THE UNITED STATES, PLAINTIFF AND APPELLEE, VS. ONG SHIU (ALIAS ONG SIO CO), DEFENDANT AND APPELLANT.

On the 26th day of February, 1914, the assistant prosecuting attorney of the
city of Manila presented a complaint against the defendant charging him with a
violation of section 31 of Act No. 1761, amended by section 3 of Act No.
1910.

The complaint alleged: “That on or about the 24th day of February, 1914, in
the city of Manila, P. I., the said Ong Shiu, alias Ong Sio Co, did then and
there, willfully, unlawfully, and feloniously have in his possession and under
his control 8 grams of opium and 4 grams of opium ash. That the said accused is
not a citizen of the United States or a citizen of the Philippine Islands and
has heretofore been convicted of two former offenses under this law. Contrary to
law.”

Upon said complaint the defendant was arrested, arraigned, tried, found
guilty, and sentenced by the Honorable Richard Campbell, judge, to be imprisoned
for a period of six months. The lower court, after hearing the evidence,
found:

“On the morning of the day of the crime, the accused was discovered in his
room with another Chinaman. The policemen noticed a strong smell of opium coming
from where the accused was. They therefore forced the door and entered the said
room. Just at that moment the accused threw away an opium pipe through a hole in
the floor, and when the pipe was picked up by the policemen it was still quite
hot. Besides, other devices used in smoking opium were found in the room, and,
in the hands of the accused, 8 grams of opium and 4 grams of opium
ashes.”

The only defense presented by the defendant was in the nature of a general
denial of all of the facts stated by the witnesses for the prosecution.

During the trial of the cause the prosecution presented Exhibit B. (Record,
page 6.) Said exhibit is a certificate presented by the police department of the
city of Manila. It certifies that the defendant had been condemned for a
violation of the Opium Law in two different causes, by the Court of First
Instance of the city of Manila. The first was cause No. 7779, for a period of
three months’ imprisonment and the second was cause No. 9253, for a period of
four months’ imprisonment. Said certificate was presented and admitted in
evidence without objection in the lower court. From the sentence of the lower
court the defendant appealed to this court.

The only objection presented by the appellant in this court relates to the
penalty1 of six months’ imprisonment imposed by the lower court, based upon the
fact that the defendant had been convicted before for the same offense. The
appellant argues that Exhibit B should not have been admitted in the lower
court. He insists that it is not sufficient proof of the fact that he had been
theretofore convicted of a similar offense. It will be remembered that the
defendant, even though he was represented by an attorney at law in the trial of
the cause, made no objection to the admissibility of said Exhibit B. His
objection to the admissibility of said exhibit is presented for the first time
in this court. We do not understand why the prosecuting attorney did not present
the records of the Court of First Instance, for the purpose of showing that the
defendant had been theretofore convicted of similar offenses. The records
certainly would have been the best proof of such former conviction. The
certificate was not the best proof. There seems to be no justification for the
presentation of proof of a secondary character, when the case was being tried in
the same court where the defendant had been theretofore twice convicted and
where the original records were. Under an objection upon the ground that the
said certificate (Exhibit B) was not the best proof, it should have been
rejected. Once admitted, however, without objection, even though not the best
evidence, and even though not admissible under an objection, we are not inclined
now to reject it. If the defendant had opportunely presented an objection to the
admissibility of said certificate, no doubt the prosecution would have presented
the best proof upon the questions to which said certificate relates. If the
defendant did not believe that the proof was sufficient, he should have
presented his objection at the time the same was presented, and thereby have
given the prosecuting attorney an opportunity, if he desired to prove the fact,
to present other and different proof. Evidently the defendant did not object to
the admissibility of said certificate, because he was willing to admit the facts
contained therein. The complaint alleged that the defendant had been convicted
twice before of a violation of the same law (the Opium Law). That allegation was
evidently made for the purpose of increasing the penalty in the present case.
The burden was upon the the prosecution to prove said allegation. The
prosecuting attorney evidently believed that he had made out a prima facie case
by the presentation of said certificate. Had the defendant objected to its
admissibility, the prosecuting attorney would have presented the record of the
court in support of his allegation. The defendant made no objection to the
admissibility of the proof offered, neither did he attempt to refute the prima
facie case made by the prosecuting attorney. Objections which are relied upon
for the purpose of reversing or modifying the decisions of the trial court,
should be made first in that court.

In view of all of the facts in the present case and the failure of the
defendant to object to the admissibility of said Exhibit B, while we admit that
said exhibit is not the best proof of the facts which the prosecuting attorney
was attempting to prove, yet, nevertheless, we are not inclined to reverse or
modify the sentence of the lower court. Therefore the sentence of the lower
court is hereby affirmed, with costs.

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

---

CONCURRING

MORELAND, J.

I do not believe that the certificate of the chief of police that the accused
had been before convicted of a crime was admissible in evidence to prove former
conviction, nor do I believe that such evidence should be considered even though
admitted. It is not only not the best evidence but is hearsay ; and a person
should neither be put in jail nor have his punishment increased by that kind of
evidence.

Therefore, while I agree to the conviction, I do not agree to the increase in
punishment induced by the finding that there was a former conviction, said
finding being based wholly on the certificate of the chief of police referred
to.