The Lawyers Journal

Media

Part of The Lawyers Journal

Title: The Lawyers Journal
Issue Date: Volume XVII (Issue No. 12) December 31, 1952
Year: 1952
Language: English
Rights
Abstract: THE LAWYERS JOURNAL is published monthly by Hon. Vicente J. Francisco, former senator and delegate to the Constitutional Convention, practising attorney and president of the Francisco College (formerly Francisco Law School).
extracted text: JAL~WYERS JOURNAL VOLUME XVII· QDDDDDDDCIDDOOOOO VICENTE J. FRANCIKO Editor and Pnhli!lhC'r LOPE E. ADRIANO UON S. DEL ROSARIO Asi;,lstant Editors ADELA ·ocAMPO B1.1si11ess Manager RICARDO J. FRANCIKO Assistaut llu>1i11ess Manager MANILA, PHILIPPINES D~CEMBER 31, 1952 NUMBER 12 ln this issue CHRISTMAS MESSAGES: Chief Justice Ricardo Para• __________ •• ___________________ _ Justice Pompeyo Diaz _________________________________ _ Secretary Oecar Castelo -- -- -- -- __________________________ •• Judge Conrado V. Sanchez __ •• ________________ •• _________ _ EDITORIAL: ..... 617 617 617 617 The P.ace and Love of Chrietm .. __ -- ______________ •• ________ 618 IS A LAWYER BOUND TO SUPPORT AN UNJUST CAUSE1-By A. 8. Cutler, New York bar -- -- -- -- -- -- -- -- -- -- -- -- ________ •••• __ __ 619 THE MINIMUM WAGE LAW (Continued from the November leeuoJ •• ______ 621 AMERICAN DECISIONS: Morr'le Leland, vs. State of Oregon - J.,.stice Clark -- -- -- -- -- -- -- -- -- -- -- •• -- __ -- -- ________ 12J Justiocs Franfurter and Black, diuenting ______________________ 630 Brotherhood of Railroad Trainmen, vs, Howard - Justice Black -- -- -- -- -- -- __ -- _________________ ._ __ __ 832 J ... stlc .. Minton and Reed, •nd th• Chief Justice, diHsnting __ __ __ __ 634 PHILIPPINE DECISIONS: Pitar11ue vs. Sorill--.lustice Labrador -- ______________ ·-- __ .. ____ 636 Sta. Mesa Slipways, et al, vs. CIR and Tadina-Justics Mont.mayor __ -~ __ 63t Talaroc vs. Uy - Justice Tuason -- -- -- -- -- -- -- -- -- -- ____ -- __ 642 Justices Pablo and Padilla, concurring __ __ __ __ __ __ __ __ __ __ __ 144 Judge. Montesa, et al, vs. Manila Cordage Co.-Justice Pablo __ __ __ __ __ 646 Laxamana vs. Baltazar-Ju.tic• Bsngzon -- __ __ __ __ __ __ __ __ __ __ 647 D ... maguin vs. Reynold .. st al.--Justics Montemayor __________ -- -- -- 648 People vs. Remalants - Justice Padilla -- -- ______________ ... __ __ __ 6&3 Adm. ca .. No. 126-in re: Atty. Rover-Chief Justice Paras __ __ __ __ 654 In re: P•tition for Probate of Will of deceased Da. Leona SingsonJustice Bautiste Angelo -- -- -- -- -- -- -- -- -- -- -- __ •.. -- ______ &54 Evangelista vs. Borian-.lustic:e Padilla ________________________ 656 Gonzales vs. Asia Life Insurance Co.-Justice Bsngcon ________ •• ____ 668 People vs. Capistrano-Justice Jugo, •• -- -- •• __ -- , ____________ •• 6&9 DECISIONS OF DIRECTOR OF PATENTS: No. 2, Series of 1912 -- -- -- -- __ -- -- -- -- -- •• -- __ ••.• ______ ISO 8 THE LAWYERS· JOURNAL :::T~::,~N~:~::;A:~L::.~NP':.:!~~~~~~O~S-~N--u:_s~-A~-D-~--~· ~: =~ :: is published ~011thly by REPUBLIC ACTS: Se11; Vicente J; Francisco, No. 7~ •. reconltitution in the Bureau of Minse of lost or destroyed former delegate to 1he m1n1ng records •••• ____ -- __ -- -- __ -- -- -- -- ________ •• •• 672 Constitutional .Couventien, No. 740, amending the Coal Land Act -- -- __________ •• ______ ••. __ G72 practising attorney and No. 743, protection to locators, holder, lessees and operstor1 President of the Francisco of unpatentsd mining claims -- -- -- -- -- -- -- -- •• ____ .••• __ 674 Law School. No. 746, amsnding the Mining Act -- -- -- -- •• -- -- __ •••• ________ 674 SUBSCRIPTlON AND AD- No. 810, authorizing the Guerilla Amnesty Commission to hear VERTISING RATES: BOOK ~~~~c:.:.~n1 in certain dacidad cases -- ____________________ 1575 S11b~crip1ion: P24.00 a year. Criminal Law (RsviHd Penal Coda), Vicente J. Francisco ____________ 678 Advertising: Full pageDlili!iliiii~iJiiiiiiiiliii9'1iii:B:ii'Jiiiiii:iiiiiiiliiiiiiimilliiiiiii:!iiiliiiiii:m:li!iiiilill;iiii:iiliie'Ui!l~iliiiliiliiiliiiii:.art 105.clO; Hal£ page - ~ 'l'flS.00; One-fourth page - PlS.00; One-eight page--.fl'35.cl0: One-sixteenth page - P.25.00. Entered as second dass mail maller at the Post Office. EDITORIAL AND BUSINESS OFFICE: 1192 Taf1 Avenu~. t.Janiht., Tel. 5-43~55. 1' 0 OUR READERS ALL FRIENDS AND EVERYBODY WE EXTEND THE SEASON~S GREETINGS" AND ALL BE.ST w I s H E.,. s FOR A MERRY CH RIST MAS f#i!! I\ Is your lns~~~nee adequate? I Many people ;at .. to realize that . a Fire Poiley only a few years old ----.,-------~--- ean be .;.mpietely out-Of-date 1 1 b..;.~ .. o~ Increase of::.~~ "' TODAY Compliments of ENCAL PRESS & PHOTO ENGRAVING PRINTERS ,. BOOKBINDERS ,. PUBLISHERS ., PHOTO ENGRAVERS NZ llanpatan llialllla "" Toi. 2-84-52 I I I We'll help YOU! I , .. ,, .• .co'·' DOX'US All Kfor1. All li:i1wl• excertlifc Jltop. ~- nvtl». . .·· GJ~ct ~ompattJ BRANCHES in Eaco'od City, lloilo Ci~~· Cebu City. Dev.ao Citv. Cabanatuan City., Lega1pi City, Tarlac, Tarlac, & Vi~an, llocos Sur Dr. Agustin Liboro . Gov.••. flalili Office1·s: Prealder.t Vlce-Pre~dent 'I II·'" 'H I II Ll ____ ei_i_i''_·"_tm_a_" __ m_._"·_"a_'I __ "_"_· - - Ap~;.t from "it• reli11iou11 •l1nific:.noe, Chrllltma• bringa a natural feuion .. an effective me.ne for promoting peace and contentment· leellng of. Jo,. and 1eneroeity, ThOM who enjoy llfe In material abun• amon1 all men, lnetHd of for c:rHting oonfuaion and misundaHtandin11. ctanM aN 9t; leallt relieved from the l'tll!•dar 'enelon of Hlf·eatiety .ti>" .. A. pro1,aroue and happy nation cann~ th11ive on litlgationa. IMlng In uma mHsuN lndUo.llt::b~--H·rt.1 .t the oeo"hton tO gift~-· _: ' ' evt1n a llttla to their 1 ... fortunatti fellow man, The Christian world Marry Chrlstm .. mnd Happy New V.ar to all. ie thus, made to n:perlan.H a ..... of general goodwlll. ' ... T~11; .... -.~~~: of the ~"~ arid ~~ ·Ba; :may ~II. d~r:t their::•(·. entio~ ~~ .•rlo.g, .and ·paiin._kin1 judiciial •".' legal wqrl!c. to b11-,..,W• ~,.Nflsot.&l!cf. med.itil.U •P!i-' thti ohrince• of 1co1tllizl~ tholl'·choHn·pra•: I believe th.t Chl'letmH ie 'IOt e time to -pect new 0 bleuin9s, Reth•l't it ie •till!• of OOU'!tl-:!8 w~et ·We heY,,·1lf9,·heelth1 end whet• evw· we .... Pflvilegecl ta enjoy ~ ear.thly geode end heppJne ... ·It le a ... eon of giving, not eo much of metel'iel gift., •• of those of the iUalrlt - . fo11.glw.neu ta· OUI' e~mi-.., :comP ... i11n l-o th• unforlli"ete, 1o~dwill ·ta eli :men .... 1~:thle: ~- ..rii: eJt1,ulci aelebl'et. .Phl'let;1n .. .-.1n:' .i. • ..,lrit of thenkqi~lnii. f6; whet we. ~41ve;:11lving of· ourHlvee, rn9': from e Hn-~. of obll1eti~1 ~ut '.m·-imit11tlan of "-''m WhoH dey it ..... . (Sgd.) RICARDO PARAS Chillf· d.ustice · · · ~UPN_m• Court ls;:~lio· aeve :~jm..:if l:fece.uSo He loved uli.··',.H9 ·11ivee riothing bUt:. wtirthleee gold, who givee from" e eenee. of dut;o." To., .• 11 ~eedei-s of th• Lewye,._Jou,.n.j;1 and::in ;pj.;...ic,i.ilel', ta ell nte.~~•;• o.f}h~ p~uelo~, •. mer:i-i "C.h~l~"l·• .•!' .. : ~ ~~ppy N_ew y .. ,. .. : ! ;"($1d.) POMPEVO· ·Dl;Az Prti•r.clinif · il~diiJti' Court of Appdle · I aift ·i:l~9plY AppN°c'.iatiW of .the opporiunity afiord~d ·me to :ur:tend sh~uld come aro~hd rtigula,.fy ev~ry ,. .. r if biit 'tD ·..Jn:i~d ~. tltet abOve to my collea11uee In the low pl'ofeeeion, through the pagli~ of the Lew· blliing !.•w)reref '!Vii iarit tioue ch,.1d1e.ne ilnJoinecl\O f~;,e One" enothel' enir )icn .Joul'nel, my Wlll'meet end einoereet greetings of the .... on. Per• to fee[ Ill •l•in"st nObody, 1.~ ~ ~oqfd .be m'a~ •. ~.a"pprecl•te _bethl' h•pi.·'more th~ to "eny-:othe,. groUp of .people. the ~pil'lt o't Ct!i-istmee I erid prmc~ioe the .vlrtu'es of' Chrl•t, "there Is nO.d•lly~na thet t~e· regal dereeay conveys • tl'Uer mooning end pul'p~oe i~ the membe~ of the. prif'-1on r.hell acqiiir1i' e mer". ·h~nortid Nputi'tion~ ~iui tfi~f~liy ae• lq•I profHeion. euN Itself of • heelthie; rospect and .edmll'Atlon by the rest of OUI' . : i~ .J;· pa~ ~nd parc"el oj the. exerclee Of op; oomifton pro~OMlon thet· fCl~litwmen. Con'cOmlta~ly, lta •tenderde will iii~l~~b~Y be l'aiee~ ht l'htiilrt.a·~iii:l_ii.ilferonce"s Of Opln.lon ebould exJit-~m~·n, ue: i~ le like· : hi&~ili'-leV.le end m•ke··ue ••rn_"the ne_m•. ot.,tti::.'1uliirdlens of"T:ew wllie· ~ildiinl~llle "thet ~rtlnioeiti.., giopilg~e and m-fe;dinis ha~ been-· an_~)~•tlo~'. · . _ ' : . . ~.:~ . ~~~~([:~!.~f.~~~~t:!:;::~::~:::::~::::~:.. ·I w;oh ••• oll • Mmr Ch•;•tm .. ::~~~~;~~~;;~0 +lfllllllf.: Th•;ip,.bl!gatio.n of· the L•wyera..:.rournel· ls.:coupJed:witil!-p.6.airC,. i.'~he )I':~~-~- a~i,ij: to.end, ·He•viO"I' t•eke ffit.1M1~;Ll.ewyere;·~ClUJ'nel lnte .... t. · · • \. :· - are eheitd. \.111t" the 8euon ·b·~ing. to. the eclilol'll ~ rif· the ·LawseN ··!•;: · · · · Jc:Aiii.el .encCto'·ti'iO• wkcl..:u"~lflehly•havi. d.eelloateCl.·theil' tlme.aJld To:~he bel' it (s • l'.flrninder that le~:.livnot·.11tii.t~·-~·1~~~~ogre.:See en91'8y.end hove oontrli;uteci metel'iela for the:"p:a&liqi,lion thereof, the witfa the~~·~" of time. . It opf!ne ·fClr "the law,iero irn :unendin1 .Vis~ .. eetlaf.ao'tlOn that tho elgnal. urvicia th•t .they , .l!r9 · 1'9/lde.rlng ·to· thp, of th•. lew;_~lt ite ~•,.i®.~· ramifi~tlons .. end.".iti:e< jui-jepl'uclence 1ntt1f·. _, bonch1 to the bal' end to the notion et lerge will find edequete com· pretatlv.e of t"'- I~. T~ trea~ieee of .... .now:ftell· aiathOrr.-ghN •mple pf!rfe•n in tha tho1,1ght th•t. thei.- wo,.k·iii weli donltl. · :::.:i:f':~·~ ==~~=::.::;~ ~;~1i:,~:=:=~ -~:::·::~_._;:,.~.·~ '.; ·1~~-~•~r Vice~~:) J:·--~~~~~~2 t+te··-~~~-..:~~~u'6"8 the ~wyen denoL· Jour.nel, ~omm:i.nd.111! the ~spect: •!Jct the:Jfettfi .,,9':9' of'Mllli·llench·and th9 To ua of tha bench the Lewyere Journel he• been, ••· tcl~•Y jt is, . a. guidepost: pointing to ua the oouree to puroue in the di-roe leg•I matt.re brought to the courts fol' reeolutl•n._:- Time end' •geln cOurts of justice wore benefited by publicatlone i~ the Lew~ers Jo~l'MI on lr-teresting points of Jew. There Is no gain .. ylng th• feet thet court: doclalone there 1.re, publlehed end uftpubllohed, which hove rri'adtl re·~ .. ·· ference to citetione from the Lew)'OI'• Journel. :T .. S"enetol' :F,.encie:.co:ar,d~the'L•wy•J'S"·~oUl'naliehe fut¥re is• ch••·· lenge.~ W8•h.ope .f~r- .... .i:-r .11uccteil. ·:.~· • "::1"· (Sgd.) CONRApO V. SANCHEZ Acting Exeoutht• Jw:lge Court of Fil'&t lnstenoe of Menile 61'1 l:Jttoria/ · Tbe Peaoe and Love of Clarldlllu And tluu, qain,: Christmas. The chill of the Docember "air is over the land, the sh·><t day is dull. and damp, and at dawn it is aometimea cold enoua:h to see your breath. 1 he rice harvest is being gathered, aml in. th.? far-off villages, the pe.-ants are still simple enough to celebrate. the ..... t with -•· and dances whicl> tbi> cit~ folk have· hon~ lcrl<!tten. From Apani· t<> Joie. th .. bright clothes to be _,, at midnight mau are being sewn by the women; the men are bUly making the colored lantern• that will hang from the windows or" around tile- big be/en in the town plaza. The air is redolent of chestnlllr roaalllol: - eb....,.I and of the sharp l"l>Ok of acetylene lampo that liahr; up the fruit stands in the cl>urch patio. The new shipyard in, Sii&aan will ooon build and service big ships, and a jute factory is busily turning out thousands of jute bags that were formerly brought in and paid for in scarce dollan. There is much to be thankful for on Chrl•lmas, 1952. Andyer,The rich land is not everywhere fruitful, many farms will yield no harveot tliis" :!(Oar. The H•ad· of the State, surveyinthe B"ICOI penniiuula by air, noted the dovastation. caused bv two typhoons coming oae after tlie other and decided not to collect taxes from the Bicolimos this year. In central Luzon, great trac17& of fertile land' lie. abandi>ned to cogon, for one cannot raise crOps. wh~ there is no peace and order. In Manila the stores anDOUDCe extension Of. their office hours and tlie Blue. Sunday Law is SU1pended so that the people can go to the llotes to blQI their Christmas presents. The crowds that throng tlie streers look brieDl'· into the glas• windows and pass. OD, searching lor something that can be purchased with the Minimum Monthly Wage. Iii tlie· - · at nigllt, small bands of hopeful boys trv to make .....,. will> their· piping voices, a hotne-made bamboo flute and a pair of incopgruow castanets, but the people remain deaf to their Cbrmmas carols or their mambos, and the windows remain dosed. Down in Joie a band of outlaws which the Army, withdta planes ancit0nb andllanu.thro-. and speciall.-vain"d polioa· dogs could - capture;. finally ......aci- and drives a harcMmpin. Cmvicnd by a COUit of· law.- for • .,.belllon, with n111lliple· murdms'.', dw band is pardoned before· they even enter· the-prison· gate, Pelhapotherewill be peace-in Jolathis-Christmas. Far away fium, the Philippines, everywhen-. in. the world, there is "not peace, but a sword." The newly elected American Pto.idont- hu iwt· finished a: tour of· the Eilropean battle front and! J;m.ely· aclmii-. dtat: hi> has; - •"'Y" solution to the mo-· blem. In the middle East, not far from the hills where the shepherds fint saw the Star of Betlehem, a conflagration whose brig)nneu 11111¥ ouuhiile· that· ~tar, threatens. eveey day. Somewhere in the watery wastes of the Pacifie Ocean. on- a· God for .. salterr coral >eel, the· radioactive dobris loft by the explasion of the fint bydregen• bom~ lios· strewrr Oil' the beadi1 m.,.kiilg· t.he graves of the· 011nna;J" ..,d veget•ble life Mat it halt e~ted. And in the United States, the highest court of the land affirmed the-death· sentence on a man and his wife, convicted of diaelosinsc the secrets of the atomic bomb to another country. good'~LJ to Goel: in the highest,· and on· earth peace to-men .or Almost two thousand years 1-. peace· is· ·tarther anywa~ than. ... r; and mm of· goed JOill· ""' ouRlning each otlier ·t;ying· t.. build the bigger bomb,. the fa- plaue, the- m.,. i.tlia[; weapdn with. which to wipe out 1.11•n• from lho face of the- 0911h, Wal· this be the last Christmas in this world? It will be.i at that precise moment that man uses the hydrogr.n :-= t~orse~:~ ~cn.:;=~~ar fusion bomb) against his neighbor m It will be. as long as men look on their neighbors- as enemies. not as brother.. It will be as long as they believe tha_t might mak<'I right,. and· that the end· jUstifies the means. This ma,y indeed be the last Christmas, if we fOrgei thO meaning of thO' Fint Chriitanu; Far men whq dO DOI have faith in m•rr will ultimately make manltind extiDCr, and·· men who do not beliew· in the- miracle of line and" faiili ciinnot have any id~~ of the -,.vorth of human· life. There hi no defense agaiilst an atomic bomb, nor '!Ye• another atomic bomb, and those who live bY the sword shall die by the aword. Nineteen centories is a long time, IDll!r enoqli to proYe th .. immutability of c:errain trutli~· But man's q_aemory is short and his undentanding pathetically simpli. And so, on Christmas day, on Triangle Hill and SniP<I" Ridge, men will greet each other· with bull°' and" bayoaet In many a farm in Pampanga •. and Nueva Ecija. the doora: and. windows will be ~osed and barred OD Christma"s Eve. Along Escolta. and Plaza Santa. Cruz the neon up will tum night ;11·0 day, lisbting· up tJie. sky for miles around, eye11 even the caves·· of .Jntramuros and the brJTOnr-barong alon(f the estenlM Ami" all)'· dar now; Malacamm wil) put Ull. a Chiistmas party fer the "°"'' and the Fint Lad}' of the land will cistribute her gifts· witb a gracious smilei. The- big companies wili Kive their faithful' em:. plQYees a month'• bonw, and the Social Welfare Administration· will send out its field workers to look for the Ten or Hundr•d Neediest Caset. · "Fhus, again, Christmas.· " " " " 81 THE. LAWYERScJOURNAL Deeemlier. 31, 195!b'' Is a Lawyer Bound to Support an Unjust Cause? . by A. S. CUTLER• , . . The layman's question which has most tormented the lawver over the years is: "How can you honestly stand up and def<ond .a man you know to be guilty?" Or, a'S to civil cases: "How can you defend a case whe::i rou know you client is wrong and really owes the money <iought i' .. At the outset we must («:member that in a democratic country even the worst offender is entitled to a legal d.:.fender. If a percon accused of crime cannot afford a lawyer. the court will_ assign one to defend him without cost. Many lawyers however, believe the right to defend means the dU.ty to ~iiiploy any means, including the presentation of testimony th~ la~yer knows to be false. , · Should ihe Lau>yer Blindly Reflect His Client! Such an attorney argues the lawyer has no right to judge b: ~ client to be guilty or to apprai'se a civil action by deciding .i.i~ c&ent is in the wrong. Such a lawyer argues that before one kno Nfl. _a person to be guilty in a criminal matter or wrong in a ch·il adion there mllSt be a judgment of the C9urt to that effect. Judgments are notoriously uncertain when ap~lied to conflicti;.g evidence. In supPort of ·this position, advocates enjoy r~citing the following colloquy attributed to Sai:n.uel Johnson by his famous bil)gr&.pher, James Boswell: ·· BOSWELL: But what do you think of supporting a cause you irnow to be bad? JOHNSON: Sir, you do not know it to be good or bad till the jud_ge determines it. You ar~ to state facts clearly: !IO that your thinking, or what you call knowing, a cause to ~ bad must be fro_!!l rea!oning, must be from supposing your argumenls to be weak and inconclusive. But Sir, that is not enough. An argument which does not covince yourself mav convince the judge to whom you urge it; and if it does convince. him, why then, sir, you are wrong and he is right. It is his business to judge; and you are not to be confident in your own opiniOn that a ca.use js bad, but to say all you c3.n for your client, and then hear the judge's opinion. BOSWELL: Why, no, Sir,_. Everybody knows you are paid you have no warmth, and appearinv to be clearly of one opinion when you are in realitv of another opinion, does not such.dissimul8tion impair one's honestv? I'S there not some dan11:er that a lawyer may put on the same mask in commo-i life in the intercourse with his friends? JOHNSON: But. Sir, does not affectin11: a warmth when for afrecting warmth for your client, an.d it is therefore properly no di'ssimulation: the moment you come from the Bar you resume your usual behaviour. Sir, a man will no more carry the artifice of the Bar into the c~mmon intercourse of scciety, than a man who is paid fq_r tumbling upon his hands will continue to. tumble on his hands when he should walk upon his feet. · . It is argued that what a lawyer 'says is not the expression of his own min<J and opinion, but rather that of his client. A lawyer has no right to state his own thoughts. He can only say what his' client would have said for himself had he pOO:iessed the proper skill to represent himself. - Since a client is de\;med innocent until proved guilty, a lawyer·s knowledge that his client is guilty does not make him •so. As one attorney put it: The lawyer is indeed only the mcuthpiece and prolo• The author Is a member of the ~ew York Bar (New York City}; thb~ piece Is t11.ken from the American Bo.I" Journal, April 1!152.The Editora. cutor of his dient, and the underworld, in their characteri<Jtically graphic manner, indeed call their lawyers the mouthpiece. It is well to remember that an advocate should never bt:come a litigant, a's it were, and must never inject his own thoughts and opinions into a case. It is asked: Hew can a lawyer, or any person for· that matte'", know whether a person is guilty before his guilt is establisi1ed? "To be guilty" under our concepts of due process means to be so adjudged after a trial by a jury or cau;:t "\S due process in the particular case mav reauire. A perso:i charged with crime mi,ht be completelv deprived of counsel. For all the la-wyers in the community millht believe him guiltv and wash their hands of him. · Again: How does such. prejudgment of guilt differ from .the lynch mob, which i'S equally ~ convinced of guilt that it considers a trial an idle ceremony? True, to be Sb:\J.~g uP l]y the lynch mob without a trial may be son;i.~what more embarra~sing to the victim than to submit to a tri~l without counsel, but, if defense counsel plays the irriportant role which lawyers like to think he doe's, a person ch-arged with crime is indeed in an unhappy position if he has to rely on ·his own knowledge of the law ·and wits t!> counter ail experiencetl prosecutor bent on conviction and whose success is mea'Sured }Dr his percentage of convictions. · Another lawyer contends: On undertaking a client's cause, he must wipe out the villainy of the defendant with all the re'3our.ces at his command. Are not the facts that are unfavorable to his client to be left for the prosecutioD.? · · · If the lawyer may see the better way and approve (not to foster claims that are wrong) the circumstances that c'lmpel him, ~specially in criminal cases, tO follow the les':ier. Thus the law:ver lives with the maxim: "Video meliora proboqr.:e deteriortz sequor". · Such an attitude we submit enti~ely ove~looks the bifurcated robes of a lawyer. The duty is not simply one which he ow~ his client. . Just as important is the duty which the lawyer =J.wes the court and 'Society. Great as is his loyalty to the client, even greater is his sap c?ed obligation as an officer of the court. He cannot ethically, and should not by preference, present to the. court assertions \le knows to be false. The Canons of Professiohal Ethics of the · American Bar Association are deaf., succinct and unambigtious: The office of attorney d~ noi p~rnit, much less does it demand of him for any client, viO.\ation of law or anv manner of fraud or chicane. He must oi?eY his. own con-· science and not that of his client. The lawyer must decline to conduct a civil cause or to make a defense when convinced that it is intended merelv to haras's or to injµre the opposite party or to work oppression or wrong. His appearance in court should be. deemed equivalent to an as!ertion on his honor that in his opinion his client'~ case is one proper for judicial determination; The American Bar A::.·sociation recommends this oalh of ~dmission: I will not counsel or maintain any suit or proceeding December 31, 1952 THE LAWYERS JOURNAL 619 Is A La~r Bound To Support An Unjust c-u .. 7 which ehall appear to me -to be unj~. nor any defense ex~ (':~ :1, i.!i~lieve to be ,t.OJieslly debo'a~e 'l!lder ~ ·- I will emp~ for the purpooe of maiotainml the .. ..., confided to me such means only as are consi1tent with truth and honor, and will never seek to mislead the judge or jmy by any artifice or false atatement of fact or law. It io oaly when a lawyer rNlly believes his client is innocent that he ihould undertake to defend him. All our democratic safquards are thrown about a per,on · accused of a crime so that no innocent man may suffer. Cuilty defendants. thou•h tl.ey are entitled to be deleoded sincerely and . hopefully, lhould not be 'entitled to the pn!tentation of false testimony and insincerl! statements by--1. ·: It io too glibly said a lawyer should not judge hio 0w0 cijent and that the court•s province would thus be invaded. In more ·than 90 per cent of all c'riminal cases , lawyer knows when bra client io auiJty ar llOl guilty. The facts usually atand out with slaring and !lartling siJ.Dplicity. 11 a lawyer knows ~is client to be guilty, ·it io bi's' duty in ·such cue to tot aut the extenuating facts and plead for mercy · io which the lawyer sincerely believes. In the infrequent .numbet of cues where there io daub! of the client\ guilt anll the lawy.er sincerely believes his dient io innocent, he of coune should plead 'hia client's· caUIO to the b""t of hio ability. · · In civil caaet, the ~ of doubt is undoubtedly considerably l!l'eater. At a guess, only· one-third the cases pre10nted to • ·lawyer are pure black or pure white. In nilly one-third of th• · c .... does ·the lawyer indubitably know hio dient io wrong or righL lo the other two-thirds gray is the predominant· color. It is •he . duty of the advocate to appraise .the dient"s caute in bis favor. after giving due consideration to. the facts on the other .;de. lo such a case, it ls of course the dutv of the advocate to present hio dient's C!"! io tho' best of his ability; · r.1 . , Where the lawyer ia coovioced, alter 81..iyu;g the law and the la<:ts. that hio dient cannot s~d. his dutv is to obtain _the best settlement he can, fairly and .. peditiouoly. Every hour of ·the day, the lawyer is a persuader. Hi's surceH must be measured by the ability he possesses to make oth~ see 'lituations in the -.ame ligln that he does. That does not mean, however, that the lawyer should fool himself, He shaulci not be such a partisan that he blinks at the true facb and views the situation through. the raoe-colored glasses c:.f hopeful._ partisanship, ar hio. own self-interest. A lawyer lhould ,...-ship truth and fact. He '<hould uu · hesitatjngly ~.ut out the evil spirits of specious rea1oning. of douht .. 'ful daims, <3f incredible or improbabl~ nremiaes. Truly, the boot persuader io one who has first really persuaded himself alter a careful analysis of the lacits t.!>at he io on the risht side. Some allert that laW)'ers must be actor§. That is only partially b'ue. An actOr can porb'ay abysmal grief or eatatic happiness- without haYing any such corresponding feeling in his own heart. A young actor can well portray the tragedy of Ki•~ Lear, though hio I- is unwringled and unmarred alter has make· up is remcwed over ~'°;!.h:;~ 'd::1r'!:: ~;g~i: :~·~u'?.b"! mere girl whose aaly relationship with children has been with I"' own sisters and brotto.ers. The good lawyer cannot make such quick aan~s •• t.h.t actor. ' The trUe lawyer can only be persuasive when he honeativ beijeYes 9',e is riadat. Then the able advocate is invincible. His persuasiveness is to powerful that it can pierce throuah IOek and • s!o.el•,. ltldoeAI.- it is so.-.stroog that it can chanp the mind of a jiiilge wlio 'bu' already decided to find to the cool[my. · · Ofttimes a lawyer has argued again1t his better 1uda:rDP.t, bu allowed himself to be persuaded aaaiM! himself. Sometimes too, he has won.. Yet, no lllf.tter ~ l!l'08t the mao, the true lawyer cannot di'ssembl.e. 11 he has. no confidence in his own locts and in the truth and righteoume11 of his dient's cause. then nc matter how hard he tries and how good an a- he may be. his auditors will perceive that he himself does not reallv belie .. ·what be utten. That way. lies di1aster. lo this search for the !,IUl'lainme~t of the truth, however, th• lawyer should not hypnotize. himself.' Merely be?use hio cllent retains him for a fee, the lawyer should· not oermit himoelf" to be o' erpenuaded. It has often been ••spec!ed that the more gold wiih which you croos the palm of the fortune-tolling «YP'Y· the better mirht i,.. the fortune slie would predic• It hardly need be •@id that lawyers, however, should be ahem the ilinerant and nomadic atatus of RYJ>sies. Their power to look the facfls in the eye should not be affected or weakened merelv by the size of the f~e involved. It is to be noted that in this diocussion, the lawyer always 0c:ts with sincerity and honesty. His }!_artisan paaition predisposes him Lo believe in his dient's cause. lje is not insincere. enou~. bow- .. e\"el", to tender facts that he knows to be false or take a pcnition · in .which he does not believe sincerelv. A lawyer who sians hio name to a set of papers, should in ellect vouch for the honesty and !aim.., of his cliont's cause. Otherwise strike and blackmail suits based upon improper motives would clutter up the court calendars to such an exent that honest and fair causes would be 'Seriously delayed in trial. It is as much the lawyer's duty to brush off and refuse ton .rticipate in cases that are mouldv i?id can· dDlv add _de1tructive fungus arowth to the tree of jU''1:ice, as it is to ·refuse to auilt Pl the subornation of perjury. ~ lawyer sho.uld .itrive to do his bit towards pruni•a and keeping alive the indisnemable flower of justice as the gardenq tends and nurtures his J>lants. All lawyers know everyone is entitled to the beat defenae h· cap muster. This does DC!t mean every lawyer m111t take· everv co.ff. including those in which he has no belief in his client•• conttntion.. For instance. a ~I-known public figure. very active at the Bar, refuses 19 represent alleged bootleggers. counterfeiters or rapists. Should he be cenaured because of such prejudices~ There are thcusagds of others at the Bar who could have repieoented defendants accused of those three crimes. when inde• i they were innocent. ' The matter of duty and personal preference is not to be CO'l fu1~. A lawyer has the right to repre~nt in civt1 courts the hu!baod or wile a..,...d of adultery. He does not have to do so ueless lie sincerely believes that his client i1 innocent of the offen"eo charged. · Of course. when a lawyer is assigned by the coun. he 'lil.Wlullill his obligation to the courL This does not indude, ·how· ever, presenting false oc improper tesili.pony. Nor doe. ~ justify diaimglation and i~sincerity, even .where the lawyer is consummat~ icg a court order to act in defendant's behalf. Rather it i> the duty of such an ad..,Cate to present all the relevaot. lacb and circumatances. If he can show the prose· cution is mistaken and his client is innocent. that is his duty~ If h• knows hi> client to be guilty; _then· it is his c!uty. merely to ,,.... (Continue~ on P•P '171) 620 ,THE 1,A WYERS JOURNAL December 31, 1952· The Minimum Waae L•w (REPUBLIC ACT No. 602) (Continued from the November issue) (g) If in a particular industry a Wage Board appoint. ed by the Secretary of Labor within one year after the effective date of this Act recommends that a further ex· tension of time before the application of the full statutory minimum is justified in such industry to avoid undue hard•hip to the indushy, the bosrd may recommend and the Secretary may approve an . extension not to exceed six months and at a minimum wage not less than the ·rate provided to take effect 0n the effective date of this Act. (h) With respect to piece-work or contra.et work, on petition of an interested party, the Secretary of Labor &hall use all available devices of investigation to determine whether the work is being compensated in compliance with this Act, and shall issue findings and orders in connection therewith. SECTION J MINIMUM WAGE lnoorpor•tion of •tatute. Emplo)'9ro liable notwithstanding belief of non-llability. R..-on for minimum wage of 'P8 outside Manila or environa, .. M•nila or ihl envil'Ona", explained. Reuon for axcludin11 retail and Hrvice. •nt•rpl'l&H regularly em• ploying not m.or• than five em.ployeH, Pleaning of retail eatabliament, Meaning of Hrvioe edabliahmsnt. AgPkultural employer owning twelve hectare• or IHa la not aubject to the Minimum Wage Law. Dom•tlc aervanta and tenant• are subject to the law. Minimum wage for crew of vaaaela of Phili1tpine Regietry regulerly calling at Manila. Allowance for two meal• or more. Reaaon for the provlaion fixing the amount allowed for meala. lneorporation of statute. The provisions of this section fixing the minimum measure of the employer's liability to pay for services rendered by an employee must be read into and form a part of every employment contract to which the section applies. Fletcher o. Crinnell Bros .• D. C Mich. 1946, 64 F. Supp. 718. Employer liable notwithstanding belief of non-liability. The burden on· employer to comply with wage provi. sions of this section cannot be shif.ted elsewhere notwith•tanding that employer believed he was not covered by this section and was subjected to an unanticipated liability and penalty. Berry o. 34 /roing Place Corpora.iion, D.C.N. Y. 1943, 52 F. Supp. 875. Reason for minimum wace of P3 outside Manila or environs. . The reason for fixing the minimum wage of PS for industrial workers outside of Manila or its environs is explained by the Chairman of the Committee on Labor, CO?lgressman Espinosa, in the following discussions. "MR. VELOSO (D). All right. What is the reason of the Committee in fixing at P3 the minimum wage for industrial workers outside of Manila or its environs? "MR. ESPINOSA (P). The reason is predicated upon the generally accepted fact that the coat of living in Manila is higher than the coat of living in the provinces; besides, in Manila there is a conglomeration of many industries and there is plenty of employment, and, naturally, the induatries are flourishing in Manila; business in Manila is given hetter opportunity to flourish. "MR. VELOSO (0). That is not my queation. My queation is, why does the Committee recommend PS as the minimum wage in .the provinces when we know very well bha.t the actual . . . "M.R. ESPINOSA (P). (Interpoaing.) That is a com, promise. "MR. VELOSO (D). Wage is only P2. Whereas in Manila the actual wage is P6 or P6 and you are recent· mllllding a lesser wage than that, or P4? Why is it that the Committee, when it comes to Manila, recommends a minimum that is less than the actual wage, whereas in the provinces the recommendation is above the actual wage? "MR. ESPINOSA (P). The intention is to cure an existing evil that exists in the country today. In Manila we have militant labor organizations; we have prlictieally almoat all the facilities whereby working men can ·be protected to the extent aome indus~es are even paying lligher wages than the statutory minimum, and theJ.'e is stUI a strong possibility of giving higher w&ge.s than the prevailing wages in Mania. But in the provinces th•.re is 110 such militant spirit; there are no such militant labor organization; they are still in the process of reaching that goal, and we want to provide them with .the adequate assiatance they need. It is about time that we do ao. "MR. VELOSO (D). Thank you." Journal of th~ Houie of Representalio<s, Session of ·March 17, 1951 (Debale1 on House Bill No. 1732) "Manila or its envirous''", exp.l1ained. "MR. LAUREL. In Section 3 of the proposed mea. sure, it is provided that not less .than PS sjlall be given as 11.·ages, if the enterprise is located outside of Manila or its environs. When we use the word 11environs*' do we have any definite geographical area? What are we to understand by the phrase "Manila or its environs"? Are we to know .that by a certain. geographical measure? Starting from Plaza Goiti, for instance, how are we to determine what we mean in this measure when we speak of "environs"? "MR. ESPINOSA (P.), The sense of the Committee, when we took up that word Henvirons", Was that it would cover. suc:h 111ueicipalities of the province of Rizal that are adjacent_~o Manila. If we did not specify that particular December 32, 1952 THE ~WYEBS JOURNAL 621 Th• Minimum W•a• Law delimination it was because there were some fears expressed in the Committee that· the.;, may be" certain unscrupulous employers who, in order to go around the provisions of this measure, will transfer their place of business tc a region adjacent to those municipalities and to the City of Manila, and we thought it wise to leave it to the courts to decide whether such contingency comes within the defbµ,tion of "environs". "'4R. LAUREL. That is precissly my point. Are we to perinlt an industrial .establishment for instance to go just a foot outside of the confines of Malabon wltich we might regard to be an environ of the City of Manila· to set up its esti\bllshment there and· then regard that part;.cular place as an environ of the City of Manila? ''MR. ESPINOSA· (P.). That is precisely the reason that we placed "environs" instead of making it definitely · municipalities adjacent to the City of Manila. We preforred environs because we are giving our courts a chance to decide whether such particular caaes, such a situation that you have mentioned, may come within the purview of environs. , · "MR. LAUREL. Would it not be better to define the term "environ" in order Dot to permit abuse, in ordel' not io en!lble a narticular industry or establishment to .riv• nOt P4 but PS to its industl'ial employees? Would it not be better for ua to determine what that phrase means, because it seems to me it is vague, instead of giving itg future determine t9 the agents outside of Congress? "MR. ESPINOSA (P.). I would appreciate an amendmont to clarjfy that point from the gentleman from Batanps." Journal of lhe House of RepresentalWes, Session of March 16, 1951. (Debal<& on Hou1< -Bill 1732) ..... "MR. VELOSO (D). On page 8, line 17, the words ''Manila or its environs" are used. What does this term "or its environs" inelu.de? That is quite vague. ''MR. ESPINOSA (P). ''Manila or its environs" was intended to mean thoae municipalities in the province of Rizal which are adjacent or contiguous to Manila. ''MR. VELOSO (D) San Juan, Rizal, ls it included? "MR. ESPINOSA" (P). I am .not very certain about the =~aphical position of the municipalitil'" adjacent to Ma"MR. VELOSO (D). What about Caloocan? "MR. ESPINOSA (P). If it is adjacent to Manila, yes. "MR. VELOSQ (D). What about Olongapo, Zambales, 11·here the cost of living is very high? · ''MR. ESPINOSA (D). What about Cavite, where the U.S. Navy is making the cost of .living high? "MR. ESPINOSA (P). That is not included." journal of tire House of Represenla1iv<&, Se..ion of. .March 17, 1951 (Debale1 on Houoe Bill No. 1732). Reason for excluding retail and servk;e enterprises r•plarly employing not more than five employees, ''MR. VELOSO (D). On the same page, line 28, we find the worda ·"does not regularly employ more than five empleyees." What is the reason Of the Committee in requiring five employees? Why not one only?' "MR. ESPINOSA (P).1 The reason of the Committee in making it five in the City of Manila is that there are minor ;repair or service establishments capitalized with only, say PW; like the small coffee shops that we aee in some remote sections of' the city. In those cases, as l"OU know this country is so poor that we have so many small service establishments · where people make only a small nominal amount everyday, such undertakings cannot survive the statutory minimuJD wage as provided in this . measure. So it was the sense of the Committee to exclude such service establishments .in order to permit them to exist." Journal of the House of Reprerentativa. Seouion of March 17, 1951. (Debates on Howe Bill 1732). Meaning of retail establisll!nent, "Retail establishment" as used in subsection (a) (2) of this section means a business mak'ng retail sales. Wall. ing v. Conoumm Co., C. C. A. Ill. 1945, 149 F. 2tl 626. A "retail establishment" under this section is one that sells goods in small quantities for profit and a manufacturer engagad primarily in the production of goods does not come within the· terma of the exemption. Collini v. Kidd Dairy &o /ce Co .. C. C. A. lex. 1942, 132 F. 2tl 79. Meaning of aervlce establishment. The term •lserviee establishment" within ~rovision of subsection (a) (2) of this section applies to establishments which sell services instead of goods. Nt.'UJ Mexico PubUc Service Co., v. Engel, C. C. A. N. M. 1944, 145 F. 2d 636. . The "service establishments'' contemplattcf by subsection (a) (2) of this aection creating exemption in favor of certain operators of retail or ...Vice .Stabllshments must, on the principle "noseitur a sociis,'' be of the same sort as the "retail" establish;ment, thaf is, one selling services to consumers, and the exemption ·should be limited to those who serve consum~s directly. Gueas v. Monfagu"e. C. C. A. S. C. 1943, 140 F. 2d 500. A "service establishment" within provision of rhis sectio:p. means an establishment which has ordinary characteristics 'of retail establishments except that services instead of goods are sold, and is an establishm"E!nt the }irincipal activity of which is to furnish service to the consuming public. 'FJ.em;ng "· A. B. J(jrochbaum Co., C. C. A. Pa. 1941, 124 F. 2d 567, affirmed 62 S. Ct. 1116, 316 U. S. 517, 86 L. Ed. 1638. Agricultural employer owning twelv; hectares or less is not subject to the Minimum Wage Law. "MR. ABORDO .. I am. not ·against the bill, but I just want to be clarified on certain points. Now, coming to the provision of Section 8, especially paragraph (b), referring to employers who operate farm enterprises, do I get from the gentleman from Iloilo that" in order thai. the minimum wage law may be applicable that the emp]Oyer must own no less than twelves hectares.? ''MR. ESPINOSA (P.). In this particular provision 1 C~man lilspinoaa is th~ Chairman of the Houae Committee on Labor. Author's note. 622 THE LAWYERS JOURNAL December 81, 1952 we exempt from the operation of the statutory minimum wage employers in agricultural and industrial enterpdses who have only twelve hectares. "MR. ABORDO. So that, in other words, even if the owner of an agricultural enterprise or employer thereof ~wning twelve hectares is employing during the kaingin season, for example, or during the planting season, more than aix or seven men, the fact is that they do not fall under this minimum wage law? "MR. ESPINOSA (P.). That is right. ~·MR. ABORDO. Thank you." Journal of lhe HoUH of Repri.en1aliJJa, s ... 1ion of Marc/1 16, 1951. (De&a1., on Howe Bill No. 1132). Domestic servants and tenants are not covered by the law. · PREGUNTAS DEL SEN. FRANCISCO EL SEN. FRANCISCO. Sefior Presidente, para algunas preguntas al ponente. EL PRESIDENTE. El ponente puede contestar si .le place. EL SEN' TORRE!!·' Con gusto. EL SEN. FRANCISCO. El tltulo del proyecto dice aai: "An act to provide for the establishment of minimum wages for agricultural and other employees, and for the Ollforcement of the provisions thereof and for other purposes," y el Art. 2, sobre definiciones usadas, pllrrafo (c) dice: "Employee' includes any individual employed by "" employer." tPodri. decimos ahora ai este proyecto incluye a los dom'8ticos, a· la servidumbre en una casa privada? EL SEN. TORRES. Si trabajan en una casa privada; no eaUn incluldos en este proyecto. EL SEN. FRANCISCO. LY que dice Vuestra Sefioria con resp~ a los choferes? EL SEN. TORREs. Si estos choferes trabajan en em· ~-resas industriales y agricolas y se dedican a aca>Tear f.fectos, est&n incluidos en el proyecto. · SEN. FRANCISCO. 6 Y si prestan servicio exclusivamente a personas particulares? EL SEN. TORRES. No estan incluidos. EL SEN. FRANCISCO. Los jardineros, y coeineros, /, esUn · incluldos? EL SEN. TORRES. Si trabajan en ·casas privadas, no sirven mis que una familia particular, no estin incluidos. EL SEN. FRANCISCO. Patece que intenci6n de! proyecto es excluir a los choferes y a los domesticos que no prestan servicios en. las industrias. EL SEN. TORRES. Asi es. PREGUNTAS DEL SEN. SUMULONG EL SEN. SUMULONG. Seiior. Presidente, para algu~as preguntas al ponente. . EL PRESIDENTE. El ponente p~ede contestar, si le place. EL SEN. TORRES. Con gusto. EL SEN. SUMULONG. Yo quisiera saber de Vuestra 1 Sen&tor Torres was the CbAl,rman of the Senate Committee on Labor. Author'9 note. · The Minimum Wai• Lmw Seiiorla si los aparceros que trabajan en terrenos de Ltroa estan incluldos en este proyecto de ley. EL SEN. TORRES. No, esos aparceros caen baja las disposiciones de la Ley de Aparceria. Senole Journal No. 17, Smion of January 5, 1951. (De&at .. on Senate Bill No. 202). Laborers hired by tenants are subjeet to the law. "MR. CUENCO. Immediately after the last word ·of the amendment of Congressman Mecapagal that was carried out, add a new sub-section (c): "PROVIDED THA:T THIS ACT SHALL NOT APPLY TO TENANCY OR CROP-SHARING CONTRACTS COVERED IBY EXISTING LAW." "MR. MACAPAGAL. I move to amend the amendment by deleting the word 'Provided, That.' "THE SPEAKER. Is there any objection? "MR. CONFESOR .. Objection, Mr. Speaker. "MR. MACAPAGAL. Does the gentleman from Cebu aceept the amendment to the amendment 7 "MR. ESPINOSA (P). The amendment is accepted, Mr. Speaker. "MR. CONFESOR. I withdraw my objection. "MR. CASES. Mr. Speaker, for a clarification. How would that stand with the viewpoint of the gentleman from Pangaainan that the tenants are empluying laborers? Granting that there are 8 hectares under cultivation by a tenant, those 3 hectares cannot be worked ·by that one tonant alone so he has to hire laborers according to the gentleman from Pangaainan. In that case, those laborers will not be covered by any minimum wage law? "MR.· CUENCO. I refer to-~ who are working as tenants; that is, they are compensated with partlcljJa.tfon in the products. · "MR. CASES. That is true, but there are big. tenant& occupying a big tract of land and these tenanta by ·necessity will have to employ laborers to help . them carry "" the work in the farm. Now, will they be free to employ laborers, to keep laborei·s wi·thout the !benefit of this law? "MR. CUENCO. The Committee of which I am a humtle member is not called upon to answer for the gentleman from Pangaainan. "MR. CASES. No; but here is a very good que•tie because even if a tenant can employ a laborer, is he exempted from the provisions of·this bill? •'MR. CUENCO. The word utenancy' and '~ shar· ing contract' are words that have legal acceptance in this country. "MR. CASES. I know but a tenant ean also be ·an employer if he occupies a big tract of land, like a sugar. cane planter. · · "For example, I get ten hectsres of land on the basis of the ·3&.70. I give the owner of the land 80% and I keep the 70%. But in order to work on ~ese 10 hectares; I have to hire laborers, even 20 or ·su laborers. N.W, .will these laborers be beyond the proteetiOn of this law, if your amendment is inserted? · · .. "MR. CUENCO. In my humble opinion, the qae•tion will be this: How will the employee be compensated? Will December 31, 1952 THE LAWYERS JQURNAL 628 The Minimum W•11• Law it be through the participation In the products of the land or not? If he hae participation, then he is a tenant. "MR. CASES. If he hu a share in the crop or product of the land, he is a tenant. But he may be compelled to employ ' Sdditional labor in order to work on the land he has leased from the landlord. "MR. CUENCO. If those workers hired by the tenant do not have participation in the crop but are compensated with a daily· w!'gO, then they should ·be considered as agricultural· workers; and therefore, they are covered by this Act. '' ' "MR .. CASES. Therefore, the amendment of the gen. tleman frpm Cebu is not necesll&rY, if that is the explanation given to it. . ' .. MR\·.CUENCO. It is necessary. "MR. CASES. I do not see any connection there. "MR. CUENCO. It is necessary because the word •tenancy" or 'contrado de arrentlamiento' are provided for in· ~.Jaws. "MR. CASES. It is unnecessary because that is alI'll8dy provided in the 'tenancy Jaw". "MR. CUENCO. Well, that is a question of interpr.,_ tation, and at ·least ~ humble self will not presume to give the definition of tenancy. · "MR. CASES. Now, 'why is it that this Jaw proposes te co-· something that has already been covered by the Tenancy Law which we have passed long time ago? "MR. C'UENCO. Yes, because with this amendment of-• the B'!ntleman from Tarlac and the B'!Dtleman from Iloilo and my huml!le self, the farm workers under. tenancy basis will be. excluded from this Minimum W&B'! Law. "llllR ·CASES. Mo,. it is already covered by previous l£ws;_thls· is O!lly sµpplementary. MR. ·CUENCO. I will give the floor to the gentleman ftem Te,rlac."MR. ROY. I do not think there will be any incODSistency ·with ""8peet to the rights of tenants In the· crop-sharing systiim if wage shares will be included in. this.•pro.v'ision here to clarify doubts as to the rights of the tenants to the fruits of his toil when entering into a 11artnership with the· landlord. Now, if a tenant employs laborers, naturally he falls under. this provision of the proposed amendment. we have to include this amendment because there ·is that relation between, tenant and landlord.. With respect to the laborer ....,.,iving wages, be· cause he receives his .W!lle& in :the form of share ol the crop, from the definition. of wage here and remuneration, it. -can be. exprease~ ht money and it will be considered &s w&Ps under the provision of this law. So, there is i;ea)Jy. doubt. whether . the share of the tenants may be tonsidered. as wages. . Henc:e . tlie .necessity· of including thetii in her"e; anyway, there· is no harni in· putting that h~:}$:°cASEs.' The ·.h&re of the_ tenant is a remu~'11'4tio11, <>f. bi• Jabor •. and the meaning of the word wage ii!.i>..t~i!:remuiieraiioii ~of h.is, 1abor.· · - "MR.·RQY., Right., ..... - "MR. CASES. And the gentleinl!!l f11!J11,_ Tari&!' is tht>•uthOl:':ot:~n'T-~Y .t.aw·."'.iliclr prOYi_ded f~. 70.so t:l'llP 'Sliw-Jng;·::· - · "MR. ROY. Yes, are you going to include· that under the. prOYislon af this Jaw now? "MR. CASES. No more. "MR. ROY. Precisely, that is the purpose of . this amendment. "MR. CASES. Do you think this law nullifies the tenancy law or supplements it? ·"MR. ROY. This supplements the tenancy law with respect to those laborers employed by tenants who are lazy to work on their own farm, .so they hire Jabarers to ·work. This amendment will clarify the doubt, became it clearly states that such laborers fall under the provisioils of this law. · "MR. CASES. So any laborer employed by a ·tenant is covered by this Act? · "MR. ROY. Yes; that's right. "THE SPEAKER. Is there any objection on the part of the House? (Al•..- o pause) The Chair does not' hear any. The amendment.·to the amendment -is approved.'' Journal of the House of Repre1en!a!W... Seuiort ~f ·Marc11"/7, 1951. (Dobal., on House Bill No. ·1132). Minimum wage for. erew .of vessels of Phili,.Une Registry regularly calling at Manila. "MR. CUENCO. I have another amendment: · This is in connection with another section of the Macapagal amendment. I move that after the last word of ·the Macapagal amendment, the following proviso· ·be- inierted, a new sub-Bection (d) "PROVIDED, FURTHER, 'THAT THE CREW OF VESSELS OF PHILIPPINE REGisTRY CALLING REGULARLY AT MANILA SHALL BE SUB· JECT TO THE MINIMUM WAGE FOR NON,AGRICULTURAL WORKERS IN MANILA, AS PROVIDED FOR IN THIS Ar::r.' "MR. ESPINOSA. (P.) I. """"Pt. the amendment. "MR. MACAPAGAL. Amendment to. the amendment. Delete the words: "Provided, further, That.; · "MR. CUENCO. Accepted. . "THE ·SPEAKER. Is there any objection to tU amendment to the amendment on the part of the House? (After a pauae.) The Chair does not hear.any. Approved. 11MR. CALO. Please restate the amendment. "MR. CUENCO. That was already. approve<!. Just insert this sub-section 'd). THE CREW OF VESSELs OF PHILIPPINE REGISTRY CALLING REGULARL:Y AT MANILA SHALL BE '5tlBJECT TO THE MINIMUM WAGE FOR NON-AGRICULTURAL WORKERS IN MANILA AS PROVIDED FOR IN THIS ACT::' "MR. CONFESOR. Mr. Speaker, I register my ob: jeetion to the amendment presented by the gentleman from Cebu. The amendment of the gentleman from Cebu is a reproduction of' the last senten.ce that has been amendec! already by the amendment which has 'been presented by the gentleman from Pampanga. And I cannot see any jlll8tifieation for presenting that amendment· again~ un. less the B'!Dtleman from Cebu wants to ·present a mi>tion for the reconsideration of ... the amendment . presented by the. gentleman f.rom Pampanga:.. That .)Nlrtlcuhlr -lllilendment that the gentleman from Cebu has presented, ....... I have· s;µ;i,· is· a: ·reproduction at the put !>f.-t!ie. bill _that THE LAWYERS JOURNAL December: 81,. 1962 has been swti1ru'9<1 by the 8.!0enclment that has been ~tee! and approved by the House. That has been amended already; that has been taken out from the bill b:r 'Oirtue of the amendment presented by the gentleman f1Dm PamJIBlllla. Wllat is the purpose of the gentleman :&om Cebu in presenting the amendment? "M'R. CUENCO. Mr. Speaker, I am proposinlf a new subsection after the Macapagal amendment which ha~ been approved. The cllstinguished Members of .this Chamber are aware that the Macapagal amendment has two m.tes of wages: one for agricUltural workers and anG»tber tot D.on-qricultural workers. Now, th.e shipping business is considered as an incluatry the laborel's of whM:I) are non-agricultural laborers or .industrial laborers. The 111'.ac:apagal .amendment pro.vides a minimum wage of four pesos for Manila and a minimum wage of three pesos on the effectivity of this Act, for places outside of Manila. '1'her& are v.essels of Philippine rqislry tbat halve' as their hQJlle. ports any . place Gllt•ide of Manila. F'm· example, take the case of the vessel SS. DDa J·ulio. That vessel has f.or its bo!ne port the port of Iloilo, but that vessel oills resular~ at Manila. It is but just for the crew of this v.sel that thl!Y be given tile· rat&·of - · for·indusbrial WDl'kora for Ma.nila, tllat is, fooir pesos. 'lM.R- OONFESO.IL Do I ulldlorM&nd that the crew of this· vessel of Philippine registry that calls at Manila should be given a minimum wage for agricUltural workers outside. of Manila or in Maaila? "MB- CUENCO. Jlly· amendment ls tbat these crew of vessela O!f Pilili,ppine "lfistry that have ~ their home puts Qlltside' of Mallila hat calling l'egU!uly at llllanila !><I si- w8ps tor illliustrial w.orh:Ol's il> Manila. In other words, my amendment impl!OYes the lot of these wor.kers. "I/IR. CONFESOR. Does the gentleman mean not a¢Cu1tural wnges? "MR. CUENCO. My amendment is to the effect that these crew should be given a minimum wage for industrial W<ll'ken i.D llanila. ''lllB. OONPESOR. Mir. Speaker, I w;tlldnw my obj.al>ilm. "TJllE SJ!IEAKER. The House will now vote again on the ltlllendment of the gentleman from Cebu as .....-ed. Is there any objeCtioli? ( Afler a pame.) The ChaiP <ioes not beer· any. Approved.'' /o"1nal of the House ~ RePr-iues, Semon of March 17, f951. (Debates on H._ 1!1111 Ntt. 17'2). . Allowance for two meals. oi: more. "MR. CALO. Mr. Speaker, on page 4, Seetion 3, subsection (c), I should, like to find out tram the Committiee ..-hether under this .sub-section. (c) which is still intact, there can be allt>wance for tw<> meals? · ''MR. ESPINOSA (P). Why not? "MR. CALO. Supposing the laborer is supplied with two meals or more? · ·· •.·n:t$PINQ,il,A, (PJ. Yes. "MR. C.MA I sillnlkl like t<>. p-se. this ammdThe Minimum W•ge Law nient that on line 8, delete the word· 'one' befol'e the word 'meal' and ·add 's'· to. the word •meal', so that it would be 'meals'. And then on line· 9, between 'centavos' and 'for', insert the words 'per meal'. "MR. ESPINOSA (P). The Committee accepts the amendment. · ''THE SPEAKER. Is there any. objection? (A:ihr a . pause.) The Chair does· not hear any. The amendment is approved." foumal of the How.e of ~uliua. Seaion o; March 17, 1951. (Debates on House Bill No, 1732), . _ for the ·provision fixing the amount allowed fo• meals. "MR. VELOSO (D). Very good. On page 4; 'we find that the value of the meal to be furnished by the employer to the employee is only thirty centavos. Does not the gentleman think that . that is very small? Why. do. we not make it fifty centavos, so that the laborel' will be given a better meal by the landowner? I tl).iJ!k thirty centavos is very miserable. · . "MR. ESPINOSA (P.) 1 We placed the amo111t1t of· thirty centavos as the val:ue of one meal for agrieultural employees .. - "MR. VELOSO (D). One egg costs thirty centavos. "MR. ESPINOSA (P). -- . Md forty een-. dlor nonz.gricutur.al employees, because we have in mind not only the existin.c, actual, current conditions; but a~so that this will have some permanent effeet.· All those Jll'OVailing high prices are· simply caused by temporary conditions. Before the· war a ·thirty cent""o meal ·will entitle Y.,u ·to·est iD a first class restaurant, even in Manila. That is the· i'nten·tion .of your Committee." Joumabof. llro &.,,...of RepresenhltDJa, Session of March 17, 1951. (D•bales on 11 .. llfl /lliU··Jllo. 1132:). ' SEC. 4. Wage hweetlgaf.il!n< Appi>lntment Of Wage Boarcl~(a) The Secretary of Labor shall have the power, and it shall be his dut:r upon petition .of six· a. llllore employees in any ind.uatry, to cause an invest:gation, to be made of the wages being paid to the employees. in' 'llnch industry and. their u,,;.,g. eondib'.ons, to ascertain if any substantial n11111ber of sueh empleyees are receiving wages which are less than sufficient to- maintain them in ·health, efficiency and general· well-being. If, after such investigation the Secretary of 4'1>or is .of the· opln:on that any subsU.:.t11a1 number of suoh employees are· recei"q .such wages, he shall- appoint a Wage-~ard to fix a minimum wage for such industry. (b) A m>nimum wage to hi established under tllis Act shall be as< nearly. adequate as is·. eooattmWl!ly. feasible to maintain the minimum standard of living necessary for the health, efficieru:y, and general well-lleing of·..,pio:vees . In the determination of a minimum wage. the ~ of Labor and a Wage Board shall, among other relewmt factors, consider the following: · (1) The cost of living; (2)'.-The .. _ estsbliohed· for. work0 .of· like or.com, parable ehvacter by·· collective, &g.eementli- or- Br!>iblat!on .... ...is; December Sl, llli2 "HE· LAWYJ!IRS. JOUIUfAL 826 , _T~e "'jni.mu_m \!'ep Law (3) The wages paid for wol'k of like or comparable· .eha.raeter by employers w1jo voluntarily maintain reasonable standard; and ( 4) Fair return of the eap;tal invested. (e) The Secretary of Labor shall make rules and regulations governing the appointment of a Wage Board, its public hearings and mode of procedure, consonant with the requirementa of due process of law. (e) The appointment of Wage Board shall not Pre.elude· .the Seeretary of IJabor from subsequently appointing new Wage ·Board for the same industry. . (e) The Secretary may appoint a Wage Board for any Industry, whethel' it Is named in section three of this Act or not. · 8ECTION 4WAGE INVESTIGATION: APPOINTMENT OF WAGE BOARD Several wage bur&ls may be establishsd, RHsoh for requiring et least six petitioners. llitinimum wage law involving delegatlon of legislativs power. Test· of a rsasonabls wage. · ·flFair return of the caPital invested~, explained. Purpose of provision providing for adoption of regulation• governing creation of Wage Board. Several wage boards established. "MR. CALO~ Now, I should like to proceed. . Is it the ·sense of this b:ll to establish several wage boards in eer: taln localities wheri> there al'e several industries? "MR. ROY. Mr. Speaker, I now yie'.d the floor to the gentleman from Iloilo. "MR. ESPINOSA (P). It depends upon the presence . 11f variowi industries in the different regions. It depends upon the existence of industries wh;eh will need the assistance of the .wage board for the implementation of the :.provisions of this Jaw.· "MR. CALO. Is it obligatory upon the Department .of Labar to .establish right away a wage board in every locality? . "MR. ESPINOSA (P). No. The language of the tnea. sure provides the powers of the· wage board . ... "MR. CALO. Upon petition. . ''.MR. ESPINOSA (P). That is one. \'\nd even . if there is lio petition, it has the power to create the wage board if it finds out that a .substantial number of employees are not receiving adequate wages to maintain their efficiency ·and general well-being, then it becomes.mandatory to · to create a wage board? "MR. CALO. So; it is not mandatory? "MR. ESPINOSA (P.). No; i.t is not mandatory, but it is within its power." Journal of !Ire Home of Ropresentatioer, · Searion of March 17, 1951. (Debat .. on House Bill No. 173Z.) Reason for requiring at least six petitioners. ."MR. VELOSO -(D). No.w, in··Section 4, page 6, line 24, the petition, in order to merit the attention of the Department of Labor should be signed by six •or more employees in any industry. Why do we require sill:, and •not only one? ' "MR. ESPINOSA (P); The reason is that in. reiail establishments there are only five employees exempted, er not included In the operation of this law.· So we have to require six petitioners, because if we exempt five in retail establishments, to harmoniZe ·or to be in consounce with that exception, this must ·at least to be sbc. because if the number is less than six that cannot harnioniZe .. with that particular _provision wherein we ex.empt retail establishments with employees numb.ering not more .than five." Journal Of th~ House of RepresentoliveJ S01Sion of Mnrch 17, 1951. (Debates on Ho"'• Bill No. 1732). · · Minimum wage law involving delegation of legi.Ove power. A minimum wage law under which the wage standard is fixed by an administrative board or commissiOii does not involve an unconstitutional delegation of legislative jlower. But a statute· delegating the power to fix minimum wages, without any standards or limitations, · to a part · of the concerns engaged in an industry, and compelliiig the mhiority to submit thereto, is a legisl&tive delegation of power in its most·obnoxious form. 31 Am. /ur., Sec. ·503'.p:/081. Te8t of a reasOltabIO wage. It was held that In determining' _.;hat is ·fair and reasonable in fixing a niinimum w~ there is no Standard more appropriate thali the normal "needs of• the aveiaae employee regarded as a human being living in a elvil!Zed community. Stale. v. Crowe, 130 Ark. 272, 197 SW 4, L.R:A. 19/BA 567. Ann. Cas. 19/BD 460 . HFaJr retum of the capital invested",. ex.p~n~~ .. -- . , "MR. VELOSO (D). What. is t)ie 10eaning·.·of "fair retlim of the caP,tal ~nv~ted ?" · "MR. ESPINOSA (P). "Fair return of the capital 'invested" is a necessarjr saf.eguard to the· management of an ,enterprise. Natural!y, we must admit the prlBnlse that peopJ,, who invest in industries have in :their minds the retul'n or profit from th&ir investment .. This .is not. all exclusive; it is only 011e of the. factors to be considered in the determin'ltion because if we do .. not ·pµt it there; we might fix the minimum wage in such a way as to disregard the inhereot right of an investor to gain from. his. investment. "MR. VELOSO (D). what is eonsiderOd by the Commit•• as a fair return of the capital? Is it ten per cent, or twenty per cent, or thirty per cent 'I "MR. ESPINOSA (P). From what I .know thi,;;e . .:... <11tabllshed and recognized practices ·in j;he evaluation ·of fair return of capltsl invested. "MR. VELOSO (D). No, but I shoµld like. to ruive a categorical answer to this point because.. if we do :iiot define that phrase, it will not enllghten the parties concerned. That point is. vecy important hOre.· · 626 THE LAWYERS JOURNAL "MR. ESPINOSA (P). Yes, I am """""'·of "that. "MR. VELOSO (D). What is considered by the Com. mittee as a fair return of capital invested? ''MR. ESPINOSA (P). There are many factors involved in determining what is a fair return of the invested capital. The amoliDt of capital invested, the risk involved in the industry, whether the business is new or old, and many other similar matters. "MR. VELOSO (D). How much profit, on percentage basis, is considered as a fair return of the capital invested? "MR. ESPINOSA (P). As I said, it depends on the nature of the buainess. "MR. VELOSO (D). Call not the gentleman give a definite Percentage? "MR. ESPINOSA (P). That is what I said. Along these lines we have established practices and J;.ieeeden~ governing precisely this particular phrase. There ai·e decisions in our Supreme Court, in our Court of Industrial Relations, as well as in the United St.ates, ,.;hich have a persuasive effect in the determination of such matter.,, Jaumal of the Howe of R.,,,....,.tatW.., Seuion of March 17, 1951. (Debata on Hoa&e Bill No: 1732). . Par- of provision providing for adoption of regulallonB pverning creation of Wage Board. "MR. VELOSO (D). Again, ill the succeeding letter (e), "the Secretary of Labor shall make rules and regu'. lations governing the appointment of a Wage Board and its mode of proceClure." Why do you put this provision here, since in the preceding section we have already prov~ ided for the constitution of the Wage Board. "MR. ESPINOSA (P). But it cannot be denied that in the composition and actual operation of the Wage Board there will be matters in which we need to facilitate the work of that body, and the person best qualified to assisi in thai is the Secretary of Labo1·. The fact that the Department is in an advantageous position to do, makes iU advisable and necessary but ask that Department tO assist the Wage Board. "MR. VELOSO (D). I think that refers to the procedure to be followed in the hearing Or cases involving wages but not in the creation of the bo&rd, for the creation of the Board is already proilided here. "MR. ESPINOSA (P). Yes, that is provided here and the law will have its way." Journal of ~ Houre of Rotwesentatiuea, Seuion of Man:h 11, 1951. (Debat., ·on Ho"'• Bill /Vo. 1732). . SEC. 5. Wage Board; Powers and .duties: Reeommenclatlen~(a) A Wage Board appointed under the pro. visions of this Act shall be composed of a member rep~enti,,g ~e . public w.ho shal.1 !'Ct as chairman of the ~-!1.6 . .epres.,;tativia ·of elirPI~ in the industry, and two representati- of 'employeis in the same industry. The Minimum Wage Law The representatives of the employees &dd employers shall be selected from nominations submitted by employees and employers, or organ~zations thereof, in such industry. Three members of a Wage Board shall constitute a quorum and its recommendations shall require a vote of not leBS than a majority of all its members. The members of a Wage Board shall not be entitled to compensations except to per diems not exceeding seven pesos for each day of actual attendance and shall be reimbursed for all necesaary travOJling expenses incurred in the performance of their duties. The chairman, if a government emPloyee, shall not be entitled to any per diem. (b) The Secretary of Labor shall .present to a Wage Board all the evidence· and information in his poBSession l"elating to the wages in the industry for which the Wage Bo81-.I was appointed and all "other information which he deeins relevant ti> the eat.ablishment of a minimum wage for such industry and shall cause to be brought before the Board any Witness when he deems material. A Wage Board may summon other witnesses or call upon the Secretary to iul"nish additional information to aid in its ·deliberations. (c) Within thil"ty days of it.s organization, a Wage Board shall submit to the Secretary of Labor its recom' mendations as to a m'.nimum wage to be paid by employers in the industry or for the varioua branches of the industry considered. The Wage Board shall not i·ecommend for any airieultural or nOn-agricultural industry a minimum wage of less than the prevailing wage obtaining on the effective date of this Act, and in no case less than the minimum wage rates set in section three of this Act These wages may include minimum wages varying witti localities, if in the judgment of the Board conditions make such local differentiation proper and necessary to effectuate the purpose of this Act and such differentiation. does not give an undue competitive advantage to any locality.; and may include terms and conditions mating to part.time employment and suitable treatment of other eases or classes of eases which, because of the nature and character of the employment, in the judgment of the Board, justify special treatment, including, in the case of persons employed as industrial homeworkers, the highest minimum rate which is economically feasible anil which will not result in substantial curtailment of employment opportunities for such employees, and which shall not be less than seventy-five per cent of the minimum wage rates established in three of this Act. Home industries covered by this Act shall include apparel, embroidery, other needle trad6s, shoes, weaving, basketry and other handicrafts. The Secretary may add specific home industries to the coverage of this Act by regulation, when he deema it neC!'BS81"Y to further the purposes of this Act. If the report of t.he Wap Board is not submitted within thirty days,· the Secretary of La, bor may aj>pilint a new Wage Board. • (To be con6nued) December 31, 1952 THE LAWYERS JOURNAL American Deelslou MORRIS LELAND, Appellant, STATE OF OREGON SUMMARY OF Dl!CISION Oregon criminal law provides that "-bid properuily" lo commit a crime is no defense. It ako casts upon a defendant the burden of proving his deferr.e of insanity "beyond a reason· able doubt." At defendant's trial fOr murder in the first degree, the court inslJucted the jury in accordance with these stalutory rui.., bat also charged that the state had the burden of provin• ~d a reasonable doubt every element of the crime, including premeditatio;ll, deliberatioq, mal~. and intent. Defendant's cmvic:tion was affamed by the Oregon Supreme Court. He ratsed due ~ objections. In an opinion by Clark, J., seven members of the·United Sta,.. Supreme Court held that due process w.. not violated eilher by the state's casting upon the defendant the burden of proving insanity "beyond a re.,onable doubt" or by ita choooins "the right and wrong" ... t rather than the "irresistible impulse" ttst of insanity. Frankfurter and Black, JJ., disiented on the ground that due·proceta wu violated by the state's requiring the defendant lo prove his insanity "beyond a reuonable doubt." HEADNOTES Con•tit11tional Law-du• proce.s-burden of proof •• to acouaed'a in-. .. nit,y. , 1. A state statute. which casts upon a defendant, Including one charged with murdel.' In the first degree, the burden of proving hta defense of Insanity '"beyond a renaonable doubt" does not violate due ll&""oceU, where, unde1• olhe1· statutory requirements and the t1·lal court's b:structl1»na to the Ju1·y In acco1·dance therewith, the state has the burden of provlnc every element of the crime charsed beyond a reasonable doubt, Including', In the case of first degree murder, premeditation, dellberatlon, malice, and Intent. Constitutional Law-clue proo .. a-criminal la-prmotice adopted by many states. I. The fact that In the admlnlat1·at1on of crlmlnal justice a pracUce la followed by a large number of statea Is not conclualveir.. a decision as to whether that practice accords with due proceBB, l•ut It Is plalnly worth considering' In determining whethei· the practice offena& some principle of 'justice so 1'0~ted In the traditions end consc.lence of the nation aa to be ranked o.a fundamental. COnatltutional Law-clue proce........oriminal prooe~ure. 8. The criminal procedure of a state does not violate the Fourtfenth Amendment because another method may seem fall•er er wiser or· give a surer pl'Omlee or protection to a defendant, Appaal and Error; Constitutional Law-clue prooeu-dafaronce to Judgment of state court. 4. The Judie.lat judgment In applying the due process clause must 1r.ove within the limits ot accepted notions of justice and Is not to be baaed upon the Idiosyncrasies of merely personal Judgment. An Important aafecuard qalnst such merely Individual Judgment Is an alert deferen\le to the judgment or the 15tate court under review. Trlal-lnatructiona aa to burden of proof-aoouHd'a insanity, &:. Instl'uctlOlls cbarglng·the jucy at a trial In a: state cou1·t for n.urder In tbe fir.at cklll'ee tba.t the st.ate ha& the bw-den of proof of guilt, and of all the necessary •1emenis of cunt and that U1c defendant a!iould be found not culliY. If the jury found hla mentai condition to 1'e so diseased that he could formulate no plan, design, or Intent to kill In cool blood, coupled with Instructions, given In accordance with the perUnent statute, that the Jurors were to conalder aePU&tely the l11sue of lecal sanity per se and tho.t on that Issue the defendant had the burden of pnvlq hla lnsanltY beyond, a reasonable doubt, are not. subject to the obJecUon that they might have confused the jury as to the dlatfnctlon between the state's burden of provlllg' premeditation o.nd ·the other elemeiita or the charge on one hand and defendant'• ~urden of provlq Insanity on tile other. Constltutlonal Law-clue proc .. a-"'morbid propensity" to commit orime. &. Duo process la not violated by a state atatute provllllns that a "morbid propensity to commit prohibited acte, exlstlns In the mind r.f & person, who la not shown to have been Incapable or Jr.nowJng the wrongfulneBB of such acts, forms no defense to a prosecution therefor." Ccnlltitutional L•w-due procaa.....,.;cUMd's in .. nity-''right and wrong" .tfft, 7. Due process does not ·require a sto.te to eliminate tJw. "rlsht and wronc" test of Insanity an11 to adopt the "lrre.elstlble bnpulae" U11t. Coftatitutlonal L"w-clu9 procn~efenclant'e oonfeaalon-tivailability to defense oounHI befora trial. 8. A trtal court's refusal to require the district attorney to make ct.fendant'a contusion or crime avaUable to 11la counael before trial 111 not contrary to due proceaa, where the conte1181on waS produced In OC!urt five days befOl'e defendant rested hla case, and, In addition, the trial judge offered further time both for defense counsel and upert witnesses to study the confession; and this Is partlcularly ao where r.o aulgnment of error was made on that acore In defendant's motton for a nsw trial. POINTS FROM SEPARATE OPINION Conetitutional \Law-clue procna-tovernment'a burden of proof In orlmlnal case. I. The covernment'e duty to establish a defendant's sullt beyond n reasonable doubt la a requirement of due proceaa In the proeedural cnntent of the term. [l'er Frankfurter.and Black,.J'J.l Conat:ftutlonal Law-dua proc .. .....tnaanity of accuHd. 10. Without vlolat.lns due proceu, a state maJ' require that the <1efense of "Jnaanlty" be apeclally pleaded, or that be on wboSd bellalf tht- claJ.m or Insanity Is made should have the burden of abowlq e11oul'h to overcome the assumption and presumption that normally a man knows what he Is about and Is therefore responsible for wh&t he does, that the lasue be separately tried, 01• that a standJng dlalbtereeted expert agency advise cou1·t and ju1•y, f Per Franktu1·ter and B .... , JJ.j [No. 176.] Argued January 29, 1952. Decided June 9, 1952. Appeal by defendant from a judgment of the Supreme Court of Oregon affirming a conviction of murder in the Cireuit Court of Multnomah County. Affinned. Thomu H. Ryan, of Portland, Oregon, argued the ca,,.. for appellant. J. Rayinond c:arskadon and Charles Eugene Raymond,, beth of Portland, Oregon, argued the cauae· for appellec. Mr. Justice Clark delivered the opinion of the Court. APPellaat wu cbi.tsed with inurdor in. il(o fini' degrt;e. He rleaded not guilty and gaV. nOlice of his iritentian .{O prove ino&iiity: Upon ~ in the Circuit Court iii Multnomah County, Oregon, !te 628 THE LAWYERS JOURNAL December 31, 1952 waa found guilty by a jury. In accordanCe with the jury .. a de.. c!rion not to recommend life imprisonment, appellant ~ived a sentence of death. The Supreme Court of Oregon affirmed .. 190 Oi 598, 227 P2d 785. The case is here on appeal. 28 USC § 1257 (2). Oregon statutes required appellant to prcve his inaanity be .. yonr;I a reasonable doubt and made ''a morbid propensity"' J!O defense.1 The principal questions in this appeal are raised. bv appellant's contentions that these statute deprive him of hi'a life and liberty without due process of law as guara·nteed by th~ Fourteenth Amendment. The facts .of the. crime were revealed by appellant's con .. ft uions. as cwroborated by other evidence. He killed a fifteen.year old girl by striking her over the head '.ieveral times with a steel bar and stabbing her with a hunting knife. Upon being arrested five days later for the theft of an automobile, he aske4 tc talk with a homicide officer, voluntarily confessed the murder, arid directed the pclice to the scene of the crime, where he point~ out the location of the body. On the same day. he signed a full ccnfes\lion and. at his own request, made another in his own handv..1iting. After his indictment, counsel were appointed to represcQt him. They have done so with diligence in carrying his ~se through three courts. One of the Orego? statutes in question provides: "'When the commi'.ision of . the· act charged as a crime is proven. an~ the defeme sOught t~ be established is the insanity of the defendant, the same must be proven beyond a reasonable doubt ..• "2 Appellant urges that this statute in effect requires a defendant pleading insanity to eitablish his innocence Headno!e I by dispro¥ing beyond a reasonable doubt elements of the crime oecusary to verdict gf guilty, and that the 'statute is therefore violative of that due process of law 1¢CUrcd by the- Fourteenth Amendment. To determine the merit of this challen1e. the sta_tute must be viewed in its relation to ether relevant Pregon law and in its place in the trial of this case. In conformity with the applicable state law, 3 the trial judge ir.•tructed the jury that, although appellant was charged with n1urder in the lint degree, they might determine that J.e had committed a 10ser crime included. in that charged. They were further instructed that his plea of not guilty put in ilsue every material and neceasuy element of the leoser degreea of homicide, as well as of the offense cha~ in the indictment. The jury could have returned any of five Verdicra:°' (I) guilty of murder -in the first degree, if they found beyond a rea!onable doubt that appellant did the killini purpotely and with deliberate and premeditated malice; (2) 111ilty of murder in tJie !econd d-...gree. if they found beyond a reasonable doubi that appellant did the killing purposely and maliciOU!ly, but withoUt deliberation and premeditation; (3) •uilty cf manslaughter, if they found beyond a reasonable doubi that appellant did the killing witthout malice or deliberation, but upon a sudden heat of passion catt.aed by a prbvoeation apparently su~ficient to make the passion irresistible; (4) not guilty, if, alter a careful c:Oruideration of all the evidence, there r~mained in their mindi a reasonable doubt as to the exi:.Jtence oi •VY of the nec;essary elements of each degree of homicide; and (5) not guilty by reason of in .. nity, if they found beyond a reasonable doubt that appellant was insane at the time of th~ offen!e charged. A finding of in"Aanity would have freed apt Or Comp Lnu-s, 1940, 88 26-929. 23-122. 2 Id, 8 28-9t9. a Id, SS 21-947, 28-Ha. 4 Six poSBlble verdl~ts, were listed In the. Instructions, _cul!ty of mUrder In the first degree being divided Into two ver8.lcts: with, and without, recommendation of life lmprlaonme'nt as the penalty. SJnce the jury In this case did not recommGDd that punishment, tho death sentence was automa&lcal13- Invoked under Oregon l&w. Id, 8 21 <tJ 1. American Decisions pe)bmt frbm.teiponiibllky for aay·of the pcuible olfenm. The •-erdict which the· jury delermined-giiilty of lint degree· murder -required. the qreemeht Of all twelve· jurOrs;. a .verdict of not iUiky by reaeon of insanity would have require"d the coDcUrrence of only tea members ef the panel. s • · · It ~' apparent that .the- jury might have found appellant tQ have been mentall,. in&apable .of the·prem'editatien ·and deliberation reqQired to support a fint clegr.ee murdtr verdict or ·of the intent ~eceuary to find him guilty of either first ·or second. degree muz:der .. and~ not·have found. him to have been lega.JIV-injane. Although a plea of insanity was .made, the· pl'Olecirtion: W'ai ~ qu~ to pt:O\le. beyond a. reasonable doubt every element of the oime. charged, including, in the case of first degree murder, premeditation, delib!!fation. malice and intent.6 n.e trial coqrt l"t'peatedly emphaSiz~d lh;is reqU.irem~t in ih ch~r.ge to,.the.. jµry.? Moreover, the judge directed the jury as follows: · · ' ••1 instruct you that the ~i~ce adduced during· thii triai to prove defendant's insanity shall be con$idered and weigbed .. &j> you, with all other evidence, whether or not you ·find defendant iti.&ane, in regard to the ability ·of the defendant. t9' ·pretnech"?ate, form a purpc;tAe. to deliberate, act wilfo:lly; and act maiicioUslv~ and if you find the defendant lacking in such ability;the 'dolehd~nt cannot have committed the critne ·of murder in ·the first ·deRfee. ""[ instruct you that should you find the defendant91 mental conditioli to be so affected or diseased to the end· that "the der fendant coU}d formulate no plan, desigri, ·or i.nt"ent to k:ill iP .ci:i01 blood, the defendant has rio.t c'o!Dlilitt~ the crime ··of miii"dei JD the fint degree. "1 · Thne and other instructions, and the charge as a whole~ make it dear that the burden of proof of guilt, and of all "the ntceHary element.I .of guilt, w~ .placed squarely upon thC State. A. the jury, was told, this bUl'<len did net shift. but mt.d upon the State throughout t~e trial, jud as. .acccrding to the in~ructiom appellant was presumed to be innocent untjl the. jury witl convinced beyond a i:eason~ble do1:1bt ~hat ~e w~ e~i~ty.11 The jurors were to consider separately: the iss\J.e cf legal ·sanity Pe.f se-an issue ~t ap~rt from the crime charged, to be inq-oPiJce,:l b)· a special Plea and decided by a epecial .verdict.10 . OP ~iS ·Wue appe_llant had the burden of proof under the stat~te in ·question ~ere. · · 5 .The ngreem1mt Of teri Jll1~rn•s .\\"o\•ld al110 h:we hl'<"n ~llfn<"l('Jlf fol" a verdlct of not l!;"hllty. a "\"ei·dlct" of guilt)' or i:eC'nn<l <1E"g1•ee n;m'de-r, 01 a verdict· or guilty of manslaughter, R 333-3U. 8 Id, 88 23-401, 23-U4. 26-933; of Stnte '"· IJntl"h<"k. 121 01• 141, :!53 p 3S7. 264 p 806 (1927). . 7 R 321, 123, 324. HO. 331, 32t. 8 R 330. Agnln: "'I Instruct you that te constitute: murd~· in the rh~t 'legree. it h• necessary that the State prove beyoml n r1>1u1onable doubt, nnd to you1· moral ce1·talnty,. that i110 'lefendant·~ ,1e~bm 01• 11lan to ti1ke 111<" was formed and mn~ured, In cool blood nnd not hiu•tlly Ut··"I"• the occasion. . "'I Instruct you that In determining whether· 01· not thl!' dl!'fcrdant acted purposely and with. p1•eme1tlL11ted and dellberatl!'c1 mnlll"C. tt 111: your duty to. take Into consideration defendant's mental cotldttion and all factors relatlnc thereto, and that even though you may r.ot find him leplly lnaa.ne. If, In fact, bis mentality was t1n1mlred. that evidence benra upon theae factors. and ·It Is your duty to com•l,ler thl~ evidence along with all the other evidence In the case:· n 332. 9 R 321, 324. . 10 Or Comp Laws, 1940, 8 26-846 (l-equlrlng notice oC pu1·pose to show insanity as defense); id, R 28-966 (providing ·for venllct of not guilty by reason of Insanity and consequent commitment to asylum by Judge). After defining legal Insanity. the trial court Jn~t1·ucted the Jury: '"In this case, .evidence Ima been Introduced 1•(.1ntlng to the 1nental capacity and condition or the derendant . , .. ai the .time (tba girl) is alleged to have been kllled. and if you are satisfied bt")-"ond a reasonable doubt that uie ~efendant kllled hel' In• the manner alleged In the lndlct~ent, or within the lesser degrees lncludea therein. then )-"OU are to consider the meqtaJ. capQ!:ltr of tile df!fl'ndant nt rhe time the homlcl,le Is alleged to have been committed." R 3!? (em11lmsis supplied)., December 31, 1952 THE LAWYERS JOURNAL 629 By this atatute, oriainally enacted in 1864, 11 · Oregon adopted the prevailing clactrine of the time--diat, lince most men are sane, a defendalit ·must prove his insanity to avoid. respomibili!¥ for bio ac~. That was the rule announced in 1843 in the leading English decition in M'Naghten's Cu., "[T]he jurqn Olllht to be told in all cases that every man is to be - d to be ,ane, and to'- a sufficient degree of reaann to be respoaaible far bio crimes, until the conorary be proVed to their oatisfaction: and ••• to eatablish a defence on the 8f0Ulld of insanity,. it mWt be clearly proved that, at the time of the committing of the act, the party accused .was laboring under. such a defect of reunn, &.... diseaae of ·the mind, as not to know the nature and quality of the act he was doing •.. "11 Tbio remains the English view today. 13 In mdlt of the nineteenth-century American cues, also, the deleildant was required to "de.arlv" JU'OYO insanity,14 an4 that was ·probably the rule followed· in moat states in I 89S, 15 when Davi'I ·v. United States l!'U ·decided. In that cue this Court, speaking through Mr. Jllllice Harlan, announced the. rule· for fedetal lrisecutions to be that an accuoed 1• "entitled IC! an acquittal of the specific crime charged if upon all the evidence there i1 reasonable doubt whether he was capable in law of. committing. crime. ••16 Jn reaching that condusion, the Coun oboerved: •'The views we have expressed are 1upported by many adjudications that are entitled to hiJh. respect. If 'ouch were not the fact, we might. have fdubliged to accept the general doctrine announced in oome of the above caoe1' for it is deoiralde thpt there be uniformity ·of rule in the ~dmini1tralion of the . aiminal law in ·government.· whooe Constitutions equally recognize the fundamental principlo that are deemed essential for the protection of life and liberty:"" · · The decision obviously utaldiihes no constitutional doctrine, but only the rule to J,e followed in federal court.. A. ~ich, the rule is not in question here. · Today, Oregon is the only 'date that requires the accused, on a plea of insanity, to establish that defense. beyond a reasona~e doubt. Some twenty states, howe!er, place the burden on mo accused to eatablish his illNnity by a preponderance of the evidell!" or 101De similar measure of penuuion.18 While theie is an evident distinction between these two rul"' as to the quantum of proof required, we 1ee no practical difference of such magnitude as to be aipifjcant in detenninin1 the coaatitutional question we face here. 'Oregon merdy requires a heavier burden of proof. In eac;h ir.stance, in order to est.ablilh· imanity as a complete defene to n Deally's Gen. Laws Or 1845-1864, Code or Crim Proc. S 204. 11 10 C1ark &: F ZGO, 110, a Ens Reprint 718 (HL, lBfl). 18 Stephen, Dlpgt of the Crlmtnal· La.w (9th ed, Sturge, 1950). II: or Sodeman v. Hex (Enc) [1911] WN 110 {PC): see Woolmln·rton v. Director of Public Pl'OtlecuUons (Eng) [1915] AC 413, 4'1'5--HL 14 Welhofen, Insanity as a Defense Jn Criminal :C.w (1911), Hl-11&. "Clea1· proor• wna sometlmea Interpreted .to mean proof bP...-c.nd a reasonable doubt. e. g., State v •. De Rance, If La. Ann 118, 4" Am Rep 4!6. (181!), and· aomeUmes to mean proof b)' a preponderanee of the e\'ldenee, e.;-;, Hurst v. stO:te, 40 Tex Crim 878 378, 183, iO SW 719 (1899). ~= :0 ~=·::,'u~.r~r;t~a!dE:~~e:: ::': ~;,~·~!sf~; •::;•:;~tema v United States, 186 US U3, 48 L ed 1116, H S Ct 81& (1901); '\t:a.theaon v. United Sta.tH, 227 us &40, 67 Led 811, aa s Ct 385 (1913). 17 Id, 160 US at 488. 40 L ed &08, 11 S Ct 161. 18 WelhoCen llata tweh·e states as requiring proof bY n preponderance of the evidence, rour as requiring proof "to tlle satlef11.ctlon of the Jury,'' two which combine theae formulae, one where by statute the defense must be "clearly proved to the reil.aonable sat111Cactlon of the Jury.'' one where It has been held that the jury must "believe" the defendant Insane, and one where the quantum of proo[ has not i>elE'n sta.ted by the court or la&t resort, but whleh appea.ris to follow the preponderance rule. Welhoten, Insanliy aa a Defense In Criminal Law (1988), 141-151", 1721-JOO. Twenty-two atatea,, Including Oregon, are mentlt>ned aa holding tha.t the accused· baa the burden of proving 11)sanlty, at leaiit by a preponderance of the evidence, In 9 Wlgmore, Evidence "cad •d 1140 and Supp lllil) S 1601. 11 Wethofen, Insanity aa a Defense In Criminal Law (1933), 181; D Wlgmore, Evidence Cid ed 1940) g 2&01. the charges preferred, the aecu1ed mull prove that insanity. The fact .that a practice is followed by a large Headnote 2 number of states is not ·conclusive in a dec:DioD as to whether that prac!ice accords with due proceu. but it is plainly worth . consiq.mng in determining whether the practice "offends some princi~le· at; jwtice so rooted in the t.-aditiom and conscience of our pe_gple as to be ranked as funda~ mental." Snyder v. M ... achusetto, 291 US 97, IOS, 78 Led 674, 677, 54 S Ct 330, 90 ALR S7S (1934). Nor is this a ca'ae in which it is sought to enforce against the states a right which we have held lo be secured to delendanta in federal couns by the Bill of Rights. In Davis v. United States (US) supra, we adopted a rule of procedure for the kderal court. which t. contrary to that of Oregon. But "[i]ts procecl.ure does not run foul of the Fourteenth Amendment because another method may seem to our thinkin11 Headnote 3 to be fairer or wist;r or to give a surer ~e of protection to the prisoner at the bar."" Svncler v. Matsachuoetts, supra (291 US at IOS, 78 L ~ 677, S4 S Ct 330, 90 ALR S7S). ·"The judicial judgment in Headnote 4 applying the Due Process Clause must move within the limits of accepted notions of justice and is not to be ·biP'ed upon the idiosyncrasif's of a merelv personal judgment ... An impprtant safeguard against such merely indivi~ dual judgment is an alert deference to th_e judgment of the state court under revieW."" Mr ..... Justice F.rankfurter, c~ncurring in Malinski v. New York, 324 US 401, 417, 89 L ed 1029, I039, 6S S Ct 781 (194S). We are therefore reluctant to interfere with Oregon's determination of it. policy with respect to the burden of proof 9n the issue of sanity since we cannot say t~a.t p~licy violates generally accepted concepts of basic standards o. Justice. Nothing •aid in Tot v. United States, 319 US 463, 87 L ed 1519, 63 S Ct 1241 (1943), suggeats a different conduoion, That decisio,n struck down a specific presumption created by ccngressional enactment. This Court found that the fact thus. required to be prt!swned had no r.ational connection with the fact 1\·hich. when proven, set the presumption _in operation, and that the statute resulted in a presumption of guilt based only upon. proof of a fact neither criminal in itself nor . an elemen~ of the crime charged. We have seen that, here, Oregon required the prosecutor to prove beyond a reasonable doubt every element of the offense charged. Only on the irtsue of insanity was an absolute bar to the charge was the burden placed upon appellant. In all English-opeaking courts. the accuoed is obliged to iotroduce proof if he would overcome the.in:esumption of t.anity.19 It is contended that the instruction may have confuse-:1. the jury a'• to the distjncrion between the State's burden of proving premeditation and the other elements of Headnote 5 the charge and appellant's burden of proving ininsanity. We.think the charge to the jury was as dear as instructions to juries ordinarily are or reasonably ~n be, and, with rc9pect to the State's burden of proof upon all the elements of the crime. the charge was particularly emphatic. Juries have for centuries made.~ basic d~ ~ ~h and innocence and between cnm1nal respon11b1hty and legal m1anity upon the basis of the fact., as revealed by all the t.vidence, and the law. as explained by instructions detailing the legal dW-tinctiona, the placement and weight of the burden of P"?"'· the 1effect of presumptions, the meaning of intent, etc. We think that to condemn the operation of this system here would be to condemn the operation of t~is system here would be to .condemn the system generally. We are not prepared to do s0. Much we have said applies also to appellant's con~!on that due procO& is violated by the <?regon sta~ ~g that a ~'morbid propen11ty to commit proh~bited Headnote 6 acts, CKisting in the mind of a person. who II not ·· shown to have been incapable of knowing the 680 THE LAWYERS JOURNAL December 31, 1952 wron1fulne11 of such acts, forms no defense to a prdsecution therefor." That statute amounts to no more than a legislative adoption of the "right and wrong"' t~t of legal insanitJ• in preference to the "irreslstible impulse" test. 21 Knowledge of right and wrong is the exclusive test of crinW:!al responsibility in a 111ajority of American jurisdictions. 22 The science of psychiatry has made tremendous 'strides since that telt was laid down in M'Naghten's Case,2J but the progress of science has not "reached a point where its learning woulcJ compel us to Headnote 7 require the states to eliminate the right and wrong te'st from their criminal law.24 Moreover .• choice of a test of legal sanity involves not only scientific knowledge but. questions of basic policy as to the extent to which that knowledge ·should determine criminal reaponsibility. zs This whole pr>bl.em ha's evoked. wide disagreement among those who have studied it. In these circumstances it is clear that adoption of the ~i=~~. impulse test is not ••implicit in the concept of orderelf Appellant also contends that the trial court'• reluo..I to require the district attorney to make one of appelll\nt's (".Oft .. fessions available to his counsel before trial was c.gnti-ary to due proces!s. We think there is no substance in this argument. This conclusion i1 buttressed by the absence of any Hedtlnote 8 assignment of error on this ground in appellant's motion for a new trial. Compare Avery v. Alabama, 308 US #1, 452, 84 L ed 377, 382, 60 S Ct 321 (1940). While it may be the be11er practice for the P"""" cution thus to W:.ibit a confe'ssion. failure to do so in this caae in no way deni~ appellani a fair trial. The record shows that the confession was produced in court five days before appellant rested his case. There was ample time both for counsel and expert witn-. to study the confesoion. In addition the trial judge offered further time for that purpoae but ~ was refuoed, There is no indicati911 in the record that appellant was prejudiced by the inability. of his counsel to aCQuire earlier access to the confesai2n. . Affirmed. Mr. Justice Fran/r/urler, joined by Mr. Justice Black, d-,senting. However much conditions m:ay have improved. since- 190S. William H. [later Mr. Chief Justice) Taft exprelled his d11tur!?ing conviction "'that the administration of the criminal law in all the States of the \Inion (there may be one or two except-ions) is a disgrace to our civilization .. (Taft. ""The Administration cf, Criminal Law," 15 Yale LJ 1, 1_1), no informed person can be other than unhappy about the §eriOus defects of present-day American criminal justice. It is not unthinkable that failure to bring the guilty to book for a heinous crime which deeply stiro popular sentiment may lead the l•islature of a State, in one cJ those emotional storms which on occaskn sweep Cr\'t.I' 9111' people. ta enact that thereafter an indictment for murdtl", following attempted rape. should be presumptive proof of guilt and cast upon the defenda~t the burden of proving beyond a rea'sonable doubt that he did not do the killing. Can there be any 20 Or Comp Laws. lHO 8 23-122. 21 State v. Garver, lDO Or 291, 226 P!d 771 (1950); St11.te v. Wallace. 170 Or GO, 131 P?d 222 (1942); State v. Jiuslng, 60 Or Sl, 118 P 195 (1911). 28 Welhofen, Insanity ns a Defense In C1•Jmlnal Law '1933), 15, 64.-68.100-Hf. !3 10 Clark & Ii' 200, 8 Eng- Reprint 118 CHL. 1043). 24 Compare Flshe1• v. United States, 328 US •&3, 475, 476, 90 L eel 1382. 1389, 1390, 66 S Ct 1318, 166 ALR 1176 (1946). 25 See Holloway y. United States, 80 App DC 3, 148 F!d 66ii (1945): Glueck, Mental Disorder & the Criminal Law (1925); Hall, Mental Dlaease and Criminal Responslb111ty, 46 Col L Rev 677 ClHi): Keedy, Ir.sanity and Criminal Responsibility, 30 Harv L Rev 535, 72..! (1017). Z6 Palko v. Connecticut, 302 US 319, 325, 82 L ed ZSB. 292, SS B Ct U9 (1917). Arnerlcan Decision• doubt that such a statute would go beyond the freedom of the States, under the Due Process Clause of the Fourteenth Amendment, to fuhion their own penal codes and thOir own ~ for. enfOl'Qng the!"? Why is that so? Beca1tse from the time t~at the la'!!!' which we have inherited has emer«ed from dark and barbaric times, the conception of jusrice which has domin~ our criminal law has refused to put! an accused at the hazard o( punishment if he fail•· to remove every reaionable doubt of his innocence in the minds of juron. It is the duty of the Government to esablish bis guilt beyond a reasonable Headnote 9 doubt. This noti-'iuic: in our law and rightly one of the bout. of a free society-is a requirement and a safeguard of due proc:eu of law in the historic, procedural content 9f "due pn>ce11." Accordingly ii.ere can be no doubt, I repe_at, that a State cannot c;iat upon an ac:cused the duty of establlahing beyond a reasonable doubt that his was not the act which caused the death of another. But a muscular contr,ction tesulting in a homicide does not comtitute murder. Even though a person be the immediate o:cosion of another's death, he is not a cleocland to be forfeitoi like a thing in the ·medieval law. Behind a muscular confraC!ioli re<uhing in another's death there ~ be culpability to turn ~i cicle into murder. The telll by which such culpability Ql&Y be cleterminOd are varying and conflicting. One does not have to echo the scepticism uttered by Brian, C. J., in ·t1te fifteenth ~tury. th&I "the devil himself boweth not the mind of men" to appreciale hew vast a darkness still aivelopds mail's understanding of man's mind. Sanity and insanity aie concepts oi incertitude. They are given varving and coilflicti!ll content at the same time ancl from time to time by si>eci81i1te in the field. Naturally there hu always been conflict between the psychological views absor~ b) law and the contradictory viOWI! '!f. students of mental health a..- particular time. At this stage of scientific knowledlie it would bo indefensible to impooe upon the States, through the due procen o! law which they mu"st accord before deoriving a penon of life or liberty, one !eot rather than another for determining criminal culpability, and thereby to displace a State's own chnice of such a \ftt, no matter how backward it may be in the light of the best scientific canon1. Inevitably, the legal tells for cletennininl! the mental state on which criminal culpability 'is to be based are in strong conflict in our forty-eight States. But when a State has chooen ill theo,, for teoting culpability, it ii a deprivation of life without due proc:eu to send a man to hi> doom if ·he· cannot prove beyond a reasonable doubt that the physical evento of homicide did not conllitute murder because under the State's theory he wu incapable of acting culpably. This does not preclude State> from utilizing common sens< regarding merital irresponoibility for &cts reoukin• in bom~ hom taking for _@anted that most. men ~ 1ane and ~pon11b.lf! for their acts. That a man\-act 11 not h ... became he IS devoid of that mental state which begets culpabil~y. is so exceptional a situation that the law has a right to devile an exceptional procedure regarding it. Accordingly. States may provide various ways for dealing with thU exceptional 1ituation Headnote 10 by req'uiring. for· inll;ance, that the defense of _''insanity'' be apecially pleaded, or that he on whote behalf the claim of insanity is m11.de should have the bur<!en of showing enough to overcome the assumption and pre'aumptiOD that normally a man knows what he is about and is therefore respon11Dle for what he .doa. or that the iuue be separately tried. or that a 'standing disinterested expert agency adyjse court and juy. or that these and other devices be u_sed in com~nat!<m·. Th:: law• of the forty-eight Stales Pl':'""t t~ gre_aleot diveraity 10 ~ liwing the proeecution from· provmR affirinatively that a man u sane in the way it must prove affirmatively that the defenda~t ·;, the man who pulled the trigger or struck the blow. Such 1_. December 81, 1952 THE LAWYERS JOURNAL 631 American D.alalon• letion mak~ no inroad upon the basic principle that the State nuut.pro.e guat,.not th~ ·olel"'1Clont, in~; anil pm>e it to lhe oatiolaction of a' jury beyond a re.-able doubt. For soine unr~ded . .;;ason, Or-egon is the only •e id the lofty-eight St•te• that,ha:1 made ·inroa,jg.upon that prineip)e !>Y requiring the accused to pr<>Ve beyoncl a ......,.ble deul.t the absence of one of the easen!W elementJ .for ,the -commimon of murder, namely, culpabilily for .his DUtlCU!ar contraclioa. Lib evezy .. othet: State. Oregon pmuppq-oes that an insane penon cannot be made to pay with hia life fer a homicide,though for the poblic good he may of course be. put beyond doing furth!r hara Unlike evezy other Slate, however, Oregon says .that the ac:cu1ed person' must satisfy a jury beyonc! a reasonable doobt that, being incapable of committing murder, he has not committed murder. Such .has been the law of Or<gon since 1864. That year the .Code of Criminal !',ocedure -.lefined murder in the conven· tional way; but it also. provided: .. When the commission of the act ~arge~ as a. crim~ is proven, and the defence sought to be estaJ» .. liihed ,. the m1a111ty of the defendant, the same must .be proven. beyond a rea'sonab(e doubt ...... " Ceo Laws Or 1845-1864, pp. 441 et seq, Section& so2. 204. The !alter section. thtou•h Various revisions, is !:}le law of Oregon today and WU applied in th!!: ·conviction uncl~ review. What,wer tentative and intermediate stq:t5 .erx.perience makes permiffil/l.e for aidin• the. Slate in establialYnR the ultimate issues io a Pl'9ol<Clltion .for crime,. the State cllonot ,be relieved. on a fin•! sl;owdo.wD, from proving its:~ Te prove the ~ it m1;11t .'pfove each of the.1 iteuls which in combination constitute the Offense. And it mua make such proof beyood a - able doubt. This duty of the State .of •toblilhing every fact •i the equation which add& up to a -crime, -~d of e11ablishino it to the sotislactioo of a jury beyond ·a reasooable doubt is tlie c!ecisive differens,e belween aiminal cul~obility and civil liabilitv. The only. exception ii that very linlite!l d- of, -- variouolv ~;acti:~~ :=.~ ~':~ s:~: ~~"i'6 US 2'71. 88 L ed -46, 64 S Ct 134; Moriuette ¥, Uoited States. 342 US 246, ante, 180, 72 S Ct 240. Murder is not a malum piolu'bitum or a public tort or the object of resulatory legislation. To suggest that the legal odd'tty by Which Orqen im- upon th• accused the burden of proving beyond reasonable cloabt lhat he had the mind wi'th wruch to commit murder is a mEre dif. ference in the mea'lure ef proof, is to obliterate the -di1tihction betweeil civil and criminal law. It is suggested that the jury were charged not merely in confonnity with this requirement of Oregon law but also in 'Va .. rious general terms, as to the duty of t}te State to proye every element of lhe crime charged bel""'d a reasonable doubt, in· eluding In the ca,e of first degree murder, •.'premei:litation, deli .. her.ab.on, malic~ '-nd- intent." Be it so. Thp "11~ of the mat .. · ter is that the Oregon Supreme Court sustained the conviction on the ground that the Oregon statute "cut upon the defendant th• :~tt .. cl s:::.in:. t1:~~wf 6':"'5;, ~~'k7"~-;kt. To Sugge"1t, as is sugges;ted by this Court but not by th.; State court, that, although the jury wai compellecl to act upon this requirement, the statute does not offend the· Due Procr.ss Glause because the trial jud1e also indulged in a faRago of ~~n .. etalties to the jury ab~t '"prem:editation, c:leliberatiqn, ma)ice and inteyit," i's to exact gifts of subtlety that not even judges. let alone juries, noems. See International Harvester Co. v Kentucky, 214 OS '216, 224, 22S, S8 L ed 1284, 1288, 34 S Cl 8s3. ·u ihe Due Proco.. Clause 'has any nieaninR at all, it.d~es Doi P.e~.Ui~ li_f~ _to be·put·t~ 11qcti haz~fds. · . ,To deny this mode-of ~g with. ti;;, a"""" oHnsanity plean and with 11nedifyinr' 1peetades of atestimoay, ·is not to dep•ive 'Oregon •of the widest:-pdllible choice of mnediesfor cirCW!!,Ventiog &Uch. a~usea. The multiform leaislation prevailing in the ~t States evinces the great variety of the ar.uerimen .. tal methods open to them .for ~eating with the problems raised bv insanity defenses in prosecutions for murder. To repeat the streme reluctance with which I find a tons~i .. tutional burier. to aJ!Y lqisialion is ~ot to mout~ a thre~ar.e phrase. Especially u delerente due to the. policy of a Sta~e when it deals wit\! local crime, its repression al!_d punishment. There is a 111lf, however narrow, between deference to local leg .. islation and -complete disregard of the duty of judicial review which ha& falleo to this Court by virtue of the limilll placed i>v the Fourteenth Amendment upc;!n Siate action. This duty is not to be escaped, whatever I may think of investing ji.J.dges with the power which the enforcement of that Amendment involves. BROTHERHOOD OF RAILROAD TRAINMEN. an Unincorporated .AS'JOciation, et al., Petitioners, v. SIMON L. HOWARD, Sr., and St. Louis-San Francisco Railway Co. SUMMARY OF' DECISION To avoid a strike, a ·railroad entered into a collective labor COD.tract with a union, Coi;nptlled aclusively of white 1tainn1en, which provided .that train P'!rtero should no longer do any work as bragmen, and the effect of which wu to compel the railroad te abolish the position of "train porten," there!~ occupied bv Negroes doing all the work of br,akemen, and to lill their jobo with white men. The conb'acting union did not represent pOl'· ten, who were represented by an'!!her union of their own choosing. A Negro train porter who was iriven notice by the railroad brought a cl.., action in a federal slittrict court for a deeree enjoining ~ railroad from dlacontinuing the jobs k~own as "train porters" and' from hiring white brakemen to -replace the Negro pcrten. In an opjnion by Black, / .. six member> of the Court held that injuneti~ relief should be granted. toking the viow that a baqaining repfetentative who acts by the ·authority of the Rail· , way Labor Act has the duty to refrain from using its statutory bargaining power &0 u to abolioh the jolts of the colored workere, even thoqh they are in a separate claus for -rep~esentation pur·· pose• and a~ in fact, represented by another· union of their own choosing. Minion, /.. with the concurrence of Vinaon, Ch. /.. anJ Reed, /.. clj&sented on the oround.i that no applicable federal law prehibi~ed racial discrimination by private parties such as the railroad and the union, and that the case in~lved a dispute between employees of. a ca1rier as to whether the union was the ~_presentative of the train porters. a matter to be resolved by the Ne.tiooal Mediation Board, not by the courts. • HEADNOTE& Labor-bargaining reprnentative acting under Railway L•bor Act-duty tcnnrd colored employ••• in craft or cla.. not repr .. ented by It. 1. The Railway La.boa· Act Imposes on a. labor union acting by a.;.thorlty of the statute aa the exclusive bargaining agent of brakemen tbtt duty to refrain from. uaJng Ila bargaining power ao as o abolish tt.e. Jobe of colored porters and drive them fl"om the railroads, eve11 though these porters have ror man)" years been ta·ealed b)" the can•lei.•s and the union as a .separate ch1.se for I"epresentatlon pua·poaes and hr.ve In fact been represented by another u11lon of their own cbooaJng-; and auch duty Is violated by the negot111tl~n by such a union of a .cc:llectlve" labor contract the effect of whlcb la tb compel a i·atlroad tu abolish "the position of ""train porters'; theretofore occupied by Negroes and to fill theh· jobs with white brakemen. 6831 . 1THE LA WYERS JOURNAL December 31, 1952 Lilllllio~a ..... hUng ·rllpr'nehtatlft" 1lotltig' unftr :·Rlti'lway 'i!.abeifo·~A~ · ; il .. Nylng" oolli'N.. Wbfolcefs' "JDIM, ~ ' -. i: · 1 • L··'-ii-11~ R&11wil'y-i;.ab9r ACt Prob'1&1i:ilb61-iatn1hS e.Plita It ai:itbor1zff trom: ueiqg thel'(' · po81Ucin a.ftd power to deatroy · ciolori!d warke-n' Joba li._'order. to best~~}~e111'"on. white worker&. · · . · · .. Co~l".ft--fedffal Jurl•diction-unla"'!ful .uH"Pf power granted by feder11I !\'-tu~. ·. • t.v·· it'ederal courts. Can proteet · thue threatened b}r ·.an · nnla.wful uea .ot power·.81'ante4 "by & "federal act. · Labo~~~ri: ·t~ cou'~q for pr.~lion ~f rlghta of colo.;.-d railroad •"-Pio~•·... . . ''. ;·· . . •. ,.· . . .~4- ~o n:lstl~.f adft\IDllltt;atlv& remedy_pncludu reaqn,,to,c.oµ..rts for.· protection. of. ~.o10N!4, .i:a11ro&d' employeea against ObllteratloD. of their l'lcht~ .u.n,~1 the Ra.i.1!a:v ,,~b~.; ~~t bf-a barp.lnlnC' &Cent aetl~g b:1, th~ a.~t~orl~ of ~he a.ct,. Labiii'-adrhin111tr11tlve reniodioe under Railway Lebor Act, i. No adeciuat& adnilDtstrai:lye remed:r against obllte1·atlon of the rlchta of eolored '.ralll'O~ employees uniter the RallWay Labor Aci ty' a barpinlns re'presentatl\re actlnir by the authority of the act e8n be: afforded by the Niltlolial Railway AdJustment or Medlatlo'll B~. 111'"llere tbe dl8puie ~nvolvff' taclal disCrlmlnatlon Practiced agaln•t thetii ai'ld ·the va,ttdlty or "a eollecttve barP,tnlng contraet, not Its nieanlfli,r, and dollB not hlnce oi:i the proper ·claas'lftea.tlon. of· thue employees. . . . Labor-acbl onjoin.ble-ratial di11eriminatlon by. bargoinlng repriieen• tati- authorized by Railway Labor Act-effect .of Norri•· L• Guardi• Aot. . . 6. NotwltbataruHng the · reetrletlons lmPoed on lhe inJunetlve powers of federal district courts by·the ~Ol'l'la-La Guardia Ac!, sueh a cr.urt haa Jul'llldletlon and power to Issue necessary ·lnjunetlve relief aplnet ~ dlserlmln&.tlon practiced against eolored railroad em· pJoyeea by a bargalnlq repres.entatlve aetlnc by the authority of the Il.allway Labor Aet; even though triey belong to a elasa or craft represented by anotb9r union. Labor--clutln of '&•rg•lnlng r•P.NHntativeo acting under R•ilw•)' L•~or Act. 7. Bar~nlng agents who enjoy the- advantagea of the Railway Labor A.et'• provisions must ezecute their tr.ust without lawleoa In,.-aalon• of the right ot other workers. Labo~njuftct:ion againot i'aeial discrimination by bargaining Con•· titutlonal Law-clue p'roooe.....,.urclen of proof •• to ocouHd'e in· sanity, · 8. A railroad and a unton aotlnc aa bargain.Inc repreaentatlve by thE. •1:1thorlty or the Railway Labor Act should be pei·manently 1..o.nJolned from using a' colleetlve labor eontract or any other almllar barplnlng cl1otC.: for ouaUnc eolo1-ed·traln porter.a from their Jobs. In fall!hlonlng Jt:s decree the trial eciUrt Is free to" eonelder what provisions are nf·eeuit.ry to afford these employees run protect.Ion from future dlserimlnlitory practices· of tbe union, bearing In• mind, however, that disputed questions of reclaaalflea.tlon of the craft 'or "train porters" are CC!'mmltted by the Railway Labor Act tO the National Mediation Boll.rd. [No. 458.] Argued and .Qbmittei:f April 22, 1952. Decided June 9, 1952. On writ of Certiorari to the United States Court of .Appeols for the Eighth arcuit to review a iu.clsment reversing. in par~ a judgment of tho United States District Court for tho Ea.tern. District of Missouri which dissolved ap interlocutory injunction in a suit,brougbt by Negro porters. against fl railroad nd a labor union and ll:ay disminal of the cause to afford them an opportunity to exhaUst the administrative remedies of the Rail· "lay .Labor Act. Affirmed. Charles R. /rMlge, of Wuhington, D. C;, and Victor PackAineriU.n Dhl•iOftt =~~:~ffi!T~~:.;r;t:i.!1.:t:3 /r., and .~lvin .j, B...,mann; all of;-51. Louia1 MS>u;i, oubmi,..<I tho·. ca.use for responden~ St. Lo~u .F ~anciaco It. c;o. ' , ·:. ~=~!!:';;t:!.:~:=·~;~~,;~ prot~t Negro railroad employees from loa . of thoir jobs .under com~ of a .,.,g&;ning ·~nt Wh\Ch•. tO avpl( a .. ~ the railroad made with an exdUSJVelY white· man's umon. Res' policlent Simon · t!O..aid; a Fri!c9' tl'aiif empl<>yeO !cit ne.,lv forty fHn. ""'1ighi thia action on . behalf ·.of him~f and'."~ colored · employ<res similarly s~uated. · · · In, '""'m.;y the complaint aU•d: N~ empk,y.es ;~ &.\ Tetpondent c:omtitut.cc:I a. group Called ~·train, porter•" althouKI\ they ·actually •performed all the "duties of•. white "brakemen''i lhe Brotherhood of• Railroad Trainmen, bagaining representative of "brakemen" under the ·Railway Labor Ar.t,2 had for yean Used its influence. in an.·attempt to ~iminate: Nepo trainmen and get· their jobs for· white men who, ·dnlike colore•U:train· p-" "I'"'" or could be members of.the Br«herhood: 0n Maroh 7. 1-946, the Bro.lierhood of Railroad Trainmen, baigainiiig ·<epresentative tho colored ."train porters" and fill their.jobs with white - who, under the. a - t . would do less Work ·l!lit GI "'°"' pay. .The complaint «liarged. that the 8\-<>:her)iood'o "<liacrimina.torv action" violated the train porter's rights ll!lder the .Raj]way La,; bor Act and under the Labor Act and under the ·Cons!itution; that the agreement was void. because against public policy, pre, judicial to the . public inerest, and desiipied to deprive N...,, trainmen of. the rj_ght to earn a livelihood because of their, race O_r color. .The prayers were that the court adjudge and decree )bat the ~tract Wllf void and unenforceable for the rea'JOD stated; that the Railroad be "enjoined from m-i.tinuing the jobl known a• Train Por~" and 'from hiring white Brakemen to replace oi clioplace plaintiff and other Train Porters as planned in accordance wiJ:!a said agreement." The facts as found by the District. Court, affirmed with emphallis by the Court of Appeals, substantia!lv eitablish I\>~ truth of the complaint'• material allegations. .These f..,. show<ld that the Ne-ro train porters had for· a Rreat ·many yean served ·the Railroad with loyaky, integrity and efficiency; that "trai• porters" do all the work of brakemen:' that the. Government adminiatrator of railroads during World War I had dat.tified them a& brakemen and had required that they be paid just lik• white b,.a,kemen: that when the railroads went ~ to their owners; they rede.il'!ated these colored brakemen as "train Porters.• "left thci~ dutiei untouched," and forced _them to ~t wages far below thme of white "brakemen" who were Brotherhood memben: that for more than a qllarter of.a century the Brotherhood and other exclusivel:Y white rail unions had continually carried O?i. a progr,.m of ~ggressive hostility to emplovment of Newros for train, eiasin.~ and yard service: that the agreement of MIRb i. 1946, here under •)tack, provides that train porters shall no longer do any work .. generaJly recognized an b_rakeman's duties"; that while tl!is agreement c!ld not in express words compel diS:. charge of .. train oorten." the .economic unsouDdness of keepirw them after b"an'Jfer of their. '"brakemen .. functions made .com-l St. Louis-San F1·nncl.seo :Railway Company and Its aul>8J!!larl" St. Louis-San Francisco & Texas Railway Company. 2 44 Stat r.77, as amended, 41 Stat lllli, 41 use· 88 111 et .aeq. I In addltlc•n to doing all the work done by ordinary tirakelilen, train porters ha\'<' been requ.lred to 9weeP the eoaebeS and uslst passenpra to get on and off the trains. A• the Collrt of Appeal• nOted, "'l'hese al.ale-sweeping ·and pnaeenPr-aulstlng ta.aka. however, are almpl;,: minor and lnclde~ia1, occupylnc only, o.a the record, Sh'ows, appi-o:x_imn.t~ly five per cent. of a tral~ porter's time." 191 P'ld ~U,~ 444. December 81, 1952 THE LAWYERS JOURNAL 638 Americ•n Dacifion~ plete abolition of the "train porter" 8fOUP · inevitable; that lw'l doya alter "the Corrien, reluc:iant)y, and u a result of the strike tbreab" siped the agr!O'Dent, they notified train. porters that "Under thia _..t we will, eflec:tive April 1, 1946, discoblinue all tr8in porter positions." Acconlingly, rtlopondent Howard, and others, were penonally notified to tum in then switch keys, lantemo, markers and other brakemen's equipment, and ilotiCes of 'job vacancies were posted to be bid in by white brakemen only. The District Court held that the complaint raised quations which Congre'M by the Railway Labor Act had made •ubject to the exclusive jurisdiction of the National Mediaton Board lllid the National Railroad Adjustment Board. 72 Supp 695. The Court of Appeals reversed thia holding.• It held that the agreement, U con~ued and acted upon by the Railroad, . wa• an "attempted predatory appropriation" of the "train porters" jobs, and 'was to jhia exient illegal and unenforceable. h ther >fore ordered that the Raill'118d must keep the "train porters' as employees; it permitted the Railroad and the Btotherhood to treat the contract as valid on condition that the railroad would recognize the colored ''train ~orters" as members of the craft ,f "brakemen" and that the ~rotherhood would fairly represent them as such. 191 F2d 442. We aranted certiorari. 342 US 940, an:e, 372, 72 S. Ct SS I. . While different: in some respec:!s, the basic pattern of racial discrimination in tlds cue ie much the same as that we had tJ llOlllider in Steele v. Louisville & N. R. Co. 323. US 192, 89 L ed 173, 65 S. C: 226. In thia case, as was charged in the Steele Case, a Brotherhood acting as a bargaining agent under the Railway Loi>J>r Act has been hootile to Negro emplayees, h .. discriminated against them, and has forced the Railroad to make a contract which would help Brotherhood members take over the jobs of the colored "train porters." · • There is difference in the circums~ances of the two cues, however, which it ii contended requires us to deny the judicil'tl r<medy here that was accorded in the S:eele Case. That difference. is this: Steele was admittedly a locomotive fireman al· though not a member of the Brotherhood of Locomotive Firemen and Engine.men which under the Railway Labor Act was the exclusive bargaining representative of the entire craft of &ciemen. We held tha: the language of the Act impooed a duty on the craft bargaining representative to exercise the power conferred upon it in behalf of all :hoee for whom it acb, without hos· tile discrimination agaiDst any of them. Failure to exercise thil duty was held to give rise to a c;awe of action under the Ar::t. In this case, unlike the Steele Case, the colored ernplayees have for many yean been treated by the carriers and the Brotherhood as . a separate das& for seprt'Jentation purposes and have in fact been represented by ano~her union of their own choo~g. Since the Brotherhood has discriminated against 11train porters'" instead of minori:y members of ils own .. craft," it is argued that the Brotherhood owed no duty at all to refrain from Headnote I using it1 statutory barga_ining power so as to ~b.>lish the job'• of the colored porters and drive them from the railroads. We think this ara:ument is unsound and that the opinion" in the Steele Case points to a breach of statutory duty by this Brotherhood. As previousJ.w noted, the'..te train porters are threatened with Jou of their jobs because they are not white and for no other reason. The job they did hold under its old name would be abolif.hed by the agreement; their color alone would disqualify them for the old job under its new name. The end result of these transactions is not in doub!; for precisely the same reasons as itt 4 One part or tile District Cou1•t'H order was affirmed. The Coul't of Appeals held that the Dlfltrlct Court hac:1 p1·operly enjoined tlie Railroad from abolishing the position of "train porters" undel" the notices given, on the ground that these notices were lnsurftclent to meet the requirement. of S 2, Seventh, and 8 6 of the Railway Labor Act. The view we take makes It unneceSBary fiH' l!S to conslde1' this question. the St.eeJ., Case "discriminations l!osed on race alone are .,i,w..., ly irrelevant and invidious. Congraa plainlv did not underiak• to authorize the bargainiog _.,tative to make such discriminationa." St.ele •·Louisville & N; R. Co. .iu!>'a HeaJnote 2 (323 US at 203, 89 Led 183, 65 S Ct 22f!); Headnote 3 and cases there cited. Cf. Shelley v. KrH.trer, 334 US 7, 92 L etl 1161, 68 S Ct 836, 3 ALR 441. The Federal Act thw orohibits bargainin« agents i: authorizes from ysing their position and ppwer to demoy· colored workers' jobs in order to bestow them on white -ken. And courts can protect thooe threatened by such an unlawful use of power ·granted by a federal act. Here, a' in the Steele Case, colored workers niust look to a judicial reinedy to pr<Vent the sacrifice or obliteration of their righ:S under the Act. For ·nc;: adequate· administrative reme.dy can be afforded by the National RailWay AdjulllHeaJnoi~ 4 men1 or Mediation Boatct.· The -daims hrre can· Hemlnote S not be resolved by intei:pretation of a bargaining agreement so u to give jurisdiction. to the Adjustment Board under our holding in Slocum v. Delaware, L. & W. R. Co. 339 US 239, 94 Led 'j9S, 70 S Ct sn This dispute, involv"' the validity of :he contract, .not its meaning Nor does the di11P11te hinge . on the proper crah classification .of the por:en so as to call for settlement by the 'National Mediation Board under our holding in Switchmen"s Union of N. A. v~ National Mediation Board, 320 US 297, 88 Led 61, 64 s· Ct 95. For the coDtentioil here wi:h which we_ 11\!ree is that the recial cilscrimination practiced is unla~I. whether colored employees are dauified as Htrain porters," "brakemen,.. or aozne-thing else. Our conclusion is th_~ the District Court has juris-diction and power to iAue necessary injunctive or. Headnote 6 ders no withstanding the provisions of the NorrisLa'Guardia Act. s· Y/ e n~d add nothin1 to what was said about the inapplicability of that Act in the Steele Case and in Graham v. Brotht.rhood of Loe. Firemen & Engin"!ll"n, 338 US 232, 239, 240, 94 L ed 22, 29, 70 S Ct 14. Bargaining agent~ who enjoy the advan·tages of tj-,e' Railway Labor Ac~·s provisions mwt execute their b11st without lawless invasioit'.a of the right of other worken. We Headnote 7 agree with the Court of Appeals that the District Court had jurisdiction to protect these workers from the racial discrimin&tion practiced against them.. On demand. the. District Coun should permanently enjoin ?l:e Railroad and the Brotherhood from "°'° of the conlract or any o~her similar discriminatory bargaining device to oust the train porters from their jobs. In fashioning its decree the District Coun is left free to consider what prq_visions are necessary to alord these ernplO)'ee• lull protecrion from lu:ure discriminatory practices of the Bro~herhood. However. in drawjng its de· cree, the District Coun must bear in mind that Headnote 8 disputed questions of rechu4:fication of the craft of Labor Act to11~~n ~~i M~=ittB~.!'J: ~!!:!'::.~ Union of N. A. National Mediation Board (US) supra. The judgment of the Court of Appeals reversing that of the Dis:rict Court is affmned, and the cause is. remanded to the District Court for further proceedings in accordance with thi1 opinion. I~ is so ordered. Mr. Justice Minion, with whom The Chief /ullice •nd Mr. Justice Reed join, disaenting. The right cf the Broth~hood to represen~ railroad employees existed before the Railway Labor Act wb passed. The Act sim· ply protects the employees when this right of repreoentation ;, exercised. If a labor organization is designated by a majority Ii 47 s_tat 10. 29 tisc 88 101 et eeq. 634 THE LA WYERS JOURNAL December 31, 1952. E!r ~\:n1C:~re: ~_: c::: :.~~~iiJti1i:::i~~~ labor organiza~on has a duty to represent in good faith all wor· U...OI the croft .. Steele v, LouUville & N. R, Co. J23.US 192. 202. il9 l. -ed I 73i 183; 6S s. Ct ~-• In the. Steele Case, the'. COlllP~iR,nt was •. IOcomo~ve· firep.ian·; ~ii duti~ were .wholJy. thqse, cif :ii fireman. ~ 8.rothahocicl in. th~!- case repieserile4 the •"firemen's craft,"' bu~ would not admit Steele as a member bec~Uie' he iv•• a NOaio.. As. ~ Je5aJ representative <>f. hi• craft of."lii:eQleo, tb• 8rotberh0pcl !ll&<ie ·• contract with the ca·-· riei tl)at ~inai~ agaimt h~ b~ca"se of hia race. This Court. held the contract invalid.. · 1.t woul<I have been the. same if ihe Brotherhood had clscriminated. against him on .Ome Other g1ouncl. unrelated to race..· Ii was t1u; Brothe,hood's duty "to act on behalf of all the. empl!>Yeeo which. b"y virtue of the st~ tu:e. it undertake• to repn!l<Rt." Steele, •upra (323 US at 199, 89 L ed 181, 65 S Ct 22§), · · ·. -Jb ~ ill'Stali.t case the Brotherhood has never purported ;o represent the · train porters. The train porters have never requ-.l that the BrDtherhocicl represent them. Clauifu;ation of the job of ''train por~'" was establishd more than 'forty yean ago and has· never been dlsputed. At that time, the principal duties of th.~ train porters ~cleaning the can-.·a11isting the paa........ and helping to load and unloac! baggage; only a small part of the- duties were tha.te of brakemen, who were required to hove higher educational qualifications. As early as 1921, the t1ain 'pmters ·orianized a' separate ba.rgaining unit throuch whi~b they have con::inuously bargained: with the carrier here involved; tl-.ey·now have an existing ~tract wjth. thi! carrier. AithouRh the carriers sradually impoSecl Upon the train porters more of tfte dutidl of brakemen until today mG>st of their duties are these N brakemen, they have nevet been classified as brakemen~ The majori~ does not .. y that the train porters are br.V men and therefore the Brother~ m__yst represent them fairlv. a> was held in Steele. Whether >hey belong to the Brotherhood is DOt determinative of the latter"s duties of representation, if :t rt-presents. the craf~ of brakemen and if the train porters are brakemen. Steele was not a member of the Brotherhood of Locomotive Firemen and Enginemen and could not be because of r~ same reason that the train porters cannot belon1 to the Brotherhood of Trainmen. But Steele wa• a fireman, while the train porten are not brakemen. · · The Brotherhocicl stoutly opposes the contention. that i: u the representative ef the train porten. For the Court oo lo hold would be to Hy in the face of the statute (45 USC § IS2 Ninth) anol the holding of this Court in General Committee of Adjustment, B.L.E. v. Miuouri-Kan:.as-T l!l<as R. Co. 320 US 323, 33!1;-396;-~ll L ell,.., 83, 64 S Ct 146.' The majority avoids the dispute in terms but FJDbraces it in fact by saying it is pan· ins. oo .the validity of the contract. If this is true, it ilo done a: th_e ~sta~ ·Of penOns for whom the BrOtherhoocl was 11ot cOntr•ctiql. and was undei n:o duty·. ro ·contract; The ··train por· t~ liad a duly elec!ed bargaibing representative; wllich "fact operated "to. e..:JUde the Brotherhood h<>m .._...,, the craft. s:<ele, .. pra. (323 US at 200, 89 L ed 181, 65 5. Ct 226) : VirlW& · R. Co. v. System Feder,tion, R.E.D .. 300 US S,15. 548, 81 Led 789, 799, S7 S. Ct 592. . · The majority reachels out to invalida~e. the con~ct. not b~usei the train oorten are bra~emen euitl~ to fair representation by the Bro,herhood, but because . thev are Negros who were discri.mjnated asainst by the canier at the ~! of the Bw.lierhocicl. I do not understand :hat pri•J!le. parties lluch u the carrier and the BrotherhOod may not discriminate on the ~round "of ra.ce. Neither .. a sta,te soyernmen~ nor the Federal Covernment may nor the Federal·Goyernment may do . .so, but I know of no ap~~able. federal law. which. says. tha~ priv•te par~ ties may nOI. That is the whole m:gblem underjying the ,...,.. posed federal Fair Employment Practices Code. Of. oours•, :h1' Court bY sh- power can •ay this case is Steele, or even lay clcwn a. code of fair employment" practices.· But sheer power is nbt a subatitute for lesality. I do nQt .have to asue.e With the discrimination here indulged in to question the legality oi today's decision. ' I think there was a dispute here be:w- empl07ees of the carrier a's ~ whether the Brotherhood ~ the repre11_t;ntative of of :he train porters, and that this is a in.litter to be resolved. ·bV the Naticinal Mediation Board, not the courtL l wodld remand this case to ~he Dis~ict COurt to be di'smi!~ed as nonjustificiabl~. • "Nflr does 8 I, Second make justiciable whnt othei·wlse ·Is not. [~ provides that 'AIJ disputes between a carrier. or carriers a.n<t its or tt.elr employeles shall be considered. and, If possible, decided, with all expedition, In conference between repreaentatlves destgn8.ted and authorized so to confer, respectively, by. the C&l'rler or carrlera and by the employees.thereot Interested In the dispute.' A• we ha•~· already pointed out, R 2, Ninth, aner providing tor a certification by the Mediation Board of the particular cratt or class repn1111entati"Ye, States t11at "the carrier shall treat with the rep1·esenta.t1ve so certified afl the: n.preaentath·e er the craft or clan fer the pu1·pollff of this Aet.' "Ii Is cl~r· fr~m th; 1eg1siatlve -hlRta.;. of 8" !, Ninth tfurt it -was designed not only to help tree the unions from the (nt:h1ence. · cuerclon and control of the carriers but also to resol'Ve a wld~ range ot JutlsdlctJonal disputes between unions or between croups of employeeir. H.R. =~e~; !~~~:i;;·abep.th!; :9~ ~;·J!~:!i1~:na~~~P::eas::.·~1·~ within 8 2, Ninth, Congreu did not selBCt U1e ·coui'ta to resol.Ve then\.'' ~~~~--~~~~~~~~~~~~WHEN CROSS-EXAMINATION WENT TOO FAR TBIS STORY -occurred at Fort Collins, Colorado, perhaps 25 'YeG.T!I aco, and at least the Pl'lnclpal pa1·tlclpanta ha'(e pa1Hted to anothe1· Jurisdiction. ·we were defending a ve1·y prominent citizen charged with sta • tutory rape. The Dlst1·lct Attorne)' was aaalated by a very able lllwyer whom we·ma.y kno"llt As R. Immediately alter the arrest, the girl In the case bad been taken to Denver, whe1>o she h&d: been kept In a Catholic Home uniu the ti:lal. In the course of her testimony, on crop-examination. she- stated ~i:at ~~!.~tl~:i, ~~o:.:• :C,rA ~:..!:eth:e~o::i.;.•·~~;'.edte':i:i:~~~:i:~ Just before closlng In tbe evening. During the night we succeeded ·tn Inducing the p1•Jest In charge. of the Home, with a couple· Of num1.· to l;>e presented In the court the next day. Havlnc kept them out ot sight, we put the girl back on the sta.nd and asked her 'it she Coul11 J(lentlfy the detective If she saw him. Upon her saying "yes," we had the priest Step · out and said that: was tlie man The ,prosecution. cloal~g llft caae aho11Jy after, we put the priest on ·the stand. He was a. brilliant man. UP.On direct examlnaUon, h11 said that ·as prl'eat be had charge of thta HOme", a1id· that no Q1!he.i• man could poulbly. bave communicated· with th•· girl. ~e au.Id thal he did talk with lier fully about the caae. She told her s.t<iry and Insisted that It was true. He, ot course, denied any bribe or o.n)-'lhlng of the sort. · ' Of course, c1•oss-exa.mlnatlon tor the purpoae of empba.Slslnc the girl's attlrma.nce of her story under the clrcumstancea was somethlnt; like this: First, he" was asked as to the details of her story which wei.-e repeated by counsel tram he1· te11tllnony. He ._kl she had t.old hl:n ~kaet :~:·y~~~tty~:i:":!::O::t~~- t.~1e ::10~:~.".~r:: ~::l~~l'lch!'::;~ lion to the prominent "position of· tlll& defendant In ~he community as a particular reu.son why no false charge :Should be ma.de acalnst Dim?" "I did, sir." 411 of this In 5re11.t detail, .aa may be JmaBi!J.ed. "H;ow long did you talk with herr• "Perhll"PI an hour, air." "And In spite of all of your lnshltence upon tbe gra\l'lty of bet cb&rges, and the sin and punishment, both in· this werld atld the· next, for falaotesllmony, she tillll Ir.slated she waa telling the· truth, did she?" "Sh~ d!J, sir." Certainly an Ideal place to stop. But one more fatal qiueetlon: "Now, Father, please tell thltJ jury, air, how this ypuns" l&dy hnpresse•l you." "She Impressed me, Sir, as w1sc··be)·ond her· years, n liar and a common pl'Olltltute."· Of course, the defendant won· the case.GEORG~ CL,A.].jll:MER, In D!)CKET, Vol. + No, .JG, p; S9.t14. Dlcembei: B;l, 1962 ·'JlliE .LA WYERS JOTJtiNAL 8311 ·Pia1Upp1De Deill•iou Andra Pllarp, plainliff-appell.e, "'· Learulro Sorilla. de/endanl-appellan1, G. R. L-4302, September 17, 1952, Labrador,/. 1. POSSESSORY ACTION: FORCIBLE ENTRY AND DETAINER: RECOVERY OF POSSESSION OF REAL PROPERTY- Under the Civil Code, either in the old. which ·wa& in fore~ in this country before the American Occupation, or in the new,; we have a poeseuory action; the aim and pur· pose of which is the recovery of thr<:h)'lical -Dion of real propeTlv, irrespective of the question u to ,,ho hu the tit!. thereto. 2. PUBLIC LANDS: COURTS: JURISDICTION OF COURTS OVER POSSESSORY ACTIONS- The vati'~ of the Lands Departml!nt with authority to admln;,.ter, disp"'e, apd alienate public lands mu~~ not be uncieirood u depriving the other branches of the Government of the exercise of their re&pective functions or powers thereon. such a'S the au· thority to •ll!P di_sorders and quell brea~ of. the peace bv the P.Olic~. and the auihoritv on the part of the courts to tab• jurisdiction over Po,.. se~sory action's arisinP therefrom nr. involving, directly or indirect~y, alie11· ation and dispoeition. 3. IO.: ID.; PREJUDICIAL INTER· FERENCE: DISPOSITION OR ALIENATION OF PUBLIC LANDS-Tne determination of the respective rights of rival claimants to Public lands is different from the determination • f who bu the actual ph)'lical p"'5eltion or occupation -with a view tQ . protecting the 1ame and preventirag disorder and breaches of the peace. A judgDIORt of ·the court ordering re:;titution of the possession of a p•r· eel of land to the actual occupan;, • who bu been deprived thereof by another thrwgh the U'se of force or : ~ .~J:r~I i~:=ti:;::.~ ::h the disposition· or alienation of public lands. 4. FORCIBLE ENTRY AND UNLAWFUL DETAINER: NATURE OF ACTION OF FORCIBLE ENTRY-The :!r° ex:'Jti.:1ere:!7v ~~'brm:z in peaceful and quiet pourssion may recover the p"""'8ion of which he bu been deprived by a stronger hand, by violence pr terror· its ultimate oLject being to prevent breach of the peace and criminal disorder. The b!I.· !is of the remedy is mere poueaioa. as a· fact, of ·physical .,,...ion, n~ a legal paaeoiion. ~ title or right to pos~ is never in iaue in an action of fOrcible entry; as a math>r of fact, evidence hereOI is expressly banned, ezcept to prove the natq~ of the &""'"'9ion. 5. PUBLIC LANDS: COURTS: FORCIBLE ENTRY AND UNLAWFUL DET A.INER: JURISDICTION OF COURTS OVER FORCIBLE ENTRY · AND UNI.(\ WFUL DETAINER NOT AN INTERFERENCE WITH ALIEN'ATION OF PUBLIC LANDS- Th• r::l °&e:;i:: .. ~~ ~a!: :~,j dispose of oublic lands does n.ot divest the courts of their duty or power to take cognizance of actions instituted by settlers or occupants or applicanl:i a,ainst othen to protect their respective pouesaiom and occupations, more ~pecially the actions of trespass. forcibl~ entrv and unlawful detainer. and the exercise of such jurisdiction ii no interfuence wit~ the alienation, disposition, and control of public lands. &. m.: ID: m.: RIGHTS OF APPLICANT FOR llUBLIC LANDS PROTECTED BY POSSESSORY ACTION OF FORCIBLE ENTRY- Even pencling the investigation of, and resolution on, an application for a 'public lands f!y a bona fide occupan~ by the priority of his applica.rion at!d record of his entry, h.~ ae:quires e. right to the p-.ion .. of th!> public land he applied for against any other public 1-.nd applicant, which ·right ~ay be protected· by • pouess97 aCtion of forcibl~ entry or by any other suitable remedy that our rul;?S .provide. 7, JUDGMENT: FORCIBLE ENTRY AND UNLAWFUL DETAINER: USURPATION OF REAL PROPERTY: EFFECt OF JUDGMENT IN CRIMINAL CASE UPON CIVIL ACTION- The dismissal of criminal action for usur~ patioft of real property i1 not a har ~o the filing of an action of lorci'bl• entry. for not only are the parties in the criminal action and in the action for lorci'ble en1zy not identical; but the cau!el of action involved. are also ·different. Vicente F ontanosa for appellanl. Martin A. Galit, for appellee. DECISION LABRADOR. J.o On j;.Jy 30, 1941, plaintill-appelle• filed a miscellaneous sales application for THE LA WYERS JOURNAL a parcel of land known as Cadutr u Lot· No. 2777 situated at Mlang, Kidapawan, Cotabato. and paid a depo~l of PS.00 therefor (Exhibit F). The ~uhi.a:i,:1~:.dso~=~z~Jit (Exhibit E), and informed that it fiaJ been referred to the district land office of Cotabato, Cotabato. Upon receipt of this acknowled,ement he started the construction of a small house on the lot. but the same was not finished because of the outbreak. of the war. In 1946 lie had another house constructed on the lot, whii;lt he used both as a clinic (he io a dentiot) and as a l'f!sidence. He introduced other improvem.ents on the land· and these, together with the hou,., he declared for tax purpooes (Exhibit 8), paying taxes thereon in 1947 and 1948 (Exhibit• C and D). He pl"C!'d one Cacayorin in charge of the house, but Cacayorin left it on December 13, 1948. Thereupon defendant-appellant herein demolioh~d the house and built thereon one of his own. On .December 17, 1948, plantiff went to defeodant and aslced the latter why he had con:tructed a building on the land, and the latter gave the excuse that there was no sign of intere;t on the sip of inte"rdat .,r, the part of the one who had applied for it. On March 9, 1949, plaintill-appdlee instituted this action of fora'ble entry in the Justice of the peace court, praying that defendant be cidered to vacate the lot usurped and remove the CQnstruction h• had made. thereon, With monthly damages at PIO, Thereupon defendant tiled a motion to dismiss the action on two ground,,, namely, (I) that the conrt has no jurisdiction over ~e subject ma•· ter, a1. the same falls under ~e exclusive jurisd~tion of the Bureau of Lands. and (2) that the action io barred by u prior judgment, because a previous criminal action for WU;pation of real pro;>·· erty filed by plaintiff against him had been diimissed. The Justice of the peaco court denied the motion on the ground that the issue involved is as to who was in the . actul.J. pot:.Jession of the lot in ques~ion on Decembei- 14, 1948. which issue can be resolved only after presen~ talion of evidence (Record on Appeal, pp. 26-27). Thereupon defendant fil•cl an answer den~ng plaintiff"s pouessicn Rnce 1946, and . allq:ing a1 special defenses (I) that the lot is an unawardod public land. which is already under in. vcstigation by ihe Bureau of Lands, and (2) that defendant was already acqui<ted of a !"iminal charge fded by plat•· till against. him for usurpation of real property. By way of counterclaim he December SI, 1952 demanded P2,800 from plaintiff (R•· cori:l on App•al, pp. 27-33). On June 4, 1949, the Justiee of the p•ace court declared iuelf without jurisdiction to try the we for the reason that the subject matter of the action is the subject of an adminJ.ltrative investigation (lbSd.. p. 39). Against this judgment plaintiff ap· pealed to the Court of First Instance. At first this court refused to take cognizance of the case, but upon the au· thority of the ca"se• of Mago vs. Biha•, 44 O.G. (12) 4934, de~ded by the Court of Appeals, it proceeded to try the case on 1he merits. After trial it found the facts already eet forth abcve, and senten~ the deftndant. to vacaie the land and indemnifv the plaintiff in the sum ol PIOO, with-: Against this jud~ ment this appeal bu ~ presented. the defendant-aopellant i:nakinp- the following assignments of elTOr in his brief: 1. The lowe1· Court erred In try!ni; the ea11e when the land Involved Ja ., public laftd and jurlsdlcton or which he long to the Land Dep,a.1·tment of the Phlllpplnea. z. The lowe1· Court · er1·ed In trying the case when prior to the commenc~ ment ot this action an admlnlatrat.h"e ea.ae waa (la) pending between the partJea: over the same land In the B\1re.1.!l ol: Landa nnd, as such. the lntteor· ha~ acquired first Jurisdiction ovc1· the aul'I ject-matter of the action. I. The lower Court erred In trylno,c lhe case when lhe cause o( this nct111•1 la barred by a 111·101• Judgmt'nt. 4. The lowe1· Court erred In li")"i••J· the case and rendering a ll<'clslon "' the merits when Its duty after It 11 .. "l determined that tht> Jusllce of the Penc.e Court has jurisdiction Is to reverse ~:i.c ord<'r or dismissal Or UUl lnfcrlo1• l•ourl. ned rf'mt1nd to It for rurlht>r 111'0<'t'<' 1. lnp. Under the facts and circum:atances of the case the question now before us ii. as follows: Qo courts have jurisdiction to entertain an action of forcible entry iostituted. by a bona fide applicant of public land, who is in occupation and peaceful pos'session thereof and Who has introduced imptovements. aoinst one who deprives hi!D of the posaesaien thereof before award and pendinR inveatigation of the application? Defendantappellant contends that as the administrative clj'aposition and control of publi: lands is vested exclµ,iyely in the Lands Department, cognizance of the forcible entry action or of any possessory action constitutes a ·~judicial interference" with the said adminiltrative functions. because there is an administrative case pending in the Bureau of Lands between the same parties over the 1ame land. The record contains a certificate of a lands in1pector · the effect that the inve!ltiga~ December 81, 1962 tlOii of the conflict boiween plaidtHf· appellee herein and the defendltlt· appellant hu been •111Pended because of the trial of. the criminal case for usurpa~ tion filed by plaihtiff against clefendantappellan~ (See Record on AppeaL l>P: 25-26.) We note from the cerO!icate, however, that while_. ~laintifl's application is regi_stered as MSA 9917, clefendar:t~appellant doa not appear to have made any fonqal applicalion at all. It must be made clear at the outset d1at this case does net involve a tituatio•• where the Bureau of Laads has already made an award of. or authGri:ted and eniry into, the public land. It is pOre)y • poueaory action bv a bona title applicant who has oeeupied the land ·he h•• applied for before. the outbreak of the war under the ostenoible authority of his application, which was given due cours!! for investigation, but as to which no ap. proval bu been 4i- ~uae investigation hu not yet been finished. An ideal aituation in the clispository of public lands would be on• wherein these alienable and disposable are vet unoccupied and are delivered to the an· plicants upon the appmval of their ap· plication, free from other OCCIIP&Dts or claitnants. -But the 'SitUatian in the COU'J~ "Y has invariably been the oppooite; l•nds are occupied without bein1 applie.l for, or before the apP[ications are an· proved. In fact, the approval of applications often takes place many yean after the oceupation began or the appli· cation was filed. JO that many ~ther applicants or daimants have entered die land in the meanrime, provoking "CODfl1ct·, anc:J overlappin1 of application._ For some reason or l>th-er 'the Lands De~ partment has been unable to C:OJ>e wi_th the ever increasing avalanche of app)j .. cation, or of conflicts and cont>ests i..twecn rival applicants and claimants. The question that fl before this Count i• · Are C9U1"ts without jurisdiction to take coanizance of ooueuory actions involvina these oublic lands ·before final awar.! •• made hv the Lands Department, and before title ~. given any of the conflic •. - ir:g claimants) It is one of utmost im· portance, as there are pablic lands evervwhere and there are thousands of settlett, upeciallv in newly ouen.ed regions. It also involve-, a mattv of poli_ey, as it requires the determination of the respeclive authorities and functions of two coordinate branches of the Government in connection with public land conflicts. Our problem is made simple by the fact that under the Civil Code, eithc in the old. Which was in force in this COUbtry b:efore the American occupatio.l.. or in the new, we mne a pos!a!SIDry atti°'1, the aim and purpo1e "Of~ ~ ir .THE LAWYERS IOUIUllR\L Philippine DHl•lons ~he -.y of the physical _.;.,. of real property, irrespective of the ques· tiori as ·to whe has the t~le th-. Under the Spanish Civil Code we had the accion in1....ii4r~ a oummary .pro· ceeding ·which contd be broqht within one year from dispoueooion (Roman Ca. tholic 8illlsnp of Cebu n. Mangaron, 6 Phil. 286, 291); ""d a'o ·early u Oc:to· her '·. 1901, ueon tl!e onactment of he Code of OYil Ptocedure (Act No. 190 of the Philippine Commiuion) we im· planted tihe cOlllmOD law action of ferci· hie entry (Section 80 of Act No. 190), the object of whith bu been atatecl bf !hi> Court to be "to prevent breacha of tht po- and criminal diso<da: which ctttlle from the wiihd<awal of the remad,, and the reasonable hope such withdrawal would create that some advantage must accrue to thtle penons who. belie11in• themtelve8 entitled 10 the _.... of proporty, resorl 10 J.... to pin .......... sion ather than to S!JIDO apptopnate action in the ...,,r. to user! 'Lheir daims." (5upia mu! Batioco v~ Quin1:""> and the enminmt of the Int Public· Land Ayala, S'9 'l"biL 312, 314. So before Act (Act NO. '\!26) the action· of forcMe enlJY. 11(U .already av8J1•bJe in the courts of the cO.ntry. So the qu~dion to be resolve.I 18, Did the Leiistature intend, wlien it veste<I the power and authoritv to ali ... ale and disnciae of · the public lands in the Land• b0paltmellt, to .,.. elude the ct>urts fiom . e11tertairulig tbe p01sa"°'1 action of lorclble entry between rival claimanll or oceup0uts of aft¥ laud before aw•rd thereof· to any of the pa!· ties 1 Did Cbngretl intend that the lands applied for, or All pub!~ Ian~ for.1f.iat mattor, be rernoncl froDl the 1uriaclictio" ol the jodicial Branch· of the Goven! · ruent. so lh•t u.y troubles arising titer.~· from, or •riy branches of the peace or disorders causea bY rival claimants. could be inqliirod into only by the Lands Department to the exclusion of th~ =)to u'!11:vid::.er fhe t~a:(;: par~en1 does not have the means t!'I nolice public lands; neither cloea it have the me&ns to prevent c:lisorders arain~ therefrom, or contain breaches of the peace am~~ settlers: or to pass promptly upon conflicts o( possel',lion. :in~. its power is c1ear1y limited to iluposit~l'1' dRl atienalion, and while it may decide ~nllicu ·of pesaeu.ion in order to make P..,per award. ti.., 'lettlement of conflicts of pOtseHiOn which is recoanized in tbe court. heiein ha!I anoth~ ultimate pu·: paac:, .i.e., the mor.ecti<>J.1 .of Mtual DCM· senor's and of.CC'!pa.Dh with a view to th.I!' .,..,.ention of breaches. of the peaee. The - to dispose and alienate could not have .been intentled to include tho - "' prnmt .... oettle .m...Ien "' breuhe"s of the ,., .... am- ri¥al settlers er Phlllpplne QMl•ion. or claimants prior to the fia,al award. ~.,:..!h~ t'~men~=~ tiaue to ~se power and jurisdictiot1 within the limits of their --tive l!!nc-· tioas. The ve11ing of the Lando Department w~h authority to adminilter, cli1pooe. aad alienate public.lands, therefore. must not he un~stood u depriving the other branches of the Government of the eurcioe of their relP'!Otive lune· tiom or powers thereon, sucJi u the au· thoritY to !lop disorden and quell bieaches of the peace by the pol[c:e, and 11-.e . authoritj OD the part of the courtl to take jurisdiction oyer poeseuory ac-. tions ariiing therefrom not involving, di· rectly or indirectly, alienation and dY.. l"Jlition. Our auention has been called to a principle ~unciated in American courts to the effeet that ~rts have no jurUdic·· t100 to cletq~e the tjghts of claimants to public lands,. and that until the cliopraition of the land hao ~ froin the -trol of the Federal Government, the court• will not interfere with the amni;;·~~ ~.Wtt;ro94.)'i~:r..:m:~ quarrel with th'8 principle. The ddermination of the reapective righto of rival c:lairrrant1 \lo 1public laod1 lo different from the deteripin~tion of who has th• actual phytical passeuion or occupation with a view_ to protecting the same .and Pl eventing di!order and breaches of the peace. A judgment of the court ordering" restitution of the pdtlftaion of a parcel of land to the .actual occupant, who ha1 . been dep~ved thereof by ·~ other through the use of force or in any ether illegal manner, can never be '"pre.il!dicial interfereoce" with the dispaoition OJ a~enation of public Iliads. On the other hand, ii courts were deprived of jurisdiction of caset invplVin1 conflicts of p-lllion. the 'threat of judicial action against breaches of the peaee commih'!d on public lands would he ~minated, ar.d a otate of lawl .... .,. would probably he produced between applicants, occupants or squattets, where force or mi1ht1 not tight or justice, would rule. It mlM he boine in mind that the action that would he ·uoed to &0lve COD· flicts of !:ioueui0n betwceo rival1 or c:Dnflicting applicanti or daimanl's would he no· oth~ than that of forcible enlry. This acqon, both in England and the. United States and in our jurisdiction. fa a · ou-arv and expeditious remedy whereby one in peacefgl and quiet pcnseuioa. may recover the JKlllR!llion o! whieh he bu been deprived by a· 1tron1or hand. by violence or tem>r; its .ultimar.: obiect. being to prevent breach of •he pe~ and eriminal disorder; (Supia and Batiac:o .._ Quintero and Ayala, 59 638 Phil. 312, 314.) The baais of the ruDedy is mere paueaaion as a facl nf phyaical noa1esaion, not a Ie .. I _.. Ron. (Mediran vs. Villanueva, 37 Phil. 752.) The title or rioht to pot· l&euioa is never in issue m· an action of forcible entry: aa a matter of fact, evidence thereof is. expraoly banned, except to prove the nature of the possessicu .. (Section 4, Rule. 72, Rules of Court.) WitJi thil n&ture of the action in mind, by no stretch of the imall'ination can thf! c:oncluaion be arrived at that the 1iSe of the remedy in the courts of justice would constitute an iqterference with the alienation, diopoaition, and c:Ontrol of public land.. To limit ouraelves to the case a~ bu, can it be pretended at all that its remit would in any way interfere wi!h the manner of the· !llienation or diapo.ti· tion of the land contelled? On the <Oil·· ta·ary, it wauld f~litate adjudication, for t~e question of pri_orjty of possession having· been decided in a final manner by tile courts, said q1,estiion need no )~ger waste the time of the land officers 1nakin1 the adjudication or award. The original Public: Land Law (Ac:t 926) was drafted and pa:..ed by a eon ... million ~posed 11t21tly of Americanti, and ao the Uni!ed States has had iu vut public lands .and u the United St- hao had its vast public lands and has lia.d ~ same "Problems as we iao . .v have, involying their settlement and or.cupation, it i's reuoaable to auume that it wu their intention to introduce int-l the country these laws in relation to o..:t problems ti laod teltl<ment and diopoo1hon. The problem now brought before us ~as presented in an analop.u cue in the year 1894 before the Supreipe Court of Oklahoma in the ca•e o; Spreat v. Durland, 2 Oki. 24, 35 Pac. 682, aod said court made practically \he same solution as we have, thus: x x x. Thia Q·Ueallon Is one or vn!l! Importance In Oklahoma. All our lands are entered, and title p1•ocu1·ed tberef(lr, under the homestead laws of the United States. The Question arlslr·c out 1Jf averse poueaalon, as between bomeat<>--.1! claimants, dally confronts our courc:J. To BAY that no relief can be granteJ, or that our courts are powerlHs to do Justice between lltJgants In this class o>r eases, pending the settlement of title l!l the land department, woulcl be the announcement of a doctrine ahho1·rent to n. sense of common Justice. It woul:t encourace the stronc- to ove1Tlde th<' weak, would place a premium upon gref\l.( and the use of force, and, In many lnstaneea. lMd to bloodlJbed and crime. Such a state of l!off&ira I• to be avol.ded, and. ~e oourta ehould not hesitate to Invoke the p~ Inherent Jn them, and lepd their &Id, In every w~y p~lble, to THE LAWYERS JOURNAL Pl'eYent Injustice, bJ" · preventing encroachments upon the pclll88.980cy rlgbta of settlers, or by equitably adJuatlnlf then- differences. In the caee under' consideration, no adequate remedy at law Is proYlded for relief. Ejectment wlll not He. Adams v. Couch, 1 Oki. 17, .28 Puc. 1009. And; at tile time thl• proceeding was ln•tltuted, the forcible en· try and detainer act was lnsufttclent In ita provisions to artord a rem,edy. The appellee was entltlett to speed relier, and ought not to be comuelled to wait th~ final and tedious 1-esult ot the litigation In the Interior depm·tment, before ob - ta.lnlng that which bi> clearly shows himself entltlei;I to have. That actiOn of forcible entry was then deemed insufficient in that state to prevent 8.cta of treapau interferinR with &n applicant's possession, so that the eo;urt ordered 'he issuance of an injpnction. The main issue involved, however, was whether pending final investigation and award the occupant should he protected in ·ms possession, and the Supreme Court of OklahOJDa ~aid it should. iuuing •r. injunction to protect said possession. The same conclusion was arrived a1: by the Supreme Coun of Washington in the case of Colwell v. Smith, I Wash. T. 92, 94, when it held: We will not decide between two conflicting claimants, botb or whom 'lro actually tn po•ae.salon or certain portion" of the claim In dispute, wbo Is In th'! rtg!u., ID f.!Lr as to dlspouess one o: tn• other trom the entire claim, which would rende1· It lmpoulble tor him to prove that reaJdence th~ law requires, and tllus contest his claim before . the recl•ter and recelve1·; we can and must protect eltb~r party from trespass by t11e otller, upon such portion of the claim as may be tn the actual exclusive posse11slon ot surh party. Rt!•uming the considerations We have set forth above, we hold that the great cl power and duty to the Lands Oepar:ment to. alienate and dispose of public lands does not divest the courll of theit duty or power to take cognizance of actions instituted by settlen or occupanB 01· ;lpplicant1 against othen to protect their rapective pouesaions and occupations, more especially the actions of tresPI'•&, forcible entry and unlawful detainer, and that the exercise of such ju· rllidiction is no interference with the aliei:!:• ~=t=~~! ~::~ to consider must be answered in the affirmative. Oar·raolution above Ht forth anawers delendant-appellant'1 contention. We have, however, to go further and explore another fundamental queotion, i.e., wheDecember 81, 1952 ther a pµblic land applicant. such as the. plaintiff-appellee herein, may be c:on'tiderecl as having any right t.o the land occupied, which may enliJle him to sue in Ill! courts of jUllice for a remedy for the return of the poueuinn hereof, ouch as an action of forcible entry or unlawful detainer, or any other suitable rem~ dy provided by law. In the United Statdl a claim "'is initiated by an entry of tbe land, which io effeetual by making an application at the proper land office, filing the affidavit and paying the amounts required by " " " the Rm..d Statutes. (Sturr v. Beek, 133 U.S. 541. 10 S. Ct. 350, 33 L Ed. 761.) "Entry" as applied to appropriation of land, ··means that act by which an individual acquires ·an inceptive right to a portion of the unioppropriated soil nf the cou'• · '!:Y• by filing his claim." (lbic!,, citing Chotard v. Pope, 25 U.S. 12 Wheat, 586, 588.) It has beon held ti.at entry based upon priority in the ioitiato:-y 'Steps. even if not accompanied by oc cupation, may be recognized as against another applicant. In Hasting & Dakoia R. Co. v. Whitney, ubi supr•, an a[fldn»lt (or the put·. po15a of entering land aa a homeatea.d wns filed on behalf of one 'l"urne1·, In a local land offtce In lUnneaota, on Mo.Y 8, 1865, .Tu1·ner clatmlns to act unde1· section 1 or the Act of March 21, 18G4 (11 Sta.L. 35), now section 2293 of th• Revised Statute11 lor the United Stales As a matt•· or iact, Turner wa11 ncviei· on the land, ll.lld no member of hla fain• Hy was then reaidlng, or ever did realde, on It, and no Improvements whatever !ul.d ever been made thereon by anYQne. Upon being paid their fees. the register and receiver of the land. offtce allowed t.ne entry, and the aame stood upon the record.a of the local la.Dd office. and upon tbe. record• of the General Land OfflC'J, uncancelled, until Seplembet· ao, 1872. Between Kay, 1183, and September. 1872, Congreas made a. grant to the State' of MlnnellOta. for the pqrpoaa of aiding in the conatructlon of a railroad trom-Has~ lnp, through certain countries, to a J>Oint on the western boundary of tho1 State, which crant was accepted by th<!Leclalature of the State of 'Mln:neaota and transferred to the Haatlnp and Da· kota Railroad Company, Which 11lloi-t1y tberearter definitely located lta n~ of road by nuns lta map in the offloe of tbe commiasloner or the General Land Office. AU tbeae proceedlnga occurod prior to tbe 30th of September, 1!!72. Tbla court declared that tha almost uniform J>ractlce of the Department has been h regard land upon which an entry of record, valid upon It& face, haa been ma,dl", as appi-oprlated alld withdrawn· from aubaequent bom.eatea.4 entry, .. ~p tlon, HtU•ent, sale or grant, until tbll original entry be cancelled 01· be de»-mber 31, 1952 cla1·ed fol"felted, In which caae the Jard reverts to the IJl)Vernment aa part ur th:~ 1mbllc domain. and because. agaJ.~ sul,ject to enti·y undel" the i..and Law11: an I It was held that whatever defects tha:•i might: be In an enti·y, ao Ions as It 1·.•malned a aubsiatlng · entL-:v ·of ~1·J, wh089 leca,llty had been passed upon by the land autho1·ltles and theb- action ri:mo.lned un1·everaed, It was such a.ii a > • prop1·1at1on of the ti·act as seg1-egnted a h'Om the public domain, and therefor~ p1·ecludiaod it CJ.·om .subsequent JITQnt: an·l lhnt this entn· on behalf. of Turner "at· tachC!'d to the land" in question, with the meaning of the Act of Con.cress makb1@ the g1·ant <U Stat. an, and could no<: be Included wlthin it . .And :;i.s to me•:> . gettlement with the intention of obtalr · Ing title under *be pre-emption Un·.·, While it haa been held that no veal.id 1•Jght in the land ·as against the Unit :-1 States Js acquh"e!J until all the pre1'('qul.sltef!J fol' the acqula!tlon oC title hu.\" 1 be.n complied with, yet rights In partl"'i as against ~ch- othe1· 'wei-e fully recog·· nlzed u11 ezlstlng, based upon priority I 'I tile inlUato11y ate:pa, when. followed u1.• to n 1mtent. "The pa.tent wbl<·h Is a.rte: ward11 h111ued 1•elates back to the datlP oC the Initiatory act, and cuts otf l\ll inte1•vt>nlng claimants." Sbeplev ,.. Cow,\ ·, 01 U.S. 330, 13-7 (Z8:4lS4, 426). There are compelling rea1ons of policy supporting the retoanition nf a right in a bona fide applicant who has occCl· pied the land applied for. Reeogmtion nf the right encourages a<:tua\ settlement; it discourages ~ulation and land-11abbing. It i> in a<;GOrd with we'! .. tabliohed pr~• in tbe Unit•d States. It prevents conflict• and the overlapping of claims. It is an act of lhno~e justice to the enterprise and .diligence of the pioneer, without which land aett;lement can not be ·encouraged or emigration from thickly populated areas hast· ened. · Our answer to the second problem io also in the allirmati:V'e, and we hold that even pending the invel!igation of; and resolution on, an application by a bona fi,Je occupant, ~uch as plaintif(-apPellee herein, by tbe prioritv of hla applicati·>ct and record of his entiy, he acquire. a right to ~ poueuion of the public lan<i be applied for against anv other publ1c land applicon~ which riidit may ~ pratected by the p ... _., &¢on of fore;. ble entry 0< by - nther •uitable remedy that our rules orGVide. Having. disposed of the l1IOll imlJO'U1nt questions raised on this appeaL ~ .. ;n next conoider the. procedural question, i.e., that the Court of First laotance, aller decidiag the Clll'!ftitll> of im:iodiction of the ifll!ice of the peace ·f...Wably, should· have reman!lod the caie· to. that THE LAWYERS JOURNAL ""11'1. for trial. Tbe rec«d clioclou that upon the clocketinR of the cne in the 'fur~ nf .First ·lno~e ... appe.11, dolenGUlll!"ap~t fifed a mot.ion to d""°" which th.e .C...Ut of Fi11t lnotance ar&Pted. H~, upon motion for r.:!:conai!ler0:tion lilod by plaintiff, the trial court vaoatcd ibis order of diomi'Ral, and thereupon the defendant nreoented his &newer. There wu no need of remanding the case to the juotiCe of the peace coun for trial, &eea114< lhifl court had already .beard and tried the c8'0e evidently on the merits. The case was, therefore, brOught before the Courr of. Fi"t Instance on appeal and for a new Aial. not only on the question of jurisdiction but on the merits also . The clailll' of bar by a prior judgment, beca.111e the action far u'surpation of real propert:y instituted by plainlif!appellant" was ~iued. can not be su1· t•ined; for not only are the parties io lhe previous crimiii.al action and in this action nf forcible entry not idcntiCal, bu, the camrs of action involved are a(ll') ciilfeient. The iu•ment-a-aled from. is hen· bv affirmod, with c;!MIS againot !he. a9· pellant. Partn, C./., Pablo. Bo•1•••· Padilla, Tuaion. lflon~dlrltiyor, and Baulis'a Anrel•~ conciir .. d: · II Sta. Mua Slipway. .SO Enrinuri111 CompdlllJ, Inc., pt.litioner vo. th• Court ot lnd.,trial RdatioO.$· dnd MacOrio Tndina, et al., rapondent, G. R. No. L452/, Aug. 18, 1952 AfonternalJOT, /. I EMPLOYERS AND . EMPLOYEES: DISMISSAL: NOTICE: PAYMENT OF "'-'AGES AT THE END OF E.l\.CH WEEK AND ON AN HOURLY BA· s1s.-Althou1h the laborers were paid at the end of each week and on an hourly baaio. it doe's not mean th•t =·Th. ·~of":i.; ::'!': riod of payment io nnly for the purpooe .of C<J!lll!lltinq the amount of wages earned and ~e ~ spent. They de> ... refer I!! the term .. period of !9DPloyment. Caaoequcntl~" t-...::i: :.=~~°!en~ aDd IO c:qmeo wilhin the purvieW ol the 6nt puagraph of Art. 302, Code of Comiiioice. z. ID.: DISMISSAL WITHOUT JUST · CAUSE- Tho laboren·of a companv _,, notifie!! that beealUO of aa inveQtory. tltot was to be made, laatina altaur, tw<> · ......, !heir work Would be~ - th111 lat.r ·!hey -.Id be ,...Ueol. Tl1'!I' oi · f.,.i to work after the •-ination 61111 Philippina Declalon11 of the inventory by rea'Son of whiclr their work was suspen4;1ed, ·hut. the; were not allOwed to continue in theif employ!J\lent. l{eld: Through no fault of the laborers. they Were la'. .I off and separated from the company's service. They were for all prac· tical purposes dismi'ssed without iu11t cause. :I. ID.: COM).lliRCIAL EMPLOYEES.~n employer mainly dedicated iD. :he ~ork of building and repair of y:cs· : sels and barges is a commercial company, and its emi:>lovees and lah<r· ets, commercial emplpyees. 4. JD.; PAYMENT OF ONE MONTH WAGES UPON SEPARATION FRO\£ SERVICE.- Regardless of wheth(>. the laborers are commercial or ind •i· trial or business empl~vees. the e~ ployers should pay the laborers th'! equivalent of one month wage's upQ l separation from service without just cause. !D.; COURT OF INDUSTRIAL RE· LATIONS; JURISDICTIONAL RE· QUISITES.-ln order that the. Cou,t of Industrial ·Relations could ac.· quire jurisdic.tion over a case, the following reauis.ites or elements mu'$~ eJcist: (I) Dispute, industrial or aa-ricu'ltuiaJ; (2) that __ said dispute i:s causing or likely to Cause a '$trike or locko~t; (3) that said dispute arosE from the diffetences as regards wage1, dismis'sals. lay-offs. etc. between em. ployees and employers; and (4) that the number of emoloyees- or la· borers must exceed thirty. cause one, e'speciallv the latter, i;; many times set in motion in hurried anticipation of the other. s. JD.; JD.; NATURE OF THE TERM "LOCKOUT".- A '"lockout" is a term commonly used to express all employer's act of exclµding from his plant union members hitherto employed by him. The act may affect all or less than all of the employee-union members. Lock· out, in the sen'.se in which it is universally used, is an ac.t directeJ at the union itself rather than at ·the individual employer-memb.~s of t~! union, 9 ID.; ID.; ID.; SHUT·DOWN AND LOCKOUT. DISTINGUISHED.- A "shut-down" differ's from a lockot.1t in that in a lockout the plant continues to operate. The emplovee·union members locked out are replaced by non-union sqbstitutes and the plant continues ta function. In a "shutdown'" the plant ceases to operate. A shut-clown ls the willful act of the employer himself. following lo complete loclu;>:ut as contrasted to the compulsory stoppage of operations as a result of a strike and walkout. It can p-Uly be said that all 'shut-downs are lock-outs, but not all lock-ou~s constitute qr . effect shut-downs. 10. IO.; COURT OF INDUSTRIAL RE· LATIONS; STOPPAGE: RJGHT OF LABORER TO BE HEARD BY COURT OF INDUSTRIAL RELA· TIONS.-A laborer who was dept1't· ed of his work without just cause or the occasion of 'stop0age of work or temporary cessation of operatio"! has a- right to be heard by the Court of Industrial Relations. G. ID.: LOCKOUT: EXISTENCE OF LOCKOUT.- Where the work of th• laborers of a company was suspended in order to make proper inventor.v, 11, .and when. the laborer's returned !cwork after the inventory, they·wert: prevented from resuming work, there JD.; ID.; INDUSTRIAL DISPUTES. -The ·eourt of Industrial Relatio J> should take cognizance of industrial dispute's arising ·from a strike or lockout or those that come hereafter b~ cause the daim ·or damage caused to the workers hecawe of their di~ missal or lay-off necessatilv comes after and not before the strike o. lockout. was to them. for alJ practical_ purposes, a lockout, 7. ID.: ID.; STRIKE; LOCKOUT ANll · STRIKE. COMPAREDi- The "lockout" alike with the '"strike", ·constitutes a sUipen_sion of emplo~s· 'serv. ices, but the distinction is -said ['> arise from· the. faCt that the emplover ·rather than his etnployeei;s ·is the doer ·g_Fthe ·aee~ of suSpensio'n. In both cases, a labor coritroversy exist~, which -is Qeemed intolerable · by one of the parties, but the ·lockout indi· cate·.s that the employer rather than his employees have brought the ma.'te.r to issue. . Strikes are nid stat1~ tically to J,o. the. rule, which lockouts . : "constitute exceptions, but it is probab.. ly impossible. to determine, .witli any ·. · .' fair. degree of .conclusiveJJets .whether the· ·2iven· disp11te l\es been precipi. ~a.led by. a ·strike ·Or . a .l_ockout he· li40 12. ID.: JD.; SUBSEQUENT REDUC· 1'ION OF THE NUMBER OF LABOR·· -ERS AFFECTED- Pendir•5Z" proceedi11g in the Court of Industrial Reld.tions. ten of the thirty-seven peti· tionimr emp)oyees or laborers withdrew from the petition because the~ had amicably 'l!ettled their differen· ces with the company. thull reducing the number of petitioners from 37 to i7. Held: Altli.ough during the nrcceedings in the court- below, bec.ause of .the amicable settlement of_ the dis· · · :p~te between the Detitioqer -.nd some of· the dismiued Jaborers, the .:num· her of said laboreIS. y,as reduced· to THE LAWYE.RS.JOURNAL 27, this reduction below 31 as re · quired bv law did not affect ti·~ jurisdiction of the industrial court, 'Once the Court of Industrial .Relation's has acquired iUrisdiction, it retains said jurisdiction until the case is completely decided~ and _that the reduction of the number of employees or laborers affected to a point below the number required by law, to inp vest the jurisdiction of the court at the beginning, or the amicable settlement of some of the demands originally made did not deprive said caurt of jurisdiction ·to ~tinue hear. ing the case and decide it. Cirilo R. Tiongson for petitioner. M. A. Ft:rrer for respondent Court of Industrial Relation and Carlos· M. -Tadina et al. DECISION :\lONTEl\[A YOR. J.: Petitioner Sta. M esq Slipways &Engineering Co .. Inc.. latter to be reftirred to as the Company, is a domestic. corporation dulv organized and eJcisting under and by virtue of the laws of the Philippines mainly dedicated to the construction and reoair of vessels and barge's. The respondents Macario Tadina, et al., were former labortrs of the petitioner who had been employed as carpenters, some of them h~ving worked for several years, under a verbal contract of employm_eni for no fixed or de-: fi1_1ite period. with wages ~aid to them eVery end of the week. Qn April 26, 1949, a notice was posted at the rate ol the compound of l}J:titioner Company to the effect ·that in order to make tht> p1oper inventory. all Work would sts;> on Saturday, Aoril 30, 1949; that the yard would b~ dosed for a period of two week's or more if necessary and that t}.e laborers wouH be notifitd accord~ inv;ly as ·o when normal work will be resumed. The notice was sign£d by the Manager. The ~·-.l work did not, however. apply to monthly personr.el tog~ther with about f_orty-one laborers and fifteen watchmen who continued workiilg in the compound. At the end of the two-week period of inyentory. res· pondents T adina and his fellow laborer's had all been oaid their wages up to the time they were laid off. Tadina and thirty-six fellow laborers filed an action with the Court of Industrial Relations alJegina- th,.· they were not given by the Comnanv the one-month notice provided for in ·Art. 302 of the ,Code of Commerce and askinll that the said. Cornpanv be ordered to pay thei:n compensatiOn _ for one .month in ·Heu of s;, id. notice. The Comoanv asked for the dismis'sal of the case on the R'fOund that Deceml)er·.31, J~51t the·.court'lacked juriodictioa o¥eroit., It menl wao ·with" temi·the - .being Mii ·contended that the claim· of ,.,.._ .. 'tmiporary ·w• on .. · the ··lllOllthiJoc <><·daily p.dents: for ,a on&-m0nth. compensation: basis. The COurt· time· said:-< iir-~ieu·. of notice. was· not supported by 1-·and had· no .legal. basis becadoe oaid petitionen (now- r...,ondents herein) were· all 1>aid on .. on houri• ·basis an~ ordy for· the number of hour• of octual work, Pendina nroceedi.,.. in .. the. CGWI. of• Industrial Relations, ten . ..! the thirty.Jseven pe..itioning. employees or laborera withdrew from. the petition bec:ouae rliey. hod amicably settled their differen"""'wilh the Company, thus. reducing the number of pe<itionero from 37 to 27 ... -ruch .is less than the thirtv-ooe. (3 !) wf-!"'l'b:"!.!r... 'i:''d:.':~thwas ~ Died and after due hearimr and the subml.sion of a partial stipulation of facts, the industrial court decidP<I in favor of the ~rioners and ordered the Company to-pay.tb~:(petitioners) the equivalent of their. wa.·es for one month. -with lqa) interc!lt. · The company bu. now filed this. petition .. for certinrari to review that decision of the. lower· court, preaentloa the lollawing .questions of law: ~ .L. Is .Al'.t. 301 of the Code ot Commerce of the Philippines applicable l:i this pal'tleular cue? · t' Does the resPondent Court ot Industrial Relations have jurisdiction . to decide and settle tbla ·CDS&? ' Article 302 of tii. Code of COmmerc:c reads as follows: "ART. 302.-In casu In which the contra.ct does. not have a fixed. period, any of the parties m&y terminate It. 1o.dvlslng the. Other· theffor.· oii.e atontb ·In ad,•ance. ' The factory or shop clerk shall ·have a right, In this case, to the salary · correapondlng to .s&ld ·month." Under the. fir1t question of the applil:llbility of M .. 382 of the present case, peti.tiona contends:: that the employment. of the. laboren involved herein wu .not without a fixed period bec:cuae tliey were paid at. the end of OYery week and th~e fore :they may. be considered a's .having been hired by the ·week, and besides, the amount ·of .. oayment . was . based on the number of :houn of work performed, A similar question ·ha's ·heretofore been submitted for determination bv this Co,ut. In, the case of SaDc:hez. et al. •· Harry L vons Cons1Tuetion ·: In<.. et al .• C; R, No_ L-2779, October 18, 1950, wher~ tl.e. laborers , inwlved were oaid some on . a monrhly. ~ such a1 P2S.O a month while· others were paid ,PS.00 a dav. it was there ... contended that .Art. 302 of the. Code of Commeree did• not apply inasmuch as: same- of the laborers inwking, the. p,.,.W..&;.of. said article were· pai<! ·by the month ·and .otheo by the day, and that-ther.elore their employIleeember 81; 1962 "x x x z. The Jta.ted coi:nDutatlon or manner or pa,yment. wheth,r monthly or dally, doelil not represent nor determine & special ij.me of employment. •rhus, a commercial employee may be employ• ed for one year and )'tit receive his salary on the . dally or weekly or monthly or other basis. "Appellants allece that the· uae: <1t the wQl"d 'temporary' In the contra.eta of services .of some of the plaintiffs 1thows that their emplo:vment was with a term, and the .term "was 'temporary, on a day to d&.J" baals.' The record discloses th&t this conclusion la unwarranted. The ~ntracta almply ea:v - 'you are. hereby employ~d •. as temporary guard with a. compenaaUon at the rate of f"&.OO a day •••• " The word special time fixed In the contracts referMd to In Article 302 of the . Code QI. Commerce. The daily baala therein stipulated Is for the comput&tl~ of pay, and la not necessarily the period of employment. Hence, this Cou1·t holds that plaintiffs appellants come within the purview of Article 302 of ·the Code of Commerce."· In the present case, it may also be oaid that 'l!lhou@h the laborers were paid at the end of pch week and on an hourly: ba'sis, it does not mean that there was a. fixed term .of employm~t. The basis of salary and period cf payment is only for the purpose of computin"". the ar.oupt of wage'.J earned and· the time sper.t. They do not refer to the term or period of employment. Consequentlv. we hold that the. contract of employment. of Macario T adina and bis fellow laborerl wa's without a fixed period. a,nd so come within the purYiew of the, first oarqraph of Art. 302, Code of Commerce. . Petitioner says that the decision of . the Industrial Court does not· cont,,,in a 1ipding that the respqndent laborer's were · dismissed without just cause and so, their caae does not come within the prov1siom ci the second part of Article 302. It is a fact, howeoer, that through no fault ·of the laborer, the. were laid off and ...... garated from the petitioner'• service. 'J"hey offered to .work after the termination of the in•entory bv reason oJ which their-work-was •usnended, but they were ·1or all practical .purpooes dismissed withOut just cause.- ' . . Last!., petitioner contends that Art. 302 .is no· applicable here becau~ the labarers were not comm~ employeea ea a1:1to .warrant the aoDlication of theproYisions of·.the·~ of. Commerce. It cites the cue .. pf. Juan Arribas "'- Hawaiian-Philippine Co.,c_ R..No. 372.19, dated Augli'sl 23, 1923. purponing. to ~.LAWYERS ~OURNAL hold· that -before, •n-.empl,oy.e 'c•~· i,..., voko th&.provisiont. of·,A<t.- 302·.of .• the., Code' of Commen:e·. he QIUS~ show that· }w.. ilh a commercial employe~ . Unfqi.., tunatel,., we ,,..-e unable -to read said cUc· . beca,QS;ecit.chea not anoear to·have been· publiohed in . tho Philippine Rep- or. in. .the Official Gazette . and we are un- . able to find. -it am- o.,, records that.. sqrvived the-last war. But grantinc that, there was such a ruling by this .. Court, .. We alaQ &nd that in the case of Pllilipl'.\'.': l.:!a~i.iu·tff77i~~!.~:.~= . ed much later on September ·30, .1938; · ·this Court· held or rather stated in· the-• couree of the -decisioil that the c:oruract oi rq>air of vessels entered into· between· · the il.ppellee Smith N!'•isation Compa- · ny and the intervenor-app_ellant 'Ef Varadero- de' Manila which later ·cempanY. by the way Yfas also engaged in ·the · biiilding and repair of v<lli~, lib •the · peritiOner herein, waa a commerCial ·ti'a.Jli.o" eaction and as such should be gevemed·• fint by t)io proY~ .of the. Code.-o{ Commerce •. Ooe possible implk.atiwl from •aid· hulaing might .be. .that .an. em- . pi,oyer like the- periUon.., engag~ in th~. work of buildina' and. ~air of vesseb,., i.s: a commercial compaDv, and ·ill 'employees. and' laboreri, commercial em- -. i>loy<es• But ,..aidJO.. of whethet: !he laborez's in the rresent case are. CGJQQlef~ clal or industri81 or busineu emploYeei. tlie employer should, we beli .... ·- pay tl-.em. the equivalent· of. one menlh:twaps upon separation from .-vice without jusl: cause. In the fint ploce; ·f.-·the ttan<lpoint of the laborer or .employee, one employed by an industrial or busiDt-U •cqna.rned. is as much entitled .to the benefits oi the law and deserY..i··hiii ·one tnolith pav a'i one emploved·by-& merdwit. In thO •ec:ond· place. ,r<!B•rilless o< !he strU;t, applicability or no~-·. PJ>!icabil,.'y of AA302, the .. COurt of. Industrial lUlatioils bY-:reason Of ita aeneral ~ti~ ·and.: autJiority_ ty decide labcir dispu\d. tM. amount of 'lalary ·or w~s to be paid h·bor.ers. and ·employees., to determine thir livin~ .conditions. has been decidinA. not only ~ minimum that .the em.plOY,er· should pay .its emplqyees but also .grant. in« them even .sick. and .vacation leaVe: with. pay. without· anv: exp~ J~al. ~ \oisioa.: A .month~• pay up911 sep!1J'•hon from service without inst ~use an.d without .notice may alsO. in the discretion.of· 'the Industrial .Court be granted D10Yided th&t · said discretion is not abured. · In the case ·of Sanchez et al. v. Harry Lyom · ConstnK:ticm Co., et . al •. •""f"• ¥iihile:. one of ·the -companies thetein. 1nciuded as ·defendant-appellants, na!Q)y1 the· Material~ Distributors Inc .. was •. en .. gagOd . in· buying SIUl!lus · property. renairing -and then.elling th"!!' tp.the-public for which reasoo it mighf be readily 641 PhilipPi'1,e- DtCieione considered ·a commercial C0111pany ancj ' it&· laborers· cominercial employees. the other company ·Harry Lyons Con1stru~ · tion Co.. Inc. was enra1'ed in the construction· of' roads .and brj_dges, a business IJardly to be regarged as C!>Plmercial; still, the employee's of both companies were all considered commercial employees. entitled. to the equivalent of one month, pay. ~use of separation from service without notice. the.· lockout· lildlcates that the employer rat'1.er than hie employees have brought the matter. to Issue.. Strlkfa are IJ!lld statistically to be the r:ule, while lo,·k~:mts constitute exceptions, but It Is probably Impossible to determine with any fair degree or conclusiveness whether the given dispute has been precipitated by a strike or a lockout because one, especla.lly the latter, la many times aet In motion In hurried· anticipation of the other." (Teller, L•bor Dieput•• and Col· lei;tlve B.raaininD, Vol. I, p. 246), Again, in the Case of Lopez v. Roces, as Manager Of the People's Homesite Corporation, 73 Phil. 605, the Suprem~ t:Gurt held that when the one month, n9tice ls. not Riven. n~t onlv the factor or shop clerk. but anv employee distharged without just cause is entitled to . an ind~nity which mav be a month's salary,·and that.the HOmesite CorporatiOJ] ~ing a business company, its chauffeur dismissed without notice may be considered aS a commercial -employee entitled to one month pay. Going to the secon~ question, that of jurisdiction of the Court of Industrial Relations, Petitioner -contends that in actGi'dance with Chapter I, Section I and Chapter II, Section 4 of the COmmonwealth Act No. 103, in order that the ClR could acquire iurisdiction over a case, the! follo~ng requisites or ele;nents must exist:· 1. D_Jspute lnduStrlal or afP' .~ultural; 2. Said dispute Is causing or Ukely to lockout; 3, ... .6ald dispute arose from dlfferlonces aa regards wagea, dlam~saals, lnyotts, etc. between employees i.nd employers: an:d 4. The number ot employees or la.!lorers must exceed thirty. We 8.gree with the res15<>ndent Court that all the four elements ellumerated above were present. There was an indu;>trial dispute between the petitioner and its 1.iborers; 'said dispute· arose from difer~ · ences as regards dismissal and Jay.off, and the number of employees affected:.._ thirty·seven - Was more than the mini-· mum req"uired by· the law. The ·only eiement ·which may be subject to doubt is whether cir not the dispute is causing or is likely to cause mike but there was a sort of loekout. When the 37 laborer& returned to work after the inventory and when prevented from .resuming work, there -was to them, for all practical purt;loses, a lockout. 642 The '.lockout' "-like' ~Ith the 'strike,• constltut~ a 'SusPenston ot emp\cyees' services, but the distinction Is said to .. arise trom the .tact that the emr.loyer· rather.-than his employees 1k the doer of. the ·deed of sµspenslon. in botl'i cases, a labor cont1·oversY exists, which Is ·.ieem: ed lntole1·able by- o"ne or the parties, bp.t "A 1ockout' Is a term commonly used to express an employer's a.ct or excluding rrom his' plant union members hitherto employed by him. The act may affect all or less than all of the employeeunion members. Lockout, In the sense In which It Is universally used, Is q,n act · directed ~t the union Itself r·ather than at the Individual employer-membe1·s Of the .union. x :ic :z: ...... ,, . •. "A 'ahut·down' differs from a. Io'ckotJ.t In tho.t In a Jock-out the Plant continues to operate. The employee-union mem· bers locked out are replaced by nonunion substitutes and the paint con! lnues to function. In a 'shut-down' the plant ceases to operate. A shut--d·lWn Is the wilful act or the employer himself, fol· lowing a. complete lock-out as cont1acted to the compulsory' stoppage ot operations as a. result_ of a. strike alt'd walkou~. It ca.n truly be aid that all shut-downs are lock-outs, but not all lock-outs constitute 01· effect shut-downs." (Rother'!berg, L•bor Reletione, pp. 68·59.) Of course, ordinarily, a l~kout re!e~ t(1 union members, and is used to di.sci.pime laborers for their un~on activitie;s. 01 u directed at the union itself; and m the present case there is no evidence ab~t the union afliliation of T adina and his fellow laborers, or the real reason behind their ouster and exclusion from work. Bu't. whatever the reason, to them there was •:1topoage of work. a lockout wiihin the contemplaJtion of the law warranting the extension of juridiction of the CIA and it's intervention if sought. In the case- of Yellow Taxi aµd Pasay Transpo:rtation Worker's Union (CLO) v. Manila Yellow Taxi Cab Company, Inc., 45 0. G. 4856, thi~. Court held- that a laborer who was. deprived of his work without just cause on the occasion of. stoppage of work or tem· porary cessation of operations . (p.:ue). has a right t_o be heard by the Court of ~n dustrial Relations. It further held that said court shouid take cognizan~ of industrijal disputes arising from a strike or lockout or those that come 'thereafter be-: cause the claim or dam~ge camied to the workers because of tlU;ir dismissal ~r, la.y.off necessari,ly' comes -after and not before the strike or lockout. , 'IIHE ·LAWYER& JOURNAL A. to the number of labOrets inW>lved ·i,n the oresellt case, -although during the proeeedings in the court bolow, because of the amicable settlement· of the dispute between the petitioner and some of the-dismissed laborer's. the number Of. saic:i-laborers waS reduced to.27, this reduction below 31 as required bv law did not -affect the jurisdiction of the inllustrial court. In the case of Pepsicola, Inc. v. National Labor Union, G. R. No. L-1500, 46 0. G. (Sup.) No. I, p; 130 and ·Manila Hotel Employees Asooeiation v. Manila H9tel, 73 e_bil. '374, this Court laid down the doctrine to the effect that once the Court of Jn- · dustiial Relations has acquired. jurisdic- · tion, it retains said jurisdiction until the case is completely decided, and tha-: the reduction of the number of employees QI' laborers affected to a point below the . 'number required bv law, to invest the jurisdiction of th.e court. at tbe beginning, 01 the amicable settlement of some of the demands oritrinallv made did not .!ieprive" said court of jurisdiction to Continue hearing the case and decide i~. In view of the fore~oing. the decision · appealed from is herebv affirmed. with costs. P~ras, C. /., Pablo, Beng%on, Padilla. T 1,1ason. Bausiistp Angelo, and ~brad or / /., concurred. Me.:.n. Justices Feria, Reyes and Jugo did not take part. III Laureto A. T alaroc, petilioner-appf!llee, t>s. Alejandro D. Uy. i-espondent·at'· P.•llanl, C. R. L-5397,. Sept<mber 26, 1952, Tuason, / . 1. ELECTION'S; CITIZENSHIP OF ELECTED CANDIDATES-- U was elecred municipal mavor of Manticao, Misamis Oriental on November· 13, 1951. T, one of the defeated .candidates for the same offiCe, cqntested the. election of U on the ground that the latter is a Chinese natioD.al and therefore ineligible to the office of the municipal mavor. U was born on }i;lnuary. 26. 1912 in the municipality of Iligan, province of Lanao, of Chinese father and of Filipino mother. Hts father and mother were married on March 3. 1914 in lligan. The father died in this municipality· on February 17, 1917 and the mother died on Augu1t 29, 1949 in the municipality of Manticao, 'Misamis Orient~I. U had voted in -the previous elections - and had held various posittOttf . in the government. Hdd: U it'.:a Filipino citizen and eligib1e.~o ihe of6ce· of municipal mayor . .(tle hcame a Phil. ippine -citizen at least upon his faDecember 31,.1962. tbpr's deaJh. ColDD)onwealth Ar.t No. 63, _pro.viding a piethad for re1aining ' Philippines. ~zenship by Filipino woman in such case, w~ paosed. when U's mother had been a widow for 19 years and U had been: of age three years.. and this law carries no proyis.ion. gi:ving i'.I i;ettoacti'tl'e effect. It would neither be fair nor good policy 10 hold U an alien after he. had exercised. the privileSes of citizenship1 and the Government bad confirmed Im Philippine. citizeaship on the faith of legal ptinciples tha_t had the force of law. Claro /tf. Reclo for appell~nt. }utU!ti.ana R. Borja:· for appellee. DECISION 'FUASON, /.: The election of Alej·an~ D. Uy to the office Of municipal mayor of Man .. tica.o, Misamis Oriental, on Noveml;>er 1', 1951, brought the instant action of quo warranto in the Court of First lns-tance of that pr«iWince. Jbe petitioner was Laureto A. T alaroc.: one of the defieated candidates for the same otfi,_ce, and the grounds. of the petition were that he resp011dent is a Chinese national and therefore ineligible. The court belo:w found the petition well founded 8.nd dedared. the posibcti in que#on 'va~ ca·at. The personal circumstancdi of the rei.p.on.dent as. found by the court are not iri dispute. They ~re as follows.: "Estan establecldas por las pruebas, Y admltldas por las partes, que Alejandro D. Uy naclo en Enero 28, 1912, • n et munlclplo de Illgan, provlncla de Lanno (Exhlbito 1), de padre chino, Uy Phlngco; y de macre P'llt}>lna, Ursula Diallo, cuando convlvlan estos como marid'o y mujer, pero despues contrajeron matrlmonlo ecleslastlco nl Marzo 3, 19! .J, en dicho pueblo (Exhlblto 9'). Tuvieron slete hJjos, siendo el recurrldo Al@J11ndro D. Uy el 5.o hljo. Uy Plangco, na·t!vo de Chultao, Amoy, 'China, nunca se ausento d'esde que llego hacla 1893 o 18!15, en Fillplnas hasta su talleclmlento· el- ·FebFerO 1 T, 19-17:, en Dlgan, Lanao, don de estuvo resldlendo · eontlnua.mento, mut•lo con postor.iorldad, el Agosto 29, 19.f.9~ en el munielplo de Manttcao, Mlsamls 01•lenta.t (Exhibit 3). Apa.rec& tamblen que el recurrld'o Alejandro D. Uy nunca tue a China y.·he. votado en las ante1·lores elecclones. veriflca.das. en el pals. y ha dosernpenndo empleos como- Inspector de! "Bu1·ea,u of Plant hld1Jstry" en 19.U CExh. 0; en los anos· 1935, 1946, 1947, maestro bajo el Bureau of Public Schools, en Mantlcao- Dlstrlct (Exits, 5· y 5-a); filing clerk en la Tesorerla.. ;\lunlci:;ial de Initao, en 1935 al 1945 (Exh. 4); >' ActDecembe• 31, 1952 Ing Municipal Treasurer d_e. Lagalt, ~n 1942 a 1943 (Ex;h, 6); ademas de haber servldo al l20th Infantry Regiment de la guerrilla, y algun tlempo 'Tax ~:ollec tor' del goblerno ile ocupacion japt•neSa, en esta provincla de Mlsa.mls Oric1ttal." These facts also appear uncontroverted in evidence: One of the respondent's brother's, Pedro D. Uy, b.efere the war and up to this time has been acc_upying the position of income tax exammet of the Bureau of Internal Revenue. His other- brother, Jose- D. Uy, is a pr.1ctis-ing certified public accountant, and before the war was the accountant of the National Abaca and: Fiber Corpa1ation (NAFCO). His other brother, Dr. Victorio D. Uv, is a practising physician, i:i.1.d, before the war, wa's charity physician in lnitao and. later a physician in the pr~vintial hospital. During the :vl,M, Dr. Uy was a captain in the Philippine army. His younger brother was a lieutenant in the I ieah Infantry Regiment of the Guerriltas. All 'his brothers married Filipina p;irls and they were never identified with any Chioese political or sociar organization·. Respo:ident~ father acquired properties. in Lugait. Hi:1 111:0ther. who never remarried, campaigned fer woman suffra"ge in 1935 and" voted in the subsequent eleccions. The respand~(s conteolions-, whjch thct ~ourt below. rejected, w.e11e thait his fal!her wu. a. subiect ·of Spain· ao April 11, 189!} by virtue of Article 17 of the Civil Code; that his mother ipso facto reaequired her Filipino. citizenship 'upon the c;leath. of her hµsband on February 17, 1917, and the child followed' her .,itizenship; and that the r~pondent is a citizen. of the Philippines by the- m~ fact of his birth therein. His Honor the Judge noted that, while under the. Roa doctrine (Roa" v. Insular Collector of Custom~. 23 Phil. 315), Alejandro D. Uy would be a Filipino citizen n~d less of the nationality of his paren~s. yet, ~.e said~ this doctrine was abandoned in Tan Chon v. Secretarv ofi Labor. G. R. No, 47616, September 1'6, 1947; Swee Sang vs. The Colnm.on.wealtll ·of the Philippines, G. R. No. 47623, decided with Tan Chong vs. Secretarv of Labor; and Vi1I~erm0&a v''6. The Commissioner of lmmi1natioP G. R. No. L1663, March .31, 1948 .. It may be· recaUred that in the case of Roa vs. lnsuln Collector ol Cwtoms,, supTa~ the pe•itioner -was born in lawful wedlock in the Philippine3 on J ul:v 6, 1889, his father bt'jng a native of China and hi':! mother a· Filipjna. His· fa;he·r was domiciled in this country· up -to the year 1895' when he went ta· China a.'ld nel'er rdurned, dying thell"e ct:b.Qut 1900. In May. 190 I, Roa, who was then a minor:, was se:it to China by his widowed mother for· the sole purpCDSe· of ~tudying, THIE LAWYERS' JOUR'.N"A.I:. Philippine lleci•iena; lll<d returned ·in O.tober, 1910, ~<i"B then . abO!=li:. 21 .Years and 3 months of age. He wU. denied adm~ by the board of special inquiiy, wbme decision was affirmed b.y the Court of First 1..,. tance ·in_ hab.e~s c~pus proceedings. This Court held that Article 17 of the Ci.vii Cade "~ sufficient t.o show that the· first oaragraph affirms and recognizes the prim;iple of nationality by place of birth, jus soli." Citing.· various. decisi~ns, authorities, and opinions of the. United States Attorney Gene11al, if found that the decided weight -of authority wa's to the effect that the marriage of an American woman with an alien conferred hi~ cationality upon her during covetture; that upon the dissolution of the marriage by death of the husband, the wile renrted, ipso fado, to her former status, unlesi her conduct er · acts showed· tJiat she elected to re~ain· the nationality of her husband, and that where the W?dowed• mother.· her·self. thus reacqui"e het• former nationality, her children. she being t~ir natural· guardian, should follow· ~er nationality with the· proviso that they may elect for themSelve& upon reaching majority. The Roa decisi90., Prom.ulgated on October 30, 1912. set·'- precedent that was. uniformly followed in .numerous ca~ s.es. This long lin:e of d~ciiions applied the principle of jus soli ._up to September 16, 1947, when that plinciple was rencunce in, the cues. ef Tan Che11g v. SeCre.tary of Labor and Swee Sang v. The Commonwealth of the Philippines cited in. the- appealed· decision. Tht:·e two decision are not, in our opinion, controlliiig in thla Case. Article IV, entitled' ••citizenship," of the COnstitutien provides: "Section 1-. The following are citizens of'the PhlllpplneS: "C:L) These who are citizens of the Philippine Islands at the time,. of the adoption or this Constl.tutlon. On. the~ strength. of the Roa doctrine, Alejandro D. Uy undoubtedly wa. considered cl, iull-pledged Philippine c:i~izen on th~ date ef the ad,Option of the Constitu!ion. w.hen jus. ~-'?li has been the prevailing doetrine. "With it," as Mr. Justice Laurel scµd in. Ramon Torres et al. V>. Tan Chim, 69 Phil. 519, "the bench and the bar were familiar. The mem~ bers of, the ConsbitUliooal Convention W'elle· also. a.Wcve ef: this rule. and itt abwgating the doctr.iDe· laid. down in the Roa case, by making· the- jus sanguinis the predominating .orineiPle in the determina.tion of Philippine ~itizenship, the.y did not intend to· exclude these who. in the situation of Trianquifino Roa, were citizen\; of the Philippines by judicial declaration· a~ the· time of the adop!ion of the Constitution, This. ~·th,e Court went on to say," is· appatent ~ the fol· lowing excerpt of the ~roceedmgs of .the Constitutional Conven~1on when Artide IV of the Constitution was discussed: "Delegate Aruego.-Mr. President, may I just have one question? May I ask M1·. Roxas It, under this proposition that yoU have, all children ·born In the PhllJppliies before the adoi>tlon ot the. Constitution was Jnclu::led? ,"Delegate Roxas.· - No, sir: that Is to say, It they a.re citizens :In accortlance with the present law, they wlll be citizens. "Delegate Aruego.-But as f saM they are citizens by judicial decisions. "Delegate Roxas.-It they are ci~lzens now by judicial decisions, they will be citizens. "Delegate Aruego.-1 should like to make It clear that we are voting f•R the proposltlon so that it wl11 Include all those born In the Philippines, regardless ot their parentage, because I have heard some objections herei to .the Incorporation in toto. ot the doctrine ot jus aoli. There are mapy who do -not want to Include, as are Included In the proposition we are voting upon x x x "I should like to find out from the gentleman from Caplz U: that proposl. tlon would make Filipino citizens of children ot • Cblnese parents born last year or this year. "Delegate Ro:ii:as.-No, because ~·Y the laws of the PhUlpplne Islands, tiler are not Filipino citizens now." (RecC1rd of the Proceedings ct the Constltut1011al ConYentlcn, Session ot November 26, 1934.) Unlike the Tan Chong case, the herein appellant Uy bad att~ne~ the age. of majority when the Con'st.uution went into ~ffect, &iid had been allowed to exercise the right of suffrage. to hold pu· blic offices, and to take the oath of alle-g:ance to the Com.~onwealt!t. ~o,-ern men~ or Republic of the Ph1hppmes. The Tan Chong decision itself m~kes this express reservation: .. Needless to say, this decision is no~ intended_ o~ designed to deprive, as it can not divest, of their Filipino citizemhip. .t~'?5e w~~ have been declared. to be · F 1hpmo cltlzens, or upon whom such c~tizenship had been conferred by the courts be~ause of the doctrine or principle of res adjudicata." Certainly, it would neither be fair nor good policy to hold the. respondent an alien after he had exercised tJie privileges of citizenship and the Government had confirmed bi's Philippine citizenship on the faith Of legal principles that- had the force of law .On several occasions the Secretary of Justice had · declared as Filipino citizens persons similarly circumstanced a's the herein resp:i.ndent. (Opinion 40, series of 1940. of '644 the Secretary of JuStice. ·si;e also Opinion No. 18. series of 1942, of the Cq111missioner of Ju~ce. 1942 011. Gaz .. September.) Cut out of the same pattern and deserving of the 'same consideration ir the proposition that Alejan9ro D. Uy became a Philippine citizen at least upon his father's d~a~. It has been seen that, according ·i;o the rule of the Roa case, a Filipino woman married to a Chinese ipso facto reacquired her Filipino citizen upon her husband's demite ·and that thereafter her mimor children's :na~onaJit.y automa'lli.cally followed that of the mother's. This rule was not chamzed bv the adoption ol the jus sanguini ·doctrine, and was in force until" Commonwealth Act N:.1. 63 went intO effec;t in 1936, by which t~e Leg_islature, for the first tin;te, provided a h.•.el:hod for re~aining . Phi~PP.ines citiZfnship by Filipino women in 'such_ cases. It is to be noted that when Commonwealth Act No. 63 was Passed Ursula Diabo had been a widow for 19 years and Alejandro D. Dy had been of age three years, and that the new law carries no provision giving it retroactive effect. The'se conclusidns make superfluous consideration of the rest of the several a'ssi1t:nments of error by the appellant upon which we refrain to exoress an opinion. The decision of the lower coun is reversed and the respondent and appellant declared a Filipino citizen and elivible t·1 the office of municipal mavor. The Df;titioner and apoellee .will pay the ~oots o; both instances. Parm, C 1 Bentfzon, Montemayor and Bautista Angelo. concurr-ed. PABLO. M .. concurrente: Opino que Alejandro o; Uy nacio cc.mo ciudadano filipino en 28 de "'nero de 1912 en lligan, Lanao, porque su madre Ursula Diabo no estaba casada legalmente con Uy Piangco, pues el hi· jo natural sigue la ciudadania de su madre· (Sena contra Republica de Fi· lipinas, G. R. No. L-4223, mayo 12, 1952): pero al ca'sane ella con . Uy Piangco en 3 de marzo de 1914, Ale· j.indro D. Uy qued.o legitimado por subsiguiente matrimonio (Art. 120. Cod. C1v. Esp.): ipso facto se habia hecho ciudadano £hino porque como men:lr de edad, teni8 que seg_~ir la nacionalidad de iu padre legitii.no (Art. 18, Cod. C1v. Esp.), como Ursula si~uio la de su marido (Art. 22, Cod. Civ. Esp.). rio se hiio ·automaticalriente· ciudildana fiiipina, · j>ues el articulo 32 de · Codigo Cvil Espafiol entonces vigente diipone que la espaiiola (filipina) que casar_e Con extranjero podra. disueho ~ matr1monio. recobrar la nacionalidad espa:iio-la (filipina) llehando los requi'sitos expresados en el articulo ~terior, ~ ~stos requisitos son: (a) volv1endo la --v1uda al Reino (repatriacion); (b) dedarando s.J voluntad de recobrar · la ciudadania fihpina; y (c) renunciando la proteccion del pabellon de) pais de su marido. J..a ptimera condicion esta practicamente c~· plida porque Diabo no salio nuncil de Filip in as; pero no esta probado que hub:ese declarado ante el registrad.or civil de su residencia oue era su intencion recobrar la ciudadania filipina, ni que hubiese renunciado la oroteccion de la banc!era "china. Desde el 26 de noviembte de 1930 en que se establecio el registro civil en Filipina's, siendo registrador civil local el tesorero municioal. hasta el 28 de agosto de 1949 en .que fallec~o mas de dieciocho afios - Ursula D1abo tcriia amplia 9portunidad de hacer la declaracion que exige el articulo 21 .de Codigo Civil, pero no lo ha hecho; su silencio da lugar a la pres•,mcion de que deseo. continuar gozando de la ciudadania de su marido. Para recobrar la ciudadania filipina, la viuda de un ex· 1:ranjero debe ejecutar ciertos actoS que demuestren SU deseo indubitable de fe-adquirir su antigua ciudadania y perder la de su finado marido; por t.::nto, Alejandro D. Uv tampoco readqujrio la ciudadania filioina oor el merQ hecho de haber quedado Viuda su madre. Es principiO universal,pi.ente aceptado que la e.xpatria~on es derecho i~herente a todos. Los h1Jds de Lin extran1ero nacidos en Filipinas deben manif~star .el encargado del Registro civil dentro del afio siguiente a su mayor edad o e;nancipacion. si desean optar por la ciudadania de su pais natal (~t .. 19, Cod. Civ. Esp.). Aunque no aparece que ha hecho tal manifestacion al registrador civil, Alejandro D. Uy eiercito. sin em· bargo. el derecho de sufragio "en las anteriorCs eleccion verificadas en el pais" al tener edad competente para votar. Con ello demostro que queria adoptar la ciu· dadania del oais de su nacimiento, prefiriendola a la de su padre. Cuando el 1935 Alejandro D. Uv 'sirvio ..I gobierno como maestro de escuela bajo el Departamento de lnstruccion Publica, desDl.ies escribiente en la tesoreria municipal de Initao. en 1937, y mas tarde tesorero de Lugait en 1942 a 1943, y cuando, con exposicion de su vida, ingreso en las f1las del 120.o Regimiento de Infanteria de las guerrillas, demostro de una manera clara e inequivoca ·que preferi1 ser AI fallecimiento de Uy Piangc'J en ciudadano filipino a ser ciudadano chi17 de febrero de 1917. Urs~la Diabo no. THE' LAWYERS JOURNAL December 31, 1952 AJO,ianclro.D. Uy, de acuerdo =·el Codigo Civil . anii1UG .a .ciudaclanQ filipine pcrque opto •orlo al llqar· .a mayor. edad. T ambien. ea eiudadano lilipino. por ~oeicion cons~itucional. ·Al votar. en las elecciones verificad.u . en .el pais al llegar a la mayor edacl, demostro que C::t1:U'ci:ard:e ci=:~S: if~=da~~ filipinos: x x x ( 4) l05 que, fiendo hi jets de madres de ciudadania· filipina. opt"'°" por esta al llogar a la mayor edad." (Art. 4,Titulo IV, Constitucion). J;lue-. no es hacer cpnstar que exi&te error en e.."t8 disposicion: de~ d~rse filipma." La filipina Que 1e casa con un e.'lttranjero Ugue la ciudadlnia de su marido; por el simple hecho del m'alrimonio pjerde la ciudadania filipioa y · se hace extranjera: no puede co:ltinuar en la condicion de ciudadana filipina" p~ expresa disposicion de la ley. pero no piertle Ja nacionalidad filipi!la. . Por las razones expuestas. -V: no por ottu. Alejandro D. Uy adquirio la ciudadania filipina. PADILLA, /., concurrinr. 1 I wOuld rest the judgment in this case on the undiiputed 1"4:1 that the resoond· ent wu born out of wedlock in lligan. Lanao, on 28, January 1912 of • FiliDino mcther and a ChiaeJC father who "'-ere married oD 3 Mardi 1914 and V9al/"ii:~i: a d}itpj~~ citl~.~i,%~:~ Chin<:'.e citizen .when his fath.:r and m°'" ther were· ·married. and fe.tcquired his oriRi?tal citizenshiD on the death eof his !&.ther, beca,,,. bting under ane he fOJ. lowed the citizenl'hio of his mo.he:- who reacquired her FiiiOino· citizen'1lip ·of l;tis moth~ who reacauired her Filipino citizenship U!':>n the death of her husba:id and never remarried. I do not agree to the propolition that persons born i!I this country of alien n•· rentage whose father. is an alien must be. deemed Filipino . citizens under and by virtue. of lhe doctrine laid down in the cue .of Roa v. Collector· of cu11o .... 23 Phil. 315: Precloely, 1he judgment .in the cases of Ta!l Chong v. The ,Secretary of Labor and Lorn Swee Sang v, The Commonwealth of the Philiooines, 45 O;G. 1269, hold; that as the doctrine laid down in :the case of Roa v. ····Collector of Customs, supra, is· in con.f:lid. with the law in ·force at. the time it must be abandoned. Jose Tan Chong invoked at.o the benefit, of the doctrine in t~~ Roa v. Collector of Cusos caie. There is only an excenti0'1 to the rule laid down in the case of Tan Chonsc v. The Secretarv of Labor and Lam Sw•e San2 v. The Commonweal:h of the Philippines. ·supra. 1 · CORCµ,r (~gd~~SAf:.~~:j&>~ABR~D01,_' December 31, 1952 lV Holl. Aiwlin P. ·Mania~, eJ al appellants, w. 'Manila CorJag_e Co., appel. ie<, C. R. IAS59, Seple.°'ber 19, 1952. Pablo,/. · t. COURT: JURISDICTION: INTER·. FERENCE WITH COORDINATE COURT: EXCEPTION-A judge ol a branch· of the court ·.ohould not .-nnul the order j&sued b7 another jullge. of difference branch o the same coiqt, ~~~=e~~~ of m:d a~~ ii:Je~= dently but :::linately. unless th~ second ju<W_e acts in :olace of the first judge' in the s~e ~eeding's. 2. ID.: ID.: ATTACHMENT: DELIV· ERV OF PERSONAL PROPEllTV.Under section 2(c), Rule "62 of Jn• Rulu of "Court,· a co'urt has no ji.;ri•· diction to order the delivery of per.IOnal . property to the plaintiff ii lfte· property is u~der ~tachment. &ianislao A .. Fernandez for petition..... Roa, Selph, Ca-co•o· &- /•ntla and Defin L. Conzalez ·for respondent. DECISIR.N PABLO, J.= Se tr a ta· de unit aoelaciqa interpuesta por el Hon. J uez Montesa, Hao Yu, Guan .alias A. Lao !loldan y Rufino lbai\ez contra una resol!JCion del Tri· bunal de Apelacion. · . En 7 de mar.0 de 1950 el Sheriff de Manila, cumplieoclo la order expecli!la eu la causa civil No. 9126 clel Juzgado d"P Primera lnstancia de esta ciudad, titulada Manila Cordage Company contra Yu Bon Chiong. embargo. el autom°'" vii Buick Sedan eon placa No. 1074 (aiio 1950) de. Yu Bon Chiong .que era d.maandado e:i dicha causa. · En 8 de marzo Hao Yu Guan alias A. Lao Roldan y Rufino .. Ibanez presentaron una reclam8cion d'e terceria ca· da uno, ale~ando .el primero. que el aut.omovil e'ltaba hipotecado. a su favor h_ipo'"..eca de bienes muebles: art. 4, I,..ey ~!9fil~ Yve%:=~nt, ~":riff ==~:ii: la Manila Cordage Company q\ie ltvBntaria el embargo del autolftovil si ella ·nc prestaba fianza · correspondiente. Por tal motivo, la Ficl,elity & Surety Co., a peticion ·de Maoila Cordage· Company, presto fianza de acuerdo ·COD el at'ticulp 14, Regla S9; . . En 1.7 de marzo ios terceristas presen·. t&ron , una demanda en el Juzgado de f.riniera ID' .. t&ncia de Manila contra la Manila Cordage Company, la .Fidelrty. & Surety Co., y el Sheriff de Manila (causa civil N.~· 10624), pidiendo la expedi'QIE LAW¥ERS JOURNAL cion .de una -orden. ,de .ia'-cli!:to.:prel~ minar ,.r4 ·f1Ue -leti ~ . .eape-1 eial,mente el , Sherill, clesisliesan. ~ -tinwu ~~eQiendo el ·P,ui~ IY . :qup ~: lq ,.,1rog...,, .a ellos: el fill"· ,J...,. 1\4on, tt1a npidio ex parie la ordeo p;di~ N• eu cumplimi~to: con dicba -orda:, el ~ riff de M•nila enb:.. el autC?movil " loo demaodaotes. Al enteruse de esta, la Manila Cordq:e Company preseoto una mocion qrgente pidiendo la d;solueion de la qrclen de in•erdicto expedida. uor dicho Juez, alegando que .este te. ha· bia excedido en 1u jurisdiccion al e7;ie-. dir dich.a ordeo: que dicho automovi! estaba ya preventivamente embargado en. hi causa civil No. 9126 por orden valida expedida por el Hon. Juez Macada•8· Dich.a ntacion urgente habia sido do negada por el HIHI. Juez Peeoon ·en · 18 cit abril y I~ mocion de r•con'•ideracion cleseitlmada por el Holi: Juez Montesa __ en 23 de mayo. La Manila Conbge Co., acud;o ·al Tribunal ·de Apelaeion por medio d•I rt'CUUO de certiorari contra el Hon. · Juez MOntes& y :etrcu. pidie'lda: l:a · revocacion, cit la orden ~dida por ·dicho juOz en la caus& No. I 0624. · · . ., . Despue1 .de considerar. las razon~~ .de· una .y olra ,patte, el Tribunal de A~ cioo rnoco e.•.29 de dieiembre i1e .!950: la orcleo de! Hon. Juez Montd.la que dioolvi,. la onion , cl, emborgo -ntivo dictada por el Juez Maead.aq. Conba esta ....Jucion, el Hon. Jue.z Montesa y otz'Os acuden en apel•cion. a .este 1'ribunal por medio d,. certiorari. , Los .. recurrentes a,guyen . q~e Ii. doc-. trina ee:ita.Cia en ~· ILf!JfttQ de c,bigao y, i\':b.hlblr~.?tr~ ~ti!~·rlru~~>.: ~idO_ la revocada por7l8: de~ i:lict~da e11 Mercado· Y otros contra OC.am.po. · y 10e~W que. el jue_z· do-:una Ii.la puel:le expedir· .una erden anulando la ,orden de otro -juez de:·otra -sala de) mismo juzgado de primera iiastancia, · . Analicemos \as-' t1e$ -c~usas. cit,.cfa'.S: El Ju .. de la Segunda Sala dtl Juzgado de P1imera lnstanci& de· '1.anila condeno al ilemandado· en l"a causa civil No. .18451, ·c.bigao "°l'fra Llni y Pineda. a pagar al deman~ante ·1a suma ck. P379.00 can inteRses Y costa:s. La, demioil fue confirmadB 'pqr'Oste .Tribunal en 12 de agoito de 1922; el Juez de la Segunda Sala expidio ""el mandamiento de ejecucion en 11 de octubre de 1922: el Sheriff de la ciudi.d trabo em.borgo sobre 105 bienes ~I demaudado Lirz1: y Pineda: en . 1 s· del mismo mes Lim y Pineda Didio eD la Sala Primera U11 interdicto. prohibit~ preliminar contra el Sherill y ·dicho Juez expiilio la 01~.peilida. · ··· · 6f5 Philippine Deoieion'e· Cabiaao ··y otro acudieron a esta Superioridad pidiendo en •n rec:uno de inhibicion Q1l!! ,. ordenaoe al Jun de la Primera Sa18 que desistiese de intervenir en la ejecucion de la 'aentencia dictada en la: cauoa civil No. 18451, y este Tribunal, despues de sir a las. partes; declaro nulo y sin ningun valor el interdicto prohibitOiio prelimiiiar exp~o por el Juez recurrido (el de la Ptimera Sala) aec1arando q_u~ .. Lu varias salaa del Juzaado de Primera JIQta:ncia de Mariila son, en cierto aentido, juzg11dos de . juriadiccion · coordinada; v el, penDitirlos que intervengan en aentencias o decretos de otros DOI" m~ c!e · un in-. terdicto prahibitorio. claramente eondut:iria a. confusion, y seriam~te poclria e'1' barazar Ja · administracion de juatici~. "· (44 Jur. Fil:, 195). E.i el asunto de Hubahib contra Insular Drua. Co., 5 Lawyers joJUrnal 281 (Feb. 27, 1937), en que el Juez de la Primera Sala <le Cebu expidio un interdicfo prohibdorio jpreliminor contra el sheriff provincial-para impedirle que <.umplimentaae el mandamiento de ~jecu~ ezpedido por el Juez de Li Tercera Sala del mismo juzgado, reiterando la doctrina sentada en Cabiga1 y otro contra Del Rosario,·esle Tribunal dijo: "Las varin Salas de un Juzaado de Primera lnstancia . de una provincia o ciudad, tenieodo como tienen la misma o igual · autoridad y siendo como son de juri1cliccion ·COncurrente, y coordinada, no deben, ni puede-, ni la esta permitido, inmiscuirse en sus respectiW. asuntos, y naenos en su1 ordenes o sentencias, por medio de interdictos prohibitorios. (Cab:••• y otro contra . Del R.ooario y otro. 1922, 44 Jur. Fil., 192, y las cauoas alli citadas; Nuiiez _y_ Enrile .contra Loyt, 1911, 19 Jur; Fil., ·256; Orais contra Escaiio, 1909, 14 ]\Ir. Fil. 215.)" En el· Uunio de Mercado y otro contra el Juez Ocampo, 72 Phil. Rep. 318, 1e trataba de una orden· dietada por el Hon. Juez B. -A. de 28 de enero de 1940, que dese1timo las objecion"' de las comparecientes y mantuvo su br· den del 16 de abril del mismo aiio, que o;denaba la comparecencia de E. L. d~ B. y J. F. de R." para dedarar sobre Cierl!JS bienes del linado Mercado. Las C<11Dparecientes presentaron mocionea de reconsideracion y nueva vista; el Juez 0., que habia vuelto o ocupar su sala del juzgado despua de su v~cion, _en resolucion del 2 de iulio de 1950, ,.... considero las ordene'a propiulg&das por el .anterior Juez B. A El segundo jun· no se entrometio en las orde:ies del pri::° &!01~~im:1ro1e::: ·~= ~~:n!::Este Tribunal sen to la doctrina de que 11x x x un juez que mesic:le una 11ala de u11 juzgado de primera instancia puede modificar o anular la orden que ha die646 tado otro juez del mismo juzgado. sin que por. ello ae infrinja el principi~ .de coordinacion, y que la porma que Clebe 1ervir de guia debe ser la de si el juez. -que dicto I~ primera orclen tenia facultad para modificarla o dejarla sin efecto, eil_ cbyo caso el otro jue~ que la modifico o anulo debe tener igualmente la n:mna faeultad. Y la razon de la doc·\rina a'li sentada conaiite 1encillamente en que ambbs juece. · actuan en el misrr.o juzgado v ea el miamo juzgado el ~ue ha modificado o anulado la orden. ••Refirien~os .ahor; al caso en t:Qnsideracion, .. resulta que el Juez 0., al anular)u ordenes del Juez B. A, actuaba -~ Juez cfel lll;iamo Juzgado de Primera ln'ttancia de Pampit.nga y apa~ 1eciendo daro .que . si las ~ociones de reconsiclerac;ion ,~ hub.iesen p~1~~do ante el Juez . Q. A, este podia anularlas, si a au juicio, asi procedi6e, ea dwio que el "Juez. 0. p_odia hacer lo. ~~o y podia anularlas. Como 8si lo. hiz.o. .. x x x Declaramos que el Juez 0. ~=~ ~=~=:. ~=· B.n~~r Y l:~e ~i hacerlo no hizo mal uso de la discrecion que le ha conferido la ley x x x." La doctrina en e!d.ta ultima causa no revoca la establecida en las doa anteriores cau1a1 citad.as. · En aquellas dot el juez de una 1ala ·expi~io en _un asunto una orden de interdicto anulando la orden de ejecucion dictada en otro J>Or el juez de la otra. lo que es una verdadera i11tromi.t.ion inclebida de un. juez en el &6UDto de otro juez. Pet0: en el asunto ~ ~erc::..c:n~• .f!=•dif:re:: s~~~~ se trata de una orden de un juez proveida en un aaunto y que despues fue revocada por otro juez que habia vuelto •·· ocupar au c~ al ter'minar su 'vacacion. Aµnque eran dos jueces. _actuo, sin embargo, el uno en lugar · del otro tomo ai hubiera actuado un solo 1uez. No se ha dedar~do espresamente la base sObre que cXiacanaa la doctrina en las causa~ de Cabigao v otro Contra Del Rosario, y Hubahib contra Insular Drug Co., pero e• evidente que es el articulo 263, parralo 4, ·del Codir,o de Procedi-' ni.iento Civil · · El· artieulo l.o de la Reala 62 diapone que, en un litigio para recobrar la posesion de biene's muebles, el demandante podra 1olicitar una order interlocutoria para que se le entreguen dichos bienes~ pero. para que pueda ohtener e.. orden. es necesario que pruebe baj0: j~r~m~nt_o: (a) que ~ d~efio de las b1enes embargadcn a que tiene detecho a la poreiioq de los mismos; (b) que los bienes son injust8mente detent.i.doa, •legando la caus& de la detentacion; (c) que no han sido secuestradd3 para satisFacer contribucion alguna, ni Jllulta por THE LAWYERS JOURNAL mandato de la ley, ni embargados· en virtud de ejecucion o embargo preventivo contra los ·bienes del demandante, o en caso de aerlo .ui, que son bienes pento& de embarao: y (d) que presie una fianza a favor del demandado por el doble valor de IOI bitnes que .. reclama para garantizar la deVolucion de Io's mismoi al demandado, si asi ae diapusiere eh la' aentencia, y para eJ. pago a dich:> ·den1andado de cualquier camiclad que pue-· da recobrar de Ia oarte demandante en· el asunto. El B~ick Sedan con olaea No •. 1074 habia sido embargado por el Sheriff eil virtud de una orden de embargo prrventivo dictada en la causa civil No. 9126 •. y el automo9il no esta exentO de em-. barao (Rl!llla 39, ·art, 12). No podia, par tanto, el Hon. )uez Montesa, por. Mec:lio de una orden interlocutori!l, ~. 'poner la entrega .a los demandantes de d~cho automcwil en . la causa civil No. 10624, anulando iP,. faclo · 1a. orden de. enibargo preventivo dictada e-i la ('ausa civil No. 9126. F y.e una in"debida in." lremiGion de un juez en la orden de otro juez de igu.al categoria. En i:ealidad, la orden dictada en la cauaa civa No. I 0624 deshizo la que otro juez dccreto' en la causa No. 9126. El juez de una sala de un Juzgado no debe anular la orden de otro juez de ot.ra sala del mis-mo juzgado porque ambc» son jueces de· Id. rnisma catepia v actuan indepen..: d1ente pero · coordinamente, a meoos que el segund.o 8.due en hi.gar del primer>: Sohre un miamo expediente. La orden dietada · disolviendo I• qrden de ·embargo preventivo. era facrible bajo el Codigo de Proeadimiento Civil' c,;cw;i•e •• articulo 263, parralo 4, diee "Que los blcnes no hnn sMo 9ucuestrndo.s po.ru 11ntlsCacer contrlbucil>'l alG"Ynn, nl multa poi• mandllto de un.'l Jey, · nl · embargado:Et en cumpllmlento d11 una aentenela dlr.tada contra Ioa bieneH del demandante; )' en el caso de babe,. sJdo· ombargados. · quc aon blenea exentoe de\ embarso!' Pero, baio el reglamento vigente, iao se• pued.e ordenar la entre511a de los bienes t:mbargados prcve:ntivamente porque la. Rosia 62, articulo 2, parrafo (c), dispone lo siguiente: "Que no ban sldo aer.ueatrn.d.~11''. sn.tlatacer contrlbucJon 11'1Wil.a, Iii · mu1fa por mandato de ·la' ley, nl eomt~nrgadoa ert vh"tud de eJer.ucton o embargo pre•. 'ventiYG contra los blenea del deninnctO.nte, o en caso de se1:lo aal, que son btenea exentOa de embargo." En la n~eva dispoJicion ae aiiadieron las palabras .. o emb~10 preuenli.vo ... Esta es la. ianovacion adoptada por el nuevo reglamento. con el ~dente proDecember ·81, 1952 pooito de impedir el triste eapeetacu.lo ch! que un ·j~z revoque la orden dictad1. ~:'da ~:iltr~erj:~~ ordeAdem,s. l!!I clemandantes 10lamente Dfedaroo lianza de P6,SOO.OO, que et el ~.Ior. del automova embargado •. en vez llel doble de su valor. La ord.n impugnacla esta en abierta contravencion con las disppsiciones · de1 articulo 2; Regla 62. · ~ confirma · la resolucion apelacfa con ..,. .. contra Hao Yu Guan y Rufino Ibanez. Para., C:..J., Be•Rzon, Padilki, 1.(ontemayor, Jugo, Bauha Angelo ·and Labrador, JI., -ion.es. v /oH L. Laxamana, petitoner, v.s. j.,. T. Baltazar, rapondent: C. R. L-S955, S.,.iember 19, 1952, Be1ngzon, /. .· 1. Pl)BLIC OFFICµS: MAYORS; VICE-MAYOR DISCHARGES DUTIES. OF. SUSPENpED MAYqR,When in. July 19S2 the mayor of SexmcNUI, Pampanga, was.1111peraded. the vice-mayor B, ... umed offi,:e u mayor by virtue of oeclion 2 l 9S of . the RevU<d IAclminPlrative Code. • However, ~· ~al governor, actiDtl under ... lion 21 (a) ot the Revised Election Code (R. A. 189), with the ...._t of the provincial board appointed L, u mayor of Sexmoan, who immediately took the coirc!aponding official oath. Held: When the '11•yqr Of a municipality -is . sus--ded, absent or temporarily unable, bis duties should be ~arged by the vice-mayor in accordance with 'lee. 219S of the Revised. A!lmlnistrative ·Code, · 2. :::~~~:;;~~~~TR~~:i:dr1:o STATUTE.-Wheie a ltatute has received a contemporan ... and· prac-tical interpretation and the statute as interpreted is reenacted. the pr~ tical interpretation is accorded great~ er weight than. it ordinarily <eceiv.., and ;.. regarded u pmumptively the correct interJ>retation ofc ·the law. · 3· ~ c;.o:Dn;;io~iT~~~t~i~ Where one statute deals with .a sub:.:i. i~en:~ ~h:°~.=~~i: ject in a more detailed way. the two should be hannonized if pouible: but if there Is any conftiot, the latte< will prevail, regardleu of whether ~ was · p....c:i prior tO .the general· statute. 4 II?.: CONSTRUCTION PLACEII UPON STATUTE BY· .. EXECUDecember 81, ·1962 TIVE OFFICERS.- The conleMporaneous comtruction· placed upon· the statute by the ~ive officers charged with its execution deserves great weight .. ;. the courts. Gerardo · S. LJmUngan and /a&o L. Baltazar for petitioner. Macapapl, · Pun.salon &- Y abut and Pedro S. David for respondent, Pedro Lopez, ·Ramon Duterte Bnd Regino·Herrnosi&ima as amici curiae. D.E CI S I·O.N BElfGZON, /" When in July 19S2 the may0r of Sexmoan, Palilpan~ was suspended, the vice-mayoi Jq>ae T. Bakazar, assumed office as mavor by virtue of section. 2 l 9S of the Revised Acl:ninillratiV. Code. However, the pfovincial" governot,· acting under section i I (a) ~ the. Revised Electinn Code (R. A. 180). with ibe conient of the provincial board apJJCinted Jose L. L.Uamana, as mayor of Samoan, who imniediately took the Corresponding official oath. . Rnuh: this quo ,.,..,;,nto proceeclID~. buecl solely on the petitioner's propoaition that the iection first mentinned hu been repealed by the subsequen~ !!f<>Yision of the Revised Election Code. If there was such repeal, this petition should be granted; ~and Lu:amana declared the lawluf m.aYlJI'. of SexmOa.i. Otherwise .it mus1 be denied ('). The two lt"atutory pFovisioai read as lolloW1: "See. 1196. .i'EMPORARY DISABILITY OF MAYOR.-Upop the occasion of the absence, •uspenalon, or other lem• POl'ary dlsa.b111tY or the Mayor, his dutlu shall be discharged by ,the Vlce·M.ayor, or Ir there be no VJce·Ma:ror, b)' ·the eouncll01' who at the last general elec· tlon received the ·highest numbf,r or votea." "Seo. 2l(a) VACANCY JN ELECTIVE PROVJNCIAL. CITY OR Jd:UNJCIPA.L OFFJCID.-Whenever a temporary vaea.n· cy In any electl'ye local otrlce· occurs, the ·same shall be filled by. appointment b:v · the President I( It Ill a JA'ovlnc~ 01' cltY office, and by Uie provincial governor, wl.th the consent or the Pl'Ovlnclal boan'I, It 't Is a mµnlclpaJ. office. (R •. A. 180; the Revlaed Election Code.) Secti.on 21 (•)-the portion relatini to iru.nicipal ~-was taken hom Section 2180 of·the R,evised A~iat:·ative coc1e. which partly providecf: .. ."Bee. 11,80. VACANCIES JN MUN~Ct· PAL OFFICE.-(a) In case of a tempo· rar:y vacancy In any municipal ornce. (1) The alleged offer of appointment by the governor which Ba1tasar rejected Is Im· material, because under sec. 1196 no ap· polntment la needed. THE LAWYERS JOUR.NAL Philippine Deoisions the ~me, a~l. be ~lled by appqlntpletit by tbe ,PJ'Ovlnclal governor, .with the eon·. Pnt o( tho' PJ'Ol"lnclal boai-a.' · <.b> '1n .case o( a pernianent vacancy _In :a~ mU"'lclpal ornce, the awn• ,ahall' be ined b;y. a.Ppolntment by tb.e. provln.' clal board, ez~pt In case of ~.munlclpa.l: president,· In which the Peri:nan111n1. .va·· canoy .shall he tilled by tbe municlpnl. vlce·,Prealdont." x x x It will be. oeen that under this 'leclinn,' when the office· of municii>al .P~ (now mayor) became permanendv ..,.. cant the vice-pretide.iit · stepped iiito the' olfice. The section omitted relerenie m· tunporaru vaccincv of such offiCe becilUte · teetion il9S JOvemed that contingeDcy.-~ In this reganl sections 2180 and ,'Zl<JS ~upplemented each other. Paragraph (a), of sectinn 2180 applied to municipal Of.fices in general. other than that· of the' m~nicipal president. · . · ' : Under the Revised Adminillrative. £:-~r.:a1~ .. ~ ~j;"~OJC:.!::: ernment circles ·that whm the munici.,.i: pre'tid.nt was suspended from office; the. vice-president too~ his place. .. Tempuary vacaney ·1n office or mu· nlclpal praeklent.-Paragni,ph (a) of ihle. section (2~10) should b~ c~ru8d to: cOver only municipal ottlces other than . the' otflce of pre.tden'i. . Seci10n 21fli ot tho ,Administrative Code should be ap.,. plted In ca•e of the ab88nce, •ua~nalon, . 01' other temporarY dlsa.bJllty or the mu· · nlclpal president. (Op. AttY. ~.. Sept .. 21, 1811: Jns. Aud..''Oct: !8, 1917.5" (Ara•·. neta. Admlnlatratlv& Code Vol. IV p:· !:118). ·•. ":lfunlclpaJ. ·president cann'ot dei:l~te' ac~nc prerfldent. - Thei-e 111 ne provision or law expreuJ;y or Impliedly. authorizing· the muplcipal pr1111ldent to deiilcnate anY person t!l act In bl11 atM<I: dul"lnc hta. temporary absence or dl-.bllltY, F;°l'om the provision of section .Zl95 of thla Code, It Is cleur that the '"1Ce·Pl'6fllderit or.· If there be no vlce·preeldent, the councliOr who at the la.it general election received the hlch~t number of v~es; should U:u. tomat1Ca.11y (Wlth~ut · aft:V formal dealS'· nation) dlec!'arge the duties oi the prc!11· ldent." (Op.° Ina. Aud.,. March 2, 1928.) (Araneta •. Administrative COde Vol. 'nr p. II.Ii). . Now. it is reasonable to assure that the incorJ)Oriltion .of the· above section 2180 into the Revised ElectioD law 'u sec. 21 (a) did not have· the elfd of enlarging its scope < 2>. to s~eneHe or repeal section 219S, what ~h the presumption against ~mpliecl repeats Cl); (Z) ·it waa even re8trlcted 'to elective mu· nlclplll office. (I) Sutherland, Statutor;y Conetruellon 3rd· Ed. aec. IOU note 1. · • 647. Phlfipplne Dticfsion• 11Where a statute has received a contemporaneous and practical interpretation and the otatule u interpreted is re-enacted, the ·practical inlerpretatjon is ac:Oarded grea!er weight than it ordinarily receives, and 1' .,,.arded as presUmp:ively the c:arrect iDterpnitall!on <.>f the law. The rule here is based upon the theory that the lerislature is acquainted with the contemporaneous interpretation of a statute, eopec:ially when made by 0 an admlnistratiV. body or executive officen Charged with the duty of administO!'inl or e11fotcing the law, and therefore · itnpliedb' adopt.a the in)erpretatiop upon re-euaetmept." (Suth .. land Statut01'( COD'atructian, see. 5109.) . Indeed, even dioregarding. their origin, the allegedly eonllict.ing seetions, · could be interpreted in the lirht of lhe principle of ltatutOry eonotruction that when a geueral and a partlculu prtwision are inc:oluisteat the latter is paiamount to the former (See. 288 Act 190). In other· wordt, seetion 2195 referring par1ic:ularly to vacancy in the office of ma).qr, must prevail Q.Ver the geQeral temt.s al sec. 21 (a) as to vacancie1 of municipal \(I~) oft-. Odterwise sta~. seetion 219"5 ma)' be deemed an excentfon to or qualification of die latter i4J. "Where one 9':•t:ute deals with a iubject in gen~al ~s, and another deah With a part of the same subject in a more detailed way, the two should be hannonized if possible; but if there ii anv conDict, the latter will prevail, rerardIeu of whether it waa Daued prior to the geueral statute." (SUtherland Statuory Constructinn,'' (Sutherland. Staiutory Construction, sec. 5204.) In a recent decision m. we had occuioil to pau on a similar situation, -repeal by suboequent general provision of a prior special provision- and We said.: "It l• well settled that a special and local •tatute, providing toi- k parf.•eular ease or elaa11 of eases, Is not re;;ie:t.led by a subsequent sta.tute, 1ene~al In it• hrm., provi•i•n• and appllc.tlon, unless "Where thete . are : tw.o ., 111tatqt"C!llJ, the 2. earlier •peclal; IJilld.·.the 1laler. !rPner&lthe term• of· the general ·ltroad ·eri.ough to Include tbe ma.ttu PM~. for In the •Pecl&l - the ~t that. 9ne ·le ·•P•· clal . and the other .la .P~ crea.tea a presumption thu.t \he •11111clal I• to be con-sldered as remaining an e~eption to the general, one as a. senero.l law of the land, the other aa the Jaw ot a. pa.rtlcuhu: case, (Sta~ vs. Stoll, 17 Wall. (U.S.), U&.)" In fact even after the Revised Election Code was enacted, the .. Department of the Interior ~nd t,he office of Exocutive Secretary who are ch.arPd with the siipervi!ion of pro\.jncial and municipal !l"vern~ts have "consillei)tly held that 111 cUe of the 1uspen1ion or other temporary disability of ·the mayor, the oicemayor di.all, . by -ation of. law, Usume the. office of the· mayor,. and if. the vice-mayor is nqt avail,ble, the said office shall be clit<haroed ' by.,the lint councilor." (Ann.,..~.,of ih.o a0.wei). Needless to ~a:f, the contemp(Jraneous constructio:i .placed 1,1pon the statute· by the ~tive of6eer5 charged with it.a execuuon deser-ves great weight in the court1 < 6>, · ConseqgentlY it is QJlr ·ruling that when the mayor of ~ ,muoicipaluy is >USpended, ab.sent or tempararily unabl~1 his duties should be discltarged by the vice-ri."11"' m acc:ordanee with sec. 2195 of the Revised Aclmioistrative Code, Thia quo warranlo petition is clismi'ssed wi.h costs. So ord«ed. Para., C.f., Poblo, Padilla. Moniemayor, Ju;o, Bauliala An1elo ·and Labrador, ff, concurred. Mr. Justice Tuuon took no part. VI JJ;>,., .JD,, E~!PJ.Q:f~ NQT c.\L. LOWEil> .'lfO .. ,S.TAKE .MINL'IG <;LI.IMS FOR THEM -1t hu been the _practice. ·qf '.nliiim to elnploy otheis to 11ti.ke niining daims for ·.thmii •. This is usually . done aft.. 'the pr<11pecton Jtave uoured themsel ... that a .mine aim in .a .certain. ioc:.Iity. The mancwho places the "ake could easily leave frl[lctional mi-al ~aima· in between the. claims without reporting· the existence of these Jactions to hill principal. Later he could ·.St~ and· claim. IJiem. If thia is perIDltted to happen, bnna fide min.,. can easily be held up by the VO!'Y ~en wliom they have .employed to llake their mining ~aim. If the mining indllllry sha!l be· protected and the exploitation of ·tire natural· reso'urces of ht. .country encoural)ed. such practice should not be tolerated, The wrong or tbe damage that o;an .be do!ie is unlimited. 1.1, ageull or employees or. laborers are permitted to cOnceal or without Certain mining. 'claimi· ordered staked by ·their em. player who gave theril , spe;.cific · instructic.t, to . atake the eniire gl'Ollnd in .a cenain·-iocality, the: effeet will p!'&dicallr loe the.·untlonation and legaliation of ·• holdup. [cf,.ll,M c t.~i&'it01tN'1iC1:.; ·PERSON UNDER ·auARDIANSIUP. -"£•en in the uecutinn of -1rac;JI, .in the · ·abaence- 1 of ·a: ·1!atute to• the contrary.· the ·presumption ·of m,a:nity md mental incapacity is. only pri:Q1'2 facie. and may be rebutted ·bv evid. -ence~ -and·• ·perion under guardian:ihip fot in.sanity may .s.Ull enter into a Yai.id · contract ~d ·even· ·co.-Wey property, provided it is proven ··that at the time of entering into said ·con .. tract,· he wa'a not to interfere wi?h nr affect his capacity to apPreciate th.: Paulino Dumaguin. plainti/f-appellanl, mesni?111 and lig~ficance of the ~· A. }. Reynolds. Ji.. }. -Harriaan and tralllaction entered .i~to by him. ·· Big WeJge Mining Co., C.R. L-3572, 4. IN'SANITY, PERSONS MENTALLY September 3Q, /9)2, M~nlemayor, f; . DERANGED REGARJ;JING CERTAIN I. MINING EMPLOYERS AND EM- SUBIECTS MENTALLY cSOUND·IN the Intent to repeal or alter la manltut, althougoh the terms qt the general act are • broad enou;:h to .Include the ea.see. embraced In the apeclal law, x x x It la a canon ot statutory conatru"etion that a. later atatul•1 1•neral in Its hrms Gnd PLOYEES! LOCA1'10N 01'" M.INUJ..r OTff£R RESPECTS , ..... ."fhere are ·maCLAIMS -1-t would really be unfair. ny cues of perscn.s menta!ly derangeven agaiDot public pobcy to allow ed who al.hough they ho.ve beeu a person employed to .sta~e 81'.d lo- .ha'V'ing .obseuicns ,and delusioul for cate mining c1aiJns for his employer .many yean reguding certain subjects 10 make locations on his own ac- and situation:. .still are mentally count and for his own benefit tho sound in other JGpects. There are not expre1111y repealing a. prior 'Pllcial •tatute,. wlll ordlnarlly not atfeQt the epeelal provision• of such earlier statute. (St~mhoat Company va. Collector. 18 W-.11. [U.!!S.J, 471: Cu• County y9, GUlett. 100 U.S. &8&;. Minnesota. VL Hl~cheoclr:, 185 U.S. 318, ~96.) · (4) Sutherland, Statutoey Construction 3rd Ed. Vol. 1 p. 486. (i) Philippine Railway Co, v.· Colleet.0r of Int. Rev. G.R. No. L-3819, Mai-ch, 10&2. 648 done outside hour. of work Or em- others wh.o tbaugh insane; have their ploylltenl, because there is "'1. obvious lucid intervals when in all 'respect• incompr/.ibjlity and conflict of in-. they •re P"'fectly same and mentally terests benreen those Of the employer .soUnd.. . · ·· on one hand and those of the em- 5_. m • MINING· EMPLOYERS AND ployer On the other. unleu there ii a .EMPLOYEES·. El.iPLOYEf COULD deu and exurea agreemt.nt to the BE COMPELLED TO TRANSFER contrary. :~~~h ~~I~~ :i. P:':fL~~~;;; (6) liadrlga.I v. Rafferty, 38 Phil. 4U, Government v. Blnalonan, 82 PJlU.. 634 .. THE LAWYERS JOURNAL the. deed of sale of mining_. claims, the yencfor w:as still .~entaUy · incaDecember a;r., 1e5ao pacitated. -becau'8e of his moral a!'d legal obligation to transfer the mming claims. to his employers. he could through his ·suardian have been co~· pelled by the cowt to execute said transfer. or ·after the tenninati11r. _of his guardianshj~ obliged personally to execute said transfer to h~ employers. He acted as a trust~e for ~io~m,:y:s in~~ie~!s!:~ :'~:: tal incapacity to violate his trust. 6 ·coNTRAC.TS· VALIDITY OF ONE.. PESO CONSIDERATION.- Where in the two deeds of sale of mining clailll'S each mentions Pl.00 and other vafuable consideration, the . receipt whereof was acknowledged, to be the consideration, the consideration is sufficient, according to "fhe provisipn of law, (Art .. I 277 of the Civil Code). Besides, con~ideration in the contract will b~ presumed and it is licit, unless the debtor proves the contrary. i. MINING: EMPLQYERS AND EM PLOYERS, CONSIDERATION- FOR CONVEYANCE OF MINING CLAIMS NOT NECESSARY_-The mining daims liaving been located for the benefit of the employer by an ei;nployee in his capacity as s,Pch, paid for that purpose, no 1COdsideration ~or the CC?nveyances of the mining claims. by the . employee to the employee was neCessary. The employee was merely fulfilling an obligation and complying with a trust. T aiada, Pelaez 6' T eehankee for appdlant. Claro M. Recto for appellee. DECISION MONTEMAYOR. J.: For purposes of this decision, the following fact's may be said to be agreed upon by the parties ~ to be without dis·pute. Because the plaintiff-Paulino M. Dumaguin would appear to be the cep.tral figure in this case, we shall begin by making reference to this background and ·his status at the time he entered into the transaCtions and executed the deeds of wnveyance whose legality is now the subject of the p~t petition. . Paulino M. Dumaguin was a teacher in the -public elementary schools for a year and a hall, and from 1916 to 1918 was the Manager of the Head Waters Mining Company in B.aguio. As Manager of 1aid mining company Paulino acquired some knowledge of mining. On .l"r btlore May 21, 19.29, he was a sup!'f· ~~~~~nd::_n (~!ve2 ~uJ9i9)0~h~::; admitted to th,~ Insular Psychopathic Hospital at ~an Felipe Neri (now the ·December 31, 1952 National Psychopathic Hospital), Mandaluyong, · Rizal, ~aid to- ~ sufftring !com "paranecia". On October 15, 1929, Dr. Toribio Joson, assistant alienist of said Hospital, submitted the fol.lowing memorandum: MEMORANDUM TO: The Alienist In Charge Insula1• Psychopathic Hospital, So.n Felipe Neri, Rlzal. SUBJECT: Paulino M. DumagulnMale, married, 33 years old, Ex-Supervising Llnem~n of the BurClau of Posts, admitted to the hospital at 11:25 a.m. on May 21, 1929. 1. The pailent ~s well behaved, oriented In all sphere, coherent In his speech and has no more Illusion or hallucinations; but Is having a delusion that one of the P.atients in the hospital is ta·ylng to chloroform him. He consequently keeps away from the said patient. 2. He :Is a~o not sure that his former officemates- who~. he erroneously believed ch101•oformed him before, would not chloroform him anymore whC'n he goes home. 3. This type of insanity which Paulino M. Dumaguln ls suffering from is therefore that of Paranecia, which rune a very chronic course of u11ually a life time, but which may show improvement ae the patient grows older". (See Exhibits 42, folio 195; Italic ours) After Paulino"s discharge from the hos· pital on or about November 11. ,1929, in. order to enable his wife to withdraw his retirement gratuity from the government, on September I 6, I 930, she filed guar~ianship proceed~ngs in the Court o( Fint Instance of Camarines Sur. Said court relvirig Presumably- on the report of Dr. Joson above quoted granted the petition and a!)point~d her .as Paulim;.'s guarcfian. On F ebru_arv 2, 1931, Paulino and his guardiaii in a ioint motion before. the Court of Camarines Sur among others alleged that - "4. Que en la actualldad, el cltado Paulino M. Dumaguin, ya esta re-establecldo, por lo que se le ha permltldo dejar el l{ospital y ahora vive con su fami,lla en esta localtdad, que es su resldencla. ''t>. Que el menclonado PauUno M. Dumaguin ha reclbldo un chequn det Goblerno por la cantidad de 'P.412.36, como parte de su pension. "8. Que los compareclentes ner·~sltan el lmporte el importe de die.ho cheque para atender a sus subslstencJa, pucs se hallan en la actualldad !altos de todo necesarlo." a;.d asked that they be authorized to cash said check and use its proceeds for their support: "POR TANTO, .supllcan al Juzgado THE LAWYERS JOURNAL Philippine Decl•iOn• que se les poner de su produc~o para su manutenclon." fn 1934, the guardiaris~ip proCeedings were closed. In and before the year 1930, defend~ ants A. I. Reynolds and E. J. Harrisc.n 'SOid and transferred to the same demineral claims in the ltogon District, subp1ovince of Benguet, Mountain Province, kr.own as the "ANACONDA GROUP". They employed' F ructuoso Dumaguin. brotQ.er of plaintiff Paulino, in their work as prO'spectors. At the beginning of 1931, Fructuoso Dumaguin was thus working for said C:efendants Reynolds and Harrison relocating some of their mining claims prev;.ously located and locating new enes, for which work he wa~ paid P5.00 a day. About the same time his brother Paulino M. Dumaguin, plaintiff herein, leaving his home in Ca.marines Sur went up to Baguio in search of work. To help bm, F ructuoso got him employed by the defendants and the two brothers worked together in the mining business for the defendanni. The theory of the plaintitf .is _that he was employed only to re-locate defendants' mining claims in the ANACONDA GROUP while the defense claim's that like his brother Fructuoso, Paulino was employed not only to re-locate mining claims within the Anaconda Gtoup but also to stake and locate new mining claims for them. For said work Paulino was also paid by the day by defend~ ants. During the month's of May, June and July of tha! year 1931 ihe two brothers F ructuoso and Paulino staked and local· ed ten mining claims or fractions thereof named Victoria, Greta, Triangle, Lolita, Frank, Paul, Leo, Loreto, Arthur and G. Ubalde, all said claims or frac· tions being later registered in thC name of Paulino M. Dumaguin as locato~ in the office of the Mining Recorder. By virtue of an instrument (Exh. '"A") entitled . .. Deed of l)ansfer" dated September 10, 1931, Paulino M. Dumaguin conveyed and tramferred to defendants A· I. Reynolds and E. J. Harrison nine of the ten mineral claims just mentioned, and in another instrument (Exh. '"B") on the same date September IO. 1931, Paulino transferred and conveyed to defendant Reynolds the remaining claim Victoria. Later, Reynolds as vendee of the min· icg claim Victoria by virtue of a deed of . sale (Exh. "C") datea November 2, 193 I sold and tran'Sferred said daim to the defendant Big Wedge Mining Co. In another deed of sale (Exh. "D") dated June 2, 1933, Reynolds and Harrison sold and transferred to the !'lame dew ~ .......... lendant Bis W e<le• Mining Co. t!ie claims Frank, Paul, l.eQ\ L.eoeto and Arthur. In still another deed of lBI• (E.zh. "J"), Reynolds and Harn.on 'sold and transferred to the same Big Wedge .lllinio& Co. the Greta, Lolita aqd Trianak f,aetiona or miaefa.l claims. Al a ,...,k, all the ten minoral claims or froctions tranaferred by Paulino to Reynolds u.d Harrmon, with the excoptio~ of the elf.Un. G. Ubalde were in turn sold and tronsferred tq the Bill Wedge Mining Co.· What w .. done with this 1 .. 1 claim o: fraction G. Ubalde. does not appear on the record, but it must still remain in lhe narue of Reynolds and fiarrison. Roioi;lf Dumaguin. initiated this c.ase ia. tho Court of Fitat lµ&lance of Baguio ~ liliDI his '!Fi . I complaint cin November>~ l<A34, f;: amaiojing.it on J~lf 26, 1939 and finally r&:amending it J>~ J.Ao 4. 1940. Under. his .re-amended "'"nPWm ,.hjeh -tail\I thJee causes ol action. ho olleges that when he executed the do<lo!s of. tr•• (qdis. A and B) .he was D!lder 11uardiaoship Biid did not ,PQ'8W ~-·mental c;apacity \o cOIUract and 10 a'sked the court that the said t"1o deeds. be doclared null and void. He alsO alleged that those two deeds being void, ROfnold1 and Ha,rri1on had no till• tO ~ansmit to the Big W~e Mini~guC~ by virtQe of the deeds of 1ale, Exhs. C a11d "D" (plaintiff evidently ov<rlookod th~ deed. Eich. "}''), and thoW<>re thooe ""° deed1 of sale (Exhs. C and D) ... oukl abo be declared null and :void. and that he (Paulino} should be declared the owner of ~· ten minin« claims or fraction.sin question. Finally, i"t~ claim~ ed tllAI thi& B.i~ Wedge Mining Co, had illog~ talon P"'80SROD of the too mininll cJaimo end j>rOfitably,. WO<kod 01 ~·tod tho.. ••d ·..,, hc wed th8' saia company ~e ~. tQROder an a.ccouJ)t-ina gf itO oii.OrOliqno and. the Jirofils made tterelrom, an~ tl>At the cWendants should bi> Ordered joint!~ and oeverally io. pay t<> the J?lainlil,f 1UC:h i?Iofilll. as ..,, _have been derived by tho Bi• Wedaell'lining Co ............. bM ~s ace-ts. ~dant& Reynolds and· H.rrilOD ~.d 1~3t =r'A~nii2~19°35.J;~ lively, both 's!!.oerlleded by their amended ..,.wen on· J'anuarv 22; 1936. Defend.ant B~ Wedge Minin~ O>. filed· its answer on /anua,cy ·30, 19.35. which was amended on January 18, t9:36 .nd la'"' re-amended• on February 5, 1940. Reynolds and Harrison daimed' in their •-• that pl.ointill PauliPo a"d his b."<>lher F ructu- had been ••Pl'~:.IJ! emc pior;~- by thern to lo~te an~· .-tll!ke n;1i~ n..al claims. and ""'t said. two l,iothers stal<ed and located. the ten min.,a1 claims in queo,tion f,,, them (dofQdants), and .::\~in:t~:ia~ddth!t~::PdRe~~=~ that soid.millO'al .W.....> lO<Atild~d evon1u41ly be trailtfom:d to them. In lit t.,n d,elendant Bis Wedge Minin& Co. lolluwed :the theory of Keynolds and Hanison about Paulino ha¥ing ~n employed by them and having •~de the )c.,.cation of the mineral clai• in question for their employers, said that the company was not aware of the allege.f rr.ental capacity of plaintiff at the time that he executed 'the deedo of tran&ler in favor of Reynolds and Harris?!., and that even if p~antiff was undef guardian~ ship at the time, vet he confirmed and rocified the dee,ds of transfer by his acts and letters after his release frore. guar~ dianship, and that said compony bought the said mineral claims in good f~ith an~ for valuable a:>nsidetation from the reg.;stered owners. Hearing was held· on July 31, 1940. The evidence sub:mitted was mainly do-cumentary. Only ~ witn$1es -k the witness stand. Atty. Alberto Ja111ir was -ted bv the Big Wed>e Mining Co. to identify a copy of a d.tcision n.ndered by the Securities and E:J""hange CommL'lion. Defendant Refnoldo · testified for ·the defeltse. Fqr the plaintiff, c.r.ly Fructuoso Dumaguin testififc' for his brother. Whv Paulino, the ola;ntiff, did not take the witness stand, if not :o sl.pport the allepa\ions of his compl•int. &l lea§t to refute the evidence for the defense wticulad. that which tendod to "show that he wu omDloyed by defendanto Reynolcl. and He.rri- to stake and lcc;aJe .Uneral claims. {OI: thotll "ith \he w•derstandiu1 th8' ho would !~tor tunsfet said claim• to his employers. ii not known to this C:Ourt, Aftor trial, }qdoe Jose R,, C11J'l0.. hefore who,. !he hoari1111 was hold. ronder.d judgment on JanW1.•Y 1,6, 1941, dinllissing the OOIDP!aint. Paulino DumaRuin appealed frqm that decision. His Record on Aill"'al wauppIOVed on Aoril 16, 1.941 Appel• !ant's brief was filed on November 3, 1941 and the brief for the Big W edle ~\!;0·3rast~i~ it r:th:iisk~!~ whether defendants Reynolds and· lt>rrison ever filed a brief. The fact is that the record' of the case was lost or de .. :~f~h! = ~e ;:eain~nd1the coi::; were 1alvaged. As to the oral and de>cumentary evidence which .was lost. QDly those porti9ns· of the transcript .::iond de>cumen(s reproduced· and' appearing in "the briefs are now available. But •he r.arties have agreed' to the correctness of these portions so quoted in the briefs. After the reconstitution. of the case, the Court of A~oeals wliieh kad taken charge · of the appeal found •hat the amount involved was bejond: its juris~ diction. and so. Ulltified· ·the caie to u:e. N.ithor ReJMl<>Ws . ..,. Hanisoa lw. appoored. bol<n the. ColUl of Appeals or b.itf<ne. this Court. Appelllllll's ottorney n;preaonte,d that .Harrison'• COU111tl could not "PP•ar in the aonoal duo to lack of authoritr not h-viuP beard hom his climt .;iice 1...iborlltioo .,..d LOin1 of the belief that his c1ieiit is dead. 1\ere was .;.., ;pf.,mation to tho elloct that ~ <lanb Reynalds had been kilW;I .during tbe eOII~ part of tho ~'!!,ion. .by the Ja-o. S.., oaly \he Bi& Wecire Min;..,_ Co.. is opp<!lil)a the pr,eseni oppeal. The decisive and pnotal qualion here ;. whether plaintiff l"aalino M. Dumaguin and his brGlher F ructuaoo uling on their """"'111t staked and locat<.'tl theoe mining cl8inis or hac:tioBs in dispute for Paulino. or whether they acting as. em~lss>eos and •-ts of defendant& ReyaoQs aad Harrmon, &laked an'!! lecate!l said ci.,;.,. for' and in behalf of their omp)OJOIL We agree with the trial co.urt tht tho iueat p>eponderanee of •vidence is to the effect that these claitn< ....., Jo.. col<d Jor R.,.nql.do. and Harrisoa I,,. Poulino and Fr•- as ompl.,..., and tlW. the latter ...,. purpdle)y ~JDployed ~~~dtoler~ .:::!i !.. "l:.:t.'"ci aaid claims and tho ,..m.atiau. of the cc -diag dodarolions of location -. .,.id hv Royuids. and Ha· riton. It u. 'tmU! that in one pBlt of hi's toltilaony, FA1Ct"""' cl.timed lhat. h .. and bis ~ t1ttr _.. OJ11ployed . ....,.. to· re-locate th miniaa claims of deloadant&. within the Anaconda Croup but i- OD, ·he adm~ted in his testimony and also in. his al'lida.vit (Exh_ "I") wllieh was prepared before th~ p~edinp were iiiitif,ted in COUii thal ho and h.l'a. brother Paulino working together were paid by th• defendant& Roxnolds. and Harrison to lo.cate new mining daims outside the Ana-conda Group; that as a matter of f!ld, Paulino engaged._;., this. work at the beaiuniog.. btu boc- be (Fn1-) lcuDAI that P.,.Jm. physioal)y """' QQt eq.ual II> tho ,...,.., -k of dimbin11 up ond down -illll to f\lako &DI! locate claims, ho ,... nlneecl ia clwge of th• payroll "of tbe defendants and detailed to do pwork which, tt LI .,. .. wiw1. wcluoled "'• registntion of .... declarations, Qf location of the- mining_ claims. io the office of the Mining RoCO<der, i~ his JJ•me. F ructuosQ also admitted that there was an understanding ·Defore and· ~ding the staking and lccah'"on. of said mining claim• that they would eventually be tran&ferred to. their real owner,, Reynold. and Harrison. Iii. C011SOD.ance with· this cerrect tbeory lhat these minina claims. were located. for cefenJlan11s Reynolds aDlll Hacison. as counsel for appellee well observ.s, Ezbi1'.its A and B are both entitled "Deed· of Tran.ten'".. This. con1eri the idea tli&t ~uldlci· .... 'all!relY tralllfening tO 'th\i.· rftl··- ~y· wbicli le!:]mlcally' and in name -.. ~end ·ai lrilo olvn.-, Qdr.,;;.,;,e; ii lie i:dllY owned thae min-· ing daim1, the two ·deeds (Ediibit.. :A . and 8) '19<1u!d have been IDOl'e a"'"'" i priaiely entitled "Doed of Sale" and the ' body of· iaid i.-meab ohould have st .. t<d that he ..... oellin• the mining daims. , On the other 'hand, we ·have' the in1tru-. meDb (Exhibib c and 0) whetein·Re·im.lds· and ·Ham.on sold oaid mining · daims cw lractibll1- t.o the Big Wedi!"· Mining Ca. aDd the decuments Wf're eaeh · eillitled "Doed Of .Sale". It would really be unfair, even againot '. public policy to· allow a - employed . ID 'ltake and locate mining dairi>o fer bis · emp. t.o mu.e locatiom OD· his ~ . .....,nt and fer bil own benefit though . doH; aullide houn· of wcwk or emp~ menti became there is an obvious incopt .. · pab'bility. and c:oaflict of in-t.a between" those of the employer .. on the .one hand and. those of the l!J!l_ployee °" the olher. uillaa there Is a dear and express agreeaient. to the coii1rarv. Judge Carlos ib bi• well-considered decision c0rrei:tly 1talu tlie. fiduciary ·relation between Paulino· aild his wp)Dyen Reynolds ·and Harri~ aiid the iOUnd and correct :ule and P.Uhlic policy on. this matter. . .. , .• '-rhe lld.ucla'l'Y ;reta.uon betwMll .the pJatnttff and tHe defendant• A. L . Rey-. • no1411 and : IL J; Hil.rrl11on la verJ' clear from the matin(Se. ll'ructuomo 111. Dumapin has cleil.rlJ' atated that h1a brother, • Paulino· JI'. Dumaguln, was worldn&' under him while he wa.a loea.tlng tht eta.Ima In q.ueatlon· for A. L Reyuolda a.nd. E. J. Harrllton.- Tbere aan be no 4oubi thll.t th .... ela:lma 1n qunUOD. were a:mon11 thOIB& which theae 4erenaan.ts wanted •taked: becau•e, aocorcllnc to Jl'ructumio 11. Dutnanculn htmaelf, they all adJbtn the· Anaocmda Group, which ground he 'WUI - 9p8ctftcally Instructed. :to •~e for the antd defend&ata. The pla.hltltt h_ereln, theretor.e-. lea.med. of tbs mstence, ffP8· olDltir.ot .the fractional mineral. claimll,_ becauae he was with the party who eta.k~ the rut or the clalm• In that local .. tty. To' permit the plaintiff herein to aa8'rt: lils' claim of· ownenhlp over tlioe· cla.tma tn· question wouia be tantil.inount to allowing him.' to Violate and lilfrlnce an the a0und atld• mge=-old rules· whtch &'OV&I"!' pr:J~pii.t 8:nd agenL There cim' tie mr doubt ttm.t · thla relation 'e:dilted. bec!auae Fructuoao M. Dumaguln, the eole w.l~n~ for the plalntltt, etated. f&• tegorlcally In hla affidavit Ezhlblt "]" th,at all the claim~ •\lbJect of thla lltlga:.. tlon, ezcept the C. "Uba.lda iiilneial cla.lm, . had been located and staked bv hlrit. fO'I/ ;4-; l .. Ke)l'nolBs an,d. B. 1. J!lll'rla~, tbouch t.he, ~· ~~ ra~~d l;n ~J;le n&1;ne of his brother Paultno. It la· qui~ evl.~~t~ December 31, .1962 _ U1eret'Ore_. ~.~n: ..,. ~ :irat}erera .·Wfl'.9: .. made·iOlf··Blll:~lbJta ;~:A"·~ "B''. di~· not. - .U.t, i thefe, tw,01 ... ren4anu wwald aWl be1 eqUtled to aa.asalgnmtnt of' the 881d , olalnt.1, Th• nldac& oi the ftduclari M- i lat.IOll)betwe~ tbe plalntUf and .. the ite- - fendants A •. J •. ftefDO)da·~d.B..J, Har-·. rll!on waa given by nqne qther th.'ln Fruc- r tuocio M. Duma.pin. the brother lhe onlf wltnea• o.r the. P.l~~rr In tbla. t"ase., PllillP.pine: Declalana; :·that·' llkewla"- lftlonp ·to- ·the ·pl"lnolJJl'I, not ·Only .. ·bectauaer. the , principal· bu ,to aeahm• the l'NPonalbWtY: oi: the <transac- tlon,· but· also becaus• .the agent: cannot be. permit.Ced to derive adva,.taga. trqm hie own- default. 'It la onl7 by, rigid e4her:ence . to tb1a .. rule that .aJJ: temptation· can be· remov'~ from one. a.cttnc In a, fiduciary ra~ltY. to abuse. hla· tr1111t 011 ·IUHt)l hi• .ow-n adva,ni.ce, In the AoalJ:IQn which Ii afto,da him~:" "ADJ' Ut or IJQ agent, the obJ8Ct Or tendency of which ta to· commit a rrai.iJ or,.b.reacb of th• apney, should be dhoouraged. Jn the 11.rat place, auch aete In view· of. our cond. and ~ are cOruJemnei( by public! policy. They ~-the.e mining· daima were~•t.abd·and arf.! &gal~ the morale:· tiaerefore, they · located for I.he benefit of defeadanta should neve.r be tolerate"-· Al;I agent or Reynolds and .Harrison, the other poinrs truatee, or any~• wh!> acte In. !J..fldu· and queationa involved in the appeal·exclar:r caP'l,clt}', ehi:nald never be P.~mlt- J..aUll:ively,·in detail and with· a:wealtb of :! : C:~~:1.1: ~:~4!:t:1;:' o~°:::~ authcritiao discussed by counsel ~for both prlncf-1, or emplo1er. :lili~~4=.:i ·:t~~!,f m:i! ''It bu been the Prfietlce o~ mlhe.·e ·::;~cfi':!::°:.i~':~:::;·::=u:: to emploY othere to ata.ke ml~lns clafm!I much to streDR,thea· om decision· but 118 .. ~:.~~:;r:".!v!• .:.:~l' ~::.~!,; t:~ t1ter·.10 render more dear our· views. Appellant· contends thar the deeds of ~=•n:h:Z'~~.! at11C:'::e10:~:· ;:;; _ bander (Em.· A. and .Q) shouldtbe anteave· fractional mineral' ctalma In b'!t-' :::: !;>11.!:~ ~=r =~!be ween the Claims W1thout reporting the: dei' ardiao eXlatence of tbeae fractions to Ma prini:-:C,:t~ntf~hat·· ..t"~~ ::en~ .. ~ ·· ::·. 1~~~~ ~e:;.~~:::a:!n. c!:!:: , cution of a will by . a testator who wlls fide mlnm ................ up by th• .... der , ... dianibio fer meotal· deranpVel'l' m~ whom they· have emP1GYH to ment;. the ·presumption of ·insanity: is· odly atake tflelr mining clalmti. If the mining juris lantu~, subiect to rebuttal. neverlnduatry 8hall 'be fu-0~ and th'e ex·· thel•, mental ia'capacity as regards c:ODplol~tloD of the natural reSP'urceA of 'thl:!i. tracta particularly those tran~ng ptocountry encoura.Pd, aucli practice ehoulll perty, under. similar circumitaricei. ·jn.. n~ be' toler4ted.· The wi-ong or the da,. volves 8 conclusive presumptiDn: wbii:h 11'18.le that can be done la unlimited. It' ::~beth~~m:r·~~· agentl!I or employeea Ol' laborera are per- adduced ·i,y··both-coCuiJ,ef On· tbii'J;oiot ::~.~~;:::=!:; :::;1~ce;h~:·::: ra1u1·we ·ate f?Clinecl to qree'wiih as.mm~ J,h,yer *110 Pve them apec1nc 1netruc- for a~peilde'that· the better lule'·ii· that' tlona to stake the·entlre grourid In a·COo"-· e,l"eB in the Gecution'of conb'acb, in the: 'absence of .• st•!Ute t.o th• contrary, the !:~1u;;:!'~::: ei:;:i 7!::'1~:a1~/: Presuaiption Of iasanitt ~d mental inea~ holdup. For the reason, 11echem •on ~~· ii onty Prima . facie · and may 'be: ,Acency, sec. 1i24, aatd t~ following: lebUtted ·by 6Yidence: and tluit a penoa:· under guardianship f~· insaiOty may itiJI= :. 'The we11-liett1ea ··and· &atutarJ" prln-. ~te,r. in~:• ~d mntrac;t .ao«;l even conclpJ'e that peraon who Uhdertakea to act -vey prQpeily, ,pfOYided it is .proven that. toi ·another shall not, be In .the eame, at the time of ~teri,Dfj jnto aa,id contract,~ .matter, act ror htinaalf, reeult alao la he was not insa~e or that hit me.11.tal ... th~ other rule, that· all profttil made and• feet .if: mentallv deran~ did. not ipter-. lldvantace 1&1ned 'by the acent in. the fere with· er a.ff~ hD capacity to appr.-. e:ncutlon of the agency belong to th&· .ci~,.the_melUliDg a,nd, li111if1C&Dce ,of~· Prlncl~. ·And If matters not wheth<tt tra~ .~tere~ inte by .him. such profit Ol' adYantace be the: result or· the perforri:iiLn'ce or or the vJolatlon . of the daty of the agent If ft ·be the rfult .Or the aleiacy. If ·hie duty be atrk:Uy performed, ih• •/, .. ,, '•' ·' . r~u~tl~ profit ~ea ~ th~ pi1nelpal' P .. t~e. ~4!£1tl'1'8ite ~,_~~.11-~n~~ of ~he re~ ·la,~n;,. U profit a~u1111 trom h1a vlolatlQn ·9f ~uty·"';b»e u:~cutl118' ~· airen.cr .. . ''l'H'.& i.AWYERS.-.JO.t1BNAL . "Sec. SI. G~~er'ally~ - or Coizl'Be, not· every eubatandani inentallty or even· every me~tal 1nrirm1tY. baa' the fltteCt Or' nnderlns 'the afflicted· peraoil dleablell for lhe Purpoa8" or: enter1n8' lntO Oon_, !'l::~:r:e pi=~~~-:=::~·e:;, ~ .~ coUrta fbf' ttie p.h,,oae of a9termintng whether. 'an ~~nrm1tj; .'op.w.i.t!"' to render 661 a person lnca.~e of• blnd'lns him.self lino ·was- diRha\lgfid· from: dur !iaipitlal absolutelJ'· ·bJ' contrnt. ta .whetbeii: ·his presumably beeause..Jiis-ccmditionuhad·immtn\I haa been so affected as: to render Provedi and·on Febtuuy1 Z1 ·1931, Pau:!: •::~e':~.::u;.~:~:s ::: •;, ~n'!,h~=::n::s=~~..:: more exactly, whether hill mental powers was already re-established (ya uta rehave become 80 far affected •• to make establicido). Several -monl:hs later tie him unable to undel'fltand the Cha.1'8.Cter went to Baguio IOGking for work. It is of the tranaaetton In qu..U.on. :z: x-:z: Some tO be presumed that he was ·then no lonauthorltlea take the view that a guarantor ger insane. It i's eq_ually to be presumed may be competent to e:.:eeu.te a deed not- tJ;.at his broth• Fructuoso ~uld not wlthstandlns hie dlaablllty to tranaact have recommended him for emplOymeut bU.slness Pllfr&lly, provided he under- by defendants Reynolds and HarrisOn stands the nature of what he Is doing and actually let him work for them, at and reoollecta the property.ot.whleb he la tlae beginning , dimbing up and dC?WD doing ·and·· recollects •the· Pl'!)Pert'J'· of ,n.ouDtains to stake and l~ claims for whtcb ·he is making a dlspoalUo.1 &nd to hii employers: and if Paulino was then whom he 1a ConvQ"lll&'- IL. other author- : Dane. it was not likely that Reynolds 1tln, however, take the poeltlon ·that. to· ai.id Harrison. would employ him lo aastaln'. a deed. the crantor must have. do the work of staking and locating the abluty ·to ·transact ordtnary 1 ualneea. claims to aay · nothiDR' of taking charge .In any·event, If It appear• that lhe gran- of the payroll of their emoloyer. and re:.::; :.a:::.-:·!=: :~~c;::::.~ r::o:~ t:.~:i:r !::«!rm!: ment, when ·,made. aeeuted, and . dell- There is ev.ery reason to beU,eve as we do vered, would be to. divest him of tlUe to and hold that .at least from about the the land ~ed by. the lnatrumentJ· It la beginning ~ the year 1931 when ·Pau. ~=- b::::.· u=· :~~: .:,~ p7;." '.-:::.~!::; :io~e::d w.:.~~ a~~e:t:t ~ '!z x z Even· partial Insanity wlll ·not cuted Edu. A and B. he had the ~en render a. contract.voldable unleas lt·extsta, tal capacity to. transact ordinary bteiln .connection· wlih .or 18 referabi.& to the 11eu and wu mentally capable oF validly subject matter of the contract. Blm~lar- entering in~ c;on.b'act even conveyi~~ ly, a. t1elqalon If .unconnected with. the• pioperty to another. But even assuming tl'al)eaatlon tn .qu~tlon, la not .uttlclent that at the time of executing E;.xhibits A to-. a.(fect the. :validity ·of a contract con- . and B. Paulino were "Still mentally in.umma.ted by the peraon thus affected. c:apacitated, .1till, became of his moral Mqnoma,nla or -a mental ·fl::l:!Ltl,on: or .. .a.b· and legal obligation . to trander said ,normality respecting a matter dlscOiD8'ct·. ciaims to his employers, he could through eO: W:I~ the a.ct of conveying. propei·ty hi• guardian have been compelled by the 1 will. not attect. the valldlty o( the con- court to execute iaid transfer, or afier .. veyance. ~ .x ~· (Ibid., .. p.. 701). the termination. of his guardianship oblir,Tliire me. iiiaa,y cues of penon1 men.t~lbt .clorllllged who although' ,they bave liee1i"haYinl oliieaions and dolusiciiis for. .nlany ~i'i .regarding certain 1ubjects. . ond lil\iatio01, •. 11ill· are. mentally .10Unol iR other respects. There ue othezs who. though .~e; .ha:ve .\heir lucid intervals >yhen in all ~pOcts theY are R<r!ect!Y ...... and ~t~lly sou.a., In the ·cue .of ·Paulino M. Dumaaliin;· . accorclin .. io the doctor 'who . nboerved 'and .examined him, and who made his report on October IS, 1929, and that was more than tWo years "before Exhibits A and ·B ·were· aec:uted, he (Paulino) while 'in 'the hoip~al wu "well behaved, oriented in · all 'splieree. coherent in his speech and has no more illu.ion or hall_u~tions; but is havinR' a delu:iic;m that . one M the patients .in the hospital is trv~ · ir19 .to .chlorOforin him. He 'cqnsequently ~ away from said patient;•• and that ht. was "'not sure that his former officenia~U wliom he erroneoltsly believed chloioformed. him before woold oot chi•' · Jt1form him anymore when hei KO~ home.•• This waS ·in l929 .. The same year Pau611ll ed e_ersonally to execute said transfer .to his employen. He acted as a trustee for ... employen and the .law will not allow liim to invoke imanity or .mental incapacity to violate his trust •. In relation wi~ this alleged incaPacity ot Paulino, it i$ interestin1 to note that when he and· his lawyers filed his tint complaint in ·1934, t~ ji, about three Yf:&rs after executing t:.xhs. A and .B. they ~aid n01hin• about beinR mentally r. capacitated in 1931. Thev did not ask .for the annulment of the deeds of transfer (Exhibits A and R) on the ..,....d of lack of mental capacity. They assumed and took it for ara~~ed and led o•ben to believe that said deed. of transft-r were valid. They only asked for the payment. of damqes .. It w.. not until five years later in the year 1939 when th•y filed the lint amended complaint that they raioed his questi!>D of mental inc:pacity. It~ him and his la~ers almost five years to discover_ .~cl claim that he (Paul~no) wa1 qot meo~ally capable to enter. into a contract" When. he executed exhibilll A and · B. In vie,. of ·'THE' LAWYERS. JOURNAL :!!.~r:.,~z ili!~':h!~!::=:: employ.d by.ReynOJds,and Harrioool,to, Jocate.and.register .mining claims.for them. 1 · am:La~. the time that. he executed Exhi- , bits A and B .Del for several yean thereafter <When .he cobtinued in their.employ,. neither FiuctU010,. Paulino's brother ·nori def.endanlll. Reynolds and Harrison had any reason to suspect, much less. to be.-~ lieve that Paulino wu other than a saae. . respomibl<, and mentallv capable indi- . vidual, able to take ·cate not only. of .him~ ,.(f and his .inlerest but also of .the .in- . terests of his emRioyen. ~either ·did the . other employ ... of Revnolds and Harrif<!n to whom :PaUlino, ~id wq:e. ·on . .,._y. daya; .he beinR in dJanio; of the payroll, · ar.c:I the MininR Rec:ordeo-,before · whom he uecuted proper and valicl raffidavi,. . r:f loc&tions. for DUJ'pDllel ·of reaistrati&n. note any mental incapacity on the ppt , of Paulino. All. this goes to reinforce the· finding, that ·Paulino was mentally sane: and capable in 1931. Counsel !Or appe]lani oat ·conten.ds !hat Exhibits "A" and ."B" 'should be dodareci void for. lack of .COJ>aideration Said two deeds each mentions Pl .00 and other . valuable consideration, th~ receiot whereof w~ acknowledged, to· be the c:omideratioli. We believe that that consideration is sufficient, this aside from the· provision of law (Article 1277) of. the Civil Code), that conside.alion in a COi•• tract will ~e pr.,..med and . that ·it is licit, unless the debtor piove the contr .. - ry which Paulino in this cue failed .to 'e•tablish. Furthermore, acc:ordina to Reynolds, in conlideration.:of .the trans-. fer of .these minina dailqa,, he had .later ('aid Paulino b~ween .1'3,000.00 .. and ·l'S,000.00. This w ... not refuted by Paulino. Moreover. under the ·:view we take .of the ·minin« claims havinw. beeD '·located for the benefit of· defendants Reynolds and Harrison,. by Paulino·. in his capacity as their employee,· paid fpr ihat !JIU'POSI', no consideration· for. the conveyani;es was even ne~. He was r'orely fulfillina an obliaation ·and' c:om'plyinR w,ith a fr.Ult. In conclusion we find and hOld that Exhibits "A" and ."B" were valid. c:onvezancea executed bv .one who wa1 .ment•lly capable. Conseqµently, Reynaids and Harrison had .a. valid title to conyey u they .did c:onve.v to defendant Bia 'W edae Minin Co. in Exhibit> "C", • D", and-"J"~ · · . In view of the foreRoini, finding no l't'venible error in the ~ecilion appealed from the s&me ip herel;>y affirmed, with .~t~ J>rz;m. C./., &ngzori, Padillii, Ju¥•· :=d;,inre!D.- aird Labfatlor, JI., Decemb"' 31, 1952.'. M-.. Justic:eo Feria, TuUoll, Reyes end ,Pablo did not take part. · VII Peopl< of the Phi&,.,...,,_ plaintiff· appeUee, va. Nutorio 1Wnalanfe, defendant-appellant, G.R. L-3512, September 26, 1952, Padilla, /. 1. MURDER; KIDNAPPING; INTEN· "TION TO KIDNAP THE VICTIM; PREsENCE OF QUALIFYING CIR· CUMSTANCE-While T accompanied by two others was on the w,y to her hoaie in the barrio of Guma· toaa, mUnicipality of Dagami, proviiice of Leyte coming from.her farm, ohe· met a IJOUP of more than ten men all armed with rillet, '°""' of diem with heard. reaching the breaS!. R, one of the bearded men, approached, took hold of and draned "r toWard the .si~io of SewahOn. Hardly had the companion> of T walkod one kilometer when they heard gun reporb. The following day T was found dead in Sawahon with two gunshot ivounds, th< points of entry beili• at the· back and of exit at the left breast and shoulder. R was charaed with the complex crime of kicfnapping with murder. Held: There is no 1ufficient eYidence of intention to kidnap because &om the moment T wa'll held and dragg_ed to the time-when the gun rep;rtl were heard nothin2 ·was done or said by R or his confederates to ohow or indicate that the captors intended tq deprive her of her liberty for llOIDe· time and for some - and thereafter se~ her free or kill he•. The interVal was 'Short as to negative the idea implied in kidnapping. Her shon detention and illtreatment are included or lonn part of the perpetration of the crime of murder. It is murder becauae of the con..:urrence of at le_aat one qualifying circumotance, either of. treachery, or of abuse of .superior strength, or -with the aid of llJ"!lled men, the first shown by the entry of the shot:a at the ba4 and the •econd and the third by the number of the armed cap.,,., the appellant and his companion&. some or one of whom killed T. -,. EVIDENCE; MARAUDERS; DISSIDENTS; BANDITS· (GROWING OF BEARD_-The fact that the appellant grew bel.rd reaching his breast· as some of his companioc.s did j's a poaitive and dear proof that lae was a member of the of maca\Jders, di:uid~ta. bandits who were haranini the pe(icelul jnh•bitants of the .. : tb~n qf Oaga~i .a.ad ~ epyi~ns. 3 .. ID .. ; CONSPIRACY; ·ACTS SHOW :. CONSPiR-:ti.CY - Where one in a December-81, 1952 group of more than ten men all armed with rifles UJlOD meeting the victim who wU on the way to her home, approached, took hold and drag~ her away and the ~°"' day the victim wu found dead with two gunshot woundt, the acts of the malefacton show and constitute conspiracy which renders the appellant liable for the crime committed by his CO!DpaniOlll, although no one witnetsed the killing of "the victim. Modeito R. Ramol<le . for appella~t. Solicitor Gene.al Pompeyo Diaz and A.ssislant Soliaiior Ceneral Franc~ Carreon for appellee. DECISION PADILLA, f,: At about 4:00 o'clock in the alter· noon of 18 March 1948, while Mercedes Tobias accompaliled by Eusebio Gerilla and Lucia Pelo was on the way to her home in the barrio of GuinaroDa, munici pality of Dagami, nrovince of Leyte, coming from her farm in Maanghon, 'ohe met a group of more than ten men all armed with rifles. some of them with beard reaching the breast. Nestorio Remalante, one of the bearded men, ap~· took hold of and dragged en:'!d r=..:~. ~ ::r.i:·~:.: ahe had done him no wrong. Remalante continued to drag and •truck her with the butt of his rifle on different parts of her body. The comoaniOll'I of Mercedes were told to continue their way. They saw Mercedes being dra"8ed toward the nlio of Sawahon.. Hardly hd they walked one kilometer when they heard gun reports. The following day Mercedes Tobias wu found dead in Sawahon with two gunshot wounds, the :1:~t~h:n11t :.:t a:n~~:i~n&: MbitA). - Nestorio Rrimalante was charged with the complex crime of kidnappipg with murder. His companions have not been aporehended. Alter trial the Court of .first Instance of Leyte found him t:uilty of the crime char~d and se.n· tencecl him to reclu1ion perp<t.ua. the ,a,c. ceuories of the law. to indemnify the l·eiH of the deceased in the sum of P2,000 and to pay the C011:1. He ha's appealed. The apoellant _ claims that at about I :00 o'clock in the afternoon of that day •·hile he to .. ther with Emelerio Arellano was workinrr on his farm at B~nag the .i:..id..ito apprehended and .detained him because they were not satisfied with hi"I enowers as to whether he had been fur. r.1shin1 the con&tabular soldiets infor· THE LAWYERS JOURNAL Philipsilne DHielon•. c:aation •bout them; that as he begged to be excued from .aing with them Uiey brat him up with their rifle'& hitting him ::m the head and causing him to lose ccnaci.ousneas; d1,.• when he came to the diuidents took him t02ether with another male prisoner alonir with them ·and on their way they met Merced.. T obiu and hu comoaniom: that uoon orders of the leader 01 the band he (the aopellant) took hold of Merced,, Tobias and when h •. informed the leader that oho iefuaed to go with theni the leader again beat him up (the appellant); that the dilliden~ t°"eth~ with the three captives conbnued thm wav: that after walking I 00 meters thev stopoed: that the leader commanded five soldiers and the two male pri'sonl?'.8 to prepare the mtal and the otlier roldiers to take Mercedt:s Tobias away: that not long hereafter the appelfant heard JUn reports from a place about a kilC!Dleler away; and that after taking their meal he (the appellant) was further questioned and the bideota sa· tisfied •liat he wu not an informer reltased him. The appellant admits be took hold and dragged Mercedes Tobias on that GCcuion. althou1rh he pretends it was upon orders of the leader of the band. II it u true that he wu illtreated by the captors and fell uncomcious as a result thereof. it is strange that he did not ex· hibit or ehow anv bru~ or wound "which would have leh a scar. The oorroborarive evidence of his claim is given by Emeterio Arellano who is the huoband ol his mother's mster. The fas:t that the appellant grew beard· reaching hu breast a:a some of his comoanioas did is a ~ .. tive and clear proof that he was a mein.. ber <>!'·th• IJOUP of maraudert, diloidents, ~and1~ who - · haraaaing the peaceful mhab1tants o( the town of Dagami and it& environs. It is true that no one wit.. n.,.ed the killing of Mercedes -Tobias, but the acts of the malefac:tor1 show and constitute conspiraCy which renden the appelJant liable for the crime committed h)· his companions. There. is no mfli.cient evidence of intcn,tion to kidnap becaUse from thf' moment 'Mercedes Tobias was held and dragged to the time when the gun reports were heard nothing wa• done or "saic:J ~y the appellant or his conf«icrates ro show Or indicate that the captors in· knded to deprive her of her libmy le< =~:r :e~d h~°fre~ kfij?:_e Th~ inte~al was so '$hort as to negative the icea implied in kidnappjng. Her short detention and illtreatment are :.:.eluded or form part of the peroetration of the crime of murder. It is murder· becaof the cOncurrence of at least one quali .. fying circums!ance, either of treDC"bery. 658 Oi' ~f abuse of superior strength, m with the aid of anneq men, the fi@t shown by the entry of the 'shots at the baclc and t!>e oecond and the third by the number cf the armed captors. the appellant and his companions. some or one of whom killed Mercedes Tobias. For laclc of 1ufficient ·number of ·votes as required bv law, the death penalty recommended by the Solicitor General cannot be imposed. The judgment appealed from is affi1m~d, with co'.sb against the ap1Jellant. Paras, C.J., Rengzon, Jugo, Pablo, Montemayor, BautUta Angelo, and La.brador, JJ., concurred. Messn. Justiw Feria and R.:yes took no part. I certify that Mr. T111tice T ua'IOn concurred in this opinion. <SGD.) RICARDO PARAS Chief Justice VIII Administrative Cau, No. 126, cs. /n re: Alty. Tranquilino ROrJero, rt!spondent, October Z4, 1952, Para., C. /. 1: ATTORNEY-AT-LAW: ACTS OF ATTORNEY NOT IN THE EXERCISE OF LEGAL PROFESSION. - Under Sec. 25, Rule 127 of the Rules of Court, a member of ·the bar may be removed or &11$J,ended from his office as attorney for a conviction of a crime involving moral turpitude. and this ground ia a part from any deceit, malpractKt· or other gross misconduct in office as lawyer. 2. IO.; MORAL TURPITUDE. DEFINED; CONVICTION OF SMUGGLING. - Moral turpitude . includes any act done contrary to ju'stice~ honesty, modesty or good morals. The conviction of an attorney of amuggling by final decision of the Court of Appeals certainly involves an ac.L done contrary at least 'to honesty or good morals. · First Anlstant Solicitor General RuFtrto Kapunan, Jr. and Solicitor Jesus A. Avancefia as complainants. Respondent in his own behalf. RESOLUTION PARAS. C. J,, The Solicitor-General has filed the present complaint for ~barment agairrst Atty. Tranquilino Rovero. on the •rau•ds that on March 31, 1947. "respondent T ranquilino Rovero, havi•?i& been fcund in a final decision rendered by t)ie then Insular Collecw of Custams to have violated the customs law by fraudulc:ntly concealing a dutiable importatien, w~ fined in an amount egual to three times the cull~ d~ty dqe on a .pieee of 664, jewelry which he omitted to dec.lare and which was subsequently found to be. conctaled in hit wallet", and that on October 28, 1948, .. ....,pondent Transquilino Rovero was convicted of amuggling by final decision Of the Court of Aotieals in Criminal Case No. CA-G. R. No. 2214-R, allirminR a iud1D1ent of the Court of First Instance of Manila 1entencing him to pay a line of P2,500.00, With subsidiary imprisonment in rue of iJ15olvencv. said case involving a iraudultnf practice against custotn& reveaue. a's defined and penalized by Section 2703 of the Revised Administrative Code." The -iespondeD.t admits the existence of tl.e decision of the Collector of Custom1, 'and his -Conviction by the Court of Appeata, but sets up the defense that they are not sufficient to disqualify him from tl.e practiCe of law, especially be~aqse the acts of which he was found guilty, wbi.le at most merel.v discteditabio, had bUn committed hv him as an inciivicfual arid not in oUrsu8nce cir in the exercise of his legal prol~•ion. Under section 25, Rule 127, ol the Rulei of Court. a member of the bar may be removed or suspended ,rom his office as attorney for a conviction ·of a CJime involving moral turpitude. and this ground is apart from any cleceit. malpractice or other_ gross misconduct in of .. fi.ce as lawyer. Moral turpitude includes any act done contrary to justice, hGueSJYo modesty or good moral's. (In re 1 Basa, 41 Phil. 275.) ' Respondent's conviction of smvggling by final decision of the Court of AJ>peals certainly involves an act done cnntrary at least to -honesty c;>r good morals. The 11ound invoked by he Solicitor General is awavated by the fact that the respondent 'sought to defraud, not mere]y a private penon, but t.he Goverriment. Wherefore, the respondent Tranquilino R.overo is hereby disbarred from the practice of law, and he is hereby directed to iurrender to this Court his lawyer's certificate wil:Jlin I 0 days after this resolution 'shall have become final. So ordered. Pablo, Bengzon, Padilla, Montemayor, Jugo, Bautirta Angelo anJ Labrador, /./., concurred. IX In re: Peiition for the Probate of t/1e Will of the Dec<;>sed Da, Leona Sinpon. D.r. Manuel Singson, peiitionerappeli«, IJI. Emilia Florentino, Trinidad Florentino de Paz, el al, L-4603, October~. 19n, Bautia.ta Ali1eio. /. t. WILL: TRIAL: DEllOSIT·ION".OF· INSTltUMENTAL WJTNES-S . ...,.; THE LAWYERS JOURNAL Where the instrumental witneu of the will is within the 'seat of the cnurt Put is unable to appear at the trial because of sickneea his depoeitioa may be taken under Sec. 11 .. Rule 77 in conneclicn with Sec. 4, Rule 18 of the Rules o( Court. i. JD.; ATTESTATION CLAUSE; ~UMBER OF PAGES UPON WHICH WILL IS WRITTEN.- The provision of Sec. 618 of the Code of Civil Procedure, as amended by Act No. 2645, which requires that the atte'station clause sball state the number of pages or sheets upon which the will is written is mandatory u an effective safeguard asainst the poll· sibility of interpolation or ommiuion of some of the pages of the will to the prejudice of the heirs to whom the property is intended to be bequeathed. 3. ID.: ID.: FAILURE TO STATE NUMBER OF PAGES UPON WHICH WILL IS WRITTEN.~ Where the attestation cla111e of the will does not \late the number of sheets or pages upon which the will is writLen, but th• last part of the body of the ~I contains a statement that it is composed of eight pages, the will ii drafted in substantial compliance with tli~ law. - · 4. ID.; IL>.; PLACE WHERE SIGNATURE OF TESTATRIX HAD BEEN AFFIXED.- The attestation clause of the will reads: "NOIOlros Ins t.,._ tigos, conforme al ruego de Da Leona Singson, en este testamento. despues de anunciarnos que e:."U es su testamento donde hizo am ordenes sobre su verdadera y ultima voluntad, tinno -o imprimiO su carca digital en presencia de todos nosotros; y nosotros firmamos tambien en preseucia de ella y delante de cada uno de nosotros al pie del citado testamento y en el margen izquierdo de sus otru pqinas. Y hemos observado que Da. Leona Singson eataba en su sano juicio, pensamiento y uso de '"' senticlns," Held: The attestation clause at fint glance would appear that the ~ merely signed or """1ped her thumbmark on the will in the presence of the ~tnesses. without stating the place where aiRnature or thumbmark had been affixed, which impreuian iS caused by the fact that right after the sent~ "'firmo e imprunio 1u marca digital en pre'sencia de todos nosotros.'' there appean a semicolon; but ii this semicolon ii disreg~d. it would appear that the testatrix si$ned or affixed her thumbmark not only at the bottom of . the will fiut also on the left martin of •adi and · overy .. page th....00. c:onliiltri111 the cancluding part of the """tenee December 31, 1962 Th.::W: u:~4 t.t.~ placed there by mistake or through inadvertence, as may be deducod from the use of .the word "tambien" made by the witnesses in the sentence immediately following, which conveys the idea of oneneH in action both on the 1>Mt of the !estatrix and the witnesses. Thus considered and interpreted. the attestation clause com.Plies aubstantially with the law. Vicente PaZ. for oppositon-appellants. Felix V. Vergara and Pedro Singson for petitioner-appellee Dr. Ma!1Uel Sing· IOI!- p.Dd: lqateet Consolacion Florentiro and Rosario F. de Donato. mown to t!ie court. If a subscribing ·witness is. - t in the Philippines but oti~de the province where the will has beeii filed, his depoUtion must be taken. In this c~e Fidel Reyes was not OUbide of the province. in fact be was then living in the place where the case was pending trial He,, therefore. must appeu in court and his depo,;tion cannot be taken. And llo !!i.ey contend that the lower cow' erred in. admittin.C his deposition inste~d of taking his testim911y. It mould be noted that o.. of t)ie three instrumental witnesses of the will. namely, Bonifacio· Brillantes. wa's already dead when the case cat.!'.le up for trial ·and the only witnesses then available were Victoriano Lazo and Fidel Reyes D E c J s 1 o ~ who was then unable to appear because of his phyiical ailment. And when tl>is BAUTISTA ANGELO, J.• matter was brought to the knowledge of the court, the latter manifested its desire This is an appeal from a der.:sion of to go to the h01Ue of ~e · ailing witness the Court of Fint Instance of Ilocos Sur for the taking of his testimony, but the admitting to probate the la'lt will. and move was prevented because of the contestament of the late J..eona Sing:::on. formity of ~nsel for the oppositors to On J anuaiy 13, 1948 •. Leona singson die taking of his deposition. And bedied in Vigan. llocos Sur. leaving a will. c&~ of this conf91mitv. the depogition In said will the deceased instituted as was taken and on that occasion opposing beirt her brothen Evaristo. Dionisio and counsel was qresent and actuaJly took ·::Qe!En!i6a n}i!n~:~ar!~[·T~n,~d :J.~tf:1ce ~ft-:J:!: f!ct~e ::P::~·th!~ Florentino de Paz, her srand nie.e 4"- while the taking bl the clepooition was solacion Florentino. and some servaqts. not made in strict compliance with the She named her brolhers Evaristo and Mo.- rule ('°ctio~ 11, rule 77), the deficienc;y, nuel as executors of the will. On Feb-- it any. has be~n cured by the waiver ruary 2, 1948, Manuel Singson filed a e.inced by counsel for the oppositon petition for the probate of said will. which ~ented the court from ccmstitut.On March 6, 1948. Emilia Florentino, ing . f in the residence of the witness. Trinidad Florentino c!e Paz and J~i- We believe, however, that the dOlJO<ina Florentino V cla. de Lim, daughters lion may al\io be justified by in~ of a ..U.er of the deceased, opposed !he preting section 11, rule 77, in connection petition alleginR among other grounds with rule 18, 1eciion 4(c), of the Rules, t1iat· the signature app~ing in the will relative to the taking of the d~osition are not. du;: genuine U.:natures of the de- of a witness in ordinary cases when he ceued. and that the will has not been is unable to testify because of sickne'.11. 'executed in accordance with the for- Interpreting and harmonizing together malities of the law. · diese two provisions we may draw the After due trial. the court found that . :!:isn ~~h~ :b':~~t ~ t~:t~en:! the will has been executed in accordan~e is unable to appear becall!e of rickness. 'Wih law and admitted the same. to pro- as in this caie. his clepmition may still · ~t o~pp°:J~si:,:s th:~::e!~~o la~: be taken. for a different interpretati911 ·certified to this Court for the reason that would b~ sene~ess and impractical and it involves purely questions of la.v. :'id~1~17tt!d. ~°';.,:'.~pose which The fint error assiined .refer11 to the Another point raiilcd by cppositon readmission by the lower court of the <lo- lers to the alle,_ed failure of the attella. == :h~:a~:~e:~ :C~z:!~uhe~~:! tion dause to . state the number of the then suffering from '""'aralysis ami was sheets or pages in which the will is ~it thus physically incapacita~ed to df!pear ten which. it is claimed. is fatal because and testify in court. It is the claim of it is contrary to the . eJ:.PrE!ss requiremGt the oJ>POli!9rs that. under seCtio:i 11, rule of the law. 77 of the Rules, if the will is cc,ntested, The law referred to ia article 618 of ·all the aubscn'binP" witneases· prtseilt in the Code of Civil Procedure. as amended t~e PhilipPine1 mUll be produu:d and by Ad No. 2645, which requires that examined, and if thev are dead. absent the attestation clause shall state the or insane. fJ!is fact must be satM actorily number of pages or sheets uptt:1 which December 81, 19t:: THE LAWYERS JOURNAL Philippine DecteiOne the will i's written. which requir.emeot. has l:<en held to be mandatory as an effective safeguard again11 the possibility of interpolation or omission of some of the pages of tlie will to the prejudice of heirs to Whom the property is intended to be b&oueathed f In re will of Andrada, 42 Phil. 180; C!v Coque v. Navas L. Sioca, 43 Phil. 405; Gumban v. Gorecho, 50 Phil. 30; Quinto v. Morata, 54 Phil. 48h in re will of Maximo Sarmiento v. Roman Sarmiento, et al., 38 Off. Gaz., 2632). 1]ie ralio t/ecit/ent/i of the'te cases seems to be that the attestation clause must contain a statement of the number of sheets or pages Composing t~e will and that if this is missing or is omitted. it will have the effect of invalidating the wih if the deficiency cannot be Slipplied. not by evidence aliunde, but by a ceRsideration or examination of the will itself. But here the situation la different. While the attestation clause does not ,.tate the number of sheets or pasres upon whi<;Ji the will is written, however, the lut part of the body of the will contains a \ltatemen~ that it is composed. of eifht pues. which circumstance in our opinion takes this case out of. the rigid rule of construction and places _it within the realm of similar cases .where • ·broad a1 d more liberal view has been tdoQ)ed to prevent the will of the t<lstator from being defeated by purelv techn.ic>I considerations. One of such cases is De Gala v. Gonzales and Ona. 53 Phil. 104 Here on.e cJ the objections raised was that ~e attestation clause doe:s. not state thai rhe will had been signed in the pmence of the witnesses althouldi t]ps fact appe~ ir the lall para~ran~ of the body of the will, and the Court, in overruling the objection, said that "it may be conceded that the attestation clause is not anistically drawn and that. stanqing alone. it does not auite meet the requirements of the 1tatute, but taken in connection with the !all clause of the bod.v 0 1 the will. it is fairly clear and sufficiendy carries out the lqislativJ intent; it leave'.aJ no possible doubt as to the authentiCity of the document'". Another case that may be cited is Mendoza v. Pilapil, 40 Off. Gaz., No. 9, p. 1855. (lune 27, 1941 ). In this case. the objection was that the attestat~on clause does not state the number of vages upon which ·',e will was written, and yet the court held that the law has been substantially complied with inasmuch a: in the body of the will and qn the same pase wherein the attedation clause appean written it is expressly stated. that "ill contains three ·pages each of which was numbered in letten• and in figures. Said the court: . "El propoaito de la ley al estableCer las formlllldades que se requleren en un 655 Philippine Deci•ions testamento, es lndudablemente asegura.r y garantlzar su autentlcldad. contra la mala re y el !raude, para evltar que aquellos que no tlenen de1•ecbo a suceder al tMtador. le suceden y salgan bene!ictados con la legallzaclon del mlsmo. Se ha cumplldo dlcho pro11osito en el caso de Que se vlene hablnn<lo POl'fllle, en el ml8mo cuer110 dPI tcstamento y en la mlsma 1>aglna donde aparece la cJausula de ate11tlguamlento; o sen la tercera, se expresa que el te11tamento consta de tres Jiaglnas Y pl)rque cada una de las dos prlmeras llevn en parte la nota en Ietrns, Y en 1>arte l.n nota en guarismos, de que 510n respecti\•amente la primer.a ~· segU11da paglnas del mismd. Estos hed1os excluyen evldentcmente todo temor, toda sospechn, o toclo asomo de cludn. de que se haya sustltuido nlgunn de sus 1mgJnas con otra." (Me.mlo:m v. Pilapl!, et al., 40 O!f. Gaz., No. 9, Jlp. J8a5, 1862). Considering the form in which the will quest-ion is written in the light of the liberal ruling above adverted to the condusion is ine!capable 1 that the will has been drafted in substantial compliance with the law. This opiriion ~s bolstered uP, when we examine the will itself which 'shows o~ its face that it is really and actually composed of eight pages duly "SiRned by the testatrix and her instrumental witnesses. . The femainin2. question to b~ determined is: does the attestation clause state that the testafrix signed each and ev~ page of the will in the presence of the three instrument.al witnes'.ses as required by law) · The disputed attestation clause reads as follows: "N"OSOTROS los tcstl:;os, conro1•me nl ruego <le Da Leonn Slngson, en este testnmento, lles1mes <le· aunchu·nos que este ·es AU testa.mento doude hizo sus ord-enes sobre su \'<'rcl:Hl!>rn )' ultima volnntnd, flrmo o tm1>rinlio su mori::a digital en presencla <le todos nosotros; y nosotros flrmnmos tamhlen en r-resencia. de ella Y dPlante de cacla uno de nosoti•os al 11le de-I <'itndo t<'stamento y en el mn1·gen iV.(JUlerclo de sus otras pnglnns. Y h<'mos obsE-r\':ulo que Da. Leona Singson cstnbn en su sano julcio, mlenlo ,_. uso cle sus sentillos. (Exh. A·l)'", A perusal of the above attt>station clause wc;iuld at fitst glance give the impre'ssion that the te.statrix merely signed or stamped her thum!:>mark on the will in the presence of the witnesses, without srating the place where her signature· or thumbmark had been affixed, which impression is caused by the fact that right after the sentence firmo e imprimio su marca digital en presencia de todos nosotros, there appears a semicolon; but if this semicolon is disregarded, we would 656 at once see ·that dn: ttstatrix signed or affixed her th"umbmark ·-not only at the bottom ·of the will but also on the leh margin tif -each and every page thereon, considering the concluding part of the sentence concerning the signing of tJte will. That semicolon undoub~edly has been placed there by mistake or through inadverte:ice, as may be deduced from the u2e of the word t!lmbien made by the witnes~es in the sentence immediately following, which cq_nv~ys the idea of oneness in action both on the part of the testatrix and the witnesses. Thus consi<iered and interpreted, the attestation clause complies substantially wi'th the law. "The a111>ellanls enrnestly conttnd that the attei;tntion clnuse falls to show that the w1tnesse11 signed the wlll ll.nd ~nch and e\·e1•y page tllf!l'eor because a simply says 'que posot1·os los testlgos hemos tambien flrmndo en presencla d~ la testatlora Y en la )lresencla del uno al otro' (that we the witnesses also signed In the 1>resence of the testatrix and ot ea.oh other). In answer to this contention it may be salcl that this po1·tlon of the attestation clause mu~t be read in connection with the )lortlon preceding It w'hlch 11tnt1>s that the \estatrlx signed the will and on nil the margins thereof In the 11re11C'ncP of the witnesses; especl!itly, because the word also used therein establishes n very close connC'ctlon between said two portions of the atte9tat1on clause. Thl11 word also should: therefor,~ he giv<'n its full mc-anlng which, In the Instant cm~<'. Is thnt the witnesses signed the will In the same manner as the testntrlx clld. Th<' language or tlle whole attestation rlnu.se. taken together, clearll' shows that the witnesses signed the will nnd on all the margins thereof In the p1·esenC'e of thc testatrix and of each other." (Rey v. Cartagena, 56 Phil pp. 282, 284.) In view of the foregoing, we find that the lower court did not commit any of the errors assigned by appellants and, therefore, we affirm the decision appealed frob, with costs. Paras, C.J., Pablo, Bengzon, Padilla, and Montemayor, ]/., concurred. Messrs. Justices Jugo and Labradcr cC'ncurred in the result. x Eugenio Evangelista and Simeon Evangelista, plaintiffs-appelle:es, os. Brigida Soriano, defendant-appellant, L4625, October 29, 1952, Padilla, f. I. DEFAULT; ANSWER; EFFECT OF FILING ANS\.VER.- Where the defendant in an action for detainer and ~llection of rentals due aii.d unpaid 'I'HE LAWYERS JOURNAL filec:.I her answer within the time pro,vided for in Sec. I, Rule 9 of the Rules of Court, she could not be deemed and declared in default (Sec. 3, Rule 7). 2. APPEAL: WHO COULD \VITHDRA w THE APPEAL.- Under the provisions of Sec. 9, Rule 40 of Pie Rules of Court, the oartv who could withdraw the appeal to the Court ·of Fit':rt Instance from the judgment of the municipal court was tht: appellant, because such withdrawa.i would revive the judgment against her re_n· dered bv the municipal court. Ob· viously. the ap'lellees for. whom judgm~nt was rendered could not ask for lhe withdrawal of the -appeal. They would not ask for the dismissal of the ca'.>e because the Judgment secured by them would not be revived thereby and they would be left without judizment wlJich 'Was vacated upon oerfection of the ap. peal 3. ID.; FAILURE TO APPEAR t'T THE TRIAL: WITHDRAWAL OF APPEAL.·- When the defendant or her attorney in an aCtion for detainer and collection of rentals due and unpaid failed to appear at the· resumption of the trial, the court could not dismiss the appeal to the Court of First Instance from the judgment of the municipal court becau'.ie it was nat authorized to do so, but was in duty bound to hear the evidence of the plaintiffs and render judgment ther•;on unlt:ss for gcod reasons it deemed it justified to postpone the hef!r· ing of the. case. Nor· could it dismj.n the case and grant the remedy prayed for, such as the payment of rentals, even if the defendant had vacated already the premises, without a finding that such rentals were really due and unpaid, for a dismissal of the case, if granted, would leave the prevaiiing parties in the municipal court bereft of or without a judgment. The failure of the defendant or her attorney to appear at the resumption of the trial of the ca'se could not be deeme~ a withdrawal of her appeal. And as there are no findings of fact upon which a judgment mav be based and rendered, the order of the court holding tha,t defendant's fe1;ilure to appear and prosecute her appeal is tantamount to a withdrawal cf the case on the merit'.> (section J 2, Article VIII, of the Constitution). 4. PARTY: DEATH OF PARTY \.VHE.i.'\l CASE IS PENO I KG. - WheM a party died when the case is pending, her attorney should Prove the fact of l\Cr death and the c~urt shall order, upon proper n~ice, the legal repre-~ntati_ye of the deceased to appear December 31, 1952 for her within. 30 claya or such time u IQ&)' be aranted, u provided for in •lion 17. Rule 3 of th. Rule1 of Coiirt. DECISiON PADILLA, J,1 ·This ii an action for detainer and c:ollection of rentals due and unpaid. After 1.ria,I judgment wu rendered for the plaintifft. Tb.• defendant appealed filing a supenedeu bond. In the Court of Fint Instance the defendant filed an aUWer -..iting up illeiality of the rentals -ht .to be collected and of he a.-d value of the le...,.! premi1e1 upon wlilch the ina:eaaed rental was based. failure of . the plaintiffs to make plUin_!,uig {epmrs in the leased premisa, a counter~ !'laim for P128 daimed to be an .ei<ee88 ·of the amount of . rental authorized by law from February 1945 to· DllCOlllber · 1946. both indusive, and damqs in the sum of P250. On 21 January 1949 the attorneys for the plaintifs filed a motion praying for the dismi..ial of the case, ~~=·~!d r. ~-=~ ~34~~5ou:".i withdrawal by them of the an.ount of Pl 76 for rentals dep.oited by the defendant, for the reaaon that the latter had. vacated the premiles on 19 January 1~9 and because 'lhe and her ~ney {ailed to appear at . the resumption of the trial of the cue Gt! 21 January the plaintiffs waivinR "payment of reiital; for .luly, October, November and Docember ·!948 and half of January 1?49, to RUI ·an :end to the liti"'°ation, withcut costs. ·on that date, after stating that the case ;':;' ~:~tl~=!~:i ~J.u~ t i~r..~a:i the derk of the mwiicip&l court to forward the exhibits pre'sented by the plU'ties, and that the r~mption of the trial ,set for 24 Au"11st and 23 SePternber was _postponed again upon mOtion of the at-.tor.ney for the defendant and set for 21 .Jilnuuy 1949 on which date the defendant and her attOmey faaed . to ·appear and the attorneys for the plaintiffs moved for the dismi1sal of the case and i>rayed that the plaintiffs be allowed to withdraw the reil~als deposited .. in court by the defendant, the coun entered an ~holding thet '.'her failure to appear and prosecute her appeal is tantamount to a withdrawal of said appeal" and that "the appeal is colllidered withdrawn, the jud1111ent of the Municipal Court is deemed mived and let the record of the case be remanded to the Mun~f.al Court in aceordance with Sec. 9, R:u e 40, rif the Rules of Coun, for the enforcement of the judgment fendered by it in the case ... o~ 24 January 1949 the ~tlorney for t~e defencliint filed a 1110liOD J>".aying that the proceedings be sus~~ 1111\il al~er the provisions of secDecember 81, 1962 lion 17, ~ule 3, 'lhall have been com. plied with; in view of the fact that the defendant had died on 9 January 1949, and nplaining that his (attorney'~) failure to appeu at the resumpton of the trial OD 21 January was due to the fact that there was a proposal for an amic· able settlement and that·not having heard from the defendant <!esi>ite his letter to her sent on the 15th. he thought that the cue had been 'settled amicably. On 29 January 1949 both motions for dismiisal of the cue filed OD bebalf of the plaintiffs and for suspenaion of the pro·ceedings [led in bebalf of the defendant were acted upon. the Court inviting at· .tontion to its order of 21 Januuy 1949. ·which, according to it, diaposed of the two moliOD10 and funher holding that the case was ""within the jurisdiction of the Municipal Court for the uec11tion of the judaaient rendered by it in his case."' On 18 May 1949, acting upon a motion filed by the plaintiffs, the coun authorized the atorneyalor th~ plaintiffs to withdraw the 'IWD of Pl 76 in cub for rentals ~~S:.'i!.:r~nt 1u~~1:.~ "ii..:~r.i.'~ withdrawal is authorized in accordal)Ce with the judgment reD.dered in this case on 21 January 1949." On 21 June 1949 attorney ~or the defendant moved ·for reconsideration of the order of 18 May 1949, OD the around that it wall COD• tr~l'f to la'." and.·entered without j~ ·dictJOn. 111.11 mobon was denied.· A notice of appeal, an appeal bond and a 1ecord on appeal were filed, The appeal was certified to this Coun because only :f~tions of law are rais~ and involv· Section 90 Rule 40. provides: . "A per~ted appeal ab.all operate to vacate the Judgment . of x x x the municipal court, and the action when duly entered in the Coun of Fint Instance !shall stand for trial de nova upon its merits in. accordance with the regular procedw-e in that Coun. as though the same had nev<r been tried before and had been originally there commeneed. If the appeal ;s withdrawn, the judgment shall be deem· ed rmved and shall !Orthwith be ~ manded to the x x x mUDicipal court for execu~on." The defendant filed her an .. wer within the rime provided foir n _. ti<>n I, Rule 9, so she could noi be deemed and dedlU'ed in default (section 3, Rule 7). Even if she had failed to file her answer Within the time required and were dedared in default. the plaintif& w~ bound to present their evidence upon which judpient could ·be rendered. In accordance with the abOve quoted provisi ... of section 9, Rule 40, the pany who could withdraw the appeal was the appellant, because such withdr11wal would revive the judgment against "her rendered by the municip~I coun. Ob. THE LAWYERS JOURNAL ;Philippine. ~illlo ... . vinmly, tbe appelleeo for whom judgment wu rendered could not ask for the withdrawal of the appeal." They would nOt ask for the dismissal of the cue because the judgment secured by them would not be revived thereby and they would ~· left without judgment which was vacated upon Derfection of the ai>peal. It is contended that ~ 9 Rule 4~. is not applicable to appeals 'in detamer cases bee~ the appeal does not vacate the judgment but suspends only as may be inf~ed from the authorii; of the court to which th~ cUe ·has - appealed to order execution of the judgment during the pendency of. the appeal upon fail~~ of the ~,ppellant to pay to ~e prevadms party or to depoait iii court the stipulated rentals or the reUODable com~nsation, for the preceding mouth OD or before the tenth day of each month fo_r the use or occupation of the ~ DUIO's, as fund by the judRIDODt of tho mu~1~pal or justice of the -peace court. This authority to direct execut.ion ·expr'"81y provided for in section 8, Rule 72, m no way alters the provisions of section 9, Rule 40. on the effect of an appeal upon a iudgment rendered by a municipal or justice of the peace court. And pl'OQ,f of this is the provision in tJ.e same section that -uch execution shall not be ~ bar to the appeal !•king its courae unt~ the finpl disoosition thereof on its ments. When the defendant or her attorney fail~ to appear at the resumption of the trial on 21 January 1949 the court could not dismin the appeai became: it was not authorizec;I to do so. but was 1n duty bound tO hear the evidence of the plaintif& and render judgment thereon unless for good rMIOllS it deemed it jintified to postpone the hearina of the case. Nor could it dismiss the case and .grant the remedy prayed for, such as the payment of rentals, even if the defendant had vacated already the premises, without a finding that such rentah were really due and unpaid. for· a dismissal of the ·case, if Rranted. would leave the prev&11ing parties in· the municipal court bereft of or without a judgment. The f&lure of the defendant or her attorney to appear at the resumption of the tril!J of the ca"' OD 21 January 1949 could not be deern·ed a withdrawal of her appeal. And as there are no findings of facts upon which a judgment may be ba'sed and rendered. the order of 21 January 1949 is not and cannot be deemed a judgment of the case on the merits (section 12. Anicle VIII of he Constitution). ' As to the substitution of the· defendant, her attorney should prove the fact of her death and the court shall order, upon proper notice, the legal repraentative of the dece ... d to appear for her within 30 days or 911Ch t°"' u may be 657 'PliitlPPiiie· aicie:t•IOn11 ~rited~. -as i;nJvideci"·for'·iri.-~•iOrl- f7. ·Hui• 3. · The CO)irt ·coiild not Ciiler the )ega·J rej:>resentaive of -the decease to a.Ppear for" her because · it' considered the 'order Of 21 January 1949 as judgment Cittered in the case and riotice of the defendarit's death w8.s given it 'three days la:tei' or on 24 January 1949. · The trial court seems to be of the be, hef and opinion that the os:der of 21 J·~nuary .J 949 .is a judgment, where it held that failure of the defendaet or .her .attorney tO appear at the resuniption of the hearing · of the case on that date was tantamount to a withdrawal of the appe~. th~t the judgment of the municipal comt was revived,_ and that for that reason if directed the record of the ease to be remand"ed to the municipal court for execution. For the reasons above ~t forth--this is an error, because as ihe appellant did not withdraw the appeal there was no withdrawal thereof.. On the other hand, as already stated~ the appellces could not ask for the withdrawal -of the appeal becawe it· was not their -~p peal and would not ask for the. dismissal 'of the case · because •. if granted.· they would have been left without a judgment. The orders of 29 January aDd 18 May 1949..- being Predicated upon an erroneous Opinien that the order of 21 January 1949 is a .iudgment, which is not and is a nullity, -.re \let aside and the c.ise remanded to· tl-.e court bdow for fur~~. proceedinos in accordance with ·W.~., w1t~out costs. Paras, C.J., Pablo. Bengzon, Montemayor, Jugo, Bautista Angelo· and Labrador, J /.. concurred. XI Alicia S, Conzales, plaintiff.-appellee, vs. Asia Life /nsu1·<ince Co., deffindantap,,.llant, L-5188, October 29, 1952. Berrgzon, /. · ·,. INSURANCE: TENDER OF PREMI.UM REFUSED. -On Ap•il 15, 19'40, the defendant A'sia Life Insurance Company insured the life of G. The premium was p3.yable _annually og. _ or befqre April 1 S. The pt~~iu~s fpr the first two vears w~re duly paid. On· or before April 15, 1942' the insured tendered' t~e. premium for the. thir.d policY year to the branch· office of the -cpmpany in U )ilO. City, but the insurer refused to aci;ept it, be£ause the office w<:s clasing for the day on account of thethreat of bombing by Japanese planes. On Seotember ·22, 194.2 G died. Held: The ·refusal ta accept payment was no• iustified~- The insurer, therefore, ma:V not asset nonpayment. of the premium as a ·defame to: an action en the policy, The . .&118 · act of the instiref o~ &is agent in- refusing ·the b:nder. of -a p1:emium propeily made, wiU necessarily estop · the insurer from daimino- a ·forfeiture from nQD .. oayment. ]._ A. Wolfson for appellant. F ulgencio V c~a for appellee. DECISION DENGZON, J.: · On. April 15, 1940, ;he defe~clant American corporation issued its twentyyear endowment aolicy insuring the life of Ce!.o R. Gonzales and designating the· plaintiff Alicia S. ·Gonzales, · as beP.eficiary .. The premiulD' was payable an~ nually on or before April 15. The premiums for the first two years were duly ~aid. The . premium accruing April 15, 1942 was not actually paid. But aceording to the· court of first instance of hoilo, where this case wa's tried, '"On or btfore April 15, · 1942 ·the premiwn for the third policy year was tendered' to the branch offi~ of_ the companv .in. lloilo City, but was not accepted because at the time it was tendered· the office was do::ing fei the day on account of the tlareat of bombin'1 b-~ J apane'se planes. Ther~ is some coil.troversv between the parties as to this fact:. the defendant denying· that tender pf payment was ever made, while on the other hand the plaintiff's witness Carlos Soriano. who wa's the one who had been delegated bv the ine-urecl to make the oayment, coulQ. not remember the· nrecise date when he of~ fored it. But that there was tender of l>~yment of the third-near premium cm 01 before its due date, which however was not accepted for the reason- already referred ta. ma.v reasonably be inf.en:ed from the fact that the plaintiff'•i statei.. meat to- tbat effect in her. cilaim .. letter wDi.tten tO' the defendant on N.--vember 2. 1945 IExh. 1 }, was not chaUenged ~ .denied by the lattei:'s agent in lloilo, 'who simolv transmitted- said letter to the Manila office for· adjudication of the claim on the ba'sii of what was therein stated." Oru September 22; 1942 Cdso R. Conzales died. After th.r deliberation., · in. January l947 this suit was instituted. The defense was. based. oa. non-payment ef the premium, and the conseqaent lapse of the oclicv before the insucecfs. death. The Hon, Queruben Macalintal. allowed the plaintiff beneficiary to recover· tm: the ~1ounds:· (I) that the premium for April 15, 1942 had &een tendered on or 6 ... fcre that date but was refused. and (2) because non-oavme:it of that · oremium was excUsed 1--·· tlie occureDce of the war. the American insurance companv having clooed its Hoilo office on and after April 16, 1942. .THE. LAWYEKS JOURN'AL ~ · ni:ere ii 110qut.im,-;· tl'iac Un~ the terms 1>f the -polic;y, non-oayment. al prein~s~ ~on time . would came "lhe-- lapse thereof. There is also no· quatimi that the annual premium for same policy was due and payable on April 15. 1942 there being no allegation or claim. that such- smrender Value and accwiiulated &om .which the premium could be. ad·vaa.ced- by the_ insurer. . . . Appellant'.• sole aaaisrunent nf .error is that tbe trial ~ourt erred in not bold.ing that thi polic)'I lapsed by reason of non-paymeat of premi.11188. The only ar·~~t ill. support of this miplmmt is our decision in Conitantino v-. Asia Li& Insurance Com.nar·· .47. Of. G87. Suppl. 12 p. 428 and alhen, holding that llieoc.curence of war was no ei:cuse for nonpayineut .ol premiums.. In the ·face of our._ rJdings the lower coud'.s decision to follmving a_ contrary - dactrine must be held erraneous. . JiPw...,.. ~ does not follow that defend.ant is entitled to reversal~ His Honor declar.ed that the premium h.'td. been tendered on or before April 15. 1942, the inaulier refU..ing to a~pt it. "'becau·se the office was closing for _the- day on accou-nt of the threat of bombina by Japanese planes." That is a finding of fact which we find na reason to. distw:h. Tlie refusal t@ accept payment was ·not justified. The: insurer,_ therefore. may not assei:t non-payment of the pienµum ais a defense to an. actian. OD the policy. . "'The act of the inslD"er or hi! ag~t in refusing the tender of a pr~iu~ properly ma~e. Wlll necessarily estop tlie ins~er from claiming a foi:feiture· from non .. payment." (Varice on Insurance 2d F;.d. p. 294 Citing Meyer v. Irr•. ·co. 29 Am. Rep .. 200; Continental 1.ns. Co. v. Miller 30 N.E. 718). According to Corpus Juris, Vol. 32. tender to an agent authorized to receiye payment of premiums is obviously sufficiCiit to orevent a forfeiture for nonpayment. ·(p. 1311) · "When ~he aljlSUL'ed was -Involved Jn no default, but ~as at _the place 0wh~n a.nd where .payment was to be made, ready and wtlllng to p11.y, but wa.s prevented by the dlsa.blllty of the company to receive payment, from whatever aauae, he having had no agency In producing It, the comlllUIY Is not . entitled ~o claim the foi·relture, 01• to be reU~ved from Its obligation to pay the sum assured." (l(an~ttan I. lns. Co. v. Ww-wlck. aupro.) (Note, Corpus Juris Vol. 3Z p. 1306) Again the situation here de.scribed bears some 'Similarity to· the case where die insured made efforts to .. Po!'V at the office of the insular but could not P4lY due to the absence of the latter's agent~ (I) Randered before publlcatlon of our·v~•& Decemier 31. 19111!!'. nAb11ence from oHlce.-Wllll• lnabllltY ot' ln11ured to m&kll navment at tb11 or:. flee or Insurer beea~ or the ab81111ce of· Ila reprea11ntaUv11S do1111 not excuse nonpayment where It doM not appear that the effort to make payment wu made 4!urlng_ rea11onable omce hour... where 1n11ured ha11 made reasonable etforbl to P&J' during office houl'8 but 18 p?evented b1' aueh absence, nonpayment 18 n:• cuaed.'" (Corpua Juria Sec. Vol 4& p. "'74) Wherefore, it io - . lo affirm the decision requiring the insmer to pay with legal iaterat, the value of the policy mi' nm' the amount of the premium unpaid on September 22, 1942. · The question ~er the insurer was juatified in contesting the daim and oliould pay the beneficiary legal interest for the duration of the delay m. may C~i:': a:..":r:\'.'°ked, beeause plaintiff JJHlgmen! affirmed, with ~ Para., CJ., PaJ,Io,' Padilla, Monie. mayor, Ju10, Bauti.ta Anplo and Lalmulor, I/., concerred. XII Peoph! of the Phi/ippjnu, ploinliffa,,,..llee, vs. Bienvenido Capialrano, JeJenJant-appellant, .·L-4549, · Oclober 2Z, 1952, Ju10, /. 1. CRIMINAL LAW.: PENALTY; MINORITY CONSIDERED AS A SPECIAL MITIGATING CIRCUM· STANCE-The UCl1S!CI was more ·"than nine but leas than fifteen of age at the time he committed. the crime of treason. However, the accused acted with discernment, yet it may be lr?ader or commander of the raiding party. Held: Although his minorilY does D!ll Ol<empt him from criminal responsibility for the reason that he acted with discernment, yet it may be cousidered as a 'special mitigating cirCumstiances lowering the oenalty by I.WO degrees. :!. ID.; MINORS; ·SUSPENSION OF SENTENCE. - Where the accused ._wu more than nine but less than fifteen yean but was over eighteen years old at the time of the trial, Art. 80 of the Revised Penal Code providing for suape!lsion of senten~ of minor delinquents cannot be applie~. (I) Section 91-A Insurance Act as amended. Allcla s. Gonzales v. Aala Life Insurance Company. December 81, 1962 Miruel F. Trim for appelanL Se1i£i1ar General Pompeyo Diaz and Soli"citor Ermera!Jo Umali for appellee. DECISION JU'GO. '·' Bienvenido Capistrano was charged before the Court of Finl Instance of Que. zon province with the crime of treaon on lour (4) counts. He was found guilty bv said court and setenced lo suffer life imprisonment -and to pay a fine of Pl0.000.000 and the c:Osts. The attorney, d~ oficio of the appellant stat.. in a petition filed ·with this Court that alter having read, reread, and siuclied the evidence, he finds no substantial error Committed by the trial court and prays for .the af6nnance of the judgment. The evidence of record. eotabfahes the following; . The accused Bienvenido Ca.pibtrano admitted being ·• Filipino ~tizen. Count No. I Alejo Enriquez "W;ong and Carmen Verdera testified that ihe defendant was a so-called Y oin. whiCh. means an an:Ded oolclier of the Jaoahe~ Wearing a Japanese army ~ a guard of a Japane1e iiarriooo; To tlie .am. effect, the witn.,. Placer Canada testified. The defendant argued at the trial court that there was no evidence showing that he had been· appointed a Y oin or that he was a Makapjli. While no written formal apoointment was introduced in evid.ence. ~t it is dear that he was engaged in .the work of guarding the Japanese 11arrison. armed with a ttUl1 .and wearing a r apanae uniform and .taking part in the military drills of the Japanese army. Count No. [[ At about 3:00 o'dock in the morning cJ January 8, 1945, the defendant with other Filipino members of the Y oin and several Japanese solclien, all ar111ed, arrived near the houlle of Carmen Verdera ;n barrio Malav Municipality of Lopez, Province of Tayaba• (now Quezon), and ordered the inmates therein to open t~• door. The appellant and his compar.iom entered the house raised the mpsquito nets and ordered. the inmates to rise. The appellan• and his companions tied Graciano Fortuna, Carmen Verdera: Alejo Enriquez Wontt, Rufino Rivera: Maria Canada, Bris.ilio Canada, Reme---oOo-THE LA WYERS .JOURNAL Philippine DecleioM d;oo Anastasio. QoJwa Enriquez, Teodara Zamora. ~tacion Anutaeio. ancf · Pl- Canada wi1h a rope which wu used as a dothesline. 1fte intruden then sean:h the premUe. and seized I.Alejo Ei!riquez Wong $1,000.00, U. S. canenc;r, and P4,000.00, Philippine curR'DCy. They took Graciano Fortuna and the other imaates to the Japanese g• rlton at Lopez, T ayabu (Quezon) and then to tbe Yoin garriooo in the ..,.. toWD. The motive for the raid was that Pedro Canada, a brother of Placer, was a guerilla lieutenut in Lopez and Salvador Fortuna, son of Graciano., wu a soldier in the said organiZation. One. night, during the detention of Placer and her companions in the Y oin garrison, the appellant Ill/empted lo aexually abuse Placer and her girl companions, but when ·the women cried and the Japanese came, the defendant escaped.. Placer and her companions were released after one month when ihcy paid to the Chief of the Y oin and the appellant the llll1L of P2.500.00 in Japanese war n- This cbuge was t~fied to by the several victims. .... The accl!sed was more ihan nine (9) but less than fifteen ( 15) years of age at the time that he committed the crime charred. However, the court wl:Uch had tbe opponunity to see and hear the ac• cused at the trial found that he acted with discernment. It ohould be noted, furthermore, that be appear.d as the leader or commander of the raidi~ party. Although his minority does not ""empt him from criminal rQponsibility for the reaSloD. that he acted with discunment. yet it mav be considered, as a special mitigating circWllll:ance lowering the penalty by tWO (2) degrtes. Article 80 of the Revised Penol Code cennot be applied lo the accused beeauoe h<. was over eighteen ( 18) yean old- at ihe time of the trial (P-le vs. Eotela, 47 Off. Gaz., No. 11, 5652). In view of the above apecial mitig•ticg circumstance of minority. th:: penaltv impooed · upon the accused is hereby modified by ii!iposing upon him lour ( 4) rm~n of of r:rn~00o1::!d"~; T:.c1~:~if; Alejo Enriquez Won- in the 11uaa of 1'6,000.00 with subsidiary impri1011111ent i11 case of iattolvency in the payment of the fine and the indemnity, with COllts. It isooorJ~. Pablo, Benrzon, Padilla, Monf.,,,,.. yor, Bautilla Anrelo and Labrador, If., concurred. Mr. Chief Justice Paras took no part. 669 Decisions ol tbe Dlreetor ol :Patea.t• REl'iJBLIC OF THE PHILIPPfNES ' DEPARTMENT .OF CQM'iMERCE AND INDUSTRY . ; . IN THE PHILIPPINES PATENT·OFFICC:. Paients Decision No.· 2 Ser: 1952 EKPARJE A: i, !CASIANO A.· T. lcasiano; App.~l~an~ Adolfo A. Scheerer,: of Manila, for the Patent Appl. Ser. No. 2.3;° filed May 24, 1948 APPEAL FROM DECISION" OF .PRINCIPAL EXAMINER DECISION This is an appeal from the decision of one of the Principal Patent· Examiners rejecting the· application of ARISTEO TANTOCO lCASlAN0 :.for an' alleged invention, which the applicant has entitled, "Bamboo Board whid1 is Rigid, Solid, Light, and Durable as a Material for Building and Construction Purpose;, and which ~ Res:stant to Heat, Weather, Abrasion, and ' to Deteriorations ·caused by Fungus, Termites or other lhsects." -The application i's for a product in· vention, containintt three claims as fol· lows: "(l) A BAMBOO BOARD. rigid, to~g''· solid and durable, mi:Lde up of two lavers or 'plys of woven bamboo strips, Impregnated or co"ated with adhesive, and bonded together by application of pre£sure with or without, heat, depending on the type of adl\eslye used, to be use"l as a · building O•' construction materla! and for other uses: "C2) A .BAMBOO 0 BOARD whl.ch has the same properties and similarly mnnufaCtua·ed as the bamboo board def'· crlbed under claim No. 1 above, but more rigid. heavier and tough.er, being made up of three o rmore layers (:>lys) of woven bamboo :Jtrlps; and "(3) A BAMBOO BOARD which h1H1 ·essentially the same properties and Is slmllai'ly tnanursctund as tile bamboo bOB.rd~ descirlbed under claims Nos. 1 and 2 above, but which Is lighter and flexible, being maOe up of a single layer or ply of woven bamboo strips." . the making of these boards is described by the applicant in the specifications. as follows: · 660 "My boards com•!sts of bamboo strh)!i and an adhesive of synthetic origin, such as phenolic resins. urea resins, etc. The adhesive may also be of animal .origin, :;c~e==ta~:e ~~;~1:'.0::c:1::m::~~!:~:·:r:~ sins." rubber lat~, e'tc . ." o~ ~ coi-n.bliia.~11,;1:1 of any two or more of the above type~ of adheRlves; bUt If adhesive of animal , ·l~11ve:e~t;:;:· ::~g~:le~s us,d. th~ _pro_du~t "In preparing the board, strips of bamboo are tmpreg~S.ted ·or c~ated With synthetic resin adhesive, such as phenolic . or urea_ r~slns. The strlpS are the~ woven accOrdli:lg to the desired pattern and two 'layers (plys) of woven strips are pef.m8.rient1y b0nded tOgether by application of pressure by means of a press, or some devise which will. give $. slmlJar action, with.or wlt~oui heat depending on the type of synthetic resin adhesive used. If so desired, the. strips· may first be woven before th~ application of the adhesive. "For a more rigid and tougher board, three or more layus (plys) of adhes~ve treated woven bamboo strips are plybounded. For a lighter board with someflexlbllity, o~Jy oqe layer (ply) of woven strips · ls us·ed. To secure more a.rtlstlC effect, the ba~boo strips may be' stained with any desired color before ap:.. plying the adhesive and· berOre ~eav· Ing." The Principal Examiner rejected all these three product claims on the ground of lack of nOvelty and lack of invention. On the point of novelty, the Principal Examiner was of the opinion that the ~amboo prod-Jets described in the three daims were not ner.v in the sen~e of Sec. 9 of the pci.tent law, in that: (a) bamboo products become iough and durable and light because of impregnation with resin's, such as phenolic or urea. resins, were matters alre._dy within existing knowledge, some such prodi.tcts having been disclosed in United States Pat<nt No. 2,352, 740, granted to Shaut•on o> July 4, 1944; (b) boarding moterials con•;;isting of separate thin plys, become solid and rigid because of bonding toge~her with adhesives ( amon-g them, phenolic and urea re!ins) and pressure, were known .to have been manufactured in the past, the well-ki;,o~ .. plywood" being a partifular example of such type of boarding material. On the point of invention, the Principal £.Xii.miner was of the opinion tha! there could pdssibly be no inve~tion ( &;i THE LAWYERS JOURNAL tl)iS: Word ·is upd~toocf iQ. Pi!Lb}Dt la.w) in. a boai~ing m~~ial f~ioned in pr,actically the same. ~ay .an!i PQl!esseQ t:Ja· sical)y of the s~.e char~cteristi.a as "plywoo~" •. the· o;ily difference exis~ between the two boards b~ng that, while the one is madC. from bamboo i:;lys. ·th"? other is fashioned from wood plys. The Principal. Examiner believed .. -the, applicant's. boards to.be a.case of mere .W>stitution of ma\OJials . .(bamboo .fw woOd)' 'Which substitution, he said, can never. under the well settled principles of tho patent law, impart tn any device or product the dignity of an invention. Reference to the patent to Shannon. cited by the Principal E;.xam.inei-. th~ it to be for a metho4 of treating bamboo wih resin's for the purpose of impartiQg to -it certain characteristics. · Claim 2 of the said· patent, w_hieh may be considere~ .as reP!esentative of all the claims,. is herein~der quoted. . "2. Method or Impregnating b•Q?.k!>!> containing cells and membraneous cell walls with a synthetic resin o:f the group consisting of phenol!c aldehyde resln11 and urea aldehyde resins, whleb coniprIses soaking the bamboo In water until _the cells and cell wala are lmpregna.hd with water and thereafter, without sulSstantlal drying of the bamboo, soaking It In a watery solution comprising the synthetic resin untl.1 the cells and cell walls are Impregnated with the resin, heating the treated ba~boo In a. humid· atmosphere to decrease travel of. the resin to the surface of ·the bamboo. and to lnsolubillze the resin and deposit It within and around the cells and cell walls." Note Shannon's rriention of the u'e of synthetic u'sins, · such as phenolic and urea resins - the same resins the a-ppli~ cant ICASIANO employs in conn~tion with his. alleged inven~ion. Paragraph 3, pa111e 2 of the specifi • cations of the same Shannon patent deacribE!J the bamboo product resulting frOIC p;oce:.';ing the raw material with 11henolic and urea re!ins, in accordance vrith the m.e~hod outlined in Claim 2. · "By proceeding In the manner d"· crlbed herein It hos been round poHlble to control the characteristics of the llnal product. The treated bamboo Is some· what heavier than the untreated material but ls much stronger and, on' ttl..e basis of equal strengths,' a piece of bamboo treated In this manner Is lighter lri weight than untl·eated bamboo. The December 31, 1952 flnlll'hea product may be u11cd tor poles for pole vaulting, oars, sailboat masts. shart!I of golt cl.ulii:i' aD.d pi;ilo. malle~s. brlstle>1 for brushes, ele. Where the resin b~ baked hard after the wood~' base material 11:1 treated, the composite h.i.s g1·eut <llmem!lonal stability under any atmosJJherlc condition and Is resistant to abrasion; It Is thereto re useful fo:· propellei·s and other parts of aircraft, patte1·ns for ~astlng, phonograph needl~s. etc." Note that Shannon aS!erts that the resulting bamboo bamboo product has the followini characteristics not found in ·the uni>rocessed- product: strength, lightness, stability, resistance to abrasion. Excluding rigidity and soliaity-qua!:ties to be expected when a number of thin, 'swaying plys are firmly bonded together - these are essentially the same attrib~es (rigid, tough, solid, light and durable) which the applicant !CASIANO claims, both in hi~ ~pecifications and Claims, for hi$1 pheiiol-urea-resintreated bamboo board. We may reasonably assume that, like the applicant's prodllct, Shannon~s is also resistant" to heat, wa:ter, weather. fungus, termite!$, and other insects, sinCe such attributes in applicant's product rnsult from treatment with phenolic and u1ea resins. and Shannon's is similarly treated. From the foregoing, it should be evident that, in respect qf il's special at.tributes or charace'ristics - characteristic;i which would be absent, if the bamboo were not treated with phenolic and urett rt:sins - the type of bamboo produc".I claimed. by the applicant ICASIAN.O as_ new, is not in fact new in the acct·pted sen':ie of the patent law, since it is clearly anticipated by Shannon's earlier bamboo product possessing the same aaributes or characteristics. Reference to lfferaure on plywood, gluea, . adhesives, and resins shows t.he following"So ·far as we can trace, one of the earliest mentions Or the word "plywoocl' 1n any st:m<liu·d dlctlona1·y aPpeo.ris ln the Appendix oi the 1031 Edition of' Chambe1··1:1 Twentieth Century Di.ctiona• ry a1:1: •n., o. thin boa1·d made from tlwee very thin luye1·is u[ wood, the grain or the middle layer at l•lght angles to the g1·D.1n of the outer two, cemented together uncler 1wcsisure.' "Mr. Onion, in the edition of the Shorter Oxford English Dictionary pre· viously mentioned, gives the origin of ihe word as being 'U.S. 1917 form of P~y (•substantive I: 'layer or thicknes5') wood.' 'A com1Jound wood mude or three (Hv<..', etc.) thin laye1·s glued or cemented tc> , .g_ether under 1n·essw-c. anll .arranged i-,., that the grul11 of one layc1· runs ut right December 31, 1952 angle3 to the grain of any adjacent layer.'" (Plywood111, their Development, Ma• nlifRture _ .and Applic tion by An<\fe-.r Dick \Yood ancl Thomas Grny Linn; Chemkal Publlshin~ ('ompuny, Inc., Brooklyn, N. Y., U.S.A. 1943, 1iage 9) "PLYWOOD: A product made up of layers of veneer bonded with glue, often bonded with synthetic resin. Alternate layel'a have r.i;ain at right anglts to increase strength and to reduce the tendency to 'shrink and split." (Handbook of Plastics by H. R. Simonds, A. 1. Weith, and M. H. Bigelow, 2nd Ed., D. Van Nostrand Company, Inc., Ge11eral Glossary, p. 1428) "The glue's and adhesives used in weodworking and plywood fall into six principaj groups, w;ith Beveral miPor t]•pea that will be mentioned briefly: animal veget8.ble casein soya bean blood albumin synthetic resins, pl~enollc and urea miscellaneous" "Resin -A raw mnterlal, made iJ)'nthctl, co.Uy, which Iii the basis for JJroducts called the plaiJtlcs. Certain resins can be used to adhe1•e pieces of wood. anJ these are called re"sln adhesives, !es,; correctly resin glues. These adheslv~3 are of relatlycly recent developmer.t and are much more durable than the older types of conventional glues. 11Phenollc resin adhesives are made from phenol and formaldehyde, harden oniy In the presence of heat, and hre tue most dur~ble. They a1·e available jn liquid, llOW<le1', and Him !orm. "Urea. resin adheslve1:1 are made fL·oru ureas and formaldehyde, ha1·den when heate1l and In the presnee of certain chemlcnl1:1 (catal)·sts or ha1•deners) this hardening can be rapid and !t~ moderate temperatures." <Modern Plv· wood by Thomas D. Pel'l'Y, Fourth Printing, 1945; Pitman Publishing Corporation, New Yo1·k and Chicago, pagtls 55 and 13). The foregoing technical informa!rion confirms the Principal Examiner's finding that, except for the basic mater!.-.al used in each case (wood, bamboo), there is ab'JO)utely no difference between plywood and the applicant's bambo? board, either in the process of manufacturing or in the resulting product. Eacl. consists of a numbe"r of relatively thin layers, or plys, bonded together into a solid, rigid board, tough and durable, by application, firstly, of adhe·sives (among them phenoli~ and urea resins) and, secondly, of pressure. Upon these facts, it appears that th~ Principal Examiner's decision, -ejecting ~II the three Claims in que'.stion was -no.~ m error. The bamboo board of the type chc:THE LAWYERS JOURNAL Di;ci:sion::; Of The Director OF Patent• racterized in Claim 3 (single-ply) is undoubtedly a new commercial product, but· it tertaioly is not a n~ or novel p1cduct in the sense of the patent law. The ply itfelf (locally known as )a~ale) is old. What applicant claims as patentably n~w is the cld .sawale become rigid. le.ugh, durable· and light through impregnation with phenolic or urea resins and through the applicatjon of heat and pressure. Such a type of sawale cannot be a patentably new product within the purview cf SeC'. 9 of the statute, because, a:i hereinabove indicated, the Shannon patent, granted four year's before ·the herein applicant filed his patent application, had disclosed that bamboo--that i::, bamboo in the raw or as maoufac. tured into any specific article of commerce - results in a stable (rigid). tt1ong (tough), resistant-to-abrasion (duri.lbi'e), and relaivelv light product, when in.pregnated with phenolic or urea resins and heateQ. Section 9 says that an alleged invention shall not be cotrsid~r ed new, if it has been described in IJ f;!rinted publication in the Phil~pvines or ebewhere. Shannon's natent, describinlJ the qualities of bamboo products treated v•ith his precess (which is sub£tantially :;im.ilar to the i::rocess disclO".ied by the Buplicant herein) is a printed public'ltion, since United States patents, like Philippines patents, are. afer issue, print;ed and ccpie'.; sold to· the public. Applican't alle5':ed invention, as characterized ii' Claim 3, is thus not new 1 having been described in the earlier Shannon ·patent. For the same reatons, while the bamboo boards characterized in Claims I and 2 (two or mere p}ys bonded together, each ply being of the Claim 3 type) are new comm'ercially, they cannot be new in the patent-law sense. Except for the 'substitution of bamboo olys for wood plys, the~e bamboo boards- are in aH respects the same as plyWood, both in the method of manufacture and in the resoling product. As shown in the cited Plywoods, their Development, M anufaciure and Application (1943), plywood and the method of its manufac· ture have been described in printed pubiicaticps as far back as the year 1931. They are described in the Handbook of Plasti~ (first oublished July, 1943, <;econd ed., Jan., 1949), and mentioned m Modem Plywood (194S). There certainly can be no invention involved in the lwo types of bambot> board in question. Thev constitute no more than an exten'.>ion of Shannon's original lhought and of the original conception of commercial plywood. For tliat extemion the skill of the mechanic was sufficient; the creative geniu'l of the inventor was not necessary. In Smith v. Nichols,· 112 L. ed. 566, the -Supreme Court of the United Staks said: · 661 Ceci1ions of the Director of Patenb "x x x a mere carrying forward or a new or more extended application of the original thought, a change only in !orm, proportion or degree, the substitution of e(1ulvalents doing substantially tho earn~ thing In the same way by substantially the same means with better results, le not such Invention as will sustain a patent." Speaking of the U. S. patent law, which is 'similar to outs in respect of th~ requisites for patenr8.bility, the same tribunal said in Cuno Engineering Corporation tJ. Autom.-:itic Devices Corporatiori, 86 L. ed. 55, "Under the statute, the device mu~t not only be new and useful, but it mus[ be an Invention an{1 diseove1·)·· That Is to say. the new device, however use(td it may be, mu~t reveal the flash of creative genius, not merely the skill of the calling. J( it fall~. It has not established Its right to a private grant on t!'.e public domain." It is urged by the applicant that his two types of bamboo board should be regarded )ioth as novel and inventive in that (a) prior to applicant's alleged invention thereof, no one in the Philip· pint:!s had ever thought of processing sawak and of bonding to~ether several sheets of sawale so processed into a solid, thick, upright board, in the manner disclosed in his 'specifications; and (b) in that by his alleged invention he· has s..ibstantially advanced the sawale-making industry, making sawale, converted into the form'J he has conceived, useful for multifarious purposes, some of which purpoSe were impracticable before -"for walls. partitions,· panels, ceilings, shingles for roofs, door, windows, tiles, floorings. etc. and also for the manufacture of screens, table-top's, boxes, decorative 11-rtides, veneers, etc." (Specifications, p. 1, lines 6-10). Conceding all these, the three Claims i!l question are still not allowable, for, after everything ha's been said in favor of the applicant's P.riority and of the many new uses of his bamboo .boards, said boards still lack the one quality needed for their patentability - invention in themselves. The patentabiliy of a product claim, it has been said, mtr.;t be found in the product itself, and nm solely upon alleg~d new functions or um thereof. In re Lewis 108 F(2d) 248 (1939); and in claims for structure, patentability, it has been declared, must be> found in the 'Structure, not in the results obtained therefrom. In re Luck, 108 F(2d) 263 (1940). In Buono v. Yankee Maid, 77 F(2d) 274 (1935), the famous Judge Learned Hand said n•ust be exclusively in the conception of t:he product; that, while that imposes o that a product Claim must stand upon its own invention; that the invention, severe standard, it is not severer than it 662 should be if the mcnopoly is to extend, as it does in such cases, to the product however made; for unless con~eption alone is the test and if the inventor m.ay eke out hi'J right by recourse to the ingenuity involved in any process or ma chine, he gains an unfair advantage, for the claims cover the products produced by processes and machines to which, by hypothesis, he has contributed nothinsc. The"Je considerations compel an affomance of the decision apoealed from, rejecting all three claims of applicant's AopJ. Serial No. 23. Said decision i~. therefore, affirmed. · AFFIRMED. This decision is final for the i;.urposes of Chapter XIII of the patent law lel"lting to aooeals from the Director of Paenrs to the Supreme Court. Manila, Philippines, June 30, 1952. <SGD.) CELEDONJO AGRAVA Director of Patents SOME INTERESTING LEGAL FACTS SAID OF THE U. s. PATENT OFFICES, WHICH APPLY TO THE PHILIPPINES PATENT OFFICE The Judicial Nature of the Functions of the Patent Of/ice. The U. S. Supreme Court in Butterworth, Commissioner of Pa'tents v. th.! U.S. 28 L. ed. 656, "The general 9bject of that system !"I to execute the Intention of that clnmn of the Constitution, al'ticle I., section VIII., which confers upon Cong1·ess the powe1• 'To promote the progress of sci en~~ and useful arts. b~· securing for limited times, to authors and lnv~tors, the e:ic elusive 1·ight to theh· respective writings and discove1·ies." The leglslntion bas~d on this provision rega1·ds the right oi Pl·operty In the inventor as the medium of the public advantage derived fro1l' his Invention; so that in every grant l f the limltec1 mono1>0J~· two Interests are invoh·ed, that of the public, who are tho grantors. and that of the patentee. Ther" are thus two parties to eve1 ·y application for a patent and mo1·e, when, :H> in case of interfering claims or patents, othei· private Interests compete fo1· preference. The questions of fact arising i 1 this field find tllelr ;.nswers In E>\'Cl'Y department or J>h~·sical science. in eve ... , brnneh of meclmnlcal urt; the quesllo;~s of law, necessary to be ?.J>1>lied in the settlemE>nt of this class of public an;l p1•lvate rights, have founclcd a s1ieclal branch of technical ju1·is1wudence. The investigation of e\·ery claim J>l'esentecl involves the adjudication of disputed questions of fact, u11on :1>clcntiric 01· legal Pl'inciples, and Is, tht>retore, essentially judicial in its clmrncter and requires th.'l Intelligent judgment of a trained llodv scle?ce and art, h!a1·ned in the hlsto!"~· of Invention, an<l procc('cli11.;- by !i:x:~d rules to systematic conC'luslons:• THE LAWYERS JOURNAL The U.S. Coun of Customs and Pat.?nt Appeals in California Packing Cor#J. v. Sun-Maid Raisin Crowers, relative to the. trademark Sun-Maid, 64 F(2d) 3iO, "'In the c:u•e of In re Barratt's Appe"'.1.1, H A1111. D. c. :!ii5. it WU :stated, with 1·cs11cct to proceedings In the Patent Office. that thcY are so neaa·Jy akin to judicial 11rocecdings as to I.le most appro111·iatt•ly designated as llUasi-judicla.I'. Sec'. ahm. American Ft·uit Growers, Inc. '" John B1·aadland, Ltd., 'ilii F. (2d) 443, 18 C. C. P. A. 790." The Di'strict Court (Dist. of Columbia) in Carter Carburetor Corpora"fion v. Commissioner of Pattnts, 73 U. S. P. 0. 278, (1947): "(f) 8. The exercise of his ju1·lsdlctlon hy the P1·1mary Examlne1• upon any re· (erence to him bY the Examiner of Interfe1•ence of a motion to shf[t the bur(}e~ of p1·oof calls into action the powerB and functions exercised by a judge lo th-i admission, rejection and evaluation ot evidence and particularly so in an interference, such as No. 82, 262, wherein n. party thereto claimed to be entitled to the benefit of the filing de.te of an ear· lier joint application filed not by him· self alone but by himself and another. Such jurisdiction is truly judicial. "11. Hunt's. petition to 'review and reverse the ruling of the Examiners of Interferences dismissin .... Hunt's motion to shift the burden of prpof' was not ad· c!rnsed to the Commjssioner in view of' hii:i supervisorv authority. The action taken thereon by the Commis'sioner may not be upheld on such hypothesis. His order of July 19. 1946 was not an exercise of supervisory power but was a review of the decision of the Examiner of Interferences, and in disregard and viofo.tion of Rules of Practice in the Umted States Patent Office Nos. 97, 101, 116, 122 and 124 which have the force and effect of a statute, x x x x A petition may not be entertained by the Commiss1on~r when it seeks to obtain inclirectl:l·· a review of an examiner's judicial or quasi judicial decision from which no direct appeal lies by merdy misnaming the action and calling it a petition. Goss ·1. Scott, 1901 C. D. 80; Manny v. Easley v. Greenwood, Jr., 1889 C. D. 179, 181; Waite v. Macy, 246 U.S. 606, 608. .. ( 6) 12. The executive supervisicn and direction which the head of a department may exercise over his subo:dinate in matters administrative and executive do not extend to matters in which the subordinate 1s directed by statute or rule having the force of statute to a,ct l~:~~a~~·H~~. ~liuL.jS~iSi0_1.1.y. Butter· The Rule.s of Pradice of the Patent Office The same district Court in the &!Ulle cue: Decembel' 31, 1952 P•tent Rule. and Regulationa "(3.) 6. The Rulea of the Patent cations and decisions he is required to Patent Office, or who shall, with Ji. Office have the force of a statute antl make. and the modes provided by law. tent to defraud in any manner, deceive. bind' th Commissioner according to which, exclusively. they rniilead, or threaten any applicant nr =d :i1 of&ci:f. :r:°'he P~tent Office as may be reviewed." prospective applicant or other person upon applicants for patents and parties having immediate or prmpective busito interferences. Westinghouse Traction PRACTICE BEFORE THE PHILIPPINES ness before the office, by word, circular, Brake Co. v. Christensen, 243 F. 9()1, PATENT OFFICE IE.tter. or by advertieing. The reasons 905 (C. C. A. 3}; Andenon v. Walc;h, BY ATTORNEYS AND AGENTS for any such '.m!pension or exclusion Wfd ~of.d2~~s~~·u;P'Q c;,.3~·~~~ [Republic Act No. 637] ::t~!'" t~o;ec~:db. ~~':i":.; 347): /n re Korton, 58 F. 2d 682 (13 "Section 7. x ·x x x x x. the petition of the person 10 refused liSPQ 345) · Interference Law and '"The Director may pmcribe rules llnd m:ognition or So suspended or excludtid Practice, bv luvise and Caesar. Vol. I. regulations governin• the recognition of by the Supreme Court under such coop. 25, slO; Defendant's answer to Pa- attorneys, agents, or other persons repre- ditions and upon such proceedings as i's pa.,.. 8 of Amended C~plaint." senting applic.ants or other parties be- the said Court may by its rules deter/urisdiclion of the DePGJ:tmt;nt Head fore his office in patent and trademarks mine. The ·u. s. Supreme Court in the same cases, and may require such oersons. :it- "It shall be unlawful for any ~n case cited above: 'torneys or agents: before being recogniz- who has net been duly recognized to ed at representatives of applicants or practice beore the Patent Office t~ '"x x x x The condusion cannot b~ other per'5ons, that thev shall show that hold. himsdf out or knowingly permit resisted that, to whatever else supervisi.c;>n they are of good moral character and himself to be held out as a patent Qr and direction on the pan of the head of ill good repute, are pGSlessed of the ae- trademark solicitor, patent or trademark the department may extend, in respect cessary qualifications to enable them to agent, or patent ·or tradema:rk attornev. to matters purely administrative and render to applicftnts or other persons va~ or otherwise in any manner hold himself :E:!"~~= :r ~h~ c::issi'o!:'ie~ luable service. and are likewise compe- out, either directlv or indirectly, as autent to advi'.se and assist applicants 'J1' dte'n°'tize 01 d ttroademreprear'kentm' •thPP 01!ircabnu~.·nfessor P"<" Patent& in thoiie c~ in which, by law, o1her persons in the presentation or pro- .. , behe ii appointed to exerclae his discretfon secution of their applications or other fcre the Patent Office, and it shall be judicially. It is not consistent with the business before the Office. And the bi- unlawful for any person who has, und:r idea of judicial action that it should be rector of Patents may, after notice and the authority of thi's section, been c{is· subject to the direction of a superior, in opportunity for a hearing, suspend or barred or excluded from practice befD"'e the sense in which that authoritv is con- exclude, either «enerallv or in any par· the Patent Office, and has not been re~ ferred upon the head of an exeCutive de- ti"-ular case, from. further practice bef9~~ ir.stated. to hold himself out in any partment in reference to his subordinates. bs office any penons, attorney, or agent manner whatever as entitled to represent Such a subjection takes froin it the qual- shown to be incompetent or disreput- or assist persOns in the tran'taetion of ity of a Judicial' act. That it was in- able, or guilty of grO'JS misconduct, ot businea before the Patent Office; and tended that. the Commiuioner of Pa- gross discourtesy or disrespect towards i:'DY offen~ against the foregoing protents, in i!SUirta or withholding patents, any Patent Office cfficial or ex&mine; vision shall be a misdemeanor and b-. in re-iuue'1, interferences and extensions. while the latter is in the discharge of his punished by a fine of not lea than one should exercise quasi judicial functions is cfficial duty, or who refuses to comp.ly hundred pesos and· not exceeding one -•~pparen~-'-t_lrorn~-the~_•_at_u_re~of_th'-e_e_xa_m_i_-~wlth~~th_e~ru_l~_,_a_n_d_~-=.lu_l_at_ion~•-•_f_t_h•~~t~_.ous_._a._nd~n_"5ol.-'--"~~~~~~~ Demi.on on Montano Ball Plea Peopk of the Philippines, plaintiff, o•. /u.tfnfano S. M onlano, d. al., acc~sed. Crim. Cme No. 11396, December 2, 1952, Court of FiraJ Instance of Cavitt. The detennlnatlon of the IJlen £01· brill by, Senator Montano Is one of the spectu.cullC' lepl stell8 taken by ou1· courts or justlc.,.. Due to the hlc-h position being helcl by thP. defendant and tile Important tine11llons Involved therein, we ntt publlshlng this dechdon for the benefit or the remle1·s.-The Edihr•. ORDER 1-tNTRODUCTORY OCAMPO, J.: Thia cnae Is befo1·e this Court u11on the appllco.tlon [or bt111 of defendant Juatlnlnno S. Montano, who stands chal'J:ed heoreln to· gether with aeveral ot11e1·s with the complex crime of kldnnpplng with multiple murdrrs and frustrated murders, con1mltted In the manner specified. In the 0 lnformutlon of the Special Prosecutor dated September . .29, 1911.2. No ball was 1·ecommended, the charge December 81, 1952 befng Cor a cnpltal orrense, (Sec. 5, Rule 110). The infol'matlon of the SpecL'\I Prosecutcr was directly lodged with this Court. Aftr.-r conducllni:- a p1•ellmlna1-y Investigation, tMs Court dl~poscd that a wm·1·ant be lsn·ed for the m·rest of Justiniano S. Montano and 11ome or his co-accused against whom the existence of a "probable cause·• hnd been shown. (Sec. 4, Rule 101). Hence, th<' Instant IJetltion for ball which was opJlnaed by the Gove1·nment. In the determination or th(' 1·lght of the accused to be admitted to IJnll, 1n·ecedents d1•cree thnt It is now mandato1•y to conduct a separate p1·0C'0edlng (Gerar<lo v, Judge of First InstuncC of Ilocos Norte, G. R. No. L-3451, May 29, 19i0), which would ln111el'.!'tlvely lnvoh•e lhe pi·esentll.tlon of evidence In l\ntlci).ia.tlon of the regul11r trlnl, neve1·theJNS this Court cleclded to g1·ant the request of counsels fo1· the petitioners Cor a si.rmrate hearing. This hearing wi.s summa!',r In nature. In the Interest <If J1:11.Uce-, J1owe\er, both pnrUes were afforded~ a wide THE LAWYERS JOURNAL lc.tltude In the presentation of their reapeclh·-e evidence, both In chief and In rebutta1. 'l:he hearlq lasted during the month of October, In the cou1·se of which an Amendvd I~fo1•matlon was flled by the Special Pl'OSE'<"Utors on the 3rd or the snm-e month. At the outset, the C'ourt lald down Ila c•ear-cui norm of conduct - that the hearIr.: ahnll be conducted heedless or the high position of the person Involved, and that eech judicial actuation and ever)· ruling to 1'&. laid down shall be unmlndtul of and Ir passive to the rnnk and eminence which th. petitioner bolds In Congreas - In order to stress and vouch to the public at lfu ge who have been following these proceedings the supremac)· of the law and the prlnclple of equal Justice before the law. II-FACTS OF THE CASE (a) Evidence for th, proaecution. Tbe concrete evidence for the prosecution discloses that at about five o"elock In the afternoon of .Auguat 31, 191! (t . .1.n, 71) H663 Deoielon On Mont•no B•il Plea vel-al · peraoils, nine In number,· idiil11tifled tO b ~ ·:Magno Iruguln, :Mariano 'le Raya, Leo· nardo )IJanlclo alias NaL•clong Putlk, A"nto· nlo Macailan, Eugenio MaG-llttn, Rafael Da.· h.aag, Itla:dmo Sarin, Slmpllclo Esgueh-a and Lilm·b Sl1-1on · nflii:C'mhleod In the house 0£ Magno Iruguln nt· hm•a•lo Tejero; General Trlafl, Cavlte. Sh0rtly aU.rr, tlir)· boarded iL four-door black nutomohUt> ·ct.R.n. 11) tor l\Innlla (t.s.n. 56: t.11.n, :!. S<>11t. 30, 1962). They went to the houHt' oC Senator -Juan.:. r.!flno S. Montano at the cornea· of Pl ·Y Mnrgnl and D. Tuazon· streets, Qnezon City, arriving the1·ent ·about dusk, nag·a•gaw ang dilim at liwanag) (t.s.n. 268, !9'1). On thnt <ln)·, Augu1-1t 31, J9ii2. the> Jilin 11et at C:09 p.m. (t.s.n. 416). TeJWo,· Generi.1 ·T1·las. ·cnlte; stopping .a.t E,"n.ilkayn.n WliC're Eugenio Magltan &118'hted (~S.n. 66). In8ide the ·<'al', Iruguln remind• e<l the g1•oup that on• Tuesday, September 2, 193! at about aeven o'clock In tile ever.lrig, th'eY were ·to meet In the uninhabited lo~ nen1· lllwhouse. (t.s.n, 10, SepL 30, 19i:!; t.S.n. 312). Jn the E'\·enirig or September 2, 1962, Rf! ag1•ee<l, M11.rl.mo de Rayn, Nar()ong Pullk, Antonio l\la(•rillan; Pio 00'11x.nles. :Marciano Thtlbll..ng, AleJnn<lro Snlsntln, SlmpllClo ·Esg~e1·ra, Co1·iiello Monzon, Lauro Sison, Ma.• xlmo S11ria, G1·egorlo Buklatln, Ponciano Ruklalln, one alias J4uls nnd another alla.111 Serapio, Flo1•<'1iclo lfnnalo, 1'1a1oeos Mnl'alang, RArael Dalusag and othei.·s boai'ded a wea11on cu1•rie1· n<'RI' the m11.1•ket place at The> g'l'Olll, w~reo met nt the gntt> hy guat":ls Cl.:>neml Trl;1s nnd proceeded towards Mn· l'r the l'llont:mo 1'l"siden<'e who. nrtC'r eon- rngon<lon. Cnvlte. (t.s.n. 38, 69,. lO ,t, 18, Yersln~ with ;\£agno Jrui:uln, allow<>d then: SeiJt. 30, •10521• 'rhey were armed with l·1 go inside tilt> 1>remb1~ where they walte(I cl.'rblnes, Gaa•ands, Thomt1SOns, and ptstoia, Jn the gnl'den. AftN· n sho1·t white, they (t.s.n. 1% & 13, Sept. so, 1952), Upon reach.we1'C!' tolll to come lmil<le the house. In no Ing Ba1•rlo Tcje1·0,. they #'topped In front or :::~~e;;::;P/~::;11.n::d 8~8::c~n:l~i.~ t::; lhf!! bo1.>se _0£ Magno lruguln, whe1·e the groqp h:id previous!)" assembled be£ore going to :~n ~:~~~e:~~~nlu;::~. i:t t~~s~ :;::~:n!r~; Srnator ~lontnno's pince on Auirust 81, llii. Six otherR, including Mn~mo lruguin, Morcn•nny things at home. (t.s.n. 59). They pro- n<• and Not'um. bo1udf'd the weapons c11.rrler CfedNl lmmedl.ate)j.· to the ground floor O( Which tm\·e(ed in ti1e direction o( lfaragonthe hOU!ff!: (t.s.n. 58), where lruguln lnta·o· dori. The,· we1·e about 21 or 23 In· number. d1.'ced N11.rdong J'utlk to Senatoa· lofontll.no, ll1»1t of them wo1·e fatigue and khaki uni• ll'lformlng the latter tlmt this fellow (Nar.- forms wllh in•my_ pntchee, with the u:cepdonc ·Putlk) was· the "bol·". (bata) whom lion· or Cornelio l'lhnzon and Pio Gonzales they could t1·ust nn~l <le1>end upon (t.s.n. 3, who we1·c gtn·bed In civilian cloth.ea &lid Sept. 30, 19i:!). Xni;dong Putlk shook hands t;cd ,\·ith 1·01>e to gfre them the appearance ~·~t~0:e:i:i:eM~:t::~: •:~:::~i~~a~~:h~:~: or "·Huk" ci111tlvea, (t'.s.n. 40), Upon l'eachlr.g the corner nnd just •before ::::::. !:a:~~a::, ~~a;c1~;o:~:~::~ r:1;~ turning right to the plaxn of llaragondo~ wa1•d to ·tha,t p1·omise· (umaasa siya) (t.s.n. :~l:e:'O~~e a:~~1:::.l>~0::1~~=~d 1:h:~~=I~:'; :~~ t!:e a:~:~:,. 1:;:;n:C'~:edcon::::·~:e: as guards at·t:hnt corner, while tha otbers low voice with Iruguin, de Raya, ~ai:dong r.1oved towards the nrnnlclpul bulldlnc. Upon Putlk nnd Dalusng ";ho .all 11ut a little :::1:~;:: ;~~~:11;~0 u:i:~~eD:ill~::; a1:art from the othe1•s. Then and the1·e, s;. or a PC ~aptaln with two hara on his c11.p, =~~ ~1::;:; ,~;l~~n~::a ~~:.~: /: · ~·=~:~ l'.J>p1•oached the polit'emnn on guard and gondon nnd, should they full to accomplish ~~k;l~s"h~~lo~:on 1:::l~:n!:~;":e :::-::: :;'~~e:: ~:~~st1:1."r.~l~~:d~~:~~~a·l::x~o~: him. (t.s.n. 41). When the policeman ratled •••rely atteml their fune1•al, on which oc- • ~::e:i:7gc~h~•1: =~:::lJ>~:::: w~~= t: c~sion the,· could e11slly wa)·ln)· him (t.s.n. . H11ks and In the Hmne breath ordered him !~1~~onll::;i:hfr-::~~d 11:::d ;::m~:::~on~~:·; to fetch the llayor. · l1.e11· opponenls once and ror all. Se~ator l\oleanwhllo. J.lagno Iruguln, Dalusag and Y.cntano then exi>a·~sed bia hoiie fo!· ltH A1 temlo CnKt••onueve and two otheni armed n<com1>llKhment as soon as possible. (t.l'l.n. with pistols and rtlles and also attired In El, Sept. 30. 195.2). This said, Senator Mon~ ld:akl an<l Cilllgue unlrorrns, went to the tano, d~~~· out a roll or bills .from his pocket l~ouse of Bonrd Membe1· :.W:a1•lano Vlllanuean~ hand~. 1.t to l'l'lugn~ !ruguln .. saying th~ wi. to fetch him, but Vlllanueya wns nown.oney w~s ut thel~ disposal (Si la .na anll here to be fOl!nd 11.t that· time (t.s.n. 161~ bahala) (t.s.n. G-1-65). · !'orth\~'lth." the gr~up ir9>. l•~de good-b)·e" aml ·left roi· Cavlte in the Not long ufter, Mayor Rlllo 11.ppeared Witt>. "rme lll1l<>moblle. wllh lfagnO I1•uguin ·at ·ih~ teer others, namel)'; Chier or· Polli!e Ber~ wheel. ft.s.n. 68), mn·d~ de Gula, Policemen Benjamin Ram.011, On.-th41l' WI\)•; tlle)··. slo)'l)>t\d 11.t n· ''r\.st11.-ul'/\t1t 'in Pasay. City for" their slipper (t.B.n, '7), MQno Jruguia pnil1 fo1• the bill. l"1•om there, the)· 1n·oceede<l direct)).· to Barrio 664 T'.artolome ··Ren•s and "F101•elido Bt!rr:ofi'I('. 'I hey we.re· followed aometilne later "by Ex~ Mr.yor Erlhc1•to de- Gulll. who wns llkei!Vlse t-· Ought to the municipal- building. Nardoi•t Putlk then asked Mayor Rlllo 11.nd his coin'THE LAWYERS JOURNAL imnlona whother the)" 'kl\O\\" Mio two "Huks" whom they had allcged.ly <ro.ptured In :the viel.nlty •. When Rlllo. o.nswercd tllat he did not know· tli.e two, Na:rdong Putlg blurted out: "You ai-e tolerating shameless 11eople - Huks." \Vhe1·eupon they disarmed ar.d h1•Ctled ihe policemen.· (Ls.n. t:!). At the ver,·. same molnent, Magno Irug\·ln hid . hlmselC behind a stone wall of lhe mlmh•ipnl huUdinc. altm· explaining 1:0 llW companions that he .was well known In M:u·acondon. Metutwhlle, two ve111c1es ueePnevs) were procured :In the vicinity. Mayo1· Rlllo -ind the policemen· we1-e compelled to board t11ose twO' j~epneys, nCeompanled · by tbe other membeni or the w.·oup. The vehicles were driven In the dh'ectlon or Nale . .Arter pssslng a s~nll bridge at the outsldrts or l1.nragondon, Where there were no m~re ho"u8'8, the- two jeepneys were 11ut to n stop. Mayor Rlllo und his comp11nlons were then roreed to get down. After <'Dlltnc :t.em fa.ithleas olfl<'lals, they were. tnkeoll' n lltUe farther where they were Ktabhed ·nnd fired upon with· pistols by Nm•dong PuM.k, Jru .. r;ulil and De ·Ra)·a. (t,s.n. 41' & 48). Bellev<lng that their victims were all dead alniatt}l', the ·IT'OllJ> 1-eturned to Genei·al Trina and· dlapersed themseh·e11. On the way noiile, Iruculn told the" men ·that Inasmuch aa 'they already had ll«1uldated the 11ersona whom Sena.to·1· Montano h11.d wonted to be elillllD'aled, the)' could· go arter Governor Camerl110, ror whose elhnlnntlon a. rewa1;.J· of 'P14,000.00 wa8 heing offered. tt.s.n·, 47-iO·J. One of Nardong Putlk'lf men then queri!"d, "Have we not walte<l for him rour times - twice In Sallm111 and twice In Noveletn ?" The next d.'l)' :llaca.llan. upon lnsti·u~Aon c' Iruguln, 11rocure:l from n docto1• n medical certificate to the <'ffect .that ht> was 1nek, e~ven though he was r.ot, so :tR to excuse him from appearing In n · c1•lminad ensc In Cavlte City on that dny. (t.H.n. 13:!-3; 1389). (b) ·Evidence for the defen ... From the evidence submitted by the· defeb.ee, the rono"·ing may lH> gleaned: Ser.nto1· lfontnno and Ida wire went to a mah· jong pa1·0· at the house or one :Mrs. P.oanrlo Vdn. de lolendo:w. al 1655 Felix Jluertns, Mantia (t,s.n. 781, 955. SS1), nt 'loout two o'clock In the nrternoon or Augu11t 81, 1962. They played with several pe1•sona among wllo1n we1't' their hoetHl!i Mrs. )l'md(lza, Ex-Oo\'f'l'nor · Artm·o Ignacio.·· l~'ll C.aatlllo, Janunrlo -Solle1', Mrs. Bona, lira. :F.. Mendoza and others .. (t.~.n .. 885, 13!, i37. 805·6, 809, 819-20). At the start the 8<?nator played with a g1·oup upstairs while Mr.,, Montano plaJ'ed with another S'l'OUP d-;wnstalrs. (t.a.n. &ao-1, 731, 808). Around· :;:oo o'clock ~m.. merlen<la oonslstlng 'CIC ·p-utd, pospa•, ·sweets and sort d011nks was servet'f, t11· the guests. (t.k.n.· N'1-9, 77'3, ·81!). tlalf and hour l4~r;rormet Oo\'t1·nor·Jgnac.lo left the house. tt.u1. 551>-l, 811). Where111)0n, for lack or quorum, the senator went ·downalalra and Joined the table or Mrs. Bona. December 31, 1952 (t~n. 550, 7U-6, '812). Sometime late!", Mrs. Montano remarked that It was alnady getUng late and that they had better leave. u.s.n. 8lli). Ben CUtlllo had flaC'· gE'Cl a taii, and seeing' that Senator and Mrs. Montano were also waiting for 911e. hfl oftered It to them a.nd called for another. (t.s.n. 816). According to Patrlelo Ve· lasco, however, he was the one who had called the taxi which Senator and Mrs. Montano used In going to the Lyric l'heater to see the "Hoodlum Empire", v.·bere they arrived at about 7:30 o'clock that PVenlng. (t.s.n. 856, 860, 1432-4). Mayor Arsenlo H. , Lacson, who bad entered the theatre earlier at 7: 20. o'clock, noticed Senator and Mrs. Montano as the two entered the movie house. at about 7:45 o'clock on the Jeft entrance of the loge a.nd so.t tiu'ee or four seats a.way from hJs left. (t.s.n. 322-5, ~494.U). According to :Mrs. Montano lbe)-· \~ent home dlrectb' at about 10:00 o'clock. (t.s.n. 856). It was also revealed that on the S.J..ne evening, a group of young- boys, frlen•l'!I of the J.t:ontano chlldren, were In the house of the. Senator. They stayed there until b:OO o'dock practicing the ·Jilambo Nuevo In the sala,. In preparation forithe despedlda iMUtY that evenJng . at Attorney Panmo Bemo•' re.sldence in honor of tlie two ldon:-.ao children who were scheduled to leave tOr tl:e United States within the first we•1k of September, 1952. (t.s.n. 860-2, 3'7, 377-i, 403, 408 and 432). While these boys were there, they did not notice the group of nine ·mi:"n ''"ho allegedly arrived and conferred with Senator Montano, DOl' dld they notice the Senator or his wife return to the boufi' 'l'l-hlle they were there. (t.s.n. 872·6, 11811-3, ?.t7, 388-92, 402·3). At about 8:00 In the e~ enlng, they proceeded to that farewell party In hono1· of Nene (Consolaclon) and Jrnlor (Justiniano) Montano, using th.a fa· rr.lly car of the Montanos. (t.s.n. 356-36:?, 356-7, and 869-71). The defense also disclosed that Jdagno 11 ug:uln, one of the aceuaed, wlth woom E'enator. Montano conspired between 1::1)'1 and 7: 00 o'clock p.m. of August 31, 195J, according to the evidence for the pro~ncu Con, was actually att~ndlns the bJrUt•lay party of .Ex-Governor Samonte in the ht.t • t{';-'s reeildence at P. BurgOB atreet, Cn.vlte City, where he (lruguln) stayed from 6:00 t•J 8:00 o'clock in the evening. (t.s:n. b916U, 63$, 640, 6'2). Furthermore, it was that on sept~1nber ~- 1953, the same Magno [ruguln W9.S .a.t the Riaal Memorial Stadium Jn Manns at• tend.log- the basketball game between the Harlem Globe Trotters and the New rork CelUcs at tbe very time when the. aUo!ged conspiratorial plot waa belns" enoute.1 In Ma.racondon. lrusuin rei:iorte41.J". arrl"Nd at tba.t·. Stadium. at . a.bout the bQlim.IQS of the main . same between the Globe . Ttott•s and the Cel.t1cs; tbat 18.. after th6" prellmt• Jif..fY. p.11\i& between the Ateuo a.n4. l!8.tl Bede. teatns was already over. (t..s.n.. 686·7). December 31, 1952 Ircpln sat In the bleachers beside a Pa.say City policeman by the name of Ba.S!Ho de los Santos, who had earllei- arrived at a~out 7:09 o'clock p.m. (t.s.n. 682, 614). The pol!ceman recognized him, haVlng seen him q,t.Jte often In tbe house of Judge Folu while the latter was In charge of the Narle I!\ Pasay. (t.s.n. 686, 68, 402). Iruguln re• 4-11alned seated near De Joa Santos for ti.bout twenty to twenty-five minutes only, ar•er which he moved to a rear seat. (t.a.n. '66, 'i04 and 706). Iruguin was similarly 1.e.m t.y members of the Pasay Police Departmern. svcb as Detective& Tadl and Andre.a Esnirltn, Sergeu.nts Emilio Fuerte and Santoa Me~ dina. III-THE ~UESTION AT ISSUE Upon the evidence thus presented, the .>11ly question at Issue Is whether the e\0 ld(!nce o! guilt of the petitioner Justiniano S. liontano is strong enough to warrant the deJi.lal, or quite Insufficient to merit the recognition, of his right to ball, he being charged with a capital offense. IV-DISCUSSION In deciding this. question, resort must be made to the Constitution which furnished the very role by which this Court can be Guided. On this point, Article III, Par. (16) of the Conatltutlon provld.es: "All persons "shall before conviction be bailable -by 2-.if· Ylclent sureties, except those charged .v-Jth ca.plt&l offenses when evidence of guilt ls stl'Qng". This constitutional precept fouud supporting expresslen In Sec. 6, Ru~e 110, Rules of Court, In this wise: "No per'Jon in custody for the commlBBlon of a ca.pita! offense shall be admitted to ball it the evidence of his 'guilt Is sti-ong". Io construing, therefore, the quantum of e\.'idenee required to sustain a denl:ll or ball 1n capita.I offenses, the nature and ~iur J''•se of the_ proeeedlngs, as well as the esto.bli8hed jurisprudence on the matter, must b • fully conaldered. In the "summary hear· Decision On Montano Bail Pl .. d"termlnatlon. Notwithstanding the Ul!le of the phr.Hea "proof evident", or "evident proof", or ••presumption great" In the United States CMI· stliutlon and In the various state conatitv~lons, our Supreme Court has alwan: considered that the "provision on ball In our Constitution Is patterned after slmllar Pi:<t· vlsJons contained In the Constitution ;;Jf the United States and that oC many States of the Union." (Teehankee v. Director of Prisons, 43 0. G. 513). In the case cited, the Supreme C'ourt had occasion to lotxserve tbat the provisions of Section 63 of the Code o! Criminal Procedure whicl1 provided. t~t "all prisoners shall be bailable before cu11victlon, except those charged with the commission of capital offense, when proof of guilt Is evident or the presumption of guilt l::i strong" Is .substantially the same as Article III, Section 1, par. 16, of our Co·1st1t1Jtlon. In this connection, It baa been held that "althouch the rule is couched by the r.eurts lin various terms, and the question Is one which must be determined In the exerc.lae oi sc-und discretion of the court or office_., Jt n~ be b1·oadly stated that the facts and cbcumstances must be sucll. as clearly to e\·idence the guilt of the accused and the probability of his conviction In order to jue· t!fy a refusal to admit him to ball". (ti C. ,T 56). Ago.Jn, "The tendency of the courW has been toward a fair and Uberal con•uuctlon, rather than otherwise, of the law de· tc-rmining what degree of proof 01· conclus!veness of p1·esumptlon Is sufficient to ;11stlfy a denia.I of ball. This Is evident not ~mly from various expressions used In the c\ecisions, but also from a conslderatbn ~f the facts on which the courts have refused to allow ball". (Ex pllrte Varden 23'7 8.W. 734, 291 Mo. 51i2-6 C. J. p. 967 note 46). It has been equally decided that "to- t<UB· taln a refusal of ball in a ,capital case, 1t is enough that evidence inducH th• beJief th•t Ing" provided bl' the Rules, the Court "doe"' aoou .. d may have committed the offenH." not sit to try the merits or to ente1• mto (Elr. parte Page 256, p. 887, 82 Cal. App. any nice Inquiry as to tile weight that ought 5'i6). The test, therefore, Is not whetfier t .... be allowed to the evidence for or aq:alnst the evidence establishes the gullt beyond a the accused, no1· wlll it speculate on the reasonable doubt, but whether It shows eTl.C'Utcome of the trial or what further evt- dent guHt or a great presumption ot ~uilt. dence may be therein offered and adn11t- (i C.J.S. i7, sec. 30. ted." (8 C. J. 93, 94; Ocampo v. Rillorazo., Thus, the me1·e fact that the evidence as e~ al., G. R. No. L-439, August 20, lH!>). to the accused's guilt ts conflicting, even (ID. The original Fra.nclsco a.mendment to the a vftal ls11ue, CN.M. - Ex parte Wright, ?83, bail provision of the Constitution, as ap- P· SO; Oki. - Ex: 1>arte Burks, (Or.} 60 P. proved by the Constitutional convention 2d} 401: Ex parte OrmP, (Cr.) 60 P. (;l!d) orlglnalb· read:" x x: x except when the 213; Tex· Ex pa1·te Shnw, 25T S. W. !la6 pnson 18 detained because of an ac~wi:a- etc.); or the tact that defensJve lsaues ue :~~l~e~~r :r ct:~:.e:~:n:~~:n:f t::n~r::~~~ ~;:~ndbal~Y Is tl:ot a::~;:e:; i~h~ts:~:i~~:~ n\ent.'' 'rhls was subsequently changed b)· title blm to bail, WbSl'e the proof of bis the committee on Style with the more de(~u.llt for a capital offense Is evident oo:- Ute tl1 lte and clear-cut clause: "when the m ,Pl'9BlJJD.Ptlon great. (8· C.J.S. 63). dt1nce ef guilt Is stron;." Juat the sft.me, 4s bu been cogently pointed out, i.b• :~::;:t~~:I:~ ~n b:Y t::.:::. =_l :a:.~r:: a~ :.:::·~oa:. ==· 1 · the. Unlon. ea.n stlU be nsort.ed to -a~ u any words of ezplani.tlOn o0ul4 lfta.1rlt re:led upon as guide In the process of tbmt,.laa•. and they are Intended to tndleat6- tDlt "' THE LA WYERS JOIDIN:AL Dmolelon On Montano Beil Plea same desree of certainty whether the evlclence la cllrect or clrcumstanu8i. 'l'~eae statements lead unerringly to the . conclusion that a men conflict In one's testimony Is· pa.nlmonloual:v Insufficient of lta,il to ..,arrant the crant of ba.11, an4 the aame al&o hold.a true of the fact f:hat the e"-'1dence agalnat the accUeed Is clrcumatantlal. ce· Am. Jr. ~4. s~. 13). Speaking of "aummary hearing'', the Supreme- Court. meo.nt by It such brief aild. speedy method of receiving and· conaldei.·lq the eVldence of sullt as 18 practle:sble and' conaJatent with the pUl'POS& of the hearing which fa merely to determine the wei&"ht cf the evidence for purPoses of ha.II. (Oe.i.mpo "· RIHoraza, supra). Conae<iuently, It may be stated that the procedure In the reception of evlden le l"'J ball hearlncs In this Jurisdiction Is .wellaettled. The pl'Osecutlon assumes the vt:tal burden of showlnc- thnt the lncontrow.rtl• ble evidence of guilt le strong the a.ccQUd n.arahalla definite and effectual evl4.Hlee to establish the contrary. Furthermore. the acoua8d 18 entitled to co behind th• tn't!lctment and Introduce, evidence att.,CUn: Or going to the merlta of the caae. • tr. .all thoee clrcumatances, boUI Sides are aC~ord e·"': the opportunity to cross-examine I.he Tt-ltnesaes presented. While the heinous· lgullt or spotless lnnocenae of the ac~used Is not to be detel'mlnecl, still the quantity t:nd chamcter of the proof on these 90ints are, tor the special p1tri>oae In ban.1, necusarlly considered.' because the Con .. Utu. 'tlon requlrea the court to determ.lne '""'"'ncJu81vely for Itself whethei.· or not the ~of l'I evident" 01· preaumptlon creat In a given case'. . T'1ua, where a well-founded doubt of 1o~lll can .nen be ente1:tll!ned. the evldelwe Ol g1,11lt cannot be said. to be etL·ong (Ell: pu-te Brld:well, 57 .lllh1s. 39, 43); C1·1t. Comna. ::v. Pr~~ Keeper, I Ashm (Pa), 227; cited· in F(lal)O.i"co'• ~rini. Procedure 4 Forms, Vol. 1, p. I?).; or the lowm· court ltaeJf could. •lOt pronounce the evidence strong, but merely cOJ\S(dei-ed It only 'suf11clent', a word th'J.t does not convey the Idea Involved- In the con11Ututlonal requirement (Enase v. !'10\, Warden, Davao City, G. R. No. L-Hts, 0ct. 2,, 19'8); or tl'e evidence of the wl!ness 11·.es not make out a prima faoie cae aJlfa.,in•t tbca accuied (Ocamp0 . v, Rlllorasa, supra.), ball shall be cnanted as a· matter of ·rlA'ht and the Court· la Doi. JusUfted t~ deny the iktine. · · ·· · · and the court should·deny the same;. Indeer1,· 111. so1ne Jurtsdtctlo"na the &i1owanC8 Of ball le forbidden by JaW where proof of guilt of a capital o.ffense la evident or the presump-. tlon la great. (C. J. s. H, b. (1) p. H-lii).· In ascertaining the meanlns of the w:n'Ci "capital" as used In the Constitution 01· statute on an a.ppllcatlon f0r ball, the rauestlon la whether the offense le of the ch.<1.ni.c·' ter ·wh1ch may be punlihed capltallJ". Jn this rqard, the nature of -the crime ta ~e ftrat consideration, and the gra"Ylty of t11e offense 18 cb8racterlze<I: b.Y the sta.tu.tc)ey · pfnalty preecrlbed against lta commission. (Ex. parte Barry, 88 P., 2d), 427, '1938) Wm L. J. SP.I)., . It follows that the determination of whetl1er the evidence of cunt Is or Is not stronc, wfll nece8!18.rlly rest upon and find support in the quaUt:r of t_he evidence preaen.t~ by the prosecutlon and cOnaldered. via-a-via with that adduced by the defenae. In other words, the prosecution cannot lncen!ou<ily build up its case on the •Impotent weat.nea of the detenee but must rely e•IY .:in Its V-EVALUATJON OF EVIDENCE And now, to evaluate the evidence oa 1-e· cord. The prosecuUon established the ..:om.Pllclty of the petitioner, Senator Montano, In the conspiracy to do away with tho ..-ict;me of the Ma1:ag9ndon l'ald. bY teatlmonlu or two 1>1"oaec11tlon witnesses, Anto-110 Ma.Caua.n and Eugenio Magllan, whO were J.ol'eBent In the Senato1·':s residence at the time they plottecl and decided to execute that Infamous 1"0.ld. The i,atlmonles' ,,f a. t>artlclpant, Co1-nello Monzon, and two eyewltnessea to the 1·ald, Bayani de lefl .Reyes and Cirilo Hernnndea, were likewise p: esc>nted to show the ta.eta and cll·cumatau•:es surrounding the execution of the raid by the co-conspirators. This raid resulted in lb• kldnapPlng and death of fo11r perilchlll, au publlc offlclals, unde1· very grueKOme clrcumatancea, and In the sel'ioue wounding of two others which would have equ.a.1· ly produced lllelr death were It not for Lhe timely lnte1·ventlon ol .skllled medical assl&tance. The Impregnable e'•ldence of that massacre leaves no room for unce1·ta'r.ty t."Jat U1e execution of the plot was schemed and decided. In Senato1• Montano'• house in the evenlq of August 11, 1852, It h'lvlng been ahown that (a) the Intended vlctlm9 (Villanueva or Rlllo) actually .soucht out by THE LAWYl!lRS JOURNAL Senator :llontano _Is thUa • being ch<J.rged not aa a dlreet participant In the pb)'1dcal execution or the actual kidnapping and kill· Ing&.. but a.a the maatermlnd who dlt'9cl11' ·ltduced othe1·a to commit tbe same ~~J1er by agreement, by order, or by &Ill' otb• alm:Jlar act consdtutlq a true Intentional l•.cltement. dellb8rate1,., directly, and ell' c.iclouely made. On this ~ore, there Is nothl~c In thG r~ crrd that may· Indicate an unholy motive OI? the part of thOH witnesses In testlf71ng aplnst S9nator Montano tn the manner· U1ey did. All a whole, their teeUmonlee which Were gl1'en lh a frank and straightforward tna'.lner, have 1·emalned unimpeached ID. all their ri"l&terlal aspects, In spite of the rigid croam• examination by the able ancl dlatlngulshecl defense counsels. It le true that Ma.c.a.llan, ror one. Incurred some minor contradictions~ partlc;,ulorly on the period of time durlog which the conference with Senato1· Montano lasted ond on the preclae time thq Jett the Senn.tor's home. But It will be re .. ...Ued that, by· the wltneae• own adm~on, tr8 Ill unlettered and bas had no sehooilns and v.~e In no poeltlon to tell the time b7 the hands of a wateb. ha eft'ect,. bl!ll knowledge 'of the hours of the day or of the nlgbt iii tielns baaed merely on rough estimation or wild gueuea, his stomach serving ln most ~ues as Ida ob"·louslJ" falllble guide In r~.:i konlng the time. Thus, be la wont to consider as 13:00 o'clock noon the time when II" eats his lunch and as 8:30 to 7:00 o'rlock ii~ the evening when he takes his supper. (t.s.n. 271-78). However, he woa stea•lfast 111.ncl definite In asserting that they actl.IA.117 a.rrlved at the 1-esldence of Senator llo11i.a110 at dusk (n•g·aagaw and liwaneg at dilim) and thnt their slay was brief. (t.s.n. 272, 276). lt Is ta·ue thnt In hb1 affldn"·Jt (Exhibit Nl:·A"} beC01·~ Captain J\ramos, Macallan siated. that he and his companions bad stayed for about an hour In the Montn.no i·~sldence durlnc that conference. Bui. as he himself clarltled, hla own calculation of one hour Is ·not very long. (Ls.n. !71). At any rate,. even ·a comparison between bra &aid sworn statements and hl8 teeti.ri.ony Of) the stand would i-eadlly reveal • rlnc'ing. harmony In all their Important detatJs: the pJsn Conceived at the Montano rHid-mce. tbe role played by Senator Montano In that ccnference, and the actual e.xecuUon Of the Maragondon raid. Whatever lnconsletencles may be buoyed to the surface by a ~Nh lng analysla. of his_ two d~laratlona .ue sufflc~entlY. expl'!-lned b_Y· the wltneag h~mself when · _b~ te~Ufl~ that, during hla ln~au ~"'t.lon by Cap_taln ~mOll, he was so ~red and confused b~cauae It waa conducted from noon till midnight without any respite. ~ ~;:~~:~· -~t.;.:;t_;;::::e~~ ~ . .-.4:~}4.n.'s adm~.on aa io 1118 rea::~~2~:::. ~~n a:: ::::t?~~~~ ponrii.ent of hie case: In O&"Ylte "City s~e..:. December 31, 1952 !>dciSioi11 on. r.font9n'o "'Eillifr Pl•• :,i~~;;~~~i~t~~ .. , ~l!!!:!u~_fac,. .. 0 . .,..wh!c 0 hn,.ht; h:&-4 ~o l1J.l!'J'e!9t In. , th HINU'lng,. and ar'e Inherently. hea.~a.y, tr.~ : ~~g the ral~ .n~ ~~.ra~~".t~ · 1a ~~-~~~~ to • ... ~,: · I'·, (. · ·, .F.act:a>.. .J"ot setr.aervlng:.·A. newspaper· accouWJt or ~~1•· .. prea11~n~ ~~a~in~ .• ror bal~ of.~lp.,Pt"tl,,All thlnp aom1del"ad;:tha·C?ourt· a.lt91'."0b- .• •·" event.•or. an occurrence has. been chn- ;. ~!aner, sei:a'!-t~~ :J:uii.tlnlnno ~ •. :?ot:of!t.al'."o,, (t. •#Cill;YlnB- the wlttte884la'Hle'meanor nnd n:nn-·:·· 1"tctel'lzed ·na "bearll8.J' evidence, twice re• ... · s:~. 198 ~. seq.-J. . ·, . 'n,el;·.-:on .the stand- believes .tlat th~lt. re•t1-· ··moved."'·'I Jones on.Evidence, Id ,ed.., sec. :·,.:;·A~nt'ui9 ei"fe~ .ot P1• ~ntrodjic~\on. of ~on,I~ bea.1· ~111!! atppost• P.l.;trat.k.r.:•: or··: IOU .a).· Aa to-. I.he pre8ume4 reward to 'he .. ~ended ln~9rm111.t1on, :this C~J:t.,. i• nt ·~QUi.:a.~ .• thls.,C.Ou~ Is ·~re oc·.the1t~~.:~lat·· ... J.!aoallaa. •Jl•.18'.ti .J:le observt'd .. that 1n~'1 a .it..h~ ~i>l,IJ.1~.~ that the alh!pJI ~nad~l~~Y,1ty c\'en tru~htu~ w:itnesaea ~a not Jn~!!-.P.1t4ect • ,f•J'a.ccwse!' if.' A, .me1-e ·conjqcture -.and car.not.. , ~ .~l~ .~rUons .. ~~ ~he .~vldei:iice ~.e11e..ned wltne.s.sea. Their dcg1•ee or education, tbefr····be··made .the:balf111.or·a. lffnl :conclusion. ,tief-?1'9 ~he ame~dment b,as. been. ~Pred by · il.enad'·trondlU~L·evth\:•·t.ne"liOteiiiftlfy- ot· Bt11ldes,' the non-Inclusion of Ma.caUa•, In ','t~e·pr,98en~tlo~.oft~~·-~.ine.~ded,,LD~~.~.1on ~urt: Jll'Qcee8:1ng& ·oftim ·'8.Ccouh't 'tor ·hiR.nl-' the Information, conRldered .In t11e light or . ~ the n.tent. t~ .f.h•Y. .are aclllJ..~b~' l' re· .. detective· anawera. But :jUdK'!s a.re tth.lhcd hil!!!;te.ft.lmc,,iY.. ctn:,i.htl: s\an!l .. admlttl.Dg his. d11troducl!!d .after ,such .flUIJC' .. Qll 9«;to~"':f 3, . lo .fO.Ake 4'1l~wancea. They pay exb-emerr.a.re:. oom.»llcl~r.ln·lll~ cO~aptracr aa·a dJreot.,.~-. 195~ .• <t-~·i:'I·· lii,9). Thia' I~ sO "beai.ii."9 .~'·c-n !'8,r,.d atten~lon. to ihe sJnaerlt)· of:·the.-wi'nas · JJtr::UQl~t,:-el-en before be was.;pr.e\l'.l•(IQRIY 1.'. :a:"8~f~.s: 'the~-~ be tii8d!Jil~.tb1' 1~,i:'·!~o?k o"N'~.:~ wl.llil}Sne•11:·to t911 tb-·whale:•lory. ,.clw.'P4:1and. th .. ·dtscha.rge~ Is, ._t.m~":, fot: •1!1.~~n~ !l;Jlega.tlon In the 9rig1~1 .• n···•{::~.::€·:.:::go~G~:~.:<: ·::·~:~ ::::~=:=~~:::~s:.~::s~~:: .. ~:~~~~::~~:s~~:,;:;~1~~= .:g11~du~·that;Govemor cmneiinr...,-coo- seem unr~abJ,e. tq~,t.lsbelleve f.!·W.lt.11!••-: ~ucl~J' th~~ ~.nder .. ~h.e a~e:nd._~ ... 1.~::·::;;::.:£:£.;~:~:::~;: .·. ;~~:;:.::::r~.~"r:;:~;E: · :~:~!;';1;~~:~::~~:~~~'.!; ·.in~:--' JOU~t.1!J.ve tul'Qlah~. the -v~\lence ·~·~.;:~·=~-·~in!: ::e·a:w:~· :~, ··~== ~::~~~~:':t~!!'?=.~i:i':~\':e . :~;:!:~£~£~=~~';;~~~SE..... . . :~~.~:bf..;~·~:::~:::~·'·· ·· .. ~~i:~ .. ,1~~~~ ~i ·;L. ~~~·~ ;,.: .~r; M~nta~o equall)' . cooperated w.lt!J ·tho. :n•U¥5. ~dt1f&11ae ·.haatislm1l&11IY.·:·a.dvnnc~,, by effect th11ot ~elr .,<!bJ~D,!J.-Wh~~ ~ P!8· . ~:i'IJ!',:V ·~~. ~iaclni;; -'.~t ·~he. latter's d!~~sal ··'Ji.el!' . .or-... ~onlng. ·th&t · SeQator. llonta110, \1~~:v.~~ und~~ ~h~ o~. :1.n!.f ev_etr,. bJt ~f ,1~.torma.tlon. q.~'!. <;~ue C$)m.lnF';:!11\('·~ ·:ltll :bl&. b,\telllgence,· could no~ . have. h; .~~lhc~. i~~~· . the · t;.i 'hlB knoW19dg8 Which in18'11t 19a.1 i to tbe . be•n .. o .. :foolbardl!'· .u ·to· "Unravel bl.It IJllDd ... ~.k •. C!1' ~~cten~ ~11 .=.:.~. _•_ ·.• ·a~_Prehena.10~: or:·th~ .-uui, -~~·tin; ~n~::b.v ... ~q~-aucb a. Cl'lmlnal. plan· In tJiie,Pl'ff9'11ce.,,.~~o~t~· th~e~,re. Dal.be :u. ' U".•lnir all htia' POUtlcai foDowerS ·~u3Pe'ct-. !pr .. .aout.J.:#rfAIPn. like..:llacallan. and ¥.'I."'·, , RI~ <t:s.n •. 11~? ,becomea . . .. : . . ~' ~fht ,, . ...,. Ot belftg llKltllcAteci'"ift thas6 ':ici.i1i~g;11 to .,Jll.•a.;. an«:~ t\t· a1aeuu its .execution. Ill.· eo, 'of'.~h~.~~~m~~· ... , ,, , . .. . •• , 1 ·· ~otuntarli:v submit 'ibemaelves to: f.h& ).i._ .. i.l)r~.-., ,.tb13ie .1J!· hjs .. waaldence wltbout .. an7 .•.. ~~~· i:t!~Pect t~·~t11:~,: ~tlC!~. to. ~~·_put -i~7 .authorities 'for"IJ\vntlgatlOft; ·Di mil:t" be oll"·DrjJ !l• .to Its grave natur6... ·-:&u'. tM .. r (t-:'!I:~·: 100 -~ •.eR,.) t:'C!.~_1.?A18' of tlie.~Unt$DY ;,·~~~ ... .::~·~:::;:=~ ... "·~~:~·~!'-~::.::.:~;·:;~::.::-~;:::;~ ::tJ;5~~:~~1i:.~1~i~~t:~ ·•:i, !t!;:iu~ k~o~~:~ ti;mt n°. 1!'~ ~~an.1 • .,.,.,u..,~s? :whr,have.::vou come just nuwt" ;,P.f~ll.Y.,exe.~1;11\1~.yD~fr ~lit t"Ul9!1.~:.~.V/.d· ~ ,. . 'k perso~ of s~wryl r &fU1,.,.. ~llllUAI! .way• Il':Uguln lntrodatM ~~.~~tlcul~ly ~.Jl!ler.the doot~q-,qr ....... •• 8 , , Y ~ad t~ ~n !'-~ Interest a.i a. •W8""•QC·Pu&lk·•·the Senato11 as chi& who, l~tiir •Ii~~ ~·;·8:~.d: under .th~ .orl~l~!)n:a:.'k:I 'the ln".eat!f't,lon °~. t~~~•1t1tn: 1.r~.Ph1 ~trµated .,....., lm.da one to bellen the ... ~~rm!!-tlop.' ap~tt~tly Jmmaterlal ~~ ,th•,.~b all kil ngs, reaultl g ~~ !~1d ~1 . ~~, . o. _ ~ ot·.BOl!le .PreY.lous plan ancl.ef·ea.r- · .. ~Ce of.an. fll.leca.t!on 1·egardlng_ the.Plot to t --~el~=cts." ·Jt Ii .. h~1:/cHly, ~~~~- •, 1M:meetlngl!: ·or ,negatlal.lona towatd 1&n::om- : .. '.)~~e. th.e l~~e ~~-~o~~!'Oi:' Camet;",ln9, ;th:~~~n -~tlve th in the .a~a~n~ ot,,& ~~~r~ ·J rfOA end .. 'l'l,oee .me:a; .. went;tberft..ptep(lred ~-.. r~le .o~ ~K~lu~lo~ dOl!a ~~t. ~~\to )t at the. Arm)Y- ~'1' s.~:Mn 1..:'·.f.Qr.,&;P1'!!/i•C<1nn~ action: !l'o 'that .. n:t'dnt,. e111i1 ~~ti!"~n.:r.ln. t~~- preserice c:>C Ql'QP.fa.or beB.P•:-'Y-· which· hi -wld81y. kftO'w.n ·t~ ulv., : ,Jh&;D\LtUl'4J; -of· "1e ·~e:U,ng11.•11t1fflee4·1o·.c..m- a·~~~'l!-C:V•. w~.IC:h . thereby rend~d It , Q.d, en I strume.n.tal.ln llrlnglng 11.'llout n·'rJMn. \·"'~ ln,t:elllgenca- from. ·OD• :te the"othet: ~nd .. ~laalble as 11-r. ex_ce''*lop ~o ~.tb 'tbe.hiar· .•'.~:it:ei:: :1eaiiou., In. 1801,. · WGuld. n~lbw. :tl,ltl ~lH'lt 11a.v11 been.·tt1e reason- why the~· ls!"~~~rid ·~l!I lntef- '.•!.i9s ·-~~ ·~~1.:S.',. ~J;l~ ~st ... ~~'a .Rady, aubeer,fent..('tOQl.a:nd, .P,f!'Utl~ne,ir .was.not· war)' no1• mlnd"rd In .. ~ ~~t ~het~er the.off~ e:ylden:ce .. ~.i~d• ~:=-·and. l,)l'OVincl.aj, Governor IQr; t~l'tui· ~e~N' ~ ... fmpatlt!nce ana- In. glvlntt fl- . <->. prove "'~· _lnde~4.ent, 9CfeJ?-~ , bli,t .~•~e t,.lc.8.l ;,; nsG'l'R~f:Cl~lo.n oft.he lq~r:' ... llOJ.f- -:c pal l:D~b'uotlona .. to his men,:·followed:·bv the . )~_er. l~}s ~le~ant ~·· ~end,lng to &!l'.!l.ve..11\oY ! ;.• .· ~Ir. : ,,.. ·,. ~ ... :~:, ~J delivery of money to Iruguin who' was siven _tabt' material to th.e wu; In the ca11,e ~ore : .•. ·.Tl:I• def,nse llke:wlae. ad.vane•· tl11t,. tl"Mtty ,)f~ ~ee ,. ~!~"?•!.~Jon., ... ; · .... " • : .. :.. . .' .}Ii~' ~Co~H'.. cs.tat~ vs. cae,sa.~. ~i' ¥oDl~: ~z • . .. '1!•~-~ i~rlmlqallon;.Pf· ·Senatm· .ll1tnt<1.110 Yi•~a-vis. U1e .to,regolng evlden.oe of ·tne sllJ ~c. 1109), Under ti.I.' amended "nf1Jr, .. t;n.'~~· ccmaplrac:v mulf! haye. he;,11 'h~ .re- :,·.'~.~~~lip~!· ·the: Pet.1~~7 .ll'l~l>aaed :i:.ie :·=J'ia_a~I~~;· th~_.-qU~t~?n..oi. l~~?i;i~.-~."be . ~'8;,rd .. tor ~Ian's su~tle effOJllS;-~C!:·l:!.a,u- • .' .dete.n~ 9f. alibi. Bj!:f~ s.Qlng .at- legth iQlo • ·a~9'1 co~pe-ilt .ana.· ~9vant •Del,. th"9e. ·~~~f~1~E;~~\~;~;;7~::;~; ·:14!t~:~~;.::£~:::i:-~E ~,~::!::·:,:: ;;~;:.::::~~ "'"~... ~~n~~ .. t~. _t~e, .~s. .~.~Ing • ht~ .. Jran.o- . Inf ~1';e. .. h~r.lng: .. ~lrst. • th.fl. qaql!?Jl,. p; tne . . . :";l'li'- .a41t. or (\~ratl~. ot, a .. oons1'1: ~~· ~~ e~brea~l'1&'.· II'~ ~~1.~~ttl1 ~ nnc~:. ~r~11t · .~r~~f ~ '. ~.r~~;~~~ 8::.:.i~.rt~,'\;Of :·i~.!: ~¥'- ~~,: ~.l'.~~1: ~~~_!a~i!I¥. t.o. ~~- ~.,tf.ai~ durh oul- eourta ot Justice, apparenl'b· f'o Rno\\" Uhtony or the 1n'08ecutlon witness., Anl'>nlo Ing Its existence, may be glve.:i 1n: "'•Id·. '1'iiE-LAWYliliS·'30i:JRi-iA.L ei:ic1;1 agalne~ the conepjrator .l'-flel' tho con.splracy Is ebown by evldtn~ CJther than such act or d,eclarlj.\lon.'' It. l_s ob_\'.lpus: \hat th~ i;ecC1rd ab,Q~~. "With t'.~·o_~( qt th~ CQ~splr11cy, to Wit, \J!.ro1.1_sll ihe ~es\J111.o.n~es 9t. ~agllan ~nd. ~c_l)ll.q~ '"' to the C9n.~erence IJJ. Senator l\1;QO\t1.no'a. J:e&i4ei:ie4:. &:nd t1:1r1;i~h thoae or MQPZ.9.P. Vo. Jos ~f·f,e& i\nd IJerpanfle~ as to the eJ:e~:iUon or vi~. plot to ~Ill th~ ln,t,encted. vtc:.t,l,Q\4 of the Maragondon raid. It Is trv.e i&i1Lt o,tbE:r r>ei:tons not pili:t1c_ula1:ly slngl!!d out :.c. be l:quldated In th~ plot h,~tched. at the reslCJ.erice o_f t~e petl~lonei: were am9ng the victims of that raid. It ls eQually trU.e Df\"ertf)eless, ths,t It Is not necessa1;y, th~~ _the crime for- 'rhlch the 4,etend,a~t Is on b:lal s.hould be the crime whh;h was the. Pa.1-llcular Q_bJect of t_he consph-o.cy. ·w4e_re ,:leveral persops con,splre(I to. qqmmlt a lYJ: Jp-Jful ~ct, the_ e~ecu,tton of whli;h nu\~eft ljtrOb~ble a crl~e not epeclflcallf 4~.el\ ~ut ln.cldental to the obJ.eqt of ~be O$Pl!J~~cy, an ai;ts or d.eclq.1·nt1om1 Q( co-~on8J1J.i:Jti~c.rs ma4e· ~urlng thl!; pel)~en~y qf the q9p_1J>ii:aqy at;1d In furtherapce ,thei:ei>f a.rt ;WJQ.lsslble In I\ pros!ilcutlon Qf Qfle o~ th.~ C.QJ14Pll'f tor:s for th~ crime Jni;ldenAAU:r- llQQ\D}~~ed. (16 C.J. Sec. \3.S:l: •. p. 06.8). l,~ toJlgwa VJAt t,ll.e n.IJ).Uld.ect ~1pa U9,1L b.f..V.J.P.S" i;.u~ lb~ 4.1U.~t ot t~ ~l\>U<I atsence of sumctent allegatlol). . r.q-~:iJJng the. a.~teippt o~. Qov~rfl~_l' Gt1.mea:ll'!.Q'.a. · bte, the petlt~op _ to sti:l.ke l,s swor,n o( Its nierlt a11d· Should, tl\.erefor.e. lie de.r\led. '1"J$.IJ. rAfW!let. . tQ t}le, JMted~.mx. af t;1e 111vl51M1:t;:. aO.O~i:4. by Ulit. ~e~qtlon, refS,,ai;.dJns. t):le, r,e.14 atr 14Af~lion. ,tl)J", ~urt ~ ~f. ~~ <l:IJ~~n, a-n4. SQ.1'014•· \hal tbe 4.1DP. i,r. admissible. It con~\Jl.'4t!ilS. Jl1;00.f ot. ,o.be exei;._uUon of t,he s.l!eg:ed COl\ZWl.f.aCJ __ OJJd Is, • ~~rot.i.orl,, J:tf:>per as ~vl4_~n~41 oi th\ Sl(.isttmcf! of the CC!J'!SPlrllc;r. It. ls_ q9t._Eaw~hy t~t the e~~.11t_ion o_( a. <'.ORBJ!lrACY b_y -~ts tic the c.o-cons,p,rators Is Qn"- o_f t)\41 ~st e1'1d_ence to es_tabll'h tbe e¥Jst~n.c:11. o( the cqnsplr_acy. It l!I tQ be [!.Ot,.ed t)\O.t IJl the evld.en~e pr~sen~ed by _the P..rO!Jf¥:1,1tJ!111. reg~~ng, t~e alleged cqnsplracY. Ip_ tJltt h..-.µ.11e oi Senator Montano on .4-:ug_ust., 31,, 1962, particular. mention was rpll-de Qf l\itaruondofi. the perSons to be t.nken, nt1.Ql~f • ..Qv\lrd Member Villanueva. oi: M(l.YOJ'. Nllo .au4. ~he date whe11; the raid wp.s to ~~:ex;ee*a., ¥._ost elfjDlftcaqt of all. the· nerS\)J"!!i nna.«n~. in that conference we~. praetlc~py 'h_e .v.ery pusons ~ho part1plpa,ted In the. kJULP~ at l\t:aragom1on. Thus It hqs been 11.~4 tQat the existence or assent of rplpd11 wl\J1N, ts Involved In COJ!.Splracy ro,o.y b~ hft4',d; f~m the sec1·ecr of tl"!e crime, \14UnlJ.f. ~u~~ be mrerrert by the Court (rorn, wpo(. of 1'~ts nnd elrcumstnces which, taken to.get,b."''· uil"Qrently Indicate thi;i.t thef are . in~r~ ~<ut bf some col!lplete whole, <Ut'!W.~IJl's... Crlmtnnl Evlrteuce, P-. 795, par. 291; People, vs. C'arbonell, 48 Phil. 69). ~68 ."The geneM-l rule In no wo.y p1·~V•'.m~s the pt-o_of_ of p~oPei' facta· aiid, c!rC1imstance11 to eor.nect the Mfendant with the cl"l,ni.e cl'lorged,, even though the eyldence te~ds to 'Show ~uch' -defenitant to lie guilty of another Crime." (State v. Campbell, IOt Iowa ill, '22' N. w.; Z!). '"l'he giMleral rule (_..... Inter IJU.. aota) •nnot )?e appHed Wbere the faots. "Illich eensMtute 4is.l.lnct ofllenaea U'a at lhe same time part of the triaaaaetlon wQalch Is the aubjeot of tho lnd&ct.llMM\~ 11:"*-nce Is 'R8cOB8arUy a4m.'8slble u to aot.s •11.lch are. so oloaoly and lneMr"leab)? mtxe4'; up with the hlsto1•y. of the a:ulhY· au llllE>olt a.s ta torm part or one ohatn. ot- Nlevant otrcun:ista,nces. and aO- could RO"l be excluded in the pOOsenhilent of- the ea.se before tbe jur.;Y w.lthout- the •~• 'f.eillg- tharebY .erideredo unlatelll&ible." war K.nnedY. J., In bx v. Bond, OI06f 2 IC. B. 389, 400.) Ji1xpresslo11s acco1npanylng or following an aet may be shown ns Indicating what was In t:he mind or th"e a.etor, on the ground Wm.t they are rH •ntae or the &ct in quest.run. Ruch state1nents of the .aecuaed to tfttri:. parties are received without refereneo !o the truth of the slaitement, behtg merdy lridlea.Hve of· a state of mtnd. ~ .state.d,. alibi W.as. the deCi;:Ds~. T..u.ke n~ttt t.l)a.t the crux o( the a,l,lbl Is thnt $enJltor Mon~~o ~as not In bis resllj,tpcl' a.r~er dusk on ..,.ugl1,st 31, 1952, or, Q.\.,re speclflc:ally, between 6:30 a1:1'1 .. 7:~0, O'clock t• m., _and S? he covld no.t have me.t. •n"ertered Into a conspiracy with the nine n~n concerned In the- Mar.agoado&' Hquldc.tJons. Howeve1• tile ev4denee pNMJem.d In IH•PPGl't of that defeRee la mad& up llt'llltly o!> the Ioese statements of. 1-nual'lo- l!leller and Ben. CUMllo, and thoee of- Mrs, ldga.:Y• N. Montano to. the ef'feet tha& l!he, btin•tor and hie Wife. were In the. Mendoza. reakloaoa. where they Jtlayed• 111ah:len1t fl om 2:0• o'oNck in the attunoon ot tha"b day w-.:tu, sometime aner 7:0& · o'eloek tn lhe •'-"enlng, when. ·they- left- In a 'lalfl· fOr tho I.J'l'lc Tha&tl'e, IU'l'IYJng there between 7': 20 and '1: 46 o'elocll:. As may be readily. "Mn, the. ldftcacy of this dele118e wou'ldo deplind l111pW upon the e>redtblllty ef Dido" wltneeeea, as. well as on the weight that. ·rotild , be l!tl•n. i:o. the i\ega111ve teetlmontes of- tl'l.ardo La Toi-re. and Godotr.do eolln"hlar (.bMD. Intimate friends of the M-tano&) to the- ellect that they we.re at the- Montano t•eshle-ace where they had their lunch and ti.at during n.H that tlm!!> that they were th~- from the moment they arrive al)· to rast; It! 00 o'clock In the evening, the:r bad r:eitber seen any of the uhle men In the 1'ouae.. nor Senatoi- and· l\lt'.S. Montano, for tho..t.- matter. • .\:rter n~ii.l)·zlng the testimonies of ~~h of the dEifense Wttnesaos, It Is the ~onat lleN!d-= opinion o~ the eo.urt th°'t the alibi. it1S".9'F of- overthto'ivlng 01· WeakentnC, Lh_e •l"ldence for the proseCuuon, pro!fuced t"b'I eonWnry effect· ana·m&de It an· ihe ';,1""e •IRuatble an.d· co'hvhicttl.k. · -· :-ro ·s~a~t.~l!h; Jan~a,rl~ S.oij~l' :lire"°i\la.: :o rP.can to the smo.Uest ·detaU eV.el-.Y~ ·~at happened In t,he mahjong pa.rt)· helcl at. U1a realdeQce o.f Mrs. :Uendoaa., especlapy lbe m_o\'etnents of Sena.to!;' Montl\no and i:IP. other players. Yet, his mind seemed to h'i.VS Jili.llsed Into a state of amnesia when. h ! wa.s met with .the questions as to (a) the time when he met Senator Mon~no for the ftrst time In a mahJong pme which took place In the same house In that same month of August, Ul!i2; (b) the date when he played •:'81:1Jong1, fem W... 4im. ..... UC . . ~ \II. lhe Mun or Mr. ftiadell'o ftomls. In tlh& D\f!'Olh ~ July, ltil; and (c)- t:he date wh~ he pla-yM mahjongo In Matolos, Bulacan, only ec"91'al days before his appearance a.a a witness tn Court on October 16, 1952. ~~IMIJlOl'fl, alClliovgb, Sotl9r dee._. :hni. tbe ... t 11tme. l;e Jl}ayed With. S9D&tor J1111mtun.o -.s oa A;.ui;ust 31, :ti&!, be admlned on. m.8a-exat1llna111on that the last tln:i& be p.la.yed wUh th& .eoused- was- on a Ttlur-sd"ay, ill· the middle of August, 1952, (t.s.n. 188). Jl'llld_e frem this, he reasoned out that hr. remembered August 31, 1952, as the date when he.pla.Jle& wttb. S9aate11.1floatano beoulse he ha.cl recel¥e6 bis fl8rl&n1 on the- .pree.atm.go -day. On. tunlter cross eJ1a111lnat1on, hMPtWel', be a41R1tted ha.vhliir reeelYed his .salary only on the <tta.y followtns ttaat same mahjong p:ame (t,s.n. 741--2).- The real cause for that ad-nttaeJon a& to the date when that particula.p game wa.s pra,yed was that he read ab~~ut It in the newspapers 1hat gave publlct:1 to tbe news of Senator Montano's partlclpatton In the Maragondon Incident, w:lfu.nut whlcl) he w.ould not ha\·e had o.n l.Ddep,1ndf,>nt recollection. or It. To ti.lat degree, the memory of thia u·l\,ness ll.9 to Ume la. tppst i.;nr:~ble, corislderlng Ula.t what me.de. JiiDl re1;._f4,)l thf! tlme of depart,ure of. ~Qat:or. and ?4r.s.. )i{ontano 11:.:.m, t.he. ho1i1se oC )(n. lien~ WU.. the- ~s. Uu1ti had alnad7 tU.thered around thiem· Md< the auppoae·.t ren1ark made In the course of the g&Jpfa by a l(ld)'. tha.t It was already 7.:00, o'c.ladl. The c::redlbJltty qf this wJmee.s hee&IQ,6. aore ~Q.Oiied to. doubt l,uu:a.wie of the '8.qt. \bat, ~pugb only n. CQlltiGma See.ret Se.ice "41ent ~hit. mantltlY aa14'1'y of·~Qand -~ -. 1¥1t.e ¥4' th:l>ee cbihltteR ta suppert, bll could· iiUll- lruluge In. the tuxury or. weekIU lll"b:hlbc ~mes where the stakes ra~ as b&gb &9 PJ,00· per point and the. lesees as l:!lg a.a ftOQ.. pei- point and the lo9Ses ao1 big a.s N00..00. Ot CGUMe, he claims to hav0 been the winner of o. 11weepstake prl!i:e amouatfftg to Pl!t,600.00 In the draw of October, 1951; but,- If we consider ~h,at b applied- 11'1.000.08 of- It te tht>o payment ot' & loan obta.fned· from the Philippine BISI.It of C!ommtirct" nn~ spent another 1"&;9(16:0&· In the purchase or a c8.r, ~me P!;5".00 for Income· tnx a·nd P!,000.00 Jn buying out' th"e Interests 9f hl11, brothei s In a: J;"eai" eiita,tl!; _I?tOperty ·-h:iher:tted t_roiQ.· ei,;1r rnih#f. av.O. _iQ.1:8Jed In -~b,E;_ 11i:o'llP~e. t.btire woul~ be barely ~5,0lfo.oo. Jen rrolQ.. w!UCh tt1 dig up for the upkeep of bis house 11nd. lc.t In Quezon City, In which he "tnvesieJ PU,600.00, and for the maintenance >f bia car and the mahjong game. Witness Ben Castillo, according to h!mselt Is' a buSlnessman by occupation. H;e tejitlfled ihat; although he subsls~s merely on occasional profits real!Zed from buying jewelry In downtown restaurants an4 O""l the financial assistance extended to him b.r his mother and his sisters 1n the· proviilce, h.e could, Uke Soller, afford from '1m6 to time the, e:icti·8.:\fag9.nt Indulgence Of r.Ja'ylng mahjong games whe1•e stakes nre hlgh. His . memory appears sharpl}r ret~ntlve ab"out ·me. mahjOng party of Alignst · 31, 1952,' lri.cludlng to· him, he· Woh P!I0.00 w·hlch he Intended to use. as ·pJ.~' ment for his house rent. Neve1•thelcss that retentivity seemed to have been sudclcnly lost when It came to 1·ecalllng th1t pi;.rtlculal' ·day In Se'.ptembel', 1952, when h'. · supposedly ho.d made a profit of not 1e8s than· p200.oo from the· site of ·a piece of· ·1"\"·t.:ry valued at Pl,200.00, and which, acCor~· lng to hla :explanation. was the only big sa!e he had made so far, l;I~ "Could riot also ren1ember ·a. d'-te )n:·S~P~.embe1·, 1962;_" ~he~ be-· supposed received· ~rom· his moth~· and sisters· the sum of PS,000.00-·whl~h .he· "liJlr.11e4 to: the· purchase .of merchan~lse. worth F:1,000.00, although, according to·· him, ·tt was the only amount he ·had received and the only_ purchase he had made· -from· lhe u:;onth :o.f August~ ~96jl, UJ>. to the date· of his appearance In ·Court. In short, he p.retC'nds ·to have a good recollection of the na.me.s . and seating arrangements c,l. .the :r.<'rsons Who. played at dltrerellt tab I.es -In the hoUse of Mrs. Mendoza; of the ,~mark ot Mrs. Montano. that· It was already. 7:.oO o'clock and that they had to. l~ve. fo.r a show; ilnd or his offer to the Moiitanos or; the ·Taxi which he hailed fol- hlmsolt; but he ·could not remember that da.y in SLptember, 1952, when he was askerl. by Mrs. ;Montano to testify . in this. ease (t.s.n. 860), nor an.y of .the dates on which he ·pla7ed. the. other·· mahjong gan1es, wi•h .tt e S(!nator. The rule. ls well-settled that the CreUlblUty of a witness may be serlously impaired by a wearlnJJ J?OSltlvely .and minutely to occt rrences which were not.,qf such a 1l,uu1-e D.$ _to. li:npress ~orclbly uwn his meMory. (Lee Sing ·Far v. U. S., (S.C,A.) 94 Fed. Rep.) Surely It 1_8· ve1·y rai-e that v.;e h~nor with o. second thought the many Incidents.· I hat w"e expc1·ience during the ~r •. nor eve~ ine thoiights "we think every -~Jnut~. and .the emotions We unde1·gO each hour. · The_ testl~onY of E~~.Gov~r~~ Jgna,:lo 0111~ sc:~·ves only a mere passing benedlctlQn oon~!d".rlng tbat._~having. Iert the house .. of .l\.Ir~ Men~oza _.at . 5: 3~ o'clQ~k. in t1.1e aflel'llt)OI), that ~,·as the_.;l~_t._I~~ ;aa,y:_.o-f-.the. l!4ont..tinPs on_ 1~1~t da,y. · .. May;qi: ~son's: .. deblara,Uon .. that. hEr.·t1a.w S!!l'lator. Montano .tmd:de ·the Izync" 'l'he:itre' .at 7~111>. o(clock ·Jn the evening ·Ot· A-ugdilt"""31, December ·31; 11152 1962, during the repeat showing of the film "Hoodlum Etnptre," does· not ellmlnat~ Pltogether the possibility. that the unholy .:or1ference had been, In· fact, beJd· shortly .ii.it er sundown tn the Montano residence; con .. lderlng .that that Ct;inference did ·not last Jon~ and th"at Pf. y Marga) ·street Is· wlt.hln ea:sy r!dlng distance froni downtown Man;!£. It lo possible ·a1so ~hat ~ayor Lacson. being engrossed in learning the operation ··lf. (be s!ot machines f~om the screen, may have ht nestly mistaken as t1:1 the .. precl!le time !when he Saw Senator Manta.no· ani his wife· .ente1•ing .the theatre, ··taking ·into a.!.count -the. :rhaYor's own. testimony th;1": he himself left his .residence on .M. Eari'l'>haW ·stl'.eet, Sampa~oc;" at 7:16 o"clock; The snrne ··thtng; may be said .of the ·teSti"llOh\' •of'. Detective Buenaventura, who claimed to .hn:ve ·seen' Senator Montano In ·the L~· r.c Theatr& between' 7:20 und 7:45 t>';;:lock on that same eventng of·· AUgui:it 31, 1952. I·!ls recollection of the: date. · was oased n-;alnly on· the entries on his notE:tiqok ·(ExhibJ.t ·"f");. which: ·h& a116gedly ·pa•lipar(d as a simple reminder days ahead .at ·hiS l:l~he duJed ·engagements. · '·Hi!& · reUabillty · a" to dotes Is; even: n101·e-.o.ffe'eted by hf8"·:1ack c·: ·mem:ory. bf. -even: the ·tno1;~:i·eCeht .~iite when he ·a:JJegedly saw· Senato"!••:i\f'ontano: tOr the last time·; during. ·u1~·-He&ua- ·rild1o·: ;i·e'1',te which:.t~ lti.tter ·1md :w1t11··00,.e.'tho'1· C&merlno a.t- Ute Esaottil;,;:. · Being e"ii.gr..,s.Sell in ·.\sl\a.dovrlng "Ben~ "Kfrat,!~· Ja· 'notod-:itis gengstel', ·· by . · gotn'g ·.1n •'an<Flcb'Ut··"Of· the ·theatre for· that ·1mFpose, ·It .f1(:".e1·:Y ilk.eh· that· the df!tecth'c's 't"cc·onect!On of tfi~ ·'h:l~e l:e allegedly · giieeted Senato'1• · ';\!Ont:i · .1 lfl ti:&- theat1•e must ha-ve·· ·been: 1riaec~·1,ii-e ·1r r>of unreliable, :corislderlng thai 1t··w~s not his concern to check up on' Senato1·" Mo"tano. The C'ourt · will· not d\Vell to"ng o~ the tuotimonY of Mrs. Mo.ntah"a' Who, beC:,•.1!:1e 'rn'ina"l\.' · na:UJre · · rem~lns 1,1itd1tered, ca1mot be. · eXpected to ove1·com·e . the· · tendent:i:: to picture "the ·:Incidents 1n the way t11e lntf!rt"-~ts · of he1· husband· Would dictate. If we considered ·that :'tl1e · tfiahJorig players were stived Only a light" merleiida, · conststll'I;" of pospas, puto, sweets 3.nd ·soft drinks, at ab9ut 5: 00 o'clock In Mrs. Meii.doza's house, ',Jt Is unlikely that husband ··and :wire would have gone. directly to the LYrlc '1'1'Mitre ~-;i:d remained there; until 10:00 o'clock with· c.ut bothe1·1ng t;hemselves to· have al ·1east ia ·sn.ack ID thel1: own hotbe to :Which · th~v had ·not retul'ned slnce--they lldt ·it ··~i·lle,r that noon to attend thiit· pa1·ty. 'Being ·wE!IJ.lt bt>caase .. biased,. thtS· phase· ·of ·the defense alibi .succumbed tciO·· easllY ···to' the· -W'<!.,;ht or the testimony "In sur:reDUtta1::of 'i'Omu d•~ la Rosa, a. dlslnterest.e(i·:·:wnnasS, Who •·ffh·mcd that he..took·Senntor Mon:n1•a:~nd a. lady companion; ·pre&Jm,ah1~ .l\frs: · Mofltam:-: J'l'l.-.Jds :taxi· a. little ·afte1• six o'ClocK-crom a :.h®!illt. s~ewhe1·e. ne.ltl'·· the· ~o'rner. et:.:Femc ·Hyertas;.and Sa11::Laza1'0 liltft;elll atid :dirOY"e .u-.~m ;··directly to· .. tbelt' re'slde1'ce·:-ii't .pry Miu·gal, ·.co'raer· ·D. :Tila!'O't1; ur QUe'to'l'i; City. 'l'HE LAWYERS JOURNAL Deciaion On Montano Bail PIW The Court Was Well Impressed · witn the testimony of this witness. The sir cerlty t~at,1ierVaded his words rendered the"!:& trulrt.wo'rtliy, and his whole testimony w:os ma.de m'ore Worthy or credit by the und?~.::r<'dtted dt.cument, ·Exhibit 1'E", evidencing Ms· grods eO.rnlrigs for that, day-AugUst SI, 1952,...;....o a taxi driver, and by his vivid recollectlOn cf. the experience he had had in having for a passenger no less a prominent pE:r2onage tloan Senator Montano, who made tha.t expo·lence much more unusual and ~lngular b)' the handsome tip which he received from him. All this must have made a lasting li.•pa·esslon which ca:n not be erased from his mind so soon. His Inability to :!.C:.t.ntlfy l!l's. Montano during the hea1·lng when she ¥,as made to sit with four other women cannot matea•lally affect his credlbtll ·y. Mrs. }fontnno · Is not as wide!)· and nationally known as he1· husband, and there Is enougll n:·ason . fo1· the saying that strange fa,ces, under · ordinal')' circumstances, a1-ouse rrelthea· remark nor attentive scrutiny. 1 1.Vhlle In Cami> Murphy, where Senator Montono Is, this witness ably pointed him .ou~ from a •group of six persons selected ·b~·· the defense· and 1vhose resemblance In fPatureS ·to the· Senator., Including the haircut, was·. really vert· striking and Identified ~.Im as the .. person who 1·ode in his tll.xl on .that· ditte." (vide, Exh. "F-1" & "9"). It Is n('tewo1~h . .v that, upon · being askei why It took him.· over four minutes t.o . de~':lrmlne "ho of the se,•en persons was Scnatn1· M;ontano, he replied: "Because thnt s~nator :Mcntano who was a. pass.engc1• of mh1e re• sembl~s somebody here." (t.s.n. 11611). And when askef_l -on cross-examination why he hesitated, he answered: "Paano nga po'y mayroon .ak!lns· pinagi:lududahan ay baka a~'Y'. mag~amali pa.'' .(t.s.n. 1168) .. He wall pt:sltlve and cer.taln In his ·manner o! tdentl[ylng. S,enator Montano; and his fal1\ire to IOentlf·Y ·him readily . In the pictures pres( nted to him previously. should be a.n added credit, rather than discredit, to his ca-edibility. T,hat failure .only. sh.ows the very h~dex of the fact that this witness has not been trained or coached. Since his~ acquaintance with .Senator Montano ls based 011 the fact that he had taken swift glances of him wl'!lle . dashing along the corridors oC Congress,. where he used to go in search or a. recommendation for employment, atid not . on . his frequent assoclatlona with him nor O{t ·.s~elng his pictures on th" newepnpers, ;witness de la. Rosa was only human ~yhen_,he._._fa.lled to Identify Senator )fontar.o. C~·qm; tJ?e.·newsl'aper · 1>lctu1·es. ·, Ii :will ti~ recalled that right after ·1! was de.;:ldEid · durlng the hearing In Cavlte" City th!tt" th"e Court should "Constitute :iself at ca.m1) 1\lurJlhy ·for the purpose of haVing him ideilury ·''Senato1· Montnn0" whO · Was "' pussen.ie"1; '1ii· "·his ·Cab;. thl!! wltnN~ Wae thenCefcirth segregatE'd ·an'd :Jllaced Pra"Cttt'8.l~ l~·lnbOrDinUniCacto, uTlcTer' gd.!i.rd by tb.> Ctetli: M :-c<t.Rflt ·a.n~F by;re·prel!Eiitat'tWs"" of'! ';n~4e fc-il~8"Mid 'tli.?: :pl'o'iiceUtlon~:; ·ln ·J}ofnt. of.fact, D.cl1lon On -Mont.no lall PJ .. he waa brought to Comp Murph"! in the a1:tomoblle of AttJ'. Antonio Barre:to. with :A.tty. Barredo hltDHlt In charp of t~e croup. He remained Incommunicado until he was tlnally aummoned to the roon1 wb~ tbe Senator wu.a u.Irea.dY seated. with the olhera who were purpoely hlllldplcked b)" the defenae tor that demonstration. ·The negallve testimonies of La T~..u-e and Colmenar, close t:1·lenda or the Montano children, lo U1e eCfect tbu.t they did ••ot see tt.e nine persona who contei·red w'th tile Senq..tor In the lattei•"s .realdence In the atteJ. noon or evenlnc In question, are bf no mea.na conclusive evidence that thllH nine 11ersona were not there. These two wttneaes, bf their own .i.dmlaslons. ar8 Intimate friends and are In clQ.8e tcucll with the ta.mil)' life of the Montano.s. often passing the nlcht and taking their r.1eala there; "their testimonies, tt.('retore, must be weighed and evaluated wmi utmost caution. For, as r.lghttull7 obael'ved. "men are grateful In the aame degree that they are reaenttul. The clalma of .friendship be· tween a wttneas and a pal"t.y are treQuentb' ju1t aa powerful an 1Qfluenoe In i..haplns hie teatlmon7 u any merC911aey ir.uttve could be.'' (II Moore on Fa"cts, lHli). On the teatlmony of Gerar4o Ja Tor.:e, the Court can onl)I' s&l" that the weJsht of probabtlltlea that It beara, maku It tou weak to carT)" out lta mission. Take, tor Instance, his bold assertion that he left his hou8a to puu the night with the M:ontanoa and to spend the whole of> tlie da)" and the night that followed without even a hint 'Jf Jt to his parente with whom he la llvl11i.;. Hts story became more unllkel1 when tt.e reb1ittal wltneas, Petronila de la Cru1t. testified that he aaw Ia TolTtl at the latter'• house on Lico Street In Tonclo with hie futher, Catalino la T01•re, first at eleven o"clock In the moinlng and then at five o'clock In the afternoon of Aurruat :n, 1851. In ·an eifort to deatro)I' the teatln:.0•~7 of Petronllo de la Cl'us, the defense attempted to prove through C&tallno la Torre that the latter eould not have been In Manila at any time on Aucuat 11, 1162, bscauae he left ·for Palawan on the MjS Oen. Ma.Ivar "on AuSliSt 28, 18112, returning to Manila on the anme boat onl)I' on September I. 1DG2 from Coron. But It ts Interesting that r.owhere tn the p&aaenger manlfeet tar that 1:eturn trip does his name api)ear either as a paying PIUl•enger or a& a recipient of a compHmentacy ticket. (Exhibits "0-1"' to ''C-4''. Annezes to prosecution's manifestation of November 3, 11&1). This glvH rise to the poaalbJllty that Catalino I& Torre might bave bought a ticket for Coron but bid not uae It, 01· havlnir actually mAde ihe trip, he might have returned to Manila on or before Auguet 11, 195!, b)" plane or aome • o.• aome other means of tranaporta.t.'t-n. Guided b)I' theae obaervatlOllll, tht'! Court :~eves that tho testimony In Chief or G~· n.rllD· la. • Tarro·, was· aucieeaetully r<ebuttei .b¥", the FO•ecutton. · On -the ot&er hand, th .. testimony or Tomaa de la Rolla. the tazl driver, rema111a unlmpalntd: effectlvelJ" alao, I' hu uaalled the dramatic. ]Jl'etenr.ons of th• dele1111e wttne.._ that Senator and )(ta. Uontano left lira. Mendosa'• reatd;n•ce at paat seven o'clock In the evenlns, dll-ect tor the L)'rlc Theatre and that they retu~ home only after ten o'clock. The proeecutlon appears auccesaful In unveUIDg thla 'alibi and In expoalng before the Court the correct . hue of all the aa.aerttona. Faced t"1ua with an overwhelming evldenre for tbe prosecution, t11e Court le lnqulastnt to lwnor teatlmonlea proceedlq trom the Jlpa o'! witnesses who related the tacts a.B they •·anted them to. be and not ae theY were. The alibi of Irusuln, which purpl.'rte4 to show his abaence from that unbol.J· con• fc.-rence, cannot prevail over the pmdUve avowals of credible _wltneaaes who attuted. to the contrary and agalnat whom no Improper motive hod ·been ascribed for teeU· t:rtng In the mann.,. the)I' did. The credlbJllty of Dr. .Al'ca. an.4 Dr. Sa.· n:1onte, Who clalm·ed tb&t Iragutn wae at the bJrthda.y partJ' of Ex-Governor Banionte tr. C&v1te· Cltl", between ebc o'clock and 1:00 o"ola;ck P.M:. of Ausullt 11, 1862, save W8)I' &nd crv.mbled too eaallJ' under the- tutlMOllJ' of Juan cl• Gusman, an old rnldent, who aftlnnad that Irusuln l1eve1" attuded tJlat PILrtJ' and that right In that btrtb4ay party the orsanl.atlon of Cab&llll'Oll L.ibrea held a meeUns. Th.e aueruon of .o,, Guaman ·on Iruptn'a poettlq abeence fU•lft exGc:vernor Bamonte'a P8l'b' conoluetvely and directly corroborates the previous te&Umon~ea of Magltan and Ma.callan that 1111autn was with them and was the one who took them. and their other compan.I01111 t.o the realdence of Senator Montano laat Aoguet ''· lt Is tJ.•ue that De Guzman ta ·on)}- one proaecuUon wltneea against the defenr.e wltneaaea Dre. Arca and Be.monte who had teatlfled that Irupln wH at the party of the former Cavlte governor. Dr. 9amonte, hgwever, la an aestatant Phl"lllclan ot Dr. Arca and hi• testimony, th•·etore. must be neturall.7 patterned after that of hla chief 'Wl"l10 .comes fl·om Tansa, the hometc.wn of Senator Montano. There can be no credlblllty a.lao to the statement of Dr. Arca that he had no personal llktng tor Senator :Montano and yet had to teeUf)" freely In favor of the latter. It la coins- acu.Jnat the grain of human natu1'8 If a pei:aon wbo dlallkes JJ.nother, ahould curb his dtallke and teatlf)" fc:.r the latter. lt ta more lotrlcal and eonat11tent tt such person keeps hhnaelf aWQ" and refrains from taklnc active atand In favor of the one h• dtallkea. .Again, It must be ccnaldered tl"-at the b1rth'1&J' parqr glvtn b)I' ex-goverrior San1onte, one of the founders of the Caballe-· roa Llbna. was apparently lntendE.d for m&ll'lbera Of this tioatern.lty ao that th8)" ec uld dt1cuea and actuallJ' turn over then the amount Of lndlYldual contrtbutton• tor THE LAWYERS JOU:aNAL tht: construction of the propoaed l1ullcllft8' o.' the tn.ternlty. lr11&1n., who wa:is rot a member, certalnl)I' would seem to :1• YVJ' much out of place there. If Dra. Bamonte nnd A1-c11. were preaeat, although admltted1,i. not rmternltJ" membere. It waa becauae llr. Samonte, a nephew of the eZ-governor, took upon hlmse1t to Invite Illa chief, D:-. Area, and other co-docton to hl:s uncle'• blrthda.)· po.rt)·. Viewing the rslde of the defenae that lruguln waa at lhe party, It would anm nevertheleaa that nobod)I' bad Invited Iruptn to tilat part)I' because he was not a mo?mbar of the Cabe.lleroa Ltbrea nor wa• Jt made to appear that either ex-governor Sanu"Jnte or hi• nepliew Dr. Samonte had Invited. ttm to come. Moreover, De Gusman. It was brousht out, knew Irll&'Uln very well and,· aU.hough he was In that house from 8:10 to I: 1i o'clock, he was poaltlve 1ru,;•ln was not there durllll' that time, .i:nucb lu11 drink with Dre. Arca, Sam.on.le an4 Jd:edir.a and ~ne Ellglo Giron. He aaw all the .. ,-entlemen. but certalnly not :u.Po Irll&'U'n. With reepect to the a.Ubl Of Iruslrln for September 2, 1162, the. atatemenh flf Patrolman Baalllo 4e 108 S&nto• and Ani!res Baplrltu cannot be trueted becauee their reaIJMUVe' atatemente are all replete with naG.rkel! lncOMlstencles not only In themlienre8 but alao with each other. To that extent, In one porUon of his teatt ..:ony, de kl• Santo• -.p that be doee not re.i:nember wben Irugutn came and aat beside him 1nLde the stadium: but In another portion, h ata.tea that Iruguln aat beside him at ntout nine o'clock. Still. In his statement preaentec1 as Exhibit "Ii", he ata•.ea that Irupln a.rrl"Ved when ~he game betweeti the Harlem Globe Trottfrs and the N·-w York Celtics waa alreadl" In Pl'0"'8a•. Pa ·rolman Jill·plrltu glvea a stlll different version. He atated tha.t Irugutn cam- tn darlns the k.st quarter of the Ateneo va. Sto. Tomas game, which preceded that of the Harlem . Globe 'I'rottera. There ta, therefore, ab81.•lutely no credlbtllty that can be r.ttached 'o ·the teaUmonlu of Patrolmen de loa Santos and Espiritu. lt ta obvious that wltr.e&aH of thla kind cannot succeaefull7 auppc.rt an alibi, especially when, .1,a before •t.t.i, such allbl baa been deatro)'ed bl" ro:buttlnc" wltnesaea. It ts well-settled that tile defenae of alibi 06.nnot prevail over 11oaltlve Identification (People 1·. Jl'altado, et al., G. R. Nos L-1804, L· 1711, & L-1711, June 37, 1848); It la eaall)· manufactured and la U8U8.llY unreliable auch that It can rarely be elven creden.:!e (Peoplt v. Padilla, 41 Phll. 711). Indeed, alibi must be clu.rl)I' and aatlafactorlly proved and ahown: otherwlae, It must be conaldered a:s lnetrectusJ (People v. Limbo, 41 Pbll • fD). In at Just two casea, the defense of aHbl Ht up b)I' the _accuael1 baa bf.en beld 11ar. not sufftclelit to overlbrow tbe mdence of· th•· proaecqUon Where' tt aPpeans that tfle place where tlie ·offeDae has bHn ·Com111Jtted. la not too distant from th• place December 31, 19fi2 ' aet up in the alibi (People v. Reaabal, 60 Phil. iBO; People v. M:anlego. et al. G. R. No. L-2253, Kay, 1149). Tbe wltnessea tor the prosecut!On teetlfled that Senator Montano left the reeldence of Mrs. M~dom sometime before 8:10 o'clock while thou of the defenae claimed that be left the said reelchnce aflei- '1:00. The Cl.la· Lsnce between the realdence of Mra. Men• doza and that of Senator Montano could be negotiated by car ordinarily from. 6 to 10 mioutea.. 1n an enalogoua ):!aae, ~t· !WU held: "'Both appellants were that ~lght In placee about three or four kilometers distant and It wae not l~po .. lble for them to bEr ID the scene of the felony e'ven If their w1tn...e. had not' deliberately lle~l, oonslderlng that a difference of one hour Is n •t uucommon amond" people who had no part1cul&1.· Interest to bo accurate. Anyway, ~ur experience and 0111" 1·ullnp hold that s• ch defense ls easy to manufact1:.re and Id neceaarlly weak In the face of poalUve lU\verse teatlmony.'" (People v. Manlego, et. al., supra). A81de and apart tro:O. all lbe forecolng cnnalderatlona, this Court .ts, In conaclence, c natralned to make the observa.Uoll that h the reception of the e'illdence, It. has cc.refully sc1·utlnlzed the demea.nor and. il'le rr.anner In Which the dltre1-ent wltneueil testified. While It Is true that the . wlt1.e-saes tor the prosecution, ns oompared. to those of the defen8e, belong mostly to the r.~nk and rllo of cltb:enl"y, the Court Is comPf!"11ed, bemuse of theh• sincerity, to gtve c1edencc nnd weight to thell· statements and decla~-atl_ons ovei· thoso of the defense. The•e per11ona are slmple·mtnded. and are re. equipped with the lmaglmUon to pre- · Rent fla.wleu decl11.rat1cma before this Court. On the other hand, the teatlmonle<1 of the wltneases to1· the defense had the familiar l"'ng. which puts a. Court on lta Cl\8rd. To <RP It an, they rnlled to give any •cmvlnolng tn81s to support their depa1;ture from ,the llome of Mrs. Mendoza. From all appear~' cea. thG)I' testified D\Clt°ely to pi•o:J.uce the ll<alred result. B"t the s•ant qr ball·ln· tboae_.coaea bu bnen predicated uPon· humanitarian oonelderattons. Wltbal such ca.aes cannot ba Invoked aa autbOr'~l>': Jn support of this petition because no •v14.ence waa lni.roduced by the defense In the bearing with res:pect to any: special olrcumstance, let alone tllat wldeb was bald u appropriate baal'I ror the grant of ball In the foregoing casea. Insofar as the resolution of the Instant petition la concemed aueb matter& are aHunde, becauae tha resolution must neceaSlll'Uy be baaed solely upon the evidence that have ·been adduced durtnc the h.qrlna- of this petition. The . only epeclll.I conaldeJ' .. tlon advanced, vis., that petltlo;,_er will not abacend or thwart the couree of justice If ·Mlea~ on ball. does not provide sufficient Huon In law·to grant hall. Thia J!I a. conclualon, no~ supported by the· evidence lntroO.uced during· the hearing of the peUtlon, upon wllleh this Court may premise Its flndtq on ·that acore. Wblle this court ma:r ta~e juCUcla!- notice that petitioner 18 a Sena.tor, that position of the accused •landing alone, cannot give blm special eonal6eratlon: . It la 'n~t ,a. guarantee that be wlll not abscond. or thwart tint courae · of JUlltlee. Jf he ·ao duJree. The othc1· con•ldetaUon aprln&dng fl'om hl:a· position (which was raJaed: du11ng the ea.rly part 'r•! the hearing, -by way of mnnltc .. tatlon) tiJ the effect that the public lnte1·eat wlll avU.r from .his ·cOnunued detention, alM tnJla ahol'I: o.f. tbe .atandant. required In order tu JusUty the aantlng: ot ba.IJ for a ·•P8Clnl eonal4eratlon, attei' 'l'I. llndlng tha.t Uie pres1.mptlon of BUI.It Is strong. The constitutional and atRtutol'l". provlsloM lhllke no dl•UncUon betwr·en hl&"blY placed P"-bllc ott:clala and the ordinary cttlaens. Jn fact, l"I rupect or oonstttutlonn.I rights, It la the \"(TY euenee or ou1· Gove1-nment. that all person stand on equa:l footing bef'or' the lnw. The cases of Qovernor Rafael La;.•&0n and Ccncnssma.n. Ramcm Durano cannot b• Inv• ked In aupJ.)Ol1; of thla petlUon. In these Cl:'sn, tllere was no opposition to the grant Fino.Uy, a. word about the first ground · :u~!.::· :h== 0~~h~~leaae under Invoked b:y the defenae In the preaent ap· p:loaUon ror ball, namely. that ''Without n~d or determining whether the ~vldence ot gullt aplnst Mo~tGno Is strong or not, the Court can and should grant him hall bcca.uae his preaent standing, his back· ground and hla conduct In ~Onnectlon with the present co.se are all aufftclen~ auarantees that he will face trial and wlll ne\-e1• attempt to escape tf relea8ed, on ha.II.'' Jt la true U..nt there bQ.ve been some Cll888, vis. People vs. Sison (L-398, Rea. of Sept. 19, 1841), Di; la Rama vs. People"s Court (43 O.G. 4.11)7), People vs. Berc (G. R.~. No. L·157&), whe1:e ball. baa been &ranted. b11_cauae of cu-taln ·special considerations lnvol\lllJI" rl1oka to the Uvea or tho pei.·sons concerned, like orltlca.1 tllneaa. December 31, 1952 Ovea· and above, In the determination of tile rlcht to ban In capital ottenae, when It la clear from the 0 eVJdence that. the pre'llunn>tlon of gul!t la strong, the Constltuuon and the Rules or Court are mute and affords nu discretion which the Cou1·t may exercise :n a.d11111ttlng the· accused to b&n under thoae er ndltlons. Although In aome cnaea, dlacaetlon la presumed by the ver:v nature of the t'unctlona of the courts, stlll that dlac1etlon mus~ be exerclsed with extreme cr.uUon. For, aa Clark 111.)-""S, "where the off-u.ae waa a felony p~nlabable .by death, -II was scarcely ever all~ed, for It Wll8 not thought that a.n:v peounlary conatdernUon Could weight against the deal~ to live." ·c.::.n1·k's Crim. Procedure, p. 16). THE LAWYERS JOURNAL Detiision On Mont.no li•il Plea lVHBREFORB. In the light ot the tore· S"Olns" consld.eratloua and. on the baal• of tl.c· 0eTidenee presented, tbe Court t.aa found tho evidence of cullt of tbe bereln petlth ner to be atrons. and conaequently the r1 tltton "for bnll, la hereby denied. In closing, this Court makes It cf8elally publle that as a friend and an aoqualnt&nc& ol!' the aacuaed Senator Justiniano 9. Montano, be baa found. It extremely dlfllcult, e1?1barraaaln1r1 and awkward to sit and Judge the petition ror ball or a. natlona.1 figure 'Who holds one of the hlchest poaltlona It ts wltbln tbe right nnd prlvllega of tho l'Jllpl~ people to bestow, u ~ friend and 0.11 acquaintance of the accused, the penon who ha.• the 'hQnor to alt and Prea.lde over· tbls Cou1·t could have closed bis e1ea perlu>.pa."nnd sranted ball. But In tbl11. country ~ hold lnvtolnto and sacred our Institution of justice cm whose wlae prlnclples we hove confidently erected the foundation• a.nd· plllara of our young Repgblc. Painful a~ bitter as It has been for tb1~· Judge, Irr h&4 to sl:lck to the norm of all Impartial court.a riogo.rdlng the tncorruptlblHtY, bOnet.tJ', and probity of :flldlclal de<:lslon8 for hr.th rich· 11.nd poor, and for the wealt and h nuentlal alike. Thia Court ma.de this de- · clalon guided slncerely &nd solr!h· by "the p~ ovlslona of the Con8tltutlon, · the Rules cpf Ci.ourt, and the judicial preeed6ft.ta. aa.fe and . secure In the lepl and moral convlctloQ that he has done full Juat1ee to· the petltloq, - nnd t~ t~e parties that dlaputed for ·It~ . 1eaolutlon. Finally, ns a commentary on the bel)JLYior o: the parties be!ore It, let It al•~ remain ro1· the 1~cord ·that, this Court render• .a glowing tribute to the blgh. sanae of JusUce o~ the defenae panel, ao. abl:y hee.dtil'l by the lion. Lorenso Sumulong, and of th i Special Froaeoutors. The hearing had been conducted on a lofty plane and as dlapaaalonatel)I' as the explosive poaa'bllltlea-due to the high poaltton of the accused and the p•Jlltlcal situation In the province of Cavtte - permitted. Guldea by their ethical aenae l"!&t the f>roceec!lncs be conducted In a Ju· d1c!oua atmoaphere free trom the ar.Jmoaltle11 •isend.ered by personal preferences and polltlcal partlsanahlps, both prosecution and defense eooper&ted fully with the Court In • nOble manner that speaks hlchl:v Of their . ct mpetence, Interest, aild strict •dberence tc the prlnclplea of Justice, rectitude, and lrr.partlallty which underlie our Judicial. &latem. IT 19 BO ORDERED. Cavlte City, December I,, 1112. (Sp!.) FELJCIBW.0 ~qAJi.Po .Judge 671 f Republic Act No. 7391 AN ACT TO REQUIRE THE RECO~ STITUTION OR RECONSTRUCTIO~. IN THE BUREAU OF MINES. OF LOST OR DESTROYED MINING RF.·. CORDS. AND FOR OTHER PURPO· SES. Be ii enacted by lhe Senate and House of Representatives of the Philippines in Congress assembled: Section _ 1. Any locator. le~se appJ;~ cant; penmttee, les'.see, concessionaire, asllignee, owner, or holder of mining claims or concessions the record& of which were lost or destroyed, either tot-ally or partially by reason of the lust war or the circumstances arisii:.g therefroo:i, and which have not a'S )"et ':>een reconstituted or reconstructed under an administr-atiye proceeding in the aureau of Mines, '.iihall file a -petitiQD under oath with the Director of Min~ for the reconstitution or i-econsnuction of said records within two years frotn the date of the approval oI this A~. and shall Dr~~ute the same witli rtasonable diligence in accorda.nce with the rules and regulations to be promulgated by the Secietary of A1triculture and Natural Resources: Provided, That the ria:hts of said locator, lease applicant, permittee, lessee, concessionaire. assignef", owner or holder over such mining claims or concessions are valid and existi~R: at the time said petition for recon ;titution or reconsfrudion of records is filed. Failure to file said p"etition within tht period fixed in thi'S Act, or to proiwcute -the same with due diligence, shall ra1uk in the loss of all ri1thts acquirf"d l:-y virtue of the said location, applicatic:.n~ permit, lease or concession, and the land covered bv the same shall thereupon be open to relocation or aoplication by third partier& in the same manner as if no pr.ev.ioys location, applicatieill, permit, le¥e or concession for the same la.nd had ever been piade or granted. Sec'. 2. Any locator, lease app[ican., per.e, lessee, cmcessionaire, assi~ nee, owner or holder of mininiz: claims 01 concessions who has in his nossession documents pertaiDing to his mining claim 01 concenion, shall inform the Directo,. et 'Mines within two years from the. date 0£ the approval of this Act, of the existence of such mining claim or conceSsio~1 documents he possesses. ff copies of tbe i;ame are found not existing in the 1Cords of the Bureau of Mines or of the mining recorder concerned, the Direct"r of Mjnes ~hall so inform the said locator, lea'Se applic~mt, permittee, lessee, conces672 Republic Acts sionaire, assignee, owner, Dr holder, wh:1 shall, within thirtv days from receipt of s1:ch information; file with the Direct<>r ot Mines a netition under oath for thr reconstitution of his records in the said bffices, ·accompanying hi'$ petition wit-n cutified true copies of said mining documents in his possession. Failure to mform the Director of Min~ of such dr.cuments and to file the petition wh"n required within the period fixed- in this Act and to prosecute the same with due diligence in accordance with the rules and regulations to be prorµ.ulgated bv the Secretary of Agriculture and Natu· ral Res~~rces, shall. open the area c.>-vered by· sllch minine: records to rel04;~ t1on or· application by thll:d parties in the same manner as if no location~ applic:,ation, permit, lea~. or concession had ev~ been ~ad~ or granted cOvering the same area. Sec. 3. Every petition for reconstitution or reconst111ction of lost or destroyed mining records filed in the Bureau .,f Mines in accordance with this Act, shall be accompanied with a filing fee of fiye pesos. Sec. 4 .. Decisioiis and order's of the Director of ·Mines on ases pertaining to th reconstitution or reconstruction of miniog records as provic!ed for in this Act, may be appealed to the Secretary of Agt-iculture and Natural Resources by filing with the Director of Mines a notice of such appeal within thirtv days after receipt bv the party apoealing c·f a copy of such decision or order. If n<l appeal is made wi~hin said oeriod the decision of the Director of Mines shall be.: final and binding upon the parties concerned. The decision of the Secretary of Agriculture and Natural Resource.11 may be taken to the court of competent jurisdiction as in ordinary civil · cases within ~irty days from receipt c.f such decision: Provided, That if no such action is taken within the oeliod of thirty days from receipt of such decision, the dediion o.f the Secretary of Agrici.dtufe and Natural Resources shall li~ewis.e be final and binding uoon the parties co(lcuned. Sec. 5. This Act shall take offed upon its approval. Approved, June 18, 1952. [Republic Act No. 740] AN ACT TO AMEND SECTIONS ONE. TWO. THREE. FOUR. FIVE SIX. S~> VEN. AND TEN. TO INSERT SECTION 2-A IN, AND TO REPEAL SEC· TIONS EIGHT AND NINF. _OF ACT THE LAWYERS JOURNAL Nli:MBERED TWO THOUSAND SE· VTN HUNDRED NINETEEN. OTHERWISE KNOWN AS THE COAL LAND A.CT. AS AMENDED. AND FOR OTHER PURPOSES. Be it enacted by the Senate and House of Representatives of the Philippine$ in Congress assembled: · Section 1. Sections one, two, three, foq~. five, six;, :!.even and ten of Act Numbered. Two thousand seven hundred nineteen, otherwise known as. the Coa ~ Land Act, as amended, are hereby amended so as to read as follows: .. Sec. 1. Coal-bearing lands in the PhilipPines 1hall not be disposed of in ci.ny manner except as provided in thi.; A<t. "The ownership and the right to the use of land for agricultural, industrial, commercial. residential, or for any pqrpo&e other than mining does not include the ownership of, nor the right to extrac;t or utilize, the coal which may b~ found on or under the surface. The ownership of, and the right to extract and u.tilize the coal included wi1hin all areas fN which public agricultural land patents are gran~ed are excluded and excepted from all such patents. The ownership d, and the righ~ to extract and utilize the coal included within all areas for whic::h Torrens titles are granted arC excluded a~d excepted from all Such titles. "Sec. 2. Any unreserVed and unappropriated coal-bearing land:i may b:: le-..11ed by the Sec;retary of Agriculture and Natural Re"$ources in blocks or m•cts of not less !than fifty nor more than twelve hqndred hectares each in such ma.oner as may, in the opinion of th-: Secretary of Agriculture and Natural Resources, allow the economic development aad exploitation of the coal deposit: Provided, That an applicant may be g1 anted ·a lease or lease".; on not more than six sepiJ.rate blocks or tracts of c0:al land in any one province: And provided, further, That the aggregate area of al! slich blocks or tracts shall not be more llhan twelve hundred hectares in th~ whole Philippines. The lease may be gr anted to any person twenty-one ye~rs of age or over who is a citizen of the Philippines or to any asst;ic;ation, par~ nership or corporation organized undPr the laws of the Philippines: Provided, That at least sixty per centum of th~ capital of 'Such cOrporation or association is owned and held ·at all times bv such citizens. · "Sec. 3. Leases under the pIOvisio.'1.s December 31, 1952 ol this Act lhall be inued upon publicatioa, in the manner and 'lubje,;t to the rules pracribed by the Secretary of Ag. riculture and Natural Resourceo, for a period of not more than twenty-five year•. renewable for another twentY-five year.s subject to mch. terms and condi~iont aJ may' be ·authorized by law at the tim• oi such renewal, aod oo :such leue lhall be IUligoed or 1ublet except with the c:onseot of ·the Secretary of At!riculture aad Natural ROIOlll'Oel, and in this C..e only to Persons. pUtnership'I, associations. or cotpora..tion1 having_ ~ qualifications required of I ...... : ProviJed, That failure of ao aPl'licant to prosecute hi& coal lease a~Iication with reuonable , diligence and to have .. ,the area cov~~d thereby :suneyed within one yea,r h0o1 the date said application is filed in the ~:r.:,u :/ :in~~~ be.,:'~~~~ placation. E~ lease shall contain a cl&USe by which the 1...... lhall bicd himlelf to c:ompfr with the rules and r•· . .Watioo1 iuued by the Secretary of Ail· riculture ud Natural,Resources for th• E-urpose of insuring the, exercise of rea. "'nable diligence, skill, and care in tho q.eration of said property and· for tho pJevention of undue wa·s~. together wi~'l !juch other rules and · regdlations as the Secretary may make for the· jlrorectio• cJ the interests of ihe Government and fo1 . the proniotion of the publiC ·w.lfare. I' or the privilege -Of mining, elilracting, a.od dis~oting of the coal in the limdt Co.ered by his !em, the lessee shall pay ~? the Government of the PhilipPiDei 1iirougb the C!>llector of lotemar Rever.ue, such royalties as may be "specified 111 the lease, which shall not be less than ten cenLaws per ton of one thousand aod 'tixteeo kilos, to be· due and payable upon the removal of the coal from the locality where inined and an annual ren·· tal, payable in advance on the the da:e cl the approvol of the leaoe aod oli the swne elate every year thereaher on the laocls covered bv such lease, at the rate rate of two pesos and fifty ceqtavos pef hectare or fraetion thereof· for each and every year for the .fint ten . yean. and five peao\I per hectare or fraction thereof for each and every year thereafter dur· ir.g the life of the leue: Prauided, That ouch rental for ·a•v·year ihall be ued~ed against the rpyalties. u they accrue fOJ that year as pi'ovided in this Act: An;I P1ovided, fwther, That such rental aod royalties paid during any year lh-11 be aedited again'st the specific tax proyid· ed for in section one · hundred forty.dn-ce ~tional internal revenue ~~ a. Sec. 4. Any person,· 11SSOC1atioo, partnership. or corporatiO!I. holding a lease of ~ lando under this Act may, a1. any time surrender such lea'lle or-·anv portion. theRof,. and with the approval December 81, 1962 of the Secretary· of Agriculhlre aod Natural R.sourees and thniush the .... e procei:luie and· uPoia the Woe terms and conditipns as in the cue of the fint lease 111anted under this Act, oecure and hold additional leases on such blocks or tracts •• jirovided in this Act, covering additional lands separate from or contiguous to those embraced in the original leue or leases, but in no evenf shall the total nuigber of" such lease exceed six in any one province, or the total area embraced in ~qch original and new leasea exceed in the ag!P'._q'ate twelve hUndred hectares in the whole Philippines. "Sec. S. Subject to the approval of the Secretary of Agrii:ulture aod Natural Resources, lesoee holding under ie..e. contiguous .bb:b or: areas may comoli· &ale their .•aid leues or holdinp oo a• ::'ot°':~"J ~~ hh~~ /!~ provided all 1 ... ees have at the time of ouch coOSQiidatioa complied individually • all their obligaiiona towards the Government. · "Sec. 6. Each lease shall be for such leasmg block' or' tract of ·1aod a• may be offered or applied for, DOI , ... than fiky nor more than twelve· hundred. hectare11 ol land as hereinabove pr<>Vided. "Sec. 7. Any . persons, auociation, partnership or corporation who, withO\it fir•t secwing a coal lease;· revocable pe .... mit or Jicen';ie under the provisions of ·this Act, lhall mine at>d extract coal belon•· ing to the government and dispose of lh• same for commercial purposes, ·or from an area covered by -a coal lease. permit or license of another person without hi• permiaion, shall be guilty of theft, "' qualified theft, as the cue may be, aod shall be punished, upon conviction, in accord.ance with the provisions of the re· vised penal code, besides paying compenoation for the. damage> caused thereby: ProvUled, That in the case of usociation, partnership, ·or corporation, the president· or mana•~ thereof lhall . b• , resp<>D!ible for the acts committed by such· 8'sociation, partner, or corporatio.i. "Sec. l 0. That in order to provide for the supply of local aod domeotic: needs for fuel, the Secretary of Agriculture acd Natural ·R~_,.... may, under IUCb 1ules and regulations as he may prescribe in advance, issue to any applicant qua· lilied under section two of. this Ac~ whether or not he is an applicant for, or holder of, one or more coal leases under this Act, not more than three limiied lice111e1 or commercial revocable permits granting the right to prospect for, mine, aod . dispose ol co.al belonging to th• Govtrnment on \specified separate tracu covering - an area of not to exceed four hectares each .to any one person, aaso-ciation. partner+ip, or corporation in any :rHE LAWYERS JOURNAL one or more coal field for a period of .., exceediog ten years, on such conditiolll not .incomislent with lhis Act U in his opinion will promo· e :he coal industry ldld safeguard the pubJic i:l?e:-est upoa payment of a royalty of fiky -t~ per ton for the croal mined in lieu of the specific tax on coal ... Sec. 2. Sec:tina 2-A is hereby ioaerted between sectiorrs two and three of Ad Numbered T wa Thousand -.. hundred nioeteeo, as amended, which lhall read as follciws: "Sec. 2-A. ·In case a coal leue or revocable permit application covers in whole or in part private land. the ~-.e ob.all be ac:cqmp•nied by the written authority of the owner of 1he land: Prouid- , ed, That in case of refusal of the owner of ·th.e land 10 pant such written author~ ity, the matter as well as the amount of compensation to be pa.id to the owner ol the land dtall lie fixed by •-lit between the applicant and the ourfaee owner, and in case of their failure to :rr: ~!ei:;.:t::;:a:it!he ~=:i of compensation to be paid, all quesiions . issue· 1hall be determined by the c:ourt nl first imtance of the province in which \laid land is situated in an action in•· tituted for the purpote by the applicant aod the permiuion may be granted by the .court as aeon as the applicant deposits the amount bed as compemation· for any resulting damage or fil<'s a bond to be approved by the court oulic:ieot· to insure the payment of the compenaatioa for the owner of the land. The court lhall ther.Upon determioo the c:ompeJ11a· tion for an resulting damage. for the purpooes for which the land has been· aPolied for, and thereafter grant the wrjt:n wh~th.:fl :\.U::;:::-Jbhi. i:d iocluded in a coal lease Iha!! be eotitlod !:·:h~.:!~ :n~lt:tr':t~!f ,!: his private land. Conflicts aod disput<'s ari1ing out of mal lease and/or coal revocable permit applicalion1 lhall be 1ubQlitted to the Director of Mineo for decioion: Provided. That the decision or order of the Director of Mines may be appealed to the Secretary of Agriculhlre aod Natutal Resouree• within thirty days from the date of its receipt. In case anyone of tho parties sliould disagree from the decision or order of the· Director of Mines or of the Secretary of Agricuhure 0od Natural Resources, the matter may be taken to the court of eampeteot juriodictioo within thirty day. "from the niceiot of ouch clecioioa or· order: otherwioe, •he decision of the Director pf Mines or the Secretary of Agriculture and Natural Resources as the case may be, ohall be 878 final and binding upon the parties concerned." Sec. 3. Section's eisi;ht and sine of Act Numbered Two thousand seven hundred nineteen, as amended, are hereby .re· pea.Jed. Sec. 4. All laws and regulations or parts thereof, which are inconsiste:i:t with ihe provisions qf this Act, are hereby r<•pe&led. Sec. 5. Thi. Act shall lake effect upon its approval. - · Appr<>ved, June 18, 1952. !Republic Ac! No. 743] AN ACT PROVIDING PROTECTION T0 LOCATORS. HOLDERS. LESSEES AND OPERATORS OF UNPATENTED MINING CLAIMS AND LEASES DY EXEMPTING THEM FROM THE PERFORMANCE OF ANNUAL LABOR OR ASSESSMENT WORK REQUIRED BY .EXISTING LAWS FOR TME YEARS NJNETEE.N HUND~ED .~ND FIFT\ONE TO NINETEEN HUNDRED AND , FIFTY-TWO INCLUSIVE. Be ~i t;!naded by the Senate and House of Representatives of the Pl1ilippines in, Congress assembled: Section 1._ Any provisions of E-xisting laws to the cont~ary notwithstandinp;, the ~erforro.ance of annual assessment Vr.'Grk or improvements, by locators, hold· en, or operators of unoatented minim~ claims atquired under the Act of Cong.- af Jul¥ one, nineteen hundred and twe, as amended, or mining leases Rranted under ·-tbe Mining Act, are herebv waived for a periad Qf two years- begm · 11ing January one, nineteen hundred and fifty-One to December thirty-one, ninete~n hundred and fifty-two inclusive. Sec. 2. This A.ct shall take effect upon its appr_oval. Approved, June 18, 1952. [Republic Acl No. 746] ."iN ACT.TO AMEND SECTIONS ·TWENTY·EI'GHT. FIFTY-NINE, SIXTY· ONE. SIXTY-TWO. SIXTY-FOUR. SIXTY-EIGHT. SEVENTY· THREE. AND ONE HUNDRED. OF COMMONWEALTH ACT NUMBERED ONF. HUNDRED THIRTY·SEVF.N, AS AMENDED. OTHERWISE KNOWN AS THE MINING AC1', Be it encicled by the Senate and Hou~e of Represenfafioes ef the Philippines in Congress assembled: Sedbn 1. Subsection (a) of sec~ion t.wtl\'ty;.eight of Corntnonwea·lth At:? Numbered One hundred 1hirty-seven, known a's the Mininp; Act, is hereby amended to read as follows: .. Sec. 28. No prospecting shall ·be allowed: .. (a) In a mineral reserve wlich has been proclaimed closed to mining locatit1ns, and in reservations established for ether purp~es. exce"'t by the Gover - ment." Se&. 2. Section fiftv-nine of Commor,wealth Act Numbered One hundrd thirty-seven, known as the Mining Art, is h~reby amended to read as follows; "Sec. 59. Fifty per centum of ~he fees collected by authority of the preceding 5ection shalJ ~.ccrue to the province and fifty per · centum of the same, shall accrue to the ~unicii)ality in whic.1i the mining daim is locate!I. In the case cf chartered cit-ies tht- full amount sha!I a~ue t~ the city conCerned. The c1tv or Municipality -a.nd :r>rovince shall pr<W°icie funds for the necessary personn~l. postage, 'supplies and· materials, ·and ~uipment needed by the mining recorder in the registration and safe keeping of mining documents." Sec. 3. Section sixty-one of the same Act is hereby amended to read as fo!lows: ' "Sec. 61. Conflicts and disputes ari::iing out of minin1Z locations shaJI. ·be submitted· to the Director of Mines for decision: Provided, That the deC".isidn or ordCr of the Director of Mines may be ap-.ealed to the Secretary of Agriculture and Natural Re!ources within thi1ty days f1 om the date of its receipt. In case an::; c.ne of the parties should disagree fro.m the decision or order of the Di!'ector C'f Mines or of the Secretary of A"riculture and Natural Resources, the matter mav be taken to the court of competent jur1~· diction within thirty days from the Tl!· ceipt of such ~~i~n or order; otherwise the said decision or order shall be fin11.I ' and binding u9on the parties concerned." Sec. 4. Section sixtv-two of the same Act, as a.mended, i'8 -hereby further amended to read as follows: .. Sec. 62. Any qualified person making a valid location of a miniRR claim or claime, his successors, and assign's, acquires thereby the right of exploration and occupation from the date of the regis_try of the claims in the office of the mining rE:corder; and if he applies for lea'$e ef said claim or daims and, upon investigation, it shall be found that it 1s f1ee Of daims and conflicts, or that his application apoears to be prima facic well founded, subject to the rules and resrulations that the Secretary of Agriculture and Natural Resour~es mi,_1· THE LAWYli:RS JOURNAL p1...,ibe, Ill! shall be enti!led, before "1e lease is granted as provid_ed. in . rhis Act, to a temporary per!lit, to be issued by · the S~retary of AaricuJture and Ne.·· tural Resources within forty-five daysfrom the. elate apJJlication for si.ich "*' Il'it, accom)Janied .bY the necessary techr.;;cal de.scr1ption and survey · olan of the mining claim or claims. is filed, to mine. extra4;1 and dispose of minerals from_ said_ claim or claims ~r cOmmercial purposH .. subject, h!)wever, to the payment of rO~ ~al~ies p~vided in_ the. N atioDal Internal Revenue CoQe, as amended, for, claims covered ~Y lease: Prov_iJed, howaier. That the holcfen of mining claims lo~ cated under. the Act of Congress of July one, nine~a hundred and two, - a.it amended, who may . .ilpply for a lease or l~ases .thqeon under the provisions of !C:ic~ boa sixty~eight of this Act, as amended, su~ject to the rule! ~nd re.1ulations ihat the Secretary of Agriculture a"nd Natural Resource:s may pre.>cribe, may extr•ct minerals therefrom -for commercial PUrp~es withOut such -ter:DporarV permit until such time as the leases· applied for are granted subject, however, to the payment of rovalties pro.vided for in the Ni'· tional Internal Revenue Code, a'S amended, for claims covered bv leases and l'> th~ condition that the mining claim- or claims to be develooed or explPited sh.ill first be properly surv.eyed: Provided, firially, That !he Secretary of Agricqltur"e and Natui::al Resources may at anr time cancel for violaton of laws and .egulations and 4'.fter due hearin"s the temr;iofary permit granted ~nder the prov111.ion of this Act, an~ in the cate of unoa_tented mining claims located under the AC:t of Congr~ss of July one, ninetee'l hundred and two, as amended, stop the extraction of minerals therefrom for co~ mcrcial purposes, without any respontj• bility on the part of the Government a'!o to eXpenditure& for development. worb ur explOit&iion purposeS that might have been incurred bv the apolicants, pend: log die determlDa'tion of- t,heir appliCat1ons for lease." Sec. S.. Section sixty-four of the same 1\ct is hereby amended to read as follows: "'Sec. 64. 'The Director of Mines may dengnate compet.ent mineral or depu1y mineral la·nd eurveyors to survev mininr\ claims for- any necessary purpese under the orovisions of this Act. He is at.lo hereby empO\yefed to fix the bonds cf duly qualified deputy mineral land -surveyors and to issue the necessary rettelations governing the execution and v~ rification of 'sUrveys. of mineral lands in the Philippines. All applicatiblls for ~ ficial surveys of mining ·daims shaft be filed with the Director of Mines before or upon the filing of the lease applicl\ .. December 31. 11152 uon. and the necenary survey of the mininp: ~)aim 9r claims 'shall be made with. in a. reasonable time thereafter .. and the ···~ense'S· ot· sUch Sur\reys shall be pair) : by the applicantJ:. TFiey shall be ar llberty ·tc,. empl9V ally- such deputy mineraf ~ur veyor : to ma~~ the ~utvey at the. mot.t : reil9Ullable rate ... Sec. 6. Section sixty-eight of the same· Act. . as amended, is hereby furtht" ·a~_ehded to r.e~d' as 'fQllOws: .. Sec~ 68. Applicad:o:n f.or a· lease cm a. mining~ ~laim. shall be filc!d within four ,y<:aN &om' rm !late al die recording of the· claim-.in tire office of rhe milfidt -.e'corder. Failu.~~ t'O file .. sueh. application within . the· oeri"od ahove:-m·entioned shall I::~ :!ieemed an absndonment of the mining. claim. an·d the land embr.aced• with. fo· .'rllch. cl~im shall th:erieupon be op:eft. ta . reloeation: in' the': sa1ne manner as if nl) leication· .of the same had ever: beea made-: .. Pro~ideJ ... That the criginal: lbcator,. his . heirs. or his-. assigns, wh°' has: or haTtCthU5- iailed to- file- a lease application: on· the· claim ':shall Dot be' entitled.1 to relocate. .. directly or indir..,.ly, tire land emmaeed within such claim. or anY part thereof." Sec. T. SecriOll ,.,......three· of th~ ome~ Act. i5 Jtereb.V' aarended · to read as 1r.uuw., "See. 7-.l At Bnv time. during the period of application,. any adver.se da~ may· he filed undei oath with the Director of 'Mines, and· sliall. state in full detail the nature, boundari!!S. ari.cl extent of the adverse claim;, and: shall be aoccmPanied by all plans •. documents,. and agre:~ments upon· which such adverse claim is based.: Prooided, hoUJelJt!r, That no adverse claim from any person, association, partnership or corporation, who~ p1otest filed under section si»t.y·one of. tlils Act has alread\r been . finallv decid: ed' by the· Director 9f. Mine-s and/or th~ Stcretary of Agriculture and' Natura.I" ·Resources, 11hall b~ ,enterrained. Upon the fili"ng of any adVerse· claim aU proceedings except the publication of notice of application for lease and· the making and' filing of the- affida.vit in· corrnectil'kl' tl:erewith. as herein prescribed, shall b~ stiay-ed: until: the- c:ontto.'Versy shail. ha.ve ·&aim: settled °' decidied by a court. >f cmdl>etBlr jm:i.;diction, or ·the adverse claim· waived;. b shall be~ the duty of the ·&civme- claimant",. within thirty days af• rer ·Jiling his claim; to commence proceedi11g1- in- a coarr of CODlpetent. jurisdiction· t"o dete)11line the controversy and to prosecute the same wi:h reasonabJ.clilig.cnce t<>' final jud .ment, and a failure to do so · shalr be con:;idered as a waiver of his adVase claim. After sue~ j._dgment' shaU' have I:reen rendered, thieParl:Y whose right to a ledse on the Ilfininl' claim in controversy, or-· any DO!· tion thereof, shall have been· establisht:f tlierel>y. may, without giving further no'""'·· file a certified copy of th« iu'di!ntent· with the Director of Minic'.;, and· die description Te"Q'-!ired irr such cases. regerher: with die proper: fees, whereup::ia a IE:aw may ferthitl} be- grartted ther;:.011 on· such miei11g daim or on such oort1on theteof a·J the applicaltt m4y !Je entitled to under the decision of die court. lf the· d~cision·· of the court· is that !tev:. - tal• parties! are e~titled· fo' leases up?n a:epa'l'afe and· different' p:onioris of the n1ini11g claim·, the subject matter of the application, and sudt parties· have there· tnfore appliell th6refor, 1eas .. may forthwith· be ~ed tG· l'lti said seviral parti<=s· 11CCOrdin,: ti> their·· resp~tive 1ights asd"eremiin~d. by the" ·decision. If in any ac· tion broughl' p .... nt to this section. a right to a lea~· upon any of the claim in controversy sh~.IJ, not be esta:Llishtd by any of t_he partie's, the cowt shall· so 6nd an4' judKment shalf be entered acedrdinKIY. Jin such case tli""e derf of the court rcndei:ing jJJdlment ~hall file a certifi~d copy of the· igc;J1'Dl.ent with the Direcbr ot Mines,. where.upon the oroceedings: under tho lease application shall he di•· misse~ and the application denied.." Sec. 8. Section one hundred. of the same Act i's hereby amended to read as follbws: - "Sec. JOO. Any oerson who, without c1. mi_nes temporary permit or mining lea:se shaU extract minerals and dispose of the s~·.me for commercial purpow, belonRiDI{ to the Government 9r from a mininlil[. clilim or claims leased, held or owne-1 by other persons· without the permission of the· lawful lesses, holder or own'el' thereof. or shall steal oru-or the µrodi.lctt· rl-ereof from mines or mills-. 'shall. up•>'I· ccnviction, be imprisoned from, S:iX month" to six years or pay a fine of from one thousan·d pesos to twelve thousand pe· se's, or both, in the discretion of the cour:. IK.sides paying compeniation for the damage caused. ther~J?y: Pr.ovided, Tha~ in the case' of association, partnership, or THE ST AR OF BET LEH EM Republic: Ac:ts corporation. the president or manaRer thereof shall J>e respon'~~le for the acts COlhmitted tty· mch ~tion, parflidrship or corporation." Sec. 9. This Act sh.a.II rak.e effe~t upon ils · al1J)roval. Approved, J~ne 18, 1951. [Republic Act No. 8'10] AN ACT' AUTHORlZ1NG TlfE GUERRILLA AMNE!;TY COMMISSION TO HEAR A~ES-TY APPUCATIONS IN" CERTAIN CASES EVEN IF THE SAME HAVE ALREADY B'.!EN DF.· C!DED BY SUPERIOR COURTS. Be it enacted by the Senate- e111d Heuse. of Representatives oj tire PhiliPtJin<?s in _Congress assemb:!ed: · Secrion f. Any law or decision to dte contrary notwithstandinsr. the decision of any superior eourt in a. criminal ca'-! .. finging. the acts- of the- accused for whieh he has been• prOsecuted·. as not falling under Amnesry Prodamatio01 Numher eight, dated. September seven~ nineteen hundsed and· forty-six, shall nor. bar him from raisin51 or reopenimr d:te 1ftue d amnestv in· connettion with the said· aets· before the prooer Guen:iUar Amnesty Commission: ProoideJ~. however, That tte accusedr has not oreviouslv applie-i for amnesty in connection with the aid a:cts to any Guerrilla Amnesty . Commission or that' he has not pleacl'ed amnesty as a defen".tt at the trial of the said criminal case in any inferior court. Sec. 2. The prooe·~ Gi'.Jerrilla Amnes, .. ty Commission. referred to in the precedii;g section· shall~ upon ·petition of th~ accused, receive ·such evidence or fu:-ther evidence· as he-·may su.bmit in· sunport" of liis aoplication. Sec. 3. Th~ decision. of the Guerrilll\ Amnesty Comlnission denying the accused the right' of amnesty shall be aO· pealable by certiorari io the SupremeCourt. Sec. +. An a-pplication· for amnt".;ty may be-.filed either by the· l)e}'$0n· responsible- for the acts· fot which. he invokes· amnesty or by his representatin!'. S<c. 5 This Act sh11ll take .!feet upon its· approval. Enacted without. Executive approval~ June 22, 1952. As was said In the Book. whe·n the Star did shlile In Bethelem flocks, and the Wise Men from the East to where He lu". on that early morn, It was to apprise the world that the Savio:- was On this day and age. may that Star Indeed shine upon our hearts born in a lowly manger, and to guide the shepherds tending their v:lth deep h1.;m1Uty. love and kindness tor our tellO"W"men:-L. D. R. DElti!mber 31',-1952' T,HE LAWYERS JOURNAL 675 Book Review REVISED PENAL CODE-: by Vfcente J. Franc:seo, · i-tpaired, so--h~d Pean -~r&ncisco .incisively cut tQ th~.d~ East Publishing, 1952. Vols. 1 & ·2, !"19.00 a volume; "'1ilosophical beds underlying e~ch provi.ioo of the peoo) .cad•. P35.00. a set. This was don_e. · ~ the. pref a~ -states, '"not out of presuJP.pbOn. None has contributed more to the country_'s legal literature but in the honest 'ConvicriC!n that a coUection of prO'lisians of l~w. than Dean Vicente J. Francisco. He has written Jegal treati~es and decided case_s must ·necessarily be haphazard, co~ing, _and and texts 00 almost ~ery ph~e of th~ Jaw, and always, each in the end of little help or value, unless it is brought together and field of the Jaw upon whicft-his .. incisive mind has ploughed. has ciianized oi:i the basi!· of· principles." · been enriched thereby. Every book he has written i's concededly At the same ·time. the ~mphasis due to judicici.I jnt~re~~On authoritative. and on more th~n one· occasion, the Supren:ie Coui-t, and applications. of:our criminal law wa'S not neglected.· OQ the iu its ,decision·. made reference to some of them. And if all the contrary, discus'sion ·of the decisional -l~w on the subjeCt waS made l<·gal tre~thes and texts he .bad previously written bear~~ i~ ruore comprehensive; by the manner of-presentation adopted;.'i~ preas of authority, that impress. ~ould be m~re m:u~ed and mdub!- is made in question and answer form in the maDDer. of Viada. table on his latest book. the sub1ect of wh1ch-cr1mmal law-~e IS The legal problem posed by every proviso in the penal code··and most qualified to write about. To, this subjec~, he h~ de_dicated a i:.> solution are presented in a direq, dramptic and .e~ly . .'.UIJ:dergreat portion of his life;· to his su~~. in its practice, he ow;" standable way. S~ch mode of approach· makes possible a :commuch of his fame as a legal practitioner. Indeed, the Dean s prehensive di~ussioa of almost al~ !he c&Jes decided. by the Suname has become inextricably linked, has become almdit synony- preme Court m connection with the particular proviso in. qu'81'.io1• mous even, with criminal law. It is not surpnsmg. ther~re. that Tl;n~s, the book i~ !lot only. an analytical study of the philosophy the publication of the present volume has been much awaited and behind each prov1s~c:m of: the code; it ah!o serves :the purpose of a. so well received. ca~-book. ynth th_1s deci..ded advEmtage: that it is.. presented in a Th I th ost ecent~ of the commentaries f4?.rm m~t c~nvenient both. for die busy la'Y}'er in the provinces th 'R ~dfa vol'C:Je ~w':s pr:mpted by the author's .. ~ - ·who clue. t~ c1rcumstan~ ~ftim~ beyond his·con~ol. -~annot keep on e evrse ena . • l d k .1 bl t th abrealst-with· all th.e decmons of the Su.preme Court -as· well a~ lief th.at i~ is his pro~ession.a th uty tod~a f av~! ·~at la:,~. Aii for the candidate for the bar. whO will find in· the n~er mode of hkni~ pr1~1~nal .experhien~~ . m k ~ t:a n~~: s:lf .citmbecomes ~f any app~ach, apt trainin!. in· how· to make effective answers to b·ar ow c."'tSe .. IS vam w en It is. ep 0 • • . I d questions. · use only when im~arted to oth~rs. The 1mp,artmg of know e ge: hc.wever. will be ineffectual, 1f not 4one·lYJ.th a noble ~urpose. Taken.all.tog~theJ!, Pean Francisco's Revised Penal~CodP. The· present work, impelled as it had been b.r the . auieor s ~en'Se is the most comp_re,flensiy~ s~udy. of· criminal law. so far pUblilm.ed. of kiruhip with his feJlow lawyers. and by his desire· ~ aid ID E;ach article of t,h~ ':Revised Penal Code is treated first, from ·its the fulfillment ·of the profession's ·pledge to defend_ t~e m~oce~t h1srorical aqd philosOphical background. folJowed by .the judicial and bring the guilty to jwtice." ha~ such .. a purpose. An~ m thi5' int~rpretations made tliereof. In conttovei~al ··questions, ·and iri st-nse, the book may tightly be; called a labour of love. the a~nce of decisions· by· the hil'her courts oil the matter, the • · · d k I · · auth~r ~tigg~t_s possible solutions. In the book, on~· readily ~ Dean Francisco's RetJiseJ Penal Co e ma es a we~ome the hand of )1. legal craftsman: ·it" is Written in a scholarly, ·but departure from the usual technique employed by other co~men- r~adable and far from pedilntic. ·manner. It breathes the spirit tators on the penal law. The autho~ has n~ contented hmrself and intent of the purpdie and fpnction of our· criminal law. It with citing and reproduci~g controlhn~ ~ecisions. but ha~ v~~- is compact but thorough in the treatment of the subjec't mat. tufed farther afield by settmg .down pri~cip~es and c~me~t~rie_s ter, anf] should be a cre~it to. the profeesionaJ library of judge;s derived from the ohilosophy and the Jurisprudence of cmrunal and ]awyers as well as to the bookshelf of stUdents ·bf law. law. As a skillful surgeon artfully cuts to l'et to the affected parts of the human anatomv sO that thev can .be remov._ed_o_• _____ ---------AT_. T_Y_. __ L __ oP~E~E_. A_D_R_r_AN_o_ IS A LA WYER . • . (Continued· from page 620) son argues, may not affect thi: character or soul of -ihe ·waJk~!". b h If Pleading earne~.Jy a cause which the lawyer knows to be untrq.e sent the· 6xte~uating facts &nd circumsta~ces on his client's e a · cannot btit perqiciously affect his charader. Chicanery and .insincerity sho~ld be nQ part of a lawyer's Whatever the situ.ation wa\s in JOhnson's day •. there should rnake-.up in any case. be no ~rtifi~ at the B~i:. Nor shoul~ a man "resume. his: W~aJ LeJ us return for a moment to the deliR"htful dialogue between behaviour .. the moment he comes from ihe Bar. The JaWjrer's Baswell and Johnson. It makes wonderful reading. Is it a reel usual behavior both in his office. and 8.t the Bar and in Societ\'. answ~ to the question pqsed p.t the b,eginning of .. this an~cle? should be that pf a man of pr~ity •: integrity aiid absolute dep~D.o. you_; MJ\ Lawyer, or 'ihdeeci UY human being posse~s dability. , ~ , tlie ambivalenee· to dissilllU.late ·in the courtroom, and· to .. resum~ The argument that a lawyer should be a mouthpiece for bi) your usual behaviour'·'. when you come from the Bar? Can yo11 client, indelicate as that connotation may be, is specious and onl.V throw off insincerity. and dissimulation. in the courtroom as thouP.I; logical to a limited extent. A lawyer shou14 nOt J>e m~rd)', ·~:.m:- it were a cloak, subdue that dishonest portion of your th~nki~li!", chanical apparatus reproducing the words and tJioughts and aliand resume being a man of. ~DteSrity whCn yoti retuFD to your bis· .of his client, ·no matter haw insincere oc· di\Shonest ... Rather the office? ~ r 18.wyer ·should refuse to-1peak ·those words as a mouthpiece, un~ less the utlerances of hi~ client are filtered and purified by truth Inevitably the two character traits contained in the one bodv and sinC.Crity:· -· · · - =~:!iJYd ::.::~~e~ in?e:;ii~;sl.v. dissimulation and insi~c~ritv will . Chicanery., dissimulation and insincerity may be words to be found in th~ dictionary in the lawyer's library. But thev should Whether he. w:~~~- ~'?l;l .~i~ .h.an~ .. ,?!'.. feet. ~:s Samut:I Johll~ .. never be ~o~nd in the Jaw:r~r·s heart. 676;- THE LAWX~RS JOU.RJo<AI,· December-· ~1; l~&e: -• • @#ih¥4 c:i!AWYER'S -AUIEDA, POl.ICARPO R-J07. Burke D"cl;;., Eseqlta Tel. J:J1.611.-al18 0ANUllAllA, NES"l"OK )t. R-60J SorinnD Dltlg. Plara CerHnles. lllmila Tel. Na. 2.75.90 A~-ro~m. llOM.\N II JOll 5mmmillo 11:.1c •• nani'il 1"el. 2-'IZ.119 AS1.l"1t•:s. Ur. PABLO l.a ... ro:r llrdieo-1.ei:al E'll"''' · ~am:i lles.1 Dh"fl. cm"llH Soc:i<l!fl Manila l"el.6-5.1-i6 DAR:i\DI. MAl"ltO & GAl.1.AllDO. I". P. M. IC.S. D11i'.clin%. Pinzn Cervau11u Tell. 2-sJ.J9--Z·'N·Si . llP:l.E:"<. CA\'ETA?W PE G:." .J'.\001.l~A. JOSK S. lt-21>6 Kalaw U~tlg., 721 U11eso11 01 .. ,1. Tel. No. J.J0-78 ill"KSA\'IUl•:S, llOSENDO K-ZI I Borja P!ollt"., 641 RiHI A>'ci. Ma11ila CAIUll':N.\S, JOSE Pt:KF.Z. 4Q5 A>'ih1, Manila TeL 6-71-86 l'llA~. ENRIQUE 0 . . R·JIS Ara1o Dhla;. J.fllnlla , 1't'I. Nn. 2-65-IR I- 6-7,.(IJ t..01ti•n;, ENlt10liE J. LAW OFFIC'F.S lt-204 Cu-U11jilfl111 Dld1. Anae11 F.scolrn,a.larrila -CHl'Z, Al.llliR'J"O V.; SAN'lllS. At'l!:\"t:1111 P. I.aw Offke1 R-211 Cinrcia Bldg. Ri.a.I A...e., M111iln 1'el. 3-22-~J IMl'A\'0, 1.E(l:il I' .19~ l1:11nl1111a. Sta. I IDI lla11ila UAl.l'PAN I SMffllf.t It-JU Rnin11 llhlx. Eteolta, lb.nila T"I J.J1.S7 .. ... .. .. ::DIRECTORY 1ln ,.;,.. ftf 1'• ""'"""' d'•lhr11t1r ut •-•D& 1M orlllCa ,. rruucinll" •11omit .. •. the Journ"I 1111bli~he• this direetonr ID !C!!!i• hUI nnly their clients but alSD 1he 11ablic of their addre111e1. LaW71111 n'"' :u·ail lhemulves M Ibis M!n·ice u1111n f1117menl af Tw. Pa. f..1 11!ll0 h ••~IH' Df lbil publicali1111.J FERNANUF.Z JR.: ESTANISl.AO A. 301 Sam"nilla Bldg., )l11nila DIAi.• Tel. J·22·1J Call: 02' Fll:A:ir;CISC<i Al.UERTQ J. R·201 Sanin.11iilo Dld;i., Ma11ila Tel: J..JJ.6'1 FRA:"fCISCO. YIC"E~T .. : .I , lt-201 Sam:milln Dklr .• ll••iila l 0el: J.JJ.64 <iOllKZ. AllAIJOlt E. (1811 l'a1'11je Ro:iiario l':te0. Manili> "fel.:5·46-12 Cil'ERRERO, DERKAltUINO 774 Lepnla, S•lllP"h.c. Alanii. Tel. No. 6·79-19 Gl_:HVARA, DAVID It GUEVARA. JOSE S. R-Jl-4 Regina Bide. Escolta, Manila Tel. J.27.57 Ru.: )falahon, RIBa.1 Gl"ZMAN •• PRllDE:s'CIO DE R-201. York Town Dlilg. 410 Riial Avenue Tel. No. J.JJ-79 MURILLO, Al.FREDO M. R-404 Sa.n1111illo Bldg •• EM:nl111.. Manila.. Tel. 3-20-81 Lo~·al ~~ JAl.ANOONI, RODEGELIO R·Zfll !'amanillo Bide" .. J.IaniJ. T-el: J-JJ-64 'J.tACAPACiAI., PUNSAl.A:'t & YABUT SuilH 218-320 Conqolicl111ftl Jn .... ~1P1en'I Rl•la. ·J,lanila MAltASIGA~. !-"RANCTSCO H-201 Sam:millo Bide., )lan1la Tel. J.JJ.u OCHOA, JOSE F. l.eir,al Depl. Dotica. 1\n~ •. Tel. J.2J·56 l'\C"llF.C"'O. F.:)IERENCIA~A S. 371° San Aa111.n, Manii. #Jirilflt'lfii*@j • • OUISUMDIKG, SYCIP. Ql'ISl").IUl~G ' SALAZAR LAW OFl'll:ES Sth FlaDr, Trade and C01nlfff"t't! llLl1.. 12J Jailn l.u'Ra, J.lanila Telcpht111e1: J.73.gy a Z.llJ-l6 SALAZAR, AMADO G. R·SOS Sarnanillo Dlol11., a:-11a, llaalta T-el. Na. J.2ft.81 1.ocal 4~ SAN JUA~. Al'llll.:A, \"NllilJES A BENEUlt.,(I Suit• 226 Re;i11a Dklg., 2nd FIDor · E-lta, ll.:urila, T.,1. 3·28-60 SAXTOS. JoSK Tl. llF. I.OS, )1.-\l.l)IRAN • I SANTOS, CIRIA":O T. DE Io,:: Suitt 202-20b l'eo.ll'D l.n1• Bide. 426 E.-.11pli~hl. J.la1tila Tel. J-~44_~ :, :rnso~ bAlt~ES. \'Af' .. ffl.AN<o J07 Sinpon Bids. J07 Si1111son Bide. Maall1 Tel. 3-14·1' SORIANO, :UANl'IU. A U SariallD I.a ... 0HiCI'• ~Hile 405 Sanwon•llr> f11>11. ~-Ila. )lanilll TECUJC.00 JORDA~ LA\V OFFICES Aruocia:e~: Judge I •. J. ll11nccnicla I. K. D.iuliMa F. E. Padua Sbites i11.21a. 211d Fir. 562 T. Pi11pin cornH Oninoin, )lat1ila Tel. No. 2-87·24 TENZA, IU.151'".ll M. Suilll! Xn. ~08, Saman1\lu llt.11 Escolta. ),fanila Tel. J.21).AI Cl.-1 Jll \"•"RliARA. \l.\1°IAS P. Jl9 Gn-at F..11tn1 Ha1.:1 •• ,.:,; F..ch•IUI' •?•nlta ··74'7 • BONDS All KINDS INSURANCE FIRE b. MARINE Manila Surety & Fidelity Co., Inc. Dr. PRECIOSO S. PENA .. r.E~ERAL MANA!iER . Rm. 301, MONTE OE PIEDAD BLOG. Plaza Sta. Cruz, Comer Ongpin, Manila TEL. 2-88-80 • BRANCHES: 110110 AITY, S1t11.,r1N L. ... i:sm• Bmnflr M1111ay'r llACCIOD ~!Ji. ~I \NI•) 5. \111.1 AXl'l'YA /lro111d1 .1lmmt1rr IUCENA, QUEZ()>.I A·1n. FHr1-tr. 1'. l.ut·r~ A.ul. fl,,,,.,J, ,l/11111111.-r .>-. SAN FERN .. lililOC'I, ~AMPANGA lh. 1;11..,.:i-111111 T. C.-1.!1-111n /lr,111,·h .l111111r,,t'r NAGA Abt. F'RAMCISCO bll'F.IUU LAOAG, ILOCOS NCRTE DK. PAlll/) .I. R.\\"AI. llra1ul1 M.urn(Jl'f CIBU CITY, CHU J\11t. \'Uni.IX_.\, ,hllt!N. Hr,111.·/1 .lla11tr.u1•r CRIMINAL LAW (In Two Volumes) by VICENTE J. FRANCISCO Prnident and Dean, Fr•nciaco Law School Member, Philippine B•r An exhauetiva and up•to·dete Commenterin on the Revised Penal Coda and oth~r apacial ptin•I l•wa patterned after Viada'e Commentaries on the Spenieh Penal Code~ Each article of the RevlHd Penal Code ia followed by brief and conciH statements or principle•. Thee prinoiplae ere illu•trated by decided o~aee in the form of quution• end answers - the facta of a c••• •nd the ieaue reiaad oonat!tuting the question; and the decision, conati· tuting tha anewar. The book will ba en invaluable eid to practitioner• end atudenh of lew alike, ., BUSINESS LAW (In Two Volumes) by VICENTE J. FRANCISCO President, Franoisoo Law School Membsr, Philippine Bar and FRANCISCO DALUPAN President, University of ths E .. t Member, Philippine Bar .. One of the mut noteworth)' devslopments in the llducatianal field during the recHt ,years he• been the incrHeing ~'! prominence given to the atudy of BuaineH Lew in achoo!• offering cour••• in Commerce. A few years ago thia eubject we• taught virtually nowhere eeve in lew achool1. Tode7 it i• baing generally taken up by progNulve collegee end uni• -r•ities. It i• • study the educetionel v•lue of which can hardly be overut:mated.''-From the Preface of the· Book, Ordel'I! may be placed al Prlee .• p1t.OO per volume EAST PUBLISHING 1192 Taft Ave .. Manila Tel, 5.43.51 Prnvinclnl order.s must f11r.h1df' ad~lltlnnal amount ,ff fl'2.0CI to .. ·ovf'r patitage and 11;-indlln,: expemw.11.