G.R. No. 1468. March 14, 1904

On January 20, 1903, the prosecuting attorney of the city of Manila
filed an information in the Court of First Instance of that city
charging the three defendants with the crime of the falsification of
notes or documents equivalent to current money payable to bearer, in
that on or about the 16th day of January, 1903, the said defendants,
Gardner, Jameson, and Kilp, in the city of Manila, Philippine Islands,
willfully, feloniously, and with intent to gain, forged two notes or
documents which passed as current money under the laws of these
Islands, with the intent of circulating them, and forged and attempted
to make an imitation of two United States silver certificates of the
value of $10 each, money of the United States, altering and changing
the numbers, seals, letters, and inscriptions on two $1 United States
silver certificates which pass as current money in the Philippine
Islands, in order that they might appear on the face as of the value of
flO each; this contrary to the statute in the case made and provided.

After the complaint was filed and before the trial commenced, at the
request of the prosecuting attorney the case was dismissed with respect
to the defendants Jameson and Kilp under the provisions of section 34
of General Orders, No. 58, and they were accordingly discharged, the
prosecution being continued solely against Alonso P. Gardner.

From the testimony taken at the trial, it appears that on January
16,1903, while the accused, Gardner and James Jameson, were in the
“Soldiers’ Institute” situated in Santa Cruz, this city, Gardner
ordered Jameson to go to a bookstore in front of the post-office to buy
a bottle of mucilage and a blue pencil, and for that purpose gave him
half a dollar. This was about half past 3 in the afternoon. Jameson got
the mucilage and the pencil, Gardner not having told him for what he
wanted them. As a witness Jameson identified one of the blue pencils
which was shown him at the trial. Jameson’s testimony is corroborated
by 8. A. Presby, the owner of the Manila Stationery Company, who
identified the witness Jameson, as also the pencil and a bottle of
mucilage, which were exhibited to him as those which he had sold to
Jameson between 1 o’clock and 2.30 that afternoon. Between 6 and 7
o’clock that night the witness Jameson, at the invitation of the
accused, went by tram car to the Malate barracks, where they found a
soldier, tamed William, with whom the accused had some conversation.
They then left the barracks, and while passing by a tailor shop Gardner
handed Jameson a bill asking him to change it for silver and promised
to give him half its value. Jameson drew Gardner’s attention to the
fact that the bill was not good, to which Gardner replied that he knew
that, and that he had made it with mucilage, saying to Jameson, “Go
along, get it changed, and I will give you half.” Jameson cashed the
bill and received 25 pesos for it and then went up to the Soldiers’
Institute, where he found Gardner. This witness described the bill
which was so exchanged by him, together with the alteration which had
been made in it, and identified the bill which was exhibited to him at
the trial as the one which he had given to the Chinese tailor, numbered
54226499, and testified that this bill had been given him by the
defendant Gardner, in whose possession he had also seen some
Confederate bills. The silver certificate identified by this witness
appears on page 91 of the record.

Jameson also testified that when he delivered to Gardner the money
obtained by changing the note the latter gave him $7 or $8, and that
Gardner at that time had another bill on which he had pasted a number
“10” very similar to the bill which he had given the witness, and that
this bill remained in Gardner’s possession; that afterwards the witness
Jameson and defendant Gardner went together to the town of Calamba,
where the witness saw that Gardner had nine Confederate f 10 bills
which he tried to pass in a Filipino drug store; at the time he tried
to pass these bills there were three persons unknown to the witness in
the store, one of them an American and the other two Filipinos. The
Chinaman Ah Fun, resident of Xo. 32 Calle Nueva, Malate, testified that
he had given 25 pesos in exchange for an American bill upon which the
number 10
had been pasted; that he did not observe this defect in the bill at
first, as it was dark, but observed it very shortly afterwards and
immediately went to the police station to complain. This witness
identified the bill numbered 54226499 as the one which had been
delivered to him by James Jameson, and testified that the latter told
him it was a ten-dollar bill.

The witness William F. Kilp testified that he was with Gardner one
Saturday night, the date of which he does not remember, in a house of
prostitution in Sampaloc and that while in this house the witness
attempted to pass a bill which he had received from the accused while
they were together in the Soldiers’ Institute a short time before; that
he handed this bill to the owner of the house No. 106, that the woman
shortly after returned it to him saying she could not change it because
it was bad. This witness identified the bill on folio 91 of the record,
numbered 36579681; he testified that after the woman returned the bill
to him he handed it back to the accused who told him
at the time that it was not a good bill and that he had got it from a
man called Bennet; this witness also testified that he had seen some
other Confederate bills in the possession of the defendant.

George W. Marshall, a detective, testified that he was in the
Sampaloc station when the witness Kilp was taken there under arrest in
connection with the attempt to pass a one-dollar bill raised to a ten,
and identified the bill in question as that numbered 36579681, now on
page 91 of the record. Jerome Patterson, a policeman, testified that he
saw William P. Kilp in the house of prostitution No. 106 and that Kilp
while there handed a f 10 note to the mistress of the house, who
offered him 20 pesos for it; that upon this the witness asked Kilp why
he accepted 20 pesos for it when a Chinaman would give him 25 for it,
to which Kilp replied that the Chinaman only had 6 or 8 pesos; that
shortly after the woman received the bill she came back with it and
refused to keep it, and that then Kilp approached the light for the
purpose of examining it as did
some others who were there and also the witness; that when the witness
asked Kilp where he got that bill the latter told him he got it at No.
47 Balicbalic in a Chinese house; that just at this time a stranger who
was lying on a bench there said that he was present when the bill was
given to Kilp; that this man was about the same size as the accused and
that after Kilp was taken to the police station the witness returned
and looked for the man who had been lying on the bench but could not
find him.

Maria Sanchez, the keeper of the house of prostitution, identified
the defendant as having been in her house with the defendant Kilp, who
tried to cash a $10 American bill and said she was about to give him
the change but observed on approaching the light that the number was
stuck on to the bill; that she then returned it and said she would not
change it because it was bad; that when Kilp was taken to the police
station by Patterson, the police officer, it was found that the bill
was bad; that while this was going on the defendant Gardner was sitting
on a bench; this witness identified the bill numbered 36579681 as the
same which had been handed her by Kilp.

Article 289 of the Penal Code provides that those who falsify bank
notes or other instruments or documents payable to bearer, or coupons
thereof, the issue of which has been authorized by law, or those who
introduce such in the Philippine Islands, shall be punished by cadena temporal in its medium degree to cadena perpetua and a fine of from 6,250 to 62,500 pesetas.

The silver certificates in the record are documents payable to
bearer or documents of credit duly issued by virtue of the federal laws
in force in the United States, and are included in this article of the
code as documents payable to bearer.

Each one of these certificates may be considered as paper money, the
purpose of which is to take the place of cash by a representative
value, the same as any other document of credit, but they can not be
considered to be money as they are not a commodity having an intrinsic
value as has coined money.

The falsification of bank notes and of documents of credit payable
to bearer and issued by the State, to which class the two certificates
in question belong, is an act severely punished by the law as tending
to bring such documents into discredit and because such offenses
produce a lack of confidence on the part of the holders of said
documents to the prejudice of the interests of society and of the
State, and for this reason the law punishes this crime more severely
than it does the counterfeiting of
money, in consideration of the fact that it is easier to counterfeit
such certificates, notes, and documents of credit payable to bearer
than to make counterfeit coin, and that the profit which is derived
therefrom by the forger of such documents is greater and the incentive
for the commission of such a crime more powerful.

The falsification of these silver certificates was effected by
pasting little pieces of paper, on each one of which the figure “10”
appears, over the figure ” 1,” which showed the true value of the
certificate, and by obliterating with a pencil the number “1” wherever
it appeared on the corners or sides of the certificates for the purpose
of making it appear that each one of them was worth $10 instead of |1,
and by this means the sum of 25 Mexican pesos was fraudulently obtained
in exchange for one of the said bills or certificates.

The accused, Alonso P. Gardner, pleaded not guilty. In his sworn
testimony he stated that on the night of the 16th of January, 1903,
while at supper in the Soldiers’ Institute, Jameson approached him and
sat down beside him; that shortly afterwards Kilp arrived, who asked
Jameson if he had any money and the latter replied
affirmatively,¦placing a bill on the table and told him to take what
money he wanted; that thereupon the witness picked up the bill, without
noticing what it was and handed it to Kilp; that one afternoon Jameson
put on a pair of trousers belonging to a man called Studemeyer and
shortly after found in the pocket of these trousers three Confederate
notes, and when Jameson handed the witness one of these notes in Sam
pal oc, asking him if it was good, the witness looked at it and said,
“No; it is not good;” that Jameson had more than two notes of this
kind, from which the witness removed the numbers which had been pasted
on to them; that when he went and looked for Jameson to whom he had
delivered a watch for sale on the night of the 16th of that month, he
found him in a Chinaman’s store changing forged notes; that Kilp also
passed a forged note that night; that the witness did not know by whom
these notes were forged; that on the night of the 17th the witness and
Kilp were in house No. 106 in Sampaloc, where he stretched out on a
bench; that shortly after a woman aroused him asking him if a bill
which she had was good; that Kilp then told her that he knew to whom it
belonged and the witness replied that it belonged to one Bennet; that
he knew that Kilp passed the false note in Sampaloc in exchange for
silver and that Jameson did the same tiling; he denied that he had
received any part of the money which Jameson obtained for the false
note; that on the 16th of January Jameson asked him for a peso with
which to buy a bottle of mucilage, and the witness
handed Jameson 30 cents, which was all the money he had; that nothing
was said about buying a blue pencil; that while he was in Bilibid he
endeavored to induce the said Kilp and Jameson to tell the truth and
that they agreed to do so, but that only Kilp testified, and Jameson
refused to do so fearing that he would be charged with perjury if he
changed his testimony.

These excuses given by the defendant, Gardner,
do not overcome the result of the evidence for the prosecution. The
proof of the defendant’s guilt is shown beyond a reasonable doubt; that
Alonso P. Gardner altered two silver certificates of the value of $1
each, for the purpose of gain, circulating and passing them as of the
apparent value of $10, and that he succeeded in cashing one of them and
that with respect to the other his criminal purpose was frustrated
because the fact that the bill was forged was observed at the time.

The testimony of the witnesses called by the defense do not show
that Gardner had nothing to do with the alterations made in these two
certificates. The evidence is that the defendant bought a bottle of
mucilage with which the figure “10” was stuck on a $1 note over the
figure “1” and provided himself with a blue pencil with which the other
figures on the certificate were obliterated; that while he was in
prison he endeavored to induce the witnesses Jameson and Kilp, of whose
services he availed himself for the purpose of circulating the forged
notes, to testify in his favor. This circumstance corroborates the
testimony for the prosecution and gives greater weight and credibility
to the witnesses against Gardner, who it thus appears is the sole
principal by direct participation in the crime of falsification herein
prosecuted.

No circumstances of mitigation or aggravation were’ present in the
commission of the crime and consequently the proper penalty should be
imposed in its medium grade.

With respect to the points made in the brief for the defense, it is
sufficient to show that Jameson and Kilp testified under oath at the
trial as witnesses and not as accomplices in the crime, and that the
conviction of the defendant rests not only on their testimony but also
on other evidence for the prosecution and upon evidence in
the record considered as a whole.

For these reasons we are of the opinion that the judgment of the
trial court should be reversed and Alonso P. Gardner should be
condemned to the penalty of seventeen years four months and one day of
cadena temporal, with the accessories of the civil interdiction of the
defendant during the period of the penalty, that of absolute perpetual
disqualification and subjection to the vigilance of the authorities
during his lifetime, to the payment of 25 Mexican pesos to the Chinaman
Ah Fun, and to the payment of the costs.

Judgment will be entered accordingly, and the case will be remanded
to the court below with a certified copy of this decision for
execution. So ordered.

Arellano, C. J., Willard, and Mapa, JJ., concur.

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McDONOUGH, J.:

The defendant was charged with making and passing counterfeit money.
He is not charged with falsifying ” bank notes or other instruments or
documents payable to bearer or their coupons whose issue may have been
authorized by a law of the Kingdom,” as provided for in Chapter III,
article 289 of the Penal Code.

Chapter II of the Penal Code makes provision for the punishment of
those who counterfeit money, whereas Chapter III relates to the
falsification of bank notes, instruments of credit, stamped paper, etc.
The two bills which were altered by the defendant, one of which was
passed and the other offered and refused, are known as silver treasury
notes of the United States, and are genuine bills of the denomination
of $1 each, which bills the defendant attempted to raise to the
denomination of $10 by pasting on each of them the figure “10.” These
treasury notes are made by law a legal tender for all debts, public and
private, unless otherwise denominated in the contract, and are payable
in coin. They are not “bank notes,” nor are they ” other instruments or
documents payable to bearer”—they are money. (See act of Congress
passed July 14, 1890, chap. 708.)

The other instruments referred to in article 289 evidently mean
bonds or stocks or like instruments payable to bearer; and this
construction is supported by the provisions of article 293, which
provides for the punishment for counterfeiting ” bonds payable to order
or other documents of credit not payable to bearer.”

It follows that the defendant should be punished under article 282
of Chapter II of the Penal Code for making counterfeit of money which
is current in the Kingdom. If it be said that this article relates only
to coined or metallic money, the answer is that the word moneda may
properly be used in its commercial sense as a medium of exchange, and
thus include paper money as well as metal money.

One of the definitions given to that word in the Diccionario
Enciclopedico de la lengua Castellaña is to that effect. Moreover, in
subdivision 5 of that definition it is given the meaning of ” corriente
de legal y usual,” and in subdivision 17 we find ” moneda sonante ” and
” moneda metalica,” showing that moneda is a generic word
which includes legal-tender paper money as well as metallic money.
This, too, is the translation given to the word in the official English
translation of the Penal Code issued by the United States Government.

In Appleton’s Spanish Dictionary moneda is defined as ” Money, specie, coin.” Moneda sonante is defined as ” Hard money, specie,’ and moneda corriente is defined as”Currency.”

This view thai the punishment should be for counterfeiting or
passing counterfeit money is supported by the provisions of article 280
of the Penal Code, which expressly fixes the penalty for counterfeiting
the coined money of the Kingdom, viz, gold, silver, copper, and bronze,
whereas article 282 is a sweeping one and includes all other money
current in the Kingdom, which would, of course, include paper money.

It is important to determine whether the defendant shall be punished
under article 289 or under article 282, for under the former article a
penalty of at least seventeen years imprisonment must be imposed on the
defendant, whereas under the latter article the longest term of
imprisonment which can be given the defendant is four years
nine months and ten days. The highest penalty that can be inflicted in
the United States for counterfeiting treasury notes is a fine of not
more that $5,000 and imprisonment for not more than fifteen years, thus
leaving it in the discretion of the court to impose such lesser penalty
as the offense requires.

It seems to me that imprisonment for a term of seventeen years for
raising a $1 bill to $10, and passing it is too severe a punishment for
such an offense. If we may be so liberal as to construe the word ”
Kingdom ” to mean ” United States ” or ” Philippine Islands,” as we
must do to convict at all under the present law, we may well in the
interest of justice hold that the word ” moneda ” includes paper money,
and that the defendant may be convicted under Chapter II of the Penal
Code. I therefore favor reversing the judgment below, convicting the
defendant of making and passing counterfeit money, and sentencing him
to imprisonment for four years nine months and ten days, and to pay a
fine of 1,000 pesetas.

---

COOPER, J.:

The defendant, Alonso P. Gardner, was charged with the crime of
falsifying notes and instruments passing current as money under the
laws of the Philippine Islands, payable to bearer, and was convicted in
the Court of First Instance and sentenced to imprisonment for the
period of twelve years and one day.

The complaint in the case is as follows:

” The undersigned accuses Alonso P. Gardner, James
Jameson, Win, F. Kilp, and each of them, of the crime of falsifying
notes and instruments passing current as money under the laws of the
Philippine Islands, payable to bearer, committed as follows:

”
That on or about the 16th day of January, 1903, in the city of Manila,
Philippine Islands, the said defendants and each of them did willfully,
unlawfully, and feloniously and with intent of gain and for the purpose
of circulating the same, counterfeit and falsify two notes and instru
ments passing current as money under the laws of the Philippine
Islands, in this, to wit: That the said defendants and each of them
did, then and there, falsify, counterfeit, and make, and attempt to
make an imitation of two United States silver certificates of the value
of ten dollars ($10) each, United States currency, by then and there so
altering and changing the figures, stamps, lettering, and inscription
on two one-dollar silver certificates, United States currency, passing
current in the Philippine Islands as money, as to make them appear on
their face to be of the value of ten dollars ($10) each, United States
currency, contrary to the statute in such cases made and provided.”

Article 289 of the Penal Code, under which the conviction was made, reads as follows;

” Those who shall falsify bank notes or other
instruments payable to bearer, or their coupons, whose issue may have
been authorized by a law of the Kingdom, or those who shall introduce
them into the Philippine Islands, shall be punished with the penalty of
cadena temporal in its medium degree to cadena perpetua and a fine of from 6,250 to 62,500 pesetas.”

The evidence shows that the money which is alleged to have been
counterfeited was a genuine $1 United States silver certificate. The
alteration consisted in cutting out from a Confederate bill the figure
” 10 ” and in pasting it in the upper corners of a genuine $1 silver
certificate. There was no attempt to change any of the written or
printed part of the bill.

The questions which arise in the case are: (1) Was the offense
charged in the indictment of the character defined and punished in
article 289 of the Penal Code? (2) Did the alteration of the silver
certificate in the manner shown by the evidence—that is, pasting the
figure ” 10 ” cut from a Confederate bill over the figure ” 1″ in the
upper corners of a $1 silver certificate—constitute the offense of
counter-feiting money?

That a United States silver certificate does not come within the
meaning of ” bank notes or other instruments payable to bearer, or
their coupons, whose issue may have been authorized by a law of the
Kingdom ” is evident when construed in the light of the legislation
contained in the Code of Commerce, for, by examining these provisions
we
discover the character of the paper which was ” authorized by the law
of the Kingdom.”

By article 117 of the Code of Commerce the establishment of land,
agricultural, issue, and discount banks, of loan and mortgage loan
associations, and other associations, the purpose of which is
industrial or commercial, is declared to be unrestricted.

Under article 179, Code of Commerce, banks are authorized by law to
issue notes payable to bearer; by article 207 of the same code,
mortgage-loan associations or banks are authorized to issue mortgage
bonds and certificates to bearer; and by article 212 of the Code of
Commerce, agricultural banks and associations are authorized to
guarantee with their signature promissory notes.

It is evident from these provisions of the Code of Commerce what
class of bank notes or other instruments payable to bearer, or coupons,
have been authorized by the law of the Kingdom, and it is evident that
a silver certificate issued by the United States Government does not
come within the meaning of article 289.

This article is contained in Chapter III, Penal Code, while the
counterfeiting of money is defined and punished under Chapter II of the
Penal Code.

It will be noticed that a much heavier penalty has been fixed for
counterfeiting bank notes or other instruments payable to bearer, or
their coupons, than is prescribed for the counterfeiting of money. In
the former case, the offense is punished by cadena temporal in its medium degree to cadena perpetua and a fine of from 6,250 to 62,500
pesetas, while for counterfeiting money under article 282 the punishment is presidio correccional in its medium and maximum degrees and a fine of from 625 to 6j250 pesetas.

The majority of the court have reached the conclusion that the
defendant can not be convicted for the counterfeiting of paper money
under chapter II, because the money referred to in articles 280 and 282
of said chapter relates solely to gold or silver coin.

The fact that such may be the case will not justify the conviction
of the defendant under another provision of law, which was intended to
apply to an entirely different case.

But if it is true that the counterfeiting of paper money may be
punished under article 282 of the Penal Code, still the facts in this
case are insufficient to support a conviction. This offense is defined
as follows:

“He who shall make counterfeit money, of the value
of the genuine, by imitating money that is lawfully current in the
Kingdom, shall be punished with the penalties of presidio correccional in its medium and maximum degrees and a fine of from 625 to 6,250 pesetas.”‘

There was no attempt on the part of the defendant to make a
counterfeit $1 silver certificate. The $1 silver certificate passed by
the defendant was a genuine bill. Nor was there any attempt to
counterfeit a United States of 10 certificate. There is no resemblance
whatever between the $1 silver bill, as changed by pasting the figure ”
10 ” in the upper corners of the .bill and a genuine United States $10
silver certificate. Nor, as will be seen by a comparison, is there the
least resemblance between a $1 silver bill and a $10 silver bill; they
are of a different series and the engravings on the bills are in no
respect alike. In the upper left-hand corner of a genuine $10 bill
there is the letter ” X “with the word ” Ten ” printed across it, which
is entirely different from the figure ” 10 ” on the $1 silver bill; on
the $1 certificate appears the large figure of an eagle, while on the
$10 bill is a vignette of an eminent
statesman. The other figures engraved on the respective bills are
wholly dissimilar.

In forgery, as well as the counterfeiting of money, the rule is that
there must be in the false thing a similitude to the supposed original.
(1 Bishop, Cr. Law, 769.)

This similitude is entirely lacking, as before stated, between the
bill passed by the defendant and a genuine $10 silver certificate.

The bill has been sent up with the record. An inspection of it shows
an extremely clumsy piece of work, and it can not be conceived how it
could have been passed except by taking advantage of the darkness of
night. The evidence in the record shows that there was an attempt to
pass this bill on another person than the injured party, and the trick
was at once discovered.

Ah Fun, the Chinaman on whom the bill was passed, seems to have
taken it rather upon the representation by word that it was a $10 bill
than by being deceived by the appearance of the bill. He testified ” it
was in the nighttime and I could not see * * *; he said it was a $10
bill; I thought it was a $10 bill,” and states that he discovered the
fraud about five minutes after the defendant left.

Instead of this being a case of counterfeiting, it was a mere trick
or device by which the defendant defrauded the Chinaman of the money he
received in exchange for the bill.

The offense which the defendant has committed and for which he should be punished is estafa, and is defined in article 534 of the Penal Code, which reads as follows:

“A person who shall defraud another in the
substance, quantity, or quality of things he may deliver to him, by
virtue of an obligation, shall be punished—

“1. With the penalty of arresto mayor in its minimum and medium degrees, if the fraud should not exceed 250 pesetas in amount * * *.”

The defendant should be acquitted of the offense with which he is
charged, with directions that a complaint be instituted against him
charging him with estafa, defined
in article 534 of the Penal Code, the penalty of which is arresto mayor in its minimum and medium degrees.

There is quite a marked difference between this penalty, which is imprisonment from two to four months, and that of cadena temporal,
under which the defendant has been sentenced by this court to
imprisonment for the period of seventeen years four months and one day.