GR L 12822; (February, 1918)

EN BANC

G.R. No. L-12822; February 11, 1918

THE UNITED STATES, plaintiff-appellee,

vs.
PONCIANO REMIGIO, ET AL., defendants.
ANSELMO ABELA, appellant.

Southworth and Goyena for appellant.
Acting Attorney-General Paredes for appellee.

MALCOLM, J.:

This appeal involves the determination of the question of whether or not the defendant Anselmo Abela conspired with Ponciano Remigio, Feliciano Limjuco, and Ramon Kamatoy to defraud the Shanghai Life Insurance Company (Ltd.), through its local agents “Hijos de J. S. Tuason” in the amount of P4,832, by means of falsification of documents. For a proper understanding, it is necessary to quote the information and a portion of the decision of the trial court, and to set out rather fully the incidents of the case.

The action was begun on the 13th day of January, 1916, by information charging Ponciano Remigio, Feliciano Limjuco, Anselmo Abela, and Ramon Kamatoy with the crime of estafa by means of falsification of documents committed as follows:

That on or about and between the dates the 4th day of March, 1911, and the 15th day of September, 1911, in the city of Manila, Philippine Islands, the above-mentioned Ponciano Remigio, Feliciano Limjuco, Anselmo Abela, and Ramon Kamatoy, conspiring and confederating among themselves and mutually helping each other, voluntarily, illegally and criminally defraud and swindled (estafaron) the Shanghai Life Insurance Company (Ltd.), of Shanghai China, which is a foreign corporation, duly organized to do business in the Philippine Islands by means of their agents and legal representatives in this country, the ‘Hijos de J. S. Tuason,’ a juridical entity also constituted in accordance with the existing laws in these Islands, the accused Ponciano Remigio by availing himself of his position as agent of the said foreign corporation, and the said Anselmo Abela and Ramon Kamatoy, of their medical profession, a fraud and estafa which the said accused committed as follows: The above-mentioned Ponciano Remigio, Feliciano Limjuco, Anselmo Abela, and Ramon Kamatoy falsified the documents which are hereinbelow specified, by causing in them to appear the participation of certain persons who did not in fact participate and by making untruthful statements in the narration of facts therein, in the following manner:

(a) An application No. 1042 to the Shanghai Life Insurance Company (Ltd.) to secure policy No. 14842 in the sum of P5,000, Philippine currency, in favor of one by the name of Maria de Lima, residing in the municipality of Santa Cruz, Province of Laguna, in which it is stated that the same has been presented and signed by the said Maria de Lima, and that she was a property owner, and aunt of the accused Feliciano Limjuco; all of which, as the said accused well knew, was false; (b) A medical certificate signed by the accused Anselmo Abela, also for the purpose of securing said policy No. 14842, in which it is stated that Maria de Lima was a property owner, a widow of 45 years of age, that she was measured, weighed, and examined physically by said Anselmo Abela, that she was strong and enjoying good health and could live 20 years longer; all of which, as all of the accused well knew, was false; (c) A statement signed by the accused Feliciano Limjuco as beneficiary of the policy No. 14842 on the life of the said Maria de Lima, for the collection of the sum of P5,000, Philippine currency, the amount of the said policy, in which it is averred that the said Maria de Lima was a property owner and had died of typhoid fever in the municipality of Santa Cruz, Province of Laguna, on August 26, 1911; all of which, as all of the said accused well knew, was false; (d) A statement signed by the accused Ponciano Remigio as surety for the collection of policy No. 14842 and witnessed by the accused Feliciano Limjuco, in which it is averred that the claim of the beneficiary, Feliciano Limjuco, for the sum of P5,000, the amount of the policy of the said Maria de Lima, was true in all its part; when as a matter of fact, as all of said accused well knew, the statements, made in said claim presented by the said beneficiary Feliciano Limjuco were all false; (e) A medical certificate signed by the accused Ramon Kamatoy for the purpose of securing the payment of the amount of the policy, P5,000, in which it is stated that the said Maria de Lima was a property owner, of 45 years of age, and had died in the municipality of Santa Cruz, Province of Laguna, on the 26th of August, 1911, from typhoid fever; (f) A death certificate of Maria de Lima issued and signed by the accused Ramon Kamatoy, in which it is stated that the said Maria de Lima was 45 years of age, widow, and that she had died on the 26th of August, 1911, from typhoid fever; all of which, as all of said accused well knew, was false, all of which documents have been used by the said accused as means to commit the fraud and estafa, as they in fact committed the said fraud and estafa on the said Shanghai Life Insurance Company (Ltd.), by including the latter, through its general agents the “Hijos de J. S. Tuason,” that it insure as in fact it did insure, by virtue of the false and fraudulent representation made in the documents marked (a) and (b), the life of the said Maria de Lima in the sum of P5,000, Philippine currency; and, further, by making use of the false and fraudulent representations appearing in the documents marked (c), (d), (e), and (f), the said accused induced the said Shanghai Life Insurance Company (Ltd.), through its general agents the “Hijos de J. S. Tuason,” to believe, as in fact it did believe, that the said Maria de Lima, whose life had been insured in the sum of P5,000, Philippine currency, under policy No. 14842, had died on the 26th day of August, 1911, from typhoid fever, when as a matter of fact, as the said accused well knew, the said Maria de Lima was living on the said date of August 26, 1911, and in this manner obtained and collected from the said foreign corporation, the Shanghai Life Insurance Company (Ltd.), through its agents and representatives in Manila, the ‘Hijos de J. S. Tuason,’ the sum of P4,832, Philippine currency, the amount of the policy No. 14842 on the life of the said Maria de Lima, after deducting therefrom the corresponding premium, which amount, the said accused Ponciano Remigio, Feliciano Limjuco, Anselmo Abela, and Ramon Kamatoy appropriated to themselves, and to their own benefit, and to the damage of the said Shanghai Life Insurance Company (Ltd.), of Shanghai China, in the said sum of P4,832, Philippine currency, equivalent to 24,160 pesetas.

Separate trials were granted. The defendant Ponciano Remigio was first tried, was found guilty by the Honorable George R. Harvey, judge of first instance, and was sentenced to ten years and one day of presidio mayor with the accessory penalties provided by law, to pay a fine of two thousand pesos, to indemnify the Shanghai Life Insurance Company (Ltd.) in the amount of P5,000, and to pay one fourth of the costs. At the trial of Remigio the information was dismissed as against Feliciano Limjuco in order that he might be used as a witness for the prosecution. The trial of the defendant, Anselmo Abela, appellant herein, took place the same judge with the result that Abela was found guilty and received a sentence identical with that of Remigio. The remaining defendant, Ramon Kamatoy, was tried before the Honorable M. Vivencio del Rosario, judge of first instance, and was acquitted. The present appeal is by Anselmo Abela. By stipulation the evidence includes the testimony and exhibits which were offered and received upon trial of the defendant Ponciano Remigio and some additional evidence.

Defendant and appellant makes three assignments of error, as follows:

(1) The lower court erred in convicting and sentencing the defendant and appellant, Anselmo Abela, for the crime of estafa by means of the falsification of a public document (Exhibit D), upon the unreliable, unworthy, and corrupt testimony of the coconspirator and codefendant, Feliciano Limjuco.

(2) The lower court erred in convicting and sentencing the defendant and appellant, Anselmo Abela, for the crime of estafa by means of the falsification of a public document (Exhibit D), alleged in the information to have been prepared, executed, and written by his codefendant and coconspirator, Dr. Ramon Kamatoy, for the reason that the said Dr. Ramon Kamatoy has been found ‘not guilty’ and acquitted by said lower court of the crime charged to have been committed by the said Dr. Ramon Kamatoy in conspiracy with the defendant and appellant, Anselmo Abela, there being no showing nor pretense that anyone else falsified it.

(3) The judgment of the lower court convicting and sentencing the defendant and appellant, Anselmo Abela, for the crime of estafa by means of the falsification of a public document (Exhibit D), is legally null and void for the reason that by the acquittal, on the merits, of the codefendants and alleged coconspirator, Dr. Ramon Kamatoy, there is not now, in law, any competent evidence upon which the defendant and appellant, Anselmo Abela, can be convicted, all of the evidence adduced by the witnesses for the prosecution as to what Dr. Ramon Kamatoy said, did or omitted to do, he having been found not to be a coconspirator by reason of his acquittal, is absolutely incompetent against his codefendant, Dr. Anselmo Abela, and must be stricken off the record and disregarded.

Appellant also moves in this court for a new trial on the ground that the acquittal of the defendant Kamatoy acts to acquit defendant Abela. The motion for a new trial can be resolved with the assignment of error.

In reality, we have before us a question of fact ? the sufficiency of the evidence, and a question of law ? conspiracy.

I. SUFFICIENCY OF THE EVIDENCE.

Because of what will hereafter appear, and because, clearly stated, we turn to the decision of the trial judge. After carefully considering the testimony of each witness and the effect of each exhibit, the trial court finds the following facts proved a reasonable doubt:

(1) That during all the times mentioned in the information the Shanghai Life Insurance Company (Ltd.), of Shanghai, China was a foreign corporation duly authorized to transact business in the Philippine Islands (Exhibit A).

(2) That during all the times mentioned in the information the firm known as “Hijos de J. S. Tuason” was the general agent in the Philippine Islands of the Shanghai Life Insurance Company (Ltd.), of Shanghai, China.

(3) That during all the times mentioned in the information, the accused Ponciano Remigio was an agent of the said Shanghai Life Insurance Company (Ltd.), of Shanghai, China, employed by said “Hijos de J. S. Tuason,” general agent for the Philippine Islands.

(4) That during all the times mentioned in the information, the defendant Anselmo Abela was a medical examiner for the Shanghai Life Insurance Company (Ltd.), and made examinations of applicants for insurance in Laguna Province at the request of the accused Ponciano Remigio as agent as aforesaid.

(5) That in the year 1911, prior to the 4th of March of sad yea, the defendant Anselmo Abela conspired with Feliciano Limjuco and the accused Ponciano Remigio to defraud the said Shanghai Life Insurance Company (Ltd.), of Shanghai, China and the said persons formulated a scheme to the effect that the said Ponciano Remigio as such agent of the said Shanghai Life Insurance Company (Ltd.), of Shanghai, China, aided by his coaccused Feliciano Limjuco, Anselmo Abela, and others, should cause to be issued by the said insurance company a policy of insurance upon the life of a person who should be suffering from some illness from which said person would soon die; that in pursuance of such conspiracy and scheme, the said Ponciano Remigio, Feliciano Limjuco, and Anselmo Abela, on the 4th day of March, 1911, in the municipality of Santa Cruz , Laguna Province, prepared and executed an application for insurance in the said Shanghai Life Insurance Company (Ltd.), of Shanghai, China purporting to be the application of a person by the name of Maria de Lima, in the sum of P5,000 (Exhibit B), this being the same document referred to in paragraph (a) of the complaint.

(6) That in pursuance of said conspiracy and scheme, said application (Exhibit B) was made and executed by and between said accused Ponciano Emigio, Feliciano Limjuco, and Anselmo Abela, and no person by the name of Maria de Lima was present at the time of the preparation and execution of said document (Exhibit B) nor any other person desiring insurance in said company; that the answers appearing in said application to the effect that the said Maria de Lima mentioned therein was property owner and the aunt of the accused Feliciano Limjuco, were false and known to the said coconspirators to be false at the time of the preparation and execution of said document (Exhibit B).

(7) That thereafter, in pursuance of said conspiracy and scheme, the accused Ponciano Remigio, and Anselmo Abela and Feliciano Limjuco caused to be prepared and executed a pretended medical examination purporting to the report of a medical examination by the accused Anselmo Abela of the person of Maria de Lima, and caused to appear in said application that the said Maria de Lima mentioned therein was a property owner, a widow, forty-five years of age, and that she had been measured, weighed, and physically examined by said Anselmo Abela, and that she was strong and enjoying good health and might live for another twenty years (Exhibits B-1 and B-2). The various pages of this document marked as two exhibits constitute but one entire document, and is the same document referred to in paragraph (b) on the information in his case.

(8) That at the time of the preparation and execution of said pretended report of a medical examination, the Maria de Lima mentioned therein was not measured, weighed, or physically examined by the said defendant Anselmo Abela; that said Maria de Lima was not a property owner, nor a widow , nor forty-five years of age; that at the time of the preparation and execution of said document, no person whatsoever was examined by the said defendant Anselmo Abela, and all of the contents of said document are false and untrue and were known to the accused Ponciano Remigio, Feliciano Limjuco, and Anselmo Abela to be false and untrue; that said Maria de Lima was not a property owner and not a widow; and as shown by Exhibit Q-1, she was, at the time of the execution of Exhibit B-1 and B-2, more than forty-five years of age and was not a widow.

(9) That said accused Ponciano Remegio, as such agent of the Shanghai Life Insurance Company (Ltd.), of Shanghai, China, and in pursuance of the conspiracy and scheme referred to, in the month of March, 1911, and subsequent to the preparation and execution of Exhibits B, B-1, and B-2, delivered said documents to the said “Hijos de S. J. Tuason,” general agents of the said Shanghai Life Insurance Company (Ltd.), of Shanghai, China, at the city of Manila, for the purpose of securing a policy of insurance in the sum of P5,000, upon the life of the person named in said documents, to wit: Maria de Lima, well knowing at the time of such delivery that all of the statements contained in said documents were false and untrue.

(10) That in pursuance of said false documents Exhibits B, B-1, and B-2, the said Shanghai Life Insurance Company (Ltd.), of Shanghai, China, accepting the same as true in all respects, as represented by its said agent, Ponciano Remigio, did issue a policy of insurance upon the life of Maria de Lima in the sum of P5,000, and did forward the same to the city of Manila, to the said general agent, “Hijos de J. S. Tuason” (Exhibit C).

(11) That thereafter, in the month of August, 1911, in pursuance of said conspiracy and scheme, the said Ponciano Remegio, Feliciano Limjuco, and another made and executed the documents referred to in paragraphs (c), (d), and (e) of the information (Exhibits H, I, and J). These are so called ‘Proofs of Death,’ and were made, executed and delivered to said general agents ‘Hijos de J. S. Tuason,’ in the city of Manila, in order to collect the amount of the policy (Exhibit C) issued by the said Shanghai Insurance Company (Ltd.), of Shanghai, China, upon the life of Maria de Lima; that all of the statements contained in said documents H, I, and J are false and untrue and were known to the said defendant Anselmo Abela to be false and untrue at the time of their preparation, execution and delivery to “Hijos de J. S. Tuason.”

(12) That in pursuance of said conspiracy and scheme the said accused Ponciano Remigio and the witness Feliciano Limjuco, in the said month of August, 1911, secured from the one Ramon Kamatoy, municipal physician of the town of Santa Cruz, Laguna, a death certificate to the effect that said Maria de Lima had died in said town of Santa Cruz, Laguna, on the 26th day of August, 1911, of typhoid fever (Exhibit D). This is the same document referred to in paragraph (f) of the information in this case, and by the use of this false document, the said Feliciano Limjuco obtained permission for the interment of a corpse purporting to be that of Maria de Lima (Exhibit E), but which in truth and in fact was not the body of Maria de Lima.

(13) That thereafter, in the said month of August, 1911, the said Ponciano Remigio and Feliciano Limjuco delivered to the said firm ‘Hijos de J. S. Tuason,’ in the city of Manila, Philippine Islands, the said death-claim papers (Exhibit H, I, and J) for the purpose of obtaining the payment of the policy Exhibit C; that at the time of the presentation of said documents (Exhibit H, I, and J) to the said ‘Hijos de J. S. Tuason’ at the office of said firm in the city of Manila, the said defendant, Anselmo Abela, knew that the contents of said documents were false and that the said Maria de Lima was then alive; that notwithstanding this fact, the said Feliciano Limjuco, in pursuance of said documents (Exhibits H, I, and J), collected from the Shanghai Insurance Company (Ltd.), of Shanghai, China, through its general agent ‘Hijos de J. S. Tuason,’ in the city of Manila, the sum of P4,832, the difference between this amount and the amount of the policy (Exhibit C) having been deducted by the Shanghai Life Insurance Company (Ltd.), of Shanghai, China, through its said general agent in the city of Manila for unpaid premiums due upon the said policy; that thereafter, the said Ponciano Remegio, Feliciano Limjuco, Anselmo Abela and others appropriated to their own use and benefit the said sum of P4,832, to the damage of the said Shanghai Life Insurance Company (Ltd.), of Shangahai, China, in said sum.

(14) That thereafter, in the month of February, 1912, the Maria de Lima mentioned in said documents (Exhibits B, B-1, B-2, H, I, and J) died in the town of Santa Cruz, Laguna, as more fully appears from the record of deaths of parish priest of the said town of Santa Cruz, Laguna, Philippine Islands, copy which was offered in evidence on the stipulation of the parties (Exhibit S-1), and from the testimony of Feliciano Salud, parish priest, that of Serapio Escalona, her husband, and that of Feliciano Limjuco.

Relative to these findings of the trial court, we should of course begin with the application of the oft-repeated rule as to the conclusion of the trial court on the credibility of witnesses. The reason of this rule is that the trial court who sees and hears the witnesses testify is in a far better position than the appellate court to determine their credibility. The rule itself is that the Supreme Court will not interfere with the judgment of the trial court in passing upon the credibility of the opposing witnesses, unless there appears in the record some fact or circumstance, of weight and influence, which has been misinterpreted. In the instant appeal, this principle has more than usual force because of the flat contradiction in the evidence, because the star witness for the prosecution is a principal, and because of the scrupulous care of the court to ascertain the true facts.

Counsel for appellant would likely concede these premises. The portion of the decision which he chooses for comment is that which admits that the case for the prosecution depends largely upon the testimony of Feliciano Limjuco, one of the four accused against whom the information was filed. Counsel dwells on the various oaths which this witness has “wantonly and deliberately broken.” To stigmatize Limjuco, counsel apparently has searched the dictionaries with good result for words adequate show his contempt. Listen to these expressive phrases ? “A perjurer of the reddest dye and a self-confessed criminal,” “This unscrupulous creature,” and “This morally anemic soul.”

The true doctrine which should govern the testimony of accomplices, or what may be variously termed principals, confederates, or conspirator, is not in doubt. The evidence of accomplices is admissible and competent. Yet such testimony comes from a “polluted source.” Consequently, it is scrutinized with care. It is properly subject to grave suspicion. If not corroborated, credibility is affected. Even then, however, the defendant may be convicted upon the unsupported evidence of an accomplice. If corroborated absolutely or even to such an extent as is indicative of trustworthiness, the testimony of accomplice is sufficient to warrant a conviction. This is true even if the accomplice has made previous statements inconsistent with his testimony at the trial and such inconsistencies are satisfactorily explained.

To quote from one of many decisions of this court, which concerns both the credibility of witnesses as determined by the trial court and the competency of testimony by an accomplice, we turn to the case of the United States vs. Ambrosio and Falsario ([1910], 17 Phil., 295), wherein it is said:

It is unquestionably true that the testimony of an accomplice must be taken with great care and caution. It must be assayed and weighed with scrupulous care. The corroborating testimony must be strong and convincing. It is also true that, however that when the testimony of an accomplice is corroborated by unimpeachable testimony and strong circumstances, it may be given its due weight and force against the person in regard to whom it is presented.

The trial court in the opinion upon which its judgment of conviction is founded went into the fact in detail. He analyzed the testimony carefully and gave his reason for believing the story told by the witnesses for the prosecution rather than that told by the witnesses for the defendants. He saw the witnesses in the act of testifying. He observed carefully their manner upon the witness stand. He studied every detail for the express purpose of determining where credibility lay. We do not feel like interfering with the intelligent conclusion of a court concerning the credibility of witnesses unless the record discloses that some fact or circumstances of weight and influence was overlooked by the court or has been misapprehended or misinterpreted. A careful examination of the record discloses to us no fact, no circumstance, upon which we may base ourselves in saying that the trial court had no right to arrive at the conclusion which he reached. His mind upon all the evidence was free from a reasonable doubt. (See also U. S. vs. Ocampo [1905], 4 Phil., 400; U. S. vs. Balisacan [1905], 4 Phil., 545; U. S. vs. Ocampo [1905], 5 Phil., 339; U. S. vs. Bernales [1911], 18 Phil., 525; U. S. vs. Soriano [1913], 25 Phil., 624; U. S. vs. Briones [1914], 28 Phil., 367; U. S. vs. Lazaro [1915], 34 Phil. Rep., 871; U. S. vs. Claro [1915], 32 Phil., 413, and other cases.)

Where conspiracy is in issue these principles are even more certain. A conspiracy is more readily proved by the acts of a fellow criminal than by any other method. If it is shown that the statements of the conspirator are corroborated by other evidence, then we have convincing proof of veracity. Even if the confirmatory testimony only applies to some particulars, we can properly infer that the witness has told the truth in other respects.

Keeping these general principles as a background, but pressing only the point last stated, is the testimony of the codefendant and coconspirator, Limjuco, corroborated? We find that it is, by the testimony of Serapio Escalona, husband of Maria de Lima; of Feliciano Salud, the parish priest of Santa Cruz, Laguna, and of Elias Velez, municipal secretary of Santa Cruz, Laguna, and by voluntary confession of the other accused Ponciano Remigio. The court also came to the conclusion “that Feliciano Limjuco has testified substantially to the whole truth as to the facts declared of himself and his coconspirators.”

This testimony of Limjuco together with the admitted facts and the corroborating testimony make a case for the prosecution which must stand unless overcome by the defense. As to the part taken by Abela, the information alleges that he made out and signed the medical certificates Exhibits B-1 and B-2 knowing that statements therein not to be true. The certificates state that Maria de Lima is been measured, weighed, and examined physically by Dr. Anselmo Abela and that she was strong and enjoying good health, and might live twenty years longer. The evidence proves conclusively that Maria de Lima was not a property owner, was not a widow, was 49 and not 45 years of age, had tuberculosis and was in feeble health, and had never been examined for an insurance policy. The husband testified that his wife had never been taken out an insurance policy. The witness Limjuco testified that Dr. Abela drew up and signed the doctor’s examination certificate, placing the cross in the signature purporting to be that Maria de Lima, and that time of the execution of this document no person whatsoever was examined. The accused Remigio stated to the secret-service officers that Dr. Abela inform him that he (Abela) had made no examination of the woman named Maria de Lima. The defendant Abela in his own behalf testified that he examined in Santa Cruz, Laguna, a woman said to be Maria de Lima. The defendant also endeavored to establish that he was not in Manila when the documents were executed and used in the collection of the insurance upon the life of Maria de Lima. In support of defendant’s denial in an alibi attempted to be established by Juan Mendoza, a resident of Santa Maria, Bulacan, by Cirilo Abela, a brother, the parish priest of Santa Maria, Bulacan. As undermining this testimony, we have the legal point of interest in the defense on the part of the brother and of Mendoza, a political leader in Bulacan, and the rebuttal testimony of Jose Juan Serapio and David Roldan. On a careful analysis of the evidence we come to agree with the trial court that the doctor’s certificates, Exhibits B-1 and B-2 are false; that the defendant Anselmo Abela had knowledge of the falsity of the statements contained therein at the time of their execution; that he did not act in good faith but conspired with the other accused to execute various documents, and that he was in Manila on August 29 to receive the money.

Dr. Anselmo Abela in collusion with others concocted and participated in a scheme to take out an insurance policy on one Maria de Lima well knowing that she was in bad health, but then being impatient to await for her death, again conspired to falsity her death certificate although she was then alive, with the object of defrauding the Shanghai Life Insurance Company out of the amount of the policy. These volutes were gambling on death and were ghoulishly trafficking in human flesh for pecuniary advantage.

2. CONSPIRACY.

It is a primary rule that if two or more persons combine to perform a criminal act, each is responsible for all the acts of the other done in furtherance of the common design. The act of each conspirator is in contemplation of law the act of all. (U. S. vs. Maza [1905], 5 Phil., 346; U. S. vs. Grant and Kennedy [1910], 18 Phil., 122, and decisions of the United States Supreme Court.) To this, counsel for appellant would add the further proposition that the acquittal of one conspirator acts to acquit another conspirator.

Conspiracy to defraud is a common law offense. This crime of conspiracy as known to the common law does not exist in the Philippines. (See U. S. vs. Eguia Lim Buanco and De los Reyes [1909], 14 Phil., 472.) Nor is Abela charged with conspiracy, but by means of a conspiracy with estafa committed through falsification of documents. However, in all fairness, let us consider the assignments of error as advanced by appellant from the technical standpoint of conspiracy.

Appellant relies especially on the old case of State vs. Tom ([1830], 13 N. C., 487). Donum and Tom, slaves, with six others were indicted for murder. The evidence went only to the conspiracy between Donum and Tom, unrelated to the others. Donum was first tried and acquitted. It was held as to Tom that on an indictment for a conspiracy against two, the acquittal of one is the acquittal of the other, or, as stated in the concurring opinion of the Chief Justice “that the acquittal of all the conspirators but one necessarily amounts to the acquittal of that one also.” The late English case of the King vs. Plummer ([1902], 2 K. B. D., 339) is also cited. Here it was held that on the trial for an indictment charging three persons jointly with conspiring together, if only pleads guilty and has judgment passed against him and the other two are acquitted, the judgment passed against the one who pleaded guilty is bad and cannot stand.

These doctrines are doubtedly true as to the crime of conspiracy. They may even be true under article 4 of our Penal Code. A conspiracy is in its nature a joint offense. One person cannot conspire alone. The crime depends upon the joint act or intent of two or more persons. Yet it does not follow that one person only cannot be convicted of conspiracy. So long as the acquittal or death of coconspirator does not remove the bases for a charge of conspiracy one defendant may be found guilty of the offense. Numerous judicial examples which need not here be gone into illustrate these exceptions. (See People vs. Olcott [1801], 1 Am. Dec., 168; 51 Am. Dec., Notes, pages 84 et seq.; 19 Annotated Cases, Notes, pages 1253 et seq.; 5 R. C. L., 1078, 1079.) But all these are much more difficult in aspect than are the actual facts before us. Here we have four defendants, or, if you choose to call them so, conspirators. One is convicted, one is acquitted, one is used as a witness of the State, and the last is the defendant at bar. Even were Abela merely teamed with the witness Limjuco, or with the witness Limjuco and the acquitted Kamatoy, under the authorities, Abela could still be prosecuted and convicted. In other words, it is not a case of conspiracy between Abela and Kamatoy, but between Abela, Kamatoy, the guilty Remigio, and the self-confessed Limjuco. The acquittal Kamatoy does not, therefore, purge Abela.

Appellant finally insist that, “The declaration of not guilty and the consequent acquittal of Dr. Kamatoy by the lower court is tantamount, in contemplation of law, to a declaration that he was not a conspirator for if he had been one he certainly would not have been acquitted. Not being a conspirator, all the evidence adduced by the prosecution as to what he said, wrote or did or omitted to do, is upon the most elementary principles of evidence manifestly incompetent against his codefendants and must be stricken out of the record of Dr. Abela’s case.” As authority Paul vs. State ([1882], 12 Tex. Court of Appeals, 346) is cited. The facts were that B, M and P were jointly indicated for conspiracy to rob one S. B was tried and acquitted. P was convicted in the lower court. It was held that the record of B’s acquittal was admissible in evidence in favor of P. Following this case we can and should take into account the acquittal of Kamatoy. Further we must admit that one other sentence in the opinion in Paul vs. State gave us considerable trouble until we discovered the later Texas case of Holt vs. State ([1898] 39 Tex. Cr. Rep., 282, 300). On motion for rehearing, Henderson, J., makes the following reference to Paul vs. State:

It was here held that, if one of two joint conspirators should be acquitted, the record of such acquittal could be introduced in evidence on the trial of a subsequent conspirator. This was based on the principle that if two are charged with conspiracy, and one is acquitted, the other must be acquitted also, though he be guilty of doing the act charged, for it would be no conspiracy, however otherwise it may be a crime. (Dever vs. State, 37 Texas Crim. Rep., 396.) It is true, the court, in passing, say that ‘where one of several joint conspirators has been acquitted, the acts and declarations in furtherance of the common design are inadmissible as evidence against the other defendants, because, if he was not a coconspirator, his acts and declarations could not be binding upon him. But this matter was not before the court. We think that where a party is charged with substantive offense not a conspiracy, and it appears that the same was in pursuance of a conspiracy, the acts and declarations of one shown to have been engaged in the conspiracy are admissible in evidence, notwithstanding such coconspirator, whose declarations are sought to be admitted, has previously been acquitted. (See also Musser vs. State [1901], 157 Ind., 423.)

Proof of the conspiracy is sought merely as an evidentiary fact to sustain another charge. Admitting, therefore, the judgment of acquittal in favor of Kamatoy, we should still take into consideration the evidence concerning Kamatoy although found not guilty.

Coming to the facts, the argument is that Exhibit D, the death certificate, stating that Maria de Lima died on August 26th, 1911, was alleged in the information to have been executed by Kamatoy, codefendant and coconspirator of Abela, and since Kamatoy has been acquitted, a vital link in the chain of the prosecution is broken. But counsel admits that “The evidence adduced both for the prosecution and for the defense clearly establishes that this certain Exhibit D was solely and exclusively filled out and signed by the codefendant, Dr. Ramon Kamatoy.” We content ourselves with this quotation. Otherwise stated, accepting this evidence and getting back to our basic rule, Abela does not have to participate materially in every criminal act involved in the conspiracy, i.e, in the preparation of Exhibit D. Again Kamatoy is not on trial. Whether Kamatoy was an innocent agent or an active conspirator is not important if the falsification did not take place. The situation is the same practically as found in many cases where many are accused but few are convicted. Four here are charged with estafa, but it could be that the conspiracy to commit this crime was only perpetrated by three. Under either aspect it would be a travesty of justice if one as guilty as Abela was permitted to escape criminal responsibility on a technicality.

CONCLUSION.

We are of opinion that the mentioned for a few trail must be denied. We are further of opinion that the trial court committed no error in declaring Dr. Anselmo Abela guilty as charged in the information. Only the penalty must be changed, for, since the handing down the decision of the lower court, Act No. 2712, section 2, has reduced the penalty provided by article 301 of the Penal Code. In connection with falsification of documents, we find the aggravating circumstance of abuse of confidence. In view, therefore, of the provisions of article 534, paragraph 3, of the Penal Code, and of Act No. 2712, section 2, of the Philippine Legislature, in relation with article 89 of the Penal Code, we hereby sentence Anselmo Abela to six years of prision correccional, with the accessory penalties provided by law, to pay a fine of P2,000, to indemnify the Shanghai life Insurance Company, (Ltd.), in the amount of P4,832, or to suffer subsidiary imprisonment in case of insolvency not to exceed one year, and to pay one-fourth part of the costs of the first instance and all the costs of this instance. So ordered.

Arellano, C.J., Torres, Carson, Araullo, Street and Avanceña, JJ., concur.
Johnson, J., took no part.

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