EN BANC

[G.R. No. 10396. July 29, 1915. ]

THE UNITED STATES, Plaintiff-Appellee, v. TERESA CONCEPCION, Defendant-Appellant.

M. Jesus Cuenco for Appellant.

Attorney-General Avanceña for Appellee.

SYLLABUS

1. OPIUM; ILLEGAL POSSESSION OF OPIUM; ANIMUS POSSIDENDI. — The house of R, the

husband of the defendant, was searched for opium. During the search R told the defendant to
take from the bed a can alleged to contain opium, and throw it away. She went to the bed, found
the can, and at that moment was discovered by the policeman. She denied prior knowledge of
the existence of the can. This fact was supported by the declaration of her husband. There was
no proof that she used opium in any form. Held: That the proof was not sufficient to support the
charges of the complaint.

2. WITNESSES; COMPETENCY; HUSBAND OR WIFE. — A husband cannot be examined for

or against his wife, without her consent; nor a wife for or against her husband, without his
consent; nor can either, during the marriage, or afterwards, be, without the consent of the other,
examined as to any communication made by one to the other during the marriage, but this
exception does not apply to a civil action or proceeding by one against the other, or to a criminal
action or proceeding for a crime committed by one against the other. (Par. 3, sec. 383, Act No.
190; sec. 58, General Orders No. 58.) At the common law the rule was that the husband and
wife could not testify for or against the other, in any criminal proceedings, except in the
prosecution of one for criminal injury to the other. The rule is based upon considerations of
public policy, growing out of the marital relation. To allow one to testify for or against the other
would be to subject him or her to great temptation to commit perjury and to endanger the
harmony and confidence of the marital relation.

3. ID.; ID.; ID.; DECLARATION MADE IN ANOTHER CASE. — R declared in a criminal action
against himself. Later, in a criminal action against C, said declaration was presented as proof
and accepted, over the objection of C. No proof was offered to show that R was not still alive.
Said declarations are not only not admissible by virtue of the provisions of section 383 of Act
No. 190 and section 58 of General Orders No. 58, but also by virtue of the provisions of
paragraph 2 of section 5 of the Act of Congress of July 1, 1902. C, the defendant, was not given
an opportunity "to meet the witness face to face." The acceptance of the testimony of her
husband, R, given in another case, was in absolute violation of her rights, and in direct
contravention of the law.

DECISION

JOHNSON, J. :

The defendant was charged with a violation of the Opium Law. The complaint alleged
that she had in her possession and under her control a quantity of opium. She was
arrested, arraigned, pleaded not guilty, tried, found guilty, and sentenced to pay a fine
of P300 and costs.

From that sentence she appealed to this court. In this court she alleges that the lower
court committed several errors, both of law and of fact. Upon the question of fact, she
alleges that the lower court committed an error in deciding that the evidence adduced
during the trial of the cause was sufficient to show that she was guilty of the crime
charged beyond a reasonable doubt.

Upon that question the Attorney-General, in a carefully prepared brief in which he

analyzes the proof, reaches the conclusion that the facts are insufficient to show that
she is guilty of the crime charged.

It appears from the evidence that on the night of the 2d of December, 1913, several
policemen went to the house of the defendant, where she was living with her husband,
Felix Ricablanca. Upon arriving there, they obtained permission to enter and
immediately proceeded to make a search of the premises for opium. While there is
some dispute concerning the fact, we believe the proof shows that the defendant,
during the time the policemen were searching the house, went to a bed located in the
house, after being so ordered by her husband, and took from beneath a pillow a small
can of opium, said to contain about 7½ grams of opium, and attempted to throw it
away. At that moment the policemen took possession of the can. There is some conflict
in the proof as to just what took place at that moment. That the policemen inquired to
whom the opium belonged is not denied. The conflict arises in the answer which was
given to that question. The defendant in the present case, according to some of the
witnesses, declared that it belonged to her. Her husband, Felix Ricablanca, according to
some witnesses, declared that he was the owner of the house and was responsible for
everything that was found within it. The policemen, at that moment, evidently believed
that the opium belonged to the husband, Felix Ricablanca, for the reason that they
arrested him and took him to the pueblo, and later filed a complaint against him for a
violation of the Opium Law. He was later brought to trial and was acquitted.
No complaint was presented against the present defendant until after a period of more
than ten months had elapsed. The policemen who were present at the time the opium
was found certainly knew no more about the facts at the time the complaint was
presented against the present defendant than they did on the night when the opium
was found and when they arrested her husband. The fact that the defendant took the
opium from under the pillow on the bed, at the request of her husband, seems to us to
be entirely supported by the proof. Her husband was a confirmed user of opium. He
admitted that he was in the habit of smoking opium. That the defendant was
temporarily in possession of the opium is not denied, even by her. That her possession
was such a possession as is prohibited by the law, she strongly denies. The mere fact
that she had in her possession the opium for but a moment and took possession of it
under her husband’s order, is not, in our opinion, such a possession of opium as is
intended to be condemned by the law. She certainly did not intend, even remotely, to
have in her possession opium. She did exactly what any other faithful wife would have
done under similar circumstances. There is no proof that she was a user of opium in
any form. There is no proof that she knew that the can contained opium and
consequently there is no proof of the animus possidendi. In the absence of such proof
there can be no conviction under the complaint for the illegal possession of opium.

The appellant makes another assignment of error which presents an important question
of law. She alleges that the lower court committed an error in permitting the testimony
of her husband to be presented against her over her objection. She alleges that the
admission of that testimony was in violation of paragraph 3 of section 383 of the Code
of Procedure in Civil Actions. Said paragraph provides: "A husband can not be examined
for or against his wife without her consent; nor a wife for or against her husband
without his consent; nor can either, during the marriage or afterwards, be, without the
consent of the other, examined as to any communication made by one to the other
during the marriage; but this exception does not apply to a civil action or proceeding by
one against the other, or to a criminal action or proceeding for a crime committed by
one against the other."cralaw virtua1aw library

It will be noted that said section prohibits a husband from giving testimony against his
wife without her consent, except in a civil action between husband and wife, and in a
criminal action when the crime was committed by one against the other. The present is
not a civil action between husband and wife, neither is it a criminal action where the
crime was committed by one against the other. It would seem to be clear, therefore,
that the testimony of the husband is not admissible if the wife objected. The testimony
of the husband should not have been admitted.

There is still another objection to the admissibility of the testimony of the husband. His
testimony was not given in the present case. It was a copy of his declaration given in
another case, in which he was the defendant and in which he was charged with the
illegal possession of the opium in question. It will be remembered that at the time the
opium was found in the house of the defendant, the husband of the present defendant
was arrested; that later a complaint was presented against him. During the trial he
testified in his own behalf. It was the testimony given in that case which was presented
as proof in the present case. He was not called as a witness. His testimony is not only
not admissible under the provisions above quoted of section 383, but it is not
admissible under the Philippine Bill, which provides: "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, to have a speedy and public trial, to meet the
witnesses face to face, and to have compulsory process to compel the attendance of
witnesses in his behalf."cralaw virtua1aw library

The defendant was not given an opportunity "to meet the witness face to face." The
acceptance of the testimony of her husband, given in another case, was in absolute
violation of her rights and in direct contravention of the law. The presentation and
acceptance of the testimony of the husband violated two well-recognized rules of law —
first, paragraph 3 of section 383 of Act No. 190, and [second,] paragraph 2 of section 5
of the Act of Congress of July 1, 1902.

At the common law the rule was that husband and wife could not testify for or against
each other in any criminal proceedings, except in the prosecution of one for criminal
injury to the other. The common-law rule has been adopted in practically all of the
States of the United States. The rule is based upon considerations of public policy
growing out of the marital relation. To allow one to testify for or against the other would
be to subject him or her to great temptation to commit perjury and to endanger the
harmony and confidence of the marital relation. The cases supporting the rule are
innumerable.

For the foregoing reasons, the sentence of conviction must be revoked, and it is hereby
ordered and decreed that the complaint be dismissed and the defendant discharged
from the custody of the law, with costs de officio. So ordered.

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

Carson and Trent, JJ., concur in the result.