130 PHILIPPINE REPORTS ANNOTATED

United States vs. Abuan

[No. 1113. April 15, 1903.]

THE UNITED STATES, complainant and appellee, vs.PEDRO ABUAN ET AL., defendants and
appellants.

1. CRIMINAL PROCEDURE;  COMPLAINT.—Section 90 of the Code of Civil Procedure has no

application to criminal actions.

2. CRIMINAL LAW;  PRESUMPTION.—The nonappearance of an eyewitness does not raise any

presumption unless it appears that his testimony was willfully suppressed.

3. CRIMINAL PROCEDURE; PRELIMINARY HEARING.—The preliminary hearing is no part of the

record on appeal, and contradictions in the statements of witnesses or irregularities in the
proceedings must be proved at the trial in order to be availed of.

APPEAL from a judgment of the Court of First Instance of Union.

The facts are stated in the opinion of the court.
E. H. White, for appellants.
Solicitor-General Araneta, for appellee.

WlLLARD, J.:

1. Of the fourteen assignments of error made by the counsel for the defendants, the first four
relate to the complaint. Though it is said that the complaint is unintelligible and ambiguous, the
defendant's counsel nowhere states in what respect it is ambiguous. We see no such defects and
hold the complaint sufficient.
2. That the complaint is not drawn in conformity with section 90 of the Code of Civil Procedure
is not important. That section refers only to civil actions.
3. That Severina Lomboy, an eyewitness of the robbery, did not testify is no ground for a new
trial. General Orders, No. 58, section 15, gives to the defendants compulsory process for obtaining
witnesses. If they wished the testimony of this witness, they should have called her themselves.
It does not appear why this witness was not called. She may have been dead or absent. In order
that the presumption mentioned in section 334, paragraph 5, of the Code of Civil Procedure may
be operative, it must appear that the testimony was willfully suppressed. That does not appear in
this case.
131

VOL. 2, APRIL 17, 1903 131

United States vs. Sweet

4. Assignments of error 7, 10, and 11 relate to the sufficiency of the evidence and the credibility of
the witnesses. We are of the opinion that the evidence is sufficient to support the conviction.
5. We have frequently said that the proceedings before the justice of the peace in the
preliminary hearing are not a part of the record of the trial in the Court of First Instance simply
because they are found among the papers sent to this court. If the defendants claimed that the
witnesses testified differently in the Court of First Instance from what they did before the justice
of the peace, they should have proved in the Court of First Instance what was the testimony of
the witnesses before the justice. So, if it is claimed that any proceedings before the justice were
irregular, proof of this irregularity should have been made before the Court of First Instance, so
as to have properly incorporated in the record of the case in that court the proceedings before the
justice. Nothing of this kind was done in this case. This disposes of the assignments of error 8, 9,
12 and 13.
The judgment of the court below imposed a fine of 25 pesos upon the defendants. As the law
does not authorize a fine in this class of crimes, we assume that it was intended as indemnity to
the party injured and we so make it. With this modification the judgment below is affirmed with
costs of this instance against the defendants.

Arellano, C. J., Cooper, Mapa, and Ladd, JJ., concur.

Torres and McDonough, JJ., did not sit in this case.

Judgment modified.

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