FIRST DIVISION
[G.R. No. L-12990. January 21, 1918.]
THE UNITED STATES, plaintiff-appellee, vs. LAZARO JAVIER ET
AL., defendants-appellants.
Modesto Castillo, Eusebio Lopez and G.N. Trinidad for appellants.
Acting Attorney-General Paredes for appellee.
SYLLABUS
1. THEFT OF LARGE CATTLE; PROOF. — A carabao, seen in the
possession of the accused and later found tied in front of a house, was
identified as the carabao, which had been taken from the corral of Doroteo
Natividad. Held: That the accused having offered no satisfactory explanation
for their possession of the carabao, they can properly be convicted of the
crime of theft.
2. CONSTITUTIONAL LAW; CONFRONTATION OF WITNESSES. —
There are two principal reasons for the provision of the Philippine Bill of
Rights which says: "That in all criminal prosecutions the accused shall enjoy
the right . . . to meet the witnesses face to face." The first reason is the right
of cross-examination, and the second is that the tribunal may have before it
the department and appearance of the witness while testifying.
3. ID.; ID. — Exhibit B of the prosecution is the sworn statement
before the justice of the peace of the municipality of Santo Tomas, Province
of Batangas, of the sergeant, now deceased, who was the leader of the
patrol of the Constabulary which encountered the accused, and whose
signature was identified. Held: That Exhibit B was improperly received in
evidence in the lower court.
DECISION
MALCOLM, J : p
We find the proven facts as brought out in the trial of this case to be as
follows.
Doroteo Natividad on the afternoon of October 22, 1915, fastened his
carabao valued at P150 in his corral situated in the barrio of Trapiche,
municipality of Tananuan, Province of Batangas. On the following morning
when he went to look after the animal, he found the gate to the corral open
and that the carabao had disappeared. He reported the matter to the
Constabulary, and a patrol of the Constabulary under the leadership of
sergeant Presa, now deceased, on the 20th of November following,
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encountered the accused Lazaro Javier, Apolinario Mendoza, and Placido de
Chavez leading a carabao. When the ladrones saw the Constabulary, they
scattered in all directions. On the following day, the Constabulary found this
carabao tied in front of the house of one Pedro Monterola in the barrio of
Santa Clara, municipality of San Pablo. The carabao was identified by
Doroteo Natividad as the one which had been taken from his corral on the
night of October 22, 1915, and by the Constabulary as the one seen in the
possession of the accused.
As corroborative of such evidence, we have the well-known legal
principle, which as applied to cases of this character is that, although the
persons who unlawfully took a certain carabao are not recognized at the
time, and their identify remains entirely unknown, nevertheless, if the stolen
animal is found in the possession of the accused shortly after the
commission of the crime and they make no satisfactory explanation of such
possession they may be properly convicted of the crime. (See U.S. vs. Divino
[1911], 18 Phil. 425.) In the present instance, the attempt of the accused to
insinuate that one of the Constabulary soldiers testified against them falsely
because of enmity is hardly believable.
The foregoing statement of the facts and the law disposes of all but
one assignment of error, namely, that the lower court erred in admitting
Exhibit B of the prosecution as evidence. Exhibit B is the sworn statement of
sergeant Presca, now deceased, whose signature was identified, before the
justice of the peace of the municipality of Santo Tomas, Province of
Batangas. Appellant's argument is predicated on the provision of the
Philippine Bill of Rights which says, "That in all criminal prosecutions the
accused shall enjoy the right . . . to meet the witnesses face to face," and
the provision of the Code of Criminal Procedure, section 15 (5), which say
that "In all criminal prosecutions the defendant shall be entitled: . . . to be
confronted at the trial by and to cross-examine the witnesses against him."
With reference to the clause of the Bill of Rights, which we have quoted,
Justice Day said in a case of Philippine origin (Dowdell vs. U.S. [1911], 221
U.S. 325) that it "intends to secure the accused in the right to be tried, so far
as facts provable by witnesses are concerned, by only such witnesses as
meet him face to face at the trial, who give their testimony in his presence,
and give to the accused an opportunity of cross-examination. It was intended
to prevent the conviction of the accused upon depositions or ex parte
affidavits, and particularly to preserve the right of the accused to test the
recollection of the witness in the exercise of the right of cross-examination."
In other words, confrontation is essential because cross-examination is
essential. A second reason for the prohibition is that a tribunal may have
before it the deportment and appearance of the witness while testifying.
(U.S. vs. Anastasio [1906], 6 Phil., 413.) The Supreme Court of the Philippine
Islands has applied this constitutional provision on behalf of accused persons
in a number of cases. (See for example U.S. vs. Tanjuanco [1902], 1 Phil.,
374; U.S. vs. Bello [1908, 12 Phil. 87.) It is for us now to determine whether
the present facts entitle the accused to the protection of the Bill of Rights or
whether the facts fall under some exception thereto.
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The sworn statement of Presa was not made by question and answer
under circumstances which gave the defense an opportunity to cross-
examine the witness. The proviso of the Code of Criminal Procedure as to
confrontation is therefore inapplicable. Presa's statement again is not the
testimony of a witness deceased, given in a former action between the same
relating to the same matter. Consequently, the exception provided by
section 298. No. 8, of the Code of Civil Procedure and relied upon by the
prosecution in the lower court is also inapplicable. Nor is the statement of
Presca a dying declaration or a deposition in a former trial or shown to be a
part of the preliminary examination. Under these circumstances, not to
burden the opinion with an extensive citation of authorities, we can rely on
the old and historic case of R. vs. Paine (1 Salk., 281 [King's Bench Div])
occurring in the year 1696. It Bristol under oath, but not in P's presence, was
offered. It was objected that B, being dead, the defendant had lost all
opportunity of cross-examining him. The King's Bench consulted with the
Common Pleas, and "it was the opinion of both courts that these depositions
should not be given in evidence, the defendant not being present when they
were taken before the Mayor and so had lost the benefit of a cross-
examination." Although we are faced with the alternative of being unable to
utilize the statements of the witness now deceased, yet if there has been no
opportunity for cross-examination and the case is not one coming within one
of the exceptions, the mere necessity alone of accepting the statement will
not suffice. In fine, Exhibit B was improperly received in evidence in the
lower court.
With such a resolution of this question, we could, as has been done in
other cases, further find this to be versible error and remand the case for a
new trial. We are convinced, however, that this would gain the accused
nothing except delay for the testimony of the owner of the carabao and of
the two Constabulary soldiers, rebutted by no reasonable evidence on behalf
of the accused, is deemed sufficient to prove guilt beyond a reasonable
doubt.
The facts come under article 518, No. 3, connection with article 520, as
amended, of the Penal Code. Accordingly the defendants and appellants are
each sentenced to four years, two months, and one day of presidio
correccional, with the accessory penalties provided by law, and to pay one-
third part of the costs of both instances; the carabao shall be returned to
Doroteo Natividad, if this has not already been done. So ordered.
Arellano, C.J., Torres, Johnson, Carson, Araullo, Street, and Avanceña,
JJ., concur.
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