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Republic of the Philippines

G.R. No. 7081 September 7, 1912
THE UNITED STATES, plaintiff-appellee,
TAN TENG, defendant-appellant.
Chas A. McDonough, for appellant.
Office of the Solicitor General Harvey, for appellee.
This defendant was chared with the cri!e of rape. The co!plaint alleed"
That on or about #epte!ber $%, $&$', and before the filin of this
co!plaint, in the cit( of Manila, Philippine )slands, the said Tan Ten did
willfull(, unlawfull( and cri!inall(, and e!plo(in force, lie and have carnal
intercourse with a certain *liva Paco!io, a irl + (ears of ae.
After hearin the evidence, the ,onorable Charles #. -obinier, .ude, found the
defendant uilt( of the offense of abusos deshonestos, as defined and punished
under article /0& of the Penal Code, and sentenced hi! to be i!prisoned for a
period of / (ears 1 !onths and $$ da(s of prision correccional, and to pa( the costs.
2ro! that sentence the defendant appealed and !ade the followin assin!ents of
error in this court"
). The lower court erred in ad!ittin the testi!on( of the ph(sicians about
havin ta3en a certain substance fro! the bod( of the accused while he
was confined in .ail and reardin the che!ical anal(sis !ade of the
substance to de!onstrate the ph(sical condition of the accused with
reference to a venereal disease.
)). The lower court erred in holdin that the co!plainant was sufferin fro! a
venereal disease produced b( contact with a sic3 !an.
))). The court erred in holdin that the accused was sufferin fro! a
venereal disease.
)4. The court erred in findin the accused uilt( fro! the evidence.
2ro! an e5a!ination of the record it appears that the offended part(, *liva Paco!io,
a irl seven (ears of ae, was, on the $%th da( of #epte!ber , $&$', sta(in in the
house of her sister, located on )lan-)lan #treet, in the cit( of Manila6 that on said
da( a nu!ber of China!en were a!blin had been in the habit of visitin the house
of the sister of the offended part(6 that *liva Paco!io, on the da( in 7uestion, after
havin ta3en a bath, returned to her roo!6 that the defendant followed her into her
roo! and as3ed her for so!e face powder, which she ave hi!6 that after usin
so!e of the face powder upon his private parts he threw the said *liva upon the
floor, placin his private parts upon hers, and re!ained in that position for so!e little
ti!e. #everal da(s later, perhaps a wee3 or two, the sister of *liva Paco!io
discovered that the latter was sufferin fro! a venereal disease 3nown as onorrhea.
)t was at the ti!e of this discover( that *liva related to her sister what happened
upon the !ornin of the $%th of #epte!ber. The sister at once put on foot an
investiation to find the China!an. A nu!ber of China!en were collected toether.
*liva was called upon to identif( the one who had abused her. The defendant was
not present at first. later he arrived and *liva identified hi! at once as the one who
had atte!pted to violate her.
8pon this infor!ation the defendant was arrested and ta3en to the police station and
stripped of his clothin and e5a!ined. The police!an who e5a!ined the defendant
swore fro! the venereal disease 3nown as onorrhea. The police!an too3 a portion
of the substance e!ittin fro! the bod( of the defendant and turned it over to the
Bureau of #cience for the purpose of havin a scientific anal(sis !ade of the sa!e.
The result of the e5a!ination showed that the defendant was sufferin fro!
9urin the trial the defendant ob.ected stronl( to the ad!issibilit( of the testi!on( of
*liva, on the round that because of her tender (ears her testi!on( should not be
iven credit. The lower court, after carefull( e5a!inin her with reference to her
abilit( to understand the nature of an oath, held that she had sufficient intellience
and discern!ent to .ustif( the court in acceptin her testi!on( with full faith and
credit. :ith the conclusion of the lower court, after readin her declaration, we full(
concur. The defense in the lower court atte!pted to show that the venereal disease
of onorrhea !iht be co!!unicated in wa(s other than b( contact such as is
described in the present case, and called !edical witnesses for the purpose of
supportin the contention. ;ude -obinier, in discussin that 7uestion said"
:e shall not pursue the refine!ent of speculation as to whether or not this
disease !iht, in e5ceptional cases, arise fro! other carnal contact. The
!edical e5perts, as well as the boo3s, aree that in ordinar( cases it arises
fro! that cause, and if this was an e5ceptional one, we thin3 it was
incu!bent upon the defense to brin it within the e5ception.
The offended part( testified that the defendant had rested his private parts upon hers
for so!e !o!ents. The defendant was found to be sufferin fro! onorrhea. The
!edical e5perts who testified areed that this disease could have been
co!!unicated fro! hi! to her b( the contact described. Believin as we do the stor(
told b( *liva, we are forced to the conclusion that the disease with which *liva was
sufferin was the result of the illeal and brutal conduct of the defendant. Proof,
however, that *liva constructed said obno5ious disease fro! the defendant is not
necessar( to show that he is uilt( of the cri!e. )t is onl( corroborative of the truth of
*liva<s declaration.
The defendant atte!pted to prove in the lower court that the prosecution was
brouht for the purpose of co!pellin hi! to pa( to the sister of *liva a certain su!
of !one(.
The defendant testifed and brouht other China!en to support his declaration, that
the sister of *liva threatened to have hi! prosecuted if he did not pa( her the su! of
P1'. )t see!s i!possible to believe that the sister, after havin beco!e convinced
that *liva had been outraed in the !anner described above, would consider for a
!o!ent a settle!ent for the paltr( su! of P1'. ,onest wo!en do not consent to the
violation of their bodies nor those of their near relatives, for the filth( consideration of
!ere !one(.
)n the court below the defendant contended that the result of the scientific
e5a!ination !ade b( the Bureau of #cience of the substance ta3en fro! his bod(, at
or about the ti!e he was arrested, was not ad!issible in evidence as proof of the
fact that he was sufferin fro! onorrhea. That to ad!it such evidence was to
co!pel the defendant to testif( aainst hi!self. ;ude -obinier, in discussin that
7uestion in his sentence, said"
The accused was not co!pelled to !a3e an( ad!issions or answer an(
7uestions, and the !ere fact that an ob.ect found on his person was
e5a!ined" see!s no !ore to infrine the rule invo3ed, than would the
introduction in evidence of stolen propert( ta3en fro! the person of a thief.
The substance was ta3en fro! the bod( of the defendant without his ob.ection, the
e5a!ination was !ade b( co!petent !edical authorit( and the result showed that
the defendant was sufferin fro! said disease. As was suested b( ;ude
-obinier, had the defendant been found with stolen propert( upon his person, there
certainl( could have been no 7uestion had the stolen propert( been ta3en for the
purpose of usin the sa!e as evidence aainst hi!. #o also if the clothin which he
wore, b( reason of blood stains or otherwise, had furnished evidence of the
co!!ission of a cri!e, there certainl( could have been no ob.ection to ta3in such
for the purpose of usin the sa!e as proof. No one would thin3 of even suestin
that stolen propert( and the clothin in the case indicated, ta3en fro! the defendant,
could not be used aainst hi! as evidence, without violatin the rule that a person
shall not be re7uired to ive testi!on( aainst hi!self.
The 7uestion presented b( the defendant below and repeated in his first assin!ent
of error is not a new 7uestion, either to the courts or authors. )n the case of ,olt vs.
8.#. =>$? 8.#., >/%@, Mr. ;ustice ,ol!es, spea3in for the court upon this 7uestion,
But the prohibition of co!pellin a !an in a cri!inal court to be a witness
aainst hi!self, is a prohibition of the use of physical or moral compulsion,
to e5tort co!!unications fro! hi!, not an eclusion of his body as
evidence, !hen it may be material. The ob.ection, in principle, would forbid
a .ur( =court@ to loo3 at a person and co!pare his features with a
photoraph in proof. Moreover we are not considerin how far a court would
o in co!pellin a !an to e5hibit hi!self, for when he is e5hibited, whether
voluntaril( or b( order, even if the order oes too far, the evidence if
!aterial, is co!petent.
The 7uestion which we are discussin was also discussed b( the supre!e court of
the #tate of New ;erse(, in the case of #tate vs. Miller =+$ N.;. law Reports, %>+@. )n
that case the court said, spea3in throuh its chancellor"
)t was not erroneous to per!it the ph(sician of the .ail in which the accused
was confined, to testif( to wounds observed b( hi! on the bac3 of the
hands of the accused, althouh he also testified that he had the accused
re!oved to a roo! in another part of the .ail and divested of his clothin.
The observation !ade b( the witness of the wounds on the hands and
testified to b( hi!, was in no sense a co!pellin of the accused to be a
witness aainst hi!self. )f the re!oval of the clothes had been forcible and
the wounds had been thus e5posed, it see!s that the evidence of their
character and appearance would not have been ob.ectionable.
)n that case also =#tate vs. Miller@ the defendant was re7uired to place his hand upon
the wall of the house where the cri!e was co!!itted, for the purpose of ascertainin
whether or not his hand would have produced the blood( print. The court said, in
discussin that 7uestion"
)t was not erroneous to per!it evidence of the coincidence between the
hand of the accused and the blood( prints of a hand upon the wall of the
house where the cri!e was co!!itted, the hand of the accused havin
been placed thereon at the re7uest of persons who were with hi! in the
)t !a( be added that a section of the wall containin the blood prints was produced
before the .ur( and the testi!on( of such co!parison was li3e that held to be proper
in another case decided b( the supre!e court of New ;erse( in the case of ;ohnson
vs. #tate =0' 4roo!, N.;. -aw Reports, >+$@. The defendant caused the prints of the
shoes to be !ade in the sand before the .ur(, and the witnesses who had observed
shoe prints in the sand at the place of the co!!ission of the cri!e were per!itted to
co!pare the! with what the had observed at that place.
)n that case also the clothin of the defendant was used as evidence aainst hi!.
To ad!it the doctrine contended for b( the appellant !iht e5clude the testi!on( of a
ph(sician or a !edical e5pert who had been appointed to !a3e observations of a
person who plead insanit( as a defense, where such !edical testi!on( was aainst
necessaril( use the person of the defendant for the purpose of !a3in such
e5a!ination. =People vs. Austin, $&& N.A., //1.@ The doctrine contended for b( the
appellants would also prevent the courts fro! !a3in an e5a!ination of the bod( of
the defendant where serious personal in.uries were alleed to have been received b(
hi!. The riht of the courts in such cases to re7uire an e5hibit of the in.ured parts of
the bod( has been established b( a lon line of decisions.
"he prohibition contained in section % of the Philippine Bill that a person shall not be
co!pelled to be a witness aainst hi!self, is simply a prohibition against legal
process to etract from the defendant#s o!n lips, against his !ill, an admission of his
Mr. :i!ore, in his valuable wor3 on evidence, in discussin the 7uestion before us,
)f, in other words, it =the rule@ created inviolabilit( not onl( for his Bph(sical
controlC in whatever for! e5ercised, then it would be possible for a uilt(
person to shut hi!self up in his house, with all the tools and indicia of his
cri!e, and def( the authorit( of the law to e!plo( in evidence an(thin that
!iht be obtained b( forcibl( overthrowin his possession and co!pellin
the surrender of the evidential articles D a clear reductio ad absurdum. $n
other !ords, it is not merely compulsion that is the 3ernel of the
privilee, . . . but testimonial compulsion. =/ :i!ore, sec. >>10.@
The !ain purpose of the provision of the Philippine Bill is to prohibit compulsory oral
eamination of prisoners before trial. or upon trial, for the purpose of e5tortin
unwillin confessions or declarations i!plicatin the! in the co!!ission of a cri!e.
=People vs. Eardner, $// N. A., $$&.@
The doctrine contended for b( appellant would prohibit courts fro! loo3in at the fact
of a defendant even, for the purpose of disclosin his identit(. #uch an application of
the prohibition under discussion certainl( could not be per!itted. #uch an inspection
of the bodil( features b( the court or b( witnesses, can not violate the privilee
ranted under the Philippine Bill, because it does not call upon the accused as a
witness D it does not call upon the defendant for his testi!onial responsibilit(. Mr.
:i!ore sa(s that evidence obtained in this wa( fro! the accused, is not testi!on(
but his bod( his bod( itself.
As was said b( ;ude -obinier"
The accused was not co!pelled to !a3e an( ad!ission or answer an(
7uestions, and the !ere fact that an ob.ect found upon his bod( was
e5a!ined see!s no !ore to infrine the rule invo3ed than would the
introduction of stolen propert( ta3en fro! the person of a thief.
The doctrine contended for b( the appellant would also prohibit the sanitar(
depart!ent of the Eovern!ent fro! e5a!inin the bod( of persons who are
supposed to have so!e contaious disease.
:e believe that the evidence clearl( shows that the defendant was sufferin fro! the
venereal disease, as above stated, and that throuh his brutal conduct said disease
was co!!unicated to *liva Paco!io. )n a case li3e the present it is alwa(s difficult to
secure positive and direct proof. #uch cri!es as the present are enerall( proved b(
circu!stantial evidence. )n cases of rape the courts of law re7uire corroborative
proof, for the reason that such cri!es are enerall( co!!itted in secret. )n the
present case, ta3in into account the nu!ber and credibilit( of the witnesses, their
interest and attitude on the witness stand, their !anner of testif(in and the eneral
circu!stances surroundin the witnesses, includin the fact that both parties were
found to be sufferin fro! a co!!on disease, we are of the opinion that the
defendant did, on or about the $%th of #epte!ber, $&$', have such relations as
above described with the said *liva Paco!io, which under the provisions of article
/0& of the Penal Code !a3es hi! uilt( of the cri!e of %abusos deshonestos,% and
ta3in into consideration the fact that the cri!e which the defendant co!!itted was
done in the house where *liva Paco!io was livin, we are of the opinion that the
!a5i!u! penalt( of the law should be i!posed. The !a5i!u! penalt( provided for
b( law is si5 (ears of prision correccional. Therefore let a .ud!ent be entered
!odif(in the sentence of the lower court and sentencin the defendant to be
i!prisoned for a period of si5 (ears of prision correccional, and to pa( the costs. #o