[ G.R. No. 11566. August 10, 1916 ] 34 Phil. 715
[ G.R. No. 11566. August 10, 1916 ]
THE UNITED STATES, PLAINTIFF AND APPELLEE, VS. MARCELO JOSE AND TAN BO, DEFENDANTS. MARCELO JOSE, APPELLANT. D E C I S I O N
TRENT, J.:
Marcelo Jose and Tan Do were each sentenced to pay a fine of P200, to suffer the corresponding subsidiary imprisonment in case of insolvency, and to pay one-half of the costs for a violation of section 3 of Act No. 1523. Marcelo Jose alone appealed.
It is now urged that the trial court erred (a) in not allowing the appellant a reasonable time for procuring counsel and in appointing an attorney de officio to defend him against his wishes, and (b) in finding that the evidence of record establishes the guilt of the appellant of the crime charged beyond a reasonable doubt.
The mercantile firm of Marcelo Jose & Co., composed of Marcelo Jose and Tan Bo, was located at No. 200 Calle Harris, Olongapo. Both members of this firm were arrested on the night of May 16, 1915, and placed in confinement. About 2 or 3 o’clock in the afternoon of the following day, May the 17th, the store was searched by the authorities and a one-tenth part of a Macao lottery ticket was found therein. At the time this search was made neither of the owners of the store was present. Tan Bo, the managing partner, testified that this lottery ticket was sent to him by a friend in Amoy and that when he received it he put it in an envelope and placed it in the drawer and that his partner, Marcelo Jose, had never seen it. The appellant, Marcelo Jose, testified that, although he is a member of the mercantile firm of Marcelo Jose & Co., he knew nothing of the existence of the lottery ticket until he saw it in the court of the justice of the peace, and that he lived in Manila and went to Olongapo only when the business required his presence.
Section 3 of Act No. 1523 provides that it shall be unlawful for any person to sell, give away, use or have possession of, with intent to sell, give away or use, any lottery ticket. This court has held that the animus possidendi must be proved in opium cases where the prohibited drug was found on the premises of the accused, and the same rule is applicable to the case at bar. In United States vs. Tin Mass (17 Phil. Rep., 463), we held, quoting from the syllabus, that:
“It is a general rule that, when any of the prohibited drugs, enumerated in section 31 of the Opium Law, are found upon the premises occupied by a person accused of using the same, there can be no conviction under said section unless it affirmatively appears that he knowingly had the prohibited article on the premises, or that the animus possidendi in fact existed together with his alleged apparent possession or control of such article. But direct proof of facts of this nature, in a criminal proceeding, is rarely forthcoming, except in cases of confession, and their existence may and usually must be inferred from the varying circumstances in each particular case. When a full, satisfactory, and sufficient explanation of the presence of a prohibited drug on the premises at the time of the seizure is given, which is entirely consistent with the allegation of the defendant to the effect that he did not have the same in his possession, there can be no conviction and the accused must be acquitted.”
The testimony of both this appellant and Tan Bo stands uncontradicted and the Government did not attempt to impeach the credibility of these witnesses. We therefore agree with the Attorney-General that the prosecution failed to establish the guilt of the appellant of the crime charged beyond a reasonable doubt.
For the foregoing reasons, the judgment appealed from is reversed and the appellant is acquitted, with costs de officio. So ordered.
Torres, Johnson, and Araullo, JJ., concur. Moreland, J., concurring and dissenting: