THE UNITED STATES, PLAINTIFF AND APPELLEE, VS. JUAN LABIAL AND ARCADIO ABUSO, DEFENDANTS AND APPELLANTS.

The appellants in this case were convicted in the court below of a violation
of paragraph 1 of section 30 of the Election Law, in that they voted illegally
at the general elections held in the municipality of Mambajao, Province of
Misamis, P. I., on June 4, 1912.

The evidence of record conclusively establishes the guilt of the appellants
of the offense with which they are charged and of which they were convicted, and
we find no error in the proceedings prejudicial to the rights of the
accused.

So far as can be gathered from the record, the accused were not represented
by counsel at the trial of the case in the court below, and it does not
affirmatively appear from the record whether the trial judge did or did not
comply with the provisions of section 17 of General Orders No. 58 as amended by
section 1 of Act No. 440, which are as follows:

“If the defendant appears without counsel, he must be informed by the court
that it is his right to have counsel before being arraigned, and must be asked
if he desires the aid of counsel. If he desires and is unable to employ counsel,
the court must assign counsel to defend him. A reasonable time must be allowed
for procuring counsel. Section 1 of Act No. 440 provides:

“Section seventeen of General Order Number Fifty-eight, issued from the
office of the United States Military Governor in the Philippine Islands on the
twenty-third day of April, nineteen hundred, relating to criminal procedure, is
hereby amended by adding at the end thereof the following words:

“The counsel so employed or assigned must be a duly authorized member of the
bar: Provided, nevertheless, That in provinces where duly authorized
members of the bar are not available, the court may, in its discretion, admit or
assign some person, resident in the province and of good repute for probity and
ability, to act as counsel for the defendant, although the person so admitted or
assigned be not a duly authorized member of the bar.’ “

Counsel for appellants insists that the judgment of the lower court should be
reversed and the appellants acquitted because of the failure of the record to
show that the trial judge complied with these provisions of law; and the
Attorney-General in a motion dated October 20, 1913, appears to be in accord
with counsel for the appellants as to the reversal of the judgment of
conviction, but prays that the case be remanded to the court below for a new
trial.

In the case of the United States vs. Santos (4 Phil. Rep., 419),
this court said: “If on answering the complaint he (the defendant) did so
without the assistance of a lawyer, this would not be ground for alleging a
defect in the procedure. To be able to urge this, it should first appear that
the defendant had asked for the assistance of a lawyer to answer the complaint
and that the trial had proceeded without any attention being paid to his
request.”

Adhering to the doctrine laid down in that case, the only question to be
determined in this case is whether the failure of the record to disclose
affirmatively that the trial judge advised the accused of their right to have
counsel is sufficient ground to reverse the judgment of conviction and to send
the case back for a new trial. Upon this point we are all agreed that in the
absence of an affirmative showing that the court below did in fact fail to
advise the accused of their rights under the provisions of section 17 of General
Orders No. 58, as amended by section 1 of Act No. 440, the mere omission from
the record brought here upon appeal of an entry affirmatively disclosing that he
did so, is not reversible error.

In the absence of an affirmative showing to the contrary, the court below
must be presumed in matters, of this kind to have complied with the provisions
of law prescribing the procedure to be followed in the trial had before him.

In Elliott’s Appellate Procedure, section 291, the rule as to presumptions in
favor of the legality and regularity of the proceedings in trial courts, is
stated as follows:

“It is an established rule in criminal cases, as well as in civil cases, that
the appellate tribunal will indulge all reasonable presumptions in favor of the
legality and regularity of the proceedings of the trial court. Where all the
instructions are not in the record those asked by the defendant will be presumed
to have been properly refused because included in the instructions given. Where
the evidence is not in the record it will be presumed that the instructions were
based upon it, and that there was no error, but if the instructions can not be
correct upon any supposable state of the evidence this presumption will not
prevail. It is held that where the record shows the presence of the accused at
the beginning of the trial it will be presumed that he continued in court; this
presumption would certainly prevail where it appeared that the accused had an
opportunity to make, and did make, all of the motions that could be of service
to him. It will be found, on investigation, that the rule that the trial court
is presumed to have done its duty and conducted the proceedings legally and
regularly is substantially the same in criminal cases as it is in civil cases.
There is no valid reason why the rule should be different, nor do the decided
cases warrant the conclusion that it is different; on the contrary, the
decisions very generally refer to civil cases in support of the conclusions
asserted. The doctrine deducible from the decided cases is, it may be said in a
general way, that the presumption is, that there was no prejudicial error, and
that error must be shown affirmatively by the record, or the presumption will
prevail.”

The doctrine is further expanded in section 710 of the same author, as
follows: “The rule that all reasonable presumptions and intendments will be made
in favor of the rulings of the trial court is one of the best settled and most
frequently applied rules in appellate procedure. The rule rests on a firm
foundation. It is supported by the elementary principle that official acts are
presumed to be rightfully performed. But when it is brought to mind that a court
acts impartially, upon full information and with calm deliberation, the
foundation of the rule stated will at once be perceived to be broader and
stronger than that which underlies the rule supporting the acts of ministerial
or executive officers.”

The doctrine, supported by many citations of
authority, is thus stated in the Encyclopedia of Pleading and Practice, volume
2, page 420: “The general assumption obtains in all legal proceedings that
judicial tribunals and officials act according to law. On appeal accordingly
from the decision of an inferior judicial tribunal an appellate court will
presume in review that it has complied with all the requirements of law, and
that its determination rested on facts sufficient to sustain them. The burden
rests upon the appellant to rebut this presumption of regularity.”

In Barnes’ Case (92 Va., 794, 803), the court said:

“It is also assigned as error by the accused that she was tried and convicted
without the assistance of counsel in making her defense.

“The record does not show whether she had counsel or not; but if it showed
that she did not have counsel, unless it appeared that she was denied that
right, it would not be ground for reversing the judgment. Every person accused
of crime has a right to have counsel to aid him in making his defense, but no
one is compelled to have counsel. If a person accused of crime is able to employ
counsel, but declines to do so, and goes to trial without ^counsel, and is
convicted, that is no ground for reversing the judgment.

“If a prisoner is unable to employ counsel, the court may appoint some one to
defend him, and it is a duty which counsel owes to his profession, to the court
engaged in the trial, to the administration of justice, and to humanity, not to
withhold his aid, nor spare his best efforts in the defense of one ‘who has the
double misfortune to be stricken with poverty and accused of crime. No one is at
liberty to decline such an appointment, and few, it is to be hoped, would be
disposed to do so.’ (Cooley’s Const. Lim., 406,) But we cannot presume that the
trial court denied the prisoner her right to have counsel, or failed, if she
were unable to employ counsel, to assign some one to aid her in her
defense.”

So it has been held that “Where the record once shows the presence of the
prisoner at his trial, it will be presumed to have continued to the end unless
the contrary is affirmatively shown. The presumption is, rather, that the trial
court did its duty, than that it did not.” (Folden vs. State, 13 Neb.,
328, 332.)

And again: “Another specification of error is, that the record does not show
that the prisoner had counsel at the trial. It is based upon an alleged
presumption against the regularity of the proceedings—a presumption directly
opposite to that which we have shown to exist. It assumes that those rights of
the prisoner were denied to him, which the record does not show affirmatively
were granted. As well might it be assumed that the court charged the jury
erroneously, and the Commonwealth be required to prove that the charge was in
all points correct, even before it is attacked. The right to be heard by himself
and counsel is doubtless a constitutional right, and if it had been denied there
would have been error; but we are not to presume that it was denied, because the
record does not exhibit the fact that it was accorded. There are many rights of
an accused person, some constitutional and others not, of which the record takes
no notice—such as the right to compulsory process for witnesses, the right to
call witnesses, or to cross-examine those,of the prosecution; and the right to
be heard by himself and counsel is one of them. The safety of the accused is not
imperiled by the silence of the record; for, if any of these rights be denied,
there is an easy method of bringing upon the record the fact of the denial.”
(Cathcart vs. Commonwealth, 37 Pa. St., 108, 111.)

In the case of Beale vs. Commonwealth (25 Pa. St., 11, 18), the
court held: “We are not to expect too much from the records of judicial
proceedings. They are memorials of the judgments and decrees of the judges, and
contain a general but not a particular detail of all that occurs before them. If
we should insist on finding every fact fully recorded before a citizen can be
punished for an offense against the laws, we should destroy public justice, and
give unbridled license to crime. Much must be left to intendment and
presumption, for it is often less difficult to do things correctly than to
describe them correctly.”

Before closing our discussion of the rule as applied to this case, we deem it
proper to indicate that although we do not hold the omission of an affirmative
entry in the record showing that the trial judge had advised the accused as to
his right to have counsel and that the accused had been asked if he desired the
aid of counsel to be reversible error, nevertheless we think that in all cases
wherein the accused is not defended by counsel the record should be made to show
affirmatively that the trial judge has complied with the provisions of the
statute in this regard. As was said by the supreme court of New Mexico, after
making a somewhat similar ruling as to the effect in appellate proceedings of
omissions from the record:

“Notwithstanding this ruling, we would not advise that a custom so honored by
time and high authority should be disregarded under any circumstances.”
(Territory vs. Webb, 2 N. M., 147, 160.)

The judgment entered in the court belpw convicting and sentencing the
defendants should be affirmed, with their respective share of the costs of this
instance against the appellants. So ordered.

Arellano, C. J., Moreland, Trent, and Araullo JJ.,
concur.