GR 1113; (April, 1903)

G.R. No. 1113 : April 15, 1903

THE UNITED STATES, complainant-appellee,

vs.
PEDRO ABUAN, ET AL., defendants-appellants.

E. H. White, for appellants.
Solicitor-General Araneta, for appellee.

WILLARD, J.:

1. Of the fourteen assignments of error made by the counsel for the defendants, the first four relate to the complaint. Though it said that the complaint is unintelligible and ambiguous, the defendant’s counsel nowhere states in what respect it is ambiguous. We see no such defects and hold the complaint sufficient.

2. That the complaint is not drawn in conformity with section 90 of the Code of Civil Procedure is not important. That section refers only to civil actions.

3. That Severina Lomboy, an eyewitness of the robbery, did not testify is no ground for a new trial. General Orders, No. 58, section 15, gives to the defendants compulsory process for obtaining witnesses. If they wished the testimony of this witness, they should have called her themselves. It does not appear why this witness was not called. She may have been dead or absent. In order that the presumption mentioned in section 334, paragraph 5, of the Code of Civil Procedure may be operative, it must appear that the testimony was willfully suppressed. That does not appear in this case.

4. Assignments of error 7, 10, and 11 relate to the sufficiency of the evidence and the credibility of the witnesses. We are of the opinion that the evidence is sufficient to support the conviction.

5. We have frequently said that the proceedings before the justice of the peace in the preliminary hearing are not a part of the record of the trial in the Court of First Instance simply because they are found among the papers sent to this court. If the defendants claimed that the witnesses testified differently in the Court of First Instance from what they did before the justice of the peace, they should have proved in the Court of First Instance what was the testimony of the witnesses before the justice. So, if it is claimed that any proceedings before the justice were irregular, proof of this irregularity should have been made before the Court of First Instance, so as to have properly incorporated in the record of the case in that court the proceedings before the justice. Nothing of this kind was done in this case. This disposes of the assignments of error 8, 9, 12 and 13.

The judgment of the court below imposed a fine of 25 pesos upon the defendants. As the law does not authorize a fine in this class of crimes, we assume that it was intended as indemnity to the party injured and we so make it. With this modification the judgment below is affirmed with costs of this instance against the defendants.

Arellano, C.J., Cooper, Mapa and Ladd, JJ., concur.
Torres and McDonough, JJ., did not sit in this case.

Batas Pinas