[ G.R. No. 2731. November 06, 1906 ] 6 Phil. 621
[ G.R. No. 2731. November 06, 1906 ]
THE UNITED STATES, PLAINTIFF AND APPELLEE, VS. CHAUNCEY MCGOVERN, DEFENDANT AND APPELLANT. D E C I S I O N
ARELLANO, C.J.:
This case having been duly tried, judgment was rendered convicting the defendant of the crime charged. The defendant appealed to this court, wherein he has made the following assignment of errors alleged to have been committed at the trial and in the rendition of judgment, to wit:
(1) That the court never acquired jurisdiction to hear and determine the case against the defendant by reason of the lack of all preliminary investigation.
(2) That the court erred in overruling the demurrer to the complaint interposed by defendant.
(3) That the evidence adduced did not establish the guilt of the defendant beyond a reasonable doubt.
There is nothing in the appellant’s brief relating to the matters of the case showing that the court below committed the last two errors assigned by him. He is therefore bound by the findings of the court below and the order of that court overruling the demurrer, he not having raised any question in regard thereto.
As to the first assignment of error it is alleged (1.) that no preliminary investigation was had, and (2) that the only deposition taken at the time of the issuance of the warrant of arrest was that of the complaining witness, who never signed. These were the same grounds upon which defendant’s motion to dismiss the case in the Court of First Instance were based, and that court, in its order overruling the said motion, said:
“Considering that a preliminary investigation was made by this court before the allowance of the complaint, and before the issuance of the warrant for the arrest of the defendant, and further, that the matter which is alleged to be libelous is embodied in the said complaint, this being the reason why such preliminary investigation consisted of the deposition of the complaining witness, Mr. Haussermann, only, and which said deposition has not been attached to the record for the reason that it is not a part of the same but which may be attached thereto if the court should deem it proper, etc., * * *” (record, p. 21).
Counsel for the defendant presented a motion to this court which was granted, asking that the Court of First Instance be ordered to send up to this court the deposition to which reference is made in the order of the court above referred to. This deposition appears on page 26 of the record and it purports to be a deposition taken by the stenographer but not signed by the witness.
If the signature of a witness to testimony given by him at a trial when such testimony has been taken by an official stenographer is not necessary according to section 32 of General Orders, No. 58, much less should such signature, be required in & preliminary investigation, but however it may be, this was a mere formal defect that could not in any way affect the validity of the proceedings and constituted no error.
Moreover, the complaint was filed in the month of August, 1904, when Act Hfo. 612, approved February 3, 1903, was in force. Section 2 of that act provided: “In cases triable only in the Courts of First Instance in the city of Manila, the defendant shall have a speedy trial, but shall not be entitled as of right to a preliminary examination where the prosecuting attorney, after a due investigation of the facts under section 39 of the act of which this is an amendment, shall have presented an information against him in the proper form: Provided, however, That the Court of First Instance may make such summary investigation into the case as.it may deem necessary to enable it to fix the bail or to determine whether the offense is bailable.”
The court, acting upon the complaint filed in this case, issued a .warrant for the arrest of the defendant, taking into consideration for this purpose the result of the investigation held by him with the assistance of the assistant prosecuting attorney of the city of Manila, Jesse George, the court being of the opinion that the crime of libel with which the accused was charged had been committed, and that there were reasonable grounds to believe that the party charged had committed it (record, p. 7). Such, and no other, is the purpose of sections 13 and 14 of General Orders, No. 58. They require that a preliminary investigation be held by the court for the purpose only of inquiring as to whether there is reasonable ground either to order the arrest of the party charged or to direct that he be released from confinement in case he has been held in detention for the commission of an alleged crime.
There was, therefore, no lack of preliminary investigation in this case. Investigation made by the judge was not substantially defective, nor was it necessary, and this is the most important, the complaint having been, presented to the Court of First Instance of the city of Manila, in which an accused person is not entitled, as a matter of right, to a preliminary examination. Consequently no law or statute has been violated by the court below, and due process of law has not been lacking.
The trial court sentenced the defendant to subsidiary imprisonment in default of payment of the fine imposed, but the act punishing the crime of libel is a special law and no penalty can be imposed except that which is expressly provided therein. That act does not make any provision for subsidiary imprisonment.
We accordingly affirm the judgment of the trial court in all respects, except in so far as it condemns the defendant to subsidiary imprisonment, the defendant to pay the costs of proceedings. Ten days after the rendition of final judgment, let the record be remanded to the court below for execution. So ordered.
Torres, Mapa, Willard, and Tracey, JJ., concur.
Johnson, J., reserves his vote.