626

CASE SYNOPSIS: Appeal from the United States District Court for the Eastern District of Missouri by
plaintiffs in a case involving the exclusion of conclusionary statements against interest.

FACTS: The case involved a civil action for damages arising out of an alleged attack by a wolf on a
child. The focus on appeal was the correctness of three rulings that excluded conclusionary statements
against interest. Two of them were made by a defendant, who was also an employee of the corporate
defendant; and the third was in the form of a statement appearing in the records of a board meeting of
the corporate defendant.

ANALYSIS:
On appeal, the court ruled
r the arrest of both defendants, Walker and Samson set out with lights to search for the tins and found the
one thrown by Padilla inside the inclosure, and the other two tins, about a meter from the place where
Samson had been holding Torres.

That the other officer, Samson, gave nearly the same testimony. He added, however, when questioned by
the defense as to whether Walker had said anything to him on his return from his pursuit of Padilla, that
Walker did say that he saw Regino Torres throw away two tins and that he was looking for them. He was
also asked by the defense whether Walker had proposed to the defendants that they pay a fine in the form
of a compromise, to which he replied that he had not, but that, on the contrary, it was the defendants who
made this offer.

That the defendant Regino Torres testified that Padilla told him that there was a large amount of opium, and
they agreed that at 6 o’clock in the evening they would go to the house above mentioned; that Padilla went
to Torres’ house at 6 o’clock in the evening and hurried him up, saying: "Eat in a hurry, for the owner of the
opium needs money" ; that when they arrived at the house of Franco’s widow, Padilla entered the door of
the place where the automobiles were kept, and five minutes afterwards called witness to enter the garage
and there Padilla showed Torres a tin of opium, at the same time saying that it was first class and cost P60
without haggling; that witness replied that he would first show it to some trustworthy friends to determine
its class; that Padilla agreed and they both left for this purpose, but that when they had gone about ten
brazas from the door, he was seized by Samson and saw that Padilla had run away and was being pursued
by Walker. The court asked Torres whether he had wished to investigate first and buy afterwards, to which
he replied that he did, and that if he had been convinced of the quality of the opium he would have bought
about 20 or 25 tins. "But have you so much money?" inquired the judge. The defendant replied: "Yes, sir."
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That, upon arraignment, Pablo Padilla pleaded guilty. "The defendant’s counsel," says the trial court in his
decision, "requested that his client be permitted to state the circumstances that surrounded the case and
which induced this defendant to commit the crime under prosecution." The court further says therein: "It is
preferable that counsel himself state the circumstances that, in his opinion, attended the crime and which
may be considered as extenuating." cralaw virtua 1aw lib rary

Pantaleon del Rosario, Padilla’s counsel, stated that according to the information given by his client, the
latter is a poor man who accompanied the other defendant Regino Torres principally in order that, in case
they were caught by the authorities, Torres might transfer the material possession of the opium to counsel’s
client and the latter would assume liability for such possession and suffer the legal consequences.

That the trial court took that statement into consideration in extenuation of the penalty he imposed upon
Padilla, concluding by saying that this defendant appeared to be a poor man who, impelled by poverty, had
accompanied Torres for the purpose, as every probability indicated, of obtaining a relatively small share in
the business in which Torres was engaged; while, with respect to Torres, the court said that he played the
most important role, for he confessed to have sufficient means to purchase opium to the amount of twenty
tins at P60 a tin.

From the judgment of conviction Regino Torres bases his appeal on four assignments of error: (1) In that
the trial court concluded that two tins were taken from the appellant’s possession; (2) in holding that the
appellant had incurred the penalties provided in section 31 of Act No. 1761; (3) in holding been engaged in
the business of buying and selling opium, and in grounding the judgment of conviction on the said
confession; (4) in accepting, as evidence for the prosecution, the compromise that it is asserted he
proposed to the agent George Walker; and (5), in that the penalty imposed upon the appellant was
excessive.

Pablo Padilla bases his appeal only on this last assignment.

Errors 1, 2, and 3 will not lie. Where a person entertains an offer to sell, goes to the house where the sale is
to be effected, making haste because the vendor needs money and because he was urged to do so by the
agent who made him the offer, enters the house, examines the article, leaves the house with three tins
which contained the thing offered for sale and which is a prohibited article by a reason of its being opium,
and if the purchaser is not a person authorized to have it in his possession, it can not be held that the
purchaser took the three tins with him to sample their contents; such a purpose must be proven and unless
it is there can be no other inference than that he carried away with him the thing purchased and that its
acquisition was a consummated fact, for the presumption is that the acts took place in the ordinary course
of things and the general routine of dealings between men, and it cannot be doubted that the person who
had the control over the opium at the moment it was seized, whoever it was that carried it, could be no
other than the owner of the money which the vendor so urgently desired to acquire on that day in exchange
for the opium. Civil possession is the holding of a thing by a person with the intention of acquiring ownership
thereof (Civ. Code, art. 430). It was Torres who had the intention of having the opium as belonging to him,
and as he intended, so he had it, and it was afterwards taken from him, as being a thing that he could not
hold, possess nor lawfully have as his own. Padilla was not the owner of the money which the person who
sold the opium needed. Padilla was but an agent who made the offer to Torres. Padilla had no intention of
holding, possessing and having as his own the opium which, on the part of another, he had offered to
Torres. The possession or material holding in this case gives way to the civil possession which, according to
Torres’ confession, was the reason that took him to the house of Franco’s widow, thus putting into effect the
intention to possess which he had a priori entertained as the cause of his presence in the place of the sale.
After all, the seizure of the two tins at a place one meter away from the spot where Torres was arrested by
Samson, and the seizure of one tin in the possession of Padilla, who had thrown it into an inclosure, are
facts held by the trial court to have been proven, and this finding, which does not violate any law and which
we do not find to be erroneous, should not be changed in this review of the evidence. We confirm the finding
and hold that it is in accord with the merits of the case.

With regard to the fourth cause of action, the facts are as follows: The witness, Walker, testified, among
other things, that Regino Torres endeavored to compromise the case and that he (Walker) was willing to
accept the compromise through the payment of P1,500, but subject to the approval of his superiors. The
defense asked that this testimony be stricken out, alleging that, in accordance with the Code of Civil
Procedure, the compromise in such cases must be made in writing. "When made in civil cases, it is proper;
but in criminal causes, it is not," the court said, and accordingly overruled the objection. The defense
excepted.

We have already seen above what Samson’s testimony was concerning this point and how thereby he
corroborated that given by Walker.

An offer to compromise is not a confession of debt and is not admissible in evidence (Code of Civ. Proc., sec.
346). In a criminal cause for theft (U. S. v. Maqui, 27 Phil. Rep., 97) this court said that the weight both of
authority and reason sustains the rule which admits evidence of offers to compromise, in criminal cases, but
permits the accused to show that such offers were not made under a consciousness of guilt, but merely to
avoid the inconvenience of imprisonment or for some other reason which would justify a claim by the
accused that the offer to compromise was not in truth an admission of his guilt and an attempt to avoid the
legal consequences which would ordinarily ensue therefrom.

It is a legal maxim, which assuredly constitutes one of the bases of the right to penalize, that in the matter
of public crimes which directly affect the public interest, in so far as public vengeance and private interests
are concerned, no compromise whatever may be entered into as regards the penal action, however it may
be with respect to the civil liability. But section 25 of Act No. 1761, under which this cause was prosecuted,
expressly authorizes the Collector of Internal Revenue to compromise a case after action has been begun,
"instead of commencing or prosecuting suit thereon." The words in quotation marks are textual. A
compromise necessarily implies two elements, one of which is the offer and the other the acceptance, in
order that the penal action may be extinguished and there remain only the civil liability to deal with. Of
course ordinarily it is the defendant who makes the offer, — a lawful act sanctioned by law in this class of
prosecutions, — and because it is made, no presumption of guilt must be raised against the maker, as
occurs in other criminal causes for public crimes in which the offer is not lawful because it is a thing
prohibited by law. The offer may have been prompted simply to avoid the annoyance of a prosecution, as
sometimes happens in a civil case where a person involved in the litigation is perhaps entirely in the right
but prefers to lose a sum of money rather than commence and prosecute an action. This case is, therefore,
on all fours with that of section 346 of the Code of Civil Procedure, above cited. At all events, for the
conviction of the defendants it is not necessary to consider and weigh this evidence; it could only be
considered as cumulative, and it was not taken into account by the trial court.

With regard to the 5th assignment of error which alleges that the penalty was excessive, it must be
remembered that the trial court exercised his discretion in fixing the penalty within the limits established by
law and that, in principle, what is authorized by law cannot be held to be arbitrary. But the penalty imposed
by the trial court in his discretion will not necessarily have to stand for that reason. If such a principle
governed, appeals would be useless. This Supreme Court also exercises its discretion, and, in a higher
degree, by its right of review in criminal causes brought up on appeal or consultation and of high inspection
over the administration of justice, it has the power to modify within the limits of the penalty provided by
law, in order to maintain uniformity in its application. If judicial decisions vary in the different provinces of
the Archipelago, even in identical or at least analogous cases, it is principally due to the fact that the judges,
acquainted with the extent of crime in their respective jurisdictions, are justified, in order to suppress crime,
in applying the law more strictly and severely in some provinces than in others in accordance with the
greater or lesser propensity to disobey the laws and the peculiar circumstances that prevail in each locality.
But within the same province such variation would not be justifiable, as it would transgress the law which
fits the penalty to the crime. In the Province of Cebu the court sentenced Lao Lock Hing, for the possession
of 70 tins of opium, to five years’ imprisonment and a fine of P10,000, or, in case of insolvency, to
subsidiary imprisonment; but this Supreme Court reduced the penalty to two years’ imprisonment and a fine
of P3,000 (14 Phil. Rep., 86 1). In the same Province of Cebu, Miguel Villano was charged with having
bought and sold 190 tins of opium — although one of the charges was for 100 tins only, valued at P3,000,
because the 190 tins were received on different dates — and was sentenced on the charge for the 100 tins,
to one year and two months’ imprisonment and to pay a fine of P2,500, a judgment which was affirmed by
this Supreme Court (18 Phil. Rep., 359 2). In another cause also tried in Cebu against one Look Chaw for
the sale of 30 tins of opium, the penalty imposed was one year’s imprisonment and a fine of P2,000; this
also was affirmed by this Supreme Court (19 Phil. Rep., 343 3).

The foregoing sentences are in notable contrast to the case at bar in which Regino Torres is sentenced to
three years’ imprisonment for the possession of two tins of opium, valued at scarcely P120, and Pablo
Padilla to one year and one month for the possession of one tin of the same drug, worth probably P60.

The judgment appealed from is affirmed, with the understanding that the imprisonment to be imposed upon
Regino Torres shall be that of nine months, and that upon Pablo Padilla, six months, each of them to pay the
costs of this instance in equal shares. So ordered.

Torres, Johnson, Carson, Trent and Araullo, JJ., concur.