G.R. No. 22948. March 17, 1925
THE PEOPLE OF THE PHILIPPINE ISLANDS, PLAINTIFF AND APPELLEE, VS. FAUSTO V. CARLOS, DEFENDANT AND APPELLANT.
OSTRAND, J.:
City of Manila finding the defendant Fausto V. Carlos guilty of the
crime of murder and sentencing him to suffer life imprisonment, with
the accessory penalties prescribed by law and with the costs.
It appears from the evidence that the victim of the alleged murder, Dr.
Pablo G. Sityar, on March 3, 1924, in Mary Chiles Hospital, performed a
surgical operation upon the defendant’s wife for appendicitis and
certain other ailments. She remained in the hospital until the 18th of
the same month, but after her release therefrom she was required to go
several times to the clinic of Doctor Sityar at No. 40 Escolta, for the
purpose of dressing the wounds caused by the operation. On these
occasions she was accompanied by her husband, the defendant. The
defendant states that on one of the visits, that of March 20, 1924,
Doctor Sityar sent him out on an errand to buy some medicine, and that
while the defendant was absent on this errand Doctor Sityar outraged
the wife. The defendant further states that his wife informed him of
the outrage shortly after leaving the clinic. Notwithstanding this it
nevertheless appears that he again went there on March 28th to consult
the deceased about some lung trouble from which he, the defendant, was
suffering. He was given some medical treatment and appears to have made
at least one more visit to the clinic without revealing any special
resentment.
On May 12, 1924, the defendant, suffering from
some stomach trouble, entered the Philippine General Hospital where he
remained until May 18, 1924, and where he was under the care of two
other physicians. While in the hospital he received a letter (Exhibit
5) from Doctor Sityar asking for the immediate settlement of the
account for the professional services rendered his wife. Shortly after
his release from the hospital the defendant sought an interview with
Doctor Sityar and went to the latter’s office several times without
finding him in. On one of these occasions he was asked by an employee
of the office, the nurse Cabanera, if he had come to settle his
account, to which the defendant answered that he did not believe he
owed the doctor anything.
In the afternoon of May 26th the
defendant again went to the office of the deceased and found him there
alone. According to the evidence of the prosecution, the defendant
then, without any preliminary quarrel between the two, attacked the
deceased with a fan-knife and stabbed him twice. The deceased made an
effort to escape but the defendant pursued him and overtaking him in
the hall outside the office, inflicted another wound upon him and as a
consequence of the three wounds he died within a few minutes. The
defendant made his escape but surrendered himself to the Constabulary
at Malolos, Bulacan, in the evening of the following day.
The defendant admits that he killed the deceased but maintains that he
did so in self-defense. He explains that he went to Doctor Sityar’s
office to protest against the amount of the fee charged by the doctor
and, in any event, to ask for an extension of the time of payment; that
during the conversation upon that subject the deceased insulted him by
telling him that inasmuch as he could not pay the amount demanded he
could send his wife to the office as she was the one treated, and that
she could then talk the matter over with the deceased; that this
statement was made in such an insolent and contemptuous manner that the
defendant became greatly incensed and remembering the outrage committed
upon his wife, he assumed a threatening attitude and challenged the
deceased to go downstairs with him and there settle the matter; that
the deceased thereupon took a pocket-knife from the center drawer of
his desk and attacked the defendant, endeavoring to force him out of
the office; that the defendant, making use of his knowledge of fencing,
succeeded in taking the knife away from the deceased and blinded by
fury stabbed him first in the right side of the breast and then in the
epigastric region, and fearing that the deceased might secure some
other weapon or receive assistance from the people in the adjoining
room, he again stabbed him, this time in the back.
The
defendant’s testimony as to the struggle described is in conflict with
the evidence presented by the prosecution. But assuming that it is
true, it is very evident that it fails to establish a case of
self-defense and that, in reality, the only question here to be
determined is whether the defendant is guilty of murder or of simple
homicide.
The court below found that the crime was committed
with premeditation and therefore constituted murder. This finding can
only be sustained by taking into consideration Exhibit L, a letter
written to the defendant by his wife and siezed by the police in
searching his effects on the day of his arrest. It is dated May 25,
1924, two days before the commission of the crime and shows that the
writer feared that the defendant contemplated resorting to physical
violence in dealing with the deceased.
Counsel for the
defendant argues vigorously that the letter was a privileged
communication and therefore not admissible in evidence. The numerical
weight of authority is, however, to the effect that where a privileged
communication from one spouse to another comes into the hands of a
third party, whether legally or not, without collusion and voluntary
disclosure on the part of either of the spouses, the privilege is
thereby extinguished and the communication, if otherwise competent,
becomes admissible. (28 R. C. L., 530 and authorities there cited.)
Such is the view of the majority of this court.
Professor Wigmore states the rule as follows:
“For documents of communication coming into the possession of a third person, a distinction should obtain, analogous to that already indicated for a client’s communications (ante, par. 2325, 2326); i. e.,
if they were obtained from the addressee by voluntary delivery, they
should still be privileged (for otherwise the privilege could by
collusion be practically nullified for written communications); but if
they were obtained surreptitiously or otherwise without the addressee’s
consent, the privilege should cease.” (5 Wigmore on Evidence, 2d ed.,
par. 2339.)
The letter in question was
obtained through a search for which no warrant appears to have been
issued and counsel for the defendant cites the causes of Boyd and Boyd vs. United States (116 U. S., 616) and Silverthorne Lumber Co. and Silverthorne vs.
United States (251 U. S., 385) as authority for the proposition that
documents obtained by illegal searches of the defendant’s effects are
not admissible in evidence in a criminal case. In discussing this point
we can do no better than to quote Professor Wigmore:
“The foregoing doctrine (i. e.,
that the admissibility of evidence is not affected by the illegality of
the means through which the party has been enabled to obtain the
evidence) was never doubted until the appearance of the ill-starred
majority opinion of Boyd vs. United States, in 1885, which has exercised unhealthy influence upon subsequent judicial opinion in many States.* * * * * * *
“The progress of this doctrine of Boyd vs. United States was as follows: (a)
The Boyd Case remained unquestioned in its own Court for twenty years;
meantime receiving frequent disfavor in the State Courts (ante, par.
2183). (b) Then in Adams vs. New York, in 1904, it was virtually repudiated in the Federal Supreme Court, and the orthodox precedents recorded in the State courts (ante, par. 2183) were expressly approved, (c)
Next, after another twenty years, in 1914—moved this time, not, by
erroneous history, but by misplaced sentimentality—the Federal Supreme
Court, in Weeks vs. United States, reverted to the original doctrine of the Boyd Case, but with a condition, viz.,
that the illegality of the search and seizure should first have been
directly litigated and established by a motion, made before trial, for
the return of the things seized; so that, after such a motion, and then
only, the illegality would be noticed in the main trial and the
evidence thus obtained would be excluded. * * * ” (4 Wigmore on
Evidence, 2d ed., par. 2184.)
In the
Silverthorne Lumber Co. case the United States Supreme Court adhered to
its decision in the Weeks Case. The doctrine laid down in these cases
has been followed by some of the State courts but has been severely
criticized and does not appear to have been generally accepted. But
assuming, without deciding, that it prevails in this jurisdiction it
is, nevertheless, under the decisions in the Weeks and Silverthorne
cases, inapplicable to the present case. Here the illegality of the
search and seizure was not “directly litigated and established by a
motion, made before trial, for the return of the things seized.”
The letter Exhibit L must, however, be excluded for reasons not
discussed in the briefs. The letter was written by the wife of the
defendant and if she had testified at the trial the letter might have
been admissible to impeach her testimony, but she was not put on the
witness-stand and the letter was therefore not offered for that
purpose. If the defendant either by answer or otherwise had indicated
his assent to the statements contained in the letter it might also have
been admissible, but such is not the case here; the fact that he had
the letter in his possession is no indication of acquiescence or assent
on his part. The letter is therefore nothing but pure hearsay and its
admission in evidence violates the constitutional right of the
defendant in a criminal case to be confronted with the witnesses for
the prosecution and have the opportunity to cross-examine them. In this
respect there can be no difference between an ordinary communication
and one originally privileged.
The question is radically
different from that of the admissibility of testimony of a third party
as to a conversation between a husband and wife overheard by the
witness. Testimony of that character is admissible on the ground that
it relates to a conversation in which both spouses took part and on the
further ground that where the defendant has the opportunity to answer a
statement made to him by his spouse and fails to do so, his silence
implies assent. That cannot apply where the statement is contained in
an unanswered letter.
The Attorney-General in support of the contrary view quotes Wigmore, as follows:
” * * * Express communication is always a proper mode of evidencing knowledge or belief. Communication to a husband or wife
is always receivable to show probable knowledge by the other (except
where they are living apart or are not in good terms), because, while
it is not certain that the one will tell the other, and while the
probability is less upon some subjects than upon others, still there is
always some probability,—which is all that can be fairly asked for
admissibility. * * * ” (1 Wigmore, id., par 261.)
This may possibly be good law, though Wigmore cites no authority in
support of his assertion, but as far as we can see it has little or
nothing to do with the present case.
As we have already
intimated, if Exhibit h is excluded, there is in our opinion not
sufficient evidence in the record to show that the crime was
premeditated.
The prosecution maintains that the crime was committed with alevosia.
This contention is based principally on the fact that one of the wounds
received by the deceased showed a downward direction indicating that
the deceased was sitting down when the wound was inflicted. We do not
think this fact is sufficient proof. The direction of the wound would
depend largely upon the manner in which the knife was held.
For the reasons stated we find the defendant guilty of simple homicide, without aggravating or extenuating circumstances.
The sentence appealed from is therefore modified by reducing the penalty to fourteen years, eight months and one day of reclusion temporal, with the corresponding accessory penalties and with the costs against the appellant. So ordered.
Johnson, Malcolm, Johns, and Romualdez, JJ., concur.
DISSENTING
VILLAMOR, J.:
His Honor, the judge who tried this case, inserts in his decision the testimony of the witness Lucio Javillonar as follows:
“The
witness, Lucio Javillonar, testified that he went to the office of the
deceased some minutes before six o’clock in that evening in order to
take him, as had previously been agreed upon between them, so that they
might retire together to Pasig, Rizal, where they resided then; that
having noticed that the deceased was busy in his office, talking with a
man about accounts, instead of entering, he stayed at the waiting room,
walking from one end to another, while waiting for that man to go out;
that in view of the pitch of the voice in which the conversation was
held between the deceased and his visitor, and what he had heard,
though little as it was, of said conversation, he believes that there
was not, nor could there have been, any change of hard words, dispute
or discussion of any kind; that shortly thereafter, he saw the screen
of the door of the deceased’s office suddenly open, and the deceased
rush out stained with blood, and followed closely by the accused who
then brandished a steel arm in the right hand; that upon seeing the
deceased and overtaking him, leaning upon one of the screens of the
door of a tailor shop a few feet from his office, slightly inclined to
the right, with the arms lowered and about to fall to the floor, the
accused stabbed him on the right side of the chest, thereby inflicting
a wound on the right nipple; and that then the accused descended the
staircase to escape away, at the same time that the deceased was
falling to the ground and was being taken by him with the assistance of
other persons from said place to a lancape (a sofa) where he died a few minutes later, unable to say a word.”
In deciding the question as to whether the act committed is murder,
with the qualifying circumstance of treachery, as claimed by the
Attorney-General, the trial judge says that the principal ground of the
prosecution for holding that the commission of the crime was attended
by the qualifying circumstance of treachery is a mere inference from
the testimony of Lucio Javillonar, and that the nature of the wounds
found on the epigastric region of the deceased and his back do not mean
anything, because they could have been inflicted while the deceased was
standing, seated or inclined.
A careful consideration of the
testimony of Lucio Javillonar, as set out in the judgment appealed
from, will show that, according to said eyewitness, the deceased was
with his arms lowered and about to fall to the floor when the accused
stabbed him on the right side of the chest with the weapon he was
carrying, thereby inflicting a wound on the right nipple, and that,
according to the doctor who examined the wounds, anyone of them could
have caused the death of the deceased. These being the facts proven, I
am of opinion that application must be made here of the doctrine laid
down by this court in the case of United States vs. Baluyot (40
Phil., 385), wherein it was held that “Even though a deadly attack may
be begun under conditions not exhibiting the feature of alevosia, yet if the assault is continued and the crime consummated with alevosia,
such circumstance may be taken into consideration as a qualifying
factor in the offense of murder.” I admit that none of the witnesses
who testified in this case has seen the beginning of the aggression;
but it positively appears from the testimony of the said witness Lucio
Javillonar that, notwithstanding that the deceased was already wounded
and about to fall to the floor, he struck him with another mortal blow
with the weapon he was carrying, which shows that the accused
consummated the crime with treachery.
For the foregoing, I
am of opinion that the judgment appealed from must be affirmed,
considering the act committed as murder, with the qualifying
circumstance of treachery, and in this sense I dissent from the
majority opinion.