[ G. R. No. 24187. March 15, 1926 ] 48 Phil. 877
[ G. R. No. 24187. March 15, 1926 ]
THE PEOPLE OF THE PHILIPPINE ISLANDS, PLAINTIFF AND APPELLEE, VS. TAN BOMPING ET AL,, DEFENDANTS AND APPELLANTS. D E C I S I O N
OSTRAND, J.:
The defendants Tan Bomping, Leon Galindo, Policarpo Tambor, Lucio Macalisang and Andres Burias are accused of the crime of falsification of public documents, it being alleged in the information upon which the case went to trial “that on or about the 21st and 22d of November, 1923, in the municipality of Jimenez, Province of Misamis, Philippine Islands, and within the jurisdiction of this court, the above-named accused, confederating together and co- operating with one another, did willfully, unlawfully and criminally prepare and cause to be prepared eight fictitious and simulated documents acknowledged before a notary public wherein the accused Tan Bomping conveys to his co-accused Leon Galindo, Policarpo Tambor, Lucio Macalisang and Andres Burias eight parcels of land belonging to said accused Tan Bomping, making it to appear in said documents that the same were executed on previous dates, about the years 1919, 1920, 1921, 1922 and August of 1923, when as a matter of fact said documents were executed and signed by all the five defendants on November 21, 1923, and acknowledged by them before a notary public on November 22d of the same year.” Upon trial the Court of First Instance found all of the defendants guilty of the falsification of private documents and sentenced Tan Bomping to suffer one year, eight months and twenty-one days of presidio correctional and to pay a fine of 625 pesetas. Each of the other defendants was sentenced to six months of arresto mayor with the same fine as that imposed on Tan Bomping. All of the defendants appeal to this court. The evidence shows beyond a reasonable doubt that the defendant Tan Bomping, in order to escape the attachment of his property in a civil action then pending, on the 21st of November, 1923, executed eight deeds of conveyance of various parcels of land, of which he was the owner, to his co-defendants, and that he intentionally antedated the documents. Duly certified copies of the deeds are in evidence and are marked Exhibits A to H, inclusive. Two of them, Exhibits A and B were executed in favor of Leon Galindo and given the date of January 15, 1920. These documents were witnessed by Policarpo Tambor and Andres Burias. Two other deeds, Exhibits C and D, were made out in favor of Policarpo Tambor and dated October 10, 1921, and October 15, 1920, respectively, and were witnessed by Leon Galindo and Andres Burias. Exhibits E and F were executed in favor of Andres Burias, dated August 15, 1923, and witnessed by Leon Galindo and Policarpo Tambor. Exhibits G and H were executed in favor of Lucio Macalisang and dated January 20, 1919. The subscribing witnesses were Leon Galindo and Policarpa Tambor. On the following day Tan Bomping took the documents to a notary public and acknowledged them in the usual manner. The notary, observing that the documents bore earlier dates, apparently became suspicious and at his instance, Tan Bomping stated under oath that they were-executed and signed on the dates therein stated. Upon the facts stated, Tan Bomping is manifestly guilty of the falsification of public documents and not merely of private ones as found by the trial court; he not only falsified the documents, but was also directly instrumental in causing them to be made public documents. The case against his co-defendants is not quite as clear and there is room for a reasonable doubt as to their knowledge of the true character of the transactions described. The majority of the members of this court are therefore of the opinion that said co-defendants should be acquitted. In his assignments of error, counsel for the appellants raises several questions of law which we shall briefly discuss. In the original information filed in the present case, the defendants were accused of the crime of estafa with falsification of public documents. A demurrer to this information was sustained and the court ordered the fiscal to amend the information or present a new one. In compliance with this order, the fiscal amended the information so as to charge falsification of public documents only and counsel for the appellants now argues that under section 23 of General Orders No. 58 the court may order the filing of a new information, but has no power to order an amendment. This contention must be regarded as having been set at rest by the case of United States vs. Muyot (2 Phil., 177), in which this court held that the trial court has authority to direct amendments to an information or complaint in a criminal case. There is in fact no difference in substance between an amended information and a new one, and whether the information upon which the case goes to trial is styled “New Information” or “Amended Information” is wholly immaterial. Counsel for the appellants also argues that the trial court erred in admitting in evidence certified copies of the falsified documents instead of the originals. It appears, however, that the originals were in the hands of the defendants; that the fiscal made demand upon them for the production of the documents in court; and that the defendants refused to comply with this demand. In these circumstances the duly certified copies were clearly admissible (see sections 321 and 322 of the Code of Civil Procedure). No proposition of law is better established than the rule that secondary evidence is admissible whenever primary evidence is not obtainable, and this rule applies to criminal as well as to civil cases (Allen vs. State, 21 Ga., 217; Commonwealth vs. Jeffries, 7 Allen, 548). The case of United States vs. Gregorio and Balistoy (17 Phil., 522), cited by counsel for the appellants in support of his contention, is not in point. In that case it does not appear that a reasonable effort was made to procure the original of the document alleged to have been falsified. The statement in the decision that “in criminal proceedings for falsification of a document, it is indispensable that the judges and courts have before them the document alleged to have been simulated, counterfeited, or falsified” is much too broad if it is thereby meant that the production of the original of the document is indispensable in all criminal prosecutions for falsification. In any event, the statement can only be considered obiter dicta. As we have already stated, the court below erred in holding that the crime committed was falsification of private documents. A deed acknowledged before a notary public is a public document and the fact that the false dates were written into the documents here in question before said documents were presented to the notary, does not alter the case if they were so presented by the parties who committed the falsification or at their instance. For the reasons hereinbefore stated, the appellants Leon Galindo, Policarpo Tambor, Lucio Macalisang and Andres Burias are hereby acquitted of the crime charged in the complaint with their proportional shares of the costs de oficio. We find the appellant Tan Bomping guilty of the crime of the falsification of public documents and hereby sentenced him to suffer prision correccional for the term of four years, nine months, and eleven days, and to pay a fine of 250 pesetas, with subsidiary imprisonment in case of insolvency, and to pay one-fifth of the costs of both instances. So ordered. Malcolm, Villamor, Johns, and Villa-Real, JJ., concur.