THE PEOPLE OF THE PHILIPPINE ISLANDS, PLAINTIFF AND APPELLEE, VS. ANDRES COVACHA, DEFENDANT AND APPELLANT.

It appears from the record that on the 13th day of
January, 192S, the prosecuting attorney of the Province of Iloilo
presented a complaint against said defendant, charging him with the
offense of desacato. Said complaint alleged:

“Que en o hacia el 21 de mayo de 1927, el referido acusado, siendo
Sheriff Provincial Delegado, de la Provincia de Negros Occidental,
recibio como tal el emplazamiento y copia de la demanda en el asunto
civil No. 6077 del Juzgado de Primera Instancia de Iloilo, titulado
‘Hoskyn & Co., demandante, contra
Jose R. Borromeo, demandado,’ para su cumplimiento, pero en vez de
emplazar al citado demandado, cual era su deber, el citado acusado con
manifiesta negligencia en el desempeno de sus deberes, ilegal y
criminalmente no hizo caso, ni ha dado cuenta al citado Juzgado de
Primera Instancia de Iloilo de su cumplimiento hasta la fecha, no
obstante haber sido requerido por el abogado de Hoskyn & Co., que
diese cuenta de su cometido. Con infraction de la ley.”

Upon said complaint the defendant was duly arrested, arraigned,
pleaded not guilty, wias tried, found guilty of the offense of contempt
as defined in section 232 of Act No. 190, and sentenced to pay a fine
of P100, with subsidiary imprisonment in case of insolvency and to pay
the costs. From that sentence the defendant appealed, and now contends
that neither the facts stated in the complaint nor the evidence adduced
during the trial show that he is guilty of the offense of contempt. The
Attorney-General in a carefully prepared brief reached the conclusion
that the facts stated in the complaint and proved during the trial are
sufficient to justify the sentence of the lower court, and recommends
its confirmation.

The facts upon which the lower court found the defendant guilty of contempt, are stated in its decision as follows:

“Son hechos probados en esta causa que, presentada
en este Juzgado de Primera Instancia una demanda civil, registrada con
el No. 6077, en que era demandante Hoskyn & Co., representada por
el abogado Sr. Jose F. Orozco, y habiendose expedido el correspondiente
emplazamiento del demandado Jose R. Borromeo, residente en Negros,
dicho abogado Sr. Orozco, en 16 de mayo de 1927, por correo certificado
remitio al Sheriff Provincial de Negros Occidental el citado
emplazamiento del demandado acornpanado de la carta, cuya copia es el
Exhibit A; y el Sheriff Provincial de Negros Occidental, con residencia
en Bacolod, cabecera de la provincia recibio dichos carta y
emplazamiento el 21 de mayo de 1927, segun la tarjeta de la Oficina de
Correos, Exhibit B. No habiendo recibido contestacion alguna el abogado
Sr. Orozco, en 24 de junio de 1927, por correo certificado, dirigio ai
Sheriff Provincial de Negros Occidental la carta, cuya copia es el
Exhibit C, preguntando si no ha sido emplazado el demandado Jose R.
Borromeo en la causa civil No. 6077. Esta segunda carta, tampoco obtuvo
contestacion, y por tal motivo el abogado Sr. Orozco, en 24 de julio de
1927, dirigio al Sheriff Provincial de Negros Occidental la carta cuya
copia es el Exhibit E, donde se preguntaba al Sheriff por el resultado
del emplazamiento del demandado Jose R. Borromeo.

“Esta
tercera carta del abogado Sr. Orozco mereci6 al fin la contestacion
Exhibit F, escrita por el acusado en esta causa, que actuaba como
Sheriff Provincial delegado de Negros Occidental, en representation del
Sheriff Provincial, que era el Gobernador Provincial de Negros
Occidental. En esta carta el acusado Andres Covacha se limita a
informar al abogado Sr. Orozco que el emplazamiento del demandado Jose
R. Borromeo en la causa civil No. 6077 ha sido remitido al Sheriff
delegado Roque F. Marco en 9 de junio de 1927 y no devuelto hasta la
fecha de la carta, 27 de julio de 1927.

“El
emplazamiento del demandado Jose R. Borromeo en la causa civil No. 6077
del Juzgado de Primera Instancia de Iloilo, enviado al Sheriff
Provincial de Negros Occidental desde el 16 de mayo de 1927, hasta
ahora no ha sido cumplimentado por dicho Sheriff Provincial; y el
abogado Sr. Orozco, como abogado de la demandante Hoskyn & Co. en
la citada causa civil No. 6077 tuvo que pedir al Juzgado el
nombramiento de un Sheriff especial y un nuevo emplazamiento del citado
demandado, para que este emplazamiento pueda ser cumplimentado.

* * * * * * *

“El
emplazamiento del demandado Jose R. Borromeo en la causa civil No. 6077
de este Juzgado de Primera Instancia, fue enviado al Sheriff Provincial
de Negros Occidental para su cumplimiento; y este emplazamiento fue
recibido por el acusado en esta causa, en su capacidad de Sheriff
Provincial delegado, el unico nombrado por el Sheriff Provincial o
Gobernador Provincial de Negros Occidental; y al proceder dicho acusado
cpij dicho emplazamiento, en la forma en que lo ha hecho como ha
resultado y probado en la vista de esta causa, dicho acusado incurrio
en el delito de desacato definido en el articulo 23, del Codigo de
Procedimiento Civil.”

The facts, as disclosed by the record, are simple and may be stated as follows:

(1) That during the period from May 16, 1927, to March 13, 1928, the
defendant was a deputy provincial sheriff of the Province of Occidental
Negros, in charge of the office of the provincial sheriff; and that the
provincial sheriff was the governor of said province, Hon. Jose C.
Locsin.

(2) That on May 21, 1927, a letter was received in the office of the
provincial sheriff of Occidental Negros from Attorney Jose F. Orozco,
together with a summons directed to Jose R. Borromeo, a resident of the
municipality of Bago, of said province, who was the defendant in a
civil case then pending in the Court of First Instance of Iloilo. Said
letter was addressed to the “Sr. Sheriff Provincial, Bacolod, Negros
Occidental.” In said letter Orozco requested the provincial sheriff to
serve upon said Borromeo the summons and to make a return of the
service. (Exhibits A and B.)

(3) ‘That the defendant, as the officer in charge of the office of
the provincial sheriff, transmitted said summons on June 9, 1927, that
is, nineteen days after its receipt, to Roque F. Marco, another deputy
sheriff, who was in charge of serving summonses in that section of the
province where the municipality of Bago is located.

(4) That on June 24, 1927, Attorney Orozco sent a letter to the
provincial sheriff of Occidental Negros, inquiring about said summons,
which letter was received in the office of the provincial sheriff on
July 5, 1927. (Exhibits C and D.) Orozco received no reply to said
letter.

(5) That on July 24, 1927, Orozco sent to the provincial sheriff a
second letter of inquiry (Exhibit E), to which the defendant on July
27, 1927, answered, stating that the summons had been sent to deputy
sheriff Roque F. Marco on June 9, 1927, and that the latter had not yet
made a return of service. (Exhibit F.)

(6) That up to the date of the trial (March 13, 1928) no return of
service of said summons has been made by the defendant, and that Orozco
had to get another summons and a special sheriff to serve the same.

From the foregoing facts it clearly appears that the defendant,
acting as provincial sheriff of Occidental Negros, without excuse or
justification and with misbehavior and gross negligence in the
performance of his official duties, failed to make return of service of
a summons sent to him. He made no effort during the trial of the cause
to justify or to excuse his failure to comply with the order of the
court in serving said summons. Under the provisions of the
Administrative Code the sheriff and his deputies are officers of the
court, and as such, must comply with the orders and serve the processes
of the court.

Section 183 of the Administrative Code enumerates the powers and
duties of provincial sheriff. Paragraph (c) of said section provides
that the sheriff “shall serve all writs, execute all processes, and
carry into effect all orders issuing from the Court of First Instance
or made by any judge thereof, etc.” It is therefore an official duty of
the sheriff, as an officer of the court, to serve all summonses and
proesses and to make a return of the service of such orders and
processes to the court. The sheriff is an officer of Sttye court.”

The question which now arises is: Does the failure of the defendant,
as provincial sheriff and as an officer of the court, to make a return,
of service of the summons sent to him, addressed to Jose R. Borromeo,
amount to a contempt of court, as that phrase is defined in section 232
of Act No. 190?

Section 232 of Act No. 190, as amended by Act No. 3170, reads as follows:

“SEC. 232. What other Acts are contempts of court—A person guilty of any of the following acts may be punished as for contempt:

“1.
Disobedience of or resistance to a lawful writ, process, order,
judgment, or command of a court, or injunction granted by a court or
judge;

“2. Misbehavior of an officer of the court in the performance of his official duties, or in his official transactions ;

“3. A failure to obey a subpoena duly served;

“4.
The rescue, or attempted rescue, of a person or property in the custody
of an officer toy virtue of an order or process of the court held by
him; and

“5. The person defeated in a civil action concerning
the ownership or possession of real estate who, after having been
evicted by the sheriff from the realty, etc., shall enter or attempt
tx> enter upon the same for the purpose of executing acts of
ownership or possession, etc.”

The foregoing provisions of section 232 of Act No. 190 enumerate the
acts which are considered as contempts of court. “Misbehavior” is
defined; by Bouvier as “improper or unlawful conduct.” (Vol. 2,
Bouvier’s law Dictionary, p. 2221.) “Misbehavior” may further be
defined as a wilful refusal or negligent failure, without just cause,
of an officer of the court to comply with an order of the court.

The Attorney-General in recommending a confirmation of the sentence
appealed from, relies not only on section 232 of Act No. 190 but also
on the decision of this court in the case of United States vs.
Manalo (14 Phil., 747). In that case this court, speaking through Mr.
Justice Moreland, said: “Defendant was convicted of neglect of official
duty as a deputy sheriff, having failed to arrest one of the two
persons named in an order of arrest issued by the court below, and was
sentenced, under section 232-240 of the Code of Civil Procedure, to pay
a fine of P100, with twenty-five days imprisonment in case of
insovency. An officer of the court who is negligent in the performance
of his official duties held to be guilty of contempt, it being
essential for the proper administration of justice that courts have
complete control over the official acts of those through whom the
administration of their affairs proceeds.”

In the present case the appellant was a deputy sheriff and an
officer of the court. He willfully and negligently failed to serve a
process of the court, thereby interfering with the due and regular
procedure of the work of the court. It is not only admitted, but the
record clearly shows, that a regular summons was issued by the clerk of
the court and placed in the hands of the appellant, who failed utterly
to serve the same. He does not even now attempt to justify his failure
to comply with the order of the court and the law. He received the
summons on the 21st day of May, 1927, and never did serve the same. He,
therefore, contemptuously violated the order of the court and
interfered with the due administration of justice. We fully agree with
the findings of the lower court upon the question of the interference
with the administration of justice by the appellant’s refusal to serve
said summons.

Some question has been raised concerning tne sufficiency of the
evidence found in the record to justify the sentence of the lower
court. Some objection has been made because tihe copy of the summons
was not made a part of the record.

The record clearly discloses that the regular summons provided for
by law was issued in the regular way and placed in the hands of the
defendant to be served. We think that the evidence amply justifies the
conclusions of the lower court. A careful study of the entire record
and the law applicable to the facts, fully justifies the findings of
the lower court and the sentence imposed by it.

And, without any further argument, we are of the opinion and so
decide that the defendant is guilty of contempt as defined in section
232 of Act No. 190, as has been interpreted by this court. Much more
might be said concerning1 the culpability of the defendant as an
officer of the court, who directly and perhaps intentionally interfered
with the administration of justice. We find no escape from a
confirmation of the sentence appealed from. The same is, therefore,
hereby affirmed, with costs. It is so ordered.

Street, Malcolm, Villamor, Ostrand, Romualdez, and Villa-Real, JJ., concur.

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DISSENTING

JOHNS, J.:

We concede that, if it be a fact that in this case a legal summons
was duly issued out of the court and by the clerk of the court and
under the seal of the court, and that such facts are proven by
competent evidence, the defendant would then be guilty of contempt of
court under subdivision 2, section 232, of Act No. 190, as amended by
Act No. 3170, and that he should be severely punished.

We also concede that where it can legally do so, it is the duty of the court to prevent delay in the administration of justice.

Even so contempt proceedings are quasi judicial and are to
be tried and tested by the rules of criminal law and criminal evidence.
Hence, to sustain the conviction in this case, it devolved upon the
prosecution to both allege and prove that the summons in question was
issued by the clerk of the court, by order of the court and under the
seal of the court, and that in all things and respects, it was a legal
summons, and there is no legal proof in the record that the summons in
question was ever issued by the clerk of the court, by order of the
court or under the seal of the court. Neither the summons in question
nor an authenticated copy was ever offered in evidence, and are not in
the record, and there is no legal proof of any kind, nature or
description that the summons in question was issued by the clerk of the
court, by order of the court or under the seal of the court. In the
absence of such proof, upon what legal principle can the defendant be
found guilty of contempt of court for the failure or neglect to serve a
summons which, to be valid, must be issued by the clerk, by order of
the court and under the seal of the court? In addition to all that, the
clerk of the court, who is the only person wjho has a legal right to
issue a summons, was not even called as a witness for the prosecution,
and hence never testified that he ever issued the summons in question
in any manner, shape or form. In the instant case, the defendant has
been tried and found guilty upon the bare and naked assumption that he
was guilty, and it devolved upon him to prove his innocence. That is
not the law. It devolved upon the prosecution to prove his guilt beyond
a reasonable doubt, and upon that question there is not only a failure
of proof, but there is no legal proof of any kind that the summons
placed in the hands of the defendant for service was ever issued by the
clerk of the court on the order of the court or that it was under the
seal of the court, and for such reasons, I dissent from the majority
opinion.