THE UNITED STATES, PLAINTIFF AND APPELLEE, VS. A. A. ADDISON, DEFENDANT AND APPELLANT.

The defendant A. A. Addison, having been condemned to pay a fine of P100, to
indemnify the injured party in the sum of P500, with subsidiary imprisonment in
case of insolvency, and to the payment of the costs of the cause, for a
violation of the provisions of section 106 of General Orders No. 58, appealed to
this court.

On the 23d of December, 1912, the appellant subscribed and swore to an
affidavit wherein he stated that on or about the 20th of that month at 8.30 a.
m. he saw various bottles containing compounds of opium in an aparador
situated in the upstairs sala of the house of John McStay in Lucena,
Tayabas. On the same day the Court of First Instance issued a search warrant,
based upon that affidavit, directing the sheriff to search the house of McStay
and seize the opium. In compliance with this warrant the sheriff proceeded
immediately to search the house, but found nothing of a contraband nature, and
so reported to the court. Subsequent thereto, and on the 3d day of January,
1913, John McStay filed a sworn complaint (denuncia), charging the appellant
with the “crime of malicious prosecution” and alleging that the appellant did,
on the 23d day of December, 1912, willfully and maliciously, with the sole
intent and purpose of gratifying his personal resentment against the
complainant, procure and obtain, without any probable cause whatever, a search
warrant “of the person, residence, and place of business of the undersigned, by
signing and swearing before the Honorable Herbert D. Gale, judge of the Court of
First Instance, certain malicious, false, and defamatory statements, known to be
false and defamatory by said accused.” On the 11th of April, 1913, the
provincial fiscal filed a formal complaint against the appellant charging him
with the same crime and setting forth the same allegations as in the
complainant’s denuncia. After trial, the judgment above stated was duly
entered.

For the purpose of showing that the search warrant was procured “maliciously
and without probable cause,” the prosecution presented seven witnesses, who
testified substantially as follows:

Juan Merchan, clerk of the court, and Agapito Villa senor, sheriff, testified
only in reference to the filing of the affidavit upon which the search warrant
was based, the issuing of the warrant, and the search of the complainant’s
premises.

John McStay, the complainant, testified that for some time prior to the 23d
of December, 1912, he was running a hotel and canteen in Lucena, Tayabas; that
the appellant lived in his hotel from the 28th of September until the 23d of
December; that pn the 23d of December the appellant left his hotel on account of
certain disturbances which occurred therein on the previous night j that these
disturbances were caused by three of four guests, and disturbed the appellant’s
sleep; that on the following day the appellant had a quarrel with one of these
guests; that at the time he left he was angry and stated that he desired to
leave the hotel and would arrange his account on the following day; that when he
(the witness) bought the hotel he also bought the beds and the
aparadores; and that he and the appellant were friends, never having
had any trouble. As to the damages suffered by the complainant on account of the
search of his premises, he stated that some persons did not know whether he was
guilty or not, and, therefore, stayed away from his hotel during those days,
resulting in damaging him in the sum of P500.

James R, Gittings testified that he was one of the persons who were making
the noise in the hotel on the night of the 22d, while the appellant was sleeping
upstairs; that the appellant called their attention to these disturbances and
asked them to stop so that he could sleep; and that on the following day he and
the appellant had a quarrel.

Thomas Hoey, an internal-revenue agent, testified that he accompained the
sheriff at the time the complainant’s hotel was searched; and that he induced
the appellant to present the affidavit upon which the search warrant was based,
after the appellant had stated to him that opium could be found in McStay’s
possession.

Guy B. Shiller, principal of the Lucena High School, testified that he had a
conversation with the appellant and Hoey at the government building, and that he
heard Hoey ask the appellant if the latter would make an affidavit for the
purpose of securing the search warrant, and the appellant answered that he
would.

Jose Nieva, an employee in the Bureau of Agriculture, stated that he was
acquainted with Benigna Robles, a witness for the defendant; that on the 24th of
December he returned to Lucena from Manila, and that when the train stopped at
Calamba about 10 a. m., he saw Benigna Robles in the train.

The defense presented four witnesses; Joseph Rosemblatt, Charles R. Duffin,
Benigna Robles, and the appellant.

Rosemblatt testified that he lived in Lucena up until some time in the month
of August, 1912; that at that time a Mr. Salmon owned the canteen and hotel
which was searched by the sheriff; that he was in an automobile accident when
one of the passengers had his arm dislocated and, upon returning to Lucena after
the accident, they went to the drug store to get some opium liniment; that the
pharmacist refused to sell them this medicine without a doctor’s prescription;
that the following day he went to the canteen, which was located in the hotel,
and was then informed by a Mr. Henson that the canteen had some 25 bottles of
various kinds of medicines; that these bottles were shown him in an
aparador; and that on taking hold of one of the bottles he discovered
that it contained an opium mixture.

Duffin, who was a mechanical engineer at that time, stated that he knew the
canteen owner, at the time the search warrant was issued, to be McStay; that
when he first knew the hotel it was owned by one Henson; that at the time he
left Lucena McStay was negotiating for the purchase of that hotel; that he saw
in this hotel on various occasions opium in an aparador; and that this
aparador was upstairs.

Benigna Robles testified that she was a dancing girl in McStay’s saloon in
December, 1912; that two days before Christmas she saw Hoey and McStay talking
together in the hotel and heard Hoey use the word “Addison;” that after Hoey and
McStay terminated their conversation, Henson entered the room upstairs and took
out of the aparador some bottles and put them in his pocket; and that
that same afternoon the search was made.

Section 106 of General Orders No. 58 reads: “Any person who shall procure a
search warrant maliciously and without probable cause, and any officer who shall
unlawfully exceed his authority or use unnecessary severity in executing the
same, shall be punished by imprisonment for not more than one year or by a fine
of not exceeding one thousand pesos, or by both such fine and imprisonment.”

This section requires that both malice and absence of probable
cause must exist concurrently in order to justify a conviction. If the
appellant’s act in making the affidavit was malicious and unfounded, but there
was probable cause for such act, he must be acquitted. “In a legal sense’ says
Greenleaf (vol. 2, sec. 453, 16th. Ed.), “any unlawful act done willfully and
purposely to the injury of another; is, as against that person, malicious.”
Malice cannot be inferred from the fact that no opium was found in the house of
the complainant by the sheriff.

“Probable cause may be defined as such reasons, supported by facts and
circumstances, as will warrant a cautious man in the belief that his action, and
the means taken in prosecuting it, are legally just and proper.” (Burton
vs. St. Paul, M. & M. Ry. Co., 33 Minn., 189.)

Addison lived in McStay’s hotel from September 28 to December 23, when he
left on account of certain disturbances in the hotel on the night of the 22d.’
McStay took no part in these disturbances. He and Addison were, according to his
own testimony, friends. But it is said that the fact that Addison in effect
charged McStay with the commission of a serious crime is inconsistent with the
latter’s testimony to the effect that they were friends. McStay said that they
were friends, and he is the person who claims to have been injured. Again,
Addison was induced by the internal-revenue agent to make the affidavit. In so
doing he was carrying out his obligation as an “informer,” and as such informer
he had reasonable cause to believe that he would be rewarded therefor in
accordance with certain provisions of the Opium Law.

Rosemblatt testified that he saw opium in the aparador before McStay bought
the hotel. Duffin testified to the same effect and, also, that at the time he
saw the opium McStay was negotiating for the purchase of the hoteL Benigna
Robles said that she saw opium in the hotel two days before Christmas. She also
testified in effect that McStay was notified of the issuance of a search warrant
and caused the opium to be removed. The prosecution attempted to show that this
witness was not in Lucena on the 23d of December, and for this purpose presented
Jose Nieva, who testified that on his return to Lucena on the 24th he saw
Benigna in the train at Calamba. It does not appear that Benigna could not have
come to Manila on the afternoon or night of the 23d, or even on the morning of
the 24th. We must, therefore, conclude that there was an absence of malice on
the part of the defendant in making the affidavit and that there existed
probable cause for making the affidavit.

For the foregoing reasons the judgment appealed from is reversed and the
defendant acquitted, with costs de officio.

Arellano, C. J., Torres, Carson, Moreland, and Araullo,
JJ., concur.