THE UNITED STATES, PLAINTIFF AND APPELLEE, VS. LAZARO JAVIER ET AL., DEFENDANTS AND APPELLANTS.

Doroteo Natividad on the afternoon of October 22, 1915, fastened his carabao
valued at P150 in his corral situated in the barrio of Trapiche, municipality of
Tanauan, Province of Batangas. On the following morning when he went to look
after the animal, he found the gate to the corral open and that the carabao had
disappeared. He reported the matter to the Constabulary, and a patrol of the
Constabulary under the leadership of sergeant Presa, now deceased, on the 20th
of November following, encountered the accused Lazaro Javier, Apolinario
Mendoza, and Placido de Chavez leading a carabao. When the ladrones saw
the Constabulary, they scattered in all directions. On the following day, the
Constabulary found this carabao tied in front of the house of one Pedro
Monterola in the barrio of Santa Clara, municipality of San Pablo. The carabao
was identified by Doroteo Natividad as the one which had been taken from his
corral on the night of October 22, 1915, and by the Constabulary as the one seen
in the possession of the accused.

As corroborative of such evidence, we have the well-known legal principle,
which as applied to cases of this character is that, although the persons who
unlawfully took a certain carabao are not recognized at the time, and their
identity remains entirely unknown, nevertheless, if the stolen animal is found
in the possession of the accused shortly after the commission of the crime and
they make no satisfactory explanation of such possession they may be properly
convicted of the crime. (See U. S. vs. Divino [1911], 18 Phil., 425.)
In the present instance, the attempt of the accused to insinuate that one of the
Constabulary soldiers testified against them falsely because of enmity is hardly
believable.

The foregoing statement of the facts and the law disposes of all but one
assignment of error, namely, that the lower court erred in admitting Exhibit B
of the prosecution as evidence. Exhibit B is the sworn statement of sergeant
Presa, now deceased, whose signature was identified, before the justice of the
peace of the municipality of Santo Tomas, Province of Batangas. Appellant’s
argument is predicated on the provision of the Philippine Bill of Rights which
says, “That in all criminal prosecutions the accused shall enjoy the right * * *
to meet the witnesses face to face,” and the provision of the Code of Criminal
Procedure, section 15 (5), which says that “In all criminal prosecutions the
defendant shall be entitled: * * * to be confronted at the trial by and to
cross-examine the witnesses against him.” With reference to the clause of the
Bill of Rights, which we have quoted, Justice Day said in a case of Philippine
origin (Dowdell vs. U. S. [1911], 221 U. S., 325) that it “intends to
secure the accused in the right to be tried, so far as facts provable by
witnesses are concerned, by only such witnesses as meet him face to face at the
trial, who give their testimony in his presence, and give to the accused an
opportunity of cross-examination. It was intended to prevent the conviction of
the accused upon depositions or ex parte affidavits, and particularly
to preserve the right of the accused to test the recollection of the witness in
the exercise of the right of .cross-examination.” In other words, confrontation
is essential because cross-examination is essential. A second reason for the
prohibition is that a tribunal may have before it the deportment and appearance
of the witness while testifying. (U. S. vs. Anastasio [1906], 6 Phil.,
413.) The Supreme Court of the Philippine Islands has applied this
constitutional provision on behalf of accused persons in a number of cases. (See
for example U. S. vs. Tanjuanco [1902], 1 Phil., 374; U. S.
vs. Bello [1908], 11 Phil., 526; U. S. vs. De la Cruz [1908],
12 Phil., 87.) It is for us now to determine whether the present facts entitle
the accused to the protection of the Bill of Rights or whether the facts fall
under some exception thereto.

The sworn statement of Presa was not made by question I and answer under
circumstances which gave the defense an opportunity to cross-examine the
witness. The proviso of the Code of Criminal Procedure as to confrontation is
therefore inapplicable. Presa’s statement again is not the testimony of a
witness deceased, given in a former action between the same parties relating to
the same matter. Consequently, the exception provided by section 298, No. 8) of
the Code of Civil Procedure and relied upon by the prosecution in the lower
court is also inapplicable. Nor is the statement of Presa a dying declaration or
a deposition in a former trial or shown to be a part of the preliminary
examination. Under these circumstances, not to burden the opinion with an
extensive citation of authorities, we can rely on the old and historic case of
R. vs. Paine (1 Salk., 281 [King’s Bench Div.]) occurring in the year
1696. It appears that a deposition of B., examined by the Mayor of Bristol under
oath, but not in P’s presence, was offered. It was objected that B, being dead,
the defendant had lost all opportunity of cross-examining him. The King’s Bench
consulted with the Common Pleas, and “it was the opinion of both courts that
these depositions should not be given in evidence, the defendant not being
present when they were taken before the Mayor and so had lost the benefit of a
cross-examination.” Although we are faced with the alternative of being unable
to utilize the statements of the witness now deceased, yet if there1 has been no
opportunity for cross-examination and the case is not one coming within ” one of
the exceptions, the mere necessity alone of accepting the statement will not
suffice. In fine, Exhibit B was improperly received in evidence in the lower
court.

With such a resolution of this question, we could, as has been done in other
cases, further find this to be reversible error and remand the case for a new
trial. We are convinced, however, that this would gain the accused nothing
except delay for the testimony of the owner of the carabao and of the two
Constabulary soldiers, rebutted by no reasonable evidence on behalf of the
accused, is deemed sufficient to prove guilt beyond a reasonable doubt.

The facts come under article 518, No. 3, in connection with article 520, as
amended, of the Penal Code. Accordingly the defendants and appellants are each
sentenced to four years, two months, and one day of presidio
correctional, with the accessory penalties provided by law, and to pay
one-third part of the costs of both instances; the carabao shall be returned to
Doroteo Natividad, if this has not already been done. So ordered.

Arellano, C. J., Torres, Johnson, Carson, Araullo, Street, and
Avanceña, JJ., concur.