G.R. No.

L-5786 December 29, 1910

THE UNITED STATES, plaintiff-appellee,

vs.
LOUIS T. GRANT and WILLIAM KENNEDY, defendants-appellants.

O'Brien and De Witt for appellant Kennedy.

Haussermann, Cohn and Fisher for appellant Grant.
Attorney-General Villamor for appellee.

TRENT, J.:

The information filed in this case against the two accused is as follows:

The undersigned accuses Louis T. Grant and William Kennedy of the crime of illegal
importation, committed as follows:

That on or about the 28th day of July, 1909, in the city of Manila, Philippine Islands, the said
Louis T. Grant and William Kennedy, conspiring between themselves, did then and there,
wilfully, unlawfully, knowingly, fraudulently and feloniously import and bring into the
Philippine Islands from a foreign country, and assist in importing and bringing into the
Philippine Islands from a foreign country, contrary to law, goods, wares and merchandise, to-
wit; two hundred ten (210) kilos of prepared opium, of the value of P19,000, and eleven (11)
kilos of cocaine, a deviate of opium, of the value of P1,500, all of the total value of P20,500,
equal to and the equivalent of 102,500 pesetas, Philippine currency, and did then and there
receive and conceal, and assist in receiving and concealing said goods, wares, and
merchandise after importance knowing same to have been imported and brought into the
Philippine Islands contrary to law.

All in violation of section 341 of Act No. 355 of the Philippine Commission.

(Sgd.) L. M. SOUTHWORTH, Acting Prosecuting Attorney.

Subscribed and sworn to before me this eight day of October, 1909, in the city of Manila,
Philippine Islands, by L. M. Southworth, acting prosecuting attorney for the city of Manila.

(Sgd.) CHARLES S. LOBINGIER, Judge, Court of First Instance.

A preliminary investigation has heretofore been conducted under my direction, having

examined the witnesses under oath, in accordance with the provisions of section 39 of Act
No. 183 of the Philippine Commission, as amended by section 2 of Act No. 612 of the
Philippine Commission.

(Sgd.) L. M. SOUTHWORTH, Acting Prosecuting Attorney.

Subscribed and sworn to before me this eight day of October, 1909, in the city of Manila,
Philippine Islands, by L. M. Southworth, acting prosecuting attorney for the city of Manila.

(Sgd.) CHARLES S. LOBINGIER, Judge, Court of First Instance.

The case having been called for trial on the 18th of October, 1909, the assistant prosecuting
attorney appeared for the Government; O'Brien, De Witt and Waite for the defendant Kennedy;
Haussermann, Ortigas, Fisher & Cohn for the defendant Grant. The defendant Kennedy refused to
plea. The court, pursuant to section 24 of General Orders, No. 58, directed that a plea of not guilty
be entered for this defendant. Mr. Cohn, one of the counsel for the defendant, Grant, made the
following statement in open court in the presence of his client:

The defendant Grant enters a plea of "guilty" to the charge under circumstances which he
desires the court to takes into consideration before imposing sentence upon him. As there is
 a codefendant in this case who has entered a plea of "not guilty," or for whom a plea of not
guilty has been entered, it would be improper to make a statement of these circumstances at
this time. For the reason the defense asks the court for an opportunity to be heard for a
consideration of the circumstances, which the defense considers have a bearing upon the
penalty to be imposed, prior to fixing the penalty upon the defendant Grant. Plea of guilty
entered.

The COURT. The defendant Grant having pleaded guilty and a plea of not guilty having
been entered as to the defendant Kennedy and he having announced himself ready for the
trial the trial will now proceed.

After hearing the proofs adduced and arguments of counsel the trial court found these accused guilty
as charged in the complaint and sentenced each of them to one year's imprisonment and to pay
one-half the costs. The defendants appealed and have filed separate briefs with their corresponding
assignments or errors. In view of the exhaustive briefs filed by both the appellants and the
Government we think it pertinent to set forth in full the assignment of errors of each one of the
appellants.

(Appellant Kennedy.)

1. The court erred in refusing to grant the accused Kennedy a preliminary investigation in the
presence of accused and his attorney, and in having the testimony taken thereat reduced to
writing and attached to the record;

2. The court erred in refusing to dismiss the complaint against the accused Kennedy
because no evidence taken on the preliminary investigation was before the court upon which
to base a probable cause for his arrest; and in not holding that the accused was entitled to
appear and defend either in person or by counsel at every stage of the proceedings, it not
appearing affirmatively that the accused was present at any of the proceedings previous to
his arrest;

3. The court erred in overruling the demurrer, based upon the ground that the complaint
does not conform substantially to the prescribe form and that more than one offense is
charged;

4. The court erred in overruling the motion for a bill of particulars;

5. The court erred in holding that the accused Kennedy was guilty of conspiracy as charged,
in the absence of any statute penalizing the acts complained of as a conspiracy;

6. The court erred:

(a) In finding and attaching a significance to the fact that between five and six thousand
pesos was paid to the defendant Grant (to buy some contraband goods) on the date of his
first telegram to the representative in Hongkong;

(b) In accepting the evidence of the accused Grant as true after he had admitted that he had
perjured himself in his former testimony, giving it full credence and weight as against the
accused Kennedy;

(c) In finding that the defendant Kennedy waived his privilege of not testifying against himself
and presenting evidence which showed his moral delinquency in connection with the illegal
importation;

(d) In finding that the cablegram quoted on page 6 of the sentence, differs from the
defendant's testimony, and that Kennedy's agent was to obtain the opium and have it
shipped to Grant through Barker as an intermediary;

(e) In attaching any credence whatever to the testimony of detective Cooley in regard to
what Mr. Grant said in his presence;

(f) In finding that the accused Kennedy provided funds for the purchase and shipment of the
opium;
 (g) In finding that the terms of the agreement was as Grant and Cooley testified, after Grant's
admission of his having perjured himself in regard to the whole matter, instead of taking the
accused Kennedy's testimony as corroborated by the cablegrams;

7. The court erred in concluding that the defendants knowingly conspired together to import
and bring into the Philippine Islands the merchandise in question, and that the accused
Kennedy knowingly assisted in importing and bringing and facilitating the bringing of the said
opium and cocaine into the Philippine Islands;

8. The court erred in allowing a new complaint to be filed against the accused Kennedy
without his consent, before the dismissal of No. 5374, after issue was joined;

9. The court erred in permitting the codefendant Grant to testify for the Government after the
defendants had entered upon their defense without discharging him;

The court erred in failing to give the accused Kennedy the benefit of article 11 of the Penal
Code.

At the close of the Spanish typewritten brief filed on behalf of the defendant Kennedy the following
assignment of error is made which does not appear in the printed English brief:

The court erred in taking jurisdiction of this cause for the reason that, according to article
1718 of the Compiled Laws of the Commission, "all criminal violations, by any person, of this
title, or any of the Acts or laws mentioned in section 1668, shall be prosecuted by order and
under the supervision of the Insular Collector of Customs." It does not appear in the
complaint that the Collector of Customs did at any time order the prosecution of this case, or
that the trial of the same was had under his inspection, nor has it been proven that the same
has been done by his order.

(Appellant Grant.)

1. The Court of First Instance of the city of Manila was without jurisdiction to hear and
determine the above entitled cause.

2. The Court of First Instance erred in denying the motion of appellant for leave to withdraw
his plea of 'guilty' herein and to substitute therefor a plea of 'not guilty.'

3. The court erred in failing to declare the appellant acquitted of the offense of which he was
charged.

At the opening of the trial of this case in the court below, Mr. O'Brien, counsel for the defendant
Kennedy, made the following statement:

We wish to have it understood that all motions, demurrers and the orders ruling on the same
and the same plea entered in the separate case against Kennedy, are offered in this case.

No objection appears in the record to this offer, so the motions, demurrers, and orders referred to by
Mr. O'Brien form a part of the record and will be so considered.

Before proceeding to a consideration of the questions of law raised by the defendants we will note
the proceedings which took place in the trial of this case in the court below, and then consider the
facts.

On July 30, 1909, a complaint was filed against Louis T. Grant (criminal case No. 5270 of the Court
of First Instance of the city of Manila). On August 20, 1909, a complaint was filed against William
Kennedy in the same court (criminal case No. 5374), both complaints being exactly the same.
Kennedy appeared by his counsel in this case, No. 5374, and on the 25th of August asked for a
preliminary investigation to be held in the presence of the accused and his attorneys and that the
testimony in this preliminary investigation be reduced to writing and attached to the record. This
petition was denied on the 28th of that same month. On the same day the attorneys for Kennedy
filed a motion asking the court to dismiss this criminal case for the following reasons; first, that the
warrant was issued for the arrest of the defendant Kennedy without any sworn evidence in support
thereof; and, second, that no evidence taken on the preliminary investigation was before the court
upon which to base the order of arrest. This motion to dismiss was denied on the 7th of September.
On the 8th of that month a demurrer was filed, based upon two grounds; first, that the complaint did
not conform substantially to the prescribed form; and, second, that more than one offense was
charged. This demurrer was overruled on the 9th of the same month, and on the 11th a motion was
filed asking the court to direct the prosecuting attorney to furnish the accused with a bill of
particulars, setting forth whether or not he is going to be placed on trial for voluntarily, illegally, and
criminally importing and bringing into the Philippine Islands, or aiding and assisting in the illegal
importation of merchandise, or receiving and concealing this merchandise. This motion was likewise
denied on the 11th of the same month. The accused being arraigned upon this complaint on the 17th
day of that month pleaded not guilty. On the 8th of September counsel for the defendant Kennedy
moved the court and demanded that, owing to the fact that the two complaints against Kennedy and
Grant were identical in character and wording, except only the dates and the names of the
defendants, the prosecuting attorney file a new complaint against these two accused, charging them
jointly and severally with the commission of this crime. Subsequently thereto, and on the 8th of
October, the prosecuting attorneys asked that this complaint against Kennedy be dismissed for the
reason that he had filed a new complaint against said Kennedy, this new complaint being the one
upon which he was tried.

The defendant Grant went to Hongkong in June, 1909, for the purpose of buying some machinery for
the Philippines Gold Dredging Company, and remained in Hongkong from the 15th to the 19th,
arriving in Manila on his return on the 21st of that month. He bought part of the machinery from the
Wampoo Dock Company and a part of it from William Barker and Co. Barker was to ship this
machinery to Manila. Grant wrote E. B. Morris & Co., customs brokers in Manila, asking them to see
that this machinery be transshipped from the S. S. Tean to the S. S. Begonia, bound for Paracale
where this mining machinery was to be used, stating to Morris & Co. that he had arranged with the
customs authorities for the inspection of this machinery at the boat and that everything would go
through quickly and easily. On the 23rd of July Grant received the invoices for this machinery from
Barker & Co., which invoices included the main bulk and also items numbered in said invoices from
25 to 34, inclusive.

In a letter which Grant received about July 25th Barker explained the shipment of the extra nine
pieces of machinery and requested Grant to hand them over to a Mr. Francisco. Grant then told
Morris & Co. that certain parts of the machinery, referring to the nine pieces above enumerated,
were to be landed at the custom-house wharf. Eight of these nine pieces, consisting of four shaftings
and four columns, or boiler supports, were landed and moved to the shop of Mr. Taylor. There the
shaftings and columns were opened by the employees of Mr. Taylor in the presence of two
inspectors of the Bureau of Customs, and also in the presence of Mr. Taylor and Mr. Earnshaw, and
it was found that these shaftings and columns had been bored out and the hollow tubes filled with
tins of opium. Later, the other piece, a steam hoisting winch, was examined at the custom-house
and found to contain bottles of cocaine and morphine.

There were 210 kilos of opium and 11 kilos of cocaine and morphine. The legitimate price of opium
in Manila at this time was from fifty to sixty pesos per kilo; that is, when opium was imported for
pharmaceutical purposes, but opium sold illegitimately was worth from two to four hundred pesos
per kilo. These nine extra pieces of machinery which contained the opium, morphine, and cocaine
were landed in Manila on the 24th of July, 1909, and the defendant Grant was arrested on this
charge on the 30th of the same month. The defendant Kennedy was arrested on the 20th of August,
1909.

Before any of the machinery or the nine extra pieces were taken off of the S. S. Tean, Grant,
according to his testimony, had a conversation with Kennedy with reference to these nine extra
pieces, and in this conversation Kennedy informed him that there was opium aboard the boat
concealed in that machinery; that after this conversation he, Grant, arranged to have these nine
extra pieces of machinery landed on the river front. Morris testified that he landed these nine pieces
of machinery on the river front in accordance with instructions from Grant. So the opium, cocaine,
and morphine was brought into the Philippine Islands and landed without the intervention of the
customs authorities, except the granting of the permit, not knowing at the time this permit was
granted that these nine extra pieces contained contraband goods.

That this opium, cocaine, and morphine was illegally brought into the Philippine Islands from a
foreign country there can be no question. The defendant Kennedy insists that he had nothing
whatever to do with the importation of this opium, but admits that he did enter into an agreement to
purchase, when safely landed and delivered to him and after an examination to be made by him, the
four tubes and the opium contained in them for P8,800, or P10,000, Hongkong money.
The defendant Grant was called as a witness for the prosecution and testified on first examination
that he did not purchase these nine extra pieces of machinery in Hongkong and knew nothing about
them until he received the letter, Exhibit J, from Barker & Co. explaining the shipment of the same;
that on receipt of this letter he called on Francisco and afterwards consulted at various times with
Kennedy about these pieces and their contents. These nine pieces were included in the regular
invoice of machinery, dated in Hongkong the 15th of July, 1909, and the letter from Barker & Co.
was dated in the same city on the 23d of that month.

Grant was recalled by the prosecution near the close of the trial and admitted that he had testified
falsely with reference to his prior knowledge of the nine pieces of machinery and their contents, and
stated that he did know about this matter as the same had been arranged by prior agreement
between himself, Kennedy, and another party.

After Grant had been arrested an arrangement was made for him and Kennedy to have a
conversation about the illegal importation of this opium, and in pursuance of this arrangement
Kennedy went to Grant's hotel a little after eight p. m. on August 7, 1909, and there the matter was
discussed. By previous arrangement Cooley, a member of the secret service force of the Philippines
Constabulary, was secreted in the room where the conversation took place. The presence of Cooley
was not known to Kennedy. Cooley admits that he was anxious to find out who were connected with
the importation of this opium and counsel for defendant Kennedy insists that for this reason, and
also for the further reason that Cooley was a secret service agent, his testimony is not worthy of
credit as against that of Kennedy. As to what he heard during this conversation Cooley testified:

When he [Kennedy] first came in they passed the time of day and Grant asked Kennedy
what the news was from Hongkong. Kennedy replied that everything was all right. He had
just received a cable that the only people — the custom house people — the only thing that
the custom people had done was to take Mr. Barker before the United States consul in
Hongkong (p.60).

And then Grant asked him if he was not afraid they would get some of the people connected
with it in Hongkong. He said no, that all parties interested in Hongkong had been notified by
him both by cable and letter and had gone to Manchuria. On that point I am not sure whether
he said on the Manchuria or gone to Manchuria (p. 61).

Q. Did he say anything about the money; where the money came from? I mean by
he, Mr. Kennedy — A. Mr. Grant asked Mr. Kennedy if the parties who had prepared
the machinery with the opium for shipment had any financial interest in the matter
and Kennedy replied that they had two thousand pesos in the enterprise and that he,
Kennedy, had furnished the rest of a total of ten thousand five hundred pesos, two
thousand of which had been furnished by the Hongkong people.

Q. Who furnished the other? — A. Kennedy said he, Kennedy, did.

Q. Now did he say anything to Mr. Grant as to what Mr. Grant should do in regard to
the matter? — A. Yes, sir. Mr. Grant asked him the question, I want to talk to you and
find out what you want me to do in this matter. Mr. Kennedy replied make a strong
fight. I have already lost a good deal of money but I will stand attorney fees. I will pay
all lawyer's fees and fine. Do not implicate me in the matter. Mr. Grant said then, you
want me to stand pat and he said yes, I want you to stand pat (pp. 61, 66).

Q. State to the court then the conversation that occurred between Mrs. Grant and
Kennedy. — A. Mrs. Grant asked Kennedy if his brother was named Kennedy.
Kennedy said he is not my real brother. He is my foster brother. No, he has a
Chinese name, and Mrs. Grant then asked him — Mr. Kennedy you say you want Mr.
Grant not to talk. Suppose he goes to Bilibid what are you going to de then? He said
there is no danger of that. I have had the best lawyers tell me he can only get a fine
(p. 62).

Kennedy was called as a witness and testified in his own behalf. He stated that he had known Grant
about ten months, having met him for the first time in Hongkong in November, 1908; that Grant
came to his office about the 22d of June, 1909, and asked him to buy four tubes made in Hongkong
especially for the smuggling business. The price was to be P3,000 for the tubes and P2,500 more for
bringing them over to Manila and landing them with their contents. He did not deny having a
conversation with Grant on the 7th of August, 1909, in Grant's room at the hotel, but stated that
Grant called him by telephone and when he went there to have this interview Grant called him into
his, Grant's, bedroom and told him that he was in trouble and would have to make a hard fight and
asked him (Kennedy) to loan him P2,000, he, Grant, having invested P2,000 in this opium deal while
in Hongkong; that he refused to loan Grant this money. Kennedy flatly denied that he made the
statements to Grant in that conversation as set forth in Cooley'd testimony. In consequence of
Kennedy's first agreement with Grant, he (Kennedy), on the 22d of June, 1909, wrote to Hoyman, his
correspondent in Hongkong. This letter stated substantially Grant's offer and the tubes were then
kept by Barker, Grant's agent, in Hongkong. A letter of introduction to Barker from Grant was
enclosed. In reply Kennedy received a letter, dated the 29th of June, 1909, from his agent stating
that he had called upon Barker with regard to the tubes and that Barker refused to allow the writer of
the letter to see the tubes unless he, Barker, received five hundred pesos Mex. A third letter was
sent July 6, 1909, from Kennedy to Hoyman. This letter, among other things, contained the following:

Fe informed me that the goods in tubes must be ready so that it can meet the steamer which
is scheduled to said on July 20, 1909, and must not put anything on delay. Per instruction of
Fe you can got to see Barker and collect from him 6,500 dollars Mex.

Fe also informed me that the 2,000 dollars Mex. for his shares can be collected from Bar as
he has money deposited with him. You procure cloth for him, turn over to him and let him
pack and send. In case the amount is insufficient, you can collect sufficient amount from Bar.
We have formed a capital amounting to 10,000 dollars Mex., in equivalent to 8,800 pesos
Conant, with a view of buying this lot of cloth.

Mr. On has the share of 2,000 dollars Mex. Fe takes 2,000 dollars Mex., but the 2,000
dollars taken by Fe shall be included in the Hongkong shares of 8,000. The rate of exchange
is 88. The rest of it amounting to 6,000 dollars Mex., can be sold to the Hongkong people.

From the this date in either our letters or cable we should use the word cloth instead of
opium. Fe means Mr. Grant, Bar means Mr. Barker. We should use these signs in our letter
or cables." (Exhibit 3, p. 17.)

"Fe" refers to the defendant Grant; "Bar" to Barker, the former's Hongkong correspondent;
and "cloth" to the opium. In reply to Kennedy's letter of July 6th Hoyman said:

I will arrange everything with Mr. Barker in an early possible date. I will get money from Mr.
Barker to buy goods and then turn over to the same. In reference to the capital amount to be
raised for the purchase of the goods at Manila, my friends at Hongkong have already put up
8,000 dollars Mex. which includes Fe's shares of 2,000 dollars Mex., and rest, 2,000 dollars
Mex. to be distributed by Manila.

To Hoyman, Hongkong (cable):

Being agreed upon by Fe, you can only deliver the cloth to Bar. Let him pack and ship it by
himself. Need not pay price for tube. General charges whatsoever between Hongkong and
Manila shall be paid by Fe himself. Collect at once from Bar 2,000 if Bar agree upon. May
order cloth and turn over to him, otherwise stop business. 14 July, 1909. W. Kennedy."

Hoyman's reply (cable):

Now Bar agrees to invest 2,000 on Fe's own account but Bar is not to take any more that he
has already invested. The price 3,000 is to be paid by Fe at Manila. It has been calculated
that about 4,500 dollars worth of cloth can be packed with a capital of 8,800, which way be
sufficient. 14 July, 1909. Wong Hoyman.

To Hoyman, Hongkong (cable):

Collect from Bar on Fe's account of 2,000 and hand over the cloth to Bar for packing and
shipping as soon as the 2,000 collected. Need not collect from Bar's share any more. 15-7-
09. W. Kennedy.

Kennedy further testifies that he, on June 1st, paid Grant between five and six thousand pesos and
that this was "to buy some contraband goods;" but later stated that it had nothing to do with this
opium deal. This money was paid to Grant on the day that the following cablegram was sent to
Grant's representative in Hongkong:

Mietz Weiss (untranslated) sixty 5600, free on board, freight and insurance paid, July-August
delivery no tank and shaft.

Kennedy contends that his agreement with Grant was simply an undertaking to purchase the four
tubes of opium on delivery to him in Manila. He denies all responsibility for the purchase of the
opium in Hongkong and its importation, and disclaims all knowledge whatever of the opium
contained in the other four tubes and of the morphine in the winch.

Aside from the testimony of Grant, Cooley, an unbiased witness, heard Kennedy voluntarily confess
his guilt to Grant in the aforementioned conversation. To rebut the testimony of Grant and Cooley,
Kennedy took the stand in his own behalf and introduced the various letters cablegrams. These
documents were presented by Kennedy of his own volition, and it is perfectly correct to consider
them in this case. It appears from the first letter that Grant approached Kennedy with a proposition
for the importation of the opium. Kennedy wrote this letter to his correspondent in Hongkong, setting
forth Grant's proposition, and including a letter of introduction from Grant to Barker. The reply to this
letter shows that Kennedy's agent was moving in the matter and asked for further instructions. These
instruction were given by Kennedy in his letter of July 6, the principal part of which we have
heretofore quoted. In this letter Kennedy gave specific instructions to his agent to procure the cloth
(opium) for Barker, Grant's agent, and turn it over to him (Barker) and let him pack and send it.
Kennedy instructed his agent to thereafter use the word "cloth" instead of "opium", and to use the
other words given in his letter in place of the names of Grant and Barker. Kennedy's agent replied to
this letter that: "I will arrange everything with Barker in an early possible date." So it is clear from
these communications and the testimony of Cooley, Grant, and Kennedy himself that Kennedy and
his agent did provide the opium in Hongkong, and that Grant's agent did pack the same and attend
to its transportation. This was the agreement entered into between Grant and Kennedy. The
procuring of the opium was of more importance than the packing and shipping of same. The fact that
Kennedy did on June 1 pay a large sum of money to Grant, according to his own testimony, is a
circumstance showing the intimate relations existing between the two parties at that time, and that
they were acting together in business. Kennedy says that he paid this money for contraband. This
money was paid on the very day that the cablegram quoted was sent to Grant's agent in Hongkong.
Some significance should be attached to this testimony. Some of the words in that cablegram are
untranslated, but it certainly referred to the shipping of goods of some kind. Kennedy's testimony,
including the letter and cablegrams presented by him, expose in greater detail the relations existing
between himself and Grant in this deal and the part taken by each than does the testimony of Grant.
He showed that Grant was more involved than Grant himself was willing to admit at first. The
cablegrams above quoted, between Kennedy and his agent at Hongkong, show detailed instructions
and the completion of the transaction as far as Kennedy was concerned. This testimony shows
beyond any question of a doubt that Kennedy and Grant entered into an agreement to bring this
opium, cocaine, and morphine into the Philippine Islands; that they both acted together in the entire
transaction, and that Kennedy with the assistance of his agent in Hongkong furnished the opium,
while Grant with the assistance of Barker packed and shipped it. The opium was landed in Manila in
this manner. Grant and Kennedy agreed to do this and did do it. They completed the act of bringing
contraband goods into the Philippine Islands contrary to law.

What we have said with reference to the facts refers to Kennedy's trial. It is not necessary to discuss
the facts with reference to Grant for the reason that he pleaded guilty to the charge and was
sentenced under this plea.

The defendants having agreed to commit this crime of illegal importation of the opium, morphine and
cocaine, each was responsible for all the acts of the other defendant, or any agent for either of them,
done in performance of the common purpose, and once this agreement or conspiracy existed
between them it became immaterial whether the physical acts were done by Grant or Kennedy,
since each was responsible for every act done in furtherance of the conspiracy.

It is urged that the court erred in attaching significance to the testimony that there had been a
previous payment of a considerable amount of money by Kennedy to Grant. We have said that some
significance should be attached to this transaction. It will be noticed that this evidence was first
opened up by the defendant himself in his cross-examination of Grant and was pursued without
objection as long as he desired. The next time it is referred to is in the defendant's own testimony on
direct examination. The defendant Kennedy himself is responsible for having injected this testimony
into the record.
It is argued that the court erred in finding that the defendant Kennedy waived his privilege of not
testifying against himself. Whatever may have been the defendant's motives in taking the stand he
can not now complain inasmuch as he did so voluntarily in the exercise of a right which he had
under the law. He was in the same position as any other person charged with the commission of a
crime. He was given all opportunity to prepare his defense and was represented by able counsel.
This disposes of the assignments of error which relate to the questions of fact. It is urged in support
of the first assignment of error that section 2 Act No. 612 is unconstitutional; first, because it is
inconsistent with the laws on the same subject that apply to the rest of the Philippine Islands; and,
second, because it does not make any provision for the presence of an accused person, either by
himself or by counsel, during the investigation held by the prosecuting attorney, thereby depriving
the accused of his liberty without due process of law. The second assignment of error is necessarily
involved in the first.

In determining whether or not this law is unconstitutional or repugnant to those provisions of the
Philippine Bill which establish the rights of accused persons, we start out with the proposition that:
"Every statue is presumed to be constitutional. The courts ought not to declare one to be
unconstitutional, unless it is clearly so. If there is doubt, the expressed will of the legislature should
be sustained." (Munn vs. Illinois, 94 U.S., 123.) If this Act is unconstitutional, it must be so by reason
of its being repugnant to those provisions of the Philippine Bill which provide:

That the law shall be enacted in said Island which shall deprive any person of life, liberty, or
property, without due process of law, or deny to any person therein the equal protection of
the laws: . . . that in all criminal prosecutions the accused shall enjoy the right to be heard by
himself and counsel, to demand the nature and cause of the accusation against him; . . . that
no person shall be held to answer for a criminal offense without due process of law; . . . that
the right to be secure against unreasonable searches and seizures shall not be violated; . . .
that no warrant shall issue but upon probable cause supported by oath or affirmation.

All these provisions are found in section 5 of the Act of Congress of July 1, 1902.

The pertinent part of section 2 of Act No. 612, enacted February 3, 1903, provides as follows:

. . . In cases triable only in the Court of First Instance in the city of Manila, the defendant
shall have a speedy trial, but shall not be entitled as of right to a preliminary examination in
any case where the prosecuting attorney, after a due investigation of the facts, under section
thirty-nine of the Act of which this is an amendment, shall have presented an information
against him in proper form: Provided, however, That the Court of First Instance may make
such summary investigation into the case as it may deem necessary to enable it to fix the
bail or the determine whether the offense is bailable.

By virtue of the authority conferred upon the prosecuting attorney by section 39 of Act No. 183, as
amended by section 2 of Act No. 612, the acting prosecuting attorney filed in the Court of first
Instance of the city of Manila a complaint against the defendants in this case. This complaint was
sworn to by him. This officer testified that he above provisions of law, by examining the witnesses
under oath. This certainly was process, and we must now determine whether it was "due process of
law."

Act No. 183, known as the Manila Charter, passed July 31, 1901, created, among others, the law
department. This department consist of the office of city attorney and the prosecuting attorney.
Section 39 of this Act provides that the prosecuting attorney shall investigate all charges of crimes,
misdemeanors, and violations of ordinances, and prepare the necessary informations, or make the
necessary complaints against the persons accused. This section further provides that the
prosecuting attorney, or any of his assistance, may, if he deems it wise, conduct an investigation in
respect to crimes, misdemeanors, and violations of ordinances by taking oral evidence of reputed
witnesses, and for this purpose may, be subpoena, summon witnesses to appear and testify under
oath before him, and the attendance of such witnesses may be enforced by application to the court.
This section, as amended by section 2 of Act No. 612, makes such investigation made by
prosecuting attorney sufficient, and says:

The defendant . . . shall not be entitled as of right to a preliminary examination in any case
where the prosecuting attorney has made such investigation of the facts. . . .

The prosecuting attorney and his assistants are appointed by the Governor-General, with the advice
and consent of the Philippine Commission, and their salaries are specifically and definitely fixed by
law. No officer or employee of the office of the prosecuting attorney receives his compensation by
way of fees, but all have fixed salaries. The office of prosecuting attorney, taking into consideration
the fact that Manila is cosmopolitan town with a population of over 220,000, is of great importance.
The prosecuting attorney and his assistants are presumed to be men learned in the law, of a high
character, and to perform their duties impartially and with but one object in view, that being that
justice may be meted out to all violators of the law and that no innocent man be punished. There is
no reason why any of these officials should present frivolous and unfounded complaints, but there is
every reason to presume that a thorough investigation into the facts will be and is made before an
information is presented, charging any person with a serious crimes as their official of professional
standing as officers of the court and servants of the Government would not be enhanced by a large
number of acquittals.

The same Act (No. 183) created a municipal court and a justice of the peace court for the city of
Manila. Both of these courts have power to issue warrants of arrest and to hold preliminary
examinations for any offense without regard to the limits of punishment, and may release, commit,
and bind over any person charged with such offense to secure his appearance before the proper
court. The justice of the peace has no other criminal jurisdiction and the municipal judge has no civil
jurisdiction, except for forfeiture and collection of bonds given in cases or proceedings pending in
that court. It is not, says the law, within the power of the defendant in the municipal court, in a case
triable in the court, to demand a preliminary examination, except a summary one, the extent of which
shall be within the discretion of the court, to enable the court to fix the amount of bail. Both the
municipal judge and the justice of the peace are appointed by the Governor-General and have fixed
salaries. The justices of the peace outside the city of Manila have both civil and criminal jurisdiction;
they also have power to issue warrants of arrest and to conduct preliminary examinations in the
same manner as the justice of the peace in the city of Manila. They receive fees for their services
and the amount of such fees depends upon the number of cases tried and the number of preliminary
examinations held. Preliminary examinations conducted by the municipal judge and justice of the
peace in the city of Manila, and also those conducted by justices of the peace outside the city, are
necessarily held in the presence of the accused, who has a right under the law governing these
examinations to be heard by himself and by counsel and to present witnesses on his own behalf.
When the accused is committed or bound over to the Court of First Instance he can be, and
generally is, placed upon trial without any further inquiry. There are two steps in these preliminary
proceedings; first, an inquiry to determine whether or not the warrant of arrest should issue; and,
second, the preliminary examination which takes place after the accused person is apprehended by
virtue of the order of arrest and brought before the court; while, we might say that, under the
provisions of section 39 of Act No. 183, as amended by section 2 of Act No. 612, there is only one
step in the proceedings; that is, the prosecuting attorney, after an investigation into the facts as
required by laws, files his complaint alone the warrant can be issued, the accused arrested, brought
into court, and placed upon trial, without any further investigation being made. In the first class of
cases section 3265 of the Compiled Laws of the Commission provides that:

It shall be the duty of every justice of the peace (and this applies with equal force to the
municipal judge in the city of Manila) when a written complaint, under oath, has been made
to him that a crime has been committed within his municipality, and there is reason to believe
that any person has committed the same, which complaint the justice believes to be well-
founded, or when he has knowledge of facts tending to show the commission of the crime, to
issue an order for the arrest of the person charged.

While in the second class of cases the judge of the Court of First Instance can issue the warrant
upon the sworn complaint of the prosecuting attorney. Not only does the prosecuting attorney swear
to the best of his information and belief that the allegations in the complaint are true, but he also
swears that he has examined into the facts of the case by taking the testimony of witnesses under
oath. There can certainly be no objection to this procedure adopted for the municipal and justice of
the peace courts. Supposing that the procedure followed by the prosecuting attorney in the case at
bar was had for the purpose of securing the order of arrest only, then it could not be seriously
contended that it did not comply with that part of the Philippine Bill which provides that: "No warrant
shall issue but upon probable cause supported by oath or affirmation." As to what constitutes
probable cause is a judicial question and must be determined by the judge or justice of the peace
issuing the warrant. Upon this point this court in the case of United States vs. Ocampo et al., page
1, supra:

The question whether 'probable cause' exist or not must depend upon the judgment and
discretion of the judge or magistrate issuing the warrant. It does not mean that particular
facts must exist in each particular case. It simply means that sufficient facts must be
 presented to the judge or magistrate issuing the warrant to convince him, not that the
particular person has committed the crime, but that there is probable cause for believing that
the person whose arrest is sought committed the crime charged. No rule can be laid down
which will govern the discretion of the court in this matter. If he decides, upon the proof
presented, that probable cause exists, no objection can be made upon constitutional
grounds against the issuance of the warrant. His conclusion as to whether "probable cause"
existed or not is final and conclusive. If he is satisfied that "probable cause" exist from the
facts stated in the complaint, made upon the investigation by the prosecuting attorney, then
his conclusion is sufficient upon which to issued the warrant for arrest.

When the judge issued the warrant in the case now under consideration he then and there decided
that probable cause had been shown to exist. The decision on this point does not appear in a
separate and specific order. This is not required by General Orders No. 58 and Act No. 194, nor is it
required by section 39 of Act No. 183, as amended by section 2 of Act No. 612, or any other
provision of law. The probable cause in this case was supported by oath; but conceding that it was
absolutely necessary for the court to hold some kind of investigation to determine that probable
cause existed, and the so decided in a separate order before issuing the warrant for the arrest of the
defendant, this would only render the arrest illegal and could not affect the validity of the judgment.
The defendant was before the court during the trial and the court had a legal right to try him upon the
complaint presented, provided no other part of the procedure was in conflict with the "due process"
clause. If his arrest were illegal, whether he could have been released upon a writ of habeas corpus
or now has a civil action for damages against the person who arrested him we need not decide. It is
sufficient to say that such irregularities are not sufficient to set aside a valid judgment rendered upon
a sufficient complaint and after the trial free from error. (In re Johnson, 167 U. S., 120;
Ker vs. Illinois, 119 U. S., 436; Mahon vs. Justice, 127; U.S., 700.)

In the case of Ker vs. Illinois, supra, Ker having committed the crime of larceny, escaped and went to
Peru. He was kidnapped in Peru and brought back to the State of Illinois without any pretense of
authority. Passing upon the question of the constitutionality of the arrest of Ker, the Supreme Court
of the United States, speaking through Mr. Justice Miller, said:

We do not intend to say that there may not be proceedings previous to the trial, in regard to
which the prisoner could invoke in some manner the provisions of this clause of the
constitution; but for the mere irregularities in the manner in which he may be brought into the
custody of the law, we do not think he is entitled to say that he should not be tried at all for
the crime with which he is charged in a regular indictment. He may be arrested for a very
heinous offense by persons without any warrant, or without any previous complaint, and
brought before a proper officer, and this may be in some sense said to be 'without due
process of law.' But it would hardly be claimed that after the case had been investigated, and
the defendant held by the proper authorities to answer "without due process of law."

Conceding again that the warrant issued in this case was void for the reason that no probable cause
was found by the court before issuing it, the defendant waived all his rights to object to the same by
appearing and giving bond. (2 Humphreys [Tenn.], 445; 15 Barb. [N. Y.], 26; 24 Vt., 506.)

The determination in any case that probable cause had been shown to exist, and the issuing of the
warrant of arrest subsequently thereto, is certainly one stage of the proceedings. It can not be
seriously contended that an accused person has a right to be present during this stage of the
proceedings. To hold that he had such a right and to reverse a judgment of conviction on this ground
would have effect of destroying the very purposes of that part of the criminal law. It would be against
public policy. It is frequently essential that such investigations be kept secret and that the accused
should have no suspicion of any complaint against him, otherwise he might avoid punishment for his
crime by escaping before arrest.

The objection most strongly urged to section 2 Act No. 612 is that it deprived the defendant of his
right to be present by himself and counsel and to present witnesses in his own behalf during the
investigation into the facts made by the prosecuting attorney.

The object or purpose of a preliminary investigation, or a previous inquiry of some kind, before an
accused person is placed upon trial, is to secure the innocent against hasty, malicious, and
oppressive prosecutions, and to protect him from an open and public accusation of crime, from the
trouble, expense, and anxiety of a public trial, and also to protect the State from useless and
expensive trials.
This court has held in the case of United States vs. Ocampo et al., supra, and numerous other cited
therein, that an accused person in the city of Manila is not entitled as a matter of right to a
preliminary investigation. On examination of these case it will be noted that the court had in mind,
when it said that the accused is not entitled as a matter of right to a preliminary investigation, that
kind of preliminary investigation provided for in General Orders No. 58 and Act No. 194. The court
did not say, nor did it intend to say, that no inquiry whatever should be made into the facts by some
member of the judiciary before the accused was placed upon trial. It is evident that the Commission
in enacting section 2 of Act No. 612 had the same object in view. The Commission substituted the
investigation made by the prosecuting attorney for that kind of a preliminary examination made by
justice of the peace (and this court in those cases held that this substitution was valid). That this was
the intention of the Commission and the holding of the court, is clearly shown when we remember
that both the municipal judge and the justice of the peace in the city of Manila have the power to
conduct the very kind preliminary examinations that the defendants complain having been deprived
of.

Whether or not an accuse person is entitled as a matter of right to a preliminary investigation, or

some previous inquiry, before he is placed upon trial, and whether or not the failure to give him such
preliminary examination or investigation would violate the provisions of the Philippine Bill and render
a judgment of conviction void, we need not now decide, for the reason that in this case an
investigation into the facts was made prior to the time the defendant was arrested and placed upon
trial, and the only question on this point to determine is, whether or not such investigation, as made
by the acting prosecuting attorney, is a compliance with the said Philippine Bill.

We will state, however, that we believe that some investigation or examination of the facts by a
person duly authorized should be made in every criminal case wherein the accused is charged with
a serious crime before he is placed upon trial.

The fifth amendment to the Constitution of the United States provides that —

No person shall be held to answer for a capital or otherwise infamous crime, unless on a
presentment or indictment of a grand jury, . . . nor be deprived of life, liberty, or property,
without due process of law.

The sixth amendment provides that —

In all criminal prosecutions the accused shall enjoy the right to a speedy and public trial by
an impartial jury of the State and district wherein the crime shall have been committed, . . .
and to be informed of the nature and cause of the accusation.

The fifth amendment was introduced into the Constitution of the United States as a limitation upon
the powers of the National Government. The guarantee contained in this amendment is confined to
the Federal courts. (Hurtado vs. California, 110 U. S., 516.) The States are left free to adopt any
mode of procedure in criminal, as well as in civil cases, which is consonant with the principles of
jurisprudence and calculated to promote the ends of distributive justice. (Kalloch vs. Superior Court,
56 Cal., 229; Rowan vs. State, 30 Wis., 129; Walker vs. Suavenet, 92 U. S., 90; Missouri vs. Lewis,
101 U. S., 22; Hurtado vs. California, supra; Bank of Columbia vs. Okely, 4 Wheaton, 235, 244.)

The fourteenth amendment provides that:

No State shall make or enforce any law which shall abridge the privileges or immunities of
the citizen of the United States; nor shall any State deprive any person of life, liberty, or
property, without due process of law, nor deny to any person within its jurisdiction the equal
protection of the laws.

This is a guaranty against any encroachment upon the acknowledged rights of citizens by the
legislature of the States. All of the States have provided in their constitutions that no persons shall
be deprived of life, liberty, or property, without due process of law, or the law of the land. Several of
them have also provided in their constitutions that no person shall be held to answer for a capital or
otherwise infamous crime (felony), unless on a presentment or indictment of grand jury. In some of
the States the provision is simply that the accused shall have a speedy and public trial. In most, if
not all of the States, there is a provision that all persons accused of capital or otherwise infamous
crimes (felonies) shall have a speedy and public trial by an impartial jury. So a person living in the
State of California who is charged with having committed an infamous crime (felony) in the State
against the laws of the United States can not, under the Constitution of the United States, be placed
upon trial unless by a presentment or indictment of a grand jury. The same person committing the
same crime (felony) in the same State in violation of the State law can be legally brought to trial after
a preliminary investigation by a justice of the peace. He has a constitutional right in the first case to
have a grand jury determine whether or not he should be tried, while in the second case he has no
such right. (Hurtado vs. California, supra.) A person charged with having committed a crime (felony)
in the Philippine Islands has no constitutional right under the Philippine Bill to have a grand jury
determine whether or not he should be tried, neither has he a right to a trial by jury. (Dorr vs. U. S.,
11 Phil. Rep., 706, 195 U. S., 138.) These rights depend upon the provisions by which they are
specially secured, rather than on the phrase "due process of law."

In all of those cases in the United States where the constitution of the nation or of the state provides
that no person accused of a capital or otherwise infamous crime shall be placed upon trial, unless on
a presentment or indictment of a grand jury, such person has no right, under the law providing this
specific procedure, or under the Constitution of the United States, to be present, either by himself or
counsel, or take any part whatever in the proceedings before the grand jury. In fact these
proceedings, in so far as the accused is concerned, are carried on behind closed doors and in
absolute secrecy. Every juror is sworn to not divulge the result of their investigations. The accused
person against whom a true bill is made is not informed of this fact until he is placed under arrest,
and after his arrest he is put upon trial without any further inquiry.

In the case of Hurtado vs. California, supra, Hurtado was charged by the district attorney of
Sacramento county with the crime of murder. Upon this information, and without any previous
investigation of the cause by any grand jury, the plaintiff in error was arraigned on the 22d of March,
1882, and pleaded not guilty. A trial of the issue was thereafter had, and on the 7th of May, 1882,
the jury rendered its verdict, in which it found the plaintiff in error guilty of murder in the first degree.
Upon this verdict Hurtado was sentenced to the death penalty. From this judgment an appeal was
taken, and the supreme court of the State of California affirmed the judgment. The plaintiff, but
counsel, objected to the execution of said judgement and to any order which the court might make
fixing a day for the execution of the same, upon the following grounds:

That it appeared upon the face of the judgment that the plaintiff in error had never been
legally, or otherwise, indicted, or presented by any grant jury, and that he was proceeded
against by information made and filed by the district attorney of the county of Sacramento,
after examination and commitment by a magistrate of the said county.

That the said proceedings, as well as the laws and constitution of California, attempting to
authorize them, and the alleged verdict of the jury, and judgment of the said superior court of
said county of Sacramento, were in conflict with and prohibited by the fifth and fourteenth
articles of amendment of the Constitution of the United States, and that they were therefore
void.

That the said plaintiff in error had been held to answer for the said crime of murder by the
district attorney of the said county of Sacrament, upon an information filed by him, and had
been tried and illegally found guilty of the said crime, without any presentment or indictment
of any grant or other jury, and that the judgment rendered upon the alleged verdict of the jury
in such case was and is void, and if executed would deprived the plaintiff in error of his life or
liberty without due process of law.

The court overruled these objections, whereupon the plaintiff in error sued out a writ of error to the
Supreme Court of the United States, where the judgment of the superior court and the supreme
court of the State of California was affirmed, the Supreme Court of the United States holding that
section 9 of article 1 of the constitution of the State of California, wherein it was provided that:
"Offenses heretofore required to be prosecuted by indictment shall be prosecuted by information,
after examination and commitment by a magistrate, or by indictment with or without such
examination and commitment, as may be prescribed by law," was not in violation of the fourteenth
amendment to the Constitution of the United States. The Supreme Court of the United States,
speaking through Mr. Justice Matthews, among other things, said:

We are unable to say that the substitution for a presentment or indictment by a grand jury of
the proceeding by information, after examination and commitment by a magistrate, certifying
to the probable guilt of the defendant, with the right on his part to the aid of counsel, and to
the cross-examination of the witnesses produced for the prosecution, is not due process of
law.
It is apparent from this quotation that the constitution of the State of California and sections 858 et
seq. of the penal code of the State, the laws governing the examination made by the magistrate
(justice of the peace), gives the defendant a right to be present, with the aid of counsel, to cross-
examine the witnesses presented by the prosecution and to present witnesses on his own behalf
during such examination. These rights were guaranteed to him by the constitution and penal code of
the State. Such rights were not guaranteed by the fourteenth amendment to the Constitution of the
United States, unless it can be said that to deprive him of these rights would repugnant to the "due
process" clause in that amendment.

When the examination is held by a justice of the peace in the Philippine Islands the accused person
has the same rights, under the law governing these examinations in this country, as Hurtado had in
California; and the only difference between these examinations and that held by the acting
prosecuting attorney in the case at bar, is that the law conferring power upon the prosecuting
attorney to hold such investigation makes no provision that the same shall be held in the presence of
the accused, nor does this law specifically give the accused the right to be heard, either by himself
or counsel, nor to present witnesses in his own behalf. We, therefore, realize that section 2 of Act
No. 612, amending section 39 of Act No. 183, is not exactly the same as the constitution and penal
code of the State of California, in that section 2 of Act No. 612 does not give the accused the right to
be present and to be heard during such investigations. The proceedings before a grand jury in the
absence of the accused is due process of law. A preliminary examination held by a justice of the
peace in the presence of the accused and with right to be heard is likewise due process of law.
Justices of the peace, as a rule, are not men versed in the law. One is appointed for each
municipality for the convenience of the people. They are not furnished with clerks, stenographers,
nor interpreters, neither do they have, in a great majority of the cases before them, the assistance of
attorneys. They are not required to reduce to writing the testimony of witnesses in preliminary
examinations, except that of the accused when he testifies in his own behalf. In these preliminary
examinations the accused is charged with a certain crime and for this he is called upon to answer.
But when the record reaches the Court of First Instance the prosecuting officer can and does
frequently charge him with the commission of a different and more serious crime. So it will be seen
that from the very nature of these proceedings such examinations do not partake of the solemn
formalities of a regular trial. Justice of the peace courts are not courts of record. The prosecuting
attorney and his assistants are lawyers; they are equipped with all the necessary machinery to
enable them to make a thorough investigation into the facts in every case before filing a complaint. If
they are not satisfied that they have a reasonably sure chance of securing a conviction they do not
enter court. They act in a quasi-judicial capacity. Their procedure is speedy and free from
technicalities. There is no reason to presume that every accused has not been given a "square
deal," and when he gets this he certainly has no right to complain. Between the examinations held
by justices of the peace and those investigations made by the prosecuting attorney, the latter appear
to be more thorough and preferable to all concerned.

The phrase "due process of law," used in the Philippine Bill, should receive a comprehensive
interpretation, and no procedure should be treated as unconstitutional which makes due provision for
the trial of the criminal before a court of competent jurisdiction, for bringing the party against whom
the proceeding is had into court, and notifying him of the case he is required to meet, for giving him
an opportunity to be heard in his defense; for the deliberation and judgment of the court, and for an
appeal from that judgment to highest tribunal of the State for hearing and judgment there.
(Hurtado vs. Cal., supra; Kennard vs. Louisiana, 92 U. S.., 480; Davidson vs. New Orleans, 96 U. S.,
97; Foster vs. Kansas, 112 U. S., 202.)

The law which the defendant in this case seeks to have declared unconstitutional applies to the city
of Manila only, and its provisions do not extend to the people of the Islands generally. This fact does
not invalidate the law. (Munn vs. Illinois, supra.) But it might be insisted that this law does apply with
equal force to the inhabitants of Manila, inasmuch as it might be said that it is within the power of
individuals whether accused persons shall be brought under this law or not. If a complaint, charging
a person with a felony be filed directly in the Court of First Instance (and this can be done in Manila),
the judge could either hold the preliminary investigation himself, send it to the prosecuting attorney
for this purpose, or to the justice of the peace or municipal judge. By so doing, it is insisted that he
would deprive even the people of Manila of the equal protection of the laws. The same might be said
with reference to inhabitants outside the city of Manila, inasmuch as if a complaint should be filed
(which can be done) in the Court of First Instance in any province, the judge could either conduct the
preliminary investigation himself or send it to a justice of the peace for this purpose. This is a mere
question of procedure and we can not see in what way it could affect the substantial rights of a
person charged with a crime.
Section 39 of Act No. 183 is a general statue. It defines the powers and duties of the prosecuting
attorney. It affects all persons alike. A general statute is defined to be one which affects all the
people, or all of a particular class. When it concerns a class in distinction from individuals, it is
treated as general. A private or special statute (and these words appear to be used interchangeably)
is one which affects only particular individuals or things. (Bish. Writ. Law, cited in the case of
Territory vs. Cutinola, 4 N. Mex., 305.)

The defendant Kennedy was arraigned upon a sworn complaint in legally constituted court. He was
informed of the nature of the accusation against him; he was present with his counsel during the
entire trial, presented witnesses and testified in his own behalf; he was convicted by the trial court
and had an opportunity and did appeal to the highest tribunal in the Islands. We therefore conclude
that the proceedings had before his arraignment were not in violation of the provisions of the
Philippine Bill.

In the third assignment of error it is insisted that the complaint was not drawn according to law and
that there is more than one offense charged therein. This prosecution was brought under section
341 of the Customs Act, No. 355, which provides in part as follows:

If any person shall fraudulently or knowingly import or bring into the Philippine Islands, or

assist in so doing, any merchandise, contrary to law, or shall receive, conceal, buy, sell, or in
any manner facilitate the transportation, concealment, or sale of such merchandise after
importation, knowing the same to have been imported contrary to law, such merchandise
shall be seized and forfeit and the offender shall be fined in a sum not exceeding five
thousand dollars nor less than fifty dollars, or be imprisoned for any time not exceeding two
years, or both.

This section is identical with section 3082 of the Revised Statutes of the United States. In the case
of Keck vs. U. S. (172 U. S., 434), relied upon by the defendant Kennedy, the opinion is devoted
principally to an interpretation of section 2865 of the Revised Statutes of the United States, and to
defining the crime of smuggling; and it was there held that where the illegal shipment is seized
before landing the said section was not violated. In this decision, section 3082 is referred to because
one of the three counts in the indictment against Keck was drawn under this section.

There can be no doubt that this section 355 [341], supra, contains all the essential elements of the
crime charged and it is obvious that the complaint follows substantially the language of this statute.

A complaint will be sufficient if it describes the offense in the language of the statute
whenever the statue contains all the essential elements constituting the particular offense.
(U. S. vs. Salcedo, 4 Phil. Rep., 234; U. S. vs. Gatmaitan, 4 Phil. Rep., 265; U. S. vs. Vecina,
4 Phil. Rep., 529; U. S. vs. Sarabia, 4 Phil. Rep., 566.)

This section (355) [341] is intended to cover the complete act of importing goods and disposing of
them, all as a part of a single violation of the law. If a man should cause property, such as a diamond
for example, to be brought into the country, and then receive it from his agent, carry it to his store,
and, in the course of time, secretly dispose of it, such a man, the defendant claims, could be
prosecuted for several crimes, and a separate information would have to be filed against him for
each of the acts involved; for bringing the diamond into the harbor, for transporting it from the ship to
his shop, for having it in concealment, and finally for selling it. This is not the purport of the Act. It
intends to make all of these elements a part of the single crime of defrauding the customs, although
it is so widely drawn that it includes and penalizes, as principals, every person who is responsible for
or of assistance in effecting all or any of the illegal acts, which together constitute the crime. The
defendant Kennedy caused and assisted in the importation of opium from Hongkong, its
concealment in tubes, and its transportation to Taylor's shop. Under these facts he might have had a
valid protest if he had been arrested on three distinct complaints and had been sentenced to three
separated penalties.

With reference to the fourth assignment of error, it appears that the defendant was specifically
charged in the complaint with the commission of all the acts for which he was tried and sentenced.
He had specific knowledge of the case against him and there was no necessity for a bill of
particulars. The defendant was not entitled as a matter of right to such a bill. (U. S. vs. Schneer, 7
Phil. Rep., 523.)

The fifth, sixth, seventh, and eight assignments of error have been disposed of in the finding of facts.
The defendant argues in his ninth assignment of erred that his codefendant, Grant, should not have
been allowed to testify for the Government. This was not error.

A defendant can not be a witness for or against another defendant, even on a separate trial,
until the case as to himself is disposed of by plea of guilty, or a verdict of conviction or
acquittal, or a discharged on a plea of abatement; then he may be, whether sentence is
rendered against him or not." (Bishop's New Criminal Procedure, p. 650, and numerous
cases cited therein.)

The accomplice who has pleaded guilty is competent to testify without judgment being
entered against him (State vs. Jackson, 106 Mo., 174), and it seem that he ought to be
remanded to await sentence until after he has testified. (State vs. Russell, 33 La. An., 135.)

With reference to the tenth assignment of error, it is sufficient to say that this court has decided in
numerous cases that the provisions of the Penal Code are not necessarily applicable to crimes
created by laws of the Commission. (U. S. vs. Glefonea, 5 Phil. Rep., 570; U. S. vs. Lineses, 5 Phil
Rep., 631; U. S. vs. Hutchinson, 5 Phil. Rep., 343; U. S. vs. Ang Kan Ko, 6 Phil. Rep., 376; U.
S. vs. Cortes, 7 Phil. Rep., 149; U. S. vs. Macasaet, 11 Phil. Rep., 447; U. S. vs. Servillas, 12 Phil.
Rep., 12.)

The last assignment of error was not made nor argued in the defendant's printed brief, but only
appears in a typewritten document attached to the record which purports to be a translation into the
Spanish language of his printed brief. As this same assignment of error was made by the defendant
Grant we will determine the question in the consideration of his assignments of error and the
conclusion there reached upon this point will be applicable to the defendant Kennedy's last
assignment.

In the first assignment of error the defendant Grant claims that the Court of First Instance never
acquired jurisdiction over this case, so that at this stage of the proceedings he may object on that
ground. The exact question raised is whether jurisdiction to commence these proceedings is in both
the Attorney-General and the prosecuting attorney, or in the Attorney-General alone. This question
was not raised in any way by either Grant or Kennedy at the trial below. If it relates only to
procedure, and the substantial rights of the defendant have not been prejudiced, such objection
made for the first time on appeal comes too late; but if the court below had no jurisdiction in the
premises this question can be raised at any time. On this point Judge Cooley says in his work on
Constitutional Limitations, 7th ed., 576:

The law creates courts, and upon consideration of general policy defines and limits their
jurisdiction; and this can neither be enlarged nor restricted by the act of the parties.
Accordingly where a court by laws has no jurisdiction of the subject-matter of a controversy,
a party whose rights are sought to be affected by it is at liberty to repudiate its proceedings
and refuse to be bound by them, notwithstanding he may once have consented to its action
either by voluntarily commencing the proceeding as plaintiff or as defendant by appearing
and pleading to the merits, or by any other formal or informal action. This right he may avail
himself of at any stage of the case; and the maxim that requires one to move promptly who
would take advantage of an irregularity does not apply here, since this is not mere irregular
action, but a total want of power to act at all. Consent is sometimes implied from failure to
object but there can be no waiver of rights by laches in a case where consent would be
altogether nugatory.

Prior to the passage of Act No. 1773 we had in this country certain crimes known as "private crimes."
The right to prosecute these crime was conferred upon certain persons specially named in the law.
This court has constantly held that when these crimes were not prosecuted at the instance of the
persons authorized to do so, the whole proceedings were null and void for lack of jurisdiction of the
subject-matter, and that this question can be raised at any time. This court, upon its motion, has
dismissed such proceedings in cases where the question was never raised by the parties. This
proposition is too well settled to require the citation of authorities to support it.

So a careful examination of the law upon the question raised in this first assignment of error should
be made.

Section 39 of Act No. 183 provides that the prosecuting attorney of the city of Manila shall have
charges of the prosecution of all crimes, misdemeanors, and violations of city ordinances in the
Court of First Instance and the municipal court of the city of Manila. The illegal importation of
merchandise into the port of Manila and the landing of the same in the city is a crime committed
within the city limits, and it would appear that the prosecuting attorney was the proper officer to
prosecute the defendants, unless other subsequent provisions were made.

In Act No. 355, the Philippine Customs Administrative Act, under chapter 23, entitled "Protest and
Appeals," a court of customs appeals was organized (sec. 289), with certain well-defined duties and
powers; but primarily to entertain appeals from decisions of the Insular Collector (sec. 290), and in
case where the penalty of imprisonment should be imposed, to entertain proceedings instituted by
the Attorney-General in the nature of and with procedure similar to ordinary criminal proceedings
(sec. 291). Under chapter 25, entitled "Searches and Seizures," there is a further provision that if a
fine, forfeiture, or penalty can not be collected by the respective collectors, either from lack of
statutory authority or because no property was held by them under a lien which could be enforced in
any way but by suit or criminal prosecution, then in such case the facts should be reported to the
proper prosecuting officer of the district (sec. 344). The duty of such officer was then to institute
prosecuting for such collections (sec. 345). It is to be noticed that no particular court was designated
in which the prosecuting officer was to enforce collection.

Subsequently, Act No. 653 amended this method collection by providing that the reports of such
uncollectible fines, forfeitures, or penalties should be made to the Insular Collector who should
institute proceedings in the Court of Customs Appeals (secs. 1 and 2). There is nothing so far
intimating that a criminal prosecution for violation of the Customs Act could not be instituted and
carried on in the Court of First Instance like other crimes. This jurisdiction of the Court of First
Instance is recognized and reaffirmed in an Act extending the powers of the Court of Customs
Appeals. Act No. 864, section 4, repealed sections 290 and 291 of the original Act, as amended by
section 1 and 2 of Act No. 653, and provided as follows:

Sections two hundred and ninety and two hundred and ninety-one of the Customs
Administrative Act are hereby repealed, and in lieu thereof the following is substituted:

'SEC. 290. The Court of Customs Appeals shall have jurisdiction concurrent with that
of the Courts of First Instance to consider all criminal prosecutions begun under this
Act and under the immigration laws of the Philippine Islands, including the Act of
Congress approved March third, nineteen hundred and three, entitled "An Act to
regulate the immigration of aliens into the United States," and the Chinese Exclusion
Arts, and under the customs and navigation laws; and the procedure in such cases
shall be the same as in criminal causes in Courts of First Instance. The court first
taking jurisdiction of the prosecution thus begun. . . . '

This Act has never been repealed by express provision, although a later section of the Customs Act
was passed which was apparently inconsistent in one respect. Act No. 864, section 7, provides:

Section three hundred and forty-four and three hundred and forty-five of Act Numbered
Three hundred and fifty-five, as amended by Act Numbered Six hundred and fifty-three, are
hereby repealed and the following substituted therefor:

'SEC. 344. All criminal violations, by any person, of this Act or of the other Acts
mentioned in section two hundred and ninety, as above amended, shall be
prosecuted by order and under the supervision of the Insular Collector. Such
violations shall be reported by the collector in whose district the violation occurred,
either to the proper prosecuting officer of the province where the violation occurred,
for prosecution in the proper Court of First Instance, or through the Insular Collector
to the Attorney-General for prosecution in the court of customs appeals, and, where
fines or penalties are imposed by law for such violations and the Insular Collector
shall certify that they can not be satisfied out of property seized under the
proceedings in rem provided in section three hundred and thirteen, as amended, and
sections three hundred and thirteen (a) and three hundred and thirteen (b) herein,
they may, in the discretion of the trial court, be made part of the sentence in the
criminal proceedings against the offender, if convicted. In such cases the judgment
shall provide for imprisonment at hard labor until the fine or penalty is paid, together
with the costs of prosecution, either in money or by labor, at not less than forty
centavos, Philippine currency, a day, the rate to be fixed by the court imposing
sentence.'
Under these Acts if such a violation of the Customs Administrative Act occurred in the provinces the
procedure for prosecution of such offense was either to report the case to the provincial fiscal for
prosecution in the Court of First Instance, or to make the report to the Insular Collector for
prosecution in the Court of Customs Appeals in Manila; but with respect to violations committed in
the port of Manila, counsel for the defendant argues in such a way as necessarily to imply that the
only method of procedure was to report such an offense to the Insular Collector for prosecution
under his direction by the Attorney-General. But the courts are reluctant to find that the Legislature
inserted one paragraph in an Act granting jurisdiction, and in the same Act inserted another
paragraph intending to take away that jurisdiction. The true interpretation of these Acts is that in
Manila as well as in the provinces a violation of Act No. 355 cold be prosecuted either by a report to
the prosecuting attorney of Manila, or to the Attorney-General through the Insular Collector, for the
institution of proceedings in the Court of First Instance or Customs Appeals, respectively.

Act No. 1405 subsequently abolished the Court of Customs Appeals, and by sections 4 and 5 gave
the Court of First Instance of Manila the identical powers and jurisdiction which the Customs Court
previously had. There is no specific repeal of Act No. 864, section 4, so that the presumption is that
the Court of First Instance for the city of Manila would acquire jurisdiction of such offense in the two
ways previously prescribed for the two courts. In Act No. 1405, section 5, after reciting the
jurisdiction of the court, there is the following clause: "Its procedure in such (criminal) cases shall be
the same as in other criminal cases in the Courts of First Instance." Act No. 1405, section 8, amends
Act No. 864, section 7, simply by striking out the words "in the Court of Customs Appeals" and
inserting in their place "in the court of First Instance for the city of Manila."

It therefore follows that a criminal prosecution for violation of the Customs Administrative Act may be
instituted in the Court of First Instance of Manila in two ways: (1) By report to the Attorney-General
through the Insular Collector in the manner provided for the old Customs Court; and (2) by report of
the facts by the Collector to the proper prosecuting officer for prosecution in the Court of First
Instance in the usual manner. It is not disputed that this case was reported by the Collector to the
prosecuting attorney for the city of Manila.

On arraignment, the defendant Grant entered a plea of guilty. His counsel then asked the court "for
an opportunity to be heard for a consideration of the circumstances, which the defense considers
have a bearing upon the penalty to be imposed." Judgment was suspended and the trial of Kennedy
commenced. Kennedy was sentenced on October 25, 1909. Grant filed, on October 22, a motion
asking leave of the court to withdraw his plea of guilty and substitute in lieu thereof a plea of not
guilty. This motion was opposed by the prosecuting attorney and denied by the court. It is now urged
that the denial of this motion was an abuse of discretion and that this abuse constitutes an error of
law. In support of this alleged error counsel for the defendant said:

It is well known that an application for permission to substitute a plea of 'not guilty' for that of
'guilty', when the latter has been once entered is addressed to the discretion of the trial court.
Nevertheless that discretion is one of the judicial exercise, and an abuse thereof constitutes
error of law. In the present case the denial by the court of the permission to make the desired
substitution of pleas has deprived the appellant of the opportunity for a fair and just trial of
this cause upon its merits. It has deprived him of the right to be present at his own trial. It has
deprived him of the right to confront the witnesses who testified to his guilt and to subject
said witnesses to cross-examination. It has deprived him of the right to refuse to testify as to
his own guilt. It has deprived him of the right to except to errors of the trial court and to
submit those errors for review upon appeal. It has accomplished those things by refusing to
permit the appellant to withdraw a plea entered into under a misapprehension of its effect,
and in reliance upon an express agreement with the prosecuting attorney. This agreement
the prosecuting attorney was permitted to repudiate in toto without restoring the appellant to
the status which was lawfully and justly his in the absence of such an agreement.

When the court denied this motion it had already tried and sentenced the defendant Kennedy and
had before it Exhibit A which was presented by the prosecuting attorney without objection. This
Exhibit A is a part of Grant's testimony in the case against Kennedy in which he, Grant, testified on
the question of the agreement with the prosecuting attorney as follows:

Q. Now Mr. Grant have you been made any promises to testify in this case? If so
state to the court what? — A. I was told that if I told my connection and I give the
facts of the case that the prosecuting attorney would recommend that in passing
sentence upon me that such statement would be taken into consideration.
 Q. Were you also told that the court had declined to make any arrangement or agree
to anything? — A. I was, yes, sir.

Q. Was it not understood by you that there was to be some specific amelioration of
penalty in this case, Mr. Grant, if you should testify in this matter? — A. No, sir.

Q. Wasn't it arranged that no penalty by way of imprisonment should be imposed

upon you if you pleaded guilty? — A. No, sir.

Q. Was that not referred to in any way? — A. I don't think it was.

Q. Isn't it what you specially asked of them? — A. No, sir; I did not ask anything of
them.

Q. Who arranged the matter of your giving your testimony, yourself or Mr. Cohn? —
A. Through my counsel.

Q. Then you don't know exactly what was agreed to? — A. Only what he told me.

Q. Only what was told you by Mr. Cohn? — A. Yes, sir.

Q. What did you understand from Mr. Cohn was the specific arrangement that was
made as to amelioration of penalty in case you should plead guilty to this charged
and aid the Government with your evidence? — A. Well, I did not understand that
there was any specific arrangement — that there could not be any specific
arrangement, that the court would simply take my plea of guilty into consideration in
passing sentence.

Not only did the court have this part of Grant's testimony before it in passing upon defendant's
motion, but it had heard all the testimony of the witnesses presented at the trial of Kennedy,
including that of the defendant Grant, wherein he openly, freely and in detail admitted his guilt. Such
testimony was not necessary to establish Grant's guilt.  This he had admitted in his plea; but the
1awphi1.net

court could take into consideration all of these facts and circumstances in determining whether or not
Grant should be allowed to withdraw his plea of guilty and substitute in lie thereof a plea of not guilty.
The basis of this motion which was filed in the court below is an alleged agreement which the
defendant had with the prosecuting attorney, in consideration of his entering a plea of guilty.
According to this motion at the time Grant entered his plea of guilty there existed between him and
the prosecuting attorney an agreement whereby it was mutually stipulated and agreed that for and in
consideration of this plea of guilty, and for and in consideration of the unreserved and unqualified
cooperation of the defendant in the prosecution of this cause, the prosecuting attorney would
unqualifiedly recommend to the court that the punishment to be inflicted upon this defendant be
limited to a moderate fine. It is further stated in this motion that at the trial of this case (Kennedy's)
the defendant Grant was a witness to his own guilt, and that the prosecuting attorney, after Grant
had entered his plea of guilty and after he had testified as a witness for the prosecution in the case
against Kennedy, declined to carry out that agreement by refusing to make such recommendations
to the court. In reply to these allegations in this motion the prosecuting attorney said:

That the plea of guilty was entered by the accused herein deliberately, under the guidance
and advice of his counsel, after having been fully advised in open court that the court
declined to recognize or be bound by any agreement that he might have made with the
prosecuting attorney, . . .

That the determination and cancellation of the agreement and arrangement under which the
said accused, Louis T. Grant, entered his plea of guilt was by his own act an self-confessed
perjury and failure to give the prosecuting attorney his 'unreserved and unqualified
cooperation' in the prosecution of his codefendant, Kennedy. But should this court esteem
that the said Louis T. Grant, accused, has not by such acts and failure on his part to carry
out said agreement released the prosecuting attorney from obligation thereunder, then the
court has full power to give the accused the full benefit of said punishment upon the said
accused in accordance with said agreement, in which case the accused would not be
prejudiced.
So the prosecuting attorney did, in fact, enter into a certain agreement with counsel for the
defendant with reference to his entering a plea of guilty and assisting the prosecution. The
prosecuting attorney does not say what this agreement was. Counsel for he defense says that the
prosecuting attorney agreed to recommend that the court impose a moderate fine only; while the
defendant himself testifies that he was told that the prosecuting attorney would recommend that the
court take into consideration his plea of guilty and the fact that he testified for the prosecution
against Kennedy. The defendant further testified that he was told that the court declined to be bound
by any agreement and that he did not understand that there was to be any specific amelioration of
penalty in his case. Grant failed to carry out his agreement with the prosecuting attorney and for this
reason the prosecuting attorney declined to make any recommendation. Before Grant entered this
plea he was given to understand that the court would not be bound by any agreement and after this
understanding he, upon the advice of able counsel, entered his plea of guilty and in his testimony
confessed his guilt.

A voluntary plea of guilty is a confession of guilt, and the court must accept the plea and pronounce
the proper judgment and sentenced. On entering such a plea an accused person waives those rights
and privileges set forth in the statement of counsel heretofore copied.

It is wholly in the discretion of the court whether a plea of any sort may be withdrawn.
Permission may always be granted, but unless an abuse of discretion is shown the refusal of
permission to withdraw a plea is not error. (12 Cyc., 350.) "But abuse of discretion in refusing
to allow his plea of guilty to be withdrawn is reversible error." (12 Cyc., 352.) 
lawphil.net

Did the trial court abuse its discretion in refusing to allow the defendant to withdraw his plea of guilty
and substitute therefor a plea of not guilty? We think it did not. Before this plea was entered the
defendant was represented by able counsel and he had full opportunity to consult with them.

In the case of State vs. Yates (52 Kan., 566), an information was filed against Yates charging him in
several different counts with having violated the liquor law in his drug store in the city of Hiawatha.
Subsequently there to the county attorney filed an amended information charging Yates with keeping
a places wherein intoxicating liquors were received and kept for the purpose of use as a beverage.
To this amended complaint Yates plead guilty. He was thereupon sentenced to pay a fine of $300 U.
S. currency and costs and to be committee to jail until the fine and cost were paid. Yates presented
a motion to set aside his plea of guilty, alleging that he was induced to plead guilty upon promise of
the county attorney that only a fine of $100 U. S. currency, would be imposed. This motion was
denied and Yates appealed. The plea of guilty was not entered because of anything said or done by
the trial judge. The court said:

We can not perceive from a careful reading of the evidence that the county attorney acted in
bad faith in any way toward the defendant; nor was the trial court under any duty to inflict the
minimum sentenced permitted by the statute by anything said or done by the county
attorney.

The judgment was affirmed.

In Neeley's case (27 Texas Criminal Appeals, 324), the court said:

Having violated his agreement to testify in behalf of the State, the defendant was not entitled
to exemption from prosecution by virtue of said agreement. It is well settled that where
a particeps criminis, for the purpose of securing exemption from prosecution, agrees to
testify in behalf of the State against his accompliance in crime, and violates such agreement
by refusing to testify, in good faith, fairly and fully to facts within his knowledge, he can not
claim the benefit of such agreement and may be prosecuted and convicted, regardless
thereof. (Citing Bish. Crim. Proc., sec. 1174; 1 Greenl. on Ev., sec. 379; Rosc. Crim. Ev.,
secs. 132, 133; Whart. Crim. Ev., secs. 443, 656; Holmes vs. State, 20 Texas Criminal
Appeals, 517.)

The prosecuting attorney says that the termination and cancellation of the agreement with the
defendant Grant was by his own act and failure to give the prosecuting attorney his unreserved and
unqualified cooperation. In reply to this, counsel for Grant insist that if the prosecuting attorney had
had just cause to repudiate this agreement, even then the prosecution should not insist upon the
plea of guilty standing. Grant's attorneys did not insist in the court below that their client had given
the prosecution unreserved and unqualified cooperation in the case against Kennedy; while, on the
other hand, the prosecuting attorney says that Grant did not do this and he, therefore, declined to
make any recommendations and submitted the whole matter to the court.

The accused must give a reason for, and full evidence of, a request to withdraw a plea of guilty.
(Griffith vs. State, 36 Ind., 406; Commonwealth vs. Winton, 108 Mass., 485.)

The mere fact that the punishment which Grant received is greater than he expected
(Mastronada vs. State, 60 Miss., 86), or that the prosecution proved aggravating circumstances
(Mounts vs. Commonwealth, 89 Ken., 274) is not sufficient cause to require permission to withdraw
his plea.

In support of the third assignment of error it is insisted that, under the rule established by the law of
criminal procedure in this jurisdiction, the calling of the defendant, as a witness, by the prosecution,
as a matter of right, constitutes a discharged and an acquittal of the defendant so called. In support
of this proposition counsel cite the provisions of paragraph 3, section 5 of the Act of Congress of July
1, 1902, and sections 15, 24, and 26 of General Orders, No. 58. Section 5 of the Act of Congress of
July 1, 1902, provides that no person held to answer for a criminal offense shall be compelled to be
a witness against himself. The same provision is contained in section 15 of General Orders No. 58.
Section 24 of this General Orders deals with the different kinds of pleas which may he entered by a
defendant, one of which is that of guilty, and section 26 provides that when a defendant shall have
been convicted, acquitted, or once placed in jeopardy upon an information or complaint, such act is
bar to another information or indictment for the same offense. So it will be seen that these two
sections are hardly applicable to the question under consideration.

Sections 34, 35, and 36 of General Orders, No. 58 provide for the exclusion of the codefendant on
application of the prosecuting attorney to be used as a witness for the prosecution, and also for the
discharge of such codefendant when in the opinion of the court there is not sufficient evidence to put
him upon his defense. When a defendant is excluded or discharged, the order excluding or
discharging him shall amount to an acquittal and be a bar to a future prosecution for the same
offense. Neither the provisions of the Philippine Bill, nor those of General Orders, No. 58 prohibit the
calling of a defendant testify for the prosecution against his codefendants after he himself has
entered a plea of guilty, when such defendant testifies of his own free will. To hold that a defendant,
after he has entered a plea of guilty and testified as a witness for prosecution, must be discharged or
acquitted would be placing the power in the hands of criminals to escape punishment by reason of
their own acts. It is perfectly legal to permit a defendant, after he has pleaded guilty, to testify against
his codefendants. (Authorities cited under ninth assignment of error of defendant Kennedy.) The
defendant Grant having voluntarily elected to enter a plea guilty and then testify as a witness for the
prosecution against his codefendant, can not now complain.

The two defendants, Kennedy and Grant, are intelligent men, with broad experience.  They well
lawphil.net

knew the gravity of the offense which they committed. They committed this crime after much
planning and deliberation, and in doing so not only violated the Customs Act but brought into this
country articles which unauthorized persons (such as the defendants in this case) are absolutely
prohibited from having in their possession. Section 31 of Act No. 1761, known as the Opium Law,
provides that any unauthorized person, owning, holding, having, controlling, having possession of, or
knowingly having on his premises, any opium, cocaine, etc., on and after March 1, 1908, shall be
punished by fine not exceeding P10,000, or by imprisonment for not exceeding five years, or both
such fine and imprisonment in the discretion of the court. The very intention of the legislative body in
enacting this law was to rid this country of the deadly vice of opium smoking. So we think that, under
all the facts and circumstances in this case, especially considering the enormous quantity of opium,
morphine and cocaine which these two defendants brought into this country, strict justice requires a
more severe penalty than that imposed by the court below.

We, therefore, modify the judgement and sentence of the lower court in so far as it imposes a
penalty of one year's imprisonment on each of the defendants, and instead thereof we sentence
each of the defendants herein, William Kennedy and Louis T. Grant, to two years' imprisonment.
With this modification the judgment and sentence of the trial court is affirmed, with the costs of this
instance against the appellants. So ordered.

Arellano, C. J., Torres, Johnson and Moreland, JJ., concur.