THE UNITED STATES, PLAINTIFF AND APPELLEE, VS. INOCENCIO RUBAL, DEFENDANT AND APPELLANT.

This is an appeal from a decision of the Court of First Instance of Manila
acquitting the defendant, Inocencio Rubal, but failing to declare that the
accusation is false. Waiving the question of whether or not appeal is proper
under these circumstances, in order to settle the points at issue, we proceed to
describe the various phases of the case and to analyze the applicable article of
the Penal Code.

The assistant prosecuting attorney of the city of Manila, after conducting a
preliminary examination, charged Arturo Conde and Inocencio Rubal with the crime
of estafa. Conde was a fugitive from justice and was not tried. Rubal
was tried. At the close of the trial, the attorney for the defense moved for the
acquittal of his client and for the inclusion in the judgment of an order for
the prosecution of Heacock Co. for false and slanderous charges. the trial court
acquitted Rubal. No order for the institution of action for false accusation was
made. On the contrary, in the body of the short decision of Judge Campbell will
be found the following:

“As the case against the defendant Conde is still pending we will not comment
at this time on the testimony, further than to say that the telegrams sent by
the defendants to the house of Heacock Co., and which were admitted in evidence,
were amply sufficient to warrant the action of the prosecuting attorney in
causing the arrest of the said defendants and in instituting the present case
against them; so that the defendants were themselves the chief factors in
causing this complaint to be filed.”

Defendant excepted and by order of the trial court, appeal was permitted.

The first attorney de oflicio for appellant in the Supreme Court
found after study that there were not sufficient grounds to sustain the appeal
and asked to be relieved. A second attorney de officio was appointed, who made
the same request. The court designated still another attorney de
officio, who, after careful study, insists that the lower court incurred an
error in not declaring the complaint presented by Clyde W. Chambers to be false
and slanderous, and in not ordering his prosecution for the crime of false
accusation as prescribed by article 326 of the Penal Code. Counsel also asks
that there be reserved to the appellant Rubal the right of civil action to
recover from Chambers and H. E. Heacock Co. the damages which have been caused
him by reason of the prosecution. The Attorney-General, by motion, disclaimed
any interest in the appeal on the part of the Government. Upon ascertaining that
Clyde W. Chambers could not be found in the Philippine Islands, service by
publication has been made. Finally, in obedience to an order of this court, the
attorneys for H. E. Heacock Co. have filed a brief. The latter meet the attorney
for the appellant on his own ground as to the merits of false accusation, and
also, although we surmise rather in furtherance of their argument than in all
seriousness, suggest that since the finality of the judgment herein has been
denied by the appeal of the defendant, and since the evidence proved him guilty
of the crime imputed to him, we now declare the appellant guilty of
estafa.

Article 326 of the Penal Code is as follows:

“The crime of false accusation or complaint is committed by any person who
falsely charges another with acts which, if committed, would constitute an
offense upon which a prosecution might be instituted by the Government on its
own motion, if such charge be made to any executive or judicial officer whose
duty it is to investigate or punish such felony.

“Nevertheless, no action shall be taken against the person making the
accusation or complaint except by virtue of a final judgment or order of
dismissal by the court before which the offense charged shall have been
tried.

“The court shall order the prosecution of the person making the accusation or
complaint whenever the principal case discloses facts sufficient to justify such
prosecution.”

What is here termed the crime of false accusation or complaint is practically
identical with the crime of malicious prosecution as known to Anglo-American
law. For the crime of false accusation to be committed, there must first be a
false charge. The proof of falsity must, however, not be pressed too hard for in
addition it must be shown that the accuser knew that the charge was false at the
time the same was presented. (U. S. vs. Del Campo and Del Campo [1913],
26 Phil., 67.) The accuser must have instigated the commencement of the
prosecution without probable cause, and must have been actuated by malice.. To
sustain the charge of malicious prosecution (false accusation) it is necessary
to show: “First, that the suit had terminated unfavorably to the prosecutor;
second, that in bringing it the prosecutor had acted without probable cause;
third, that he was actuated by legal malice, i. e., by improper or sinister
motives. The above three elements must concur.” (Crescent City Live-Stock etc.
Co. vs. Butchers’ Union etc. Co. [1886], 120 U. S., 141; Wheeler
vs. Nesbitt [1860], 24 How., 544; various decisions of the supreme
court of Louisiana; and Torres vs. Ramirez [Porto Rico] reported in a
late number of Revista de Legislation y Jurisprudencia.) It does not
matter that Rubal may have been found to be innocent if it cannot be
demonstrated that Chambers in so far as he had participated in the prosecution
had not reasonable grounds for believing Rubal guilty at the time the charge was
made. The record discloses that the prosecution was really instituted by Conde
charging Rubal with theft. As intimated by the trial court, the principal
information giving rise to the prosecution came from certain telegrams from
Rubal and Conde. The only activity by Chambers has been in laying before the
authorities the information which came to him concerning the acts of Rubal for
such action as might be deemed proper by said authorities. Chambers was not
guilty of misrepresenting the facts upon which Rubal was prosecuted. The fact
that the prosecution deemed the evidence sufficient to warrant the charge, but
that the trial court deemed the evidence insufficient to warrant the conviction
of the appellant, should not, under the circumstances above noted, be attributed
to Chambers so as to make him liable for a criminal offense.

The second element of the crime of false accusation is that the charge be
made to an executive or judicial officer whose duty it is to investigate or
punish the felony. The charge was made to the prosecuting attorney of the city
of Manila, who is such judicial officer.

Article 326 of the Penal Code finally provides that action can only be begun
by virtue of a final judgment by the trial court and an order by the court for
the prosecution of the person making the acusation. The judgment herein is one
that is final. (U. S. vs. Lat [1908], 11 Phil., 269.) But the lower
court instead of making an order for the prosecution of Chambers placed in the
judgment what amounts to a vindication for Chambers. This court has held that:
“There can be no prosecution for a false accusation unless the court in
dismissing the first case expressly orders the prosecuting attorney to proceed
against the complaining witness in that case for a violation of this article.”
(U. S. vs. Barrera [1905], 4 Phil., 461; and Gonzalez Quiros vs.
Palanca Tan-Guinlay [1906], 5 Phil., 675 [civil action].) Counsel for H. E.
Heacock Co. thereupon naturally take the view that the Supreme Court is without
jurisdiction for the reason that the making of the order is limited by law to
the court taking cognizance of the crime imputed. We believe that in this
contention counsel is correct. The law places this duty solely and expressly on
the trial court. The supreme court of Spain has said: “Considering that article
340 provides that the crime of malicious prosecution can only be prosecuted by
virtue of final judgment or order by the court taking cognizance of the crime
imputed, who shall order the prosecution of the accuser if from the case it
results that there is sufficient basis for the institution of proceedings; and
considering that this provision of law, as has been repeatedly held by this
Supreme Court, confers on the trial court the discretionary power of determining
if in the case there exist sufficient basis to declare the accusation slanderous
and false and to institute the new proceedings, and that against such
determination by the trial judge no appeal is allowed, it results that the trial
court is the only judge whether to order or not the prosecution of the accuser,
or to determine if in the principal case exist sufficient facts to institute the
new proceedings.” (Decisions of the supreme court of Spain of February 10, 1877,
and November 4, 1880; 2 Viada, Codigo Penal, p. 480—supplement, vol. 4,
p. 294.) If the trial judge who is in a position to form an adequate
appreciation of the true facts, on acquittal of an accused has not ordered the
prosecution of the person instituting the charge, unless there is disclosed
convincing proof of abuse of discretion, this court should not by appeal usurp
the functions of the trial court. Not having shown any abuse of discretion on
the part of the trial court, the judgment must stand as rendered.

We conclude that the judgment of the lower court should be affirmed, but with
costs de officio. So ordered.

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

Avanceña, and Fisher, JJ., did not take part.

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CONCURRING OPINION

TORRES, J., concurring:

The undersigned concurs in the preceding decision signed by a majority of the
court, but, in respect to the grounds on which it is based, does not accept the
theory that it is discretional on the part of the judge who absolves the
defendant or dismisses the proceedings prosecuted against him, to order the
institution of a new cause for false accusation or complaint, against the
accuser or complainant, for the reason that in accordance with the last
paragraph of article 326 of the Penal Code, such new cause may be instituted
only when the principal case discloses facts sufficient to justify such
prosecution,—facts or proofs of falsity which the judge must estimate correctly,
guided by the rules of common sense and sound judgment. Such determination does
not depend on his free judgment and reasonable discretion, abstractedly from the
facts resultant from the principal case, but depends on his due estimation of
the proofs of falsity. The appellate court will decide, not whether the trial
judge did or did not abuse his discretion, but whether he did or not duly
estimate the proofs and other facts in order to conclude that the complainant or
accuser was actuated or not by malice and falsity.

With respect to the thrice repeated appointment of an attorney to represent
the defendant, who had no counsel of his own, when as in the present case, the
first two appointees state in writing that their client is absolutely wrong and
has no defense at all, it has always been a just and reasonable practice to make
a further appointment of counsel, in order not to leave the defendant entirely
bereft of protection, lest in connection with the charge prosecuted against him,
he might have some right of exception or defense which, though insufficient to
obtain for him total exemption from liabilty, may, at least in some manners,
atenuate his delinquency.