EN BANC
THE
UNITED STATES,
Plaintiff-Appellee,
G.
R.
No. L-5887
December
16, 1911
-versus-
LOOK CHAW
[ALIAS
LUK CHIU],
Defendant-Appellant.
D E C I S I
O N
ARELLANO, C.J.:
The first complaint filed
against the defendant, in the Court of First Instance of Cebu, stated
that
he "carried, kept, possessed and had in his possession and control, 96
kilograms of opium," and that "he had been surprised in the act of
selling
1,000 pesos worth prepared opium."
The defense presented
a demurrer based on two grounds, the second of which was that more than
one crime was charged in the Complaint. The demurrer was sustained, as
the Court found that the Complaint contained two charges, one, for the
unlawful possession of opium, and the other, for the unlawful sale of
opium,
and, as a consequence of that ruling, it ordered that the fiscal should
separate one charge from the other and file a Complaint for each
violation;
this, the fiscal did, and this cause concerns only the unlawful
possession
of opium. It is registered as No. 375 in the Court of First Instance of
Cebu, and as No. 5887 on the general docket of this Court.
The facts of the case
are contained in the following finding of the trial court:
"The evidence, it
says,
shows that between 11 and 12 o'clock a. m. on the present month [stated
as August 19, 1909], several persons, among them Messrs. Jacks and
Milliron,
chief of the department of the port of Cebu and internal revenue agent
of Cebu, respectively, went aboard the steamship Erroll to inspect and
search its cargo, and found, first in a cabin near the saloon, one sack
(Exhibit A) and afterwards in the hold, another sack (Exhibit B). The
sack
referred to as Exhibit A contained 49 cans of opium, and the other,
Exhibit
B, the larger sack, also contained several cans of the same substance.
The hold, in which the sack mentioned in Exhibit B was found, was under
the defendant's control who, moreover, freely and of his own will and
accord
admitted that this sack, as well as the other referred to in Exhibit B
and found in the cabin, belonged to him. The said defendant also
stated,
freely and voluntarily, that he had bought these sacks of opium, in
Hongkong
with the intention of selling them as contraband in Mexico or Vera
Cruz,
and that, as his hold had already been searched several times for
opium,
he ordered two other Chinamen to keep the sack. Exhibit A."
It is to be taken into
account that the two sacks of opium, designated as Exhibits A and B,
properly
constitute the corpus delicti. Moreover, another lot of four
cans
of opium, marked, as Exhibit C, was the subject matter of investigation
at the trial, and with respect to which the chief of the department of
the port of Cebu testified that they were found in the part of the ship
where the firemen habitually sleep, and that they were delivered to the
first officer of the ship to be returned to the said firemen after the
vessel should have left the Philippines, because the firemen and crew
of
foreign vessels, pursuant to the instructions he had from the Manila
customhouse,
were permitted to retain certain amounts of opium, always provided it
should
not be taken ashore.
And, finally, another
can of opium, marked "Exhibit D," is also corpus delicti and
important
as evidence in this cause. With regard to this, the internal revenue
agent
testified as follows:
"FISCAL. What is it?
"WITNESS. It is a can
opium which was bought from the defendant by a secret-service agent and
taken to the office of the governor to prove that the accused had opium
in his possession to sell."
On motion by the
defense,
the court ruled that this answer might be stricken out "because it
refers
to a sale."
But, with respect to this
answer, the chief of the department of customs had already given this
testimony,
to wit:
"FISCAL. Who asked
you to search the vessel?
"WITNESS.
The
internal-revenue
agent came to my office and said that a party brought him a sample of
opium
and that the same party knew that there was more opium on board the
steamer,
and the agent asked that the vessel be searched."
The
defense moved that
this testimony be rejected, on the ground of its being hearsay
evidence,
and the Court only ordered that the part thereof "that there was more
opium,
on board the vessel" be stricken out.
The defense, to
abbreviate
proceedings, admitted that the receptacles mentioned as Exhibits A, B,
and C, contained opium and were found on board the steamship Erroll, a
vessel of English nationality, and that it was true that the defendant
stated that these sacks of opium were his and that he had them in his
possession.
According to the
testimony
of the internal revenue agent, the defendant stated to him, in the
presence
of the provincial fiscal, of a Chinese interpreter [who afterwards was
not needed, because the defendant spoke English], the warden of the
jail,
and four guards, that the opium seized in the vessel had been bought by
him in Hongkong, at three pesos for each round can and five pesos for
each
one of the others, for the purpose of selling it, as contraband, in
Mexico
and Puerto de Vera Cruz; that on the 15th the vessel arrived at Cebu,
and
on the same day he sold opium; that he had tried to sell opium for P16
a can; that he had a contract to sell an amount of the value of about
P500;
that the opium found in the room of the other two Chinamen prosecuted
in
another cause, was his, and that he had left it in their stateroom to
avoid
its being found in his room, which had already been searched many
times;
and that, according to the defendant, the contents of the large sack
was
80 cans of opium, and of the small one, 49, and the total number, 129.
It was established
that the steamship Erroll was of English nationality, that it came from
Hongkong, and that it was bound for Mexico, via the call ports of
Manila
and Cebu.
The defense moved for
a dismissal of the case, on the grounds that the court had no
jurisdiction
to try the same and the facts concerned therein did not constitute a
crime.
The fiscal, at the conclusion of his argument, asked that the maximum
penalty
of the law be imposed upon the defendant, in view of the considerable
amount
of opium seized. The court ruled that it did not lack jurisdiction,
inasmuch
as the crime had been committed within its district, on the wharf of
Cebu.
The Court sentenced
the defendant to five years' imprisonment, to pay a fine of P10,000,
with
additional subsidiary imprisonment in case of insolvency, though not to
exceed one third of the principal penalty, and to the payment of the
costs.
It further ordered the confiscation, in favor of the Insular
Government,
of the exhibits presented in the case, and that, in the event of an
appeal
being taken or a bond given, or when the sentenced should have been
served,
the defendant be not released from custody, but turned over to the
customs
authorities for the purpose of the fulfillment of the existing laws on
immigration.
From this judgment,
the defendant appealed to this Court.
The appeal having been
heard, together with the allegations made therein by the parties, it is
found: That, although the mere possession of a thing of prohibited use
in these Islands, aboard a foreign vessel in transit, in any of their
ports,
does not, as a general rule, constitute a crime triable by the courts
of
this country, on account of such vessel being considered as an
extension
of its own nationality, the same rule does not apply when the article,
whose use is prohibited within the Philippine Islands, in the present
case
a can of opium, is landed from the vessel upon Philippine soil, thus
committing
an open violation of the laws of the land, with respect to which, as it
is a violation of the penal law in force at the place of the commission
of the crime, only the Court established in that said place itself had
competent jurisdiction, in the absence of an agreement under an
international
treaty.
It is also found:chanroblesvirtuallawlibrary
That, even admitting
that the quantity of the drug seized, the subject matter of the present
case, was considerable, it does not appear that, on such account, the
two
penalties fixed by the law on the subject, should be imposed in the
maximum
degree.
Therefore, reducing
the imprisonment and the fine imposed to six months and P1,000,
respectively,
We affirm in all other respects the judgment appealed from, with the
costs
of this instance against the appellant. So ordered.
Torres, Mapa, Johnson,
Carson, Moreland and Trent, JJ., concur. |