[ G.R. No. 7428. November 12, 1912 ]

[ G.R. No. 7428. November 12, 1912 ]

[ G.R. No. 7428. November 12, 1912 ]

THE UNITED STATES, PLAINTIFF AND APPELLEE, VS. LIM SING ALIAS LIM SIN, DEFENDANT AND APPELLANT.

D E C I S I O N

CARSON, J.:

The evidence of record conclusively establishes the guilt of the appellant smoking opium in violation of the provisions of Act No. 1761; and further that he is a recidivist, in that on a former occasion he was convicted similar violation of the Opium Law. The trial judge found him guilty as charged in the information, and ordered his deportation from the Philippine Islands under the provisions section 32 of Act No. 1761, as amended by section 4 of Act No. 1910, which is as follows:

"On and after March first, nineteen hundred and eight, it shall be unlawful for any person in the Philippine Islands to inhale, smoke, chew, swallow or otherwise use or permit to be used in or on his body any opium, except for medicinal purposes, and then only upon prescription of a duly licensed and practicing physician.

"Any person violating any of the provisions of this section shall be punished by a fine not exceeding ten thousand pesos nor less than three hundred pesos, or by imprisonment for not exceeding five years, nor less than three months, or by both such fine and imprisonment, in the discretion the court: Provided, however, That in the case of the commission of a second offense under the provisions of this section, any person so convicted, if other than a citizen of the United States or a citizen of the Philippine. Islands, may, by order of the court, be deported."

The Solicitor-General, in his brief, invites the attention of the court fact that the evidence discloses that the appellant has a native wife an child living in the Province of Iloilo, with whom he was living at the time of his arrest, and suggests that under all the circumstances of this case the penalty of deportation would appear to be excessive. In this we agree with the Solicitor-General.

An exceptionally wide range of discretion is conferred upon the court the imposition of the penalties prescribed for violations of the penalized provisions of the Opium Law. But this discretion should not be exercise arbitrarily, and in imposing the prescribed penalties the courts should have in mind the purpose and object of the statute as a whole. We this that a review of the legislation having for its object the regulation use and sale of opium, its derivatives and compounds, as such legislation has been adopted in this as well as in many foreign jurisdictions, just the conclusion that the primary object of the statute now in force in these Islands is the protection of the body politic from the evils which believed to be incident to the widespread use of this habit forming drug other than as a medicine or for scientific purposes. With this object view all unauthorized use of or traffic in the drug is penalized, the prescribed penalties to be imposed by the courts in their discretion very wide limits.

The exceptionally wide extent of discretion conferred upon the courts the statute clearly indicates the intention of the legislator that in applying these penalties the courts should have in mind, at all times, the primary object of the law, that is to say the suppression of the vice, as a widespread evil threatening the public welfare; and further, the particular circumstances of each case, and the degree of criminality involved in t particular violation of the statute of which the accused person has been convicted.

Accordingly we have heretofore held that -

"Upon a person who is convicted only of the crime of smoking opium, of having in his possession such a small quantity of the drug as to justify the inference that it was intended merely for his own personal use, the court has always readily affirmed the imposition of the minimum penalty; "but upon those who attempt to 'exploit the vice' and violate the provisions of the Opium Law for gain, it is deemed proper that, within discretionary limits prescribed by law, a higher and more severe penalty should be imposed." (U. S. vs. Castaneda, 18 Phil. Rep., 5

In accord with the views thus set forth we have affirmed a large number sentences imposing heavy fines and prison sentences upon persons convict of violation of the Opium Law, in cases wherein it appeared from the evidence that such persons had been engaged in its illegal importation sale, or in the keeping of opium dens or the unlawful handling of the drug for profit, in any form. Indeed we have adopted the practice in such cases of adding a prison sentence where the court below has imposed a fine without imprisonment. Mere fines, however large, do not seem serve as a sufficient deterrent to offenders of this class, doubtless be the illicit gains from the traffic in the drug are so great, while the of detection and punishment are in most instances so few, as a result the comparatively small bulk of the contraband article.

The following cases illustrate quite clearly our practice in this regard, and also our uniform practice of sustaining the courts below in cases wherein have held that the unexplained illegal possession of the drug, in quantities considerably in excess of an amount which would appear to be reasonably sufficient for the personal use of a victim of the opium habit, justified inference that the possessor is engaged in handling the drug for profit.

In the case of U. S. vs. Chia-Tua (12 Phil. Rep., 605), a fine and two months' imprisonment was imposed on conviction of sale of opium without a license.

In the case of U. S. vs. Lao Lock Hing (14 Phil. Rep., 86), a pen two years' imprisonment and a fine of P3,000 was imposed upon conviction of an attempt to smuggle seventy tins of opium into the Islands.

In the case of U. S. vs. Viliano (18 Phil. Rep., 359), a sentence of one year and two months' imprisonment and the payment of a fine of P2,500, upon conviction of an attempt to smuggle a hundred tins of opium into the Islands, was affirmed.

In the case of U. S. vs. Look Chaw (19 Phil. Rep., 343), sentence of six months' imprisonment and a fine of Pl,000 was imposed for a violation of section 15 of the Opium Law.

In the case of U. S. vs. Lee See (20 Phil. Rep., 398), penalty of six months' imprisonment and P1,000 fine for an attempt to smuggle twenty-eight tins of opium into the Philippines was affirmed.

See also U. S. vs. Petallio (15 Phil; Rep., 642), wherein a penalty of one year and one day was imposed; U. S. vs. Ana (15 Phil Rep., 648 wherein a penalty of six months' imprisonment and P300 fine was imposed U. S. vs. Lim-Tioco (15 Phil. Rep., 650), wherein imprisonment an P500 was imposed; U. S. vs. Tan-Quimyung (15 Phil, Rep., 678), imprisonment for one year and a fine of P2,000 was imposed; U. S. vs Lee (20 Phil. Rep., 596), wherein one year's imprisonment was imposed; a number of others of like tenor and effect.

On the other hand, the following cases illustrate the practice of this court affirming sentences imposing lighter penalties in cases where the convict for a first offense, and the violation of the law consisted of smoking opium, or the illegal possession of small quantities of the drug or of utensils, under circumstances which would not justify the inference that convict was engaged in "exploiting the vice" for gain. (U. S. vs.vs. Que-Latt, 15 Phil. Rep., 680; U. Hong Kong, 16 Phil. Rep., 678; U. S. vs. Go Chin, 16 Phil. Rep., vs. Lim Chu, 16 Phil. Rep., 681; U. S. vs. Farinas Go Ju Rep., 684; U. S. vs. Vy Tico, 16 Phil. Rep., 685; U. S. vs.