[ G.R. No. 11555. January 06, 1917 ] 36 Phil. 5
[ G.R. No. 11555. January 06, 1917 ]
THE UNITED STATES, PLAINTIFF AND APPELLEE, VS. GABINO SOLIMAN, DEFENDANT AND APPELLANT. D E C I S I O N
CARSON, J.:
The evidence of record conclusively discloses that the defendant and appellant in this case, Gabino Soliman, testifying in his own behalf in the course of another criminal case in which he, with several others, was charged with estafa, swore falsely to certain-material allegations of fact.
On that occasion he testified falsely that a sworn statement offered in evidence in support of the charge of estafa, which was in effect an extra judicial confession of his guilt, had not been executed voluntarily, and that its execution had been procured by the police by the use of force, intimidation and prolonged torture.
The trial judge who presided in the former case acquitted the accused on the ground that there was room for reasonable doubt as to whether the extrajudicial confession had been made voluntarily, and his action in this regard clearly establishes the materiality of the false testimony submitted in that case; moreover, the materialityof the evidence is manifest without considering the judgment in the case in which it was submitted, since, if accepted as true, this false testimony necessarily had the effect of rendering wholly incompetent the evidence as to the extrajudicial confession which otherwise would almost conclusively sustain and necessitate a conviction. (U. S. vs. Estraña, 16 Phil. Rep., 520.)
There can be no doubt that the accused was guilty of the crime of perjury as defined and penalized in section 3 of Act No, 1697 and that the sentence of six months’ imprisonment and P300 fine imposed by the trial judge was correctly imposed under the provisions of that statute.
It appears however that since judgment was entered in this case on November 23, 1915, section 3 of Act No. 1697 has been expressly repealed by the enactment of the Administrative Code, which became effective on July 1, 1916, and it has been suggested that the judgment .convicting and sentencing the. accused under the provisions of that statute should not be sustained, and that the repeal of the statute should be held to have the effect of remitting and extinguishing the criminal responsibility of the accused incurred under the provisions of the repealed law prior to the enactment of the Administrative Code. We cannot agree with the proposition thus stated.
In the case of United States vs. Cuna (12 Phil. Rep., 241), we held as follows:
“The rule of interpretation of English and American common law, by virtue of which the repeal of a law prescribing penalties is held to have the effect of remitting or extinguishing any penalty, loss of rights or responsibility incurred under such law, as to all persons who have not been convicted and sentenced under the provisions of such law prior to the enactment of the repealing law, is not and has not been the accepted doctrine in these Islands.
“Where an Act of the Commission or of the Philippine Legislature which penalizes an offense repeals a former Act which penalized the same offense, such repeal does not have the effect of thereafter depriving the courts of jurisdiction to try, convict and sentence offenders charged with violations of the old law prior to its repeal.”
A question does arise, however, as to the penalty which should be imposed upon the convict.
If the repealing statute provides or has the effect of providing new penalties for the commission of the acts penalized under the repealed statute, should the penalty be imposed in accordance with the old or the new statute?
Article 1 of the Penal Code in force in these Islands defines crimes and misdemeanors as voluntary acts or omissions penalized by law; and complementary to this provision, article 21 provides that no crime or misdemeanor shall be punished with a penalty which has not been prescribed by law prior to its commission. In accordance with these provisions the question whether an act is punishable or not depends upon the question whether or not at the time of its commission, there was a law in force which penalized it; this rule being modified, however, by article 22 of the same code, which provides that penal laws shall have a retroactive effect in so far as they favor persons convicted of a crime or misdemeanor.
The courts of Spain and the learned commentators on Spanish law have construed these provisions to mean that such penal laws are to be given a retroactive effect only in so far as they favor the defendant charged with a crime or a misdemeanor, and that, when a penal law is enacted repealing a prior law, such repeal does not have the effect of relieving an offender in whole or in part of penalties already incurred under the old law, unless the new law favors the defendant by diminishing the penalty or doing away with it altogether, and then only to the extent to which the new law is favorable to the offender. In other words, that the enactment of new penal laws, notwithstanding the fact that they contain general repealing clauses, does not deprive the courts of jurisdiction to try, convict and sentence persons charged with violations of the old law prior to the date when the repealing law goes into effect, unless the new law wholly fails to penalize the acts which constituted the offense defined and penalized in the repealed law.
Thus Pacheco, commenting upon the new Penal Code of 1848-1850, of which article 506 provided that all general penal laws were repealed by its publication, says:
“At this time when the Penal Code is being put into effect and given force, we have in fact two criminal laws in Spain, and close attention is necessary to apply them properly. There may be prosecutions which it is necessary to dismiss, as, for example, those for sodomy; others which it may be necessary to decide in conformity with the provisions of the new code, as, for example, those for carrying concealed weapons; and others which must be judged in accordance with the old provisions, as, for example, many cases of robbery. The rules of procedure in one or other manner being furnished us by the former article (article 19 of the Penal Code of Spain identical with article 21 of the Penal Code of the Philippines), and the present article (article 20 of the Penal Code of Spain and article 22 of the Philippine Code). Has the code increased the penalty? Then it is not applicable to crimes committed prior to its enactment. Has it extinguished or diminished them? Then it is clearly applicable to them.” (1 Pacheco, 296.)
And a similar construction was placed upon the provisions of the Penal Code of 1870 by the supreme court of Spain. Article 626 of this code (which is substantially identical with article 506 of the Penal Code of 1848 and article 611 of the Penal Code of the Philippine Islands) repealed all general penal laws prior to its promulgation, but the court held that, where a crime was committed prior to the publication of the reformed code, the penalty prescribed by the code of 1850 (the code prior to that of 1870) being more favorable to the accused, that must be applied. (Decision of the supreme court of Spain, 17th of January, 1873.)
We conclude therefore that in any case in which a statute prescribing a penalty for the commission of a specific offense is repealed, and in which the new statute provides new and distinct penalties for the commission of such offense, the penalty which must be imposed on one who committed the offense prior to the enactment of the repealing statute is that one which is more favorable to the convict. (U. S. vs. Cuna, 12 Phil. Rep., 241.)
It seems important, then, to determine whether the repeal of section 3 of Act No. 1697 by the enactment of the Administrative Code had the effect of providing new and distinct penalties for the commission of the crime of perjury, and whether the new penalties are or are not more favorable to the convict in the case at bar than those imposed by the trial judge.
Section 3 of Act No. 1697, which defined and penalized the crime of perjury, repealed the provisions of the Penal Code defining and penalizing the crime of perjury, not expressly, but by implication, and we are of opinion .that the repeal of Act No. 1697 revived those provisions of the code. (U. S. vs. Concepcion, 13 Phil. Rep., 424; U. S. vs. Estrana, 16 Phil. Rep., 520.)
In the absence of the most express language to the contrary it will not be presumed that it was the intention of the legislator to let false swearing as to a material matter in a court of justice go unpunished, and such would be the effect of the repeal of section 3 of Act No. 1697, unless we held that the repeal had the effect of reviving the old statute.
At the common law the repeal of a repealing act revived the former act (6 Co., 199; 1 Gray, 163; 7 W. & S., 263; 2 Blackstone, 32; 54 N. J. L. J., 175) ; and the Supreme Court of the United States has held that the repeal of a repealing law has this effect, unless the language of the repealing statute or some general statute provides otherwise. (U. S. vs. Otis, 120 U. S., 52 [115].)
Manifestly, with this rule in mind, section 12 of the Administrative Code (Act No. 2657) which is found in Article III, [Chapter I] dealing with the form and effect of laws in general, provides that “when a law which expressly repeals a prior law is’ itself repealed the law first repealed shall not be thereby revived unless expressly so provided.” From which it may fairly be inferred that the old rule continues in force where a law which repeals a prior law, not expressly but by implication, is itself repealed; and that in such cases the repeal of the repealing law revives the prior law, unless the language of the repealing statute provides otherwise.
Applying this rule, we conclude that the express repeal of section 3 of Act No. 1697 by the enactment of the Administrative Code (Act No. 2657) revived the provisions of the Penal Code touching perjury, which were themselves repealed, not expressly but by implication, by the enactment of Act No. 1697.
A comparison of the penalties prescribed in the Penal Code for the commission of the acts of which the accused in the case at bar was convicted, giving him as we should the benefit of the provisions of Act No. 2142, discloses that the penalty prescribed therein is less than that imposed upon the appellant under the provisions of section 3 of Act No. 1697, and we conclude from what has been said already that the penalty imposed by the court below should be revoked and that in lieu thereof the penalty prescribed in the Penal Code should be imposed upon the convict.
A question has been raised as to whether, admitting that the provisions of the Penal Code touching perjury have been revived, the accused can be convicted and penalized thereunder, it appearing that at the time when he testified falsely he was testifiying in his own behalf in a criminal case in which he himself was the accused, on trial for the commission of a grave offense.
In the case of United States vs. Gutierrez (12 Phil. Rep., 529), we said, speaking through Chief Justice Arellano, that, “Perjury committed by a party in his own cause would not be punishable under Spanish legislation, because in said legislation no one was a witness in his own cause, and could not therefore become guilty of giving false testimony in a civil cause in which he was either the plaintiff or the defendant; but under the procedure in force by virtue of Act No. 190, a party to a suit may testify in his own behalf, and if he declares falsely under oath as a witness in his own cause, like any other witness, he incurs the penalty by which false testimony in civil matters is repressed and punished. This court has so held, it being a settled rule, that the false testimony given by a litigant as a witness constitutes the crime of giving false testimony inasmuch as such a declaration, according to the new laws in force, may determine a judgment in his favor and to the prejudice of the adverse party, and that a litigant who, in sworn testimony given by him as a witness in a civil cause, shall pervert the truth and give false testimony, incurs as such witness the penalties imposed by article 321 of the Penal Code.”
Analogous reasoning leads to a like conclusion as to the criminal liability for perjury of a defendant in a criminal case testifying falsely in his own behalf. Under the provisions of General Orders No, 58 an accused person may, if he so desires, testify under oath in his own behalf, and in that event “if he declares falsely as a witness in his own cause, like any other witness, he incurs the penalty by which false testimony” in criminal matters “is repressed and punished.”
It has been suggested that such a ruling will have a tendency to expose accused persons to vexatious criminal prosecutions by prosecuting officers, who, having failed to secure a conviction on the original charge, may be disposed to institute criminal prosecutions for perjury from a vindictive unwillingness to let the defendant escape scot free from the meshes of the law. It is said also that the fear of subsequent prosecution for perjury will tend to embarrass accused persons in their efforts to defend themselves by testifying in their own behalf. But similar objections may be advanced against the prosecution of any of the witnesses called for the defense on charges of perjury, and it must not be forgotten that the right of an accused person to testify under oath in his own behalf is secured to him, not that he may be enabled to introduce false testimony into the record, but to enable him to spread upon the record the truth as to any matter within his knowledge which will tend to establish his innocence.
Of course much must be left to the good sense and sound judgment of the prosecuting- officer in determining whether a prosecution for perjury should be instituted against an accused person whose testimony in his own behalf would seem to be perjured.
Due regard for the situation in which an accused person finds himself when testifying in his own behalf in a criminal proceeding will restrain a prudent prosecuting officer from the filing of charges of perjury in every case in which he may have reason to believe that the accused has not adhered strictly to the truth, in his anxiety to shield himself from punishment. But when, as in the case at bar, an accused person voluntarily goes upon the witness stand and falsely imputes to some other person the commission of a grave offense, it would seem to be highly proper that he should be called to account in a criminal action for perjury upon the complaint of the person against whom such false charges are made.
Article 319 of the Penal Code is as follows:
“Any person who shall give false testimony in favor of a defendant in a criminal case shall suffer a penalty ranging from arresto mayor in its maximum degree to prision correctional in its medium degree and a fine of not less than three hundred and seventy-five and not more than three thousand seven hundred and fifty pesetas, if the case were for a felony, and the penalty of arresto mayor if it were for a misdemeanor.”
We conclude that the judgment of conviction entered inthe court below should be affirmed but that the sentence imposed therein should be reversed, and that giving the accused the benefit of the provisions of Act No. 2142, a penalty of 4 months and 1 day of arresto mayor and a fine of P75 with subsidiary imprisonment as prescribed by law should be imposed upon him in lieu of that imposed by the trial judge, with the costs of this instance de oflicio. So ordered.
Torres, Johnson, and Araullo, JJ., concur.