G.R. No. 24187, People v.

Tan
Bomping et al., 48 Phil. 877
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
March 15, 1926
G.R. No. 24187
THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,
vs.
TAN BOMPING, ET AL., defendants-appellants.
Vicente Sotto for appellants.
Acting Attorney-General Reyes for appellee.
OSTRAND, J.:
The defendants Tan Bomping, Leon Galindo, Policarpo Tambor, Lucio Macalisang
and Andres Burias are accused of the crime of falsification of public documents, it
being alleged in the information upon which the case went to trial "that on or about
the 21st and 22d of November, 1923, in the municipality of Jimenez, Province of
Misamis, Philippine Islands, and within the jurisdiction of this court, the above-named
accused, confederating together and cooperating with one another, did willfully,
unlawfully and criminally prepare and cause to be prepared eight fictitious and
simulated documents acknowledged before a notary public wherein the accused Tan
Bomping conveys to his co-accused Leon Galindo, Policarpo Tambor, Lucio
Macalisang and Andres Burias eight parcels of land belonging to said accused Tan
Bomping, making it to appear in said documents that the same were executed on
previous dates, about the years 1919, 1920, 1921, 1922 and August of 1923, when as a
matter of fact said documents were executed and signed by all the five defendants on
November 21, 1923, and acknowledged by them before a notary public on November
22d of the same year."

Upon trial Court of First Instance found all of the defendants guilty of the falsification
of private documents and sentenced Tan Bomping to suffer one year, eight months
and twenty-one days of presidio correccional and to pay a fine of 625 pesetas. Each
of the other defendants was sentenced to six months of arresto mayor with the same
fine as that imposed on Tan Bomping. All of the defendants appeal to this court.
The evidence shows beyond a reasonable doubt that the defendant Tan Bomping, in
order to escape the attachment of his property in a civil action then pending, on the
21st of November, 1923, executed eight deeds of conveyance various parcels of land,
of which he was the owner, to his codefendants, and that he intentionally antedated
the documents. Duly certified copies of the deeds are in evidence and are marked
Exhibits A to H, inclusive. Two of them, Exhibits A and B were executed in favor of
Leon Galindo and given the date of January 15, 1920. These documents were
witnessed by Policarpio Tambor and Andres Burias. Two other deeds, Exhibits C and
D, were made out in favor of Policarpo Tambor and dated October 10, 1921, and
October 15, 1920, respectively, and were witnessed by Leon Galindo and Andres
Burias. Exhibits E and F were executed in favor of Andres Burias, dated August 15,
1923, and witnessed by Leon Galindo and Policarpo Tambor. Exhibits G and H were
executed in favor of Lucio Macalisang and dated January 20, 1919. The subscribing
witnesses were Leon Galindo and Policarpo Tambor. On the following day Tan
Bomping took the documents to a notary public and acknowledged them in the usual
manner. The notary, observing that the documents bore earlier dates, apparently
became suspicious and at his instance, Tan Bomping stated under oath that they were
executed and signed on the dates therein stated.
Upon the facts stated, Tan Bomping is manifestly guilty of the falsification of public
documents and not merely of private ones as found by the trial court; he not only
falsified the documents, but was also directly instrumental in causing them to be made
public documents. The case against his codefendants is not quite as clear and there is
room for a reasonable doubt as to their knowledge of the true character of the
transactions described. The majority of the members of this court are therefore of the
opinion that said codefendants should be acquitted.

In his assignments of error, counsel for the appellants raises several questions of law
which we shall briefly discuss. In the original information filed in the present case, the
defendants were accused of the crime of estafa with falsification of public documents.
A demurrer to this information was sustained and the present a new one. In
compliance with this order, the fiscal amended the information so as to charge
falsification of public documents only and counsel for the appellants now argues that
under section 23 of General Orders No. 58 the court may order the filing of a new
information, but has no power to order an amendment. This contention must be
regarded as having been set at rest by the case of United States vs. Muyot (2 Phil.,
177), in which this court held that the trial court has authority to direct amendments to
an information or complaint in a criminal case. There is in fact no difference in
substance between an amended information and a new one, and whether the
information upon which the case goes to trial is styled "New Information" or
"Amended Information" is wholly immaterial.
Counsel for the appellants also argues that the trial court erred in admitting in
evidence certified copies of the falsification documents instead of the originals. It
appears, however, that the originals were in the hands of the defendants; that the fiscal
made demand upon them for the production of the documents in court; and that the
defendants refused to comply with this demand. In these circumstances the duly
certified copies were clearly admissible (see sections 321 and 322 of the Code of Civil
Procedure). No proposition of law is better established than the rule that secondary
evidence is admissible whenever primary evidence is not obtainable, and this rule
applies to criminal as well as to civil cases (Allen vs. State, 21 Ga., 217;
Commonwealth vs. Jeffries, 7 Allen, 548).
The case of United States vs. Gregorio and Balistoy (17 Phil., 522), cited by counsel
for the appellants in support of his contention, is not in point. In that case it does not
appear that a reasonable effort was made to procure the original of the document
alleged to have been falsified. The statement in the decision that "in criminal
proceedings for falsification of a document, it is indispensable that the judges and
courts have before them the document alleged to have been simulated, counterfeited,
or falsified" is much too broad if it is thereby meant that the production of the original
of the document is indispensable in all criminal prosecutions for falsification. In any
event, the statement can only be considered obiter dicta.

As we have already stated, the court below erred in holding that the crime committed
was falsification of private documents. A deed acknowledged before a notary public
is a public document and the fact that the false dates were written into the documents
here in question before said documents were presented to the notary, does not alter the
case if they were so presented by the parties who committed the falsification or at
their instance.
For the reasons hereinbefore stated, the appellants Leon Galindo, Policarpo Tambor,
Lucio Macalisang and Andres Burias are hereby acquitted of the crime charged in the
complaint with their proportional shares of the costs de oficio.
We find the appellant Tan Bomping guilty of the crime of the falsification of public
documents and hereby sentenced him to suffer prision correccional for the term of
four years, nine months, and eleven days, and to pay a fine of 250 pesetas, with
subsidiary imprisonment in case of insolvency, and to pay one-fifth of the costs of
both instances. So ordered.
**

THE UNITED STATES, plaintiff-appellee,

vs.
FERNANDO NIETO, defendant-appellant.
Mariano Crisostomo for appellant.
Office of the Solicitor-General Araneta for appellee.
CARSON, J.:
Fernando Nieto, the appellant in this case, was charged with the falsification of a
public document, with abuse of his office as municipal president.
It appears that the accused, who at that time was president of the municipality of
Meycauayan, bought a typewriter for the use of the said municipality for which he
paid $90, gold, and at the same time caused the vendors to sign a receipt and a
reimbursement voucher setting out the facts connected with the sale of the machine
and the amount paid therefor. It appears further that the accused changed the amount
as set out in the receipt and voucher from $90, gold, to $95, gold, and on the
presentation of these falsified documents, recovered from the treasurer of the

municipality the sum of 190 pesos, Philippine currency, in reimbursement of his

expenditure in the purchase of the machine.
The trial court found the accused guilty of the crime of falsification of
a private document, without aggravating or extenuating circumstances, and sentenced
him to one year eight months and twenty-one days imprisonment (presidio
correccional), and to the payment of a fine of 625 pesetas, and to the restitution to the
municipality of Meycauayan of the sum of $5, gold, with the accessory penalties
prescribed by law and the payment of the costs of the trial.
We think the evidence of record fully sustains the findings of the trial court, and we
are agreed that the documents in question at the time when they were falsified were
private and not public documents, and that the offense was not committed with abuse
of a public office. In the purchase of the machine the accused was acting as a private
person and not in his official capacity as municipal president, and the receipt and
voucher at the time when they were altered were merely evidences of a private
transaction between the accused and the vendors of the machine. They did not
emanate from any public office; they were not a part of any public or official record,
nor were they certified by any person authorized to certify public documents. The
mere fact that they were intended for use in support of a claim against the public funds
could not of itself raise them to the dignity of public documents before they had
become a part of some official record, and prior to their certification by some public
official clothed with authority for that purpose.
The accused admitted that he had made the alterations in the documents as alleged,
but attempted to justify or rather to explain his action by stating that at the time when
he bought the machine he also bought $5 worth of typewriter supplies; that at the time
when he recovered the amount paid for the machine he had mislaid his receipt for
these supplies, and believed that without that receipt he could not recover the price
paid therefor; and that he altered the receipt and voucher so as to include this $5, not
with any intention of defrauding the municipality, but merely for the purpose of
recovering from the municipality the full amount he had expended on its behalf.

Taking this view of the case counsel for the appellant insists that as there was really
no loss (perjuicio) to the municipality resulting from the alteration of the document,
there can be no conviction for that alteration, as loss or damage to a third person is an
essential requisite to the crime of falsification of a private document, as defined in
article 304 of the Penal Code.
We, however, are satisfied beyond a reasonable doubt that as a matter of fact the
accused did not pay $5 for the typewriter supplies as he pretends, and that these
supplies were included in the purchase price of the machine, for which he took the
original receipt and disbursement voucher, and therefore it is not necessary to
consider what would have been the legal effect upon the transaction as a criminal
offense had his explanation contained a true relation of the facts.
The judgment of the trial court is affirmed, with the costs of this instance against the
appellant. So ordered.
**

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,

vs.
VICENTE P. CASTRO and PEDRO A. PACANA, defendants-appellants.
G.R. No. 22645
THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,
vs.
ISIDRO ADORABLE and PEDRO A. PACANA, defendants-appellants.
G.R. No. 22646
THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,
vs.
VICENTE P. CASTRO and PEDRO A. PACANA, defendants-appellants.
Troadio Galicano, Teogenes Velez, Manuel Fernandez, Desiderio Rodriguez and
Vicente Sotto for appellants.
Attorney-General Villa-Real for appellee.
MALCOLM, J.:
These are five related criminal cases for the crimes of falsification of public
documents and estafa committed by means of falsification of public documents, in

which the accused are Pedro A. Pacana, secretary of the provincial board of Misamis,
Isidro Adorable, member of the provincial board of Misamis, and Vicente P. Castro,
member of the provincial board of Misamis. Should convictions be sustained, Pacana
will receive sentences totalling forty-four years and five days imprisonment, and
Adorable and Castro for the alleged unlawful taking of P25 each will receive
sentences of ten years and one day imprisonment.
The charge in the first numbered case against Pedro A. Pacana relates to the
falsification by the accused of minutes of the meeting of the provincial board on June
9, 1923, for the alleged purpose of permitting the district engineer to incur illegal
expenses in the reconstruction of a provincial road. The charge in the second case
against the same accused relates to the falsification of minutes of the provincial board
on June 16, 1923. The charge in the third case against the same accused relates to the
falsification of an excerpt from the minutes of the provincial board of June 9, 1923.
And the last two cases, one against provincial board member Isidro Adorable and
Pedro A. Pacana, and the other against provincial board member Vicente P. Castro
and Pedro A. Pacana, relate to the crimes of estafa committed by means of
falsification of public documents, whereby it is alleged Adorable and Castro were
each able to collect the sum of P25 as per diems for two fictitious meetings of the
provincial board. Since the first three cases were tried together and the last two
together, and since the facts of all of them are closely interwoven, for convenience
sake a general statement will first be made, leaving for special mention certain
circumstances affecting particular cases.
The provincial board of Misamis is made up of Segundo Gaston, governor, and Isidro
Adorable and Vicente P. Castro, members, with Pedro A. Pacana as secretary. The
board as thus composed left on an inspection trip of the province on May 23, 1923. A
session of the board was held in the municipality of Tulisan, Misamis, on June 4,
1923. It returned to Cagayan, Misamis, the provincial capital, on the morning of June
18, 1923. Following the arrival of the board at the provincial capital, it was kept busy
during the succeeding days because on June 19, 1923, the Governor-General landed at
the port of Cagayan, because on that day was the Rizal birthday celebration, because
on June 20, 1923, the Governor-General departed, and because on the same day there
arrived the Quezon-Roxas-Osmea-Gabaldon-Guevara party which left on June 21,
1923. These facts are not disputed.

It is likewise admitted that the documents on which the prosecutions are based,
Exhibits C, D, Q-3, Y, and X, are actually in existence. It is the theory of the
prosecution that said documents were prepared by the provincial secretary with the
connivance of the members of the provincial board for illegal purposes. To
substantiate this theory, attention is concentrated on the following prominent facts:
Exhibits C and D were seen by the chief clerk of the district auditor, Juan Callante, in
the office of Pacana on the afternoon of June 18, 1923. Copies of Exhibits C and D
were made by a clerk in the office of the district auditor, Juan Borja, on the morning
of June 19, 1923. An excerpt from Exhibit C containing resolution No. 224 was
received in the office of the provincial treasurer of Misamis before 5:50 o'clock on the
afternoon of June 19, 1923. Another excerpt from Exhibit C containing resolution No.
225, Exhibit Q-3, the basis of the third prosecution, was received in the office of the
district engineer on June 27, 1923, and when the chief clerk of this office noted the
date June 9, 1923, on the minutes and brought it to the attention of the provincial
secretary, the date was changed to June 16, 1923. The mistake of the secretary was
attempted to be rectified by the provincial board on September 20, 1923, by changing
the dates of the excerpts to June 16, 1923, and thus another error was perpetrated.
(Exhibit B-2.) The originals of Exhibits C and D have disappeared, possibly through
the machinations of the provincial secretary. The provincial board of Misamis could
not have celebrated a session at Cagayan before June 18, 1923, because of its absence
on an inspection trip, and could not have celebrated a session on the afternoon of June
19, 1923, as claimed by the defense, because of a velada held on the same afternoon
in the intermediate school of Cagayan at which the provincial governor and member
Castro were present. And finally, before the district auditor, the three accused reaffirmed the fact that sessions of the provincial board were held on June 9 and 16,
1923. (Exhibits J, K, L.)
The theory of the defense is diametrically opposed to that of the prosecution.
Defendants thesis is simple and is to the effect that on account of the carelessness of
the provincial secretary and the amount of work thrown on his inexperienced
shoulders, error was committed, and that, instead of meetings of the provincial board
being held on June 9 and 16, 1923, meetings were in reality held on June 19 and June
21, 1923. The bulwark this stand, the defense relies on the following facts:

Meetings of the provincial board were actually had on the afternoons of June 19 and
June 21, and to this effect is the testimony of the members present, the secretary, and
a clerk. Subjects were treated in these two sessions which could not possibly have
come to the attention of the provincial board prior to the sessions. The preoccupations
of the provincial secretary due to the inspection trip of the provincial board and the
arrival and departure of the parties of the Governor-General and of the Legislature,
were the cause of the mistakes. Errors of a similar character appear in other meetings
of the provincial board. The excerpts of the meetings transmitted to the offices of the
district engineer and district auditor, respectively, were prepared by a clerk in the
office of the provincial governor and were merely signed as a matter of form by the
provincial secretary. The book in which the minutes were kept was obtained by the
district auditor so that the original minutes could have disappeared while in his
possession. The accused all signed the statements before the district auditor not
understanding what the investigation was about. As soon as the mistakes in dates were
discovered and before the criminal prosecution was begun, the provincial board
corrected its minutes. (Exhibits 8, 10.)
Certain other points in relation with the questioned documents are helpful in resolving
these cases. Turning first to Exhibit C, on which the first case is exclusively founded,
and related to three of the other cases, it is interesting to take note of its contents. It is
headed "Regular Meeting of the Provincial Board of Misamis Held at Cagayan on
Thursday June 9, 1923." As a matter of fact, June 9 fell on a Saturday. Then after
showing who were present and who were absent and the authority for the meeting,
under the general heading "Resolutions" comes a resolution concerning the payment
of the real property tax. Further on, the letter of His Excellency (Exhibit 4) informing
the board of his disapproval of resolution No. 207 of the board, current series, is again
mentioned. As a matter of fact, this letter was dated at Manila, on June 11, 1923, and
probably was not received at Cagayan until June 19, 1923. Next following in the
minutes mention is made of a "letter dated June 14, 1923, of the district engineer."
Obviously, a "letter dated June 14, 1923," could not have been acted upon at a
meeting held on June 9, 1923. Next following in the minutes, comes a resolution
having to do with a communication of the district engineer "dated June 16, 1923."
Obviously, again, a communication of the district engineer "dated June 16, 1923,"

could not have been approved at a meeting of the provincial board held on June 9,
1923. Also in the same minutes are found data as to letters of the district engineer of
June 8, 1923, of the Chief of the Executive Bureau, and of the Public Utility
Commissioner. So much for Exhibit C.
As for Exhibit D, on which the second case is founded and having connection with
two other prosecutions, it shows on its face a regular meeting of the provincial board
of Misamis held at Cagayan on Saturday, June 16, 1923. It discloses action taken on
about fifty resolutions of municipal councils. Included therein is approval of a
resolution of the municipal council of salary of June 15, 1923. According to the
witness Sabas Abao, municipal secretary of Salay, this resolution was not placed in
the mails until June 16, 1923, and according to the postmaster of Balingasay, could
not have left for the provincial capital until June 20, 1923.
As to Exhibit Q-3, the basis of the third prosecution, it purports to be an "excerpt from
the minutes of the regular meeting of the provincial board of Misamis held at Cagayan
on Thursday, June 9, 1923." The provincial secretary then certifies to the correctness
of a resolution concerning a "letter dated June 14, 1923, of the district engineer." The
utter impossibility of such approval needs no discussion.
Exhibits Y and X, approved by the provincial governor and certified to as correct and
just by the two members of the provincial board, respectively, are provincial vouchers
in the usual form calling for services rendered as members of the provincial board
during the period June 9, 16, 23 and 26, inclusive, at P12.50 a meeting.
According to the prosecution, the motive for the criminal acts was, first, the desire on
the part of the provincial secretary to fabricate resolutions probably with the
connivance of the provincial governor and the members of the provincial board,
which would placate the American engineer, Mr. Allen. The motive in the second
place, according to the prosecution, was to permit the members of the provincial
board to collect a total of P50 not legally due them. On the other hand, according to
the defense, the cause of the prosecution is the enmity existing between the district

engineer and the district auditor, and has been brought about as an act of vengeance
by the district auditor. Political intrigue is also insinuated.
Up to this point, we have endeavored to state briefly and fairly the salient facts of
order as they are pressed upon us by the opposing sides. No comment of any
importance has been proffered. Having progressed thus far, the case comes down to a
determination of whether there was an international and deliberate falsification of
public documents on the part of the accused, or whether there was merely a human
error committed, in which criminal intent was wholly lacking.
It must be admitted that the physical facts are mostly in favor of the accused. The
documents, Exhibits C and D, could not have been fabricated on June 9 and June 16,
if the matters to which they relate were not then before the provincial board for action.
Unless by supernatural means, that would be an utter impossibility. Just how we can
reconcile these circumstances with the strong oral testimony, mostly circumstantial in
nature, presented by the prosecution, is hard to say, unless there was exaggeration on
the part of some of the witnesses.
Now as to the motive, recognizing that a quarrel was on between two provincial
officers, and that possibly the provincial board was siding with the district engineer
and against the district auditor, just why was it necessary to make meetings out of the
air to serve this purpose when actual meetings would have served the same purpose
just as effectively? The resolution approving of the acts of the district engineer had to
be made public and copies of it had to be sent to the proper authorities. Just why two
members of the provincial board would care to certify to the correctness of meetings
which were never held, in order to benefit themselves in the paltry amount of P25
each, when they could have recovered the same amount for actual meetings, is also
difficult to understand.
The whole case impresses us as a job bunglingly performed by the provincial
secretary. He is a man who should not be entrusted with official responsibility. He has
none of the qualifications which fit one of public office. But it is a far cry from
hopeless ineptitude and hopeless stupidity to criminal intent and criminal

responsibility. Still, even under the most favorable aspect, the facts skirt perilously
near to the Penal Code crime of reckless imprudence.
Ordinarily, evil intent must unite with an unlawful act for there to be crime. Actus non
facit reum, nisi mens sit rea. There can be no crime when the criminal mind is
wanting. Ignorance or mistake as to particular facts, honest and real, will as a general
rule, exempt the doer from criminal responsibility. The exception, of course, is neglect
in the discharge of a duty or indifference to consequences, which is equivalent to a
criminal intent. The element of malicious intent is supplied by the element of
negligence and imprudence.
A decision of the supreme court of Spain of December 23, 1885, is in point. It
appeared that one of the clerks in the office of the district court, in spreading upon the
record the proceedings taken for the appointment of a guardian ad litem for certain
minor children and the declaration of heirship in their favor entered such proceedings
as of a date anterior to the date on which they were actually entered. The clerk, for
this act, was charged with the falsification of a public document, was convicted
of imprudencia temeraria in the court of first instance, and appealed to the supreme
court of Spain, which tribunal in reversing the judgment said in part:
Considering that even though in the falsification of public or official documents,
whether by public officials or by private persons, it is unnecessary that there be
present the idea of gain or the intent to injure a third person, for the reason that, in
contradistinction to private documents, the principal thing punished is the violation of
the public faith and the destruction of the truth as therein solemnly proclaimed, it
must, nevertheless, be borne in mind that the change in the public document must be
such as to affect the integrity of the same or to change the effects which it would
otherwise produce; for, unless that happens, there could not exist the essential element
of the intention to commit the crime which is required by article 1 of the Penal Code;
considering that the fact that Don Augustin Montes Moreno set out the proceedings as
of a date prior to that on which they actually occurred, and therefore incorrectly, the
remaining part of the document being true, ... neither affected the integrity or truth of
said proceedings not affected in any essential way their results or effects, it is
necessary to conclude that the criminal intent mentioned in the previous observation
was absent; considering that, even though the accused consciously attached incorrect

dates to the proceedings, nevertheless that act does not take on the character of a
crime, and for that reason the Audiencia de Huelva erred in convicting the accused .. .
(See further decision of supreme court of Spain of February 25, 1885; U.S. vs. Mateo
[1913], 25 Phil., 324, 334; U.S. vs. Reyes [1902], 1 Phil., 341; U.S. vs. Ah Chong
[1910],15 Phil., 488; U.S. vs. Catolico [1911], 18 Phil., 504; and Guevara's Penal
Code, 2nd edition, pp. 1-3, 401-406.)
It is a serious matter to be responsible for sending the accused to prison for long
terms. All reasonable doubt intended to demonstrate error and not crime should be
indulged in to the benefit of the prisoners at bar. The Government has suffered no
loss. If the inculpatory facts and circumstances are capable of two or more
explanations, one of which is consistent with the innocence of the accused of the
crime charged and the other consistent with their guilt, then the evidence does not
fulfill the test of moral certainty and is not sufficient to support a conviction. (U.S. vs.
Maao [1903], 2 Phil., 718.) We cannot bring ourselves to find these accused guilty
on the facts of record.
It results, therefore, that we must, as we hereby do, reverse the judgments appealed
from and acquit the accused of the charges laid against them, with costs de oficio. So
ordered.
**

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
SERGIO MENDOZA, defendant-appellant.
Vicente T. Velasco, Jr., for appellant.
Solicitor General Juan R. Liwag and Solicitor Jose G. Bautista for appellee.
PADILLA, J.:
Sergio Mendoza was charged with falsification of a public or official document. The
information reads thus
That on or about the 27th of July 1949, in the City of Manila, Philippines, the said
accused being then employed as inspector of the Division of Sanitary Engineering, of
the Office of the City Health Officer, in said City of Manila, did then and there
wilfully, unlawfully and feloniously commit various acts of falsification on a public

and official document, to wit: Official Receipt No. 188903-V, issued by the City
Treasurer's Office, City of Manila, by then and there erasing the name "Elena
Manansala" and the figure "1.00" therein and afterwards, writing, inserting and
intercalating, or, causing it to be written, inserted and intercalated thereon in such a
way as to change its import and meaning, the words "Roberto B. Alamaden," "fortysix only" and the figure "46" thereby making it appear that said receipt was issued to
the said Roberto B. Almaden and that the latter paid the sum of P46 to the City
Treasurer's Office, when in truth and in fact, as the said accused well knew, Official
Receipt No. 188903-V was in the name of Elena Manansala as aforesaid and said
receipt was issued to her when she paid the amount of P1 to the Department of
Engineering and Public Works, in said City, for the issuance of a duplicate copy of a
building fee.
Upon arraignment he entered a plea of not guilty, but on 18 February 1952, the date
set for the trial of the case, with the consent of the trial court and the prosecuting
attorney, the defendant, assisted by counsel, entered a plea of guilty for the crime of
falsification described and punished in the last paragraph of article 172 of the Revised
Penal Code. Thereupon, the court sentenced him to suffer 4 months and 1 day
ofarresto mayor, to pay a fine of P50, or suffer subsidiary imprisonment in case of
insolvency, and costs. From this sentence the defendant has appealed.
On 14 June 1952, Vicente T. Velasco, Jr., the attorney de oficio appointed by the
court, filed a motion stating that he could not find a way to question the legality of the
penalty imposed, which is the only question raised by the appeal. By resolution the
court directed that the motion of the attorney de oficio be considered as the appellant's
brief. On 17 June 1952, attorney Carlos Perfecto appeared and gave notice of the
withdrawal of the appeal stating that the appellant was ready and willing to serve the
sentence imposed on him by the trial court. Acting on this petition the court ordered a
copy thereof be furnished the appellant who was required to comment thereon within
ten days from notice. On 16 July 1952 copies of the notice of withdrawal of appeal
and of the resolution of the court requiring the appellant to comment within ten days
from notice were served on him in the municipal jail, Manila Police Department, but
he has failed to do so. On 4 August 1952 the Solicitor General filed the brief for the
appellee and the case was set for hearing on 1 October 1952 but no one appeared at

the hearing. In his brief the Solicitor General recommends that the penalty be not less
than 1 month and 1 day nor more than 4 months of arresto mayor, as minimum, and
not less than 1 year and 1 day nor more than 1 year and 8 months of prision
correccional, as maximum, because the penalty imposed by the lower court is below
the range provided by law.
The trial court allowed the defendant to enter a plea of guilty to a lesser offense for
that of not guilty to a more serious crime previously entered under and pursuant to
section 4, Rule 114. The substitution of plea could not lawfully be made taking into
consideration the fact that the crime charged in the information is falsification of a
public document. Falsification of a public document by a public officer or employee
or by a private person is a very serious crime punished with prision mayor to its full
extent and with prision correccional in its medium and maximum periods,
respectively, and in both with a fine not to exceed P5,000. Being an employee or
inspector of the Division of Sanitary Engineering of the Office of the City Health
Officer the defendant was not a private person. He could be considered as such if
notwithstanding his government employment he took no advantage thereof in
committing the falsification. The crime of falsification described and punished in
article 172 of the Revised Penal Code is committed by a private individual who does
any of the falsifications described in the next preceding article in any public or official
document or letter of exchange or any other kind of commercial document; and by a
person who, to the damage of a third party, or with intent to cause such damage shall
in any private document commit any of the acts of falsification enumerated in the next
preceding article. The last paragraph of article 172 punished a private person who
introduced in evidence in any judicial proceeding and uses any of the false documents
embraced in the next preceding article or in any of the subdivisions of the article. For
that reason the crime of falsification defined and punished in the last paragraph of
article 172 is not necessarily included in the offense charged in the information for
falsification of a public document by a public officer or employee or by a private
individual. The crime punished in the last paragraph of article 172 of the Revised
Penal Code may be a lesser offense but it certainly cannot be deemed necessarily
included in the crime of falsification of a public document by a public officer of
employee or by a private person. Hence section 4, Rule 144, was misapplied. Under
the view we have taken of the case, neither the penalty imposed by the trial court nor

that recommended by the Solicitor General is in accordance with law. The penalty
should be not less than 4 months and 1 day of arresto mayor, as minimum, and not
less than 3 years, 6 months and 21 days and not more than 4 years, 9 months and 10
days or prision correccional, as maximum, the accessories of the law and a fine of
P50, or subsidiary imprisonment in case of insolvency, and costs.
As a general rule, the withdrawal of an appeal before the filing of the appellee's brief
is allowed and granted. The presumption is that attorney Carlos Perfecto had the
authority to appear for the appellant. The latter was given an opportunity to disown
what his attorney had done but has failed to do so. His silence leans towards
confirmation rather than toward disavowal. Consequently, the motion for dismissal of
the appeal is granted.
Appeal dismissed.
**
THE UNITED STATES, plaintiff-appellee,
vs.
TO LEE PIU, defendant-appellant.
Beaumont and Tenney for appellant.
Attorney-General Avancena for appellee.
MORELAND, J.:
This is an appeal from a judgment convicting the appellant of the crime of using a false name and
sentencing him to 2 months and one day of arresto mayor, to pay a fine of 325 pesetas, with
subsidiary imprisonment in case of nonpayment of the fine, and the costs of the trial.
The appellant was charged with using a false name. The evidence is to the effect that he came to
the Philippine Islands in 1911 and presented a section six certificate, which is attached to the record
as Exhibit A, wherein his name appears as To Lee Piu. Thereafter, he attached to an application for
a passport the name Toribio Jalijali. Said application was accompanied by the affidavits of two
witnesses and by a baptismal certificate showing that a person by that name was born in the
Philippine Islands in 1878. On the trial there was no denial of the fact that appellant signed the name
Toribio Jalijali to the application for a passport; and the only evidence which may be regarded as
having been contradicted in the case is that given by the defendant himself when he testified that he
was born in the Philippine Islands, that his name is Toribio Jalijali, that he went to China at an early
age, and, feeling doubtful as to his ability to prove his right to reenter, applied to the American consul
at Canton for a section six certificate; that, on such application, he stated to the consul that his name
was Toribio Jalijali, and that, upon being told by the clerk of the consulate that it was not necessary
to put his surname in such application, wrote therein the Christian name Toribio alone.

The charge is prosecuted on the theory that To Lee Piu appellant's correct name and that the name
Toribio Jalijali is false.
Counsel for appellant maintains that the Government, in order to maintain the action, must prove (a)
that the two names in question were different, and (b) that the name alleged to be false was in fact
false; and that the failure of the Government to meet these, or either these, requirements must result
in an acquittal.
It is contended on this appeal that the Government did not meet either of these requirements.
Counsel says:
Upon the issue as to whether the two names were identical the evidence is to the effect that
To Lee Piu is the nearest that the word Toribio can be written in Chinese characters, and that
it is the way in which a Chinese interpreter would naturally write such a word.
With respect to the charge that the name used in the application for a passport was a false name,
counsel contends that the allegation upon which that charge is based was not proved by the
Government. He says in brief:
Even were the testimony upon this issue contradictory or doubtful, conceding for the sake of
argument that the two names are legally different, the burden would be clearly upon the
Government to show which was the true and which was the false name; and having made
their election and alleged that one of the two names is false, affirmative proof must be
introduced in support of this issue.
We are satisfied on the whole case that the conviction must stand. From the fact and circumstances
in evidence it appears established beyond a reasonable doubt that the appellant used the name of
another person for the purpose of deceiving Government and, by that deception, to obtain a
passport. He came to the Philippine Islands as a Chinese person traveling for curiosity and pleasure.
He so represented himself to the American consul at Canton and, by that representation, obtained a
section six certificate. In his application for that certificate he stated that he was a Chinese person,
and that his name was To Lee Piu .He came to the Philippine Islands upon those representations;
and, by virtue of the certificate obtained thereby, was permitted to enter the country. Desiring to
return to China, or travel in other parts of the world and, at the same time, be permitted to return to
the Philippine Islands at will, he sought to obtain a passport as a citizen of the Philippine Islands
under the sovereignty of the United States. In order to accomplish his purpose it was necessary for
him to show to the authorities of the Philippine Islands issuing passport that he was in fact a citizen
of the Philippine Islands and as such entitled to a passport. He thereupon took unto himself a Filipino
name, one not his own, and made his application for a passport attaching to his application the
name Toribio Jalijali.
As to the difference between the two names, To Lee Piu and Toribio Jalijali, a mere glance at, or a
single pronunciation of, the two names serves to demonstrate beyond question their complete
unlikeness. It is true that the name Toribio when pronounced by a Chinaman may sound like To Lee
Piu. But it must be observed, in the first place, that the name assumed by the appellant and signed
to the application for a passport is not Toribio but Toribio Jalijali; and, in the second place, that the
name assumed by the appellant in China and that under which he presented himself to the American
consul at Canton, was not Toribio nor Toribio Jalijali, but To Lee Piu, thus clearly implying that he
belonged to the family or tribe of To, and, therefore, was not of Philippine origin or birth. The claim of
the appellant that the clerk of the American consulate at Canton told him that, in making an
application for a section six certificate it was unnecessary to give his surname, cannot be accepted.
Such a contention is so unusual and so opposed to universal experience that it must fall of its own

weight. It seems incredible that an American consul, or any of his responsible employees, would
give such information to a Chinese person applying for the privilege of entering American territory. It
cannot be accepted without strong corroborative proof that an American consul, or his accredited
representative, would inform the appellant that the most important of his two names, his family
name, could be omitted or entirely disregarded in a proceeding having for its main purpose his
identification. The surname is the only name by which identification is rendered possible. The
Christian name, while being the specific and individual name, is of no value whatever for
identification purposes. One of the most important duties of American officials engaged in permitting
the entry of Chinese persons into American territory is to establish and preserve the identity of the
particular individual to be admitted. Without the ability to identify all control over the admission of
Chinese is lost. It is not to be believed that an American official whose duty it is to enforce the laws
pertaining to Chinese exclusion and to protect the territory of the United States from an invasion of
Chinese laborers, would inform a Chinaman desiring to enter American territory that he might
dispense with the only evidence upon which an identification of him could be based. The Christian
name is without value for the purposes of identification until after the surname is known.
That the name Toribio Jalijali was a false name as applied to the appellant in this case is in our
judgment beyond question in the record. It is undoubted that To Lee Piu was the name by which the
appellant was known in China. It is the name he gave to the American consul and it is the only name
he gave. He alleged that he was born in China in October, 1878, and applied for a certificate which
is required of Chinese persons only. Upon his own statements and the statement of his government
he was given a section six certificate. It would seem to us that these facts are sufficient to
establish, prima facie at least, that the appellant is a Chinese person and a Chinese subject; that he
was born in China in October, 1878; and that his name is To Lee Piu. These facts being established
it is incumbent on the appellant to relieve himself of the charge that, when he stated under oath in
his application for a passport that his name was Toribio Jalijali and that he was born in Santa Cruz,
Manila, on the 27th of April, 1878, he did not tell the truth; or to give such proof with reference
thereto as would raise in the mind of the trial court a reasonable doubt as to his true name. The only
evidence offered by the appellant in this connection was a certificate of baptism of an infant named
Toribio Jalijali, born in Santa Cruz, Manila, in April, 1878. The names of several witnesses appear in
this certificate. None of them were produced on the trial; nor was it shown that these witnesses, or
any of them, were dead, or that the appellant was unable to procure their presence at the trial. No
effort was made to find or offer as a witness his alleged father or mother.
On the trial the appellant testified in the Chinese language by means of a Chinese
interpreter. He showed no familiarity with the Spanish language or with any of the Philippine
dialects; and the trial court said, with reference to his personal appearance, that so far as
could be judged from all surface characteristics the defendant is in truth and in fact a
Chinese person as he describes himself in the Philippine Carnival certificate Exhibit A; and
adds: "A comparison of the two documents, the certificate Exhibit A and the application for
passport, is alone sufficient to show that the defendant's statements are unworthy of
credence, that his claim is that he was born m in the Philippine Islands is false, and that the
name Toribio Jalijali now claimed by the defendant is false and assumed.
The judgment appealed from is affirmed, with costs against the appellant. So ordered.

**
THE UNITED STATES, Plaintiff-Appellee, v. LOPE ESTRAA, Defendant-Appellant.
Vicente Franco, for Appellant.
Attorney-General Villamor, for Appellee.

SYLLABUS
1. THE LAW OF PERJURY IN THE PHILIPPINE ISLANDS. The provisions of the Penal Code relative to false
swearing were repealed by Act No. 1697, and this Act now constitutes the general law of perjury in this
jurisdiction. (U.S. v. Concepcion, 13 Phil. Rep., 424.)
2. PERJURY; FALSE TESTIMONY, TO CONSTITUTE PERJURY, MUST BE MATERIAL AND MUST BE SO
ESTABLISHED. False testimony, in order to become punishable under the law of perjury, must be material
to some issue involved in the cause wherein such false testimony is alleged to have been given; Revised
Statutes, sec. 5392; U.S. v. Landsberg, 23 Fed. Rep., 585; State v. Hattaway, 10 Am. Dec., 580) Materiality
must be established by evidence and can not be left to presumption or inference. (30 Cyc., 1443, and cases
cited.)
3. ID.; "MATERIAL MATTER" DEFINED. The term "material matter" means the main fact which was the
subject of the inquiry, or any circumstance which tends to prove the fact, or any fact or circumstance which
tends to corroborate or strengthen the testimony relative to the subject of the inquiry, or which legitimately
affects the credits of any witness who testifies. (In Franklin Country 5 Ohio S. & c. Pl. Dec., 691; 7 Ohio, N.
p., 250; People v. Greenwell, 5 Utah, 112, 13 Pac. Rep., 89.)
4. CRIMINAL PRACTICE AND PROCEDURE; FATAL DEFECTS IN COMPLAINT; OBJECTION ON APPEAL;
DEFECTS CURED BY COMPETENT EVIDENCE. Where a complaint is fatally defective, either in form or in
substance, and no objection is taken at the trial but is raised for the first time on appeal, it is not error for
this court to refuse to sustain such objection when the fatal defects are supplied by competent proofs.
(Serra v. Mortiga, 204, 204 U.S., 470, reported in 11 Phil., Rep., 762.)
5. ID.; ADMISSIONS BY COUNSEL MADE FOR FIRST TIME ON APPEAL, NOT COMPETENT. A mere
statement by the counsel for the accused, made for the first time in his brief on appeal and which would
constitute ground for a conclusion of guilt, can not be accepted by this court as competent proof to supply
fatal defects in the complaint, nor as a basis upon which to sustain conviction. Clayton v. State, 4 Tex, App.,
515.)
6. PERJURY AS DEFINED BY STATUTE; DISTINCTION BETWEEN PERJURY AND FALSE SWEARING. Perjury,
as modified by statute, may be define to be the willful and corrupt assertion of a falsehood, under oath or
affirmation administered by authority of law, in a material matter, the offense being enlarged and made to
extend to false oaths other than those taken in the course of judicial proceedings. There is a distinction
between perjury and false swearing; the one is stubborn and corrupt, while the other is simply not true and
is lacking the elements which go to constitute the crime of perjury. (Miller v. State, 15 Fla., 577.)
7. CRIMINAL PRACTICE AND PROCEDURE; PROSECUTION FOR PERJURY. In some jurisdictions, a
prosecution for perjury is continued until the proceeding in which the perjury is continued until the
proceeding in which the perjury is alleged to the have committed is ended. But, under the law of the
Philippine Islands (Act No. 1697), it is not necessary that the proceeding in which the perjury is alleged to
have been committed be terminated before prosecution for the crime is commenced. (U.S. v. Concepcion,
13 Phil. Rep., 424.) The contrary rule obtained under the Penal Code. (U.S. v. Opinion, 6 Phil. Rep., 662;
U.S. v. Adolfo, 12 Phil. Rep., 296.)

DECISION

TRENT, J. :

The complaint filed in this case is a follows:

jgc:chan roble s.com.p h

"That on the 26th of July, 1909, in the municipality of Bacolod, Province of Negros Occcidental, Philippine
Islands, the said Lope Estraa, having been duly sworn as a witness in the Court of First Instance of the said
province in criminal case No. 1055 , entitled "United States v. Gil Gamao Et. Al.," 1 for murder, illegally,
maliciously, willfully, and falsely testified and declared, under oath, that on the 15th day of May, 1909, one
Dionisio Tambolero came to his house in Japitan, within the jurisdiction of the municipality of Escalante, in

said province, at about 7 p.m. on the said 15th day of May, 1909, and that he remained in the house of the
said accused (Lope Estraa) until the following day; when, as a matter of fact, and as the accused, Lope
Estraa, well knew, the said Dionisio Tambolero was not at Japitan on the said 15th day of May; all of which
was in violation of the statutes in such case made and provided."
cralaw vi rtua 1aw lib rary

The accused was arraigned, plead not guilty, tried, convicted, and sentenced to be confined in the Insular
penitentiary, for the period of one year and one day, and "to hereafter be incapable of holding any public
office or of giving testimony in any court of the Philippine Islands," and to pay the costs of the cause. He
appealed to this court.
The Roman Catholic priest in charge of the parish in the town of Escalante, Province of Occidental Negros,
was fatally wounded on the night of May 15, 1909, and died about 5 a.m. on the following morning.
Subsequently thereto criminal case No. 1055, wherein the United States was plaintiff and Gill Gamao Et. Al.
were defendants, charged with the assassination of the said priest, was instituted in the Court of First
Instance in the said province. The appellant, Lope Estraa, was called as a witness for the defense in said
criminal case and after being duly sworn according to law, testified, among other things, that he was then
living in the barrio of Japitan, jurisdiction of the said town of Escalante, and that one Dionisio Tambolero
came to his house in the said barrio about 7 p.m. on May 15, 1909, and remained there all night, leaving
about 5 a.m. on the following morning. The prosecuting officers, believing this testimony to be false, filed a
complaint against the appellant, charging him with the crime of perjury. On the trial of this case in the court
below the appellant again testified that the said Tambolero passed the night of May 15, 1909, at his house,
and called as witnesses to corroborate him on this point his wife and stepson who did in fact corroborate the
testimony of the appellant, in that the said Tambolero came to the appellants house and passed the night of
May 15 there, but they could not specifically state the hour he left the following morning.
Dionisio Tambolero testified in this case that he did not know exactly where the defendants house is
situated in the barrio of Japitan and that he never was at any time in the house of the defendant in the said
barrio; that on the morning of the 15th of May, 1909, he went to the church in Escalante, heard mass, and
returned to his house in the said town of Escalante; that at about 4 oclock in the afternoon he returned to
the sacristia, arriving there about 5 oclock that afternoon, had a conversation with Natalio In son about
certain baptisms which had taken place on that afternoon, and that on leaving the sacristia he went to the
store of one Jose Nieva and remained there until about 6:30 or 7 oclock in the evening; that on leaving this
store he returned to his own house and later went to the house of his compadre; that he and his family did
not sleep in his own house on the night of May 15 on account of it being used for the storage of tobacco, but
that they did sleep in the next house, which was owned by an employee of his; that the next morning, when
he was informed by a policeman named Clemente Magallon of what had happened to the priest on the night
before, he went direct to the convent, arriving there a few minutes after 5 oclock; that within one-half hour
after he arrived at the convent Gregorio Tudanca gave him some money and sent to a Chinese store to buy
nails to be used in making a casket for the deceased priest.
According to the testimony of this witness he did not leave the town of Escalante at any time during the
night of May 15, 1909. He was in the sacristia of the church at 4 oclock on the afternoon of May 15, and
was at the convent the following morning just a few minutes after 5 oclock. The testimony of this witness as
to the time he was at the sacristia on the afternoon of the 15th of May is corroborated by the testimony of
Natalio In son, and his testimony with reference to the time he went to the convent on the following
morning is corroborated in every particular by the testimony of Gregorio Tudanca, Celedonia Samonte, and
Vicente Olmedo, all of whom testified positively that they saw the said Tambolero at the convent about 5
oclock on the morning of the 16th of May assisting in the preparation of the body of the deceased priest for
interment. So it has been conclusively established that Dionisio Tambolero did not go to the house of the
appellant in the barrio of Japitan on May 15, neither did he spend the night of the 15th of May in the
appellants house. Considering the distance from the appellants house to the town of Escalante, which
requires at least two and one-half hours, either by land of water, and the difficulties to be encountered in
making this journey, it was a physical impossibility for Tambolero to have left the house of the appellant at
the time stated by him (the appellant) and to have arrived at the convent at the time he appeared there to
assist in the burial of the priest. The appellant, Lope Estraa, did therefore knowingly and intentionally
testify falsely, under oath, before a legally constituted tribunal, when he swore that Tambolero passed the
night of May 15 in his (appellants) house.
The prosecution in this case is based on the said false testimony of the appellant given in criminal case No.
1055. It may be inferred that Dionisio Tambolero was a material witness for the prosecution in said criminal
case No. 1055. If said Tambolero did, in fact, testify as a witness for the prosecution in that case, the record
of the case at bar fails to disclose what his testimony was. Tambolero did not state that he was a witness in

the said murder case (No. 1055), neither did he make any reference to what he knew, if anything, about the
commission of that murder; but on the contrary, reading his testimony alone, it would appear that he knew
nothing about the facts surrounding the commission of the crime, as he stated that after leaving the Chinese
store he went to his own house, slept in the house of one of his employees, and was informed the following
morning by a policeman that the murder had been committed. The only reference to the testimony of
Tambolero in said murder case appears in the appellants brief, wherein his counsel states that "In said case
(referring to criminal case No. 1055) a witness for the prosecution, called Dionisio Tambolero, testified that
on the night of May 15, 1909, when the murder was committed he saw Mauricio Gamao, with a bolo in his
hand, come out of the lower part of the convent." (Mauricio Gamao was one of the defendants charged with
the assassination of the priest in case No. 1055.) If this statement of counsel for the appellant be accepted
as true, then Tambolero did testify that he saw one of the defendants in that case (No. 1055) on the night of
the murder leaving the lower part of the convent with a bolo in his hand. This statement of counsel will be
considered later.
Counsel for the appellant insists that the court below should have dismissed this case for the reason that the
facts perjury as defined and punished by Act No. 1697, basing his contention on the ground that in order to
sustain a conviction under said Act it was necessary to show that the appellant had testified twice about a
certain matter, his latter testimony being contradictory of his former, and as he had only testified once he
should have been charged with the crime of false swearing (false testimonio), under the provisions of
Chapter VI of the Penal Code.
Section 3 of Act No. 1697 is as follows:

jgc:chan roble s.com.p h

"Any person who, having taken an oath before a competent tribunal, officer, or person, in any case in which
a law of the Philippine Islands authorizes an oath to be administered, that he will testify, declare, depose, or
certify truly, or that any written testimony, declaration, deposition, or certificate by him subscribed in true,
willfully and contrary to such oath states or subscribed any material matter which he does not believe to be
true, is guilty of perjury, and shall be punished by a fine of not more than five years; and shall, moreover,
thereafter be incapable of holding any public office or of giving testimony in any court of the Philippine
Islands until such time as the judgment against him is reversed."
cralaw vi rtua 1aw lib rary

This section specifically provides that any person who has taken an oath before a competent tribunal that he
will testify truly or that any written testimony by him subscribed is true, willfully and contrary to such oath,
states or subscribes to any material matter which he does not believe to be true, is guilty of perjury. This
section does not impliedly require as an essential element of the crime of perjury that a defendant who is
prosecuted for having violated these provisions should have testified twice in any case or in any
investigation, his second testimony being contradictory of his firs, but he can be charged and convicted of
the crime of perjury if he willfully testifies, under oath, as provided in said section, to any material matter
which he does not believe to be true.
In the case of the United States v. Concepcion (13 Phil. Rep., 424), the defendants were inspectors of the
election board in the municipality of Calibo, Province of Capiz, in the election for Delegates held on the 31st
of July, 1907. The defendants were accused and convicted for having violated the provisions of the Election
Law, in that they refused to inscribe the name of one Esteban Leocario without just cause. The point in
controversy in said case was whether or not Esteban Leocario appeared before the inspectors (the accused)
in order to have his name registered in the electoral list. The accused were convicted of having violated the
provision of the Esteban Law and on appeal to this court the sentence and judgment of the lower court was
affirmed. The defendants having testified in that case the said Esteban Leocario did not appear before them
on the day alleged, to have his name registered as an elector, the prosecution filed a complaint against the
said defendants charging them with the crime of perjury. The fact in controversy in both cases was only one,
namely; the appearance or nonappearance of Esteban Leocario before the election inspector. The
defendants having been convicted of the crime of perjury, they appealed, and this court, in passing upon the
questions involved, said (pp. 425, 429):
jgc:chan robles. com.ph

"The important question in the case, however, is whether this offense is to be punished by the provisions of
the Penal Code, articles 318 and following, or whether these articles have been impliedly repealed by section
3 of Act No. 1697. If the case falls within the provisions of the Penal Code and those provisions are still in
force, the judgment must be reversed, because this case for perjury was tried and decided in the court
below before the termination of the case in which the false testimony was given.
x

"Our conclusion is that the articles of the Penal Code relating to perjury have been repealed, and that the
crime is now defined and punished by section 3 of Act No. 1697."
cralaw virtua 1aw lib rary

So the reason given by counsel for the appellant as to the sufficiency of the allegations in the complaint is
untenable, but there is a good reason why the complaint is insufficient in law, and that is that there is no
allegation in this complaint that the testimony of the appellant in criminal case No. 1055 was material to the
issues involved in said case. This question apparently escaped the attention of the trial court, the
prosecuting officers, and counsel for the Appellant. It is not mentioned anywhere in the record, nor in the
briefs filed in this court.
As we have said, the appellant willfully and contrary to the oath which he had taken, testified in said
criminal case No. 1055 that Tambolero came to his house about 7 p.m. on May 15 and remained there until
5 a.m. of the next day. This testimony was false, but the record does not disclose (aside from the statement
of counsel before mentioned) whether or not this false testimony did affect, or could have in any way
affected, the questions involved in said murder case.
It is now necessary to determine whether or not the appellant is guilty of the crime of perjury under section
3 of Act No. 1697, above quoted (the provisions of the Penal Code with reference to false testimony having
been repealed by Act No. 1697), when it is not alleged in the complaint, nor does it appear from the record,
that the false testimony given by the appellant in said criminal case No. 1055 was material to the issue
involved therein.
In the absence of a statute to the contrary, it is well settled that an indictment for perjury must show
conclusively that the testimony given or assertion made by the defendant and charged to be false was
material to the issue on the trial on which he was sworn or it will be fatally defective. This may be done
either by a direct allegation that it was material, or by the allegation of facts from which its materiality will
appear. (30 Cyc., 1433, and U.S. v. Singleton, 54 Fed. Rep., 488; U.S. v. Cowing, 25 Fed. Cas., No. 14880,
4 Cranch C.C., 613; Hembree v. State, 52 Ga., 242; State v. Anderson, 103 Ind., 170; State v. Gibson, 26
La. Ann., 71; State v. Williams, 60 Kan,., 837; People v. Ah Bean, 77 Cal., 12; Gibson v. State, 47 Fla.,
State v. Cunningham, 66 Iowa, 94; People v. , Collier, 1 Mich., 137; Wood v. People, 59 N.Y., 117; Buller v.
State, 33 Tex Cr., 551, and numerous other cases cited.)
No objections to the sufficiency of the complaint made were in the court below, and it is now well settled
was it is not error for this court to refuse to sustain using objection taken for the first time on appeal when
the fatal defects in the complaint are supplied by competence proof. (Serra v. Mortiga, 204 U.S. 420,
reported in 11 Phil. Rep., 762.)
The complaint in the case at bar is fatally defective for the want of an allegation that the testimony, alleged
to be false, was material to the issues involved in the murder case. Our statute (section 3 of Act No. 1697
supra) specifically makes materially an essential element of the crime of perjury and without this the crime
can not legally exist. As no objection to the sufficiency on the complaint was raised this fatal defect could
have been supplied by competent testimony on the trial.
The materiality of a matter sworn to must be established by evidence and can not be left to the presumption
or inference. (30 Cyv., 1443, and Nelson v. State, 32 Ark., 192; Mackin v. People, 115 III., 312; State v.
Aikens, 32 Iowa, 403; Wood v. People, 59 N.Y., 117; Garrett v. State, 37 Tex, Cr., 198.)
The term "material matter" means the main fact which was the subject of the inquiry, or any circumstance
which tends to prove that fact, or any fact or circumstance which tends to corroborate or strengthen the
testimony relative to the subject of the inquiry, or which legitimately affects the credit of any witness who
testifies. (In re Franklin Country, 5 Ohio S. & C. Pl. Dec., 691; 7 Ohio, N.P., 450; People v. Greenwell, 5
Utah, 112, 13 Pac., 89.)
By the common law perjury is the willful and corrupt taking of a false oath, lawfully administered in a judicial
proceeding or the course of justice in regard to a matter material to the issue or point of inquiry. (30 Cyc.,
1399, and cases cited therein.)
This definition of perjury, as modified by statute, may be more accurately defined to be the willful and
corrupt assertion of a falsehood, under oath or affirmation administered by authority of law, in a material
matter, the offense being enlarged and made to extend to other false oaths than those taken in the course

of judicial proceedings. (30 Cyc., 1400, and cases cited.)

In the case of The State v. Hattaway (10 Am. Dec., 580) one Shackleford having been indicated for stealing
a cow and afterwards discharged brought an action against the prosecution for malicious prosecution. In this
action Hattaway was called as a witness and testified that Shackleford purchased the cow in question from
one Carter, and that he was present at the time. Being asked where he lived at the time, he said, "Near
Carters; perhaps within 100 yards;" whereas it was proved that he did not live in the State. The perjury
assigned was his false testimony as to where he lived. The trial court instructed the jury that the testimony
was not material so as to constitute perjury, but the jury thought otherwise and found the defendant guilty.
The defendant then moved to set aside the verdict as contrary to the law, and the court in passing upon this
motion said (p. 581):
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"It seems to be agreed by all the writers on criminal law, that one ingredients in the crime of perjury is that
the oath relate to some matter material to the question in issue: . . . There can be no doubt but that an
extra-judicial oath, or one relating to a matter utterly immaterial, or even an impious oath, taken in idle
conversation, may be as offensive in the eye of heaven as the most solemn oath taken in a court of justice.
But there are many offenses against morality and religion which are not cognizable in courts of justice. For
such offense, a man is answerable only to his God, and not to the laws of his country. . .
"There is no offense the general character of which is better understood than that of perjury; and no point
better settled, perhaps, than that the oath must relate to some fact material to the issue.
There is a distinction between perjury and false swearing; the one is stubborn and corrupt while the other is
simply not true, lacking the elements which go to constitute the crime of perjury. (Miller v. State, 15 Fla.,
577.)
Section 3 of Act No. 1697 is a copy, with the necessary changes only, of section 5392 of the Revised
Statutes of the United States. This section (5392) is as follows:
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"Every person who, having taken an oath before a competent tribunal, officer, or person, in any case in
which a law of the United States authorizes an oath to be administered, that he will testify, declare, depose,
or certify truly, or that any written testimony, declaration, deposition, or certificate by him subscribed is
true, willfully and contrary to such oath states or subscribes any material matter which he does not believe
to be true, is guilty of perjury, and shall be punished by a fine of not more than two thousand dollars, and
by imprisonment, at hard labor, not more than five years; and shall, moreover, thereafter be incapable of
giving testimony in any court of the United States until such time as the judgment against him is reversed."

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The essential parts of this section (5392) and section 3 of Act No. 1697 are exactly the same. It is also true
that section 3 of our perjury law is practically the same as that of nearly all of the States of the Union
wherein materially is made, by statute, an element of the crime.
An essential element of the offense created by the statute (section 5392, Rev. Stat.) is the materially of the
matter charged to have been falsely stated. (U.S. v. Landsberg, 23 Fed. Rep., 585.)
In some jurisdictions the prosecution of perjury is continued until the proceeding in which the perjury is
alleged to have been committed has been ended, but under our law (Act No. 1697) it is not necessary that
the proceeding in which the perjury was committed should be terminated before prosecution for that crime
is commenced. (U.S. v. Concepcion, supra.) The contrary rule obtained for prosecution under the provisions
of the Penal Code. (U.S. v. Opinion, 6 Phil. Rep., 662; and U.S. v. Adolfo, 12 Phil. Rep., 296.)
Where materiality is made by statute, as in Act No. 1697, an essential element of the crime of perjury, the
doctrine of the courts that it must be shown by competent proof that the false testimony was material to the
issues involved, is settled beyond question. This doctrine pervades the entire adjudged law on the subject.
"Wherever we more in this department of our jurisprudence we come in contact with it. We can no more
escape from it than from the atmosphere which surrounds us."
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Aside from the statement of counsel in his brief, heretofore referred to, the prosecution has failed to
establish the legal guilt of the accused of the crime of perjury, inasmuch as it has not been proven in any
manner that the false testimony of the appellant was material in the murder case.
We shall now determine in what way, if any, the said statement of counsel can affect the guilt of the
accused. As we have said, he has not committed a crime (if this statement of counsel does not affect the

result) for which he can be punished under the law in force in this jurisdiction. In order to sustain a
conviction based on a fatally defective complaint, the defects must be supplied by competent proof. Counsel
in his printed brief in this court states that the witness Tambolero testified in said murder case that when
the murder was committed he saw one of the defendants come out of the lower part of the convent with a
bolo in his hand. This is not a confession, as there is a marked difference between a confession and such a
statement, but this is purely a statement by counsel made in the appellant court. It is more than probable
that the appellant himself knows nothing of this statement; no doubt he has never seen the brief filed in this
case. So such a statement made for the first time on appeal is not competent proof to establish the guilt of
the appellant when such guilt must depend solely upon the said statement. Counsel for appellant was not
authorized by his client to make this statement.
In the case of Sweet Clayton v. State (4 Tex. App., 515), George Spears and Sweet Clayton were indicated
in the district court of Uvalde, Texas, for the crime of conveying, or causing to be conveyed, into the jail of
Uvalde Country, certain instrument for the purpose of aiding two prisoners to make their escape. A motion
for the arrest of the judgment was made in the court of appeals, based on the ground of the insufficiency of
the indictment. The court did not sustain the contention of counsel for the defendants, but on its own motion
reversed the judgment on another ground which was not raised by counsel and which referred to the
admission made by defendants counsel, and in passing upon this question the court, speaking through Mr.
Justice White, said (p. 518):
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"The charge of the court, which was otherwise unexceptionable, presents an error which will necessitate a
reversal of the case. In the fourth subdivision of the charge the jury are told that it is admitted by the
defendants counsel that John Woods and Lark Clayton were prisoners legally confirmed in the country jail of
Uvalde Country, on an accusation of felony, to wit, theft of a cow. As was said in the case of Nels v. The
State: "The prisoners counsel had no authority to make any statement or admission to supply the palce or
have the force of evidence against him. No confession of theirs could bind or affect him. Their admissions
could not in law prejudice or affect his rights; nor could they be in any wise jeopardized by the assumption
of any grounds whatever upon which his defense may have been placed by his counsel. Whether those
grounds were correct or incorrect, true or false, was wholly immaterial. That was not the question for the
consideration of the jury, whose duty it was to decide the question of the guilt or innocence upon the law as
given them by the court, and the evidence as given by the witness, irrespective of any admissions by the
prisoners counsel, or any grounds upon which they may have rested his defense."
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In this case, defendants counsel no doubt admitted in open court, at the time the defendant were on trial
and in their presence, that the said Woods and Clayton were prisoners legally confined. It does not appear
that the defendants made any objections to the said admission. Notwithstanding all these facts the court
reversed the judgment solely for this reason.
In the case at bar we do not find it necessary to go as far as the Texas court did, for the reason that the
statement of counsel for the appellant was not made in the trial court and this record fails to disclose
whether said statement was made in the presence of the accused; but it does conclusively show that the
same was made for the first time in the printed brief on appeal. So much a statement can not be accepted
as competent proof of supply the fatal defects in the complaint and form the basis upon which a conviction
can be entered.
Our conclusions are, therefore, that the appellant is not guilty of the crime of perjury for the reasons above
set forth. The judgment is reversed and the appellant acquitted, with costs de oficio.

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