Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-4934             October 30, 1909

THE UNITED STATES, plaintiff-appellee,
vs.
A. C. V. ROSA and SY CHUY CHIN, defendants-appellants.

M. Caringal, and E. de Lara for appellants.
Attorney-General Villamor for appellee.


PER CURIAM:

The defendants were convicted of the crime of estafa in one of the Courts of First Instance of the city of Manila on the 17th day of July, 1908. Both defendants appealed to the Supreme Court of the Philippine Islands from such judgment of conviction. The defendant Rosa subsequently withdrew his appeal and the sentence of the lower court was executed against him.

The penalty imposed by the trial court under said judgment of conviction upon the appellant Sy Chuy Chin was "five months of arresto mayor . . ., to pay the offended party, Sr. Biunas, the sum of P53.70, or its equivalent in pesetas (268.50 pesetas), and to pay one-half of the costs of this action, suffering in case of insolvency, the corresponding subsidiary imprisonment."

The Supreme Court resolved the appeal of Sy Chuy Chin on the 20th day of September, 1909, 1 and affirmed the judgment of conviction of the trial court.

The appellant Sy Chuy Chin now asks for a writ or error to the Supreme Court of the United States upon the ground that this court committed an error in affirming the judgment of conviction and the sentence imposed thereunder.

The appellant makes the following assignments error on his application for the writ:

1. That the court erred in affirming the judgment and the sentence imposed thereunder by the trial court, especially in sentencing him to subsidiary imprisonment in case of his insolvency, said insolvency rendering him unable to return to Sr. Biunas, the party injured by the commission of the crime, the sum of 268 pesetas and 50 centimos, and to pay half the costs; because the first sum of 268 pesetas and 50 centimos is simply a civil debt in favor of said Sr. Biunas, and the payment of the costs is a civil liability in favor of the government; and there exists no law in the Philippine Islands which authorizes subsidiary imprisonment for the payment of a civil debt and for the payment of a civil debt and for the payment of the costs of the action.

2. That the court erred in affirming the said judgment and the penalty imposed thereunder in that it violated the provisions of section 5 of the Act of Congress passed July 1, 1902, which says: "That no law shall be enacted in said Islands which shall deprive any person of life, liberty, or property without due process of law or deny to any person therein the equal protection of the law;" because the imposition of subsidiary imprisonment by reason of insolvency is equivalent, first, to establish differences in the application of the law to the poor and to the rich, thereby permitting the rich to go free and the poor alone to suffer; and second, to imposing a penalty not provided for in the Penal Code of the Philippine Islands.

3. That the court erred in affirming the judgment and the sentence of conviction because the same violated the provisions of said Act of the Congress of the United States, section 5, in which it says: "That no person shall be imprisoned for debt;" because even supposing that the Spanish laws relating to subsidiary imprisonment are not abolished, it, nevertheless, is certain that the said Act of Congress prohibits the application of those rules and regulations which establish subsidiary imprisonment in default of the payment of an indemnity or debt. 1awph!l.net

In his printed brief before this court (there was no oral argument) the appellant made the following assignment of errors:

The court erred:

1. In overruling the demurrer interposed by the accused Sy Chuy Chin against the information.

2. In declaring proved the facts alleged in the information against the said Sy Chuy Chin.

3. In declaring the said Sy Chuy Chin guilty of the crime of estafa.

4. In not absolving the said accused — first, because the fact alleged do not constitute a crime, and second, because there was a failure of the proofs.

In his printed brief of 13 pages the appellant confined himself strictly to a discussion of the errors assigned.

Nowhere, either in the assignment of error or in the discussion thereof, did the appellant raise any of the questions now presented in the assignment of errors accompanying his petition for the writ of error. At no time during the course of the trial or in the appeal, presented and argued in this court was the remotest reference made to any of those questions. They were presented for the first time on his petition for the writ of error. The trial court had no opportunity to pass on those questions. This court has had none. The appellant is therefore not entitled to the writ upon the showing made. (Linford vs. Ellison, 155 U. S., 503; South Carolina vs. Seymour, 153 U. S., 353; Ex parte Moran, 144 Fed. Rep., 594; same case, 75 C. C. A., 396; Lyons vs. Bank, 154 Fed. Rep., 391; Maxwell vs. Federal Gold and Cooper Co., 155 Fed. Rep., 110.)

The application for a writ of error is denied.

Arellano, C. J., Torres, Mapa, Johnson, Carson, Moreland, and Elliott, JJ., concur.

1 See Notes, post.
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