G.R. No. 20600. October 16, 1923

The lower court sentenced the accused for a violation of Act No. 3023 to two
years’ imprisonment and P2,000 fine each, with subsidiary imprisonment and
costs. The accused appealed from this judgment, and assign errors to the action
of the trial court: (1) In finding that they had sold and delivered dynamites,
shells, and wicks to Lieutenant David; (2) in giving credit to the testimony of
Lieutenant David and not holding it insufficient; (3) in not considering the
testimony of Juanita Quiros, not presented by the prosecution, as confirmatory
of the evidence of the defense; (4) in not acquitting the accused Abella, even
supposing his coaccused Bacalla to be guilty; (5) in finding the appellants
guilty of a violation of Act No. 3023; and (6) in imposing upon them, supposing
them to be guilty, so excessive a penalty.

The punishable acts in connection with explosives are enumerated in Act No.
3023, alleged to have been violated, section 1 of which says:

“The manufacture, distribution, storage, use, or possession of gunpowder,
dynamite, explosives, blasting supplies, or ingredients thereof, except in
accordance with the provisions hereof and of Act Numbered Fourteen hundred and
ninety-nine, as amended, is hereby declared illegal:” etc.

This Act No. 3023 amends sections 1 and 2 of Act No. 2255, section 1 of which
provides:

“The manufacture, possession, or sale, without special permit from the
Director of Constabulary, or senior inspector of the province, of dynamite or
other high explosives, or their components, for any use or purpose except in the
execution of bona fide engineering and mining work, and as provided in
section one of Act Numbered Fourteen hundred and ninety-nine, as amended, is
hereby prohibited:” etc.

The complaint under which the appellants were prosecuted is an follows:

“The undersigned accuses Apolinario Abella and Florentino Bacalla of a
violation of Act No. 2255, as amended by Act No. 3023, in that on or about the
night of the 18th, or the dawn of the 19th of November, 1922, in the
municipality of Mandawe, Province of Cebu, Philippine Islands, the above-named
accused, without special permit of the Insular Director of the Philippine
Constabulary or of the provincial commander of Cebu, had in their possession and
sold dynamites, shells, and wicks, all for purposes not allowed by
law.”

As the acts complained of took place on November 19, 1922, the law to be
applied is Act No. 3023, which took effect on March 8, 1922, and not the
original sections 1 and 2 of Act No. 2255, amended by said Act No. 3023.

As may be seen, the complaint charges the accused with having sold dynamites,
shells, and wicks. And while it contains also an allegation to the effect that
the accused had such explosives in their possession, yet that mere possession is
not the subject of the prosecution, for, according to the evidence, the accused
Bacalla, who was the one having the dynamites in his possession, had the proper
permit for the purpose. And the efforts of Lieutenant David were not limited to
surprising the accused in the mere possession of the explosives, but tended to
ascertain whether or not they were selling dynamites. So that the act for which
this action was prosecuted is that of selling dynamites, shells, and
wicks for purposes not allowed by law.

But Act No. 3023, then in force, does not use the word sale, found in
section 1 of the former law, Act No. 2255, as amended, which is omitted
therefrom and in lieu thereof the word distribution is inserted. If what
the law punishes is the distribution, may the sale be punished?

We agree with the Attorney-General that the substitution of sale in the
former law by distribution is due to an intention on the part of the
legislator to extend the sphere of the prohibition, and consequently by the word
distribution is meant any apportionment among several persons without
excluding the delivery made by virtue of a contract of sale.

We think, however, that the word distribution is used in this Act in
its etymological sense, as derived from distribute, which comes from the
Latin “distribuo,” composed of the inseparable preposition “dis,” which in this
case indicates division, and “tribuo,” which means to give. The word
distribution therefore, as used in Act No. 3023, implies division and
apportionment of a thing among various persons. This being so, a doubt may arise
as to whether a single isolated sale constitutes distribution.

Furthermore, this distribution used in the aforesaid sense, includes
sale only so far as in every sale there is delivery of the thing to the
purchaser. Consequently in order that a complaint under Act No. 3023 may be
sufficient as one for distribution of dynamites, it must allege such
distribution, and if it alleges only a sale, it must state that there was
delivery of the explosive sold, inasmuch as there may be a sale without delivery
of the thing sold. It is elementary that the contract of sale is perfected, and
therefore exists, upon the mere agreement as to the subject-matter of the
transfer and the price, although neither one may have been delivered.

If, as is the case here, the complaint does not, in the first place, charge
but one isolated sale, and, in the second and supposing that a single sale
constitutes distribution, does not say that any explosive was delivered,
the conclusion is obvious that the complaint does not allege facts sufficient to
constitute an offense.

The defense attacks the testimony of Lieutenant David, as being no proof at
all. He testified in substance that having received information that certain
persons in Cebu were illegally selling dynamites, he put on a disguise,
simulating a merchant, and acting through Juanita Quiros and offering a tempting
price, being a very high one, caused the accused to sell, as they in fact did
sell, him dynamites. The appellants contend that, this official having induced
the accused to violate the law, his testimony is no proof at all; and cite in
support thereof the case of United States vs. Phelps (16 Phil., 440),
wherein the following doctrine was laid down:

“When the evidence given by the witness for the Government in a criminal case
shows that he actually induced the defendant to commit the alleged crime, the
probative force of such testimony is thereby destroyed, and such conduct is most
reprehensible and should be reproved and not encouraged by the
courts.”

The Attorney-General contends that this doctrine is not applicable to the
instant case, in view of the different means employed by the witness in the two
cases and because in this case Lieutenant David did not induce, but merely tried
to ascertain whether his informations as to the sale of dynamites were well
founded. We believe there was inducement, direct, persistent, and effective. It
is true that said official wanted to satisfy himself of the veracity of the
informations he had, but it is also true that he did not limit himself to
inquiring: into the consummated acts, but induced the accused to commit another
act similar to those about which he had information.

We find no sufficient reason for not applying here the doctrine laid down in
the case of United States vs. Phelps, supra. That such an
inducement is highly reprehensible, is also indicated by the Manual of Insular
Police, prepared under the provisions of section 843 of the Administrative Code,
section 1204 of which says:

“Any member of the Constabulary who may know of a contemplated criminal act,
or of any act that may lead to the commission of the crime, will do his utmost
to prevent it rather than allow it to continue merely for the purpose of
securing the conviction of the offenders.” (Manual for the Philippines
Constabulary, 1922.)

If for the respectable organization of the Insular Police, to which
Lieutenant David pertains, it is justly reprehensible not to prevent the
commission of a crime of which there is notice, what would it be to induce its
commission?

And if, under this doctrine, the testimony of Lieutenant David has no
probative force, let us see whether, without it, there is in the case enough
proof to convict the accused.

After an examination of the record, we find that, outside of the testimony of
said official, there is no sufficient evidence to support the judgment appealed
from. The witness for the prosecution, Banaay, did not hear the conversation
between Lieutenant David and the accused Bacalla, concerning the sale. This
witness, Banaay, is not sufficiently acquainted with the sale of the explosive.
On the other hand the accused deny that the sale was ever made.

For the purposes of this decision, we deem it unnecessary to examine the
other assignments of error made by the appellants.

For all of the foregoing reasons, the judgment appealed from is reversed, and
the appellants are acquitted, with all proper pronouncements in their favor. So
ordered.

Araullo, C.J., Johnson, Street, Malcolm, Avanceña, Villamor,
and Johns, JJ., concur.