EN BANC

G.R. No. L-1201   October 10, 1903

THE UNITED STATES,Complainant-Appellee, vs. JUAN MELCHOR,Defendant-Appellant.

T. Aitken for appellant.
Office of the Solicitor-General Araneta for appellee.

MCDONOUGH, J.:

This is an appeal from a judgment of the Court of First Instance convicting the appellant of homicide, and sentencing him to imprisonment for twelve years and one day, and to pay the widow of the deceased 500 pesos. c.j.chanrobles virtual law library

The killing of Gregorio Raymundo took place January 1, 1903, in the pueblo of Binmaley, Pangasinan, under such circumstances as to make it homicide, unless the testimony of the defendant be believed. He swore that on returning from the nipa plantation, in the afternoon of that day, he noticed something wrong in his house, and that on hurrying into it he discovered Raymundo in the act of adultery with the wife of the defendant; that he took a club with which to hit Raymundo, who then tried to stab defendant with a bolo; that they fought, after a while the defendant got the bolo, chased Raymundo and killed him with it.chanrobles virtual law library

The proof on behalf of the prosecution shows that no previous ill will existed between defendant and the deceased; that they lived near each other, and that their wives were sisters. No attempt was made on the part of the Government to contradict the testimony of the defendant or to impeach his veracity. Unless the defendant's statement be discredited there would seem to be no motive for the crime, and, if we credit his statement, the conviction must be reversed.chanrobles virtual law library

The first witness called by the public prosecutor was the wife of the defendant, and, after, asking her usual preliminary questions, her further testimony was objected to by counsel for the defendant, and she was excused by the court from testifying under section 58 of General Orders, No. 58, on the ground that his objection made her incompetent as a witness. c.j.chanrobles virtual law library

This section reads as follows: "Except with the consent of both, or except in case of crime committed by one against the other, neither husband nor wife shall be a competent witness for or against the other in a criminal action or proceeding to which one or both parties."chanrobles virtual law library

But in this decision the learned judge who tried the case laid stress on the fact that as the defendant had objected to the testimony of his wife this action on his part was to be considered as un unfavorable circumstance against him.chanrobles virtual law library

The learned Solicitor-General also takes this view of the effect of the objection of the defendant to his wife as a witness, and cites as an authority to sustain this construction the case of Toomey vs. Lyman (15 N.Y. Sup. Ct., 883).chanrobles virtual law library

An examination of that case shows that it is not an authority in this case because the absentee was qualified to testify. It was a civil action brought to set aside a transfer or property made in fraud of creditors, and the husband of one of the parties, although he was a competent witness, was not called by the wife.chanrobles virtual law library

Neither the Code of Civil Procedure nor the Penal Code of New York disqualifies a husband or wife from being a witness for or against each other, except as to confidential communications. (N.Y. code of Civ. Proc., sec. 828; N.Y. Penal Code, sec. 715.)chanrobles virtual law library

The policy of the common law, excluding a husband or wife from being a witness against the other, was founded on the identity of their legal rights and interest, as well as of public policy. It was considered essential to the happiness of social life that the confidence subsisting between husband and wife should be protected and cherished in its most unlimited extent, and to break down or impair the great principles which protect the sanctities of the relation would be destroy the best solace of human existence. (1 Greenleaf on Ev., sec. 335.)chanrobles virtual law library

This policy of the common law was followed in General Orders, No. 58.chanrobles virtual law library

The defendant simply exercised his legal right in objecting to the testimony of his wife, and a hostile presumption should not be drawn from such action on his part.chanrobles virtual law library

In the case of Graves vs. The United States (150 U.S., 118) during the summing up before the jury the district attorney commented on the failure of the defendant, who was charged with murder, to have his wife in court, so that she could be pointed out to the witnesses for the prosecution for the purpose of identifying her as being present with the defendant at the place where the murder was committed.chanrobles virtual law library

The defendant was convicted, and on appeal to the Supreme Court of the United States one of the errors alleged was the permitting of the district attorney to make those comments, and the court reversed the conviction for this error alone, though many others were alleged.chanrobles virtual law library

Mr. Justice Brown, in delivering the prevailing opinion of the court, said:

In this case the wife was not a competent witness, either in behalf of or against her husband, If he had brought her into court neither he nor the Government could have put her on the stand, he was under no obligation to produce her for the purposes assigned by the district attorney. ... Permission to make comment was equivalent to saying to the jury that it was a circumstance against the accused that he had failed to produce his wife for identification, when knowing she could not be a witness, he was under no obligation to do so.

The wife of the defendant, Melchor, in this case became disqualified to testify for the prosecution on the objection of the defendant in the exercise of his legal right.chanrobles virtual law library

It was said by Mr. Justice Brewer, in a dissenting opinion in the Graves case, supra, that "if it be developed that a witness exists, presumably under the control of the defendant, who can throw light upon a vital matter, and he is not produced, may not the jury fairly consider that fact?"chanrobles virtual law library

We can not say, as a matter of fact, or even presume, in this case that the wife of the defendant, Melchor, was under his control. She was doubtless interested in shielding herself from the shame as well as from him, and, therefore, a hostile witness interested in protecting her own reputation and that of her paramour.chanrobles virtual law library

We can not, therefore, infer guilt from a failure on the part of the defendant to permit the prosecution to examine this disqualified witness.chanrobles virtual law library

If a defendant should try to prove his defense by other witnesses, and should not testify in his own behalf, and the court below say: "You should not take advantage of your privilege not to testify; if you were innocent you would have testified; you did not do so; therefore I take that as a circumstance against you and find you guilty," would not defendant's privilege not to testify be detrimental to him instead of beneficial?chanrobles virtual law library

And so the privilege given to a husband or wife would be of no advantage if the Government could call either of them as a witness against the other, and, objection being made by the defendant, draw from such objection an inference of guilt.chanrobles virtual law library

We are of the opinion, therefore, that they judgment convicting the defendant of homicide should be reversed, and that the defendant should be convicted under the provisions of article 423 of the Penal Code and punished with the penalty of banishment, following the precedent of this court in the case of the United States, vs. Vargas et al., (1 Off. Gaz., 434). ¹ chanrobles virtual law library

The judgment of the court below is reversed and the defendant is condemned to the penalty of destierro for the term of two years four months and one day, and to pay to Luisa Zamora, the widow of the deceased, 500 pesos, and, in case of insolvency, to subsidiary destierro for a term which can not exceed one-third of the above penalty, he being prohibited from entering within a radius of 25 kilometers from the pueblo of Binmaley, in the Province of Pangasinan, during the term aforesaid, with costs to the appellant.chanrobles virtual law library

Arellano, C.J., Torres, Cooper, Willard, and Mapa, JJ., concur.
Johnson, J., did not sit in this case.

Endnotes:

¹ Page 194, supra.