Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. Nos. L-23929-L-23930 March 3, 1926
THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,
vs.
RAMON NAKPIL, ET AL., defendants-appellants.
Araneta and Zaragoza, Ramon Sotelo and Eusebio Orense for appellant Nakpil.
Alfonzo E. Mendoza for appellant Fermin.
Del Rosario and Del Rosario and Sotto and Fausto for appellant Mariano Uy Tu Chi. Crispin Oben for appellant Palanca.
Acting Attorney-General Reyes for appellee.
ROMUALDEZ, J.:
In the two above entitled cases, the defendants are prosecuted for the crime of estafa through falsification of commercial documents, namely, the checks, Exhibit A, which is the subject matter case G. R. No. 23929, and Exhibit B, to which case G. R. No. 23929 refers.
By an agreement of the parties, the two cases were jointly heard, first with respect to the defendant Ramon Nakpil, and then in relation to the defendants Mariano Uy Tu Chi, Elias Fermin, and Ignacio Palanca. In the latter joint hearing, the parties agreed to consider the evidence adduced at the hearing against Ramon Nakpil as presented therein.
In the first said cases, the defendants Ramon Nakpil, Ignacio Palanca, Elias Fermin, Mariano Uy Tu Chi, were found guilty of the crime charged, and sentenced to your years, nine months and eleven days prision correccional, a fine of 10,000 pesetas, to indemnify the National Bank in the sum of P8,350, to suffer the accessory penalties provided by law, and to pay their proportional part of the costs.
In the second case, the name defendants were also found guilty of the crime alleged in the information, and sentenced to four years, nine months and eleven days prision correccional, a fine of 10,000 pesetas, to indemnify the National Bank in the sum of P3,500, to the accessory penalties of the law, and to pay the costs proportionately.
From these judgments the present appeal was taken, the appellant Ramon Nakpil assigning the following errors:
1. In admitting the testimony of the coaccused Liberato Valentin and Yu Seng concerning the very fact of the conspiracy, after the crime had been committed.
2. In giving any credit at all to the testimony of Yu Seng and Liberato Valentin.
3. In holding in its judgment that the testimony of Liberato Valentin and Yu Seng had been sufficiently corroborated.
4. In giving much weight to the testimony of Ponciano Veluz, Crespo Ella and Fermin Mendoza.
5. In finding that there can be no doubt as to the conspiracy of the defendants in the Go Club, to forge the checks.
6. In holding the motion for dismissal presented by the defendant Nakpil after the introduction of the evidence of the Government.
7. In finding the defendant Ramon Nakpil guilty, and in sentencing him to the penalty of four years, nine months and eleven days prision correccional, to pay a fine of ten thousand pesos (10,000), and also to pay the amount of the estafa alleged in the information.
The appellant Ignacio Palanca alleges that the court erred:
1. In holding in its two identical decisions which were the facts proved with respect to each defendant, as a result of the separate hearing of each one.
2. In believing the declarations of the two defendants who pleaded guilty to the alleged conspiracy with the other defendants in the commission of the crime after the same had been committed.
3. In finding that the checks were forged in defendant Ignacio Palanca's room.
4. In finding that the typewriter used to fill in the blank checks, belongs to defendant Ignacio Palanca.
5. In finding that defendant Palanca had in his possession the seal stamped upon the checks.
6. In finding that the telegram received in Lucena, with the alleged signature of Lim Chuico was sent by defendant Ignacio Palanca in Manila.
7. In finding that defendant Ignacio Palanca received in the Hotel Mignon, Manila, a share in the money collected in Lucena by means of the checks.
8. In denying the motion for dismissal filed by defendant Palanca when the Government closed its presentation of evidence.
9. In not holding that defendant Ignacio Palanca is not guilty of the crimes charged.
Defendant Mariano Uy Tu Chi assigns the following errors:
1. In admitting the testimony of the coaccused Liberato Valentin and Yu Seng concerning the fact of the conspiracy, after the crime had been committed.
2. In giving any credit at all to the testimony of Yu Seng and Liberato Valentin.
3. In finding defendant Mariano Errea Weesi guilty of the crime charged, and in sentencing him to the penalty imposed by the judgment appealed from.
And appellant Elias Fermin alleges that the court below erred:
1. In admitting the testimony of Yu Seng alias Ong Tai Sing against his coaccused, and much more against the defendant-appellant herein, Elias B. Fermin, to prove the alleged conspiracy, after the objective for which said conspiracy was made had already come to an end;
2. In holding that the alleged conspiracy of the accused and specially that which refers to the participation of the defendant-appellant Elias B. Fermin, was proved and proved in accordance with the established rules of the evidence;
3. In holding that it was a proven fact, that the defendant-appellant, Elias B. Fermin, was, at about the end of November, 1923, and for two consecutive days, in the room of Ignacio Palanca in the "Go Club House," situated at Pinpin, City of Manila, behind a closed door, conspiring with his coaccused to commit those crimes of which he was convicted;
4. In holding that it was a proven fact, that the defendant- appellant, Elias B. Fermin, never met Ponciano Veluz, through the introduction of Crespo Ella on the night of the 10th of December, 1923, and therefore had any amicable relation with the said Ponciano Veluz;
5. In holding as a proved fact, that it was defendant- appellant, Elias B. Fermin, and not Yu Seng alias Ong Tay Sing alone, that talked and convinced Ponciano Veluz to identify his (Ong Tay Sing) signature;
6. In holding that the defendant-appellant, Elias B. Fermin, ever had any participation in the alleged booty obtained by Yu Seng alias Ong Tay Sing from the branch office of the Philippine National Bank in Lucena, Tayabas;
7. In not holding that the defendant-appellant Elias B. Fermin had no intervention of any kind in the preparation and falsification of Exhibits A and B;
8. In not holding that the defendant-appellant, Elias B. Fermin in going to Lucena, Tayabas, with his coaccused had no knowledge whatsoever of his vices and defects of said Exhibits A and B, if vices and defects there were;
9. In convicting the defendant-appellant, Elias B. Fermin, of the crimes of which he was charged when the same has not been proven beyond reasonable doubt; and
10. In not acquitting the defendant-appellant, Elias B. Fermin, Fermin, of the crime of which he was charged, with all the findings favorable to him.
As the Attorney-General observes, the appellants' assignments of error may be sifted down to the following main points: The admissibility of the testimony of defendants Liberato Valentin and Yu Seng; the credibility of the witnesses; the sufficiency of the evidence; and the lack of specification in the judgments of the facts upon which each defendant was convicted.
As to the testimony of defendants Valentin and Yu Seng given at the trial of these cases, it is alleged to be inadmissible, having been given after the conspiracy was consummated. The doctrine upon this point refers to statements made outside of the trial of the case in which such statements are used as evidence; but when, as in the case at bar, the statement in question were made, not outside the trial of the cases before us, but during the hearing thereof, the rule invoked by the defense is not applicable. Statements made out of court are mare hearsay, and have no value as part of res gestea when they were made after the conspiracy had already been consummated and brought to an end, but they constitute evidence against the one who made them, being considered an extrajudicial confession of the declarant. But the testimony of a conspirator given during the trial of the case is not hearsay with regard to facts personally known to the witness, and it is quite as admissible as the testimony of an eyewitness who is not made a defendant, though it should be admitted with caution, and must be corroborated before being given sufficient probatory value (U. S. vs. Remigio, 37 Phil., 559). We find no error in the admission as evidence of the testimony of Liberato Valentin and Yu Seng during the hearing of these cases.
With regard to the testimony of the witnesses for the prosecution, the defence alleges that the trial court erred in giving credit to Liberato Valentin, Yu Seng, Ponciano Veluz, Crespo Ella, and the so-called Fermin Mendoza, which is a name and surname belonging to two persons respectively, in this case, namely, Fermin Paz and Fidel Mendoza.
Liberato Valentin's testimony is not disqualified because he was previously convicted of the crime of estafa through falsification of public documents. In a certain way, this fact renders it more likely that, as he states, he undertook to forge his checks in question. The contradiction noticed between his statements before Lieutenant-Colonel Dominguez and Fiscal Rivera and those he made at the hearing of this case are explained in his later testimony where he states that his former testimony did not contain the whole truth.
Neither is Yu Seng's testimony disqualified because he was previously convicted of estafa and of illegal possession of morphine. The inconsistency noticed in this witness's testimony are not, to our mind, such as to detract from the truth of the facts he recites.
It should be observed that these witnesses, Liberato Valentin and Yu Seng, had not been excluded from the prosecution, but pleaded guilty and were convicted and sentenced by the trial court.
Touching the witnesses Ponciano Veluz, Crespo Ella, Fermin Paz and Fidel Mendoza, we find nothing in the proceedings to discredit their testimony or impugn their veracity.
As to whether the evidence is sufficient or not, we find that it is, taking into account, as we should, the testimony of witnesses Liberato Valentin and Yu Seng, as well as that of the other witnesses for the prosecution, and the bulk and trend of the whole proceeding.
This evidence establishes the following:
In a certain room of the house at 419 Pinpin Street, at that time occupied by the Go Club, where defendants Ignacio Palanca and Yap Tong Hay lived, towards the end of November, 1923, the defendants having met several times (with the exception of Elias Fermin, whose participation in the acts prosecuted is directly proven of record only from the afternoon of the ninth of the following December), checks Exhibit A and B where forged, defendant Liberato Valentin being the one who, having practiced imitating the signature of F. Paz, chief paying teller of the central office of the National Bank, wrote said signature on the aforesaid checks; defendant Ramon Nakpil having delivered to said Liberato Valentin a check with F. Paz's signature, which he imitated; and said Nakpil being the one who, when Valentin had written F. Paz's signature of checks Exhibits A and B, filling in said checks on the typewriter, putting the date and place of issuance, the name of Ong Tai Sing, in whose favor the checks were issued, and their respective amounts, and stamped upon the checks "Certified-good when properly-endorsed" and "Dec. 5, 1925" with stamps he had ordered from Yap Tong Hay, and which on that occasion had been delivered to him by Ignacio Palanca, and signed thereon the name of Lim Chuico, supposed drawer of the checks, and wrote the amounts in the upper corner of said documents.
In the afternoon of December, 1923, defendants Mariano Uy Tu Chi and Elias Fermin arrived in an automobile at said house, where defendant Ignacio Palanca lived. The defendants Ramon Nakpil and Yu Seng met there. Then the four of them, namely, Mariano Uy Tu Chi, Elias Fermin, Ramon Nakpil, and Yu Seng got into the car in which the first two arrived, and left for the town of Lucena, Tayabas.
They arrived at Lucena about 8 o'clock at night, Yu Seng and Mariano Uy Tu Chi staying at the Malaya Hotel, and Ramon Nakpil and Elias Fermin going elsewhere; the next day, December 10, 1923, the last two went to the Malaya Hotel, and Ramon Nakpil told Yu Seng and Mariano Uy Tu Chi to go to the branch office of the National Bank in that locality in order to cash the checks.
Yu Seng and Mariano Uy Tu Chi went to said branch of the National Bank, where, in order to cash the checks, Yu Seng indorsed the checks with the signature of Ong Tai Sing and delivered them to Manuel Verruya; upon their being presented to the cashier, they were rejected because the signature of Ong Tai Sing was not known to them. Defendants Yu Seng and Uy Tu Chi then returned to the Malaya Hotel and informed Nakpil and Fermin of what had happened when they attempted to cash the checks. Defendant Nakpil instructed his codefendants Fermin and Uy Tu Chi to go back to Manila and tell the other defendant, Palanca, to send a telegram to Lucena. Fermin and Uy Tu Chi left for Manila on the same day, and Nakpil and Yu Seng remained in Lucena.
That night, Crespo Ella, deputy sheriff, went to the Malaya Hotel to drink wine, and was introduced by Romana Mendoza, owner of the hotel, to defendants Ramon Nakpil and Yu Seng, who represented themselves to Crespo Ella as business men and purchasers of copra, named Reyes and Ong Tai Sing, respectively. The three of them met again that night in the cabaret, where they remained until 10 or 11 o'clock that night, and where they found Ponciano Veluz and Agapito Villasenor and others, to whom Crespo Ella introduced the two aforementioned defendants as said Reyes and Ong Tai Sing, taking them to be the persons so named.
On the following day, December 11, 1923, at about midday, a telegram, Exhibit D, was received in Lucena, addressed to Ong Tai Sing and signed by Lim Chuico, reading as follows: "Received telegram stating checks refused bank authorized you collect same coprax immediately have sent you one more."
That afternoon at 3 o'clock, Mariano Uy Tu Chi and Elias Fermin returned to Lucena. Then Ramon Nakpil, Mariano Uy Tu Chi and Yu Seng went to the branch of the National Bank, the first two remaining at the corner of the street, and Yu Seng going ahead to said branch of the bank, where he presented checks Exhibits A and B, and the telegram Exhibit D; he was told that the checks could not be cashed until his signature had been identified by some person known in the locality, and the name of Ponciano Veluz was suggested for that purpose. He came out of the bank and informed Nakpil and Uy Tu Chi of the result of his visit, the three then returning to the hotel. Nakpil told Elias Fermin to accompany Yu Seng to see Ponciano Veluz. Fermin and Yu Seng did so. Veluz believed Fermin was one Gonzalez, and Yu Seng, Ong Tai Sing. It does not clearly appear whether Fermin introduced himself to Veluz as Gonzalez, or whether he was presented by Yu Seng as said Gonzalez. In the first case, such an introduction by himself under a fictitious name reveals a desire to conceal his real name, and the same holds true in the second case, in allowing Yu Seng, by his silence, to introduce him as said Gonzalez, saying nothing as to his real name.
Veluz inquired at the telephone at the local branch of the bank whether the checks in question were good, and on being told that they were, he endorsed them with his signature.
When Fermin and Yu Seng returned to the hotel, Yu Seng, Nakpil and Uy Tu Chi left for the bank, the last two remaining at a corner of the street, while the first went to the bank, where he presented the checks and succeeded in cashing them.
Yu Seng left the bank carrying with him the amount of the checks in cash. He rejoined Uy Tu Chi and Nakpil, who asked him for the money, and the three returned to the hotel. Nakpil gave Uy Tu Chi P100 for the hotel expenses, and the four defendants, Ramon Nakpil, Yu Seng, Mariano Uy Tu Chi and Elias Fermin left Lucena in the same car in which Fermin and Uy Tu Chi had returned to Lucena that afternoon, arriving in Manila at about 8 o'clock that night. They went to a hotel situated on the corner of Escolta and Pinpin Streets, and there engaged a room, Nakpil telling the servant not to let anyone in unless he was called. Nakpil delivered P150 to Yu Seng, and sent him for Palanca, who went there as he told Yu Seng on the following day (fol. 17 t. s. n. of the hearing against Palanca).
Sometime after, in Palanca's house and in his presence, Liberato Valentin received P500 from Nakpil as compensation for his work.
During the latter part of December, 1923, or the early part of January, 1924, Lieut. Jose P. Guido of the Constabulary, in one of the houses of defendant Palanca in Trabajo Street, Manila, seized, the typewriter Exhibit E, which according to other evidence was the one used by Ramon Nakpil in filling certain blanks in checks Exhibits A and B.
Counsel for Palanca calls attention to Exhibit J, consisting in the words typewritten in the checks, copied in another paper on the machine Exhibit E, and alleges that the characters of Exhibit J are absolutely different from the words written on the machine in the checks. The difference we note is that in Exhibit J, letters E, I and O (particularly the first), are out of the place, which may have happened after the checks had been made out, since several days passed from the forging of the checks until the finding and seizure of the machine. On the other hand, the position of the letters in the words "Tai Sing FIFTY" and the little slant to the right of the letter "b" in "December" both in the checks in the Exhibit J are all, in our opinion, indications of identity which, taken together with the other evidence in the case, are sufficient to warrant the conclusion that this is the typewriter used to fill out the checks in question.
With reference to the allegation of counsel for defendant Palanca anent the lack of specification in the decisions, of the facts proved against each defendant, we find that the statements of facts made in said decisions specify sufficiently the part taken by each of the defendants in the commission of the crime in question. Counsel remarks that the trial judge states in his decision that he would have hesitated in sentencing the defendants if the testimony of Valentin and Yu Seng had not been corroborated, and that according to this, if said judge had specified the inculpatory facts against each defendant, he should have acquitted defendant Palanca, since, with respect to him, said counsel alleges that the testimony of Valentin and Yu Seng is uncorroborated. Besides, it should be borne in mind that corroboration need not of necessity consist in parol evidence: it may be any fact or detail resulting from the whole of the proceeding, or a mark or token deduced reasonably from the facts proven (U. S. vs. Remigio, 37 Phil., 599). And the case contains corroborative evidence of this nature both with regard to defendant Palanca and to his coappellants.
Counsel for defendant Ramon Nakpil assails the veracity of Liberato Valentin and Yu Seng, they having testified in the case after the Attorney-General had shown some leniency towards them, inasmuch as he at first prayed for the dismissal of the action against Yu Seng to make use of him as a witness for the prosecution; then because the latter pleaded guilty, the Attorney-General proposed the minimum penalty for him, and lastly he asked for the suspension of the reading of the sentence against said defendants, Valentin and Yu Seng, until the termination of the trial of the instant cases. And that said witnesses testified after counsel for defendant Nakpil had shown them some severity, having objected to the said dismissal as to Yu Seng prayed for by the Attorney-General, and to the imposition upon said defendant of the minimum penalty, and having called the attention to said Yu Seng's recidivism. We do not believe that for such leniency on the part of the Attorney-General, we should reject the testimony of said witnesses: the law concedes probative value to such testimony even in cases of greater leniency, as when it is prayed that the defendant be wholly excluded from the information, in order to serve as a witness for the prosecution. As to the severity shown by counsel for defendant Nakpil, let it be noted that such severity was shown only to defendant Yu Seng that the said counsel's remarks cannot affect Liberato Valentin's testimony. And as for Yu Seng, he declared that he felt no resentment because Nakpil's attorneys had asked that the maximum penalty be imposed upon him as a recidivist (fols. 84, 85, t. s. n. of the hearing against Nakpil).
As to the contradictions noted by counsel for the defence in the testimony of Liberato Valentin and Yu Seng, we have already stated in the beginning that we do not find that they affect the veracity of said witnesses. We have carefully examined said testimony, and have arrived at this conclusion.
With respect to the corroboration of the testimony of these witnesses, as we have said, it is in the record.
Counsel for Elias Fermin that the conspiracy was not proven as to said accused Fermin. It is true that there is no direct evidence that he took part in the conspiracy, but his subsequent acts performed after December 9, 1923, his trip to Lucena in company with three of his codefendants, his return to Manila and journey back to Lucena, his stay, and his acts in Lucena until the checks were cashed, and his return to Manila, apart from being inculpatory facts showing his participation in the crime, are also sufficient indications of his intervention in or knowledge of the conspiracy.
It is true that there is no proof that Elias Fermin met Ponciano Veluz on the night of December 10, 1923, but the fact that the trial court so found has not prejudiced said defendant, inasmuch as even without said detail we hold said appellant's guilty to be sufficiently proven.
In his alibi, defendants Nakpil tried to prove by Attorney Raymundo Ferrer's testimony that he was in the latter's office on the 10th and 11th of December, 1923, at about 3 o'clock in the afternoon, and also, by Attorney Agustin Nano's testimony, on the 12th of that month between 3 and 4 o'clock in the afternoon. This evidence is not absolutely incompatible with that adduced by the prosecution, inasmuch as it does not appear from the latter, supposing that said attorneys remember with certainty the time and the dates, that approximately at the time when the attorneys who testified for the defence recall, Nakpil was at Lucena, for it was not impossible for him to have come to Manila, and then gone back to Lucena.
Defendants Ignacio Palanca and Elias Fermin disclaimed any part in the acts upon which this information was filed. But to our mind, their denial is not enough to offset the evidence adduced by the prosecution against them, which is highly incriminatory.
With respect to the defendant Mariano Uy Tu Chi, he admits that he took part in the attempt to cash the checks in question, even if he does allege that he acted as a mere interpreter and was unaware of the forgery of the checks. If, as he declared, he was going to the municipality of Siain, his stay in Lucena admits of no sufficient explanation compatible with his innocence of the crime charged. His defence is not sufficient to counterbalance the weight of the evidence of record against him. We believe that the part taken by each of the appellants in the acts which are the subject matter of this case, has been proved beyond a reasonable doubt, and that they are guilty, as principals, of the crime charged.
We find no merit in the defenses presented by the defendants sufficient to exempt them from, or extenuate, their criminal liability.
Neither do we find in their assignments of error a sufficient reason to depart from the conclusions laid down in the judgment appealed from.
The Attorney-General proposes the following:
The facts proven constitute two crimes of estafa committed through the falsification of commercial documents, defined if paragraph 1 of article 535 of the Penal Code, in connection with articles 300 and 301 of the same Code, as these last have been amended by sections 1 and 2 of Act No. 2712. All the defendants are liable as principals of these crimes, inasmuch as, through a premeditated and preconcerted plan, they forged checks Exhibits A and B, representing therein a fictitious person as the drawer, and also writing the signature of F. Paz, head of the department of payments and deposits of the National Bank, and having so forged said checks, presented them for collection at the branch office of the National Bank of Lucena, Tayabas, receiving their respective amounts of P8,350 and P3,500. As these are complex crimes, the forgery being a means employed to commit the crime of estafa, the penalty to be imposed upon the defendants in accordance with article 89 of the Penal Code, is the maximum of the penalty fixed by law for the graver crime, which in the cases before us, is forgery, which penalty, pursuant to article 301 of the said Code as amended by section 2 of Act No. 2712, is prision correccional in its maximum degree and a fine from 250 to 12,500 pesetas. The lower court sentenced the defendants to the medium degree of the aforesaid penalty, that is, four years, nine months, and eleven days, and each of them to pay a fine of 10,000 pesetas; but this penalty must be so modified as to impose upon the defendants, in accordance with the provisions of article 89 mentioned above, the maximum degree of the penalty provided by law, that is, five years, four months, and twenty-one days to six years of prision correccional. The judgments appealed from must also be modified so as to sentence the appellants to subsidiary imprisonment in case of insolvency in the payment of the fine.
We find such a recommendation to be correct, and the judgments appealed from are hereby modified, each appellant being sentenced in each of these cases to five years, four months, and twenty-one days prision correccional, and said judgments are affirmed in all other respects, with costs against the appellants. So ordered.
Street, Malcolm, Ostrand and Johns, JJ., concur.
Separate Opinions
JOHNSON, J., dissenting:
I cannot bring myself to the belief that all of the appellants are guilty.
VILLAMOR, J., dissenting:
I regret to have to dissent from the majority. As I understand the evidence of record, I do not believe that the guilt of defendants Ramon Nakpil and Elias Fermin has been proved beyond a reasonable doubt. A careful analysis of the statements of the principal witnesses, Yu Seng and Liberato Valentin, shows that they seriously contradict themselves in essential matters, which weakens their own testimony, in itself suspicious, these witnesses being coprincipals in the commission of the crime charged, besides having been previously convicted of estafa. Furthermore, the presence of defendant Ramon Nakpil in Tayabas on the afternoon of December 11, 1923, between 3 and 4 o'clock, at which time it is said the forged checks were cashed at the branch office of the National Bank in Tayabas, is in conflict with the testimony of the witnesses for the defense, attorneys Raymundo Ferrer and Agustin Nano. According to the latter witness, the defendant, Ramon Nakpil, was in his office in Manila on December 11, 1923, between 2 and 3 o'clock in the afternoon, and I believe it was physically impossible for him to have in Tayabas between three and four on that same afternoon. Certainly, between Yu Seng's testimony, which, on this point, incriminates the defendant, and that of attorneys Ferrer and Nano, I am inclined to believe in the veracity of the two latter witnesses.
In my opinion, the two defendants Ramon Nakpil and Elias Fermin are entitled to an acquittal.
Avanceņa, C.J., concur.
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