THE UNITED STATES, PLAINTIFF AND APPELLEE, VS. SANA LIM ET AL., DEFENDANTS AND APPELLANTS.

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}This action has come before us on appeal raised by the defendants Sionga Yap,
Sana Lim, and Dina Lim, from the judgment of December 8, 1913, whereby the
Honorable Adolph Wislizenus, judge, sentenced Tiburcio Ricablanca, King Kong
Kiang (alias Esteban), Sionga Yap, Sana Lim and Dina Lim each to the penalty of
six years ten months and one day of prision mayor, and to pay, each of
them, one-ninth of the costs. In the same judgment Rufino Cortes and Pedro
Blando were acquitted, and by two orders of the same date, December 3, 1913,
upon the petition of the provincial fiscal, the case was dismissed with respect
to Eleno Suizo, in order to use him- as a witness, and also Manuel Balbuena,
with the costs de officio. (Record, pp. 24 and 25.)

The record in this case shows that it was duly proven that some days prior to
September 11, 1913, the Moro named Jamilassan disembarked from a vinta
or small native boat, in which he and other Moros were traveling, upon the beach
of the barrio of Simala, pueblo of Sibonga, Island of Cebu, carrying with him
101 tins of opium, belonging to his employer, the Moro Tahil, for the purpose of
selling the drug; that Jamilassan thereupon went to the store of the Chinaman
King Kong Kiang (alias Esteban), situated in the said barrio and near
the shore, to sell the opium, but that this Chinaman, instead of agreeing to buy
it, went to the town of Sibonga and proposed its purchase to another Chinaman
named Sionga, who in turn approached another Chinaman named Sana for the same
purpose; that, as Sana did not have the money, Sionga then went to the municipal
treasurer of the pueblo, Tiburcio Ricablanca, to report the fact that the opium
was being offered for sale; that Rica-blanca thereupon conceived the idea of
seizing the opium brought by the Moro Jamilassan, with the intent to obtain
unlawful gain, and, with this purpose in view, arranged that one of the Chinaman
should pretend that he would buy the opium and upon his acquiring it the
treasurer and his accomplices would proceed to arrest the Moro, seize the opium
for the purpose of appropriating it to themselves, substitute molasses for a
part of it and deliver to the authorities the molasses and a part of the opium
so seized, together with the bearer of the drug.

In order to carry out the plan thus conceived, the Chinamen Sionga and Dina
went to the pueblo of Carcar to buy molasses from the Chinaman Yap Chian, while
the treasurer Ricablanca gave orders to the police sergeant Eleno Suizo to take
two subordinates, dressed as civilians and without uniforms, and accompany those
who were to execute the deed. On the night of the said 11th of September, 1913,
the Moro Jamilassan, who, with his companions and his employer Tahil, was in the
small boat anchored off the shore of the said barrio, believing that the
Chinaman would buy the opium, went ashore carrying a sack that contained 101
tins of opium worth P3,333, or P33 a tin. Prior to his leaving the boat, the
defendants had posted themselves in the vicinity of the place where the Moro was
to land. When Jamilassan, who was carrying the opium, drew near to Sionga, the
pretended purchaser, the latter, according to an arrangement previously made
with his companions, twice lit some matches, whereupon the defendants appeared
upon the scene preceded by the sergeant and his policemen who, brandishing their
weapons to frighten the Moro, arrested him and seized the opium he was carrying
in the sack. At this moment, as the Moro succeeded in escaping toward the boat,
the sergeant fired his revolver four times and the treasurer Ricablanca also
fired his. Thereupon the Moros in the boat precipitately fled from the shore,
but the one who carried the opium was finally captured.

The defendants then appropriated to themselves 77 tins of the opium, set
aside 12 of them, and for the contents of the remaining 11 tins they substituted
molasses, 1 tin having been lost. These 12 tins of opium and 11 tins of molasses
were delivered by them to the authorities as having been legally seized in the
possession of the Moro Jamilassan, the bearer of the drug.

By reason of the foregoing facts, the provincial fiscal filed in the Court of
First Instance a criminal complaint against the Chinese appellants, the
municipal treasurer of the pueblo of Sibonga, some policemen and others who took
part, charging them with having seized opium of the value of P3,300, the
property of a Moro named Tahil, willfully, maliciously, and criminally, with
intent to gain and by the use of violence and intimidation against the person of
the Moro Jamilassan, who was carrying the said drug.

Article 502 of the Penal Code prescribes that the crime of robbery is
committed by any person who, with intent to gain, shall take any personal
property by the use of violence or intimidation against any person or force upon
any thing.

Although the subject matter of the robbery was an article whose introduction,
use, and keeping were, and are, strictly prohibited by the laws in force in
these Islands, wherefore all public officers vested with authority, and their
agents, are under obligation to prosecute any violation of the law and to seize
the prohibited drug and all similar substances which are of course confiscated,
unless their use or keeping has been expressely authorized by competent,
authority; yet, when it has been fully proved at the trial that the capture and
seizure of the opium was effected by a public officer, assisted by agents of the
authorities, with the decided intent to gain thereby the price or value of the
opium so seized, and not with the intention to comply with the law and further
the purposes of the Government in the eradication and suppression of the vice of
its use, one which is very prevalent among the Chinese residents of these
Islands and is also spreading among the native inhabitants; and when the
commission of the unlawful act was attended by violence and intimidation against
the person who was carrying the opium, it is improper to consider such
taking-and seizure as lawful and permissible, even though executed by agents
authorized to arrest and prosecute opium smugglers, inasmuch as the seizure of
the opium was effected with intent to gain and by the use of violence and
intimidation, in the present case, against the person of the Moro who, as the
agent of its owner, had possession of the drug.

The seizure of the opium
and the arrest of its bearer by the agents of the authorities is indeed
permissible and perfectly lawful; but that such agents, with the intent and
purpose of appropriating to themselves the opium seized and of deriving benefit
from its use or sale, should, with impunity and entire security, possess
themselves of the opium, cannot be tolerated. Until the agents of the
authorities have taken charge of it in the manner prescribed by the
administrative law, it is the property of the owner. The Moro Jamilassan having
been deprived of the 101 tins of opium, which, by order of the owner of the
drug, he was carrying to sell, and this taking having been effected with
violence and intimidation on the part of the agents of the authorities, who
acted in apparent compliance with the law, but really with intent to obtain
unlawful gain, it is unquestionable that the crime of robbery, provided for and
punished by articles 502 and 503, paragraph 5, of the Penal Code, was committed.
The legality and correctness of this classification of the crime are in no wise
affected by the circumstance that the persons who committed it were agents of
the authorities, assisted by some private parties, since the public character
with which these agents were invested does not justify the criminal intent that
prompted the execution of the punishable act, nor can it change the nature of
the crime they committed, inasmuch as, on the occasion of its perpetration, they
acted, not as agents of the authorities in the fulfillment of the duties imposed
upon them by the law, but as mere private parties, accompanied by some Chinamen,
all of whom conspired together and concerted, under the direction of the
treasurer Ricablanca, for the purpose of seizing a considerable quantity of
valuable opium which was not their property, but belonged to the Moro Tahil, and
which is an article that, upon seizure and confiscation within the territory of
this Archipelago, becomes the property of the Government, In this connection it
is to be noted that the treasurer Ricablanca, before proceeding to seize the
opium, gave no notice either to the municipal president or to the local chief of
the Constabulary, nor did he request the latter’s assistance; all of which shows
that he did not act in good faith and according to the law.

Without discussing the guilt of the defendant Ricablanca and the Chinaman
King Kong Kiang, neither of whom has appealed, we shall confine ourselves in
this decision to inquiring into that of the appellant Chinamen Sionga Yap, Sana
Lim, and Dina Lim. Their participation in the robbery under prosecution was very
different from that of the first two, inasmuch as Sionga Yap was present with
the policemen during the perpetration of the robbery, he took a direct part
therein and cooperated in its commission by the performance of acts without
which, perhaps, his coparticipants would not have succeeded in seizing the
opium. It was he who’pretended to purchase the drug by placing himself in direct
communication with the Moro who carried it, and arranged the place and time when
the latter should appear on the beach at Simala with the opium for sale; it was
this same Chinaman who, in accordance with the agreement he had made with his
codefendants, went to the shore ahead of the latter there to await the Moro
Jamilassan who was expected with the opium; he, too, it was, who signaled the
arrival of the Moro on the shore, by lighting two matches, at which signal the
policemen and their companions came up and the former rushed upon the Moro, held
him fast, and by force possessed themselves of the opium, the securing of which
was the purpose of the common action of the plotters. It cannot be denied,
therefore, that Sionga participated as a coprincipal in the perpetration of the
robbery in question.

We are of the opinion that the other two appellants, Sana Lim and Dina Lim,
acted as accomplices in the commission of the crime. They cooperated by acts
prior to and simultaneous with its perpetration, but the record does not show
that they performed acts that were necessary and indispensable for its
realization. With knowledge of the commission of the robbery and with the intent
to obtain unlawful gain, they accompanied the principals in the crime up to a
certain distance from, though not near, the place where it was perpetrated, but
did not approach that place until after the robbery took place and then for the
sole purpose of sharing in the booty or the division of the opium stolen. Hence,
as these two defendants do not fall within any of the three classes specified in
article 13 of the Penal Code, which treats of principals, the said Sana Lim and
Dina Lim are to be considered as mere accomplices of the principals in the
robbery.

Counsel for the defendants, arguing against the classification of the crime,
alleges that at most it should be defined as estafa, and in support of his
contention cites several decisions of this court and of the supreme court of
Spain, where the principle is laid down that such acts should be qualified as
estafa and not robbery, for the reason that the agents of the authorities were
authorized to seize the opium and the persons having it in their possession or
who were its owners, and because the officers of the law could not, in the act
of the .seizure of a prohibited article, have exercised violence and
intimidation upon the person of a transgressor; that if after the seizure of the
opium, they conceived the purpose of gain and it was then that they appropriated
to themselves the opium seized, they would in such a case have committed the
crime of estafa, but not that of robbery.

In answer to these allegations we must state that the robbery was engendered
from the very moment when the principals resolved to possess themselves of the
opium carried by the Moro Jamilassan, with the fixed and malicious intent to
obtain unlawful gain from the said drug which, as was well and publicly known,
obtained a high price among the Chinese, its chief consumers. With that end in
view, they came to an agreement, formed a conspiracy among themselves and, under
the direction of the treasurer Ricablanca, decided upon the method by which they
should possess themselves of the opium so that they might derive profit from its
sale. They later took the opium from the possession of its bearer by means of
violence and intimidation, since four shots were fired by one of the policemen
and another by the treasurer Ricablanca, who was present at the commission of
the robbery. There is, therefore, no question that the persons who, with
malicious intent to obtain’ unlawful gain and by the use of violence and
intimidation, forcibly possessed themselves of the opium carried by the Moro
Jamilassan, proceeded and acted in the same manner as robbers usually do who,
with intent to gain, take possession of another’s property against the will of
its owner.

In the cases cited by the defense to show that the crime under prosecution
should be classified as estafa and not as robbery, the guilty persons first
acted in good faith in the discharge of their duties and without any unlawful
intention, and the intent to derive illicit gain was formed only after they had
legally seized the property. For this reason those acts cannot be classified as
robbery, only as estafa, because prior to and at the time of their performance,
they acted as agents of the authorities and in accordance with law, and only
after they were in possession of the property, did they conceive the idea of
deriving profit therefrom by appropriating it to themselves for personal gain.

In the case at bar, both the treasurer Ricablanca and the Chinese appellants,
from the moment they proposed to seize the opium which the Moro Jamilassan
carried for sale, had the intention to appropriate to themselves the greater
part of the drug. They even planned to deceive the authorities by substituting
molasses for the contents of 11 of the 23 tins of opium which they presented to
the said authorities as legally seized from Jamilassan. They kept 77 of the tins
so seized and made no report of them to their superior, nor does the record show
that these tins were afterwards recovered from the possession of the defendants.
Therefore it is just and proper that the crime in question should be classified
as robbery, and not as estafa.

In the commission of the crime account must be taken of the attendance of the
aggravating circumstance No. 15, to wit, that the crime was committed in the
nighttime and in an uninhabited place, without any extenuating circumstance to
offset its effects. No weight can be given to abuse of superior strength, that
circumstance being inherent in the crime of robbery, even though it were not
committed by a band of armed men.

For the foregoing reasons, whereby the errors assigned to the judgment
appealed from are deemed to have been refuted, the said judgment is affirmed in
so far as it agrees with this decision and reversed in so far as it does not,
and we hereby sentence the Chinaman Sionga Yap, as a principal, to the penalty
of six years ten months and one day of presidio mayor and to the
accessory penalties of article 57, and each of the other Chinamen, Sana Lim and
Dina Lim, as accomplices, to six months of arresto mayor and the
accessory penalties of article 61. Furthermore, Sionga is sentenced to restore,
jointly and severally with his coprincipals, the opium stolen or to pay the
value thereof to the Government of the Philippine Islands, and the accomplices,
Sana Lim and Dina Lim, are held to be bound, also jointly and severally between
themselves and subsidiarily in default of fulfillment, for the civil liabilities
incurred by the principals, and each of the three appellants shall pay one-third
of the costs of this instance. The opium seized and all quantities thereof that
may be recovered shall be confiscated.

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

---

CONCURRING

JOHNSON, J.

In my opinion, the facts set forth in the decision by Justice Torres are in
accord with those found in the record, and the conclusions are supported by
law.

---

DISSENTING

MORELAND, J.

The doctrine promulgated by this decision seems to me so unusual and strange
that I feel myself constrained to dissent.

The crime charged and for which the accused were convicted is robbery of 11
cans of opium.

The simple facts are that the appellants were members of the police force of
the barrio of Simala, municipality of Sibonga, Cebu Province, and on the night
of the 11th of September, 1913, as such police officers, in the discharge of
their duty, arrested certain Moros and others for the crime of illegal
possession of opium and seized 101 cans of opium, then and there found in their
possession. The persons arrested were conveyed in the regular way before the
proper officials and were subsequently tried and convicted and are here now on
appeal. Before arriving at the municipal building with the prisoners the
appellants, with others, abstracted the contents of 11 of the cans and put in
place thereof some other substance not opium, the opium thus abstracted being
converted by the appellants to their own use and benefit and to the use and
benefit of others. It is admitted that the seizure of the remaining 90 cans was
legal, proper and commendable.

This is all there is of this case.

It is contended by the court that the crime of robbery was committed because
the opium was taken by force and violence.

In my judgment the case, as put by the court, cannot be stated without
involving irreconcilable contradictions. It is unquestioned, of course, that it
was the duty of the appellants as peace officers of the municipality of Sibonga
to arrest all people found in the illegal possession of opium and to seize the
opium found. No one disputes this. It is done every day in all parts of the
Islands. If the appellants had not arrested the possessors of the opium and
seized the opium itself as they did, they would have been recalcitrant in their
duty and would have made themselves liable to disciplinary punishment, if not
removal from office.

How, then, is it possible to contend that their arrest of the persons found
in possession of the opium and the seizure of that opium was illegal and
constituted robbery by the use of force and violence against the persons who
possessed the opium?

It is, of course, unquestionable that one of the essential elements of
robbery is force and violence either upon the person or upon the thing. If the
acts which constituted the force and violence are not only legal acts but acts
which the parties who executed them are in duty bound to perform and
such performance is in the interests of the public, how can they
constitute robbery by force and violence? The mere statement of the proposition
discussed in the case is a refutation of the conclusion. It is a perfect
contradiction of terms to assert that an officer of the law who legally arrests
a person guilty of a crime and seizes the property which constitutes the
gravamen of the offense is guilty of an illegal use of force and violence upon
the person arrested and the property seized.

The proposition which I assert is clearly and explicitly sustained in the
case of United States vs. Atienza (2 Phil. Rep., 242). In that case a
lieutenant ordered a soldier to seize all the money in the possession of a
certain person, it being believed that such money was the property of a
revolutionary officer. He did so, but before delivering the money to his
superior officer appropriated a portion of it to his own use and benefit. He was
charged with robbery, as in the case at bar, for having taken the property with
force and violence.

The court, discussing that proposition, said: “Nevertheless, this act does
not constitute the crime of robbery, with which the accused is charged in the
complaint. The seizure of the money in Father Ilagan’s house and that of his
family was not in itself unlawful, because it was done in obedience to a lawful
order given for that purpose by competent authority. The unlawful and punishable
appropriation took place subsequently to this act, when the money appropriated
was lawfully in the possession of the accused. The order given to him by his
commanding officer was for the precise purpose of the seizure of this money, and
consequently the seizure in itself does not constitute an act of unlawful
taking, a necessary element for the existence of the crime of robbery, as well
under the different cases covered by article 502 and the other articles included
in the chapter of the Penal Code, which deals specifically with robberies, as in
the special case covered by article 206 of the said code.”

This case is conclusive of the case before us. The seizure of the opium in
the case at bar “was not in itself unlawful, because it was done in obedience to
a lawful order given for that purpose by competent authority.” In the case at
bar it was the duty of the appellants, and they had received orders, to arrest
all persons found in the illegal possession of opium and to seize the opium. In
the case cited “the order given to him by his commanding officer was for the
precise purpose of the seizure of this money;” in the case at bar the order
given to the appellants was for the precise purpose of the seizure of the
opium.

In my judgment, there is confusion in the decision as to the nature of the
crime committed. The unlawful act took place after the arrest and seizure. It is
clear that the officers, in converting to their own use a part of the opium
after it had been legally seized, committed a crime; but they took
advantage of their official position to get the opium into their possession in a
lawful manner. Their whole purpose was to avoid the necessity of robbing the
possessors of the opium by forcibly seizing it. They preferred, and it was
their precise purpose, to obtain possession of the opium in a legal
manner, and they took advantage of their official position to that end.
Afterward they again took advantage of that lawful possession to profit
illegally. It was, I repeat, their object to obtain legal possession
and they did obtain it by making a bona fide arrest and a bona fide seizure and
presenting the prisoners and most of the property seized to the proper public
officials for further action in the premises.

It is clear that the crime committed is misunderstood by the court. It
probably constitutes the crime of estafa or possibly, of malversation of public
property, the opium being subject to confiscation on the conviction of its
possessors for a violation of the Opium Law. The fact that the persons
committing the estafa were public officials would be an aggravating circumstance
under paragraph 11, article 10, of the Penal Code, which provides that it shall
be an aggravating circumstance if, in the commission of the crime, “advantage be
taken by the offender of his public position.”

If the crime were malversation of public property, then, of course, this
aggravating circumstance would not apply, as it would be one of the
circumstances qualifying the crime and not aggravating it.

That the crime committed is misunderstood by the court is clearly
demonstrated by a further statement of the court in the case of United States
vs. Atienza, above, which is as follows: “The subsequent conversion by
the accused, after getting the money into his possession, by keeping part of it
instead of turning it all over to the officer who directed the seizure, may
perhaps constitute the crime of malversation of public funds or that of estafa,
according to whether the accused may or may not be regarded as having been in
the discharge of the duties of a public officer when committing the deed, and
that the money converted came into his possession by reason of his office.”

This case clearly settles the whole question before us. It is logical and
unequivocal. All the court agreed to the decision except Justice Torres, who
dissented and who now presents, as the writer of the prevailing opinion, the
same arguments which were presented by him in his dissent in the case of United
States vs. Atienza and were there rejected. These arguments are now
accepted.

It is urged as the basis of a distinction between the case at bar and the
case of United States vs. Atienza that, in the case at bar, the
intention was formed to convert the opium prior to the arrest, and that that
intention made the arrest forcible, illegal, and criminal. The mere statement of
this proposition is its own refutation. To assert that an act which is not only
lawful but required by law is made illegal by reason of the intention
of the official who performs it, is to state an absurdity. Moreover, with their
intention to convert the opium to their own use ran also the purpose of getting
possession of that opium legally, and they did it by exercising the
duties of their office in a manner which the law not only approved but
compelled.

Moreover, which of the 101 cans of opium did the officers, before the arrest,
intend to convert to their own use? It is admitted that the 101 cans of opium,
at the time they were seized, were all in one package, and that all of the cans
were seized at the same time and by the same act. Prior to the arrest
and seizure, therefore, the appellants had not decided upon any particular cans
of opium, such as the 11 cans, and separated those out for the purpose of
converting them after the arrest and seizure. If there was any intention at all
to misappropriate any of the opium, it was an intention to misappropriate an
undivided portion thereof, which portion was entirely unknown, so far as the
specific cans are concerned, at and before the seizure thereof. It is impossible
to say, therefore, as to which of the cans the evil intention of the appellants
referred.

The absurdity of holding that the seizure of the 11 cans of opium was robbery
may be still further demonstrated. As we have already said, it is admitted that
the 101 cans of opium constituted and formed one package at the time of the
seizure and that the seizure of the whole 101 cans was made at the same time and
by the same act. Now, the seizure of the 11 cans, says the court, was a forcible
and violent seizure and was so illegal and criminal as to constitute the crime
of robbery. But what about the seizure of the remaining 90 cans? Was not the
seizure of the 90 cans exactly like that of the 11, since all the cans were in
one package and were all seized at the same time and by the same act? But the
seizure of the 90 cans was admittedly proper, legal, and commendable. That being
so, how can the seizure of the 11 cans be robbery? How can the seizure of a
package, consisting of 101 cans of opium, be robbery as to a part of the package
and perfectly legal and proper as to the balance? How is it possible, under the
circumstances of this case, that the seizure of the 90 cans be legal and the
seizure of the 11 cans be robbery? It is not possible, of course. The 11 cans
and the 90 cans were intermingled in one package and constituted together the
101 cans seized on the arrest. The seizure of 1 can was exactly like the seizure
of every other and had precisely the same effect and produced precisely the same
result. Yet the court holds that as to the 11 cans the act was robbery and as to
the 90 cans it was legally proper.