THE PEOPLE OF THE PHILIPPINE ISLANDS, PLAINTIFF AND APPELLEE, VS. PRIMITIVO TRINIDAD, DEFENDANT AND APPELLANT.

The crime charged is calumny. The trial court sentenced the
defendant to four months and twenty-one days therefor, plus a fine
under article 454, No. 1, of the Penal Code, considering that the crime
imputed by the defendant is a serious felony.

In the first assignment of error it is contended that the articles
of the Penal Code relative to calumny are not applicable to witnesses,
inasmuch as under the judicial procedure prevailing when the Code was
promulgated, the testimony of witnesses was secret, whereas judicial
hearings are now public.

There is no merit in this assignment of error: under the present
Penal Code, whether the testimony is secret or not, if it falsely
imputes a crime the prosecution of which should be de officio,
the person making the imputation is guilty of calumny under the general
terms of article 452 of the Penal Code. The penalties, however, are
different; if the testimony is public and in writing, the calumny falls
under article 453 of the Penal Code, but if it is secret and unwritten,
the calumny falls under article 454 of said Code.

The crime of calumny is penalized by article 452 irrespective of the
place or occasion where it is committed, so that wheresoever it may be
committed, if it contains the elements of calumny, the crime exists. If
the felony is committed at a judicial hearing, whether by a witness or
by any other person, the calumny is punishable, since, in order to
constitute calumny, the imputation must be false, and falsehood is
never privileged, in or out of court.

The second assignment of error maintains that such statements are
privileged because they were made in the course of a judicial
investigation; but, being false, they cannot be privileged. We have
just said that falsehood is never privileged.

The third assignment of error contends that such statements do not
constitute the felony charged, inasmuch as they do not impute a crime
liable to de officio prosecution, the imputation being that
Aldanese, the Collector of Customs, conspired and proposed the
importation of opium, and conspiracy and proposal are not penalized (U. S. vs.
Laserna, 21 Phil., 168). The Opium Law punishes anyone who assists in
the importation of opium (sec. 4, Act No. 2381). Moreover, the
imputation also included the crime penalized by article 355 of the
Penal Code, that is, dereliction of duty on the part of said Collector
of Customs, in failing to take action against the importation of opium.

The fourth assignment of error raises a question of fact, and we
believe the defendant has not proved his imputation. To our mind, the
evidence sufficiently shows such imputation to be false.

The fifth assignment of error has no merit.

Wherefore, the judgment appealed from is affirmed with costs against the appellant. So ordered.

Avanceña, C. J., Johnson, Ostrand, Johns, and Villa-Real, JJ., concur.

Villamor, J., dissents.