[ G.R. No. 15081. December 19, 1919 ] 40 Phil. 603
[ G.R. No. 15081. December 19, 1919 ]
THE UNITED STATES, PLAINTIFF AND APPELLEE VS. ROSAURO ENRIQUEZ, DEFENDANT AND APPELLANT. D E C I S I O N
TORRES, J.:
Upon an information filed by the provincial fiscal in the Court of First Instance of Bulacan accusing Rosauro Enriquez of the crime of a violation of the Gambling Law (Act No. 1757), the present cause was instituted and on February 27, 1917, judgment was rendered therein sentencing the accused to two months imprisonment with costs. From said judgment counsel for the defendant appealed. It appears that during certain days in August and September, 1916, a game called jueteng was going on in the house of Pedro San Agustin, municipal secretary, situated in the barrio of Liang, municipality of Malolos, Bulacan; that one of the bankers was the accused Rosauro Enriquez, who used to receive the sums betted, for the collection of which were employed Quirino Reyes and Marcelo Santiago; that the latter testified affirming the foregoing fact and saying that (as collectors of said sums which the players used to give to them in their respective residences) they used to deposit the money collected into the hands of the bankers, among them the accused Enriquez until September 9 when they were arrested by the insular police. The accused pleaded not guilty, and in his testimony denied that he knew said collectors, Reyes and Santiago, or Sergeant Isidro Roxas of the Constabulary, who was one of the agents watching Pedro San Agustin’s house, which the accused admitted he frequented and stayed in during two days in the month of September, 1916, on account of stomach trouble. Section 7 of Act No. 1757 prohibits the playing of monte, jueteng, or any form of lottery or policy or any banking game, etc.; and according to section 3 thereof any person violating said Act shall be punished by a fine of not less than P10 nor more than P500 or by imprisonment for not more than one year, or both such fine and imprisonment, in the discretion of the court. In case of a second conviction both fine and imprisonment shall be imposed. It is an indisputable fact that Rosauro Enriquez, being one of the bankers of the game of jueteng which was being played in Malolos, he was conducting this game with others, employing the two collectors, Reyes and Santiago; and for that purpose the accused stayed at the house of said Pedro San Agustin, where he lived and received the sums which his collectors were able to collect from the players, having in this manner violated its provisions and has incurred the penalty provided for by law. In attacking the judgment appealed from, counsel for the accused alleges that the trial court erred in admitting, as ground for its decision and as evidence of the charge against the prisoner, the testimonies of Quirino Reyes and Marcelo Santiago, witnesses for the prosecution, who had also taken part in the game of jueteng; and that, said witnesses not having been charged in the information filed by the provincial fiscal, they could not be allowed to testify against the accused because they have not been previously excluded from said information in order that their testimonies might serve as evidence for the prosecution and against the defendant. With the object of ascertaining whether or not the pretension of the defense is tenable and in accordance with law, we insert the following first two sections of Act No. 2709.
“Section 1. Every prosecution for a crime shall be in he name of the United States against all persons who apfpear to be responsible therefor, except in the cases determined in section two of this Act. “Sec. 2. When two or more persons are charged with tne j commission of a certain crime, the competent court, at any ; time before they have entered upon their defense, may direct any of them to be discharged, that he may be a witness for the Government when in the judgment of the court; “(a} There is absolute necessity for the testimony of the accused whose discharge is requested; “(b) There is no other direct evidence available for the proper prosecution of the crime committed, except the testimony of said accused; “(c) The testimony of said accused can be substantially corroborated in its material points; “(d) Said accused does not appear to be the most guilty, and “(e) Said accused has not at any time been convicted of the crime of perjury or false testimony or of any other crime involving moral turpitude.”
From the provisions of the foregoing two sections, the inference is that in order that they may be utilized as witnesses for the prosecution to prove the existence of the crime and the guilt of its author, it is neither requisite nor necessary that said persons be previously charged in the information even if it appears that they had taken part in the commission of the crime. The fiscal is free to produce as witnesses for the prosecution, all the persons who had been present at, and cognizant of, the perpetration of the crime and who he believes can testify to the truth hereof. To do this, neither is it requisite that there be circumstantial evidence or presumptions showing that they or some of them were accomplices or might have taken part in the crime, nor is it necessary and indispensable that they be previously charged or included in the information so that, upon being afterwards excluded, they might testify as witnesses for the prosecution against the accused. The fiscal may not have sufficient evidence to prosecute a definite person who, according to informations received by him, had a participation or took part in the commission of a crime; and under such circumstances he does not violate any procedural law by producing said person as witness for the prosecution without previously charging him in the information and afterwards excluding them therefrom, provided he is qualified to testify in the proceeding. Any witness who has testified for the prosecution or for the accused may afterwards be charged in an amended complaint and be brought to trial after the cause is decided. To do this, it is no obstacle that said witness has testified in the same cause for the prosecution or for the accused taking always into consideration the fact that the testimony of a co-author of a crime, who in turn admits and confesses his own guilt, is perfectly valid and binding against his co-accused so long as said testimony appears substantially corroborated at the hearing by circumstantial evidence. The sole and principal object of the law is, not to restrain and limit the action of the prosecuting officer, but especially I to impose conditions whereby an accused, already charged , in the information, may not be arbitrarily and capriciously : excluded therefrom, as must have happened more than once, ,, and to remedy the evil consequence of an unreasonable and groundless exclusion which produces the real impunity per; haps of the most guilty criminal and subjects to prosej cution the less wicked, who have not found protection in ; whims and arbitrariness unlike others who have secured unfounded and unjust exclusion when they really deserved severe punishment. The provision of section 1 of said Act cannot be understood as limiting the Fiscal’s action and the court’s power as to the production and admission of witnesses as long as they were not charged in the information lest they might afterwards be accused of the same thing to which they testified—because criminal process is only binding and produces its consequences when the guilt of the person accused of a crime is established. If the Fiscal, charged with the prosecution of all crimes in the name of the Government, does not believe that he has sufficient evidence to warrant the filing of an in formation against a definite person or persons, he is not, naturally, obliged to do so; and if he believes that these persons may be useful as witnesses for the prosecution, there is no law prohibiting him to produce them as witnesses against the accused, without prejudice to his right to charge them in an amended information as participants in the crime if afterwards he has sufficient evidence establishing their participation therein. From the foregoing considerations, it appears legallyproven that the testimonies of Quirino Reyes and Marcelo Santiago as witnesses for the prosecution are relevant and material and, together with other evidence, have satisfactorily established the guilt of the accused Rosauro Enriquez as banker in the game of jueteng. For these reasons, the judgment appealed from must be affirmed, as we hereby affirm it, provided that the accused Rosauro Enriquez is further sentenced to pay a fine of two hundred pesos (P200) or to suffer the corresponding subsidiary imprisonment in case of insolvency with costs against him. So ordered, Arellano, C.J., Johnson, Street, and Moir, JJ., concur.