GR L 12599; (August, 1917)

EN BANC

G.R. No. L-12599; August 29, 1917

THE UNITED STATES, plaintiff-appellee,

vs.
LUIS ALVIAR, defendant-appellant.

Juan Salcedo for appellant.
Acting Attorney-General Paredes for appellee.

JOHNSON, J.:

This defendant was accused of a violation of articles 30 and 33 of Act No. 1147. A complaint was presented against him in the court of the justice of the peace of the municipality of Makati, Province of Rizal, on the 29th day of January, 1916. Having renounced his right to a preliminary examination, he was ordered to be held for trial in the Court of First Instance.

On the 12th day of May, 1916, the prosecuting attorney for said province presented the following complaint:

The undersigned, fiscal of the Province of Rizal, P. I., accuses Luis Alviar, the above-named defendant, of a violation of Act No. 1147, committed as follows:

That the said Luis Alviar, defendant did, on the 9th day of December, 1915, in the municipality of Makati, in the Province of Rizal, P. I., willfully and illegally kill and cause to be killed for public consumption a white Australian horse, without duly obtaining a license therefor from the municipal treasurer. Acts committed contrary to the law.

Upon said complaint the defendant was duly arrested, arraigned, tried, found guilty of the crime charged, therein, and sentenced to pay a fine of P25 and the costs. From that sentence he appealed to this Court.

The appellant alleges as his first assignment of error that the lower court erred in not granting his motion to dismiss the action at the close of the proof of the prosecution. Said motion was based upon the ground that there was no proof adduced by the prosecution sufficient to show that he was guilty of the crime charged. The proof at the time the motion was made stood undisputed and showed that the defendant did, on or about the 9th day of December, 1915, kill a white Australian horse, and did sell the meat thereof for human consumption, without first obtaining a license therefor. In view of that proof no error was committed by the lower court in denying said motion.

The defendant alleges that the lower court committed an error in admitting the declaration of Teofilo de la Cruz in rebuttal. With reference to said assignment it may be said that the prosecution must, of course, present sufficient proof before it closes its case to show beyond a reasonable doubt that the defendant is guilty. It should not be permitted to introduce a part of its proof and then, after the defendant has introduced his, to take the defendant by surprise by introducing further proof. Yet, nevertheless, if the defendant, in presenting his defense, should present some proof which, upon its face, tended to contradict the proof presented by the prosecution, then in that case the prosecution should be permitted to rebut such proof; and the court commits no error in permitting the prosecution to rebut evidence of that kind. It seems to be a well-settled rule that the order in which witnesses shall be called is a matter largely within the discretion of the court. The orderly course of proceedings requires, however, that the prosecution shall go forward and should present all of its proof in the first instance; but it is competent for the judge, according to the nature of the case, to allow a party who has closed his case to introduce further evidence in rebuttal. This rule, however, depends upon the particular circumstances of each particular case, and falls within the sound discretion of the judge, to be exercised or not as he may think proper. (Cushing vs. Billings, 2 Cushing [Mass.], 158; Clinton vs. McKenzie, 5 Strobh. 36; Hathaway vs. Hemingway, 20 Conn., 191.)

The rebuttal proof presented through the witness Teofilo de la Cruz shows clearly that it was presented for the purpose of refuting the testimony of some of the witness presented by the defense. No error was committed in permitting the said witness to declare in rebuttal.

With reference to the third assessment of error the proof is clear, positive and direct that the defendant did upon the 9th day of December, 1915, kill a white Australian horse, and did sell the meat thereof for human consumption without a license so to do, in violation of the provisions above noted of Act No. 1147.

The appellant further alleges that the lower court committed an error in sentencing him to pay a fine of P25 and the costs. In view of the fact that the court had before it as the time said sentence was imposed two other complaints accusing the defendant of a violation of the same law, in which the defendant has been found guilty, and in view of the fact that the penalty imposed by the law is a fine of not less than ten nor more than five hundred pesos, or imprisonment for not less than one month nor more than six months, or for both such fine and imprisonment, we are not inclined to believe that the punishment is excessive. We see no reason, therefore, for modifying the sentence imposed by the lower court.

For all of the foregoing, we see no reason whatever for changing or modifying the sentence of the lower court. The same is, therefore, hereby affirmed, with costs. So ordered.

Arellano, C.J., Carson, Araullo, Street and Malcolm, JJ., concur.

Footnotes

¹ See also decision in cases R. G. Nos. 12600 and 12601 (not reported).

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