplies, and believed that without that receipt he could not recover the price paid therefor; and that he altered the receipt and voucher so as to include this $5, notwith any intention of defrauding the municipality, but merely for the purpose ofrecovering from the municipality the full amount he had expended on its behalf.


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Taking this view of the case counsel for the appellant insists that as there was reallyno loss (perjuicio) to the municipality resulting from the alteration of the document,there can be no conviction for that alteration, as loss or damage to a third person is anessential requisite to the crime of falsification of a private document, as defined inarticle 304 of the Penal Code.We, however, are satisfied beyond a reasonable doubt that as a matter of fact theaccused did not pay $5 for the typewriter supplies as he pretends, and that thesesupplies were included in the purchase price of the machine, for which he took theoriginal receipt and disbursement voucher, and therefore it is not necessary toconsider what would have been the legal effect upon the transaction as a criminaloffense had his explanation contained a true relation of the facts.

The judgment of the trial court is affirmed, with the costs of this instance against theappellant. So ordered.

**

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,vs.VICENTE P. CASTRO and PEDRO A. PACANA, defendants-appellants.

G.R. No. 22645THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,vs.ISIDRO ADORABLE and PEDRO A. PACANA, defendants-appellants.G.R. No. 22646 THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,vs.VICENTE P. CASTRO and PEDRO A. PACANA, defendants-appellants.

Troadio Galicano, Teogenes Velez, Manuel Fernandez, Desiderio Rodriguez andVicente Sotto for appellants.

Attorney-General Villa-Real for appellee. MALCOLM, J.: These are five related criminal cases for the crimes of falsification of publicdocuments and estafa committed by means of falsification of public documents, in


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which the accused are Pedro A. Pacana, secretary of the provincial board of Misamis,Isidro Adorable, member of the provincial board of Misamis, and Vicente P. Castro,member of the provincial board of Misamis. Should convictions be sustained, Pacanawill receive sentences totalling forty-four years and five days imprisonment, andAdorable and Castro for the alleged unlawful taking of P25 each will receivesentences of ten years and one day imprisonment.The charge in the first numbered case against Pedro A. Pacana relates to thefalsification by the accused of minutes of the meeting of the provincial board on June9, 1923, for the alleged purpose of permitting the district engineer to incur illegalexpenses in the reconstruction of a provincial road. The charge in the second caseagainst the same accused relates to the falsification of minutes of the provincial board

on June 16, 1923. The charge in the third case against the same accused relates to thefalsification of an excerpt from the minutes of the provincial board of June 9, 1923.And the last two cases, one against provincial board member Isidro Adorable andPedro A. Pacana, and the other against provincial board member Vicente P. Castroand Pedro A. Pacana, relate to the crimes of estafa committed by means offalsification of public documents, whereby it is alleged Adorable and Castro wereeach able to collect the sum of P25 as per diems for two fictitious meetings of the

provincial board. Since the first three cases were tried together and the last two

together, and since the facts of all of them are closely interwoven, for conveniencesake a general statement will first be made, leaving for special mention certaincircumstances affecting particular cases.The provincial board of Misamis is made up of Segundo Gaston, governor, and IsidroAdorable and Vicente P. Castro, members, with Pedro A. Pacana as secretary. The

board as thus composed left on an inspection trip of the province on May 23, 1923. Asession of the board was held in the municipality of Tulisan, Misamis, on June 4,1923. It returned to Cagayan, Misamis, the provincial capital, on the morning of June

18, 1923. Following the arrival of the board at the provincial capital, it was kept busyduring the succeeding days because on June 19, 1923, the Governor-General landed atthe port of Cagayan, because on that day was the Rizal birthday celebration, becauseon June 20, 1923, the Governor-General departed, and because on the same day therearrived the Quezon-Roxas-Osmea-Gabaldon-Guevara party which left on June 21,1923. These facts are not disputed.


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It is likewise admitted that the documents on which the prosecutions are based,Exhibits C, D, Q-3, Y, and X, are actually in existence. It is the theory of the

prosecution that said documents were prepared by the provincial secretary with theconnivance of the members of the provincial board for illegal purposes. Tosubstantiate this theory, attention is concentrated on the following prominent facts:

Exhibits C and D were seen by the chief clerk of the district auditor, Juan Callante, inthe office of Pacana on the afternoon of June 18, 1923. Copies of Exhibits C and Dwere made by a clerk in the office of the district auditor, Juan Borja, on the morningof June 19, 1923. An excerpt from Exhibit C containing resolution No. 224 wasreceived in the office of the provincial treasurer of Misamis before 5:50 o'clock on theafternoon of June 19, 1923. Another excerpt from Exhibit C containing resolution No.225, Exhibit Q-3, the basis of the third prosecution, was received in the office of thedistrict engineer on June 27, 1923, and when the chief clerk of this office noted thedate June 9, 1923, on the minutes and brought it to the attention of the provincialsecretary, the date was changed to June 16, 1923. The mistake of the secretary wasattempted to be rectified by the provincial board on September 20, 1923, by changingthe dates of the excerpts to June 16, 1923, and thus another error was perpetrated.(Exhibit B-2.) The originals of Exhibits C and D have disappeared, possibly through

the machinations of the provincial secretary. The provincial board of Misamis couldnot have celebrated a session at Cagayan before June 18, 1923, because of its absenceon an inspection trip, and could not have celebrated a session on the afternoon of June19, 1923, as claimed by the defense, because of a velada held on the same afternoonin the intermediate school of Cagayan at which the provincial governor and memberCastro were present. And finally, before the district auditor, the three accused re-affirmed the fact that sessions of the provincial board were held on June 9 and 16,1923. (Exhibits J, K, L.)

The theory of the defense is diametrically opposed to that of the prosecution.Defendants thesis is simple and is to the effect that on account of the carelessness ofthe provincial secretary and the amount of work thrown on his inexperiencedshoulders, error was committed, and that, instead of meetings of the provincial board

being held on June 9 and 16, 1923, meetings were in reality held on June 19 and June21, 1923. The bulwark this stand, the defense relies on the following facts:


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could not have been approved at a meeting of the provincial board held on June 9,1923. Also in the same minutes are found data as to letters of the district engineer ofJune 8, 1923, of the Chief of the Executive Bureau, and of the Public UtilityCommissioner. So much for Exhibit C.

As for Exhibit D, on which the second case is founded and having connection withtwo other prosecutions, it shows on its face a regular meeting of the provincial boardof Misamis held at Cagayan on Saturday, June 16, 1923. It discloses action taken onabout fifty resolutions of municipal councils. Included therein is approval of aresolution of the municipal council of salary of June 15, 1923. According to thewitness Sabas Abao, municipal secretary of Salay, this resolution was not placed inthe mails until June 16, 1923, and according to the postmaster of Balingasay, couldnot have left for the provincial capital until June 20, 1923.

As to Exhibit Q-3, the basis of the third prosecution, it purports to be an "excerpt fromthe minutes of the regular meeting of the provincial board of Misamis held at Cagayanon Thursday, June 9, 1923." The provincial secretary then certifies to the correctnessof a resolution concerning a "letter dated June 14, 1923, of the district engineer." Theutter impossibility of such approval needs no discussion.

Exhibits Y and X, approved by the provincial governor and certified to as correct and just by the two members of the provincial board, respectively, are provincial vouchersin the usual form calling for services rendered as members of the provincial boardduring the period June 9, 16, 23 and 26, inclusive, at P12.50 a meeting.

According to the prosecution, the motive for the criminal acts was, first, the desire onthe part of the provincial secretary to fabricate resolutions probably with theconnivance of the provincial governor and the members of the provincial board,which would placate the American engineer, Mr. Allen. The motive in the second

place, according to the prosecution, was to permit the members of the provincial board to collect a total of P50 not legally due them. On the other hand, according tothe defense, the cause of the prosecution is the enmity existing between the district


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engineer and the district auditor, and has been brought about as an act of vengeance by the district auditor. Political intrigue is also insinuated.Up to this point, we have endeavored to state briefly and fairly the salient facts oforder as they are pressed upon us by the opposing sides. No comment of anyimportance has been proffered. Having progressed thus far, the case comes down to adetermination of whether there was an international and deliberate falsification of

public documents on the part of the accused, or whether there was merely a humanerror committed, in which criminal intent was wholly lacking.

It must be admitted that the physical facts are mostly in favor of the accused. Thedocuments, Exhibits C and D, could not have been fabricated on June 9 and June 16,if the matters to which they relate were not then before the provincial board for action.Unless by supernatural means, that would be an utter impossibility. Just how we canreconcile these circumstances with the strong oral testimony, mostly circumstantial innature, presented by the prosecution, is hard to say, unless there was exaggeration onthe part of some of the witnesses.

Now as to the motive, recognizing that a quarrel was on between two provincialofficers, and that possibly the provincial board was siding with the district engineerand against the district auditor, just why was it necessary to make meetings out of theair to serve this purpose when actual meetings would have served the same purpose

just as effectively? The resolution approving of the acts of the district engineer had to be made public and copies of it had to be sent to the proper authorities. Just why twomembers of the provincial board would care to certify to the correctness of meetingswhich were never held, in order to benefit themselves in the paltry amount of P25each, when they could have recovered the same amount for actual meetings, is alsodifficult to understand.

The whole case impresses us as a job bunglingly performed by the provincialsecretary. He is a man who should not be entrusted with official responsibility. He hasnone of the qualifications which fit one of public office. But it is a far cry fromhopeless ineptitude and hopeless stupidity to criminal intent and criminal


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responsibility. Still, even under the most favorable aspect, the facts skirt perilouslynear to the Penal Code crime of reckless imprudence.

Ordinarily, evil intent must unite with an unlawful act for there to be crime. Actus non facit reum, nisi mens sit rea . There can be no crime when the criminal mind iswanting. Ignorance or mistake as to particular facts, honest and real, will as a generalrule, exempt the doer from criminal responsibility. The exception, of course, is neglectin the discharge of a duty or indifference to consequences, which is equivalent to acriminal intent. The element of malicious intent is supplied by the element ofnegligence and imprudence.A decision of the supreme court of Spain of December 23, 1885, is in point. Itappeared that one of the clerks in the office of the district court, in spreading upon therecord the proceedings taken for the appointment of a guardian ad litem for certainminor children and the declaration of heirship in their favor entered such proceedingsas of a date anterior to the date on which they were actually entered. The clerk, forthis act, was charged with the falsification of a public document, was convictedof imprudencia temeraria in the court of first instance, and appealed to the supremecourt of Spain, which tribunal in reversing the judgment said in part:Considering that even though in the falsification of public or official documents,

whether by public officials or by private persons, it is unnecessary that there be present the idea of gain or the intent to injure a third person, for the reason that, incontradistinction to private documents, the principal thing punished is the violation ofthe public faith and the destruction of the truth as therein solemnly proclaimed, itmust, nevertheless, be borne in mind that the change in the public document must besuch as to affect the integrity of the same or to change the effects which it wouldotherwise produce; for, unless that happens, there could not exist the essential elementof the intention to commit the crime which is required by article 1 of the Penal Code;

considering that the fact that Don Augustin Montes Moreno set out the proceedings asof a date prior to that on which they actually occurred, and therefore incorrectly, theremaining part of the document being true, ... neither affected the integrity or truth ofsaid proceedings not affected in any essential way their results or effects, it isnecessary to conclude that the criminal intent mentioned in the previous observationwas absent; considering that, even though the accused consciously attached incorrect


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dates to the proceedings, nevertheless that act does not take on the character of acrime, and for that reason the Audiencia de Huelva erred in convicting the accused .. .(See further decision of supreme court of Spain of February 25, 1885; U.S. vs. Mateo[1913], 25 Phil., 324, 334; U.S. vs. Reyes [1902], 1 Phil., 341 ; U.S. vs. Ah Chong[1910] ,15 Phil., 488 ; U.S. vs. Catolico [1911], 18 Phil., 504 ; and Guevara's PenalCode, 2nd edition, pp. 1-3, 401-406.)It is a serious matter to be responsible for sending the accused to prison for longterms. All reasonable doubt intended to demonstrate error and not crime should beindulged in to the benefit of the prisoners at bar. The Government has suffered noloss. If the inculpatory facts and circumstances are capable of two or moreexplanations, one of which is consistent with the innocence of the accused of the

crime charged and the other consistent with their guilt, then the evidence does notfulfill the test of moral certainty and is not sufficient to support a conviction. (U.S. vs.Maao [1903], 2 Phil., 718 .) We cannot bring ourselves to find these accused guiltyon the facts of record.It results, therefore, that we must, as we hereby do, reverse the judgments appealedfrom and acquit the accused of the charges laid against them, with costs de oficio. Soordered.

**

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,vs.SERGIO MENDOZA, defendant-appellant.Vicente T. Velasco, Jr., for appellant.Solicitor General Juan R. Liwag and Solicitor Jose G. Bautista for appellee. PADILLA, J. : Sergio Mendoza was charged with falsification of a public or official document. The

information reads thus

That on or about the 27th of July 1949, in the City of Manila, Philippines, the saidaccused being then employed as inspector of the Division of Sanitary Engineering, ofthe Office of the City Health Officer, in said City of Manila, did then and therewilfully, unlawfully and feloniously commit various acts of falsification on a public
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and official document, to wit: Official Receipt No. 188903-V, issued by the CityTreasurer's Office, City of Manila, by then and there erasing the name "ElenaManansala" and the figure "1.00" therein and afterwards, writing, inserting andintercalating, or, causing it to be written, inserted and intercalated thereon in such away as to change its import and meaning, the words "Roberto B. Alamaden," "forty-six only" and the figure "46" thereby making it appear that said receipt was issued tothe said Roberto B. Almaden and that the latter paid the sum of P46 to the CityTreasurer's Office, when in truth and in fact, as the said accused well knew, OfficialReceipt No. 188903-V was in the name of Elena Manansala as aforesaid and saidreceipt was issued to her when she paid the amount of P1 to the Department ofEngineering and Public Works, in said City, for the issuance of a duplicate copy of a

building fee.

Upon arraignment he entered a plea of not guilty, but on 18 February 1952, the dateset for the trial of the case, with the consent of the trial court and the prosecutingattorney, the defendant, assisted by counsel, entered a plea of guilty for the crime offalsification described and punished in the last paragraph of article 172 of the RevisedPenal Code . Thereupon, the court sentenced him to suffer 4 months and 1 dayof arresto mayor , to pay a fine of P50, or suffer subsidiary imprisonment in case of

insolvency, and costs. From this sentence the defendant has appealed.On 14 June 1952, Vicente T. Velasco, Jr., the attorney de oficio appointed by thecourt, filed a motion stating that he could not find a way to question the legality of the

penalty imposed, which is the only question raised by the appeal. By resolution thecourt directed that the motion of the attorney de oficio be considered as the appellant's

brief. On 17 June 1952, attorney Carlos Perfecto appeared and gave notice of thewithdrawal of the appeal stating that the appellant was ready and willing to serve thesentence imposed on him by the trial court. Acting on this petition the court ordered a

copy thereof be furnished the appellant who was required to comment thereon withinten days from notice. On 16 July 1952 copies of the notice of withdrawal of appealand of the resolution of the court requiring the appellant to comment within ten daysfrom notice were served on him in the municipal jail, Manila Police Department, buthe has failed to do so. On 4 August 1952 the Solicitor General filed the brief for theappellee and the case was set for hearing on 1 October 1952 but no one appeared at
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the hearing. In his brief the Solicitor General recommends that the penalty be not lessthan 1 month and 1 day nor more than 4 months of arresto mayor , as minimum, andnot less than 1 year and 1 day nor more than 1 year and 8 months of prisioncorreccional , as maximum, because the penalty imposed by the lower court is belowthe range provided by law.The trial court allowed the defendant to enter a plea of guilty to a lesser offense forthat of not guilty to a more serious crime previously entered under and pursuant tosection 4, Rule 114. The substitution of plea could not lawfully be made taking intoconsideration the fact that the crime charged in the information is falsification of a

public document. Falsification of a public document by a public officer or employeeor by a private person is a very serious crime punished with prision mayor to its full

extent and with prision correccional in its medium and maximum periods,respectively, and in both with a fine not to exceed P5,000. Being an employee orinspector of the Division of Sanitary Engineering of the Office of the City HealthOfficer the defendant was not a private person. He could be considered as such ifnotwithstanding his government employment he took no advantage thereof incommitting the falsification. The crime of falsification described and punished inarticle 172 of the Revised Penal Code is committed by a private individual who doesany of the falsifications described in the next preceding article in any public or official

document or letter of exchange or any other kind of commercial document; and by a person who, to the damage of a third party, or with intent to cause such damage shallin any private document commit any of the acts of falsification enumerated in the next

preceding article. The last paragraph of article 172 punished a private person whointroduced in evidence in any judicial proceeding and uses any of the false documentsembraced in the next preceding article or in any of the subdivisions of the article. Forthat reason the crime of falsification defined and punished in the last paragraph ofarticle 172 is not necessarily included in the offense charged in the information for

falsification of a public document by a public officer or employee or by a privateindividual. The crime punished in the last paragraph of article 172 of the RevisedPenal Code may be a lesser offense but it certainly cannot be deemed necessarilyincluded in the crime of falsification of a public document by a public officer ofemployee or by a private person. Hence section 4, Rule 144, was misapplied. Underthe view we have taken of the case, neither the penalty imposed by the trial court nor
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that recommended by the Solicitor General is in accordance with law. The penaltyshould be not less than 4 months and 1 day of arresto mayor, as minimum, and notless than 3 years, 6 months and 21 days and not more than 4 years, 9 months and 10days or prision correccional , as maximum, the accessories of the law and a fine ofP50, or subsidiary imprisonment in case of insolvency, and costs.As a general rule, the withdrawal of an appeal before the filing of the appellee's briefis allowed and granted. The presumption is that attorney Carlos Perfecto had theauthority to appear for the appellant. The latter was given an opportunity to disownwhat his attorney had done but has failed to do so. His silence leans towardsconfirmation rather than toward disavowal. Consequently, the motion for dismissal ofthe appeal is granted.

Appeal dismissed.

**

THE UNITED STATES, plaintiff-appellee,vs.TO LEE PIU, defendant-appellant.

Beaumont and Tenney for appellant. Attorney-General Avancena for appellee.

MORELAND, J .:

This is an appeal from a judgment convicting the appellant of the crime of using a false name andsentencing him to 2 months and one day of arresto mayor , to pay a fine of 325 pesetas , withsubsidiary imprisonment in case of nonpayment of the fine, and the costs of the trial.

The appellant was charged with using a false name. The evidence is to the effect that he came tothe Philippine Islands in 1911 and presented a section six certificate, which is attached to the recordas Exhibit A, wherein his name appears as To Lee Piu. Thereafter, he attached to an application fora passport the name Toribio Jalijali. Said application was accompanied by the affidavits of twowitnesses and by a baptismal certificate showing that a person by that name was born in thePhilippine Islands in 1878. On the trial there was no denial of the fact that appellant signed the nameToribio Jalijali to the application for a passport; and the only evidence which may be regarded ashaving been contradicted in the case is that given by the defendant himself when he testified that hewas born in the Philippine Islands, that his name is Toribio Jalijali, that he went to China at an earlyage, and, feeling doubtful as to his ability to prove his right to reenter, applied to the American consulat Canton for a section six certificate; that, on such application, he stated to the consul that his namewas Toribio Jalijali, and that, upon being told by the clerk of the consulate that it was not necessaryto put his surname in such application, wrote therein the Christian name Toribio alone.


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The charge is prosecuted on the theory that To Lee Piu appellant's correct name and that the nameToribio Jalijali is false.

Counsel for appellant maintains that the Government, in order to maintain the action, must prove ( a )that the two names in question were different, and ( b) that the name alleged to be false was in factfalse; and that the failure of the Government to meet these, or either these, requirements must result

in an acquittal.

It is contended on this appeal that the Government did not meet either of these requirements.Counsel says:

Upon the issue as to whether the two names were identical the evidence is to the effect thatTo Lee Piu is the nearest that the word Toribio can be written in Chinese characters, and thatit is the way in which a Chinese interpreter would naturally write such a word.

With respect to the charge that the name used in the application for a passport was a false name,counsel contends that the allegation upon which that charge is based was not proved by theGovernment. He says in brief:

Even were the testimony upon this issue contradictory or doubtful, conceding for the sake ofargument that the two names are legally different, the burden would be clearly upon theGovernment to show which was the true and which was the false name; and having madetheir election and alleged that one of the two names is false, affirmative proof must beintroduced in support of this issue.

We are satisfied on the whole case that the conviction must stand. From the fact and circumstancesin evidence it appears established beyond a reasonable doubt that the appellant used the name ofanother person for the purpose of deceiving Government and, by that deception, to obtain apassport. He came to the Philippine Islands as a Chinese person traveling for curiosity and pleasure.He so represented himself to the American consul at Canton and, by that representation, obtained asection six certificate. In his application for that certificate he stated that he was a Chinese person,and that his name was To Lee Piu .He came to the Philippine Islands upon those representations;and, by virtue of the certificate obtained thereby, was permitted to enter the country. Desiring toreturn to China, or travel in other parts of the world and, at the same time, be permitted to return tothe Philippine Islands at will, he sought to obtain a passport as a citizen of the Philippine Islandsunder the sovereignty of the United States. In order to accomplish his purpose it was necessary forhim to show to the authorities of the Philippine Islands issuing passport that he was in fact a citizenof the Philippine Islands and as such entitled to a passport. He thereupon took unto himself a Filipinoname, one not his own, and made his application for a passport attaching to his application thename Toribio Jalijali.

As to the difference between the two names, To Lee Piu and Toribio Jalijali, a mere glance at, or asingle pronunciation of, the two names serves to demonstrate beyond question their complete

unlikeness. It is true that the name Toribio when pronounced by a Chinaman may sound like To LeePiu. But it must be observed, in the first place, that the name assumed by the appellant and signedto the application for a passport is not Toribio but Toribio Jalijali; and, in the second place, that thename assumed by the appellant in China and that under which he presented himself to the Americanconsul at Canton, was not Toribio nor Toribio Jalijali, but To Lee Piu, thus clearly implying that hebelonged to the family or tribe of To, and, therefore, was not of Philippine origin or birth. The claim ofthe appellant that the clerk of the American consulate at Canton told him that, in making anapplication for a section six certificate it was unnecessary to give his surname, cannot be accepted.Such a contention is so unusual and so opposed to universal experience that it must fall of its own


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weight. It seems incredible that an American consul, or any of his responsible employees, wouldgive such information to a Chinese person applying for the privilege of entering American territory. Itcannot be accepted without strong corroborative proof that an American consul, or his accreditedrepresentative, would inform the appellant that the most important of his two names, his familyname, could be omitted or entirely disregarded in a proceeding having for its main purpose hisidentification. The surname is the only name by which identification is rendered possible. The

Christian name, while being the specific and individual name, is of no value whatever foridentification purposes. One of the most important duties of American officials engaged in permittingthe entry of Chinese persons into American territory is to establish and preserve the identity of theparticular individual to be admitted. Without the ability to identify all control over the admission ofChinese is lost. It is not to be believed that an American official whose duty it is to enforce the lawspertaining to Chinese exclusion and to protect the territory of the United States from an invasion ofChinese laborers, would inform a Chinaman desiring to enter American territory that he mightdispense with the only evidence upon which an identification of him could be based. The Christianname is without value for the purposes of identification until after the surname is known.

That the name Toribio Jalijali was a false name as applied to the appellant in this case is in our judgment beyond question in the record. It is undoubted that To Lee Piu was the name by which theappellant was known in China. It is the name he gave to the American consul and it is the only namehe gave. He alleged that he was born in China in October, 1878, and applied for a certificate whichis required of Chinese persons only. Upon his own statements and the statement of his governmenthe was given a section six certificate. It would seem to us that these facts are sufficient toestablish, prima facie at least, that the appellant is a Chinese person and a Chinese subject; that hewas born in China in October, 1878; and that his name is To Lee Piu. These facts being establishedit is incumbent on the appellant to relieve himself of the charge that, when he stated under oath inhis application for a passport that his name was Toribio Jalijali and that he was born in Santa Cruz,Manila, on the 27th of April, 1878, he did not tell the truth; or to give such proof with referencethereto as would raise in the mind of the trial court a reasonable doubt as to his true name. The onlyevidence offered by the appellant in this connection was a certificate of baptism of an infant namedToribio Jalijali, born in Santa Cruz, Manila, in April, 1878. The names of several witnesses appear inthis certificate. None of them were produced on the trial; nor was it shown that these witnesses, or

any of them, were dead, or that the appellant was unable to procure their presence at the trial. Noeffort was made to find or offer as a witness his alleged father or mother.

On the trial the appellant testified in the Chinese language by means of a Chineseinterpreter. He showed no familiarity with the Spanish language or with any of the Philippinedialects; and the trial court said, with reference to his personal appearance, that so far ascould be judged from all surface characteristics the defendant is in truth and in fact aChinese person as he describes himself in the Philippine Carnival certificate Exhibit A; andadds: "A comparison of the two documents, the certificate Exhibit A and the application forpassport, is alone sufficient to show that the defendant's statements are unworthy ofcredence, that his claim is that he was born m in the Philippine Islands is false, and that thename Toribio Jalijali now claimed by the defendant is false and assumed.

The judgment appealed from is affirmed, with costs against the appellant. So ordered.

**

THE UNITED STATES, Plaintiff-Appellee , v. LOPE ESTRAA, Defendant-Appellant .

Vicente Franco, for Appellant .

Attorney-General Villamor, for Appellee .


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SYLLABUS

1. THE LAW OF PERJURY IN THE PHILIPPINE ISLANDS. The provisions of the Penal Code relative to falseswearing were repealed by Act No. 1697, and this Act now constitutes the general law of perjury in this

jurisdiction. (U.S. v. Concepcion, 13 Phil. Rep., 424.)

2. PERJURY; FALSE TESTIMONY, TO CONSTITUTE PERJURY, MUST BE MATERIAL AND MUST BE SOESTABLISHED. False testimony, in order to become punishable under the law of perjury, must be materialto some issue involved in the cause wherein such false testimony is alleged to have been given; Revised

Statutes, sec. 5392; U.S. v. Landsberg, 23 Fed. Rep., 585; State v. Hattaway, 10 Am. Dec., 580) Materialitymust be established by evidence and can not be left to presumption or inference. (30 Cyc., 1443, and cases

cited.)

3. ID.; "MATERIAL MATTER" DEFINED. The term "material matter" means the main fact which was thesubject of the inquiry, or any circumstance which tends to prove the fact, or any fact or circumstance whichtends to corroborate or strengthen the testimony relative to the subject of the inquiry, or which legitimatelyaffects the credits of any witness who testifies. (In Franklin Country 5 Ohio S. & c. Pl. Dec., 691; 7 Ohio, N.

p., 250; People v. Greenwell, 5 Utah, 112, 13 Pac. Rep., 89.)

4. CRIMINAL PRACTICE AND PROCEDURE; FATAL DEFECTS IN COMPLAINT; OBJECTION ON APPEAL;DEFECTS CURED BY COMPETENT EVIDENCE. Where a complaint is fatally defective, either in form or insubstance, and no objection is taken at the trial but is raised for the first time on appeal, it is not error for

this court to refuse to sustain such objection when the fatal defects are supplied by competent proofs.(Serra v. Mortiga, 204, 204 U.S., 470, reported in 11 Phil., Rep., 762.)

5. ID.; ADMISSIONS BY COUNSEL MADE FOR FIRST TIME ON APPEAL, NOT COMPETENT. A merestatement by the counsel for the accused, made for the first time in his brief on appeal and which would

constitute ground for a conclusion of guilt, can not be accepted by this court as competent proof to supplyfatal defects in the complaint, nor as a basis upon which to sustain conviction. Clayton v. State, 4 Tex, App.,

515.)

6. PERJURY AS DEFINED BY STATUTE; DISTINCTION BETWEEN PERJURY AND FALSE SWEARING. Perjury,as modified by statute, may be define to be the willful and corrupt assertion of a falsehood, under oath oraffirmation administered by authority of law, in a material matter, the offense being enlarged and made to

extend to false oaths other than those taken in the course of judicial proceedings. There is a distinctionbetween perjury and false swearing; the one is stubborn and corrupt, while the other is simply not true and

is lacking the elements which go to constitute the crime of perjury. (Miller v. State, 15 Fla., 577.)

7. CRIMINAL PRACTICE AND PROCEDURE; PROSECUTION FOR PERJURY. In some jurisdictions, aprosecution for perjury is continued until the proceeding in which the perjury is continued until the

proceeding in which the perjury is alleged to the have committed is ended. But, under the law of thePhilippine Islands (Act No. 1697), it is not necessary that the proceeding in which the perjury is alleged tohave been committed be terminated before prosecution for the crime is commenced. (U.S. v. Concepcion,13 Phil. Rep., 424.) The contrary rule obtained under the Penal Code. (U.S. v. Opinion, 6 Phil. Rep., 662;

U.S. v. Adolfo, 12 Phil. Rep., 296.)

D E C I S I O N

TRENT, J. :

The complaint filed in this case is a follows: jgc:chanrobles.com.ph

"That on the 26th of July, 1909, in the municipality of Bacolod, Province of Negros Occcidental, PhilippineIslands, the said Lope Estraa, having been duly sworn as a witness in the Court of First Instance of the saidprovince in criminal case No. 1055 , entitled "United States v. Gil Gamao Et. Al.," 1 for murder, illegally,maliciously, willfully, and falsely testified and declared, under oath, that on the 15th day of May, 1909, oneDionisio Tambolero came to his house in Japitan, within the jurisdiction of the municipality of Escalante, in


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said province, at about 7 p.m. on the said 15th day of May, 1909, and that he remained in the house of thesaid accused (Lope Estraa) until the following day; when, as a matter of fact, and as the accused, LopeEstraa, well knew, the said Dionisio Tambolero was not at Japitan on the said 15th day of May; all of whichwas in violation of the statutes in such case made and provided." cralaw virtua1aw library

The accused was arraigned, plead not guilty, tried, convicted, and sentenced to be confined in the Insularpenitentiary, for the period of one year and one day, and "to hereafter be incapable of holding any public

office or of giving testimony in any court of the Philippine Islands," and to pay the costs of the cause. Heappealed to this court.

The Roman Catholic priest in charge of the parish in the town of Escalante, Province of Occidental Negros,was fatally wounded on the night of May 15, 1909, and died about 5 a.m. on the following morning.Subsequently thereto criminal case No. 1055, wherein the United States was plaintiff and Gill Gamao Et. Al.were defendants, charged with the assassination of the said priest, was instituted in the Court of FirstInstance in the said province. The appellant, Lope Estraa, was called as a witness for the defense in saidcriminal case and after being duly sworn according to law, testified, among other things, that he was thenliving in the barrio of Japitan, jurisdiction of the said town of Escalante, and that one Dionisio Tambolerocame to his house in the said barrio about 7 p.m. on May 15, 1909, and remained there all night, leavingabout 5 a.m. on the following morning. The prosecuting officers, believing this testimony to be false, filed acomplaint against the appellant, charging him with the crime of perjury. On the trial of this case in the courtbelow the appellant again testified that the said Tambolero passed the night of May 15, 1909, at his house,and called as witnesses to corroborate him on this point his wife and stepson who did in fact corroborate the

testimony of the appellant, in that the said Tambolero came to the appellants house and passed the night ofMay 15 there, but they could not specifically state the hour he left the following morning.

Dionisio Tambolero testified in this case that he did not know exactly where the defendants house issituated in the barrio of Japitan and that he never was at any time in the house of the defendant in the saidbarrio; that on the morning of the 15th of May, 1909, he went to the church in Escalante, heard mass, andreturned to his house in the said town of Escalante; that at about 4 oclock in the afternoon he returned tothe sacristia, arriving there about 5 oclock that afternoon, had a conversation with Natalio In son aboutcertain baptisms which had taken place on that afternoon, and that on leaving the sacristia he went to thestore of one Jose Nieva and remained there until about 6:30 or 7 oclock in the evening ; that on leaving thisstore he returned to his own house and later went to the house of his compadre; that he and his family didnot sleep in his own house on the night of May 15 on account of it being used for the storage of tobacco, butthat they did sleep in the next house, which was owned by an employee of his; that the next morning, whenhe was informed by a policeman named Clemente Magallon of what had happened to the priest on the nightbefore, he went direct to the convent, arriving there a few min utes after 5 oclock; that within one -half hourafter he arrived at the convent Gregorio Tudanca gave him some money and sent to a Chinese store to buynails to be used in making a casket for the deceased priest.

According to the testimony of this witness he did not leave the town of Escalante at any time during thenight of May 15, 1909. He was in the sacristia of the church at 4 oclock on the afternoon of May 15, andwas at the convent the following morning just a few minutes after 5 oclock. The testi mony of this witness asto the time he was at the sacristia on the afternoon of the 15th of May is corroborated by the testimony ofNatalio In son, and his testimony with reference to the time he went to the convent on the followingmorning is corroborated in every particular by the testimony of Gregorio Tudanca, Celedonia Samonte, andVicente Olmedo, all of whom testified positively that they saw the said Tambolero at the convent about 5oclock on the morning of the 16th of May assisting in the preparatio n of the body of the deceased priest forinterment. So it has been conclusively established that Dionisio Tambolero did not go to the house of theappellant in the barrio of Japitan on May 15, neither did he spend the night of the 15th of May in theappell ants house. Considering the distance from the appellants house to the town of Escalante, whichrequires at least two and one-half hours, either by land of water, and the difficulties to be encountered inmaking this journey, it was a physical impossibility for Tambolero to have left the house of the appellant atthe time stated by him (the appellant) and to have arrived at the convent at the time he appeared there toassist in the burial of the priest. The appellant, Lope Estraa, did therefore knowingly and intentionallytestify falsely, under oath, before a legally constituted tribunal, when he swore that Tambolero passed thenight of May 15 in his (appellants) house.

The prosecution in this case is based on the said false testimony of the appellant given in criminal case No.1055. It may be inferred that Dionisio Tambolero was a material witness for the prosecution in said criminalcase No. 1055. If said Tambolero did, in fact, testify as a witness for the prosecution in that case, the recordof the case at bar fails to disclose what his testimony was. Tambolero did not state that he was a witness in


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the said murder case (No. 1055), neither did he make any reference to what he knew, if anything, about thecommission of that murder; but on the contrary, reading his testimony alone, it would appear that he knewnothing about the facts surrounding the commission of the crime, as he stated that after leaving the Chinesestore he went to his own house, slept in the house of one of his employees, and was informed the followingmorning by a policeman that the murder had been committed. The only reference to the testimony ofTambolero in said murder case appears in the appellants brief, wherein his counsel states that "In said case(referring to criminal case No. 1055) a witness for the prosecution, called Dionisio Tambolero, testified that

on the night of May 15, 1909, when the murder was committed he saw Mauricio Gamao, with a bolo in hishand, come out of the lower part of the convent." (Mauricio Gamao was one of the defendants charged withthe assassination of the priest in case No. 1055.) If this statement of counsel for the appellant be acceptedas true, then Tambolero did testify that he saw one of the defendants in that case (No. 1055) on the night ofthe murder leaving the lower part of the convent with a bolo in his hand. This statement of counsel will beconsidered later.

Counsel for the appellant insists that the court below should have dismissed this case for the reason that thefacts perjury as defined and punished by Act No. 1697, basing his contention on the ground that in order tosustain a conviction under said Act it was necessary to show that the appellant had testified twice about acertain matter, his latter testimony being contradictory of his former, and as he had only testified once heshould have been charged with the crime of false swearing (false testimonio), under the provisions ofChapter VI of the Penal Code.

Section 3 of Act No. 1697 is as follows: jgc:chanrobles.com.ph

"Any person who, having taken an oath before a competent tribunal, officer, or person, in any case in whicha law of the Philippine Islands authorizes an oath to be administered, that he will testify, declare, depose, orcertify truly, or that any written testimony, declaration, deposition, or certificate by him subscribed in true,willfully and contrary to such oath states or subscribed any material matter which he does not believe to betrue, is guilty of perjury, and shall be punished by a fine of not more than five years; and shall, moreover,thereafter be incapable of holding any public office or of giving testimony in any court of the PhilippineIslands until such time as the judgment against him is reversed." cralaw virtua1aw library

This section specifically provides that any person who has taken an oath before a competent tribunal that hewill testify truly or that any written testimony by him subscribed is true, willfully and contrary to such oath,states or subscribes to any material matter which he does not believe to be true, is guilty of perjury. Thissection does not impliedly require as an essential element of the crime of perjury that a defendant who isprosecuted for having violated these provisions should have testified twice in any case or in anyinvestigation, his second testimony being contradictory of his firs, but he can be charged and convicted ofthe crime of perjury if he willfully testifies, under oath, as provided in said section, to any material matterwhich he does not believe to be true.

In the case of the United States v. Concepcion (13 Phil. Rep., 424), the defendants were inspectors of theelection board in the municipality of Calibo, Province of Capiz, in the election for Delegates held on the 31stof July, 1907. The defendants were accused and convicted for having violated the provisions of the ElectionLaw, in that they refused to inscribe the name of one Esteban Leocario without just cause. The point incontroversy in said case was whether or not Esteban Leocario appeared before the inspectors (the accused)in order to have his name registered in the electoral list. The accused were convicted of having violated theprovision of the Esteban Law and on appeal to this court the sentence and judgment of the lower court wasaffirmed. The defendants having testified in that case the said Esteban Leocario did not appear before themon the day alleged, to have his name registered as an elector, the prosecution filed a complaint against thesaid defendants charging them with the crime of perjury. The fact in controversy in both cases was only one,namely; the appearance or nonappearance of Esteban Leocario before the election inspector. Thedefendants having been convicted of the crime of perjury, they appealed, and this court, in passing upon thequestions involved, said (pp. 425, 429): jgc:chanrobles.com.ph

"The important question in the case, however, is whether this offense is to be punished by the provisions ofthe Penal Code, articles 318 and following, or whether these articles have been impliedly repealed by section3 of Act No. 1697. If the case falls within the provisions of the Penal Code and those provisions are still inforce, the judgment must be reversed, because this case for perjury was tried and decided in the courtbelow before the termination of the case in which the false testimony was given.

x x x


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"Our conclusion is that the articles of the Penal Code relating to perjury have been repealed, and that thecrime is now defined and punished by section 3 of Act No. 1697." cralaw virtua1aw library

So the reason given by counsel for the appellant as to the sufficiency of the allegations in the complaint isuntenable, but there is a good reason why the complaint is insufficient in law, and that is that there is no

allegation in this complaint that the testimony of the appellant in criminal case No. 1055 was material to theissues involved in said case. This question apparently escaped the attention of the trial court, theprosecuting officers, and counsel for the Appellant . It is not mentioned anywhere in the record, nor in thebriefs filed in this court.

As we have said, the appellant willfully and contrary to the oath which he had taken, testified in saidcriminal case No. 1055 that Tambolero came to his house about 7 p.m. on May 15 and remained there until5 a.m. of the next day. This testimony was false, but the record does not disclose (aside from the statementof counsel before mentioned) whether or not this false testimony did affect, or could have in any wayaffected, the questions involved in said murder case.

It is now necessary to determine whether or not the appellant is guilty of the crime of perjury under section3 of Act No. 1697, above quoted (the provisions of the Penal Code with reference to false testimony havingbeen repealed by Act No. 1697), when it is not alleged in the complaint, nor does it appear from the record,that the false testimony given by the appellant in said criminal case No. 1055 was material to the issue

involved therein.

In the absence of a statute to the contrary, it is well settled that an indictment for perjury must showconclusively that the testimony given or assertion made by the defendant and charged to be false wasmaterial to the issue on the trial on which he was sworn or it will be fatally defective. This may be doneeither by a direct allegation that it was material, or by the allegation of facts from which its materiality willappear. (30 Cyc., 1433, and U.S. v. Singleton, 54 Fed. Rep., 488; U.S. v. Cowing, 25 Fed. Cas., No. 14880,4 Cranch C.C., 613; Hembree v. State, 52 Ga., 242; State v. Anderson, 103 Ind., 170; State v. Gibson, 26La. Ann., 71; State v. Williams, 60 Kan,., 837; People v. Ah Bean, 77 Cal., 12; Gibson v. State, 47 Fla.,State v. Cunningham, 66 Iowa, 94; People v. , Collier, 1 Mich., 137; Wood v. People, 59 N.Y., 117; Buller v.State, 33 Tex Cr., 551, and numerous other cases cited.)

No objections to the sufficiency of the complaint made were in the court below, and it is now well settledwas it is not error for this court to refuse to sustain using objection taken for the f irst time on appeal whenthe fatal defects in the complaint are supplied by competence proof. (Serra v. Mortiga, 204 U.S. 420,reported in 11 Phil. Rep., 762.)

The complaint in the case at bar is fatally defective for the want of an allegation that the testimony, allegedto be false, was material to the issues involved in the murder case. Our statute (section 3 of Act No. 1697supra) specifically makes materially an essential element of the crime of perjury and without this the crimecan not legally exist. As no objection to the sufficiency on the complaint was raised this fatal defect couldhave been supplied by competent testimony on the trial.

The materiality of a matter sworn to must be established by evidence and can not be left to the presumptionor inference. (30 Cyv., 1443, and Nelson v. State, 32 Ark., 192; Mackin v. People, 115 III., 312; State v.Aikens, 32 Iowa, 403; Wood v. People, 59 N.Y., 117; Garrett v. State, 37 Tex, Cr., 198.)

The term "material matter" means the main fact which was the subject of the inquiry, or any circumstancewhich tends to prove that fact, or any fact or circumstance which tends to corroborate or strengthen thetestimony relative to the subject of the inquiry, or which legitimately affects the credit of any witness whotestifies. (In re Franklin Country, 5 Ohio S. & C. Pl. Dec., 691; 7 Ohio, N.P., 450; People v. Greenwell, 5Utah, 112, 13 Pac., 89.)

By the common law perjury is the willful and corrupt taking of a false oath, lawfully administered in a judicialproceeding or the course of justice in regard to a matter material to the issue or point of inquiry. (30 Cyc.,1399, and cases cited therein.)

This definition of perjury, as modified by statute, may be more accurately defined to be the willful andcorrupt assertion of a falsehood, under oath or affirmation administered by authority of law, in a materialmatter, the offense being enlarged and made to extend to other false oaths than those taken in the course


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of judicial proceedings. (30 Cyc., 1400, and cases cited.)

In the case of The State v. Hattaway (10 Am. Dec., 580) one Shackleford having been indicated for stealinga cow and afterwards discharged brought an action against the prosecution for malicious prosecution. In thisaction Hattaway was called as a witness and testified that Shackleford purchased the cow in question fromone Carter, and that he was present at the time. Being asked where he lived at the time, he said, "NearCa rters; perhaps within 100 yards;" whereas it was proved that he did not live in the State. The perjury

assigned was his false testimony as to where he lived. The trial court instructed the jury that the testimonywas not material so as to constitute perjury, but the jury thought otherwise and found the defendant guilty.The defendant then moved to set aside the verdict as contrary to the law, and the court in passing upon thismotion said (p. 581): jgc:chanrobles.com.ph

"It seems to be agreed by all the writers on criminal law, that one ingredients in the crime of perjury is thatthe oath relate to some matter material to the question in issue: . . . There can be no doubt but that anextra-judicial oath, or one relating to a matter utterly immaterial, or even an impious oath, taken in idleconversation, may be as offensive in the eye of heaven as the most solemn oath taken in a court of justice.But there are many offenses against morality and religion which are not cognizable in courts of justice. Forsuch offense, a man is answerable only to his God, and not to the laws of his country. . .

"There is no offense the general character of which is better understood than that of perjury; and no pointbetter settled, perhaps, than that the oath must relate to s ome fact material to the issue.

There is a distinction between perjury and false swearing; the one is stubborn and corrupt while the other issimply not true, lacking the elements which go to constitute the crime of perjury. (Miller v. State, 15 Fla.,577.)

Section 3 of Act No. 1697 is a copy, with the necessary changes only, of section 5392 of the RevisedStatutes of the United States. This section (5392) is as follows: jgc:chanrobles.com.ph

"Every person who, having taken an oath before a competent tribunal, officer, or person, in any case inwhich a law of the United States authorizes an oath to be administered, that he will testify, declare, depose,or certify truly, or that any written testimony, declaration, deposition, or certificate by him subscribed istrue, willfully and contrary to such oath states or subscribes any material matter which he does not believeto be true, is guilty of perjury, and shall be punished by a fine of not more than two thousand dollars, andby imprisonment, at hard labor, not more than five years; and shall, moreover, thereafter be incapable ofgiving testimony in any court of the United States until such time as the judgment against him is reversed." cralawvirtua1aw library

The essential parts of this section (5392) and section 3 of Act No. 1697 are exactly the same. It is also truethat section 3 of our perjury law is practically the same as that of nearly all of the States of the Unionwherein materially is made, by statute, an element of the crime.

An essential element of the offense created by the statute (section 5392, Rev. Stat.) is the materially of thematter charged to have been falsely stated. (U.S. v. Landsberg, 23 Fed. Rep., 585.)

In some jurisdictions the prosecution of perjury is continued until the proceeding in which the perjury isalleged to have been committed has been ended, but under our law (Act No. 1697) it is not necessary thatthe proceeding in which the perjury was committed should be terminated before prosecution for that crimeis commenced. (U.S. v. Concepcion, supra.) The contrary rule obtained for prosecution under the provisionsof the Penal Code. (U.S. v. Opinion, 6 Phil. Rep., 662; and U.S. v. Adolfo, 12 Phil. Rep., 296.)

Where materiality is made by statute, as in Act No. 1697, an essential element of the crime of perjury, thedoctrine of the courts that it must be shown by competent proof that the false testimony was material to theissues involved, is settled beyond question. This doctrine pervades the entire adjudged law on the subject."Wherever we more in this department of our jurisprudence we come in contact with it. We can no moreescape from it than from the atmosphere which surrounds us." cralaw virtua1aw library

Aside from the statement of counsel in his brief, heretofore referred to, the prosecution has failed toestablish the legal guilt of the accused of the crime of perjury, inasmuch as it has not been proven in anymanner that the false testimony of the appellant was material in the murder case.

We shall now determine in what way, if any, the said statement of counsel can affect the guilt of theaccused. As we have said, he has not committed a crime (if this statement of counsel does not affect the


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result) for which he can be punished under the law in force in this jurisdiction. In order to sustain aconviction based on a fatally defective complaint, the defects must be supplied by competent proof. Counselin his printed brief in this court states that the witness Tambolero testified in said murder case that whenthe murder was committed he saw one of the defendants come out of the lower part of the convent with abolo in his hand. This is not a confession, as there is a marked difference between a confession and such astatement, but this is purely a statement by counsel made in the appellant court. I t is more than probablethat the appellant himself knows nothing of this statement; no doubt he has never seen the brief filed in this

case. So such a statement made for the first time on appeal is not competent proof to establish the guilt ofthe appellant when such guilt must depend solely upon the said statement. Counsel for appellant was notauthorized by his client to make this statement.

In the case of Sweet Clayton v. State (4 Tex. App., 515), George Spears and Sweet Clayton were indicatedin the district court of Uvalde, Texas, for the crime of conveying, or causing to be conveyed, into the jail ofUvalde Country, certain instrument for the purpose of aiding two prisoners to make their escape. A motionfor the arrest of the judgment was made in the court of appeals, based on the ground of the insufficiency ofthe indictment. The court did not sustain the contention of counsel for the defendants, but on its own motionreversed the judgment on another ground which was not raised by counsel and which referred to theadmission made by defendants counsel, and in passing upon this question the court, speaking through Mr.Justice White, said (p. 518): jgc:chanrobles.com.ph

"The charge of the court, which was otherwise unexceptionable, presents an error which will necessitate areversal of the case. In the fourth subdivision of the charge the jury are told that it is admitted by the

defendants counsel that John Woods and Lark Clayton were prisoners legally confirmed in the count ry jail ofUvalde Country, on an accusation of felony, to wit, theft of a cow. As was said in the case of Nels v. TheState: "The prisoners counsel had no authority to make any statement or admission to supply the palce orhave the force of evidence against him. No confession of theirs could bind or affect him. Their admissionscould not in law prejudice or affect his rights; nor could they be in any wise jeopardized by the assumptionof any grounds whatever upon which his defense may have been placed by his counsel. Whether thosegrounds were correct or incorrect, true or false, was wholly immaterial. That was not the question for theconsideration of the jury, whose duty it was to decide the question of the guilt or innocence upon the law asgiven them by the court, and the evidence as given by the witness, irrespective of any admissions by theprisoners counsel, or any grounds upon which they may have rested his defense." cralaw virtua1aw library

In this case, defendants counsel no doubt admitted in ope n court, at the time the defendant were on trialand in their presence, that the said Woods and Clayton were prisoners legally confined. It does not appearthat the defendants made any objections to the said admission. Notwithstanding all these facts the courtreversed the judgment solely for this reason.

In the case at bar we do not find it necessary to go as far as the Texas court did, for the reason that thestatement of counsel for the appellant was not made in the trial court and this record fails to disclosewhether said statement was made in the presence of the accused; but it does conclusively show that thesame was made for the first time in the printed brief on appeal. So much a statement can not be acceptedas competent proof of supply the fatal defects in the complaint and form the basis upon which a convictioncan be entered.

Our conclusions are, therefore, that the appellant is not guilty of the crime of perjury for the reasons aboveset forth. The judgment is reversed and the appellant acquitted, with costs de oficio.**

various supreme court decisions 2

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