UNITED STATES vs.

LOOK CHAW

EN BANC
[G.R. No. L-5887. December 16, 1911.]
THE UNITED STATES, plaintiff-appellee, vs. LOOK CHAW (alias
LUK CHIU), defendant-appellant.
Thos. D. Aitken for appellant.
Attorney-General Villamor for appellee.
SYLLABUS
1.SHIPS AND SHIPPING; OPIUM IN TRANSIT; LANDING OF
CONTRABAND GOODS; JURISDICTION. Although the mere possession of an
article of prohibited use in the Philippine Islands, aboard a foreign vessel in transit, in
any local port, does not, as a general rule, constitute a crime triable by the courts of
the Islands, such vessel being considered as an extension of its own nationality, the
same rule does not apply when the article, the use of which is prohibited in the
Islands, is landed from the vessel upon Philippine soil; in such a case an open
violation of the laws of the land is committed, with respect to which, as it is a
violation of the penal law in force at the place of the commission of the crime, no
court other than that established in the said place has jurisdiction of the offense, in the
absence of an agreement under an international treaty.

DECISION

ARELLANO, C.J :
p

The first complaint filed against the defendant, in the Court of First Instance of
Cebu, stated that he "carried, kept, possessed and had in his possession and control, 96
kilograms of opium," and that "he had been surprised in the act of selling 1,000 pesos
worth prepared opium."
The defense presented a demurrer based on two grounds, the second of which
was the more than one crime was charged in the complaint. The demurrer was
sustained, as the court found that the complaint contained two charges, one, for the

unlawful possession of opium, and the other, for the unlawful sale of opium, and,
consequence of that ruling, it ordered that the fiscal should separated one charge from
the other and file a complaint for each violation; this, the fiscal did, and this cause
concerns only the unlawful possession of opium. It is registered as No. 375, in the
Court of First Instance of Cebu, and as No. 5887 on the general docket of this court.
The facts of the case are contained in the following finding of the trial court:
"The evidence, it says, shows that between 11 and 12 o'clock a. m. on
the present month (stated as August 19, 1909), several persons, among them
Messrs. Jacks and Milliron, chief of the department of the port of Cebu and
internal-revenue agent of Cebu, respectively, went abroad the steamship Erroll
to inspect and search its cargo, and found, first in a cabin near the saloon, one
sack (Exhibit A) and afterwards in the hold, another sack (Exhibit B). The sack
referred to as Exhibit A contained 49 cans of opium, and the other, Exhibit B,
the larger sack, also contained several cans of the same substance. The hold, in
which the sack mentioned in Exhibit B was found, was under the defendant's
control, who moreover, freely and of his own will and accord admitted that this
sack, as well as the other referred to in Exhibit B and found in the cabin,
belonged to him. The said defendant also stated, freely and voluntarily, that he
had bought these sacks of opium, in Hongkong with the intention of selling
them as contraband in Mexico or Vera Cruz, and that, as his hold had already
been searched several times for opium, he ordered two other Chinamen to keep
the sack. Exhibit A."

It is to be taken into account that the two sacks of opium, designated as

Exhibits A and B, properly constitute the corpus delicti. Moreover, another lot of four
cans of opium, marked, as Exhibit C, was the subject matter of investigation at the
trial, and with respect to which the chief of the department of the port of Cebu testified
that they were found in the part of the ship where the firemen habitually sleep, and
that they were delivered to the first officer of the ship to be returned to the said
firemen after the vessel should have left the Philippines, because the firemen and crew
of foreign vessels, pursuant to the instructions he had from the Manila custom-house,
were permitted to retain certain amounts of opium, always provided it should not be
taken shore.
And, finally, another can of opium, marked "Exhibit D," is also corpus delicti
and important as evidence in this cause. With regard to this the internal-revenue agent
testified as follows:
"FISCAL. What is it?
"WITNESS. It is a can opium which was bought from the defendant by a secretservice agent and taken to the office of the governor to prove that the
accused had opium in his possession to sell."

On motion by the defense, the court ruled that this answer might be stricken out
"because it refers to a sale." But, with respect to this answer, the chief of the
department of customs had already given this testimony, to wit:
"FISCAL. Who asked you to search the vessel?
"WITNESS. The internal-revenue agent came to my office and said that a party
brought him a sample of opium and that the same party knew that there
was more opium on board the steamer, and the agent asked that the
vessel be searched."

The defense moved that this testimony be rejected, on the ground of its being
hearsay evidence, and the court only ordered that the part thereof "that there was more
opium, on board the vessel" be stricken out.
The defense, to abbreviate proceedings, admitted that the receptacles
mentioned as Exhibits A, B, and C, contained opium and were found on board the
steamship Erroll, a vessel of English nationality, and that it was true that the defendant
stated that these sacks of opium were his and that he had them in his possession.
According to the testimony of the internal-revenue agent, the defendant stated
to him, in the presence of the provincial fiscal, of a Chinese interpreter (who
afterwards was not needed, because the defendant spoke English), the warden of the
jail, and four guards, that the opium seized in the vessel had been bought by him in
Hongkong, at three pesos for each round can and five pesos for each one of the others,
for the purpose of selling it, as contraband, in Mexico and Puerto de Vera Cruz; that
on the 15th the vessel arrived at Cebu, and on the same day he sold opium; that he had
tried to sell opium for P16 a can; that he had a contract to sell an amount of the value
of about P500; that the opium found in the room of the other two Chinamen
prosecuted in another cause, was his, and that he had left it in their stateroom to avoid
its being found in his room, which had already been searched many times; and that,
according to the defendant, the contents of the large sack was 80 cans of opium, and of
the small one, 49, and the total number, 129.
It was established that the steamship Erroll was of English nationality, that it
came from Hongkong, and that it was bound for Mexico, via the call ports of Manila
and Cebu.
The defense moved for a dismissal of the case, on the grounds that the court
had no jurisdiction to try the same and the facts concerned therein did not constitute a
crime. The fiscal, at the conclusion of his argument, asked that the maximum penalty
of the law be imposed upon the defendant, in view of the considerable amount of
opium seized. The court ruled that it did not lack jurisdiction, inasmuch as the crime
had been committed within its district, on the wharf of Cebu.

The court sentenced the defendant to five years' imprisonment, to pay a fine of
P10,000, with additional subsidiary imprisonment in case of insolvency, though not to
exceed one third of the principal penalty, and to the payment of the costs. It further
ordered the confiscation, in favor of the Insular Government, of the exhibits presented
in the case, and that, in the event of an appeal being taken or a bond given, or when
the sentenced should have been served, the defendant be not released from custody,
but turned over to the customs authorities for the purpose of the fulfillment of the
existing laws on immigration.
From this judgment, the defendant appealed to this court.
The appeal having been heard, together with the allegations made therein by
the parties, it is found: That, although the mere possession of a thing of prohibited use
in these Islands, aboard a foreign vessel in transit, in any of their ports, does not, as a
general rule, constitute a crime triable by the courts of this country, on account of such
vessel being considered as an extension of its own nationality, the same rule does not
apply when the article, whose use is prohibited within the Philippine Islands, in the
present case a can of opium, is landed from the vessel upon Philippine soil, thus
committing an open violation of the laws of the land, with respect to which, as it is a
violation of the penal law in force at the place of the commission of the crime, only
the court established in that said place itself had competent jurisdiction, in the absence
of an agreement under an international treaty.
It is also found: That, even admitting that the quantity of the drug seized, the
subject matter of the present case, was considerable, it does not appear that, on such
account, the two penalties fixed by the law on the subject, should be imposed in the
maximum degree.
Therefore, reducing the imprisonment and the fine imposed to six months and
P1,000, respectively, we affirm in all other respects the judgment appealed from, with
the costs of this instance against the appellant. So ordered.
Torres, Mapa, Johnson, Carson, Moreland and Trent, JJ., concur.

UNITED STATES vs. LOOK CHAW

EN BANC
[G.R. No. 5889. July 12, 1911.]
THE UNITED STATES, plaintiff-appellee, vs. LOOK CHAW (alias
LUK CHIU), defendant-appellant.
Thos. D. Aitken, for appellant.
Attorney-General Villamor, for appellee.
1.OPIUM LAW; SALE OF OPIUM; SECTIONS 5 AND 15
DISTINGUISHED. The act defined in section 15 of the Opium Law is distinct
from that penalized in section 5 of the same law; the act referred to in the latter is any
act of sale, while that concerned in the former relates to the business of selling in an
habitual, professional manner, as one of an undertaking or occupation without license.
2.ID.; SINGLE ACTS CONSTITUTING Two OR MORE CRIMES;
PENALTY. When one act constitutes two or more crimes, or when one of them is
a necessary means for the commission of the other, only the penalty corresponding to
the more serious crime should be imposed, in its maximum degree.
3.ID.; ID.; THE POSSESSION WHICH IS NECESSARY FOR EFFECTING
THE SALE. The illegal possession of 137 cans of opium, and the illegal sale of 30
cans of opium, is not a single act which constitutes two crimes, nor yet one crime
which is a necessary means for the commission of the other. They are two isolated
acts, each of which is punishable. It is only when the total amount of opium possessed
is identical and exactly the same as that possessed for the sole purpose of a sale
previously agreed upon, that it can be said that the possession was a necessary means
of effecting the sale.

DECISION

ARELLANO, C.J :
p

This case is a separate part of Case No. 5887 and bears No. 5889 on the
general docket of this court, and No. 377 on the docket of the Court of First Instance
of Cebu.
The complaint in this case states:
"That, on or about the 18th of August, 1909, within the boundaries of the
municipality of Cebu of this province and judicial district, the said Look Chaw
(alias Luk Chiu) did, without having obtained authorization from the Collector
of Internal Revenue and without being authorized in any manner by law, engage
in the business of selling opium, and trade and traffic in the same."

C. J. Milliron, an internal-revenue agent, testified that Vicente Base took to the

governor of Cebu a can of opium containing 200 grammes of the said drug, in order to
show him that the accused had sold opium to Base, and the governor called the
witness in order that he might take part in this case. After the accused was arrested, he
confessed before the witness and the provincial fiscal that he had sold to Vicente Base
thirty cans of opium on the 15th of August, 1909, but that he had not received the
price thereof, and that the money which was found in a box of his on board the British
steamship Erroll, 1,500 in amount, was obtained in Manila and was seized by the
captain of the vessel. According to the accused, he had purchased in Hongkong 137
cans of opium for the, purpose of introducing it as contraband into Mexico, the
destination of the vessel, but that as the latter changed its route touching first at
Manila, the opium arrived at Cebu.
Vicente Base testified that he had negotiated with the accused with respect to
the sale of the three sacks of opium which were seized while in the latter's possession
and were the subject matter of the previous cause; that these three sacks were not
taken ashore, because the accused would not permit this to be done without previous
delivery of the whole price of 1,000, of which witness had only paid 533; that he
therefore only took one can from one of the said sacks.
The Court of First Instance of Cebu sentenced the accused to one year's
imprisonment and the payment of a fine of 2,000, with additional subsidiary
imprisonment in case of insolvency, not to exceed one-third of the principal penalty,
and to the payment of the costs of the trial. It was ordered in the judgment that the
exhibits connected with the case should be confiscated, and that, in case of an appeal,
and even after the sentence had been served, the defendant should not be released
from custody, but delivered to the customs authorities for the purpose of the
enforcement of the existing immigration laws.
The defendant appealed and has alleged before this court that he can not be
punished in accordance with section 15 of Act No. 1761, under which the complaint
was drawn.

This said section 15 reads thus:

" (a) No person shall import, cook, or prepare opium, or engage in the
business of purchasing or selling opium or of dealing or trafficking therein,
unless he shall first have secured from the Collector of Internal Revenue a
license to transact such business and shall have paid the license tax prescribed
by this Act. . . ."

To make an isolated sale, says the appellant, is not to engage in the business of
selling. To negotiate the sale of opium does not mean clandestinely to sell opium
once.
In our opinion, the act defined in section 15 is distinct from that penalized in
section 5; the act referred to in the latter is any act of sale, while that concerned in the
former relates to the business of selling, in an habitual, professional manner, as one of
an undertaking or occupation, without license.
"SEC. 5. (a) It shall be unlawful to sell, transfer, give, or deliver opium
to any person except to a duly licensed and practicing physician, pharmacist, or
second-class pharmacist, or a duly licensed dispensation of opium, or duly
registered confirmed user of opium in a licensed opium dispensary for
consumption therein only, and in accordance with the provisions of this Act: . . .
"
(b) Any person violating the provisions of the preceding subsection shall
be punished by a fine not exceeding one thousand pesos, or by imprisonment for
a period not exceeding one year, or by both such fine and imprisonment, in the
discretion of the court: . . ."

The crime concerned in this case, according to this section 5, is comprised

within the language of the complaint which charges the act of selling opium without
the authorization of the Collector of Internal Revenue.
The other ground of the appeal is that the confessions of the accused were
taken into account for the purpose of his conviction. The trial court pronounced its
sentence after considering that "sufficient proof has been furnished by the evidence,"
and the evidence did not consist solely in the confession that the accused, on the day
and at the place mentioned in the complaint, contracted with Vicente Base for the sale
of the opium, the subject matter of the present prosecution; and as this finding does
not appear to be erroneous nor contrary to the conclusions reached from the evidence,
it is accepted by this court in order that thereby the judgment appealed from may be
duly affirmed, as we do affirmed the same.
This disposes of the appeal; but, in the opinion of this court, the defense of
double jeopardy alleged by the accused in first instance, with exception to the order

disallowing it, cannot but be taken into consideration, although in this instance, on the
appeal, that defense was not reproduced with the allegation that its disallowance was
an error committed by the lower court in its judgment. This point appears to involve a
question of jurisdiction.
Before separating the two causes, as related at the beginning of this decision,
there was but one single complaint and there would have been only one trial for the
possession of opium and for the sale of opium. But the defendant's counsel set up a
demurrer, arguing that the complaint was defective inasmuch as it charged two
distinct crimes, for according to the defense, it was alleged to be one crime to possess
opium and another different crime to sell opium; and the court deferred to this
pretension and ordered the filing of two complaints, one for the possession of opium
and another for the sale of opium; that for the possession of opium was the one first
tried by the lower court.
In answering the second complaint for the sale of opium, the defendant alleged
that he had already been in jeopardy.
"The defendant was convicted yesterday," said his attorney, "for the
violation of law committed, of possessing opium, and has already been
sentenced by this court to five years' imprisonment and in addition to pay a fine
of ten thousand pesos. According to the principles of penal law, when a crime
has been committed which is necessary in order to commit another, the
delinquent, of course, can not be punished for the two crimes, but must suffer
for the crime for which the greater penalty was provided."

The court rejected this allegation: first, because the prosecution of two crimes
instead of one was brought about by the defense itself; and second, because, in the
opinion of the trial judge, if the defendant had first been convicted for selling opium,
he certainly would have been in jeopardy in the cause prosecuted for possessing
opium, for the reason that really one can not sell opium without possessing it, while, if
the terms are inverted, the same result does not follow, because one may possess
opium without selling it, and consequently in the present cause the allegation of
double jeopardy is inadmissible.
True it is, we assert, that it is one crime to possess opium, punished by section
31 of the Act, and another, to sell opium, penalized by section 5 of the same Act
before cited.
And it is also true that when one single act constitutes two or more crimes, or
when one of them is a necessary means for the commission of the other, only the
penalty corresponding to the more serious crime shall be imposed, in its maximum
degree, and thus, he who smokes opium in a pipe, by one single act lays himself liable
to three penalties of the law, one of them, merely for the fact of possessing opium,

another, for the mere possession of a pipe in which opium is smoked, and the other,
for the act of smoking opium; but the penalties corresponding to these three crimes
ought not to be imposed upon the defendant in this case, and only the penalty for the
most serious of these crimes.

But the illegal possession of 137 cans of opium and the illegal sale of 30 cans
of opium, which are the two acts confessed by the accused, are not one act which
constitutes two crimes, nor a crime which is a necessary means for the commission of
another. They are two isolated acts, punishable, each of them, in themselves. Only in
the event where all the amount of the opium possessed and seized be in its totality the
same as that which was possessed with the sole purpose of being delivered as the
matter or subject of a sale previously agreed upon, could it be said, in the opinion of
this court, that. The possession of the opium was a necessary means to effect the
delivery by reason of the sale, and that the sale agreed upon was the sole reason for
the possession of the opium seized. The possession of the quantity contained in the
pipe can not be considered as a different crime from that of smoking opium in a pipe,
nor the possession of the pipe, as a crime different from that of smoking opium in a
pipe. But if the person surprised in smoking opium in a pipe was also surprised in the
possession of the thirty cans sold by the accused, it could not properly be inferred that
the possession of these thirty cans, which in itself is a crime, was a necessary means
for the commission of the other crime of smoking opium in a pipe, and that the person
in whose possession the thirty cans were seized, possessed the same solely and
exclusively for the purpose of smoking opium in a pipe. It might very well have been
that he had acquired the drug for the purpose of inhaling, injecting, chewing,
swallowing, or other uses, and that only by chance did it occur to him to try to smoke
it in a pipe, on the very occasion when he was surprised, this being the evident fact of
the commission of the crime which cannot, in its essence, include the existence of
thirty cans, not then contained in the pipe, each can certainly being susceptible of
other various uses, every one of which might by its nature constitute a different crime.
We consider this doctrine equally applicable to crimes which are evils by their
very nature, as well as to those which are merely malum quia prohibitum; because it
not only aims at a more or less strict application of a penal precept which,
undoubtedly, in the practice of this court, usually tends toward the lesser severity and,
occasionally, the greatest benignity when the second class, or conventional crimes, are
concerned, but also because that doctrine is the logical result of the process of the
intelligence in the derivation of consequences from the principles constitutive of the
nature of things.
Thus it is that we find the institution of this cause, and its separation from the
previous one, to be founded on law and juridical principles, and the judgment

appealed from, to be in accordance with right and equity, except with regard to the
amount of the penalty, which we reduce, in harmony with the provisions of section 5
aforementioned, to six months' imprisonment and a fine of 1,000 Philippine
currency. ;
Therefore, with the understanding that the imprisonment and the fine imposed
shall be, respectively, six months and 1,000 Philippine currency, we affirm, as to all
the rest, the judgment appealed from, with the costs of this instance against the
appellant. So ordered.
Torres, Mapa and Johnson, JJ., concur.
Carson, J., concurs in the result.