THE UNITED STATES, PLAINTIFF AND APPELLEE, VS. ONG TO, DEFENDANT AND APPELLANT.

Ong To, the appellant in this case, and another Chinaman named Lim Cui, were
arrested about midnight in a house of which Ong To was the lessee. The two were
found in the same room. Lim Cui was on a bed smoking opium, and Ong To was
standing near by. Opium and some smoking utensils were found in the room. At the
time of the arrest Lim Cui at first denied ownership of the prohibited articles,
but after being addressed in the Chinese language by Ong To, claimed that they
belonged to him.

The only fact as to which there is any real dispute is as to the place of
residence of Lim Cui, the contention of the defendant being that the opium and
smoking utensils were his property and that he lived in the room where they were
found. On the night of the arrest he gave his residence at an unknown number in
Calle Dasmarinas, but at the trial he testified that he lived with the defendant
Ong To. Cross-examination, however, developed that his wife lived on Calle
Dasmarinas and that she kept his registration certificates and other papers. One
of the witnesses for the prosecution testified that he knew all the residents at
Ong To’s house, and that he had never seen Lim Cui there. The trial judge found
that Lim Cui was not a resident of the house leased by Ong To, where the arrest
was made; and we are of opinion that the evidence of record sustains this
finding.

Evidence was admitted to show that the house had been searched on various
former occasions, at which times smoking paraphernalia had been found there, the
object sought to be obtained by the introduction of this evidence being to
establish the contention of the prosecution that the house was what is commonly
known as “an opium joint.”

The admission of this evidence was strongly opposed in the court below on the
ground that it was incompetent and immaterial, and its admission by the trial
judge is now assigned as error. We think, however, that in cases of this kind
such evidence is competent and admissible, provided it is shown that the former
searches resulting in the finding of opium or smoking utensils, took place at a
time when the house was occupied by, and under the control of the defendant, who
of course should not be held responsible for acts of former tenants or owners.
(Underhill on Criminal Evidence, sec. 482.)

The evidence introduced at the trial as to the tenancy of the defendant and
appellant at the time when the former searches were made is not satisfactory. It
is true that there was no evidence to the contrary, but there is nothing in the
record which would sustain an affirmative finding to that effect without unduly
straining the testimony of the witnesses as to the facts connected with the
previous searches. We do not however consider the failure of proof in this
regard as vital, because the other evidence of record conclusively establishes
the guilt of the defendant of the offense of which he was convicted. It is urged
that under all the circumstances the presence of opium and smoking paraphernalia
in Ong To’s house is not sufficient to sustain a conviction of the illegal
possession of these articles. We are satisfied however, that the case comes
clearly within the doctrine of United States vs. Bandoc (23 Phil. Rep.,
14), wherein it was held that proof of facts substantially similar established a
prima facie case against the accused.

There was no satisfactory
explanation of the presence of these articles in the defendant’s house, and
under all the circumstances we see no reason for disturbing the finding of the
trial judge that the articles in question did in fact belong to the defendant
and not to the defendant Lim Cut. It was shown at the trial that the accused had
been previously convicted of the illegal possession of opium on April 23, 1910,
and this fact, taken together with the fact that at the time of the arrest the
accused was found furnishing his companion Lim Cui with the place and the means
for indulgence in the prohibited vice, sufficiently maintains the sentence
imposed by the court below We find no error in the proceedings prejudicial to
the rights of the accused. The judgment of the court below convicting and
sentencing him is therefore affirmed, with the costs of this instance against
him.

Arellano, C. J., Torres, Johnson, and Araullo, JJ.,
concur.

Moreland, J., concurs in the result.