Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-11555            January 6, 1917

THE UNITED STATES, plaintiff-appellee,
vs.
GABINO SOLIMAN, defendant-appellant.

Francisco Sevilla for appellant.
Attorney-General Avanceña for appellee.

CARSON, J.:

The evidence of record conclusively discloses that the defendant and appellant in this case, Gabino Soliman, testifying in his on behalf in the course of another criminal case in which he, with several others, was charged with estafa, swore falsely to certain material allegations of fact.

On that occasion he testified falsely that a sworn statement offered in evidence in support of the charge of estafa, which was in effect an extrajudicial confession of his guilt, had not been executed voluntarily, and that its execution had not been procured by the police by the use of force, intimidation and prolonged torture.

The trial judge who presided in the former case acquitted the accused on the ground that there was room for reasonable doubt as to whether the extrajudicial confession had been made voluntarily, and his action in this regard clearly establishes the materiality of the false testimony submitted in that case; moreover, the materiality of the evidence is manifest without considering the judgment in the case in which it was submitted, since, if accepted as true, this false testimony necessarily had the effect of rendering wholly incompetent the evidence as to the extrajudicial confession which otherwise would almost conclusively sustain and necessitate a conviction. (U. S. vs. Estraña, 16 Phil. Rep., 520.)

There can be no doubt that the accused was guilty of the crime of perjury as defined and penalized in section 3 of Act No. 1697 and that the sentence of six months' imprisonment and P300 fine imposed by the trial judge was correctly imposed under the provisions of that statute.

It appears however that since judgment was entered in this case on November 23, 1915, section 3 of Act No. 1697 has been expressly repealed by the enactment of the Administrative Code, which became effective on July 1, 1916, and it has been suggested that the judgment convicting and sentencing the accused under the provisions of that statute should not be sustained, and that the repeal of the statute should be held to have the effect of remitting and extinguishing the criminal responsibility of the accused incurred under the provisions of the repealed law prior to the enactment of the Administrative Code. We cannot agree with the proposition thus stated.

In the case of United States vs. Cuna (12 Phil. Rep., 241), we held as follows:

The rule of interpretation of English and American common law, by virtue of which the repeal of a law prescribing penalties is held to have the effect of remitting or extinguishing any penalty, loss of rights or responsibility incurred under such law, as to all persons who have not been convicted and sentenced under the provisions of such law prior to the enactment of the repealing law, is not and has not been the accepted doctrine in these Islands.

Where an Act of the Commission or of the Philippine Legislature which penalizes an offense, such repeal does not have the effect of thereafter depriving the courts of jurisdiction to try, convict and sentence offenders charged with violations of the old law prior to its repeal.

A question does arise, however, as to the penalty which should be impose upon the convict.

If the repealing statute provides or has the effect of providing new penalties for the commission of the acts penalized under the repealed statute, should the penalty be imposed in accordance with the old or the new statute?

Article 1 of the Penal Code in force in these Islands defines crimes and misdemeanors as voluntary acts or omissions penalized by law; and complementary to this provision, article 21 provides that no crime or misdemeanor shall be punished with a penalty which has not been prescribed by law prior to its commission. In accordance with these provisions the question whether an act is punishable or not depends upon the question whether or not at the time of its commission, there was a law in force which penalized it; this rule being modified, however, by article 22 of the same code, which provides that penal laws shall have a retroactive effect in so far as they favor persons convicted of a crime or misdemeanor.

The courts of Spain and the learned commentators on Spanish law have construed these provisions to mean that such penal laws are to be given a retroactive effect only in so far as they favor the defendant charged with a crime or a misdemeanor, and that, when a penal law is enacted repealing a prior law, such repeal does not have the effect of relieving an offender in whole or in part of penalties already incurred under the old law, unless the new law favors the defendant by diminishing the penalty or doing away with it altogether, and then only to the extent to which the new law is favorable to the offender. In other words, that the enactment of new penal laws, notwithstanding the fact that they contain general repealing clauses, doe not deprive the courts of jurisdiction to try, convict and sentence persons charged with violations of the old law prior to the date when the repealing law goes into effect, unless the new law wholly fails to penalties the acts which constituted the offense defined and penalized in the repealed law.

Thus Pacheco, commenting upon the new Penal Code of 1848-1850, of which article 506 provided that all general penal laws were repealed by its publication, says:

At this time when the Penal Code is being put into effect and given force, we have in fact two criminal laws in Spain, and close attention is necessary to apply them properly. There may be prosecutions which it is necessary to dismiss, as, for example, those for sodomy; others which it may be necessary to decide in conformity with the provisions of the new codes, as, for example, those for carrying concealed weapons; and others which must be judged in accordance with the old provisions, as, for example. many cases of robbery. The rules of procedure in one or other manner being furnished us by the former article (article 19 of the Penal Code of Spain identical with article 21 of the Penal Code of the Philippines), and the present article (article 20 of the Penal Code of Spain and article 22 of the Philippine Code). Has the code increased the penalty? Then it is not applicable to crimes committed prior to its enactment. Has it extinguished or diminished them? Then it is clearly applicable to them. (1 Pacheco, 296.)

And a similar construction was placed upon the provisions of the Penal Code of 1870 by the supreme court of Spain. Article 626 of this code (which is substantially identical with article 506 of the Penal Code of 1848 and article 611 of the Penal Code of the Philippine Islands) repealed all general penal laws prior to its promulgation, but the court held that, where a crime was committed prior to the publication of the reformed code, the penalty prescribed by the code of 1850 (the code prior to that of 1870) being more favorable to the accused, that must be applied. (Decision of the supreme court of Spain, 17th of January, 1873.)

We conclude therefore that in any case in which a statute prescribing a penalty for the commission of a specific offense is repealed, and in which the new statute provides new and distinct penalties for the commission of such offense, the penalty which must be imposed on one who committed the offense prior to the enactment of the repealing statute is that one which is more favorable to the convict. (U. S. vs. Cuna, 12 Phil. Rep., 241.)

It seems important, then, to determine whether the repeal of section 3 of Act No. 1697 by the enactment of the Administrative Code had the effect of providing new and distinct penalties for the commission of the crime of perjury, and whether the new penalties are or are not more favorable to the convict in the case at bar than those imposed by the trial judge.

Section 3 of Act No. 1697, which defined and penalized the crime of perjury, repealed the provisions of the Penal Code defining and penalizing the crime of perjury, not expressly, but by implication, and we are of opinion that the repeal of Act No. 1697 revived those provisions of the code. (U. S. vs. Concepcion, 13 Phil. Rep., 424; U. S. vs. Estraña, 16 Phil. Rep., 520.)

In the absence of the most express language to the contrary it will not be presumed that it was the intention of the legislator to let false swearing as to a material matter in a court of justice go unpunished, and such would be the effect of the repeal of section 3 of Act No. 1697, unless we held that the repeal had the effect of reviving the old statute.

At the common law the repeal of a repealing act revived the former act (6 Co., 199; 1 Gray, 163; 7 W. & S., 263; 2 Blackstone, 32; 54 N. J. L. J., 175); and the Supreme Court of the United States has held that the repeal of a repealing law has this effect, unless the language of the repealing statute or some general statute provides otherwise. (U. S. vs. Otis, 120 U. S., 52 [115].)

Manifestly, with this rule in mind, section 12 of the Administrative Code (Act No. 2657) which is found in Article III, [Chapter I] dealing with the form and effect of laws in general, provides that "when a law which expressly repeals a prior law is itself repealed the law first repealed shall not be thereby revived unless expressly so provided." From which it may fairly be inferred that the old rule continues in force where a law which repeals a prior law, not expressly but by implication, it itself repealed; and that in such cases the repeal of the repealing law revives the prior law, unless the language of the repealing statute provides otherwise.

Applying this rule, we conclude that the express repeal of section 3 of Act No. 1697 by the enactment of the Administrative Code (Act No. 2657) revived the provisions of the Penal Code touching perjury, which were themselves repealed, not expressly but by implication, by the enactment of Act No. 1697.

A comparison of the penalties prescribed in the Penal Code for the commission of the acts of which the accused in the case at bar was convicted, giving him as we should the benefit of the provisions of Act No. 2142, discloses that the penalty prescribed therein is less than that imposed upon the appellant under the provisions of section 3 of Act No. 1697, and we conclude from what has been said already that the penalty imposed by the court below should be revoked and that in lieu thereof the penalty prescribed in the Penal Code should be imposed upon the convict.

A question has been raised as to whether, admitting that the provisions of the Penal Code touching perjury have been revived, the accused can be convicted and penalized thereunder, it appearing that at the time when he testified falsely he was testifying in his own behalf in a criminal case in which he himself was the accused, on trial for the commission of a grave offense.

In the case of United States vs. Gutierrez (12 Phil. Rep., 529), we said, speaking through Chief Justice Arellano, that, "Perjury committed by a party in his own cause would not be punishable under Spanish legislation, because in said legislation no one was a witness in his own cause, and could not therefore become guilty of giving false testimony in a civil cause in which he was either the plaintiff or the defendant; but under the procedure in force by virtue of Act No. 190, a party to a suit may testify in his own behalf, and if he declares falsely under oath as a witness in his own cause, like any other witness, he incurs the penalty by which false testimony in civil matters is repressed and punished. This court has so held, it being a settled rule, that the false testimony given by a litigant as a witness constitutes the crime of giving false testimony inasmuch as such a declaration, according to the new laws in force, may determine a judgment in his favor and to the prejudice of the adverse party, and that a litigant who, in sworn testimony given by him as a witness in a civil cause, shall pervert the truth and give false testimony, incurs as such witness the penalties imposed by article 321 of the Penal Code."

Analogous reasoning leads to a like conclusion as to the criminal liability for perjury of a defendant in a criminal case testifying falsely in his own behalf. Under the provisions of General Orders No. 58 an accused person may, if he so desires, testify under oath in his own behalf, and in that event, "if he declares falsely as a witness in his own cause, like any other witness, he incurs the penalty by which false testimony" in criminal matters "is repressed and punished."

It has been suggested that such a ruling will have a tendency to expose accused persons to vexatious criminal prosecutions by prosecuting officers, who, having failed to secure a conviction on the original charge, may be disposed to institute criminal prosecutions for perjury from a vindictive unwillingness to let the defendant escape scot free from the meshes of the law. It is said also that the fear of subsequent prosecution for perjury will tend to embarrass accused persons in their efforts to defend themselves by testifying in their own behalf. But similar objections may be advanced against the prosecution of any of the witnesses called for the defense on charges of perjury, and it must not be forgotten that the right of an accused person to testify under oath in his own behalf is secured to him, not that he may be enabled to introduce false testimony into the record, but to enable him to spread upon the record the truth as to any matter within his knowledge which will tend to establish his innocence.

Of course much must be left to the good sense and sound judgment of the prosecuting officer in determining whether a prosecution for perjury should be instituted against an accused person whose testimony in his own behalf would seem to be perjured.

Due regard for the situation in which an accused person finds himself when testifying in his own behalf in a criminal proceeding will restrain a prudent prosecuting officer from the filing of charges of perjury in every case in which he may have reason to believe that the accused has not adhered strictly to the truth, in his anxiety to shield himself from punishment. But when, as in the case at bar, an accused person voluntarily goes upon the witness stand and falsely imputes some other person the commission of a grave offense, it would seem to be highly proper that he should be called to account in a criminal action for perjury upon the complaint of the person against whom such false charges are made.

Article 319 of the Penal Code is as follows:

Any person who shall give false testimony in favor of a defendant in a criminal case shall suffer a penalty ranging from arresto mayor in its maximum degree to prision correccional in its medium degree and a fine of not less than three hundred and seventy-five and not more than three thousand seven hundred and fifty pesetas, if the case were for a felony, and the penalty of arresto mayor if it were for a misdemeanor.

We conclude that the judgment of conviction entered in the court below should be affirmed but that the sentence imposed therein should be reversed, and that giving the accused the benefit of the provisions of Act No. 2142, a penalty of 4 months and 1 day of arresto mayor and a fine of P75 with subsidiary imprisonment as prescribed by law should be imposed upon him in lieu of that imposed by the trial judge, with the costs of this instance de officio. So ordered.

Torres, Johnson and Araullo, JJ., concur.


Separate Opinions

MORELAND, J., dissenting:

I agree that the provisions of the Penal Code relative to false swearing were revived by the repeal of Act No. 1697 by the Administrative Code.

I cannot believe, however, that the Penal Code intended to include a defendant in a criminal action among those who are to be punished for false swearing.

The defendant in the case at bar is charged with having sworn falsely when testifying in his own behalf while on trial charged with estafa, in that, on that trial, he testified that a certain written confession of his guilt alleged to have been made by him and put in evidence against him was false in its statement of the facts and had been obtained from him by threats, intimidation and violence.

On the trial for estafa the court accepted as a true enough of the testimony of the accused as to the manner in which the confession had been obtained to raise in his mind a reasonable doubt as to the voluntary character of the confession; and, there not being other evidence sufficient to sustain a conviction, the accused was acquitted.

I cannot bring myself to believe, as I have already stated, that the provisions of the Penal Code defining false swearing include the false testimony of a defendant in a criminal action given in his own behalf.

In the first place, the wording of the law does not include him. Article 319 provides:

Any person who shall give false testimony in favor of a defendant in a criminal case shall suffer a penalty ranging from arresto mayor in its maximum degree to prision correccional in its medium degree and a fine of not less than three hundred and seventy-five and not more than three thousand seven hundred and fifty pesetas, if the case were for a felony, and the penalty of arresto mayor if it were for a misdemeanor.

The language itself plainly shows that the "person who shall give false testimony" is not the defendant in the action but a different person a witness and not a party, an outsider and not one whose life or liberty depends on the result of the action.

In the second place, the defendant in a criminal action could not be a witness when the Penal Code was adopted and, accordingly, the framers of the Penal Code could not have contemplated him as the "person who shall give false testimony." (U. S. vs. Gutierrez, 12 Phil. Rep., 529.)

Thirdly, there is a reason given by Viada why the Spanish law did not punish a party for false swearing even in those proceedings in which false swearing was punishable and in which he was allowed to testify. In volume 2 of his commentaries on the Penal Code, at page 465 and 466, he puts this question "Will a party who testifies falsely in his answers to interrogatories prepared in a civil case be guilty of false swearing?" And answers it as follows:

It is worth while to consider this question here was we have recently seen a judge in this city order prepared a copy of the testimony given by a defendant in answer to interrogatories prepared in a civil suit as a basis for a criminal action against him because the judge believed that he had testified falsely in answering said interrogatories. A party who testifies falsely in reply to interrogatories cannot be prosecuted for false swearing for the simple reason that he is not a witness, for, as the Digest says, nullus indoneus testis in re sua intelligitur; and, besides, if the legislator had wished to punish the perjury of a party he would have done so by including in the Penal Code a special provision to that effect, as was done in the French Penal Code by art. 366. The Spanish law took into consideration the frailty of human nature; it believed that a false oath given by a party was sufficiently punished by his conscience, especially in view of the fact that, as a learned author has said, for a man to testify against himself for mere love of or respect for the truth is certainly heroic, and by reason of the very fact that it is heroic no one should be condemned criminally for not doing it.

If it is true that it was not the intention of the framers of the Penal Code to make a defendant in a criminal action who should testify falsely in his own behalf guilty of perjury, the mere fact of making him a competent witness in the case is not sufficient to include him within the provisions relating to false swearing, when, but for the fact of being a competent witness, he would not be included. If there is any doubt that a given class of person is included in a penal provision it should be excluded.

For the reason stated, I have grave doubts of the intention of the Spanish lawmakers to include a defendant in a criminal action as one of the "witnesses" who could commit the crime of false swearing; and it is the Spanish law of crimes we are applying and not the American law of the competency of witnesses. The intention of the law being to exclude a party from its operation, that intention cannot logically be held to have been changed by giving the party an additional attribute. Although he may be made a witness he still remains a party; and Viada says that the Spanish law never intended to hold a defendant who testified falsely to save his neck from the gallows to the same responsibility as a mere witness who has absolutely nothing to lose by his testimony.

Groizard makes a suggestion which approaches the question in hand very closely and shows the trend of judicial as well as legislative thought on the subject under discussion. Speaking of the person who, under the Penal Code, may be punished for false swearing, he says "There is one exception which we could have wished our code to make in connection with the matter we are discussing, and that is that its provisions shall not apply to those witnesses whose honor would be sullied by the truth or who, if they testified truthfully, would be exposed to the risk of a criminal prosecution. Nor should he be held to answer to a charge of false swearing who testifies falsely to save his parents, his brothers or sisters, or his relations within the fourth degree. The law should not so far forget the power and influence of personal interest and family ties as to require as a legal duty something which not all regard even as a moral duty. Blood has its law. . . ."

Spanish law and Spanish legal thought are against the position of the court in this case. American law does not expressly, or even clearly, undertake to change it. Making a person a witness does not deprive him of his character as a party; and it is precisely in his character as a party that the Spanish law protects him.

The case of United States vs. Gutierrez, already cited, is not conclusive of the case before us. There the false testimony was given in a civil action. Here it was given in a criminal action.

There is strong doubt in my mind also with respect to the correct resolution of another question presented in this case which has been decided by this court adversely to the defendant. As I have already stated, the defendant in this case is on trial for perjury for having testified falsely in a criminal action in which he was a defendant charged with the crime of estafa. The testimony which he gave and which is alleged in the present action to have been false related, as already stated, to the voluntary and spontaneous character of a written confession which he is alleged to have made with regard to the commission of the crime with which he was charged. He contended, as a witness for himself on his trial for estafa, that the confession was false in its statement of facts and had been obtained from him by threats, intimidation and violence. He was acquitted in that case upon the ground that his testimony in that regard was true, or was of such a character as to produce in the mind of the court doubt sufficient to require an acquittal. The judge who presided at the trial of the accused for estafa presided also at the trial of the accused for perjury. In his opinion acquitting the defendant of the charge of estafa the court said, speaking of the alleged confession and of the testimony relating to it given in that case:

This is not a new occurrence in this court. It is frequently resorted to in important cases, where confessions have been secured by the secret service. We are fully convinced that every precaution is taken by the chief of the Secret Service Bureau with a view to avoiding the maltreatment of persons who have been apprehended by that Bureau, and who are under suspicion of crime, and in the majority of cases we pay no heed to the testimony of criminals who have come to look upon this allegation of maltreatment as a stock defense. But in this case there were some circumstances in connection with the testimony of the defendants which raised a grave doubt at least as to the voluntary character and spontaneity of these confessions, and in view therefore, of this grave doubt, and of the unsatisfactory character of the evidence generally, the defendants are acquitted and the costs are taxed de officio.

In the present case the same judge says with regard to the same matter:

In the case in which the defendant was charged with estafa and in which he is accused of having testified falsely, the case turned largely upon the truth of the confessions of the defendant and his codefendants, which were alleged to have been made while they were under detention in secret service headquarters. If it were true that such confessions were extracted under threats and torture, it is unnecessary to state that it would be a very serious matter. Indeed the court considered it so serious at the time the accused in question was tried with his codefendants, that it preferred to enter an acquittal rather than to risk a conviction on confessions which appear to be tainted with this suspicion."

I am inclined to believe that the finding of the trial court in the case of estafa with regard to the testimony of the defendant in relation to the confession is a bar to a subsequent trial of the same defendant for perjury for giving the testimony to which the finding of the court relates. In the case of Cooper vs. Commonwealth (106 Ky., 909) it appeared that the appellant in that case and one Libbie Purvis were jointly indicted in the Rowan Circuit Court for the offense of adultery. The trial under that indictment resulted in a verdict of acquittal for appellant. The grand jury of Rowan County thereupon reported an indictment against him in which it was charged that, upon the trial of appellant and Libbie Purvis upon the charge of adultery, "he did knowingly, willfully, and corruptly swear that he had not had carnal sexual intercourse with Libbie Purvis, when same was false and untrue, and was known by him to be false and untrue." The trial under this indictment resulted in a verdict of guilty, and judgment sentencing appellant to confinement in the penitentiary was entered and the case came to the Supreme Court of the State of Kentucky upon an appeal from that judgment. In its opinion for a reversal the court said:

The principal question to be considered is the effect which is to be given to the indictment, trial, verdict and judgment of acquittal of appellant under the indictment for adultery, as it is manifest that appellant can not be guilty in this case if he was innocent of the charge contained in the indictment.

His guilt or innocence of the offense of having had carnal sexual intercourse with Libbie Purvis was the exact question which was tried in the first proceeding, and as a result of that trial the defendant was found not guilty. In order to convict him in this case, it was necessary for the jury to believe that he was guilty of the identical offense for which he had been tried and acquitted under the other indictment, as it is evident that, if he was innocent of having had carnal sexual intercourse with Libbie Parvis, he was not guilty of false swearing when he stated that he had not had such intercourse with her. We therefore have, as a result of the trial of appellant under these two indictments, a verdict and judgment finding him not guilty of the offense of having had carnal sexual intercourse with Libbie Purvis, and in the second case a verdict and judgment finding him guilty of false swearing when he testified that he had not had such intercourse with her; in other words, the first jury found him innocent of the misdemeanor with which he was charged, and the second jury found him guilty of the felony because he testified that he was not guilty of such misdemeanor. It certainly was never intended that the enginery of the law should be used to accomplish such inconsistent results. It appears to us from the conflicting character of the testimony in the case upon the question of defendant's guilt or innocence that a verdict of the jury might have been upheld in the first case whether it found one way or the other, but certainly the finding of the jury must be conclusive of the fact considered as against the Commonwealth, and preclude any further prosecution which involves the ascertainment of such fact.

xxx           xxx           xxx

Appellant in this case had already been tried and acquitted of the offense of having had carnal sexual intercourse with Libbie Purvis, and the judgment in that case is res judicata against the Commonwealth, and he can not again be put on trial where the truth or falsity of the charge in that indictment is the gist of the question under investigation. It therefore follows that appellant was entitled to a peremptory instruction to the jury to find him not guilty.

In the case of United States vs. Butler (38 Fed. Rep., 498) a defendant, who had been acquitted upon an indictment for selling liquors without payment of the special tax required by law, was subsequently put upon trial for perjury for having sworn upon his preliminary examination before a commissioner that he did not sell. It was held that his acquittal for selling liquor was a conclusive adjudication in his favor upon the subsequent trial for perjury, and that the Government could not show that his oath was false. In that case the court said:

But I am clearly of the opinion that upon the trial of this case the defendant would be entitled to show that he had been acquitted of the offense concerning which he is charged to have committed perjury, and that such acquittal would be conclusive. Whenever the same fact has been put in issue between the same parties, the verdict of the jury upon such issue is a complete estoppel. This case contains all the elements of a plea of res judicata; the parties as the same; the point issue, viz, whether he did in fact sell liquor, is the same, and the quantum of proof requisite in both cases is also the same. Had he sworn before the commissioner that he had paid his tax and had been acquitted by the jury upon the ground that he did not sell liquor, the issue would have been different, and perhaps such difference might have been shown by parol, but in this case the two issues were identically the same.

In Commonwealth vs. Ellis (160 Mass., 165), it was held that the record of the conviction and sentence of a father upon a complaint, under the statute of 1885, c. 176, for unreasonably neglecting to support his minor child, was conclusive evidence that the paternity of the child was determined, and the father was estopped to set up the illegitimacy of the child as a defense to a subsequent complaint under the same statute for a similar offense. In arriving at this conclusion the court said:

The question of the paternity of the child was necessarily involved in the prior conviction of the defendant. That fact having been determined, it cannot again be litigated between the same parties unless a different rule applies to criminal proceedings from that which obtains in civil proceedings. See Sly vs. Hunt, 159 Mass., 15, and cases cited. It is well settled that the rule is the same in both classes of cases. Thus, in Commonwealth vs. Evans, 101 Mass., 25, it was held, on the trial of an indictment for manslaughter, that the record of a conviction of the defendant for the assault which caused the death was conclusive evidence that the assault was unjustifiable. So in Commonwealth vs. Feldman, 131 Mass., 588, where the defendant was indicted for an assault upon a public officer, committed while the defendant was under arrest for drunkenness; it was held that a record of his conviction and sentence for drunkenness at the time of his arrest was conclusive evidence of that fact.

In the case of Coffey vs. United States (116 U. S. 436) the principal question presented for determination was stated by the court as follows:

The principal question is as to the effect of the indictment, trial, verdict and judgment of acquittal set up in the fourth paragraph of the answer. The information is founded on sections 3257, 3450, and 3453; and there is no question, on the averments in the answer, that the fraudulent acts and attempts and intents to defraud, alleged in the prior criminal information and covered by the verdict and judgment of acquittal, embraced all of the acts, attempts and intents averred in the information in this suit.

The question, therefore, is distinctly presented, whether such judgment of acquittal is a bar to this suit. We are of opinion that it is.

It is true that section 3257, after denouncing the single act of a distiller defrauding or attempting to defraud the United States of the tax on the spirits distilled by him, declares the consequences of the commission of the act to be: (1) That certain specific property shall be forfeited, and (2) that the offender shall be fined and imprisoned. It is also true that the proceeding to enforce the forfeiture against the res named must be a proceeding in rem and a civil action; while that to enforce the fine and imprisonment must be a criminal proceeding, as was held by this court in The Palmyra (12 Wheat., 1, 14 [25 U. S., bk. 6, L. ed. 531, 535]). Yet, where an issue raised as to the existence of the act or fact denounced has been tried in a criminal proceeding, instituted by the United States, and a judgment of acquittal has been rendered in favor of a particular person, that judgment is conclusive in favor of such person, on the subsequent trial of a suit in rem by the United States, where, as against him, the existence of the same act or fact is the matter in issue, as a cause for the forfeiture of the property prosecuted in such suit in rem. It is urged as a reason for not allowing such effect to the judgment, that the acquittal in the criminal case may have taken place because of the rule requiring guilt to be proved beyond a reasonable doubt; and that, on the same evidence, on the question of preponderance of proof, there might be a verdict for the United States, in the suit in rem. Nevertheless, the fact or act has been put in issue and determined against the United States; and all that is imposed by the statute, as a consequence of guilt, is a punishment therefor. There could be no new trial of the criminal prosecution after the acquittal in it; and a subsequent trial of the civil suit amounts substantially to the same thing, with a difference only in the consequences following a judgment adverse to the claimant.

When an acquittal in a criminal prosecution in behalf of the Government is pleaded or offered in evidence, by the same defendant, in an action against him by an individual, the rule does not apply, for the reason that the parties are not the same; and often for the additional reason that a certain intent must be proved to support the indictment, which need not be proved to support the civil action. But upon this record, as we have already seen, the parties and the matter in issue are the same.

Whether a conviction on an indictment under section 3257 could be availed of as conclusive evidence, in law, for a condemnation, in a subsequent suit in rem under that section, and whether a judgment of forfeiture in a suit in rem under it would be conclusive evidence, in law, for a conviction on a subsequent indictment under it, are questions not now presented.

The conclusion we have reached is in consonance with the principles laid down by this court in Gelston vs. Hoyt (3 Wheat., 246 [16 U. S., bk. 4, L. ed., 381]). In that case Hoyt sued Gelston the collector, and Schenck the surveyor, of the Port of New York, in trespass, for taking and carrying away a vessel. The defendants pleaded that they had seized the vessel, by authority of the President, as forfeited for a violation of the statute against fitting out a vessel to commit hostilities against a friendly foreign power, and that she had been so fitted out and was forfeited. At the trial it was shown that after seizure, the vessel was proceeded against by the United States, by libel, in the United States District Court, for the alleged offense, and Hoyt had claimed her and she was acquitted and ordered to be restored, and a certificate of reasonable cause of seizure was denied. The defendants offered to prove facts showing the forfeiture. The trial court excluded the evidence. In this court, the question was presented whether the sentence of the district court was or was not conclusive on the defendants, on the question of forfeiture. This court held that the sentence of acquittal, with a denial of a certificate of reasonable cause of seizure, was conclusive evidence that no forfeiture was incurred, and that the seizure was tortious; and that these questions could not again be litigated in any forum.

This doctrine is peculiarly applicable to a case like the present, where, in both proceedings, criminal and civil, the United States is the party on one side and this claimant the party on the other. The judgment of acquittal in the criminal proceeding ascertained that the facts which were the basis of that proceeding, and are the basis of this one, and which are made by the statute the foundation of any punishment, personal or pecuniary, did not exist. This was ascertained once for all, between the United States and the claimant, in the criminal proceeding, so that the facts can not again be litigated between them, as the basis of any statutory punishment denounced as a consequence of the existence of the facts. This is a necessary result of the rules laid down in the unanimous opinion of the judges in the case of Rex vs. Duchess of Kingston (20 Howell, St. Tr., 355, 538), and which were formulated thus: the judgment of a court of concurrent jurisdiction, directly upon the point, is as a plea a bar, or as evidence conclusive, between the same parties, upon the same matter directly in question in another court; and the judgment of a court of exclusive jurisdiction, directly upon the point, is, in like manner, conclusive upon the same matter, between the same parties, coming incidentally in question in another court for a different purpose. In the present case, the court is the same court and had jurisdiction; and the judgment was directly on the point now involved and between the same parties.

In a case before Mr. Justice Miller and Judge Dillon (U. S. vs. McKee, 4 Dill., 128), the defendant had been convicted and punished under a section of the Revised Statutes, for conspiring with certain distillers to defraud the United States, by unlawfully removing distilled spirits without payment of the taxes thereon. He was afterwards sued in a civil action by the United States, under another section, to recover a penalty of double the amount of the taxes lost by the conspiracy and fraud. The two alleged transactions were but one; and it was held that the suit for the penalty was barred by the judgment in the criminal case. The decision was put on the ground that the defendant could not be twice punished for the same crime, and that the former conviction and judgment were a bar to the suit for the penalty.

I am rather inclined to believe that these decisions cover the case at bar. It is true that the fact determined by the court on the trial for estafa was not a fact necessary to be alleged in the information charging the crime as an essential element thereof; and that consequently it was not one of the facts necessary to be established in order to convict. Reasoning from these facts it might be claimed that, whether the confession offered in evidence in the estafa case was voluntary or was obtained by threat, intimidation and violence, was not the fact in issue on that trial, and that, therefore, the judgment in the estafa case determining that question was not a bar to the presentation of the same question in the present action for perjury. I am of the opinion, however, that the principles enunciated in the cases cited, and especially the Coffey case, are sufficiently broad to cover the case at bar. It is well settled that a right, question or fact definitely put in issue and directly determined by a court of competent jurisdiction, as a ground of recovery, cannot be discussed in a subsequent suit between the same parties or their privies; and that even if the second suit is for a different cause of action, the right, question, or fact once so determined must, as between the same parties or their privies, be taken as conclusively established, so long as the judgment in the first suit remains unmodified. This is substantially the rule stated in the case of Southern Pacific Railroad vs. United States (168 U. S., 1).

It is clear from the decision of the trial court in the estafa case that the question most strongly fought by the parties in that action was whether or not the confession was voluntary or had been obtained by threats, intimidation and violence. The evidence which the Government was able to produce was, apart from the confession, insufficient to convict; and, as a necessary consequence, whether or not the defendant was convicted in that case depended, in the main, upon the character of the confession. In all respects an issue was joined by the parties with reference thereto (Lizarraga Hermanos vs. Yap Tico, 24 Phil. Rep., 504). It was accepted by both parties and a large part of the evidence in the estafa case, so far as we can judge from the opinion of the trial court in that case, related to that issue. The question of fact involved was decided adversely to the Government and, as we have seen from the opinion of the trial court in that and the present case, the acquittal was based wholly upon the defeat of the Government on that issue.

It would seem to me, therefore, that the character of the confession was as thoroughly litigated and decided by the trial court as if it had been a fact necessary to have been alleged in the information to describe the crime sought to be charged. If that is so then the Government in the present case cannot be allowed to put that question again in issue and can not be heard to charge that the testimony given by the defendant in relation thereto was false.

For these reason I am of the opinion that the conviction can not stand and that the accused should be acquitted.


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