G.R. No. 1593. March 20, 1905

There was no substantial dispute about the facts in this case. The
defendant, Benito Mercado, and the injured party, Julio Salazar, were
on the 21st day of February, 1903, both confined in the Prison of
Bilibid. On that day the defendant, without any apparent provocation,
struck Salazar upon the side of the head with a heavy club.

At the trial Dr. Lyon, who saw the injured person within a minute or
two after he was hurt, testified that under the most favorable
conditions it would be impossible for Salazar to recover the normal
condition of his hearing within a period of ninety days, and that it
was absolutely impossible for him ever to recover such use, and that
there was only a slight probability that he would ever recover a part
of his hearing.

The defendant, in this court, asks that the judgment be reversed upon two grounds:

(1) The case was tried within the Prison of Bilibid,
probably because the defendant, the complaining witness, and nearly all
of the other witnesses were there confined as prisoners. It is claimed
by the defendant that this trial was illegal because there was no
provision of the law which authorized the judge to hold a trial at that
place and because such a trial was not the public trial which is
guaranteed to the defendant by the act of Congress. It affirmatively
appears from the record that the defendant offered no objection to the
trial of the case in Bilibid Prison. This statement appears in the
record prior to the taking of any testimony, and it is clear that the
question where the trial was to be held was raised and determined
before the trial was commenced. Under these circumstances it is not
necessary for us to decide whether, if there had been objection on the
part of the defendant, the trial would have been legal. It is
sufficient to say that this was one of the rights which the defendant
could waive, and as he did expressly waive it before the trial
commenced it is too late for him now to insist that the trial was
erroneous.

(2) The injury was committed on the 21st day of
February, 1903, and the trial took place on the 7th of March, 1903.
During the testimony of Dr. Lyon the defendant asked that the trial be
suspended until the result of the injury could be known and until the
court could be absolutely certain that the injury would be permanent,
or, at least, that its effects would continue for more than ninety
days, and so bring the case within the provisions of article 416 of the
Penal Code.

The question for the court to determine was whether or not the
defendant had permanently lost his hearing or whether he would be
incapacitated from his usual work or be sick for more than ninety days.
The testimony of Dr. Lyon was positive to the effect that he was
permanently injured and that he would never recover his hearing. Under
these circumstances we do not think it was necessary for the court to
postpone the further hearing of the case until the expiration of ninety
days. There was evidence before it from which it was justified in
finding that the injury was permanent.

As suggested by the Attorney-General in his brief, the fact that no
motion for a new trial has been made by the defendant is indicative of
the fact that the judgment of the court below as to the permanent
character of the complaining witness’s injuries was well based upon the
evidence which he then had before him.

The judgment of the court below is confirmed, with the costs of this instance against the appellant.

Arellano, C, J., Torres, Mapa, and Carson, JJ., concur.