US Vs Soliman

11/19/21, 10:11 AM PHILIPPINE REPORTS ANNOTATED VOLUME 036
[No. 11555. January 6, 1917.]
THE UNITED STATES, plaintiff and appellee, vs. GABINO

SOLIMAN, defendant and appellant.
1. STATUTES; REPEAL; APPLICATION OF PENALTIES.—In any

case in which a statute prescribing a penalty for the commission of
a specific offense is repealed and in which the new statute provides
new and distinct penalties for the commission of such offense, the
penalty which must be imposed on one who committed the offense
prior to the enactment of the repealing statute is that one which is
more favorable to the convict.
2. ID.; ID.; REPEAL OF REPEALING LAW; REVIVAL.—Section

12 of the Administrative Code provides that "when a law which
expressly repeals a prior law is itself repealed, the law first repealed
shall not be thereby revived unless expressly so provided," but this
provision does not change or modify the rule which prescribes that
when a law which repeals a prior law, not expressly but by
implication, is itself repealed, the repeal of the repealing law
revives the prior law, unless the language of the repealing statute
provides otherwise.
3. ID.; ID.; ID.; ID.; PENAL CODE PROVISIONS TOUCHING

PERJURY.—The express repeal of section 3 of Act No. 1697 by
the enactment of the Administrative Code (Act No. 2657) revived
the provisions of the Penal Code touching perjury, which were
themselves repealed, not expressly, but by implication, by the
enactment of Act No. 1697.
4. PERJURY; ACCUSED TESTIFYING IN HIS OWN BEHALF.—

Under the provisions of General Orders No. 58 an accused person
may, if he so desires, testify under oath in his own behalf, and in
that event, "if he declares falsely as a witness in his own cause, like
any other witness, he incurs the penalty by which false testimony"
in criminal matters "is repressed and punished."
6 PHILIPPINE REPORTS ANNOTATED
United States vs. Soliman.
https://central.com.ph/sfsreader/session/0000017d35fda2f166eead8b000d00d40059004a/t/?o=False 1/18
5. ID.; ID.—Due regard for the situation in which an accused person

finds himself, when testifying in his own behalf in a criminal
proceeding, will restrain a prudent prosecuting officer from the
filing of charges of perjury in every case in which he may have
reason to believe that the accused, in his anxiety to shield himself
from punishment, has not adhered strictly to the truth. But when, as
in the case at bar, an accused person voluntarily goes upon the
witness stand, and falsely imputes to some other person the
commission of a grave offense, he should be called to account in a
criminal action for perjury upon the complaint of the person against
whom such false charges are made.
APPEAL from a judgment of the Court of First Instance of Manila.

Campbell, J.
The facts are stated in the opinion of the court.
Francisco Sevilla for appellant.
Attorney-General Avanceña for appellee.
CARSON, J.:
The evidence of record conclusively discloses that the defendant and

appellant in this case, Gabino Soliman, testifying in his own behalf
in the course of another criminal case in which he, with several
others, was charged with estafa, swore falsely to certain-material
allegations of fact.
On that occasion he testified falsely that a sworn statement
offered in evidence in support of the charge of estafa, which was in
effect an extrajudicial confession of his guilt, had not been executed
voluntarily, and that its execution had been procured by the police
by the use of force, intimidation and prolonged torture.
The trial judge who presided in the former case acquitted the
accused on the ground that there was room for reasonable doubt as
to whether the extrajudicial confession had been made voluntarily,
and his action in this regard clearly establishes the materiality of the
false testimony submitted in that case; moreover, the materiality of
the evidence is manifest without considering the judgment in the
case in which it was submitted, since, if accepted as true, this false
testimony necessarily had the
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VOL. 36, JANUARY 6, 1917 7

effect of rendering wholly incompetent the evidence as to the

extrajudicial confession, which otherwise would almost conclusively
sustain and necessitate a conviction. (U. S. vs. Estraña, 16 Phil.
Rep., 520.)
There can be no doubt that the accused was guilty of the crime of
perjury as defined and penalized in section 3 of Act No. 1697 and
that the sentence of six months' imprisonment and P300 fine

imposed by the trial judge was correctly imposed under the
provisions of that statute. It appears however that since judgment
was entered in this case on November 23, 1915, section 3 of Act No.
1697 has been expressly repealed by the enactment of the
Administrative Code, which became effective on July 1, 1916, and it
has been suggested that the judgment convicting and sentencing the
accused under the provisions of that statute should not be sustained,
and that the repeal of the statute should be held to have the effect of
remitting and extinguishing the criminal responsibility of the
accused incurred under the provisions of the repealed law prior to
the enactment of the Administrative Code. We cannot agree with the
proposition thus stated.
In the case of United States vs. Cuna (12 Phil. Rep., 241), we
held as follows:
"The rule of interpretation of English and American common law, by virtue

of which the repeal of a law prescribing penalties is held to have the effect
of remitting or extinguishing any penalty, loss of rights or responsibility
incurred under such law, as to all persons who have not been convicted and
sentenced under the provisions of such law prior to the enactment of the
repealing law, is not and has not been the accepted doctrine in these Islands.
"Where an Act of the Commission or of the Philippine Legislature which
penalizes an offense repeals a former Act which penalized the same offense,
such repeal does not have the effect of thereafter depriving the courts of
jurisdiction to try, convict and sentence offenders charged with violations of
the old law prior to its repeal."

A question does arise, however, as to the penalty which should be

imposed upon the convict.
If the repealing statute provides or has the effect of providing
new penalties for the commission of the acts penalized under the
repealed statute, should the penalty be imposed in accordance with
the old or the new statute?
Article 1 of the Penal Code in force in these Islands defines
crimes and misdemeanors as voluntary acts or omissions penalized
by law; and complementary to this provision, article 21 provides that
no crime or misdemeanor shall be punished with a penalty which
has not been prescribed by law prior to its commission. In
accordance with these provisions the question whether an act is
punishable or not depends upon the question whether or not at the
time of its commission, there was a law in force which penalized it;
this rule being modified, however, by article 22 of the same code,
which provides that penal laws shall have a retroactive effect in so
far as they favor persons convicted of a crime or misdemeanor.
The courts of Spain and the learned commentators on Spanish

law have construed these provisions to mean that such penal laws
are to be given a retroactive effect only in so far as they favor the
defendant charged with a crime or a misdemeanor, and that, when a
penal law is enacted repealing a prior law, such repeal does not have
the effect of relieving an offender in whole or in part of penalties
already incurred under the old law, unless the new law favors the
defendant by diminishing the penalty or doing away with it
altogether, and then only to the extent to which the new law is
favorable to the offender. In other words, that the enactment of new
penal laws, notwithstanding the fact that they contain general
repealing clauses, does not deprive the courts of jurisdiction to try,
convict and sentence persons charged with violations of the old law
prior to the date when the repealing law goes into effect, unless the
new law wholly fails to penalize the acts which constituted the
offense defined and penalized in the repealed law.
VOL. 36, JANUARY 6, 1917. 9

Thus Pacheco, commenting upon the new Penal Code of 1848-1850,

of which article 506 provided that all general penal laws were
repealed by its publication, says:
"At this time when the Penal Code is being put into effect and
given force, we have in fact two criminal laws in Spain, and close
attention is necessary to apply them properly. There may be
prosecutions which it is necessary to dismiss, as, for example, those
for sodomy; others which it may be necessary to decide in
conformity with the provisions of the new code, as, for example,
those for carrying concealed weapons; and others which must be
judged in accordance with the old provisions, as, for example, many
cases of robbery. The rules of procedure in one or other manner
being furnished us by the former article (article 19 of the Penal Code
of Spain identical with article 21 of the Penal Code of the
Philippines), and the present article (article 20 of the Penal Code of
Spain and article 22 of the Philippine Code). Has the code increased
the penalty? Then it is not applicable to crimes committed prior to
its enactment. Has it extinguished or diminished them? Then it is
clearly applicable to them." (1 Pacheco, 296.)
And a similar construction was placed upon the provisions of the
Penal Code of 1870 by the supreme court of Spain. Article 626 of
this code (which is substantially identical with article 506 of the
Penal Code of 1848 and article 611 of the Penal Code of the
Philippine Islands) repealed all general penal laws prior to its
promulgation, but the court held that, where a crime was committed
prior to the publication of the reformed code, the penalty prescribed
by the code of 1850 (the code prior to that of 1870) being more
favorable to the accused, that must be applied. (Decision of the

supreme court of Spain, 17th of January, 1873.)
We conclude therefore that in any case in which a statute
prescribing a penalty for the commission of a specific offense is
repealed, and in which the new statute provides new and distinct
penalties for the commission of such offense, the penalty which
must be imposed on one who committed
10

the offense prior to the enactment of the repealing statute is that one
which is more favorable to the convict. (U. S. vs. Cuna, 12 Phil.
Rep., 241.)
It seems important, then, to determine whether the repeal of
section 3 of Act No. 1697 by the enactment of the Administrative
Code had the effect of providing new and distinct penalties for the
commission of the crime of perjury, and whether the new penalties
are or are not more favorable to the convict in the case at bar than
those imposed by the trial judge.
Section 3 of Act No. 1697, which defined and penalized the
crime of perjury, repealed the provisions of the Penal Code defining
and penalizing the crime of perjury, not expressly, but by
implication, and we are of opinion .that the repeal of Act No. 1697
revived those provisions of the code. (U. S. vs. Concepcion, 13 Phil.
Rep., 424; U. S. vs. Estraña, 16 Phil. Rep., 520.)
In the absence of the most express language to the contrary it will
not be presumed that it was the intention of the legislator to let false
swearing as to a material matter in a court of justice go unpunished,
and such would be the effect of the repeal of section 3 of Act No.
1697, unless we held that the repeal had the effect of reviving the
old statute.
At the common law the repeal of a repealing act revived the
former act (6 Co., 199; 1 Gray, 163; 7 W. & S., 263; 2 Blackstone,
32; 54 N. J. L. J., 175); and the Supreme Court of the United States
has held that the repeal of a repealing law has this effect, unless the
language of the repealing statute or some general statute provides
otherwise. (U. S. vs. Otis, 120 U. S., 52 [115].) ,
Manifestly, with this rule in mind, section 12 of the
Administrative Code (Act No. 2657) which is found in Article III,
[Chapter I] dealing with the form and effect of laws in general,
provides that "when a law which expressly repeals a prior law is
itself repealed the law first repealed shall not be thereby revived
unless expressly so provided."
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VOL. 36, JANUARY 6, 1917. 11

From which it may fairly be inferred that the old rule continues in
force where a law which repeals a prior law, not expressly but by
implication, is itself repealed; and that in such cases the repeal of the
repealing law revives the prior law, unless the language of the
repealing statute provides otherwise.
Applying this rule, we conclude that the express repeal of section
3 of Act No. 1697 by the enactment of the Administrative Code (Act
No. 2657) revived the provisions of the Penal Code touching
perjury, which were themselves repealed, not expressly but by
implication, by the enactment of Act No. 1697.
A comparison of the penalties prescribed in the Penal Code for
the commission of the acts of which the accused in the case at bar
was convicted, giving him as we should the benefit of the provisions
of Act No. 2142, discloses that the penalty prescribed therein is less
than that imposed upon the appellant under the provisions of section
3 of Act No. 1697, and we conclude from what has been said
already that the penalty imposed by the court below should be
revoked and that in lieu thereof the penalty prescribed in the Penal
Code should be imposed upon the convict.
A question has been raised as to whether, admitting that the
provisions of the Penal Code touching perjury have been revived,
the accused can be convicted and penalized thereunder, it appearing
that at the time when he testified falsely he was testifiying in his
own behalf in a criminal case in which he himself was the accused,
on trial for the commission of a grave offense.
In the case of United States vs. Gutierrez (12 Phil. Rep., 529), we
said, speaking through Chief Justice Arellano, that, "Perjury
committed by a party in his own cause would not be punishable
under Spanish legislation, because in said legislation no one was a
witness in his own cause, and could not therefore become guilty of
giving f alse testimony in a civil cause in which he was either the
plaintiff or the
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defendant; but under the procedure in force by virtue of Act No.

190, a party to a suit may testify in his own behalf, and if he declares
falsely under oath as a witness in his own cause, like any other
witness, he incurs the penalty by which false testimony in civil
matters is repressed and punished. This court has so held, it being a
settled rule, that the false testimony given by a litigant as a witness
constitutes the crime of giving false testimony inasmuch as such a
declaration, according to the new laws in force, may determine a
judgment in his favor and to the prejudice of the adverse party, and
that a litigant who, in sworn testimony given by him as a witness in
a civil cause, shall pervert the truth and give false testimony, incurs
as such witness the penalties imposed by article 321 of the Penal
Code."
Analogous reasoning leads to a like conclusion as to the criminal
liability for perjury of a defendant in a criminal case testifying
falsely in his own behalf. Under the provisions of General Orders
No. 58 an accused person may, if he so desires, testify under oath in
his own behalf, and in that event "if he declares falsely as a witness
in his own cause, like any other witness, he incurs the penalty by
which f alse testimony" in criminal matters "is repressed and
punished."
It has been suggested that such a ruling will have a tendency to
expose accused persons to vexatious criminal prosecutions by
prosecuting officers, who, having f ailed to secure a conviction on
the original charge, may be disposed to institute criminal
prosecutions for perjury from a vindictive unwillingness to let the
defendant escape scot free from the meshes of the law. It is said also
that the fear of subsequent prosecution for perjury will tend to
embarrass accused persons in their efforts to defend themselves by
testifying in their own behalf. But similar objections may be
advanced against the prosecution of any of the witnesses called for
the defense on charges of perjury. and it must not be forgotten that
the right of an
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VOL. 36, JANUARY 6, 1917 13

accused person to testify under oath in his own behalf is secured to

him, not that he may be enabled to introduce false testimony into the
record, but to enable him to spread upon the record the truth as to
any matter within his knowledge which will tend to establish his
innocence.
Of course much must be left to the good sense and sound
judgment of the prosecuting officer in determining whether a
prosecution for perjury should be instituted against an accused
person whose testimony in his own behalf would seem to be
perjured.
Due regard for the situation in which an accused person finds
himself when testifying in his own behalf in a criminal proceeding
will restrain a prudent prosecuting officer from the filing of charges
of perjury in every case in which he may have reason to believe that
the accused has not adhered strictly to the truth, in his anxiety to
shield himself from punishment. But when, as in the case at bar, an
accused person voluntarily goes upon the witness stand and falsely
imputes to some other person the commission of a grave offense, it
would seem to be highly proper that he should be called to account

in a criminal action for perjury upon the complaint of the person
against whom such false charges are made.
Article 319 of the Penal Code is as f ollows:
"Any person who shall give false testimony in favor of a defendant in a

criminal case shall suffer a penalty ranging from arresto mayor in its
maximum degree to prisión correccional in its medium degree and a fine of
not less than three hundred and seventy-five and not more than three
thousand seven hundred and fifty pesetas, if the case were for a felony, and
the penalty of arresto mayor if it were for a misdemeanor."
We conclude that the judgment of conviction entered in the court

below should be affirmed but that the sentence imposed therein
should be reversed, and that giving the accused the benefit of the
provisions of Act No. 2142, a penalty of 4 months and 1 day of
arresto mayor and a fine
14

of P75 with subsidiary imprisonment as prescribed by law should be

imposed upon him in lieu of that imposed by the trial judge, with.the
costs of this instance de officio. So ordered.
Torres, Johnson, and Araullo, JJ., concur.
MORELAND, J., dissenting:
I agree that the provisions of the Penal Code relative to false

swearing were revived by the repeal of Act No. 1697 by the
Administrative Code.
I cannot believe, however, that the Penal Code intended to
include a defendant in a criminal action among those who are to be
punished f or' false swearing.
The defendant in the case at bar is charged with having sworn
falsely when testifying in his own behalf while on trial charged with
estafa, in that, on that trial, he testified that a certain written
confession of his guilt alleged to have been made by him and put in
evidence against him was false in its statement of the facts and had
been obtained from him by threats, intimidation and violence.
On the trial for estafa the court accepted as true enough of the
testimony of the accused as to the manner in which the confession
had been obtained to raise in his mind a reasonable doubt as to the
voluntary character of the confession; and, there not being other
evidence sufficient to sustain a conviction, the accused was
acquitted.
I cannot bring myself to believe, as I have already stated, that the

provisions of the Penal Code defining false swearing include the
false testimony of a def endant in a criminal action given in his own
behalf.
In the first place, the wording of the law does not include him.
Article 319 provides:
"Any person who shall give false testimony in favor of a
defendant in a criminal case shall suffer a penalty ranging from
arresto mayor in its maximum degree to prisión correccional in its
medium degree and a fine of not less than three hundred and
seventy-five and not more than three thousand seven hundred and
fifty pesetas, if the case were for a fe-
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VOL. 36, JANUARY 6, 1917. 15

lony, and the penalty of arresto mayor if it were for a misdemeanor."

The language itself plainly shows that the "person who shall give
false testimony" is not the defendant in the action but a different
person—a witness and not a party, an outsider and not one whose
life or liberty depends on the result of the action.
In the second place, the defendant in a criminal action could not
be a witness when the Penal Code was adopted and, accordingly, the
framers of the Penal Code could not have contemplated him as the
"person who shall give false testimony." (U. S. vs. Gutierrez, 12
Phil. Rep., 529.)
Thirdly, there is a reason given by Viada why the Spanish law did
not punish a party for false swearing even in those proceedings in
which false swearing was punishable and in which he was allowed
to testify. In volume 2 of his commentaries on the Penal Code, at
page 465 and 466, he puts this question "Will a party who testifies
falsely in his answers to interrogatories prepared in a civil case be
guilty of false swearing?" And answers it as follows:
"It is 'worth" while to consider this question here as we have
recently seen a judge in this city order prepared a copy of the
testimony given by a defendant in answer to interrogatories prepared
in a civil suit as a basis for a criminal action against him because the
judge believed that he had testified falsely in answering said
interrogatories. A party who testifies falsely in reply to
interrogatories cannot be prosecuted for false swearing for the
simple reason that he is not a witness, for, as the Digest says, nullus
idoneus testis in re sua, intelligitur; and, besides, if the legislator had
wished to punish the perjury of a party he would have done so by
including in the Penal Code a special provision to that effect, as was
done in the French Penal Code by art. 366. The Spanish law took
into consideration the frailty of human nature; it believed that a false
oath given by a party was sufficiently punished by his conscience,
especially in view of the fact that, as a learned author has said, for a
man to testify against himself for mere love of or
16

respect for the truth is certainly heroic, and by reason of the very
fact that it is heroic no one should be condemned criminally for not
doing it."
If it is true that it was not the intention of the framers of the Penal
Code to make a defendant in a criminal action who should testify
falsely in his own behalf guilty of perjury, the mere fact of making
him a competent witness in the case is not sufficient to include him
within the provisions relating to false swearing, when, but for the
fact of being a competent witness, he would not be included. If there
is any doubt that a given class of person is included in a penal
provision it should be excluded.
For the reason stated, I have grave doubts of the intention of the
Spanish lawmakers to include a defendant in a criminal action as
one of the "witnesses" who could commit the crime of false
swearing; and it is the Spanish law of crimes we are applying and
not the American law of the competency of witnesses. The intention
of the law being to exclude a party f from its operation, that
intention cannot logically be held to have been changed by giving
the party an additional attribute. Although he may be made a witness
he still remains a party; and Viada says that the Spanish law never
intended to hold a defendant who testified falsely to save his neck
from the gallows to the same responsibility as a mere witness who
has absolutely nothing to lose by his testimony.
Groizard makes a suggestion which approaches the question in
hand very closely and shows the trend of judicial as well as
legislative thought on the subject under discussion. Speaking of the
person who, under the Penal Code, may be punished for false
swearing, he says "There is one exception which we could have
wished our code to make in connection with the matter we are
discussing, and that is that its provisions shall not apply to those
witnesses whose honor would be sullied by the truth or who, if they
testified truthfully, would be exposed to the risk of a criminal
prosecution. Nor should he be held to answer to a charge
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VOL. 36, JANUARY 6, 1917. 17

of false swearing who testifies falsely to save his parents, his

brothers or sisters, or his relations within the fourth degree. The law
should not so far forget the power and influence of personal interest
and family ties as to require as a legal duty something which not all
regard even as a moral duty. Blood has its law * * *."
Spanish law and Spanish legal thought are against the position of
the court in this case. American law does not expressly, or even
clearly, undertake to change it. Making a person a witness does not
deprive him of his character as a party; and it is precisely in his
character as a party that the Spanish law protects him.
The case of United States vs. Gutierrez, already cited, is not
conclusive of the case before us. There the f alse testimony was
given in a civil action. Here it was given in a criminal action.
There is strong doubt in my mind also with respect to the correct
resolution of another question presented in this case which has been
decided by this court adversely to the defendant. As I have already
stated, the defendant in this case is on trial for perjury for having
testified falsely in a criminal action in which he was a defendant
charged with the crime of estafa. The testimony which he gave and
which is alleged in the present action to have been false related, as
already stated, to the voluntary and spontaneous character of a
written conf ession which he is alleged to have made with regard to
the commission of the crime with which he was charged. He
contended, as a witness for himself on his trial for estafa, that the
confession was false in its statement of facts and had been obtained
from him by threats, intimidation and violence. He was acquitted in
that case upon the ground that his testimony in that regard was true,
or was of such a character as to produce in the mind of the court
doubt sufficient to require an acquittal. The judge who presided at
the trial of the accused for estafa presided also at the trial of the
accused for perjury. In his opinion acquitting the def endant of the
charge of estafa the
18

court said, speaking of the alleged confession and of the testimony

relating to it given in that case:
"This is not a new occurrence in this court. It is frequently
resorted to in important cases, where confessions have been secured
by the secret service. We are fully convinced that every precaution is
taken by the chief of the Secret Service Bureau with a view to
avoiding the maltreatment of persons who have been apprehended
by that Bureau, and who are under suspicion of crime, and in the
majority of cases we pay no heed to the testimony of criminals who
have come to Iook upon this allegation of maltreatment as a stock
defense. But in this case there were some circumstances in
connection with the testimony of the defendants which raised a
grave doubt at least as to the voluntary character and spontaneity of
these confessions, and in view therefore, of this grave doubt, and of

the unsatisfactory character of the evidence generally, the defendants
are acquitted and the costs are taxed de officio"
In the present case the same judge says with regard to the same
matter:
"In the case in which the defendant was charged with estafa and
in which he is accused of having testified falsely, the case turned
largely upon the truth of the confessions of the defendant and his
codefendants, which were alleged to have been made while they
were under detention in secret service headquarters. If it were true
that such confessions were extracted under threats and torture, it is
unnecessary to state that it would be a very serious matter. Indeed
the court considered it so serious at the time the accused in question
was tried with his codefendants, that it preferred to enter an acquittal
rather than to risk a conviction on confessions which appear to be
tainted with this suspicion." I am inclined to believe that the finding
of the trial court in the case of estafa with regard to the testimony of
the defendant in relation to the confession is a bar to a subsequent
trial of the same defendant for perjury for giving the testimony to
which the finding of the court relates. In the case of Cooper vs.
Commonwealth (106 Ky., 909) it appeared
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VOL. 36, JANUARY 6, 1917. 19

that the appellant in that case and one Libbie Purvis were jointly
indicted in the Rowan Circuit Court for the offense of adultery. The
trial under that indictment resulted in a verdict of acquittal for
appellant. The grand jury of Rowan County thereupon reported an
indictment against him in which it was charged that, upon the trial of
appellant and Libbie Purvis upon the charge of adultery, "he did
knowingly, willfully, and corruptly swear that he had not had carnal
sexual intercourse with Libbie Purvis, when same was false and
untrue, and was known by him to be false and untrue." The trial
under this indictment resulted in a verdict of guilty, and judgment
sentencing appellant to confinement in the penitentiary was entered
and the case came to the Supreme Court of the State of Kentucky
upon an appeal from that judgment. In its opinion for a reversal the
court said:
'The principal question to be considered is the effect which is to
be given to the indictment, trial, verdict and judgment of acquittal of
appellant under the indictment for adultery, as it is manifest that
appellant can not be guilty in this case if he was innocent of the
charge contained in the indictment.
"His guilt or innocence of the offense of having had carnal sexual
intercourse with Libbie Purvis was the exact question which was
tried in the first proceeding, and as a result of that trial the defendant
was found not guilty. In order to convict him in this case, it was
necessary for the jury to believe that he was guilty of the identical
offense for which he had been tried and acquitted under the other
indictment, as it is evident that, if he was innocent of having had
carnal sexual intercourse with Libbie Purvis, he was not guilty of
false swearing when he stated that he had not had such intercourse
with her. We therefore have, as a result of the trial of appellant under
these two indictments, a verdict and judgment finding him not guilty
of the offense of having had carnal sexual intercourse with Libbie
Purvis, and in the second case a verdict and judgment finding him
guilty of false swearing when he testified
20

that he had not had such intercourse with her; in other words, the
first jury found him innocent of the misdemeanor with which he was
charged, and the second jury found him guilty of the felony because
he testified that he was not guilty of such misdemeanor. It certainly
was never intended that the enginery of the law should be used to
accomplish such inconsistent results. It appears to us from the
conflicting character of the testimony in the case upon the question
of defendant's guilt or innocence that a verdict of the jury might
have been upheld in the first case whether it found one way or the
other, but certainly the finding of the jury must be conclusive of the
fact considered as against the Commonwealth, and preclude any
further prosecution which involves the ascertainment of such fact.
* * * * * * *
"Appellant in this case had already been tried and acquitted of the
offense of having had carnal sexual intercourse with Libbie Purvis,
and the judgment in that case is res judicata against the
Commonwealth, and he can not again be put on trial where the truth
or falsity of the charge in that indictment is the gist of the question
under investigation. It therefore follows that appellant was entitled
to a peremptory instruction to the jury to find him not guilty."
In the case of United States vs. Butler (38 Fed. Rep., 498) a
defendant, who had been acquitted upon an indictment for selling
liquors without payment of the special tax required by law, was
subsequently put upon trial for perjury for having sworn upon his
preliminary examination before a commissioner that he did not sell.
It was held that his acquittal for selling liquor was a conclusive
adjudication in his favor upon the subsequent trial for perjury, and
that the Government could not show that his oath was false. In that
case the court said:
"But I am clearly of the opinion that upon the trial of this case the
defendant would be entitled to show that he had been acquitted of
the offense concerning which he is charged to have committed
perjury, and that such acquittal would be conclusive. Whenever the

same f act has been put
21
VOL. 36, JANUARY 6, 1917 21

in issue between the same parties, the verdict of the jury upon such
issue is a complete estoppel. This case contains all the elements of a
plea of res judicata; the parties are the same; the point in issue, viz,
whether he did in fact sell liquor, is the same, and the quantum of
proof requisite in both cases is also the same. Had he sworn before
the commissioner that he had paid his tax and had been acquitted by
the jury upon the ground that he did not sell liquor, the issue would
have been different, and perhaps such difference might have been
shown by parol, but in this case the two issues were identically the
same."
In Commonwealth vs. Ellis (160 Mass., 165) it was held that the
record of the conviction and sentence of a father upon a complaint,
under the statute of 1885, c. 176, for unreasonably neglecting to
support his minor child, was conclusive evidence that the paternity
of the child was determined, and the father was estopped to set up
the illegitimacy of the child as a defense to a subsequent complaint
under the same statute for a similar offense. In arriving at this
conclusion the court said:
"The question of the paternity of the child was necessarily involved in the
prior conviction of the defendant. That fact having been determined, it
cannot again be litigated between the same parties unless a different rule
applies to criminal proceedings from that which obtains in civil proceedings.
See Sly vs. Hunt, 159 Mass., 151, and cases cited. It is well settled that the
rule is the same in both classes of cases. Thus, in Commonwealth vs. Evans,
101 Mass., 25, it was held, on the trial of an indictment for manslaughter,
that the record of a conviction of the defendant for the assault which caused
the death was conclusive evidence that the assault was unjustifiable. So in
Commonwealth vs. Feldman, 131 Mass., 588, where the defendant was
indicted for an assault upon a public officer, committed while the defendant
was under arrest for drunkenness; it was held that a record of his conviction
and sentence for drunkenness at the time of his arrest was conclusive
evidence of that fact."
22

In the case of Coffey vs. United States (116 U. S., 436) the principal
question presented for determination was stated by the court as
follows:
"The principal question is as to the effect of the indictment, trial, verdict and
judgment of acquittal set up in the fourth paragraph of the answer. The inf
ormation is founded on sections 3257, 3450 and 3453; and there is no
question, on the averments in the answer, that the fraudulent acts and
attempts and intents to defraud, alleged in the prior criminal information and
covered by the verdict and judgment of acquittal, embraced all of the acts,
attempts and intents averred in the information in this suit.
"The question, therefore, is distinctly presented, whether such judgment
of acquittal is a bar to this suit. We are of opinion that it is.
"It is true that section 3257, after denouncing the single act of a distiller
defrauding or attempting to defraud the United States of the tax on the
spirits distilled by him, declares the consequences of the commission of the
act to be: (1) That certain specific property shall be forfeited, and (2) that
the offender shall be fined and imprisoned. It is also true that the proceeding
to enforce the forfeiture against the res named must be a proceeding in rem
and a civil action; while that to enforce the fine and imprisonment must be a
criminal proceeding, as was held by this court in The Palmyra (12 Wheat.,
1, 14 [25 U. S., bk. 6, L. ed. 531, 535]). Yet, where an issue raised as to the
existence of the act or fact denounced has been tried in a criminal
proceeding, instituted by the United States, and a judgment of acquittal has
been rendered in favor of a particular person, that judgment is conclusive in
favor of such person, on the subsequent trial of a suit in rem by the United
States, where, as against him, the existence of the same act or fact is the
matter in issue, as a cause for the forfeiture of the property prosecuted in
such suit in rem. It is urged as a reason for not allowing such effect to the
judgment, that the acquittal in the criminal case may have taken place
because of the rule requiring
23
VOL. 36, JANUARY 6, 1917. 23

guilt to be proved beyond a reasonable doubt; and that, on the same

evidence, on the question of preponderance of proof, there might be a
verdict for the United States, in the suit in rem. Nevertheless, the fact or act
has been put in issue and determined against the United States; and all that
is imposed by the statute, as a consequence of guilt, is a punishment
therefor. There could be no new trial of the criminal prosecution after the
acquittal in it; and a subsequent trial of the civil suit amounts substantially
to the same thing, with a difference only in the consequences following a
judgment adverse to the claimant.
"When an acquittal in a criminal prosecution in behalf of the
Government is pleaded or offered in evidence, by the same defendant, in an
action against him by an individual, the rule does not apply, for the reason
that the parties are not the same; and often for the additional reason that a
certain intent must be proved to support the indictment, which need not be
proved to support the civil action. But upon this record, as we have already
seen, the parties and the matter in issue are the same.
"Whether a conviction on an indictment under section 3257 could be
availed of as conclusive evidence, in law, for a condemnation, in a
subsequent suit in rem under that section, and whether a judgment of
forfeiture in a suit in rem under it would be conclusive evidence; in law, for
a conviction on a subsequent indictment under it, are questions not now
presented.
"The conclusion we have reached is in consonance with the principles
laid down by this court in Gelston vs. Hoyt (3 Wheat., 246 [16 U. S., bk. 4,
L. ed., 381]). In that case Hoyt sued Gelston the collector, and Schenck the
surveyor, of the Port of New York, in trespass, for taking and carrying away
a vessel. The defendants pleaded that they had seized the vessel, by
authority of the President, as forfeited for a violation of the statute against
fitting out a vessel to commit hostilities against a friendly foreign power,
and that she had been so fitted out and was forfeited. At the trial it was
shown that after seizure, the vessel was pro
24

ceeded against by the United States, by libel, in the United States District
Court, for the alleged offense, and Hoyt had claimed her and she was
acquitted and ordered to be restored, and a certificate of reasonable cause of
seizure was denied. The def endants offered to prove f acts showing the
forfeiture. The trial court excluded the evidence. In this court, the question
was presented whether the sentence of the district court was or was not
conclusive on the defendants, on the question of forfeiture. This court held
that the sentence of acquittal, with a denial of a certificate of reasonable
cause of seizure, was conclusive evidence that no forfeiture was incurred,
and that the seizure was tortious; and that these questions could not again be
litigated in any forum.
"This doctrine is peculiarly applicable to a case like the present, where,
in both proceedings, criminal and civil, the United States is the party on one
side and this claimant the party on the other. The judgment of acquittal in
the criminal proceeding ascertained that the facts which were the basis of
that proceeding, and are the basis of this one, and which are made by the
statute the foundation of any punishment, personal or pecuniary, did not
exist. This was ascertained once for all, between the United States and the
claimant, in the criminal proceeding, so that the facts can not again be
litigated between them, as the basis of any statutory punishment denounced
as a consequence of the existence of the facts. This is a necessary result of
the rules laid down in the unanimous opinion of the judges in the case of
Rex vs. Duchess of Kingston (20 Howell, St. Tr., 355, 538), and which were
formulated thus: the judgment of a court of concurrent jurisdiction, directly
upon the point, is as a plea a bar, or as evidence conclusive, between the
same parties, upon the same matter directly in question in another court; and
the judgment of a court of exclusive jurisdiction, directly upon the point, is,
in like manner, conclusive upon the same matter, between the same parties,
coming incidentally in question in another court for a different purpose. In
the present case, the
25
VOL. 36, JANUARY 6, 1917. 25

court is the same court and had jurisdiction; and the judgment was directly
on the point now involved and between the same parties.
"In a case before Mr. Justice Miller and Judge Dillon (U. S. vs. McKee, 4
Dill., 128), the defendant had been convicted and punished under a section
of the Revised Statutes, for conspiring with certain distillers to defraud the
United States, by unlawfully removing distilled spirits without payment of
the taxes thereon. He was afterwards sued in a civil action by the United
States, under another section, to recover a penalty of double the amount of
the taxes lost by the conspiracy and fraud. The two alleged transactions
were but one; and it was held that the suit for the penalty was barred by the
judgment in the criminal case. The decision was put on the ground that the
defendant could not be twice punished for the same crime, and that the
former conviction and judgment were a bar to the suit for the penalty."
I am rather inclined to believe that these decisions cover the case at

bar. It is true that the fact determined by the court on the trial for
estafa was not a fact necessary to be alleged in the information
charging the crime as an essential element thereof; and that
consequently it was not one of the facts necessary to be established
in order to convict. Reasoning from these facts it might be claimed
that. whether the conf ession offered in evidence in the estaf a case
was voluntary or was obtained by threat, intimidation and violence,
was not the fact in issue on that trial, and that, therefore, the
judgment in the estafa case determining that question was not a bar
to the presentation of the same question in the present action for
perjury. I am of the opinion, however, that the principles enunciated
in the cases cited, and especially the Coffey case, are sufficiently
broad to cover the case at bar. It is well settled that a right, question
or fact definitely put in issue and directly determined by a court of
competent jurisdiction, as a ground of recovery, cannot be discussed
in a subsequent suit between the same parties or their privies;
26

and that even if the second suit is for a different cause of action, the
right, question, or fact once so determined must, as between the
same parties or their privies, be taken as . conclusively established,

so long as the judgment in the first suit remains unmodified. This is
substantially the rule stated in the case of Southern Pacific Railroad
vs. United States (168 U. S., 1).
It is clear from the decision of the trial court in the estafa case
that the question most strongly fought by the parties in that action
was whether or not the confession was voluntary or had been
obtained by threats, intimidation and violence. The evidence which
the Government was able to produce was, apart from the confession,
insufficient to convict; and, as a necessary consequence, whether or
not the defendant was convicted in that case depended, in the main,
upon the character of the confession. In all respects an issue was
joined by the parties- with reference thereto (Lizarraga Hermanos vs.
Yap Tico, 24 Phil. Rep., 504). It was accepted by both parties and a
large part of the evidence in the estafa case, so far as we can judge
from the opinion of the trial court in that case, related to that issue.
The question of fact involved was decided adversely to the
Government and, as we have seen from the opinion of the trial court
in that and the present case, the acquittal was based wholly upon the
defeat of the Government on that issue.
It would seem to me, therefore, that the character of the
confession was as thoroughly litigated and decided by the trial court
as if it had been a fact necessary to have been alleged in the
information to describe the crime sought to be charged. If that is.so
then the Government in the present case cannot be allowed to put
that question again in issue and can not be heard to charge that the
testimony given by the defendant in relation thereto was false.
For these reason I am of the opinion that the conviction can not
stand and that the accused should be acquitted.
Judgment affirmed; penalty reduced.
27
VOL. 36, JANUARY 12, 1917. 27

Mitsui Bussan Kaisha vs. Hongkong & Shanghai Bank
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US Vs Soliman

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11/19/21, 10:11 AM PHILIPPINE REPORTS ANNOTATED VOLUME 036

[No. 11555. January 6, 1917.]

THE UNITED STATES, plaintiff and appellee, vs. GABINO

1. STATUTES; REPEAL; APPLICATION OF PENALTIES.—In any

2. ID.; ID.; REPEAL OF REPEALING LAW; REVIVAL.—Section

3. ID.; ID.; ID.; ID.; PENAL CODE PROVISIONS TOUCHING

4. PERJURY; ACCUSED TESTIFYING IN HIS OWN BEHALF.—

6 PHILIPPINE REPORTS ANNOTATED

United States vs. Soliman.

5. ID.; ID.—Due regard for the situation in which an accused person

APPEAL from a judgment of the Court of First Instance of Manila.

The evidence of record conclusively discloses that the defendant and

VOL. 36, JANUARY 6, 1917 7

effect of rendering wholly incompetent the evidence as to the

that the sentence of six months' imprisonment and P300 fine

"The rule of interpretation of English and American common law, by virtue

8 PHILIPPINE REPORTS ANNOTATED

A question does arise, however, as to the penalty which should be

The courts of Spain and the learned commentators on Spanish

VOL. 36, JANUARY 6, 1917. 9

Thus Pacheco, commenting upon the new Penal Code of 1848-1850,

favorable to the accused, that must be applied. (Decision of the

10 PHILIPPINE REPORTS ANNOTATED

VOL. 36, JANUARY 6, 1917. 11

12 PHILIPPINE REPORTS ANNOTATED

defendant; but under the procedure in force by virtue of Act No.

VOL. 36, JANUARY 6, 1917 13

accused person to testify under oath in his own behalf is secured to

would seem to be highly proper that he should be called to account

"Any person who shall give false testimony in favor of a defendant in a

We conclude that the judgment of conviction entered in the court

14 PHILIPPINE REPORTS ANNOTATED

of P75 with subsidiary imprisonment as prescribed by law should be

Torres, Johnson, and Araullo, JJ., concur.

MORELAND, J., dissenting:

I agree that the provisions of the Penal Code relative to false

I cannot bring myself to believe, as I have already stated, that the

VOL. 36, JANUARY 6, 1917. 15

lony, and the penalty of arresto mayor if it were for a misdemeanor."

16 PHILIPPINE REPORTS ANNOTATED

VOL. 36, JANUARY 6, 1917. 17

of false swearing who testifies falsely to save his parents, his

18 PHILIPPINE REPORTS ANNOTATED

court said, speaking of the alleged confession and of the testimony

these confessions, and in view therefore, of this grave doubt, and of

VOL. 36, JANUARY 6, 1917. 19

20 PHILIPPINE REPORTS ANNOTATED

perjury, and that such acquittal would be conclusive. Whenever the

VOL. 36, JANUARY 6, 1917 21

22 PHILIPPINE REPORTS ANNOTATED

VOL. 36, JANUARY 6, 1917. 23

guilt to be proved beyond a reasonable doubt; and that, on the same

24 PHILIPPINE REPORTS ANNOTATED

VOL. 36, JANUARY 6, 1917. 25

I am rather inclined to believe that these decisions cover the case at

26 PHILIPPINE REPORTS ANNOTATED

same parties or their privies, be taken as . conclusively established,

VOL. 36, JANUARY 12, 1917. 27

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