FIRST DIVISION

[G.R. No. 7707. December 6, 1912.]

THE UNITED STATES , plaintiff-appellee, vs . CHING PO , defendant-

appellant.

Frederick Garfield Waite for appellant.

Solicitor-General Harvey for appellee.

SYLLABUS

1. OPIUM LAW; MUNICIPAL ORDINANCE; JEOPARDY. — An acquittal under a

complaint charging the defendant with a violation of a city ordinance, making it a crime
to visit or be in a house where opium is kept and used upon the person, and can not be
pleaded as autre fois acquit to a complaint for a violation of the Opium Law (a law of
the Philippine Commission). The offenses are not the same. The Act of Congress
prohibiting double jeopardy only applies when the offenses are the same. The
conviction or acquittal upon one complaint is no bar to a subsequent conviction and
sentence upon another complaint, unless the evidence required to support a conviction
upon one would have been su cient to warrant a conviction upon the other. The
decision as to former jeopardy is not whether the defendant has already been tried for
the same act, but whether he has been put in jeopardy for the same offense.
2. EVIDENCE; ADMISSIBILITY OF DECLARATIONS BY DEFENDANT UPON A
FORMER TRIAL. — The rule seems to be well settled that the declarations made by a
defendant, or a third party by his authority, if relevant, are admissible against one
charged with a crime. If the defendant has made statements constituting an admission
of the facts charged in the complaint, or relevant thereto, they are admissible against
him. A man's acts, conduct and declarations, wherever made, provided there are
voluntary, are admissible against him, for the reason that it is fair to presume that they
correspond with the truth, and it is the fault, if they do not. If a man's extrajudicial
admissions are admissible against him, there seems to be no reason why his
admissions made in open court, under oath, should not be accepted against him.

DECISION

JOHNSON , J : p

This defendant was charged with a violation of the Opium Law. The complaint
alleged:
"That on or about the eighth day of October, 1911, in the city of Manila,
Philippine Islands, the said Ching Po was, willfully, illegally, and criminally, the
owner of, and had in his power and possession and under his control, 18 grams
of opium, a prohibited drug, without being lawfully authorized so to do."
After hearing the evidence, the Honorable A. S. Cross eld, judge, found the
defendant guilty of the crime charged in the complaint, and sentenced him to pay a ne
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 of P300 and the costs.
From that sentence the defendant appealed. In this court the appellant makes
the following assignments of error:
First. That the trial court erred in not sustaining the defendant's plea of former
jeopardy.
Second. That the trial court erred in receiving as evidence against the defendant
the testimony given by him upon his trial in a certain other cause in the Court of First
Instance of the city of Manila, No. 7949, entitled "The City of Manila vs. Ching Po et al.,'
over the objection of the defendant.
From an examination of the record it appears that the following statement of fact
made by the appellant in his brief is substantially correct:
It appears by the record that the defendant in this cause was tried and convicted
before the municipal court of the city of Manila in a certain cause entitled "The City of
Manila vs. Ching Po et al.," wherein said Ching Po was charged, together with others,
"with visiting and being in a house where opium was kept and used upon the person," in
violation of Ordinance No. 152 of the said city of Manila; that said defendant, together
with his codefendants appealed said cause to the Court of First Instance of the city of
Manila; that upon the trial of said appeal in the Court of First Instance on November 3,
1911, the defendant herein testi ed that a certain amount of opium (18 grams) and an
opium pipe found by the police at No. 26 Calle Chica, Manila, where said defendant
lived, belonged to him and was in his possession and under his control; that upon the
trial of said cause No. 7949 in the Court of First Instance said Ching Po was acquitted;
that immediately succeeding said trial and acquittal in said cause No. 7949, the
complaint in the present cause was presented and the defendant rearrested and
charged "with having in his possession and under his control the same opium and pipe"
referred to and testi ed to by him in the former trial; that at the time of arraignment, a
plea of former jeopardy was presented by the defendant and overruled and due
exception taken and that thereafter the prosecution was permitted by the trial court, in
spite of the objection of said defendant, to introduce in evidence in this cause the
testimony of the defendant upon his trial in said former cause to the effect, as above
stated, that he was the owner and in possession of said opium and pipe.
Bearing these facts in mind, with reference to the rst assignment of error, it will
be noted that the crime of which the defendant had been acquitted in said cause No.
7949 was a criminal action for a violation of ordinance No. 152, which ordinance
provided for the punishment of those who "visited houses where opium was kept and
used upon the person;" whereas, in the present case, the defendant was accused of the
crime of "being the owner and having in his possession and under his control 18 grams
of opium in violation of the Opium Law." It will be seen, therefore, that the crime of
which the defendant was accused and acquitted in cause No. 7949 was a different and
distinct offense from that with which he is charged in the present case. Being,
therefore, a distinct and different offense, it is di cult to imagine how the plea of
former jeopardy could effectively be interposed.
The Philippine Bill (Act of Congress of July 1, 1902) in section 5, among other
things provides, that no person shall be held to answer for a criminal offense without
due process of law; and no person, for the same offense, shall be twice put in jeopardy
of punishment, nor shall he be compelled in a criminal case to be a witness against
himself.
Under these provisions it will be noted that the prohibition against being twice
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 placed in jeopardy only relates to being placed in jeopardy twice for the same offense.
If the offenses are not the same, certainly the provisions of the Act of Congress can not
be invoked for the purpose of securing the acquittal of the defendant under the second
complaint. Unless it clearly appears that the rst and second offenses are the same,
the accused can not claim the bene t of autre fois acquit or autre fois convict. In the
present case, under the statement of facts of the appellant, it clearly appears that the
offenses are not the same. The rst was a violation of a city ordinance, prohibiting
persons from "visiting a house where opium was kept and used upon the person, etc."
The second offense, the one under which the defendant is here accused, is that of the
violation of a law of the Commission, known as the Opium Law.
A conviction or acquittal upon one complaint is no bar to a subsequent
conviction and sentence upon another complaint, unless the evidence required to
support the conviction upon one of such complaints would have been su cient to
warrant a conviction upon the other. The test as to former jeopardy is not whether the
defendant has already been tried for the same act, but whether he has been put in
jeopardy for the same offense. (Morey vs. Commonwealth, 108 Mass., 433; U. S. vs.
Chan-Cun-Chay, 5 Phil. Rep., 385; U. S. vs. Flemister, 5 Phil. Rep., 650; same case, 207 U.
S., 372; U. S. vs. Gavieres, 10 Phil. Rep., 694; same case, 220 U. S., 338; U. S. vs. Vallejo,
11 Phil. Rep., 193; Carter vs. McClaughry, 183 U. S., 365, 395; People vs. Hanrahan, 75
Mich., 611, 622; The State vs. Botkin, 71 Iowa, 87; 60 American State Reports, 780; 32
N. W. Reporter, 785; Ex Parte Hong Shen, 98 Cal., 681; City of St. Louis vs. Scheer, 235
Mo., 721; In re George Hoffman, 155 Cal., 114; State of Louisiana vs. Labatut, 39 La. An.,
513.)
We nd no reason for modifying the sentence of the lower court under the rst
assignment of error.
With reference to the second assignment of error, to wit, that the trial court erred
in receiving the testimony of the defendant, given in a former cause, as evidence against
him in this cause and basing his conviction thereon, it may be said, again adopting the
statement of facts of the appellant in his brief, that "it appears from the record herein
(evidence, pp. 20 and 21) that the undersigned attorney (the attorney for the defendant
in both cases) advised the defendant, prior to the trial of cause No. 7949, that he should
testify in said cause that he was the lessee of the house No. 26 Calle Chica, and that he
lived there, and that the opium found on the upper oor of said house belonged to him
and was in his possession and custody; that such evidence, so far from prejudicing him,
should have the effect of freeing him from the charge therein made against him. We
have, therefore, the express admission of the defendant in cause No. 7949, given in
open court, that he was the owner of the opium with which he is charged of having in his
possession in the present case. The fact that this admission was made by the
defendant was clearly proved during the trial of the present case by witnesses who
heard it. No attempt was made to show that the fact was not exactly as confessed by
the defendant.
With reference to the admissibility of the admissions and declarations of a
defendant charged with a crime, the rule seems to be that the declarations made by a
defendant or by a third party, by his authority, if relevant, are admissible against him. If
the defendant has made statements constituting an admission of the facts charged in
the complaint, or relevant to the charges in the complaint they are admissible against
him. (Commonwealth vs. Sanborn, 116 Mass., 61; People vs. Bosworth, 64 Hun (N. Y.),
72; People vs. Cassidy, 133 N. Y., 612; State vs. Behrman, 114 N. C., 797.)

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 The foregoing rule is based upon the presumption that no man would declare
anything against himself, unless such declarations were true. A man's acts, conduct,
and declarations, wherever made, provided they be voluntary, are admissible against
him, for the reason that it is fair to presume that they correspond with the truth, and it is
his fault if they do not. (Truby vs. Sevbert, 12 Pa. St., 101, 104.)
The procedure in criminal cases in the Philippine Islands provides that a
defendant in a criminal proceeding may be a witness in his own behalf. When he avails
himself of this right, he is subject to a rigid cross-examination and is bound by his
admissions, voluntarily given, in such examination. His admissions are presumed to be
given voluntarily and when thus given on a previous trial, they may be used against him
in a subsequent cause. (State vs. Glass, 50 Wis., 218; People vs. Kelley, 47 Cal., 125;
People vs. Gibbons, 43 Cal., 557.)
The rule is well established that a voluntary, unsworn statement of a person
charged with a crime, may be proved against him as a confession. If his voluntary
extrajudicial admissions are admissible against him, there seems to be no good reason
why his admissions made in open court, under oath, should not be accepted against
him.
In the case of People vs. Kelley (47 Cal., 125) the court said:
"If his voluntary, unsworn statements may be proved against him as a
confession, his voluntary testimony, under oath, given in a proceedings in which
he elects and is authorized to testify, ought to stand upon at least as favorable a
footing."
The justice of the foregoing rule seems to be fairly well illustrated in the following
example: Suppose the defendant in the present action, making the confession referred
to above, upon some ground or other had secured, on appeal, a new trial, and on that
new trial should give testimony materially different from that which he gave on the rst
trial. Could there be any doubt that in that case his testimony on the rst trial might be
given in evidence on the second, for the purpose of affecting his credibility and for the
purpose of in uencing the court with reference to his guilt? We have been unable to nd
any authority in jurisdictions where a defendant may declare in his own behalf
jurisprudence supporting the contention of the appellant.
Our conclusions are that the lower court committed no error in the trial of the
cause and in imposing the penalty in the present case. The sentence of the lower court
is, therefore, hereby affirmed with costs.
Arellano, C.J., Torres, Mapa, Carson, and Trent, JJ., concur.

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