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[US v. SY MACO](https://www.lawyerly.ph/juris/view/cf85?user=fbGU2WFpmaitMVEVGZ2lBVW5xZ2RVdz09)
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[ GR No. 5994, Dec 20, 1910 ]

US v. SY MACO +

DECISION

17 Phil. 565

[ G.R. No. 5994, December 20, 1910 ]

THE UNITED STATES, PLAINTIFF AND APPELLEE, VS. SY MACO, DEFENDANT AND APPELLANT.

D E C I S I O N

TORRES, J.:

This is a case which was instituted in the Court of First Instance of Cebu against the Chinaman Sy Maco, separately from that against his co-defendant Go Quico, for a violation of Act No. 1761, and  was forwarded to this court  on an appeal entered by the defendant.

On August 22, 1909, J. C. Milliron, an agent of the Bureau of Internal Revenue, after taking a memorandum of the numbers of certain bank notes to  the value of P35, to wit, two 10-peso and three 5-peso notes, delivered them, together with 1 peso in silver, to Pacencio Rosales, an employee of the said Bureau,  in  order that the latter might therewith  procure opium, and  accordingly  Rosales, after he likewise had made a memorandum of the numbers of the said notes, on the 25th of the month aforementioned, delivered the said amount to the Chinaman Go Chico, telling him to buy opium wherever he might find  it.   As  soon as Go  Chico  had received the money, he went to the store of the Chinaman Sy Maco, and there having informed the Chinaman Go Quico, a clerk in the employ  of the owner of the store, of the object of his visit, the latter immediately sold him some opium contained in a can which the said clerk fetched from the back part of the store  and delivered to  him in the presence of the said Sy Maco, before whom Go Chico paid the price of the opium acquired by delivering the  said amount of money.  During this transaction  Sy Maco told the buyer, Go Chico, before the latter left the store,  that he should be very cautious, as the opium was very dangerous on account of its being contraband.   Another Chinaman, named Du Ho  Hay, who had entered the  store after Go Chico to demand a certain sum of money  which he had delivered  the day before to the said Go Quico, as the latter had not furnished him the opium he desired to purchase, was also present at the time.

While Go Chico was buying the opium, Pacencio Rosales stationed  himself in the street to observe, from a certain distance away, what was going on in the store.   After the buyer came out of  it, he and Rosales went to the latter's house in order there to  ascertain whether the contents oi the can received in  Sy Maco's store was really opium, and afterwards Rosales went to the agent Milliron to deliver the can to him.   The latter, through a hole that had been opened in the can, examined its contents and, as soon as he was convinced that it really  contained opium, at once  proceeded to make a search of the  said Sy Maco's store, which lasted from 11 o'clock in the morning until 1 o'clock in the afternoon, approximately.  At  the commencement of the search, the agent Milliron seized two 10-peso bank notes and one of 5 pesos, found in one of the drawers of the  store, as they bore exactly,  the numbers  of which  he had made a memorandum before he had delivered the notes to Rosales.   Having, with difficulty, searched all the receptacles and  depositories of the store, and notwithstanding that the adjoining room  in the back part of it had several doors communicating with different houses, which made all search and inspection fruitless, yet Milliron found 28 pieces of bamboo and clay, such as serve to join the stem of the opium pipe with the bowl on one end and the mouthpiece on the other.' These utensils were found on some sacks and cases in  the storeroom.  It was observed that two of the said instruments had been used for smoking opium,  as  particles of  opium were found adhering to them.

For the foregoing reasons the provincial fiscal filed an amended complaint in the Court of First Instance of Cebu, on August 27, 1909, charging the Chinamen Go Quico and Sy Maco with a violation of section 15 of Act No. 1761, and as this case  was instituted solely  against Sy  Maco, under his  petition that he  be tried separately  from his coaccused,  Go Quico, the  court, after considering the  evidence  adduced therein, rendered judgment on  September 29 of the same year  (p.  59 of the trial  record), and sentenced the defendant Sy  Maco to pay a fine of P2,000 and,  in  case of insolvency, to subsidiary imprisonment, and to the payment of  one-half of  the costs.  The can of opium and the instruments  for smoking the drug, which had been seized,  were also ordered to be confiscated.   From this judgment the defendant,  Sy Maco, appealed.

Section i5 of  Act No. 1761, known as The Opium Law, provides:
"(a)  No  person  shall import,  cook, or  prepare opium, or engage in the business of purchasing or selling opium or of dealing or trafficking therein, unless he  shall  first have secured from  the Collector of Internal Revenue a license to transact such business and shall  have paid the license tax prescribed by this Act.   *  *  *

"(b) Any person violating the provisions of this section shall be punished by a fine of not less than  five hundred pesos nor more than two thousand pesos, or by  imprisonment for a period  of not more than one  year, or by both such fine and imprisonment, in the discretion of the court."
From the evidence adduced at  the trial  of this case it was proved that the sale of  a certain quantity of opium, in the store belonging to the Chinaman Sy Maco, by the latter's clerk, named Go  Quico, to the Chinaman Go Chico, the buyer of the drug, took place in the  presence of the said Sy Maco, for the latter, at the moment that the buyer was on the  point of going out of the store with the opium he had bought,  charged  the said  Go Chico to be  cautious because the said drug was  contraband  and was very dangerous.  The record does not show it to have been proved that the opium sold belonged exclusively to Go Quico, while it does show that the clerk  got the article from the inner part of the  store, and that the bank  notes  delivered by the buyer in payment of  the price of the opium were found in a drawer in common  use in the said store.   Wherefore it is unquestionable that the defendant Sy Maco was directly interested in the sale and  traffic  of the  said  drug,  and in whose store, at any rate,  the opium sold was kept, aside from the  fact that a number of instruments for  smoking opium, two  of which  bore  evident  signs  of having been used, were found inside the said store.   For these reasons the liability  of the  defendant is  undeniable, as he had in his store opium  intended for sale and knowingly permitted the sale, in  his presence, of a certain quantity of  the said drug by his  clerk, Go Quico.

With respect  to the errors assigned by  the  defense to the judgment appealed from, it is proper  to state herein, for the purposes of this decision, that the Act  of Congress of March 3, 1905, section 11, Class III, group 1, No. 80 (b), prescribes, among other things, the following:
"Provided, however, That the Philippine  Commission or any subsequent Philippine legislature shall have the power to enact legislation to prohibit absolutely the importation or sale of opium, or to limit  or restrict  its importation and sale, or adopt such other measures as may be  required for the suppression of the evils  resulting  from  the sale and  use of  the  drug: And provided further,  That after March first,  nineteen hundred and eight,  it shall be unlawful to import into the Philippine Islands opium, in whatever form,  except  by the Government,  and for medicinal purposes only, and at no time shall it be lawful to sell opium to any native of the  Philippine Islands except for medicinal purposes."
The Philippine Commission, acting" under  the authority granted by the said  Act of Congress, saw fit to enact Act No.  1761, which went  into  effect on October 17,  1907, repealing the previous Act No. 1461,  and  establishing rules for the  purpose of gradually restricting and regulating the sale  and use of  opium during the period of time yet to elapse until  the  arrival of  March  1,  1908,  when  the importation of the  said drug into these  Islands, as well as its  carrying,  holding, possession,  or use  for  smoking, swallowing, injecting, and inhaling, would  be ultimately prohibited, except for medicinal purposes, as likewise its sale, traffic  therein,  and so forth,  as specified  in  the  Act aforementioned, enacted  on October 10, 1907.

During the period from the 17th of the  same month, when this Act of the  Commission  went into  effect, to the day preceding that of March 1,1908, the legislature intended gradually to restrict  and  regulate the sale and use of opium, until its  importation, use,  possession,  sale,  and  handling should be prohibited from and after the said 1st of March, in conformity with  the  aforementioned Act  of Congress. As the Act of  the  Commission, before referred  to, contains  provisions  applicable to the case at bar, after the absolute prohibition  of the  use, possession, importation, and sale of the said  drug, there can be no rational ground nor well-founded reason  for  averring that the said Act of the Commission was  in force only up to March 1, 1908, for the reason that, as  aforestated, provisions were therein prescribed which were  to be strictly complied with after the said date of absolute prohibition, with penalties for their violation,  as may be seen  by the text itself of the said Act.

The  words of the  title thereof which state, pending the ultimate  prohibition  of the importation of opium into the Philippine Islands, should be construed to mean the interval of time up to the date set by the Act of Congress when in accordance with said Act its importation into these Islands would be ultimately prohibited.

With respect to the allegation of the unconstitutionally of the Act of the Commission, No. 1761, on account  of its having been  passed for two  different purposes,  one restrictive prior to March 1, 1908, and the  other prohibitive after this date,  in  order to  understand that the  said Act is not subject to the defect  thereto attributed, it must be taken into account that Act No. 1761 was passed  pursuant to the said Act of Congress,  and on this being done by the Philippine Commission, the provision was strictly complied with  which is contained in  a paragraph  of section 5 of the Act of Congress of July 1, 1902, to wit:
"That no  private or local bill which may  be enacted into law shall embrace more  than one subject, and that subject shall be expressed in the title of the bill."
It is evident that the  Act  of the Commission relates, as expressed by its title or caption, to a single matter, which is opium, and to no other,  and hence the  Act,  which  is properly applicable to the matter it concerns for the period from the time  of  its  passage,  prior and  subsequent to March 1, 1908,  until it should be absolutely repealed by another Act promulgated by the legislative  power, is in no wise unconstitutional.

For these reasons, which  are based upon  the  law, and because the complaint which initiated ^his  case is in conformity with General  Orders, No. 58, section  10, we uphold the ruling denying the demurrer.  We also uphold, as proper, the  order denying the inhibition prayed for by the defendant's  counsel, as no support is found  for his petition in any of the cases specified either in section 8 of the Code of Civil Procedure nor in Act No. 81.  Moreover, if either of the defendants charged with the commission of a single crime  is  entitled  to be  tried  separately  from his  codefendant, as  was done  in the present case on the  petition of Sy Maco, in which cause two judgments,  one of the 15th and the other of the 29th of  September, 1909, were pronounced by the judge who tried the same, in conformity with the provisions established in section 33 of the said General Orders, No. 58, the aforementioned first judgment against Go  Quico, one of  the  two defendants,  can not serve the other defendant, Sy Maco, as a ground for challenging the judge who rendered it, as he was not included therein and was the defendant afterwards concerned in the second judgment ; this because, on the petition of any of the defendants, the law authorizes the rendition of a different judgment from that required to  be rendered against  the others, as occurred in  the  present case, and, in proceeding in this wise, the judge did not violate any law  whatever nor did he execute any act contrary or prejudicial to the defendants' rights, especially in view of the fact that, as in the case of Sy Maco, the latter expressly petitioned for a separate trial.  It is not permissible in judicial proceedings to turn against one's own acts and to avail oneself of a privilege granted by the law  for  the  purpose of  impugning judicial  acts in accord with the provisions of the law  and with his own petition.

With regard to the  other errors ascribed to the judgment appealed  from,  it is  sufficient, in our  opinion, for  their disposal to state that the findings of fact as well  as  those of law, contained in that judgment, are accepted, inasmuch as we find them to  be in accordance with the law and the evidence and  other merits of the  case,  although, in  consideration of the small amount of opium sold and of  the fact that this is the first time, as shown by the record, that the defendant has  violated the  Opium  Law,  he  may be deemed entitled to a lesser penalty.

For the foregoing  reasons, therefore, it is our opinion that the judgment  appealed  from  must be affirmed,  with the costs of this instance;  provided,  however,  that the defendant, Sy Maco, shall be sentenced to the payment only of a fine  of P500 and, in case of insolvency,  to  the  corresponding subsidiary imprisonment.  The bank notes with which  the opium was  bought  shall be  returned  to  their owner, if this has not  already been  done.   This  decision shall  not  bar a continuance  of the proceedings  in  this cause with respect  to the other  defendant, Go  Quico,  a report  of the status of which shall  be made by the  clerk of the court.   So ordered.

Arellano, C. J., Johnson, Moreland,  and Trent, JJ., concur.

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