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Del Rosario vs Quiogue GR No. L-5461

EN BANC

G.R. No. L-5461 February 28, 1910

PETRONILO DEL ROSARIO, plaintiff-appellee,
vs.
VICENTE QUIOGUE, defendant-appellant.

O’Brien & De Witt, for appellant.
Manuel Torres, for appellee.

ARELLANO, C.J.:

Petronilo del Rosario conducted an undertaker’s establishment as “La Funeraria Paz,” on the Calzada de Bilibid, now Nos. 533 and 535 Calle Paz, in the district of Santa Cruz, for nine years previous to the entry or registration of said name in the registry on the 14th of January, 1909.

His branch establishments at No. 100 Calle Alix, in the district of Sampaloc, and Nos. 148 and 150 of Calle Ilaya, in the district of Tondo also bear the same name.

At the present time the main establishment on the Calzada de Bilibid is located upon other premises on the same street, now named Paz, and on the same sidewalk, about 50 meters beyond the old location at Nos. 513 and 515 on the same street.

The old premises, Nos. 533 and 535, together with No. 537, were occupied by Vicente Quiogue, operating a similar undertaker’s establishment, under the same “La Nueva Funeraria Paz,” with a sign bearing the said name placed in a most conspicuous spot, which name he also used in his advertisements in the local papers.

The name being almost the same, and the establishment being situated in the same place where “La Funeraria Paz” had been located and known for nine years, these facts have actually deceived those who, intending to send their orders to “La Funeraria Paz” of Petronilo del Rosario, inadvertently employed “La Nueva Funeraria Paz” of Vicente Quiogue, and the said establishment thus succeeded in obtaining benefits which should have gone to the real establishment whose services were sought.

In view of the foregoing, Petronilo del Rosario prayed the Court of First Instance of Manila to issue a preliminary injunction and another final one, prohibiting Vicente Quiogue from using the name “Funeraria Paz” in his above-mentioned establishment, and in addition asked that the latter be adjudged to pay P500 as losses and damages, and the costs.

The court below granted the two injunctions with the costs against the defendant, but dismissed the claim for an indemnity for losses and damages, for the reason that they were not proven; from the said judgement the defendant has appealed and submitted his bill of exceptions to his court.

Upon appeal it now appears that the following error has been assigned:

The court below erred in maintaining that the plaintiff had acquired the exclusive right to the use of the word “Paz” in his trade name as against any other person on the same street by reason of the long time he had used said word, and by virtue of the recording of the same in the registry of trade-marks and trade-names, it appearing that “Paz” is the name of the street where the undertaker’s establishment is located.

In support of the above assignment of error, section 2 of Act No. 666 of the Philippine Commission is especially relied upon, in connection with its proviso, which is of the following tenor:

Provided, That a designation or part of a designation which relates only to the name, quality, description of the merchandise or geographical place of its production or origin can not be the subject of a trade-mark.

In accordance with the above provision, the defendant can not be prevented from using the word “Funeraria,” a generic name of the trade, and it was so admitted at the trial; but as the name “Paz,” it does not appear that it is a “geographical name of the place of production or origin of an article,” as in the examples of names rejected in the decisions cited by the appellant, such as “Pennsylvania wheat,” “Kentucky hemp,” “Virginia tobacco,” “Sea-island cotton,” etc.

“Paz” is a name which has been used by the plaintiff to designate his establishment, not necessarily taken from the name of the street on which it is situated at the present time, since the name of “Paz” was in use when the establishment was located on the Calzada de Bilibid; and while located at the latter place he registered the name and the place became so known in his business papers (Exhibits B and C); the word “Paz” is also applied to his establishments situated on Calle Ilaya in Tondo, and on Calle Alix in Sampaloc, and is still so used.

The following findings of fact are contained in the judgment appealed from: (1) That the words “La Nueva” appear on the sign of the establishment of the defendant, with letters one span in width, and the words “Funeraria Paz” in letters of more than double the size, and identical with those on the sign of the plaintiff’s establishment; (2) that the defendant opened his establishment in the place that was formerly occupied by the plaintiff; and (3) that the defendant, according to his own declaration, had fixed lower rates than those charged by the plaintiff for the services of his establishment.

From all of the foregoing conclusions, the trial court concluded that the use of the words “Funeraria Paz” answered no other purpose than that of making it easy to mistake the defendant’s establishment for that of the plaintiff formerly located in the same place, or so that it might be considered as its successor; that the addition of “La Nueva” was nothing more than a tick employed by the defendant in order to covertly appropriate the trade name of the plaintiff; that the very fact of adding “La Nueva” to the prominent words “Funeraria Paz” on the sign shows how fully convinced he was that, without such an addition, he could not use the said sign which he now considers as a “generic name of the place of production or origin” referred to in said Act No. 666; that the lowering of rates, together with all the circumstances set forth, tended to establish a competition in bad faith; and that the results are as shown by the defendant in his claim for damages by reason of the preliminary injunction, which prevented him for obtaining such beneficial results.

In this instance the defendant insists that the plaintiff should be adjudged to pay him P2,000, by reason of the said preliminary injunction, without any express assignment of error against the judgment which naturally did not grant him an indemnity for the damages claimed by him.

His claim is stated as follows:

It has been shown at the trial by the books of the defendant that, from the 8th to the 24th of January, a period of sixteen days, the collections amounted to P380 Philippine currency; and from January 24, to the day when he testified, February 1, the collections only amounted to P39. Said difference is due to the fact that the defendant had extensively advertised his business under the former name, and because of the injunction he was obliged to commence the business under another name, thus losing the benefit of his advertisements. (Brief, 10.)

Hence, the word “Paz” — as concluded in the judgment appealed from — added to the word “Funeraria” on the sign of the defendant’s establishment, although preceded by the words “La Nueva,” is what attracted clients to the establishment, and not the lower rates charged for services. (B. of E., 14.)

In view of the fact that the only assigned by the appellant has not been proven, the judgment appealed from is hereby affirmed with the costs of this instance against the appellant. So ordered.

Johnson, Carson and Moreland, JJ., concur.

Aramburu vs Ortiz GR No. L-5398

EN BANC

G.R. No. L-5398 January 7, 1910

MATILDE ARAMBURU Y GARCIA, plaintiff-appellant,
vs.
ANGEL ORTIZ, defendant-appellee.

Jose Varela y Calderon for appellant.
Chicote and Miranda for appellee.

TORRES, J.:

On the 4th of October, 1907, counsel for Matilde Aramburu y Garcia presented a written complaint against Angel Ortiz, alleging that in suit No. 2060, brought in the Court of First Instance of Manila by virtue of the claim filed by Angel Ortiz on August 20, 1903, against the heirs of the late Ceferino Aramburu y Lambarri, one of whom is the plaintiff Matilde Aramburu y Garcia, for the recovery of certain moneys, judgment was rendered on the 28th of October, 1905, sentencing the defendants, Ceferino, Josefa, Matilde, Adelaida, Leonor, Encarnacion, Angel, Jose, Carmen, Alfredo, and Julia, all bearing the surname of Aramburu, as heirs of said deceased, to pay to the plaintiff Ortiz the sum of P262,628.19 with the agreed interest of 8 per cent thereon from the 1st of July, 1903, until full payment was made, with costs. It was therein provided, however, that the five last-named defendants, Angel, Jose, Carmen, Alfredo, and Julia Aramburu, being minors, should only be obligated to the extent of the property they respectively inherited from their father. At the request of the plaintiff, Ortiz, the said judgment was amended to read as follows:

For the reasons above set forth, the court orders the said eleven defendant heirs of the late Ceferino Aramburu y Lambarri to pay the plaintiff Ortiz the sum of P345,193.31 and the agreed interest thereon at the rate of 8 per cent from the 1st of July, 1903, until its payment is completed, and to pay costs of the proceedings; provided, however, that the five last-named defendant minors, Angel, Jose, Carmen, Alfredo, and Julia Aramburu, shall only be obligated to pay said money and interests to the extent of the property that they respectively inherited from their father.

The above judgment was affirmed in all its parts by this court,1 and it appears therefrom that Matilde Aramburu, the plaintiff herein, was sentenced to pay Ortiz the sum of P31,381.21, with interest thereon at the rate of 8 per cent from the 1st of July, 1903, until full payment is made, this being one-eleventh part of the aforesaid sum of P345,193.31, total amount of the judgment entered against the eleven defendants in said suit; that for the execution of the said judgment, private property of Matilde Aramburu to the value of P57,031.83 was sold, the sum of P8,331.75 in cash was withdrawn from the Hongkong Bank, and both these amounts were applied to the payment of said judgment, with the exception of P54.66 that was withheld for sheriff’s fees. From this it is seen that Matilde Aramburu has paid Angel Ortiz by reason of said judgment P65,308.92. As the eleventh part corresponding to Matilde Aramburu only amounted to P31,381.21, plus interest thereon from the 1st of July, 1903, until the time of payment, it appears that the creditor Ortiz received, and that Matilde Aramburu paid an excess of P25,561.95, as may be seen from the following statement:

Eleventh part of the capital as per judgment …………………..

P31,381.21

Interest thereon from July 1, 1903, until February 1, 1906, when the sum of P8,031.83, proceeds of the sale of real estate in Titinan, Mabigao, Ologan, and Rangas, all in the municipality of Ligao, Province of Albay, P. I., was applied to the judgment …………………….

6,487.45

Amount of the debt on February 1, 1906 …………..

37,868.66

Proceeds of sales as above ……………………………………………..

8,031.83

Net debit balance on February 1, 1906 ………………

29, 836.83

Interest on the foregoing debit balance from February 1, 1906, to March 30, 1906, when the sum of P8,277.09, balance of the P8,331.75 withdrawn from the Hongkong Bank, was applied to the judgment ……………….………..

372.78

Net debit balance on March 30, 1906 …………………

30,209.61

Net amount in cash collected from the Hongkong Bank ….

8,277.09

Net balance on March 30, 1906 …………………………..

21,932.52

Interest on the foregoing debit balance of P21,932.52 from March 30, 1906, to February 5, 1907, when the sum of P49,000, proceeds of the sale of the rights of Matilde Aramburu y Garcia in the estate of Ceferino Aramburu y Lambarri, in the estate of Doña Josefa Garcia, and in the estate of Jose Ma. Ceballos was applied to the judgment …………………..….

P1,505.53

Net debit balance on February 5, 1907………………..

23,438.05

Amount of the proceeds of the sale of the rights of Matilde Aramburu y Garcia in the estates above referred to ………

49,000.00

Remainder or excess paid by Matilde Aramburu y Garcia to Angel Ortiz by the judgment in civil case No. 2060 ……………………………………………………

25,561.95

That this last sum Matilde Aramburu improperly paid to Angel Ortiz, without being so required in the judgment, and notwithstanding the fact that the creditor Ortiz improperly collected it, he refuses to return the same in spite of the demands made upon him therefor, for which reason the plaintiff prayed that judgment be entered against the defendant Ortiz, sentencing him to refund to the plaintiff the sum of P25,561.95, with the legal interest thereon since the date of the filing of the complaint, and the costs.

In answer to the foregoing complaint, the defendant Ortiz alleged as first defense that he admitted the facts stated in paragraphs 2, 3, 4, 5, and 6 of the complaint, but denied the allegation contained in paragraph 7; he likewise denied the facts alleged in paragraph 8 in so far as they do not conform to those that he would allege as a second defense; he offered a general and specific denial to the allegations in paragraph 9 as well as to those contained in paragraph 10 of the complaint. As a second defense, he alleged that the dispositive part of the judgment rendered in said case No. 2060 and copied in the complaint, finds, among other things that are made an integral part of his answer, the following: The facts thereof conclusively shows that the mercantile relations between the deceased Aramburu and Ortiz, by virtue of the public instrument dated July 15, 1889, were reassumed or continued after the death of the former, between the eleven defendant heirs of the deceased and the said Ortiz, under the same conditions and guaranties as were stipulated in said instrument; that the property of the inheritance of the late Aramburu was in the possession of his heirs Ceferino Aramburu y Garcia, the other defendant heirs, and Jose Rodriguez de Hinojosa, without one or other or any of them having availed themselves of the benefit of inventory or the right to deliberate within the term granted by law; it is evident that they showed their intention not to make use of the same when they held with Ortiz the conferences and agreements that resulted in said transactions and the continuation thereof in the form and to the extent heretofore described, which acts did not constitute the mere keeping or temporary administration of the inheritance; and that, by means of these acts, the eleven defendants assumed the title and quality of heirs of the late Aramburu y Lambarri, and publicly, and in all their business transactions, made use thereof, particularly in such as they had with Ortiz, which acts necessarily imply willingness to accept the inheritance, and constitute the tacit acceptance defined by article 999 of the Civil Code; an acceptance which is pure and simple on the part of the heirs who are of age, and which, according to paragraph 2 of article 992, must be understood as made under benefit of inventory on the part of those who are minors, for the reason that it must carried out by their tutor, Ceferino Aramburu y Garcia, without it appearing that he had secured authority for the purpose from the family council; consequently, the one and the other acceptance, according to its class, should produce the effects respectively defined by articles 1003 and 1023 of said code, for which reason the defendants, as inheriting the assets and liabilities of the deceased, must be considered as continuing to bear the responsibility of the deceased in the business carried on with Ortiz to such extent as may respectively correspond to them, according to the acceptance made by them of the inheritance of their principal; that the Supreme Court, upon affirming the judgment of the court below, advanced as a ground for its decision, among others, the following: It was admitted that the entire assets of “the firm” of The Heirs of C. Aramburu, he name under which the business was carried on after the death of the latter, was the property which the latter had left to his heirs. This property was taken possession of and managed by this new firm. Any of the heirs who participated in these acts accepted the inheritance without benefit of an inventory and became personally responsible for the obligations of the deceased. (Art 999, 1000, Civil Code.) That Ceferino Aramburu for himself and as attorney in fact of all the heirs except Leonor, did participate in these acts, is clearly proved. As to the appellant Leonor, the wife of Jose Rodriguez de Hinojosa, it appears that the latter administered said business for several years while she was in these Islands, and there is sufficient evidence to hold that she consented to the acts performed by her coheirs and accepted the inheritance without benefit of inventory; that from these conclusions there follows the legal consequence that the plaintiff, Matilde Aramburu, was responsible in solidum with her coheirs for the total indebtedness of her deceased father, claimed in the civil case No. 2060; that, with the exception of the sum of P8,277.09, cash, withdrawn from the Hongkong Bank, the defendant has not received any other sum of money from the property of the plaintiff in payment of the judgment rendered in said case No. 2060, since, although the sheriff of Albay offered at public auction certain rights and interests that the plaintiff had or might have over property administered in the proceedings of the intestate estate of Josefa Garcia, the plaintiff’s mother, and in the estate of Ceferino Aramburu y Lambarri, as well as in the estate of Jose Ma. Ceballos, instituted in the Court of First Instance of Albay, as no bidder came forward, Angel Ortiz moved that the said rights and interests of the plaintiff be adjudicated to him at given prices so that they might be applied in part payment of said judgment; but the fact is that he said plaintiff, ignoring all the rights of the defendant Ortiz over said interests sold, claims to still have and maintain all her interest in the property included in said proceedings, and has denied and still denies Ortiz any interest therein, and claimed and still claims to be and continue to be an interested party in said proceedings; and as third defense he alleges that, even on the supposition that the plaintiff had really paid more than she was bound to pay by reason of the judgment in said case No. 2060, she is not entitled to bring any action against the defendant Ortiz to recover the excess; that if such claim existed it should be brought against her codebtors and coheirs sentenced in said case No. 2060, and, in view of what has been set forth, he prays the court to dismiss the plaintiff’s claim with costs against her.

At the trial the plaintiff presented as evidence under Exhibit A all the civil orders involved in case No. 2060 of the Court of First Instance of Manila in which are included the complaint and the judgment rendered therein. Both parties agreed that the accounting set out in paragraph 9 of the complaint was correct.

Counsel for the defendant in turn presented as evidence the original judgment rendered by the lower court and the amended complaint in the said case No. 2060, together with the decision of the Supreme Court for he purpose of proving he fourth allegation of his answer; he also offered as evidence the printed copy of civil case No. 143 in the Court of First Instance of Albay in connection with the estate of the late Jose Ma. Ceballos, reviewed by the Supreme Court under No. 4190,2 wherein Angel Ortiz appears as appellant, and Matilde Aramburu the appellee. The judge below ordered that the original judgment rendered in case No. 2060 be marked as “Exhibit 1,” the amended complaint as “Exhibit 2,” the decision of the Supreme Court in said matter as “Exhibit 3,” and the printed copy of case No. 143 of the Court of Albay as “Exhibit 4.”

On the 5th of March of this year judgment was entered by the trial court absolving the defendant of the previous complaint with the costs against the plaintiff. On the following day counsel for the plaintiff excepted in writing and announced his intention to file and forward a bill of exceptions, and in addition moved that the said judgment be set aside and a new trial granted on he ground that the evidence was insufficient and did not justify the decision of the court below, which decision was furthermore contrary to law; his motion was overruled on the 15th of said month, to which the petitioner excepted and presented in due course the corresponding bill of exceptions which was approved and forwarded to the clerk of this court.

After the record of the suit brought by Angel Ortiz against Josefa Aramburu et al. under No. 2060, for the recovery of a certain sum of money, was returned to the Court of First Instance on April 23, 1907, with certified copies of the judgment and the affirmative decision rendered by this court counsel of one of the defendants, Matilde Aramburu y Garcia, presented a written motion on the 10th of September of the said year, that is to say, four months and a half later, requesting that the said judgment and decision be made clear in the sense that the defendants were sentenced to pay the amount claimed not severally but jointly, that is, that each defendant shall respond for one eleventh part of the debt and the corresponding interest thereon. To this end he alleged that the judgment of the lower court, as affirmed by this court, did not impose an obligation in solidum on said defendants, nor had the plaintiff asked that the payment be ordered made in that manner; that the explanation prayed for did not violate article 1003 of the Civil Code, and that the defendant Matilde Aramburu did not refuse to pay her share with her own property, seeing that the inherited property was not sufficient even though said judgment be made clear, and she only wishes to know the extent of her obligation.

The court, after discussing the matter in its sitting of the 23d of the month of September, resolved to overrule the motion.

Before taking up the question set up in this controversy and in the appeal interposed against the judgment of the court below, we deem it advisable and pertinent to refer to the aforesaid motion which was duly acted upon and finally decided in said resolution, inasmuch as the point for which an explanation was requested (in the sense that the order of payment of the amount claimed in the complaint, as decreed in the judgment affirmed by this court, shall be considered as mancomún, and not in solidum, so that the petitioner would only be responsible for one eleventh part of the debt with interest thereon), was considered in the complaint filed in this new suit as settled and a determining reason for bringing the suit, notwithstanding the said resolution which conclusively overruled her pretension, as may be seen from folio 56 of the record of the principal proceedings, bearing the register number 3134.

With the above preface, and proceeding to an examination of the errors assigned in the judgment appealed from, we find in the appellant’s brief and bill of errors that the following question has been set up: Has the order of payment of the debt contained in the judgment the character of an obligation in solidum, so that Matilde Aramburu, one of the debtors, is under obligation to pay the whole amount of the indebtedness although entitled to claim from her codefendants? The provisions of articles 1084 and 1085 of the Civil Code answer the question in the affirmative.

The question at issue is an hereditary debt, acknowledged after the death of the debtor, the common principal, by six of heirs who are of age and by the representative of the five minors, and as the former accepted the inheritance purely and simply, without the benefit of inventory, since by the acceptance of the inheritance of the late Ceferino Aramburu y Lambarri as made by the said six heirs who are of age, among them being the plaintiff herein, Matilde Aramburu, according to article 1003 of the code they thereupon became liable for all the charges of said inheritance not only with the inherited property but also with their own; for said reason the condemnatory judgment entered in case No. 2060 of the Court of First Instance of Manila, which bears No. 3143 of the general register of this court, was properly executed with regard to the legal portion or interest in the estates of her deceased parents which pertained to Matilde Aramburu, also with regard to her own property, and even such as she was entitled to from the estate of her late husband, Jose Ma. Ceballos.

Granted the foregoing, and as the court must be abide by the express provisions of the law, it must be affirmed that the obligation to pay the large sum in controversy as decreed in the said judgment is in solidum, although it may not be clearly stated therein. The obligation of heirs who accept an inheritance encumbered by debts does not arise from the contracts, but from the law which has established the right to inherit, and has declared that the obligation to pay an hereditary indebtedness is in solidum, as whatever may have been the form in which they accepted the inheritance, and, according to the form of such acceptance, the extent of their respective liability would differ, but the creditor is entitled to claim the entire amount of his credit from any one of the heirs who accepted the inheritance without benefit of inventory, and also from any of the others who received the same with benefit to the extent of their hereditary portion. (Arts. 988, 998, 1003, 1010, 1023, Civil Code.)

It is immaterial to the creditor of the principal what may be the number of the heirs. He has the right to select one or more of them who may inspire him with confidence or offer him better assurances for the collection of his credit. If the debt is a single one, as in the present case, the obligation of the debtors toward the owner of the credit is also one and indivisible. The power to divide the debt between the debtor heirs, as well as the inheritance, resulting from the relations among themselves, can not affect the right of the creditor which already existed before the death of the principal and before the rights of his heirs. There is no law proper reason to compel a creditor to divide his action into the number of heirs a debtor may have, and incur the risks and expenses arising from a multiplicity of suits.

The foregoing is based on various provisions of the Civil Code peculiarly harmonized and interrelated, and particularly on the above-cited articles and articles 1082, 1083, and 1084, the first and last of which are as follows:

ART. 1082. Creditors, recognized as such, may oppose the division of the inheritance until they are paid or the amount of their credits is secured.

ART. 1084. After the division has been made the creditors may demand the payment of their debts in full of any of the heirs who may not have accepted the inheritance under the benefit of inventory, or up to the amount of their hereditary share in case they have accepted it under such benefit.

In either case the defendant shall have a right to notify and summon his coheirs unless, by disposition of the testator or by reason of the division, he alone should be bound to pay the debt.

The supreme court of Spain, in applying the provisions of the above two articles of the code in deciding appeals in causation, established in that of the 9th of January, 1901, the following doctrine:

That the provisions contained in articles 1082 and 1084 of the Civil Code do not restrict or limit in any way the right of the hereditary creditor to exercise the actions derived from his title of credit, and to demand the payment of the amount thereof even when the inheritance remains undivided; inasmuch as the first of said provisions does nothing more than establish in favor of the creditor a faculty which he may or may not use as he wishes, that is, to oppose the division until he has been paid or the amount of his credit has been secured; and the second, namely article 1084, does not subordinate the exercise of his action to the fact that the inheritance has been divided, but sustains the principle that each heir is jointly liable for the hereditary debts, and authorizes the creditor to demand the whole amount of the debt from any of the simple heirs, and grants the defendant the right to notify and summon his coheirs, unless, by disposition of the testator or by reason of the division, he alone should be bound to pay the debt.

In that April 3, 1903, is the following:

That under the provisions of article 1084 of the Civil Code, as construed by recent jurisprudence, each of the heirs is liable in solidum for the hereditary debts.

The provision contained in article 1085 of said code sustains all our findings with regard to the character in solidum of the obligation to pay the credit of Angel Ortiz on the part of the heirs of the deceased debtor, Ceferino Aramburu, inasmuch as, if the creditor is entitled to proceed against any one of the heirs in order to recover the value of his credit, the coheir who has paid more than corresponds to his share in the inheritance may in turn demand his proportionate part of the others.

Therefore, the expression in solidum need not be looked for in a judgment recognizing the validity of an obligation which affects and encumbers an inheritance, but in the substantive law, which, in establishing hereditary right, at the same time proclaimed the joint nature of the obligation on the part of any of heirs to pay the debts of the deceased, without prejudice to the right conferred upon the coheir under article 1085 to demand his proportional part of the others.

The complaint of Ortiz, demanding payment from the heirs of Ceferino Aramburu of the large sum of money that the latter owed him while living, even though it contained no prayer that the heirs be jointly sentenced, was yet sufficient to produce the effect that the judgment rendered in the matter should be considered as involving the character of in solidum, it being in accordance with the law has decreed the joint obligation on the part of the heirs pay the debts of their deceased principal. Nothing in the law provides that the creditor must divide his suit for the recovery of his credit into the number of responsible heirs.

If the obligation in question is per se in solidum, it follows that the judgment rendered in consonance therewith should bear the same character, and that on motion of the creditor is execution may be effected against all or any one of the parties finally sentenced therein. (Sec. 471, Code of Civil Procedure.)

On the other hand it should be noted that the question raised herein has already been overruled and finally negative by the said resolution of this court of September 23, 1907, and that in claiming from Ortiz the restitution of a certain sum which the plaintiff alleges to have paid in excess, she has instituted an improper suit which tends to violate the law that protects the creditor in his relations with the heirs of his deceased debtor, and to discredit or modify a final judgment rendered in accordance with the law, and which must be understood, complied with, and executed in conformity with its precepts.

In view of the foregoing, and considering that the judgment appealed from is in accordance with the law, it is our opinion that the same should be and it is hereby affirmed with the costs against the petitioner. So ordered.

Johnson and Elliott, JJ., concur.

Separate Opinions

MORELAND, J., concurring in the result:

I concur in the result.

I deem it, however, wholly unnecessary to the resolution of this case to refer to the facts upon which was based the decision of the court giving judgment against the plaintiff and others, in order to determine plaintiff’s liability under said judgment. The facts have nothing whatever to do with the liability of the plaintiff herein or the character or the extent thereof. That liability is determined exclusively by the form of the judgment against her. That judgment is not attacked in this action either directly or indirectly. Its legality and correctness are conceded. Its terms are clear and unambiguous. It needs no construction or interpretation. It is plainly and in terms a judgment against several persons for a specified amount. Under the law each one is liable to the judgment creditor for the full amount of the judgment, with the right to contribution to the one who pays more than proportionate share of the same. To admit, when a final judgment comes before us as does the judgment in question, that it is necessary, in order to determine the liability of the persons named therein, to recur to the merits of the cause of which that judgment is a part, is to destroy absolutely the conclusiveness of a final judgement — that feature which alone lends to it its essential value. Such an admission renders uncertain and inconclusive every judgment heretofore or hereafter granted; for to consider the facts from which a final judgment proceeds is to retry the case.

Footnotes

1Ortiz vs. Aramburu, 8 Phil. Rep., 98.

212 Phil. Rep., 271.

Rabino vs Ravida GR No. L-4040

EN BANC

G.R. No. L-4040 January 10, 1910

JOSE RABINO, plaintiff-appellee,
vs.
TOMAS RAVIDA, defendant-appellant.

C. W. Ney for appellant.
Rafael Acuña for appellee.

MAPA, J.:

The object of the complaint in this action is the recovery of 14 carabaos. The trial court rendered judgment sentencing the defendant to return them to the plaintiff, and against said judgment the former has interposed an appeal.

In November, 1904, Tomas Ravida, the defendant herein, filed a complaint with the court of the justice of the peace of Cajidiocan, Province of Romblon, against Francisca Rabino in connection with the delivery of thirteen carabaos, and obtained a final judgment in his favor. As no carabaos were found in the possession of the said Francisca, the sentence was executed by seizing fourteen carabaos that were in the possession of Jose Rabino, the father of said Francisca and plaintiff in the present case. The sheriff who executed that sentence testified at the trial that although Ravida only claimed thirteen and a half carabaos, fourteen were delivered to him, because (sic) no such fraction existed.

The plaintiff alleges that the fourteen carabaos delivered to Ravida were of his sole and exclusive ownership, and not of his daughter Francisca, against whom the said Ravida obtained judgment in the court of the justice of the peace of Cajidiocan. The latter on his part, maintains that said carabaos belong to him as one-half of the product of a caraballa (female carabao) which he delivered to Francisca to keep for breeding purposes on condition that they should divide between them such calves or offspring as it might have.

We have not before us the record of the action brought by Tomas Ravida against Francisca Rabino in the court of the justice of the peace of Cajidiocan, nor the proceedings followed in the execution of the sentence entered therein. But Emiterio Riva, the deputy sheriff who executed the said sentence was presented as witness by the defendant, and it appears from his declaration that when he sought to execute the sentence, Francisca told him that she did not have the single carabao, for which reason the justice of the of the peace “issued another order of execution [these are his own words] not upon Francisca Rabino, but upon Jose Rabino, because the latter was the head of the family, and the former was single and lived under the shelter of her father.” And the witness adds, “in compliance with the second order of execution, the sentence was executed on said carabaos occupied by Jose Rabino.”

The said witness has very clearly stated that the carabaos delivered to Tomas Ravida by virtue of the execution of the sentence against Francisca Rabino were taken, not from the possession of the latter but from that of her father, Jose Rabino, who owned them, or, as asserted by said witness, occupied them; that to his end a second order of execution was, issued, nominally addressed to the said Jose Rabino, and that the only reason that the justice of the peace of Cajidiocan had an acting thus, was the fact that said Rabino is the father of Francisca, and because the latter, being a single woman, lived under the shelter of her father’s roof.

Such a declaration is of great importance as being that made by the officer who executed the sentence entered against Francisca Rabino, and its terms speak fully in favor of the plaintiff herein inasmuch as it was not lawful or proper to issue an execution against him by virtue of a judgment rendered only and exclusively against the former, and much less to dispossess him without due process of law of his carabaos, as occurred by reason of said order of execution. To thus deprive the plaintiff of the carabaos that he possessed was manifestly illegal, therefore he is entitled to recover them from the defendant, who by such unlawful means acquired the possession thereof. (Art. 464, Civil Code.)

The asseveration of the said witness for the defendant that it was the plaintiff herein, not his daughter Francisca, who possessed the fourteen carabaos in question, is fully corroborated by the testimony of other witnesses who testified in the same sense at the trial. Moreover, said witnesses positively aver that said carabaos are the property of the plaintiff. The appellant states in his brief that said witnesses did not know, nor could they know what they were testifying except from hearsay, but he advances no reason whatever in support of such allegation. The truth is that their declarations appear as made from their own knowledge of the matter and not merely from hearsay.

Apart from the declarations of the witnesses above alluded to in connection with the plaintiff’s ownership, it is unquestionable that he is protected by a just and lawful title in that he was in possession of the said carabaos, and it has not been demonstrated that he possessed them with bad faith. It is an express provisions of law that the possession of personal property acquired with good faith, is equivalent to a title thereto. (Art. 464, supra.)

The title set up by the defendant against that of the plaintiff is based on the right accession, because it is said that the carabaos in question were the get of a carabao that 18 years ago he delivered into the care of Francisca Rabino, the daughter of said plaintiff. Such a claim can not prosper except by clear and positive proof that the carabaos above referred to are out of the defendant’s caraballa. It does not suffice to say or prove that the latter had a given number of calves, but it must be shown in addition that such calves are precisely the ones herein referred to, and the record does not contain sufficient evidence of such identification. The declarations of the witnesses for the defendant, given in vague and general terms, do not, nor can they lead to such proof. None of them positively and categorically asserts that said carabaos are the get of caraballa placed by the defendant in the care of said Francisca, and we certainly believed that it would be difficult matter for them to make such an assertion, taking into account that the oldest carabao was but about four years old, the rest being three, two, and one year old only, as testified by the defendant himself. It seems to us that it would be an extraordinary thing if a caraballa could produce fourteen calves in a period of four years, yet this is what would actually appear from the plain statement, made without any explanation whatever, in the written answer of the defendant, that the carabaos above referred to are the product of his caraballa.

In support of his claim he makes the following statement in paragraph 2 of the complaint:

That on the 16th of November, 1904, the defendant, Tomas Ravida, presented a complaint in the court of the justice of the peace of Cajidiocan, Romblon, Philippine Islands, against Francisca Rabino in connection with thirteen carabaos, and she was sentenced to deliver said carabaos to the then plaintiff, Tomas Ravida; the sentence was executed by Emiterio Riva, the sheriff of the said town of Cajidiocan.

Indeed it is not easy to understand how this allegation can constitute evidence of any kind in favor of the defendant. It is set out therein that Francisco Rabino, in an action brought against her by the defendant therein, was sentenced to deliver to the latter thirteen carabaos, but that does not say or mean that the carabaos that were taken from the possession of Jose Rabino to be delivered to the defendant in compliance with said judgment were the property of the defendant and not of Jose Rabino, which is the subject of this controversy. Neither can the other assertion in the appellant’s brief, to effect that Francisca had consented to said judgment, mean such a thing, because from the fact that the latter was obliged to deliver thirteen carabaos it does not follow that the carabaos herein question, which were in the possession of the plaintiff and not of said Francisca, were the property of the defendant, or that they were the identical ones that were the subject of the complaint filed by him against Francisca Rabino. For the rest it is quite unnecessary to say that the judgment entered against the latter should not, nor can it prejudice the plaintiff herein who was not a party to the suit in which the same was rendered. (Par. 2 sec. 306, Code of Civil Procedure.)

The trial judge found that when the delivery of the fourteen carabaos was made to Tomas Ravida, the brands on the same (the property of the plaintiff) were new and most of them recently made, and that they had apparently been branded some three or four days prior to said delivery. This fact is put forward by the appellant as proving that said carabaos did not really belong to the plaintiff Rabino. It seems that the he desired to say by this that if the latter were really the owner of the carabaos he would have branded them long before that date; but if this observation were of any value it would necessarily be against the appellant, inasmuch as said animal did not then bear his brand, old or recent, and the brand they bore was owned by the plaintiff, and duly registered by him in September, 1904.

It is literally stated in the appellant’s brief that —

Two witnesses, the defendant Tomas Ravida and Jose Ramiro, declare that in time of the Spanish Government, that is to say, in the year 1894, when the present plaintiff was a defendant and his property was attached, he declared that the said carabaos all belonged to his daughter Francisca, and that the plaintiff did not in any manner deny such declarations.

He certainly had no need to deny them. If the witnesses refer therein to the carabaos now in question, it is evident that they perverted the truth, inasmuch as the oldest of the animals being but four years old, none of them existed in the year 1894; and if it seems they speak of other carabaos, their testimony is of no importance since it does not refer to the subject-matter of the present litigation.

In view of the foregoing it can not be said that the statement contained in the judgment appealed from, that the fourteen carabaos mentioned in the complaint are the exclusive property of and belong to the plaintiff, and that the defendant Rabino has not shown a better title or right to the said carabaos than the plaintiff, is contrary to the weight of the evidence in the case. After arriving at this conclusion it appears entirely unnecessary to discuss the doctrine established in the said judgment in connection with the statute of limitations of personal property, prescription which has also been considered by the court below as a title of dominion in favor of the plaintiff. We therefore expressly refrain from considering this particular point of the judgment appealed from. The said judgment is hereby affirmed with the costs of this instance against the appellant. So ordered.

Arellano, C. J., Torres, Johnson, and Carson, JJ., concur.

Azardon vs Dionisio Chanco GR No L-4479

EN BANC

G.R. No. L-4479 January 10, 1910

SILVESTRE ARZADON, plaintiff,
vs.
DIONISIO CHANCO, judge of First Instance of Ilocos Norte, and LORENZO BALDUEZA, defendants.

Hartigan, Rohde and Gutierrez for plaintiff.
Lucas Paredes and A. M. Jimenez for defendants.

MAPA, J.:

At the elections held on the 5th day of November, 1907, the petitioner obtained a majority of votes for the office of municipal president of the town of Badoc, Province of Ilocos Norte. A protest was lodged with the Court of First Instance of said province against said elections, in so far as the said office was concerned, by the respondents herein. The protest was presented within the term appointed by the law, alleging as ground therefor, acts which are said to constitute a violation of paragraph 3 of section 30 of the Election Law (Act No. 1582 of the Philippine Commission).

Proceedings were commenced under the provisions of section 27 of the said law, and after consideration of the evidence adduced by both parties, the trial court rendered judgment as follows:

The record discloses that from the year 1903, Silvestre Arzadon was, and still is, the organizer of a body or group of electors for the office of municipal president. He promised that if he should be elected to that office his electors would not be employed in any work for the town, and that if they ever became involved in any court proceedings or with the government, they would be assisted by him, the expenses to be paid out of the funds of the group; that one of the agreements made by the group was to distribute ballots among the electors bearing the names of the persons to be voted for, prior to the former taking the oath prescribed by law; the said electors were instructed to elect no other persons than such as were designated in the ballots; that Silvestre Arzadon held meetings for the purpose of influencing and inducing the electors to vote for certain persons and offered money wherever necessary or to the electors who did not desire employment, etc., etc.

By the foregoing Silvestre Arzadon appears to have violated the provisions of the Election Law which prohibit every action, influence, and promise any kind, for the purpose of obtaining votes. These should indicate the free will of the voters, and for such infractions his election for the office of municipal president of the town of Badoc must be considered illegal.

Therefore, it is decreed by the court that the election of Silvestre Arzadon for the office of president, held on the 5th day of November last, in the municipality of Badoc, Ilocos Norte was not legal, and another special election for the said office must be held at the expense of the said Arzadon who shall not then be eligible, and any vote entered in his favor shall not count; the costs and expenses of these proceedings shall also be charged to him.

Upon being notified of the above decision, Silvestre Arzadon appeared before this court and instituted certiorari proceedings and prayed that said decision to be declared null in so far as it held that he was ineligible for the special election for the office of municipal president of the town of Badoc, as ordered in said judgment, and so far as it provides that said special election be held at his expense. The matter has now been submitted to this court.

Certiorari is the proper remedy whenever an inferior tribunal, board, or officer exercising judicial functions, has exceeded its or his jurisdiction, and no appeal, nor any plain, speedy, and adequate remedy exists to correct such excess or extralimitation. (Secs. 217 and 514, Code of Civil Procedure.) The jurisdiction of Courts of First Instance to hear and decide election contests is exclusive and final (sec. 27 of the Election Law); consequently, decisions rendered by them in the exercise of said jurisdiction can not be reviewed by means of an appeal. As they are not adequate remedy exists, it is evident that they constitute a proper subject for the extraordinary remedy of certiorari. Therefore, if the court below has exceeded his jurisdiction in rendering the above-cited decision it is proper to annul the same by virtue of said proceedings.

It is our opinion of Courts of First Instance to hear election protest is conferred upon them by the aforesaid section 27 of the Election Law, and neither the said section, nor any other legal provision authorizes the court, in deciding such protests, to declare ineligible in future elections the person against whom the protest was presented, nor to sentence him to p ay the expenses of the new election to be held. Hence, the court below had no power to enter such rulings in the case as gave rise to these proceedings, and in consequence thereof said rulings must be entirely annulled.

The said court having ordered a special election, it is a question whether or not he was authorized to do so under the Election Law. But this point in his decision has not been impugned nor appealed from, and can not therefore be subject of ruling in this decision.

The judgment appealed from is hereby annulled in so far as it holds that the petitioner is ineligible at the special election ordered therein, and imposes on him the obligation to bear the expenses of such election, without any special ruling as to the costs in these proceedings. So ordered.

Arellano, C. J., Torres, Johnson, and Carson, JJ.,

US vs San Jose GR No. L-4980

EN BANC

G.R. No. L-4980 January 10, 1910

THE UNITED STATES, plaintiff-appellee,
vs.
IRINEO A. SAN JOSE, defendant-appellant.

Mariano P. Leuterio for appellant.
Attorney-General Villamor for appellee.

ARELLANO, C.J.:

On the 6th of December, 1903, Ireneo San Jose contracted canonical marriage in Manila with Lorenza de los Santos, and on January 1, 1908, while Lorenza Santos was and still living, he contracted a civil marriage in Tayabas with Paz Buenaventura. These facts have been established even by the testimony of the accused himself.

The whole defense rests in that the accused was married the second time under the belief that his first wife, Lorenza Santos, had died in 1905, while he was in Hongkong.

The Court of First Instance of Tayabas, in which the defendant was tried, sentenced him to eight years and one day of prisión mayor with the accessory penalties and costs. From this judgment the accused has appealed to this court.

Under the provisions of article 471 of the Penal Code, which punishes with prisión mayor whomsoever shall contract a second marriage without the former one having been lawfully dissolved, the penalty imposed is in accordance with the law.

That the defendant had no intent to commit the crime is the defense interposed by the accused in alleging that he contracted the second marriage in the belief that Lorenza de los Santos, his first wife, was dead; but this defense, which it was his duty to prove, has no wise been established. All that he states is that while he was in Hongkong the grandfather of Lorenza de los Santos, her guardian, and the father of the accused, wrote to him in November, 1905, informing him of her death; but no one of these letters or persons was offered in evidence to prove such allegation. The only witness who testified to anything of this kind is a painter who, according to his own testimony was not an intimate friend of the accused, and yet, for the only reason that he says he painted defendant’s house in 1903, he received a letter from the accused requesting him to ascertain the whereabouts of Lorenza de los Santos, and, having obtained from her grandfather the information that she was dead, he communicated it to the father of the accused. The following is the testimony of the accused:

One or two weeks after I had received from Lorenza de los Santos her letter of the 24th of September, 1905 (Exhibit No. 3), her guardian, her grandfather, and my father wrote me at once. I then replied requesting my father to give more details of the death and of everything connected with the matter. At the same time I wrote a letter to Pedro Gabriel asking him to investigate the matter.

Pedro Gabriel testified that in 1903 he had painted the house of the accused in Calle Folgueras (the house of Lorenza de los Santos, according to the accused), but that he did not call to see if the person he was looking for was there.

Q. And did you learn about Lorenza in that house?

A. No, sir, I was only asked in the letter to ascertain her whereabouts.

Q. Do you mean to say that she was lost?

A. I don’t know the reason.

Q. Will you repeat here what he stated to you in his letter?

A. He said that he begged me as a favor to ascertain the whereabouts of his wife.

This man — the trial judge says — whose declaration is not all reasonable, showed by his manner when testifying, by his embarrassment and confusion, that he was not declaring the truth, but was simply repeating that he was taught to say.

In order to prove that the second marriage was lawfully contracted, the accused ought to have shown, according to section 3 of General Orders, No. 68, that his first wife had been absent for seven consecutive years up to the time he was married a second time, without his knowing that she was living, or that she was generally believed to be dead, as he also believed, at the time of the second marriage. The record, however, does not contain the least evidence as to the general belief of the death of his first wife, or of the reason for his personal belief with respect to the dissolution, for such reason, of the first matrimonial bond by which he was united to said woman.

The witness Florentino Natividad saw Lorenza de los Santos continuously from the year 1904, when he was introduced to her by her husband, the accused, and also during the following years until 1908, when the accused was arrested.

In this instance the defense assigned as error in the judgment the fact that article 471, instead of article 440 of the Penal Code, was applied.

Article 440 is one of those in chapter 3, title 9 of book 2 of the Penal Code, under the heading of “Crimes of public scandal.” The defense pretends that the crime should be classified as of public scandal, and not as illegal marriage. The said article 440 reads as follows:

He who, being united by an indissoluble religious marriage, should abandon his spouse and contract a new marriage with another person, or vice versa, even though the latter should not be indissoluble, shall incur the penalty of arresto mayor in its maximum degree to prisión correccional in its minimum degree and public censure.

In order to understand how, prior to the promulgation of General Orders, No. 68, cited above, the crime of public scandal, punished by article 440, differed from that of illegal marriage, defined by article 471, the historical antecedents of the provision of law should be recalled; it was a new one in the Penal Code of Spain of 1870, as it was not contained in the code of 1850, and was modified when transferred to the Penal Code of the Philippines.

In Spain, prior to the passage of the law of the 18th of June, 1870, no marriage other than the religious or canonical was recognized as producing juridical and civil effects. Since the enactment of the code, civil marriage was established, and it was the only one producing civil effects. In the judgment of the lawmaker it seemed just that a punishment should be established for “he who being united by an indissoluble canonical marriage, should abandon his spouse and contract a new marriage according to the civil law with another person, or vice versa, even though the religious marriage that he should newly contract were not indissoluble.”

When the Penal Code was promulgated in the Philippines, no marriage other than the religious or canonical was recognized as producing juridical and civil effects. Of the law of the 18th of June, 1870, only chapter 5 on the general effects of marriage, but not the civil marriage itself, which was the main object thereof, was applied to the Philippines. There was therefore no reason to insert in the Penal Code for the Philippines an article similar to that inserted in the code of Spain, in the revision of 1870, a revision brought about through the efforts of the same cabinet minister who countersigned the amendment of June 18, 1870, on the civil marriage.

It may therefore be said that, in the Philippines, there did not exist the same reason that existed in Spain to establish a penalty for an act classified merely as public scandal, as applied to a person who, being married canonically, should again marry civilly, or vice versa, inasmuch as, during the former sovereignty, it was not possible to contract marriage except in the religious or canonical form, which was the only one acknowledged and authorized by the law; and while several forms of marriage are recognized under the present sovereignty, civil effects are produced by all of them. So that neither at the present time is there any reason for the punishment of a crime having merely the character of a public scandal, in so far as it does not interfere with the status of the family, or with family rights, for the reason that only one of the marriages could have produced any legal effect, according to said law of the 18th of June, 1870. Now, as well as formerly, whoever marries in the Philippines without his or her previous marriage having been dissolved, interferes with the status and the family rights created by the first one, and can not be punished otherwise than for bigamy upon contracting a second marriage.

Inasmuch as the judgment appealed from is in accordance with the law and the merits of the case, it is hereby affirmed with the costs of this instance against the appellant, and it is so ordered.

Torres, Mapa, Johnson, Carson, and Moreland, JJ., concur.

US vs Pedro Reyes GR No. L-5141

EN BANC

G.R. No. L-5141 January 10, 1910

THE UNITED STATES, plaintiff-appellee,
vs.
PEDRO A. REYES, defendant-appellant.

Monico R. Mercado for appellant.
Office of the Solicitor-General Harvey for appellee.

TORRES, J.:

Shortly after 9 o’clock of the morning of Monday, the 27th of April, 1908, Panfilo Espinosa, deputy provincial treasurer of Pampanga, appeared at the municipal treasury of Guagua for the purpose of counting the cash in the safe in charge of Pedro A. Reyes, the municipal treasurer, and examining the accounts of the said treasury. Reyes was at his office, but alleging that he had forgotten his keys he asked for a few minutes in order to get them; his absence, however, lasted about forty minutes and as soon as he returned the inspector order him to open the safe and place all the money contained in it on the table. The inspector noticed that Reyes was worried and nervous, and that his pocket were bulging out; that he went to another apartment of the building and brought back an old cigar box without a lid, which contained, when counted, the sum of P1,520; this sum, according to Reyes, was a portion of the municipal funds. Deputy Espinosa observed that Reyes’ trousers pocket no longer bulged out, for which reason he refused to receive the aforesaid amount as being part of the municipal funds, and because the money was not in safe; but as Reyes insisted that the said sum was the amount of certain checks that he had had cashed, it was agreed between them to lay the matter before W. W. Barclay, the provincial treasurer, and to this end Espinosa and Reyes went to San Fernando, the capital of the province, to see the provincial treasurer.

In the presence of the latter, Pedro A. Reyes repeated his statement that the said sum of P1,520 was the value of certain checks, although he was unable to say by whom they were drawn, or where and by whom the same were cashed; he only indicated two persons for P500 each, and the balance he said was cashed at his own house; but the Chinese named Suana and Reyes’ own wife denied having cashed any check. Later on Reyes told Treasurer Barclay that the checks were cashed at the bank in Manila, but that he had forgotten the name of the bank, as well as the name of the person who at his request had gone to Manila to cash them; however, as the investigation proceeded Reyes finally confessed that he had taken the money from the municipal safe and had loaned it to some of his friends residing in the said town, although he could not give their names, but he assumed the responsibility therefor.

During the counting of the cash found in the safe, Treasurer Reyes, between 2 and 3 o’clock in the afternoon, presented the sum of P155.86 which he took from the drawer of the desk of his clerk, Carlos Dyjanco, saying that this amount was a portion of or proceeded from the market collections, and had been in the custody of said clerk from Saturday until Monday, the 27th of said month. The witness, notwithstanding the fact that he was in the office since that morning, and that he witnessed the counting of the money, made no mention of said amount until the afternoon of that day.

Before the counting of the money was finished, Reyes asked if there was still any deficit for him to make up, and in effect, between 3 and 4 p. m., he was told that there was still a shortage of P193. 79; which sum, as soon as he was informed, he took out of his pocket and gave to the said clerk, Dyjanco, directing him to hand over the amount to Espinosa.

At about 9 p. m. on the same day Reyes signed the document offered in evidence as Exhibit A, wherein he himself admitted that he was short in the sum of P1,869.65. He told C. F. Richmond, the district auditor, that he was responsible for the shortage and that assumed the whole responsibility, but he said he could not be prosecuted other than for estafa because he had refunded the money, and prayed that he be not prosecuted before the courts because it would be unpleasant for him as he was a married man.

A complaint was filed by the provincial fiscal on the 2d of June, 1908, with the Court of First Instance of Pampanga, charging Pedro A. Reyes with the crime of misappropriation of public funds under Act No. 1740, and these proceedings were instituted. The trial judge entered judgment on the 13th of October of the same year, and sentenced the accused to the penalty of three years’ imprisonment to pay a fine P1,500, and in case of insolvency to suffer subsidiary imprisonment at the rate of one day for every P2.50 that he failed to pay, which subsidiary imprisonment, however, should not exceed one third of the principal penalty, he further sentenced him to perpetually disqualified for public office and to pay the costs. From said judgment the accused has appealed.

The facts related in the complaint bear the character of the crime misappropriation of public funds, under section 1 of Act No. 1740, enacted October 3, 1907, which reads as follows:

Any bonded officer or employee of the Insular Government, or of any provincial or municipal government, or of the city of Manila, and any other person who, having charge, by reason his office or employment, of Insular, provincial, or municipal funds or property, or of funds or property of the city of Manila, or of trust or other funds by law required to be kept or deposited by or with such officer, employee, or other depositary, fails or refuses to account for the same, or makes personal use of such funds or property, or of any part thereof, or abstracts or misappropriates the same, or any part thereof, or is guilty of any malversation with reference to such funds or property, or through his abandonment, fault, or negligence permits any other person to abstract, misappropriate, or make personal use of the same, shall, upon conviction, be punished by imprisonment for not less than two months nor more than ten years and, in the discretion of the court, by a fine of not more than the amount of such funds and the value of such property.

It appears fully proven in the case that Deputy Inspector Panfilo Espinosa went to the office of the municipal treasurer of Guagua after 9 o’clock on the morning of the 27th of April, 1908; that when the accused Pedro A. Reyes, opened his safe by order of said inspector and counted the money therein, there appeared a shortage of P1,869.65. As this amount was not in the municipal safe the treasurer in charge of its care and custody must be considered as being discovered in default; this he acknowledged himself to be in the document marked “Exhibit A,” drawn up at the time as a result of the inspection, and which was subscribed by the accused. It is undeniable that as a result of the counting of the money, which, by the books of the municipal treasurer of Guagua ought to be in the safe, there appeared a shortage of P1,869.65 which, according to the provisions of section 21 (e) of Act No. 82, should have been kept in the municipal safe, apart from the private funds of the treasurer; the latter was not empowered to dispose of, loan, or use it, except in the manner authorized by law.

The accused pleaded not guilty, and denied the charge imputed to him. His allegations in exculpation were not proven, and indeed he himself contradicted them in his statements to the inspector, the provincial treasurer, W. W. Barclay, to the district auditor, C. F. Richmond, and by the contents of the said document Exhibit A authorized by the accused himself.

By the terms of the said Act, the regulations published by the Insular Auditor, and the circular instructions issued to all treasurer, it was the unavoidable duty of the accused as a treasurer, to deposit all moneys belonging to the municipality, or other Government funds, in the safe kept for that purpose, and which in charge of the officer charged with the custody of the same.

When the accused Reyes was ordered by the inspector Espinosa to produce all the money which, according to the books of the municipal treasury of Guagua, ought to have been in safe under his charge, he was unable to comply with the order, which was a perfectly legal one: the result showed that the said sum of P1,869.65 was missing from the safe, and when asked to explain how and why such part of the funds, which according to the books ought to be found therein, was so missing, after making various vague explanation, he finally stated at the expiration of some hours that he had disposed of part of the money belonging to the safe and had loaned is to certain of his friends in the town, and that although he could not give their names he assumed all the responsibility in the premises; on making this confession he alleged that as he had refunded the money taken from the municipal funds he believed that he could be prosecuted for estafa.

In spite of this, the defense alleged that the money with which the accused Reyes had replaced the amount missing from the municipal safe was in the precincts of the treasury, and should therefore be admitted and considered as forming a part of the funds in said safe.

Act No. 82 and the regulations on the subject prescribe the funds belonging to the treasury must be kept in the safe, with the exception of certain amounts required for the purpose of making change during office hours, and it appears by the confession of the accused himself that he disposed of the missing money for the purpose of loaning it to some of his friends; thus, when the inspector presented himself at his office and ordered him to produce the money, he went back to his house on the pretext of getting the keys, and when he returned more then half an hour later, he brought with him a little less then the amount that was lacking; this he produced in a manner and under conditions that leads to the well-founded presumption that the said sum of P1,520 was not in the office, and that he had been obliged to recover it from the friends to whom he said he had loaned it. From all of the above it is undeniable that said amount did not form part of the municipal funds, nor was it in the office of the municipal treasurer as belonging to such funds at the time when the demand was made, and it must further be taken into account that the sums of P155.86 and P193.79 were still short and were paid some hours later.

Section 2 of Act No. 1740, cited above, provides:

In all prosecutions for violations of the preceding section, the absence of any of the public funds property of which any person described in said section has charge, and any failure or inability of such person to produce all the funds and property properly in his charge on the demand of any officer authorized the examine or inspect such person, office, treasury, or depositary shall be deemed to be prima facie evidence that such missing funds or property have been put to personal uses or used for personal ends by such person within the meaning of the preceding section.

The accused performed the duties of said office for more than three years; therefore he knew perfectly well that it was strictly his duty to keep and maintain in the municipal safe all of such amounts as constituted the funds of the municipality; but having been surprised on that morning by the sudden appearance of the inspector, and by the latter’s peremptory demand to open the safe and produce for the purpose of counting all the money in his charge, he at once understood that he had incurred liability on account of the absence of part of the funds that should have been found therein; even before the money was counted he appeared to be worried and nervous, passing from one side of the house to the other, sweating copiously, and showing by his demeanor that he was not an innocent man; thereafter, in view of the result of the count he subscribed the document marked as “Exhibit A,” admitting that the amount misappropriated was in effect missing from the safe, and confessing at the same time that he had loaned the money of the municipality of some of his friends although he assumed all the responsibility therefor.

So that, the case not only offers prima facie and unimpeached evidence of the crime, under the provisions of the foregoing section 2 of Act No. 1740, but other conclusive proof that the accused disposed of a certain portion of the municipal funds and employed the same for personal and outside uses, other than such as are authorized by law, since it is so testified by Treasurer Barclay, Auditor Richmond, and Inspector Espinosa, competent witnesses who saw the money counted and heard the confession and other statements of the accused at the time when they were exercising their functions.

Even though the confession which the accused made in the presence of the above-named officers only constitutes circumstantial evidence, or raises a grave suspicion as to him, according to law 7, title 13, partida 3, yet it is corroborated however by other circumstantial data showing that the three amounts with which the shortage was covered came from other persons, or from places outside of the treasury building, and it is a fully proven fact, admitted by said accused, that on counting the money which according to the books, ought to have been in the treasury, the amount stated in the said document Exhibit A was missing; thus it was that the accused, being convinced of the truth and reality of the fact, made no objection to signing said document, and for this reason his culpability as the only principal, convicted beyond all doubt of the crime prosecuted herein, can not be denied. The fact that on the same date that the money was counted he refunded the amount that he had misappropriated does not exempt him from responsibility, it having been proven that he had withdrawn the same from the safe and used it for personal or for outside purposes, without warrant, and in manifest violation of the law requiring that all public funds, including municipal funds, shall be kept only in the safe.

For the foregoing reasons the several unfounded errors assigned to the judgment appealed from have been fully refuted, since in conclusion it is fully shown that the accused unlawfully disposed of a portion of the municipal funds, putting the same to his own use and to that of other persons in violation of Act No. 1740, and consequently he has incurred the penalty therein established as principal of the crime of misappropriation; and even though when imposing it, it is not necessary to adhere to the rules of the Penal Code, the court in using its discretional powers as authorized by law, believes that the circumstances present in the commission of crimes should be taken into consideration, and in the present case the amount misappropriated was refunded at the time the funds were counted.

Therefore, in view of what has been set forth, it is our opinion that the judgment appealed from should be affirmed, provided, however, that the principal penalty shall be six months’ imprisonment with the costs of this instance against the accused. So ordered.

Arellano, C. J., Johnson, and Moreland, JJ., concur.
Carson, J., concurs in the result.

Martinez vs Ong Pong Co GR No. L-5236

EN BANC

G.R. No. L-5236 January 10, 1910

PEDRO MARTINEZ, plaintiff-appellee,
vs.
ONG PONG CO and ONG LAY, defendants.
ONG PONG CO., appellant.

Fernando de la Cantera for appellant.
O’Brien and DeWitt for appellee.

ARELLANO, C.J.:

On the 12th of December, 1900, the plaintiff herein delivered P1,500 to the defendants who, in a private document, acknowledged that they had received the same with the agreement, as stated by them, “that we are to invest the amount in a store, the profits or losses of which we are to divide with the former, in equal shares.”

The plaintiff filed a complaint on April 25, 1907, in order to compel the defendants to render him an accounting of the partnership as agreed to, or else to refund him the P1,500 that he had given them for the said purpose. Ong Pong Co alone appeared to answer the complaint; he admitted the fact of the agreement and the delivery to him and to Ong Lay of the P1,500 for the purpose aforesaid, but he alleged that Ong Lay, who was then deceased, was the one who had managed the business, and that nothing had resulted therefrom save the loss of the capital of P1,500, to which loss the plaintiff agreed.

The judge of the Court of First Instance of the city of Manila who tried the case ordered Ong Pong Co to return to the plaintiff one-half of the said capital of P1,500 which, together with Ong Lay, he had received from the plaintiff, to wit, P750, plus P90 as one-half of the profits, calculated at the rate of 12 per cent per annum for the six months that the store was supposed to have been open, both sums in Philippine currency, making a total of P840, with legal interest thereon at the rate of 6 per cent per annum, from the 12th of June, 1901, when the business terminated and on which date he ought to have returned the said amount to the plaintiff, until the full payment thereof with costs.

From this judgment Ong Pong Co appealed to this court, and assigned the following errors:

1. For not having taken into consideration the fact that the reason for the closing of the store was the ejectment from the premises occupied by it.

2. For not having considered the fact that there were losses.

3. For holding that there should have been profits.

4. For having applied article 1138 of the Civil Code.

5. and 6. For holding that the capital ought to have yielded profits, and that the latter should be calculated 12 per cent per annum; and

7. The findings of the ejectment.

As to the first assignment of error, the fact that the store was closed by virtue of ejectment proceedings is of no importance for the effects of the suit. The whole action is based upon the fact that the defendants received certain capital from the plaintiff for the purpose of organizing a company; they, according to the agreement, were to handle the said money and invest it in a store which was the object of the association; they, in the absence of a special agreement vesting in one sole person the management of the business, were the actual administrators thereof; as such administrators they were the agent of the company and incurred the liabilities peculiar to every agent, among which is that of rendering account to the principal of their transactions, and paying him everything they may have received by virtue of the mandatum. (Arts. 1695 and 1720, Civil Code.) Neither of them has rendered such account nor proven the losses referred to by Ong Pong Co; they are therefore obliged to refund the money that they received for the purpose of establishing the said store — the object of the association. This was the principal pronouncement of the judgment.

With regard to the second and third assignments of error, this court, like the court below, finds no evidence that the entire capital or any part thereof was lost. It is no evidence of such loss to aver, without proof, that the effects of the store were ejected. Even though this were proven, it could not be inferred therefrom that the ejectment was due to the fact that no rents were paid, and that the rent was not paid on account of the loss of the capital belonging to the enterprise.

With regard to the possible profits, the finding of the court below are based on the statements of the defendant Ong Pong Co, to the effect that “there were some profits, but not large ones.” This court, however, does not find that the amount thereof has been proven, nor deem it possible to estimate them to be a certain sum, and for a given period of time; hence, it can not admit the estimate, made in the judgment, of 12 per cent per annum for the period of six months.

Inasmuch as in this case nothing appears other than the failure to fulfill an obligation on the part of a partner who acted as agent in receiving money for a given purpose, for which he has rendered no accounting, such agent is responsible only for the losses which, by a violation of the provisions of the law, he incurred. This being an obligation to pay in cash, there are no other losses than the legal interest, which interest is not due except from the time of the judicial demand, or, in the present case, from the filing of the complaint. (Arts. 1108 and 1100, Civil Code.) We do not consider that article 1688 is applicable in this case, in so far as it provides “that the partnership is liable to every partner for the amounts he may have disbursed on account of the same and for the proper interest,” for the reason that no other money than that contributed as is involved.

As in the partnership there were two administrators or agents liable for the above-named amount, article 1138 of the Civil Code has been invoked; this latter deals with debts of a partnership where the obligation is not a joint one, as is likewise provided by article 1723 of said code with respect to the liability of two or more agents with respect to the return of the money that they received from their principal. Therefore, the other errors assigned have not been committed.

In view of the foregoing judgment appealed from is hereby affirmed, provided, however, that the defendant Ong Pong Co shall only pay the plaintiff the sum of P750 with the legal interest thereon at the rate of 6 per cent per annum from the time of the filing of the complaint, and the costs, without special ruling as to the costs of this instance. So ordered.

Torres, Johnson, Carson, and Moreland, JJ., concur.

Mainit vs Bandoy GR No. L-5334

EN BANC

G.R. No. L-5334 January 10, 1910

CALIXTO MAINIT, ET AL., plaintiffs-appellants,
vs.
VICENTE BANDOY, ET AL., defendants-appellees.

Rafael Del-Pan for appellants.
Vicente Ilustre for appellees.

ARELLANO, C.J.:

This controversy concerning a parcel of land with a frontage of eight and a half meters and a depth of ten meters, bounded as described in the complaint, situated in the town of Santa Cruz, La Laguna, and owned in common by the brothers Marcelo, Calixto, Severo, and Alejandro Mainit; said land was sold under pacto de retro by Marcelo Mainit, the oldest brother, to the spouses Vicente Bandoy and Severina Tec in the year 1896, for the sum of 30 pesos. The foregoing facts were admitted by the contending parties at the trial of the case.

On the 11th of July, 1906, the other three brothers, Calixto, Severo, and Alejandro Mainit (the last named being under 17 years of age was represented by a guardian ad litem), demanded that the said contract be declared null, and that the land sold be returned to them.

The defendants, the spouses Bandoy and Tec, who are the present possessors of the land in question, answered the complaint and acknowledged that Marcelo Mainit had actually sold them the land for the price of 50 pesos.

They also agreed that, among other facts, the following be offered in evidence, to wit: (1) That in addition to the 30 pesos received by Marcelo Mainit, Calixto Mainit also received 20 pesos from the sale of the land; and (2) that both Marcelo’s 30 pesos and Calixto’s 20 pesos were expanded in the care and maintenance of the four brothers coowners of the land.

After all the evidence had been taken the Court of First Instance for the Province of Laguna “absolved the defendants of the complaint demanding the nullification of the contract, without special ruling as to costs, without prejudice to the defendants’ obligation to pay the plaintiffs the 30 pesos they have offered as an increase over the price paid for the land.”

When plaintiffs were notified of the above judgment they moved for a new trial and gave notice of their intention to appeal therefrom. The motion for a new trial was over ruled, but it does not appear that an exception was taken. The bill of exceptions has been submitted to this court with the exception to the final judgment only, on appeal, without a review of the evidence.

While the appeal was before this court, one of the appellants, Severo Mainit, becoming of age, withdrew his appeal for the reason that he had sold his share in the land to said appellees, according to a notarial instrument which was produced. The withdrawal was approved by the court on the 27th of September, 1909.

On appeal, it appears that the following errors have been assigned: (1) that the amounts paid by the defendants had been expanded for the benefit of the plaintiffs; (2) that the contract of sale under pacto de retro executed in 1896 by one of the plaintiffs in favor of the defendants was a legal one; (3) that article 1508 of the Civil Code was applicable in this case; (4) in absolving the defendants of the complaint; and (5) in not having declared null the contract above referred to an in not granting the recovery of possession sought in the complaint.

With regard to the first, as question of fact, it would be necessary to adhere to what the trial court has stated in its decision; but really, even though it were proven that the price of the sale had been expended for the benefit of the plaintiffs who were then minors, it does not appear that the acts of a guardian are herein involved, nor was the sale of realty in which minors were interested carried out in accordance with the provisions of the law; it therefore results that the sale of the share of the minor owners was not really a legal one, as alleged in the second assignment of error.

It was not a matter of applying the rule of prescription to the action, on account of the lapse of four years since the sale was effected, under the provisions of article 1508 of the Civil Code, inasmuch as an action for redemption is not involved but a question of the nullification of a sale in which three of the coowners of the land sold had taken no part, and for the recovery of possession of the land thus sold; therefore, the third error assigned has also been incurred.

With respect to the last allegations of error, the appellants in their brief have shown the illegality of the transaction in the following statement:

The vendor of the lot in question was the owner of one fourth thereof; when he sold the whole of it he disposed of, as his own property, the other three fourths that did not belong to him; hence, he sold that which was not his own and which he could not validly transfer; for said reason the sale, as far as the said three fourths are concerned, was illegal and without effect. (Brief, 5.)

In a community of property “every coowner shall have full ownership of his part and in the fruits and benefits derived therefrom, and he therefore may alienate . . .” (Art 399, Civil Code.) Consequently, the alienation by Marcelo Mainit of his fourth part was legal, valid, efficient, and produced the effect of substituting the defendants in the enjoyment thereof.

In addition, the latter have also become coowners of another fourth part which belonged to Severo Mainit by the purchase made from him after judgment was rendered, and they pay at present stand in his place. Therefore, two fourths or one-half of the land belongs now to the defendants, unless Calixto’s part also been acquired, with regard to which no ruling is made. Consequently, there is no reason to recover from them the possession of the land, nor to declare that the sale made by Marcelo Mainit of his part is null and void.

As the judgment finally provides that by the defendants paying the plaintiffs the 30 pesos offered as an increase they may continue in the ownership of the whole land, such ruling can not be affirmed, because it would amount to imposing on the plaintiffs the necessity of effecting a sale and for a determined price, when it is not a case in which a judicial sentence may be imposed against the free consent of the parties to a contract.

In view of the fact that a coownership is firmly established, between the defendants on the one hand and Calixto Mainit and Alejandro Mainit on the other, an action for nullification or for the recovery of possession can not be maintained. In this case, some of the remedies provided by the Civil Code in favor of coheirs and coowners with respect to the division of the property or the consolidation thereof should be resorted to; none of them, not even by implication, appears to have been applied in this case.

We therefore decide that the complaint as presented should be dismissed; without any special ruling as to the costs in both instances, it is so ordered.

Torres, Mapa, Johnson, Carson, and Moreland, JJ., concur.

Cajuigan vs Natividad GR No. L-5201

EN BANC

G.R. No. L-5201 January 13, 1910

ROMAN CAJUIGAN, administrator of the estate of Jorge Capricho and Clemencia Morales, deceased, plaintiff-appellee,
vs.
MARIANO NATIVIDAD, ET AL., defendants.
MARIANO NATIVIDAD, appellant.

Mariano Lim for appellant.
T. L. McGirr for appellee.

JOHNSON, J.:

On the 10th of July, 1907, the plaintiff commenced an action against the defendants for the purpose of recovering a certain number of carabaos.

The plaintiff alleged that he had been duly appointed as administrator of the estate of Jorge Capricho, deceased, and Clemencia Morales. This fact was admitted by the defendants. The plaintiff claims that the defendants were in possession of a certain number of carabaos belonging to the estate of the said deceased, and that the defendants were illegally possessing said animals. The plaintiffs asked that the court render a judgment against the defendants, either for the return of the animals or for a judgment for their value, together with a judgment for the use of said animals from some time in the months of November or December, 1902.

The defendants presented different answers.

After hearing the evidence, the lower court found that the proof adduced during the trial was insufficient to show any claim whatever on the part of the plaintiff against the defendant Pedro Liongson, and the cause thereof dismissed as to him.

As to the other defendant, Mariano Natividad, the court found that he was in possession illegally of three carabaos of the value of P300; that the use of each carabao per year was worth P30, and rendered a judgment against the defendant to return said carabaos or to pay to the plaintiff the sum of P300 as the value of said carabaos, and also the sum of P495 for the use of said carabaos from the month of December, 1902, and to pay the costs.

From this judgment the defendant, Mariano Natividad, appealed to this court and made several assignments of error.

From an examination of the record brought to this court the following facts seem to be established beyond question:

First. That some time in the month of August, 1902, Jorge Capricho died intestate in the pueblo of Moriones, Province of Tarlac.

Second. That some time in the month of December, his wife, Clemencia Morales, died intestate.

Third. That at the time of the death of Jorge Capricho he was indebted to the defendant, Mariano Natividad, in the sum of P486.94.

Fourth. That after the death of Jorge Capricho and on or about the 15th of October, the said Mariano Natividad and Clemencia Morales liquidated the account which the said Natividad held against the estate of Jorge Capricho, which liquidation showed that there was due from the said estate to Mariano Natividad the sum of P486.94. This indebtedness was evidenced by a written promise to pay, signed by Clemencia Morales, and also a promise in case of failure to pay to pledge certain carabaos for the payment of the said indebtedness.

Fifth. That after the death of Clemencia Morales (the date does not appear of record) one Sotero Morales, was duly appointed as administrator of said estate.

Sixth. That on the 10th day of August, 1903, in accordance with the provisions of section 669 of the Code of Procedure in Civil Actions, the court appointed a committee composed of Benito Soriano and Domingo Bertram, to appraise the estate of the deceased and allow claims against the said estate. (See record, p. 37.) The record does not contain the report of this committee. It is possible that the original records were not presented as a part of the record in the present case, for the reason that they were burned at the time the government building in the Province of Tarlac was burned.

Seventh. The first administrator, Sotero Morales, presented an inventory of the property of said estate (see record, p. 48), on the 5th day of January, 1907. There is nothing in the record which shows why the said inventory had not been filed with the court earlier; neither does the record show whether or not such inventory had been filed and had been burned at the time of the burning of said government building.

On the same day (the 5th of January, 1907) the said administrator (Morales) rendered his final account as such administrator and asked the court to confirm the same in accordance with sections 681 and 682 of the Code of Procedure in Civil Actions. The record does not disclose what action the court took upon this account rendered.

The inventory presented by the administrator, Sotero Morales, in paragraph 8 contained a statement that there existed seven carabaos belonging to the said estate, of the value of P560. The said account rendered by Morales in paragraph 5, shows that three of these carabaos had been delivered to Mariano Natividad “en garantia de una deuda,” but it does not show when said carabaos had been delivered to the said Mariano Natividad. The fact however, exists, and it is not denied that the carabaos were delivered by the administrator, Morales, to Natividad, within a few weeks after the death of Clemencia Morales and that he said Natividad had been in possession of said carabaos from the date, probably in the month of December, 1902, up to and including the time of the commencement of the present action (July 10, 1907.)

Eight. Later Sotero Morales died; the exact date does not appear, and the plaintiff herein was appointed as administrator of said estate. The date of the appointment of the plaintiff does not appear. Exhibit A, which alleged to have been a copy of his appointment, does not appear in the record.

The contention of the plaintiff is that Sotero Morales, the first administrator, had no authority to pay the claim of Mariano Natividad against the estate, by delivering to him the carabaos in question, without the express permission of the court. This contention of the plaintiff is valid. The plaintiffs contends that it was the duty of Mariano Morales, if he had a claim against the estate in question, to have presented it to the committee appointed for the purpose of allowing claims. This contention of the plaintiff is also valid. It is disputed, however, by the plaintiff that the carabaos were turned over to Natividad by the first administrator, Sotero Morales, and accepted by Natividad in good faith, believing that the carabaos had been turned over to him in part payment of his claim against the said estate. Sotero Morales, in his account rendered makes the statement that there were no debts existing against the said estate. (See record, p. 50.)

The simple question presented by the record is — Can an administrator maintain an action to recover personal property belonging to an estate, which has been in the possession of the defendant for a period of more than four years, he possessing the same in good faith? The defendant had held the property continuously from probably some time in the month of December, 1902, (certainly not later) up to and including the time of the commencement of the present action, July 10, 1907, and no question is raised here that the defendant did not possess the property in question in good faith. Article 1955 of the Civil Code provides that “The ownership of personal property prescribes by uninterrupted possession in good faith, for a period of three years.” Paragraph 3 of section 43 of the Code of Procedure in Civil Actions provides that an action for the recovery of personal property shall be limited to four years. Without, at this time, attempting to discuss the effect of the provisions of said section 43 upon the provisions of said section 1955 of the Civil Code, and expressly reserving that question for future discussion, we are of the opinion and so hold that under the facts in the present case, the right of the plaintiff to recover the carabaos in question can not be sustained, and therefore the judgment of the lower court is hereby reversed, and without any special finding as to costs. So ordered.

Arellano, C. J., Torres, Carson, and Moreland, JJ., concur.

US vs Esteban Montenegro GR No. L-4614

EN BANC

G.R. No. L-4614 January 15, 1910

THE UNITED STATES, plaintiff-appellee,
vs.
ESTEBAN MONTENEGRO, defendant-appellant.

Felipe Agoncillo for appellant.
Office of the Solicitor-General Harvey for appellee.

CARSON, J.:

The information in this case charges Esteban Montenegro and Vicente Sison, with the crime of frustrated assassination, committed as follows:

That on or about April 19, 1907, at night, in the municipality of Taal, Batangas, the said Esteban Montenegro and Vicente Sison were walking together; the first named, Esteban Montenegro was provided with a big stick of palma brava and a revolver, and the second, Vicente Sison, also carried a stick of palma brava and a dagger. They stopped at the foot of the bridge that connects the town of Taal with that of Lemery on the Taal side, and waited at said place for Doroteo Ilagan, with the deliberate intent to kill him; in furtherance of such purpose the accused Esteban Montenegro willfully, maliciously, and feloniously gave Ilagan a heavy blow with the stick and while the other accused, Vicente Sison, standing in a threatening attitude, was watching Ramon Castillo, the friend of Doroteo Ilagan, in order to prevent his rendering any assistance to the latter. During the struggle that ensued between the two the former, Esteban Montenegro, fired two shots in succession and at point-blank range against the said Ilagan, causing a contused wound in his left forearm and two wounds in the abdomen, which last two, on account of their seriousness, might have caused the death of the person attacked had it not been for the prompt and extraordinary assistance and efforts of the physicians. The accused Esteban Montenegro, with the cooperation of the other accused, Vicente Sison, executed all the acts which would have resulted in the death of Doroteo Ilagan, although, for reasons which are independent for the will of the accused, such result was avoided. All of the foregoing being contrary to law.

The trial court acquitted both defendants of the crime of frustrated assassination with which they were charged, but convicted Esteban Montenegro of the lesser included crime of frustrated homicide, and sentenced him to eight years and one day of prison mayor, together with the accessory penalties prescribed by law, and to the payment of the sum of P500 to the complaining witness as civil damages.

On the night of the 19th of April, 1907, Doroteo Ilagan, the complaining witness, and his friend Ramon Castillo, met Esteban Montenegro and his codefendant in this action on the bridge connecting the town of Lemery and the town of Taal, in the Province of Batangas. Montenegro called Ilagan aside and charged him with having made offensive remarks about a certain woman, to which Ilagan replied that not only had he never made such remarks, but that he wanted to know the name of the person who had charged him with doing so, in order that he might investigate the matter. Montenegro refused to give the name of the person from whom he had received his information and challenged Ilagan to accompany him to a suitable place for a fight. Ilagan declined to accept the challenge on the ground that he was not ready at that moment, but offered to meet Montenegro on some other occasion. They then separated, but a short time afterwards Ilagan and Castillo again met Montenegro, accompanied by various companions; and on this occasion Montenegro separated himself from his friends, went up to Ilagan and struck him with a club (garrote de palma-brava). Ilagan in his turn struck at Montenegro with his stick, which in some way fell from his hand, and then seized Montenegro by the collar (cuello) or throat. Montenegro on being seized by his opponent threw away his club, drew a revolver from his pocket and fired two shots, one of which took effect in Ilagan’s left side, just below the tenth rib, and the other about 4 inches below the left nipple. Ilagan was under medical treatment for the wounds thus inflicted for some twenty-eight days, and incurred considerable expenses for medical attendance, nursing, medicine, the amount of which, together with damages, the trial court fixed at P500.

The foregoing summary of the facts as found by the trial judge is in our opinion proven by the evidence of record beyond a reasonable doubt, and we find no error in the proceedings in the trial court prejudicial to the rights of the accused.

In discussing the allegations in the information as to deliberate premeditation and the intent of the accused, the trial court made use of the following language:

Had it been the deliberate intention of Esteban to kill Doroteo, he could have easily done so at their first encounter, during which their is no doubt that he was armed; he had then more reason for attacking him, as according to his declaration, Doroteo had said to him that he might do as he pleased with the news circulated with respect to his cousin, a young woman who lived in the house of the accused and whom Doroteo visited. However, when they met for the first time, they agreed to let the question stand for another day, and the accused did not then even attempt to compel him to fight, much less to kill him.

The evidence shows that when they separated, and fifteen or twenty minutes after their first encounter, the fight between the two took place, and that Esteban was the first to attack Doroteo with a stick and only used the revolver against Doroteo when the latter held him in his arms to prevent his using the stick. If it had been his intention to kill Doroteo, he would not have lost such valuable time in attacking him with the stick, but would have used the revolver as soon as Doroteo arrived at the place where he waited for him. I believe that his intention to kill Doroteo only sprung up when the latter held him in his arms, depriving him of every opportunity to use the stick, and he then feared that he would get the worst of the contest. Treachery is not shown by the fact that, during the progress of a fight, while two men are struggling for the advantage over each other, one of them draws a revolver and fires at the other who is unarmed.

x x x x x x x x x

When a man draws a revolver, a deadly weapon the consequences of which are well known, points it at the heart of another and freely and intentionally, although overcome by the loss of self-control, pulls the trigger and fires, his intention, the object of his efforts, can not be said to be unknown; he means to kill.

It is contended that the trial judge erred in his characterization of the offense committed; that the facts proven at the trial and found by the trial judge himself raise a reasonable doubt, not merely as to whether the accused acted with deliberate premeditation but also as to his intention to kill at the moment when he discharged his revolver; and that the intention to kill being an essential element of the crime of attempted homicide, the accused should be acquitted of that crime, and if he be not exempted from punishment on his plea of self-defense, convicted of the complex crime of the unlawful discharge of a firearm at another which resulted in the infliction of lesiones menos graves (lesser injuries).

In support of this contention our attention is directed to the decision of the supreme court of Spain of the 18th of January, 1887, wherein that court held that “while it is true that the discharge of a firearm at a short distance, under certain conditions, is a general rule, an adequate means for the consummation of the crime of homicide, this fact is not sufficient in itself to demonstrate the homicidal intent of the actor;” and to its decision of the 12th of December, 1884 (with which compare its sentence of November 20, 1883), wherein it held that proof that certain wounds were inflicted in the trunk of the body of the injured party, as a result of repeated shots fired at a short distance, did not constitute in itself sufficient motive for raising the crime of the unlawful discharge of a deadly weapon at another, accompanied by the infliction of wounds, to the graver crime of frustrated homicide; also to various decisions of this court wherein we have held that “homicidal intent must be evidenced by acts which at the time of their execution are unmistakably calculated to produce the death of the victim by adequate means;” and that where an act constitutes in itself a specific crime, defined and penalized by law, such act should not be held to constitute an attempt to commit a higher offense unless the accompanying circumstances marking the execution of the act are such as to preclude beyond a reasonable doubt a finding that the act may have been committed without the intent to commit the higher offense. (U. S. vs. Taguibao, 1 Phil. Rep., 16; U. S. vs. Trinidad, 4 Phil. Rep., 152; U. S. vs. Camacho, 8 Phil. Rep., 142.)

We do not doubt that there may be cases wherein the discharge of a firearm at another is not in itself sufficient to sustain a finding of the intention to kill, and there are many cases in the books wherein the attendant circumstances conclusively establish that on discharging a firearm at another the actor was not in fact animated by the intent to kill. But, in seeking to ascertain the intention with which a specific act is committed, it is always proper and necessary to look not merely to the act itself but to all the attendant circumstances so far as they are developed by the evidence; and where, as in the case at bar, a revolver is twice discharged point-blank at the body of another, and the shots directed at the most vital parts of the body, it needs but little additional evidence to establish the intent to kill beyond a reasonable doubt. The persistent manner in which the accused in this case forced the fight upon his opponent, and the fact that in seeking his opponent he carried a revolver concealed in his pocket, taken together with the use of the revolver against his unarmed victim, although the presence of onlookers and friends when the fight occured rendered it wholly improbable that he would or could suffer serious injury at the hands of his opponent, even if the latter were to obtain the mastery, tend to negative the possibility that in twice discharging the revolver and directing his aim point-blank toward the region of the heart and the abdomen of his victim, the accused had any other intention than that of killing his enemy; and in view of all the circumstances, we are unable to conceive of any reasonable hypothesis which would explain the action of the accused other than that when he shot, he shot to kill.

We agree with the trial judge that the evidence is not sufficient to establish the existence of deliberate premeditation beyond a reasonable doubt, but we think that there can be no reasonable doubt that, finding himself worsted in the fight with clubs which he himself provoked, the accused there and then resolved to kill and did attempt to kill his enemy.

The judgment and sentence of the trial court should be and is hereby affirmed, with the costs of this instance against the appellant. So ordered.

Arellano, C.J., Torres and Moreland, JJ., concur.