On the 22d day of November, 1904, the complaining witness, Asuncion Zamora de Paterno, was standing in the door of her house, No. 162 Calle San Sebastian, in the city of Manila. While standing there the defendant seized her by the wrist, dragged her from the doorway into the street, along the street for 40 or 50 feet, and, with the assistance of a third person, placed her in a public carromata. The complaining witness made such resistance as she could to these acts of the defendant.

Such acts constitute the crime of coaccion, unless the defendant was justified in what he did. His justification is as follows:

He was, at the time, a policeman of the city of Manila and was stationed upon the day in question in Calle San Sebastian. The complaining witness is the wife of Dr. Paterno, a member of the advisory board for Quiapo, and the house in which they lived is situated, as has been said, in Calle San Sebastian. The principal story of the house projects over the sidewalk, the sidewalk at that place being 9 feet and 4 inches wide. At about 11 o'clock on the day in question two boys, servants of the Paternos, were engaged in cleaning and brushing the wall of the house and the part projecting over the sidewalk. For this purpose they had two benches or stepladders. Dr. Paterno gives the dimensions of these benches as follows: "The large stepladder was 9 feet 2 inches in height, 3 feet 4 inches in width at the bottom, and 1 foot 10 inches at the top. The smaller ladder was 4 feet 6 inches in height, 2 feet wide at the bottom, and 1 foot 7 inches wide at the top." At the time in question one of these stepladders was near the wall of the house and the other was against one of the supporting columns of the arcade.

As to what took place on this occasion the defendant testified as follows:

"As I drew near the box I noticed a couple of scaffolds standing on the sidewalk and a number of people on the opposite side staring up at the muchachos working overhead and noticed it was an obstruction to the sidewalk and that it was an impossibility for the people to get by without the whole, or part at least of that obstruction, being removed. I hurried and got there and ordered the smaller one of the boys with the small scaffold to move it away and accompanied him toward the door, and, as I was going along, I told him to call the owner of the house as I wanted to speak to him, and then walked back toward the larger of the two scaffolds and the one still remaining on the sidewalk, and I called to the boy still working overhead and asked him if he was going to paint the house and he smiled and said, 'Si, señor.'

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"In a very short time, I can not state exactly minutes or seconds, this native woman came down and out on the sidewalk and up to the foot of the scaffold where I was standing and I said to her in 'pigeon Spanish,' 'Have you a permit for obstructing the street in this manner?' and she answered me, 'No, señor, porque?, porque?, porque?,' in a very overbearing manner, as though she had been imposed upon in some manner or form; I do not know why, but possibly by having been compelled to put in appearance on the street by a policeman; I do not know what else it could have been, and as I understood her she made a remark to this effect, in Spanish, 'It is coming to a pretty pass if we can not clean our house without being interfered with by American police,' uttered in a very overbearing manner. I was about to place her under arrest for obstructing the street and when I turned and tapped her lightly on the shoulder, saying 'arresto,' as I understand that meant that she was placed under arrest, and immediately after that, in fact in almost the same breath, I began to say, 'Señora, if you want to get a mantilla or anything to put on your head ' I didn't get any further because she interrupted me and looked back to measure the distance to the door and then said, 'Why do you put your hands on my person?' I realized that she was going to try and escape and I wanted to avoid trouble and took one or two quick steps and caught her by the wrist, just as she was at the door, or you might say in the door, and she dragged and dragged me forward and I held on to her and said, 'Dispensame, dispensame, Señora,' meaning, 'Excuse me, excuse me,' and she kept pulling and dragging and I told her to let up, that she would have to go to the police station with me, to go to the cuartel with me, and she yelled 'No, no, no,' and I do not know what else she did say, she talked so rapidly I guess she said about everything a person could say and then I just simply had no more to say. I held on to her wrist as loosely as possible; I did not want to handly her roughly and leave the marks of gripping her too tightly and worked away from the door and down the sidewalk, and I looked around and saw a number of firemen there looking on and I asked Captain Stewart to take hold by the opposite side, and I looked up and noticed a carromata pulled in alongside the curb and I asked him to assist me to the carromata with her, and he took ahold of her and the moment he took hold she moved along without any resistance, and when we drew near the carromata we let loose and she got into the carromata of her own accord, of her own free will, and without assistance from either of us, and I got into the carromata and sat down alongside of her * * *."

At the station house the defendant caused three charges to be entered against the complaining witness, one for resisting an officer, one for disorderly conduct, and the third for obstructing the street in violation of the ordinance. The brother-in-law of the complaining witness having arrived, he gave bail for her appearance and she was allowed to depart. The next day the amount of money deposited as bail was returned and the charges dropped.

As to the details of the arrest, the complaining witness testified as follows:

"Q. What kind of a dress did you have on when you had the trouble with that policeman that morning?

"A. Just a working dress.

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"Q. Was that dress you had on that day such a dress as you customarily put on to go down into the street?

"A. It was not proper for people in our position.

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"Q. I exhibit to you these articles of clothing and ask you if you recognize them?

"A. Yes, sir; that is the camisa I had on.

"Q. I see it is torn in two pieces; how did that occur?

"A. I do not understand myself how he did that, but from so much dragging of me the sleeves parted, the sleeves did not fall off altogether, because he had hold of them in his hand.

"Q. In what condition was this camisa when you were taken to the station through the streets?

"A. I had to cover my shoulder with the sleeve which was torn off.

"Q. Show us.

"A. I had the larger half over my shoulders and the other half with the sleeve to cover my other shoulder so the public would not see it.

"Q. Did you wear a handkerchief?

"A. I did not wear a handkerchief, nor tapis, apron, or slippers.

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"Q. And for what reason did you ask the policeman to allow you to put on a handkerchief, tapis, and slippers?

"A. I wished to dress because I was not properly dressed to go into the streets, and the camisa I was wearing was torn, and that did not seem proper to me, and I wished to dress properly because I did not want people to see me in that way in the street."

There is a conflict in the evidence as to the obstruction of the street caused by these stepladders or benches. The evidence for the Government indicates that they did not prevent people passing along the sidewalk. The evidence for the defense indicates that one would have to pass between the benches and the wall of the house, with the risk of soiling the clothes, or step into the street. The servants had been at work on this occasion from 11 o'clock until about a quarter past 12.

That the obstruction, such as it was, was merely temporary admits of no doubt and the only question to be decided is whether such obstruction constituted a violation of section 27 of Ordinance No. 11 of the city of Manila.^[1] That section is as follows:

"It shall be unlawful to place or erect any post, fence, stand, building, or other obstruction, in whole or in part, upon a street, sidewalk, or public way, or to obstruct any street, drain, or gutter, without first obtaining a permit from the department of streets, parks, fire, and sanitation."

In the case of Hexamer vs. Webb (101 N. Y., 377) the court said at page 386:

"The claim that the ladder was suspended in violation of the city ordinance is not well founded. The ordinance referred to prohibits the hanging of any goods, wares, or merchandise, or any other thing, in front of any building at a greater distance than one foot. It was aimed against the obstruction of the streets. It is not apparent that the ladder overhung the street, but even if such were the case, it was a mere temporary structure, erected for the purpose of repairing the building, and not an obstruction within the meaning and spirit of the ordinance, which, it is manifest, was directed against goods, etc., which were exposed for sale, or for the purpose of attracting public attention thereto. The construction contended for would prevent the use of scaffolds in the reparation of buildings, which never could have been intended."

We do not think the ordinance in question in this case was ever intended to apply to the use of the sidewalk for the temporary purpose for which it was used in this case. To hold that every time that cleanliness required that the wall of the house or the ceiling of the arcade be cleaned of dust and cobwebs, it was necessary to secure a permit from the department of public works would be to give the ordinance an unreasonable construction.

The Charter of the city of Manila, Act No. 183, speaking of the powers of police officers, provides in section 37 as follows:^[2]

"And within the same territory they may pursue and arrest, without warrant, any person found in suspicious places or under suspicious circumstances, reasonably tending to show that such person has committed, or is about to commit, any crime or breach of the peace; may arrest, or cause to be arrested, without warrant, any offender, when the offense is committed in the presence of a peace officer or within his view."

In the case at bar the prosecuting witness had committed no offense, nor was she found in a suspicious place or under suspicious circumstances reasonably tending to show that she had committed, or was about to commit, any offense. The defendant, therefore, had no right to arrest her; the arrest was wrongful and illegal and furnishes no justification for the act which he committed. If he had any doubt as to whether the act committed was an offense or not, he could have easily protected himself by procuring a warrant for her arrest. The facts in this case are in some respects similar to those in the case of the United States vs. Ventosa,^[1] No. 2550, just decided.

No offense having been committed by placing the stepladders on the sidewalk, it is not necessary to inquire whether, if such a placing were a violation of the ordinance, the defendant would have had a right to arrest the complaining witness who was not using the stepladders in his presence and who had, in fact, done nothing in his presence which amounted to a violation of the law. The question whether the complaining witness or the servants using the ladders were the persons to be arrested, if there had been any violation of the ordinance, is a question which we do not consider.

In conclusion we may say that the impression, formed by us by reading the evidence, is that the defendant did not arrest the complaining witness because these ladders were on the sidewalk. One of them had already been taken into the house pursuant to his orders before the arrest had been made, and we are inclined to think that the real cause of the detention was the conversation had between the defendant and the complaining witness when the latter came to the door in response to the summons of the defendant.

The aggravating circumstance, No. 11 of article 10 of the Penal Code, namely, that the defendant took advantage of the public office which he held in committing the crime, should be taken into consideration. The judgment of the court below is modified by changing the penalty from two months and one day to four months and one day. In all other respects it is affirmed, with the costs of both instances against the defendant.

After the expiration of ten days let judgment be entered in accordance herewith and ten days thereafter let the case be remanded to the court from whence it came for proper action. So ordered.

Arellano, C. J., Torres, and Mapa, JJ., concur.

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^[1] Series of 1901.

^[2] I Pub. Laws, 336.

^[1] 6 Phil. Rep., 385.


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