THE UNITED STATES, PLAINTIFF AND APPELLEE, VS. TAN SENG KI, DEFENDANT AND APPELLANT.

On the 15th day of January, 1914, a complaint was presented against the
defendant, charging him with a violation of section 31 of Act No. 1761, as
amended by section 3 of Act No. 1910. The complaint alleges that the said
accused on said date did then and there willfully, unlawfully, and feloniously
have in his possession and under his control two centigrams of opium. Upon said
complaint the defendant was duly arrested, arraigned, tried, found guilty, and
sentenced to pay a fine of P300, and in case of insolvency to suffer subsidiary
imprisonment, as provided by law, and to pay the costs. From that sentence the
defendant appealed to this court.

In this court the appellant alleges that the proof adduced during the trial
of the cause was insufficient to show that he was guilty of the crime
charged.

An examination of the record brought to this court shows that on or about the
13th day of January, 1914, two policemen of the city of Manila entered a
building at No. 109 Calle Rosario, and made a search for opium and other
evidence of a violation of the Opium Law. They entered a room in said building
and there found the defendant. Said policemen testified that they found a strong
odor of opium, indicating that there were some persons in said building smoking
opium. They testified that they found that the hands of the defendant and his
clothing bore stains of opium. They also found stains of opium upon the bed or a
board that was used for a bed by the defendant. They also found under the bed
the lid of a can which they claimed bore some evidence that it had, at some
time, contained opium. A chemical analysis was made of the clothing, which
showed that the stains were caused by opium. Said proof sustains the allegation
that the defendant had had in his possession opium, but it does not sustain the
allegation that he was then and there in the possession of opium. A mere stain
upon the clothing or hand of an individual, caused by some particular substance,
certainly cannot sustain the charge that he was at that time in possession of
that substance. We do not believe that because a man’s hands or clothing are
stained with earth, that he can be charged with having in his possession real
estate. The law specifically provides the punishment for one who has “in his
possession or under his control” opium. Neither said section 31 nor section 3
above referred to attempts to punish one for having had in his possession or
under his control opium. Said law provides for the present possession of opium.
We do not believe that the stains of opium upon the hands or clothing of an
individual are sufficient to show that he has “in his possession” nor that he
has “under his control” opium.

Upon a careful examination of the record brought to this court, we are
persuaded that the evidence is insufficient to show that the defendant is guilty
of the crime charged in the complaint, in the manner and form alleged therein.
Therefore the sentence of the lower court is hereby revoked and it is hereby
ordered that the complaint be dismissed and that the defendant be discharged
from the custody of the law, with the costs de officio.

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

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CARSON, J.

I concur. Proof of the existence of opium stains on the clothing of an
accused person, is not of itself sufficient to establish the fact that at the
time of his arrest, or at any time prior to his arrest he had opium in his
possession or control with animus possidendL There is no proof in the record as
to the character of the stains on the hands of the accused.

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MORELAND, J.

I agree to the acquittal of the accused. The only opium with the possession
of which the defendant is charged is that which composed the stains upon his
hands and clothing. I do not believe that the law in penalizing the possession
of opium contemplated that a mere stain upon the clothing or the fingers would
be considered either opium or a possession thereof.