Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No.

L-18924 October 19, 1922

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellant, vs. WONG CHENG (alias WONG CHUN), defendant-appellee. Attorney-General Villa-Real for appellant. Eduardo Gutierrez Repide for appellee. ROMUALDEZ, J.: In this appeal the Attorney-General urges the revocation of the order of the Court of First Instance of Manila, sustaining the demurrer presented by the defendant to the information that initiated this case and in which the appellee is accused of having illegally smoked opium, aboard the merchant vessel Changsa of English nationality while said vessel was anchored in Manila Bay two and a half miles from the shores of the city. The demurrer alleged lack of jurisdiction on the part of the lower court, which so held and dismissed the case. The question that presents itself for our consideration is whether such ruling is erroneous or not; and it will or will not be erroneous according as said court has or has no jurisdiction over said offense. The point at issue is whether the courts of the Philippines have jurisdiction over crime, like the one herein involved, committed aboard merchant vessels anchored in our jurisdiction waters.
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There are two fundamental rules on this particular matter in connection with International Law; to wit, the French rule, according to which crimes committed aboard a foreign merchant vessels should not be prosecuted in the courts of the country within whose territorial jurisdiction they were committed, unless their commission affects the peace and security of the territory; and the English rule, based on the territorial principle and followed in the United States, according to which, crimes perpetrated under such circumstances are in general triable in the courts of the country within territory they were committed. Of this two rules, it is the last one that obtains in this jurisdiction, because at present the theories and jurisprudence prevailing in the United States on this matter are authority in the Philippines which is now a territory of the United States. In the cases of The Schooner Exchange vs. M'Faddon and Others (7 Cranch [U. S.], 116), Chief Justice Marshall said: . . . When merchant vessels enter for the purposes of trade, it would be obviously inconvenient and dangerous to society, and would subject the laws to continual infraction, and the government to degradation, if such individuals or merchants did not owe temporary and local allegiance, and were not amenable to the jurisdiction of the country. . . . In United States vs. Bull (15 Phil., 7), this court held: . . . No court of the Philippine Islands had jurisdiction over an offense or crime committed on the high seas or within the territorial waters of any other country, but when she came within three miles of a line drawn from the headlands, which embrace the entrance to Manila Bay, she was within territorial waters, and a new set of principles became applicable. (Wheaton, International Law [Dana ed.], p. 255, note 105; Bonfils, Le Droit Int., secs. 490 et seq.; Latour, La Mer Ter., ch. 1.) The ship and her crew were then subject to the jurisdiction of the territorial sovereign subject to such limitations as have been conceded by that sovereignty through the proper political agency. . . . It is true that in certain cases the comity of nations is observed, as in Mali and Wildenhus vs. Keeper of the Common Jail (120 U.., 1), wherein it was said that: . . . The principle which governs the whole matter is this: Disorder which disturb only the peace of the ship or those on board are to be dealt with exclusively by the sovereignty of the home of the ship, but those which

disturb the public peace may be suppressed, and, if need be, the offenders punished by the proper authorities of the local jurisdiction. It may not be easy at all times to determine which of the two jurisdictions a particular act of disorder belongs. Much will undoubtedly depend on the attending circumstances of the particular case, but all must concede that felonious homicide is a subject for the local jurisdiction, and that if the proper authorities are proceeding with the case in the regular way the consul has no right to interfere to prevent it. Hence in United States vs. Look Chaw (18 Phil., 573), this court held that: Although the mere possession of an article of prohibited use in the Philippine Islands, aboard a foreign vessel in transit in any local port, does not, as a general rule, constitute a crime triable by the courts of the Islands, such vessels being considered as an extension of its own nationality, the same rule does not apply when the article, the use of which is prohibited in the Islands, is landed from the vessels upon Philippine soil; in such a case an open violation of the laws of the land is committed with respect to which, as it is a violation of the penal law in force at the place of the commission of the crime, no court other than that established in the said place has jurisdiction of the offense, in the absence of an agreement under an international treaty. As to whether the United States has ever consented by treaty or otherwise to renouncing such jurisdiction or a part thereof, we find nothing to this effect so far as England is concerned, to which nation the ship where the crime in question was committed belongs. Besides, in his work "Treaties, Conventions, etc.," volume 1, page 625, Malloy says the following: There shall be between the territories of the United States of America, and all the territories of His Britanic Majesty in Europe, a reciprocal liberty of commerce. The inhabitants of the two countries, respectively, shall have liberty freely and securely to come with their ships and cargoes to all such places, ports and rivers, in the territories aforesaid, to which other foreigners are permitted to come, to enter into the same, and to remain and reside in any parts of the said territories, respectively; also to hire and occupy houses and warehouses for the purposes of their commerce; and, generally, the merchants and traders of each nation respectively shall enjoy the most complete protection and security for their commerce, but subject always to the laws and statutes of the two countries, respectively. (Art. 1, Commerce and Navigation Convention.) We have seen that the mere possession of opium aboard a foreign vessel in transit was held by this court not triable by or courts, because it being the primary object of our Opium Law to protect the inhabitants of the Philippines against the disastrous effects entailed by the use of this drug, its mere possession in such a ship, without being used in our territory, does not being about in the said territory those effects that our statute contemplates avoiding. Hence such a mere possession is not considered a disturbance of the public order. But to smoke opium within our territorial limits, even though aboard a foreign merchant ship, is certainly a breach of the public order here established, because it causes such drug to produce its pernicious effects within our territory. It seriously contravenes the purpose that our Legislature has in mind in enacting the aforesaid repressive statute. Moreover, as the Attorney-General aptly observes: . . . The idea of a person smoking opium securely on board a foreign vessel at anchor in the port of Manila in open defiance of the local authorities, who are impotent to lay hands on him, is simply subversive of public order. It requires no unusual stretch of the imagination to conceive that a foreign ship may come into the port of Manila and allow or solicit Chinese residents to smoke opium on board. The order appealed from is revoked and the cause ordered remanded to the court of origin for further proceedings in accordance with law, without special findings as to costs. So ordered. Araullo, C.J., Street, Malcolm, Avancea, Villamor, Ostrand and Johns, JJ., concur.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-9598 August 15, 1956

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellant, vs. YU HAI alias " HAYA", defendant-appellee. Office of the Solicitor General Ambrosio Padilla and Solicitor Antonio A. Torres for appellant. Eduardo de Leon Jr., Jose L. de Leon and Nicolas V. Benedicto Jr., for appellee. REYES, J.B.L, J.: On October 22, 1954, Yu Hai alias "Haya" was accused in the Justice of the Peace Court of Caloocan of a violation of Article 195, sub-paragraph 2 of the Revised Penal Code, for having allegedly permitted the game of panchongor paikiu, a game of hazard, and having acted as maintainer thereof, in the municipality of Caloocan on or about the 26th day of June 1954. The accused moved to quash the information on the ground that it charged more than one offense and that the criminal action or liability therefor had already been extinguished; and the Justice of the Peace of Court, in its order of December 24, 1954, sustained the motion to quash on the theory that the offense charged was a light offense which, under Article 90 of the Revised Penal Code, prescribed in two months. The provincial fiscal appealed to the Court of First Instance of the province, which affirmed the order of dismissal of the information. Wherefore, the provincial fiscal appealed directly to this Court. The sole issue is the period for prescription of the offense charged, punishable under Article 195 of the Revised Penal Code by arresto menor or a fine not exceeding P200. The lower court held that the crime charged is a light offense as defined in Article 9 of the Code, and prescribed in two months; while the Solicitor General argues that as the crime charged may be punished by a maximum fine of P200 (a correctional penalty under Article 26),the same prescribe, also under Article 90, in ten years. The pertinent legal provisions of the Revised Penal Code are: ART. 90. Prescription of crimes. xxx xxx xxx

Those punishable by a correctional penalty shall prescribe in ten years; with the exception of those punishable by arresto mayor, which shall prescribe in six months. The crime of libel or other similar offenses prescribe in two years. The offense of oral defamation and slander by deed shall prescribe in six months. Light offense prescribe in two months. xxx xxx xxx

ART. 9. Grave felonies, less grave felonies, and light felonies. xxx xxx xxx

Less grave felonies are those which the law punishes with penalties which in their period are correctional, in accordance with the above mentioned article. Light felonies are those infraction of law for the commission of which the penalty of arresto mayor or a fine not exceeding 200 pesos or both, is provided. ART. 26. Fine, when afflictive, correctional, or light. A fine, whether imposed as a single or as an alternative penalty, shall be considered an afflictive penalty, if it exceeds 6,000 pesos; a correctional penalty, if it does not exceed 6,000 pesos but is not less than 200 pesos; and a light penalty if it be less than 200.

Under Article 90, supra, "light offenses prescribe in two months". The definition of "light offenses" is in turn to be found in Article 9, which classifies felonies into grave, less grave, and light, and defines "light felonies" as "those infraction of law for the commission of which the penalty of arresto mayor or a fine not exceeding 200 pesos or both is provided ". The offense charged in punishable by arresto menor or a fine not exceeding 200 pesos (Article 195). Hence, it is a "light offense" under Article 9 and prescribes in two months under Article 90. The Solicitor General argues that as the crime charged may be punished by a maximum fine of P200, which under Article 26 is a correctional penalty, the time for prescription thereof is ten years, pursuant to paragraph 3 of Article 90. This argument is untenable. In the First place, while Article 90 provides that light offense prescribe in two months, it does not define what is meant by "light offenses" , leaving it to Article 9 to fix its meaning. Article 26, on the other hand, has nothing to do with the definition of offenses, but merely classifies fine, when imposed as a principal penalty, whether singly or in the alternative into the categories of afflictive, correctional, and light penalties. As the question at issue is the prescription of the crime and not the prescription of a penalty, Article 9 should prevail over Article 26. In the second place, Article 90 could not have intended that light offenses as defined by Article 9 would have two prescriptive periods two months if they are penalized by arresto menor and/or a fine of less than P200. and ten years if penalized by a maximum fine of P200. Under the theory of the Solicitor General, the difference of only one peso in the imposable fine would mean all the difference of nine years and ten months in the prescriptive period of the offense. And what is worse, the proper prescriptive period could not be ascertained until and unless the court decided which of the alternative penalties should be imposed; which the court could not properly do if the offense had prescribed, for then it could no longer be prosecuted. These absurd results the law-makers could not have wittingly intended, especially since more serious offenses as those punishable by arresto mayor (a correctional penalty) prescribe, also under Article 90, in five years, while other "less grave" offense like libel, and oral defamation and slander, prescribe in even shorter periods of times, tow years and six months respectively. As held in the case of People vs. Florendo, 73 Phil., 679, there is no reason to suppose that the law-maker would raise the prescriptive period for certain light offenses over other light offenses. It should also punishable by arresto menor of a fine not exceeding 200 pesos or both. Now, if we are to follow the argument of the Solicitor General that Article 26 should prevail over Article 9 if the offense is punishable by a maximum fine of P200 we would again have the absurd situation that an offense penalized by arresto menor or fine not exceeding P200 in the alternative, would be a less grave felony, while the more serious one, which the law penalizes with both imprisonment of arresto menor and a fine not exceeding P200, remains only a "light offense". Finally, criminal statutes are to be strictly construed against the government and liberally in favor of the accused. As it would be more favorable to the herein accused to apply the definition of "light felonies" under Article 9 in connection with the prescriptive period of the offense charged, being a light offense, prescribed in two months. As it was allegedly committed on June 26, 1954 and the information filed only on October 22, 1954, the lower court correctly ruled that the crime in question has already prescribed. The decision appealed from is affirmed, with the costs de oficio. So ordered. Paras, C.J., Bengzon, Padilla, Montemayor, Reyes, A., Bautista Angelo, Concepcion, Endencia and Felix, JJ.,concur.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-44896 July 31, 1936

RODOLFO A. SCHNECKENBURGER, petitioner, vs. MANUEL V. MORAN, Judge of First Instance of Manila, respondent. Cardenas and Casal for petitioner. Office of the Solicitor-General Hilado for respondent. ABAD SANTOS, J.: The petitioner was duly accredited honorary consul of Uruguay at Manila, Philippine Islands on June 11, 1934. He was subsequently charged in the Court of First Instance of Manila with the crime of falsification of a private document. He objected to the jurisdiction of the court on the ground that both under the Constitution of the United States and the Constitution of the Philippines the court below had no jurisdiction to try him. His objection having been overruled, he filed this petition for a writ of prohibition with a view to preventing the Court of First Instance of Manila from taking cognizance of the criminal action filed against him. In support of this petition counsel for the petitioner contend (1) That the Court of First Instance of Manila is without jurisdiction to try the case filed against the petitioner for the reason that under Article III, section 2, of the Constitution of the United States, the Supreme Court of the United States has original jurisdiction in all cases affecting ambassadors, other public ministers, and consuls, and such jurisdiction excludes the courts of the Philippines; and (2) that even under the Constitution of the Philippines original jurisdiction over cases affecting ambassadors, other public ministers, and consuls, is conferred exclusively upon the Supreme Court of the Philippines. This case involves no question of diplomatic immunity. It is well settled that a consul is not entitled to the privileges and immunities of an ambassador or minister, but is subject to the laws and regulations of the country to which he is accredited. (Ex parte Baiz, 135 U. S., 403; 34 Law. ed., 222.) A consul is not exempt from criminal prosecution for violations of the laws of the country where he resides. (U. S. vs. Ravara, 2 Dall., 297; 1 Law. ed., 388; Wheaton's International Law [2d ed.], 423.) The substantial question raised in this case is one of jurisdiction. 1. We find no merit in the contention that Article III, section 2, of the Constitution of the United States governs this case. We do not deem it necessary to discuss the question whether the constitutional provision relied upon by the petitioner extended ex propio vigore over the Philippines. Suffice it to say that the inauguration of the Philippine Commonwealth on November 15, 1935, has brought about a fundamental change in the political and legal status of the Philippines. On the date mentioned the Constitution of the Philippines went into full force and effect. This Constitution is the supreme law of the land. Not only the members of this court but all other officers, legislative, executive and judicial, of the Government of the Commonwealth, are bound by oath to support the Constitution. (Article XIII, section 2.) This court owes its own existence to the great instrument, and derives all its powers therefrom. In the exercise of its powers and jurisdiction, this court is bound by the provisions of the Constitution. The Constitution provides that the original jurisdiction of this court "shall include all cases affecting ambassadors, other public ministers, and consuls." In deciding the instant case this court cannot go beyond this constitutional provision. 2. It remains to consider whether the original jurisdiction thus conferred upon this court by the Constitution over cases affecting ambassadors, other public ministers, and consuls, is exclusive. The Constitution does not define the jurisdiction of this court in specific terms, but merely provides that "the Supreme Court shall have such original and appellate jurisdiction as may be possessed and exercised by the Supreme Court of the Philippine Islands at the time of the adoption of this Constitution." It then goes on to provide that the original jurisdiction of this court "shall include all cases affecting ambassadors, other public ministers, and consuls." In the light of the constitutional provisions above adverted to, the question arises whether the original jurisdiction possessed and exercised by the Supreme Court of the Philippine Islands at the time of the adoption of the Constitution was exclusive. The original jurisdiction possessed and exercised by the Supreme Court of the Philippine Islands at the time of the adoption of the Constitution was derived from section 17 of Act No. 136, which reads as follows: The Supreme Court

shall have original jurisdiction to issue writs of mandamus, certiorari, prohibition, habeas corpus, and quo warranto in the cases and in the manner prescribed in the Code of Civil Procedure, and to hear and determine the controversies thus brought before it, and in other cases provided by law." Jurisdiction to issue writs of quo warranto, certiorari, mandamus, prohibition, and habeas corpus was also conferred on the Courts of First Instance by the Code of Civil Procedure. (Act No. 190, secs. 197, 217, 222, 226, and 525.) It results that the original jurisdiction possessed and exercised by the Supreme Court of the Philippine Islands at the time of the adoption of the Constitution was not exclusive of, but concurrent with, that of the Courts of First Instance. Inasmuch as this is the same original jurisdiction vested in this court by the Constitution and made to include all cases affecting ambassadors, other public ministers, and consuls, it follows that the jurisdiction of this court over such cases is not exclusive. The conclusion we have reached upon this branch of the case finds support in the pertinent decisions of the Supreme Court of the United States. The Constitution of the United States provides that the Supreme Court shall have "original jurisdiction" in all cases affecting ambassadors, other public ministers, and consuls. In construing this constitutional provision, the Supreme Court of the United States held that the "original jurisdiction thus conferred upon the Supreme Court by the Constitution was not exclusive jurisdiction, and that such grant of original jurisdiction did not prevent Congress from conferring original jurisdiction in cases affecting consuls on the subordinate courts of the Union. (U. S. vs. Ravara, supra; Bors vs. Preston, 111 U. S., 252; 28 Law. ed., 419.) 3. The laws in force in the Philippines prior to the inauguration of the Commonwealth conferred upon the Courts of the First Instance original jurisdiction in all criminal cases to which a penalty of more than six months' imprisonment or a fine exceeding one hundred dollars might be imposed. (Act No. 136, sec. 56.) Such jurisdiction included the trial of criminal actions brought against consuls for, as we have already indicated, consuls, not being entitled to the privileges and immunities of ambassadors or ministers, are subject to the laws and regulations of the country where they reside. By Article XV, section 2, of the Constitution, all laws of the Philippine Islands in force at the time of the adoption of the Constitution were to continue in force until the inauguration of the Commonwealth; thereafter, they were to remain operative, unless inconsistent with the Constitution until amended, altered, modified, or repealed by the National Assembly. The original jurisdiction granted to the Courts of First Instance to try criminal cases was not made exclusively by any, law in force prior to the inauguration of the Commonwealth, and having reached the conclusion that the jurisdiction conferred upon this court by the Constitution over cases affecting ambassadors, other public ministers, and consuls, is not an exclusive jurisdiction, the laws in force at the time of the adoption of the Constitution, granting the Courts of First Instance jurisdiction in such cases, are not inconsistent with the Constitution, and must be deemed to remain operative and in force, subject to the power of the National Assembly to amend alter, modify, or repeal the same. (Asiatic P. Co. vs. Insular Collector of Customs, U. S. Supreme Court [Law. ed.], Adv. Ops., vol. 80, No. 12, pp. 620, 623.) We conclude, therefore, that the Court of First Instance of Manila has jurisdiction to try the petitioner, an that the petition for a writ of prohibition must be denied. So ordered. Avancea, C. J., Villa-Real, Imperial, Diaz, and Recto, JJ., concur.

Separate Opinions LAUREL, J., concurring: In my humble opinion, there are three reasons why the jurisdiction of this court over the petitioner in the instant case is concurrent and not exclusive. The strictly legal reason is set forth in the preceding illuminating opinion. The other reasons are (a) historical and based on what I consider is the (b) theory upon which the grant of legislative authority under our Constitution is predicated. (a) As the provision in our Constitution regarding jurisdiction in cases affecting ambassadors, other public ministers, and consuls, has been taken from the Constitution of the United States, considerable light would be gained by an examination of the history and interpretation thereof in the United States. The fifth resolution of the New Jersey plan (Paterson resolutions of June 15, 1787) gave the Supreme Court of the United States, the only national court under the plan, authority to hear and determine "by way of appeal, in the dernier resort . . . all cases touching the rights of ambassadors . . . ." This clause, however, was not approved. On July 18, the Convention of 1787 voted an extraordinarily broad jurisdiction to the Supreme Court extending "to cases arising under laws passed by the general legislature, and to such other questions as involve the national peace and harmony." This general proposition was considerably narrowed by Randolph in his draft of May 29 which, however, did not mention anything about ambassadors, other public ministers and consuls. But the Committee of Detail, through Rutledge, reported on August 6 as follows: "Article XI, Section 3. The jurisdiction of the Supreme Court shall extend . . . to all

cases affecting ambassadors, other public ministers and consuls; . . . In . . . cases affecting ambassadors, other public ministers and consuls, . . . this jurisdiction shall be original . . . ."On September 12, the Committee on Style reported the provision as follows: "Article III, Section 2. The judicial power shall extend . . . to all cases affecting ambassadors, other public ministers and consuls . . . In (all) cases affecting ambassadors, other public ministers and consuls . . . the Supreme Court shall have original jurisdiction." This provision was approved in the convention with hardly any amendment or debate and is now found in clause 2, section 2 of Article III of the Constitution of the United States. (The Constitution and the Courts, Article on "Growth of the Constitution", by William M. Meigs, New York, 1924, vol. 1, pp. 228, 229. See also Farrand, Records of the Federal Convention of 1787, Yale University Press, 1934, 3 vols.; Warren, The Making of the Constitution, Boston, 1928, pp. 534-537.) The word "original", however, was early interpreted as not exclusive. Two years after the adoption of the Federal Constitution, or in 1789, the First Judiciary Act (Act of September 24, 1789, 1 Stat., c. 20, 687) was approved by the first Congress creating the United States District and Circuit Courts which were nisi prius courts, or courts of first instance which dealt with different items of litigation. The district courts are now the only federal courts of first instance, the circuit courts having been abolished by the Act of March 3, 1911, otherwise known as the Judicial Code. The Judiciary Act of 1787 invested the district courts with jurisdiction, exclusively of the courts of the several states, of all suits against consuls or vice-consuls and the Supreme Court of the United States with original but not exclusive jurisdiction of all suits in which a consul or vice-consul shall be a party. By the passage of the Act of February 18, 1875 (18 Stat., 470, c. 137), the clause giving the federal courts exclusive jurisdiction was repealed and, since then state courts have had concurrent jurisdiction with the federal courts over civil or criminal proceedings against a consul or vice-consul. At the present time, the federal courts exercise exclusive jurisdiction "of suits or proceedings against ambassadors or other or other public ministers, or their domestics or domestic servants, as a court of law can have consistently with the law of nations; and original, but not exclusive, jurisdiction, of all suits brought by ambassadors or other public ministers, or in which a consul or vice-consul is a party." (Act of March 8, 1911, 36 Stat., 1156, reenacting sec. 687 of the Act of September 24, 1789; 28 U. S. C. A., sec. 341; Hopkins' Federal Judicial Code, 4th ed., by Babbit, 1934, sec. 233.) The district courts now have original jurisdiction of all suits against consuls and vice-consuls." (Act of March 3, 1911, 36 Stat., 1093; 28 U. S. C. A., sec. 41, subsec. 18; Hopkins' Federal Judicial Code, 4th ed., by Babbit, 1934, sec. 24, par. 18.) The Judiciary Act of 1789 was one of the early and most satisfactory acts passed by the Congress of the United States. It has remained essentially unchanged for more than 145 years. It was prepared chiefly by Oliver Ellsworth of Connecticut (1 Ann. Cong., 18, April 7, 1789) one of the ablest jurists in the Constitutional Convention, who was later Chief Justice of the Supreme Court of the United States (1796-1800). It is interesting to note that 10 of the 18 senators and 8 of the members of the House of the first Congress had been among the 55 delegates who actually attended the Convention that adopted the federal Constitution (Warren, Congress, the Constitution and the Supreme Court [Boston, 1935], p. 99). When, therefore, the first Congress approved the Judiciary Act of 1789 vesting in the Supreme Court original but not exclusive jurisdiction of all suits in which a consul or a vice-consul shall be a party, express legislative interpretation as to the meaning of the word "original" as not being exclusive was definitely made and this interpretation has never been repudiated. As stated by the Supreme Court of the United States in Ames vs. Kansas ([1884], 111 U. S., 449; 4 S. Ct., 437; 28 Law. ed., 482): In view of the practical construction put on this provision of the Constitution by Congress, at the very moment of the organization of the government, and of the significant fact that, from 1789 until now, no court of the United States has ever in its actual adjudications determined to the contrary, we are unable to say that it is not within the power of Congress to grant to the inferior courts of the United States jurisdiction in cases where the Supreme Court has been vested by the Constitution with original jurisdiction. It rests with the legislative department of the government to say to what extent such grants shall be made, and it may safely be assumed that nothing will ever be done to encroach upon the high privileges of those for whose protection the constitutional provision was intended. At any rate, we are unwilling to say that the power to make the grant does not exist. Dicta in some earlier cases seem to hold that the word "original" means "exclusive" and as observed by Justice Field in United States vs. Louisiana ([1887], 123 U. S., 36; 8 S. Ct., 17; 31 Law. ed., 69), the question has given rise to some differences of opinion among the earlier members of the Supreme Court of the United States. (See, for instance, dissenting opinion of Iredell, J., in U. S. vs. Ravara [1793], 2 Dall., 297; 1 Law. ed., 388.) Reliance was had on more or less general expressions made by Chief Justice Marshall in the case of Marbury vs. Madison ([1803], 1 Cranch, 137; 2 Law. ed., 60), where it was said: "If congress remains at liberty to give this court appellate jurisdiction, where the constitution has declared their jurisdiction shall be original; and original jurisdiction where the constitution has declared it shall be appellate; the distribution of jurisdiction, made in the constitution, is form without substance." But Chief Justice Marshall who penned the decision in this case in 1803 had occasion later, in 1821, to explain the meaning and extent of the pronouncements made in the Marbury case. He said:

In the case of Marbury vs. Madison ([1803], 1 Cranch [U. S.], 137, 172; 2 Law. ed., 60), the single question before the court, so far as that case can be applied to this, was, whether the legislature could give this court original jurisdiction in a case in which the Constitution had clearly not given it, and in which no doubt respecting the construction of the article could possibly be raised. The court decided, and we think very properly, that the legislature could not give original jurisdiction in such a case. But, in the reasoning of the court in support of this decision, some expressions are used which go far beyond it. The counsel for Marbury had insisted on the unlimited discretion of the legislature in the apportionment of the judicial power; and it is against this argument that the reasoning of the court is directed. They say that, if such had been the intention of the article, "it would certainly have been useless to proceed farther than to define the judicial power, and the tribunals in which it should be vested." The court says, that such a construction would render the clause, dividing the jurisdiction of the court into original and appellate, totally useless; that "affirmative words are often, in their operation, negative of other objects than those which are affirmed; and, in this case (in the case of Marbury vs. Madison), a negative or exclusive sense must be given to them, or they have no operation at all." "It cannot be presumed," adds the court, "that any clause in the Constitution is intended to be without effect; and, therefore, such a construction is inadmissible, unless the words require it." The whole reasoning of the court proceeds upon the idea that the affirmative words of the clause giving one sort of jurisdiction, must imply a negative of any other sort of jurisdiction, because otherwise the words would be totally inoperative, and this reasoning is advanced in a case to which it was strictly applicable. If in that case original jurisdiction could have been exercised, the clause under consideration would have been entirely useless. Having such cases only in its view, the court lays down a principle which is generally correct, in terms much broader than the decision, and not only much broader than the reasoning with which that decision is supported, but in some instances contradictory to its principle. The reasoning sustains the negative operation of the words in that case, because otherwise the clause would have no meaning whatever, and because such operation was necessary to give effect to the intention of the article. The effort now made is, to apply the conclusion to which the court was conducted by that reasoning in the particular case, to one in which the words have their full operation when understood affirmatively, and in which the negative, or exclusive sense, is to be so used as to defeat some of the great objects of the article. To this construction the court cannot give its assent. The general expressions in the case of Marbury vs. Madison must be understood with the limitations which are given to them in this opinion; limitations which in no degree affect the decision in that case, or the tenor of its reasoning. (Cohens vs. Virginia [1821], 6 Wheat., 264, 400; 5 Law. ed., 257.) What the Supreme Court in the case of Marbury vs. Madison held then was that Congress could not extend its original jurisdiction beyond the cases expressly mentioned in the Constitution, the rule of construction being that affirmative words of the Constitution declaring in what cases the Supreme Court shall have original jurisdiction must be construed negatively as to all other cases. (See Ex parte Vallandigham [1864], 1 Wall., 243, 252; 17 Law. ed., 589; Martin vs. Hunter's Lessee [1816], 1 Wheat., 305, 330; 4 Law. ed., 97; U. S. vs. Haynes [D. C. Mass., 1887], 29 Fed., 691, 696.) That was all. It should be observed that Chief Justice Marshall concurred in the opinion in the case of Davis vs. Packard (11833], 7 Pet., 276; 8 Law. ed., 684). In this case the jurisdiction of the state court of New York over a civil suit against a foreign consul was denied solely on the ground that jurisdiction had been conferred in such a case upon the district courts of the United States exclusively of the state courts. Such a ground, says Justice Harlan in Borsvs. Preston ([1884], 111 U. S., 252; 4 S. Ct., 407; 28 Law. ed., 419), would probably not have been given had it been believed that the grant of original jurisdiction to the Supreme Court deprived Congress of the power to confer concurrent original jurisdiction in such cases upon subordinate courts of the Union, concluding that the decision in the case "may be regarded, as an affirmance of the constitutionality of the Act of 1789, giving original jurisdiction in such cases, also, to District Courts of the United States." Of the seven justices who concurred in the judgment in the case of Davis, five participated in the decision of Osborn vs. Bank of the United States ([1824], 9 Wheat., 738; 6 Law. ed., 204), also penned by Chief Justice Marshall and relied upon as authority together with Marbury vs. Madison, supra. The rule enunciated in Bors vs. Preston, supra, is the one followed in the United States. The question involved in that case was whether the Circuit Court then existing had jurisdiction under the Constitution and laws of the United States to hear and determine any suit whatever against the consul of a foreign government. Justice Harlan said: The Constitution declares that "The judicial power of the United States shall extend . . . to all cases affecting ambassadors or other public ministers and consuls;" to controversies between citizens of a state and foreign citizens or subjects; that "In all cases affecting ambassadors, other public ministers and consuls, . . . the Supreme Court shall have original jurisdiction;" and that in all other cases previously mentioned in the same clause "The Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions and under such regulations as the Congress shall make." The Judiciary Act of 1789 invested the District Courts of the United States with jurisdiction, exclusively of the courts of the several States, of all suits against consuls or vice-consuls, except for offenses of a certain character; this court, with "Original, but not exclusive, jurisdiction of all suits . . . in which a consul or vice-consul shall be a party;" and the circuit courts with jurisdiction of civil suits in which an alien is a party. (l Stat. at L., 76-80.) In this act we have an affirmance, by the first Congress many of whose members participated in the Convention which adopted the

Constitution and were, therefore, conversant with the purposes of its framers of the principle that the original jurisdiction of this court of cases in which a consul or vice-consul is a party, is not necessarily exclusive, and that the subordinate courts of the Union may be invested with jurisdiction of cases affecting such representatives of foreign governments. On a question of constitutional construction, this fact is entitled to great weight. In this case of Bors, Justice Harlan adopted the view entertained by Chief Justice Taney in the earlier case of Gittings vs. Crawford (C. C. Md., 1838; Taney's Dec., 1, 10). In that case of Gittings, it was held that neither public policy nor convenience would justify the Supreme Court in implying that Congress is prohibited from giving original jurisdiction in cases affecting consuls to the inferior judicial tribunals of the United States. Chief Justice Taney said: If the arrangement and classification of the subjects of jurisdiction into appellate and original, as respects the Supreme Court, do not exclude that tribunal from appellate power in the cases where original jurisdiction is granted, can it be right, from the same clause, to imply words of exclusion as respects other courts whose jurisdiction is not there limited or prescribed, but left for the future regulation of Congress? The true rule in this case is, I think, the rule which is constantly applied to ordinary acts of legislation, in which the grant of jurisdiction over a certain subject-matter to one court, does not, of itself, imply that that jurisdiction is to be exclusive. In the clause in question, there is nothing but mere affirmative words of grant, and none that import a design to exclude the subordinate jurisdiction of other courts of the United States on the same subject-matter. (See also U.S. vs. Ravara [1793], 2 Dall., 297; 1 Law. ed., 388; United States vs. Louisiana [1887], 123 U. S., 36; 8 S. Ct., 17; 31 Law. ed., 69; Ex parte Baiz [1890],135 U. S., 403; 10 S. Ct., 854; 34 Law. ed., 222, denying writ of prohibition Hollander vs. Baiz [D. C. N. Y., 1890]; 41 Fed., 732; Iasigi vs. Van de Carr [1897], 166 U.S., 391; 17 S. Ct., 595; 41 Law. ed., 1045; Graham vs. Strucken [C. C. N. Y., 1857]; 4 Blatchf., 58; Lorway vs. Lousada [D. C. Mass., 1866]; Fed. Cas., No. 8517; St. Luke's Hospital vs. Barclay [C. C. N. Y., 1855]; 3 Blatchf., 259; State of Texas vs. Lewis [C. C. Tex., 1882], 14 Fed., 65; State of Alabama vs. Wolffe (C. C. Ala., 1883], 18 Fed., 836, 837; Pooley vs. Luco [D. C. Cal., 1896], 76 Fed., 146.) It is interesting to note that in the case of St. Luke's Hospital vs. Barclay, supra, the jurisdiction of circuit courts exclusive of state courts over aliens, no exception being made as to those who were consuls, was maintained. (See 1 U. S. Stat. at L., c. 20, sec. 11, pp. 78, 79.) From the history of, and the judicial interpretation placed on, clause 2, section 2 of Article III of the Constitution of the United States it seems clear that the word "original" in reference to the jurisdiction of Supreme Court of the United States over cases affecting ambassadors, other public ministers and consuls, was never intended to be exclusive as to prevent the Congress from vesting concurrent jurisdiction over cases affecting consuls and vice-consuls in other federal courts. It should be observed that the Philadelphia Convention of 1787 placed cases affecting the official representatives of foreign powers under the jurisdiction of Federal Supreme Court to prevent the public peace from being jeopardized. Since improper treatment of foreign ambassadors, other public ministers and consuls may be a casus belli, it was thought that the federal government, which is responsible for their treatment under international law, should itself be provided with the means to meet the demands imposed by international duty. (Tucker, The Constitution of the United States [1899], vol. II, 760, 772; vide, The Federalist, No. LXXXI, Ashley's Reprint [1917], 415.) Bearing in mind in the distinction which international law establishes between ambassadors and other public ministers, on the one hand, and consuls and other commercial representatives, on the other, Congress saw it fit to provide in one case a rule different from the other, although as far as consuls and vice-consuls are concerned, the jurisdiction of the Federal Supreme Court, as already observed, though original is not exclusive. But in the United States, there are two judicial systems, independent one from the other, while in the Philippines there is but one judicial system. So that the reason in the United States for excluding certain courts the state courts from taking cognizance of cases against foreign representatives stationed in the United States does not obtain in the Philippines where the court of the lowest grade is as much a part of an integrated system as the highest court. Let us now turn our own laws as they affect the case of the petitioner. Undoubtedly Philippine courts are not federal courts and they are not governed by the Judiciary Acts of the United States. We have a judicial system of our own, standing outside the sphere of the American federal system and possessing powers and exercising jurisdiction pursuant to the provisions of our own Constitution and laws. The jurisdiction of our courts over consuls is defined and determined by our Constitution and laws which include applicable treaties and accepted rules of the laws of nations. There are no treaties between the United States and Uruguay exempting consuls of either country from the operation of local criminal laws. Under the generally accepted principles of international law, declared by our Constitution as part of the law of the nation (Art. II sec. 3, cl. 2), consuls and vice-consuls and other commercial representatives of foreign nations do not possess the status and can not claim the privilege and immunities accorded to ambassadors and ministers. (Wheaton, International Law, sec. 249; Kent, Commentaries, 44; Story on the Constitution, sec. 1660; Mathews, The American Constitutional System [1932], 204, 205; Gittings vs. Crawford, C. C. Md., 1838; Taney's Dec., 1; Wilcox vs. Luco, 118 Cal., 639; 45 Pac., 676; 2 C. J., 9 R.

C. L., 161.) The only provisions touching the subject to which we may refer are those found in the Constitution of the Philippines. Let us trace the history of these provisions. The report of the committee on the Judicial Power, submitted on September 29, 1934, did not contain any provisions regarding cases affecting ambassadors, other public ministers and consuls. The draft of the sub-committee of seven of the Sponsorship Committee, submitted on October 20, 1934, however, contains the following provision: Article X, Section 2. The Supreme Court shall have such original jurisdiction as may be possessed and exercised by the present Supreme Court of the Philippine Islands at the time of the adoption of this Constitution, which jurisdiction shall include all cases affecting ambassadors, other foreign ministers and consuls . . . ." The Special Committee on the Judiciary, composed principally of Delegates Vicente J. Francisco and Norberto Romualdez, included in its report the provisions which now appear in sections 2 and 3 of Article VIII of the Constitution. Section 2 provides: The National Assembly shall have the power to define, prescribed, and apportion the jurisdiction of the various courts, but may not deprive the Supreme Court of its original jurisdiction over cases affecting ambassadors, other ministers and consuls . . . . And the second sentence of section 3 provides: The original jurisdiction of the Supreme Court shall include all cases affecting ambassadors, other public ministers and consuls. The provision in our Constitution in so far as it confers upon our Supreme Court "original jurisdiction over cases affecting ambassadors, other public ministers and consuls" is literally the same as that contained in clause 2, section 2 of Article III of the United States Constitution. In the course of the deliberation of the Constitutional Convention, some doubt was expressed regarding the character of the grant of "original jurisdiction" to our Supreme Court. An examination of the records of the proceedings of the Constitutional convention show that the framers of our Constitution were familiar with the history of, and the judicial construction placed on, the same provision of the United States Constitution. In order to end what would have been a protracted discussion on the subject, a member of the Special Committee on the Judiciary gave the following information to the members of the Convention: . . . Sr. Presidente, a fin de poder terminar con el Articulo 2, el Comite esta dispuesto a hacer constar que la interpretacion que debe dard a la ultima parte de dicho articulo es la misma interpretacion que siempre se ha dado a semejante disposicion en la Constitucion de los Estados Unidos. (January 16,1935.) Without further discussion, the provision was then and there approved. It thus appears that the provision in question has been given a well-settled meaning in the United States the country of its origin. It has there received definite and hitherto unaltered legislative and judicial interpretation. And the same meaning was ascribed to it when incorporated in our own Constitution. To paraphrase Justice Gray of the Supreme Court of the United States, we are justified in interpreting the provision of the Constitution in the light of the principles and history with which its framers were familiar. (United States vs. Wong Kin Ark [1897], 169 U. S., 649; 18 S. Ct., 456; 42 Law. ed., 890, cited with approval in Kepner vs. United States, a case of Philippine origin [1904]; 195 U. S., 100; 49 Law. ed., 114.) (b) What has been said hereinabove is not unnecessary attachment to history or idolatrous adherence to precedents. In referring to the history of this provision of our Constitution it is realized that historical discussion while valuable is not necessarily decisive. Rationally, however, the philosophical reason for the conclusion announced is not far to seek if certain principles of constitutional government are borne in mind. The constitution is both a grant of, and a limitation upon, governmental powers. In the absence of clear and unequivocal restraint of legislative authority, the power is retained by the people and is exercisable by their representatives in their legislature. The rule is that the legislature possess plenary power for all purposes of civil government. A prohibition to exercise legislative power is the exception. (Denio, C. J., in People vs. Draper, 15 N.Y., 532, 543.) These prohibitions or restrictions are found either in the language used, or in the purpose held in view as well as the circumstances which led to the adoption of the particular provision as part of the fundamental law. (Ex parteLewis, 45 Tex. Crim. Rep., 1; 73 S. W., 811; 108 Am. St. Rep., 929.) Subject to certain limitations, the Filipino people, through their delegates, have committed legislative power in a most general way to the National Assembly has plenary legislative power in all matters of legislation except as limited by the constitution. When, therefore, the constitution vests in the Supreme Court original jurisdiction in cases affecting ambassadors, other public ministers and consuls, without specifying the exclusive character of the grant, the National Assembly is not deprived of its authority to make that jurisdiction concurrent. It has been said that popular government lives because of the inexhaustible reservoir of power behind. It is unquestionable that the mass of powers of government is vested in the representatives of the people, and that these representatives are no further restrained

under our system than by the express language of the instrument imposing the restraint, or by particular provisions which, by clear intendment, have that effect. (Angara vs. Electoral Commission, p.139,ante.) What the Constitution prohibits is merely the deprivation of the Supreme Court of its original jurisdiction over cases affecting ambassadors, other public ministers and consuls and while it must be admitted that original jurisdiction if made concurrent no longer remains exclusive, it is also true that jurisdiction does not cease to be original merely because it is concurrent. It is also quite true that concurrent original jurisdiction in this class of cases would mean the sharing of the Supreme Court with the most inferior courts of cases affecting ambassadors, other public ministers and consuls such that the Supreme Court would have concurrent jurisdiction with the lowest courts in our judicial hierarchy, the justice of the peace of the courts, in a petty case for the instance, the violation of a municipal ordinance affecting the parties just mentioned. However, no serious objection to these result can be seen other that the misinterpreted unwillingness to share this jurisdiction with a court pertaining to the lowest category in our judicial organization. Upon the other hand, the fundamental reasoning would apply with equal force if the highest court of the land is made to take recognizance exclusively of a case involving the violation of the municipal ordinance simply because of the character of the parties affected. After alluding to the fact that the position of consul of a foreign government is sometimes filled by a citizen of the United States (and this also true in the Philippines) Chief Justice Taney, in Gittings vs. Crawford, supra, observed: It could hardly have been the intention of the statesmen who framed our constitution to require that one of our citizens who had a petty claim of even less than five dollars against another citizen, who had been clothed by some foreign government with the consular office, should be compelled to go into the Supreme Court to have a jury summoned in order to enable him to recover it; nor could it have been intended, that the time of that court, with all its high duties to perform, should be taken up with the trial of every petty offense that might be committed by a consul by any part of the United States; that consul, too, being often one of our own citizens. Probably, the most serious objection to the interpretation herein advocated is, that considering the actual distribution of jurisdiction between the different courts in our jurisdiction, there may be cases where the Supreme Court may not actually exercise either original whether exclusive or concurrent or appellate jurisdiction, notwithstanding the grant of original jurisdiction in this class of cases to the Supreme Court. If, for instance, a criminal case is brought either in a justice of the peace court or in a Court of First Instance against a foreign consul and no question of law is involved, it is evident that in case of conviction, the proceedings will terminate in the Court Appeals and will not reach the Supreme Court. In this case, the Supreme Court will be deprived of all jurisdiction in a case affecting a consul notwithstanding the grant thereto in the Constitution of original jurisdiction in all cases affecting consuls. This is a situation, however, created not by the Constitution but by existing legislation, and the remedy is in the hands of the National Assembly. The Constitution cannot deal with everycasus omissus, and in the nature of things, must only deal with fundamental principles, leaving the detail of administration and execution to the other branches of the government. It rests with the National Assembly to determine the inferior courts which shall exercise concurrent original jurisdiction with the Supreme Court in cases affecting ambassadors, other public ministers and consuls, considering the nature of the offense and irrespective of the amount of controversy. The National Assembly may as in the United States (Cooley, Constitutional Law, 4th ed. [1931], sec. 4, p. 156), provide for appeal to the Supreme Court in all cases affecting foreign diplomatic and consular representatives. Before the approval of the Constitution, jurisdiction over consuls was exercisable by our courts. This is more so now that the Independence Law and Constitution framed and adopted pursuant thereto are in force. The fact that the National Assembly has not enacted any law determining what courts of the of the Philippines shall exercise concurrent jurisdiction with the Supreme Court is of no moment. This can not mean and should not be interpreted to mean that the original jurisdiction vested in the Supreme Court by the Constitution is not concurrent with other national courts of inferior category. The respondent judge of the Court of First Instance of the City of Manila having jurisdiction to take cognizance of the criminal case brought against the petitioner, the writ of prohibition should be denied.

Republic of the Philippines SUPREME COURT Manila

EN BANC

DECISION

October 15, 1908 G.R. No. L-4432 THE UNITED STATES, plaintiff-appellee, vs. AGRIPINO MACASAET, defendant-appellant. Jose Del Castillo for appellant. Attorney-General Araneta for appellee. Mapa, J.: It was proven at the trial that the accused had been selling native wine at retail without licensed required by the law. The evidence consists of the testimony of two witnesses whom we consider worthy of credit. One of them, William Bigger, sergeant of Ninth Cavalry, United States Army, declares that he bought wine from the defendant on four different occasions, and that the last time was between the 1st and 5th of September, 1907, on which occasion the accused give him half a bottle of wine, for which he paid the latter 35 or 40 centavos, Philippine currency. This last purchase was made in the presence of other witnesses, James B. Jelks, a corporal of the same regiment of cavalry, who saw the former witness receive the bottle of wine from the defendant and pat its price to the latter. The accused in testifying at the trial, said nothing tending to overcome the declarations of the witness Bigger regarding the first purchases of wine which the latter declares he made from the former, for which reason the testimony of the said witness on this point is competent. With regard to the sale effected in the earlier part of September, the accused expressly admits the material fact of having delivered wine to the witness, but he states that he gave it to him as a mere gift without receiving any payment for it. That wine, according to the accused, was the rest of the wine he had ordered that afternoon in order to entertain the doctor who was attending his sick daughter. The doctor, or rather the medical student, as he really is, to whom the accused refers, confirms the fact that the latter sent for some wine in order to entertain him, and it was also so declared by the person who purchased the wine by order of the accused. This, however, even supposing that it were true, would not be in conflict with the declarations of the Government witnesses, inasmuch as the accused might have sold to sergeant Bigger the wine which remained after entertaining the doctor. It is true that the above-mentioned person, who bought the wine for the doctor, states moreover that he witnessed the act of then accused in offering and delivering the wine to Sergeant Bigger, and that the latter did not pay anything for it; but it seems to us that the contrary declaration of Bigger himself and his companion is the more probable, since there is nothing in the record that may explain satisfactorily the alleged gift of the wine in question. The explanation given by the accused, that he offered and gave the bottle of wine to Bigger gratuitously because the latter asked him to sell him on credit a box of cigars, which he refused to do, seems to us somewhat artificial in denial of the report made by the former, that the wine was sold and not given as a gift, which is much more probable and credible, inasmuch as the accused had already sold wine to Bigger on previous occasions, as declared by the latter in the trial without opposition. Moreover, it does not appear to be plausible or logical that the accused was obliged to give or that he did give, as a present, half a bottle to Bigger, simply because he did not want to sell on credit a box of cigars to the latter. The fact that the accused had been selling native wine at retail without the necessary license constitutes a violation of section 66, in relation with section 68, subsection 5, of the Internal Revenue Law, and the judgment appealed from, in so far as it sentences the said accused to the payment of a fine of P300 and the costs of the trial, and directing him to obtain the required license, is in accordance with the law, and should, therefore, be affirmed. The judgment also sentences the accused to imprisonment for five months in case of insolvency with respect to the fine imposed, and to pay the costs. This imprisonment is subsidiary in its nature, inasmuch as the accused is to suffer the same only in the case of nonpayment of the fine and costs. In the case at bar, the law does not authorize such subsidiary imprisonment, which is therefore, illegal. The above-mentioned section 66 of the Internal Revenue Law, in its paragraph No. 1, prescribes alternatively the penalty of the fine of not less than P200 nor more than P2,000, or imprisonment not exceeding six months, and in paragraph No. 2, a fine of not more than P1,000, or imprisonment not exceeding six months, or both penalties in the discretion of the court. The imprisonment is prescribed in both paragraphs as a principal penalty, and in this manner only should it be imposed. The fine along being imposed, imprisonment can not be inflicted subsidiarily in case of insolvency, because the law in question does not so provide. It seems that the judge below imposed the subsidiary imprisonment in view of the provisions of Act No. 1732, section 1 of which provides that "when a fine is imposed as a whole or any part of the punishment for any criminal offense made

punishable by any Act or Acts of the Philippines Commission, the court shall also sentence the guilty person to suffer subsidiary imprisonment until the fine is satisfied." This act can not be applied to the present case, inasmuch as it went into effect only on the 1st day of November 1907, and the trial only took place on September of the same year. It is a well-settled doctrine that penal statutes can not be made retroactive, except in the case they are favorable to the accused. In conformity with said doctrine, article 21 of the Penal Code provides that "no crime or misdemeanor shall be punished by a penalty which was not established by law prior to its commission". The judgment appealed from is affirmed, except that part thereof which sentences the accused of five months' imprisonment in case of insolvency with respect to the fine and costs, which is hereby reversed, with the costs of this instance against the said accused. So ordered. Arellano, C.J., Torres, Carson, Willard and Tracey, JJ., concur. .

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee, vs. MELCHOR ALCARAZ Y TANYAG (alias MELCHOR ALCAZAR), defendant-appellant. Juan Medina Cue, for appellant. Attorney-General Jaranilla, for appellee. SYLLABUS 1. CRIMINAL LAW; RETROACTIVE EFFECT OF PENAL LAWS; WHETHER SPANISH PENAL CODE AND ANCILLARY LAWS OR THE REVISED PENAL CODE APPLICABLE TO PENDING CASES IN THE SUPREME COURT; ARTICLES 366 AND 22 OF THE REVISED PENAL CODE CONSTRUED. The Supreme Court will give retroactive effect to the penal laws, including the Revised Penal Code, in so far as they favor the person guilty of a felony, who is not a habitual criminal, in all pending cases. 2. ID.; ID.; ID.; ID.; HABITUAL DELINQUENTS. Article 22 of the Revised Penal Code, by introducing the clause relative to the person guilty of a felony "who is not a habitual criminal, as this term is defined in rule 5 of article 62 of this Code," excepts the habitual delinquent from the benefits to be derived from the said article. DECISION MALCOLM, J p: On May 6, 1931, Melchor Alcaraz stole from the tienda of Haw Paw in the City of Manila an imitation concha necklace valued at P0.25. Alcaraz was caught in the felonious act by the policeman Bolado and the trinket found in the possession of Alcaraz was identified as belonging to the tienda by Haw Paw. Thereafter, Alcaraz was prosecuted for the crime of qualified theft and as an habitual delinquent. At the trial the accused admitted to three previous convictions for the crime of theft committed within a period of ten years prior to 1931, and the records of the police department of the City of Manila showed twelve convictions to the credit of the accused, beginning in 1919, when the accused must have been a youthful offender, and ending on June 27, 1929, when he was released from prison. Convicted in the municipal court of the City of Manila which clearly had jurisdiction of the offense, and again in the Court of First Instance of Manila, under the circumstances of the case, the guilt of the accused can admit of no doubt, and the only question for determination relates to the imposition of the appropriate penalty. When the theft was committed and when the decisions of the trial courts were handed down, the Spanish Penal Code and the Habitual Delinquent Laws, Acts Nos. 3397 and 3586, were effective and were naturally applied to the case. The Revised Penal Code took effect on January 1, 1932, just before the case was submitted for decision in this court. The latter Code expressly repealed the Spanish Penal Code and the two recidivist laws. Article 366 of the Revised Penal Code specifically provided that "without prejudice to the provisions contained in article 22 of this Code, felonies and misdemeanors, committed prior to the date of effectiveness of this Code shall be punished in accordance with the Code or Acts in force at the time of their commission." Article 22 hereinbefore mentioned provided: "Penal laws shall have a retroactive effect in so far as they favor the person guilty of a felony, who is not a habitual criminal, as this term is defined in rule 5 of article 62 of this Code, although at the time of the publication of such laws a final sentence has been pronounced and the convict is serving the same." With these provisions of the new law in mind, we find the present provisions for the crime of theft and habitual delinquency more favorable to the accused than were provisions on the same subjects in the Spanish Penal Code and the Habitual Delinquent Laws. The question is, should the controlling provisions of the Spanish Penal Code and the ancillary laws pertaining to habitual delinquency be applied, or should the provisions on the same topics to be found in the Revised Penal Code be applied. On examination, it will be noted that article 366 of the Revised Penal Code contains an exception to the rule when it begins with the clause "without prejudice to the provisions contained in article 22 of this Code." In general, therefore, this court will give retroactive effect to the provisions of the penal laws including the Revised Penal Code in so far as they favor the person guilty of a felony, in all pending cases. But the exception, article 22 of the Revised Penal Code, in turn, contains an exception when there is introduced the clause "who is not a habitual criminal, as this term is defined in rule 5 of article 62 of this Code." This innovation means that the habitual delinquent is excepted from the benefits to be derived from the provisions of article 22 of the Revised Penal Code. In accordance, therefore, with the Spanish Penal Code and the Habitual Delinquent Laws, the accused should be sentenced to one year and one day, presidio correccional, with the accessories of the law, and as a habitual delinquent to ten years additional imprisonment. These penalties may appear extraordinarily severe and out of all proportion to the magnitude of the offense, which consisted simply in the unlawful misappropriation of an imitation necklace valued at P0.25, but as to this it is only for the courts to interpret and apply the law as they find it. Wherefore the judgment appealed from will be affirmed with the modifications above indicated, with the costs of all instances against the appellant. Avancea, C.J., Johnson, Street, Villamor, Ostrand, Romualdez, Villa-Real and Imperial, JJ., concur.