EN
BANC
THE
PEOPLE OF THE
PHILIPPINE ISLANDS,
Plaintiff-Appellee,
G.
R.
No. 38021
January
16, 1934
-versus-
JOSE
TOPACIO AND
HUGO SANTIAGO,
Defendants-Appellants.
D
E C I S I
O N
VICKERS,
J :
The appellants, Jose Topacio
and Hugo Santiago, were charged in the Court of First Instance of
Manila
with the crime of libel committed as follows:
"That on or about and
during the month of November, 1931, in the City of Manila, Philippine
Islands,
and within the jurisdiction of this Court, the said Jose Topacio,
conspiring
and confederating with Hugo Santiago who was and is the owner and
manager
of the General Printing Press, a concern doing printing business in
said
city, and both defendants helping one another, did then and there
willfully,
unlawfully, feloniously, maliciously and for the purpose of impeaching
the reputation, integrity and honesty of Filemon Perez, Secretary of
Commerce
and Communications of the Philippine Government, both as Government
official
and as private individual, and with evident intent to expose him to
public
hatred, contempt and ridicule, write, compose, print, publish,
circulate,
sell, and cause to be written, composed, printed, published, circulated
and sold at P0.20 per copy, a large number of pamphlets titled 'Who
is the "Doctor of Graft" Squandering the Gasoline Funds?" presented
and distributed as a supplement to Justice, a so-called newspaper
published
and edited in the English and Spanish languages and circulated from
time
to time in said City of Manila, copy of which pamphlet is hereto
attached
marked as Exhibit A and made an integral part of this Information; that
with the statements, imputations and contents of said pamphlet, the
said
accused tried to convey to and make believe and did in fact convey to
and
make believe the public, among other things:
"That the
above-named
Filemon Perez, as such Secretary of Commerce and Communications, of his
own initiative, against the usual practice, without the recommendation
of the proper authorities, with damage and embarrassment to the public
service and in violation of the terms and spirit of the trust conferred
upon him by the Philippine Legislation, had authorized and caused the
disbursement
of an enormous sum of money out of the gasoline funds of the Government
for the construction of a first class road known as the España
Extension
Road and a reinforced concrete bridge which connect the City of Manila
with the New Manila Subdivision, merely to increase the selling value
of
the lots in said subdivision and consequently the profits of the
private
owners thereof, in consideration of a bribe given by said owners to
said
Filemon Perez consisting in the free use by the latter and his family
of
a costly and luxuriously furnished palatial residence located at No.
909
Taft Avenue, the property of the owners of the said subdivision,
without
paying for its rent and for the water consumed which said accused
estimate
at not less than P9,000 per annum;
"That said Filemon
Perez being the officer called upon by law to approve Government
contracts
for the purchase of supplies and materials and public constructions
representing
millions of pesos, must have entered in doubtful and shady contracts or
deals which enabled him to make a cash deposit of P24,000 in his bank
account,
as transactions in cash covering big sums involve, as a general rule,
grafts
and crimes, as shown in the cases of the former Secretary of Interior
Albert
Fall of President Harding's cabinet, and of Al Capone, the well known
and
notorious gangster;
"That said Filemon
Perez, availing himself of his power and influence, taking advantage of
his official position, in connivance with the Provincial Board of
Tayabas,
his home province, and under the false pretext that the Perez Park at
Lucena
needed enhancement and widening caused the said board to start
condemnation
proceedings of 8,653.80 square meters of a land belonging to Simeon
Perez,
of whom Secretary Perez is the only son and heir, and to pay for said
land,
assessed at P3,011.47, the alleged exorbitant price of P59,749.64,
thereby
profiting himself greatly at the expense of the Government whose
interest
he was called upon to protect;
"That Secretary
Filemon
Perez, in his effort to win notoriety and idolatry from the people,
astonished
the Philippine Islands with his noisy investigations, full of bluff and
devoid of official ethics, when all he deserved was the diploma of
'Doctor
of Graft', and in this connection established a parallel between said
Filemon
Perez and the famous adventurer and greatest impostor of the 18th
century,
Cagliostro, and reminded, as a coincidence, the case of Hamilton who,
according
to said accused, was selling in New York water stock of corporations he
had organized while he was preaching about morality and displaying his
knowledge of proverbs and parables;
"That in the said
pamphlet
the said accused Jose Topacio and Hugo Santiago likewise printed and
caused
to be printed caricatures of the said Filemon Perez and others,
depicting
in an unequivocal manner the accusations and insinuations just
above-mentioned,
which accusations and insinuations are entirely false, without
foundation
of fact and highly libelous and offensive and have been made and
published
by said accused solely for the purpose of impeaching the honesty,
virtue
and reputation of said Filemon Perez and for the further purpose of
exposing
as they did in effect expose, him to public hatred, contempt and
ridicule.
"Contrary to law."
The defendants were tried
on a plea of not guilty to the Information. After considering the
evidence,
the trial judge, E. P. Revilla, found them guilty of the crime of libel
as defined and punished in Sections 1 and 2 of Act No. 277, and
sentenced
Jose Topacio to pay a fine of P1,000; and Hugo Santiago to pay a fine
of
P300, with the corresponding subsidiary imprisonment in case of
insolvency,
and each of them to pay one-half of the costs.
Each of the defendants
filed a Motion for a New Trial in the lower court on the ground that
the
trial judge had committed certain errors, which were specified and
discussed
in the motions. These motions were denied, and the defendants then
appealed
to this Court.
The attorneys for Jose
Topacio make the following assignments of error:
"I. The trial court
erred in denying the accused the right conferred upon him by the
Organic
law, to obtain, through compulsory process, evidence favorable to him
that
was essential in this case, to wit: [a] Halim Ysmael's income tax
return
for the year 1930; [b] Simeon Perez's income tax returns for the years
1929 and 1930, and [c] the report of the Insular Auditor's
investigation
made in connection with the administrative charges filed by Jose
Topacio
against Secretary Perez.
"II. The trial
court
erred in denying the accused herein the due process of law guaranteed
to
him by the Organic Law, by examining and making appear in the records
of
the case the contents of certain documents, examined only by the judge
and by the prosecuting attorney, denying the herein defendant the right
to see the documents in question, as well as his petition to have said
documents placed in a sealed envelope in order to give the appellate
court
the opportunity to examine them.
"III. The trial
court
erred in refusing to admit evidence regarding certain statements in the
pamphlet relative to the investigations made in the Bureau of Posts and
the Bureau of Supply.
"IV. The trial
court
erred in refusing to admit evidence relative to the traffic on the
streets
adjoining Taft Avenue, as well as to the rent of houses situated in the
same locality and similar to the house of Mrs. Magdalena Hemady
occupied
by Secretary Perez.
"V. The trial court
erred in refusing to admit evidence regarding the squandering of the
gasoline
funds by applying them to the construction of a portion of O'Donnell
Street,
within the City of Manila, which leads only to the house of Luis
Francisco,
Secretary Perez's consulting engineer.
"VI. The trial
court
erred in denying the defendant's petition that the report of the
Constabulary
to the effect that Mrs. Magdalena Hemady is paying the gardener of the
house occupied by Secretary Perez be attached to the records of the
case.
"VII. The trial
court
erred in declaring that Secretary Perez's good reputation as to his
honesty
and integrity in general has been proved, and in preventing the defense
from cross-examining and presenting evidence having a direct bearing on
certain acts which would establish the non-existence and falsity of
such
reputation.
"VIII. The trial
court
erred in prohibiting the defense from proving Secretary Perez's
embarrassing
financial situation and the dissolute life he lead during the period
referred
to in the pamphlet.
"IX. The trial
court
erred in denying the defendant his right to be heard by counsel in
support
of his motion for a new trial, also in violation of the Organic law,
and
in refusing to have such denial appear in the records of the case.
"X. The trial court
erred in not finding as true all the facts alleged in the pamphlet,
Exhibit
A, which the defendant has been permitted to prove, and the trial court
erred with respect to those facts which the defendant was not allowed
to
prove, first, in not admitting the evidence presented in connection
therewith,
and secondly, in not finding them as true, inasmuch as it is entirely
unjust
to deny him the opportunity to prove them and then to inform him that
they
have not been proved by him.
"XI. The trial
court
erred in not finding that the extension of España Street to New
Manila was the scheme of Secretary Perez's landlady and was carried out
with gasoline funds which he generously released contrary to the
prudent
and wise recommendation of the Director of Public Works, thus favoring
his landlady, benefiting her to the extent of millions of pesos, and
prejudicing
thereby other public works previously undertaken of much greater
importance.
"XII. The trial
court
erred in finding that Secretary Perez is paying rent for the house
occupied
by him, located at 909 Taft Avenue and belonging to the owner of New
Manila,
and in holding that 'it is of no importance' that the alleged rent
therefor
is low as compared with the rent of other houses of similar character.
"XIII. The trial
court
erred [a] in holding that in the pamphlet, Exhibit A, a libelous
accusation
is made in connection with the amount of P24,000 deposited by Secretary
Perez in his current account with the Philippine National Bank on
January
10, 1930, and in not holding that the amount of P24,000 in question
had,
in fact, a questionable source, as proved by the fact that it was
surreptitiously
returned to the provincial treasury of Tayabas immediately after its
withdrawal
was denounced; and [b] in holding that in the pamphlet in question,
Exhibit
A, Secretary Perez was charged with causing unnecessary expropriation
proceedings
to be instituted with reference to land belonging to his father to
widen
Perez Park for the purpose of enriching the Perez family, and in not
holding
that said expropriation was in fact unnecessarily made, as alleged;
that
there was a complacent official conformity to the exorbitant price paid
therefor, and that, in the final analysis, the person benefited thereby
was Secretary Perez, of whom the members of the provincial board and of
the committee to appraise the property in the expropriation proceedings
of Tayabas are mere followers.
"XIV. The trial
court
erred in holding that there was defamation in the comparisons and
cartoons
contained in the pamphlet, Exhibit A.
"XV. The trial
court
erred in holding that the accused was actuated by implied and express
malice.
"XVI. The trial
court
erred in not freely acquitting the accused, with the costs de oficio."
Hugo Santiago, through
his attorney, alleges that the trial court committed the following
errors:
"I. The trial court
erred in not including in its decision a statement of facts with
respect
to the defendant Hugo Santiago, notwithstanding that he had made a
request
to that effect.
"II. The trial court
further erred in not finding that the defendant Hugo Santiago was not
aware
of the libelous character of the contents of the pamphlet, Exhibit A,
and
that said defendant does not even understand the English language, in
which
it was written by the defendant Jose Topacio.
"III. The trial court
likewise erred in applying the old Libel Law as being more favorable to
the defendant Santiago in the instant case, instead of the Revised
Penal
Code, when as a matter of fact the latter, in repealing the former,
excludes
the mere proprietor of a printing office from those persons responsible
for the publication of a libel.
"IV. And, finally,
the trial court erred in not absolving the defendant Santiago, with all
the pronouncements favorable to him."
The brief filed by the
attorneys for Jose Topacio consists of two volumes and contains a total
of 943 pages, while the brief of the Solicitor-General contains 190
pages.
It was unnecessary to present such prolix written arguments. This case
relates to the official conduct of Filemon Perez as Secretary of
Commerce
and Communications. The gist of the most serious part of the matter
complained
of as libelous is that Secretary Perez squandered the public funds
derived
from the tax on gasoline, referred to as the "gasoline funds", in
extending
España Street to the property of Magdalena de Hemady, known as
the
New Manila Subdivision, in the Municipality of San Juan del Monte,
Rizal
Province, in consideration of a bribe consisting of the free use by
Secretary
Perez and his family of the house of Mrs. Hemady at 909 Taft Avenue.
The
other defamatory matter consists of statements and cartoons implying
that
the cash deposit of P24,000 made by Secretary Perez in the Philippine
National
Bank on January 10, 1931 was derived from some corrupt transaction, and
comparing the conduct of Secretary Perez to that of Ex-Secretary Fall,
Al Capone, and Cagliostro.
The accused Jose
Topacio
was the Director of Posts, or the head of one of the bureaus under the
Department of Commerce and Communications. On May 8, 1929, Filemon
Perez
as Secretary of Commerce and Communications appointed a committee to
investigate
the Bureau of Posts. This committee found many serious irregularities
in
the administration of that bureau, and in submitting its report to the
Governor-General on January 9, 1930, Perez expressed the opinion that
Topacio's
usefulness as Director of Posts had terminated.
Administrative charges
were filed against Topacio, and a civil action was instituted to
recover
an alleged shortage in his accounts. His property was attached. The
result
was that Topacio was forced to resign on March 27, 1930, because he had
lost the confidence of his department head and of the Governor-General,
but he was absolved from the Complaint in the civil suit. The Decision
in that case did not have the effect, however, of exonerating Topacio
from
the administrative charges, but merely exempted him from liability for
the shortage in question.
Aggrieved at the way
in which his administration of the Bureau of Posts had been
investigated
during his absence and his property attached, and because he had been
forced
to resign, Topacio sought to retaliate. He prepared certain data to
induce
some of the members of the Philippine Senate to ask for the
investigation
of the Department of Commerce and Communications, but failing in this
effort
he filed charges against Filemon Perez as Secretary of Commerce and
Communications
with the Governor-General on August 24, 1931. A preliminary
investigation
of these charges was made for the Governor- General by the Insular
Auditor,
and the matter was apparently dropped. Topacio then prepared and caused
his codefendant to publish the pamphlet now in question, which was
widely
circulated.
The defamatory statements
complained of are libelous per se, and the only defense available to
the
accused was to prove the truth of the matter charged as libelous, and
that
it was published with good motives and for justifiable ends, in
accordance
with section 4 of Act No. 277, which provides that in all criminal
prosecution
for libel the truth may be given in evidence to the court, and if it
appears
to the court that the matter charged as libelous is true and was
published
with good motives and for justifiable ends, the party shall be
acquitted;
otherwise he shall be convicted; but to establish this defense, not
only
must the truth of the matter so charged be proven, but also that it was
published with good motives and for justifiable ends.
In the first assignment
of error of the appellant Topacio, it is contended that the lower court
erred in not requiring the production of the income tax returns of
Halim
Ysmael and Simeon Perez and the report of the Insular Auditor as to the
result of his investigation of the administrative charges of Jose
Topacio
against Secretary Perez. The Court was not authorized by law to require
the production of these income tax returns [Act No. 2833, as amended by
Act No. 2926, Section 14 [b], and Sections 11 and 12 of Regulations No.
33 prescribed by the Secretary of Finance]. Furthermore, neither Halim
Ysmael nor Simeon Perez is involved in this case, and their tax returns
were neither relevant nor material. With respect to the preliminary
report
made by the Insular Auditor to the Governor-General, which the Chief
Executive
desired to treat as confidential, it is sufficient to say that, apart
from
the fact this was a confidential report made to the Governor-General,
it
does not appear that this report was relevant or material or
admissible.
The accused in a criminal case does not have the unqualified right to a
subpoena duces tecum for the production in Court of any
document
that he or his attorney may wish to examine, without any showing as to
its relevancy, materiality, and admissibility.
The second assignment
of error relates to the refusal of the trial judge to allow the
attorneys
for Topacio to examine the income tax returns of Felipe Ysmael, Halim
Ysmael,
M. Hemady, and Juan Ysmael & Co. to verify the statement of the
fiscal,
who had examined these returns at the instance of the Court, that there
was no item of P30 for rent in any of them, except in the return of
Juan
Ysmael & Co. for 1930; and the refusal of the lower court to
forward
said income tax returns to this court in a sealed envelope. We find no
merit in the contention of the appellant. The lower court was not
authorized
by law to require the production of these income tax returns at the
instance
of the appellant, and no statement ought to have been made in the
record
based on their contents; but the fact that the statement complained of
was made notwithstanding the objection of the fiscal was not reversible
error.
The lower court did
not err in refusing to receive evidence as to the statements in the
pamphlet
regarding the investigation of the Bureau of Posts and the Bureau of
Supply,
because as libelous in the information.
With respect to Topacio's
fourth assignment of error, we are of the opinion that the lower court
should have admitted the evidence as to the rent of similar houses
situated
near that of Magdalena de Hemady, which was occupied by Secretary
Perez,
but this was not reversible error, because the appellant was permitted
to present expert testimony tending to show the reasonable rental value
of the house in question.
There was no error
in excluding evidence as to the traffic on the streets near to Taft
Avenue.
The evidence as to the traffic on Taft Avenue was, in Our opinion,
irrelevant
and immaterial.
Evidence as to the
construction from gasoline funds of a part of Calle O'Donnell in the
City
of Manila, leading, as claimed by the defense, to the house of Luis
Francisco,
a consulting engineer of the Department of Commerce and Communications,
was properly excluded, because it was irrelevant and immaterial in this
case.
The sixth assignment
of error relates to the refusal of the Court to admit a report of the
Constabulary
tending to show that Magdalena de Hemady was the person paying the
gardener
of the house occupied by Secretary Perez. This report was clearly
inadmissible.
A Court bases its findings on the facts proved at the trial, and not on
the statements made in some report. Furthermore, it was admitted by
Magdalena
de Hemady that she was paying for the services of the gardener and for
the water used in the garden. She explained that the house occupied by
Secretary Perez, No. 909 Taft Avenue, and the house next door, No. 911,
had a garden in common and that there was a separate meter for the
water
used in the garden.
Under the seventh
assignment
of error, it is alleged that the lower court erred in finding that the
good reputation of Secretary Perez was proved, and in refusing to allow
the defense to present evidence as to specific acts which would prove
the
contrary. If it be true that under the circumstances the defense had
the
right, as contended, to present evidence tending to prove specific
instances
of misconduct on the part of the offended party, not related to the
matter
complained of as libelous, it was not reversible error to exclude such
evidence, because the good reputation of the offended party was
presumed,
and it was unnecessary for the prosecution to prove it.
The eighth assignment
of error relates to the refusal of the lower court to permit the
defense
to prove the embarrassing financial situation of Secretary Perez and
the
dissolute life that he was leading during the period referred to in the
pamphlet. Evidence to this effect was irrelevant and immaterial. It was
not related to the matter charged as libelous in the information.
There was no reversible
error in the refusal of the trial judge to give the attorneys for the
appellant
an opportunity to argue orally their motion for a new trial, as alleged
in the ninth assignment of error, because the reasons therefor were set
forth fully discussed in appellant's motion in writing. Furthermore,
the
motion was without merit.
The tenth assignment
of error, which is stated in very general terms, may be disposed of in
a few words. The only question at issue at the trial was the truth of
the
published matter that was charged to be libelous. The defense had no
right
to present evidence tending to prove the truth of the statement in the
pamphlet that were not referred to in the information. It does not
appear
that the appellants were deprived of a full and fair opportunity to
prove
the truth of the libelous statements mentioned in the information.
The eleventh and
twelfth
assignments of error relate to the construction of the extension of
España
Street to the subdivision known as New Manila belonging to Magdalena de
Hemady and the occupation of her house, No. 909 Taft Avenue, by
Secretary
Perez. Topacio alleged in effect in the pamphlet entitled "Who Is
'The
Doctor Of Graft' Squandering The Gasoline Funds", Exhibit A, that
Filemon
Perez as Secretary of Commerce and Communications, of his own
initiative
and against the usual practice, and with prejudice to the public
service
and in violation of the trust reposed in him by the Philippine
Legislature,
authorized and caused the disbursement of large sums of money out of
the
gasoline funds of the government for the construction of a first class
road and a reinforced concrete bridge connecting the City of Manila
with
the New Manila Subdivision merely to increase the selling value of the
lots in said subdivision and the profits of the owners thereof, in
consideration
of a "present" given to him by the said owners consisting of the use by
him and his family of the costly and luxuriously furnished house at No.
909 Taft Avenue without paying any rent therefor; that he should pay
for
this house not less than P9,000 a year; that he accepted the "present"
by occupying the house in consideration of the allotment of gasoline
funds
for the benefit of the private interests of New Manila. These
statements
form the basis of the present criminal action. The truth of them is not
proved by the evidence. The plan of extending Calle España did
not
originate with Secretary Perez or Mrs. Hemady, the owner of the New
Manila
Subdivision. It was contemplated in the Burnham Plan, and the
authorities
concerned had considered the matter at various times long prior to the
appointment of Secretary Perez. Mrs. Hemady was, of course, keenly
interested
in its construction because it would make her property more accessible,
and especially in having the proposed new road pass through her
property,
and she was the person primarily, if not chiefly, benefited. It was the
district engineer of Rizal Province, and not Secretary Perez, that
first
proposed to build the new road through the New Manila Subdivision. The
first allotment of P15,000 from the gasoline funds on December 29, 1928
was made by Secretary Perez after consultation with the Director of
Public
Works for the survey and study of the project. The location of the
proposed
road had not been determined at that time, although it appears that
Mrs.
Hemady or her agents assumed that it would pass through her property
and
published advertisement to that effect. Whether or not the proposed
road
should be built was a matter for the determination of the
administrative
authorities concerned. Certainly the construction of the road out of
the
gasoline funds under the control of the Secretary of Commerce and
Communications
did not under the circumstances constitute any such abuse of discretion
as to warrant the inference that it was built solely for the purpose of
enriching the owners of the New Manila Subdivision or in consideration
of a bribe.
It appears from the
evidence that Mrs. Hemady had constructed a residence in New Manila and
had vacated her house in Taft Avenue, and that she was willing to rent
it to a suitable tenant; that Secretary Perez had to move from the
house
that he had been occupying in Pennsylvania Street because the owner was
returning and wished to occupy it; that Mrs. Perez engaged the house at
909 Taft Avenue about the end of March, 1930 for a rental of P200 a
month,
and the owner agreed to make certain repairs; that Secretary Perez
began
to occupy the house in question on June 1, 1930.
It is contended by
the appellant that Secretary Perez did not pay any rent for the use of
this house, and that if he did pay rent it was less than the reasonable
rental value of the property. The evidence shows that Filemon Perez
paid
rent at the rate of P200 a month. This fact is evidenced not only by
the
receipts presented in evidence, but also by the testimony of Mr. and
Mrs.
Hemady and the fact that Filemon Perez claimed the corresponding
deduction
for rent in his income tax return for 1930, which was filed five or six
months before Topacio presented his charges against Perez to the
Governor-General.
It is a fact that Secretary Perez appears to have been paying less than
the reasonable rental value of the house in question, but the Hemadys
explained
their willingness to accept P200 a month from Secretary Perez because
their
chief concern was to have the house in good hands. If it be true that
the
Hemadys were willing to rent the house to Secretary Perez for somewhat
less than its market value, whatever may have been their reason for
doing
so, that fact does not constitute any proof that Secretary Perez had
allotted
the funds for the construction of the España extension in
consideration
of a bribe. Whether or not under the circumstances he should have
leased
the house of the owner of the New Manila Subdivision is a question of
delicacy.
The mere fact that he leased it for P200 a month did not justify the
defamatory
statements in Exhibit A.
The thirteenth
assignment
of error relates to a deposit of P24,000 in cash made by the Secretary
Perez in his current account in the Philippine National Bank on January
10, 1930 and the expropriation by the provincial board of Tayabas of
certain
land belonging to Simeon Perez, father of the offended party in this
case.
It is alleged that the lower court erred in finding that there was any
defamatory imputation in the pamphlet with respect to this deposit, and
in holding that according to said pamphlet the expropriation had been
made
for the purpose of enriching the Perez family. It is stated in the
pamphlet
that "transactions in cash in such a big amount mean generally an
attempt
or endeavor to hide the source of the fund involved therein; that,
nowadays,
even commercial transactions of small scale are covered by checks, so
the
deposit in cash made by Secretary Perez may be considered as an attempt
to hide the real source of such a deposit of P24,000." The force of the
insinuation is not destroyed by the fact that the writer added that he
did not mean to say that Secretary Perez got the P24,000 in cash from
any
contract or any shady deal, because he went on to say that transactions
in cash covering big amounts involve as a general rule graft and
crimes,
as shown by the case of Ex-Secretary Albert Fall, a member of the
Harding's
Cabinet, and also that of Al Capone, a notorious criminal, whose
transactions
were all in cash, according to the report of the United States Treasury
Department. Following the same tactics, the writer of the pamphlet said
that if it be granted that the case of Secretary Perez was an exception
to the rule, he owed it to himself and to the people to explain the
real
source of such a big deposit in cash, and then attempted to show that
Secretary
Perez could not have legitimately obtained this sum from any source.
The
defendant Topacio then compared the conduct of Secretary Perez to that
of Ex-Secretary Fall, who was convicted of having accepted a bribe in
the
guise of a loan. No argument is necessary to show the defamatory nature
of these statements and their implications.
We do not express any
opinion as to the condemnation proceedings, which apparently are still
pending. Suffice it to say that the evidence does not show that
Secretary
Perez was in any way responsible for the alleged irregularities.
In the
fourteenth
assignment
of error it is alleged that the lower court erred in holding that there
was defamation in the comparisons and cartoons contained in the
pamphlet,
Exhibit A. We have already referred to the comparison drawn between
Secretary
Perez and Ex-Secretary Fall. In the pamphlet Secretary Perez is
compared
both in the text and in the cartoon to Cagliostro, "the greatest
impostor
of the eighteenth century". In another carton, Secretary Perez is
represented
as leaning from the window of his house at 909 Taft Avenue and
shovelling
money from the gasoline funds into the España extension road
leading
to New Manila. This cartoon bears the legend "Very busy granting
allotments
of gasoline funds to España Road". The lower court did not err
in
finding these comparisons and cartoons to be defamatory.
It is contended that
the lower court erred in finding that the accused acted with implied
and
express malice, and in not freely acquitting the accused, with the
costs
de oficio. As We have already stated, the defamatory
statements
complained of are libelous per se. In such a case, malice is implied.
This
implied malice or malice in law was not overcome, because the accused
did
not prove the truth of the libelous matter. Furthermore, the evidence
of
record shows express malice or malice in fact, because it clearly
appears
that the accused Topacio was actuated by a desire to impeach the
reputation,
integrity, and honesty of Secretary Perez as a government official and
to force him to resign because of the alleged misfeasance and
malfeasance
in office.
Coming now to the
contentions
of the attorney for the appellant Hugo Santiago, We find no error in
the
decision appealed from. Article 360 of the Revised Penal Code does not,
as claimed, exempt the person who prints or publishes a libel from
responsibility
therefor. The Spanish text of the first two paragraphs of this article
reads as follows:
"Personas
responsables.
- Es responsable de una difamacion por escrito u otros medios
analogos
el que la publicare o exhibiere o la hiciere publicar o exhibir.
"El
autor o editor de
un libro o folleto, o el director o editor de un diario, revista o
publicacion
por entrega, sera responsable de las difamaciones contenidas en los
mismos
en igual extension que su autor." One meaning of the Spanish verb
"publicar" is: "imprimir o dar a luz cualquier libro,
cualquier
obra dirigida al publico, para que todo el mundo pueda leerla." It
is clear, therefore, that Article 360 includes not only the author or
person
who causes the libelous matter to be published, but also the person who
prints or publishes it. The evidence shows that Hugo Santiago was not
only
the owner of the printing plant where the libelous matter in question
was
printed, but that he was the manager thereof, and examined the
manuscript
of his co-defendant. We cannot credit his testimony to the effect that
he had no knowledge of the contents of the pamphlet in question,
because
he did not understand English. The cartoons alone were sufficient to
give
him an idea as to the contents of the pamphlet. Furthermore, there is
prefixed
to the pamphlet the following statement: "The responsible for this
pamphlet
is Jose Topacio, 219 San Andres, Manila." We do not doubt, judging from
the form of this statement, that it was inserted by the printer himself.
For the foregoing
reasons,
the Decision appealed from is affirmed, with the costs against the
appellants.
Avanceña, C.J.,
Street, Malcolm, Villa-Real, Imperial, and Diaz, JJ., concur. |